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 DIGEST 
 
 OF THE 
 
 LAWYERS REPORTS 
 ANNOTATED 
 
 VOLUMES 1-70 
 
 (CITED " L. R. A.") 
 
 Abandonment-Enlistment 
 
 THE LAWYERS CO-OPERATIVE PUBLISHING COMPANY 
 
 ROCHESTER, N. Y. 
 
 1907
 
 Entered according to Act of .Congress, in the year nineteen hundred seven, by 
 
 THE LAWYERS CO-OPERATIVE PUBLISHING CO., 
 In the Office of the Librarian of Congress, at Washington, D. C, 
 
 K. R, AMJRKWS PRINTING COMPANY, Rochester, N. T.
 
 PREFACE. 
 
 This Digest, in the main, follows the lines pursued in former Digests. 
 A few changes in classification have, however, been made, chief among 
 which are the following : The subjects of Abatement and Revival, Appear- 
 ance, Dismissal and Discontinuance, Election of Remedies, Parties, and 
 Venue have been taken from Action or Suit, and placed under their respec- 
 tive titles. The subject of Assignments for Creditors has been removed 
 from Insolvency, and placed by itself. Matters as to the impairment of the 
 obligation of contracts have been changed from Contracts to Constitutional 
 Law. The subject of Judges has been placed in a title by itself. Fraud 
 and Fraudulent Conveyances have been separated, and each subject placed 
 by itself. Breach of Promise, Marriage, and Divorce have each been sepa- 
 rated from Husband and Wife, and placed under separate heads. Matters 
 as to the right to and selection of a jury will now be found under Jury, 
 instead of under Trial. And the subjects of Mechanics' Liens and Chattel 
 Mortgages have been placed under separate heads, instead of under Liens 
 and Mortgages as heretofore. 
 
 In the matter of subdividing subjects and making cross-references 
 the greatest care has been taken. In addition to the full and carefully 
 prepared scheme or analysis at the head of each subject, heavy-faced head- 
 ings are used throughout the work, the constant aim being to lighten the 
 labor of the users by making every subdivision that could in any possible 
 way be helpful to them. This work of subdividing has been supplemented 
 by a most careful and exhaustive scheme of making cross-references, the 
 effort in each case being to make cross-references from every subdivision, 
 including such heavy-faced headings, to all paragraphs on the same subject 
 in other parts of the Digest, whether in the same or different titles, so that 
 anyone finding a subdivision in any part of the Digest bearing on the subject 
 before him will be able to find there all cases in point, or cross-references 
 to them. 
 
 The cross-references will also be found helpful in finding any particular 
 subject where one is doubtful as to its exact location. The thought con- 
 stantly in mind in preparing them has been to make a cross-reference from 
 every place where one would be liable to think that the subject, or a cross- 
 reference to it, might be found. This may be shown by the following illus- 
 tration : Matters as to estoppel of the grantor in a deed to claim the property 
 under a title subsequently acquired by him are placed in Estoppel. One 
 who does not know its location may find cross-references from After-Ac- 
 quired Property, Deeds, Real Property, and Vendor and Purchaser. 
 
 This Digest contains also a complete index to the annotation for the
 
 series. The index for each subject will be found in its entirety at the close 
 of the subject. This course was adopted to preserve the homogeneity of the 
 work, which could not have been done if isolated portions were, in each 
 instance, placed in the particular subdivision where they naturally belong. 
 A further advantage from this mode of treatment is the doing away with the 
 necessity of using the separate volume of the Index to Notes, except as one 
 may choose to use it when looking for notes only. All advantages to be 
 obtained by scattering the matter throughout the different subdivisions are 
 secured, however, by a cross-reference from each subdivision to the particular 
 section or sections of the notes, if any, which are in point. 
 
 A Table of Cases containing reversed titles and such abbreviated, as well 
 as full, forms of corporate titles as will be likely to be cited by the courts in 
 any instance, together with references to all Digest paragraphs, will be 
 found at the close of the third volume. 
 
 The responsibility for the preparation of this digest has fallen chiefly 
 upon Joseph H. Hill. With exceptional ability, developed by long exper- 
 ience in similar work, he has shown a tireless patience in the endeavor to 
 
 this digest the highest excellencies and the greatest value.
 
 I DIGEST 
 
 LAWYERS REPORTS ANNOTATED 
 
 VOLUMES 1-70. 
 
 A 
 
 ABANDONMENT. 
 
 Of Cause of Action, see Action or Suit, 49; 
 Election of Remedies, 53. 
 
 Of Appeal, see Appeal and Error, 364. 
 
 Of Common Counts, see Appeal and Error, 
 684. 
 
 Of Canal, see Canals, 10. 
 
 Of Rule by Carriers, see Carriers, 34, 36, 37. 
 
 Of Trip by Vessel, see Carriers, 116. 
 
 Of Cemetery, Reversion of, see Cemeteries, 
 8-12. 
 
 Of Legal Proceedings as Consideration, see 
 Compromise and Settlement, 4. 
 
 Of Constitutional Power, see Constitutional 
 Law, I. h. 
 
 Of Contract, see Contracts, 680, 761-764, 
 VTII. 49, 50. 
 
 Of Dedication, see Dedication, III. 
 
 As Ground for Divorce, see Divorce and Sep- 
 aration, III. b. 
 
 Of Easement, see Easements, IV. 
 
 Of Condemnation Proceedings, see Constitu- 
 tional Law, 1128; Eminent Domain, 208. 
 
 Of Ferry, see Ferry, 24. 
 
 Of Pipe Line, see GPS. 6, 7. 
 
 Of Highway, see Hisrhways, V. c; Vendor 
 and Purchaser, 47. 
 
 Of Homestead, see Homestead, III. 
 
 Of Quarantine Station, see Hospitals, 2. 
 
 Of Husband, see Courts. 454: Homestead, 
 6fl; Husband and Wife, 93, 199, 208- 
 224. 
 
 Of Wife, see Husband and Wife, IV.; Stat- 
 utes, 299. 
 
 Of Children, see Infants, 41; Parent and 
 Child, 37. 
 
 Of Revival of Judgment, see Judgment, 406. 
 
 Of Drifting Logs, see Logs and Logging, 7. 
 
 Of Mining Claim, see Mines, 11. 
 
 Of Premises by Lessee, see Landlord and 
 Tenant, 63, 65. 
 
 Of Levy, see Levy and Seizure, 59, 60. 
 L.R.A. Dig. 1. 
 
 Of Contract with City, see Municipal Cor- 
 porations, 308, 309. 
 
 Of Railroad, see Eminent Domain, 156. 
 
 Of Railroad Lease, see Railronds, 10. 
 
 Of Street Railway, see Mandamus. 113, lit: 
 Street Railways, 40-49, 80-84. 
 
 Of Trademark, see Trademark. 40. 
 
 Of Trade Name, see Trade Name, 22. 
 
 Of Trial, see Trial. 1. 
 
 Of Trust, see Trusts, 97. 
 
 Of Turnpike Road, see Constitutional Law, 
 806. 
 
 Of Stream for Floatasre see Wa+prsi. 47. 4<?. 
 
 Of Water Rights, see Waters, 372-380, 411, 
 502. 
 
 Editorial Notes. 
 
 Of right; what constitutes. 5: 259.* 
 
 Of canal. 61:871. 
 
 Of right by prior apnropriator of water. 
 
 30:265. 
 Effect of nonuser of an easement. 1:214;* 
 
 5:652;* 18:535. 
 Of highway by nonuser or othprwis<> than 
 
 by act of miblic. 26:449. 
 Of highway, effect of. 26:659. 
 Of homestead by parent, effect on rights of 
 
 children. 56:80. 
 Of vessel, as affectin? marine insurance. 
 
 9:831.* 
 
 ABATEMENT. 
 
 Of Action, see Abatement and Revival. 
 Of Excessive Portion of Assessment, see As- 
 
 sumpsit, 56a, 57. 
 
 Of Rent, see Landlord and Tenant, 205, 206. 
 Of Nuisance, see Nuisances, II. c; III. 
 Of Tax, see Taxes. III. i. 
 Of Legacy, see Wills, III. 1.
 
 ABATEMENT AND REVIVAL, I., II. 
 
 Editorial Notes. 
 
 Of rent on destruction of premises. 22: 613. 
 Of obstruction to navigable water. 59: 91. 
 Of dam. 59: 879. 
 
 ABATEMENT AND REVIVAL. 
 
 I. In General. 
 II. By Death. 
 
 III. Pendency of Prior Action. 
 
 IV. Revival. 
 
 V. Editorial Notes. 
 
 Abatement of Appeal, see Appeal and Er- 
 ror. 362, 363. 
 
 Following State Decision as to, see Courts, 
 540. 
 
 Plea of, see Criminal Law, 129, 130; Plead- 
 ing, 453-455, 560. 
 
 I. In General. 
 
 By Unexecuted Accord, see Accord and Sat- 
 isfaction, 4. 
 
 For Misnomer, see Justice of the Peace, 21. 
 
 For Lack of Necessary Parties, see Parties, 
 176. 
 
 I!y Repeal of Statute, see Statutes, 610, 611, 
 613. 
 
 1. A disability of the plaintiff to sue is 
 waived by failure to file a plea in abatement, 
 
 v to take a special exception. Missouri P. 
 R. Co. v. Cullers, 81 Tex. 382, 17 S. W. 19, 
 
 13: 542 
 
 2. A right to recover for injuries to real 
 property is not affected by its sale after 
 commencement of the action. Seymour v. 
 Cummins, 119 Ind. 148, 21 N. E. 549, 5: 126 
 
 3. The mere fact that suit was brought 
 against a town in its corporate name does 
 not amount to an admission of its continued 
 corporate existence. Hornbrook v. Elm 
 Grove, 40 W. Va. 543, 21 S. E. 851, 28: 41ti 
 
 4. A suit by a municipal corporation does 
 not abate by the repeal of its charter and 
 the substitution for the old corporation of 
 a new one with substantially the same in- 
 habitants and locality. Mobile Transp. Co. 
 v. Mobile, 128 Ala. 335, 30 So. 645, 64: 333 
 For nonresidence. 
 
 Of Attachment Suit, see Attachment, 48. 
 
 5. ^'Iiero a citizen or citizens of one state 
 sue in equity citizens of other states, to 
 enforce a trust, in a district where the prop- 
 erty in controversy is situated, and of which 
 one or more of the defendants is or are in- 
 habitants, the suit does not abate by 
 reason of the nonresidency of some of the 
 defendants; but the nonresident defendants 
 who have been properly served by publica- 
 tion or otherwise, and who shall fail to ap- 
 pear, are nevertheless bound. Langdon v. 
 C( nini] I-!. & Bkg. Co. 37 Fed. 449, 2: 120 
 
 II. By Death. 
 
 By Dissolution of Corporation, see Corpora- 
 tions, VI. d. 
 
 Power of Court Over Costs Terminated by, 
 see Appeal and Error, 1227. 
 
 For Editorial Notes, see infra, V. 1.- 
 
 6. A personal action under the Tennessee 
 Code is not abated by the death of a party, 
 except when it affects the character of the 
 plaintiff. Warren v. Furstenheim, 35 Fed. 
 691, 1:40' 
 
 7. Under the Tennessee Code, the surviva- 
 bility of a cause of action in all cases, ex- 
 cept for an injury resulting in death, re- 
 mains as at common law, unless an action* 
 has already been brought before a death 
 which would otherwise abate the cause of ac- 
 tion. Id. 
 
 8. A cause of action for damages to real 
 property accruing during the lifetime of de- 
 cedent, which is survivable, survives to hi* 
 personal representatives, and not to his- 
 heirs. Seymour v. Cummins, 119 Ind. 148, 
 21 N. E. 549, 5:126- 
 
 9. A cause of action will not survive on 
 the ground that it is substantially a qua si - 
 contract unless the wrongdoer acquired spe- 
 cific property by which the assets of the es- 
 tate are increased. Payne's Appeal, 65 Conn. 
 397, 32 Atl. 948., 33: 41 S 
 Stockholders' liability. 
 
 10. The contingent liability of a stock- 
 holder in a Kansas corporation survives up- 
 on his death as against his personal repre- 
 sentative. Fidelity Ins. T. & S. D. Co. v, 
 Mechanics' Savings Bank, 38 C. C. A. 193, 
 97 Fed. 297, 56: 22 
 
 11. A stockholder's liability to creditors 
 for failure to make and record the certificate 
 of payment of all the capital stock, as re- 
 quired by N. Y. act 1875, is not penal, and 
 survives his death. Cochran v. Matthiessen. 
 119 N. Y. 399, 23 N. E. 803, 7: 553 1 
 Judgment for alimony. 
 
 12. A judgment for alimony in favor of a 
 wife, the right to which becomes vested, 
 by force of statute, upon a uecree of divorce- 
 for the fault of the husband, is a debt 
 against t'he husband, subject only to varia- 
 tion in amount in case of appeal, which, up- 
 on the death of both parties pending ap- 
 peal, will survive in favor of the personal 
 representative of the wife and against the 
 personal representative of the husband. 
 CofTman v. Finney, 65 Ohio St. 61, 61 N. E. 
 155, 55: 79* 
 Actions for torts generally. 
 
 13. A suit for a tort, brought against a 
 wife and her husband jointly, does not 
 abate as to her in consequence of his death 
 during its pendency. Baker v. Braslin, 16 
 R. I. 635, 18 Atl. 1039, 6: 718 
 
 14. An action for damages by fraudulent- 
 ly inducing plaintiff to take a lease of un- 
 healthy premises survives after defendant's- 
 death. Cutter v. Hamlen, 147 Mass. 471, 18 
 N. E. 397, 1 : 429 
 
 15. An action for the value of property 
 stolen is included among the causes of ac- 
 tion and actions of trespass and trespass on,'
 
 ABATEMENT AND REVIVAL, III. 
 
 the case for damages to property, within the 
 meaning of R. I. Pub. Stat. chap. 204, 8, 
 providing tor the survival of such actions, 
 on the death of the partv. Aylsworth v. 
 Curtis, 19 R. 1. 517/34 Atf. 1109, 33: 110 
 1C. An action for twice the value of prop- 
 erty stolen unless it is restored, and for its 
 value in case of restoration, which is given 
 l>y R. I. Gen. Laws, chap. 233, 16, is not 
 a penal action so as to take it out of the 
 rule for the survival of actions for dam- 
 ages to personal estate. Id. 
 Action to cancel forged marriage Contract. 
 
 17. The right of action to cancel a mar- 
 riage contract which, if genuine and fol- 
 lowed by the requisite consummation to 
 make it operative, would create rights in the 
 property of the alleged husband, survives to 
 his executor or administrator. Sharon v. 
 Terry. 13 Sawy. 387, 36 Fed. 337, 1: 572 
 
 18. The transfer of the property of the 
 plaintiff in a suit to cancel a forged marriage 
 contract, while such suit is pending, does 
 not abate it if the plaintiff retain a right 
 during his life to claim the rents and prof- 
 its thereof; and the purchasers or bene- 
 ficiaries under such transfer are entitled to 
 the benefit of the decree rendered in such 
 suit canceling the contract, .to protect the 
 property from claims made under or by vir- 
 tue of it. Id. 
 For breach of promise of marriage. 
 
 For Editorial Notes, see infra, V. g 1. 
 
 1!). An action for breach of contract of 
 marriage and seduction necessarily tenders 
 an issue as to the plaintiff's character, and 
 is within the exception of Mill. & V. (Tenn.) 
 Code. 3560, which provides that actions 
 shall not abate by the death of either party, 
 except actions "for wrongs affecting the 
 character of the plaintiff." Weeks v. Rus- 
 sell, 87 Tenn. 442. 10 8. W. 771, 3:212 
 For personal injuries. 
 
 20. A cause of action for personal inju- 
 ries does not survive at common law; and 
 the administrator of the injured person can- 
 not maintain an action in Rhode Island for 
 injuries occurring in Massachusetts, unless 
 there is a Massachusetts statute providing 
 for the survival of such action. O'Reilly v. 
 Xew York & N. E. R. Co. 16 R. I. 388/17 
 Atl. 906, 5: 364 
 
 21. Causes of action for personal injuries 
 which survive the death of the persons, in- 
 jured, under Wis. Rev. Stat. 4253, are not 
 limited to cases where deatn does not ensue 
 from the injury, although other sections of 
 the statute provide a right of action 
 for relatives injured by wrongful death. 
 Brown v. Chicago & N. W. R. Co. 102 Wix 
 137, 77 N. W. 748, 78 N. W. 771, 44: 579 
 
 22. A cause of action against a master for 
 injuries inflicted on a servant by a mob of 
 strikers does not survive the servant's death, 
 under a statute providing that no action for 
 personal injury shall die with the person ex- 
 cept actions for assault, etc. Foreman v. 
 Taylor Coal Co. 112 Ky. 845, 6t> S. W. HM1. 
 
 57 : 447 
 
 23. An action against a railroad company 
 for personal injuries, pending when Ga. act 
 November 12, 1889, amending Ga. Code, 
 
 2967, was passed, does not abate upon the 
 death of the plaintiff; nor is that act, as 
 applicable to actions pending at the time of 
 its passage, unconstitutional. Pritchard v. 
 Savannah Street & R. R. Co. 87 Ga. 294, 13 
 S. E. 493, 14: 721 
 
 24. The negligent act of a driver in run- 
 ning over a person is not a trespass or as- 
 sault and battery, within the meaning of a 
 statute which provides that a right of action 
 for personal injury will survive, except cer- 
 tain actions including that of assault and 
 battery. Perkins v. Stein, 94 Ky. 433, 22 S. 
 W. 649, 20: 861 
 For death. 
 
 See also infra, 42; Death, 4, 9, 33. 
 
 25. The liability of a person, under the 
 Pennsylvania act of 1855, for causing the 
 death of another by unlawful violence or 
 negligence, does not survive against his ad- 
 ministrator. Moe v. Smiley, 125 Pa. 136, 
 17 Atl. 228, 3: 341 
 
 26. The provision of Pa. Const, art. 3, 
 21, that in case of injuries resulting in death 
 the right of action shall survive, saves the 
 cause of action, but not the liability. Id. 
 
 27. An action for causing the death of a. 
 person, brought under N. Y. Code Civ. Proc.. 
 1902, by an administrator who is also the- 
 father and sole next of kin of the deceased 
 and the sole beneficiary of the action, is aik 
 action to recover damages, not for in- 
 jury to the person of the decedent, but for- 
 wrongs done to the property rights or in- 
 terests of the beneficiary, and therefore sur- 
 vives to his estate on his death, although 
 there are other persons living who would 
 have been next of kin of the deceased, and 
 for whose benefit the action might have been 
 maintained if the father had not been living 
 when the right of action accrued. Re Mee- 
 kin, 164 N. Y. 145, 58 N. E. 50, 51: 235 
 Abatement as to one defendant. 
 
 28. The death of one of" two physicians 
 sued as partners in an action for damages 
 for unskilful treatment, and the abatement 
 of the action as to him, does not abate it 
 as to the survivor. Hess v. Lowrey, 122 
 Ind. 225, 23 N. E. 156, 7 : 90 
 
 III. Pendency of Prior Action. 
 
 Waiver of Objection, see Appeal and Error, 
 
 672. 
 See also Election of Remedies, 47; Pleading, 
 
 560. 
 For Editorial Notes, see infra, V. 1. 
 
 29. The mere pendency of a suit against 
 the lessee of a wharf, for injuries caused by 
 its defective condition, will not abate a 
 subsequent suit against the owner of the 
 wharf. State use of Bashe v. Boyce, 72 Md. 
 140, 19 Atl. 366. 7; 272 
 
 30. Fla. act of June 9, 1891, chap. 4043, 
 which gives to the board of phosphate com- 
 missioners control of the phosphate inter- 
 ests of the state, and authorizes it to in- 
 stitute suits and legal proceedings in the 
 name of the state to protect such interests,
 
 ABATEMENT AND REVIVAL, IV., V. 
 
 does not abate an action previously institut- 
 ed by the attorney general in the name of 
 the state. State v. Black River Phosphate 
 Co. 32 Fia. 82, 13 So. 640, 21:189 
 
 31. The pendency of an action by one per- 
 son to enjoin the collection of a license tax 
 is not ground for the abatement of a similar 
 action by another person, although the lat- 
 ter contributed 'towards paying the expenses 
 of the suit by the former. Davis v. Petrino- 
 vich, 112 Ala. 654, 21 So. 344, 36: 615 
 Suit in other state. 
 
 32. The pendency of an action in another 
 state between the same parties and for the 
 same cause does not abate another suit. 
 Douglass v. Phenix Ins. Co. 138 N. Y. 209, 33 
 N. E. 938, 20: 118 
 
 33. The pendency of a former suit for the 
 same cause of action is not a ground for the 
 abatement of an action, unless the prior and 
 subsequent actions are both pending in the 
 same jurisdiction. O'Reilly v. New York & 
 N. E. R. Co. 16 R. I. 395, 19 Atl. 244, 6: 719 
 
 34. Garnishment proceedings pending in 
 another state are not ground for abatement 
 of an action for the garnisheed debt, if no 
 jurisdiction was acquired in the garnishment 
 proceedings. Douglass v. Phenix Ins. Co. 
 138 N. Y. 209, 33 N. E. 938, 20: 118 
 
 35. The pendency of a prior action by at- 
 tachment in another state, which binds the 
 debt, may be set up by way of defense to 
 a suit by the defendant in the attachment in 
 the state of Minnesota to recover the same 
 debt. Harvey v. Great Northern R. Co. 50 
 Minn. 405, 52 N. W. 905, 17: 84 
 
 36. An action upon notes on which, after 
 its commencement, a judgment is recovered 
 in another state, is barred thereby, and can- 
 not be continued on a supplemental com- 
 plaint stating the fact of such judgment. 
 Swedish American Nat. Bank v. Dickinson 
 Co. 6 N. D. 222, 69 N. W. 455, 49: 285 
 
 37. A pending action on a poMcy of life 
 insurance, brought in another state by a 
 duly appointed administrator of the insured, 
 who died there having the policy, which was 
 payable to his legal representatives, in his 
 possession, service of process being duly ob- 
 tained upon a designated agent of the com- 
 pany, will, on the principle of comity, de- 
 feat jurisdiction of an action brought on the 
 policy in the state where it was payable at 
 the home office of the insurer, and where the 
 insured resided when the policy was issued 
 and his widow still resides, even if she has 
 been duly appointed his administratrix in 
 that state. Sulz v. Mutual Reserve Fund 
 L. Asso. 145 N. Y. 563, 40 N. E. 242, 28: 379 
 Federal or state court. 
 
 For Editorial Note, see infra, V. 1. 
 
 38. The pendency in a state court of a 
 prior action between the same parties for 
 the same cause furnishes no ground for an 
 abatement or for a stay of proceedings in 
 a subsequent action brought by the same 
 plaintiff in a Federal court, where no con- 
 flict arises between the courts over the cus- 
 tody or dominion of specific property. Re 
 Barber Asphalt Pav. Co. 132 Fed. 945, 
 
 67: 761 
 
 39. The pendency of an action in a Federal 
 
 court after removal from a state court will 
 abate an action subsequently brought in the 
 state court. Willson v. Milliken, 103 Ky. 
 165, 44 S. W. 660, 42: 449 
 
 Effect of dismissal or discontinuance. 
 
 40. The objection of a former suit pend- 
 ing is removed by its dismissal or discontin- 
 uance, even after plea in abatement in a 
 second suit, unless this was brought for the 
 purpose of vexation. Id. 
 
 41. To prevent abatement of an action on 
 purchase-money notes, it may be shown that 
 a prior attachment and a bill in chancery 
 for the recovery of the debt had been re- 
 spectively discontinued and unproductive. 
 Grossman v. Universal Rubber Co. 127 N. 
 Y. 34, 27 N. E. 400, 13: 91 
 
 IV. Revival. 
 
 For Editorial Notes, see infra, V. 2. 
 
 42. While the right to revive an action in 
 a Federal court is made, by U. S. Rev. Stat. 
 955, to depend upon the survivability of 
 the cause of action, these courts are bound 
 by a local law, such as that of Tennessee, 
 which saves an action already commenced, 
 although the right of action would not have 
 survived except for the previous commence- 
 ment of l ,he suit. Warren v. Furstenheim, 
 35 Fed. 691, 1 : 40 
 
 43. An ejectment suit may be revived in 
 the name of the heirs on the death of the 
 plaintiff, although the provision in McClel. 
 (Fla.) Dig. p. 829, 74, is for revival in the 
 name of the "legal representative," since the 
 heir is the real representative of the ances- 
 tor, and by the supreme court rule 95 any 
 person in interest, other than the executor 
 and administrator, may be made a party by 
 direction of the court. Gould v. Carr, 33 
 Fla. 523, 16 So. 259, 24: 130 
 
 44. An administrator is properly substi- 
 tuted for his predecessor in a pending suit 
 of replevin. Cox v. Martin, 75 Miss. 229, 
 21 So. 611, 36: 800 
 
 45. After the death of an administrator 
 suing in his own name in a foreign state 
 upon a judgment obtained in the state of his 
 appointment, the suit may be revived in 
 the name of his administrator appointed un- 
 der the laws of the foreign state. Tittman 
 v. Thornton, 107 Mo. 500, 17 S. W. 979, 
 
 16: 410 
 
 46. An action for libel against a corpora- 
 tion, which abates by the expirntion of the 
 corporate charter, may be revived against 
 the trustees of the dissolved corporation in 
 office at the time of dissolution. Shayne v. 
 Evening Post Pub. Co. 168 N. Y. 70, 61 N. 
 E. 115, 55: 777 
 
 V. Editorial Notes, 
 
 i. Abatement; survival. 
 
 Pendency of actions in both state and Fed- 
 eral courts sitting in the 
 same state. 42: 449.
 
 ABBREVIATION ABSTRACTS. 
 
 Cases holding that the pendency of suit 
 
 is no defense. 42: 449. 
 Summary. 42: 449. 
 Where the parties are different. 
 
 42: 450. 
 Actions against one of several 
 
 obligors. 42: 450. 
 Actions to foreclose mortgages. 
 
 42: 451. 
 Actions by bondholders. 42: 
 
 452. 
 Miscellaneous actions. 42: 
 
 453. 
 Suits affected by garnishment. 
 
 42: 455. 
 
 Where the parties in one are parties 
 or privies to the other. 
 42: 455. 
 Where the pending suit has 
 
 been dismissed. 42: 459. 
 In matters of insolvency, adminis- 
 tration, and probate pro- 
 ceedings. 42: 460. 
 Admiralty cases. 42: 462. 
 Cases holding that the pendency of suit 
 
 is a defense. 42: 462. 
 Suits for divorce in different states. 59: 
 
 187. 
 
 Effect of death of party. 3: 212.* 
 Death of party to suit for libel or slander 
 
 by wife. 30: 529. 
 
 Suit for breach of promise. 3: 213.* 
 Action against physician or surgeon. 37: 
 
 838. 
 
 Action for fraudulently inducing void mar- 
 riage. 33:411. 
 
 Survivability as a test of assignability of 
 cause of action for per- 
 sonal tort. 14:514. 
 2. Revival. 
 
 On death of party. 1 : 40.* 
 On death of sole plaintiff. 1 : 572.* 
 
 ABBREVIATION. 
 
 Judicial Notice of, see Evidence, 133. 
 Editorial Notes. 
 
 Of person's name. 14: 694. 
 
 Of officer's name in acknowledgment. 14: 
 815. 
 
 Use of, in books of account, as affecting 
 their admissibility in evi- 
 dence. 52: 573. 
 
 ABDUCTION. 
 
 Habeas Corpus for Abducted Criminal, see 
 Habeas Corpus, 35. 
 
 Wrongful abduction of a criminal by state 
 officers from another state to which he has 
 fled docs not defeat the jurisdiction of the 
 courts to 'try him in the state where he 
 committed the crime. Kingen v. Kelley, 3 
 Wyo. 566, 28 Pac. 36, 15: 177 
 
 Editorial Notes. 
 
 Of criminal as defense to prosecution. 15: 
 177. 
 
 ABORTION. 
 
 Evidence of Statements of Female, see Evi- 
 dence, 1584. 
 
 Admissibility of Dying Declarations, see Ev- 
 idence, 1701, 1703, 1705. 
 
 Resulting in Death of Female, see Homicide, 
 9. 
 
 Indictment for Causing Death by, see In- 
 dictment, etc., 88. 
 
 Death of Insured While Submitting to, see 
 Insurance, 1077, 1078. 
 
 Question for Jury as to Necessity of, see 
 Trial, 158. 
 
 1. Conspiring to commit an abortion is 
 not a felony at common law. Scott v. El- 
 dridge, 154 Mass. 25, 27 N. E. 677, 12: 379 
 
 2. Voluntary submission to treatment for 
 the purpose of an abortion precludes any 
 right of action against other persons tor in- 
 ducing and aiding the attempt. Goldnamer 
 v. O'Brien, 98 Ky. 569, 33 S. W. 831, 36: 715 
 
 Editorial Notes. 
 
 Evidence of other crimes in prosecution for. 
 62: 229. 
 
 Homicide in commission of, or attempt to 
 commit. 63: 902. 
 
 Admissibility of dying declarations in 
 prosecution for homicide 
 by commission of, or at- 
 tempt to commit, abortion. 
 63: 916. 
 
 ABRIDGMENT. 
 
 Editorial Notes. 
 
 As infringement of common-law right in 
 intellectual productions. 
 51: 378. 
 
 ABSENCE. 
 
 Of Judge During Trial, see Appeal and Er- 
 ror, 1111, 1112. 
 
 ABSORBED. 
 
 Death of Insured from Thing Absorbed, see 
 Insurance, VI. b, 3, e. 
 
 ABSTRACTS. 
 
 On Appeal, see Appeal and Error, IV. m. 
 Levy on Books of, see Levy and Seizure, 20.
 
 ABUSE ACCEPTANCE. 
 
 Right to Examine Records for, see Records, 
 
 3-r.. 
 
 Tax on Hooks of. see Taxes, 128, 129. 
 Defect in Title Shown by, see Vendor and 
 
 Purchaser. 28-33. 
 
 1. A clerk is not liable for want of skill 
 or honest errors of judgment in making an 
 abstract of title and certifying to the result, 
 although he received 25 cents therefor, where 
 it is not his duty to make such search, but 
 he erroneously supposed that it was. and he 
 was neither a lawyer nor engaged in the 
 business of making such abstracts. Mallorv 
 v. Ferguson.. 50 Kan. 685, 32 Pac. 410, 22: 99 
 
 2. It is not part of the official duty of a 
 clerk of the district court of Kansas to 
 make and certify to searches of the records 
 in liis office for judgments, liens, or suits 
 pending affecting the title to real property. 
 
 Id. 
 
 .'!. It will not be presumed, in the absence 
 of evidence, that a clerk whose duty it was 
 not to make abstracts of title and who was 
 not a lawyer nor engaged in the business of 
 making abstracts, agreed to make a careful 
 search, and correctly certify as to the condi- 
 tion of the title, merely because he signed 
 a certificate to an abstract of the title and 
 received 25 cents therefor. Id. 
 
 Kditorial .Notes. 
 
 Right of abstractors to inspect records. 
 
 27: 82. 
 
 Of tiUe. liability of officer for defects in. 
 !I 
 
 ABUSE. 
 Of Passenger, see Carriers. II. a, 3, b. 
 
 ABUSE OF PROCESS. 
 
 By Attorneys, see Attorneys. 80. 
 Resulting in Death, see Death. 58. 
 Punitive Damages for. see Damages. 47-4!). 
 Measure of Damages for. see Damages. III. 
 
 g- . 
 
 Successive Garnishment of Wages as. see 
 Kxemptions. 4. 
 
 Liability for. see False Imprisonment; Ma- 
 licious Prosecution. 
 
 For Kditorial Note, -ee Writ and Process. 
 IV. j; 4. 
 
 l!Miioving a tenant from the leased prem- 
 ises in which he and his. family are living, 
 under a judgment of forcible entry and de- 
 tainer, on a cold day. at a time when his 
 child is visibly broken out with measles, 
 is an abu-e ' legal process which will render 
 the landlord liable for the injurious conse- 
 quences to t'he child, although he has pro- 
 cured a certificate from her physician to the 
 effect that removal will not injure her 
 health. I'.radshaw v. Frazier. 113 Iowa, 579. 
 85 X. YY. 752. 55: 258 
 
 ABUTTING OWNERS. 
 
 Rights of, in Alley, see Alleys, 3-6. 
 
 Injuries Resulting to, from Construction and 
 Operation of Canal, see Canals, 3, 6. 
 
 Punitive Damages for Cutting Trees on Side- 
 walk, see Damages, 58. 
 
 Measure of Damages to. in Condemnation 
 Proceedings, see Damages, III. 1, 4. 
 
 Right to Maintain Ejectment for Wrongful 
 Use of Highway, see Ejectmenh, 19-22. 
 
 What Constitutes a Taking of Property of, 
 see Eminent Domain, III. b. 2. 
 
 Right to Compensation for Property Taken, 
 see Eminent Domain, 271-274/327-338. 
 
 Additional Servitude as against, see Emi- 
 nent Domain, IV. b, V. 19. 
 
 Rights in, and Title to, Highways, see High- 
 ways, II., VII. 4. 
 
 Rights of, as against Railroad in Street, see 
 Highways, 142-147. 
 
 Right of, as to Trees and Materials in 
 Streets, see Highways, II. e. 
 
 Compelling Cleaning of Sidewalks by, see 
 Highways, 195, 196. 
 
 Criminal Liability for Failure to Build and 
 Maintain Sidewalk, see Highways. 208. 
 
 Right to Change Street Grade as against, see 
 Highways. 200-202. 
 
 Injury to, by Improving or Repairing High- 
 ways, see Highways, III. 
 
 Liability of, for Injury by Defect in Street 
 or Sidewalk, see Highways, IV. d, 3. 
 
 Right to have Highway Kept Open, see 
 Highways, V. a, 2. 
 
 Certiorari as Remedy where Highway is Dis- 
 continued, see Certiorari. 13, 19. 
 
 Right to Injunction, see Injunction, I. 1. 
 
 Running of Limitations against, see Limita- 
 tion of Actions, 142-145. 
 
 Municipal Liability for Injury to, see Mu- 
 nicipal Corporations, 453. 
 
 Interference with Rights of, by Discontinu- 
 ing Park, see Parks and Squares, 8, 9. 
 
 Duty and Liability as to Local Improv- 
 ments Generally, see Public Improve- 
 ments. 
 
 Liability of Railroad to. on Abolition of 
 Grade Crossing, see Railroads, 68. 
 
 Contest by, against Laying of 'Street Car 
 Tracks, see Street Railways, 12. 
 
 Consent of, to Operation of Street Railway, 
 see Street Railways, 27-30. 
 
 See also Adjoining Owner. 
 
 ACADEMY. 
 
 Diversion of Charitable Gift for, see Chari- 
 ties. 125. 
 
 Sale of. by County, see Counties, 80. 
 
 I'se of School Funds for, see Schools, 4. 
 
 Exemption of, from Taxation, see Taxes, 
 2!)4, 304. 
 
 ACCEPTANCE. 
 
 Of Service on Appeal, see Appeal and Er- 
 ror. 136.
 
 ACCESS ACCIDENT INSURANCE. 
 
 Of Assignment for Creditors. Necessity of, 
 see Assignments for Creditors, 56. 
 
 Of Negotiable Paper, see Bills and Notes, 
 II., VII. 12. 
 
 Of Offer, see Contracts, I. d, 4. 
 
 Of Performance of Contract, see Contracts, 
 IV. c, 3. 
 
 Of Dedication, see Dedication, II. 
 
 Of Deed, see Deeds, 21, 29. 
 
 Of Deed Poll, see Deeds, 34, 76. 
 
 Of Guaranty, see Guaranty, 8-13. 
 
 Of Highways, see Highways, 11-14. 
 
 Of Insurance Risk, see Insurance, 210-215. 
 
 Of Insurance Policy, see Insurance, 216- 
 230. 
 
 Of Provision in Benefit Certificate, Law 
 Governing, see Conflict of Laws, 67. 
 
 Of Surrender of Lease, see Landlord and 
 Tenant, 62-67, 88-92. 
 
 By Purchaser, see Sale, I. d, IV. 4. 
 
 By Public, see Towns, 14. 
 
 Of Legacy, see Executors and Administra- 
 tors, 173; Wills, III. i. 
 
 ACCESS. 
 Riparian Eight of, see Waters, 190-192. 
 
 ACCESSION AND CONFUSION. 
 
 Title to Crops by, see Crops, 3. 
 Compensation for Driving Logs Mixed with 
 One's Own. see Logs and Logging, 2-4. 
 
 A tenant does not lose his property in 
 manure by intermixing it wifrh manure of 
 the same quality and value belonging to the 
 landlord, without the latter's consent. 
 Pickering v. Moore, 67 N. H. 533, 32 Atl. 
 328, 31 : 698 
 
 Editorial Notes. 
 
 Title by accession to crops, fruit, and tim- 
 ber wrongfully severed. 
 32: 422. 
 
 General doctrine. 32: 422. 
 
 When severed under bona fide belief of 
 title. 32: 423. 
 
 When severed and converted with 
 wrongful intent. 32: 424. 
 
 Distinguishable though changed or 
 mixed. 32: 429. 
 
 When article changed by process. 32: 
 430. 
 
 Position of purchaser. 32: 432. 
 
 When title in or derived from the states 
 or the United States. 32: 
 433. 
 Of logs in jam. 3: 408.* 
 
 ACCESSORY. 
 
 Indictment against, see Indictment, etc., 
 20, 92. 
 
 Instructions as to, see Trial, 854. 
 See also Criminal Law I. e, VI. 6. 
 
 ACCIDENT. 
 
 Meaning of, in Bill of Lading, see Contracts, 
 327. 
 
 Judicial Notice of, see Evidence, 103, 104. 
 
 Presumption of Negligence from, see Evi- 
 dence, II. 'h. 
 
 To Insured, Presumption as to, see Evi- 
 dence, 431^440. 
 
 Evidence of Declarations as to, see Evi- 
 dence, 1609-1616. 
 
 Evidence of Precautions after, see Evidence, 
 1919-1929. 
 
 Evidence of Other Accidents, see Evidence, 
 1964-1974. , 
 
 Evidence as to, Generally, see Evidence, 
 1561-1569. 
 
 Injuries from Accidental Explosions, see 
 Explosions and Explosives, II. 
 
 As Cause of Death or Injury of Insured, 
 see Insurance, VI. b, 3. 
 
 Proximate Cause of, see Proximate Cause. 
 
 To Person on Railroad Track or at Cross- 
 ing, see Railroads, II. d, and e. 
 
 See also Act of God. 
 
 1. The meaning of the word "accident" 
 includes the result of human fault held to 
 be actionable negligence, and as ordinarily 
 used is not synonomous with "mere acci- 
 dent," or "purely accidental," or any simi- 
 lar term. Ullman v. Chicago & N/W. R. 
 Co. 112 Wis. 150, 88 N. W. 41, 5G: 246 
 
 2. Loss occasioned by accident and un- 
 controllable events does not, under La. Rev. 
 Civ. Code, art. 2754, render a person liable 
 if he is without fault. New Orleans & N. 
 E. R. Co. v. McEwen & M. 49 La. Ann. 
 1184, 22 So. 675, 38: 134 
 
 Editorial Notes. 
 
 What is. 9: 685.* 
 
 Inevitable; what is; as defense to carrier, 
 
 11: 615.* See also Act of 
 
 God. 
 Liability of carrier for injuries arising from 
 
 inevitable. 2: 252.* 
 As ground of injunction against judgment. 
 
 30: 794. 
 Equitable relief against forfeiture of estate 
 
 due to accident. 69: 849. 
 
 ACCIDENT INSURANCE. 
 
 Notice of Injury or Death, see Insurance, 
 
 892-894, 897, 898, 900-906. 
 Cause of Injury or Death of Insured, see 
 
 Insurance, VI. b, 3. 
 Extent of Recovery, see Insurance, VI. c. 2. 
 Limitation of Time to Sue, see Insurance, 
 
 1311, 1314. 
 Insurance against Liability for Accident to 
 
 Employee, see Insurance, 1343-1354. 
 Purchase of Policy by City for Fireman as 
 
 Defense to Action for his Death, see 
 
 Municipal Corporations, 461.
 
 ACCOMMODATION NOTES ACCORD AND SATISFACTION. 
 
 ACCOMMODATION NOTES. 
 
 Note for Bank's Accommodation, see Banks, 
 295-297. 
 
 Rights on Generally, see Bills and Notes, 
 33, 98, 120, 130, 139, 190, 191, 200-203, 
 217, 250, 266, 267, VII. 11; Uhecks, 25. 
 
 What Constitutes Payment of, see Bonds, 
 36. 
 
 Oral Agreement as to, see Contracts, 141. 
 
 Of Corporation, aee Corporations, 135, 302. 
 
 Federal Jurisdiction of Action on, see Courts, 
 345a. 
 
 Parol Evidence as to, see Evidence, 1156, 
 1158. 
 
 Accommodation Indorsement by Married 
 Woman, see Husband and Wife, 32. 
 
 Accommodation Indorsement by Insane Per- 
 son, see Incompetent Persons, 12. 
 
 Partner's Power to Make, see Partnership, 
 29. 
 
 ACCOMPLICE. 
 
 Liability of, see Criminal Law, I. e, f. 
 
 Admissibility of Instructions to, see Evi- 
 dence, 1026. 
 
 Proof of Acts or Declarations of, see Evi- 
 dence, X. g. 
 
 As Witness, see Witnesses, 17-20. 
 
 Cross-Examination of, see Witnesses, 107. 
 
 Corroboration of, see Witnesses, 194, 198, 
 2372-2376. 
 
 Editorial Notes. 
 
 Spectators at prize fight as. 15: 516. 
 Basing an indictment unon testimony of ac- 
 complices. 28: 319. 
 
 ACCORD AND SATISFACTION. 
 
 As to Compromise and Settlement, see Com- 
 promise and Settlement. 
 
 1. An accord and satisfaction is the ad- 
 justment of a disagreement as to what is 
 due from one party to another, and the 
 payment of the amount so agreed upon. 
 Harrison v. Henderson, 67 Kan. 194, 72 Pac. 
 875, 62: 760 
 
 2. The technical distinction between a sat- 
 isfaction before or after breach of a contract 
 is disregarded in the state of New York; 
 and a new agreement by parol, followed by 
 actual performance of the substituted agree- 
 ment, whether made and executed before or 
 after breach, is a good accord and satisfac- 
 tion of the covenant. McCreery v. Day, 119 
 N. Y. 1, 23 N. E. 198, 6: 503 
 
 3. A new agreement, although without 
 performance, if based on a good considera- 
 tion, will be a satisfaction of the old 6ne 
 if accepted as such. Id. 
 
 4. An agreement to deliver a new machine 
 and take back one in controversy is not, 
 before it is executed, a bar to the further 
 prosecution of a pending action to recover 
 
 the latter. A. D. Puffer & Sons Mfg. Co. v. 
 Lucas, 112 N. C. 377, 17 S. E..174, 19: 682 
 
 5. An acceptance of benefits from a relief 
 fund to which a railroad company has large- 
 ly contributed, by an employee who knows 
 that this, under his contract, will have the 
 effect to release the railroad company from 
 liability for the injuries he has received, 
 constitutes an accord and satisfaction. Eck- 
 man v. Chicago, B. & Q. R. Co. 169 111. 312, 
 48 N. E. 496, 38: 750 
 By part payment generally. 
 
 Gift of Balance, see Gift, 2. 
 See also infra, Editorial Notes. 
 
 6. The payment of less than is due will 
 discharge the debt when an agreement to 
 that effect is fully executed, and the dis- 
 charge is evidenced by a written receipt for 
 the lesser sum in full satisfaction of the 
 greater one. Dreyfus v. Roberts, 75 Ark. 
 354, 87 S. W. 641, 69: 823 
 
 7. The mere payment by a debtor of an 
 amount denominated "a balance" upon an 
 account rendered, and its retention by the 
 creditor, do not constitute an accord and 
 satisfaction. Harrison v. Henderson, 67 
 Kan. 194, 72 Pac. 875. 62: 760 
 
 8. To constitute a payment by a debtor of 
 an 'amount denominated "a balance," upon 
 an account rendered, an accord and satisfac- 
 tion, it must have been offered as full sat- 
 isfaction of a claim, and accompanied by 
 such declarations or under such circum- 
 stances as would amount to a condition 
 that, if accepted by the creditor, it would 
 be in full satisfaction of the debt. Id. 
 
 9. A receipt in full given without protest 
 on payment of the undisputed part of a 
 claim after refusal to pay another part 
 which is disputed, when the money is appar- 
 ently accepted in full satisfaction, consti- 
 tutes an accord and satisfaction. Tanner 
 v. Merrill, 108 Mich. 58, 65 N. W. 664, 
 
 31: 171 
 
 10. The acceptance from a debtor of a 
 sum of money less than is actually due, on 
 a distinct agreement that it shall extinguish 
 the whole debt, may operate as a discharge, 
 although it is not paid at any different time 
 or place than that agreed upon originally. 
 Clayton v. Clark, 74 Miss. 499, 22 So. 189, 
 
 37:771 
 
 11. Promissory notes for one half of a 
 debt secured by chattel mortgages on prop- 
 erty of the debtor, accepted in full satisfac- 
 tion and discharge of the indebtedness, con- 
 stitute a good accord and satisfaction. Jaf- 
 fray v. Davis, 124 N. Y. 164, 26 N. E. 351. 
 
 11: 710 
 
 ^ 12. The insolvency of the debtor is s"uffi- 
 cient to create an exception to the rule that 
 acceptance of part of an amount due cannot 
 affect the satisfaction of the whole debt. 
 Engbretson v. Seiberling, 122 Iowa, 522, 98 
 N. W. 319, 64: 75 
 
 Part payment by third person. 
 See also infra, Editorial Notes. 
 
 13. Payment of part of a judgment by a 
 third person for the benefit of the debtor is 
 a sufficient consideration for a release of the 
 entire judgment. Marshall v. Bullard, 114 
 Iowa, 462, 87 N. W. 427, 54: 862
 
 ACCOUNT BOOKS; ACCOUNTING. 
 
 Accord with third person. 
 
 14. An accord between the plaintiff and a 
 third person as to the subject-matter of the 
 suit, and a satisfaction moving from such 
 third person to the plaintiff, who accepts 
 and retains it, are available in bar of the 
 action, if the defendant has either author- 
 ized or ratified the settlement. Jackson v. 
 Pennsylvania R. Co. (N. J. Err. & App.) 66 
 N. J. L. 319, 49 Atl. 730, 55: 87 
 Retaining check stating that it is in full 
 
 payment. . 
 
 15. Retaining the proceeds of a check for 
 less than the amount claimed on an unli- 
 quidated bill for physician's services consti- 
 tutes an accord and satisfaction, where the 
 check was sent with the express statement 
 that it was in full satisfaction. Fuller v. 
 Kemp, 138 N. Y. 231, 33 N. E. 1034, 20:785 
 Agreement to accept less than full amount. 
 
 16. A mere agreement without consider- 
 ation, to accept a less sum than the debtor 
 owes, in full satisfaction of the debt, is a 
 nudum pactum, and cannot be enforced. 
 Chicora Fertilizer Co. v. Dunan, 91 Md. 144, 
 46 Atl. 347, 50:401 
 
 17. A creditor cannot bind himself by a 
 simple agreement to accept a smaller sum in 
 lieu of an ascertained debt of larger amount, 
 such an agreement being nudum pactum; 
 but if there be any benefit, or even any leg- 
 al possibility of benefit, to the creditor, 
 thrown in, that additional weight will turn 
 the scale and render the consideration suffi- 
 cient to support the agreement. Jaffray v. 
 Davis, 124 N. Y. 164, 26 N. E. 351, 11:710 
 
 18. An agreement by a creditor to abate 
 a portion of his debt, payable in instalments 
 and secured by collateral which is not to be 
 sold until after the maturity of the last in- 
 stalment, in consideration of its immediate 
 payment, is valid, and may be specifically 
 enforced by a court of equity. Chicora Fer- 
 tilizer Co.V. Dunan, 91 Md. 144, 46 Atl. 347, 
 
 50:401 
 Release of contract of satisfaction. 
 
 19. The mutual return of a note and ac- 
 counts given in satisfaction of it is a re- 
 lease of the contract of satisfaction, and re- 
 stores the note to its status as a valid claim 
 against the maker. Feder v. Ervin (Tenn. 
 Ch. App.) 38 S. W. 446, 36:335 
 
 Editorial Notes. 
 
 Defined; what constitutes. 11: 712.* 
 Necessity of new consideration. 11: 711.* 
 By part payment. 20: 785. 
 
 General principles. 20: 785. 
 
 Receipts. 20: 787. 
 
 Consideration. 20: 788. 
 
 Liquidated demands. 20: 789. 
 
 Payment less interest. 20: 789. 
 
 Payment before the debt is due, etc. 
 20: 790. 
 
 Payment of costs and expenses. 20: 
 790. 
 
 Debtor's note or check. 20: 791. 
 
 Further security. 20: 792. 
 
 The surrender and cancelation of note. 
 20: 792. 
 
 Other than money. 20: 792. 
 
 Payment by third party. 20: 794. 
 
 Disputed claim. 20: 795. 
 Composition arrangements. 20: 802. 
 Unliquidated demands. 20: 805. 
 Effect of insolvency of debtor. 20: 808. 
 No consideration. 20: 808. 
 Statutory provisions. 20: 811. 
 Effect of payment of debt by a volunteer 
 or stranger to the original 
 undertaking. 23: 120. 
 Of partly performed contract for services. 
 
 24: 233. 
 
 With one joint tort feasor, effect on liabil- 
 ity of other. 58: 300. 
 
 ACCOUNT BOOKS. 
 
 As Evidence, see Evidence, IV. j, XIII. 
 
 42-45. 
 Condition in Insurance Policy as to Place of 
 
 Keeping, see Insurance, III. e, 1, d. 
 Levy on, see Levy and Seizure, 19. 
 
 ACCOUNTING. 
 
 By Assignee for Creditors, see Assignments 
 for Creditors, 89-92. 
 
 By Insolvent Loan Association, see Build- 
 ing and Loan Associations, 70-77. 
 
 Under Illegal Contract, see Contracts, 429, 
 605, 615, 627. 
 
 By Corporate Officers for Amounts With- 
 drawn for Salaries, see Corporations, 
 262. 
 
 By Promoter of Corporations, see Corpora- 
 tions, 339-341, 344-346. 
 
 In Suit by Stockholders, see Corporations, 
 484. 
 
 Between Foreign Insurance Company and 
 One of Its Members, see Courts, 82. 
 
 Between Cotenants, see Cotenancy, 24-26. 
 
 By Personal Representative, see Executors 
 and Administrators, IV. c. 
 
 By Infant for Use of Bicycle on Rescission 
 of Purchase, see Infants, 85. 
 
 On Resale of Mortgaged Property, see Mort- 
 gage, 55. 
 
 Between Partners, see Partnership, 102-115, 
 132-135. 
 
 Between Sureties, see Principal and Surety, 
 59. 
 
 In Receivership, see Receivers, 74. 
 
 By Trustee, see Trusts, 170, 171. 
 
 Retention of Cause for Purpose of, see Eq- 
 uity, 73, 74. 
 
 Effect of Judgment in Suit for, see Judg- 
 ment, 219. 
 
 Jury Trial in Case of, see Jury, 21, 22. 
 
 See also Accounts. 
 
 1. Equity has no jurisdiction on the ground 
 of an accounting, -of a suit to enforce a con- 
 tract to make up the deficiency in the 
 amount of the net earnings of a railroad 
 company to pay interest on bonded indebted- 
 ness, where plaintiff alleges that there have 
 been no net earnings, and asks for the full 
 amount of the interest. Bradford, E. & C. 
 R. Co. v. New York, L. E. & W. R. Co. 123 
 N. Y. 316, 25 N. E. 499, 11: 116
 
 10 
 
 ACCOUNTS. 
 
 2. A sheriff cannot maintain a bill in eq 
 uity for an account against his deputy with 
 out showing, by sufficient allegations, spe 
 cial circumstances entitling him to discovery 
 as necessary to complete and adequate re 
 lief, or that the accounts are complicate* 
 and intricate. White v. Cook, 51 W. Va 
 201, 41 S. E. 410. 57: 417 
 Between life tenants. 
 
 3. All costs of production, including cost 
 of boring productive wells, may be allowec 
 as a set-off against rents and profits foi 
 which a life tenant, who is also a tenant in 
 common of the land, may be compelled to 
 account when he has taken petroleum fron: 
 the land. Williamson v. Jones, 43 W. Va 
 562 ; 27 S. E. 411, 38: 694 
 
 4. An accounting on the basis of rents anc 
 profits, and not for annual rental, must be 
 made oy a tenant for life, or a tenant in 
 common who is in sole possession, claiming 
 exclusive ownership, if he takes petroleum 
 oil and converts it to his exclusive use. Id 
 
 Editorial Notes. 
 
 Admiralty jurisdiction of. 66: 235. 
 
 By mortgagee. 9: 678.* 
 
 Liability of cotenants to account for use 
 and occupation and rents 
 and profits. 28: 849. 
 
 Jurisdiction of equity over suits for ac- 
 counting with respect to 
 real property in another 
 state or country. 69: 691. 
 
 ACCOUNTS. 
 
 Priority between Assignees of, see Assign- 
 ment, 44. 
 
 Mortgage of, see Chattel Mortgage, 21. 
 
 Best and Secondary Evidence of, see Evi- 
 dence, 800-802." 
 
 As Evidence, see Evidence, IV. j. 
 
 Settlement of, in Probate Court, see Exec- 
 utors and Administrators, 136. 
 
 Interest on. see Interest, 23, 24. 
 
 Conclusiveness of Verified Account, see 
 Pleading, 18. 
 
 Compulsory Reference of Long Accounts, see 
 Reference, 4, 5. 
 
 T-equest of, see Wills, 224. 
 
 See also Account Books; Accounting. 
 
 1. Where the subject-matter of a contract 
 is the ascertainment (jf the net profits of a 
 firm for the purpose of paying in cash the 
 value of a one-third share, the term "out- 
 standing accounts," unless it otherwise ap- 
 pear, has a particular meaning different 
 from the ordinary or common meaning. 
 MacCulskv v. Klostennan, 20 Or. 108, 25 
 Pac. 360.' 10: 785 
 
 2. An attorn- may properly include in 
 one item of his account sued on his compensa- 
 tion for writing two letters to different per- 
 sons upon the same subject-matter. Powers 
 v. Manning, 154 Mass. 370, 28 N. E. 290, 
 
 13: 258 
 What are. 
 See also infra. Editorial Notes, 2. 
 
 3. The doctrine of an account stated does 
 
 not apply to a single item, not of a debt due 
 and owing, but of an unliquidated claim of 
 damages for the breach of a parol or simple 
 contract. Vanbebber v. Plunkett, 26 Or. 
 562, 38 Pac. 707, 27: 811 
 
 Opening; correcting; review of. 
 See also infra, Editorial Notes, 2. 
 
 4. The delay must be clearly and satis- 
 factorily accounted for, and absence of 
 laches shown, to induce a court to grant a 
 review of a trustee's account and open it 
 up to fuiiher litigation four years after 
 the death of the trustee, and more than 
 four years after the confirmation of his ac- 
 count. Priestley's Appeal, 127 Pa. 420, 17 
 Atl. 1084, 4: 503 
 
 5. A stated account is open to rectifica- 
 tion upon proof at any time before the limi- 
 tation period has run from the time of its 
 rendition. First Nat. Bank v. Allen, 100 
 Ala. 476, 14 So. 335, 27:426 
 
 6. A bill to review an account settled and 
 confirmed can only be maintained, as a mat- 
 ter of right, for error of law apparent on 
 the face of the record; and as a matter of 
 grace it' can only be had upon allegation of 
 newly discovered testimony. Priestley's 
 Appeal, 127 Pa. 420," 17 Atl. 1084, 4: 503 
 
 7. An allegation in a petition for a re- 
 view of a trustee's account, that the ac- 
 countant had claimed commissions on monev 
 which had not passed through his hands, 
 raises an objection to a question of fact, and 
 not of law, and will not justify the granting 
 of a bill of review. id. 
 
 Editorial .Notes. 
 
 i. Generally. 
 
 Future; mortgage or assignment of. 14: 
 
 126. 
 
 2. Account stated. 
 What constitutes an account stated. 27: 
 
 811. 
 
 General definitions. 27: 811. 
 Illustrations of what have been held to 
 be accounts stated. 27: 
 813. 
 The balance must be definitelv fixed. 
 
 27: 814. 
 
 The creditor must be definite. 27: 814. 
 Must be of a subsisting debt. 27: 81*. 
 Need not be signed. 27 : 815. 
 May be oral. 27: 815. 
 Vouchers need not be surrendered. 27: 
 
 815. 
 
 With third person. 27: 815. 
 Agreement must be reached. 27: 816. 
 Character of account necessary. 27: 
 
 818. 
 
 Who may state accounts. 27:819. 
 Effect to change contract or create debt. 
 
 27: 821. 
 
 Subsequent events. 27: 821. 
 Retention of rendered account. 27: 
 
 821. 
 
 Time necessary. 27:823. 
 Mi-re delivery not sufficient. 27: 824. 
 Effect of objection. 27: 824. 
 To whom applicable. 27: 824. 
 Death or cessation of dealing. 27: 825. 
 Balance brought forward. 27:825. 
 The claim must be clear. 27: 825.
 
 ACCRETIONS ACKNOWLEDGMENT, II. 
 
 11 
 
 Admission of debt. 27: 825. 
 Question for court or jury. 27: 825. 
 Effect of, 4: 503.* 
 Effect of acquiescence in. 4: 505.* 
 Opening up settled account. 4: 505.* 
 Correction of mistake and readjustment. 
 
 4: 504.* 
 
 Equitable jurisdiction over stated accounts. 
 . 4: 504.* 
 
 ACCRETIONS. *, 
 
 See Waters, 135, 104-160. 172. 173, 210-215, 
 217, IV. 27. 28; Wharves. 10. 
 
 ACCUMULATION. 
 
 "Validity of Devise to Trustees for, see Per- 
 petuities. 29, io. 
 
 ACCUSED. 
 
 Necessity of Presence of, see Criminal Law, 
 
 93-95. 
 Cross-Examination of. see Witnesses, 108- 
 
 115. 
 
 ACETYLENE GAS. 
 
 Allegation as to Falsity of Warranty on 
 Sale of Machine for, see Pleading, 278. 
 
 Damages for Injury by Explosion of Ma- 
 chine, see Damages, 150. 
 
 ACKNOWLEDGMENT. 
 
 I. Who may Make or Take. 
 II. Nature of Act of Taking. 
 
 III. Sufficiency; Necessity; Effect. 
 
 a. In General. 
 
 b. By Married Woiwan. 
 
 IV. Correcting or Curing Defects. 
 V. Editorial Notes. 
 
 To Prove Execution, see Evidence, 821, 823. 
 To Interrupt Statute of Limitations, see 
 
 Limitation of Actions. 266-276. 
 Of Woman as One's Wife, see Marriage, 26. 
 Of Illegitimate Child, see Parent and Child, 
 
 19, 24. 
 Forgery of, see Real Property, 73. 
 
 I. Who may Make or Take. 
 
 For Editorial Notes, see infra, V. 
 
 1. The acknowledgment of a deed of a 
 corporation aggregate may be made by a 
 
 authority to execute the deed, in the absence 
 
 of any statute particularly relating to the 
 
 acknowledgment or proof of such deeds. 
 
 Hopper v. Love joy (N. J. Err. & App.) 47 
 
 N. J. Eq. 573, 21 Atl. 298, 12: 588 
 
 Who may take. 
 
 Notary of Other State, see Evidence, 918. 
 
 Mortgagor, see Real Property, 56. 
 
 See also Mortgage, 24. 
 
 For Editorial Notes, see infra. V. 
 
 2. A deputy may take an acknowledgment 
 of a deed in his own name. Summer v. Mit- 
 chell, 29 Fla. 179, 10 So. 562, " 14: 815 
 
 3. A notary who is the trustee in a deed 
 of trust cannot take an acknowledgment 
 thereto. Rothschild v. Dougher, 85 Tex. 
 332, 20 S. W. 142, 16: 719 
 
 4. An attorney who is a notary public is 
 not disqualified from taking an acknowledg- 
 ment of a mortgage made to his client, mere- 
 ly because he holds for collection a claim se- 
 cured by the mortgage, if it does not appear 
 that he had any beneficial interest in having 
 the mortgage made, or that his compensa- 
 tion in any manner depended upon the mak- 
 ing of the mortgage. Havemeyer v. Dahn, 
 48 Neb. 530, 67 N. W. 489, 33: 332 
 
 5. The fact that an acknowledgment of a 
 deed of trust to a corporation was taken by 
 a stockholder and director who was a notary 
 public does not make the instrument in- 
 valid, in the absence of any improper con- 
 duct, bad faith, or undue advantage arising 
 out of his relation to the corporation. 
 Cooper v. Hamilton Perpetual Bldg. & L. 
 Asso. 97 Tenn. 285, 37 S. W. 12, 33: 338 
 
 6. A notary public is not disqualified from 
 taking an acknowledgment of a mortgage 
 made to a corporation, merely because he 
 is the secretary and treasurer of the mort- 
 gagee, where it does not appear that he was 
 a stockholder or otherwise beneficially inter- 
 ested in having the mortgage made. Hor- 
 bach v. Tyrrell, 48 Neb. 514, 67 N. W. 485, 
 
 37: 434 
 
 7. An acknowledgment of an instrument 
 adopting a child, which is required to be 
 made like that of a deed of real estate, may 
 be taken by a deputy clerk, under Iowa 
 Code, 277, which gives him authority to 
 take acknowledgment "of instruments in 
 writing," although 1955, providing for the 
 acknowledgment of conveyances of real es- 
 tate before "some judge or clerk." does not 
 specifically mention deputies, as this section 
 is to be construed with 277. Hilpipre v. 
 Claude, 109 Iowa, 159, 80 N. W. 332, 46: 171 
 
 8. An acknowledgment by a married wom- 
 an before a notary in Kentucky, of a con- 
 veyance of her separate estate in Tennessee, 
 is 'ineffectual, under Tenn. act 1869-70, 2 
 (Mill. & V. Code, 3347), which requires a 
 privy examination before a chancellor or cir- 
 cuit judge of the county court. Robinson r. 
 Queen, 87 Tenn. 445, 11 S. W. 38, 3: 214 
 
 II. Nature of Act of Taking. 
 9. The act of an officer in taking an ac- 
 
 representative of the corporation who has knowledgment of the grantor to a convey-
 
 12 
 
 ACKNOWLEDGMENT, III. a. IV. 
 
 ance of real estate is a ministerial one. 
 Horbach v. Tyrrell, 48 Neb. 514, 67 N. W. 
 485, 37: 434 
 
 10. In taking and certifying an acknowl- 
 edgment of a mortgage as provided in Ohio 
 Rev. Stat. 1892, 4106, the act of the no- 
 tary public or other officer taking and certi- 
 fying the same is a ministerial, and not a 
 judicial, act. Read v. Toledo Loan Co. 68 
 Ohio St. 280, 67 N. E. 729, 62: 790 
 
 HI. Sufficiency; Necessity; Effect. 
 a. In General. 
 
 Necessity of Acknowledging Assignment for 
 Creditors, see Assignments for Credit- 
 ors, 53. 
 
 Presumption as to Validity, see Evidence, 
 618. 
 
 For Editorial Notes, see infra, V. 
 
 11. A blank in place of the name of the 
 grantor in a certificate of acknowledgment, 
 
 stating that personally came before the 
 
 notary, and was personally known to be the 
 identical person whose name was affixed to 
 the instrument, is not a fatal defect. Mil- 
 ner v. Nelson, 86 Iowa, 452, 53 N. W. 405, 
 
 19: 279 
 
 12. It is the established policy of the law 
 to uphold certificates of acknowledgment of 
 deeds, and, wherever substance is found, ob- 
 vious clerical errors and all technical omis- 
 sions will be disregarded. Summer v. Mit- 
 chell, 29 Fla. 179, 10 So. 562, 14: 815 
 
 13. The acknowledgment of a deed for 
 record in Florida, taken out of the state and 
 according to the laws of the state where it 
 is taken, is valid under Fla. act February 
 24, 1873, at least if the execution of the 
 deed complies with the laws of both states. 
 
 Id. 
 
 14. The omission, from a certificate of ac- 
 knowledgment of a tax deed of the words 
 "in and for said county," following the name 
 and title of the justice of the peace who took 
 the acknowledgment, will not render the 
 deed invalid, where the caption or venue 
 gives the name of the state and of the coun- 
 ty. Douglass v. Bishop, 45 Kan. 200, 25 Pac. 
 828, 10: 857 
 
 15- The instrument acknowledged may be 
 resorted to for support to the acknowledg- 
 ment. Summer v. Mitchell, 29 Fla. 179, 10 
 So. 562, 14:815 
 
 16. The grantee of the heirs of one who 
 has made an unacknowledged deed is not a 
 "purchaser," within 1 N. Y. Rev. Stat. 738, 
 137, declaring that an unacknowledged and 
 unattested deed "shall not take effect as 
 against a purchaser or encumbrancer until 
 so acknowledged." Strough v. Wilder, 119 
 N. Y. 530, 23 N. E. 1057, 7: 555 
 Showing character of officer taking. 
 
 For Editorial Notes, see infra, V. 
 
 17. Initials may be sufficient to show the 
 character of the officer by whom the ac- 
 knowledgment of a deed is taken. Summer 
 v. Mitchell, 20 Fla. 179, 10 So. 562, 14: 815 
 
 18. Where the title of an officer taking an 
 
 acknowledgment of a deed is written out in 
 full, in the body of the certificate, its omis- 
 sion from the signature is immaterial, and 
 affixing it to the signature is itself suffi- 
 cient. Initials may, however, be used, and 
 are sufficient to designate such title. Id. 
 
 19. A certificate of acknowledgment 
 signed by a person as "deputy clerk S. & J. 
 C." was held sufficient to show his official 
 character, where the same name was signed 
 as a witness, followed by "J. P.," and the 
 statutes of the state permit acknowledg- 
 ment before a clerk of the superior court 
 or a justice of the peace. Id. 
 
 20. Where the title of an officer stated in 
 the body of a certificate of acknowledgment 
 is of one whom the law did not authorize to 
 take the acknowledgment, and the suffix to 
 the signature, read in connection with the 
 deed, if not alone, indicates an officer having 
 such authority, the suffix will control. Id. 
 
 21. The omission of the words "notary 
 public," in the signature to a certificate of 
 acknowledgment by a notary, the body of 
 which shows that he was acting officially as 
 a notary public, does not make the certifi- 
 cate invalid. Lake Erie & W. R. Co. v. 
 Whitham, 155 111. 514, 40 N. E. 1014, 
 
 28: 612 
 b. By Married Woman. 
 
 Conflict of Laws as to Privy Examination, 
 
 see Conflict of Laws, 108. 
 See also supra, 8; infra, 25, 27; Husband and 
 
 Wife, 136-139. 
 For Editorial Notes, see infra, V. 
 
 22. A conveyance of a homestead is abso- 
 lutely void under Neb. Comp. Stat. 1895, 
 chap. 36, 4, unless it is acknowledged by 
 both husband and wife. Horbach v. Tyr- 
 rell, 48 Neb. 514, 67 N. W. 485, 37: 434 
 
 23. A mistake in taking the privy exam- 
 ination of a woman to a deed before her 
 husband has acknowledged the execution of 
 it, contrary to the provisions of the statute, 
 which deprives it of the privilege of regis- 
 tration, may, as between the parties, b"' 
 cured by a subsequent statute, so as to per- 
 fect the title in the grantee. Barrett v. 
 Barrett, 120 N. C. 127, 26 S. E. 691, 36: 226 
 
 24. A wife who fails to acknowledge a 
 conveyance of the homestead as required by 
 Ala. Code, 2508, at the time of its execu- 
 tion or subsequently, during the life of her 
 husband, cannot do so efficiently as against 
 the heirs, after the husband's death. Rich- 
 ardson v. Woodstock Iron Co. 90 Ala. 266, 
 8 So. 1, 9: 348 
 
 IV. Correcting or Curing Defects. 
 
 Ratification of Defective Acknowledgment, 
 see Husband annd Wife, 139. 
 
 Statute Curing Defects, see Constitutional 
 Law, 128, 1137, 1191. 
 
 See also supra. 23. 
 
 For Editorial Notes, see infra, V. 
 
 25. The power of an officer authorized to 
 take acknowledgments of married women to 
 conveyances of homestead property ceases
 
 ACKNOWLEDGMENT, V. ACTION OR SUIT. 
 
 13 
 
 when he has delivered his certificate of ac- 
 knowledgment to the parties and it has been 
 accepted for recording. He cannot after- 
 wards correct errors in his certificate, or 
 make a new one, without a reacknowledg- 
 ment of the instrument. Griffith v. Ven- 
 tress, 91 Ala. 366, 8 So. 312, 11:193 
 
 26. Void acknowledgments of mortgages 
 cannot be cured by statute so as to give 
 them effect against prior purchasers of the 
 property in good faith for value and with- 
 out notice. Blackman v. Henderson, 116 
 Iowa, 578, 87 N. W. 655, 56: 902 
 
 27. A statute validating the probate of a 
 deed of a married woman whose privy ex- 
 amination was had before the husbanu's ac- 
 knowledgment, contrary to the provisions of 
 the statute, will cover cases where the exe- 
 cution of the deed by the 'husband is not 
 proved by acknowledgment, but by a sub- 
 scribing witness. Barrett v. Barrett, 120 
 N. C. 127, 26 S. E. 691, 36: 226 
 
 V. Editorial Notes. 
 
 As Affecting Limitation, see Limitation of 
 Actions, V. 
 
 Right of interested persons to take ac- 
 knowledgment. 33:332. 
 Parties to instruments. 33: 332. 
 Parties in interest, not parties to the 
 
 instruments. 33: 336. 
 Agents, attorneys, and officers of cor- 
 porations. 33: 337 
 Relatives of parties. 33 : 340. 
 
 Validity of acknowledgment of deed of 
 trust taken by trustee. 
 16: 719. 
 
 Power of consul to take acknowledgment of 
 deeds and powers of at- 
 torney. 45: 499. 
 
 Leaving blank for name of party in cer- 
 tificate of acknowledg- 
 ment. 19: 279. 
 
 Sufficiency of abbreviation to show official 
 character of officer. 14: 
 815. 
 
 Of deed by married woman. 3:826;* 11: 
 193.* 
 
 Substantial compliance with statute suffi- 
 cient; omission in caption 
 not to invalidate; how in- 
 formality cured; presump- 
 tion as to official charac- 
 ter of justice of the peace. 
 10: 857.* 
 
 ACQUIESCENCE. 
 
 Ratification by, see Corporations, 245. 
 Estoppel by, see Estoppel, III. g. 
 
 ACQUITTAL. 
 
 Right to Appeal from Judgment of, see Ap 
 peal and Error, I. c. 
 
 As Bar to Prosecution, see Criminal Law, 
 
 II. g. 
 What is, see Criminal Law, 144-146. 
 
 ACTION ON THE CASE. 
 
 See Case. 
 
 ACTION OR SUIT. 
 
 I. Nature and Right. 
 
 a. In General; What Actionable. 
 
 b. Premature; Conditions Precedent. 
 
 1. In General. 
 
 2. Restoration of Benefits Re- 
 
 ceived. 
 
 3. Demand; Notice. 
 
 c. Defenses. 
 
 II. Union. Choice, or Form of Remedies. 
 
 a. Kind; Name. 
 
 b. Consolidation. 
 
 c. Splitting; Successive Suits. 
 
 d. Joinder. 
 
 e. Multifariousness. 
 
 III. Editorial notes. 
 
 Appearance in, see Appearance. 
 
 Dismissal of, see Dismissal or Discontinu- 
 
 ance. 
 Commencement of, see Limitation of Ac- 
 
 tions, 222.. 234-236. 
 Parties to Action, see Parties. 
 Removal of, see Removal of Causes. 
 Venue of, see Venue. 
 Costs and Fees, see Costs and Fees. 
 Transfers between Law and Equity, see Eq- 
 
 uity, II. 
 
 Comity in General, see Conflict of Laws. 
 Limitation of Actions or Suits, see Limi- 
 
 tation of Actions. 
 Effect of, on Runninsr of Limitations, see 
 
 Limitation of Actions, IV. b. 
 Causes of Action delating to Ships and 
 
 Shipping Generally, see Shipping. 
 Summary Proceedings, see Summary Pro- 
 
 ceedings. 
 What Constitutes Due Process in, see Con- 
 
 stitutional Law, II. b, 7. 
 Illegality of Contract to Prevent Compro- 
 
 mise of, see Contracts. 403. 
 Right to Bring Second Action of Ejectment, 
 
 see Ejectment, 36. 
 Actions for Injuries from Defects in Bridges, 
 
 Highways, and Streets, see Bndges; 
 
 Highways, IV. 
 Civil Damage Suits, see Intoxicating Liq- 
 
 uors, IV. b. 
 
 To Set Aside Judgment, see Judgment, VII. 
 To Compel Compliance with Bid on Judicial 
 
 Sale, see Judicial Sale, 29a, 31. 
 Between Partners, see Partnership, VII. 
 Petition for Receiver as, see Receivers. 3. 
 Specific Performance of Agreement Not to 
 
 Bring, see Specific Performance, 50. 
 Suits as to Taxes, see Taxes, III. d. 
 Time of Filing, see Time, 26. 
 Privilege from, see Writ and Process, II. <L
 
 14 
 
 ACTION OR SUIT, I. a. 
 
 Jurisdiction of Courts, see Admiralty; Ap- 
 peal and Error; Cloud on Title; Coiirts; 
 Creditors' Bill; Equity; Injunction; 
 Mandamus; Prohibition; Quo Warran- 
 to; Specific Performance. 
 
 On Various Instruments and Obligations, 
 see Bills and Notes, VI.; Bonds; Con- 
 tracts; Insurance, VI. h: Judgment, 
 VI.; Mortgage, VI.; Patents: Shipping. 
 
 Particular Causes of Action for Wrongs, see 
 Assault and Battery; Case; Conspir- 
 acy; Death; False Imprisonment; 
 Fraud and Deceit; Fraudulent Convey- 
 ances; Libel and Slander; Malicious 
 Prosecution; Negligence; Nuisances; 
 Patents; Seduction. 
 
 Various Matters of Procedure, see Attach- 
 ment; Continuance and Adjournment; 
 Depositions; Evidence; Execution; 
 Judgment; Jury; Levy and Seizure; 
 Trial; Witnesses; Writ' and Process. 
 
 Matters Peculiar to Particular Kinds of 
 Actions and Proceedings, see Admiral- 
 ty; Assumpsit; Attachment; Case; 
 Covenant; Creditors' Bill; Debt; Dis- 
 covery and Inspection; Ejectment; Em- 
 inent* Domain; Equity; Garnishment; 
 Injunction; Mandamus; Partition; Pro- 
 hibition; Quo Warranto; Replevin; 
 Specific Performance; Trespass; Trover. 
 
 I. Nature and Right. 
 a. In General ; What Actionable. 
 
 Acts Pursuant to Judgment Subsequetly Re- 
 versed as Basis of Action, see Appeal 
 and Error, 1244. 
 
 Due Process as to Right of Action, see Con- 
 stitutional Law, II. b, 7, b, 1. 
 
 Equal Privileges of Nonresidents as to, see 
 Constitutional Law, 384, 385. 
 
 Right of Action by or against Particular 
 Classes of Persons, see Assignments for 
 Creditors; Bankruptcy; Carriers; Char- 
 itable Institutions; Corporations; Coun- 
 ties; Executors and Administrators, 
 III.; Guardian and Ward; Husband and 
 Wife, III. ; Incompetent Persons, V. ; In- 
 fants, III.; Insolvency; Insurance; 
 Landlord and Tenant; Master and 
 Servant; Municipal Corporations; Offi- 
 cers; Parent and Child; Partnership; 
 Principal and Agent; Principal and 
 Surety; Railroads; Receivers, IV.; 
 Sale; Schools; Sheriff; State; Street 
 Railways; Telegraphs ; Telephones; 
 Trusts; Vendor and Purchaser. 
 
 By Stockholder of Corporation, see Corpora- 
 tions, V. e. 2. 
 
 By or Against Foreign Corporations, see Cor- 
 porations, VTI. c. 
 
 For Mental Suffering, see Damages, III. o. 
 
 For Soliciting Woman to Sexual Inter- 
 course, see Indecent Proposals. 
 
 Against Insured for Premiums, or Assess- 
 ments Due, see Insurance, 673. 
 
 For Assault on Servant, see Master and 
 Servant. 3. 
 
 Against Street Railway under Ordinance 
 Imposing Duties, see Municipal Corpo- 
 rations, 76. 
 
 For Erection of City Prison, see Prison, 3. 
 
 Against School Principal, see Schools, 62. 
 
 Right of One Civilly Dead to Sue, see Civil 
 Death, 6, 7. 
 
 Loaning to County Treasurer to Enable Him 
 to Conceal Embezzlement, see Counties.. 
 27. 
 
 For Editorial Notes, see infra, III. 1. 
 
 1. A prohibition against suits at law on 
 policies of insurance by an association to its 
 members, who were jointly, and not sever- 
 ally, liable thereon, is merely declaratory of 
 the law itself. Perry v. Cobb, 88 Me. 435. 
 34 Atl. 278, 49: 389' 
 
 2. Wrong without damage, or damage 
 without wrong, does not constitute a cause 
 of private action. Janesville v. Carpenter. 
 77 Wis. 288, 46 N. W. 128, 8: 808- 
 
 3. The maxim De minimis non curat lex r 
 does not apply to the positive and wrongful 
 invasion of another's property. The right 
 to maintain an action for the value of prop- 
 erty of which the owner is wrongfully de- 
 prived is never denied. Wartman v. Swin- 
 dell (N. J. Err. & App.) 54 N. J. L. 589, 25 
 Atl. 356, 18: 44 
 
 4. Where the invasion of a right, as by 
 the erection of a permanent structure on 
 the land of another. if submitted to on the 
 one hand and persisted in on the other a 
 sufficient length of time, may result in the 
 extinction of the right, a remedy may be 
 sought before actual damage has occurred. 
 Attorney General ex rel. Adams v. Tarr, 148 
 Mass. 309, 19 N. E. 358, 2: 87 
 
 5. A plaintiff must recover on the strength 
 of his own case instead of the weakness of 
 the defendant's case, as it is his right, in- 
 stead of the defendant's wrongdoing, that 
 is the basis of recovery. Home F. Ins. Co. 
 v. Barber, 67 Neb. 644* 93 N. W. 1024. 
 
 60: 927 
 
 6. The owner of goods may dictate the 
 prices at which he will sell them; and the 
 damages which are caused to an applicant 
 to buy, by the refusal of the owner to sell 
 to him at prices which will enable him to 
 resell them at a profit, constitute no legal 
 injury, and are not actionable because they 
 are not the result of any breach of duty or 
 of contract by the owner. Whitwell v. Con- 
 tinental Tobacco Co. 60 C. C. A. 200, 125 
 Fed. 454, 64: 689 
 
 7. Continuing trespasses by an elevated 
 railroad company on easements appurtenant 
 to certain premises give a right of action to 
 the purchaser of the premises, without re- 
 gard to the price paid by him. Pappenheim 
 v. Metropolitan Elev. R*. Co. 128 N. Y. 436, 
 28 N. E. 518, 13: 401 
 
 8. An action at law will not lie against 
 a city to recover damages for the prevention 
 of the use of a private sewer in a public 
 street, by the passage of a municipal ordi- 
 nance, although such ordinance interferes 
 with vested contract rights of the owner of 
 the sewer. Stevens v. Muskegon, 111 Mich. 
 72, 69 N. W. 227, 36: 777
 
 ACTION OR SUIT, I. b, 1. 
 
 15 
 
 9. A municipal ordinance cannot create 
 civil liability against a person vioating it. 
 in favor of persons injured by its violation, 
 since this is a power which belongs alone to 
 the sovereign power of the state. Moran v. 
 Pullman Palace Car Co. 134 Mo. 641, 36 S. 
 W. 059, 33: 755 
 
 10. The acts of a commander of revolu- 
 tionary forces in charge of a captured city 
 of another country, causing injury by as- 
 sault and false imprisonment to a citizen of 
 the United States, do not render him liable 
 in a civil action in the United States. at 
 least after the revolutionary '^government 
 has been established and recognized by the 
 United States government, even if the acts 
 complained of were performed before the 
 revolution became successful. Underbill v. 
 Hernandez. 13 C. C. A. 51, 26 U. S. App. 573. 
 65 Fed. 577, 38:405 
 
 Affirmed by the Supreme Court of the 
 United States, in 1G8 U. S. 250, 42 L. ea. 456, 
 18 Sup. Ct. Ken. 83. 
 Abstract questions. 
 See also infra. 25. 
 
 11. Courts do not sit for the purpose of 
 determining 1 speculative and abstract ques- 
 tions of law, or laying down rules for the 
 future conduct of individuals in their busi- 
 ness and social relations, but are confined in 
 their judicial action to real controversies 
 wherein legal rights of parties are necessar- 
 ily involved and can be conclusively deter- 
 mined. Thomas v. Musical Mut. Prot. 
 Union, 121 N". Y. 45, 24 N. E. 24, 8: 175 
 
 12. An action for damages will not lie 
 against a state institution against which 
 judgment cannot be enforced, merely for the 
 purpose of fixing the amount of damages in 
 order to make a claim for presentation to 
 the legislature. Maia v. Eastern State Hos- 
 pital. 97 Ya. 507, 34 S. E. 617, 47: 577 
 Novelty. 
 
 13. The absence of a common-law prece- 
 dent is not conclusive that no right of ac- 
 tion exists. Koerber v. Patek, 123 Wis. 45.1. 
 Ki-2 X. W. 40, 68: 956 
 
 14. The novelty of a complaint is no ob- 
 jection to the action if it is made to ap- 
 pear that an injury has been inflicted of 
 which the law is cognizable. Hundley v. 
 Louisville & N. R. Co. 105 Ky. 162, 48 S. W. 
 429, 63: 289 
 
 b. Premature; Conditions Precedent. 
 1. In General. 
 
 By Withdrawing Member of Loan Associa- 
 tion, see Building and Loan Associa- 
 tions, 67. . 
 
 To Enforce Stockholder's Liability, see 
 Conflict of Laws, 190-193; Corporations. 
 638. 639. 
 
 To Rescission of Contract, see Contracts, V. 
 c, 2. 
 
 To Action on Policy, see Insurance, 921-925, 
 1282, 1353. 
 
 To Action for Malicious Prosecution, see 
 Malicious Prosecution, III. 
 
 In Foreclosure Suit, see Mortgage, 140-142. 
 
 To Relief from Local Assessment, see Pub-\ 
 lie Improvements, 150, 151. 
 
 To Action for Replevin, see Replevin, 1. 
 
 In Action for Penalty for Taking Usury, see 
 Usury, 54. 
 
 Tender as Prerequisite to Re-entry for Con- 
 dition Broken, see Covenant, 48. 
 
 See also Life Tenants, 13. 
 
 For Editorial Xotes, see infra, III. 2. 
 
 15. A right of action must be complete 
 before the action is brought, and the subse- 
 quent occurrence of a material fact will not 
 avail in maintaining it. Maryland Tube & 
 I. Works v. West End Improv. Co. 37 Md. 
 207, 39 Atl. 620, 39: 810 
 
 16. If a contract fixes the time for a 
 payment agreed upon, but fixes no time for 
 doing that which is the condition of the pay- 
 ment, performance of the condition is not 
 a condition precedent to an action. Donovan 
 v. Judson, 81 Cal. 334. 22 Pac. 682, 6: 591 
 
 17. The right to bring an action for pur- 
 chase money of land, under a contract by 
 which one party agrees to convey, without 
 fixing any time therefor, while the other 
 agrees to pay the price a certain time after 
 final judgment in his favor in a certain 
 pending suit, accrues when such time has 
 expired, although no conveyance is made. Id. 
 
 18. Where goods are purchased upon an 
 agreement to give a promissory note for 
 the price, payable in one year, with interest, 
 on refusal of the purchaser to make and 
 deliver the note after the goods have been 
 delivered, the vendor may, without wait- 
 ing for the expiration ot the credit, maintain 
 an action at once for the breach of the agree- 
 ment; and the measure of damages will bt 
 the price of the goods sold and delivered. 
 Stephenson v. Repp, 47 Ohio St. 551, 25 N. 
 E. 803, 10: 620 
 
 19. An action against a county treasurer 
 and his bondsmen for the recovery of moneys 
 alleged to have been converted by such 
 treasurer is not prematurely brought, if 
 commenced after the termination of office 
 of such treasurer, and after he 'has given a 
 bond and qualified as his own successor in 
 office. Thomssen v. Hall County, -63 Neb. 
 777, 89 N. W. 393, 57 : 303 
 
 20. A prior entry upon the premises, or 
 a demand for the possession, is not neces- 
 sary, upon the breach of a condition subse- 
 quent, before suit to recover possession. 
 Lyman v. Suburban R. Co. 190 111. 320, 60 
 N. E. 515, 52: 645 
 
 21. The payment of a note which has been 
 transferred to an innocent purchaser by the 
 payee in violation of his contract with the 
 maker is not a condition precedent to a 
 right of action by the maker for breach of 
 the contract, notwithstanding that he is in- 
 solvent. Lyle v. McCormick Harvesting 
 Mach. Co. 10*8 Wis. 81, 84 N. W. 18, 51 : 906 
 
 22. The delivery of a life insurance policy 
 which is void for failure to pay a premium 
 is not a prerequisite to the institution of 
 an action to obtain judgment for a paid-up 
 policy in accordance with a provision of 
 the policy, as such original policy is of no 
 effect and can be of no value to any person.
 
 16 
 
 ACTION OR SUIT, I. b. 2, 3. 
 
 Mutual L. Ins. Co. v. Jarboe, 102 Ky. 80, 
 42 S. W. 1097, 39: 504 
 
 23. No formal rescission of the contract 
 is necessary before bringing an action for 
 damages in obtaining property from an in- 
 toxicated person at an inadequate price. 
 Baird v. Howard, 51 Ohio St. 57, 36 N. E. 
 73-2, 22 : 846 
 
 24. A decree of the judge of probate is 
 not necessary to a suit on an executor's 
 bond for a sum which is admitted to be due. 
 Judge of Probate v. Sulloway, 68 N. H. 511, 
 44 Atl. 720, 49: 347 
 
 25. A concrete case of which the court 
 has jurisdiction is presented by a petition 
 on behalf of a railroad company to enjoin 
 ticket brokers from buying and selling spe- 
 cial tickets made nontransferable on their 
 faces, not only as to those tickets which 
 have already been issued, but as to such as 
 will be issued in the future, where the in- 
 junction is to be made applicable only after 
 the contract has been entered into, the tick- 
 et issued, and property rights thereunder 
 have accrued. Sehubach v. McDonald, 179 
 Mo. 163, 78 S. W. 1020, 65: 136 
 Breach of promise of marriage. 
 
 26. The refusal to carry out a contract of 
 marriage may entitle the other party to 
 bring a suit for the breach, even though the 
 time in which the contract is to be per- 
 formed has not expired. Lewis v. Tapman, 
 90 Md. 294, 45 Atl. 459, 47: 385 
 
 27. An action for breach of promise of 
 marriage is not prematurely brought when 
 begun eight days after the day fixed for the 
 marriage, and without waiting for the cure 
 of a disease for which the defendant claimed 
 to have postponed the marriage, where his 
 acts and declarations sufficiently show that 
 he did not intend to fulfil his contract, even 
 after he was cured. Trammell v. Vaughan. 
 158 Mo. 214, ,59 S. W. 79, 51: 854 
 
 2. Restoration of Benefits Received. 
 
 28. A return of a sum of money paid to a 
 wife in consideration of a deed of separation 
 between herself and her husband, in which 
 she attempted to release all her rights in his 
 property, is not a necessary prerequisite to 
 the maintenance of an action to enforce 
 her right of dower in her husband's lands 
 after his death, since such release was ab- 
 solutely void, and can in no way affect her 
 dower rights. Land v. Shipp, 98 Va. 284, 
 36 S. E. 391, 50: 560 
 
 29. Return of the property is not a condi- 
 tion precedent to the maintenance of an 
 action against promoters for secret profits 
 in the sale of the property to the corpora- 
 tion in fraud of the rights of future stock- 
 holders, if the property is no longer in the 
 condition in which it was when the corpora- 
 tion took it, or it did not originally belong 
 to the promoters, but 'to straners. Hay- 
 ward v. Leeson, 176 Mass. 310, 57 N. E. 656, 
 
 49: 725 
 
 30. A city is not bound to repay money 
 which has been paid into the treasury on 
 an illegal sale of waterworks by the "city, 
 council, before recovering possession of the 
 
 property, where it has not appropriated or 
 use I the money in any way. Huron Water- 
 works Co. v. Huron, 7 S. D. 9, 62 N. W. 975, 
 
 30: 848 
 
 3. Demand; Notice. 
 
 Demand. 
 
 To Action on Guaranty, see Guaranty, 22. 
 
 In Mandamus Suit, see Mandamus, 153-156, 
 206. 
 
 For Foreclosure of Mortgage, see Mortgage, 
 142. 
 
 In Suit against City, see Municipal Corpora- 
 tions, II. g, 6. 
 
 For Support of Pauper, see Poor and Poor 
 Laws, 10. 
 
 In Replevin Suit, see Replevin, I. c. 
 
 As Condition Precedent to Set-Off, see Set- 
 Off and Counterclaim, 53. 
 
 In Trover, see Trover, I. c. 
 
 See also supra, 20. 
 
 For Editorial Notes, see infra, III. 2. 
 
 31. No subsequent demand upon a sheriff 
 is necessary to recover money collected by 
 him upon execution under an exempt judg- 
 ment, where he has applied it upon an- 
 other execution which has not been lawfully 
 levied thereon against the creditor in the 
 exempt judgment, without any notice to him 
 or opportunity to make any demand. Wylie 
 v. Grundysen, 51 Minn. 360, 53 N. W. 805. 
 
 19: 33 
 
 Notice. 
 
 In Suit against City, see Municipal Corpora- 
 tions, II. g, 6. 
 
 Before Abatement of Nuisance, see Nui- 
 sances, 113-116. 
 
 32. An action for damages for conspiracy 
 is not within the provision of Wis. Rev. 
 Stat. 4222, subd. 5, requiring notice wifhin 
 one year after the event as a condition of 
 an action for injury to the person. Gatzow 
 v. Buening, 106 Wis. 1, 81 N. W. 1003, 
 
 49: 475 
 
 33. The requirements of notice in Mass, 
 employers' liability act, 3, only apply, so 
 far as 1 is concerned., to the cases lying 
 outside the common-law rule but embraced 
 by 1, unless the plaintiff, although having 
 a common-law remedy, insists on relying 
 upon the statute alone. Ryalls v. Mechanics 
 Mills, 150 Mass. 190, 22 N. E. 766, 5: 667 
 
 34. A notice to a railroad company of a 
 claim by two persons for the value of certain 
 live stock killed on the railroad is not in- 
 sufficient to authorize a recovery by one of 
 those persons for a part of the stock owned 
 by him individually, under Or. Laws 1893, 
 p. 28, requiring notice by the owner. Brown 
 v. Southern P. Co. 36 Or. 128, 58 Pac. 1104, 
 
 47: 409 
 
 35-36. Failure to object to the mainte- 
 nance of an action without having given the 
 notice required by Wis. Rev. Stat. 4222, 
 subd. 5, to be given within one year after 
 the injury, except by objection to evi- 
 dence on the trial, is a waiver of the failure 
 to give the notice, as the statute does not 
 make this a condition of the right, but only 
 a limitation on the remedy. Gatzow v. 
 Buening, 106 Wis. 1, 81 N. W. 1003, 49: 475
 
 ACTION OR SUIT, I. c. 
 
 17 
 
 c. Defenses. 
 
 In Action for Assault, see Assault and Bat- 
 tery, II. 
 
 In Disbarment Proceedings, see Attorneys, 
 31-33. 
 
 In Action on Negotiable Paper, see Bills and 
 Notes, VI. c. 
 
 In Action for Breach of Promise, see Breach 
 of Promise, II. 
 
 In Suit to Remove Cloud from Title, see 
 Cloud on Title, II. 
 
 In Proceeding to Punish Unlawful Combina- 
 tion, see Conspiracy, 129. \ 
 
 In Action for Causing Death, see Death, IV. 
 
 In Suit for Divorce, see Divorce and Separa- 
 tion, IV. 
 
 In Ejectment Suit, see Ejectment, II. b. 
 
 In Action for False Imprisonment, see False 
 Imprisonment, III. 
 
 In Action on Policy, see Insurance, VI. e. 
 
 In Action for Rent, see Landlord and Tenant, 
 190. 
 
 In Libel Suit, see Libel and Slander, III. c. 
 
 In Mandamus Case, See Mandamus, 207-219. 
 
 In Foreclosure Suit, see Mortgage, VI. d. 
 
 In Action for Death of Fireman, see Munici- 
 pal Corporations, 461. 
 
 In Proceedings to Abate Nuisance, see Nui- 
 sances, II. d. 
 
 In Replevin Suit, see Replevin, II. b. 
 
 In Trover, see Trover, 36-38. 
 
 Discharge in Bankruptcy of Individual Lia- 
 bility on Firm Debt, see Bankruptcy, 52. 
 
 Invalidity of Cashier's Purchase of Bank 
 Stock, see Banks, 41. 
 
 Contributory Negligence as, see Blasting, 20. 
 
 Violation of Statute as Excuse for Breach of 
 Contract to Finish Cars, see Carriers, 
 950. 
 
 Champerty as, see Champerty, 18, 19. 
 
 Defect in Administrator's Bond. See Execu- 
 tors and Administrators, 24. 
 
 Infancy as. see Infants, I. d. 
 
 Fraudulent Use of Label or Trade Name, see 
 Injunction. 454-458. 
 
 Illegality as Defense in Collateral Matter, 
 see Lottery. 2. 
 
 Mistake of Law as, see Reformation of In- 
 struments. 14. 
 
 Violation of Sunday Law, see Sunday, V. 
 
 Usury as, see Usury, 27. 
 
 To Guaranty of Corporate Dividends, see 
 Corporations, 724. 
 
 Against Liability as Stockholder, see Cor- 
 porations, 600-606. 618-621. 
 
 Defense to Creditors' Bill, see Creditors' Bill 
 10. 
 
 To Local Improvement Assessment, see Pub- 
 lic Improvements, 200-203. 
 
 Of Telegraph Company, see Telegraphs, 99. 
 
 Liability on Contracts Generally, see Con- 
 tracts, VI. b. 
 
 Due Process as to, see Constitutiona Law, 
 II. b, 7, b, 2. 
 
 Question for Jury as to Validity of, see 
 Trial, 502. 
 
 See also infra, 85. 
 
 37. The invalidity of a gratuitous contract 
 to do a certain act is no defense to an action 
 by the promisee for injuries sustained by 
 L.R.A. Dig. 2. 
 
 want of due care and skill in doing it. 
 Wertheimer v. Saunders, 95 Wis. 573. 70 N. 
 W. 824, 37: 146 
 
 38. The right to recover for injury to a 
 dog is not lost by killing him, under the 
 honest but mistaken belief that he was fa- 
 tally injured. Citizens' Rapid Transit Co. v. 
 Dew, 100 Tenn. 317, 45 S. W. 790, 40: 518 
 
 39. When both husband and wife are par- 
 ties plaintiff to a suit and the claim sued 
 on belongs to one or the other, the defendant 
 is without interest to urge that the claim 
 belongs to one of the spouses in particular, 
 and that the suit should have been brought 
 distinctively in the name of the owner of 
 tjie claim. Lewis v. Holmes, 109 La. 1030, 
 34 So. 66, 61: 274 
 Right to make. 
 
 Right of Corporation to Set vjp Ultra Vires 
 as, see Corporations, IV. d, 2. 
 
 Who may Set up Defense of Usury, see 
 Usury, 40-45. 
 
 40. The right to defend a suit for a di- 
 vorce cannot be denied on account of de- 
 fendant's failure to pay alimony as ordered 
 by the court. Gordon v. Gordon, 141 111. 160, 
 30 N. E. 446, 21 : 387 
 Legislative authority. 
 
 41. Acts of a railroad or other private 
 corporation in the execution of charter or 
 statutory powers are not within the rule 
 that legislative authority for acts causing 
 consequential injury to private property is 
 a bar to a claim for indemnity.- Booth v. 
 Rome, W. & O. T. R. Co. 140 N. Y. 267, 35 
 N. E. 592, 24: 105 
 Corruption in passage of resolution. 
 
 42. Corruption in the passage of a resolu- 
 tion by a city council may be set up by tbs 
 city in defense of an action which is based 
 on the resolution. Weston v. Syracuse, 158 
 N. Y. 274, 53 N. E. 12, 43:678 
 Worthlessness of property destroyed. 
 
 43. That property was worthless is no 
 defense to a claim for damages for its de- 
 struction. Ft. Wayne Land & Improv. Co. 
 v. Maumee Ave. Gravel Road Co. 132 Ind. 
 80, 30 N. E. 880, 15:651 
 Nuisance. 
 
 44. A railroad company which unlawfully 
 injures a mill by the construction of its road 
 cannot set up in defense that the milldam 
 is a public nuisance. Watts v. Norfolk & 
 W. R. Co. 39 W. Va. 196, 19 S. E. 521, 
 
 23: 674 
 Act or fault of plaintiff. 
 
 45. An unlawful act of a person, if it di- 
 rectly contributes to a personal injury which 
 he sustains, is a conclusive bar to a recovery 
 for such injury against another person oil 
 the ground of negligence. Broschart v. Tut- 
 tle, 59 Conn. 1,21 Atl. 925, 11:33 
 
 46. An infant, even one of tender years, 
 is precluded, by his violation of the law 
 against climbing upon or catching hold of a 
 locomotive or car, from recovering for in- 
 juries sustained in consequence thereof. 
 Barney v. Hannibal & St. J. R. Co. 126 Mo. 
 372, 28 S. W. 1069, 26: 847 
 
 47. It is no defense to an action for dam- 
 ages caused by the falling of a wall on ac-
 
 18 
 
 ACTION OR SUIT, I. c. 
 
 count of fastening a wire to it to secure a 
 telegraph pole, which occurred during a 
 heavy rain, whereby plaintiffs rooms were 
 flooded with water" that the property in- 
 jured consisted of furniture and implements 
 kept for the purpose of gaming, where it is 
 not shown that, at the time of the injury, 
 plaintiff did any act contributing or having 
 any relation to it, or that the property was 
 then being used for illegal purposes. Gulf, 
 C. & S. F. R. Co. v. Johnson, 71 Tex. 619, 
 9 S. W. 602, 1: 730 
 
 Commencement of work. 
 
 48. The fact that work has begun under 
 an illegal contract will not preclude an ac- 
 tion to prevent its execution, and, at the 
 most, will affect the extent of relief. Adams 
 v. Brenan, 177 111. 194, 52 N. E. 314, 42: 718 
 Abandonment. 
 
 40. Failure to bring an injunction suit to 
 prevent the changing of the grade of a street 
 without making compensation for injury to 
 the abutting owner is not an abandonment 
 of the right to bring an action for such com- 
 pensation after the change is effected. Hen- 
 derson v. McClain, 102 Ky. 402, 43 S. W. 700, 
 
 39: 349 
 Effect of motive. 
 
 50. The motive which induces a person to 
 bring an action is immaterial, if he has a 
 legal right to the remedy he is seeking. 
 Hamilton. G. & C. Traction Co. v. Parrish. 
 67 Ohio, 181, 65 N. E. 1011, 60: 531 
 
 51. The motives inspiring those who in- 
 duce the governor to institute an action in 
 the name of the state to prevent the viola- 
 tion of Ga. Const, art. 4, 2, If 4 
 (Oiv. Code, 5800), are not material in 
 determining whether the action is well 
 brought and maintainable, but that matter 
 depends upon the pleadings and evidence. 
 Trust Company of Georgia v. State, 109 Ga. 
 736, 35 S. E. 323, 48: 520 
 
 52. The fact that a person boarded a car 
 for the purpose of making a test case as to 
 the amount of fare demandable will not 
 effect his right to maintain an action for an 
 unlawful ejection after tendering the fare 
 lawfully due. Adams v. Union R. Co. 21 R. 
 I. 134, 42 Atl. 515, 44: 273 
 
 53. A malicious motive in instituting a 
 valid cause of action against another is no 
 defense. Jacobson v. Van Boening, 48 Neb. 
 80. 66 N. W. 993, 32: 229 
 Right of other person generally. 
 
 Heir or Legal Representative of Infant, see 
 
 Infants, 47. 
 In Action on Contract, see Contracts, 832- 
 
 834. 
 In Defense of Ultra Vires, see Corporations, 
 
 161. 
 In Eminent Domain, see Eminent Domain, 5 
 
 6, 63, 213. 
 Of Insurer to Set up Bar of Limitations, see 
 
 Insurance, 133. 
 See also Husband and Wife. 136. 
 
 54. It is no defense to an action for the 
 purchase price of a contract for the sale of 
 land, that another than the assignor was the 
 real owner of such contract, when the as- 
 
 signee received a valid assignment. Fergu- 
 son v. McBean, 91 Cal. 63, 27 Pac. 518, 
 
 14: 65 
 
 55. The right of the owner of property de- 
 stroyed by fire to recover damages from an- 
 other by whose fault it was burned is, as- 
 against the defendant, unaffected by the 
 fact that he may have already received full 
 payment for his loss by insurance, and that 
 the insifrer is entitled to be subrogated to- 
 the claim. Anderson v. Miller, 96 Tenn. 36 r 
 33 S. W. 615, 31 : 604 
 
 56. The franchise of a company operating 
 an electric street railway with an assump- 
 tion of corporate powers cannot be assailed 
 by an individual in a suit to enjoin him 
 from interfering with the operation of the- 
 road. Williams v. Citizens' R. Co. 130 Ind. 
 71, 29 N. E. 408, 15: 64 
 Unconstitutionally of statute as to other 
 
 person. 
 Plaintiff's Right to Attack Unconstitutional- 
 
 ity of Statute, see Parties, 11, 12. 
 See also Attorneys. 36: Building and Loan 
 
 Associations, 89; Insurance, 37; License, 
 
 133; Mandamus, 208-210; Statutes, 53- 
 
 55. 
 
 57. A question of the unconstitutionality 
 of a statute as to other corporations cannot 
 be raised by a railroad company as to which 
 the act is valid. Pittsburgh, C. C. & St. L_ 
 R. Co. v. Montgomery, 152 Ind. 1, 49 N. E. 
 582, 69: 875- 
 
 58. A railroad company cannot complain 
 that a statute is unconstitutional in dis- 
 criminating against its employees by giving 
 a right of action against it for negligence 
 causing the death of any person who is not 
 in its employ. Louisville Safety Vault & T. 
 Co. v. Louisville & N. R. Co. 92 Ky. 233, 17 
 S. W. 567, 14:571> 
 
 59. An accident insurance company can 
 not insist on the invalidity of a statute for 
 unconstitutional discrimination against fire 
 insurance companies. Fidelity & C. Co. v. 
 Freeman, 48 C. C. A. 692, 109 Fed. 847, 
 
 54: 680 
 
 60-61. The unconstitutionality of a stat- 
 ute in omitting to provide for compensation 
 for property taken or injured is not a 
 ground of objection to any person except 
 those whose property is affected by it. 
 Prince v. Crocker, 166 Mass. 347, 44 N. E. 
 446, 32: 610 
 
 62. The invalidity of a provision impairing 
 a contract . between tne state and a bridge 
 company for the construction of a bridge in, 
 a statute charging the burden of the bridge 
 upon a city and towns specially benefited,, 
 instead of upon the state, will not avail to- 
 relieve the city and towns of their liability, 
 especially after a settlement between the- 
 state and the company. State ex rel. Bulke- 
 ley v. Williams, 68 Conn. 131, 35 Atl. 24,. 
 421, 48: 465- 
 
 63. A denial of the constitutional rights 
 of women in a criminal proceeding against a 
 man cannot be set up by him in his own 
 behalf. McKinney v. State, 3 Wyo. 719, 30- 
 Pac. 293, 16: 710-
 
 ACTION OR SUIT, II. a c. 
 
 1!) 
 
 II. Union, Choice, or Form of Remedies, 
 a. Kind; Name. 
 
 As to Election of Remedies, see Election of 
 Remedies. 
 
 64. An action to compel specific perform- 
 ance of a contract to convey real estate is 
 one in personam. Silver Camp Min. Co. v. 
 Dickert, 31 Mont. 488, 78 Pac. 967, 67: 940 
 
 65. A proceeding to set aside a deed for 
 want of capacity of the grantor is not in 
 rent. Allred v. Smith, 135 N. C. 4*3, 47 S. 
 E. 5!)7, 65: 924 
 
 66. An action for wrongfully appropriat- 
 ing water from a reservoir created by plnin- 
 tilV's dam is one in tort. Green Bay & M. 
 Canal Co. v. Kaukauna Water Power Co. 
 }\-2 \Vis. :$23, 87 N. \V. 8(54, 62: 579 
 
 67. The name by which an action brought 
 to establish title to a portion of a railroad 
 right of way is de.vi^iiated is immaterial in 
 determining the relief to be afforded, or 
 whether the defense of prescription' is avail- 
 able, where there i>. under the statute, but 
 one form of civil action, the character of 
 which is determined by the substance of the 
 complaint. Southern P. Co. v. Hyatt, \62. 
 Cal. 240, 64 Pac. L'72. 54: 522 
 
 b. Consolidation. 
 
 As Ground for Reversal, see Appeal and Er- 
 ror, 855. 
 See also Creditors' Bill, 19, 32. 
 
 .68. A consolidation of several actions 
 against different defendants cannot be made 
 under Colo. Civ. Code, 20, which authorizes 
 consolidation of causes of action which 
 might have been joined when they are in the 
 same court and "between the same parties." 
 Smith v. Smith, 22 Colo. 480, 46 Pac. 128. 
 
 34: 49 
 
 69. The consolidation of two creditors' 
 bills is proper where each is seeking to ob- 
 tain a first lien on the property of the same 
 judgment debtor, the one filing the second 
 bill relying for success upon lack of good 
 faith in the former bill and the judgment on 
 which it was founded; and it is immaterial 
 that the parties defendant to the two bills 
 are not identical, being the judgment debtor 
 only in the first bill, and such debtor and the 
 rival claimant in the second. Russell v. 
 Chicago Trust & Sav. Bank, 139 111. 538, 29 
 N. E. 37, 17: 345 
 
 c. Splitting; Successive Suits. 
 
 70. A judgment for a part of an entire, 
 indivisible demand, all of which is due when 
 the action is commenced, is an election to 
 take the part in satisfaction of the whole, 
 and it estops the plaintiff from recovering 
 the residue. Deweese v. Smith, 45 C. C. A. 
 408. 106 Fed. 438. 06:971 
 
 71. A judgment for a part of an entire, 
 indivisible demand which is due does not 
 estop the plaintiff from maintaining another 
 action for another part of the demand, which 
 
 becomes dvie subsequent to the commence- 
 ment of the first action. Id. 
 
 72. Where a railway company unlawfully 
 constructs its road in tt public street so as 
 to. interfere with the private rights of abut- 
 ters, it constitutes a continuing trespass, 
 for which successive suits for damages may 
 be brought so long as the trespass is con- 
 tinued, until the occupation ripens into title 
 by prescription. Lamm v. Chicago, St. P. M. 
 & 0. R. Co. 45 Minn. 71, 47 N. W. 455, 
 
 10: 268 
 
 73. A recovery in an action for damages 
 arising from a nuisance consisting in the un- 
 lawful and improper use which a railroad 
 company makes of its tracks in a city street, 
 being limited to the damages sustained be- 
 fore the bringing of the suit, does not pre- 
 clude a second suit for subsequent damages 
 if the use is continued. Iron Mountain R. 
 Co. v. Bingham, 87 Tenn. 522, 11 b. W. 705. 
 
 4: 622 
 On series of notes. 
 
 74. An action on a mortgage securing 
 notes payable at different times, brought be- 
 fore some of the notes are payable, is not 
 a bar to a subsequent action on the latter 
 notes. Anderson v. Pilgrain, 30 S. C. 499, 
 <) S. K. .-.S7. 4: 205 
 Interest and principal of note. 
 
 75. Where one guarantees the payment of 
 interest on a note so long as any part of the 
 principal thereof remains unpaid, the prom- 
 ises to pay the interest and to pay the prin- 
 cipal are severable, and an action may be 
 maintained, even after maturity of the note, 
 upon the promise to pay the interest, with- 
 out including it in an action for the princi- 
 pal debt. King v. Bates. 149 Mass. 73, 21 
 N. E. 237, 4: 268 
 By servant wrongfully dismissed. 
 
 76. Successive actions may be brought by 
 a servant wrongfully discharged, for succes- 
 sive deficiencies, without his fault, in his 
 earnings, measured by the instalment of 
 wages that he would have earned if allowed 
 to perform his contract. McMullan v. Dick- 
 inson Co. 60 Minn. 156, 62 N. W. 120. 
 
 27 : 409 
 
 77. One dismissed from service in breach 
 of a contract to employ him for one year 
 at a certain sum per week, payable weekly, 
 can maintain but one action for the breach, 
 and will not be permitted to maintain, a 
 separate action for each weekly instalment 
 as it falls due. Olmstead v. Bach, 78 Md. 
 132. 27 Atl. 501. 22: 74 
 Rev'g on Rehearing 25 Atl. 343, 18: 53 
 Against stockholder. 
 
 78. The right of a creditor having \*ar- 
 ious claims against a corporation, to exact 
 payment from a >tockholder. is not such a 
 single and indivisible demand that, by plac- 
 ing one such claim in judgment against the 
 stockholder, he is precluded from proceeding 
 against him upon the others. Manley v. 
 Park, 68 Kan. 400, 75 Pac. 557. 66:* 967 
 
 79. A judgment in favor of the receiver of 
 an insolvent national bank for the recovery 
 of an assessment made by the Comptroller 
 of the Currency upon a shareholder does not 
 estop him from maintaining a second action
 
 20 
 
 ACTION OR SUIT, II. d. 
 
 against the same shareholder for another as- 
 sessment which had not been made, or was 
 not due, when the first action was com- 
 menced. Deweese v. Smith, 45 C. C. A. 408, 
 1C6 Fed. 438. 66: 971 
 
 For elevated railroad in street. 
 
 80. A single recovery for all damages, 
 present and future, may be had by an abut 
 ting owner against one constructing a rail- 
 road in the street in front of his property, 
 although the structure is unlawful and 
 therefore subject to abatement at any time. 
 Doane v. Lake Street Elev. Co. 165 111. 510, 
 46 N. E. 520, 36: 97 
 For injuries by flooding. 
 
 81. Judgment for accrued damages only 
 in an action for obstruction of water by a 
 railroad embankment lawfully built, if 
 neither party demanded the assessment of 
 permanent damages, will not be a bar to a 
 future action for permanent damages. Rid- 
 ley v. Seaboard & R. R. Co. 118 N. C. 996. 
 24 S. E. 730, 32: 708 
 Injuries to person and to property. 
 
 82. Injuries to a person, and injuries to 
 the property of the person injured, both re- 
 sulting from the same tortious act, are sep- 
 arate items of damages constituting but one 
 cause of action. King v. Chicago, M. & St. 
 P. R. Co. 80 Minn. 83, 82 N. W. 1113, 
 
 50: 161 
 Injuries to man and wife. 
 
 83.84. A recovery for his own personal in- 
 juries will not bar a subsequent action by 
 a man to recover for loss of the society and 
 services of his wife, and for expense in ef- 
 fecting her cure, -caused by the same negli- 
 gent act which caused his own injuries. 
 Skoglund v. Minneapolis Street R. Co. 45 
 Minn. 330, 47 N. W. 1071, 11: 222 
 
 d. Joinder. 
 
 Of Causes in Admiralty, see Admiralty, 10. 
 For Accounting and Final Distribution, see 
 
 Executors and Administrators, 167. 
 To Make up Jurisdictional Amount, see 
 
 Courts, 294, 295. 
 
 Joinder of Parties, see Parties, I. b; II. b. 
 For Editorial Notes, see infra, III. 3. 
 
 85. Only those who are improperly joined 
 as defendants can object to the misjoinder. 
 Slegel v. Herbine, 148 Pa. 236, 23 Atl. 996, 
 
 15: 547 
 
 86. Any event in which two or more per- 
 sons are actors, involving a right which may 
 presently, or by what may proximately oc- 
 cur in respect thereto, be violated, creating 
 an actionable wrong, is a transaction within 
 the meaning of a statute permitting the 
 joinder in one complaint of two or more 
 causes of action "where they arise out of 
 the same transaction." Emerson v. Nash, 
 124 Wis. 369, 102 N. W. 921, 70: 326 
 
 87. When a contract between two or more 
 persons on one side and two or more persons 
 on the other creates a situation involving 
 presently or proximately separate rights up- 
 on one side, each of which, with a violation 
 thereof by the other side, would constitute 
 a complete ground of complaint for judicial 
 redress, the initial circumstance the mak- 
 
 ing of the contract is a "transaction," with- 
 in the meaning of a statute permitting the 
 joinder of causes of action arising out of the 
 same transaction; and such grounds of com- 
 plaint, should they arise, would be separate 
 "causes of action arising out of the same 
 transaction," within the meaning of the stat- 
 ute. Id. 
 
 88. All such wrongs, as, in the regular 
 course of events, through the rights violat- 
 ed, have such proximate relation to a single 
 transaction that it may legitimately be said 
 they arise out of it, are, under Wis. Rev. 
 Stat. 1898, 2647, redressible in one action, 
 regardless of the form of the remedy requi- 
 site as to each, providing they affect all the 
 parties, and do not require different places 
 of trial. Id. 
 
 89. Counts in case and trover may be 
 joined. Haves v. Massachusetts Mut. L. 
 Ins. Co. 125 "ill. 626, 18 N. E. 322, 1: 303 
 
 90. A cause of action for breach of con- 
 tract to pay for a machine, and one for tort 
 for forcibly preventing the seller from re- 
 gaining possession of the machine, may 
 properly be joined in one complaint which 
 seeks merely to recover the purchase price 
 of the machine. Craft Refrigerating Mach. 
 Co. v. Quinnipiac Brew.- Co. 63 Conn. 551, 29 
 Atl. 76, 25: 856 
 
 91. A complaint asserting rights in waters 
 upon one's land, and also claiming the same 
 rights under a contract, does not combine 
 inconsistent causes of action. Case v. Hoff- 
 man, 84 Wis. 438. 54 N. W. 793, 20: 40 
 
 92. A note for principal, and one for inter- 
 est, signed by the same maker and secured 
 by the same mortgage, may be enforced in 
 one action. Kleis v. McGrath, 127 Iowa, 45*9, 
 103 N. W. 371, 69:260 
 Suits for injunction. 
 
 92a. The practice of including in one in- 
 junction several separate seizures made by 
 creditors between whom there is no privity 
 is not to be encouraged, and can be sanc- 
 tioned only in highly exceptional cases, 
 where evidently no inconvenience can be oc- 
 casioned to the defendants in injunction, 
 and no complication can possibly arise. 
 Speyrer v. Miller, 108 La. 204, 32 *So. 524, 
 
 61: 781 
 
 Legal and equitable actions. 
 Liberal Construction of Statute as to, see 
 
 Statutes, 517. 
 Action for Damages and for Reformation of 
 
 Instrument, see Trial, 70. 
 
 93. Different causes of action, whether 
 legal or equitable, may be united in the same 
 petition, when connected with the same sub- 
 ject of action; and in an action for a nui- 
 sance plaintiff may ask for damages and for 
 an injunction to restrain its continuance. 
 Paddock v. Somes, 102 Mo. 226, 14 S. W. 746, 
 
 10: 254 
 
 94. That the statutes require an issue as 
 to the validity of a will to be tried by jury, 
 while the question of fraud in the procure- 
 ment of a deed may be tried by the court, 
 will not prevent an attempt to set aside 
 both instruments by one bill in equity. Wil- 
 liams v. Crabb, 54 C. C. A. 213, 117 Fed. 193. 
 
 59: 425
 
 ACTION OR SUIT, II. e, III. 
 
 95. Consistent causes of action in equity 
 arising out of the same transaction, which 
 may be joined, are disclosed by a complaint 
 against directors of a corporation and its at- 
 torney to recover from the directors a sum 
 which they had received for turning their 
 offices over to third persons, another sum re- 
 ceived for surrender of their stock in excess 
 of its value, and damages for losses result- 
 ing from a conspiracy to wreck the corpora- 
 tion, as well as to set aside a contract 
 fraudulently made with the attorney in fur- 
 therance of the conspiracy. Boswo^th v. Al- 
 len, 168 N. Y. 157, 61 N. E. 163, 55: 751 
 
 96. A single cause of action upon which 
 but one action can be maintained under 
 statutes abolishing the distinctions between 
 actions at law and suits in equity, and re- 
 quiring a complaint to contain a plain and 
 concise statement of the facts constituting 
 each cause of action, and to demand the 
 judgment to which plaintiff supposes himself 
 entitled, is presented by the encroachment of 
 a permanent wall upon another's property, 
 the removal of which cannot be effected by 
 legal process, but requires the aid of equit- 
 able remedies. Hahl v. Sugo, 169 N. Y. 109, 
 62 N. E. 135, 61 : 226 
 
 97. A claim for the reformation of a deed, 
 and one for damages for breach of cove- 
 nants of the deed as amended, may be joined 
 in the same action, under Conn. Gen. Stat. 
 877, providing that legal and equitable 
 remedies may be enforced in one action. 
 Butler v. Barnes,. 60 Conn. 170, 21 Atl. 419, 
 
 12: 273 
 
 e. Multifariousness. 
 
 98. All parties to a suit need not have 
 an interest in every matter contained there- 
 in; it is sufficient if each party has an inter- 
 est in some material matters in the suit, 
 and they are connected with the others. 
 Williams v. Crabb, 54 C. C. A. 213, 117 Fed. 
 193. 59: 425 
 
 99. A bill is not multifarious, although 
 the claims of the several complainants arose 
 under different contracts, if they are pursu- 
 ing, upon the same grounds and for the same 
 reasons, a common trust fund in which they 
 are jointly interested. Langdon v. Central 
 R. & Bkg. Co. 37 Fed. 449, 2: 120 
 
 100. A bill is not multifarious because a 
 large number of insurance companies join 
 in it to set aside an award against them all 
 upon a joint submission, for misconduct of 
 the arbitrators. Hartford F. Ins. Co. v. 
 Bonner Mercantile Co. 44 Fed. 151, 11: 623 
 
 101. Joinder of causes .of action for set- 
 ting aside a deed and a will does not render 
 the bill multifarious, where both grow out of 
 the same subject-matter. Williams v. 
 Crabb, 54 C. C. A. 213, 117 Fed. 193, 
 
 59: 425 
 
 102. A bill to subject real estate of the 
 three members of a firm to the payment of 
 one judgment against the firm, and one 
 against two partners, is not multifarious as 
 to the third partner, since he is interested in 
 having the real estate of his partners sub- 
 jected to the payment of the firm debts 
 
 rather than to their own. Alexander v. 
 Alexander, 85 Va. 353, 7 S. E. 335, 1 : 125 
 
 103. A single bill in equity by creditors of 
 an insolvent corporation cannot be sustained 
 to reach unpaid stock subscriptions, to re- 
 cover funds transferred by it to preferred 
 creditors, and to administer an assignment 
 by the corporation for benefit of creditors. 
 O'Bear Jewelry Co. v. Volfer, 106 Ala. 205, 
 17 So. 525, 28: 707 
 
 104. A cause of action for damages to a 
 retail coal dealer by reason of -a combina- 
 tion between wholesalers and favored re- 
 tailers to drive other retailers out of busi- 
 ness cannot be united in the same complaint 
 with one by him, on behalf of himself and all 
 other dealers similarly injured, to enjoin 
 the illegal acts, under a statute providing 
 that causes of action in order to be united 
 must affect all the parties to the action. 
 Hawarden v. Youghiogheny & L. Coal Co. 
 Ill Wis. 545, 87 N. W. 472, 55: 828 
 
 105. A bill by several patrons of a tele- 
 phone company having distinct and separate 
 contracts for service, to enforce the com- 
 pany's duty under a municipal ordinance as 
 to rates for service, will not be dismissed for 
 multifariousness, although the facts alleged 
 in connection with the various contracts are 
 somewhat variant, where there is a common 
 interest in enforcing the duty, and no diffi- 
 culty or embarrassment will be created in 
 decreeing the relief which the bill seeks. 
 Charles Simon's Sons Co. v. Maryland 
 Teleph. & Teleg. Co. 99 Md. 141, 57 Atl. 193, 
 
 63: 727 
 
 106. A bill is not multifarious which seeks 
 to recover the use of a church building, be- 
 cause in it are united the claims of a pre- 
 siding elder, entitled to use the church for 
 holding quarterly conferences, of the pastor, 
 entitled to hold religious services therein, 
 and of members of the congregation, enti- 
 tled to worship therein. Fuchs v. Meisel, 102 
 Mich. 357, 60 N. W. 773, 32: 92 
 
 III. Editorial Notes. 
 
 i. Generally. 
 
 Where there is a risht there is a remedy. 
 .4: 295.* 
 
 Effect of statute to defeat or preserve; ef- 
 fect of repeals. 14: 721. 
 
 Effect of repeal and re-enactment of stat- 
 ute on pending suit. 5: 
 315.* 
 
 Effect upon suit, of discharge from arrest 
 of one arrested while at- 
 tending court. 19: 560. 
 
 Statutory authority to justify injury. 10: 
 210.* 
 
 Effect of collusion. 12: 815.* 
 
 Proceedings in, on holidays. 19: 319. 
 
 Right to plead inconsistent defenses in. 
 48: 177. 
 
 Loss of cause of action by lapse of time 
 pending suit. 18: 211. 
 
 Privileges of members of Congress and 
 state legislature from suit. 
 23: 632.
 
 22 
 
 ACT OF BANKRUPTCY; ACT OF GOD. 
 
 Privilege of consul from suit. 45: 579. 
 
 2. Conditions. 
 
 Necessity and effect of demand and refusal 
 as a condition of trover. 
 1 : 305.* 
 
 Prerequisites to suit against national bank 
 for twice amount of in- 
 terest paid. 56: 704. 
 
 Request of corporation to sue as condition 
 of suit bv stockholder. 9: 
 656.* 
 
 3. Joinder. 
 
 Of causes of action generally. 1:125;* 11: 
 222.* 
 
 Whether injuries both to person and to 
 property constitute but 
 one, or more than one, 
 cause of action. 50: 161. 
 Rule basing cause of action on the, in- 
 jury. 50: 161. 
 Rule basing cause of action on the act 
 
 causing injury. 50: 162. 
 Effect of statutes as to joinder of causes 
 
 of action. 50: 164. 
 
 Effect of injury in different capacities, 
 or to different parties. 50: 
 167. 
 
 4- Stay. 
 
 Until former costs are paid. 11: 620.* 
 
 Effect of stay laws as impairment of obli- 
 gation of contract. 1 : 
 358.* 
 
 Of proceedings to enforce mortgage for part 
 of mortgage debt. 37: 749. 
 
 ACT OF BANKRUPTCY. 
 
 What is, see Bankruptcy, 6-9. 
 
 ACT OF GOD. 
 
 Inevitable Accident, see also Accident. 
 Prejudicial Instruction as to. see Appeal and 
 
 Error. 1020. 1021. 
 Carrier's Liability for Loss of Baggage by, 
 
 see Carriers. 677. 678. 687, 688. 
 Carrier's Liability for Loss of. or Injury to, 
 
 Freight bv, sec Carriers, 771, 776. 827- 
 
 829. 
 As (; round for Nonperfonyanee of Contract, 
 
 see Contracts. IV. b. 2: Sale. 117. 118. 
 Injury by Electricity During Thunder Storm, 
 
 see Electricity.* 22. 44, 47-49: Trial, 470, 
 
 472. 473. 475,' 479. 
 
 Presumption as to. see Evidence, 486. 
 Necessity of Pleading see Pleading, 479. 
 As Proximate Cause, see Proximate Cause, 
 
 II. 
 
 Question for Jury as to, see Trial, 289. 
 Restoring to Old Channel Water Diverted by, 
 
 M-C Waters. 275, 276. 
 Impossibility of Performance of Condition 
 
 Subsequent by, see Wills. 302. 
 
 1. To excuse nonperformance of a contract 
 on the ground of an act of God there must 
 be no mixture of negligence or want of dili- 
 gence, judgment, or skill on the part of the 
 
 promisor. Smith v. North American Transp. 
 & T. Co. 20 Wash. 580, 56 Pac. 372, 44: 557 
 
 2. A loss or injury is due to the act of 
 God where it is occasioned exclusively by 
 natural causes such as could not be pre- 
 vented by human care, skill, and foresight. 
 Wald v. Pittsburg, C. C. & St. L. R. Co. 162 
 111. 545, 44 N. E. 888, 35: 356 
 
 3. Nothing less than such a fortuitous 
 gathering of circumstances as prevents the 
 performance of a duty, and such as could 
 not have been foreseen by the exercise of 
 reasonable prudence, or overcome by the 
 exercise of reasonable care and diligence, 
 constitutes an act of God which will excuse 
 the discharge of a duty. Southern P. Co. v. 
 Schoer, 52 C. C. A. 268. 114 Fed. 466, 
 
 57: 707 
 Fire of unknown origin. 
 
 4. The burning of a hotel cannot be at- 
 tributed to an irresistible superhuman cause, 
 where the origin of the fire is not shown ex- 
 cept that it broke out in a room containing 
 nothing but batteries which supplied the 
 place with electricity. Fay v. Pacific Im- 
 prov. Co. 93 Cal. 253* 26 Pac. 1099, 16: 188 
 Wind. 
 
 5. An injury is not attributable to an act 
 of God, but to neglect, where it is caused by 
 the fall of a sign in a wind such as might 
 be expected in the regular course of the sea- 
 sons. St. Louis, I M. & S. R. Co. v. Hopkins, 
 54 Ark. 209, 15 S. W. 610, 12: 189 
 Flood. 
 
 Presumption of Negligence in Case of, see 
 
 Evidence, 486. 
 See also infra. Editorial Note. 
 
 6. A flood which no human power could 
 stay and no foresight or prudence anticipate 
 is an act of God Which will relieve a carrier 
 who is free from negligence from liability 
 for damage by the flood to goods in his 
 custody. Smith v. Western R. of Ala. 91 
 Ala. 455, 8 So. 754.. 11: 619 
 
 7. An unprecedented flood, by reason of 
 which the baggage of a passenger is swept 
 away, is an act of God. Wald v. Pittsbuni, 
 C. C. & St. L. R. Co. 162 111. 545, 44 N. E. 
 888, 35: 356 
 
 8. Tne Johnstown flood of 1889. which was 
 of such extraordinary character that a party 
 was not bound to anticipate or provide 
 against it. and which came with such sud- 
 denness and power that escape from it was 
 impossible, was an inevitable accident or act 
 of God in respect to the loss of baggage on 
 a railroad train, where utmost care was ex- 
 ercised by the agents and employees of the 
 carrier to escape the dangers of which they 
 had knowledge, or reasonable ground to ap- 
 prehend. Long v. Pennsylvania R. Co. 147 
 Pa. 343, 23 Atl. 459, 14: 741 
 
 9. The loss of whisky on a train wrecked 
 by a flood cannot be attributed to an in- 
 evitable accident, so as to relieve the car- 
 rier from liability, where the whisky was 
 not destroyed by the flood, but part of it was 
 stolen without any attempt of the trainmen 
 to prevent it. and the remainder destroyed 
 by a volunteer guard of citizens in order to 
 prevent it from falling into the hands of 
 the dangerous class of men who were deter-
 
 ACTRESS ADMIRALTY, I. 
 
 .mined to capture it. Lang v. Pennsylvania 
 ft. Co. 154 Pa. 342, 26 Atl. 370, 20: 360 
 
 10. An extraordinary and unprecedented 
 storm. Hood, or other unavoidable casualty 
 caused by the hidden forces of nature, un- 
 known to common experience, and which 
 -could not have been reasonably anticipated 
 by that degree of engineering skill and ex- 
 perience required in the prudent construc- 
 tion of a railroad, must be regarded as an 
 unavoidable accident, or act of God, which 
 will not. by causing a washout of a railroad 
 culvert, make the railroad company liable 
 for the damages. Libby v. .Maine C. R. Co. 
 85 Me. 34, 26 Atl. 943, 20: 812 
 
 11. An extraordinary, unprecedented storm 
 which came suddenly and lasted about two 
 hours, causing the washout of a railroad cul- 
 vort which was insufficient to carry off one 
 third of the water which fell, although it 
 had proved sufficient for more than forty 
 yi'iirs. is to be regarded as an act of God. 
 
 Id. 
 
 12. Overflow of water obstructed by a 
 dam across an abandoned river bed which 
 was lawful when built is to be laid to the 
 account of Providence, and not to the hand 
 of man, if it would not have happened ex- 
 cept for the filling up of the new channel of 
 the river by natural causes. Payne v. Kan- 
 sas City. St. J. & C. B. R. Co. 112 'Mo. 6, 20 
 S. \V. 322, 17: 628 
 
 Editorial Notes. 
 
 'What constitutes. 11: 615.* 
 Flood as. 11:615. 
 
 As affecting rights in watercourse. 30: 820. 
 As defense to carrier. 11: 615.* 
 Effect of, on carrier's contracts, law govern- 
 ing. 63: 531. 
 
 ACTRESS. 
 
 Inducing Breach of Contract by, see Master 
 and Servant, 50. 
 
 ACTUARY. 
 Powers of, see Corporations. 235. 
 
 ADDITIONAL SERVITUDE. 
 See Eminent Domain, IV., V. 19. 
 
 ADEMPTIC:?. 
 
 Parol Evidence as to. see Evidence, 1121. 
 See also Wills, III. 1; V. 29. 
 
 ADJOINING OWNER. 
 
 Injury to Property of, 
 Blasting, 6, 9, 14. 
 
 by Blasting, see 
 
 Boundaries Between, see Boundaries, II. 
 
 Discharge of Water from Roof, see Build- 
 ings, 41. 
 
 Injury to Lateral Support, see Lateral Sup- 
 port. 
 
 Rights in Party Wall, see Party Wall. 
 
 Right of Action for Erection of City Prison, 
 see Prison, 3. 
 
 See also Abutting Owner. 
 
 ADJOURNED TERM. 
 Of Court, see Courts, 312. 
 
 ADJOURNMENT. 
 
 See Continuance and Adjournment. 
 
 ADJUSTER. 
 
 Waiver or Estoppel by Acts of, see Insur- 
 ance, 788, 789, 874, 882-888. 
 
 ADJUSTMENT. 
 
 Of Claim on Insurance Policy, Conflict of 
 Laws as to, see Conflict of Laws, 78, 
 79. 
 
 ADMINISTRATION. 
 
 Of Decedent's Estate, see Executors and Ad- 
 ministrators. 
 
 < 
 
 ADMINISTRATOR AD LITEM. 
 See Trusts, 108. 
 
 -- 
 
 ADMIRALTY. 
 
 I. Jurisdiction. 
 II. Practice. 
 III. Editorial Notes. 
 
 Bond for Vessel, see Appeal and Error, 1267, 
 
 1268. 
 Application of Doctrine of Last Clear Chance 
 
 in Admiralty Case, see Negligence, 299. 
 Release of Sureties in, see Principal and 
 
 Surety, 30. 
 
 I. Jurisdiction. 
 
 Of State Courts on Bond to Stay Proceed- 
 ings, see Courts, 438, 439. 
 For Editorial Notes, see infra. III. 2.
 
 24 
 
 ADMIRALTY, II., III. 
 
 1. The United States courts as courts of 
 admiralty have jurisdiction of all cases of 
 admiralty cognizance when the thing or par- 
 ties are within the reach of their process, 
 without reference to the nationality of 
 either. The City of Carlisle, 14 Sawy. 179, 
 39 Fed. 807, 5: 52 
 
 2. Waters of a river which can be used by 
 vessels only for the transportation of per- 
 sons and property between different places 
 in the same state are not within the mari- 
 time jurisdiction of the United States. Com. 
 v. King, 150 Mass. 221, 22 N. E. 905, 5: 536 
 Injuries by vessel to bridge. 
 
 3. Admiralty has no jurisdiction of an in- 
 jury to a swing bridge turning on its center, 
 which rests upon a stone pier constructed 
 upon the bed of a river, caused by vessels 
 navigating the river. The Curtis, The Cam- 
 den, and The Welcome, 37 Fed. 705, 3: 711 
 
 4. A state statute creating a lien for all 
 injuries done by vessels to persons or prop- 
 erty cannot give jurisdiction in admiralty 
 for injuries the consummation and substance 
 of which are on the land. Id. 
 Contracts as to freight. 
 
 For Editorial Notes, see infra, III. 2. 
 
 5. Admiralty has jurisdiction of a libel 
 in personam for breach of a contract to fur- 
 nish freight to be carried by an ocean trans- 
 portation line at about a certain time, 
 without specifying the vessel. Baltimore 
 Steam Packet Co. v. Patterson, 45 C. C. A. 
 575, 106 Fed. 736, 66: 193 
 
 6. The admiralty and maritime jurisdic- 
 tion of the United States courts extends to 
 controversies arising out of contracts for the 
 shipment of merchandise upon the high seas 
 between ports of the same state. Oowden v. 
 Pacific Coast S. S. Co. 94 Cal. 470, 29 Pac. 
 873, 18: 221 
 Death. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 
 241. 
 See also infra, 12. 
 
 7. A state statute giving right of action 
 for death by negligence is applicable to a 
 death occurring on the waters of Lake Mich- 
 igan, more than three miles from the shore 
 of such state, and may be enforced in a Fed- 
 eral court of admiralty. Bigelow v. Nicker- 
 son, 34 U. S. App. 261, 17 C. C. A. 1, 70 Fed. 
 113, 30: 336 
 
 8. A court of admiralty has jurisdiction of 
 a suit by personal representatives of a pas- 
 senger killed by collision between vessels, 
 under a state statute giving a right of ac- 
 tion for death by negligence, as the tort is 
 maritime. The Willamette, 44 U. S. App. 
 26. 96. 70 Fed. 874, 72 Fed. 79, 18 C. C. A. 
 366. 373, 31 : 715 
 
 Bigelow v. Nickerson, 70 Fed. 113, 34 U. 
 S. App. 261, 17 C. C. A. 1, 30: 336 
 
 II. Practice. 
 
 On Appeal, see Appeal and Error, 126. 
 Apportionment of Damages in, see Damages, 
 669. 
 
 Effect of Instituting Proceedings to Limit 
 Liability, see Election of Remedies, 39. 
 
 9. An affidavit on behalf of respondents 
 cannot be considered on a hearing on an ex- 
 ception to a libel. Prince Steam Shipping 
 Co. v. Lehmann, 39 Fed. 704, 5: 464 
 
 10. The joinder of causes of suit not 
 enumerated in admiralty rules 12 to 20 in- 
 clusive is not governed thereby, but by rule 
 46; and where the facts in a case establish 
 a liability against the master and a lien on 
 the ship for the same claim, such liability 
 and lien may be enforced in one libel. The 
 City of Carlisle, 14 Sawy. 179, 39 Fed. 807, 
 
 5: 52 
 
 11. Recovery for personal injuries or death 
 due to collision cannot be had by libellants 
 intervening after the vessel has been re- 
 leased on stipulation under the original libel. 
 The Willamette, 44 U. S. App. 26, 96, 70 Fed. 
 874, 72 Fed. 79, 18 C. C. A. 366, 373, 
 
 31 -.715 
 
 12. By the general maritime law as ad- 
 ministered by the admiralty courts, no re- 
 covery can be had for a death by wrongful 
 act. Rundell v. Compagnie Generale Trans- 
 atlantique, 40 C. C. A. 625, 100 Fed. 655, 
 
 49: 92 
 
 III. Editorial Notes. 
 
 i. Generally. 
 
 Limit of liability on bond. 55: 395. 
 
 Conclusiveness of sentence of foreign court 
 
 of admiralty. 20: 668. 
 
 Imprisonment under orders of court in, as 
 imprisonment for debt. 
 34: 664. 
 State statute creating lien on vessel. 1: 
 
 505.* 
 
 Lien of decree in admiralty. 47 : 480. 
 2. Jurisdiction. 
 Generally. 5: 684.* 
 
 Admiralty jurisdiction of contracts. 66: 193. 
 Antiquity and original jurisdiction of 
 
 court. 66 : 193. 
 The acts of Richard II. and Henry IV. 
 
 66: 194. 
 The compromises of 1575 and 1632. 66: 
 
 195. 
 
 Jurisdiction which common-law courts 
 permitted admiralty to 
 exercise. 66: 196. 
 No jurisdiction of things done on 
 
 land. 66: 196. 
 
 Within body of county. 66: 198. 
 Application of above rules to par- 
 ticular contracts. 66: 198. 
 Exceptions to rules. 66: 201. 
 Jurisdiction of things done at sea. 
 
 66: 206. 
 
 Prohibition must be sought prompt- 
 ly. 66: 207. 
 Summarv of common-law view. 
 
 66: 207. 
 
 The English act of 1840. 66: 208. 
 The English act of 1861. 66: 209. 
 Admiralty jurisdiction in the United 
 States. 66: 211.
 
 ADMISSIONS ADVANCEMENTS. 
 
 25 
 
 On what founded. 66: 211. 
 Scope of jurisdiction. 66: 215. 
 Illustrations of exercise of juris- 
 diction. 66: 216. 
 Contracts for building and out- 
 fitting ships. 66: 216. 
 Charter parties and carriage 
 
 contracts. 66: 223. 
 Contracts for services in use or 
 operation of vessel. 66: 
 
 226. 
 Contracts of stevedores and 
 
 watchmen. 66: 229. 
 Contracts to assist vessel. 66: 
 
 232. 
 
 Bottomry, hypothecation, mort- 
 gage. 66: 233. 
 Insurance and average. 66: 
 
 234. 
 
 Partnership, trust, account- 
 ing. 66: 235. 
 Contracts leading to maritime 
 
 contract. 66: 236. 
 Other contracts. 66: 236. 
 Contracts between foreigners. 
 
 66: 238. 
 
 Effect of form of action. 66: 238. 
 Jurisdiction and powers of consul in prize 
 
 cases. 45: 495. 
 
 Jurisdiction and powers of consul as to dis- 
 abled vessels. 45: 495. 
 
 Jurisdiction and powers of consul with re- 
 spect to seamen. 45: 486, 
 488, 493. 
 
 ADMISSIONS. 
 
 In Agreed Statement of Facts, see Agreed 
 Case, 4. 
 
 Of Attorneys, see Attorneys, I. a. 
 
 On Application for Continuance. Effect of, 
 see Continuance and Adjournment, IV. 
 
 As to Invalidity of Statute, see Courts, 492. 
 
 Estoppel by, see Estoppel, III. e. 
 
 Oral Evidence of, see Evidence, 782. 
 
 As Evidence, see Evidence, IX. 
 
 Attempt to Bribe Witness as, see Evidence, 
 1906. 
 
 By Guardian of Minor, see Infants, 102. 
 
 By Pleading or Failure to Plead, see Plead- 
 ing, I. m. 
 
 By Demurrer, see Pleading, VII. e. 
 
 Of Counsel, see Trial, 39. 
 
 See also Stipulation. 
 
 ADOPTED STATUTE. 
 Construction of, see Statutes, II. c. 
 
 ADOPTION. 
 
 Of Constitution, see Constitutional Law, I. 
 
 a, 1. 
 Inheritance by or through Adopted Children, 
 
 see Descent and Distribution, I. d. 
 
 Collusiveness of Effect of Adoption in Oth- 
 er State, see Judgment 362-365. 
 
 Of Child, see Parent and Child, III. 
 
 Revocation of Will by, see Wills, 76-79. 
 
 Abatement of Legacies on Subsequent 
 Adoption, see Wills, 219. 
 
 ADULTERATION, 
 
 Of Milk, see Constitutional Law, 1064; 
 Food, 4. 
 
 ADULTERY. 
 
 As Justification for Assault by Husband, see 
 
 Assault and Battery, 34. 
 Of Indian, Jurisdiction of Offense, see 
 
 Courts, 453. 
 Solicitation to Commit, see Criminal Law, 
 
 44. 
 As Affecting Right to Claim Widow's Share, 
 
 see Descent and Distribution, 53. 
 As Ground for Divorce, see Divorce and 
 
 Separation, IV.; IX. 11. 
 As Defense in Divorce Suit, see Divorce and 
 
 Separation, 48-51; Pleading 541. 
 Condonation of, as Ground for Review of 
 
 Divorce Decree, see Review, 10. 
 As Affecting Alimony, see Divorce and Sepa- 
 ration, 88, 89. 
 Effect of Divorce for, on Wife's Property 
 
 Rights, see Divorce and Separation, 102. 
 As Affecting Dower Right, see Dower, 49-52. 
 Evidence of, see Evidence, 1596, 1918, 2284; 
 
 Witnesses, 192. 
 Reducing Degree of Homicide, see Homicide, 
 
 28. 
 As Defense to Crime of Abandoning Wife, 
 
 see Husband and Wife, 240. 
 Dismissal of School Superintendent for, see 
 
 Schools, 56. 
 
 A divorce after the finding of an indict- 
 ment for adultery is no bar to further pros- 
 ecution of the indictment, although the stat- 
 ute says that no prosecution for adultery 
 can be commenced but on the complaint of 
 the husband or wife, since, after proceedings 
 are once commenced, they may be carried on 
 without further action on the part of the 
 one who commenced them. State v. Russell, 
 90 Iowa, 569, 58 N. W. 915, 28: 195 
 
 Editorial Notes. 
 
 Solicitation to. 25: 438. 
 
 Injunction against enforcing contracts for 
 illicit intercourse. 48: 
 844. 
 
 Necessity of proof of marriage in prosecu- 
 tion for. 68: 44. 
 
 Insanity as affecting. 34: 162. 
 
 ADVANCEMENTS. 
 
 Parol Evidence as to, see Evidence, 
 1151. 1209. 
 
 1121,
 
 ADVANCES ADVERSE POSSESSION, I. a. 
 
 Evidence to Rebut Presumption of, see Evi- 
 dence, 2014. 
 
 Interest on. see Interest, 52-54. 
 
 Effect of Release by Part of Children Re- 
 ceiving, see Release, 7. 
 
 Enforcement of Contract for, see Specific 
 Performance, 31, 52. 
 
 To Adeem Legacy, see Wills, 447. 
 
 1. The net amount received on life-insur- 
 ance policies after the death of the insured 
 is the amount which can be charged as an 
 advancement to the child of the insured, 
 who receives it. Cazassa v. Cazassa. 92 
 Tenn. 573, 22 S. W. 560, 20: 178 
 
 2. Insurance taken out by a father in the 
 name of a child, or in his own name and 
 transferred to the child, constitutes an ad- 
 vancement for which the child must account 
 in the settlement of the father's estate. Id. 
 
 3. A conveyance to minors at the request 
 of their father, who purchases the property, 
 constitutes an advancement, although he re- 
 mains in possession until his death, and 
 erects a brick house on the land. Rhea v. 
 Bagley. 63 Ark. 374. 38 S. W. 1039, 36: 86 
 
 Editorial Notes. 
 
 12: 
 
 Doctrine of advancements to heirs. 
 566.* 
 
 Distinction between advancement and gift. 
 12: 567.* 
 
 Effect of, to create debt. 12: 569.* 
 
 Effect of, as ademption of legacy. 1: 203;* 
 12: 569.* 
 
 Interest on, or to equalize". 14: 716. 
 
 Priority as between mortgages for advances 
 and mechanics' liens. 14: 
 307. 
 
 Admissibility of parol evidence to show an 
 advancement as considera- 
 tion for a deed. 20: 108. 
 
 Right of one receiving advancement and ex- 
 ecuting release of interest 
 in estate to share in after- 
 acquired property. 65: 
 578. 
 
 Effect of release on descendants of de- 
 ceased releasor. 65: 582. 
 Release of interest of married woman 
 or infant. 65: 583. 
 
 Maritime liens for. 70: 367, 414, 439. 
 
 ADVANCES. 
 
 Interest on. see Interest. I. b. 
 Mortgage to Secure, see Mortgage, 26, 33, 
 65, 96. 
 
 ADVERSE CLAIM. 
 
 Action to Determine, as Suit in Kem, see 
 Judgment, 31. 
 
 1. An action to determine an adverse 
 claim, provided by Id. Rev. Stat. 4928, is 
 nn action at law. triable in the ordinary 
 r-ouHs of law by a jury, unless a jury be 
 
 waived. Ada County v. Bullen Bridge Co. 
 5 Idaho, 79, 48 Pac/818, 36: 367 
 
 2. A county can compel the holders of 
 its warrants to wage their claims upon 
 them, or forever abandom them, under Id. 
 Rev. Stat. 4928, giving a right of action 
 to determine an adverse claim made by an- 
 other party for money or property upon an 
 alleged obligation. Id. 
 
 ADVERSE POSSESSION. 
 
 I. What Constitutes. 
 
 a. In General. 
 
 b. On Boundary. 
 
 c. Vendor and Purchaser. 
 
 d. Landlord and Tenant. 
 
 e. As to Dower; Mortgage or Trust. 
 
 f. As to Tenants in Common and by 
 
 Entirety. 
 
 g. As to Remaindermen or Reversion- 
 
 ers. 
 h. As to Public; Highway, Canal, or 
 
 Tide Land, 
 i. Color of Title. 
 j. Claim; Hostility, 
 k. Extent and Kind of Possession. 
 II. Effect. 
 
 III. Who may Hold Adversely. 
 
 IV. Editorial' Notes. 
 
 Of Land Conveyed, Effect on Validity of 
 
 Conveyance, see Champerty, III. 
 Creating Cloud on Title, see Cloud on Title, 
 
 13. 14, 21. 
 Easement bv Prescription, see Easements, 
 
 II. b. 
 
 Estoppel to Set up, see Estoppel, 173, 289. 
 Presumption as to Knowledge of, see Evi- 
 dence, 304. 
 
 Admissions against, see Evidence, 1457. 
 Evidence as to, see Evidence. 2157-2159. 
 Applicability of Torrens Law to Adverse 
 
 Claimant, see .Judgment. 265. 
 As to Limitation of Actions, see Limitation 
 
 of Actions. 
 Notice of Rights from Possession of Land 
 
 Generally, see Notice, II. b. 
 Acquiring Right to Maintain Nuisance by 
 
 Prescription; see Nuisances, 150-155. 
 Who may Maintain Action to Protect 
 
 Rights Acquired by, see Parties, 106. 
 As Affecting Partition, see Partition, 10-13. 
 Replevin by Adverse Possessor for Timber 
 
 Severed, see Replevin, 23. 
 Finding as to, see Trial, 881. 
 To Give Title to Vendor, see Vendor and 
 
 Purchaser. 45. 
 Prescriptive Right in Waters of Great Ponds, 
 
 see Waters. 65-67. 
 Of Water, see Waters, II. k. 
 
 I. What Constitutes, 
 a. In General. 
 
 See also infra, 77. 
 
 1. A common source of title will not pre-
 
 ADVERSE POSSESSION, I. b e. 
 
 27 
 
 vent one party in possession from claiming 
 adversely to the other, where, although he 
 claims under a deed from the same person, 
 each insists than the deed of the other is 
 invalid and passes no title. Smith v. Osage, 
 80 Iowa, 84. 45 N. W. 404. 8: 633 
 
 2. In determining the truth of an allega- 
 tion that the person claiming real estate 
 by adverse possession obtained by fraud the 
 title under color of which he took possession, 
 the fact may be Considered that the one 
 claiming to be the true owner made no 
 -claim to the land, directly or indirectly, for 
 a period of sixteen years, during all of 
 which time the adverse claimant paid the 
 taxes thereon. Cramer v. Clow, 81 Iowa, 
 255. 47 N. W. 59, 9: 772 
 
 b. On Boundary. 
 
 As to Boundaries Generally, see Bounda- 
 ries. 
 
 Evidence as to, see Evidence, 2159. 
 See also infra, 12.. 81. 
 For Editorial Notes, see infra, IV. 2. 
 
 3. Possession or intrusion upon land by 
 ini>t;ike in consequence of confusion or un- 
 certainty as to the true boundary, without 
 .any intention to claim title beyond one's 
 lawful boundary, is not adverse. King v. 
 Brigham. 23 Or*. 262, 31 Pac. 601, 18: 361 
 
 4. Occupancy of land up to a certain fence 
 believing it to be the true line, but with no 
 intention to claim title beyond the true 
 boundary, is not an adverse possession be- 
 vond the true line. Preble v. Maine C. R. 
 Co. 85 Me. 260, 27 Atl. 149, 21: 829 
 
 5. Possession to a fence beyond the true 
 "boundary, in ignorance of the true line, may 
 constitute an adverse possession, if there is 
 an intention to claim title and to acquire it, 
 if necessary, by possession up to the fence. 
 
 Id. 
 
 6. Where a purchaser of land by mistake 
 incloses a parcel contiguous to land pur- 
 chased, believing that he is putting his fence 
 on the true boundary, and holds such parcel 
 as his own for seven years, his possession is 
 adverse as against the true owner. Erck v. 
 Church, 87 Tenn. 575, 11 S. W. 794, 4: 641 
 Railroad right of way. 
 
 See also infra, 10, 39, 40, 67. 
 
 7. Where a deed of a railroad right of way 
 msisting of a strip through the grantor's 
 farm, 100 feet in width on each side of the 
 track, required the railroad to maintain 
 fences dividing the right of way from the 
 adjoining land, and it inclosed a strip 100 
 feet in width in place of the 200 conveyed, 
 the occupation, for twenty years, by the 
 grantor and his assigns to the fences, claim- 
 ing them as the boundary line established 
 by compromise, will bar an action of eject- 
 ment by the railroad company against re- 
 mote grantees, although the first conveyance 
 of the farm was subject to the easement 
 conveyed to the railroad. Illinois Central 
 K. Co. v. Houghton, 126 111. 233, 18 N. E. 
 SOI, 1:213 
 
 c. Vendor and Purchaser. 
 
 See also supra, 7, infra, 15, 16, 20, 25-29. 
 
 8. The possession of real estate by one 
 who enters under an agreement to purchase 
 from the owner, but without paying the con- 
 sideration price, cannot be adverse until he 
 repudiates the seller's title and asserts his 
 own title to the property. Spratt v. Liv- 
 ingston, 32 Fla. 507, 14 So. 160, 22: 453 
 
 9. A grantee may perfect his title to land 
 conveyed to him by deed by the attorney in 
 fact of one of two joint owners, by being in 
 exclusive possession of and openly asserting 
 title to the whole tract for ten years, pro- 
 viding the heirs or vendees of the other joint 
 owner assert no claim thereto within that 
 time. Harvey v. Briggs, *68 Miss. 60, 8 So. 
 274, 10: 62 
 
 10. A deed to a railroad company of a 
 strip through a farm for a right of way 
 confers a right of possession upon the com- 
 pany wholly inconsistent with subsequent 
 possession by the grantor for the purpose of 
 grazing or agriculture; and therefore such 
 possession by the grantor and his assigns 
 under claim of right is adverse, and, if con- 
 tinued for the requisite time, will defeat the 
 title of the railroad. Illinois C. R. Co. v. 
 Houghton, 126 111. 233, 18 N. E. 301, 1: 213 
 
 d. Landlord and Tenant. 
 
 Repeal of Statute as to, see Statutes, 572. 
 
 See also infra, 73. 
 
 For Editorial Notes, see infra, IV. 3. 
 
 11. An agent's occupancy of a house on 
 his principal's property as a part merely of 
 the contract for service does not establish 
 the relation of tenant and landlord between 
 him and the principal, so as to preclude him 
 from acquiring an adverse title to the prop- 
 erty. Davis v. Williams, 130 Ala. 530, 30 
 So." 488, 54: 749 
 
 12. The possession of a tenant beyond the 
 boundaries of the land contained in the lease 
 even if he believes that he is occupying only 
 the land demised, will not be the possession 
 of the landlord, if the latter never had pos- 
 session of the land or claimed it. Holmes v. 
 Turners Falls Lumber Co. 150 Mass. 535. 
 23 N. E. 305, 6: 283 
 
 13. A tenant who has never attempted to 
 surrender his rights during the existence of 
 the term, or committed any act which au- 
 thorized a re-entry thereunder, can acquire 
 no righ'ts during that time by adverse pos- 
 session. Bedlow v. New York Floating Dry 
 Dock Co. 112 N. Y. 263, 19 N. E. 800, 2: 629 
 
 e. As to Dower; Mortgage or Trust. 
 
 Dower. 
 
 14. A widow's dower is not barred by ad- 
 verse possession during her husband's life- 
 time, though for a period sufficient to defeat 
 his title. Williams v. Williams, 89 Ky. 381, 
 12 S. W. 760, 6: 637 
 
 15. There is no adverse holding by the 
 grantee of land during the life of the grant- 
 or, against the dower right of the grantor's
 
 ADVERSE POSSESSION, I. f, g. 
 
 wife, who did not join in the conveyance; 
 but it is otherwise in tne case of a disseisor 
 who has acquired title by adverse possession 
 as against- the husband during his lifetime. 
 Winters v. De Turk, 133 Pa. 359, 19 Atl. 
 354, 7: 658 
 
 Mortgage. 
 
 16. Neither the mortgagor nor his grantee 
 holds adversely to the mortgagee until he 
 has distinctly disclaimed holding under him, 
 and asserted title in himself. Holmes v. 
 Turners Falls Lumber Co. 150 Mass. 535, 23 
 N. E. 305, 6: 283 
 
 17. Purchase of tax titles to land by the 
 wife of a mortgagor in possession, which 
 have arisen under taxes assessed subse- 
 quently to the execution of the mortgage, 
 which was to secure payment of purchase 
 money for the land, will not create a title 
 in the mortgagor or his wife which is ad- 
 verse to the mortgagee. McKisson v. Dav- 
 enport, 83 Mich. 211, 47 N. W. 100, 10: 507 
 
 18. The possession by a wife of land under 
 a parol gift from her husband is not adverse 
 to his mortgagee while the husband resides 
 with her upon the land. Gafford v. Strouse, 
 89 Ala. 283, 7 So. 248, 7: 568 
 Trust. 
 
 See also infra, 30, 35. 
 
 19. When possession of trust property is 
 taken by the tmstee, it is the possession of 
 the cestui que trust, whether the trust be 
 express or implied, and cannot be adverse 
 until the trust is openly disavowed or de- 
 nied, and this fact is brought home to the 
 knowledge of the cestui que trust. Reynolds 
 v. Sumner, 126 111. 58, 18 N. E. 334, 1: 327 
 
 20. Possession of land by a grantee as 
 trustee for the use and benefit of his wife, 
 so long as it continues to be held under the 
 deed, is not adverse to her, even after he has 
 obtained a divorce from her. Meacham v. 
 Bunting, 156 111. 586, 41 N. E. 175, 28: 618 
 
 f. As to Tenants in Common and by En- 
 tirety. 
 
 See also infra, 82. 
 
 For Editorial Notes, see infra, IV. 3. 
 
 21. The possession of one tenant in com- 
 mon, in the absence of an ouster, will inure 
 to the benefit of his cotenant. Morrill v. 
 Morrill, 20 Or. 96, 25 Pac. 362, 11: 155 
 
 2?. A judgment in favor of one tenant in 
 common against, an adverse claimant whom 
 he sues to recover possession of the entire 
 land makes his possession thus acquired re- 
 late back to the beginning of the action and 
 inure to the benefit of his cotenants, as 
 against whom no adverse possession can be 
 acquired during the pendency of the action. 
 Newman v. Bank of California, 80 Cal. 368, 
 22 Pac. 261, 5: 467 
 
 23. The mere receipt of rents and payment 
 of taxes by a tenant in common is not a 
 sufficient claim of adverse possession as 
 against his cotenant. Sontag v. Bigelow, 
 142 111. 143, 31 N. E. 674, 16: 326 
 
 24. Entering into possession of a portion 
 of a cemetery lot which is inclosed by one 
 claiming to be the owner of such portion, 
 
 and erecting a substantial iron fence, so as 
 to divide the part so claimed from the re- 
 maining part of the lot, is, as to that pe- 
 culiar character of property, an act showing 
 adverse possession, of a public nature, to- 
 tally irreconcilable with cotenancy, and 
 amounts to an actual ouster of others 
 claiming to be tenants in common with the 
 possessor. Roumillot v. Gardner, 113 Ga. 
 60, 38 S. E. 362, 53: 729 
 
 By grantee of cotenant. 
 
 Running of Limitations in Favor of Gran- 
 tee, see Limitation of Actions, 134. 
 
 25. The purchase of property from one of 
 several cotenants, or from a life tenant, fol- 
 lowed by the taking of possession and as- 
 sertion of exclusive title to the property, is 
 sufficient to set in motion the statute of 
 limitations against the claims of the other 
 cotenants or the remainderman, where the 
 statutes enable remaindermen to maintain 
 actions to settle disputed questions of title. 
 Crawford v. Meis, 123 Iowa, 610, 99 N. W. 
 186, 66: 154 
 
 26. Possession by a purchaser under an ex- 
 ecutory contract of sale, made by the hus- 
 band alone, of land owned in joint tenancy 
 by husband and wife, is not adverse to the 
 wife. McNeeley v. South Penn Oil Co. 52 
 W. Va. 616, 44 S. E. 508, 62: 502 
 
 27. Possession under an execution sale 
 against the husband, of land formerly held 
 by entireties by a couple who were divorced 
 prior to the sale, is sufficient, if properly 
 maintained, to bar all rights of the wife 
 thereto, even before the husband's death. 
 Hopson v. Fowlkes, 92 Tenn. 697, 23 S. W. 
 55, 23: 805 
 
 28. Until the close of the husband's curt- 
 esy estate, possession of land owned by 
 husband and wife in joint tenancy, by a pur- 
 chaser under an executory contract by the 
 husband alone, followed by a deed at the 
 wife's death, purporting to convey the fee 
 to the whole tract, is not adverse to the 
 wife's heirs, to whom, by statute, the wife's 
 moiety descends, subject to the curtesy es- 
 tate. McNeeley v. South Penn Oil Co. 52 
 W. Va. 616, 44 S. E. 508. 62: 562 
 
 29. A purchase by a public corporation or- 
 ganized in perpetuity, of lands to be de- 
 voted to the burial of the dead, followed by 
 inclosing, improving, and laying out the 
 land in such manner and devoting it to such 
 use as is utterly inconsistent with every 
 other claim of title, is a termination of the 
 joint agency of the heirs to whom the 
 lands descended, and constitutes such an 
 ouster as will give title by adverse posses- 
 sion after the expiration of the statutory 
 period. Baker v. Oakwood, 123 N. Y. 16, 
 25 N. E. 312, 10: 387 
 
 g. As to Remaindermen or Reversioners. 
 
 See also supra, 25; infra, 80. 
 
 For Editorial Notes, see infra, IV. 3. 
 
 30. Adverse possession begins against the 
 reversioner immediately upon a reversion of 
 title by abandonment and prohibition of the 
 use for which alone the land was granted.
 
 ADVERSE POSSESSION, I. h. 
 
 29 
 
 whether the legal title has passed to the re- 
 versioner or still remains in a trustee, dis- 
 charged of the public use. Newark v. Wat- 
 son (N. J. Err. & App.) 56 N. J. L. 667, 29 
 Atl. 487, 24: 843 
 
 By life tenant. 
 
 31. Possession of land by a tenant for life 
 cannot be adverse to the remainderman or 
 reversioner. Meacham v. Bunting, 156 111. 
 586, 41 N. E. 175, 28: 618 
 
 32. The possession of a life tenant, after 
 purchasing at an administrator's sale and re- 
 ceiving a deed of it, if not technically ad- 
 verse to the heirs, is of an adversary char- 
 acter; and such possession, continued by 
 such life tenant and her grantees for twen- 
 ty years, constitutes a title which is a suffi- 
 cient defense to an action of ejectment. 
 Balkham v. Woodstock Iron Co. 43 Fed. 648. 
 
 11: 230 
 
 33. The fact that a life tenant and his 
 immediate grantees during the existence of 
 the life estate laid out and platted a town 
 upon the land does not show a possession 
 adverse or hostile to those entitled to the 
 possession at the termination of his life es- 
 tate. Orthwein v. Thomas, 127 111. 554, 21 
 N. E. 430, 4: 434 
 By third person. 
 
 34. The statute of limitations does not 
 run during the life of a life tenant, against 
 persons entitled to the land after suca life 
 tenant's death. Haskett v. Maxey, 134 Ind. 
 182, 33 N. E. 358, 19: 379 
 
 35. A trustee is in such privity and so 
 represents contingent remaindermen that ti- 
 tle by adverse possession may be acquired 
 against the latter during the life of the life 
 tenant. Gindrat v. Western R. of Ala, 96 
 Ala. 162, 11 So. 372; 19: 839 
 
 36. Where the estate of a life tenant has 
 been absorbed by a third person through an 
 adverse possession of the land, a deed of the 
 life estate by the life tenant to the remain- 
 derman will be ineffective to pass any title 
 to the latter which can merge in the remain- 
 der so as to enable the remainderman to 
 bring suit to recover the land before the 
 death of the life tenant. Baker v. Oakwood, 
 123 N. Y. 16, 25 N. E. 312, 10: 387 
 
 37. Possession for seven years by one 
 claiming under a deed purporting to con- 
 vey the interest of a remainderman, and 
 sufficient to constitute color of title, coupled 
 with payment of taxes for the same period, 
 will bar the estate in remainder, notwith- 
 standing the existence of the outstanding 
 life estate, where the remainderman is un- 
 der no disability and could have paid the 
 taxes. Nelson v. Davidson, 160 111. 254, 43 
 N. E. 361, 31: 325 
 
 h. At to Public; Highway, Canal, or Tide 
 Land. 
 
 38. Prescription does not run against a 
 municipal corporation in regard to land held 
 for the benefit of the public. Norrell v. 
 Augusta R. & E. Co. 116 Ga. 313, 42 S. E. 
 466, 59: 101 
 
 Railroad right of way. 
 
 See also supra, 7; infra, 67, 68; Limitation 
 
 of Actions, 73. 
 For Editorial Notes, see infra, IV. 4. 
 
 39. A railroad right of way is of such a 
 public nature that title thereto cannot be 
 acquired against the company by prescrip- 
 tion or the running of the statute of limita- 
 tions. Southern P. Co. v. Hyatt, 132 Cal. 
 240, 64 Pac. 272, 54: 522 
 
 40. A railroad company cannot set up the 
 rights of the government to defeat a title 
 acquired through adverse possession by a 
 third person to a portion of its right of way. 
 Northern P. R. Co. v. Ely, 25 Wash. 384, 
 65 Pac. 555, 54: 526 
 Passway. 
 
 41. The presumption that public use of a 
 passway through uninclosed woodland is by 
 permission of the owner, and not adverse 
 to his title, is not conclusive. Riley v. Buch- 
 anan, 116 Ky. 625, 76 S. W. 527, . 63: 642 
 Highways. 
 
 Establishment -of Highway by Prescription 
 
 or User, see Highways, 4-9, 18, 21. 
 See also infra, 68. 
 For Editorial Notes, see infra, IV. 3. 
 
 42. Actual, visible, exclusive and uninter- 
 rupted possession of a portion of a street 
 in a city under a claim ef right for the 
 statutory period vests an absolute title in 
 the occupant. Meyer v. Graham, 33 Neb. 
 566, 50 N. W. 763, 18: 146 
 
 43. Adverse possession of a street may be 
 obtained in West Virginia, where the stat- 
 ute expressly declares that every statute of 
 limitations, unless otherwise expressly pro- 
 vided, shall apply to the state. Teass v. St. 
 Albans, 38 W. Va. 1, 17 S. E. 400, 19: 802 
 
 44. Adverse possession cannot be claimed, 
 as against a town, of land within the boun- 
 daries of a street as shown on a plat filed 
 in the clerk's office under the provisions of 
 W. Va. Laws 1845-46, p. 139, incorporating 
 the town, which declares that the piat shall 
 be conclusive evidence of the street boun- 
 daries in all future suits and contests that 
 may arise concerning them. McClellan v. 
 Weston, 49 W. Va. 669, 39 S. E. 670, 
 
 55: 898 
 
 45. Adverse possession of part of a strip 
 of land dedicated as a city street and ac- 
 cepted by the authorities as such cannot rip- 
 en into title by prescription, although such 
 possession is under a deed from the dedica- 
 tor subsequent to the deed to the municipal- 
 it)', and the part so occupied has never been 
 opened and used by the city as a street. 
 Norrell v. Augusta R. & E. Co. 116 Ga. 313, 
 42 S. E. 466, 59: 101 
 
 46. The rights of the public in a street 
 are not lost by acquiescence in its obstruc- 
 tion or private use by a citizen, or by 
 laches in resorting to legal remedies, or by 
 the statute of limitations, or prescription. 
 \\ebb v. Demopolis, 95 Ala. 116, 13 So. 289, 
 
 21: 62 
 
 47. Possession of a strip marked on a map 
 as a street, by grantees of lots under deeds 
 referring to it as such, one of whom fences 
 in part of the strip, plants, and adorns it, 
 while another owns a house upon it, cannot
 
 30 
 
 ADVERSE POSSESSION, I. i, j. 
 
 be regarded as adverse while they them- 
 selves have recognized the easement within 
 twenty years by conveyances referring to 
 the strip as a street, and the grantees of 
 other lots have not needed or sought to use 
 their easement in it. Re Olean, 135 N. Y. 
 341, 32 N. E. 9, 17: 640 
 
 48. Me. Rev. Stat. chap. 18, 95, in rela- 
 tion to adverse possession by buildings and 
 fences fronting upon ways and streets, has 
 no application where the act complained of 
 consists in maintaining a dam whereby the 
 water is caused to overflow a highway and 
 injure the same. Charlotte v. Pembroke 
 Iron Works, 82 Me. 391, 19 Atl. 902, 8: 828 
 Canals. 
 
 49. Title by adverse possession may be 
 obtained to land which formed part of the 
 bed of a canal, the public uses of which have, 
 with the acquiescence of the state, been 
 abandoned. After such abandonment the 
 canal ceases to be a highway, and its ob- 
 struction does not constitute a nuisance so 
 as to be an indictable offense, within the 
 rule that no prescriptive right can arise 
 therefrom. Collett v. Vanderburgh County, 
 119 Ind. 27, 21 N..E. 329, 4:321 
 
 50. Filling up a canal, thereby obliterat- 
 ing every trace of the public highway, with 
 the intention of asserting ownership to the 
 land previously occupied thereby, and con- 
 tinuing in visible, exclusive possession under 
 such claim, exercising those acts of owner- 
 ship usually practised by owners of such 
 land, and using it for purposes to which it 
 is adapted, without asking permission and 
 in disregard of all conflicting claims, are 
 sufficient to make the possession adverse. 
 
 Id. 
 Tide Lands. 
 
 51. Title to property below* high-water 
 mark on a tidal river, held by a municipality 
 in trust for the public, cannot be acquired 
 by an individual bv adverse possession. Mo- 
 bile Transp. Co. v" Mobile, 128 Ala. 335. 30 
 So. 645, 64: 333 
 
 52. Adverse possession cannot be held of 
 Innd covered by water within the ebb and 
 flow of the tide, at least where the law 
 prohibits the grant of land covered by nav- 
 igable water. Sellers v. Sellers, 77 Md. 148, 
 2<> Atl. 188, 20: 94 
 
 i. Color of Title. 
 
 See also supra. 37. 
 
 For Editorial Notes, see infra, IV, 1. 
 
 53. Title by prescription without any pre- 
 tense of paper title may be gained by wrong- 
 ful entry upon land under a claim of right 
 inconsistent with the title of the true own- 
 er, with continued possession and exercise of 
 acts of ownership hostile to the rights of the 
 owner. Swan v. Munch, 65 Minn. 500. 67 
 N. W. 1022, 35: 743 
 Parol gift. 
 
 For Editorial Notes, see infra, IV. 3. 
 
 54. Possession of land under a parol prom- 
 ise of a gift may be the foundation of ad- 
 verse possession by the donee. Schafer v. 
 Hanser, 111 Mich. 622, 70 N. W. 136. 
 
 35: 835 
 
 Parol partition. 
 See also infra, 57. 
 
 55. A parol partition does not constitute 
 color of title for the purpose of adverse pos- 
 session against the cotenant. Sontag v. 
 Bigelow, 142 111. 143, 31 N. E. 674, 16: 326- 
 Contract for sale. 
 
 56. An executory contract for the sale of 
 land, stipulating for future conveyance of 
 legal title, the purchase money payable in 
 future, is color of title under the statute of 
 limitations as to hostile claimants, since 
 such a contract is recognized at law, even as 
 against the vendor, to sustain the vendee's 
 possession by W. Va. Code 1899, chap. 90, 
 20. providing that a vendor, or any person 
 claiming under him, shall not at law recover 
 against a vendee, or those claiming under 
 him. lands sold by the vendor. to the vendee. 
 when there is a writing stating the pur- 
 chase, and the terms thereof, signed by th^ 
 vendor or his agent, and chap. 98, cl. ii. 
 saying that no one shall without a writing 
 be chargeable upon any contract for sale of 
 real estate for more than a year. McNVeley 
 v. South Penn Oil Co. 52 W. Va. 616. 44 S. 
 E. 508, 62 : 56-> 
 Deeds. 
 
 57. A master's deed in partition pro^eed- 
 ings is sufficient color of title upon which to- 
 found a claim to adverse possession, not- 
 withstanding the proceedings which led to 
 the sale did not conform to the law. Sontag 
 v. Bigelow, 142 111. 143, 31 N. E. 674, 
 
 16: 32S 
 
 58. Deeds tending to show title in plain- 
 tiff, together with the possession, are suffi- 
 cient color of title to support an action to- 
 try title to real estate. Hey ward v. Farm- 
 ers' Min. Co. 42 S. C. 138, 19 S. E. 963. 2O 
 S. E. 64, 28: 42 
 
 59. A deed to land may constitute suin- 
 cient color of title to found a claim by ad- 
 verse possession, although it is not properly 
 acknowledged. Cramer v. Clow. 81 Iowa. 
 255, 47 N. W. 59, 9: 772 
 
 60. A deed for "a part of the west halt"' of 
 a quarter section of land, "containing one- 
 acre more or less," without specifying t he- 
 part of the tract out of which it is taken, 
 is void for uncertainty, and will not consti- 
 tute color of title on which to found a title- 
 under the statute of limitations. Hanna 
 v. Palmer. 194 III. 41, 61 N. E. 1051. 56: 93 
 
 61. A deed purporting on its face to con- 
 vey the title of land to the grantee is suffi- 
 cient to constitute claim and color of title- 
 in the grantee, although the title, when 
 traced back to its source, is not apparently 
 legal and valid. Nelson v. Davidson. 160 
 Til. 254. 43 N. E. 361, 31 : 325* 
 
 62. A conveyance of a pew, sufficient in? 
 every respect to convey real estate except in 
 the want of seals or words calling for seals, 
 is a basis of adverse possession, if the gran- 
 tees occupied under it. believing their title- 
 good. Aylward v. O'Brien, 160 Mass. 118. 
 35 N. E. 313, 22: 20G. 
 
 j. Claim; Hostility. 
 
 See also supra, 23, 29, 41. 42. 47. 
 
 For Editorial Notes, see infra, IV. 1.
 
 ADVERSE POSSESSION, I. k, II. 
 
 3! 
 
 63. Actual hostile exclusive occupancy of 
 land without any presumption or claim of 
 right is sufficient to ripen into title under 
 the statute of limitations. Illinois Steel 
 Co. v. Budzisz, 161 Wis. 499, 81 N. W. 1027, 
 
 48: 830 
 
 64. A claim of title, or specific intent to 
 make the land his own, is not necessary to 
 perfect the title of one in adverse posses- 
 sion of real estate for the statutory period. 
 Carney v. Hennessey, 74 Conn. 107, 49 
 Atl. 910, 53: 699 
 
 65. To contsitute adverse possession suffi- 
 cient to defeat the legal title, the possession 
 must be actual, visible, exclusive, and hos- 
 tile in its inception, and so continued for the 
 period of twenty years. It need not be 
 under a rightful claim, or under a muni- 
 ment of title, nor need there be oral decla- 
 ration of a claim, if the proof of acts on 
 the part of the party in possession clearly 
 indicates such claim. Illinois C. R. Co. v. 
 Houghton, 126 111. 233, 18 N. E. 301, 1: 213 
 
 k. Extent and Kind of Possession. 
 
 See also supra, 24. 
 
 For Editorial Notes, see infra, IV. 1. 
 
 66. Adverse possession of a burial lot is 
 held by its use for 'a burial place, with or 
 without inclosure, as long as gravestones 
 stand marking the place as burial ground. 
 Hook v. Joyce, 94 Ky. 450, 22 S. W. 651. 
 
 21: 96 
 
 67. The fencing and cultivation by the 
 owner of the fee in land, over which a rail- 
 road company has a right of way, of such 
 portions thereof as are not covered by the 
 tracks of the company, is not inconsistent 
 with the company's easement therein, and 
 will not amount to an adverse possession 
 which can destroy the easement, where the 
 company is not notified that such use is 
 intended to be adverse to the easement. 
 Hence a construction of side tracks by the 
 company over such inclosed land will not 
 entitle the owner to compensation, although 
 he has maintained his inclosure for the 
 period necessary to bar actions in regard to 
 real estate. East Tennessee, V. & G. R. 
 Co. v. West, 89 Tenn. 293, 14 S. W. 776, 
 
 10: 855 
 
 68. The mere construction, maintenance, 
 and occasional use by a railroad company of 
 an ordinary railroad track across a platted 
 street while it still remains unimproved and 
 unfit for use, and before public conven- 
 ience or necessity requires it to be opened 
 and improved for use as a street, does not 
 constitute adverse possession as against the 
 public, but must be presumed to be subject 
 to the paramount right of the public. St. 
 Paul & D. R. Co. v. Duluth, 73 Minn. 270, 
 76 N. W. 35, 43: 433 
 Of surface. 
 
 69. Adverse possession of the surface of 
 land for sufficient time to give title to the 
 surface, by one who has actual notice that 
 the legal owner purchased and is using a 
 larger tract of land, including that of which 
 be holds adverse possession, for the purpose 
 
 of mining the underlying coal, does not give- 
 title by adverse possession to the coal under 
 the surface. Delaware & H. Canal Co. v. 
 Hughes, 183 Pa. 66, 38 Atl. 568, 38: 826 
 
 70. The possession of the soil by the own- 
 er for the purpose of tillage, etc., gives him 
 no possession of gas under the surface, as 
 against parties to whom he has leased the 
 land for gas purposes, and who remain in 
 possession of a well which gives them the 
 sole control of the gas so far as its utiliza- 
 tion is concerned, and the sole possession of 
 which it is capable, apart from the land. 
 Westmoreland & C. Natuaral Gas Co. v. De 
 Witt, 130 Pa. 235, 18 Atl. 724, 5: 731 
 
 71. Possession of land is not adverse to 
 the owner of minerals therein, when the 
 land is used merely for agricultural pur- 
 poses, without any denial to the right to 
 the minerals, or any assertion of claim in- 
 consistent therewith. Murray v. Allard, 
 100 Tenn. 100, 43 S. W. 355, 39: 249 
 Constructive. 
 
 72. Actual possession by inclosure of a 
 portion of land claimed under a paper title 
 draws to it constructive possession of all 
 land within the boundaries called for by the 
 title papers. Wheeler v. Clark, 114 Tenn. 
 117, 85 S. W. 258, 69: 732 
 
 73. Under a lease of two tracts of land, 
 by the owner of one of them, possession of, 
 and work upon, the track owned by the 
 lessor, for the statutory period, does not 
 constitute constructive adverse possession of 
 the other tract, which 'has never been invad- 
 ed by actual physical possession, so as to 
 bar the owner thereof from brim^ag an ac- 
 tion to recover such tract. McNeeley v. 
 South Penn Oil Co. 52 W. Va. 616, 44 S. E. 
 508, 62: 562 
 
 74. Actually occupying adversely part of 
 the north half of a quarter section of land 
 under a recorded patent including the whole 
 quarter section does not constitute adverse 
 possession of the south half, which is 
 claimed under a separate title. Turner v. 
 Stephenson, 72 Mich. 409, 40 N. W. 735, 
 
 2:277 
 
 H. Effect. 
 
 See also supra, 6, 37. 
 
 75. Adverse possession of lands for a peri- 
 od sufficient to bar an action does not mere- 
 ly cut off the owner's remedy without affect- 
 ing the estate, but devests the estate of the 
 true owner, and transfers it to the party 
 holding adversely. Baker v. Oakwood. 123 
 N. Y. 18, 25 N. E. 312, 10: 387 
 
 76. Title acquired by taking actual posses- 
 sion of vacant land after having paid taxes 
 thereon for seven years under color of title 
 made in good faith is, by force of the Illi- 
 nois statute of limitations, such a fixed title 
 as will enable one, not only to defend his 
 possession, but to recover possession from 
 another who has subsequently taken it. 
 Gage v. Hampton, 127 111. 87, 20 N. E. 12, 
 
 2: 512 
 
 77. Where a person has been in the open, 
 notorious, exclusive, adverse possession of
 
 ADVERSE POSSESSION, III.. IV. 
 
 real estate, as owner, for ten years, he there- 
 by acquires an absolute title to the land, 
 free from the lien created by a tax deed 
 on the property, issued prior to the com- 
 mencement of such adverse possession. 
 Alexander v. Wilcox, 30 Neb. 793, 47 N. W. 
 81, 9: 735 
 
 Continuity and interruptions. 
 Erroneous Instruction as to, see Appeal and 
 
 Error, 1046. 
 Evidence as to Interruptions, see Evidence, 
 
 2158. 
 For Editorial Notes, see infra, IV. 1. 
 
 78. Detached occupation of portions of 
 certain property by different people not 
 holding under the paper title, and not con- 
 tiguous in point of time, constitutes merely 
 a series of independent trespasses, and can- 
 not give title by adverse possession. Pitts- 
 burgh, Ft. W. & C. R. Co. v. Peet, 152 Pa. 
 488, 25 Atl. 612, 19: 467 
 
 79. Possession need not be constant to 
 make it sufficiently continuous to be adverse 
 when the property is used from time to time 
 as needed. Swan v. Munch, 65 Minn. 500, 
 67 N. W. 1022, 35: 743 
 
 80. Possession during the life of a life 
 tenant cannot be joined to possession after 
 his death to complete title against the own- 
 er of a vested remainder in fee. Gindrat v. 
 Western R. of Ala. 96 Ala. 162, 11 So. 372, 
 
 19: 839 
 
 81. Where a purchaser of land, who, by 
 mistake, incloses a parcel contiguous to his 
 purchase, believing that he is putting his 
 fence on the true boundary, is succeeded in 
 possession by one between whom and him- 
 self there is no privity of estate, such as 
 exists between an ancestor and heir, or de- 
 visor and devisee, and none is created by 
 contract, the possession of the two cannot 
 be connected so as to make out the period of 
 limitation. Erck v. Church, 87 Tenn. 575, 
 11 S. W. 794, 4: 641 
 
 '82. An adverse possession of an undivided 
 half interest in land by the owner of the 
 other half continues r.fter his death in favor 
 of his minor heirs, where a purchaser takes 
 possession under a deed from the widow 
 having only a dower interest, and her second 
 husband and part of the heirs, but the deed 
 is subsequently disaffirmed as to the in- 
 fants, rendering it void ab initio as to them. 
 By the death of their mother the purchaser 
 becomes merely a tenant at sufferance of the 
 heirs. Harvey v. Briggs, 68 Miss. 60, 8 So. 
 274, 10: 62 
 
 83. A parol transfer by the first to the 
 second occupant of property held adversely 
 and the latter's succession in possession un- 
 der it may be sufficient to unite the two 
 possessions into one continuous, uninterrup- 
 ted possession referable to the first entry, 
 for the purpose of acquiring title by ad- 
 verse possession. Illinois Steel Co. v. Budz- 
 siz. 106 Wis. 499, 81 N. W. 1027, 48: 830 
 
 84. The continuity of adverse possession 
 is interrupted by dispossession under a judg- 
 ment in ejectment, although this is reversed 
 on appeal and the possession restored. 
 Gould v. Carr, 33 Fla. 523, 15 So. 259, 
 
 24: 130 
 
 III. Who May Hold Adversely. 
 
 85. An unincorporated church society can- 
 not acquire title to real estate by adverse 
 possession. Stewart v. White, 128 Ala. 
 202, 30 So. 526, 55: 211 
 
 IV. Editorial Notes. 
 
 i. Generally. 
 
 Conflict of laws as to. 48: 635. 
 
 What constitutes. 4: 321;* 6: 833;* 13: 
 
 206.* 
 How far tax title constitutes. 2:512;* 9: 
 
 772. 
 
 Color of title. 2: 513;* 9: 772.* 
 Under ancient deeds. 10: 388.* 
 Necessity that possession be hostile and 
 
 adverse. 4: 641.* 
 Necessity that possession be continuous. 
 
 4: 641.* 
 Necessity that occupation be open and 
 
 notorious. 4: 641.* 
 
 Presumption from lapse of time. 4: 646.* 
 Connected possessions; tacking on. 4: 642.* 
 What acts operate as a disseisin. 10: 389.* 
 Limits of land to which presumption of title 
 
 applies. 1 : 214.* 
 
 Necessity of actual occupation. 4:641.* 
 Right, by or against one in adverse posses- 
 sion of land, to maintain 
 replevin for things sev- 
 ered. 69: 732. 
 2. Boundaries. 
 
 As to Boundaries, Generally, see Boundaries. 
 Effect of acquiescence in boundary lines. 
 
 4: 643.* 
 
 Adverse possession due to ignorance or mis- 
 take as to boundarv. 21: 
 829. 
 
 Claim and occupancy to fence. 21: 830. 
 Recognition of true line. 21:830. 
 The effect of belief based on mistake. 
 
 21: 831. 
 Cases holding mistake fatal. 21: 
 
 831. 
 Cases holding the possession the 
 
 important fact. 21:831. 
 Possession necessary. 21: 833. 
 Necessity of knowledge or dispute. 21: 
 
 833. 
 Possession following agreement as to 
 
 boundary. 21 : 833. 
 Acquiescence in boundary. 21 : 834. 
 Settling one line not conclusive on oth- 
 ers. 21 : 834. 
 
 3. By and against whom. 
 By donee under parol gift. 35: 835. 
 General doctrine. 35: 835. 
 Assertion of title against donor. 35: 
 
 838. 
 
 Interruption by donor's acts. 35: 839. 
 Effect of statutes as to slaves. 35:839. 
 By tenant. 53: 941. 
 Against remaindermen or reversioners. 10: 
 
 389.* 
 Against remaindermen and own-ers of future 
 
 estates. 19: 839. 
 
 Tenants for life and remaindermen inter 
 se. 19: 839.
 
 ADVERTISING AFFIDAVIT. 
 
 38 
 
 Tenant in dower and remainderman. 
 
 19: 839. 
 
 Tenant by the curtesy and remainder- 
 man. 19: 841. 
 Ouster of, and sales by, tenants for life. 
 
 19: 841. 
 In case of tenants in common. 4: 645;* 10: 
 
 388.* 
 
 Adverse possession of husband's lands, ef- 
 fect upon wife's right of 
 dower. 18: 78. 
 
 Against wife holding by entireties. 30: 335. 
 Acquisition of title by prescription^ against 
 
 public. 26:451. 
 
 Rights acquired as against the public by ad- 
 vers3 possession of high- 
 way or city street. 18: 
 146. 
 
 Presumption of abandonment. 18: 146. 
 Estoppel. 18: 147. 
 Eule in case of city street. 18: 147. 
 Enclosure of part of the width of the 
 
 way. 18: 149. 
 Neglect to open. 18: 149. 
 Restraint of summary proceedings to 
 remove obstructions. 18: 
 149. 
 
 Right to lateral support. 18: 150. 
 Miscellaneous decisions. 18: 150. 
 Statutory provisions. 18: 150. 
 4. As to what property or rights. 
 Prescriptive right to flow of subterranean 
 
 waters. 19: 94. 
 Island. 58: 677. 
 
 Rights of person in adverse possession with 
 respect to accretions to 
 shore lands. 58: 209. 
 
 Acquisition by prescription of title to land 
 for purposes of canal. 61 : 
 877. 
 
 Flats. 40:394. 
 In case of easements and servitudes. 4: 
 
 645.* 
 Right of way of railroad. 1: 214.* 
 
 ADVERTISING. 
 
 Provision in Mote for Privilege of Hanging, 
 in Street Cars, see Bills and Notes, 47, 
 236. 
 
 Use of Flag for, see Constitutional Law, 450, 
 451, 767, 1007. 
 
 Forbidding Use of Land Near Park for, see 
 Eminent Domain, 220. 
 
 In Streets, see Municipal Corporations, 148, 
 149, 265-267. 
 
 What May be Used for, see Engraver. 
 
 Publishing Picture, as Part of, see Consti- 
 tutional Law, 1091 ; Libel and Slander, 
 14; Privacy, 6, 7. 
 
 Of Sale of Debts, see Constitutional Law, 
 932, 1087. 
 
 Foreclosure by, see Mortgage, VI. f. 
 
 For Letting of Public Contract, see Con- 
 tracts, VII. b. 
 
 One having the right to sell a medicinal 
 preparation which is not patented may pub- 
 lish the fact that it is made in accordance 
 with the original formula therefor. Wat- 
 KR.A. Dig. 3. 
 
 kins v. Landon, 52 Minn. 389, 54 N. W. 193, 
 
 19: 236 
 
 ADVICE OF COUNSEL. 
 
 As Defense to Action for Malicious Prosecu- 
 tion, see Malicious Prosecution, 4, 25. 
 
 AEROLITE. 
 
 An aerolite which embeds itself in the 
 earth as it falls from the sky becomes the 
 property of the owner of the land, and an- 
 other person cannot acquire ownership of it 
 by discovering it, digging it up, and carry- 
 ing it away. Goddard v. Winohell, 86 Iowa, 
 71, 52 N. W. 1124, 17: 788 
 
 AFFECTION. 
 
 As Consideration, see Contracts, 54, 55. 
 Presumption of, see Evidence, 268. 
 Alienation of, see Husband and Wife, 199, 
 208-224. 
 
 AFFIANCED. 
 
 Insurable Interest of, see Insurance, 170- 
 
 173. 
 Seduction of, see Seduction, 3. 
 
 AFFIDAVIT. 
 
 In Admiralty, see Admiralty, 9. 
 
 On Appeal, see Appeal and Error, IV. e. 
 
 In Attachment Suit, see Attachment, III. a; 
 Bankruptcy, 58. 
 
 For Attorney's Fees, see Attorneys' Fees, 7. 
 
 For Certiorari, see Certiorari, 20, 34, 35, 38. 
 
 For Renewal of Chattel Mortgage, see Chat- 
 tel Mortgage, 57-60. 
 
 As Contempt of Court, see Contempt, 33. 
 
 In Contempt Proceedings, see Contempt, 67- 
 69. 
 
 For Continuance, see Continuance and Ad- 
 journment, in. 
 
 Of Right to Vote, see Elections, 81-83, 90. 
 
 As an Estoppel, see Estoppel, 232. 
 
 As Evidence, see Evidence, 900-902, 951. 
 
 For Extradition, see Extradition, 27, 28. 
 
 For Arrest, see False Imprisonment, 746. 
 
 In Garnishment Proceeding, see Garnish- 
 ment, 104, 109. 
 
 For Practising Medicine without License, 
 see Indictment, etc., 68. 
 
 For Injunction, see Injunction, 481-483. 
 
 As to Cause of Death of Insured, see In- 
 surance, 758. 
 
 As to Amount of Loss, see Insurance, 933. 
 
 For Revocation of Liquor License, see In- 
 toxicating Liquors, 84. 
 
 For Revival of Judgment, aee Judgment, 
 402.
 
 34 
 
 AFFILIATION AFTERBORN CHILDREN. 
 
 For Vacation of Judgment, see Judgment, 
 
 432-434. 
 
 Of Merits, see Judgment, 425. 
 For Change of Judge, see Judges, 47. 
 On Motion for New Trial, see New Trial, V. 
 
 c, and d. 
 
 To Plea, see Pleading, 20. 
 For Record of Mortgage, see Real Property, 
 
 55. 
 For Removal of Cause, see Removal of 
 
 Causes, 30. 
 
 In Replevin Suit, see Replevin, 25. 
 Of Giving Notice of Tax Sale, see Taxes, 520. 
 For Change of Venue, see Venue, 29, 30. 
 Of Attesting Witnesses to Will, see Wills, 
 
 124. 
 
 To Impeach Witness, see Witnesses, 151. 
 Of Service by Mail, see Writ and Process, 86. 
 For Publication, see Writ and Process, 44- 
 
 46. 
 
 Charging Unlawful Sale of "Beer," see In- 
 toxicating Liquors, 95. 
 Denying Sidewalk Assessment, see Public 
 
 Improvements, 152. 
 Consideration of, on Appeal, see Appeal and 
 
 Error, 806. 
 Effect of Failure to Indorse "Filed" on, see 
 
 Appeal and Error, 592. 
 Failure to Read, see Insurance, 336. 
 Sufficiency of Objection to, see Trial, 63. 
 See also Oath. 
 
 Editorial Notes. 
 
 Power of consul to take affidavits. 45: 499. 
 Defective affidavit to schedule annexed to 
 
 assienment for creditors. 
 
 3: 140.* 
 Right to amend affidavit for attachment. 
 
 31 : 422. 
 
 Use of, before grand jury. 28: 319. 
 In proceedings for removal of cause. 11: 
 
 570.* 
 
 Necessity of venue and jurat. 13: 556.* 
 Privilege as to statements in. 22: 837. 
 
 AFFILIATION. 
 
 Merger in Judgment of Rights Under Order 
 of, see Judgment, 97. 
 
 AFFINITY. 
 
 Relationship by, see Incest. 
 
 Insurable Interest ir Life of Relative by, 
 
 see Insurant, 168. 
 Disqualification of Judge Because of, see 
 
 Judges, 26-29. 
 What is, see Judges, 29. 
 
 Affinity is the relationship which arises 
 from marriage, between one of the spouses 
 and the blood relations of the other, and 
 does not include persons related to the oth- 
 er simply by affinity. Chinn v. State, 47 
 Ohio St. 575, 26 N. E. 986, 11: 630 
 
 Editorial Notes. 
 
 Relationship by, when exists. 11:630.* 
 Whether "relatives" include those by af- 
 finity. 14: 342. 
 
 AFTER-ACQUIRED PROPERTY. 
 
 Mortgage on, see Chattel Mortgage, II. c. 
 Estoppel to Claim, see Estoppel, 54-61, 
 
 Deeds, III. 13. 
 
 Lien of Judgment en, see Judgment, 318. 
 Passing under Mortgage, see Mortgage, 20. 
 Passing under Will, see Wills, 12, 237-243. 
 
 Editorial Notes. 
 
 Priority of judgment liens on. 42: 209. 
 
 Right of one receiving advancement and 
 executing release of in- 
 terest in estate to share 
 in after-acquired property. 
 65: 578. 
 
 Effect of covenant of warranty upon. 2: 
 335.* 
 
 Effect of covenant of married woman as an 
 estoppel against acquiring 
 superior title. 22:779. 
 
 Validity of agreement to transfer, in con- 
 sideration of maintenance. 
 70: 485. 
 
 AFTERBORN CHILDREN. 
 
 Effect of Prior Suit on Rights of, see Ac- 
 tion or Suit, 84. 
 
 Protecting Rights of, see Constitutional 
 Law, 650. 
 
 Damages for Causing Death of, see Dam- 
 ages, 328-332, 596. 
 
 Action for Death of, see Death, 33. 
 
 Right of Action for Death of Father, see 
 Death, 34. 
 
 Rights of, Under Deed, see Deeds, 59, 60, 81; 
 Real Property, 41. 
 
 At Time of Divorce, Custody and Support of, 
 see Divorce and Separation, 116, 117. 
 
 Right to Share in Benefits of Insurance Pol- 
 icy, see Insurance, 1178, 1224. 
 
 Effect of Judgment Upon, see Judgment, 
 249-252. 
 
 Effect of Judicial Sale on Rights of, see Ju- 
 dicial Sale, 9, 10. 
 
 Conclusiveness against, of Sale of Land, 
 see Life Tenants, 9. 
 
 Running of Limitations against, see Limi- 
 tation of Actions, 128. 
 
 Representation of, in Suit, see Parties, 182. 
 
 Provision as to, in Will, see Wills, 215-219. 
 
 1. An infant has not before birth such an 
 independent existence that a negligent in- 
 jury to him will sustain an action in his 
 favor after he is born. Allaire v. St. Luke's 
 Hospital, 184 111. 359, 56 N. E. 638, 48: 225 
 
 2. The fact that other members of a 
 class to whom an estate is given may come 
 into being will not prevent the court from 
 ordering a conversion of real property into 
 personalty, where there are persons before 
 the court belonging to the same class and 
 equally certain to bring fonvard the entire 
 merits of the question so far as the rights 
 of the persons not in being can be affected. 
 Hale v. Hale, 146 111. 227, 3 N. E. 858. 
 
 20: 247
 
 AGED AGREED CASE. 
 
 35 
 
 Editorial Notes. 
 As grantees in deeds. 14: 489. 
 
 AGED. 
 Who is, see Homestead, 2. 
 
 AGENT. 
 
 Insurance Agent, see Insurance, I. d. 
 Of Telegraph Company, see Telegraphs. 
 In General, see Principal and Agent. 
 
 AGGRAVATION. 
 
 In Conspiracy Case, see Conspiracy, 29. 
 Of Damages, see Damages, III. t. 
 Of Injury, see Negligence, 187, 188. 
 In Malpractice Case, see Physicians and 
 Surgeons, 56, 57. 
 
 AGGRIEVED. 
 
 Right to Appeal as Party Aggrieved, see Ap- 
 peal and Error, 99-101, 104. 
 
 AGISTERS. 
 
 Lien of, see Liens, 11-13, 17-22, III. 1, 5. 
 Burglary by Owner of Horse Entering 
 
 Stable to Remove without Payment of 
 
 Lien, see Burglary, 4. 
 
 AGREED CASE. 
 
 On Appeal, see Appeal and Error, 397. 
 
 Judgment on Appeal on, see Appeal and Er- 
 ror, 1177. 
 
 Admiss!bility of, see Evidence, 903. 
 
 Matters Concluded by Judgment, on, see 
 Judgment, 163. 
 
 1. A statute providing for the submis- 
 sion of causes, without action, upon agreed 
 statements of fact, is applicable to contro- 
 versies which are within the original juris- 
 diction of the supreme court. Carolina 
 (irocery Co. v. Burnet, 61 S. C. 205. 39 S. 
 E. 381, 58: 687 
 
 2. The provision of N. Y. Code Civ. Proc. 
 S 532, that it is sufficient, in pleading a judg 
 mont or other determination of a court or 
 officer of special jurisdiction, to state that 
 the same has been duly given or made, may 
 be applied to a statement of facts upon 
 which a controversy is submitted under 
 
 1279. Brownell v. Greenwich, 114 N. Y. 518, 
 22 N. E. 24, 4:_685 
 
 3. The expression "duly adjudged," in a 
 statement for the submission of a contro- 
 versy with respect to the validity of town 
 bonds, which declares that the county judge 
 ''duly adjudged, determined, and ordered." 
 means adjudged according to law, that is, 
 according to the statute governing the sub- 
 ject, and implies the existence of every 
 fact essential to perfect regularity of pro- 
 cedure and to confer jurisdiction both of the 
 subject-matter, and of the parties affected 
 by the judgment. Id. 
 
 4. An admission in an agreed statement of 
 facts that under the laws of another state 
 a claim has been allowed by its courts 
 against a decedent's estate does not admit 
 that the claim is valid and enforceable under 
 the laws of the state where it is sought to 
 be enforced against real property belonging 
 to the estate. Smith v. Smith, 174 111. 52, 
 50 N. E. 1083, 43: 403 
 
 5. A statement in an agreed statement of 
 facts in a proceeding for violation of an or- 
 dinance regulating the keeping of dogs, that 
 the sum exacted for the privilege of keeping 
 them is intended as a tax for revenue, is 
 not binding on the courts where the ordi- 
 nance shows that it is a license fee. Gib- 
 son v. Harrison, 69 Ark. 385, 63 S. W. 999, 
 
 54: 268 
 
 6. An agreed case in which an insolvent's 
 assignee asserts the right to recover a depos- 
 it, or, if not, to have it charged up as cash 
 paid on a pro rata distribution of the in- 
 solvent's assets, is in effect a suit by the 
 assignee, and the filing of the agreed case 
 is the commencement of a suit within a rule 
 fixing the legal rights of the parties to a 
 suit at the time of its commencement. 
 Nashville Trust Co. v. Fourth Nat. Bank, 
 91 Tenn. 336, 18 S. W. 822, . 15: 710 
 Judgment on. 
 
 7. No judgment can be rendered in a case 
 submitted to the court for its opinion upon 
 an agreed statement of facts, unless a re- 
 quest for judgment is distinctly made in the 
 agreed case. Tyson v. Western Nat. Bank. 
 77 Md. 412, 26 Atl. 520, 23: 161 
 Withdrawal of submission. 
 
 8. The exercise of the power of a trial 
 court to permit parties to withdraw from 
 written stipulations waiving a jury and 
 submitting the cause upon an agreed state- 
 ment of facts to the court rests in its dis- 
 cretion, and such power is properly exercised 
 where the application is made before the 
 court has decided the cause under the writ- 
 ten submission, and the party applying 
 has discovered other pertinent facts since 
 the submission was entered into, which the 
 other party declines to embrace in the 
 agreed statement; and the tact that, by the 
 exercise of due diligence, the omitted facts 
 might have been discovered before the sub- 
 mission was entered into, does not deprive 
 the court of the power to grant the appli- 
 cation to withdraw. Hartford F. Ins. Co. v. 
 Redding, 47 Fla. 228, 37 So. 62, 67: 518
 
 36 
 
 AGRICULTURAL COLLEGE ALABAMA CLAIMS. 
 
 AGRICULTURAL COLLEGE. 
 
 Appointment or Removal of Officers of, see 
 
 Officers, 49, 50, 126, 161. 
 Liability to Suit, see State institutions, 9. 
 
 AGRICULTURAL SOCIETIES. 
 See also Mandamus, 70. 
 
 1. Agricultural societies are not corpora- 
 tions within the ordinary meaning of the 
 term, but rather agencies adopted by the 
 state for the purpose of promoting the in- 
 terests of agriculture and manufacturing. 
 State ex rel. Custer County Agri. Soc. & L. 
 S. Exch. v. Robinson, 35 Neb. 401, 53 N. W. 
 213, 17: 383 
 Liability. 
 
 For Arrest by Officers of, see False Impris- 
 onment, 20. 
 
 2. A county agricultural society organ- 
 ized under Ohio act February 28, 1846, is 
 not exempt from liability for an injury re- 
 ceived by a person attending its annual fair, 
 on account of its negligence in erecting 
 seats on its fair grounds. Dunn v. Brown 
 County Agri. Soc. 46 Ohio St. 93, 18 N. E. 
 496, ' 1 : 754 
 
 3. A state agricultural society, which is 
 one of the agencies of the state, and not a 
 corporation for pecuniary profit, cannot be 
 held liable for the wilful and illegal acts of 
 its agents, as in case of wilful arrests and 
 assaults. A'Hern v. Iowa State Agri. Soc. 
 91 Iowa, 97, 58 N. W. 1092, 24: 655 
 Contributions to. 
 
 4. Annual contributions by the state to a 
 state agricultural society whic'h is required 
 to report to the state are not sufficient to 
 make it a public corporation for the sole 
 purpose of discharging a governmental func- 
 tion, on account of which it will be exempt 
 from liability to persons injured by its neg- 
 ligence. Lane v. Minnesota State Agri. Soc. 
 62 Minn. 175, 64 N. W. 382, 29: 708 
 
 5. The provision of Neb. Comp. Stat. chap. 
 2, 12, entitled "Agricu.ture," for the pay- 
 ment to agricultural societies complying 
 with the provisions thereof, of a sum equal 
 to 3 cents for each inhabitant, fron the 
 county general fund of the several counties, 
 does not conflict with the provisions of Neb. 
 Coivt. art. 3, 15, as to local or special 
 laws. State ex rel. Custer County Agri. Soc. 
 & L. S. Exch. v. Robinson, 35 Neb. 401, 53 
 N. W. 213, . 17: 383 
 Board of agriculture. 
 
 6. A state board of agriculture, created a 
 body corporate with perpetual succession, 
 including as ex officin members the presi- 
 dent of each county agricultural society, 
 and which is in a sense an educational insti- 
 tution, required to hold an annual meeting 
 and receive reports from county societies 
 and make an annual report to the legisla- 
 ture, its funrls having been received for the 
 most part from other sources than the 
 state, is a private, and not a public, corpo- 
 ration, although no shares of stock are is- 
 
 sued. Downing v. .Indiana State Bd. of 
 Agri. 129 Ind. 443, 28 N. E. 123, 12: 664 
 
 AGRICULTURAL STATION. 
 
 Use of County Funds for Building at, 
 Counties, 68. 
 
 AGRICULTURE. 
 
 See Department of Agriculture. 
 
 AIDERS AND ABETTORS. 
 See Criminal Law, 47. 
 
 AIR. 
 
 Easement of, see Alleys, 3, 6; Covenant, 
 32-34; Easements, 11, 49-54, 65, 81, 
 107; Eminent Domain, 367, 375; High- 
 ways, 38-41, 55, 390. 
 
 Editorial ISlotes, 
 
 Servitude of light and air. 11: 634;* 14: 
 
 370, 371. 
 Injury to easements of light and air. 14: 
 
 370, 383. 
 Obstructing; effect of bad motive. 62: 683. 
 
 AIR BRAKES. 
 
 Requiring Street Cars to Use, see Municipal 
 Corporations, 187-189. 
 
 ALABAMA CLAIMS. 
 
 Authority of Attorneys as to, see Attorneys, 
 13, 14. 
 
 Attorney's Interest in, see Attorneys, 80, 83. 
 
 Effect of Bankruptcy on, see Bankruptcy, 24. 
 
 Note Conditioned on Payment of, see Bills 
 and Notes, 272. 
 
 Champerty in Connection with, see Cham- 
 perty, 12. 
 
 As Assets for Administration, see Executors 
 and Administrators, 16. 
 
 1. The judges of the Court of Commission- 
 ers of Alabama Claims hold their offices 
 while the court continues to exist, unless 
 they are lawfully removed therefrom; and 
 where, before the expiration of the time 
 for which the court was first created, Con- 
 gress continues it for a further period, they 
 will continue to be judges during such 
 extended period without the necessity of a 
 reappointment. Manning v. French, 149 
 Mass. 391, 21 N. E. 945, 4: 339 
 
 2. The fees of a commissioner of the 
 Court of Commissioners of Alabama Claims 
 are not regulated by U. S. Rev. Stat. 847.
 
 ALCOHOL ALIENS, I. 
 
 87 
 
 relating to commissioners' fees. Powers v. 
 Manning, 154 Mass. 370, 28 N. E. 290, 
 
 Editorial Notes. 
 
 13: 258 
 
 Geneva award; right of assignees; war 
 premiums; claims against 
 indemnity fund; compen- 
 sation for collection; rights 
 , of representatives of de- 
 
 ceased claimant; jurisdic- 
 tion and procedure; liti- 
 gation as to title to fund. 
 3: 460.* % 
 
 Commissioners of. 13: 258.* * 
 
 ALCOHOL. 
 
 Aa Spirituous Liquor, see Intoxicating Li- 
 quors, 91, 93. 
 
 ALCOHOLISM. 
 
 See Drunkenness. 
 
 ALDERMEN. 
 
 Slander by Testimony before Committee of, 
 see Libel and Slander, 133-135. 
 
 Interest of, as Affecting Vote, see Parlia- 
 mentary Law, 27, 28. 
 
 ALE. 
 
 Editorial Notes. 
 As intoxicating liquor. 20: 647. 
 
 ALIBI. 
 
 Burden of Proving, see Evidence, 231. 
 
 Editorial Notes. 
 Burden and measure of proof as to. 41 : 530. 
 
 ALIENATION. 
 
 Suspension of Power of, see Perpetuities. 
 Editorial Notesv 
 
 ProTision against alienation of interest of 
 cestui que trust. 2: 113.* 
 
 ALIENATION OF AFFECTIONS. 
 
 Of Husband, see Husband and Wife, 208- 
 224. 
 
 Of Wife, see Husband and Wife, 199; Par- 
 ties, 177. 
 
 Of Affianced, see Seduction, 3. 
 
 Editorial Notes. 
 
 Right of wife to maintain action for alien- 
 ation of husband's affec- 
 tions. 6: 553;* 10: 468.* 
 
 ALIENS. 
 
 I. In General; Immigration; Deportation. 
 II. Naturalization. 
 
 III. Property Rights. 
 
 IV. Editorial Notes. 
 
 Conflict of Laws as to Status of, see Con- 
 flict of Laws, 152. 
 
 Equal Protection and Privileges as to, see 
 Constitutional Law, II. a, 2, b. 
 
 Illegality of Contract Not to Rent to, see 
 Contracts, 382. 
 
 As Directors of Corporations, see Corpora- 
 tions, 219. 
 
 Jurisoiction Over Real Property of, see 
 Courts, 57. 
 
 Right to Recover for Death of Relative, see 
 Death, 12-15. 
 
 Burden of Proving Status, see Evidence, 
 250. 
 
 Proof of Foreign Citizenship, see Evidence, 
 2280. 
 
 As to Expatriation, see Expatriation. 
 
 Obtaining Jurisdiction by Service on, see 
 Judgment, 20. 
 
 Right to Hold Office, see Officers, 15, 21, 22. 
 
 Right to Vote at School Meeting, see 
 Schools, 80-83. 
 
 Tax on, see Constitutional Law, 562; Taxes, 
 32. 
 
 Effect of Treaty on Status of, see Treaties. 
 
 I. In General; Immigration; Deportation. 
 
 1. The relation of husband and wife is 
 not inconsistent with one being a citizen 
 and the other an alien. Comitis v. Parker- 
 son, 56 Fed. 556, 22: 148 
 Immigration; deportation. 
 
 Effect of Treaty as to, see Treaties, 1. 
 
 2. The wife and children of a Chinese mer- 
 chant, who is entitled, under the treaty of 
 1880, art. 2, and act of Congress 1884, 6, 
 to come within and dwell in the United 
 States, are entitled to come into the country 
 with 'him or after him, as such wife and 
 children, without the certificate prescribed 
 in said 6. Re Chung Toy Ho, 14 Sawy. 
 531, 42 Fed. 398, 9: 204 
 
 3. No authority is given to a United 
 States marshal to remove a Chinese person 
 from the district in which he is found to 
 another district, and there imprison him, 
 with a view to returning him to the country 
 whence he came, by a mere finding of a cir- 
 
 :uit court commissioner that he was not 
 lawfully entitled to be or remain in the 
 United States, without the entry of any 
 formal judgment thereon or any direction 
 to the marshal as to his removal. People 
 v. Ah Teung, 92 CaL 421, 28 Pac. 577, 
 
 15: 190 
 Head money. 
 
 4. Head money, at the rate of 50 cents per
 
 ALIENS, II., III. 
 
 passenger 'paid by owners of a Danish ves- 
 sel on foreign passengers landed by it, was 
 not, by reason of the treaty with Denmark, 
 or U. S. Rev. Stat. 4227, U. S. Comp. Stat. 
 1901, p. 2855, illegal, improper, or excessive; 
 and the Secretary of the Treasury has no 
 authority to refund it. Thingvalla Line v. 
 United States, 24 Ct. Cl. 255, 5: 135 
 
 II. Naturalization. 
 
 Effect of, on Right to Hold Office, see Offi- 
 cers, 21. 
 
 Effect of, on Right to Registration, see Elec- 
 tions, 51. 
 
 Jurisdiction over, see Courts, 260-262. 
 
 Admissibihtv of Certificate of, see Evidence, 
 841. 
 
 Collateral Attack on Judgment, see Judg- 
 ment, 122. 
 
 Laches Preventing Vacation of Order of, see 
 Limitation of Actions, 39. 
 
 For Editorial Notes, see infra, IV. 1. 
 
 Power of Congress as to. 
 See also infra, 12. 
 
 5. Congress cannot, without the consent 
 of the state, constrain the state courts to 
 entertain or act upon applications for nat- 
 uralization. State ex rel. Rushworth v. 
 Judges of Inferior Ct. (N. J. Sup.) 58 N. J. 
 L. 97, 32 Atl. 743, 30: 761 
 Eligibility. 
 
 6. It is the duty of the court to judge of 
 the moral character and other qualifications 
 prescribed by law of an applicant for citi- 
 zenship. He should have sufficient intelli- 
 gence to understand the principles of the 
 government of the United States and its 
 institutions. Re Kanaka Nian, 6 Utah, 259, 
 21 Pac. 993, 4: 726 
 
 7. An alien who, although he knows that 
 the United States has a President, and that 
 Washington was President once, does not 
 know who fills that office now, and cannot 
 read or write English, though he has read 
 the Constitution in his own language, does 
 not understand the principles of the United 
 States government or its institutions suffi- 
 ciently to become a citizen, under the re- 
 quirements of U. S. Rev. Stat. 2165, U. S. 
 Comp. Stat. 1901, p. 1329. Id. 
 
 8. Members of the Japanese race are not 
 entitled to become citizens of the United 
 States. Re Yamashita, 30 Wash. 234, 70 
 Pac. 482, 59:671 
 
 9. A Kanaka from the Hawaiian islands 
 is not a member either of the white or of 
 the African race, which by U. S. Rev. Stat. 
 1878, 2169, U. S. Comp. Stat. 1901, p. 1333, 
 are the only persons allowed to become citi- 
 zens. And that section was not by implica- 
 tion enlarged by the statute expressly pre- 
 cluding the Chinese from citizenship. Re 
 Kanaka Nian, (i Utah, 259, 21 Pac. 993, 
 
 4: 726 
 Declaration of intention. 
 
 10. A declaration of intention to become a 
 citizen, made before a clerk of a court, need 
 not be made in his oflice or in open court. 
 Andres v. Ottawa County Circuit Ct. Judge. 
 77 Mich. 85, 43 N. W. 857. 6: 238 
 
 Time for application. 
 
 11. The state legislature may by statute 
 prescribe and limit the times when and dur- 
 ing which applications for naturalization 
 may be heard in the state courts. State ex 
 rel. Rushworth v. Judges of Inferior Ct. 
 (N. J. Sup.) 58 N. J. L. 97, 32 Atl. 743, 
 
 30: 761 
 
 By marriage of woman. 
 See also Schools, 81, 82. 
 For Editorial Notes, see infra, IV. 1. 
 
 12. xhe power of Congress to enact a uni- 
 form rule of naturalization throughout the 
 United States authorizes the provision of U. 
 S. Rev. Stat. 1994, U. S. Comp. Stat. 1901, 
 p. 1269, that the marriage o-f an alien wom- 
 an with a citizen will make her a citizen. 
 Dorsey v. Brigham, 177 111. 250, 52 N. E. 
 303, 42: 809 
 
 13. A foreign-born woman becomes a citi- 
 zen by marrying a citizen of the United 
 States. Id. 
 Setting aside. 
 
 Collateral Attack on Judgment, see Judg- 
 ment, 122. 
 
 14. A private individual has no standing 
 in court to institute a proceeding to set 
 aside an order admitting an alien to citi- 
 zenship. Re McCarran (N. Y. C. P.) 8 Misc. 
 482, 29 N. Y. Supp. 582, 23: 835 
 
 III. Property Rights. 
 
 As to Inheritance by or through Aliens, see 
 Descent and Distribution, I. b. 
 
 Right to Partition, see Partition, 1. 
 
 Special Legislation as to, see Statutes, 294. 
 
 Tax on Succession by Foreign Heirs, see 
 Taxes, 629. 
 
 For Editorial Notes, see infra, IV. 2. 
 
 15. The word "citizens," as used in the 
 Kansas Bill of Rights, 17, prior to the 
 amendment of 1888, prohibiting any distinc- 
 tion between citizens and aliens in reference 
 to the purchase, enjoyment, or descent of 
 property, means citizens of Kansas; and the 
 word "aliens" means persons born out of 
 the United States and not naturalized. 
 Buffington v. Grosvenor, 46 Kan. 730, 27 
 Pac. 137, 13:282 
 
 16. The most favored nation clause in the 
 treaty between Italy and the United States 
 entitles the citizens and subjects of Italy to 
 the same right to acquire and dispose of 
 property in this country, whether by dona- 
 tion, testament, or otherwise, that French- 
 men possess under the treaty with France 
 giving them the same rights in this matter 
 that citizens of the United States have. 
 Rixner's Succession, 48 La. Ann. 552, 19 So. 
 597, 32: 177 
 
 17. Conveyances made to a corporation 
 when a majority of the stock was owned by 
 citizens will be declared void where a ma- 
 jority of the stock is transported to and 
 held by aliens under Wash. Const, art. 2, 
 33, prohibiting the ownership of land by 
 aliens and providing that all conveyances of 
 lands to any alien directly or in trust shall 
 be void, and that every corporation the ma-
 
 ALIENS, IV. ALLEYS. 
 
 39 
 
 jority of the capital stock of which is owned 
 by aliens shall be considered an alien for 
 the purpose of such prohibition. State ex 
 rel. Winston v. Hudson Land Co. 19 Wash. 
 85, 52 Pac. 574, 40:430 
 
 Purchase by or from. 
 Sale of Inherited Lands, see Descent and 
 
 Distribution, 25, 26. 
 See also infra, 21, 22. 
 
 18. Mortgages are purchases, within the 
 meaning of Iowa Code, 2442, protecting 
 purchasers from nonresident aliens against 
 claims for dower. Re Gill's Estate, 79 Iowa, 
 296, 44 N. W. 553, , 9: 126 
 
 19. The word "purchase" includes an ac- 
 quisition by devise in N. Y. Laws 1875, 
 chap. 38, providing that, if a citizen or alien 
 resident who shall purchase and take a con- 
 veyance of real estate within the state shall 
 die intestate leaving persons who according 
 to the statutes, would answer the descrip- 
 tion of heirs to him, such persons, although 
 aliens, shall be capable of taking and hold- 
 ing as heirs all the real estate owned by 
 him at the time of his death. Stamm v. 
 Bostwick, 122 N. Y. 48, 25 N. E. 233, 9: 597 
 Lease. 
 
 20. A lease of land for forty-nine years to 
 an alien is void under Wash. Const, art. 2, 
 33, prohibiting the ownership of lands by 
 aliens and providing that all conveyances 
 of land to any alien shall be void. State ex 
 rel. Winston v. Hudson Land Co. 19 Wash. 
 85, 52 Pac. 574, 40: 430 
 Alien corporation. 
 
 See also supra, 17. 
 
 21. A deed of land by an alien corporation 
 may convey an indefeasible title notwith- 
 standing bad faith of the corporation in ac- 
 quiring the 1-nd in evasion of a constitu- 
 tional prohibition, if the state has not under- 
 taken to have the conveyance set aside or 
 adjudged invalid. Oregon Mortg. Co. v. 
 Carstens, 16 Wash. 165, 47 Pac. 421, 35: 841 
 
 22. The right of an alien corporation to ac- 
 quire land "under a mortgage" as permitted 
 by an exception to the prohibition of Wash. 
 Const, art. 2, 33, against the acquisition of 
 real estate by aliens, includes the acquisition 
 by a direct deed from the mortgagor of the 
 land in satisfaction of the mortgage debt, if 
 this was done in good faith and the original 
 purpose 01 taking the mortgage was not to 
 acquire title to the land. Id. 
 
 IV. Editorial Notes. 
 
 i. Generally. 
 
 Treaty guaranties to. 16:277. 
 
 Disabilities of. 12: 532.* 
 
 Right to equal protection of laws. 14: 583. 
 
 As grand jurors. 28: 195. 
 
 Alienage of juror as ground for new trial. 
 
 18: 476. 
 Right of action for deith of other person. 
 
 54: 934. 
 Powers of state legislatures and courts in 
 
 respect to naturalization. 
 
 30: 761. 
 
 Power of Federal government to confer 
 power on state courts. 30 : 
 762. 
 
 What state courts may act. 13: 229; 
 30: 763. 
 
 Jurisdiction of state courts over natural- 
 ization proceedings. 48: 36 
 
 Effect of marriage on wire's status as an 
 
 alien. 22: 148. 
 
 The ancient doctrine. 22: 148. 
 The doctrine since tha enactment of 
 modern statutes. 22: 149. 
 
 2. Inheritance. 
 
 Alien's right to inherit. 31: 177. 
 
 Effect of treaties upon alien's right to in- 
 herit. 32: 177. 
 
 Effect of state Constitutions and statutes 
 upon inheritance by 01 
 from an alien. 31: 85. 
 
 Effect of state statutes and Constitutions 
 upon inheritance through 
 an alien. 31 : 146. 
 
 Effect of naturalization on alien's right to 
 inherit. 31: 181. 
 
 ALIMONY. 
 
 See Divorce and Separation, V.; EX. 
 21. 
 
 16- 
 
 ALLEYS. 
 
 Condemnation for, see Eminent Domain, 209. 
 
 Title of Public to, see Highways, 24, 25. 
 
 Injunction against Obstruction of, see In- 
 junction, 185. 
 
 Exercise of Power to Convey Right to Use, 
 see Powers, 9. 
 
 Improvement of, see Public Improvements, 
 9, 179. 
 
 Assessment for Grading, see Public Improve- 
 ments, 179. 
 
 1. Where the alleys of a city have been 
 dedicated to the public, no further action is 
 required by the city to open them for public 
 use. Osage City v. Larkina, 40 Kan. 206, 19 
 Pac. 658, 2: 56 
 
 2. An alley retains its character as an al- 
 ley, although the lots on both sides thereof 
 are owned by one person, and it is so inter- 
 sected by a railroad as to make it practi- 
 cally impassable. Id. 
 Rights of abutting owner. 
 
 Easement in, see Easements, 65, 85, 86, 101, 
 107-109. 
 
 3. Special damages are caused to an abut- 
 ting owner by an overhead bridge across a 
 public alley or street, when the light and air 
 passing to his property over such alley will 
 be seriously diminished by the structure. 
 Field v. Barling, 149 111. 556, 37 N. E. 850, 
 
 24: 40(5 
 
 4. The right to make a bridge or overhead 
 crossing over a public alley for private use 
 cannot be granted by city authorities, al- 
 though the fee of the alley belongs to the 
 city. Id.
 
 ALLOTMENT ALTERATION OP INSTRUMENTS, L 
 
 5. The right of an abutting owner who 
 has bought with reference to a dedicated 
 public alley or street, to have it forever kept 
 open, includes the enjoyment of light and air 
 from the space above extending unobstruct- 
 ed to the sky. Id. 
 
 6. The easement of an abutting owner in 
 a public alley laid out by the original grant- 
 or of the land, who conveyed it with refer- 
 ence to the alley as a boundary, cannot be 
 taken away for private use by an ordinance 
 closing the alley. Van Witsen v. Gutman, 
 79 Md. 405, 29 Atl. 608, 24: 403 
 Personal injuries in. 
 
 7. An attempt without good cause to walk 
 through an unligbted alley in the night is 
 such negligence as to preclude a recovery for 
 injuries received by falling into an unguard- 
 ed area. Ely v. Des Moines, 85 Iowa, 55, 
 52 N. W. 475, 17: 124 
 
 8. An alley not opened for public use, 
 or used in fact as an alley, and which ex- 
 ists only on a recorded p'.at of a city addi- 
 tion, is not within ordinances prohibiting 
 uncovered excavations near an alley or other 
 public place, or vehicles therein. Hunter v. 
 Weston, 111 Mo. 176, 19 S. W. 1098, 
 
 17: 633 
 
 ALLOTMENT. 
 Of Homestead, see Homestead, V. 
 
 ALLOWANCE. 
 
 Against Decedent's Estate, see Executors 
 
 and Administrators, 136. 
 To Widow of Nonresident, see Executors and 
 
 Administrators, 175. 
 
 ALLUVION. 
 Compensation for Loss of, see Waters, 216. 
 
 4 
 
 ALMANAC. 
 
 Editorial Notes. 
 
 As Evidence. 40: 560. 
 
 Judicial notice of facts stated in. 4: 35.* 
 
 ALMS HOUSE. 
 
 Liability of Physicians in, see Physicians 
 and Surgeons, 45. 
 
 ALTERATION. 
 
 Of Highways, see Highways, V. b. 
 Revocation of Will by, see Wills, 57-61. 
 
 ALTERATION OF INSTRUMENTS. 
 
 I. In General. 
 II. Bills and Notes. 
 
 a. In General. 
 
 b. What Alterations are Material. 
 HI. Editorial Notes. 
 
 Bank's Liability for Loaning Money on 
 Raised Collateral, see Banks, 292. 
 
 Presumption and Burden of Proof as to, see 
 Evidence, 690-694. 
 
 As to Forgery Generally, see Forgery. 
 
 Effect of Guaranty, see Guaranty. 28. 
 
 As Proximate Cause of Injury, see Proxi- 
 mate Cause, 133. 
 
 Question for Jury as to, see Trial, 251. 
 
 L In General. 
 
 1. Changes made in a contract by stran- 
 gers to it, however material, are ineffective 
 to give to the instrument any other or differ- 
 ent meaning or operation than that which 
 attached to it before such' intermeddling. 
 Anderson v. Bellinger, 87 Ala. 334, 6 So. 82, 
 
 4:680 
 
 2. An alteration may be made in an in- 
 strument by words added thereto which are 
 not literally incorporated in the body there- 
 of. Sanders v. Bagwell, 32 S. C. 238, 10 S. 
 E. 946, 7: 743 
 
 3. The unauthorized insertion of the word 
 "gold" before the word "dollars" in an in- 
 strument, after its execution and delivery, 
 is a material alteration. Foxworthy v. 
 Colby, 64 Neb. 216, 89 N. W. 800, 62: 393 
 Bonds. 
 
 Erasure of Names of Sureties on, see Prin- 
 cipal and Surety, 18-20. 
 
 4. A surety has the right to stand upon 
 the very terms of his contract; his contract 
 cannot be changed in any respect, whether 
 a subsequent alteration is or is not to his 
 benefit is not open to inquiry. An altera- 
 tion, however, in order to operate as a dis- 
 charge of the surety, must be material, and 
 change the legal import of the instrument. 
 Anderson v. Bellinger, 87 Ala. 334, 6 So. 82, 
 
 4: 680 
 
 5. After the sheriff has received and ap- 
 proved a bond given in a claim suit, the sub- 
 sequent signature of another surety thereto 
 will not vitiate the bond or release the for- 
 mer surety. Id. 
 
 6. The doctrine of spoliation has nothing 
 to do with the question of the effect of eras- 
 ing the name of a surety before the approval 
 of a bond, upon the liability of other sure- 
 ties. State v. McGonigle, 101 Mo. 353, 13 S. 
 W. 758, 8: 735 
 
 7. Alteration of a bond after execution, by 
 an agent of the obligee without authority, 
 express or implied, will not avoid it. White 
 Sewing Machine Co. v. Dakin, 86 Mich. 581, 
 49 N. W. 583, 13: 313 
 
 8. The interlineation of an agreement to 
 pay attorneys' fees, in that clause of a bond 
 to secure an agent's possible indebtedness to 
 his principal, in which the obligors bind
 
 ALTERATION OF INSTRUMENTS, II. a. 
 
 41 
 
 themselves to pay the penalty, which has 
 been fixed at a definite amount, is not a 
 material alteration which will avoid the 
 bond, under a statute providing that judg- 
 ment in case of breach shall be entered for 
 the penalty, and execution issued for the 
 damages assessed by the jury, not to exceed 
 the penalty, as it cannot affect the judgment 
 or amount of damages assessed. Id. 
 
 Mortgages. 
 See also infra, 21. 
 
 9. An alteration in a mortgage, made by 
 the attorney who drew it, without the 
 knowledge of the mortgagee and, with the 
 purpose of procuring the assent of the 
 mortgagor and his reacknowledgment, will 
 not invalidate the instrument. Gleason v. 
 Hamilton, 138 N. Y. 353, 34 N. E. 283, 
 
 21:210 
 
 II. Bills and Notes. 
 a. In General. 
 
 Bank's Liability on Altered Checks, see 
 Banks, IV. a, 3, b, 2. 
 
 Consideration for Ratification of Altered In- 
 strument, see Bills and Notes, 45. 
 
 Alleging Ratification of Altered Note, see 
 Pleading, 291. 
 
 Presumption and Burden of Proof as to, see 
 Evidence, 691-694. 
 
 Evidence as to, see Evidence, 2063, 2078. 
 
 10. The same rule as to alteration applies 
 to negotiable promissory notes as to other 
 instruments. Wilson v. Haves, 40 Minn. 
 531, 42 N. W. 467, 4: 196 
 
 11. The maker of a negotiable instrument 
 complete in all its parts is not bound at his 
 peril to guard against the commission of 
 forgery by one into whose hands such instru- 
 ment may come. Bank of Herington v. 
 Wangerin, 65 Kan. 423, 70 Pac. 330, 59: 717 
 By agent. 
 
 See also supra, 7. , 
 
 12. The unauthorized alteration of an in- 
 strument by an agent with whom it is left 
 to be delivered does not bind the principal. 
 Walsh v. Hunt, 120 Cal. 46, 52 Pac. 115, 
 
 39: 697 
 
 13. An alteration of an obligation, 
 amounting to forgery, by an agent of the 
 maker, does not avoid the contract in its en- 
 tirety or prevent a recovery by an innocent 
 holder upon it in accordance with its origi- 
 nal terms, if they can be ascertained. Id. 
 
 14. A bank which issues to a confidential 
 clerk and employee a draft upon another 
 bank, upon such clerk's representation that 
 he desires it for the purpose of making a re- 
 mittance, is not liable to a bona fide holder 
 of such draft who takes it after it has been 
 raised by such clerk to a larger amount, for 
 the increased amount, since such clerk does 
 not in raising it act for the bank or in his 
 capacity as clerk. Exchange Nat. Bank v. 
 Bank of Little Rock, 19 U. S. App. 152, 7 
 C. C. A. Ill, 58 Fed. 140, 22: 686 
 Effect. 
 
 See also supra, 12-14; infra, II. b. 
 For Editorial Notes, see infra, III. 
 
 15. A material and fraudulent alteration 
 of a promissory note defeats any recovery 
 on the original consideration for which it 
 was given, as well as upon the note. Wal- 
 ton Plow Co. v. Campbell, 35 Neb. 173, 52 
 N. W. 883, 16: 468 
 
 16. A material alteration of a promissory 
 note by any of the parties thereto discharges 
 from liability all other parties not consent- 
 ing to or authorizing the alteration, whether 
 or not it is apparently or presumably to 
 their benefit or detriment. Montgomery v. 
 Crosthwait, 90 Ala. 553, 8 So. 498, 12: 140 
 
 17. A material alteration of a promissory 
 note invalidates the paper as to the maker, 
 who has not assented to or ratified the 
 change, even in the hands of a bona fide 
 holder for value. Erickson v. First Nat. 
 Bank, 44 Neb. 622, 62 N. W. 1078, 28: 577 
 
 18. Signing an instrument in which the 
 amount to be paid is written in pencil, and 
 leaving it with an agent to be delivered for 
 a loan, do not constitute negligence or render 
 the maker liable to an innocent holder for 
 the forgery of the agent in raising the same. 
 Walsh v. Hunt, 120 Cal. 46, 52 Pac. 115, 
 
 39: 697 
 
 19. A drawer of a draft or note complete 
 in itself, but in such form as to be easily al- 
 tered without attracting attention, is not 
 liable for the amount to which it is after- 
 wards fraudulently raised by a third person 
 without his knowledge or authority, even 
 to an innocent purchaser, since it is not his 
 negligence, but the crime of the forger, that 
 is the proximate cause of the loss. Ex- 
 change Nat. Bank v. Bank of Little Rock, 19 
 U. S. App. 152, 7 C. C. A. Ill, 58 Fed. 140, 
 
 22: 686 
 
 20. The indorser of a note before it was 
 signed, who gave it to the maker to be 
 signed, for the purpose of raising money for 
 both of them, is not released as indorser by 
 the fact that the maker changed his signa- 
 ture to that of his firm by adding "& Co." 
 since, so far as the indorser was concerned, 
 he could have signed the firm name in the 
 first place. Montgomery v. Crosthwnit, 90 
 Ala. 553, 8 So. 498, 12: 14 
 
 21. A mortgage is discharged by the 
 fraudulent alteration of a promissory note 
 which is secured by it. Walton Plow Co. v. 
 Campbell, 35 Neb. 173, 52 N. W. 883, 16: 468 
 Subsequent assent. 
 
 For Editorial Nctes, see infra, III. 
 
 22. Where the holder of a promissory note 
 makes a fraudulent alteration amounting 
 in law to a forgery, destroying the instru- 
 ment and extinguishing the debt, a subse- 
 quent assent by the maker to such altera- 
 tion, without any new consideration, will 
 not create any liability upon the note as al- 
 tered in favor of the holder who made the 
 fraudulent alteration. Wilson v. Hayes, 40 
 Minn. 531, 42 N. W. 467, 4: 196 
 Striking out alteration. 
 
 23. The fraudulent addition after indorse- 
 ment of a promissory note, of words to make 
 it payable with interest, will prevent recov- 
 ery from the indorser, although such words 
 have been stricken out before they come in- 
 to the hands of a bona fide holder who
 
 42 
 
 ALTERATION OP INSTRUMENTS, II. b, III. 
 
 brings suit upon the note. Citizens' Nat. 
 Bank v. Williams, 174 Pa. 66, 34 Atl. 303, 
 
 35: 464 
 
 b. What Alterations are Material. 
 
 What Constitutes Forgery, see Forgery, 7, 8. 
 For Editorial Notes, see infra, III. 
 
 24. An application for insurance, on a sin- 
 gle sheet containing at the bottom a prom- 
 issory note intended to secure assessments, 
 is a single contract of which the removal of 
 the note is a material alteration, so that it 
 is void, even in the hands of a bona fide 
 holder, although the note is written below a 
 perforated line, if the general appearance of 
 the paper is such that the applicant is not 
 guiltv of negligence in signing it. Rochford 
 v. McGee, 16 S. D. 606, 94 N. W. 695, 61: 335 
 Altering date. 
 
 25. An alteration of the date of a promis- 
 sory note by the payee without the maker's 
 knowledge or consent will render the instru- 
 ment void, even in the hands of an innocent 
 purchaser for value. Newman v. King, 54 
 Ohio St. 273, 43 N. E. 683, 35: 471 
 Changing rate of interest. 
 
 See also supra, 23. 
 
 26. Inserting the figure "8" before the 
 words "per cent interest," in a promissory 
 note, is a material alteration. Palmer v. 
 Poor, 121 Ind. 135, 22 N. E. 984, 6: 469 
 
 27. An addendum written below the signa- 
 tures on a sealed note bearing interest at 
 7 per cent, saying, "The above note is to 
 be accounted for, with interest at 8 per cent 
 per annum," and signed by the principal 
 obligor on the note, constitutes a material 
 alteration which will avoid the note as 
 against a surety thereon who did not consent 
 to the alteration. Sanders v. Bagwell, 32 S. 
 C. 238, 10 S. E. 946, 7: 743 
 
 28. The alteration without authority or 
 direction from the holder of a note, by one 
 of the makers, changing it from a note f jr 
 $1,500 at 8 per cent'to one for $1,590 at 12 
 per cent, as well as changing the date, is a 
 material alteration which discharges an ac- 
 commodation indorser who did not consent 
 thereto. Ruby v. Talbott, 5 N. M. 251, 21 
 Pac. 72, 3: 724 
 Increasing amount. 
 
 See also supra, 28. 
 
 2!). The maker of a negotiable instrument 
 which is delivered to the payee complete in 
 all of its parts, is not liable thereon, even 
 to an innocent holder, after the same has 
 been fraudulently altered so as to express a 
 larger amount than is written therein at 
 the time of its execution. Bank of Hering- 
 ton v. Wangerin, 65 Kan. 423, 70 Pac. 330. 
 
 59: 717 
 
 30. The indorser of a promissory note 
 which is complete on its face, the sum pay- 
 able, the date, time of payment, and name 
 of payee, all being inserted, wh6 delivers 
 it to the maker, who is neither his agent nor 
 employee, to be carried to the payee, is not 
 liable to a bona fide holder for value for the 
 increased amount of the note, if the maker 
 raises it before delivering it, simply because 
 
 spaces were left in the note in such a manner 
 as to permit the words and figures to be in- 
 serted, and thus increase the amount pay- 
 able, and readily deceive innocent third par- 
 ties. Burrows v. Klunk, 70 Md. 451, 17 Atl. 
 378, 3: 576 
 
 Altering name of maker. 
 
 31. The fact that the addition of "& Co." 
 to the maker's name on a note is ineffectual 
 to bind his partners will not prevent it from 
 being a material alteration as to an in- 
 dorser. Montgomery v. Crosthwait, 90 Ala. 
 553, 8 So. 498, 12: 140 
 
 32. Adding "& Co." to his name by the 
 maker of a note is a material alteration 
 of it, which will release the indorser if done 
 without his consent or authority. Id. 
 Adding new maker. 
 
 33. The addition by the payee, after deliv- 
 ery of a note to him, of the name of another 
 person as comaker, is such an alteration as 
 relieves the maker. Brown v. Johnson Bros. 
 127 Ala. 292, 28 So. 579, 51:403 
 Inserting or changing payee's name. 
 
 See also infra, 37. 
 
 34. The holder of a note is not authorized 
 to insert the name of a payee on the theory 
 that he is authorized to fill blanks, where no 
 space is left for such name, but the words 
 follow each other in close order, and hiatus 
 having been inadvertently left in the sense 
 of the instrument. Smith v. Willine, 123 
 Wis. 377, 101 N. W. 692, 68: 940 
 
 35. The fraudulent erasure of the name of 
 the original payee of a promissory note after 
 its execution, by a party to the instrument, 
 and the substitution of another name with- 
 out the consent of the maker, is a material 
 alteration. Erickson v. First Nat. Bank, 44 
 Neb. 622, 62 N. W. 1078, 28: 577 
 Inserting word "bearer." 
 
 36. An unauthorized alteration of a non- 
 negotiable note by the payee, by inserting 
 the word "bearer" after his name, is a mate- 
 rial alteration which will nullify the instru- 
 ment. Walton Plow Co. v. Campbell, 35 
 Neb. 173, 52 N. W. 883, 16: 468 
 
 37. Filling blanks in a promissory note 
 by the insertion of the words "or bearer," 
 <xnd of the name of the bank after the word 
 "at," constitutes a material alteration which 
 will avoid the note in the hands of an inno- 
 cent holder. Simmons v. Atkinson & L. Co. 
 69 Miss. 862, 12 So. 263, 23: 599 
 
 III. Editorial Notes. 
 
 What are material. 4: 197;* 7: 743.* 
 Filling blanks. 1: 648;* 6: 469.* 
 Ratification of altered or forged note. 12: 
 
 140.* 
 
 Effect of. 4: 106:* 6: 469;* 7: 743.* 
 Effect of immaterial alteration. 7: 743.* 
 Effect on surety. 7: 743.* 
 Effect of alteration of promissory note, gen- 
 erally. 3: 724.* 
 
 Effect of alteration by maker to dis- 
 charge indorser. 3:726.* 
 Change in date. 3: 725.* 
 Change in amount. 3: 725.*
 
 AMBIGUITY ANARCHIST. 
 
 43 
 
 Alteration of interest clause. 3: 725.* 
 Inserting a place of payment. 3: 726.* 
 Effect of consent to alteration. 3: 726.* 
 Effect of, as a discharge. 4: 196,* 198.* 
 Alteration by stranger. 4 : 196.* 
 By holder of bill of exchange. 4: 196.* 
 By agent. 4: 196.* 
 
 Effect upon bona fide holder. 35: 464. 
 Effect on mortgage of alteration of note se- 
 cured thereby. 16: 468. 
 Liability of bank to depositor for payment 
 
 of altered check. 2: 96.* 
 Liability of maker or drawer on raised ne- 
 gotiable paper. <22: 686. 
 Duty of party producing instrument to ac- 
 count for alterations. 13: 
 313.* 
 
 Alteration in books of account, as affecting 
 admissibility in evidence. 
 . 52: 574. 
 
 Forgery by altering mere memorandum. 
 54: 794. 
 
 AMBIGUITY. 
 
 Parol Evidence to Explain, see Evidence, VI. 
 
 e. 
 [n Statute, see Statutes, 52-63. 
 
 AMENDMENTS. 
 
 On Appeal, see Appeal and Error, IV. d ; VII. 
 
 c. 
 
 [n Attachment Suit, see Attachment, 50-52. 
 Of Constitution, By-Laws, etc., of Benefit 
 
 Society, see Benevolent Societies, 24-37. 
 Of Charter, see Corporations, 72-77 ; Munici- 
 
 pal Corporations, 42-46. 
 Of Constitution, see Constitutional Law, I. 
 
 a. 2; Courts, 119-121; Criminal Law, 
 
 123. 
 Of Statute in Election Contest, see Elections, 
 
 342-344. 
 Of Petition in Condemnation Proceedings, 
 
 see Eminent Domain, 177. 
 Of Execution, see Execution, 6. 
 In Garnishment Proceedings, see Garnish- 
 
 ment, 105. 
 
 Of Information, see Indictment, etc., 127. 
 Of Judgment, see Judgment, I. g. 
 As Affecting Limitation of Action, see Limi- 
 
 tation of Actions, 237-244. 
 Effect of, on Purchaser Pendente Lite, see 
 
 Lis Pendens, 21. 
 
 In Mandamus Case, see Mandamus, 219. 
 Of Lien Claim or Statement, see Mechanics' 
 
 Liens, 116, 117. 
 Of Declaration of Location of Mining Claim, 
 
 see Mines, 9; 10. 
 Of Ordinance, see Municipal Corporations, 
 
 81. 
 
 Of Affidavit, see Oath, 5. 
 Of Pleading, see Divorce and Separation, 10; 
 
 Parties, 220, 221 ; Pleading, I. n; Remov- 
 
 al of Causes, 51. 
 
 Of Statutes, see Statutes, I. e. 3; III. 
 Of Verdict, see Trial, V. d. 
 Of Writs, see Writ and Process, 6, 7. 
 
 AMERICAN SUNDAY SCHOOL UNION. 
 
 Exemption of, from Taxation, see Taxes, 
 311. 
 
 AMICUS CURUE. 
 
 Application by, for Rehearing, see Appeal 
 and Error, 1254. 
 
 Notice of Motion by, see Motions and Or- 
 ders, 2. 
 
 An attorney as amicus curice may move to 
 dismiss an action as collusive: and it is his 
 duty to do so if he knows, or has reason to 
 believe, that the action is fictitious. Haley 
 v. Eureka County Bank, 21 Nev. 127, 26 Pac. 
 64, 12: 815 
 
 AMNESTY. 
 
 Editorial Notes. 
 Legislative power to grant. 34: 251. 
 
 AMOUNT IN CONTROVERSY. 
 
 For Purpose of Jurisdiction, see Appeal and 
 Error, 95-98; Courts, 290-293. 
 
 AMPUTATION. 
 
 Liability for Failure to Deliver Amputated 
 Portion of Limbs, see Hospitals, 7. 
 
 AMUSEMENTS. 
 
 Civil Rights in Places of, see Civil Rights, 
 1-6. 
 
 Prohibiting Keeping of Devices for, in Sa- 
 loons, see Intoxicating Liquors, 36, 47. 
 
 Liability for Selling Liquor in Place of, see 
 Intoxicating Liquors, 173. 
 
 See also Bathing Resort; Exhibition; Horse 
 Race; Public Resorts. 
 
 Editorial Notes. 
 
 Use of public money for entertainments. 
 
 14: 475. 
 Municipal regulation of, as a nuisance. 39: 
 
 528. 
 Injunction against, by municipality. 41: 
 
 322. 
 Delegation of power to license. 20: 721. 
 
 ANARCHIST. 
 
 As Libelous Appellation, see Libel and Slan- 
 der, 30, 31. 
 See also Sedition.
 
 ANCIENT BOOK ANIMALS. 
 
 ANCDINT BOOK. 
 
 Editorial Notes. 
 Use of, as evidence. 53 : 532. 
 
 ANCIENT DOCUMENTS. 
 
 Editorial Notes. 
 
 Necessity of proving, by subscribing wit- 
 nesses. 35: 341. 
 
 Adverse possession under ancient deed. 10: 
 388.* 
 
 ANCIENT ORDER OF UNITED WORK- 
 MEN. 
 
 Right to Use of Name, see Corporations. 44. 
 
 *-- 
 
 ANCILLARY ADMINISTRATION. 
 
 Collateral Attack on Award to Administra- 
 tor, see Judgment, 125. 
 
 See also Executors and Administrators, 7, 28, 
 29, 40, 114, 12G-128, 133, 163, 164, 168, 
 184. 
 
 Editorial Notes. 
 
 When ancillary letters granted. 9: 218,* 
 246.* 
 
 Distribution when domiciliary and ancillary 
 administrators have been 
 appointed. 9: 219,* 246.* 
 
 ANCILLARY JURISDICTION. 
 In Federal Court, see Courts, III. g. 
 
 ANCILLARY RECEIVER. 
 See Garnishment, 78; Receivers, VL 
 
 AND. 
 
 Meaning of, see Contracts, 275 ; Corporations, 
 133. 
 
 ANIMALS. 
 
 L Rights and Liabilities Concerning. 
 
 a. Rights of Owners Generally. 
 
 b. Liability for Killing Dogs. 
 
 c. Liability for Injuries by. 
 
 1. Stock. 
 
 2. Dogs. 
 
 d. Running at Large. 
 
 I. continued. 
 
 e. Animals with Infectious Diseases. 
 
 f. Tax on Dogs, 
 n. Cruelty to. 
 
 III. Editorial Notes, 
 
 Bailment of Horse, see Bailment, 25, 26. 
 
 Transportation of, see Carriers, II. b, 6; 
 III. 39; Commerce, 44. 
 
 Chattel Mortgage on, see Chattel Mortgage^ 
 11, 23. 
 
 Unlicensed, Delegating Power to Humane 
 Society to Destroy, see Constitutional 
 Law, 172. 
 
 Privilege of Humane Society to Keep Dogs 
 without License, see Constitutional 
 Law, 470. 
 
 Dipping bheep from Other State, see Consti- 
 tutional Law, 383; Evidence, 1944; Of- 
 ficers, 200. 
 
 Due Process as to, see Constitutional Law, 
 769-777. 
 
 Police Power as to, see Constitutional Law, 
 362, 973-978. 
 
 Damages for Killing of, or Injury to, see 
 Damages, 239, 380, 386. 
 
 Order of \ eterinary Surgeon to Examine, see 
 Discovery and Inspection, 16. 
 
 Judicial Notice as to,- see Evidence, 128-130, 
 167. 
 
 Opinion Evidence as to Value of, see Evi- 
 dence, 1334-1336. 
 
 Evidence of Pedigree of Dog, see Evidence, 
 1476. 
 
 Exemption of, see Exemptions, 40, 41. 
 
 Fright of, see Blasting, 5, 7, 8, 20; Evidence, 
 128, 1968; Highways, 263, 264, 289, 290, 
 295, 298, 299, 338, 356 ; Proximate Cause, 
 81, 82, 98-102, 121, 141-143; Railroads, 
 II. d, 5; Street Railways, 140-144; 
 Trial, 355, 356, 363, 378, 386, 562, 563. 
 
 As Game, see Game Laws. 
 
 Prohibiting Driving of, in Highway, see Con- 
 stitutional Law, 325. 
 
 Injunction against Permitting in Park, see 
 Injunction, 172. 
 
 Insurance of Horse, see Insurance, 472. 
 
 Conclusiveness of Judgment as to Increase 
 of, see Judgment, 177. 
 
 Lien for Keeping, see Liens, 11-13, 17-22. 
 
 Assumption of Risk of Injury by, see Master 
 and .servant, 268. 
 
 Monopoly in Removal of Carcasses, see Mo- 
 nopoly, 3. 
 
 Ordinance for Muzzling Dogs, see Municipal 
 Corporations, 67. 
 
 Municipal Regulations as to Dead Animals, 
 see Municipal Corporations, 211-213. 
 
 Ordinance against Keeping Hogs in City, see 
 Municipal Corporations, 217. 
 
 Contributory Negligence as to Horse, see 
 Negligence, 239, 240. 
 
 Imputing Bailee's Negligence to Bailor, see 
 Negligence, 252. 
 
 Slaughter House as Nuisance, see Nuisances, 
 44-48. 
 
 Proximate Cause of Injury to, by Train, ses 
 Proximate Cause, 84, 85. 
 
 Bounty for Killing Coyotes, see Public Mon- 
 eys, 50. 
 
 Injury to, by Railroad Trains, see Railroads, 
 II. d, 6; II. e, 4; III. 17.
 
 ANIMALS, I. a, b. 
 
 45 
 
 Warranty of Horse, see Sale, 54, 56, 69, 70. 
 Stable for Horses, see Livery Stable; Stable. 
 Trespass by Placing Wild Animals in Park, 
 
 see Trespass, 4. 
 See also Bees; Blood Hounds. 
 
 I. Rights and Liabilities Concerning. 
 a. Rights of Owners Generally. 
 
 Presumption of Ownership of, see Evidence, 
 
 723. \ 
 
 For Editorial Notes, see infra, III. 1. 
 
 1. A contract for the use of a mare for the 
 purpose of breeding a colt, which gives ^a 
 right to possession of her until the colt is 
 bred, foaled, and weaned, establishes a right 
 to the colt as against a subsequent execu- 
 tion creditor of her own?r. Maize v. Bow- 
 man, 93 Ky. 205, 19 S. W. 589, 17: 81 
 
 2. Liberating an animal captured during 
 close time in violation of statute interferes 
 with no legal right or title of the person il- 
 legally holding it captive, and gives him no 
 right of action. James v. Wood, 82 Me. 173. 
 19 Atl. 160, 8: 448 
 Property right in dogs. 
 
 See also infra, 8, 9, 14. 
 
 For Editorial Notes, see infra, III. 1. 
 
 3. There is only a qualified property in 
 dogs, and in fact there may be said to be 
 no property in them as against the police 
 power of the state, though as against a 
 wrongdoer the law regards them as proper- 
 ty. Fox v. Mohawk & H. R. Humane Soc. 
 165 N. Y. 517, 59 N. E. 353, 51: 681 
 
 4. The owner of a dog has such a prop- 
 erty in it as will entitle him to maintain 
 trover for its recovery in case of its wrong- 
 ful conversion. Graham v. Smith, 100 Ga. 
 434, 28 S. E. 225, 40: 503 
 
 5. A dog is the subject of larceny under 
 Iowa Code 1873, 3902, making it a crime 
 for anyone to steal any "chattels" of an- 
 other. Hamby v. Samson, 105 Iowa, 112, 74 
 N. W. 918, 40: 508 
 Property right in animals ferae naturae. 
 
 6. To acquire a property right in animals 
 ferce nature so that tney may be the sub- 
 ject of larceny, the pursuer must bring them 
 into his power and control, so that he may 
 subject them to his own use at his pleasure, 
 and must so maintain his possession and 
 control as to indicate that he does not intend 
 to abandon them again to the world at 
 large; but, in cases where larceny is 
 charged, the law does not require absolute 
 security against the possibility of escape. 
 State v. Shaw, 67 Ohio St. 157, 65 N. E. 
 875, 60: 481 
 Right to recover for injury to trespassing 
 
 animal. 
 
 7. A statute and custom depriving the 
 owner of unfenced land of the right to re- 
 cover for injuries caus?d by trespassing ani- 
 mals do not require him to keep the proper- 
 ty safe for such animals, so as to charge 
 him with the loss in case he leaves poisonous 
 liquids used in his business exposed where, 
 without his knowledge, the animals drink it 
 
 and perish. Beinhorn v. Griswold, 27 Mont. 
 79, 69 Pac. 557, 59: 771 
 
 b. Liability for Killing Dogs. 
 
 Loss of Right to Recover for Injury to Dog, 
 
 see Action or Suit, 38. 
 Loss of Dog on Train, see Carriers, 683. 
 Due Process as to Killing, see Constitutional 
 
 Law, 911-913. 
 City's Liability for Reckless Attempt to 
 
 Kill, see Municipal Corporations, 478, 
 
 479. 
 
 On Railroad Track, see Railroads, 231-234. 
 By Street Car, see Street Railways, 136-139. 
 Question for Jury as to, see Trial, 135, 136. 
 See also Statutes, 484. 
 For Editorial Notes, see infra, III. 1, 5. 
 
 8. A dog is "property" within the mean- 
 ing of the constitutional provision against 
 taking property without due process of law. 
 Jenkins v. Ballantyne, 8 Utah, 245, 30 Pac. 
 760, 16: 689 
 
 9-10. The owner of a dog has such proper- 
 ty in him that he may maintain an action 
 for killing or injuring him. Citizens' Rapid 
 Transit Co. v. Dew, ICO Tenn. 317, 45 S. W. 
 790, 40: 518 
 
 11. A dog has a money value in Nebraska, 
 which the owner may recover from one who 
 wrongfully and unlawfully kills the dog. 
 Nehr v. State, 35 Neb. 638, 53 N. W. 589, 
 
 17: 771 
 
 12. Evidence of the market value of dogs 
 is not necessary to sustain a judgment for 
 damages for poisoning them, where there is 
 proof of their usefulness and services from 
 which the jury can infer value. Heiiigmann 
 v. Rose, 81 Tex. 222, 16 S. W. 931, 13: 272 
 
 13. The killing of a dog which is "justifi- 
 able in the protection of life or property," 
 under Conn. Gen. Stat. 3755, extends to a 
 killing which is justifiable under the stat- 
 utes of the state, as well as to that which 
 is justifiable under the common law. Sim- 
 monds v. Holmes, 61 Conn. 1, 23 Atl. 702, 
 
 15: 253 
 
 14. The wilful and malicious killing of a 
 dog is not an indictable offense under Ga. 
 Code, 4627, as the "injuring or destroying 
 . . . public or private property," even if 
 dogs are regarded as property, since this 
 statutory provision is intended to apply ex- 
 clusively to inanimate property. Patton v. 
 State, 93 Ga. Ill, 19 S. E. 734, 24: 732 
 By person assaulted by dog. 
 
 15. The right of a person whom a dog has 
 suddenly assaulted, to kill the dog, under R. 
 I. Pub. Stat. chap. 93, 6, need not be exer- 
 cised instantly, but the person has a right 
 to go for a weapon and return and kill the 
 dog. Spaight v. McGovern, 16 R. I. 658, 19 
 Atl. 246, 7: 388 
 
 16. The fact that a person assaulted by a 
 dog followed it into the shop of a third per- 
 son and killed it there does not make him 
 liable to the owner of the dog, where the 
 statute gave him a right to kill it. Id. 
 
 17. A man bitten in consequence of his in- 
 terference between two dogs to separate 
 them is not sudderily assaulted, within the 
 meaning of R. I. Pub. Stat. chap. 93, 6>
 
 46 
 
 ANIMALS, I. c, 1. 
 
 so a.9 to give him the right to kill the dog. 
 
 Id. 
 
 18. A dog that persistently and "in a 
 threatening manner assails people passing 
 along a public road is a nuisance, and may 
 be killed by any person so assailed. Nehr 
 v. State, 35'Neb. 638, 53 N. W. 589, . 17: 771 
 By poiice officers. 
 
 For Editorial Note, see infra, III. 1. 
 
 19. Ine killing, by po.ice officers, of an 
 unmuzzled dog, when running at large upon 
 the city streets, unattended by any person, 
 at a time when there is danger of hydro- 
 phobia and an ordinance requires dogs to be 
 muzzled or confined, is justifieu by Burns's 
 (Ind.) Rev. Stat. 1894, 2857, the substance 
 of which is re-enacted in Burns's Supp. 
 Rev. Stat. 1897, 2864a-2864o (Ind. Acts 
 1897, p. 178). Walker v. Towle, 156 Ind. 
 639, 59 N. E. 20, 53: 749 
 Dogs running at large. 
 
 Police Power as to, see Constitutional Law, 
 977, 978. 
 
 20. A dog running at large without a col- 
 lar having a metallic plate thereon on which 
 is inscribed the name of the owner may, un- 
 der the Nebraska statute, be lawfully killed 
 by any person. Nehr v. btate, 35 Neb. 638, 
 53 N. W. 589, 17: 771 
 
 21. A dog is running at large so that it is 
 lawful to kill him under Neb. Consol. Stat. 
 191, if he has not the required collar on 
 when he leaves the owner's premises or goes 
 upon the public road, no one having control 
 of him being near. Id. 
 Trespassing dog. 
 
 22. A trespassing dog cannot lawfully be 
 killed mere.y because the owner has been 
 notified to keep the dog off the premises. 
 Hodges v. Causey, 77 Miss. 353, 26 So. 945, 
 
 48: 95 
 
 23. The right to kill a dog "found doing, 
 or attempting to do mischief when not under 
 the care of any person," which is given by 
 Conn. Gen. Stat. 3757, is not limited to 
 damages done by his teeth or to animal life, 
 but extends to injuries by destroying young 
 and tender plants in a garden, and does not 
 depend on the relntive value of the dog 
 and the property. Simmonds v. Holmes, 61 
 Conn. 1, 23 Atl. 702, 15: 253 
 Barking dog. 
 
 24. Shooting into a congregation of dogs 
 on cne'* premises at night, barking, quarrel- 
 ing, and fighting there so as to keep the 
 family awake and seriously annoy them, 
 and which has become an intolerable nui- 
 sance, is justified if it is a reasonable and 
 necessary means to protect the family from 
 such nuisance. Hubbard v. Preston, 90 Mich. 
 221, 51 N. W. 209, 15: 249 
 
 25. A man is not justifiHl in killing his 
 neighbor's valuable dog, of which he has 
 never made complaint although knowing the 
 owner, merely because the dog has barked 
 around his house at night, and chased cats 
 into the trees, and has left tracks on his 
 freshly painted porch, and has once been 
 found in his henhouse, in which he did no 
 damage, except perhaps to break one egg. 
 Eowers v. Horan, 93 Mich. 420, 53 N. W. 
 535, 17: 773 
 
 c. Liability for Injuries by. 
 1. Stock. 
 
 Liability for Communication of Infectious 
 Diseases, see infra, I. e. 
 
 Due Process in Permitting Sale of Trespass- 
 ing Animals, see Constitutional Law, 
 909. 
 
 As to Duties and Liabilities as to Fences, 
 see Fences. 
 
 For Editorial Notes, see infra. III. 1, 5. 
 
 26. The owner is not in general liable for 
 an injury committed by a domestic animal 
 while in a p.ace where it rightfully may be, 
 unless it is shown that the animal was vi- 
 cious in the particular complained of, and 
 that the owner had notice of such vicious 
 propensity. Morgan v. Hudnell, 52 Ohio bt. 
 552, 40 N. E. 716, 27: 862 
 While trespassing or running at large gen- 
 erally. 
 
 Duties and Liabilities as to Fences, see 
 
 Fences. 
 
 See also infra, 51. 
 For Editorial Notes, see infra, III. 1, 5. 
 
 27. The common-law ru.e requiring an 
 owner to keep his stock within his own in- 
 clcsure is not in force in Oregon. Moses v. 
 Southern P. R. Co. 18 Or. 385, 23 Pac. 498, 
 
 8: 135 
 
 28. The common-law rule which requires 
 the owner of animals to keep them on his 
 own land or within inclosures is not in force 
 in Virginia, being inconsistent with Va. Acts 
 1893-94, p. 941, and other legislation of the 
 state making provisions as to what shall 
 constitute a lawful fence, except in counties 
 which have adopted what is known as the 
 "No Fence Law," thereby restoring the com- 
 mon-law rule in those localities. May v. 
 Poindexter, 98 Va. 143, 34 S. E. 971, 
 
 47 : 588 
 
 29. The common-law rule as to the duty 
 of the owners of domestic animals to keep 
 them from trespassing exists in Illinois, un- 
 der the act of 1874, except in districts where 
 a vote taken under the statute has estab- 
 lished the contrary rule, although for a 
 long period of time the common- law rule 
 was rejected in that state as inapplicable to 
 its conditions. Bulpit v. Matthews, 145 111. 
 345, 34 N. E. 525, 22: 55 
 
 30. Knowledge that cattle are liable to 
 break fences is necessary in order to make 
 the owner liable in Texas for permitting 
 them to run at large. Clarendon Land, I. 
 & A. Cp. v. McClelland Bros. 89 Tex. 483, 
 34 S. W. 98, 35 S. W. 474, 31 : 66!) 
 
 31. If an animal breaks into the close of 
 Another, and there damages the real or per- 
 sonal property of the one in possession, even 
 if it is by viciously attacking another ani- 
 nal, the owner of the trespassing animal is 
 iable without reference to whether or not 
 mch animal was vicious and without refer - 
 jnce to whether such propensity was known 
 
 the owner. Morgan v. Hudnell, 52 Ohio 
 St. 552, 40 N. E. 7l6, 27: 862 
 
 32. The owner of an unaltered jack is not 
 liable for a filly killed by it, where, without
 
 ANIMALS, 1. c, 2. d. 
 
 47 
 
 his knowledge or intentional or negligent 
 permission, it broke from the place in which 
 it was kept, under Sand. & H. (Ark.) Dig. 
 7301, making the owner of such animal lia- 
 ble for ail damages sustained by its "run- 
 ning at large." Briscoe v. Alfrey, 61 Ark. 
 196, 32 S. W. 505, 30: 607 
 
 33. The owners of domestic animals are 
 liable at common law for damages commit- 
 ted by them in trespassing, without regard 
 to the negligence of the owners in permit- 
 ting them to escape, or to the fact of inclo- 
 sure, or lack of inclosure, of premises on 
 which they are trespassing. "Bulpit v. 
 Matthews, 145 111. 345, 34 N. E. 525, 
 
 22:55 
 
 2. Dogs. 
 
 Proximate Cause of Injury, see Proximate 
 Cause, 130, 131. 
 
 34. Although an owner of an animal is 
 not responsible when damage is caused by 
 an unforeseen accident, or an accident he 
 could not guard against, as, when it arises 
 from vis major, he is responsible when he 
 is chargeable with the least fault. Delisle v. 
 Bourriague, 105 La. 77, 29 So. 731, 54: 420 
 Liability of person harboring. 
 
 35. One who harbors a dog on his prem- 
 ises as owners usually do with their dogs 
 is to be deemed the owner under a statute 
 respecting the liability of owners for inju- 
 ries done by dogs. Shultz v. Griffith, 103 
 Iowa, 150, 72 N. W. 445, 40: 117 
 
 36. A married woman is liable for an in- 
 jury caused by the bite of her husband's dog 
 which she harbors on her own premises, with 
 knowledge of its vicious propensities. Quil- 
 ty v. Battie, 135 N. Y. 201, 32 N. E. 47, 
 
 17: 521 
 
 37. A wife is not liable for harboring a 
 vicious dog on her own premises where her 
 husband lives with her, although the stat- 
 utes secure to married women their separate 
 estates and relieve the husband from liabil- 
 ity for his wife's torts "in the commission of 
 which he does not participate," since the dog 
 cannot be kept without his consent and par- 
 ticipation, and must be charged to his ac- 
 count as the head of the family. Strouse v. 
 Leipf, 101 Ala. 433, 14 So. 667, 23: 622 
 Knowledge of vicious disposition. 
 
 38. The mere fact that a dog bites a per- 
 son does not render the owner liable in dam- 
 ages,, where the dog has always been of a 
 kind temper, and has never given occasion to 
 suspect that he would bite, and the owner 
 is in no way in fault. Martinez v. Bernhard, 
 106 La. 368, 30 So. 901, 55: 671 
 
 39. The owner of a dog, without knowl- 
 edge of its vicious propensities, is not liable 
 for damages caused by its bite, although 
 his wife, on whose premises it is kept, is 
 found liable on the ground that she harbored 
 the dog knowing of such vicious propensities. 
 Quilty v. Battie, 135 N. Y. 201, 32 N. E. 47, 
 
 17:521 
 
 40. One whose dogs are large and appear 
 vicious is placed on her guard as to their 
 propensity to do harm. Delisle v. Bourria- 
 gue, 105 La. 77, 29 So. 731, 54:420 
 
 41. The owner of savage dogs, who re- 
 quests another to come into her yard, and, 
 after compliance with the request, does not 
 protect her from attack by the dogs, is re- 
 sponsible for the injury which the dogs in- 
 flict upon such person. Id. 
 
 42. Special negligence in permitting a vi- 
 cious dog to escape from an inclosure is not 
 necessary to create a liability tor keeping 
 such a dog with knowledge of its propensi- 
 ties, when he escapes and inflicts injuries. 
 Strouse v. Leipf, 101 Ala. 433, 14 So. 667, 
 
 23: 622 
 
 43. The owner of ferocious dogs, who 
 leaves them running loose in his back yard, 
 in a city knowing tnat they are accustomed 
 to bite, is liable for the injury, where they 
 bite a person who enters the yard on lawful 
 business without notice or knowledge of 
 the dogs. Con way v. Grant, 88 Ga. 40, 13 
 S. E. 803, 14: 196 
 
 44. That an assault committed by a dog 
 in jumping upon a stranger and injuring 
 him resulted merely from its mischievous or 
 playful propensity will not absolve the 
 owner from liability, if he knew of its dis- 
 position to commit such injuries, or knew 
 enough of its habits to convince a man of 
 ordinary prudence of its inclination to com- 
 mit them. Crowley v. Groonell, 73 Vt. 45, 
 50 Atl. 546, 55: 876 
 Contributory negligence. 
 
 45. Negligence of a party bitten by a dog 
 is immaterial under Iowa Code, 1485, on 
 the question of the liability of the owner of 
 the dog, unless that negligence amounts to 
 an unlawful act. Shultz v. Griffith, 103 
 Iowa, 150, 72 N. W. 445, 40: 117 
 
 46. One who wilfully provokes a dog to 
 bite him is not entitled to the protection 
 of a statute making the owner of a dog lia- 
 ble in case it injures any person traveling 
 on the highway or out of his inHosure. 
 Peck v. Williams, 24 R. I. 583, 54 Atl. 381, 
 
 61: 351 
 
 47. That one bitten by a dog was at- 
 tempting to climb upon the owner's cart 
 without leave does not relieve the owner of 
 liability for the injury, under a statute 
 making the owner of a dog liable, whether 
 or not he knew of its vicious propensity, if 
 it shall bite any person traveling on the 
 highway or out of his inclosure. Id. 
 
 48. A traveler going into a yard of a feed 
 and livery barn which is open to patronage 
 by the public and at which his team is being 
 kept for the night, in order to see that his 
 buggy, which was left in the yard, has been 
 put in the barn, and to get some articles 
 from it, when this is done, between 8 and 
 half past 8 o'clock in the evening, while em- 
 ployees are working at the barn, is not a 
 trespasser or doing an unlawful act within 
 the meaning of Iowa Code, 1485, so as to 
 preclude his recovering from the proprietor 
 for injuries received from a dog wbich at- 
 tacks and bites him. Shultz v. Griffith, 103 
 Iowa, 150, 72 N. W. 445, 40: 117 
 
 d. Running at Large. 
 
 Equal Protection and Privileges as to, see 
 Constitutional Law, 380.
 
 48 
 
 ANIMALS, I. e. 
 
 Due Process as to, see Constitutional Law, 
 769, 770, 910. 
 
 Police Power to Prohibit, see Constitutional 
 Law, 973. 
 
 County Law as to Hogs, see Constitutional 
 Law, 186. 
 
 Presumption as to .Lawfulness of Impound- 
 ing, see Evidence, 604. 
 
 Special Legislation as to, see Statutes, 345. 
 
 Ordinance as to, see Municipal Corporations, 
 153-162. 
 
 Municipal Liability for Injury from, see Mu- 
 nicipal Corporations, 552, 553. 
 
 See also supra, 20, 21, 27-33. 
 
 For Editorial Notes, see infra, III. 2, 8. 
 
 49. A colt three months old is not "run- 
 ning at large" within the meaning of an or- 
 dinance, when following its dam when she 
 is driven along the street with the colt 
 directly in front of or by her side until it 
 is separated from her and chased away by a 
 horse which is running at large. Elliott v. 
 Kitchens, 111 Ala, 546, 20 So. 366, 33: 564 
 
 e. Animals with Infectious Diseases. 
 
 Establishing Quarantine against Diseased 
 
 Sheep, see Commerce, 12. 
 Judicial Notice as to, see Evidence, 118. 
 Question for Jury, as to, see Trial, 501. 
 Venue of Prosecution as to, see Venue, 19. 
 For Editorial Notes, see infra, III. 3. 
 
 Liability of owner. 
 
 50. The owner of cattle is liable for their 
 communicating a disease to others, if he 
 knew or had good reason to be.ieve that 
 they could communicate it, and still let 
 them run at large. Clarendon Land I. & A. 
 Co. v. McClelland Bros. 89 Tex. 483, 34 S. 
 W. 98, 35 S. W. 474, 31: 669 
 
 51. Knowledge of the owner that cattle 
 were breachy, but without knowledge or 
 good reason to believe that they were liable 
 to communicate disease, will not make him 
 responsible for the effect of such disease actu- 
 ally imparted to the cattle of another per- 
 son in consequence of their breaking a fence. 
 
 lu. 
 
 52. Cattle known to be diseased may be 
 placed by the owner in his own pasture 
 without making him liable for communicat- 
 ing the disease, unless he is negligent in the 
 m nner of keeping them. Id. 
 Liability of seller. 
 
 Liability for Communicating Disease to Cat- 
 tle Transported, see Carriers, 866. 
 
 Measure of Damages, see Damages, 146, 379. 
 
 Death of One Caring for Horse from Con- 
 tracting Disease, see Death, 44. 
 
 53. Liability of one who knowingly sells 
 animals infected with an infectious disease, 
 for the death of sound animals belonging 
 to a subsequent purchaser, which contract 
 the disease from them, is not destroyed by 
 the intervention of an intermediate owner 
 of the animals, where the latter did not 
 know of the disorder, and was, therefore, 
 not a wrongdoer. Skinn v. Reutter, 135 
 Mich. 57, 97 N. W. 152, 63: 743 
 
 54. One selling hogs known to be infected 
 with a dangerous and infectious disease 
 
 commits a wrong imminently dangerous to 
 human life, within the rule that one guilty 
 of such an act may be liable tor injury to 
 life or property tnereby caused, even to 
 persons not immediately connected with the 
 transaction. A a. 
 
 Liability of carrier. 
 Partial Invalidity of Statute as to, see 
 
 Statutes, 113. 
 See also infra, 57. 
 
 55. The escape by a carrier's negligence, 
 of Texas cattle infected with microbes or 
 parasites by which Texas tever may be com- 
 municated, makes the carrier liable for uam- 
 ages to other cattle to which they communi- 
 cate the disease. Grimes v. Eddy, 126 Mo. 
 168, 28 S. W. 756, 26: 638 
 
 56. Cattle infected with microbes or para- 
 sites by which Texas fever may be communi- 
 cated to other cattle, although not them- 
 selves diseased, are within the provisions of 
 Mo. Rev. Stat. 1889, 953. for protection 
 against cattle affected or infected with Tex. 
 as fever. Id. 
 Prohibition against importation of. 
 Delegation of Power to Governor as to, see 
 
 Constitutional Law, 169. 
 
 57. Absolute liability for damages caused 
 by importation of cattle infected with Texas 
 fever, without allowing it to be shown that 
 defendant had no notice and cou'.d not have 
 ascertained the condition of the cattle by 
 the exercise of reasonable care, is not cre- 
 ated under Iowa Acts 21st Gen. Assem. chap. 
 156, 2, 3, substituted for Iowa Code, 
 4058, 4059, prohibiting the importation of 
 such cattle, and making a violation of the 
 law a misdemeanor, with a right of action 
 to persons injured for the damages sus- 
 tained. Furley v. Chicago, M. & St. P. R. 
 Co. 90 Iowa, 146, 57 N. W. 719, 23: 73 
 
 58. Under a statute permitting the gov- 
 ernor to schedule localities from which cat- 
 tle cannot be imported except under the 
 regulations of the board of live-stock com- 
 missioners, upon their reporting to him that 
 certain, contagious and infectious diseases 
 have become epidemic in such locality, the 
 governor cannot schedule all the states and 
 territories of the United States, so as to 
 prevent the importation of cattle therefrom 
 until after a tuberculin test, upon a report 
 of the board that "contagious disease pre- 
 vails to a greater or less extent" in such 
 states and territories. Pierce v. Dilling- 
 ham, 203 111. 148, 67 N. E. 846, 62: 888 
 
 59. A statute permitting the regulations 
 which will prevent the importation of cattle 
 except under the rules of the state board of 
 live-stock commissioners from "certain lo- 
 calities in other states" in which contagious 
 diseases have become epidemic cannot be so 
 extended as to comprehend the whole world 
 outside of the state, where the regulations 
 are to be enforced. Id. 
 
 60. A report by a board of live-stock com- 
 missioners that cattle affected with a dis- 
 ease which prevails to a greater or less ex- 
 tent in a particular locality are liable t 
 communicate the disease does not meet the 
 requirements of a statute authorizing the 
 governor to schedule places from which cat-
 
 ANIMALS, I. f IIL 
 
 tie cannot be imported except under the 
 regulations of the board, when the condition 
 of cattle from such locality is such as to 
 render them "liable to convey such disease." 
 
 Id. 
 
 Tuberculin test. 
 Claim for Unnecessary Destruction of, see 
 
 Claims, 22. 
 See also supra, 58. 
 
 61. Rules of a state board of live-stock 
 commissioners providing for applying a tu- 
 berculin test to all catt!e which are brought 
 into the state for dairy or breeding^ purposes, 
 but exempting all other kinds, are invalid. 
 Pierce v. Dill'ingham, 203 111. 148, 67 N. E. 
 846, 62: 888 
 
 62. To justify the application of the tu- 
 beculin test to all cattle imported into the 
 state for dairy or breeding purposes, it must 
 appear that it will in a reasonable degree, 
 or in some manner, determine the existence 
 or nonexistence of tuberculosis. Id. 
 Liability for killing uninfectel animal. 
 
 63. Mass, act 1887, 13, requiring the 
 commissioners on contagious diseases among 
 domestic animals to cause an animal infect- 
 ed with farcy or glanders to be killed, only 
 autlioriy.es the killing of actually infected 
 horses; and their order will not protect the 
 man who kills a horse who has not such dis- 
 ease, in a subsequent suit by the owner for 
 compensation. Miller v. Horton, 152 Mass. 
 540, 26 N. E. 100, 10: 116 
 
 f. Tax on Dogs. 
 
 Binding Effect of Agreed Statement as to, 
 see Asreed Case, 5. 
 
 Grant of Tax to Humane Society, see Pub- 
 lic Moneys, 51. 
 
 Use of Tax, see Taxes, 94. 
 
 See also Municipal Corporations, 161. 
 
 For Editorial Notes, see infra, III. 1, 2. 
 
 64. The imposition of a license tax on 
 dogs, under a city charter empowering the 
 city to tax, regulate, and restrain the run- 
 ning at large of dogs, does not violate Mo. 
 Const, art. 10, 4, requiring all property to 
 be taxed in proportion to its value. Carth- 
 age v. Rhodes, 101 Mo. 175, 14 S. W. 181. 
 
 9: 352 
 
 II. Cruelty to. 
 
 Due Process in Permitting Killing of Neg- 
 lected Animal, see Constitutional Law, 
 914. 
 
 Liability of vendor of unwholesome food for 
 Committing, see Negligence, 25. 
 
 Ordinance as to, see Constitutional Law, 
 772; Municipal Corporations. 201. 
 
 Title of Statute as to, see Statutes, 268. 
 
 For Editorial Notes, see infra, III. 7. 
 
 65. Favoritism of a society for the pre- 
 vention of cruelty to animals, in respect to 
 giving notice or warning to violators of an 
 ordinance, does not constitute a defense to 
 a prosecution instituted in the name of the 
 slate for such violation. State v. Karsten- 
 diek, 49 La. Ann. 1621, 22 So. 845, 39: 520 
 L.R.A. JDiff. 4. 
 
 To dogs. 
 
 66. L)ogs are domestic animals, within the 
 meaning of Ga. Pen. Code, 703, prohibit- 
 ing cruelty to domestic animals, since they 
 are classed as such by the constitutional 
 provision authorizing a tax "upon such 
 domestic animals as from their nature and 
 habits are destructive of other property." 
 Wilcox v. State, 101 Ga. 563, 28 N. E. 981, 
 
 39: 709 
 Shooting pigeons. 
 
 67. Shooting pigeons at a shooting match 
 as they are liberated from a trap, and mere- 
 ly wounding them because cf unskilful 
 markmanship, is not cruelty to animais, 
 where the wounded ones are at once killed 
 and sold for food. Com. v. Lewis, 140 Pa. 
 261, 21 Atl. 396, 11: 522 
 
 68. One who shoots for amusement at live 
 doves released from traps as targets, al- 
 though those that are killed outright 0" cap- 
 tured and killed after being wounded are 
 used as food, thereby "tortures, torments, 
 . . . or needlessly mutilates or kills" 
 them, within the prohibition of Mills's 
 (Colo.) Ann. Stat. 104, as further defined 
 by 117 to be the cause of "unnecessary or 
 unjustifiable pain or suffering." Waters v. 
 People, 23 Colo. 33, 46 Pac. 112, 33: 836 
 Docking. 
 
 Class Legislation as to, see Constitutional 
 
 Law, 362. 
 Due Process as to, see Constitutional Law, 
 
 776. 
 Police Power as to see Constitutional Law, 
 
 975. 
 
 69. Proof that a docked horse was not 
 registered is not necessary in a prosecution 
 for using such horse contrary to the provi- 
 sions of the statute, where, because of ./he 
 time when the docking occurred, registra- 
 tion was not possible under the provisions 
 of the act. Bland v. People, 32 Colo. 319, 
 76 Pac. 359, 65: 424 
 
 70. The legislature may lawfully deprive 
 those who violate the provisions of a statute 
 forbidding the docking of horses' tails of 
 the right to use the horses as a penalty for 
 such violation. Id. 
 
 III. Editorial Notes. 
 
 I. Generally. 
 
 Ferae natures, property in; game laws. 8: 
 
 448.* 
 
 Property rights in bees. 40: 687. 
 Property ri-jhts in doss. 40: 503. 
 Generally. 40: 503. 
 
 Actions of trover, replevin, and tres- 
 pass. 40: 507. 
 Actions against common carriers. 40: 
 
 508. 
 Actions for injuries to dogs by railroad 
 
 and street cars. 40: 509. 
 Liability of railroad for killing dogs. 
 
 37 : 659. 
 Right to damages for killing of dog by 
 
 public officer. 19: 196. 
 Criminal actions for injuries to dogs. 
 
 40: 511. 
 Larceny and obtaining a dog by false 
 
 pretenses. 40: 514.
 
 60 
 
 ANNEXATION ANNUITIES. 
 
 Value. 40: 518. 
 
 As to license and tax laws. 40: 520. 
 Generally. 40:520. 
 Taking property without due pro 
 
 cess of law. 40: 523. 
 Title to the increase of animals. 17: 81. 
 Generally. 17: 81. 
 
 As between life tenant and remainder- 
 man. 17: 81. 
 
 On conditional sale of dam. 17: 82. 
 As between mortgagee of dam and oth- 
 er claimants. 17: 82. 
 Duty to inform hirer of character of horse. 
 
 12: 39/.* 
 Liability of owner for trespass of cattle. 
 
 22: 55. 
 
 From the highway. 22: 59. 
 Driving cattle on land of another. 22: 
 
 CO. 
 
 Lack of division fences. 22: 60. 
 Removal of division fence. 22: 62. 
 Defects in partition fence. 22: 62. 
 Liability for trespass of stock of third 
 
 party. 22: 63. 
 
 As between owner and keeper. 22: 64. 
 Liability of owner of bees for injuries done 
 
 by them. 62: 132. 
 Actions for injuries inflicted by bees. 
 
 62: 133. 
 
 Bees as a nuisance. 62: 133. 
 Liability of hirer of horse. 12: 397.* 
 
 For driving, to place where it was not 
 
 hired to go. 26: 366. 
 
 Warranty of horses kept for hire. 19: 283. 
 Evidence of trailing by bloodhounds. 42: 
 
 432. 
 
 Evidence of other crimes in prosecution for 
 killing or injuring ani- 
 mals. 62:239. 
 
 2. Regulations concerning; impounding. 
 Municipal ordinance regulating stray ani- 
 mals. 4: 254.* 
 
 License on privilege to keep dogs. 9: 352.* 
 Tax on dogs. 10: 43." 
 Impounding and forfeiture of animals. 4: 
 
 252.* 
 Authority to impound and sell stray 
 
 animals. 4: 253.* 
 Rights of owner. 4: 254.* 
 3. Diseased. 
 
 Validity and construction of statutory regu- 
 lations as to infected ani- 
 mals. 26: 638. 
 
 Statutes providing for destruction of 
 infected animals. 26: 638. 
 Texas cattle acts. 26: 638. 
 Necessity of the statutes. 26: 640. 
 Construction of statutes. 26: 640. 
 Eil'ect of contributory negligence. 26: 
 
 640. 
 
 Conditional ownership. 26: 640. 
 4. Duty and liability to owner. 
 See also Carriers, IV. 39; Railroads, TTT. 
 Liability of vendor of unwholesome food for 
 
 cattle. 21: 140. 
 
 Liability for escape of another's stock from 
 pasture by failure to keep 
 proper division fence. 20: 
 479. 
 
 Loss of stock as element of damages for re- 
 moval of fences. 53: 629. 
 
 Injury by reason of leaving gates in rail- 
 road fence open, 49:625. 
 5. Liability for damage by. 
 Liability of owner for injuries by, to per- 
 sons coming upon owner** 
 premises. 14: 196. 
 Liability of municipality for permitting in 
 
 streets. 27: 728. 
 
 Damage by trespassing animals. 4: 840. 
 6. Killing. 
 
 Right to kill dogs. 15: 249; 40: 510. 
 Police power. 15: 249; 40: 510. 
 Unlicensed dogs. 15: 249. 
 Owner's right of action. 15: 249. 
 Barking or how.ing dogs. 15: 249; 40: 
 
 510. 
 Dogs dangerous to mankind. 15: 249; 
 
 40: 511. 
 Trespassing and predatory dogs. 15: 
 
 250; 40: 511. 
 
 Dogs that worry, attack, or injure sheep 
 or other animals. 15:251; 
 40: 511. 
 Relative value of dog and of property 
 
 endangered. 15: 252. 
 When dogs are "at large." 15: 252; 
 
 40: 511. 
 Negligent killing, or killing by mistake. 
 
 15:252; 40:511. 
 Criminal killing. 15: 252. 
 Liability of railroad for killing dogs. 37: 
 
 659. 
 
 Right to damages for killing of dog by pub- 
 lic oificer. 19: 196. 
 7. Cruelty. 
 Liability for. 11: 522.* 
 X Nuisance. 
 
 Running at large as a nuisance in street 
 subject to municipal con- 
 trol. 39: 674. 
 Municipal regulation as to nuisance of. 38: 
 
 332. 
 
 Municipal power over stockyards as nui- 
 sances. 38: 655. 
 Bees as. 62: 133. 
 9. Liens. 
 
 Liens for keeping. 6: 82.* 
 Priority of agister's lien. 17: 792. 
 Waiver of Hen by attachment or execution. 
 50: 720. 
 
 ANNEXATION. 
 
 To County, see Evidence, 2310. 
 To City, see Estoppel, 178; Municipal Cor- 
 porations, I. b. 
 
 ANNOTATOK. 
 
 Editorial Notes. 
 
 Common-law right of annotator or commen- 
 tator. 51 : 358. 
 
 ANNUITIES. 
 
 Payment of, from Insolvent Estate, eee As- 
 signments for Creditors, 96.
 
 ANNULMENT ANTI TRUST LAW. 
 
 51 
 
 Bar of Dower Right by, see Dower, 53. 
 Validity of Provisions for, see Perpetuities, 
 
 '6, 34. 
 Deduction from Teacher's Salary to Prpvide, 
 
 see Schools, 35. 
 Succession Tax on Annuitants, see Taxes, 
 
 565, 567, 571, 630, 633. 
 Protection of, as Spendthrift Trust, see 
 
 Trusts, 195. 
 Trust in Money to Raise, see Trusts, 218. 
 
 Charge on lands for. 
 
 1. The devise of an annuity or yearly 
 portion out of the net rents and profits of 
 a trust estate carries no interest in the real- 
 ty, where the donee can never assert any 
 right of possession, control, or ownership 
 during has lifetime, unless as tenant of the 
 trustee. De Haven v. Sherman, 131 111. 115, 
 22 N. E. 711, 6:745 
 
 2. An annuity given by will is not made 
 a rent charge upon trust lands from the 
 rents of which it is to be paid, where there 
 are no words creating a legal rent charge, 
 and no power given to distrain if the annu- 
 ity be not paid. Id. 
 When payable. 
 
 3. An annuity out of the yearly income 
 of a farm is payable at the end of a year. 
 Henry v. Henderson, 81 Miss. 743, 33 So. 
 960, . 63: 616 
 
 4. An annuity to take ettect from and aft- 
 er the death of the donor is payable, not in 
 advance, but at t>ne termination of the year- 
 ly periods commencing with his death. 
 Mower v. Sanford, 76 Conn. 504, 57 Atl. 119, 
 
 63: 625 
 
 Apportionment. 
 See also infra, Editorial Notes. 
 
 5. An annuity is not apportionable, even 
 when given to a widow in lieu of dower; 
 so that her death pending a yearly period 
 will terminate all claim to any portion of 
 the sum which would have become payable 
 at the termination of that period. Mower 
 v. Sanford, 76 Oonn. 504, 57 Atl. 119, 63: 625 
 
 6. An annuity created by will, to be paid 
 to an adult during the lifetime of the hus- 
 band of the testratrix, is not apportionable 
 in the absence of anything in the will to 
 indicate such an intent, and, in case the 
 husband dies before the first payment be- 
 comes due, the annuitant will receive noth- 
 ing. Henry v. Henderson, 81 Miss. 743, 33 
 So. 960, 63: 616 
 Paying previous deficiencies from surplus. 
 
 7. Where for a number of years the in- 
 come from an estate was insufficent to pay 
 in full an annuity payanle out of the in- 
 come, a surplus in subsequent years, when 
 such income was more than sufficient, should 
 be applied in satisfaction of the previous de- 
 ficiencies, and not be paid to the next of 
 kin. Re Chauncey, 119 N. Y. 77, 23 N. E. 
 448, . 7: 361 
 Necessity of seal. 
 
 8. A contract for a life annuity not is- 
 suing out of or charged upon lands, but by 
 which an insurance company, in considera- 
 tion of a sum certain, agrees to pay the an- 
 nuitant specified sums annually during life, 
 is a mere chose in action for the payment 
 of money, which need not be made in the 
 
 form of a deed or under seal. CaTiill v. 
 Maryland L. Ins. Co. 90 Md. 333, 45 Atl. 
 180, 47:614 
 
 9. A charter authorizing an insurance 
 company to "grant, purchase, or dispose of 
 annuities," does not limit the company to 
 the grant of annuities by deed or contract 
 under seal. Id. 
 
 10. The failure to attach the seal of the 
 insurance company to a policy granting an 
 annuity, or the omission of some other tech- 
 nical requirement, will not constitute a de- 
 fense to a suit for annuity after the insur- 
 er has received the purchase money. Id. 
 
 Editorial Notes. 
 
 Form of instrument necessary to create. 
 
 47: 614. 
 Apportionment of annuities in absence of 
 
 statute. 63: 616. 
 General rule. 63: 616. 
 Exceptions. 63: 621. 
 
 Annuity created for maintenance. 
 
 63: 621. 
 
 Consideration passing from an- 
 nuitant. 63: 625. 
 In lieu of dower. 63: 625. 
 Other consideration. 63: 627. 
 Special instances. 63: 628. 
 Interest. 63: 629. 
 
 Form of judgment on annuity and instal- 
 ment bonds. 62: 439, 453. 
 Set-off in bankruptcy. 55: 68. 
 
 ANNULMENT. 
 Of Marriage, see Marriage, IV.; V. 7. 
 
 ANSWER. 
 See Pleading, III. 
 
 ANTENUPTIAL CONTRACT. 
 See Husband and Wife, II. i. 
 
 ANTICIPATED INJURY. 
 
 Injunction to Prevent, see Injunction, 11-21; 
 Nuisances, 127-128b. 
 
 ANTI-TRUST LAW. 
 
 Combination in Violation of, see Conspiracy, 
 II. 
 
 As Denial of Equal Protection, see Consti- 
 tutional Law, 361. 
 
 As to Insurance, see Commerce, 7. 
 
 Limitation of Action for Violation of, see 
 Limitation of Actions, 177, 178. 
 
 Partial Invalidity of, see Statutes, 78. 
 
 Sufficiency of Title, see Statutes, 184. 
 
 Strict Construction of, see Statutes, 510.
 
 52 
 
 A. O. U. W. APPEAL AND ERROR. 
 
 A. 0. U. W. 
 
 Right to Use of Name, see Corporations, 44. 
 
 * 
 APARTMENT HOUSE. 
 
 As Violation of Covenant, see Covenant, 30, 
 50. 
 
 APOTHECARY. 
 
 Liability for Libel, see Libel and Slander, 
 63, 64. 
 
 APPEAL AND ERROR. 
 
 L Right of Appeal; What Cases Re- 
 viewable; Modes of Appeal. 
 
 a. In General. 
 
 b. Finality of Decision. 
 
 c. Criminal Cases. 
 
 d. Modes of Review. 
 
 H. Jurisdiction of Particular Courts. 
 
 a. Of Supreme Court of United 
 
 States. 
 
 1. In General. 
 
 2. Over State Courts. 
 
 b. Of Circuit Courts of Appeals. 
 
 c. Of State Courts. 
 
 1. Generally. 
 
 2. Over Constitutional Ques- 
 
 tions; Validity of Stat- 
 utes. 
 
 3. Over Questions of Title. 
 
 4. Amount Necessary for Ju- 
 
 risdiction. 
 HI. Transfer of Cause; Parties. 
 
 a. Right to Transfer. 
 
 b. Effect; Subsequent Proceedings 
 
 in Court Below. 
 
 c. Parties. 
 
 d. Mode; Conditions; Regulations. 
 
 e. Citation; Notice; Appearance. 
 
 f. Time. 
 
 g. Security. 
 
 IV. Record and Case in Appellate Court. 
 
 a. In General. 
 
 b. What Should be Shown by. 
 
 c. Contradictions in. 
 
 d. Amending. 
 
 e. Affidavits. 
 
 f. Evidence. 
 
 g. Stenographer's Notes, 
 h. Instructions. 
 
 i. Findings. 
 
 t Opinions. 
 . Motions and Orders. 
 1. Certificates. 
 m. Abstracts. 
 
 n. Case Made; Statements. 
 o. Bill of Exceptions. 
 
 1. In General. 
 
 2. Sufficiency: What Should be 
 
 Presented by. 
 
 3. Signing; Settling; Practice. 
 
 4. Time for. 
 
 IV. continued. 
 
 p. Assignments of Error. 
 
 1. Necessity of. 
 
 2. Sufficiency; Denniteneas. 
 
 3. Cross Errors. 
 
 q. Waiver of Assignments of Er- 
 ror. 
 
 r. Briefs. 
 
 V. Objections and Exceptions; Raising 
 Questions in Lower Court. 
 
 a. Definiteness; Sufficiency. 
 
 1. In General. 
 
 2. To Evidence. 
 
 a. Admission of. 
 6. Exclusion. 
 
 3. To Instructions. 
 
 b. Necessity for Exceptions. 
 
 c. Time for Exceptions. 
 
 d. Raising Questions by Motion or 
 
 Other Mode. 
 
 VL Preliminary Motions; Dismissal; 
 Abatement; Abandonment. 
 
 a. In General. 
 
 b. Grounds for Dismissal. 
 VTI. Hearing and Determination. 
 
 a. In General; Rules of Decision. 
 
 b. Who May Complain. 
 
 c. Evidence; Amendments; Trial 
 
 de A'otto. 
 
 d. Presumptions. 
 
 efWhat Reviewable Generally. 
 
 f. Decisions in Favor of Party, or 
 
 or Not Affecting Him. 
 
 g. Objections as to Which Party is 
 
 Estopped. 
 
 1. In General. 
 
 2. By Requesting or Obtaining 
 
 Ruling or Decision, 
 h. Interlocutory Matters; Orders, 
 
 etc., Not Appealed from. 
 L Discretionary Matters. 
 
 1. In General; Costs; Con- 
 
 tempt. 
 
 2. Continuance or Adjourn- 
 
 ment. 
 
 3. As to Pleadings. 
 
 4. As to Evidence; Witnesses. 
 
 5. Injunction; Receivers. 
 
 6. Conduct of Trial; Jury. 
 
 7. Vacation of Judgment or 
 
 Verdict; New Trial. 
 J. Questions Not Raised Below. 
 
 1. In General. 
 
 2. Jurisdiction. 
 
 3. Causes of Ac 'ion or De- 
 
 fense; New Theories. 
 
 4. As to Pleadings, Indict- 
 
 ments, etc. 
 
 5. As to Evidence; Witnesses; 
 
 Variance. 
 C. As to Jury. 
 
 7. As to Instructions; Ques- 
 
 tions Submitted to Jury. 
 
 8. As to Judgment, Verdict, 
 
 etc. 
 k. Errors Waived or Cured Below; 
 
 1. In General. 
 
 2. As to Pleadings, 
 
 3. As to Evidence. 
 
 4. As to Instructions. 
 
 5. Taking Case iroui Jury.
 
 APPEAL AND ERROR, I. a. 
 
 53 
 
 VH. continued. 
 
 1. Review of Facts. 
 
 1. In General. 
 
 2. Of Verdict. 
 
 a. In General, 
 ft. As to Damages and Val- 
 ues. 
 
 3. Of Findings of Court. 
 
 a. In General. 
 6. In Equity. 
 
 4. Of Findings by Referee, etc. 
 6. On Appeal from Appellate 
 
 Court. 
 m. What Errors Warrant'Reversal. 
 
 1. In General. 
 
 2. As to Pleadings. 
 
 3. As to Evidence. 
 
 a. Erroneous Admission. 
 
 (1) In General; Var- 
 
 ious Particular 
 Matters. 
 
 (2) Immaterial; Ad- 
 mitted or Un- 
 
 controverted 
 Facts. 
 
 (3) Facts Otherwise 
 
 Proved. 
 
 (4) Witnesses an;] 
 
 Their Exami- 
 nation. 
 
 (5) Error Cured by 
 
 Ins t r uction, 
 Verdict, etc. 
 
 5. Erroneous Exclusion. 
 
 c. Refusal to Strike Out. 
 
 d. Variance. 
 
 e. In Cases Tried without 
 
 Jury. 
 
 4. As to Instructions. 
 
 a. Instructions Given. 
 
 (1) Generany; Mis- 
 cellnneous Mat- 
 ters. 
 
 (2) As to Negligence. 
 
 (3) As to Damages. 
 
 (4) As to Witnesses. 
 
 (5) Upon Facts and 
 
 Evidence. 
 
 6. Failure or Refusal to 
 
 Instruct. 
 
 c. Modification of Instruc- 
 tion. 
 
 6. Argument or Remarks of 
 Counsel. 
 
 6. Remarks or Conduct of 
 
 Judge. 
 
 7. As to Jury; Conduct of 
 
 Trial. 
 
 a. In General. 
 
 ft. Summoning and Selec- 
 tion of Jury. 
 
 c. Conduct of or Interfer- 
 
 ence with Jury. 
 
 d. Submission of Issues; 
 
 Directing Verdict. 
 
 8. As to Findings, Verdict, or 
 
 Judgment. 
 VUL Judgment. 
 
 a. In General. 
 
 VIIL continued. 
 
 b. Rendering Modified Judgment. 
 
 c. Remanding; Granting New Trial. 
 
 d. Costs. 
 
 e. Effect of Decision. 
 
 f. Correction. 
 IX. Rehearing. 
 
 X. Liability on Appeal Bond. 
 XI. Editorial Notes. 
 
 By Expelled Member to Superior Tribunal of 
 Society, Necessity of, see Benevolent So- 
 cieties, 51. 
 
 For Certified Questions, see Cases Certified. 
 
 Effect of Remedy by, on Right to Other Rem- 
 edy, see Certiorari, 21-26; Mandamus, 
 22; Prohibition, 5, 6, 8. 
 
 Effect of Amendment of Constitution Pend- 
 ing Appeal, see Constitutional Law, 26. 
 
 Equal Protection and Privileges as to, see 
 Constitutional Law, 598-601. 
 
 Due Process as to, see Constitutional Law, 
 811, 812. 
 
 For Error Coram Nobis, see Coram Nobis. 
 
 From County Board, see Counties, 91. 
 
 Effect of Reversal on Former Jeopardy, see 
 Criminal Law, 159-163. 
 
 In Eminent Domain Case, see Eminent Do- 
 main, II. d. 
 
 Insurer's Liability for Failure to Perfect 
 Appeal, see Insurance, 1347. 
 
 Calling in Circuit Judges to Assist in Deci- 
 sion, see Judges, 6, 7. 
 
 Quorum of Court on, see Judges, 14-16. 
 
 Jury Trial on, see Jury, 55-58. 
 
 From Justice's Judgment, see Justice of the 
 Peace, IV. 
 
 Effect on, of Surrender of Leased Premises, 
 see Landlord and Tenant, 228. 
 
 Mandamus in Aid of, see Mandamus, 29-31. 
 
 From Local Improvement Assessment, see 
 Public Improvements, 158. 
 
 As to Bill of Review, see Review. 
 
 Partial Invalidity of Statute Allowing, see 
 Statutes, 97. 
 
 From Assessment, see Taxes, III. c. 
 
 I. Right of Appeal; What Cases Reviewable; 
 Modes of Appeal. 
 
 a. In General. 
 
 Retrospective Statute as to, see Statutes, 
 546. 
 
 1. The right to appeal is not a common- 
 law right, but depends upon written law. 
 McClain v. Williams, 10 S. D. 332, 73 N. W. 
 72, 11 S. D. 60, 75 N. W. 391, 43: 287 
 
 2. No appeal lies, unless expressly given 
 by statute, from a decision of the circuit 
 court sitting, under statutory authority, as 
 an appellate court. Arnsperger v. Crawford, 
 101 Md. 247, 61 Atl. 413, 70: 497 
 
 3. Legislative power to limit appeals to 
 defined class of cases is not restricted by a 
 constitutional provision that all courts shall 
 be open and every man shall have a remedy 
 by due course of law. McClain v. Williams, 
 10 S. D. 332, 73 N. W. 72, 11 S. D. 60, 75 N. 
 W. 391, 43: 287
 
 54 
 
 APPEAL AND ERROR, L b. 
 
 4. There is no inherent right to appeal 
 from a judgment of a court of inferior to 
 one of superior jurisdiction for the purpose 
 of securing a second trial upon the merits; 
 such right can only exist by reason of a stat- 
 ute. Sullivan v. Haug, 82 Mich. 548, 46 N. 
 W. 795, 10= 263 
 
 5. A constitutional provision clothing cer- 
 tain courts with appellate jurisdiction does 
 not give a right of appeal to such courts in 
 all cases, but. only in such as the legislature 
 shall determine and designate, at least 
 where no process is provided by the Consti- 
 tution for bringing the cause from the in- 
 ferior into the superior court. Id. 
 
 6. Failure to provide for an appeal from 
 the order of removal does not render void a 
 statute providing that, when a plaintiff is 
 entitled to some relief, but not in the court 
 in which he has brought his action, the cause 
 may, in the discretion of the court, be re- 
 moved to the proper tribunal, where such 
 amendments may be made as may be neces- 
 sary to a hearing of the case according to its 
 practice. Insurance Co. of N. A. v. Schall, 
 96 Md. 225, 53 Atl. 925, 61: 300 
 
 7. A decision that a regulation is reason- 
 able upon its face as matter of law, without 
 regard to the facts in proof, is subject to re- 
 view, although, if the court had decided the 
 question as it should have done, as a ques- 
 tion of fact, there could have been no ap- 
 peal. Moore v. District of Columbia, 12 App. 
 D. C. 537, 41:208 
 
 8. An appeal lies from an order refusing 
 to modify, so as to restore such power to 
 him, a decree improvidently entered, which 
 deprives a trustee of his original power over 
 the trust fund, and gives definite directions 
 as to its expenditure. Ee Washington Monu- 
 ment Fund, 154 Pa. 621, 26 Atl. 647, 20: 323 
 
 9. The insanity of a defendant in a di- 
 vorce suit does not prevent maintaining a 
 writ of error from a decree against him, 
 lago v. lago, 168 111. 339, 48 N. E. 30, 
 
 39: 115 
 
 10. An appellant cannot insist on having 
 clerical errors in the judgment corrected by 
 the appellate rather than by the trial court, 
 although the correction by the trial court 
 deprives him of his ground for appeal. Kin- 
 del v. Beok & P. Lithographing Co. 19 Colo. 
 310, 35 Pac. 538, 24: 311 
 Habeas corpus. 
 
 11. A writ of error does not lie from the 
 supreme court of Florida to review a judg- 
 ment rendered by an individual justice 
 thereof in a habeas corpus proceeding. Ex 
 parte Cox, 44 Fla. 537. 33 So. 509, 61 : 734 
 
 12. A statute allowing a writ of error to 
 the supreme court of Florida to review the 
 judgment of an individual justice thereof in 
 a habeas corpus proceeding is invalid, where 
 such right of review is not granted by the 
 Constitution, which created the court and 
 prescribed its jurisdiction, and no power to 
 confer additional jurisdiction upon such 
 court is delegated by the Constitution to the 
 legislature. Id. 
 
 13. A habeas corpus proceeding to deter- 
 mine the right to the custody of a child be- 
 ing a civil suit, a judgment of the district 
 
 court awarding t'he custody to the father as 
 against the relatives of the deceased moth- 
 er may be reviewed by the court of appeals 
 on writ of error. People ex rel. Green v. 
 Court of Appeals of Co.o. 27 Colo. 405, 61 
 Pac. 592, 51: 105 
 
 14. A final order of discharge on habeas 
 corpus, of a person imprisoned for crime, 
 may be reviewed and reversed on error, by 
 a higher court. Henderson v. James, 52 
 Ohio St. 242, 39 N. E. 805, 27: 290 
 
 b. Finality of Decision, 
 For Editorial Notes, see infra, XI. 2, 3. 
 
 15. That a case has not been disposed of 
 as to one defendant who has never been 
 served with notice or appeared in the ac- 
 tion will not prevent an appeal from a judg- 
 ment entered in favor of a codefendant. 
 Lough v. John Davis & Co. 30 Wash. 204, 70 
 Pac. 491, 59: 802 
 
 16. An order quashing a summons is ap- 
 pealable under a statute permitting appeals 
 from orders terminating the action or pro- 
 ceeding. Carstens v. Leidigh & H. Lumber 
 Co. 18 Wash. 450, 51 Pac. 1051, 39: 548 
 
 17. The denial of an application by a 
 stranger to be admitted as a party defendant 
 to a pending suit in equity is not such a 
 final decree as is the subject of appeal 
 under U. S. Rev. Stat. 692. Hamlin v. 
 Toledo, St. L. & K. C. R. Co. 24 C. C. A. 271, 
 47 U. S. App. 422, 78 Fed. 664, 36: 826 
 
 18. No appeal lies from an order granting 
 a motion for judgment notwithstanding the 
 verdict. Sanderson v. Northern P. R. Co. 
 88 Minn. 162, 92 N. W. 542, 60: 403 
 
 19. An order or decree which retains or 
 dismisses defendants who are charged to be 
 jointly liable with other defendants in the 
 suit is not a final decision, and is not ap- 
 pealable, because it does not dispose of the 
 whole case. Carmichael v. Texarkana, 54 
 C. C. A. 179, 116 Fed. 845, 58: 911 
 As to pleadings. 
 
 20. A judgment on demurrer to an inter- 
 vening petition, which makes a final dispo- 
 sition of the case so far as concerns the 
 petitioners, may be appealed from. Union 
 Trust Co. v. Richmond City R. Co. 154 Ind. 
 291, 55 N. E. 745, 48: 41 
 
 21. The reservation of a right to deter- 
 mine how far an answer and cross bill are 
 pertinent, when granting a motion for the 
 admission of parties defendant, does not 
 prevent a subsequent decision that the 
 pleadings are impertinent and show no sub 
 stantial defense and dismissing the plead- 
 ing and the party from the cause, from being 
 appealable as a final decree on the merits. 
 Hamlin v. Toledo, St. L. & K. C. R. Co. 24 
 C. C. A. 271, 47 U. S. App. 422, 78 Fed. 
 664, 36: 826 
 As to challenges to jury. 
 
 22. The right to appeal from the rulings 
 of the trial court upon challenges to jurors 
 is entirely within the legislative judgment. 
 People v. Dunn, 157 N. Y. 528, 52 N. E, 
 572, 43:247 
 As to new trial; affecting judgment. 
 
 23. An appeal may be taken to the general
 
 APPEAL AND ERROR, I. b. 
 
 55 
 
 term of the supreme court of New York 
 from a decision of the trial court denying a 
 motion, made upon the judge's minutes for 
 new trial in an action which has been tried 
 before a jury, notwithstanding judgment 
 has been entered therein from which no ap- 
 peal has been taken, and as to which the 
 time for appealing has expired. Voisin v. 
 Commercial Mut. Ins. Co. 123 M. Y. 120, 25 
 N. E. 325, 9: 612 
 
 24. An order entered upon motion, set- 
 ting aside a judgment entered, upon the 
 verdict of a jury, and granting a new trial 
 unless the party in whose favor ..the judg- 
 ment was entered submits to a specified re- 
 duction thereof, is an intermediate order 
 which is reviewable without any exceptions 
 thereto, under Ky. Rev. Stat. 1898, 3070, 
 on appeal from a judgment which is en- 
 tered in accordance with the order, with his 
 consent, for the reduced amount. Ililde- 
 brand v. American Fine Art Co. 109 Wis. 
 171, 85 N. W. 268, 53: 826 
 
 25. An appeal from an order refusing to 
 set aside a judgment rendered without juris- 
 diction will not be denied on the ground 
 that the judgment was appealable. De La 
 Montanya v. De La Montanya, 112 Cal. 101, 
 44 Pac. 345, 32: 82 
 
 26. An order reversing an order modify 
 ing the direction as to alimony contained 
 in a judgment which dissolved the marriage 
 of the parties is appealable. Livingston v. 
 Livingston, 173 N. Y. G77, 66 N. E. 123, 
 
 61: 800 
 Decision on appeal. 
 
 27. An order dismissing an appeal from a 
 justice's court, which terminates the action 
 and prevents a judgment from which an ap- 
 peal can be taken, is appealable. Finley v. 
 Prescott, 104 Wis. 614, 80 N. W. 930, 47: 695 
 
 28. An order of the district court direct- 
 ing a dismissal of an appeal from justice's 
 court is one which looks forward to and re- 
 quires the entry of a formal judgment, and 
 therefor is not a final judgment, and 
 is not an appealable order under the Ne- 
 braska statute regulating appeals. Re 
 Weber, 4 N. D. 119, 59 N. W. 523, 28: 621 
 
 29. No writ of error lies lies to the court 
 of appeals of Maryland from a decision of 
 the circuit court on an appeal from the 
 judgment of a justice of the peace. Jude- 
 find v. State, 78 Md. 510, 28 Atl. 405, 
 
 22: 721 
 
 30. An order of the general term of the 
 New Ybrk supreme court denying a motion 
 for a new trial, made under N. Y. Code 
 Civ. Proc. 1001, is appealable to the New 
 York court of appeals. Wahl v. Barnum, 
 116 N. Y. 87, 22 N. E. 280, 5: 623 
 
 31. An appeal from an order of the gen- 
 eral term is not premature, although no 
 judgment has been entered thereon, where 
 the order is in a special proceeding appealed 
 from the surrogate which could only ter- 
 minate in an order. Libbey v. Mason, 112 
 N. Y. 525, 20 N. E. 355, 2: 795 
 
 32. An appeal aa from a final order in a 
 special proceeding or a final judgment in an 
 action aes from an order of the appellate 
 division of the supreme court to the court 
 
 of appeals, reversing an order of a special 
 .term, which modified provisions of a former 
 decree in a divorce proceeding as to payment 
 if income of a trust fund as alimony, which 
 proceeding was instituted in accordance with 
 permission contained in the former decree 
 upon affidavits that were given the effect 
 of pleadings, the tacts becoming the sub- 
 ject of reference, and the order being based 
 upon the report of the referee. Wetmore v. 
 Wetmore, 162 N. Y. 503, 56 N. E. 997, 
 
 48: 663 
 As to costs. 
 
 33. An appeal lies from so much of a 
 judgment as allows a recovery of attorneys' 
 fees in an action upon a bill of exchange, un- 
 der a statute allowing an appeal from a 
 judgment or any part thereof. Bank of 
 Commerce v. Fuqua, 11 Mont. 285 28 Pac. 
 291, 14: 588 
 
 34. No appeal lies from a refusal of the 
 trial court to require the giving of a prose- 
 cution bond for payment of costs upon pain 
 of dismissal of the action in case of refusal. 
 Christian v. Atlantic & N. C. R. Co. 136 N. 
 C. 321, 48 S. E. 743, 68: 418 
 As to injunction. 
 
 35. A decree declaring a patent valid, and 
 that it has been infringed, and for an in- 
 junction and accounting, is an interlocutory 
 decree from which an appeal lies to the Fed- 
 eral circuit court of appeals under the act 
 of Congress of March 3, 1891. Richmond v. 
 Atwood, 5 U. S. App. 151, 2 C. C. A. 596, 
 52 Fed. 10, 17: 615 
 
 36. An "interlocutory order or decree" 
 granting or continuing an injunction, within 
 the meaning of the act of Congress giving a 
 right to appeal to the circuit court of ap- 
 peals from such an order or decree, includes 
 every order or decree which was not ap- 
 pealable under prior acts of Congress. Id. 
 As to receivers. 
 
 37. An order appointing a receiver is ap- 
 pealable as a final judgment, within the 
 meaning of Utah Const, art. 8, 9, as the 
 question whether an order is appealable de- 
 pends on its effect on the rights of the par- 
 ties rather than the stage of the litigation. 
 Ogden City v. Bear Lake & R. Waterworks 
 & Irrig. Co. 16 Utah, 440, 52 Pac. 697, 
 
 41: 305 
 
 38. An order in response to a petition filed 
 by the receiver in an action for the winding 
 up of a corporation and the appointment 
 of a receiver, for the assessment of the sup- 
 eradded liability of stockholders, which de- 
 termines their liability and directs enforce- 
 ment thereof, affects the substantial rights 
 of the stockholders, and is a final decree 
 from which they are entitled to appeal. 
 Bennett v. Thome, 36 Wash. 253, 78 Pac. 
 936, 68: 113 
 
 39. An appeal may be taken from an order 
 directing a receiver to restore a schedule of 
 wages to employees, although it is in the na- 
 ture of a mere administrative direction, 
 which ordinarily lies within the discretion 
 of the court, if the question of the power 
 of the court to appropriate the funds in 
 his hands for the purposes covered by the 
 order is distinctly raised and decided. Guar-
 
 APPEAL AND ERROR, I. c. 
 
 antee Trust & S. D. Co. v. Philadelphia, R. 
 & N. E. R. Co. 69 Conn. 709, 38 Atl. 792, 
 
 38: 804 
 As to partition. 
 
 40. Orders directing the construction of 
 weirs for the partition of water, and for im- 
 provements by raising the level of the water 
 to facilitate partition, involve the merits 
 of a controversy for the partition of a water 
 power, so that an appeal therefrom may be 
 had although the final decision has not been 
 made. Brown v. Cooper, 98 Iowa, 444, 67 
 N. W. 378, 33: 61 
 As to attachment. 
 
 41. A writ of error is the proper remedy 
 to review the overruling of a motion to 
 quash an attachment after the entry of 
 judgment in favor of the attachment credi- 
 tor. Pierce v. Johnson, 93 Mich. 125, 53 N. 
 W. 16, 18: 486 
 Decree on foreclosure. 
 
 42. A decree adjudging that, unless the 
 owner of a second mortgage within a pre- 
 scribed time gives notice to the purchaser of 
 the premises on foreclosure of the prior 
 mortgage of his des're and intention to re- 
 deem, he shall be forever barred and fore- 
 closed, is a final decree from which an ap- 
 peal may be taken, where the time for giv- 
 inz the notice has expired. Moulton v. Cor- 
 nish, 138 N. Y. 133, 33 N. E. 842, 20: 370 
 Eminent domain. 
 
 43. A denial of the right to take proper- 
 ty by right of eminent domain upon the 
 issues made by the pleadings after hearing 
 testimony introduced upon motion for the 
 appointment of commissioners, and motion 
 to dismiss, is a final judgment, which may 
 be reviewed by the appellate court. Denver 
 Power & Irrig. Co. v. Colorado & S. R. Co. 
 30 Colo. 204, 69 Pac. 568, 60: 383 
 
 44. A judgment disallowing the claim of 
 one interpleading in proceedings to condemn 
 land for public use, to the compensation 
 awarded, is a final one from which a writ of 
 error will lie, although a judgment had pre- 
 viously been entered in the proceeding which 
 fixed the right of the public to the property 
 and the compensation to be made therefor. 
 Hutcliinson v. McLaughlin, 15 Colo. 492, 25 
 Pac. 317, 11: 287 
 
 45. The constitutional right of appeal un- 
 der Ala. Const, art. 14, 7, from any pre- 
 liminary assessment of damages, by viewers 
 or otherwise, in condemnation proceedings, 
 is violated by Ala. Code 1886, 1582, which 
 merely provides for the appointment by a 
 probate judge of three arbitrators and the 
 recording of their award, without any pro- 
 vision for appeal, as the general statutes 
 provide for an appeal only from a final judg- 
 ment, order, or decree of the judges of pro- 
 bate. Memphis & C. R. Co. v. Birmingham 
 S. & T. R. R. Co. 96 Ala. 571, 11 So. 612, 
 
 18: 166 
 Contempt. 
 
 40. The Colorado statutes providing that 
 judgments or orders in cases of contempt 
 shall be final and conclusive does not pre- 
 Tcnt a writ of error from the final judgment, 
 
 but restricts the review to an inquiry into 
 the jurisdiction of the court entering the 
 judgment. Cooper v. People ex reL Wyatt. 
 13 Colo. 337, 373, 22 Pac. 790, 6: 430 
 
 Probate decrees. 
 See also supra, 31. 
 
 47. A decree declaring a person entitled to 
 a share of a legacy, with interest, and ad- 
 judging the true construction of a will, w : .th 
 directions that all future proceedings in the 
 cause be in accordance with such construc- 
 tion, but making no decree for any money, 
 is not fiml. Jameson v. Major, 86 Va. 51, 
 9 S. E. 480, 3: 773 
 
 48. An order directing persons named both 
 as executors and trustees in a will to render 
 .an account as executors, agains, their claim 
 that they hold the estate as trustees, in- 
 volves a decision that administration is nec- 
 essnry, and is therefore final so as to au- 
 thorize them to appeal from it. Re Hig- 
 gins's Estate, 15 Mont. 474, 39 Pac. 508, 
 
 28: 116 
 
 49. No appeal will lie from an order ap- 
 pointing the mother guardian of a natural 
 child. Ramsay v. Thompson, 71 Md. 315, 18 
 Atl. 592, C: 705 
 
 c. Criminal Cases. 
 
 See also infra, 80; Courts, 479. 
 
 50. The discretion of the trial judge In 
 denying a motion to set aside the report of 
 physicians to the effect that the condition 
 of a person sentenced to death was the same 
 as at the time of the trial, and refusing to 
 submit the question of his sanity or insanity 
 for determination by a tribunal before which 
 the convict might be represented oy counsel 
 and produce witnesses, is not subject to re- 
 view by appeal. State v. Nordstrom, 21 
 Wash. 403, 58 Pac. 248. 53: 584 
 
 51. The provision for an appeal by the 
 mother from an acquittal of the putative 
 father in a bastardy case, made by N. C. 
 acts 1879, chap. 92, is in violation of the 
 constitutional prohibition against placing a 
 person twice in jeopardy, as the statute, by 
 imposing a fine upon him when the issue of 
 paternity is found against him, makes it a 
 criminal proceeding. State v. Ostwalt, 118 
 N. C. 1208, 24 S. E. 660, 32: 396 
 
 52. A statute giving a right of appeal 
 from an acquittal in a criminal case for il- 
 legal fishing, to the party making the com- 
 plaint or any person who will give the neces- 
 sary bond, is a violation of the constitu- 
 tional provision that no person shall "be 
 twice put in jeopardy for the same offense." 
 People ex rel. Hodson v. Miner, 144 111. 308, 
 33 N. E. 40, 19: 342 
 Right of state to appeal. 
 
 See also Statutes, 465. 
 
 For Editorial Notes, see infra, XI. 3. 
 
 53. The right of the state to appeal "upon 
 a question reserved by the state" in a crim- 
 inal case includes a case in which a person 
 who has not actually been previously in 
 jeopardy is discharged by the court on a
 
 APPEAL AND ERROR, I. d II. a, 2. 
 
 67 
 
 pTpa of such ieopardy. State v. Rook, C9 
 Kan. 382, 59 Pac. 653, 49: 186 
 
 54. An appeal by the state in a criminal 
 case from a general verdict of not guilty, 
 which was entered upon motion of defendant 
 because the warrant was issued without 
 any affidavit, will not be granted upon the 
 theory that the verdict is equivalent to 
 quashing the indictment, so that the state 
 can appeal under N. C. Code, 1237, where 
 no motion to quash was made and the 
 court refused to withdraw a juror and dis- 
 miss the action. State v. Savery, 126 N. C. 
 1083, 36 S. E. 22, 49: 585 
 
 55. A statutory right of appeal by the 
 state in a criminal case to obtain a new 
 trial for errors of law after an acquittal is 
 not in violation of the fundamentals of the 
 common law of Connecticut, or inconsistent 
 vnth the principle that enforces the con- 
 clusiveness of a valid and final judgment. 
 State v. Lee, 65 Conn. 265, 30 Atl. 1110, 
 
 27 : 498 
 
 56. After acquittal by a jury, as well as 
 after trial by the court, an appeal may be 
 taken by the state, under Conn. Gen. Stat. 
 1637, authorizing the state to appeal in 
 the same manner and to the same effect as 
 the accused on questions of law. Id. 
 
 57. A writ of error lies on behalf of the 
 state to review an order quashing an indict- 
 ment on the ground of the unconstitutional- 
 ly of the statute under which it was drawn, 
 under a statute allowing the state an appeal 
 or writ of error "when any indictment is 
 quashed or judged insufficient on demurrer, 
 or when judgment thereon is arrested;" and 
 the right to review is not limited to cases 
 where the indictment is held insufficient for 
 matters of form, by a subsequent clause in 
 the statute which authorizes the trial court 
 to hold the defendant if it has reason to be- 
 lieve that he can be convicted of an offense 
 if properly charged. State v. Burgdoerfer, 
 107 Mo. 1, 17 S. W. 646, 14: 846 
 
 d. Modes of Review. 
 
 See also supra, 41; infra, 516; Injunction, 
 
 274, 380; Review, 9. 
 For Editorial Notes, see infra, XI. 1. 
 
 58. An appeal, and not a writ of error, 
 is the proper mode of reviewing a decision 
 on habeas corpus by the circuit court of the 
 United States. King v. McLean Asylum of 
 M. G. H. 21 U. S. App. 481, 12 C. C. A. 145, 
 64 Fed. 331, 26: 784 
 
 59. An appeal, and not a writ of error, is 
 the proper mode of review in an action for 
 a penalty under a municipal ordinance, 
 where the act is not made criminal by the 
 general law of the state. Sioux Falls v. 
 Kirby, 6 S. D. 62, 60 N. W. 156, 25: 621 
 
 60. Appeal, and not petition to review, is 
 the proper remedy for rejection of a claim 
 in a bankruptcy proceeding, which exceeds 
 $500 in amount. Re Dickson, 49 C. C. A. 574. 
 Ill Fed. 726, 55: 349 
 
 II. Jurisdiction of Particular Courts. 
 
 a. Of Supreme Court of United States. 
 
 1. In General. 
 
 See also infra, 61. 
 
 61. The question cf the jurisdiction of a 
 district court is not involved, so as to re- 
 quire the appeal to be taken to the Supreme 
 Court of the United States rather than to 
 the circuit court of appeals, in the deter- 
 mination that a corpsration is principally 
 engaged in such a business that it can be 
 adjudged a bankrupt. Columbia Ironworks 
 v. National Lead Co. 62 C. C. A. 99, 127 Fed. 
 99, 64: 645 
 
 2. Over State Courts. 
 
 For Editorial Notes, see infra, XI. 2. 
 
 62. Questions under the state Constitution 
 and laws cannot be considered on a writ ot 
 error to a state court, as they might be on 
 error to an inferior Federal court. Missouri 
 ex rel. Hill v. Dockery, 191 U. S. 165, 48 
 L. ed. 133, 24 Sup. Ct. Rep. 53, 63: 571 
 
 63. An averment in an answer in a suit 
 by a divorced wife on a policy of insurance 
 on her former husband's life, that, by virtue 
 of the Hawaiian laws and the decree of di- 
 vorce thereunder, all her rights in such pol 
 icy had passed to and become the property 
 of her husband, is not the special assertion 
 of a right or claim under the treaty with 
 Hawaii, which is essential, under U. S. Rev. 
 Stat. 709, U. S. Comp. Stat. 1901, p. 575, 
 to confer jurisdiction on the Supreme Court 
 of the United States to review a judgment 
 of a state court adverse to such right or 
 Ciaim. Mutual L. Ins. Co. v. McGrew, 188 
 U. S. 291, 47 L. ed. 480, 23 Sup. Ct. Rep. 
 375, 63: 33 
 Federal question presented. 
 
 For Editorial Notes, see infra, XI. 2. 
 
 64. A decision by a state supreme court 
 that the granting of a nonsuit, instead of 
 submitting the case to the jury, where the 
 iacts are admitted, does not deprive the 
 plaintiu of due process of law, does not raise 
 a Federal question which will entitle him to 
 a writ of error from the Supreme Court of 
 the United States. Apex Transp. Co. v. 
 Garbade, 32 Or. 582, 52 Pac. 573, 54 Pac. 
 367, 882, 62: 513 
 
 65. A decision of a state court adverse to 
 the claim that, under Mexican and Spanish 
 grants confirmed and patented under the act 
 of Congress of March 3, 1851 (9 Stat. at L. 
 631, chap. 41), the owners of the land were 
 entitled to riparian rights and subterranean 
 waters, involves no Federal question review- 
 able in the feupreme Court of the United 
 States, where the validity of such act was 
 not drawn in question. Hooker v. Los An- 
 geles, 188 U. S. 314, 47 L. ed. 487, 23 Sup. 
 Ct. Rep. 395, 63: 471 
 
 66. A decision of the Kentucky court of 
 appeals denying any force or effect to an 
 Indiana judgment, which is based on a de- 
 nial of the jurisdiction of the Indiana court
 
 58 
 
 APPEAL AND ERROR, IL b, c. 1. 
 
 because of the place of service, presents a 
 Federal question for review m the Supreme 
 Court of the United States, where such de- 
 nial can be justified only on the ground that 
 the Virginia compact of 1789 and the act 
 of Congress of February 4, 1791 (1 Stat. at 
 L. 189, chap. 4), admitting Kentucky to the 
 Union, did not confer the right of jurisdic- 
 tion which the Indiana court attempted to 
 exercise, and which the state of Indiana 
 claims. Wedding v. Meyler, 192 U. S. 573, 
 48 L. ed. 570, 24 Sup. Ct. Rep. 322, 66: 833 
 
 67. A taxpayer who admits that his own 
 tax is correct cannot, on the ground that he 
 will be deprived of his property without due 
 process of law, and denied the equal protec- 
 tion of the laws, contrary to the 14th Amend- 
 ment of the Constitution of the United 
 States, have a writ of error from the United 
 States Supreme Court to review a construc- 
 tion by the supreme court of the state of 
 the statutes thereof, as exempting in whole 
 or in part certain corporations from the 
 payment of taxes. Missouri ex rel. Hill v. 
 Dockery, 191 U.- S. 165, 48 L. ea. 133, 24 
 Sup. Ct. Rep. 53, 63: 571 
 
 68. A decision of a state court cannot be 
 reviewed in the Supreme Court of the Unit- 
 ed States as a denial of full faith and credit 
 to an Hawaiian judgment, where the Federal 
 right did not exist when judgment of the 
 trial court was rendered because the Hawaii- 
 an islands had not then been annexed to the 
 Unitea States, and such contention was not 
 brought to the attention of the highest state 
 itjurt in any form. Mutual L. Ins. Co. v. 
 McGrew, 188 U. S. 291, 47 L. ed. 480, 23 
 Sup. Ct. Rep. 375, 63: 33 
 Time and mode of raising Federal question. 
 For Editorial Notes, see infra, XI. 2. 
 
 69. A Federal question raised for the first 
 Jime on motion for rehearing comes too 
 late as a foundation for taking the case to 
 t lie Supreme Court of the United States. 
 Apex Transp. Co. v. Gai'bade, 32 Or. 582. 
 .V2 Pac. 573, 54 Pac. 367, 882, 62: 513 
 
 70. A Federal question first raised ra a 
 petition for rehearing in the highest state 
 court is raised too late to confer jurisdiction 
 upon the Supreme Court of the United 
 States, where such petition was denied with- 
 out opinion. Mutual L. Ins. Co. v. McGrew, 
 188 U. S. 291, 47 L. ed. 480, 23 Sup. Ct. Rep. 
 375, 63: 33 
 
 71. A judgment of a stale court cannot 
 be reviewed in the Supreme Court of the 
 United States on the ground that it denied 
 a right, title, privilege, or immunity secured 
 by the Federal Constitution, where it does 
 not appear on the face of the record that 
 such right, title, privilege, or immunity was 
 specially set up or claimed in the state 
 court. Home for Incurables v. New York, 
 187 U. S. 155, 47 L. ed. 117, 23 Sup. Ct. Rep. 
 84, 63: 329 
 
 72. A judgment of a state court in con- 
 demnation proceedings is not reviewable in 
 the Supreme Court of the United States on 
 the theory that a question respecting due 
 process of law was decided thereby, where 
 there is nothing in the record which ade- 
 quately shows that the state court was led 
 
 to suppose that any claim was made under 
 the Constitution of the United States, or 
 that any ruling involved a decision against 
 a right set up under that instrument. Hook- 
 er v. Los Angeles, 188 U. S. 314, 47 L. ed, 
 487, 23 Sup. Ct. Rep. 395, 63: 471 
 
 73.' A certificate of the chief judge of the 
 highest state court that a Federal question 
 was involved is not properly a part of the 
 record, and is insufficient in itself to confer 
 jurisdiction on the Supreme Court of the 
 United States to review a judgment of the 
 state court or to determine Federal questions 
 which do not appear from the record to 
 have been brought to the attention of that 
 court. Home for Incurables v. New York, 
 187 U. S. 155, 47 L. ed. 117, 23 Sup. Ct. Rep. 
 84, 63: 329 
 
 b. Of Circuit Courts of Appeals. 
 
 In Case Involving Right of Corporation to 
 be Adjudged Bankrupt, see supra, 61. 
 
 74. The jurisdiction of the United States 
 circuit court of appeals could be immediate- 
 ly invoked after the act of Congress of 
 March 31, 1891, creating those courts, al- 
 though the jurisdiction of the circuit courts 
 and the supreme court was preserved as to 
 appeals pending or taken before July 1, 1891. 
 Baltimore & O. R. Co. v. Andrew, 6 U. S. 
 App. 75, 1 C. C. A. 636, 50 Fed. 728, 17 : 190 
 
 75. An appeal lies to the United States 
 circuit court of appeals from an interlocu- 
 tory order continuing a preliminary injunc- 
 tion, where, although there is a question of 
 jurisdiction resting on the challenging of a 
 state law as in contravention of the Federal 
 Constitution, yet at the threshold of the 
 case the further question arises whether the 
 facts relied on make a case of equitable cog- 
 nizance. Green v. Mills, 25 U. S. App. 383, 
 16 C. C. A. 516, 69 Fed. 852, 30: 90 
 
 [Appeal Dismissed by Supreme Court of 
 United States in 159 U. S. 651, 40 L. ed. 
 293, 16 Sup. Ct. Rep. 132.] 
 
 c. Of State Courts, 
 1. Generally. 
 
 76. Legislative power to enlarge the juris- 
 diction of the court of appeals by providing 
 for a review of certain judgments of inferior 
 courts that were not reviewable before is 
 not taken away by the provision of N. Y. 
 Const, art. 6, 9, that the legislature may 
 further restrict such jurisdiction. People 
 ex rel. Comrs. of Public Charities, etc. v. 
 Cullen, 153 N. Y. 629, 47 N. E. 894. 44: 420 
 
 77. A writ of error lies to the supreme 
 court from the court established "in the city 
 of Cartersville, in the county of Bartow," 
 by Ga. act October 10, 1885, although the 
 act does not itself provide for such writ, 
 since it is provided for by Ga. Const, art. 
 6, 2, If 5, and Ga. Code," 4266, providing 
 for such writs from the city courts of Atlan- 
 ta and Savannah and such other like courts 
 as may be thereafter established. Western 
 & A. R. Co. v. Veils, 98 Ga. 446, 26 S. E. 483, 
 
 35: 655
 
 APPEAL AND ERROR, II. c, 24. 
 
 59 
 
 78. An appeal from the Illinois county 
 court upon the question of the amount fo: 
 which a claim against an insolvent estate 
 should be allowed is properly taken to the 
 appellate court. Levy v. Chicago Nat. Bank, 
 158 111. 88, 42 N. E. 129, 30: 380 
 
 79. Where the probate court, in the set- 
 tlement of the estate of a decedent, deter- 
 mines the liability of a devise, legacy, be- 
 quest, or inheritance to pay a collateral-in- 
 heritance tax, under the provisions of Ohio 
 Rev. Stat. 2731-1, appeal may be taken, 
 by either party to the controversy regarding 
 the tax, from the judgment of the, probate 
 court to the court of common p'.eas, as au- 
 thorized by 2731-13; and where the state, 
 or the prosecuting attorney in behalf of the 
 state, takes the appeal, it may be done with- 
 out giving an undertaking for such appeal, 
 and without filing the written notice of an 
 intention to appeal provided for in 6408; 
 and the appeal may be perfected by either 
 party according to the provisions of 6411 
 and 5227. Humphreys v. State, 70 Ohio St. 
 67, 70 N. E. 957, 65: 776 
 
 80. A writ of error at the instance of the 
 attorney general in a criminal case may be 
 sued out from the New Jersey court of ap- 
 peals to review a judgment of the supreme 
 court reversing a conviction, since such a 
 writ is not only authorized by the common- 
 law practice, but is expressly provided for 
 by N. J. act 1799 (2 Gen. Stat. p. 1391), en- 
 acting that errors happening in the supreme 
 court shall be heard by the court of appeals 
 in all causes of law, and that the attorney 
 general, in behalf of the state or for any 
 person damnified or aggrieved by any judg- 
 ment in the supreme court, may sue forth a 
 writ of error. State v. Meyer (N. J. Err. 
 A App.) 65 N. J. L. 233, 47 Atl. 485, 52: 346 
 
 2. Over Constitutional Questions; Validity 
 of Statutes. 
 
 81. The construction or application of the 
 Constitution of Pennsylvania is not involved, 
 for the purpose of an appeal to the supreme 
 court, by reason of a so-called constitutional 
 question which has theretofore been raised, 
 fully considered, and more than once definite- 
 ly settled. De Walt's Appeal, 190 Pa. 577, 
 42 Atl. 1025, 45: 399 
 
 82. A question as to the constitutionality 
 of a license tax upon a merchandise broker 
 is affirmatively shown by the record so as 
 to give jurisdiction to the Virginia court of 
 appeals, where a bill of exceptions has been 
 duly taken to the refusal of an instruction 
 to find in favor of the broker, if he carried 
 on business only as a resident sales agent 
 for nonresident principals, although no ref- 
 erence was made in terms to the commerce 
 clause of the Federal Constitution. Adkins 
 v. Richmond, 98 Va. 91, 34 S. E. 967, 
 
 47 : 583 
 
 83. An appeal from a judgment in an ac- 
 tion by a city against those who refuse to 
 pay an amount charged to them as a paving 
 assessment, under a statute authorizing the 
 paving to be carried on by ex parte proceed- 
 ings inaugurated by municipal authorities 
 
 alone, under an ordinance imposing two 
 thirds of the costs upon the abutting owners, 
 without either their knowledge or consent, 
 s within the clause of La. Const. 1898, art. 
 35, extending the jurisdiction of the supreme 
 court to ail cases in which the constitution- 
 ality or legality of any tax, toll, or impost 
 whatever shall be in contest, when the de- 
 fendants insist that the assessment under 
 the ordinance was not warranted by the 
 statute, fthreveport v. Prescott, 51 La. Ann. 
 1895, 26 So. 664, 46: 193 
 
 84. In an action against a county by an 
 industrial school for girls, to compel pay- 
 ment for the support of girls committed to 
 it under 111. act May 28, 1879, an appeal 
 lies from the circuit directly to the su- 
 preme court, under practice act, 88, relat- 
 ing to questions as to the validity of a stat- 
 ute or constitution. Cook County v. Chicago 
 Industrial School for Girls, 125 111. 540, 18 
 N. E. 183, 197, 1:437 
 
 3. Over Questions of Title. 
 
 See also infra, 93. 
 
 85. A suit to set aside a deed and specifi- 
 cally enforce a contract for land involves a 
 freehold, within the jurisdiction of the Illi- 
 nois supreme court. Hayes v. O'Brien, 149 
 111. 403, 37 N. E. 73, 23: 555 
 
 86. A freehold is involved so as to give 
 jurisdiction to the supreme court of Illinois 
 of an appeal from an order overruling a 
 motion to quash a writ of possession in aid 
 of a judgment in ejectment. Bowar v. Chi- 
 cago W. D. R. Co. 136 111. 101, 26 N. E. 702, 
 
 12: 81 
 
 4. Amount Necessary for Jurisdiction. 
 See also infra, 471 ; Parties, 100. 
 
 87. The legislature may limit the right to 
 appeal to cases involving at least a specified 
 amount under constitutional provisions that 
 the supreme court shall have appellate juris- 
 diction only, which shall be coextensive 
 througnout the state, and that appeals shall 
 be allowed under such regulations as may 
 be prescribed by law. McClain v. Williams, 
 10 S. D. 332, 73 N. W. 72, 11 S. D. 60, 75 N. 
 W. 391, 43: 287 
 
 88. A law limiting the right to appeal to 
 cases involving at least a specified amount 
 will, unless otherwise provided, apply to 
 pending appeals as well as to those subse- 
 quently taken. Id. 
 
 89. The amount involved necessary to au- 
 thorize an appeal cannot be fixed at differ- 
 ent sums in suits in county and circuit 
 courts if in some counties the two courts 
 have concurrent jurisdiction in a large class 
 of cases and the Constitution provides that 
 laws relating to courts shall have general 
 and uniform operation throughout the state, 
 and that the practice of all courts of the 
 same class or grade so far as regulated by 
 law shall be uniform. Id. 
 
 90. Where a decree is rendered against 
 two defendants separately, on a bill to com- 
 pel contribution, and this is reversed, an ap-
 
 APPEAL AKD ERROR, HI. a. 
 
 peal to the supreme court of Illinois from a 
 decree of reversal cannot be sustained as to 
 one of the defendants against whom the 
 judgment was for less than $1,000. Farwell 
 v. Becker, 129 111. 261, 21 N. E. 792, 6: 400 
 
 91. Where an item of statutory costs is 
 disallowed by the trial court in an action 
 of which the supreme court would have jur 
 isdiction on appeal, the aggrieved party may 
 have such disallowance alone reviewed in 
 the supreme court, notwithstanding the fact 
 that such item alone is not sufficient in 
 amount to give that court jurisdiction of the 
 controversy. Farley v. Geisecker, 78 Iowa. 
 453, 43 N. W. 279, 6: 533 
 
 92. Actions relating to the existence of a 
 nuisance are not within the provisions of 
 Iowa Code, 3173, making the right of ap- 
 peal to the supreme court depend upon the 
 amount in controversy or a certificate of the 
 trial judge; and they may therefore be ap- 
 pealed to that court without regard to the 
 amount involved. Id. 
 When title to land involved 
 
 93. The amount in controversy is not ma- 
 terial to the jurisdiction of the court of 
 appeals of Kentucky when the title to land 
 is involved. Stillwell v. Duncan, 103 Ky. 59, 
 44 S. W. 357, 39: 863 
 In equitable proceeding. 
 
 94. In equitable proceedings an appeal lies 
 to the supreme court, irrespective of the 
 amount in controversy. Bennett v. Thorne, 
 36 Wash. 253, 78 Pac. 936, 68: 113 
 What is the amount in dispute. 
 
 95. The amount in dispute on an appeal 
 is the difference between the amount claimed 
 and the amount recovered. Holker v. Hen- 
 nessey, 141 Mo. 527, 42 S. W. 1090, .39: 165 
 
 96. The amount in dispute for the purpose 
 of determining jurisdiction on appeal is that 
 claimed in the petition, where a nonsuit is 
 granted, although the sum allowed by the 
 jury on a former trial was much smaller, 
 and the action is for killing a minor whose 
 earnings at the rate received at the time of 
 his death would not have amounted to the 
 sum claimed, before his maturity. Hennes- 
 sy v. Bavarian Brew. Co. 145 Mo. 104, 46 
 S. W. 966, 41: 385 
 
 97. An appeal involving the question of a 
 garnisliee's liability on a judgment for more 
 than $100, including costs, involves more 
 than $100, although the original debt, ex- 
 clusive of costs, may have been less than 
 $100. Mayo v. Milwaukee Amusement Co. 
 94 Wis. 610, 69 N. W. 344, 36: 561 
 
 98. The jurisdictional amount for an ap- 
 peal exists where a judgment for the neces- 
 sary amount is rendered consistently with 
 the pleadings, although it includes exem- 
 plary damages. Thompson v. Jackson, 93 
 Iowa, 376, 61 N. W. 1004, 27: 92 
 
 HI. Transfer of Cause; Parties, 
 a. Right to Transfer. 
 
 Equal Protection as to, in Criminal Cases, 
 
 see Constitutional Law, 601. 
 See also infra, 405. 
 
 Who entitled to. 
 
 Right of State to Appeal, see supra, 53-57. 
 
 For Editorial Notes, see infra, XI. 3. 
 
 99. A necessary party to a judicial pro- 
 seeding as a representative of public author- 
 ity, having no interest in the litigation ex- 
 ^ept to vindicate such authority, is a party 
 in interest and may be a party aggrieved 
 within the meaning of the appeal statute 
 and the practice on review on writs of er- 
 ror. State ex rel. Burner v. Huegin, 110 
 Wis. 189, 85 N. W. 1046, 62: 700 
 
 100. If, in a habeas corpus suit against a 
 sheriff, he is required to restore his prisoner 
 to liberty, he is a party aggrieved within the 
 rule that only such a party is entitled to be 
 heard on appeal or review on writ of error. 
 
 IcL 
 
 101. The right to appeal as a party "ag- 
 grieved" does not extend to executors who 
 have obtained a judgment construing a will 
 is to which of two parties is entitled to a 
 certain bequest, where the alleged claimants 
 acquiesce in the decision. Bryant v. Thomp- 
 son, 128 N. Y. 426, 28 N. E. 522, 13: 745 
 
 102. Persons who are ssrved and appear as 
 stockholders in a proceeding against a cor- 
 poration to assess the additional liability 
 of stockholders for payment of its debts be- 
 come parties to the proceeding so as to be 
 entitled to appeal from the decree. Bennett 
 v. Tnorne, 36 Wash. 253, 78 Pac. 936, 
 
 68: 113 
 
 103. A mortgagor cannot appeal from an 
 order appointing a ' receiver of the mort- 
 gaged property on the ground that it in- 
 cludes a tenement in possession of a tenant 
 who has paid his rent for a term beyond 
 the redemption period of the mortgage. 
 Thorpe v. Mindeman, 123 Wis. 146, 101 N. W. 
 417, 68: 146 
 
 104. An allegation by a appellant that he 
 is "aggrieved both as an heir at law and 
 next of kin" is a mere averment of a legal 
 conclusion, and not sufficient to show a right 
 to appeal, where the facts set up show that 
 his claim is without foundation. Camp- 
 bell's Appeal, 64 Conn. 277, 29 Atl. 494, 
 
 24: 667 
 
 105. Trustees representing a religious so- 
 ciety to which a devise was made in trust 
 to expend the proceeds in saying masses are 
 proper parties to appeal from a decision 
 against the devise. Hoeffer v. Clogan, 171 
 111. 462, 49 N. E. 527, 40: 730 
 
 106. On the death of an administrator 
 against whom a decree for the payment of 
 money out of the assets of the estate has 
 been rendered, the proper party to appeal is 
 not his administrator, but an administrator 
 de bonis non. Miller v. McMechen, 33 W. 
 Va. 197, 10 S. E. 378. 6: 515 
 
 107. An administrator de bonis non need 
 not make himself a formal party to the rec- 
 ord in order to appeal from a decree against 
 his predecessor, who is dead, but may simply 
 petition for an appeal, stating the other's 
 death and exhibiting his own appointment. 
 
 Id. 
 
 108. The next friend of an insane person 
 in a writ of error is not necessarily the same 
 person who represented him as guardian ad
 
 APPEAL AND ERROR, III. b, c. 
 
 61 
 
 litem in the lower court, since the incapac- 
 ity of the insane person to change his rep- 
 resentative does not prevent the court from 
 making the change. lago v. lago, 168 111. 
 339, 48 N. E. 30, 39: 115 
 
 Leave to appeal. 
 
 109. The finding of facts by the presiding 
 judge for the purpose of an appeal is suffi- 
 cient evidence as to permission to appeal, al- 
 though formal permission should appear on 
 the record. State v. Lee, 65 Conn. 265, 30 
 Atl. 1110, 27:498 
 
 110. An application for an appeal to the 
 supreme court of Pennsylvania shbiild be by 
 petition stating clearly and distinctly the 
 reasons, so that the court or any of its jus- 
 tices may readily determine whether it is 
 within the letter as well as the spirit of the 
 superior court act. De Walt's Appeal, 190 
 Pa, 577, 42 Atl. 1025, 45: 339 
 
 b. Effect; Subesquent Proceedings in Court 
 Below. 
 
 In Bankruptcy, see Bankruptcy, 2. 
 
 Vacating Levy Pending Proceedings in Er- 
 ror, see Courts, 425. 
 
 From Order Admitting Will to Probate, see 
 Executors and Administrators, 142. 
 
 Suspension of Judgment Pending Appeal, see 
 Judgment, 312. 
 
 See also infra, 150, 151. 
 
 For Editorial Notes, see infra, XI. 9. 
 
 111. The trial court may correct a cleri- 
 cal error in the amount of the judgment en- 
 tered, after the record has been removed to 
 a higher court by appeal. Kindel v. Beck & 
 P. Lithographing Co. 19 Colo. 310, 35 Pac. 
 538, 24: 311 
 
 112. Praying an appeal, without taking 
 any further steps, does not defeat the juris- 
 diction of the trial court to entertain a bi.l 
 of review. State ex rel. Terre Haute v. 
 Kolsem, 130 Ind. 434, 29 N. E. 595, 14: 566 
 
 113. The filing, in a probate court, of a 
 transcript of the proceedings of a circuit 
 court in a will contest, does not give the 
 probate court any jurisdiction to revoke the 
 administration pendente -lite, since the atti- 
 tude of the circuit court towards the pro- 
 bate court is that of an appellate court, and 
 the result of the will contest in the circuit 
 court can reach the j^bate court only 
 through a certificate from the former to the 
 latter. State ex rel. Hamilton v. Guinotte, 
 156 Mo. 513, 57 S. W. 281, 50: 787 
 Supersedeas; stay. 
 
 Supersedeas Bond, see infra, 1267-1269. 
 Kll'ect of Failure to Ask for Stay, see New 
 
 Trial, 61. 
 
 See also infra, 1C8. 
 For Editorial Notes, see infra, XI. 9. 
 
 114. An order of Supersedeas to preserve 
 the status quo of the parties pending the 
 determination of an appeal upon Its merit 
 is within the inherent powers of an appel- 
 late tribunal which is authorized to issue all 
 writs necessary and proper to the complete 
 exercise of its appellate and revisory juris- 
 diction. State ex rel. Barnard v. Seattle Bd. 
 of Edn. 19 Wash. 8, 52 Pac. 317, 40: 317 
 
 115. An order appointing a receiver for a 
 dissolved corporation is suspended, undttr 
 
 !al. Code Civ. Proc. 949, by an appeal from 
 the judgment declaring the forfeiture, where 
 the requisite undertaidng is given. Have- 
 meyer v. San Francisco Super. Ct. 84 Cal. 
 327, 24 Pac. 121, 10: 627 
 
 116. The effect of a conviction of felony 
 as a ground for disbarring an attorney is 
 not annulled by a writ of error and super- 
 sedeas. Re Kirby, 10 S. D. 322, 73 N. W. 92, 
 10 S. D. 414, 73 N. W. 907, 39: 856 
 
 117. A stay of an order of discharge in a 
 habeas corpus case may be made by the ap- 
 pellate court without fixing any terms, un- 
 der Ohio Rev. Stat. 6725, providing for a 
 stay of execution of a judgment or final or- 
 der on such terms as may be prescribed. 
 Henderson v. James, 52 Ohio bt. 242, 3J N. 
 E. 805, 27: 290 
 
 118. Granting a stay of execution by an 
 appellate court pending an appeal in a capi- 
 tal case is not a reprieve within the mean- 
 ing of a constitutional provision giving to 
 the governor the power to grant reprieves; 
 and a statute authorizing such stay merely 
 declares the inherent power of the court, in- 
 dependent of any statutory provision. Par- 
 ker v. State, 135 Ind. 534, 35 N. E. 179, 
 
 23: 859 
 
 c. Parties. 
 
 Who Entitled to Appeal, see also supra, 99- 
 
 108. 
 
 See also supra, 79; infra, 134. 
 For Editorial Notes, see infra, XI. 3, 6. 
 
 119. A defendant who has succeeded to the 
 rights, whatever they are, of codefendants, 
 may join them with him in prosecuting an 
 appeal. Andrews v. National Foundry & P. 
 Works, 22 C. C. A. 110, 46 U. S. App. 281, 
 76 Fed. 166, 36: 139 
 
 120. A writ of error to review a joint 
 judgment against defendants only one of 
 whom is named, except by the abbreviation 
 et al., is fatally defective for the want of 
 necessary parties. State ex rel. Andreu v. 
 Canfie^, 40 Fla. 36, 23 So. 591, 42: 72 
 
 121. An amendment to bring, in new par- 
 ties plaintiff in error is a new writ which 
 cannot be allowed after the expiration of 
 the time limited for suing out writs of er- 
 ror. Id. 
 Death of party below. 
 
 122. A motion to strike from the title 
 of a case on appeal the name of a party who 
 died pending the hearing below will be 
 granted, where his entire interest is repre- 
 sented by another party to the suit, and no 
 injustice can follow tne granting of the mo- 
 tion. Johnston v. Little Horse Creek Irng. 
 Co. 13 Wyo. 208, 79 Pac. 22, 70: 341 
 Who are necessary parties. 
 
 See also infra, X. 
 
 For Editorial Notes, see infra, XI. 6. 
 
 123. Parties to the record, but not parties 
 to the judgment, are not required to ba 
 made parties on appeal, or to be serve:! with 
 notice. Lowe v. Turpie, 147 Ind. 052, 44 
 N. E. 25, 47 N. E. 150, 37: 233
 
 63 
 
 APPEAL AND ERROR, III. d f. 
 
 124. Coparties to a judgment need not be 
 made coappellants in a term-time ap'vnl. in 
 any case pending when Ind. act 1895, p. 
 179, took effect. Id. 
 
 125. An appeal by the owners of the prop- 
 erty from a decision establishing a mechan 
 ic's lien can be maintained without joining 
 other defendants, under Mills's (Oolo.) Ann 
 Stat. 1085, which provides that appeals 
 may be taken by any person aggrieved. 
 Davidson v. Jennings, 27 Colo. 187, 60 Pac. 
 354, 48: 340 
 
 d. Mode; Conditions; Regulations. 
 
 See also supra, 110. 
 
 For Editorial Notes, see infra, XL 4. 
 
 126. Practice on appeal in an admiralty 
 case to a territorial supreme court is regu- 
 lated by rules and usages 01 courts of ad- 
 miralty, and not by territorial statutes. 
 Braithwaite v. Jordan, 5 N. D. 196, 65 N. W. 
 701, 31:238 
 
 127. An appeal in a suit by the creditor 
 of a legatee against him and the administra- 
 tor to reach money in the tatter's hands is 
 not subject to the provisions- of Ind. Rev. 
 Stat. 1881, 2454, 2455, respecting appeals 
 in proceedings for settlement of decedents' 
 estates. Koons v. Mellett, 121 Ind. 585, 23 
 Jf E. 95, 7: 231 
 
 128. An affidavit for appeal from the deci- 
 sion of a circuit-court commissioner to the 
 circuit court, in a summary proceeding by a 
 landlord to recover possession of the leased 
 premises from his tenant, is sufficient if in 
 the common form of affidavits on appeal 
 from justices' courts, although it does not 
 state the nature of the action, nor when it 
 arose, nor when it was tried. Hanaw v. 
 Bf' 1 . ** MVh. 24. 46 N. W. 1039, 9: 801 
 
 129. The allowance of an appeal within 
 the time prescribed by law is sufficient to 
 remove the case to the appellate court, al- 
 though the appeal is not perfected by the 
 filing of the bond and issuance of service of 
 citation within that time. Columbia Iron- 
 works v. Mational Lead Co. 62 C. C. A. 99. 
 127 Fed. 99, 64:645 
 Writ of error. 
 
 For Editorial Notes, see infra, XL 4. 
 
 130. A writ of error must be returned 
 with the record in the cause, or, at the lat- 
 est, by its return day, and must have in- 
 dorsed on it a certificate of its record in the 
 minute book of the circuit court, under Fla. 
 Laws 1897, chap. 452D, which makes such 
 record a sul stitute for other notice of the 
 writ. State ex rel. Andreu v. Canfield, 40 
 Fla. 36, 23 So. 591, 42:72 
 
 131. A writ of error issued from the Fed- 
 eral Supreme Court for the purpose of re- 
 viewing the decision of a state court is prop- 
 erly directed to the inferior state court 
 where the judgment of the highest state 
 court was ordered to be entered, and where 
 the record, remained. Wedding v. Meyler. 
 192 U. S. 573, 48 L. ed. 570, 24 Sup. Ct. Rep. 
 322. 66: 833 
 Joining several orders in one appeal. 
 
 132. Several interlocutory orders granting 
 temporary injunctions and refusing to dis- 
 
 solve them may be brought before the su 
 preme court by a single appeal, if made in 
 the same case, and the appeals are taken in 
 proper time, under. a statute allowing an ap- 
 peal from such orders. Gagnon v. French 
 Lick Springs Hotel Co. 163 Ind. 687, 72 N. 
 E. 849, 68: 175 
 
 e. Citation; Notice; Appearance. 
 
 Due Process in Giving Notice, see Consti- 
 tutional Law, 868. 
 
 Notice of Appeal from Justice's Judgment, 
 see Justice of the Peace, 23, 24. 
 
 See also supra, 79; infra, 152, 225, 377. 
 
 For Editorial Notes, see infra, XI. 4. 
 
 133. A notice of appeal is not insufficient 
 because of a clerical mistake in giving the 
 date of the order appealed from as the llth 
 instead of the 10th day of a certain month. 
 Paul v. Cragnas, 25 Nev. 293, 59 Pac. 857, 
 60 Pac. 983, 47: 540 
 
 134. Notice of appeal to coparties need 
 not be given, under Ind. Rev. Stat. 1881, 
 635, where no judgment is rendered against 
 them and they have no interest in the ap- 
 peal. Koons v. Mellett, 121 Ind. 585, 23 N. 
 E. 95, 7:231 
 
 135. The provisions of a statute requiring 
 the record by the clerk of the circuit court 
 of a writ of error in the minute book of 
 his court as a substitute for other notice 
 must be strictly complied with in order to 
 give jurisdiction. State ex rel. Andreu v. 
 Canfield, 40 Fla. 36, 23 So. 591, 42: 72 
 Acceptance of service. 
 
 136. A general acceptance of service of 
 citation on appeal by an attorney is good 
 for all parties whom he represents of record. 
 Andrews v. National Foundry & P. Works, 
 22 C. C. A. 110, 46 U. S. App. 281, 76 Fed. 
 166, 36: 139 
 Appearance. 
 
 See also infra, 373. 
 
 For Editorial Notes, see infra, XI. 4. 
 
 137. Making a motion to dismiss an ap- 
 peal on "the ground that the decree below 
 was not Imal constitutes an appearance in 
 the appellate cotrt. Andrews v. National 
 Foundry & P. Works, 22 C. C. A. 110, 46 U. 
 S. App. 281, 76 Fed. 166, 619, 36: 139 
 
 138. That a joinder in error, indorsed upon 
 the record and signed by attorneys who des- 
 ignated themselves as attorneys for appel- 
 lees, was unauthorized, will not defeat the 
 jurisdiction on appeal if the appellees have 
 otherwise appeared in the appellate court. 
 Lowe v. Turpie, 147 Ind. 652, 44 N. E. 25, 
 47 N. E. 150, 37: 233 
 
 f. Time. 
 
 Sufficient Filing on Sunday of Application 
 
 for Writ, see Filing. 
 See also supra, 121, 129, 130, infra, 152, 
 
 197, 374, 376. 
 For Editorial Notes, see infra, XL 5. 
 
 139. There is no limitation upon the time 
 within which an appeal will lie from an in- 
 terlocutory decree settling the principles of 
 
 a cause. The limitation of one year upon
 
 APPEAL AND ERROR, IIL g. 
 
 63 
 
 the time for appealing provided by Va. Code. 
 3455, runs only as against a final decree. 
 Jameson v. Major, 86 Va. 51, 9 S. E. 480. 
 
 3: 773 
 
 140. A judgment that one of the parties 
 to an election contest is the duly elected 
 officer, and that he is entitled to the office 
 on performing necessary acts, is not a judg- 
 ment in which an election hns been "an- 
 nulled and set aside," within Nev. Gen. Stat. 
 1569, requiring the appeal in such case to 
 be taken within thirty days. Buckner v. 
 L,ynip, 22 Nev. 420, 41 Pac. 762, 30: 354 
 
 141. The provision of Fla. act'^lay 11, 
 1893, chap. 4130, that all appeals in chan- 
 cery, whether from final decrees or interloc- 
 utory orders, must be taken within six 
 months after the entry of the decree or or- 
 der appealed from, has no retroactive effect, 
 but applies only to decrees and orders en- 
 tered after the act took effect, which was 
 Aug. 1, 1893, or sixty days after the final 
 adjournment of the legislature. Sammis 
 v. Bennett, 32 Fla. 458, 14 So. 90, 22: 48 
 For cross petition. 
 
 142. A defendant in error against whom, 
 as cross petitioner in the trial court, a judg- 
 ment had been rendered which is in favor of 
 all the other parties to the suit, and to 
 which no error is assigned by another party, 
 is required to file his cross petition in error 
 within two years alter the rendition of such 
 judgment, in order to obtain its reversal. 
 Aiannix v. Purceil, 46 Ohio St. 102, 19 N. E. 
 572, 2: 753 
 Computation of. 
 
 Exclusion of Sunday, see Time, 27. 
 For Editorial Notes, see infra, XI. 5. 
 
 143. In computing the time for taking ap- 
 peals under a statute excluding holidays 
 irom the number of days specified, half holi- 
 days established by law should be taken into 
 account, and their aggregate added to the 
 time shown by the calendar. Ocumpaugh v. 
 Norton, 24 D. C. App. 296, 68: 2<2 
 
 144. The date of the tiling of a decree 
 with the clerk, and nut that upon which it 
 was signed, is the time of its rendition with- 
 in the meaning of 25 of the bankruptcy 
 act of 18t)8, requiring ail appeal to be taken 
 within ten days Irom that time, where it 
 does not appear where the decree was be- 
 tween the dates of signature and filing. 
 Peterson v. Nash Bros. 50 C. C. A. 260, 112 
 Fed. 311, 55: 344 
 
 g. Security. 
 
 Liability on Bond, see infra, X. 
 
 Necessity. 
 
 See also supra, 79. 
 
 For Editorial Notes, see infra, XI. 8. 
 
 145. No bond is necessary on appeal, in 
 a will contest, from the circuit court to the 
 supreme court of Missouri, in order to con- 
 tinue an administration granted during the 
 time of the contest, since the appeal itse.f, 
 from the very nature and necessity of the 
 case, carries its own supersedeae along with 
 
 it. State ex rel. Hamilton v. Guinotte, 15fi 
 Mo. 513, 57 S. W. 281, 50: 787 
 
 146. The court cannot eliminate an invalid 
 provision for a recognizance, from a statute 
 
 >roviding therefor as a condition of appeal 
 
 from a conviction, in order to sustain the 
 
 statute as authorizing an appeal without a 
 
 recognizance. State v. Gerry, 68 N. H. 495, 
 
 38 Atl. 272, 38: 228 
 
 Sufficiency. 
 
 For Editorial Notes, see infva, XI. 8. 
 
 147. An undertaking on appeal is not vi- 
 tiated by a mere clerical mistake in stating 
 the date of the order appealed from. Paul 
 v. Cragnas, 25 Nev. 293, 59 Pac. 857, 60 Pac. 
 983, 47: 540 
 
 148. Defendant in error in the Virginia 
 supreme court of appeals waives the omis- 
 sion from the appeal bond, given before the 
 clerk as prescribed by Va. Code, 3471, of 
 the condition for the payment of all actual 
 damages incurred in consequence of the pro- 
 ceedings, by failing to raise the objection 
 until it is too late for plaintiff to give a 
 new bond or to have another appeal allowed. 
 Virginia F. & M. Ins. Co. v. New York Ca- 
 rousal Mfg. Co. 95 Va. 515, 28 S. E. 888, 
 
 40: 237 
 
 Who may be surety on. 
 Corporation, see Corporations, 137, 138. 
 For Editorial Notes, see infra, XI. 8. 
 
 149. An executor acting in his individual 
 capacity is competent as surety on an appeal 
 bond for a legatee who has appealed. Suc- 
 cession of Meunier, 52 La. Ann. 79, 26 So. 
 776, 48: 77 
 Amount. 
 
 For Editorial Notes; see infra, XI. 8. 
 
 150. The amount of a suspensive appeal 
 bond may be fixed by the trial judge, where 
 the judgment annulled a will and probate 
 thereof, recognizing plaintiffs as heirs, but 
 did not in terms send them into possession 
 nor make an award against the executors 
 specifically for the net proceeds of the es- 
 tate in their hands. Succession of Meunier, 
 52 La. Ann. 79, 26 So. 776, 48: 77 
 
 151. An appeal and supersedeas bond in 
 the sum of $250 is sufficient, in case of an 
 appeal from a judgment dismissing the ac- 
 tion with $10 costs, under a statute requir- 
 ng the penalty of an aopeal bond to be not 
 less than $200, and, "in order to effect a 
 stay of proceedings where the appeal is 
 from a final judgment for the recovery of 
 money, it shall be in a penalty double the 
 amount of damages and costs recovered in 
 such judgment." West Coast Mfg. & I. Co. 
 v. West Coast Improv. Co. 25 Wash. 627. 
 66 Pac. 97, 62:763 
 Time for giving. 
 
 For Editorial Notes, see infra, Al. 8. 
 
 152. The execution of an undertaking on 
 appeal before the notice of appeal is filed 
 will not make the undertaking insufficient, 
 if it is filed after the filing of the notice of 
 appeal, as the statute requires. Paul v. 
 Cragnas, 25 Nev. 293, 59 Pac. 857, 60 Pnc. 
 983, 47:540
 
 64 
 
 APPEAL AND ERROR, IV. a d. 
 
 IV. Record and Case in Appellate Court, 
 a. In General. 
 
 Presumptions Arising from Condition of 
 
 Record, see infra, VII. d. 
 For Editorial Notes, see infra, XI. 7. 
 
 153. Facts not appearing in the record 
 cannot be considered in the decision of an 
 appeal. Fordham v. Northern P. R. Co. 30 
 Mont. 421, 76 Pac. 1040, 66: 556 
 
 154. The party relying on the exception 
 in a statute permitting appeal from judg- 
 ments or orders finally determining actions, 
 excepting unanimous decisions that there is 
 evidence to sustain a finding of fact, must 
 show from the record that the. decision was 
 unanimous. Laidlaw v. Sage, 158 N. Y. 73, 
 52 N. E. 679, 44: 216 
 
 155. To get an omitted fact into the 
 record for the purpose of presenting a ques- 
 tion of law under Conn, act 1897, it must 
 appear to have been an admitted or undis- 
 puted fact, and that its statement is neces- 
 sary to present properly a question of law 
 decided adversely to appe.lant. Hoadley v. 
 Savings Bank of Danbury, 71 Conn. 599, 42 
 Atl. 667, 44: 321 
 
 156. A refusal to assess damages for in- 
 jury to a water power is not shown, so as 
 to present a question of law on appeal, 
 where there is no expression of intention to 
 that effect, and evidence was taken on the 
 subject, and an award to the claimant is 
 maue in gr^ss without items. Re Thompson. 
 127 N. Y. 463, 28 N. E. 389, 14: 52 
 
 157. On appeal from a conviction of mur- 
 der, where the record recites the going into 
 court of defendant and his counsel, the call- 
 ing and coming in of the jury, the continu- 
 ance of the trial, the argument of counsel, 
 the instructions to the jury, their retire- 
 ment, and the return of the jury into court 
 with the verdict, and the verdict itself, all 
 in one entry, it sufficiently shows defend- 
 ant's presence ac the rendition of the ver- 
 dict. '1 rumble v. Territory, 3 Wyo. 280, 21 
 Pac. 1081, 6: 384 
 Record of other appeal. 
 
 158. In considering a cause on appeal the 
 court may proper, y look into the record of 
 another appeal in a suit between the same 
 parties which it has recently decided. Salt 
 Lake City v. Salt Lake City Water & E. P. 
 Co. 24 Utah, 249, 67 Pac. 672, 61:648 
 Striking out. 
 
 See also infra, 210, 211. 
 
 159. Papers which constitute no part of 
 the record on appeal may be struck out on 
 motion. Paul v. Cragnas, 25 Nev. 293, 59 
 Pac. 857, 60 Pac. 983, 47 : 540 
 
 b. What Should be Shown by. 
 
 See also infra, 220, 221. 
 
 For Editorial Notes, see infra, XI. 7. 
 
 160. To show error in the refusal to per- 
 mit a witness to answer a question it must 
 appear what was expected or proposed to be 
 provwl bv him. Tninn C. L. Ins. Co. v. Pol- 
 lard, 94 'Va. 146, 26 S. E. 421, 36: 271 
 
 161. The omission of a statement in an 
 order of reversal by an appellate court, that 
 the reversal was upon the facts, is imma- 
 terial in a case where there are no disputed 
 questions of fact. Buffalo & L. Land Co. 
 v. Be.levue Land & I. Co. 165 N. Y. 247, 59 
 N. E. 5, 51:951 
 
 162. On appeal from a conviction for crime 
 the record need not affirmatively show that 
 defendant was furnished with a copy of the 
 indictment and a list of jurors, before ar- 
 raignment, as required by statute. Parker 
 v. People, 13 Cola. 155, 21 Pac. 1120, 4: 803 
 
 c. Contradictions in. 
 
 See also infra, 170, 397. 
 
 163. The return of process contained in 
 the record on appeal must control the find- 
 ing of the court, when they are contradict- 
 ory. Lonkey v. Keyes Silver Min. Co. 21 
 Nev. 312, 31 Pac. 57, 17: 351 
 
 164. Evidence outside of the transcript is 
 inadmissible on appeal to show that a mo- 
 tion stated therein to be made by one of the 
 parties was in fact made by the other. Nor- 
 wegian Plow Co. v. Bollman, 47 Neb. 186, 
 66 N. W. 292, 31: 747 
 
 165. A certificate to the bill of exceptions 
 stating that it contains all the evidence will 
 not be conclusive against statements in the 
 bill to the contrary. Greene v. Greene, 4iJ 
 Neb. 546, 68 N. W. 847, 34: 110 
 
 166. liie certificate of the judge that a 
 transcript contains all the evidence will be 
 accepted as true against an objection that 
 the evidence is not all included, in the ab- 
 sence of any specific reference to s-how that 
 fact. Spencer v. Andrew, 82 Iowa, 14, 4/ N. 
 W. 1007, 12: 115 
 
 d. Amending. 
 
 For Editorial Notes, see infra, XI. 7. 
 See also infra, 177. 
 
 167. Leave to file a supplemental record in 
 support of a petition for renearing will not 
 be granted to bring up proceedings of the 
 trial court which occurred subsequent to the 
 final judgment; if the matters' were all with- 
 in the knowledge of the plaintiff in error be- 
 fore the original bill of exceptions was ap- 
 proved and signed. Clipper Min. Co. v. Eli 
 Min. & L. Co. 29 Colo. 377, 68 Pac. 286, 
 
 64: 209 
 
 168. A supreme court which has arrested 
 a judgment of conviction in a criminal case 
 because of a fatal defect in the im^ictment 
 as presented to it may, even after the close 
 of the term, grant the state the opportunity 
 to correct the record so as to show that the 
 alleged defect did not exist, and proceed to 
 hear the appeal upon the corrected record. 
 State v. Marsh, 134 N. C. 184, 47 S. E. 6, 
 
 67: 179 
 
 169. A certiorari will not be granted to in- 
 corporate in a case settled an exception 
 which appellant has waived by failure to 
 set it out in his statement of case on ap- 
 peal. State v. Black, 109 JN. C. 856, 13 S. E. 
 877, " 14: 205
 
 APPEAL AND ERROR, IV. e h. 
 
 65 
 
 e. Affidavits. 
 
 See also infra, 806. 
 
 170. Affidavits as to oral agreements be- 
 tween counsel will not be considered on ap- 
 peal, under Iowa Code, 213, at least so 
 far as they are in conflict. Hardin v. Iowa 
 E. & Constr. Co. 78 Iowa, 726, 43 N. W. 543, 
 
 6: 52 
 
 171. Orders of the trial court dismissing 
 the regular panel of jurors, and summoning 
 a n^w on?, cannot be sufficiently authenti- 
 cated by affidavit of a party to the suit to 
 justuy tiieir consideration on appeal. Mc- 
 Kinney v. State, 3 Wyo. 719, 30 Pac. 293, 
 
 16: 710 
 
 172. Affidavits are not admissible in an 
 appellate court to show that a bill of excep- 
 tions was improperly allowed and signed by 
 the trial judge, where it was allowed, signed, 
 and filed as a part of the record during term 
 time. The record cannot be attacked in 
 that way. East Line & R. R. R. Co. v. 
 Culberson, 72 Tex. 375, 10 S. W. 706, 3: 567 
 
 f. Evidence. 
 
 See also supra, 164, 166; infra, 216, 218, 
 224, 230, 232, 233, 406, 718. 
 
 173. An appeal from the judgment alone 
 in a contested election case will take to 
 the South Dakota supreme court the written 
 evidence on which the findings of fact are 
 based. McMahon v. Polk, 10 S. D. 296, 73 
 N. W. 77, 47: 830 
 
 174. The evidence taken by a master in 
 chancery and duly reported by him to the 
 court appointing him is a part of the record 
 in that court, and when specified in the bill 
 f exceptions as material is properly 
 brought to the Georgia supreme court in the 
 certified transcript. Green v. Coast Line 
 R. Co. 97 Ga. 15, 24 S. E. 814, 33: 806 
 
 175. A translation of evidence by the 
 short hand reporter, not containing the name 
 of the cause except by an indorsement on 
 the outside, which is not in the handwriting 
 of the reporter, and is not referred to in the 
 certificate, ana is not identified in any other 
 manner, is not sufficiently identified to be- 
 come a part of the record, though inserted 
 in the proper place in a skeleton bill of ex- 
 ceptions. Joy v. Bitzer, 77 Iowa, 73, 41 N. 
 W. 575, 3: 184 
 
 176. A ruling admitting evidence will not 
 be reviewed if the evidence is not referred to 
 as required by the rules and practice of the 
 court. Skaggs v. Martinsville, 140 Ind. 476, 
 39 N. E. 241, 33: 781 
 Documentary evidence; exhibits. 
 Stenographer's Notes, see infra, IV. g. 
 
 See also infra, 232, 233. 
 
 177. When any document is offiered in evi- 
 dence and excluded, it must be brought into 
 the record to have its corr)>?tency deter- 
 mined on appeal. Slauson v. Goodrich 
 Transp. Co. 99 Wis. 20, 74 N. W. 574, 
 
 40: 825 
 
 178. The right result of a case on its mer- 
 its will not be disturbed because the record 
 of a jndgment referred to in the petition was 
 
 L.R.A. Dig. 5. 
 
 not copied and annexed as an exhibit. 
 Lyons v. Planters' Loan & Sav. Bank, 86 
 Ga. 485, 12 S. E. 882, 12: 155 
 
 179. Attaching a certified copy of a jus- 
 tice's judgment as an exhibit to a complaint 
 to enjoin the execution of a judgment does 
 not make it a part of the record so that it 
 can be considered on appeal. Gum- Elastic 
 Roofing Co. v. Mexico Pub. Co. 140 Ind. 158, 
 39 N. E. 443, 30: 700 
 
 180. A deposition affixed to bill of excep- 
 tions only by placing it between the paste- 
 board back and the stenographer's report, al- 
 though held with sufficient tenacity to re- 
 tain its place, but not marked as an exhibit 
 or identified by the trial judge or the stenog- 
 rapher or anyone else, will not be treated as 
 part of the bill of exceptions. Lake Erie & 
 W. R. Co. v. Mackey, 53 Ohio St. 370, 41 N. 
 E. 980, 29: 757 
 
 g. Stenographer's Notes. 
 
 See also supra, 175. 
 
 181. Fiiing the stenographer's notes of the 
 judge's charge, and printing it in the paper 
 book, will not make it a part of the record 
 unless it affirmatively appears that the fil- 
 ing was the act of the judge himself, or was 
 done by his express direction evidenced by 
 his signature, either to the charge itself or 
 to the bill of exceptions. Smith v. Times 
 Pub. Co. 178 Pa. 481, 36 Atl. 296, 35: 819 
 
 182. The remedy for refusal by the trial 
 court to furnish a transcript of the stenog- 
 rapher's notes to a person convicted of crime 
 is an application to the supreme court for an 
 order requiring it to do so. Miller v. State, 
 149 Ind. 607, 49 N. E. 894. 40: 109 
 
 h. Instructions. 
 
 See also supra, 181. 
 
 183. An unnecessary recital by the clerk, 
 of a charge to the grand jury, does not make 
 it a part of the record. Hobbs v. State, 133 
 Ind. 404, 32 N. E. 1019, 18: 774 
 
 184. The supreme court has no authority 
 to heed instructions requested by the par- 
 ties, spread upon the minutes of the court, 
 and copied into the transcript by the clerk 
 of his own motion without authority. Lake 
 Erie & W. R. Co. v. Holland, 162 Ind. 406, 
 69 N. E. 138, 63: 948 
 
 185. On an appeal involving the right of a 
 commissioner appointed to take testimony 
 by the Commissioners of Alabama Claims to 
 make a special contract as to fees, instruc- 
 tions issued by the Court of Commissioners 
 cannot be received when not put in evidence 
 on the trial. Powers v. Manning, 154 Mass. 
 370, 28 N. E. 290, 13: 258 
 Necessity of bringing up. 
 
 186. Failure to set out instructions to 
 which objection is made, as required by 
 rule of court, will waive the objection. Gar- 
 rigue v. Keller, 164 Ind. 676, 74 N. E. 523, 
 
 69: 870 
 
 187. Objection to the giving or refusing 
 of instructions found in the record cannot 
 be considered by the supreme court, wjiere
 
 APPEAL AND EITO", IV. i k. 
 
 66 
 
 the record affirmatively shows that all the 
 instructions given are not in it. Lake Lrie 
 & W. R. Co. v. Holland, 162 Ind. 406, 63 N. 
 E. 138, 63: 948 
 
 i. Findings. 
 
 See also supra, 163; infra, 357. 
 
 188. A case will not be remanded for a 
 more specific finding where the facts neces- 
 sary are stated in effect and have been as- 
 sumed by both parties, and the case heard 
 on its merits without objection. Benedict v. 
 Chase, 58 Conn. 196, 20 Atl. 448, 8: 120 
 
 189. Findings that a judgment was con- 
 fessed in contemplation of an assignment 
 for creditors and in fraud of the statute 
 governing such assignments, thousrh classi- 
 fied among conclusions of law, will be given 
 the same effect to uphold the judgment as 
 if they were designated as findings of fact. 
 Bercrer v. Varrelmann, 127 N. Y. 281, 27 IS. 
 E. 1065, 12: 808 
 
 190. A formal finding in a partition suit, 
 that plaintiff and defendant were tenants in 
 common, does not show that the defense of 
 adverse possession was not found to be in- 
 volved, where the court expressly found at 
 defendant's request that they had held ad- 
 versely for a certain period, which was not 
 long enough to raise the presumption of a 
 grant. Weston v. Stoddard, 137 N. Y. 119, 
 33 N. E. 6-2, 20: 624 
 
 191. A finding that a son to whom a bill 
 of sale was made by his father shortly be- 
 fore a general assignment had knowledge of 
 the father's intent to hinder and defraud 
 creditors, and also that he consnired with 
 him to prefer creditors in violation of the 
 statute, cannot be construed as a finding of 
 fraud as to creditors irrespective of the 
 statute as to preferences, where the case 
 was decided on the theory that the bill of 
 sale must be construed with the assignment. 
 Manning v. Beck, 129 N. Y. 1, 29 N. E. 90, 
 
 14: 198 
 
 192. Findings by the trial court cannot be 
 looked to by the appellate court to ascer- 
 tain the facts in a suit for maintenance by 
 a deserted wife, where there was no neces- 
 sity for findings, and under the statute 
 such findings, if made, do not constitute 
 part of the judgment roll. Murray v. Mur- 
 ray, 115 Cal. 266, 47 Pae. 37, 37:626 
 Necessity of. 
 
 See also infra, 356. 
 
 193. A special question withdrawn from 
 the jury by consent of both pnrties before 
 the general verdict was rendered cannot be 
 considered on appeal as part of the findings 
 and verdict, even if the word '"Yes" is writ- 
 ten linger it. Read v. Nichols, 118 N. Y. 224. 
 23 N. E. 468, 7: 130 
 
 194. The omission of a finding is immate- 
 rial where other findings necessarily control 
 the judgment. Southern P. R. Co. v. L)u- 
 four, 95 Cal. 615, 30 Pac. 783, 19: 92 
 
 195. Neglect to make a finding not re- 
 quested cannot be objected to on appeal, 
 if the evidence is not sufficient to require 
 it as matter of law. Wetzler v. Duffy, 78 
 Wis. 170, 47 N. W. 184, 12: 178 
 
 Time of making. 
 
 1C6. The special finding of facts provided 
 for by Conn. Pub. Acts 189^ chap. 194, 6, 
 is not for the purpose of spreading those 
 facts upon the records as part of the judg- 
 ment, but is only to be made after judgment 
 has been rendered, to become part of an ap- 
 peal, and it cannot be made in the absence 
 of an appeal and after the expiration of the 
 time for taking one. Corbett v. Matz, 72 
 Conn. 610, 45 Atl. 494, 48: 217 
 
 197. A finding of facts made after the 
 end of the term at which judgment was ren- 
 dered, when the court had no power to mod- 
 ify or change the judgment, and after the 
 time for an appeal had expired without an 
 appeal being taken, cannot be made by the 
 court a part of the judgment, nor of the 
 record of judgment, nor the foundation of a 
 writ of error to reverse the judgment, al- 
 though there are statutory provisions (such 
 as Conn. Gen. Stat. 1107, 1111) to the ef- 
 fect that any party is entitled to have a 
 finding of the facts on which judgment is 
 founded appear on the record and become 
 part of the judgment. Id. 
 
 j. Opinions. 
 For Editorial Notes, see infra, XT. 7. 
 
 198. The opinion filed in a case is in no 
 sense a proper part of the record on appeal 
 to the supreme court of Illinois from the 
 judgment of nn appellate court. Pennsyl- 
 vania Co. v. Versten, 140 111. 637, 30 N. E. 
 540, 15: 798 
 
 199. A written opinion filed by the trial 
 court on a trial without a jury is not an es- 
 sential part of the record on appeal, and 
 where general findings are made by the 
 court and a judgment pronounced thereon, 
 the appellate court will conclusively pre- 
 sume that the trial court considered all the 
 competent evidence before it and decided all 
 the material and necessary issues presented 
 by the pleading, although the opinion shows 
 the contrary. Phenix Ins. Co. v. Fuller, 53 
 Neb. 811, 74 N. W. 269, 40: 408 
 
 k. Motions and Orders. 
 See also supra, 164, 171; infra, 250, 251. 
 
 200. A general order of which the trial 
 court is bound to take judicial notice must 
 be treated on appeal as if in the record. 
 Jones v. Merchants' Nat. Bank, 22 C. C. A. 
 483, 33 U. S. App. 703, 76 Fed. 683, 35: 698 
 
 201. A motion to modify the decree can- 
 not be considered on appeal, where it was 
 not made a part of the record. Muncie 
 Natural Gas. Co. v. Muncie, 160 Ind. 97, 66 
 N. E. 436, 60: 822 
 
 202. In case of appeal from a judgment 
 the record need not contain the notice of in- 
 tention to move for a new trial. Fordham 
 v. Northern P. R. Co. 30 Mont. 421, 76 Pac. 
 1040, 66: 556 
 
 203. Matters as to the selection of jurors 
 annot be brought into the record by copy- 
 ing them into the motion for a new trial. 
 Townsend v. State, 147 Ind. 624, 47 N. K 
 19, 37: 294
 
 APPEAL AND ERROR, IV. 1 o, 1. 
 
 67 
 
 How brought tip. f 
 
 204. A statement by the clerk in the 
 transcript, that motions were filed for judg- 
 ment on the pleadings, is not sufficient to 
 bring tne motions before the appellate court 
 for consideration, if they do not appear in 
 the transcript and were not made part of 
 the record. Sternberg v. Levy, 159 Mo. 617, 
 60 S. W. 1114, 53: 438 
 
 205. An order will be treated as a part of 
 the record and legitimately before the court 
 for examination on the rehearing of an ap- 
 peal, if the case was submitted by both par- 
 ties at the first hearing, upon tne theory 
 that the order was properly in the record. 
 Republic L. Ins. Co. v. Swigert, 135 111. 150, 
 25 N. E. 680, 12: 328 
 
 206. A motion for judgment on the plead- 
 ings is not part of the record, and can only 
 be made part of the record, so as to be 
 considered on appeal, by a bill of excep- 
 tions. Stern-berg v. Levy, 153 Mo. 617, 60 
 S.W.I 114, 53:438 
 
 207. A petition for a transfer of a cause 
 to another judge because of the disqualifi- 
 cation of the judge before whom it is 
 brought, and an order denying the petition, 
 constitute part of the judgment roll under 
 S. D. Comp. Laws, 5013, as they are in- 
 cluded in "all orders or papers in any way 
 involving the merits and necessarily af- 
 fecting the judgment," and they are there- 
 fore properly before the court for review on 
 appeal, without any bill of exceptions. 
 First Nat. Bank v. McGuire, 12 S? D. 226, 
 80 N. W. 1074, 47: 413 
 
 1. Certificates. 
 
 See also supra, 73, 163, 175; infra, 230, 831. 
 
 208. A certificate to a bill of exceptions 
 regularly signed by the judge need not 
 state what it contains, except whether it 
 contains all fhe evidence. Muetze v. Tu- 
 teur, 77 Wis. 236, 46 N. W. 123, 9: 86 
 
 209. A certificate that a charge of fraud is 
 not true in fact is sufficient as certifying an 
 ultimate fact, and not evidentiary facts. 
 Hayes v. Massachusetts Mut. L. Ins. Co. 
 125 111. 626, 18 N. E. 322, 1: 303 
 
 m. Abstracts. 
 
 See also infra, 442. 
 
 210. Appellee's additional abstract and ar- 
 gument will not be stricken from the rec- 
 ord, with costs of printing the same, be- 
 cause not served within the time required 
 by the rules, where the final submission of 
 the cause was not retarded thereby. Doo- 
 little v. Doolittle, 78 Iowa, 691, 43 N. W. 
 616, 6: 187 
 
 211. A supplemental abstract filed by ap- 
 pellee merely to correct his abstract in re- 
 spects in which the appellant claims it is 
 deficient will not be stricken from the files 
 on appellant's motion on the ground that it 
 is not filed in time, as its filing does not 
 prejudice appellant in any manner. Rich- 
 ards T. Knight, 78 Iowa, 69, 42 N. W. 584, 
 
 4: 453 
 
 212. Appellee's additional abstract is not 
 to be taken as admitted, although not de- 
 nied in terms, where the aopellant has filed 
 a certified transcript of the record, and a 
 statement that he has done S3 because the 
 correctness of his abstract has been so per- 
 sistently denied, and has attached an index 
 of the* transcript and abstract, for the pur- 
 pose of aiding in the verification of the 
 abstract by the transcript. Joy v. Bitzer, 
 77 Iowa, 73, 41 N. W. 575, 3: 184 
 
 n. Case Made; Statements. 
 
 See also supra, 169. 
 
 213. The filing, with the clerk of the 
 court, of an order by the judge for an ex- 
 tension of time for serving a case made un- 
 der Kan. Laws 1903, chap. 380, p. 583, 1, 
 satisfies the requirements of the law as to 
 notice, such filing constituting notice. 
 Ciark v. Mitchell County Comrs. 69 Kan. 
 542, 77 Pac. 284, 66: 965 
 
 214. That there is evidence in the record 
 that a tenant permitted the premises to be 
 sold for taxes in violation of his covenant 
 through mistake does not require a reversal 
 of a judgment dismissing his bill for equita- 
 ble relief from a forfeiture claimed on the 
 ground, where there is no statement of 
 facts found, or of rulings made; since it can- 
 not be held to have been error to refuse to 
 give credence to such evidence. Gordon v. 
 Richardson, 185 Mass. 492, 70 N. E. 1027, 
 
 69: 867 
 
 o. Bill of Exceptions. 
 1. In General. 
 
 As to Exceptions Generally, see infra, V. 
 See also supra, 165, 174, 206, 208; infra, 250, 
 351. 
 
 215. The Louisiana statute authori'/;in<r ob- 
 jection to be noted in lieu of a bill of ex- 
 ceptions does not supersede the rule that the 
 particular grounds of objections, and the ma- 
 teriality of the action complained of, and 
 the reasons of the judge for his rulings, 
 must be stated. Warner v. Clark, 45 La. 
 Ann. 863, 13 So. 203, 21 : 502 
 
 216. A longhand manuscript of alleged 
 evidence cannot be regarded as a bill of ex- 
 ceptions on appeal. Pittshunrh. C. C. & St. 
 L. R. Co. v. Redding 140 Ind. 101, 39 N. E. 
 921, 34: 767 
 Necessity for. 
 
 217. An appeal may be prosecuted from a 
 decree in equity, though no bill of exceptions 
 was settled and allowed. National Wall 
 Paper Co. v. Columbia Nat. Bank, 63 Neb. 
 234, 88 N. W. 481, 56: 121 
 
 218. A bill of exceptions is not necessary < 
 for the review of a demurrer to evidence 
 whih incorporates the evidence. Mitchell v. 
 Nashville, C. & St. L. R. Co. 100 Tenn. 329, 
 
 45 S. W. 337, 40: 426 
 
 219. In the absence of a bill of exceptions, 
 the findings of the trial court on a question 
 of fact will not be reviewed. Universitv of 
 IMichiean v. McGuckin, 62 Neb. 489, 87 N. 
 W. 180, 57: 917
 
 APPEAL AND ERROR, IV. o, 2, 3. 
 
 Amendments. 
 
 On Certiorari, see Certiorari, 37. 
 
 See also supra, 77. 
 
 220. An objection that a bill of exceptions 
 was not served in the manner provided by 
 law is waived by presenting amendments 
 thereto. Fordham v. Northern P. R. Co. 
 30 Mont. 421, 76 Pac. 1040, 66: 556 
 
 221. It is the duty of a commissioner who 
 has been appointed by the supreme judicial 
 court of Massachusetts to report upon a pe- 
 tition to establish the truth of allegations 
 in a bill of exceptions disal.owed by the su- 
 perior court, to consider the statements in 
 the certificate disallowing the bill wherein 
 the judge points out the amendments which 
 are necessary to make the bill conform to 
 the truth. Com. v. Joslin, 158 Mass. 482, 
 33 N. E. 653, 21: 449 
 
 2. Sufficiency; What Should be Presented 
 
 by. 
 
 See also supra, 175; infra, 275, 328, 372. 
 
 222. If a bill of exceptions, though bear- 
 ing no letter, number, or other mark of 
 identity, do of itself, by its own matter and 
 character, identify itself as the bill men- 
 tioned in the order of court or of the judge 
 certifying its execution, the bill is part of 
 the record. Bank of Ravenswood v. Wetzel, 
 (W. Va.) 50 S. E. 886, 70: 305 
 
 223. Facts not appearing in the bill of 
 exceptions will be treated by the reviewing 
 court as nonexistent. Freeman v. Dodge, 98 
 Me. 531 3 57 Atl. 884, 66: 395 
 
 224. A verdict may be supported on any 
 ground which the evidence in the bill of ex- 
 ceptions permits, when the bill shows that 
 it contains all the evidence material to the 
 exceptions in the case. Whitney v. New 
 York. N. H. & H. R. Co. 43 C. C. A. 19, 102 
 Fed. 850, 50: 615 
 
 225. No question as to the sufficiency of 
 the notice given to the trial court of ap- 
 pellant's intention to reserve and present 
 specified questions under Ind. Rev. Stat. 
 1894, 642, arises, where such court has, 
 pursuant to the notice, fully and correctly 
 prepared a special bill of exceptions so as 
 to present briefly and distinctly each of such 
 questions. Loesch v. Koehler, 144 Ind. 278, 
 41 N. E. 320. 43 N. E. 129. 35: 68^5 
 
 226. A bill of exceptions embodying the 
 charge, and, immediately following it, stat- 
 ing that one of the counsel said, "The de- 
 fendant excepts," with tlie ground of ex- 
 ception, including a refusal to charge as 
 requested and exceptions to the charge as 
 delivered, sufficiently shows that excep- 
 tions to the charge were seasonably taken. 
 Findlay v. Pertz, 13 C. C. A. 559. 31 U. S. 
 App. o40. 66 Fed. 427, 29: 188 
 What should be presented by. 
 
 For Editorial Notes, SOP infra. XI. 10. 
 
 227. An appellate court can take notice of 
 papers which are not part of the judgment 
 roll only when they have been preserved and 
 properly identified in the bill of exceptions. 
 Slauson v. Goodrich Transp. Co. 99 Wis. 20, 
 74 N. W. 574, 40: 825 
 
 228. Questions arising on motion to strike 
 averments from the complaint can be con- 
 sidered on appeal only when properly pre- 
 sented by bill of exceptions. Western U. 
 Teleg. Co. v. Crocker, 135 Ala, 492, 33 So. 
 45, 59: 3J8 
 
 229. A transcript of judicial proceedings, 
 which is not made a part of the bill of ex- 
 ceptions, cannot be considered on appeal, al- 
 though an offer of it in evidence is recited. 
 Shoemaker v. South Bend Spark Arrester 
 Co. 135 Ind. 471, 35 N. E. 280, 23: 332 
 
 230. An objection to evidence is not avail- 
 able on appeal unless saved by bill of ex- 
 ceptions, although noted on certificate of 
 evidence. Poling v. Ohio River R. Co. 38 W. 
 Va. 645, 18 S. E. 782, 24: 215 
 
 231. The evidence will not be examined 
 on appeal to ascertain whether it was suffi- 
 cient to support the decision, wfoen it is not 
 all contained in the bill of exceptions. 
 Greene v. Greene, 49 Neb. 546, 68 N. W. 947, 
 
 34: 110 
 
 232. An objection to a bill of exceptions 
 on the ground that part of the evidence is 
 omitted therefrom is untenable, where the 
 evidence referred to consists of ponderous 
 articles which do not admit of physical at- 
 tachment to the record, and these are all 
 referred to in the written portion of the bill 
 of exceptions, and articles answering to 
 such reference were filed with the record in 
 the case and produced at the hearing on 
 appeal, bearing the marks of identification 
 of the official reporter of the trial court. 
 O'Neill v. Chicago, R. I. & P. R. Co. 66 
 NeK 638, 92 N. W. 731, 60: 443 
 
 233. A bill of exceptions is- not defective 
 in failing to copy a mortgage as a part of the 
 evidence, where, after stating that it was 
 read in evidence, it refers to a previous page 
 of the transcript where it is copied as an 
 exhibit filed with the answer. Binkley v. 
 Forkner, 117 Ind. 176, 19 N. E. 753, 3: 33 
 
 3. Signing; Settling; Practice. 
 
 See also supra, 172. 
 
 234. Bills of exception in criminal trials 
 should be signed by the trial judge; and a 
 mere note of a reservation of exceptions, or 
 a bill signed by the clerk only, is insuffi- 
 cient. State v. Haines, 51 La. Ann. 731, 25 
 So. 372, 44: 837 
 
 235. The filing of a bill of exceptions aft- 
 er it receives the signature of the judge is 
 necessary to make it part of the record. 
 Drew v. Geneva, 150 Ind. 662, 50 N. E. 871, 
 
 42: 814 
 
 236. When a judge in vacation makes an 
 order under W. Va. Code 1899, chap. 131, 9. 
 showing that he has executed a bill of excep- 
 tions, and so certifies it to the clerk, the 
 clerk must record the order in the law-or- 
 der book, and attest it; but it is not neces- 
 sary that the bill, or any part of it, be lit- 
 erally recorded in said book. Bank of Ra- 
 venswood v. Wetzel (W. Va.) 50 S. E. 886, 
 
 70: 305 
 
 237. The statement of facts in a bill of 
 exceptions is conclusive in an appellate
 
 APPEAL AND ERROR, IV. o, 4 p, 2. 
 
 eowrt, ualees it is excepted to and the ex- 
 ceptions are recorded in the bill when it is 
 settled. Purple v. Union P. R. Co. 51 C. C. 
 A. 564, 114 Fed. 123, 57: 700 
 
 238. The successor of a trial judge who 
 presided in a case, overruled a motion for a 
 new trial, and granted time in wnich to pre- 
 sent a bill of exceptions, may, on the lat- 
 ter^ death before presenting the bill, make 
 the order for its allowance in open court, 
 where the statute provides that it shall be 
 allowed by the court if presented in open 
 court, but specifies that it shall be done by 
 the judge of the court before *^vhom the 
 cause was tried if presented in vacation. 
 Conway v. Smith Mercantile Co. 6 Wyo. 327, 
 44 Pac. 940, 49: 201 
 
 4. Time for. 
 
 239. Forty days after the expiration of 
 the trial term may he allowed by the court 
 at such term for filing a bill of exceptions. 
 Fincllay v. Pertz, 13 C. C. A. 559, 31 U. S. 
 App. 340, 66 Fed. 427, 29: 188 
 
 240. The rule that a bill of exceptions 
 must be signed before the jury leaves the 
 box if a party requires it, which was found- 
 ed on Md. act 1834, chap. 233, 11, is not 
 in force under the Maryland Code, which 
 does not contain that statute; but while an 
 exception must be noted at the time of the 
 ruling, reduction of the exceptions to form 
 may be deferred until after the trial, if it 
 is done during the term. State use of 
 James r. Kent County Comrs. 83 Md. 377. 
 35Atl. 62, 33:291 
 
 241. Exceptions taken during the trial to 
 the rulings of the trial court may be set- 
 tled and saved in accordance with Id. Rev. 
 Stat. 4426, or they may be settled after 
 the trial, in accordance with 4430, or in 
 the statement on motion for a new trial, 
 and when so settled and saved will be re- 
 viewed by the supreme court on appeal. 
 Rum pel v. Oregon S. L. & U. N. R. Co. 
 4 Id. 13. 35 Pac. 700, 22: 725 
 
 242. Exceptions to the appointment of a 
 trustee, instead of an administrator ad 
 litem, not saved by a term bill of exceptions 
 cannot be saved by a final bill of exceptions, 
 signed at a term subsequent to that at 
 which the ruling occurred. United States 
 Casualty Co. v. Kacer, 169 Mo. 301, 69 b. 
 W. 370, 58: 436 
 Computation of. 
 
 See also -infra, 245. 
 
 243. The time for taking a bill of excep- 
 tions based on an exception in respect to a 
 charge to the jury, which is afterwards em- 
 bodied in a motion for a new trial, which is 
 overruled, is to be computed from the de- 
 nial of that motion. Cincinnati Street R. 
 Co. v. Wright, 54 Ohio St. 181, 43 N. E. 688, 
 
 32: 340 
 
 244. An order giving a party "until" a cer- 
 tain day to prepare and present a bill of 
 exceptions includes the day named, under a 
 statutory rule that the last day mentioned 
 shall be included in the time within w*hich 
 an act is to be done when required by law. 
 Conway v. Smith Mercantile Co. 6 Wyo. 327, 
 44 Pac. 940, 49: 201 
 
 Excluding Sundays. 
 
 245. Sundays cannot be excluded in com- 
 puting the time for signing of bills of ex- 
 ception under Md. Code Pub. Loc. Laws, art. 
 4, 170, allowing it to be done "at any 'time 
 within thirty days" after verdict or finding 
 of fact. American Tobacco Co. v. Strick- 
 ling, 88 Md. 500, 41 Atl. 1083, 69: 909 
 
 p. Assignments of Error. 
 1. Necessity of. 
 
 See also infra, 349, 352, 371. 
 
 246. Action of the appellate court not as- 
 signed as error is not subject to review in 
 the supreme court. Peterson v. Gibson, 191 
 111. 365, 61 N. E. 127, 54: 836 
 
 247. In actions at law the consideration of 
 the appellate court will be confined to the 
 errors assigned and argued by the plaintiff 
 in error. Dell v. Marvin, 41 Fla. 221, 2ti So. 
 188, 45:201 
 
 248. The illegality of a contract which is 
 declared void by statute may be declnred by 
 the court on appeal without any assignment 
 of error to the point, when it appears on the 
 face of the record. Fuoua v. Pabst Brewing 
 Co. 90 Tex. 298, 38 S. W. 29, 750, 35: 241 
 
 249. Evidence received under objection 
 cannot be disregarded by the court on ap- 
 peal, if no assignment of error is predicated 
 upon the rulings which resulted in its admis- 
 sion. Smith v. ^Etna L. Ins. Co. 115 Iowa, 
 217, 88 N. W. 368, 56: 271 
 
 250. Defects in a motion for a new trial, 
 caused by the failure to properly assign 
 srror upon the rulings of which complaint 
 is made, cannot be cured by setting out in 
 the bill of exceptions the various grounds of 
 the motion, and specifically assigning error 
 upon the overruling of each ground. Phoe- 
 nix Ins. Co. v. Schwartz, 115 Ga. 112. 41 S. 
 E. 240, 57: 752 
 
 250a. On appeal from an order overruling 
 a motion for new trial, appellant is entitled 
 to have the assignment and specification of 
 errors contained in his statement used on 
 the hearing of such motion examined and 
 considered by the appellate court, although 
 such order was not assigned as error on ap- 
 peal, since Id. Rev. Stat. 1887, 4427, allows 
 an aggrieved party an exception, as a matter 
 of law, to an order denying his motion for a 
 new trial. Whitney v. Dewey, 10 Idaho, 633, 
 80 Pac. 1117, 69: 572 
 
 2. Sufficiency; Definiteness. 
 
 Upon Petition for Certiorari, see Certiorari, 
 36. 
 
 251. A general and vague assignment of 
 an error will not be considered by the su- 
 preme court of South Dakota. A party 
 complaining of error must specify it with 
 precision. It should be specific and explicit, 
 so that by looking at the grounds stated 
 the court can at one see how. when, and 
 where the error arises, and whether it is 
 well or ill taken. State v. Chapman, 1 S. D. 
 414, 47 N. W. 411, . 10: 432
 
 70 
 
 APPEAL AND ER110R, IV. p, 3, q. 
 
 252. The requirement of a distinct state- 
 ment of errors complained of is not met oy 
 four or five pages of claims consi3ting most- 
 ly of argumentative comments . 3 to errors 
 in the charge of the court. State v. Lee, 
 65 Conn. 265, 30 Atl. 1110, 27: 49il 
 
 253. Error cannot be predicated upon an 
 assignment the substance of which is wholly 
 immaterial. Western U. Teleg. Co. v. Col- 
 lins, 45 Kan. 88, 25 Pac. 187, 10: 515 
 
 254. Oniy one point or subject should be 
 embraced in an assignment of error. Kelly 
 v. Bennett, 132 Pa. 218, 19 Atl. 69, 7: 120 
 
 255. An assignment of error embracing 
 three distinct propositions, without particu- 
 larly specifying the error complained of, is 
 insufficient. Union C. L. Ins. Co. v. Chown- 
 ing, 86 Tex. 654, 26 a. W. 982, 24: 504 
 
 256. Judicial inquiry on a general appeal 
 from a judgment in an equitable action to 
 sell pnrt of a trust estate, presenting the 
 question whether the judgment is proper on 
 the undisputed facts, is not by any means 
 circumscribed by the assignment of errors. 
 Ruggtes v. Tyson, 104 Wis. 500, 79 N. W. 
 766. 81 N. W. 367, 48: 809 
 
 257. A statement in appellant's brief, that 
 the court held a mortgage prior to a judg- 
 ment, sufficiently points out the alleged er- 
 ror where that is the only ouestion present- 
 ed. Goetzinger v. Rosenfejd, 16 Wash. 392, 
 47 Pac. 882, 38: 257 
 
 258. The failure of an assignment of er- 
 rors to portions of a decree in favor of cred- 
 itors, to name them or allege errors sepa- 
 ra'ely in respect to each of them, is not 
 material if there is no difference in liability 
 as to the different creditors. Andrews v. 
 National Foundry & P. Works, 22 C. (J. A. 
 110, 46 U. S. App. 281, 76 Fed. 166, 36: 139 
 As to exclusion of evidence. 
 
 259. An assignment of error upon the re- 
 fusal of the court to allow a witness to an- 
 swer a specified question propounded by the 
 party calling him is not properly made un- 
 less it states what evidence was thus sought 
 to be elicited, and that the court was in- 
 formed thereof at the time of the ruling. 
 Bi<iby v. Warrock, 115 Ga. 385, 41 S. E 
 622, 57: 754 
 
 260. An assignment of error to the ex- 
 clusion of the evidence of a certain witness, 
 some of which was property excluded, is 
 sufficient, in the Tennessee court of chan- 
 cery appeals, to reach the incorrect part of 
 the ruling of the court. Royston v. McCul- 
 ley (Tenn. Ch.) 59 S. W. 725, 52: 899 
 
 261. An assignment of error in sustaining 
 an objection to testimony offered to prove a 
 certain material fact need not name the 
 witnesses or state what questions were 
 asked them. Union Bldg. Asso. v. Rockford 
 Ins. Co. 83 Iowa. 647, 49 N. W. 1032, 14: 248 
 Sufficiency of evidence. 
 
 262. The sufficiency of the evidence to 
 support a verdict cannot be considered on 
 an assignment of error for refusal of a non- 
 suit. Dierstein v. Schubkagel, 131 Pa. 4G, 18 
 Atl. 1059, 6: 481 
 
 263. An assignment of error that there is 
 no credible proof to sustain a verdict is bad 
 in form, because it is the exclusive province 
 
 of the jury to pass upon the credibility of 
 witnesses. Brown v. Odill, 104 Tenn. 250, 
 56 S. W. 840, 52: 660 
 
 Pleading. 
 
 264. An objection that, defendant was not 
 given time to demur to an amended com- 
 plaint after the allowance of the amendment 
 is not available on appeal, if it is not fairly 
 included in the assignments of error, and it 
 nowhere appears that an offer to demur was 
 made, or the right to do so questioned or 
 denied. Ritchie v. Waller, 63 Conn, 155, 28 
 Atl. 29, 27: 161 
 Instructions. 
 
 265. The supreme court will not consider 
 a general assignment of error in the over- 
 ruling of a large number of requests for 
 instructions to the jury which are widely 
 different in character. Farrell v. Eastern 
 Machinery Co. 77 Conn. 484, 59 Atl. 611, 
 
 68: 239 
 
 266. An assignment of error which merely 
 alleges that instructions between certain 
 lines are erroneous is insufficient. Sim- 
 monds v. Holmes, 61 Conn. 1, 23 Atl. 702, 
 
 15: 253 
 
 267. An assignment that the court erred 
 "in charging the jury as certified to in the 
 printed record," without pointing out the 
 error complained of, raises no question which 
 the appellate court is bound to review. 
 Chase v. Waterbury Sav. Bank, 77 Conn. 
 295, 59 Atl. 37, 69: 329 
 New Trial. 
 
 268. An assignment of < error that the 
 court erred in refusing a motion for a new 
 trial is too general. Selover v. Bryant, 54 
 Minn. 434, 56 N. W. 58, 21: 418 
 
 3. Cross Errors. 
 See also infra, 390. 
 
 269. An assignment of cross errors is es- 
 sential to the review, on an appeal by plain- 
 tiff, of the decision upon a motion by de- 
 fendants to suppress a deposition. Long v. 
 Hess, 154 111. 482, 40 N. E. 335, 27: 791 
 
 q. Waiver of Assignments of Error. 
 
 270. An error assigned on appeal is waived 
 by failure of appellant's counsel to discuss 
 the same in their brief. Johnson v. Schloss- 
 
 .er, 146 Ind. 509, 45 N. E. 702, 36: 5rf 
 
 271. Assignments of error not specifically 
 called to the attention of the court by brief 
 or argument will be deemed waived, al- 
 though a party in his brief states generally 
 that he does not desire to waive any assign- 
 ment. B : shop v. Middleton, 43 Neb. 10, 61 
 N. W. 129, 26: 445 
 
 272. An assignment of error as to the ad- 
 mission of evidence, wl.ich is not argued be- 
 fore the court, will not be considered in the 
 opinion. Ksterbrook v. Riley, 81 Iowa, 479, 
 46 N. W. 1072, 10: 33 
 
 273. An assignment of error to the denial 
 of a petition for the removal of a cause to 
 a Federal court w'll not be considered Wtien 
 no argument is made on it. Calhoun Gold 
 Min. Co. v. Ajax Gold Min. Co. 27 Colo. 1, 
 59 Pac. 607, 50: 209
 
 APPEAL AND ERROR, IV. r; V. a, 1. 
 
 71 
 
 274. An assignment of error submitted 
 "without argument" may be treated as 
 abandoned. Jacksonville, T. & K. W. R. Co. 
 v. Peninsular Land, T. & Mfg. Co. 27 Fla. 1, 
 157, 2 So. 661, 9 So. 689, 17: i,3, 
 
 275. "Earnestly insisting" on assignments 
 of error will not prevent the court from con- 
 sidering them as abandoned, in the ab- 
 sence of any further notice of them than a 
 statement in a brief that "questions to wit- 
 nesses, as appearing by 95 assignments," 
 were leading and sought to elicit irrelevant 
 testimony, where such questions are scat- 
 tered through a bill of exceptions of 470 
 pages. Id. 
 
 27C. A claim for the refunding to a ship- 
 per of an overcharge, made in a petition to 
 railroad commissioners for the enforcement 
 of their order as to rates, is waived on ap- 
 peal if not asked in the appellate court. 
 Campbell v. Chicago, M. & St. P. R. Co. 
 86 Iowa, 587, 53 N. W. 351, 17: 443 
 
 r. Briefs. 
 
 Allowing Expense of Printing, see infra, 
 
 1228, 1289. 
 See also supra, 257, 270-275; infra, 370, 375, 
 
 587, 1248. 
 
 277. Under rules requiring but one brief 
 on each side, and permitting a reply in ad- 
 dition, although separate briefs may be per- 
 missible where there are several counsel on 
 the same side, the ai.owance for printing 
 will extend only to what is reasonably nec- 
 essary. Cook v. Minneapolis, St. P. & S. 
 Ste. M. R. Co. 98 Wis. 624, 74 N. W. 561, 
 
 40: 457 
 
 278. The provision of the Wisconsin su- 
 preme court rule 9, that in cases depending 
 on the evidence the brief of appellant must 
 contain a concise statement of the leading 
 facts or conclusions which the evidence es- 
 tablishes or tends to prove, does not mean 
 a recital or restatement of the evidence, but 
 merely that such facts or conclusions should 
 be stated with a reference to the names of 
 the witnesses and the places in the printed 
 cases where the evidence which establishes 
 or tends to prove such facts or conclusions 
 may be found. Milwaukee Cold Storage Co. 
 v. Dexter, 99 Wis. 214, 74 N. W. 976, 
 
 40: 837 
 
 279. Where a motion for a new trial has 
 been made, and the statement used on such 
 motion contains an assignment and specifica- 
 tion of errors, and an appeal is taken from 
 the order denying the motion, and the origi- 
 nal brief of appellant contains no enumera- 
 tion of errors relied on, but refers to the 
 transcript and discusses such errors, and 
 prior to the a-rgument in the appellate court 
 a supplemental brief is filed by appellant, 
 making a specific enumeration of sueh er- 
 rors, the same will be regarded as a sub- 
 stantial compliance with the rules of court 
 requiring an assignment of errors, and the 
 case will be examined on the merits. Whit- 
 ney v. Dewey, 10 Idaho, 633, 80 Pac. 1117, 
 
 69: 572 
 
 280. A statement of facts in appellant's 
 
 brief, which is conceded to be correct, will 
 be so regarded by the court; and an addi- 
 tional statement in appe, lee's brief, of facts 
 which he considers necessary to a full under- 
 standing of the questions raised, will not be 
 considered by the court, under a rule which 
 provides that the statement shall be deemed 
 accurate unless the opp site party points < ut 
 wherein it is insufficient or inaccurate/ 
 Shin<rlemeyer v. Wright, 124 Mich. 230, 82 N. 
 W. 887, 50: 129 
 
 V. Objections and Exceptions; Raising Ques- 
 tions in Lower Court. 
 
 a. Definiteness; Sufficiency. 
 1. In General. 
 
 As to Bill of Exceptions, see sunra, IV. o. 
 Matters as to Trial, see Trial, I. f. 
 For Editorial Motes, see infra, XL 10. 
 
 281. The rendition of judgment cannot be 
 questioned on appeal, unless the defect or 
 mistake in it is particularly pointed out by 
 the objection. Tucker v. Hyatt, 151 Ind. 332, 
 51 N. E. 469, 44: 129 
 
 282. Parties can preserve by exceptions 
 any questions of law for decision as read- 
 ily as by submitting propositions to be 
 held as law, under 111. Rev. Stat. 1893, chap, 
 117, 1, providing that referees shall have 
 authority to take testimony ana report the 
 same in writing together with their conclu- 
 sions of law and fact, and that either party 
 may except to sueh report. Chicago Sani- 
 tary Dist. v. Cook, 169 LI. 184, 48 N. E. 46i, 
 
 33: 369 
 
 283. Exceptions by appellees to rulings of 
 the trial court under which its liability for 
 wrongful death was established cannot be 
 considered by the appellate court upon re- 
 versal on appeal as to measure of damages, 
 where the statute requires consideration of 
 appellee's exceptions only where the ques- 
 tions could arise on a new trial. Broughel 
 v. Southern New England Teleph. Co. 72 
 Conn. 617, 45 Atl. 43o, 49: 404 
 To overruling of demurrer. 
 
 284. A general exception to the overruling 
 of separate demurrers to several paragraphs 
 of complaint presents no question for the 
 court on appeal. Southern Indiana R. Co. v. 
 Harrell, ItSl Ind. 689, 68 N. E. 262, 63: 460 
 To argument of counsel. 
 
 285. A mere exception to the language of 
 counsel in argument to the jury, not preced- 
 ed by any ruling of the court, is insufficient 
 to raise a question as to the propriety of 
 the language used. Kansas City v. McDon- 
 ald, 60 Kan. 481, 57 Pac. 123, 45: 429 
 
 286. An attorney who has persisted in his 
 efforts to protect his client against im- 
 proper statements of the prosecuting at- 
 torney, until the court has held that he is 
 out of order, is not obliged to run the risk of 
 punishment for contempt by continuing to 
 object, but his objections will* be applied to 
 all that is subsequently said by the district 
 attorney. People v. Fielding, 158 N. Y. 542, 
 53 N. E. 497, 46: 641
 
 72 
 
 APPEAL AND ERROR, V. a, 2. 
 
 To findings or conclusions of court. 
 
 287. A general exception "to these findings 
 of fact and conclusions of law, and to each 
 of them," ia n,)t sufficient to raise any ques- 
 tion for review by the supreme court in 
 Washington. Moyer .v. Van de Vanter, 12 
 Wash. 377, 41 Pac. 60, 29: G70 
 
 288. Exceptions to the conclusions of a 
 surrogate that the next of kin of an intes- 
 tate, who was not made a party to the ad- 
 ministrator's accounting, cannot institute 
 a proceeding for a new accounting, but must 
 come in under the former decree, present a 
 question of law for the appellate court. Re 
 Killan's Estate, 172 N. Y. 547, 65 N. E. 561, 
 
 63: 95 
 
 To direction of verdict. 
 See also Trial, 64. 
 
 288a. The action of the trial court in 
 directing a verdict upon one count in a com- 
 plaint at the first trial of a cause, and re- 
 fusing to transfer the exception to such ac- 
 tion to the supreme court, as to which no 
 exception is filed, cannot be considered by 
 the latter court wtien the case is transferred 
 to it upon exceptions to the direction of a 
 verdict upon the other counts at a subse- 
 quent trial. Spead v. Tomlinson, 73 N. H. 
 46, 59 Atl. 376, 68: 432 
 
 To refusal of peremptory instruction. 
 
 289. Preserving an exception to the re- 
 fusal by the trial court of a peremptory in- 
 struction to find for defendant on the whole 
 evidence requires the appellate court to re- 
 view the evidence as a Whole. Fuchs v. St. 
 Louis, 167 Mo. 620, 67 S.. W. 610, 57: 136 
 
 2. To Evidence. 
 a. Admission of. 
 See also Trial, 62, 63. 
 
 290. An objection that evidence offered is 
 incompetent, immaterial, and irrelevant is 
 sufficient if the evidence is "no evidence at 
 all." State v. Bartlett, 170 Mo. 658, 71 S. 
 W. 148, 59: 756 
 
 291. An objection to the admission of 
 evidence in answer to a question propounded 
 to a witness, on the ground that it is "im- 
 proper and incompetent," or that it is "ir- 
 relevant and immaterial and does not rebut 
 anything," is too general to raise any ques- 
 tion for the consideration of the appellate 
 court. Cincinnati, I. St. L. & C. R. Co. v. 
 Howard, 124 Ind. 280, 24 N. E. 892, 8: 593 
 Stringer v. Frost, 116 Ind. 477, 19 N. E. 331, 
 
 2: 614 
 
 292. An objection to evidence as "incompe- 
 tent and immaterial" is sufficient to appraise 
 the court of the real nature of the objection, 
 when it immediately succeeds eight previous 
 objections to similar evidence, made upon 
 the ground that the witness was not com- 
 petent, to testify to transactions and con- 
 versations with a deceased person. Re Eys- 
 aman's Will, 113 N. Y. 62, 20 N. K 613, 
 
 3: 599 
 
 293. An exception to a question will not 
 be considered when the answer is not given. 
 Kimball v. Carter, 95 Va. 77, 27 S. E. 823. 
 
 38: 570 
 
 294. An exception to a ruling on a que- 
 tion dees not show error if it does not ap- 
 pear that the question was answered. Lew- 
 is v. Tapinan, 90 Md. 294, 45 AtL 459, 
 
 47: 385 
 
 295. An exception to a question, which 
 subjects the court to unnecessary labor and 
 danger of mistake by being required to 
 search through a record to ascertain the 
 facts that ought to be embodied in the ex- 
 ception itself will not be considered. Kim- 
 ball v. Carter, 95 Va. 77, 27 S. E. 823, 
 
 38: 570 
 
 296. An objection that a hypothetical 
 question "is not a proper" one is too general 
 to raise any question for a review by the 
 appellate court. I.ongan v. Weltmer, 180 
 Mo. 322, 79 S. W. 656, 64: 969 
 
 297. Objections to the admission of testi- 
 mony in criminal as well as in civil cases 
 must state opportunely the reasons there- 
 for, in order to preserve rulings for a re- 
 view. State v. Hope, 100 Mo. 347, 13 S. W. 
 490, 8: 608 
 
 298. An objection to evidence on a specific 
 ground waives other grounds. Bailey v. 
 Chicago. M. & St. P. R. Co. 3 S. D. *531, 
 54 N. W. 596, 19: 653 
 
 299. Error cannot be assigned to the mere 
 introduction of evidence which vras not 
 shown to be irrelevant when it was given, 
 but only shown to be so on cross-examina- 
 tion, where no motion was made to strike 
 it out. Jacksonville, T. & K. W. R. Co. v. 
 Peninsular Land, T. & Mfg. Co. 27 Fla. 1, 
 157, 2 So. 661, 9 So. 689, 17: 33 
 
 300. The benefit of an objection to the ad- 
 mission of evidence cannot be availed of on 
 appeal, if such evidence is admitted over the 
 objection, unless the objecting party applies 
 to the court to exclude the evidence object- 
 ed to, and thus obtains a distinct ruling as 
 to its admissibility. Roberts v. Bonaparte, 
 73 Md. 191, 20 Atl. 9)8, 10: 689 
 
 301. An objection to a question is not 
 sufficient to exclude evidence where it ia 
 not apparent from the question itself that 
 the response thereto will, upon any theory 
 of the case, be inadmissible; but, if inadmis- 
 sible testimony is given in response to it, 
 a motion should be made to strike it out. 
 People v. Lawrence, 143 Cal. 148, 76 Pac. 
 893, 68: ! 
 What questions raised. 
 
 302. Objections that testimony is incom- 
 petent and immaterial will not justify re- 
 versal on the ground that the plea was not 
 sufficiently definite to warrant its admis- 
 sion. Bacon v. Reich, 121 Mich. 480, 80 N. 
 W. 278, 49: 311 
 
 303. An objection to a deed as incompe- 
 tent, immaterial, and irrelevant is not spe- 
 cific enough to reach defects in its execu- 
 tion, as, that it was not witnessed. Ru- 
 pert v. Penner, 35 Neb. 587, 53 N. W. 598, 
 
 17: 824 
 
 304. An objection to the competency of 
 evidence is not sufficient to raise the ques- 
 tion of the competency of the witness, where 
 the evidence is competent, but the witness 
 is under statutory disability to testify to
 
 APPEAL AND ERROR, V. a, 8. 
 
 73 
 
 the facts. Hoag v. Wright, 174 N. Y. 36, 
 66 N. E. 579, 63: 163 
 
 305. An objection that a witness is not 
 an expert is insufficient to raise the question 
 of the competency of opinion evidence on the 
 question involved. Detzur v. B. Stroh 
 Brewing Co. 119 Mich. 282, 77 N. W. 948, 
 
 44: 500 
 
 306. An objection that a hypothetical 
 question is incompetent does not raise the 
 point that the question is not in proper 
 form because it includes the witness' under- 
 standing of the testimony of another wit- 
 ness. , Id. 
 
 307. Objecting to the admission'' in evi- 
 dence of a will for the reason that it is im- 
 material and incompetent for any purpose 
 is not sufficient to raise the question wheth- 
 er or not it is sufficiently authenticated or 
 proved to be admissible. Crawford v. VV ith- 
 erbee, 77 Wis. 419, 46 JN. W. 545, 9: 561 
 
 308. An objection that footprints made 
 in a box of sand were not made under con 
 ditions similar to those made in a desert 
 is not raised by a general objection to the 
 proof of the footprints in the box, without 
 any specific objection to the aissimilarity of 
 the conditions. People v. Searcey, 121 Cal. 
 1, 53 Pac. 359, 41 : 157 
 
 309. An objection to evidence of an agree- 
 ment as irrelevant and incompetent is not 
 sufficiently specific to raise the point that 
 an agent wfoo made the agreement for one 
 of the parties was not authorized to make 
 it. Hangen v. Hachemeister, 114 N. Y. 566, 
 21 N. E. 1046, 5:137 
 
 310. An objection to the incompetency of 
 the admissions of the president of a de- 
 fendant corporation, made a few hours after 
 an accident, does not raise the question of 
 his authority to make a settlement, or of 
 his being engaged in the company's business, 
 or in an attempt to make a compromise. 
 Detzur v. B. Stroh Brewing Co. 119 Mich. 
 282, 77 N. W. 948, 44: 500 
 
 311. An objection that declarations were 
 too remote to be proved cannot be raised for 
 the first time on appeal, where the objection 
 at the trial was merely general. Morrill v. 
 Palmer, 68 Vt. 1, 33 Atl. 829, 33: 411 
 
 312. A general objection to the introduc- 
 tion of a map in evidence on the question ot 
 a town boundary is not sufficient to raise 
 an objection to the lack of proof that it 
 was a genuine map published by order of 
 the legislature. Com. v. King, 150 Mass. 
 221, 22 N. E. 905, . 5: 536 
 
 313. A general objection to declarations 
 of two persons whose statements are not 
 distinguished is insufficient to question the 
 admissibility of the declarations of one of 
 them. Holmes v. Turners Falls Lumber Co. 
 150 Mass. 535, 23 N. E. 305, 6: 283 
 
 6. Exclusion. 
 
 314. An exception to a decision of the 
 court overruling an offer of evidence or ex- 
 cluding a defense must state the ground 
 upon which the offer was made. Dale v. 
 See (N. J. Sup.) 51 N. J. L. 378, 18 Atl. 
 308, 5: 583 
 
 315. An exception to the exclusion of a 
 question cannot be maintained where there 
 is nothing to show what the answer would 
 have been, or what there was an offer to 
 prove. Shinners v. Proprietors of Locks & 
 Canals, 154 Mass. 168, 28 N. E. 10, 12: 554 
 
 Smethurst v. Independent Cong. Church, 
 148 Mass. 261, 19 N. E. 387, 2: 6J5 
 
 Smith v. Niagara F. Ins. Co. 60 Vt. tb2, 
 15 Atl. 353, 1: 216 
 
 3. To Instructions. 
 
 316. An exception is sufficient to bring up 
 for review a portion of a charge to the 
 jury when it particularly sets out the lan- 
 guage complained of. Scott v. Astoria & 
 C. River R. Co. 43 Or. 26, 72 Pac. 594, 
 
 62: 543 
 
 317. An exception to the "instructions on 
 the question of exemplary damages" is too 
 indefinite to raise any question in the ap- 
 pellate court. Giddings v. Freedley, 128 
 Fed. 355, 65: 327 
 
 318. An exception "to the court's measure 
 of damages" is sufficient if the charge on the 
 measure of damages constitutes a single 
 subject, and the circumstances are such that 
 the judge could not have misapprehended 
 the suope of the exception. HinJman v. 
 First Nat. Bank, 50 C. C. A. 623, 112 Fed. 
 931, 57: 108 
 
 319. A general request for an instruction 
 that under the law and evidence the plain- 
 tiff cannot recover is too broad to raise the 
 question of failure, in an action on an in- 
 surance policy, to prove that proofs of loss 
 had been furnished as required by the pol- 
 icy. Such a defect should be specified in the 
 request. Hoose v. Prescott Ins. Co. 84 Mich. 
 309, 47 N. W. 587, 11:340 
 Confining to objectionable portion. 
 
 320. A broadside exception "to the charge 
 as given" will not be considered. Pierce v. 
 North Carolina R. Co. 124 N. C. 83, 32 S. E. 
 399, 44: 316 
 
 321. A general exception to the court's 
 charge to the jury is unavailing without a 
 specification calling the attention of the 
 court to the particular error, that it may 
 be corrected. Wheeler v. Grand Trunk R. 
 Co. 70 N. H. 607, 50 Atl. 103, 54: 955 
 
 322. An exception to an entire charge of 
 the court, or to a series of propositions in 
 gross, cannot be sustained if any portion 
 excepted to is sound. Morrifl v. Palmer, 68 
 Vt. 1, 33 Atl. 829, 33: 411 
 
 323. A general objection is not sufficient 
 to raise the point that an instruction is 
 slightly defective in form and m_y be mis- 
 understood. Phoenix Ins. Co. v. Flemming, 
 65 Ark. 54, 44 S. W. 464, 39: 789 
 
 324. One who reserves only a general ex- 
 ception to a charge cannot afterwards be 
 allowed to select particular phrases and 
 found special exceptions thereon. Com. v. 
 Tolman, 149 Mass. 229, 21 N. E. 377, 3: 747 
 
 325. A single exception covering several 
 distinct propositions of an instruction col- 
 lectively is inoperative if one of the propo- 
 sitions is sound. Giddings v. Freedley, 128 
 Fed. 355, 65: 327
 
 74 
 
 APPEAL AND ERROR, V. b d. 
 
 326. An exception covering several dis- 
 tinct propositions of the charge to the jury 
 is insufficient if either proposition is correct. 
 Hindman v. First Mat. Bank, 50 C. C. A. 
 623, 112 Fed. 931, 57: 108 
 Refusal or failure to instruct. 
 
 327. An exception to "refusals to charge 
 as requested" is not sufficiently definite, 
 where some of the requests were given as 
 requested, others modified, and some re- 
 fused. Read v. Nichols, 118 N. Y. 224, 23 N. 
 E. 468, 7: 130 
 
 328. A statement in a bill of exceptions, 
 that the court refused to give certain num- 
 bered instructions asked by defendant, to 
 which refusal of the instructions thus asked 
 the defendant by his counsel then and there 
 excepted at the time, will entitle defendant 
 to have such refused instructions considered 
 on appeal, and win not be treated as a gen- 
 eral exception to the refusal of the instruc- 
 tions as a who\e. Weber v. Kansas City 
 Cable R. Co. 100 Mo. 194, 12 S. W. 804, 
 
 7: 819 
 
 329. Objecting that the trial judge did not 
 instruct the jury upon all the grades of 
 homicide to which the evidence may be rea- 
 sonably applicable is futile in the absence 
 of a request for instructions on the lesser 
 grades than that of which the accused was 
 convicted. Lovett v. State, 30 Fla. 142, 11 
 So. 550, 17: 705 
 
 330. A prayer for instructions to raise 
 the question of the sufficiency or insufficien- 
 cy of p.eadings must be framed with a di- 
 rect reference to them. South Baltimore 
 Co. v. Muhlbach, 69 Md. 395, 16 Atl. 117, 
 
 1: 507 
 
 b. Necessity for Exceptions. 
 
 Vested Rights as to, see Constitutional Law, 
 
 812. 
 Retrospective Statute as to, see Statutes, 
 
 545. 
 Striking out Evidence not Objected to, see 
 
 Trial, 32-34. 
 See also infra, 351. 
 For Editorial Notes, see infra, XI. 10. 
 
 331. A he withdrawal of a special defense 
 is not subject to review on appeal if no ob- 
 jection or exception is taken thereto. 
 Southern P. R. Co. v. Dufour, 95 Cal. 615, 
 30 Pac. 783, 19: 92 
 
 332. Rulings on the admission and rejec- 
 tion of testimony will not be considered if 
 no exception was preserved to them. Ebner 
 v. Mackey, 186 111. 297, 57 N. E. 834, 51 : 298 
 
 332a. The Illinois supreme court cannot 
 consider the exclusion of testimony, where 
 no exception to the ruling was preserved. 
 Anheuser-Kusc'h Brew. Asso. v. Hutmacher, 
 127 111. 652, 21 N. E. 626, 4: 5/5 
 
 333. The appellate court will not review 
 a discrepancy between an indictment char- 
 ging misapplication of funds on September 
 1, 18IJ3, ;ind proof showing the transaction to 
 have been on November 1, 1894, where no 
 exception was taken with reterence to it, 
 and there is nothing to show that any prac- 
 tical injustice was done by it in the trial 
 
 of the cause. Jewett v. United States, 41 
 C. C. A. 88, 100 Fed. 832, 53: 568 
 
 334. In the absence of a special exception 
 signed and sealed by the judge, an objection 
 that there is no evidence to support an in- 
 struction will not be considered on appeal. 
 Norfolk & W. R. Co. v. Hoover, 79 Md. 253, 
 29 Atl. 994, 25: 710 
 
 335. Objectionable remarks of counsel in 
 arguing to the jury must be preserved by 
 bill of exceptions, to be the subject of re- 
 view on appeal. Illinois C. R. Co. v. Josey, 
 110 Ky. 342, 61 S. W. 703, 54: 78 
 
 336. In the absence of exception to the 
 conduct of the prosecuting attorney in read- 
 ing the verdict of a coroner's jury in pro- 
 pounding a question to a witness the su- 
 preme court will not set aside a ver- 
 dict of guilty in a murder case merely be- 
 cause the coroner's verdict stated that the 
 homicide for which accused was on trial was 
 unjustified. State v. Coleman, 186 Mo. 151, 
 84 S. W. 978, 69:381 
 
 337. In the absence of proper exceptions 
 to a finding on a mixed question of law and 
 fact the only question is whether the find- 
 ings of fact warrant the conclusions of law. 
 Carstens v. Leidigh & H. Lumber Co. 18 
 Wash. 450, 51 Pac. 1051, 39: 548 
 
 338. An objection to an instruction to 
 which no exception was taken in the trial 
 court will not be considered on appeal. 
 Keady v. People, 32 Colo. 57, 74 Pac. 892, 
 
 66: 353 
 
 c. Time for Exceptions. 
 
 See also Trial, 65. 
 
 339-340. An exception to the admission of 
 evidence is not available in the New York 
 court of appeals, where the objection to such 
 evidence was not made until after it had 
 gone to the jury, and where there was no 
 motion to strike out. Hangen v. Hachemeis- 
 ter, 114 N. Y. 566, 21 N. E. 1046, 5: 137 
 
 341. Exceptions filed within the time al- 
 lowed, which the opposite party asks to 
 have disallowed, may be amended in the dis- 
 cretion of the presiding justice, with con- 
 sent of the excepting party, although the 
 time for filing exceptions has passed. Hector 
 v. Boston Electric-Light Co. 161 Mass. 558, 
 37 N. E. 773, 25: 554 
 
 d. Raising Questions by Motion or Other 
 Mode. 
 
 By Motion to Strike Out Evidence, see in- 
 fra, 910. 
 
 Motion to Exclude Testimony, see Trial, 36. 
 See also supra, 160, 264, 299-301, 340. 
 
 342. A request that the court hold that 
 under the law of the case, the plaintiff could 
 not recover, is in the nature of a demurrer 
 to the evidence, and preserves the question 
 of law for review on appeal. Hogan v. 
 Stophlet, 1/9 111. 150, 53 N. E. 604, 44: 809 
 Motion for new trial. 
 
 Vested Rights as to, see Constitutional Law, 
 
 812. 
 See also infra, 516.
 
 APPEAL AND ERROR, VI. a. 
 
 75 
 
 343. Questions made on a demurrer need 
 not be embodied in a motion for a new trial 
 in order to be saved for appeal. Wise v. 
 Morgan, 101 Tenn. 273, 48 S. \V. 971, 
 
 44: 548 
 
 344. A motion for a new trial isinot neces- 
 sary to preserve the right to have a review 
 in the appellate court of the action of the 
 trial court in striking out on motion a por- 
 tion of a pleading. Sternberg v. Levy, 159 
 Mo. 617, 00 S. W. 1114, 53: 438 
 
 345. A slight difference in the phrase- 
 ology of a motion for a new trial and that 
 of a bill of exceptions, relating to testimony, 
 will not prevent the consideration ofj a ques- 
 tion as to the exclusion of the testimony, 
 if the evidence be referred to with sucn cer- 
 tainty as to call the attention of the court 
 to it and to the ruling in relation thereto, 
 so that t/he judge cannot mistake the mat- 
 ter. Springer v. Byram, Ia7 Ind. 15, 36 N. 
 E. 361, 23:244 
 
 346. Questions of law in regard to the 
 legal sufficiency of the evidence to sustain 
 a verdict in a criminal case may be present- 
 ed by motion for new trial, which may be 
 reviewed by the supreme court. People v. 
 Lewis, 124 Cal. 551, 57 Pac. 470, 45: 783 
 
 347. lo present a question as to damages 
 on appeal, it must have been assigned as a 
 cause for a new trial. Vincennes v. Citi- 
 zens' Gaslight & C. Co. 132 Ind. 114, 31 N. E. 
 673, 16: 485 
 
 348. The overruling of A motion to quash 
 the entire panel of jurors, interposed before 
 the trial began, may be considered indepen- 
 dently of a motion for a new trial in which 
 it was unnecessarily embodied, but which 
 was filed too late. McKinney v. State, 3 
 Wyo. 719, 30 Pac. 293, 16: VlO 
 
 349. The giving, or refusal to give, in- 
 structions can be considered on appeal only 
 under an assignment of errors for overruling 
 a motion for a new trial. Louisville, N. A. 
 & C. R. Co. v. Hart, 119 Ind. 273; 21 N. E. 
 753, 4:549 
 
 350. Error in giving instructions must be 
 made a ground for a new trial in the motioni 
 filed for that purpose; and if this is not done 
 the instructions cannot be reviewed by the 
 supreme court of Missouri. State v. Nelson. 
 101 Mo. 477, 14 S. W. 718, 10: 39 
 
 351. An alleged error in the charge of the 
 court cannot be reviewed on appeal, where 
 appellant failed to complain of the charge by 
 bill of exceptions or on motion for a new 
 trial, as required by Tex. Code Crim. Proc. 
 723. Johnson v. State, 42 Tex. Crim. Rep. 
 87, 58 S. W. 60, 51:272 
 
 352. The overruling of a motion to strike 
 out parts of a verdict can be considered on 
 appeal only under an assignment of error 
 for overruling a motion for a new trial. 
 Louisville, N. A. & C. R. Co. v. Hart, 119 
 Ind. 273, 21 N. E. 753, 4: 549 
 
 353. If a verdict does not cover the issues 
 in a case, or so far cover them as to entitle 
 the appellees to a judgment, the question or. 
 appeal must be presented as a reason in the 
 motion for a new trial, or by a motion for a 
 judgment upon the verdict. Id. 
 
 Motion as to judgment. 
 
 354. Objections to a judgment must be 
 presented by the proper motion t9 the trial 
 court, or they will not be regarded en ap- 
 peal. McNutt v. McNutt, 116 Ind. 545, 19 
 N. E. 115, 2: 3<2 
 Motion far nonsuit. 
 
 355. A motion for a nonsuit on the ground 
 that there is no evidence of negligence on 
 the part of the employer against whom an 
 action is brought by a servant sufficiently 
 raises the question as to the liabi.ity of the 
 employer for the negligence of a feliow 
 servant by which the injury was caused. 
 Byrnes v. New *ork, L. E. & W. R. Co. 113 
 N. Y. 251, 21 N. E. 50, 4: 151 
 Findings. 
 
 356. A finding by the trial judge is unnec- 
 essary when the appeal is used as a suosti- 
 tute for a former motion in error. Hoadley 
 v. Savings Bank of Danbury, 71 Conn. 599, 
 42 Atl. 667, 44: 321 
 
 357. The finding by the trial judge when 
 an appeal is used as a substitute for a mo- 
 tion for new trial may contain a state- 
 ment of facts on which the judgment is 
 founded, or which are necessary to present 
 a question of law which was made at the 
 trial and decided by the judge, or it may 
 contain a recital o.f what took place at the 
 trial for the purpose of presenting for re- 
 view rulings upon questions of evidence or 
 other rulings not directly affecting the judg- 
 ment. Id. 
 
 VI. Preliminary Motions; Dismissal; Abate- 
 ment; Abandonment. 
 
 a. In General. 
 
 Motion to Dismiss as Appearance, see supra, 
 137. 
 
 Vested Right by Dismissal, see Constitution- 
 al Law, 148. 
 
 Dismissal of Appeal from Justice's Judg- 
 ment, see Justice of the Peace, 28, 29. 
 
 See also infra, 455, 1184. 
 
 358. Where both the parties to a case 
 move for a new trial, the granting of either 
 motion leaves the case pending in the lower 
 court, and while it so remains a judgment 
 overruling the other motion cannot be law- 
 fully brought to the supreme court for re- 
 view. Central of Ga. R. Co. v. Murphey, 
 113 Ga. 514, 38 S. E. 970, 53: ?ZO 
 
 359. Under a rule of the supreme court of 
 Colorado, by which a party who interposes a 
 timely written request before the court for 
 an oral argument upon the final 'hearing is 
 entitled thereto, if he does not interpose 
 such request until after the cause is finally 
 determined he will be held to have waived 
 his right thereto; and such waiver applies 
 also in cases sent to the supreme court com- 
 mission for preliminary consideration and 
 report. Rockwell v. Butler, 17 Colo. 2JO, 
 29 Pac. 458, 17: 611 
 
 360. In civil actions, privileges which rise 
 to the dignity of constitutional or statutory 
 rights may be waived; and where they re-
 
 76 
 
 APPEAL AND ERROR, VI. b. 
 
 late to procedure in the court, such as oral 
 arguments, their exercise is subject to rea- 
 Bonable regulation. Id. 
 
 Motion for affirmance. 
 
 3G1. A motion to affirm a judgment on the 
 ground that the justices of the appellate 
 court are equally divided in opinion may 
 be denied and the case held for a decision on 
 the merits, where it is evident that before 
 the time for the next term, at which the 
 cause would be heard, several of the jus- 
 tices would be succeeded by others on the 
 bench. Luco v. Toro, 88 Cal. 26, 25 Pac. 983, 
 
 11:543 
 Abatement by death. 
 
 362. The death of the accused pending a 
 writ of error from a judgment of conviction 
 and sentence to imprisonment abates the 
 writ. O'Sullivan v. People, 144 111. 604, 32 
 N. E. 192, 20: 143 
 
 3G3. Judgment cannot be rendered nunc 
 pro tune to prevent the abatement of the 
 writ of error by the death of the accused 
 pending his writ of error to review a judg- 
 ment of conviction and sentence to imprison- 
 ment. Id. 
 Abandonment. 
 
 36 I. An abandonment of an appeal is not 
 effected, as by a new appeal, by the bring- 
 ing up, by a writ of certiorari on appli- 
 cation of appellant, of a bill of exceptions 
 purporting to contain a part of the evidence 
 and matters supposed to be necessary to pre- 
 sent reserved questions of law, as a part of 
 the record on appeal. Lowe v. Turpie, 147 
 Ind. 652, 44 N. E. 25, 47 N. E. 150, 37: 233 
 
 b. Grounds for Dismissal. 
 
 365. An appeal from a judgment or order 
 which the district court entered in exact 
 accordance with the mandate of the appel- 
 late court upon a previous appeal will ue 
 dismissed upon motion of the appellee. 
 Krantz v. Rio Grande W. R. Co. 13 Utah, 1, 
 43 Pac. 623, 32: 828 
 Change in circumstances pending appeal. 
 
 366. An appeal will be dismissed where 
 the judgment has been performed. Hintrag- 
 er v. Mahony, 78 Iowa, 537, 43 ISI. W. 522, 
 
 6:50 
 
 367. An appeal from a decision in quo 
 warranto will not be dismissed because the 
 appellant pending the appeal has been re- 
 moved from office for insubordination in tak- 
 ing the appeal. State ex rel. Rylands v. 
 Pinkerman, 63 Conn. 176, 28 Atl. 110, 
 
 22: 653 
 
 368. An appeal from a judgment in an ac- 
 tion brought to establish an interest in a 
 mining claim will not be dismissed because, 
 since the appeal was taken, defendants have 
 parted with their interest in the claim to one 
 who has received a patent from the govern- 
 ment, if notice of the pendency of the action 
 was filed in the proper county. McCarthy v. 
 Speed, 11 S. D. 362, 77 N. W.-590, 12 S. D. 7, 
 80 N. W. 135, 50: 184 
 
 369. An appeal from a decree dismissing a 
 bill asking to have tax bills dec.ared void 
 as a cloud upon title is improperly dismissed ! 
 against the objection of the appellant, upo*n ' 
 
 proof that the other parties had caused the 
 tax bills to be canceled and marked paid, and 
 had paid all the costs which had arisen or 
 might arise, when the appellant shows that 
 the object of his suit is to have the bills can- 
 celed as void ab initio. and that during the 
 pendency of the suit he has conveyed the 
 property, with covenants against encum- 
 brances. State ex rel. Bayha v. Kansas City 
 Ct. App. 97 Mo. 331, 10 S. W. 855, 3: 476 
 Irregularities in papers or proceedings. 
 
 370. Ihe failure of an appellant to meet 
 every requirement of the rules touching 
 briefs will be sufficient cause for dismissal 
 of the appeal. Smith v. Deniff, 23 Mont. 65,. 
 24 Mont. 20, 57 Pac. 557, 60 Pac. 398, 
 
 50: 737 
 
 371. An appeal will not be dismissed on 
 the suggestion or request made in argument 
 only, or after argument, merely for lack of 
 any assignment of errors. French v. 
 French, 84 Iowa, 655, 51 N. W. 145, 15: 30Q 
 
 372. An appeal on a special bill of excep- 
 tions will not be dismissed for lack of a 
 general bill which could not be considered 
 for any purpose whatever. Illinois C. R. Co. 
 v. Minor, 69 Miss. 710, 11 So. 101, 16: 627 
 
 373. A cause will not be dismissed upon 
 appeal because of failure to aver specifically 
 in the petition in error certain facts, where 
 the record brought up with the petition and 
 referred to thereby contains what is lack- 
 ing in the petition, and the petition, after 
 mentioning certain errors, contains a general 
 allegation that there are other errors mani- 
 fest upon the face of the record, especially 
 when voluntary appearance to the petition 
 was entered by defendants in error without 
 objection and none was made until the oral 
 argument, and no prejudice to defendants 
 in error has resulted from the irregularity. 
 Mauk v. Brundage, 68 Ohio St. 89, 67 N. E. 
 152, 62: 477 
 
 374. An appeal from a judgment and from 
 an order denying a motion for a new trial 
 will not be dismissed because the order had 
 not been entered when the appeal was taken, 
 but the record will be reviewed as if no 
 motion had been made. McCarthy v. Speed, 
 11 S. D. 362, 77 N. W. 590, 12 S. D. 7, 80- 
 N. W. 135, 50: 184 
 Delay. 
 
 375. Three weeks' delay in filing a brief 
 for appellant in a criminal case will not re- 
 quire the dismissal of the appeal, when the 
 delay was due to the removal of his attor- 
 ney from the state, and the brief was filed 
 as soon as the appellant, who was confined 
 in jail, could procure it to be done after he 
 learned that it was not done within the 
 proper time. State v. Williams, 18 Wash. 
 47, 50 Pac. 580, . 39: 821 
 
 376. An appellate court is not deprived of 
 jurisdiction of a cause by failure to get -it 
 into that court for the term snecified in the 
 notice of appeal. Hoff v. Shockley, 122 Iowa, 
 720, 98 N. W. 573, 64: 538 
 
 377. An appeal by a defendant, who does 
 not serve his notice of appeal upon his co- 
 defendant, nor join in the appeal of the lat- 
 ter, will be dismissed, where the statute re- 
 quires notice of appeal to be served on all
 
 APPEAL .AND ERROR, VII. a c. 
 
 77 
 
 parties who have appeared in the action, and 
 who do not join in the notice of appeal. 
 Davia v. Tacoma R. & P. Co. 35 Wash. 203, 
 77 Pac. 209, 6: 802 
 
 Escape of appellant. 
 
 378. Where appellant from a conviction 
 of murder escapes pending appeal, and does 
 not comply with an order to surrender him- 
 self to await the result, the appeal will be 
 dismissed. State v. Carter, 98 Mo. 431, 11 
 S. W. 979, 4: 621 
 
 VTL Hearing and Determination. 
 a. In General; Rules of Decision. 
 
 379. A judgment which was correct when 
 rendered, holding that a collateral inheri- 
 tance tax law was unconstitutional for lack 
 of any provision for notice of the proceed- 
 ings to ascertain the amount of the tax, 
 may be reversed on account of an amend- 
 ment enacted pending the appeal, by which 
 the defect in the law is cured. Ferry v. 
 Campbell, 110 Iowa, 290, 81 N. W. 604, 
 
 50:92 
 
 Rules of decision. 
 See also infra, 679. 686, 1177. 
 
 380. An appellate court draws conclusions 
 of law from a special verdict, but does not 
 draw conclusions of fact from evidence. 
 Bchring v. Somerville (N. J. Err. & App.) 63 
 N. J. L. 568, 44 Atl. 641, 49: 578 
 
 381. An insufficient complaint which was 
 tested by demurrer cannot be aided on ap- 
 peal by reading into it a fundamental fact 
 from the findings of the jury. Pittsburg, 
 C. C. & St. I,. R. Co. v. Moore', 152 Ind. 345, 
 53 N. E. 290, 41!). 44: 638 
 
 382. Words used by the court in instruct- 
 ing the jury must, in determining whether or 
 not they were erroneous, be construed in the 
 sense in which they were used. Cox v. 
 Royal Tribe of Joseph, 42 Or. 365, 71 Pac. 
 73, 60: 620 
 
 383. Where an erroneous instruction ap- 
 pears in the record, if it be erroneous to such 
 a degree that it could not be cured by some 
 other instruction, the court will consider it, 
 although it does not appear that all the in- 
 structions are in the record. Vancleave v. 
 Clark, 118 Ind. 61, 20 N. E. 527, 3: 519 
 
 384. Where all parties intended to treat 
 the case as though the court had dismissed 
 the aetion or granted a nonsuit on the 
 ground that the plaintiff had failed to "prove 
 a SHfficient case for the jury," it will be so 
 treated by the supreme court under the 
 Colorado practice. W*u1sworth v. Union P. 
 R. Co. 18 Colo. 600, 33 Pac. 515, 23: 812 
 
 b. Who may Complain. 
 
 Objections as to which Party is Estopped, 
 
 see infra, VII. g. 
 See also supra, 100; infra, VII. f. 
 
 385. A proper party to appeal or writ of 
 error is entitled to be heard in the court of 
 review by counsel regardless of whether that 
 will, for the time being, recognize him as 
 
 having a certain status, which is one of the 
 ery matters to be decided on such review. 
 State ex rel. Burner v. Huegin, 110 Wis. 189, 
 85 N. W. 1046, 62: 700 
 
 386. The question of costs allowed by the 
 trial court will not be considered on appeal, 
 at the instance of the party prevailing in the 
 trial court, where no appeal was taken from 
 the judgment upon that question. Carney v. 
 Hennessey, 74 Conn. 10T, 49 Atl. 910, 
 
 53: 699 
 
 387. On appeal by defendant, plaintiff can- 
 not ask that the dcree be changed or al- 
 tered in the appellate court. Schlawig v. De 
 Peyster, 83 Iowa, 32S, 49 N. W. 843, 13: 785 
 
 388. The insufficiency of an unverified an- 
 swer to a verified complaint cannot be insist- 
 ed on by plaintiff in the appellate court if 
 the trial court rules against him and he 
 takes no appeal. Morgan v. Southern P. Co. 
 95 Cal. 510, 30 Pac. 603, 17: 71 
 
 389. An appellant cannot assign for errors 
 matters which affect other defendants who 
 refuse to join in the appeal. Baum v. Lynn, 
 72 Miss. 932, 18 So. 428, 30: 441 
 
 390. One of two defendants cannot assign 
 errors upon a general exception by both to 
 the overruling by the court of demurrers to 
 the complaint, filed, one by both defendants 
 demurring generally to each paragraph of 
 the complaint, and others by the complain- 
 ing defendant attactdng specified paragraphs 
 of it. South Bend v. Turner, 156 Ind. 418, 60 
 N. E. 271, 54: 396 
 
 391. Objection cannot "be made on appeal 
 to the consolidation of two creditors' bills, 
 by one who did not become a party to the 
 litigation until after the consolidation was 
 effected, who made no objection to it in the 
 trial court, and whose rights are not shown 
 to have been prejudiced by it. Russell y. 
 Chicago Trust & Sav. Bank, 139 111. 538, 29 
 N. E. 37. 17: 345 
 
 392. Where devisees in a will appeal from 
 a decree Which rejects the will so far as they 
 are concerned, while establishing it in favor 
 of other specific devisees, the decree will, in 
 the absence of a cross appeal, be considered 
 final and conclusive as to the latter, although 
 they, together with the contestants of the 
 will, come before the appellate court as ap- 
 pellees. Randolph v. Lampkin, 90 Ky. 551, 
 14 S. W. 538, 10: 87 
 
 c. Evidence; Amendments; Trial de Novo. 
 
 Evidence. 
 
 As Part of Record on Appeal, see supra, IV. 
 
 f. 
 As to Judicial Notice by Appellate Court, 
 
 see Evidence, I. 
 On Appeal from Commissioners in Eminent 
 
 Domain Proceedings, see Evidence, 1709. 
 See also supra, 164, 249. 
 
 393. Testimony introduced on an imnjnte- 
 rial matter not in issue cannot be considered 
 on appeal in an equity case tried de novo, 
 although no exception was taken to its ad- 
 mission. Blagen v. Smith, 34 Or. 394, 56 
 Pac. 292, 44 : 522 
 
 394. Proof in an appellate court to obtain 
 an allowance of alimony, counsel fees, and
 
 78 
 
 APPEAL AND ERROR. VII. d. 
 
 suit money, must be made in addition to the 
 proof taken when a similar application was 
 made to and granted by a lower court. 
 Prine v. Prine, 36 Fla. 67G, 18 So. 781, 
 
 34: 87 
 
 395. A reviewing court cannot consider 
 cases and statutes for the purpose of deter- 
 mining what is the law of another state by 
 which the contract in suit is alleged to be 
 governed, where they were not mentioned in 
 the bill of exceptions, and it is apparent 
 that they were not considered by tne trial 
 court. Cherry v. Sprague, 187 Mass. 113, 
 72 N. E. 456, 67: 33 
 
 306. Statutes and decisions of another 
 state not put in evidence at the trial cannot 
 be used for the first time at the argument 
 of a case on report to the supreme judicial 
 court of Massachusetts. Kelley v. Kelley, 
 161 Mass. Ill, 36 N. E. 837, 25: 806 
 
 307. A certified copy of the record of a 
 deed cannot be received on appeal from an 
 action tried upon an agreed statement of 
 facts, to contradict such statement by show- 
 ing a different grantee from the one ntmed 
 therein. Harvey v. Briggs, 68 Miss. 60, 8 
 So. 274, 10: 62 
 Amendments. 
 
 See also supra, 121; infra, 412, 499, 863, 
 881-883, 1193. 
 
 398. An amendment of a complaint which 
 involves a question of fact and a matter of 
 law entirely foreign to the case made up 
 on appeil, will be denied in the aopellate 
 court. Howard v. Mutual Reserve Fund L. 
 Asso. 125 N. C. 49, 34 S. E. 199, 45: 853 
 
 399. A proposed amendment to make 
 pleadings conform to the proof, which was 
 erroneously denied by the court on the 
 ground that it was unnecessary, may be 
 treated on appeal as if it had been allowed, 
 when the rights of the parties were deter- 
 mined on the facts as established by the 
 evidence. National Bank of Commerce v. 
 Feoney, 9 S. D. 550, 70 N. W. 874, 12 S. D. 
 156. 80 N. W. 186, 46: 732 
 
 400. Reviewing courts have power on ap- 
 peal to so amend the pleadings as to con- 
 form them to the proofs, in order to affirm a 
 judgment, but have no such power for the 
 purpose of reversing a judgment. Amherst 
 College v. Ritch, 151 N. Y. 282, 45 N. E. 
 876, 37: 305 
 Trial de novo. 
 
 See nlso supra, 393: infra, 811. 
 
 401. Facts adjudicated by a trial court 
 cannot be retried on appeal, upon the certi- 
 fied testimony. Hoadley v. Savings Bank of 
 Dan^urv, 71 Conn. 599. 42 Atl. 667, 44: 321 
 
 402. On appeal to the city council after 
 the first trial in the mayor's court of An- 
 derson, South Carolina, the trial must be 
 de novo, and the witnesses examined as 
 though there had been no previous trial. 
 Anderson v. O'Donnell, 29 S. C. 355, 7 S. E 
 523, 1 : 632 
 
 403. An appeal from the county court to a 
 circuit court under W. Va. Code 1899, chap. 
 39, 47, 48, and chap. 112, 14. is to b 
 tried by the record as made up in the county 
 court, and does not give a right to a new 
 trial by jury, or otherwise than by the rec- 
 
 ord, until reversal on the record. Sisters- 
 ville Ferry Co. v. Russell, 52 W. Va, 356, 43 
 S. E. XP7, 51): 513 
 
 404. The duty of the supreme court to 
 try th cause anew upon the judgment roll 
 and render final judgment therein according 
 to the justice of the case, which is imposed 
 by N. D. Sess. Laws 1893, chap. 82, does not 
 require the court to perform any functions 
 that do not pertain to appellate jurisdiction 
 as prescribed by the Constitution. Chris- 
 tensen v. Farmers' Warehouse Asso. 5 N. 
 D. 438, 67 N. W. 300, 32: 730 
 
 d. Presumptions. 
 
 405. It will be presumed on appeal that an 
 appellant who had an appealable interest, 
 as shown by the record, at the time when 
 the judgment was rendered, still has such 
 right, in the absence of proof to the con- 
 trary. Wood v. Seattle, 23 Wash. 1, 62 Pac. 
 135, 52: 369 
 
 406. The fact that the entire evidence is 
 not in the record will not require the as- 
 sumption that the right result was reached 
 for the purpose of affirming the judgment, 
 if the record contains errors. Hauk v. Al- 
 len. 126 Ind. 568, 25 N. E. 897, 11: 706 
 
 407. No presumption can be indulged 
 that there was some other and different 
 service of process made from that which ap- 
 pears in the record on appeal from a judg- 
 ment by default. Lonkey v. Keyes Silver 
 Min. Co. 21 Nev. 312, 31 Pac. 57, 17: 351 
 
 408. The presumption of innocence is not 
 sufficient to raise an inference in the appel- 
 late court that a sale was of the original 
 package so as to warrant that court in con- 
 sidering the claim that one convicted of il- 
 legal sales was exempt from prosecution 
 under the state law because the sale was 
 of an original package brought from an- 
 other state, where that question was not 
 raised below, and the record shows only that 
 the property was shipped from the other 
 state without showing that it was in the 
 original packasjp. State v. Schuman, 36 Or. 
 16,^58 Pac. 661, .47: 153 
 
 409. On appeal from a judgment setting 
 aside the cancelation of a marine insurance 
 policy and allowing recovery of its amount, 
 for mistake arising from the ignorance of 
 the insured that the insured vessel was lost 
 at the time of the cancelation, it will be 
 presumed that delay in returning the pro 
 rata premiums received upon the cancelation 
 was explainable in such manner as not to 
 prejudice plaintiff's right to recover, where 
 no defense based upon such delay was al- 
 'orred in the answer, or in any way alluded 
 to or insisted upon at the trial, and there 
 is no finding of tact or law in relation there- 
 to. Duncan v. New York Mut. Ins. Co. 
 138 N. Y. 8S, 33 N. E. 730, 20: 386 
 
 410. It will be presumed on appeal that a 
 city attorney had authority to file a peti- 
 tion for the city, in the absence of anything 
 to show the contrary. Belleville v. Citi- 
 zens' Horse R. Co. 152 111. 171, 38 N. E. 584, 
 
 26: 681 
 
 411. Both parties are deemed to have
 
 APPEAL AND ERROR, VII. d. 
 
 79 
 
 asked for a direction of the verdict, where 
 defendant's counsel, after moving unsuccess- 
 fully for a nansuit, replied to an inquiry 
 from the court, that he did not care to 
 have any question submitted to the jury, 
 and, after a request by plaintiffs counsel for 
 the direction of a verdict, stated that he 
 desired to stand on his motion for a non 
 suit, while neither party asked to have any 
 question of fact submitted to the jury. 
 Trimble v. New York Central & H. R. R: Co. 
 162 N. y. 84, 56 N. E. 532, 48: 115 
 
 As to pleadings. 
 
 412. A petition may be considered upon 
 appeal as having been amended to conform 
 to the facts proved, where it is manifest 
 that defendant was not misled or surprised 
 by the variance, so that the trial court 
 would doubtless have permitted the amend- 
 ment upon request. Chicago, M. & St. P. R. 
 Co. v. Voelker, 65 C. C. A. 226, 129 Fed. 522, 
 
 70: 2G4 
 As to evidence admitted. 
 
 413. It cannot be assumed on appeal that 
 answers of witnesses were prejudicial w^en 
 they do not appear on the -record. Jackson 
 v. Jackson, 82 Md. 17, 33 Atl. 317, 34: 773 
 
 414. It will be presumed, if no objection 
 appears in the record to the use of a cer- 
 tified copy of the record of a deed in evi- 
 dence, that a constitutional requirement as 
 to producing the original was complied with 
 or waived in the court below. Summer v. 
 Mitchell, 29 Fla. 179, 10 So. 562, 14: 815 
 
 415. It will not be presumed on appeal 
 that evidence properly admitted in the case 
 for one purpose was considered for another 
 purpose, particularly where the court di- 
 rected the jury to consider it only for the 
 first purpose. State v. Pane-cast, 5 N. D. 
 516, 67 N. W. 1052, 35: 518 
 As to evidence excluded. 
 
 416. The rejection of written evidence can- 
 not be presumed on appeal to be prejudicial 
 when the record does not show the nature 
 of the evidence rejected. Modern Woodmen 
 Acci. Asso. v. Shryock, 54 Neb. 250, 74 N. W. 
 607, 39: 826 
 
 417. It will be presumed that the rulings 
 of the court below excluding from evidence 
 a will offered to show the condition of the 
 testator's mind, and claims filed in the pro- 
 l >o te court, offered to show his financial con- 
 dition, were correct, where the will and tfte 
 ciaims are not contained in the record. 
 -Etna L. Ins. Co. v. Florida, 69 Fed. 932, 
 16 C. C. A. 618, 32 U. S. App. 753, 30: 87 
 
 418. The exclusion of testimony will not 
 be presumed error where the evidence is not 
 in the record, and there is nothing to show 
 that it was not excluded because intrinsi- 
 cally incompetent, or a mere repetition of 
 testimony already given. Mercer v. Corbin, 
 117 Ind. 450, 20 N. E. 132, 3: 221 
 As to sufficiency of evidence. 
 
 See also infra, 421-433, 453a. 
 
 419. Allegations of a complaint which are 
 necessary to support the judgment will be 
 deemed on appeal to have had confirmation 
 in the evidence. Murray v. Murray, 115 Cal. 
 266, 47 Pac. 37, 37: 626 
 
 420. Absence of evidence to support a jus- 
 
 tice's judgment cannot be presumed where 
 no attempt to return the evidence was made, 
 but the return states that the judgment 
 was rendered after listening to the testi- 
 mony and after due deliberation. Su.livan 
 v. Hall, 86 Mich. 7, 48 N. W. 646, 13: 556 
 As to findings or verdict. 
 Review of, see infra, VII. 1. 
 See also infra 453a, 811. 
 
 421. All controverted facts and all infer- 
 ences therefrom must be deemed conclu- 
 sively established in faVor of the party for 
 whom judgment is rendered, when both par- 
 ties are in the position of having asked for 
 a direction of the verdict. Trimble v. New 
 ^ ork C. & H. R. R. Co. 162 N. Y. 84, 56 N. E. 
 532, 48: 115 
 
 422. It will be presumed by the court of 
 appeals that all the facts warranted by the 
 evidence and necessary to support the judg- 
 ment were found by a referee, when his 
 decision does not separately state the facts 
 found by him, and the judgment entered 
 thereon has been affirmed by the appellate 
 division. Solomon v. Continental F. Ins. Co. 
 160 N. Y. 595, 55 N. E. 279, 46: 682 
 
 423. On review of a verdict directed for 
 the defendant after plaintiff asked to go 
 to the jury, all the facts warranted by the 
 evidence must be assumed as settled in 
 favor of the plaintiff. Bank of Monongahela 
 Valley v. Weston, 159 N. Y. 201, 54 N. E. 
 40, 45: 547 
 
 424. The presumptions are not strong in 
 favor of the correctness of a ruling granting 
 a nonsuit. Vermont Marble Co. v. Declez 
 Granite Co. 135 Cal. 579, 67 Pac. 1057, 
 
 56: 728 
 
 425. It will be presumed that a judgment 
 appealed from was within the pleadings and 
 justified by the proof, if nothing appears to 
 the contrary. Carter v. Gibson, 61 Neb. 
 207, 85 N. W. 45, 52: 468 
 
 426. In the absence of the evidence it will 
 be assumed that findings of fact by 'the 
 court below were sustained by the evidence 
 and contain all the facts which the evidence 
 established. Wiggins v. Muscupiabe Land 
 & W. Co. 113 Cal. 182, 45 Pac. 160, 32: 667 
 
 427. In a case involving the question 
 whether certain machinery in a factory is 
 real or personal property, as between mort- 
 gagor and mortgagee, the findings of the 
 master, who visited the factory and saw 
 each machin-e and its mode of attachment, 
 must be assumed to be correct, unless the 
 facts and evidence reported show that they 
 are wrong. Southbridge Sav. Bank v. Ma- 
 son, 147 Mass. 500, 18 N. E. 406, 1 : 350 
 
 428. A decision of the trial court stating 
 concisely the grounds upon which the is- 
 sues have been decided, and directing judg- 
 ment to be entered thereon as provided by 
 N. Y. Code Civ. Proc. 1022, without stat- 
 ing separately the facts found and the con- 
 clusions of law, has the same effect as a gen- 
 eral verdict rendered by a jury, and the 
 same presumptions arise in its support. 
 Amherst College v. Ritch, 151 N. Y. 282, 45 
 N. E. 876, 37: 305 
 
 429. Ail the facts warranted by the evi- 
 dence and necess-ary to support a judgment
 
 80 
 
 APPEAL AND ERROR, VII. d. 
 
 entered upon a decision stating concisely 
 the grounds upon which the issues were de 
 cided, and directing entry of a judgment, 
 aa provided by N. Y. Code Civ. Proc. 
 1022, without stating separately the facts 
 found and the conclusions of law, are pre- 
 sumed on appeal to the court of appeals 
 from a judgment of affirmance by a former 
 general term of the supreme court to have 
 been found by the trial court, and such facts 
 are conclusive on the court of appeals if 
 there is any evidence to sustain them. Id. 
 
 430. An excessive verdict cannot be sup- 
 ported on the ground that it may include 
 interest, where no claim was set up in the 
 complaint for interest, and no testimony or 
 instructions concerning it given on the trial. 
 Miami Powder Co. v. Port Royal & W. C. 
 R. Co. 38 S. C. 78, 16 S. E. 339, 21-: 123 
 
 431. An express statement that the report 
 and verdict are concurred in by ten of the 
 jurors defeats any presumption that all of 
 the jurors concurred, as required by law, 
 although all signed the report. Jackson- 
 vi.le, T. & K. W. R. Co. v. Adams, 33 Fla. 
 608, 15 So. 257, 24: 272 
 
 432. It will be presumed on appeal that 
 the court found against a counterclaim, if 
 it omitted to set out any finding in regard 
 to it, and the evidence clearly justifies a 
 finding against it. Wetzler v. Duffy, 78 
 Wis. 170, 47 N. W. 184, 12: 178 
 
 433. Where a special verdict on the ques- 
 tion of the negligence of a railroad company 
 finds nothing as to the condition of the en- 
 gine or as to the manner of its operation, 
 the facts thus omitted must be regarded as 
 found against the plaintiffs. Louisville, N. 
 A. & C. R. Co. v. Hart, 119 Ind. 273, 21 N. E. 
 753, 4: 549 
 As to instructions. 
 
 434. An instruction lost and not ap- 
 pearing in the record will be presumed to 
 be correct. Jordan v. Benwood, 42 W. Va. 
 312,. 26 S. E. 266, 36: 519 
 
 435. 'Where the bill of exceptions does not 
 allege or indicate that it contains all the 
 evidence adduced at the trial, the Arkansas 
 supreme court must assume that there was 
 evidence sufficient to warrant the instruc- 
 tions given, if they stated the law correctly. 
 Dwelling-House* Ins. Co. v. Brodie, 52 Ark. 
 11, 11 S. W. 1016, 4: 458 
 
 436. If instructions given would have been 
 proper under any evidence that might have 
 been given under the issues, the court on ap- 
 peal will presume that such evidence was in 
 fact given, where the evidence is not in the 
 record. Hilker v. Kelley, 130 Ind. 356, 30 
 N. E. 304, 15 : 622 
 
 437. In the absence of the evidence, or of 
 a statement that there was none, the appel- 
 late court will not presume that there was 
 none to support an instruction given by the 
 trial court. James v. Western North Caro- 
 lina R. Co. 121 N. C. 523. 530, 28 S. E. 537, 
 
 46: 306 
 
 438. It will be presumed on appeal that 
 the jury followed an erroneous instruction 
 allowing interest for a greater period than 
 demanded in the petition, although the ver- 
 dict is much less than the damages demand- 
 
 ed. Winney v. Sandwich Mfg. Co. 86 Iowa, 
 608, 53 N. W. 421, 18: 524 
 
 439. Where, upon an exception to a prop- 
 osition in a general charge, the court with- 
 draws it and instructs the jury to disregard 
 it, it will ordinarily be presumed that the 
 jury accepted and acted on the correction. 
 Goodsell v. Taylor, 41 Minn. 207, 42 N. W. 
 873, 4: &73 
 As to jurisdiction. 
 
 440. The jurisdiction of a trial court which 
 is a court of general jurisdiction will be 
 presumed upon appeal, if the record does not 
 show its absence. O'Brien v. State, 125 Ind. 
 38, 25 N. E. 137, 9: 323 
 As to records and proceedings on appeal. 
 
 441. The appellate court is not precluded 
 from considering the correctness of the over- 
 ruling of a demurrer to an amended eom- 
 plaint by the fact that the original and 
 amended complaints as they appear in the 
 transcript are alike, on the theory that the 
 original complaint was erroneously copied 
 where the amended one should appear, where 
 the clerk has certified that the amended 
 complaint was correctly copied, and his duty 
 required the copying of only that paper. 
 Indianapolis Union R. Co. v. Houlihan, 157 
 Ind. 494, 60 N. E. 943, 54: 787 
 
 442. The presumption that the abstract 
 on appeal contains the record, which arises 
 under Iowa Code, 4118 (supreme court rule 
 22), unless it is denied or corrected by a 
 subsequent abstract, includes the presump- 
 tion that the abstract embodies all the evi- 
 dence, though that fact is not expressly 
 stated, and that the proper steps have been 
 taken too make the evidence of record. 
 Kirchman v. Standard Coal Co. 112 Iowa, 
 668, 84 N. W. 939, 52: 318 
 As to regularity of proceeding below gen- 
 erally. 
 
 443. Unless the record or case on appeal 
 sets out matter from which the appellate 
 court can see that there was error, tne pre- 
 sumption in favor of the correctness of the 
 proceedings below universally obtains. 
 James v. Western North Carolina R. Co. 
 124 N. C. 362, 32 S. E. 748, 46: 306 
 
 444. Where it appears on the examination 
 of a juror that he was placed on a jury as 
 one of a regular panel, and the record fails 
 to show that it was done by order or direc- 
 tion of the court for the purpose of filling 
 out a deficient panel, the court will presume, 
 where a challenge has been sustained on the 
 ground that the juror has served during the 
 preceding year, that the juror was not one 
 of the regular panel, and that the challenge 
 was properly sustained. Goshen v. England, 
 119 Ind. 368, 21 N. E. 977, 5: 253 
 
 445. When a circuit-court commissioner 
 takes an appeal bond in proper form con- 
 taining a certain penalty, in proceedings had 
 before him by a landlord to oust his tenant 
 from the leased property, and grants an 
 appeal by making a return to the circuit 
 court of such proceedings, with the affidavit 
 and bond of appeal, it will be presumed, in 
 favor of the jurisdiction of that court, not 
 only that he approved the bond, but also 
 that he fixed the penalty of the same in
 
 APPEAL AND ERROR, VII. e. 
 
 accordance with law, although the bond con- 
 tains no indorsements to that effect. liana w 
 v. Bailey. 83 Mich. 24, 46 N. W. 1039, 
 
 9: 801 
 
 446. Since no response will satisfy a writ 
 of habeas corpus unless accompanied with 
 the body of the person held in custody, 
 or unless a satisfactory reason for his non- 
 production is given, it will be presumed in a 
 given instance, whore a writ has been is- 
 -urd. and the respondents have appeared at 1 
 the time appointed in the writ, and a hear- 
 ing is had. nothing to the contrary appear- 
 ing, that the person claimed to b$tfllegally 
 restrained of his liberty was before the court 
 jit that time. Simmons v. Georgia Iron & 
 Coal Co. 117 Ga. 305. 43 S. E. 780, 61: 739 
 
 447. A third extension of time to file 
 statement of evidence on a motion for new 
 trial will be presumed to be within the time 
 nf a former extension, where it was duly 
 allowed by the trial judge, and the statute 
 requires extensions to be within the time 
 of former ones, although the second one is 
 not on file. Crafts v. Carr. 24 R. I. 397, 53 
 Atl. 275, 60: 128 
 In criminal case. 
 
 448. On appeal from conviction for crime, 
 where defendant attacks the organization 
 or impaneling, either of the grand or the 
 petit jury, he must bring up the record of 
 such proceedings. In the absence of the rec- 
 ord, the proceedings must be presumed to 
 liave been regular and according to law. 
 Parker v. People, 13 Colo. 155, 21 Pac. 1120, 
 
 4: 803 
 
 449. The transcript of the record in a case 
 carried for trial to a county different from 
 that in which the indictment was found need 
 not show aflirmatively that the grand jury 
 which returned the indictment was duly im- 
 paneled, in order to give jurisdiction. That 
 the jury was legally impaneled will be pre- 
 sumed from a statement in the record and 
 a recital in the copy of the indictment con- 
 tained therein, that the indictment was re- 
 turned by a grand jury of the county from 
 which the record was transmitted. O'Brien 
 v. State, 125 Ind. 38, 25 N. E. 137. 9: 323 
 
 450. Where the original indictment is -re- 
 quired by statute to be filed with the clerk 
 of the court in which the trial is to be had 
 upon change of venue in a criminal case, if 
 the required transcript is made out and filed 
 it \yiil be presumed on appeal to have been 
 accompanied by the indictment, in the ab- 
 sence of evidence to the contrary: and tin- 
 fact that the record is silent as to the filing 
 of the indictment is immaterial, if the stat- 
 ute does not require it to make mention 
 of that fact, Id. 
 
 451. The improper separation of jurors 
 during the trial of a capital case is presumed, 
 if the prisoner is convicted, to have been 
 prejudicial to him; and the burden of proof 
 is upon the prosecution to show that the 
 prisoner has suffered no injury thereby. 
 Gamble v. State, 44 Fla. 429, 33 So. 471, 
 
 60: 547 
 
 452. An inference that a prisoner was not 
 present iii court at the time the verdict of a 
 jury against him was received will not be 
 
 L.R.A. Dig. 6. 
 
 permitted to overcome the legal presumotion 
 hat everything was rightly done in court. 
 Welsh v. State, 126 Ind. 71, 25 N. E. 883, 
 
 9: 664 
 On appeal from appellate court. 
 
 453. A conclusive presumption that a 
 judgment of reversal by the appellate di- 
 vision was not based upon a question of 
 fact arises under N. Y. Code Civ. Proc. 
 1338, when the order of reversal is silent 
 upon that subject, although the opinion in 
 that court shows an intention to reverse 
 upon the facts as well as the law. Spence 
 v. Ham, 163 N. Y. 220, 57 N. E. 412, 51 : 238 
 
 453a. All the facts warranted by the evi- 
 dence, and necessary to support a decision 
 rendered by the trial court without stating 
 separately the facts found and the conclu- 
 sions of law, are presumed, on appeal to the 
 ?ourt of appeals from a judgment of affirm- 
 ance by the general term, to have been found 
 by the trial court ; and the court of appeals 
 is concluded thereby. Amherst College v. 
 Ritch, 151 N. Y. 282, 45 N. E. 876. 37: 305 
 
 454. Where the appellate division of the 
 supreme court allows an appeal to the court 
 of appeals, and certifies a question of law 
 for the latter court to review, the presump- 
 tion is that its determination of the case 
 was upon the merits, and not a matter of 
 discretion which the court of appeals cannot 
 review, unless the contrary expressly ap- 
 oears from the record. Re Davies, 168 N. Y. 
 89, 61 N. E. 118, 56: 855 
 
 455. The fact that defendant in a divorce 
 suit is guilty of contempt in refusing to 
 come into the jurisdiction of the court and 
 submit to cross-examination is not sufficient, 
 where the record does not show a reversal 
 on the facts and the statute requires the 
 reviewing court under such circumstances 
 to presume it was on the law, to authorize 
 the court of appeals to affirm an order of 
 the appellate division of the supreme court 
 which reversed an order of the special term 
 modifying a decree awarding the income of 
 a fund held in trust for his benefit, as ali- 
 mony, but some legal error in the order 
 must be pointed out. Wetmore v. Wetmore, 
 162 N. Y. 503, 56 N. E. 997, 48: 666 
 
 e. What Reviewable Generally. 
 
 Condition of Record as Affecting Reviewabil- 
 
 ity, see supra, IV. 
 In Condemnation Proceedings, see Eminent 
 
 Domain, 200. 
 On Appeal from Justice's Judgment, see 
 
 Justice of the Peace, 25. 
 See also supra, 247, 280; infra, 1180, 1187. 
 
 456. Only errors of which the appellant 
 complains can be considered on appeal. Den- 
 nis v. Caughlin, 22 Nev. 447, 41 Pac. 768, 
 
 29: 731 
 
 4.~>7. In no case w r ill the supreme court 
 undertake to pass upon questions presented 
 by a bill of exceptions, when an adjudica- 
 tion of them, even though favorable to the 
 plaintiff in error, could not possibly result 
 in any practical benefit to him. Singleton 
 v. Bent on, 114 Ga. 548, 40 S. E. 811, 
 
 58: 181
 
 82 
 
 APPEAL AND ERROR, VII. f. 
 
 458. Nothing but the amount is in ques- 
 tion on appeal, where the plaintiffs asked 
 permission to pay the amount due, and the 
 defendants asked that they be required to 
 pay the amount due. Randall v. National 
 Bldg. L. & P. Union, 42 Neb. 809, 60 N. W. 
 1019, 29: 133 
 
 459. The granting by the appellate divi- 
 sion of a writ of mandamus to compel a 
 municipal officer to perform a ministerial 
 duty is not reviewable by the court of 
 appeals, although relator was not entitled 
 to the writ absolutely and as matter of 
 legal right. People ex rel. Rodgers v. Coler, 
 166 N. Y. 1, 59 N. E. 716, 52: 814 
 
 460. The question, what remedy may be 
 open to a taxpayer in case of an illegal as- 
 sessment or overvaluation of his property, 
 is not properly before the court upon appeal 
 from a decision refusing to enjoin collection 
 of the taxes on the ground that the statute 
 under which it is levied is unconstitutional. 
 Nathan v. Spokane County, 35 Wash. 26, 
 76 Pac. 521, 65: 336 
 
 461. On appeal from an order granting 
 a new trial because of error of the court in 
 overruling a motion for a nonsuit on the 
 ground that the contract sued on was void, 
 the sufficiency of the complaint, but not 
 the evidence, mav be considered. Alpers v. 
 Hunt. 86 Cal. 78. 24 Pac. 846, 9: 483 
 
 462. The appellate court is not limited, 
 upon appeal from an order granting a new 
 trial, to an exclusive consideration of the 
 grounds upon which the new trial was al- 
 lowed, although all other grounds relied on 
 were distinctly overruled; but all the 
 grounds embraced in the motion, excepting 
 an allegation of insufficiency of evidence to 
 justify the verdict, will be examined, and the 
 order sustained if justified by any of them, 
 irrespective of the ones mentioned by the 
 trial court. Kauffman v. Maier, 94 Cal. 269. 
 29 Pac. 481.. 18:. 124 
 Errors of law. 
 
 For Editorial Notes, see infra, XL 11. 
 
 463. Upon an appeal from an order grant- 
 ing plaintiff a new trial for error in giving 
 instructions, the only questions open for 
 review are erro/s of law, and whether or not 
 there is any basis in the evidence for a ver- 
 dict in plaintiff's favor. Graney v. St. Louis, 
 1. M. & S. R. Co. 157 Mo. 666, 57 S. W. 276, 
 
 50: 153 
 
 464. Mere prayers or solicitations to find 
 particular facts "under the law and the evi- 
 dence 1 ' do not present a question of law on 
 appeal. First Nat. Bank v. Northwestern 
 Nat, Bunk. 152 111. 296. 38 N. E. 739, 26: 289 
 
 465. Refusal of a request to hold as mat- 
 ter of law that the judgment should be for 
 defendant under the law and the evidence 
 presents a question of law on appeal. Id. 
 
 466. A ruling that, because of its char- 
 acter, property alleged to be employed with- 
 in the state by a corporation sought to be 
 subjected to a franchise tax cannot in fact 
 be made the basis of the assessment, pre- 
 sents a question of law reviewable by tb.* 
 court of appeals. People ex rel. Commercial 
 Cable Co. v. Morgan, 178 N. Y. 433, 70 N. K. 
 967, 67: 9CO 
 
 467. Where, at the close of a trial to a 
 jury, each party requests a peremptory in- 
 struction in his favor, and the court grants 
 one of the requests, that ruling constitutes- 
 a general finding for the successful party by 
 the court; and t'he only questions it pre- 
 sents in an appellate court are whether the- 
 finding was without substantial evidence to- 
 support it, and whether there was error in 
 the court; and the only questions it pre- 
 law. Phemx Ins. Co. v. Kerr, 64 C. C. A. 
 251, 129 Fed. 723, 66: 569- 
 Pleadings. 
 
 468. An appeal on the judgment roll will 
 present the question of the correctness of 
 the granting of a motion to strike out an 
 answer. Gregg v. Groesbeck, 11 Utah, 310 r 
 40 Pac. 202, :)2: 266 
 
 469. The refusal to strike the answer of 
 defendants in an action for malicious prose- 
 cution will not be considered on appeal from 
 a judgment sustaining demurrers to and dis- 
 missing the petition, since, if the court be- 
 low passed on the question at all, it was in 
 an irregular way. Page v. Citizens' Bkg. 
 Co. Ill Ga. 73, 36 S. E. 418, 51:465 
 Evidence. 
 
 470. A question as to the competency of 
 evidence which cannot affect the decree will 
 not be considered on appeal, where there is 
 ample proof, unassailed, to justify the find- 
 ings and decree. Hague v. Nephi Irrig. Co. 
 16 Utah, 421, 52 Pac. 765, 41: 311 
 
 471. The supreme court having assumed 
 jurisdiction of a cause under La. Const. 1898, 
 art. 85, giving jurisdiction in all cases in 
 which the constitutionality or legality of 
 any tax, toll, or impost, whatever shall be 
 in contest, when the amount involved i 
 below the limit of the appellate jurisdiction, 
 will not, the question being one of the law. 
 deal with any question of evidence which 
 does not appertain strictly thereto. 
 Shreveport v. Prescott, 51 La. Ann. 1895. 2ft 
 So. 664, 46: 193 
 
 f. Decisions in Favor of Party, or Not Af- 
 fecting Him. 
 
 In party's favor. 
 
 472. An appellant cannot complain of an 
 error which inures to his benefit. Illinois 
 C. R. Co. v. Decatur, 126 111. 92, 18 N. E. 
 315, 1:615 
 
 473. A party cannot complain of an error 
 in an instruction which is in his own favor. 
 ITolwerson v. St. Louis & S. R. Co. 157 Mo. 
 21 (i, 57 S. W. 770, 50: 85O 
 
 Erb v. German-American Ins. Co. 98 Iowa, 
 606. 67 N. W. 583, 40: 845> 
 
 Treadwell v. Whittier, 80 Cal. 574, 22 
 Pac. 266, 5: 498 
 
 474. An inconsistency in the instructions, 
 due to the fact that some instructions are 
 more favorable to one of the parties than 
 he is entitled to, is not available to such 
 partv. Hess v. Preferred Masonic Mut. Acci. 
 Asso. 112 Midi. 196. 70 X. W. 460. 40:444 
 
 475. In the trial of one charged with prac- 
 tising medicine without t'he license required 1 
 by statute, an instruction which restricts 
 t'he number of acts which the jury might
 
 APPEAL AND ERROR, VII. g, 1. 
 
 otherwise find the defendant committed in 
 violation of the statute cannot be com- 
 plained of by him. Territory v. Newman 
 (N. M.) 79 Pac. 813, 68: 783 
 
 476. One who relied upon a former ad- 
 judication of a matter cannot complain of a 
 decision which is to the same effect. Gib- 
 son v. Gibson, 18 Wash. 489, 51. Pac. 1041, 
 
 40: 587 
 
 477. The failure of the court to assess 
 disfranchisement as part of the punishment 
 of a convict is not error of which he can 
 complain. Miller v. State. 149 Ind, 607, 49 
 N. E. 894, '40: 109 
 Not affecting him. 
 
 See also infra, 852, 1188. 
 
 478. A person awarded all he is entitled 
 to out of a fund in court cannot complain 
 because it was not mace payable out of the 
 allowance made to another claimant, if his 
 own claim is satisfied. Farmers' Loan & T. 
 Co. v. uanada & St. L. R. Co. 127 Ind. 250. 
 26 N. E. 784, 11: 740 
 
 479. Error in determining the amount due 
 subcontractors, laborers, and material men. 
 gives the owner of the building no right 
 to com plain, where these amounts are mere- 
 ly deducted from the aggregate due to the 
 original contractor, who is allowed a lien 
 only for t'Tie remainder. Menzel v. Tubbs, 
 51 Minn. 364, 53 N. W. 653, 17: 815 
 
 480. The admission of a note in evidence 
 without proof of its execution, when it was 
 admitted by the maker, who was a defend- 
 ant, cannot be complained of on appeal bv 
 another pnrty as to whom the evidence was 
 immaterial. Wiehl v. Robertson, 97 Tenn. 
 458, 37 S. W. 274, 39: 423 
 
 481. A creditor having only a general 
 equitable lien cannot complain because one 
 of the specific lienholde.-s is given a greater 
 part of the fund than he is entitled to as 
 agninst other specific lienholders, where the 
 fund is insufficient to satisfy the specific 
 liens. Farmers' Loan & T. Co. v. Canada & 
 St. L. R. Co. 127 Ind. 250. 26 X. E. 784, 
 
 11: 740 
 
 482. A concession of exemption from lia- 
 bility under certain circumstances, of parties 
 situated similarly to defendant, by the judge 
 in charging the jury in an action to recover 
 damages for injuries .to adjoining property 
 by a manufacturing establishment, although 
 erroneous, is not ground for complaint by 
 defendant, where it places no burden on him 
 because he is, at all events, within the gen- 
 eral rule, and not within the exception. 
 Robb v. Carnegie, 145 Pa. 324, 22 Atl. 649. 
 
 14: 329 
 
 483. One who directed an arrest and is 
 found guilty of false imprisonment cannot 
 complain that the one who actually made 
 the arrest was found not guilty. Burroughs 
 v. Eastman, 101 Mich. 419. 59 N. W. 817, 
 
 24 : 8.19 
 
 g. Objections as to Which Party is Estopped. 
 
 1. In General. 
 See also supra, VII. f. 
 
 484. One whose demurrer has been sus- 
 
 tained cannot, for the purpose of sustaining 
 the judgment, challenge the truthfulness of 
 the statements in the pleadings demurred 
 to. Barnard v. Shirley, 135 Ind. 547, 34 N. 
 E. 600, 35 N. E. 117, 24: 568 
 
 485. That a defendant succeeded in ob- 
 taining a peremptory instruction in his favor 
 in the trial court upon the facts will not 
 prevent him from raising the question in 
 the appellate court that the complaint does 
 not set up a cause of action. Abbott v. 
 Thome, 34 Wash. 69-2, 76 Pac. 302, 65: 826 
 
 486. One cannot object on appeal to a pe- 
 tition because it failed to make him a party 
 if he filed an answer to it and had all the 
 rights of a party on the trial. Belleville 
 v. Citizens' Horse R. Co. 152 111. 171, 38 N. 
 E. 584, 26: 681 
 
 487. An appellee cannot complain of ap- 
 pellant's failure to prove an alleged contract 
 as justification, where the court prevented 
 the proof on the ground that it was conced- 
 ed. Benner v. Atlantic Dredging Co. 134 
 N. Y. 156, 31 N. E. 328, 17: 220 
 
 488. A prisoner who was out on bail at 
 the time of his trial cannot be heard to 
 complain that the verdict of the jury was 
 received in his absence. Welsh v. State, 126 
 hid. 71, 25 N. E. 883, 9: 664 
 By consent. 
 
 489. If a party accept a privilege granted 
 to take judgment, upon the theory that all 
 facts warranting a more favorable judgment 
 are established against him, 'he cannot there- 
 after change his attitude as to the existence 
 of such facts, for the purpose of preventing 
 a review of any question legitimately aris- 
 ing thereon, on an appeal from such judg- 
 ment. Hildebrand v. American Fine Art Co. 
 109 Wis. 171, 85 N. W. 268, 53: 826 
 
 490. A defendant in attachment who ap- 
 pears in open court and consents that judg- 
 ment may be entered tor the full sum de- 
 manded cannot on appeal, where the declar- 
 ation, notes, and open accounts sued on, are 
 absent from the record, without exception 
 taken at the trial on the ground that they 
 were not filed, assert that the debt sued for 
 was not due, or that the notes or accounts 
 were not filed. Queen City Mfg. Co. v. Bla- 
 lack (Miss.) No Off. Rep. 18 So. 800, 31: 222 
 
 491. A defendant charged with murder, 
 who consents in open court that the case be 
 sent for trial to the district court of a 
 county that is not "near or adjoining" the 
 county of original venue, as provided by the 
 North Dakota statute, cannot object to the 
 jurisdiction of the court to which the venue 
 is changed, after trial. State v. Pancoast, 
 5 N. D. 516, 67 N. W. 1052, 3.1: 5]S 
 
 492. As consent cannot confer jurisdiction, 
 a plaintiff upon whose bill there is a final 
 decree and adjudication against him upon 
 the matter set up in the bill is not estopped, 
 to assert, upon appeal, that the court to 
 which he resorted had no jurisdiction of the 
 subject-matter. Freer v. Davis, 52 \V. Va. 
 1, 43 S. E. 164. 59: 556 
 By obtaining similar ruling. 
 
 See also infra, 903, 926. 
 
 493. An error in instructions cannot 1*0 
 complained of by a party who subsequently
 
 84 
 
 APPEAL AND ERROR, VII. g, 2, h. 
 
 asks and obtains the 'same instructions. 
 Cicero & P. Street R. Co. v. Meixner, 160 
 111. 320, 31: 331 
 
 Queen City Mfg. Co. v. Blalack (Miss.) 
 No Off. Rep. 18 So. 800, 31: 222 
 
 494. The use of certain language in an 
 instruction cannot be complained of on ap- 
 peal, where appellant, in its request for in- 
 structions, used similar language. Kansas 
 City v. Orr, 62 Kan. 61, 61 Pac. 397, 
 
 50: 783 
 
 495. One who has proved certain state- 
 ments by his own witnesses cannot object 
 to proof of the same statements by wit- 
 nesses for the other party. Modern Wood- 
 men Acci. Asso. v. Shryock, 54 Neb. 250, 74 
 N. W. 607, 39: 826 
 
 496. When one attacking a - patent to a 
 mining location is permitted, against the 
 objection of his adversary, to go behind the 
 patent and introduce evidence as to the pri- 
 ority of location, he cannot complain if his 
 adversary is permitted to introduce evidence 
 showing that his own location is the prior 
 one. Jefferson Min.' Co. v. Anchoria-Leland 
 Min. & Mill Co. (Colo.) 75 Pac. 1070, 
 
 64: 925 
 
 2. By Requesting or Obtaining Ruling or 
 Decision. 
 
 497. A party cannot complain on appeal 
 of a ruling which he procured to be made. 
 Norwegian Plow Co. v. Bollman, 47 Neb. 
 186, 66 N. W. 292, 31: 747 
 
 498. A party cannot on appeal insist on 
 error committed at his own instance, or con- 
 trary to his express stipulations upon which 
 the lower court was induced to act. Chicago 
 & N. W. R. Co. v. West Chicago Park Comrs. 
 151 111. 204, 37 N. E. 1079, 25: 300 
 
 499. It is too late to say that a decree for 
 performance of a contract is not responsive 
 to pleadings, where for three years the com- 
 plainant has placed itself in the attitude 
 of asking for such a decree, and has never 
 dismissed its bill or withdrawn its prayer; 
 but any formal defect in this particular is 
 subject to amendment, even in t"he appellate 
 court. National Waterworks Co. v. Kansas 
 City, 27 U. S. App. 165, 10 C. C. A. 653, 62 
 Fed. 853, 27: 827 
 
 500. An accused cannot complain that a 
 view by the jury was had in his absence 
 and without the presence of the judge, 
 where it was taken on his motion and with- 
 out any request to be present or any objec- 
 tion made by him, although he knew it was 
 to be taken without the presence of the 
 judge. State v. Hartley, 22 Nev. 342, 40 
 Pac. 372. 28: 33 
 
 501. Where defendants, separately indict- 
 ed, have their cases consolidated on their 
 own motion, they cannot, after trial and con- 
 victions upon appeal, complain of such con- 
 solidations, Parker v. People, 13 Colo. 155, 
 21 Pac. 1120, 4: 803 
 Pleading. 
 
 502. One who submits a pleading as a 
 demurrer cannot complain of the action of 
 the court in treating it as such. Citizens' 
 Nat. Bank v. Gentry, 111 Ky. 206, 63 S. W. 
 464, 757, 56: G73 
 
 503. A defendant cannot, on appeal, insist 
 that his answer was bad, for the purpose of 
 showing error in refusing him the closing 
 argument, if, after the overruling of a de- 
 murrer which settled the law of the case, 
 he denied facts, proof of which was neces- 
 sary to a recovery, and thereby attempted 
 to place the burden on plaintiff. American 
 Acci. Co. v. Reigart, 94 Ky. 547, 23 S. W. 
 191, 21:651 
 Evidence. 
 
 504. A defendant in a criminal case cannot 
 complain of error in the admission of evi- 
 dence which he himself draws out. State 
 v. Hamey, 168 Mo. 167, 65 S. W. 946, 
 
 57: 846 
 
 505. A party who, upon cross-examining 
 his adversary, insisted upon making the very 
 proof objected to, cannot be heard on appeal 
 to object that tlie evidence was not within 
 the legal form presented by the pleadings. 
 State Ins. Co. v. Schreck, 27 Neb. 527, 43 
 N. W. 340, 6: 524 
 
 506. An insurer who, in cross-examining 
 the assured as to his having encumbered the 
 property, particularly inquired of him 
 whether the encumbrance had been paid be- 
 fore the fire, cannot object on appeal that 
 the finding of payment was not established 
 by the answers of the assured that they had 
 been paid. Id. 
 
 507. On appeal from a conviction for mur- 
 der, defendant, who has objected in the trial 
 court to testimony that it was impossible 
 for the grand jury finding the indictment to 
 obtain the name of the deceased, cannot 
 complain of the absence of proof that such 
 is the case, and so insist that the indictment, 
 charging him with the murder of a person 
 to the grand jury unknown, is at variance 
 with the evidence, which shows the name of 
 such person. Trumble v. Territory, 3 Wyo. 
 280, 21 Pac. 1081, 6: 384 
 Instructions. 
 
 508. A party cannot on appeal complain 
 of an error in giving an instruction at his 
 own instance and request. Sc'hmitz v. St. 
 Louis, I. M. & S. R. Co. 119 Mo. 256. 24 S. 
 W. 472, 23: 250 
 
 h. Interlocutory Matters; Orders, etc., Not 
 Appealed from. 
 
 509. The appellate court is confined to 
 such of the interlocutory orders made in 
 the action as are appealed from. Wiggins 
 v. Williams, 36 Fla. 637, 18 So. 859, 30: 754 
 
 510. Error may be assigned upon an inter- 
 locutory order which is continued in force 
 by the final decree, and involves and deter- 
 mines a matter of substantial right. Repub- 
 lic L. Ins. Co. v. Swigert, 135 HI. 150, 25 N. 
 E. 680, 12: 328 
 
 511. An appeal from a final decree in chan- 
 cery brings up for review the whole case, 
 with all interlocutory orders involving the 
 merits of the controversy. Pennineton v. 
 Todd (N. J. Err. & App.) 47 N. J. Eq. 569, 
 21 Atl. 297, 11: 589 
 
 512. Errors in rulings at a trial upon a 
 plea to the jurisdiction in which a judgment 
 of respondent ouster is reached are open up- 
 on appeal from a final judgment against de-
 
 APPEAL AND ERROR, VII. i, 1, 2. 
 
 85 
 
 fendant, without the necessity of a separ- 
 ate appeal therefrom. Gambrill v. Schooley, 
 95 Md. 260, 52 Atl. 500, 63: 427 
 
 513. A decree establishing and confirming 
 the respective interests of the parties, and 
 appointing referees to make partition of 
 property, is not conclusive of the right to 
 have the property divided in kind rather 
 than sold, when presented on appeal from 
 a decree confirming the report of the refer- 
 ees. Brown v. Cooper, 98 Iowa, 444, 67 
 N. W. 378, 33: 61 
 
 514. An appeal by the owner of a vessel 
 from a decree awarding the sum Recovered 
 for probable loss of earnings because of a 
 collision, to the insurer, will not give the ap- 
 pellate court jurisdiction to review the por- 
 tion of the decree which awarded appellant 
 the amounts recovered for loss of freight 
 under existing contracts and for loss of coal 
 on board. Mason v. Marine Ins. Co. 49 C. 
 C. A. 106, 110 Fed. 452, 54: 700 
 
 515. Where a suit by a husband and wife 
 to subject real estate of her judgment debt- 
 ors to the judgment, and a suit by one of 
 the. debtors to have her property declared 
 liable for her husband's debt, and to have 
 a judgment against the husband set off 
 against the wife's judgment, were heard to- 
 gether, and a decree made in both suits that 
 the property was the wife's separate estate, 
 an appeal by 'her brought' up both suits for 
 review. Alexander v. Alexander, 85 Va. 353. 
 7 S. E. 335, 1 : 125 
 
 516. A motion for new trial is not the sole 
 remedy to cure an error in the amendment of 
 a decree of a probate court allowing com- 
 pensation to a broker who had rendered 
 services to an estate, so as to make the al- 
 lowance to the administrator, but the ques- 
 tion is open upon appeal from a decree set- 
 tling the account and ordering distribution 
 of the estate. Re Willard's Estate, 139 Ca.. 
 501, 73 Pac. 240, 64: 554 
 
 517. A separate appeal must be taken 
 from a death warrant signed after judgment, 
 to bring the question of its regularity before 
 the appellate court. People v. Ebanks, 117 
 Cal. 652, 49 Pac. 1049, 40: 269 
 Pleadings. 
 
 518. An order sustaining a motion to 
 strike out a portion of an answer is review- 
 able on appeal from the judgment, under 
 Mont. Cede Civ. Proo. 290, which designates 
 the orders which shall be deemed to have 
 been excepted to, and 306, providing that 
 the judgment roll shall contain all pleadings 
 and conies of orders overruling or sustaining 
 demurrers. Bank of Commerce v. Fuqua, 1 1 
 Mont. 285, 28 Pac. 291. 14: 588 
 Injunction. 
 
 519. Error in continuing a temporary in- 
 junction until final hearing cannot be cor- 
 rected on appeal from the final judgment 
 where the trial court itself dissolved the in- 
 junction at the final hearing. Watkins v. 
 Dorris. 24 Wash. 636, 64 Pac. 840, 54: 199 
 Contempt. 
 
 520. An appeal from an equity decree will 
 not bring up for review an order discharging 
 a rule to show cause why a party shall not 
 be punished for contempt in disobeying an 
 
 njunction awarded in the suit. Alderson v. 
 Kanawha County Ct. Comrs. 32 W. Va. 640, 
 9 S. E. 868, 5: 334 
 
 i. Discretionary Matters. 
 
 
 1. In General; Costs; Contempt. 
 
 521. There is no abuse of discretion on the 
 part of the trial court in limiting an abut- 
 ting owner who sues for injuries to his busi- 
 ness by the unreasonable closing of a street 
 to a period of three months after the street 
 is reopened in showing the difference, in 
 profits between the times wfaen the street 
 was open and closed. Lund v. St. Paul, M. 
 M. R. Co. 31 Wash. 286, 71 Pac. 1032, 
 
 61 : 506 
 
 522. When the penalty for violation of a 
 statute or ordinance is left to the discretion 
 if the trial judge, within certain fixed limits, 
 his judgment will not be disturbed upon the 
 ground that the sentence was excessive, if 
 the penalty imposed does not exceed the 
 limit provided. Fitts v. Atlanta, 121 Ga. 
 567, 49 S. E. 793, . 67: 803 
 
 522a. A decision of the general term of 
 the supreme court of New York refusing a 
 writ of mandamus to restore to the office of 
 manager of a charitable institution a person 
 who alleges himself to be wrongfully exclud- 
 ed therefrom will not be reversed by the 
 court of appeals, where serious doubt exists 
 upon the question of claimant's title to the 
 office. People ex rel. Nicoll v. New York 
 Infant Asylum, 122 N. Y. 190, 25 N. E. 241, 
 
 10: 381 
 Costs. 
 See also supra, 386. 
 
 523. Costs on motion are regarded on ap- 
 peal as in the discretion of the court below. 
 Below v. Robbins, 76 Wis. 600, 45 N. W. 416, 
 
 8: 467 
 Contempt. 
 
 524. The necessity for instituting con- 
 tempt proceedings to vindicate its authority 
 In case of publication of newspaper articles 
 calculated to prejudice the jury in a pend- 
 ing trial is for the trial court, and will not 
 be considered on appeal. Telegram News- 
 paper Co. v. Com. 172 Mass. 294, 52 N. E. 
 445, 44: 159 
 Rehearing. 
 
 525. Refusal of a -rehearing is not review- 
 able on appeal. Cincinnati, N. O. & T. P. 
 R. Co. v. Gray, 41 C. C. A. 535, 101 Fed. 
 623, 50: 47 
 
 2. Continuance or Adjournment. 
 
 526. The suspension of a trial for a short 
 time, against the protest of the defendant, 
 for the purpose of procuring the evidence of 
 an important witness, is a matter within 
 the discretion of the trial judge, and is not 
 error. Walker v. State, 116 G a. 537, 42 S. E. 
 787, 67:426 
 
 527. The denial of a continuance is not a 
 cause for reversal unless it was plainly erro- 
 neous and an abuse of discretion. State v. 
 Harrison, 36 W. Va. 729, 15 S. E. 982, 
 
 18: 224
 
 86 
 
 APPEAL AND ERROR, VII. i, 3. 4. 
 
 3. As to Pleadings. 
 
 528. An exercise of discretion in permit- 
 ting a plea and demurrer to the whole bill 
 at the same time is not a subject of appeal. 
 Alexander v. Alexander, 13 App. D. C. 334, 
 
 43: 906 
 Amendment. 
 
 529. It is within the discretion of the trial 
 court to permit a defendant to amend his 
 answer, and error cannot be predicated of 
 it, unless an abuse of discretion is shown, 
 and prejudice resulting therefrom. Scherar 
 v. Prudential Ins. Co. 63 Neb. 530, 88 N. W. 
 687 r 56:611 
 
 530. The filing of amended petitions, even 
 at or near the final hearing of the case, is 
 entirely within the discretion of the trial 
 court, and not reviewable on appeal. Cin- 
 cinnati, N. O. & T. P. R. Co. v. Gray, 41 
 C. C. A. 535, 101 Fed. 623, 50: 47 
 
 531. The refusal of the trial court to per- 
 mit an amendment of a pleading is not an 
 abuse of discretion, biensgaard v. St. Paul 
 Real-Estate Title Ins. Co. 50 Minn. 429, 52 
 N.-W. 910, 17:575 
 
 532. Refusal to grant leave to amend the 
 complaint so as to set up a new issue, after 
 the introduction of the evidence, is not re- 
 viewable on appeal. Allen v. North Des 
 Moines M. E. Church, 127 Iowa. 96, 102 N. 
 W. 808, 69: 255 
 
 4. As to Evidence; Witnesses. 
 
 533. The practice of the court as to per- 
 mitting a paper put in evidence during the 
 examination of a witness to be read by 
 counsel or witness is not reviewable on ap- 
 peal. Press Pub. Co. v. Monroe, 19 C. C. A. 
 429, 38 U. S. App. 410, 73 Fed. 196, 51: 353 
 
 534. The discretion of the trial court in 
 determining whether a witness outside the 
 state is "inaccessible" so as to admit his 
 former evidence is not reviewable. Atlanta 
 & C. Air Line R. Co. v. Gravitt, 93 Ga. 369, 
 20 S. E. 550. 26: 553 
 Admission of evidence. 
 
 535. The sufficiency of the verification of 
 photographs to permit their admission in 
 evidence is not a mater of exception. Van 
 Houten v. Morse, 162 Mass. 414, 38 N. E. 
 705, 26: 430 
 
 536. Permitting the introduction in evi- 
 dence of records of deeds to prove title to 
 real estate in ejectment, instead of requir- 
 ing the production of the original deeds, 
 rests largely in the discretion of the court, 
 which will not be overruled unless there 
 has been an abuse of discretion. Rupert v. 
 Penner, 35 Neb. 587, 53 N. W. 598. 17: 24 
 Exclusion of evidence. 
 
 537. Exclusion of questions with reference 
 to prior ailments of the plaintifi' in an ac- 
 tion for personal injuries is within the dis- 
 cretion of tho court, where a physician who 
 lias treated the plaintiff has testified that he 
 does not think there was any connection be- 
 tween prior ailments and the condition after 
 the accident, although it might be possible 
 that other physicians, if examined, would 
 have a different opinion. Boomer v. Wilbur, 
 17<i Mass. 482. 57 N. E. 1004. 53: 172 
 
 538. It is within the discretion of the 
 court to exclude the question "whether the 
 sheathing of the church was burned by the 
 use of the torch," in a suit for insurance on 
 a building burned while the paint was being 
 burned off by such a torch. First Cong. 
 Church v. Holyoke Mut. F. Ins. Co. 158 Mass. 
 475, 33 N. E. 572, 19: 587 
 
 539. It is not an abuse of discretion which 
 will warrant a reversal of the judgment of 
 a trial judge, to refuse to permit a witness 
 to be asked on cross-examination as to what 
 he testified to in a former action on the sub- 
 ject of his own arrest and conviction on 
 criminal charges, where he has denied both 
 that he ever was arrested and that he ad- 
 mitted in the former suit that he had been. 
 Helwig v. Laschowski, 82 Mich. 619, 46 N. W. 
 1033, 10: 378 
 View by jury. 
 
 540. The refusal to send the jury to view 
 premises at a particular time during the 
 trial and before the close of the testimony 
 cannot be complained of, where the place 
 had been fully described, and they were sent 
 to make the view at the close of the testi- 
 mony. Kentuckv C. R. Co. v. Smith, 93 
 Ky. 449, 20 S. W. 392, . 18: 63 
 
 541. The refusal to allow a jury to view 
 water in a pond and then after it has been 
 passed through filters, on an issue as to its 
 pollution, is within the discretion of the 
 court, and not subject to review. Rudolph v. 
 Pennsylvania S. V. R. Co. 186 Pa. 541, 40 
 Atl. 1083, 47: 782 
 Tests. 
 
 542. Refusal to permit a test of the rate 
 of 'speed at which editors can digest re- 
 ported cases, when offered on the hearing of 
 a copyright case to meet the contention 
 that the rate at which they had worked in- 
 dicated unfair use of syllabi, is not error, 
 since the matter is largely within the dis- 
 cretion of the trial court. West Pub. Co. 
 v. Lawyers' Co-Operative Pub. Co. 51 U. S. 
 App. 216, 79 Fed. 756, 25 C. C. A. 648, 
 
 35: 400 
 
 Rev'g 64 Fed. 360, 25: 441 
 
 Competency of witness; experts. 
 
 543. The examination of an infant witness 
 as to his competency must be left, necessar- 
 ily, to the discretion of the trial judge; and 
 this discretion will not be reviewed by an 
 appellate court unless the error of the judge 
 be palpable; and plain and amount to an 
 abuse of his discretion. Uttermohlen v. 
 Hogg's Run Min. & Mfg. Co. 50 W. Va. 457, 
 40 S. E. 410, 55: 911 
 
 544. The decision of a trial judge in ad- 
 mitting a witness to testify as an expert 
 will not be reviewed unless it is clearly 
 shown to have been based on incompetent 
 or insufficient evidence. State v. Main, 69 
 Conn. 123, 37 Atl. 80, 36: 623 
 
 545. The question whether a witness has 
 such special knowledge or experience as to 
 qualify him to give opinion evidence is a 
 question of fact for the determination of the 
 trial court, whose finding is not reviewable 
 on writ of error, if there be any legal evi- 
 dence to support it. Burns v. Delaware & A.
 
 APPEAL AND ERROR, VII. i, 5, 6. 
 
 87 
 
 Teleg. & Tcleph. Co. (X. J. Err. & App.) 
 70 N. J. L. 745, 59 Atl. 220, 592, 67: 95G 
 Hypothetical questions. 
 
 54(1. Tin- rejection of a hypothetical ques- 
 tion involving assumptions concerning which 
 ne evidence has been offered is not ground 
 <if error. Porter v. Ritch, 70 Conn. 235, 39 
 Atl. 169. 3!): 353 
 
 Leading questions. 
 S-e also infra. 933. 
 
 f>17. The admission of a leading question 
 <-annot lie reviewed on appeal. Trenton 
 Pass. R. Co. v. Cooper (N. J. Err. & App.) 
 <JO N. -J. L. 219, 37 Atl. 730, ., 38: 637 
 
 548. The permission of leading questions 
 is much in the discretion of the trial court, 
 and a case wrll not be reversed on that 
 account unless the discretion was abused. 
 (iomlv v. \Verbe. 117 Ind. 154, 19 N. E. 764, 
 
 3: 114 
 
 Cross-examination. 
 ,See also supra. 539. 
 
 54!i. The court on appeal will not interfere 
 with the discretion of the trial court as to 
 the extent of the cross-examination of wit- 
 -.-. where a just verdict has been ren- 
 dered and the testimony objected to could 
 Jiot have improperly affected the result. 
 Lafavette Bridge Co', v. Olsen, 47 C. C. A. 
 -367. 10S Fed. 335, . 54: 33 
 
 Credibility of witness. 
 
 55<). The decision of the trial court as to 
 the credibility of witnesses will not be re- 
 viewed on appeal. .Joseph v. Macowsky, 96 
 1'aJ. 518, 31 Pac. 914, 19: 53 
 
 Committing witness for perjury. 
 
 551. Committing to jail one of the wit- 
 tu->-cs for defendant in the presence of the 
 jury, on account of alleged false evidence, is 
 within the discretion of the judge, for 
 which no legal ivror can be assigned. Peo- 
 ple v. Hayes. 140 X. V. 484, 35 X. E. 951, 
 
 23: S3(l 
 
 ">. Injunction; Receivers. 
 
 552. The grant of an injunction will not 
 be disturbed on appeal, unless the discretion 
 of the court was abused. Platt Bros. & Co. 
 v \Vat.-rburv. 72 Conn. 531, 45 Atl. 154, 
 
 48: 691 
 
 ~>.~>:>. The decision of the lower court in 
 refusing to grant an injunction on the 
 ground of fraud against creditors will not 
 l)e reviewed on appeal. Powell v. Kelly, 82 
 <Ja. 1, 9 S. E. 278, 3: 139 
 
 554. The granting of a preliminary in- 
 junction in an action to enjoin the abstrac- 
 tion of ore in alleged violation of plaintiff's 
 mining claim is so largely a matter of dis- 
 cretion that it will be sustained upon appeal, 
 where there has been a reasonable showing 
 made in support of the application in the 
 <"ourt below. Parrot Silver & C. Co. v. 
 Hein/.e. 25 Mont. 139, 64 Pac. 326. 53: 491 
 
 555. When the matter in dispute is one 
 of law merely, the Michigan supreme court 
 will 'review the action of a circuit judge in 
 granting, an injunction. Ionia. E. & 1?. 
 Partners' Mut. !'. Ins. Co. v. Ionia Circuit 
 Judge, 100 Mich. 606. 59 X. W. 250, 32: 481 
 
 556. The rule that the dissolving of an 
 
 injunction is discretionary, and that the re- 
 fusal of the court below to dissolve it will 
 not be disturbed unless the discretion is 
 abused, does not apply to cases involving 
 questions of law arising upon the face of the 
 pleading. Burlington, C. R. & M. R. Co. v. 
 De\ . 8-2 Iowa, 312, 48 X. W. 98, 12: 436 
 
 Receivers. . 
 
 557. The sufficiency of a complaint on an 
 appeal from an interlocutory order appoint- 
 ing a receiver is reviewable so far as it re- 
 lates to the statement of a cause of action 
 for the appointment of the receiver. Su- 
 preme Sitting O. of I. H. v. Baker, 134 Ind. 
 293, 33 X. E. 1128, 20: 210 
 
 558. The exercise of discretion in the ap- 
 pointment of a receiver will not be inter- 
 fered with on appeal, unless the discretion 
 is abused, if the evidence is conflicting. 
 Simmons Hardware Co. v. Waibel, 1 S. D. 
 488, 47 X. W. 814, 11: 267 
 
 6. Conduct of Trial; Jury. 
 
 559. The decision of t'he trial court as to 
 impaneling a jury to inquire into the san- 
 ity of a prisoner will not be reversed, if 
 at all, unless it manifestly appears that the 
 decision was wrong or that the court abused 
 its discretion. State v. Harrison, 36 W. Va. 
 729, 15 S. E. 982, 18: 224 
 
 560. In an action for the recovery of mon- 
 ey, what questions of fact shall be submitted 
 to the jury for specific findings is in the 
 discretion of the trial court. Stensgaard v. 
 St. Paul Real-Estate Title Ins. Co. 50 Minn. 
 429, 52 X. W. 910, 17: 575 
 Summoning of jury. 
 
 561. Permitting an officer who had heard 
 the evidence on a former trial of accused, 
 and had formed an opinion as to his guilt, 
 to summon the jury for the new trial, is 
 not such an abuse of discretion as to re- 
 quire a new trial, where it affirmatively ap- 
 pears that he had no actual bias or prejudice 
 against accused, and there is nothing to 
 show that he used his office to the detri- 
 ment of the prisoner. State v. Hall, 16 S. 
 D. 6, 91 N. W. 325, 65: 151 
 Selection of jury. 
 
 562. Xo exception is, by the Idaho stat- 
 ute, allowed to an order overruling a chal- 
 lenge to a juror for general cause. Terri- 
 tory v. Evans, 2 Id. 651, 23 Pac. 232, 7: 646 
 
 563. The decision of the trial court as to 
 the qualification of jurors may be reviewed 
 on appeal when it raises legal questions. 
 People v. Mol. 137 Midi. 692, 100 N. W. 
 913, 68: 871 
 
 564. The discretion of the trial judge to 
 determine partiality or impartiality in a 
 jury is subject to review on appeal under a 
 constitutional guaranty to the accused of a 
 trial by an impartial jurv. State v. Stentz, 
 30 Wash. 134, 70 Pac. 241, 63: 807 
 
 565. A determination of the trial court 
 that a jurror is not disqualified by forming 
 and expressing an opinion basea on news- 
 paper accounts, because the court is satis- 
 fied, as the statute requires, that he can 
 render a fair and impartial verdict, is sub- 
 jfect to review on appeal, where he is held
 
 83 
 
 APPEAL AND ERROR, VII. i, 7. 
 
 competent after expressing a fixed opininon 
 as to the prisoner's guilt. Coughlin v. Peo- 
 ple, 144 111. 140, 33 N. E. 1, 19: 57 
 
 566. The decision of the trial court on the 
 competency of a juror in a criminal case, 
 after full investigation, is one of mixed law 
 and fact, and should not be disturbed by the 
 appellate court unless there be -clear ana 
 manifest error prejudicing the defendant. 
 Garlitz v. State, 71 Md. 293, 18 Atl. 39, 
 
 4: 601 
 
 567. In a criminal prosecution the deci- 
 sion of the trial judge on the question of 
 bias of a juror is not reviewable, except in 
 the absence of any evidence to support it; 
 in which case it is an error of law to which 
 an exception lies. People v. McQuade, 110 
 N. Y. 284, 18 N. E. 156, 1: 273 
 
 State v. Chapman, 1 S. D. 414, 47 N. W. 
 411, . 10: 432 
 
 568. Refusal to permit defendant's counsel 
 to ask a juror on his voir dire to what ex- 
 tent he had read about tne case in tihe news- 
 papers, after the statutory questions had 
 been exhausted, is not an abuse of discre- 
 tion -requiring reversal, if there is nothing 
 to show what counsel had any reasonable 
 expectation of proving. Com. v. Trefethen, 
 157 Mass. 180, 31 N. E. 961, 24: 235 
 
 569. A ruling admitting a juror whose 
 declaration that a present opinion would 
 not influence him is not absolute ; if excepted 
 to, it may be reverserd on appeal. People v. 
 McQuade, 110 N. Y. 284, 18 N. E. 156, 
 
 1: 273 
 
 570. Under N. Y. Code Grim. Proc. 455, 
 subd. 2, exceptions lie to erroneous rulings 
 of the trial court excluding jurors, and are 
 reviewable on appeal. Id. 
 Discharge of jury; withdrawal of juror. 
 As to Withdrawal of Juror Generally, see 
 
 Trial, I. e. 
 
 571. The discretion of the trial judge in 
 discharging the jury on a criminal trial be- 
 fore they render their verdict is judicial and 
 subject to review. State v. Nelson, 19 R. I. 
 467, 34 Atl. 990, 33: 559 
 
 572. The denial of a motion to withdraw a 
 juror cannot be reviewed on appeal if no 
 reason for the motion appears in the record. 
 Smith v. Times Pub. Co. 178 Pa. 481, 36 Atl. 
 296, 35: 819 
 Election between counts. 
 
 As to Election between Counts Generally, 
 see Trial, I. b. 
 
 573. The discretion of the trial court in 
 refusing to require the state to elect upon 
 which count of an information it will pro- 
 ceed in a criminal case, where each count 
 charges a separate defendant as principal 
 and the others as accessories, will not be 
 reviewed on appeal, where under the stat- 
 utes, all the defendants might be regarded 
 as principals, and the various counts in the 
 information merely charge that the crime 
 had been committed by defendants either 
 as principals or as accessories, in such a way 
 that the charge might be stated according 
 to the facts which the testimony should es- 
 tablish. Tuttle v. People, 33 Colo. 24.3, 79 
 Pac. 1035, 70: 3S 
 
 Remarks of counsel. 
 
 As to Argument of Counsel Generally, see- 
 Trial, I. d. 
 
 574. Remarks of counsel are not assign- 
 able for error, being under the discretionary 
 control of the court below, Smith v. Times. 
 Pub. Co. 178 Pa. 481, 36 Atl. 296, 35: 819 
 
 575. The appellate court will not declare 
 remarks of counsel for the state in address- 
 ing the jury in a criminal case to be error,, 
 in the absence of a clear abuse of the dis- 
 cretion vested in the trial court to control 
 counsel. State v. Pancoast, 5 N. D. 516, 67 
 N. W. 1052. 35: 518- 
 Nonsuit. 
 
 576. The refusal of the court to grant a. 
 nonsuit is not assignable as error. Kelly v. 
 Bennett, 132 Pa. 218, 19 Atl. 69, 7: 120- 
 
 577. The -relieving of a plaintiff from a 
 stipulation submitting the case on a motion 
 for nonsuit, and allowing him to file an 
 amended complaint, is discretionary, and not 
 reviewable on appeal. Robinson v. Exempt 
 Fire Co. 103 Cal. 1, 36 Pac. 955, 24: 715- 
 Refusal to reopen case. 
 
 As to Order of Proof Generally, see Trial,. 
 20-26. 
 
 578. The refusal to open the case after 
 the trial had closed, on the ground of the- 
 discovery of important testimony, is not 
 error where the witnesses had been previous- 
 ly summoned, except one who was an em- 
 ployee of the party moving to open the- 
 case. Kentucky C. R. Co. v. Smith, 93 Ky. 
 449, 20 S. W. 392, 18: 6$ 
 
 7. Vacation of Judgment or Verdict; New 
 Trial. 
 
 579. A decision upon a motion for a new 
 trial is not the subject of review in a Fed- 
 eral appellate court. Morning Journal Asso. 
 v. Rutherford, 1 U. S. App. 296, 2 C. C. A. 
 354, 51 FecL 513, 16: 80 
 
 580. If substantial justice has been denied 
 by refusal of a new trial in a criminal case, 
 the appellate court will not hesitate to re- 
 verse the ruling. State v. Stowe, 3 Wash. 
 206, 28 Pac. 337, 14: 60 
 
 581. The exercise by the trial court of it 
 discretion as to the setting aside of a ver- 
 dict as being contrary to the clear weight 
 of the evidence will not ordinarily be re- 
 viewed on appeal. Hancock v. Western U. 
 Teleg. Co. 137 N. C. 497, 49 S. E. 952, 
 
 69: 40 
 
 582. The granting of a new trial for new- 
 ly discovered evidence is so peculiarly a mat- 
 ter within the discretion of the trial court 
 that it will not be interfered with on appeal, 
 save where a clear abuse of judicial discre- 
 tion is made out. Chambliss v. Hass, 125 
 Iowa, 484, 101 N. W. 153, 68: 126 
 
 583. The discretion of the court in setting 
 aside a verdict for inadequacy of damages- 
 is not reviewable on appeal. Benton v. Col- 
 lins, 125 N. C. 83, 34 S. E. 242, 47: 3fr 
 
 584. The refusal of a new trial on the 
 ground of fraud in the conduct of the case 
 and corruption of the jury will not be in- 
 terfered with on appeal in the absence of 
 anything to show that the trial court abusei
 
 APPEAL AND ERROR, VII. j, 13. 
 
 89 
 
 Its discretion. Callihan v. Washington Wa- 
 ter Power Co. 27 Wash. 154, 67 Pac. 697, 
 
 56: 772 
 Vacation of judgment. 
 
 585. An application made under N. D. Rev. 
 Codes 1899, 5298, to vacate a judgment en- 
 tered by default is addressed to the sound 
 judicial discretion of the trial court, and in 
 such cases the order of the court below will 
 not be disturbed unless it clearly appears 
 that the same involves an abuse of discre- 
 tion. Wheeler v. Castor, 11 N. D. 347, 92 N. 
 W. 381, 61: 746 
 
 586. The vacation of a judgment by de- 
 fault at the term during which it was ren- 
 dered will not be reversed unless there is a 
 clear abuse of discretion; and a stronger 
 showing of abuse must be Inade than in 
 cases where a trial on the merits is denied. 
 Bigler v. Baker, 40 Neb. 325, 58 N. W. 1026. 
 
 24: 255 
 
 j. Questions Not Raised Below. 
 1. In General. 
 
 Necessity and Sufficiency of Exceptions Be- 
 low, see supra, V. 
 
 Mode of Raising Objection below, see supra, 
 V. d. 
 
 587. Objections not raised by the briefs 
 in the Illinois appellate court cannot be re- 
 newed or made tor the first time in the su- 
 preme court. Fidelity & C. Co. v. Water- 
 man, 161 111. 632, 44 N. E. 283, 32: 654 
 
 588. Where no objection to the clerk as a 
 custodian of a note was made in the court 
 beiow, it cannot be raised on appeal. Brandt 
 v. Allen, 76 Iowa, 50, 40 N. W 7 . 82, 1 : 653 
 
 589. Objections to the report of a com- 
 missioner appointed to purge the usury 
 from bills of exchange cannot be taken for 
 the first time on appeal. Taylor v. Citizens' 
 Sav. Bank, 114 Ky. 577, 71 S. W. 520, 
 
 61: 90 
 
 590. The question of the rate at which 
 executors' commissions should be computed 
 cannot be raised for the first time on ap- 
 peal. Re Ricker's Estate, 14 Mont. 153, 35 
 Pac. 900, 29: 622 
 
 591. The constitutionality of a statute 
 making the third verdict conclusive as to the 
 amount of damages cannot be attacked for 
 the first time on appeal. Illinois C. R. Co. 
 v. Minor, G9 Miss. 710, 11 So. 101, 16: 627 
 Irregularities in proceedings. 
 
 592. Failure of the clerk to indorse the 
 word "Filed" upon an affidavit is a mere ir- 
 regularity which may be amended at any 
 time before or during trial, and objection to 
 it cannot be made for the first time on ap- 
 peal. State v. Coleman, 186 Mo. 151, 84 S. 
 W. 978, 69: 381 
 
 593. Objections to the impaneling or or- 
 ganization of a grand jury on the ground of 
 irregularities, cannot be made for the first 
 time in the appellate court. They must be 
 taken advantage of by plea before trial or 
 they are waived. Parker v. People, 13 Colo. 
 155, 21 Pac. 1120, 4: 03 
 
 Remarks of counsel. 
 
 Sufficiency of Exception or Objection, see- 
 supra, 285, 286. 
 Necessity for Exceptions, see supra, 335, 336. 
 
 594. Failure to object to remarks of coun- 
 sel in argument to the jury will be regarded 
 as a waiver of any irregularity in them. 
 Gutzman v. Clancy, 114 Wis. 589, 90 N. W. 
 1081, 58: 744 
 
 595. If the trial court sustains the objec- 
 tion of the losing party -to remarks by the 
 opposing counsel in argument to the jury, he 
 cannot complain on appeal that they were 
 not ruled out if he did not ask that they 
 should be. Illinois C. R. Co. v. Beebe, 174 
 111. 13, 50 N. E. 1019, 43: 21O 
 
 2. Jurisdiction. 
 
 Waiver of Objection to, by Pleading or Fail- 
 ure to Plead, see Pleading, 60-63. 
 See also infra, 670, 671. 
 
 596. Want of jurisdiction will be recog- 
 nized by the court, even if no objection is. 
 made. State ex rel. Perine v. Van-Beek, 87 
 Iowa, 569, 54 N. W. 525, 19: 622. 
 
 597. The question of the jurisdiction of a 
 county court to try a criminal prosecution 
 which it has certiiied to the circuit court, 
 after the refusal of the latter court to take 
 jurisdiction, cannot be raised for the first 
 time on appeal. Long v. People, 135 111. 435, 
 25 N. E. bdl, 10.: 48 
 
 598. The objection that there was a plain 
 and adequate remedy at law cannot be taken 
 in an equity suit for the first time on ap- 
 peal. Corey v. Sherman, 96 iowa, 114, o() 
 N. W. 232, <J4 N. W. 828, 32; 490 
 
 599. An objection that the cause should 
 not be tried as an equitable action will not 
 be considered when raised for the first time 
 on appeal. Adams County v. Hunter, 78-' 
 Iowa, 328, 43 N. W. 208, ' 6: 615- 
 
 3. Causes of Action or Defense; New The- 
 ories. 
 
 600. Objections to the litigation of a ques- 
 tion presented by the pleadings will not be- 
 considered when first made on appeal. 
 Greene v. Greene, 49 Neb. 546, 68 N. W. 
 947, 34: 110 
 
 601. The objection that the facts found 
 show that plaintiffs have no cause of action 
 cannot be raised on appeal under Conn. Gen. 
 Stat. 1135, where the appellant did not 
 make any claim of that kind in the court 
 below and does not make it in his assign- 
 ments of error, but merely presents it in hi 3- 
 brief. Gustafson v. Rustemeyer, 70 Conn. 
 125, 39 Atl. 104, 39: 644 
 
 602. A fatal objection either to a cause of 
 action or to a defense, when it is shown by 
 the record and could not have been obviated 
 if raised in the court below, may be raised 
 for the f"st time on appeal. Wilson v.. 
 Alabama G. S. R. Co. 77 Miss. 714, 28 So. 
 567. 52: 35T 
 
 603. That a statute providing for licens- 
 ing public warehousemen provides an effi- 
 cient remedy for violation of their duty can- 
 not be raised for the first time on appeal i
 
 J>0 
 
 APPEAL AND ERROR, VII. j, 3. 
 
 an equity case to enjoin them from using 
 their privileges to suppress competition. 
 Central Elevator Co. v. People ex rel. Mo- 
 loney, 174 111. 203, 5L N. E. 254, 43: Oo8 
 
 604. The correctness of the form of ac- 
 tion to hold a broker liable for assisting 
 the treasurer of a corporation in misappro- 
 priating its securities cannot be raised for 
 the first time on appeal, where all questions 
 pertaining to the liability were tried in 
 the form of action auopted. Jennie Clar.k- 
 son Home for Children v. Missouri, K. & T. 
 R. Co. 182 N. Y. 47, 74 N. E. 571, 70: 787 
 Unconstitutionality of statute. 
 
 See also supra, 591. 
 
 605. The unconstitutionally of a statute 
 cannot be set up for the first time on ap- 
 peal, as a ground of attack on instructions 
 which were given on other issues. Ross v. 
 Hawkeye Ins. Co. 93 Iowa. 222, 61 N. \V. 
 8.12, 34: 466 
 Remoteness of damages. 
 
 606. An objection that damages are too 
 remote, to which no allusion was made on 
 the trial, will not be considered on appeal. 
 O'Neill v. New York, O. & W. R. Co. 115 
 N. Y. 579, 22 N. E. 217, 5: 591 
 Res judicata. 
 
 607. A question of res judicata cannot be 
 raised on appeal when it is not presented by 
 the record. Consolidated Coal Co. v. Peers, 
 166 111. 361, 46 N. E. 1105, 38: 624 
 Laches. 
 
 608. The delay of a relator in instituting 
 proceedings by mandamus cannot be urged 
 for the first time in the appellate court. 
 Ray v. Wilson, 29 Fla. 342, 10 So. 613, 
 
 14: 773 
 Attachment. 
 
 609. The objection that the ground of an 
 attachment sued out on a large demand con- 
 
 . sisting of many items, some of which are 
 due and others not. is maintainable only as 
 to a few of them as representing debts 
 fraudulently contracted, must be made in 
 the trial court to be available on appeal. 
 Queen City Mfg. Co. v. Blalack (Miss.) No. 
 Off. Rep. 'IS So. 800, 31: 222 
 
 Liens. 
 
 610. Objection that liens cannot be liti- 
 gated in an action to determine adverse 
 estates and interests cannot be raised for 
 the first time on appeal, where such liens 
 have been passed \ipon without objection. 
 Power v. Bowdle. 3 N. D. 107, 54 N. W. 404, 
 
 21: 328 
 Negligence. 
 
 {ill. The defense that a passenger who 
 was injured by riotous conduct of fellow 
 passengers voluntarily placed himself in 
 danger thereof cannot be raised for the first 
 time on appeal. Illinois f. I{. Co. v. Minor. 
 159 Miss. 710, 11 So. 101. 16:627 
 
 Contracts. 
 
 612. A theory of defense to an action on 
 contract cannot be considered on appeal if 
 it was not presented in the answer, or the 
 issues tendered at the trial. National Cash 
 Register Co. v. Hill. 136 N. C. 272, 48 S. E. 
 637. 68: 100 
 
 613. An objection that a contract is void 
 upon its face for uncertainty cannot be 
 
 raised for the first time on appeal. Hodges 
 v. Kowing, 58 Conn. 12, 18 Atl. 979, 7: 87 
 
 614. Error in dismissing a petition set- 
 ting up a compromise agreement, the gen- 
 uineness of which is admitted by failure to 
 file an affidavit denying it, without giving 
 an opportunity to show lack of considera- 
 tion, fraud, rescission, or waiver, cannot be 
 set up for the first time on appeal, where no 
 such ground of attack was made on the 
 trial. Re Garcelon's Estate, 104 Cal. 570, 
 38 Pac, 414 3 32: 595 
 
 615. An objection to the validity of a 
 contract for a street improvement, not made 
 in the court below, cannot be considered on 
 appeal from a judgment of sale for nonpay- 
 ment of a special assessment. Fiske v. 
 People ex rel* Raymond, 188 111. 206, 58 N. 
 E. 985, 52: 291 
 
 616. An objection by defendant that plain- 
 tiff's claim has not matured cannot be urged 
 for the first time on appeal. Wright v. Lon- 
 don F. Ins. Asso. 12 Mont. 474. 31 Pac. 87, 
 
 19: 211 
 
 617. Where the answer sets up a counter- 
 claim upon a note of the plaintiff not due at 
 the time of the trial, and no objection is 
 made that it is premature, but the case is 
 tried throughout, including the charge of the 
 court not excepted to, on the theory that it 
 is a proper counterclaim, the plaintiff must 
 be held to have waived the objection that 
 the note was not yet due. Stensgaard v. 
 St. Paul Real-Estate Title Ins. Co. 50 Minn. 
 429, 52 N. W. 910, 17: 575 
 Assessments according to frontage. 
 
 618. The unconstitutionality of arbitrary 
 assessments per front foot will not be con- 
 sidered when the question has not been pre- 
 sented to the lower court and the assessment 
 complained of is void for other reasons. 
 Chicago, R. I. & P. R. Co. v. Ottumwa, 112 
 Iowa, 300, 83 N. W. 1074, 51: 763 
 Corporate matters. 
 
 619. The wrongful refusal of inspection of 
 the books of a corporation, on the broad 
 ground that the shareholder had no right to 
 inspect them at any time or for any pur- 
 pose, cannot be sustained on appeal on the 
 ground that it was not shown that his de- 
 mand was made during business hours, or 
 at the proper place, or that the person mak- 
 ing it was his agent. State ex rel. Weinberg 
 v. Pacific Brewing & M. Co. 21 Wash. 451, 58 
 Pac. 584, 47: 208 
 
 620. The suggestion that a foreign insur- 
 ance company had no avithority to do busi- 
 ness in the state comes too late on appeal 
 to prevent the enforcement of an assessment 
 upon premium notes. Warner v. Delbridge 
 & C. Co. 110 Mich. 590, 68 N. W. 283, 34: 701 
 Criminal cases. 
 
 First Raising, on Petition for Rehearing, see 
 infra, 1262. 
 
 621. A conviction for resisting an officer 
 in arresting the defendant for breach of the 
 peace without a warrant cannot be sus- 
 tained on appeal by the claim that defendant 
 was liable to arrest for being intoxicated in 
 a public street. People v. Johnson, 86 Mich. 
 175, 48 N. W. 870, 13: 163
 
 APPEAL AND ERROR, VII. j, 4, 5. 
 
 91 
 
 4. As to Pleadings; Indictments, etc. 
 
 Mode of Preserving Question for Review, see 
 
 supra, 343, 344. 
 See also supra, 284; infra, 647. 
 
 622. Since the Colorado Code is liberal in 
 allowing amendments if applied for in apt 
 time, ordinary defects in pleadings and pro- 
 ceedings will not be considered when ob- 
 jected to for the first time, on appeal. John- 
 son v. Robinson Consol. Min. Co. 13 Colo. 
 258, 22 Pac. 459, 5 : 769 
 
 <>2;}. A judgment will not be reversed for 
 failure to sustain a demurrer for* reasons 
 not specified therein. Bristol v. New Eng- 
 land R. Co. 70 Conn. 305, 30 Atl. 235, 
 
 40: 479 
 Complaint, declaration, or petition. 
 
 024. The vagueness and indefiniteness of- a 
 complaint cannot be considered on appeal, 
 where the objection was not taken in the 
 court below by motion or demurrer. Orman 
 v. MaiHiix. 17 Colo. 564. 30 Pac. 1037. 
 
 17: 602 
 
 625. The question of whether a petition 
 states a cause of action, or discloses grounds 
 sufficient for the granting of equitable re- 
 lief, may be raised at any stage of the 
 proceedings in the appellate court, up to 
 und including the filing of a motion for a 
 rehearing. Vila v. Grand Island E. L. I. & 
 C. S. Co. 68 Neb. 222, 97 X W. 613, 63: 791 
 
 626. Although the statute allows com- 
 plaint for the first time in the appellate 
 court, in case of absence f/om the com- 
 plaint of averments c-sential to the cause- 
 of action, or the presence of some averment 
 which absolutely destroys the right to re- 
 cover, yet mere uncertainty or inadequacy 
 of averment, which might have been amend- 
 ed or cured, will be deemed to have been 
 waived by a defendant who proceeds with 
 the trial to final judgment, without objec- 
 tion. South Bend v. Turner, 156 Ind. 418, 
 <50 N. E. 271, 54:300 
 
 627. The defect in a complaint which fails 
 to state a cause of action because an es- 
 sential fact is pleaded only by way of ex- 
 hibit cannot be taken advantage of for the 
 first time on appeal. \\ right v. Sherman. 
 3 S. D. 290, 52 X. W. 1093, 17: 792 
 
 628. An objection to the declaration in 
 an action for personal injuries, based on a 
 formal defect in that it did not set forth 
 any duty owing from defendant to plaintiff 
 cannot be raised before the appellate court 
 in the first instance. Cox v. American Agri. 
 Chemical Co. 21 15. I. 503, 53 Atl. 871. 
 
 60: 629 
 
 629. The question whether or not a pe- 
 tition to recover damages for injuries co 
 the person and for wrongful death, to which 
 a demurrer was sustained, states a cause of 
 action, may be reviewed on appeal, although 
 the causes of action were improperly joined, 
 where no motion to require plaintiff to elect 
 on which he would proceed was made. Fore- 
 man v. Taylor Coal Co. 112 Ky. 845. 66 S. 
 W. 1044, 57 : 447 
 
 630. Ata attack upon one of several para- 
 graphs of a complaint, made for the first 
 
 time in the assignment of errors, will le un- 
 availing, even although the paragraph as- 
 sailed is radically defective. Louisville, M. 
 A. & C. R. Go. v. Corps, 124 Ind. 427. 24 N. 
 E. 1046, 8: 636 
 
 631. An allegation that defendant "at and 
 within" a certain county, did unlawfully 
 fail to support his sister, who was a pauper, 
 will not be held defective in failing to state 
 that she is likely to become a charge upon 
 that county, when it is questioned for the 
 first time on appeal. People use of Peoria 
 County v. Hill, 163 111. 186, 46 N. E. 796, 
 
 36: 634 
 
 632. Failure to allege that an officer was 
 not elected his own successor, in a complaint 
 for defalcation after the expiration of the 
 period for whic'h he was elected, is not fatal 
 when first asserted on appeal, where it is 
 alleged that the term expired on a certain 
 day but that he contested the election held 
 on that day, and refused to surrender the 
 office for a certain time during whic'h he 
 was a de facto officer. Baker City v. Mur- 
 phy, 30 Or. 405, 42 Pac. 133, 35: 88 
 Answer. 
 
 633. An objection that an answer does not 
 set up a defense is not available when made 
 for the first time on appeal, and all the 
 facts pertaining to that defense were proved 
 on the trial without objection. Fowler v. 
 Bowerv Sav. Bank, 113 N. Y. 450, 21 N. E. 
 172. 4: 145 
 Reply. 
 
 634. Reply to a counterclaim is waived 
 where both, paitiea treat the new matter as 
 traversed, and put in evidence thereon with- 
 out objection, and obtain a decision upon it. 
 Power v. Bowdle, 3 N. D. 107, 54 N. W. 404, 
 
 21: 328 
 Indictments, etc. 
 
 635. The question of the invalidity of an 
 information may be raised for the first time 
 in the appellate court. State v. Coleman, 
 ISli Mo. 151, 84 S. W. 978, 69: 381 
 
 (536. An objection that a criminal com- 
 plaint was verified only upon information 
 and belief is too late when raised for the 
 first time on appeal, after trial and convic- 
 tion upon plea of not guilty. Lawrence v. 
 Monroe. 44 Kan. 607, 24 Pac. 1113. 10: 520 
 
 637. A motion for arrest of judgment for 
 defect in the indictment in a criminal case 
 may bfe made for the first time in the ap- 
 pellate court. State v. Marsh. 134 N. C. 184. 
 7S. E.6, 67:179 
 
 638. An objection cannot be first made on 
 appeal, to the fact that the name of a wit- 
 ness \\-as not indorsed upon an information. 
 People v\ De France. 104 Mich. 563. 62 N. 
 \V. 70!). 28: 130 
 
 639. An objection to the court's permitting 
 a copy of an information to be filed iipon 
 discovering that the original had been lost, 
 on the ground that the copy was not a 
 true one, cannot be raised for the first time 
 on appeal. Ixing v. People. 135 111. 435. 25 
 N. K. 851. 10:48 
 
 5. As to Evidence: Witnesses; Variance. 
 
 640. The fact that a witness tesetified on
 
 93 
 
 APPEAL AND ERROR, VII. j, 6. 
 
 behalf of the state in a criminal case with- 
 out having first been sworn is not ground 
 for error, where no objection was made at 
 the hearing before he was fully cross-ex- 
 amined, btate v. Hope, 100 Mo. 347, 13 S. 
 W. 490, 8: 608 
 
 641. Parties excepting to a refusal by the 
 court to hold that a given state of facts, if 
 proved, would constitute a complete defense 
 in law, cannot insist on appeal that the 
 facts offered to be proved would have been 
 competent evidence upon an issue of fact 
 not distinctly presented. Dale v. See (N. 
 J. Err. & App.) 51 N. J. L. 378, 18 Atl. 306, 
 
 5: 583 
 Form of question. 
 
 642. Objections to the form of hypotheti- 
 cal questions addressed to expert witnesses 
 must be made in the trial court. Western 
 U. Teleg. Co. v. Church, 3 Neb. (Unof.) 22, 
 90 N. W. 878, 57:905 
 Admission. 
 
 Sufficiency of Objection or Exception, see 
 
 supra, V. a, 2, a. 
 Necessity for Exceptions, see supra, 332, 
 
 332a. 
 
 643. Objections to the admission of testi- 
 mony cannot be urged for the first time on 
 appeal. Rupert v. Penner, 35 Neb. 587, 53 
 N. W. 598, 17: 824 
 
 Jacksonville, T. & K. W. R. Co. v. Penin- 
 sular Land, T. Mfg. Co. 27 Fla. 1, 157, 2 
 So. 661, 9 So. 689, 17: 33 
 
 644. Objection that evidence was incompe- 
 tent on the question of damages cannot be 
 made for the first time on appeal, where the 
 objections in the court below were merely 
 to the competency of the witnesses and as 
 to the materiality of the evidence at that 
 stage of the case. Evans v. Keystone Gas 
 Co. 148 N. Y. 112, 42 N. E. 513, 30: 651 
 
 645. When, npon a trial, incompetent or 
 illegal evidence, but which tends to prove 
 the case of the side offering it, is admitted 
 without objection, and considered by the 
 jury in agreeing upon their verdict, the in- 
 wmi potency or illegality of such evidenct 
 will not be considered on error or appeal. 
 Missouri P. R. Co. v. Vandevente.', 20 Neb. 
 222, 41 N. W. 998, 3: 129 
 
 640. Objections to answers not responsive 
 to a question- cannot be considered on appeal 
 where no objection was made below, Keipe 
 v. Elting, 89 Iowa, 82, 56 N. W. 285, 26: 769 
 
 647. The admission in evidence of plead- 
 ings in another action, which contain aver- 
 ments which are properly admitted, cannot 
 be questioned on appeal on the ground of 
 immaterial matter in the reply, unless the 
 special attention of the trial court was 
 called thereto, and some action in that re- 
 spect was asked. Holman v. Omaha & C. B. 
 Ry. & Bridge Co. 117 Iowa, 268, 90 N. W. 
 833, 62: 395 
 Exclusion. 
 
 Sufficiency of Objection o: Exception, see 
 
 supra, V. a, 2, b. 
 Necessity for Exceptions, see supra, 332. 
 
 648. The trial court cannot be convicted 
 of error on appeal in excluding evidence 
 which was not admissible for the purpose 
 for which it was offered because it was ad- 
 
 missible for purposes first suggested in the- 
 appellate court. Gustafson v. Rustemeyer, 
 70 Conn. 125, 39 Atl. 104, 39: 644 
 
 Sufficiency of evidence. 
 Mode of Raising Question as to, see supra, 
 
 346. 
 See also supra, 334. 
 
 649. An objection that there is no evidence 
 that the defendant was operating a cable 
 railroad at the time of the accident will 
 not be considered on appeal, when no such 
 question was raised on the trial, and the 
 operation of the road by defendant is an 
 admitted fact in the case. Winter v. Kansas 
 City Cable R. Co. 99 Mo. 509, 12 S. W. 652, 
 
 6: 536 
 Variance. 
 See also supra, 333, 621. 
 
 650. Variance between pleading and proof 
 is not ground for reversal when no objection, 
 was made in the trial court. Colfax Moun- 
 tain Fruit Co. v. Southern P. Co. 118 Cal. 
 648, 50 Pac. 775, 40: 78- 
 
 651. The objection of variance cannot -be 
 first raised on appeal under Wis. Rev. Stat. 
 2669, providing that no variance shall be 
 deemed material unless it mislead. Wech- 
 selberg v. Flour City Nat. Bank, 24 U. S. 
 App. 308, 12 C. C. A. 56, 64 Fed. 90, 26: 47O 
 
 652. A defendant which has defended an 
 action on the theory that it charged negli- 
 gence cannot, for the first time, on appeal,, 
 raise the question of variance, on the ground 
 that the complaint charged it with wilful 
 wrong. Broughel v. Southern New England 
 Teleph. Co. 72 Conn. 617, 45 Atl. 435, 
 
 49: 404 
 
 653. An objection for variance between 
 pleading and proof cannot be raised for the- 
 first time on appeal, where the statute per- 
 mits an amendment or a finding of facts in, 
 such cases, which may be followed by judg- 
 ment according to the right of the case, if 
 the opposite party will not be prejudiced^ 
 Bertha Zinc Co. v. Martin, 93 Va. 791, 22 
 S. E. 869, 70: 999- 
 Limiting number of witnesses. 
 
 654. An order limiting the number of wit- 
 nesses on each side on a certain point, when 
 made at or near the beginning of a trial 
 without objection by either party, cannot be 
 complained of afterwards. McConnell v. 
 Osage, 80 Iowa, 293, 45 N. W. 550, 8: 77* 
 
 6. As to Jury. 
 
 Mode of Raising Question as to, see supra ? 
 348. 
 
 655. A new trial will not be granted for 
 alleged illegality of the jury, which is as- 
 serted for the first time on appeal. State 
 v. Howard, 64 S. C. 344, 42 S. E. 173, 58: 685. 
 
 656. The failure to urge an objection at 
 the time a jury retires unaccompanied by a 
 sworn officer amounts to consent or waiver, 
 by the accused of compliance with a statute- 
 requiring them tq be so accompanied. 
 Drever v. People, 188 111. 40, 58 N. E. 620, 
 
 58: 869>
 
 APPEAL AND ERROR, VII. j, 7 k, 1. 
 
 93 
 
 7. As to Instructions; Questions Submitted 
 to Jury. 
 
 Sufficiency of Objections and Exceptions, see 
 
 supra, V. a, 3. 
 Necessity for Exceptions, see supra, 337, 
 
 338." 
 Mode of Raising Question as to, see supra, 
 
 349-351. 
 
 C57. Objections to instructions, which 
 were not made in the court below, cannot be 
 considered on appeal. Paul v. Cragnas, 25 
 Nev. 293, 59 Pac. 857, 60 Pac. 983 A 47 : 540 
 
 Rockport v. Rockport Granite* Co. 177 
 Mass. 246, 58 N. E. 1017, 51 : 779 
 
 657a. To warrant reversal for instructions 
 which were not objected to, they must have 
 been calculated to injure the rights of the 
 complaining party. Burt v. State, 38 Tex. 
 Crim. Rep. 397, 40 S. W. 1000, 43 S. W. 
 344, 39: 305 
 
 658. A party cannot complain of a gen- 
 eral instruction on the measure of damages 
 which is correct as far as it goes, unless he 
 calls the court's attention to the matter, 
 and requests a limitation of the general lan- 
 guage used. Longan v. Weltmer, 180 Mo. 
 322, 79 S. W. 655, 64:. 969 
 
 059. A party fearing that an instruction 
 will be taken by the jury in a broader sense 
 than he deems consistent with the law must 
 call the court's attention to the language, 
 to render it subject to review. McKee v. 
 Tourtellotte, 167 Mass. 69, 44 N. E. 1071, 
 
 48: 542 
 
 660. An assumption of a fact by an in- 
 struction will not be considered on appeal, 
 if there is nothing in the record to show that 
 objection was made to it, or that it was 
 passed upon in the court below. Lewis v. 
 Tapman, 90 Md. 294, 45 Atl. 459, 47: 385 
 
 661. Failure to object to an instruction 
 -that three fourths of the jury may return 
 n verdict does not waive the right to have 
 the validity of the verdict considered on 
 Appeal, where the receiving and entering of 
 the verdict are objected to, and an exception 
 taken to the decision of the court in over- 
 ruling the objection. First Nat. Bank v. 
 Foster, ',) Wy'o. 157, 61 Pac. 466, 63 Pac. 
 1056, 54:549 
 
 662. A party at the request of whose 
 counsel a question has been prepared and 
 submitted to the jury for a special verdict at 
 the trial of an action, without any sugges- 
 tion as to its insufficiency, will not be heard 
 to object for the first time on appeal that 
 the question was not broad enough to cover 
 the point in controversy. Wright v. Mul- 
 vaney, 78 Wis. 89. 46 N. \V. 1045', 9: 807 
 Refusal to instruct. 
 
 Sufficiency of Objection or Exception, see 
 ! supra, 327-330. 
 
 663. The refusal to instruct the jury that 
 the burden of proving that the insured did 
 oiot come to his death- through causes from 
 liability for which the policy excepts the 
 insurer is upon the one suing on the pol- 
 k-y cannot be questioned for the first time 
 on appeal. Fidelity & C. Co. v. Freeman, 48 
 
 C. C. A. 692, 109 Fed. 847, 54: 680 
 
 8. As to Judgment, Verdict, etc. 
 
 Sufficiency of Exception to Findings, see 
 supra, 287, 288. 
 
 Exception to Refusal of Peremptory Instruc- 
 tions, see supra, 289. 
 
 See also supra, 352-354. 
 
 664. A party cannot complain on appeal, 
 of a judgment for costs in the lower court, 
 where the matter was not brought to the at- 
 tention of that court. Cioud v. Malvin, 108 
 Iowa, 52. 75 N. W. 645, 78 N. W. 791, 
 
 45: 209 
 Amount. 
 
 665. The objection that the amount of the 
 judgment is in excess of the verdict cannot 
 be taken for the first time on appeal. Green- 
 ville v. Ormand, 51 S. C. 58, 28 S. E. 50, 
 
 39: 847 
 
 666. In the absence of any objection in 
 the lower court as to the amount of dam- 
 ages allowed by the jury, such question can- 
 not be raised for the first time on appeal. 
 Schmitz v. St. Louis, I. M. & S. R. Co. 119 
 Mo. 256, 24 S. W. 472, 23: 250 
 
 667. When no objection, by motion to set 
 aside, or otherwise, has been made in the 
 trial court to a verdict rendered, subject to 
 the action of the court, upon a demurrer to 
 the evidence, it cannot be disturbed in the 
 appellate court on the ground of excess or 
 paucity of damages. Uhl v. Ohio River R. 
 Co. 56 W. Va. 494, 49 S. E. 378, 68: 138 
 Nonsuit; direction of verdict. 
 Sufficiency of Exception, see supra, 288a. 
 
 668. A nonsuit cannot stand on a ground 
 not called to the attention of the court and 
 the plaintiff at the time the motion therefor 
 was made. Flynn v. Dougherty, 91 Cal. 669, 
 27 Pac. 1080, 14: 230 
 
 669. Alleged error in failing to direct a 
 verdict for defendant accident insurance 
 company on the ground that plaintiff had 
 voluntarily exposed himself to unnecessary 
 danger, is not available on appeal where no 
 request therefor was made in the trial court. 
 Johnson v. London Guarantee & A. Co. 115 
 Mich. 86, 72 N. W. 1115, 40: 440 
 
 k. Errors Waived or Cured Below. 
 
 1. In General. 
 As to Sufficiency of Appeal Bond, see supra, 
 
 As to Mode of Serving Bill of Exceptions, 
 
 see supra, 220. 
 Waiver of Assignments of Error, see supra, 
 
 IV. q. 
 Curing Errors in Argument or Remarks of 
 
 Counsel, see infra. 1 103-1 lOti. 
 By Failure to Raise Below, see supra, VII. 
 
 j- 
 On Appeal from Justice's Judgment, see 
 
 Justice of the Peace, 26, 27. 
 Waiver of Right to New Trial, see New 
 
 Trial, 63, 64. 
 Waiver by Pleading or Failure to Plead, see 
 
 Pleading, I. g. 
 See also infra, 845. 
 
 670. A state officer who, although not
 
 APPEAL AND ERROR. VII. k. 2. 
 
 subject to mandamus by a court having gen- 
 eral jurisdiction to issue the writ, submits to 
 its jurisdiction, thereby waives the objec- 
 tion, and it cannot be afterwards raised on 
 appeal. Com. ex rel. Elkin v. Barnett, 199 
 Pa. 161, 48 Atl. 976, 55: 882 
 
 671. The right of a defendant to be sued 
 in the division of the district of Washing- 
 ton in which he resides is waived by ap- 
 pearing in another division and having tht 
 action transferred to that of his residence. 
 The Willamette, 44 U. S. App. 26, 96, 70 Fed. 
 874, 72 Fed. 79, 18 C. C. A. 366, 373, 
 
 31: 715 
 
 672. A defense of former action pending 
 may be waived by the failure to introduce 
 evidence to support it at the hearing. Hey- 
 \vard v. Farmers' Min. Co. 42 S. C. 138, 19 
 S. E. 963, 20 S. E. 64, *28: 42 
 
 673. An alleged error in allowing a defend- 
 ant to justify under a statute is waived 
 where the plaintiff is present and has an op- 
 ]>ortunity to accept, but does not do so. 
 Simmonds v. Holmes, 61 Conn. 1, 23 Atl. 
 702, 15:253 
 
 674. The answer to particular questions of 
 fact is waived by allowing the jury to find a 
 general verdict without asking the court to 
 have them answered. Carrico v. West Vir- 
 ginia, C. & P. R. Co. 39 W. Va. 86, 19 S. E. 
 571, 24: 50 
 Arraignment and plea. 
 
 675. Failure to arraign the defendant and 
 receive his pica before swearing the jury and 
 beginning tne trial upon an indictment for 
 felony is reversible error, which is not ured 
 by arraignment and plea after the trial has 
 begun. Parkinson v. People, 135 111. 401, 25 
 X. E. 764, 10: 91 
 Selection of jury. 
 
 See also Jury, 105, 106: New Trial, 21. 
 
 676. The refusal to set aside an incompe- 
 tent juror is not cured by the fact that, at 
 the time the jury was sworn, defendant had 
 unustHl peremptory challenges. People v. 
 McQuade, 110 Is. V. 284, 18 X. E. 156, 
 
 1 : 273 
 By remittitur. 
 
 678. Error in taxing an item of costs is 
 cured by promptly remitting that item. 
 Second Ward Sav. Bank v. Schranck, 97 
 \Yis. 250.. 73 X. W. 31, 39: 569 
 
 2. As to Pleadings. 
 
 l>y Failure; to Raise Objection Below, set- 
 supra, V 1 1. j. 4. 
 
 l>y Pleading or Failure to Plead, see Plead- 
 ing, 6L' 
 
 079. The pleadings will be treated on ap- 
 peal as the parties elected to treat them in 
 the court below. Daniels v. Brodie, 54 Ark. 
 216. 15 S. W. 467. 11: 81 
 
 680. An express agreement for a hearing 
 on the pleadings and to dispense with fur- 
 ther pleadings is a waiver of all objections 
 to the pleadings. Farmers' Loan & T. Co. 
 v. Canada & St. L. R. Co. 127 Ind. 250, 26 
 X. E. 784, 11: 740 
 
 681. When a case is submitted to tiie law 
 court on a report of evidence or on an agreed 
 
 statement of facts, technical questions of 
 pleading will be considered as having been 
 waived, unless the contrary appears. Pils- 
 bury v. Brown, 82 Me. 450, 19 Atl. 858, 
 
 9: 94, 
 
 682. After both parties have assumed that 
 there is a certain issue, and the trial and 
 judgment have proceeded on that assump- 
 tion, neither can question the fact as to 
 such issue on appeal. San Diego Land & 
 T. Co. v. Xeale, 88 Cal. 50, 25 Pac. 977, 
 
 11: 604 
 
 683. Where a complaint based upon only 
 one cause of action contains all the allega- 
 tions essential to a cause for tort, and also- 
 to a cause upon contract, and the answer 
 fully covers both causes, if the court before 
 the introduction of evidence determines as 
 to the form of the action, the plaintiff's con- 
 ducting the trial upon the theory suggested 
 by the court will be an election on his part 
 which will be conclusive upon him. Barndt 
 v. Frederick, 78 Wis. 1, 47 N. W. 6, 11: 199> 
 
 684. The abandonment of common count* 
 makes the failure to elect between them and 
 others immaterial. Carland v. Western U. 
 Teleg. Co. 118 Mich. 369, 76 X. W. 762, 
 
 43: 280> 
 Exceptions. 
 
 685. A plaintiff who, where an exception 
 of no cause of action is sustained, with leave 
 to amend, amends his petition in obedience 
 to the order of the court, thereby waives his 
 right to question the correctness of the rul- 
 ing on the exception. Wolf v. New Orleans 
 Tailor-Made Pants Co. 113 La. 388, 37 So. 
 2, 67: 65 
 Demurrer. 
 
 686. A demurrer treated in the trial court 
 as waived or withdrawn must be so consid- 
 ered on appeal. Chesapeake & O. R. Co. v. 
 American Exch. Bank, 92 Va. 495, -23 S. E. 
 935, 44: 44!> 
 
 687. Amending a declaration under leave 
 granted on sustaining a demurrer thereto 
 prevents any objection to that ruling upon 
 appeal. Ball v. Chesapeake & O. R. Go. 9$ 
 Va. 44, 24 S. E. 467, 32: 792 
 
 688. Error in sustaining a demurrer to a 
 sjwcial plea is cured, if, under the general 
 issue, proof is introduced and the jury passes 
 upon the identical question sought to be 
 raised by such plea. Strouse v. Leipf, 101 
 Ala. 433, 14 So. 667, 23: 622 
 
 689. The right, to except to an order in 
 effect striking a portion of a petition upon 
 demurrer, and limiting the plaintiffs' right 
 of recovery to specified items was not lost 
 because they consented to so much of a ver- 
 dict wliich the court directed in their favor 
 as related to the amount they were entitled 
 to recover upon such items. Wright v. Hol- 
 lywood Cemetery Corp. 112 Ca. 884, 38 S. E. 
 94, 52: 621. 
 
 690. The ruling of a court sustaining a 
 demurrer to a complaint for misjoinder of 
 parties and causes of action cannot be re- 
 viewed upon appeal if plaintiff, after such 
 ruling, withdraws the case against all but 
 one of the defendants, and Hies a new com- 
 plaint against him, upon which the case is 
 tried, and the judgment entered from wliich
 
 APPEAL AND ERROR, VII. k. 3-5. 
 
 95 
 
 the appeal is taken. Tyler v. Waddingham, 
 58 Conn. 375, 20 All. 365, 8: 657 
 
 3. As to Evidence. 
 
 By Failure to Raise Objection Below, see 
 supra, VII. j, 5. 
 
 Admission. 
 
 Waiver by Nature of Objections or Excep- 
 tions, see supra, V. a, 2, a. 
 
 By Failure to Raise Objection Below, see 
 supra, 643-647. 
 
 Errors Cured by Instructions, Verdict, etc., 
 see infra, VII. m, 3, a, (5). 
 
 691. An exception to a ruling admitting 
 incompetent evidence is not waived by of- 
 fering testimony on the same line, in the ex- 
 ceptant's own interest. Horres v. Berkeley 
 Chemical Co. 57 S. C. 189, 35 S. E. 500, 
 
 52: 36 
 
 692. Asking a witness to repeat his ac- 
 count of an interview on his cross-examina- 
 tion does not amount to a waiver of the 
 right to urge an exception already saved to 
 his direct testimony on the subject. Barker 
 v. St. Txniis, I. M. & S. R. Co. 126 Mo. 143, 
 28 S. W. 86(5. 26: 843 
 
 692a. An objection to the testimony of the 
 surviving party to a cause of action in his 
 own behalf, which is forbidden by statute, 
 is not waived by cross-examining him only 
 ;is to matters covered by his examination in 
 chief. Johnston v. Johnston, 173 Mo. 91, 
 73 S. W. 202. 61 : 166 
 
 693. Objection to the admission in evi- 
 dence of a will because it is not proved by 
 Hie subscribing witnesses is obviated by the 
 subsequent calling and examination of the 
 witnesses, who testify to the execution of 
 the will by the testator. Re Stetson's Will, 
 167 Mass. 55, 44 N. E. 1085, 39: 715 
 Exclusion. 
 
 Waiver by Nature of Objections or Excep- 
 tion*, see supra, V. a, Z, b. 
 
 By Failure to Raise Objection Below, see 
 supra, 648. 
 
 Effect of Subsequent Admission, see infra, 
 966-972. 
 
 694. Where evidence is excluded, and sub- 
 sequently the objection is withdrawn, and 
 the testimony, for aught that appears could 
 as well have been introduced thereafter no 
 exception can be taken to such exclusion. 
 Wabash. St. L. & P. R, Co. v. McDougall. 
 126 111. 111. 18 N. E. 291, 1: 207 
 Striking out. 
 
 695. A motion to strike out plaintiff's tes- 
 timony is waived if defendant proceeds to 
 introduce evidence. Manufacturers' Acci. In- 
 demnity Co. v. I>ors?an, Hi U. S. App. 290, 
 7 C. C. A. 581, 58 Fed. 945, 22: 620 
 
 696. Krror in striking out evidence of 
 declarations as to ownership of land is cured 
 by finding ownership in the person whom 
 such declarations tend to show to be the 
 owner. Kiley v. Martinelli, 97 Cal. 575, 32 
 Pac. 579.. 21 : 33 
 
 4. As to Instructions. 
 
 By Failure to Raise Objection Below, see 
 supra. VII. j, 7. 
 
 697. Where the whole drift of the charge 
 on a particular question is erroneous, the er- 
 ror will not be cured by the fact that ex- 
 pressions may be found in the charge, which, 
 standing alone, would free it from the ob- 
 jections urged. People v. Flack, 125 N. Y. 
 324, 26 N. E. 267, 11: 807 
 
 698. The exception given by law on refusal 
 to give proper instructions to the jury is not 
 waived by proceeding with the trial after 
 an instruction has been refused. Chess- 
 man v. Hale, 31 Mont. 577, 79 Pac. 254, 
 
 68: 410 
 By other instructions. 
 
 699. Erroneous instructions are not cured 
 by others contradicting them. Chicago City 
 R. Co. v. Wilcox (111.) 24 N. E. 419. 8: 494 
 
 Rev'd on Rehearing in 138 111. 370, 27 N. 
 E. 899, 21 : 76 
 
 700. Giving a correct instruction at the 
 request of one of the parties does not cor- 
 rect an error in the general charge, unless 
 the instructions there given are recalled or 
 explained. Standard L. & Acci. Ins. Co. v. 
 Sale, 57 C. C. A. 418, 121 Fed. 664, 61: 337 
 
 701. A defect in an instruction, consisting 
 of an assumption of a fact, is cured by other 
 instructions which clearly present to tne 
 jury the question as to the fact thus as- 
 sumed. Kansas City, Ft. S. & M. R. Co. v. 
 Becker, 67 Ark. 1, 53 S. W. 406, 46: 814 
 
 702. Faulty instructions given at the in- 
 stance of one party are not ground for re- 
 versal, if any error in them is explained and 
 cured by those given for the other party. 
 Chicago' City R. Co. v. Tuohy, 196 111. 410, 
 63 N. E. 997, 58: 270 
 
 703. The mere general instruction to the 
 jury, that they are not s to consider any facts 
 but those -which have been proved by the 
 witnesses or the exhibits, is not sufficient to 
 cure inflammatory appeals to passion and 
 prejudice against the accused in a criminal 
 case, and threats to the jury of popular de- 
 nunciation. People v. Fielding, 158 N. Y. 
 542, 53 N. E. 497, 46: 641 
 By verdict. 
 
 704. An erroneous instruction is not 
 prejudicial error where the jury find in favor 
 of the excepting party on the issue as to 
 which the instruction was given. Omaha 
 & G. Smelting & R. Co. v. Tabor, 13 Colo. 
 41, 21 Pac. 925, 5: 236 
 
 705. The suggestion by the trial judge, in 
 his charge to the jury, of a doubt as to the 
 truthfulness of the witnesses of one of the 
 parties, is immaterial if the jury show by 
 their verdict that they believed them. 
 Wright v. Mulvaney, 78 Wis. 89, 46 N. W. 
 1045, 9: 807 
 
 5. ' Taking Case from Jury. 
 
 By Failure to Raise Objection Below, see 
 supra, VII. j, 7. 
 
 706. An exception to a refusal to take 
 a case from the jury at the close of plain- 
 tiff's evidence is waived by the introduction 
 of evidence by defendant. United Railways 
 & E. Co. v. State use of Deane, 93 Md. 619, 
 49 Atl. 923, 54: 942
 
 APPEAL AND ERROR, VII: 1, 1. 2. 
 
 Nonsuit. 
 
 707. The fact that there was no competent 
 evidence to sustain a verdict for plaintiff 
 when a motion for a nonsuit was made at 
 the close of plaintiff's evidence is immaterial, 
 where defendant has introduced evidence 
 which supplies the deficiency. Gagnon v. 
 Dana. 69 X. H. 264, 39 Atl. 982, 41: 389 
 Directing verdict. 
 
 708. A motion to direct a verdict for the 
 defendant is waived when he proceeds with 
 his evidence. Poling v. Ohio River R. Co. 
 38 W. Va. 645, 18 S. E. 782, 24: 215 
 
 709. A motion to direct a verdict for de- 
 fendant is abandoned by proceeding to in- 
 troduce evidence to sustain the defense aft- 
 er the motion is overruled, if it is not re- 
 newed. Lake Shore & M. >S. R. Co. v. Rich- 
 ards, 152 111. 59, 38 N. E. 773.. 30: 33 
 
 710. A party cannot complain of a direct- 
 ed verdict on conflicting evidence after he 
 has moved for a direction of the verdict in 
 his favor, if he has not specifically requested 
 a submission of any questions to the jury, 
 but this rule will not apply if the verdict is 
 unsupported by evidence. Standford v. Ma- 
 gill, 6 N. D. 536., 72 1*. W. 938, 38: 760 
 
 711. The submission by defendant of its 
 case to the jury upon the evidence and gen- 
 eral instructions as to the law, after refusal 
 of its request for an instruction to return a 
 verdict of not guilty, asked at the. close of 
 plaintiff's testimony and again at the con- 
 clusion of all the evidence, is not a waiver 
 of the right to assign error for such refusal. 
 West Chicago Street R. Co. v. Liderman, 
 187 111. 463, 58 N. E. 367, 52: 655 
 Demurrer to evidence. 
 
 712. Objection to the overruling of a de- 
 murrer to plaintiff's evidence is waived by 
 the introduction of evidence on behalf of 
 defendant. Fuchs v. St. Louis, 167 Mo. 620. 
 67 S. W. 610, 57: 136 
 
 1. Review of Facts. 
 1. In General. 
 
 :See also supra. 231. 
 
 For Editorial Notes, see infra, XI. 12. 
 
 713. A conclusion as to an ultimate fact, 
 drawn from certain specified evidential facts 
 which are legally incompetent to support it, 
 is a proper subject of review on proceedings 
 in error. Nichols v. Peck, 70 Conn. 439. 39 
 Atl. 803, 40: 81 
 
 714. The sufficiency of facts found to sup- 
 port a judgment may be raised by writ of 
 error, when the facts are made part of the 
 record of the judgment. Corbett v. Matz. 
 72 Conn. 610. 45 Atl. 494, 48: 217 
 
 715. The circuit court of appeals may re- 
 view the question whether or not a finding 
 of facts in an action at law in the circuit 
 
 court has any evidence to support it. King 
 v. Smith, 49 C. C. A. 46. 110 Fed. 9f>. 
 
 r>-4 : 70S 
 
 716. A finding treated as a conclusion of 
 law by the trial court, t.o the effect that 
 money was paid to defendant "as legatee," 
 cannot be treated by the supreme court as 
 
 a finding of fact. Scott v. Ford, 45 Or. 531, 
 78 Par. 742, 68: 469 
 
 717. On appeal to the Louisiana supreme 
 court solely under the grant of jurisdiction 
 to that court over suits involving the con- 
 stitutionality or legality of a fine or penalty 
 imposed by a municipal corporation, the 
 question whether the facts were sufficient to 
 justify the conviction of the appellant can- 
 not be considered. Crowley v. Ellsworth, 
 114 La. 308.. 38 So. 199, 69: 276 
 
 718. A party is not entitled to have a find- 
 ing of facts corrected where thry are not ad- 
 mitted or undisputed, and the facts found 
 are not without evidence to support them, 
 while the record is not shown to embrace all 
 the evidence adduced with reference to them. 
 Hygeia Distilled Water Co. v. Hygeia Ice Co. 
 72 Conn. 646, 45 Atl. 957, 49: 147 
 
 2. Of Verdict, 
 o. In General. 
 
 Presumption as to, see supra, 421-433. 
 New Trial for Insufficiency of Evidence, see 
 New Trial, 14-17. 
 
 719. A finding of fact by a jury on con- 
 flicting evidence will not be disturbed on ap- 
 peal. Hall v. Manson, 99 Iowa, 698, 68 N. 
 W. 922, 34: 207 
 
 720. Where the evidence is conflicting, and 
 is sufficient to support the verdict, it will 
 not be reviewed on appeal. McConnell v. 
 Poor, 113 Iowa, 133, 84 N. W. 968, 52: 312 
 
 721. That the verdict is against the clear 
 weight of evidence is not assignable for er- 
 ror. Bouvier v. Baltimore & N. Y. R. Co. 
 (N. J. Err. & App.) 67 N. J. L. 281, 51 Atl. 
 781, 60: 750 
 
 722. A finding by the jury will be accept- 
 ed as correct upon appeal, unless it clearly 
 appears to have been erroneous. James v. 
 Rapides Lumber Co. 50 La. Ann. 717, 23 So. 
 469, 44: 33 
 
 723. A verdict fairly rendered, after a case 
 has been fairly submitted to a jury, ought 
 not to be interfered with by the court, unless 
 manifest wrong or injustice has been done, 
 or unless the verdict is plainly not warrant- 
 ed by the evidence. Bosley v. Baltimore & 
 O. R. Co. 54 W. Va. 563, 46 S. E. 613, 
 
 66: 871 
 
 724. A finding of fact by the jury cannot 
 be reversed by the supreme court on appeal, 
 although it appears to l>e against the pre- 
 ponderance of evidence, if there is evidence 
 to support it which cannot be said to be 
 incredible, and it cannot be said that all 
 the reasonable probabilities and inferences 
 are against their conclusion. Busse v. Rog- 
 ers. 120 Wis. 443, 98 N. W. 219, 64: 183 
 
 72.i. The sufficiency of evidence to go to 
 the jury or to sustain a verdict .cannot be 
 passed upon on appeal, further than to as- 
 c-crtain if at the close of the plaintiff's case 
 there was evidence tending to prove the 
 facts alleged in his declaration, and whether 
 at the close of all the testimony the evi- 
 dence, with all the inferences which the jury 
 could justifiably draw from it, was insuffi- 
 cient to support a verdict for plaintiff. Ci-
 
 APPEAL AND ERROR, VII. 1, 2. 
 
 97 
 
 & P. R. Co. v. Meixner, 160 111. 320, 43 
 JSf. E. 823, 31:331 
 
 726. A second verdict in favor of the plain- 
 tiff will not be disturbed on appeal after the 
 trial judge has refused to set it aside, merely 
 because the evidence does cot make a strong 
 ease to support it. Western & A. R. Co. v. 
 Voils, 98 Ga. 446, 26 S. E. 483, 35: 655 
 
 727. A verdict charging a person upon a 
 lease will not be set aside on appeal as 
 without evidence to support it, wherr it ap- 
 pears that lie had the benefit of it, that 
 his checks were given in payment of the 
 rent, and that the nominal lessees were his 
 agents and had no use for the leasehold 
 themselves. Marshall v. Rugg, 6 Wyo. 270, 
 44 Pac. 700, 45 Pac. 486, 33: 679 
 
 728. In an action upon a policy of accident 
 life insurance, where the defense is that th< 
 assured came to his death by suicide, if there 
 is some evidence to go to the jury upon the 
 question of insanity, and the jury have, un- 
 der a fair submission, determined that ques- 
 tion in the affirmative, the Michigan supreme 
 court will not disturb the finding. Black- 
 stone v. Standard L. & A. Ins. Co. 74 Mich. 
 
 -592, 42 N. W. 156, 3: 486 
 
 729. A general verdict for plaintiff is not 
 conclusive in the appellate court upon the 
 -question whether or not the declaration 
 states a cause of action. Pontiac v. Talbot 
 Paving Co. 36 C. C. A. 88, 94 Fed. 65, 37 
 
 "C. C. A. 556, 96 Fed. 679, 48: 326 
 
 730. A verdict controlled by no reason, 
 -.up) Killed by no justice, and which is mani- 
 festly the result of passion and prejudice, 
 will not be sustained on appeal, no matter 
 liow many similar verdicts may have been 
 previously returned in the case. Peterson v. 
 Western LI. Teleg. Co. 65 Minn. 18, 67 N. W. 
 (i46, 33: 302 
 
 731. A substantial conflict in evidence 
 which will prevent a review of a verdict is 
 not made by the mere general conclusion 
 of a tax assessor as to the vaiue of a rail- 
 road without examining the reports of the 
 road, or inquiring as to the amount of its 
 busincs.s, or considering any decrease in its 
 earnings, where the undisputed facts show 
 that it ought to be assessed much lower than 
 his estimate. State v. Virginia & T. R. Co. 
 23 Nev. 283, 46 Pac. 723, 35: 759 
 Negligence. 
 
 732. A verdict that facts do not sustain 
 a charge of negligence cannot be disturbed 
 on appeal. Gibson v. Huntington, 38 W. 
 Va. 177, 18 S. E. 447, 22: 561 
 
 733. The appellate court will not interfere 
 with the jury's adoption as- a basis for their 
 verdict, of one of several theories as to the 
 
 cause of an accident, where it is reasonably 
 deducible from the evidence. Livermore 
 Foundry & M. Co. v. Union Compress & 
 Storage Co. 105 Tenn. 187, 58 S. W. 270, 
 
 53: 482 
 
 734. A verdict in favor of plaintiff in an 
 action to recover for injury to a railroad 
 brakeniau while coupling cars through the 
 alleged negligence of the engineer in failing 
 to stop his engine as soon as the cars came 
 together, and hold it stationary until sig- 
 nalled to move it again, will not be disturbed 
 
 L.R.A. Dig. 7. 
 
 where the evidence is conflicting, but plain- 
 tiff's evidence that the engine was not 
 stopped is corroborated by undisputed 
 evidence tending to show that fact. Schus 
 v. Powers-Simpson Co. 85 Minn. 447, 89 S. 
 W. 68, 69: 887 
 
 735. A verdict finding lack of due care in 
 inspection of an engine which was derailed 
 by the falling of a brakeshoe in advance of 
 a carwheel, which could not have fal.en if 
 properly fastened, and the fastening of 
 which was so made as to render any defect 
 easily observed, will not be set aside as 
 against evidence, though there is proof of 
 frequent inspection. Missouri P. R. Co. v. 
 McKlyea, 71 Tex. 386, 9 S. W. 313, 1: 411 
 Criminal cases. 
 
 736. The supreme court of California has 
 no jurisdiction of criminal cases on questions 
 of fact. People v. Lewis, 124 Gal. 551, 57 
 Pac. 470, 45:783 
 
 737. A verdict which is clearly against the 
 evidence because it convicts of crime a per- 
 son of whose sanity there appears a reason- 
 able doubt shou.d be set aside. Armstrong 
 v. -State, 30 Fla. 170, 11 So. 618, 17: 484 
 
 738. The finding by tne jury of a conspir- 
 acy to rob, and a participation by one of 
 the conspirators in killing the owner of the 
 property while attempting to carry out the 
 conspiracy, upon conflicting evidence, some 
 of which, if believed, is sufficient to establish 
 the fact, is conclusive upon the appellate 
 court. People v. Lawrence, 143 Cal. 148, 76 
 Pac. 893, 68": 193 
 
 6. As to Damages and Values. 
 
 As to Measure of Damages Generally, see 
 Damages III. 
 
 Instances of Excessive Amounts see Dam- 
 ages, 224-228, 251, 253, 257, 270, 272, 
 354-378. 
 
 Instance of Insufficient Amount, see Dam- 
 ages, 273. 
 
 739. An excessive verdict cannot be cor- 
 rected in the Federal courts upon a writ 
 of error. Morning Journa 1 Assb. v. Ruther- 
 ford, 1 U. rf. App. 296, 2 C. C. A. 354, &1 
 Fed. 513, 16: 803 
 
 740. The Michigan supreme court cannot 
 consider the question whether damages are 
 excessive; it can only determine whether er- 
 rors of law have been committed. Coots v. 
 Detroit, 75 Mich. 628. 43 N. W. 17, 5: 315 
 
 Hunn v. Michigan C. R. Co. 78 Mich. 513, 
 44 N. W. 502, 7: 500 
 
 741. A verdict for damages will not be 
 disturbed on writ of error on the ground 
 that they were excessive, when the trial 
 court did not disturb it. Peirce v. Van 
 Dusen, 24 C. C. A. 280, 47 U. S. App. 339, 
 78 Fed. 693, 69: 705 
 
 742. The amount of damages is a question 
 of fact for the jury upon all the evidence, 
 and, if there is any evidence to support the 
 verdict, the Utah supreme court is not at 
 liberty, under the Constitution, to set it 
 aside. Croco v. Oregon Short-Line R. Co. 
 18 Utah, 311, 54 Pac. 985, 44: 285 
 
 743. No mere difference of opinion, how- 
 ever decided, justifies an interference by the
 
 93 
 
 APPEAL AND ERROR, VII. 1, 3. 
 
 appellate court with a verdict on the ground 
 of excessive damages; but the amount must 
 be so out of the way as to evince passion, 
 prejudice, partiality, or corruption in the 
 jury. Battrell v. Ohio River R. Co. 34 W. 
 Va. 232, 12 S. E. 699, 11: 290 
 
 744. To justify an inference that the 
 amount of damages awarded by the jury 
 was not the result of fair and unprejudiced 
 consideration the facts in evidence should 
 be such that no other conclusion can be en- 
 tertained. Longan v. Weltmer, 180 Mo. 322, 
 79 S. W. 655, 64:969 
 
 745. In an action to recover damages for 
 personal injuries, the court will not interfere 
 with the verdict of a jury, on the ground 
 that the damages are excessive, unless tne 
 finding was so manifestly unjust as to show 
 partiality, prejudice or misapprehension on 
 the part of the jury. Normile v. Wheeling 
 Traction Co. 57 W. Va. 132, 49 S. E. 1030, 
 
 68: 901 
 
 746. The verdict is conclusive as to the 
 value of property in a building at the time 
 of an accidental discharge of an automatic 
 fire extinguisher, in determining whether or 
 not there shall be an apportionment of the 
 loss under a policy insuring against such 
 loss, but providing that, in case the value of 
 the property is more than a certain amount, 
 the insurer shall be liable only for such pro- 
 portion of the face of the policy as the 
 amount named bears to the value of the 
 property in the building. Wertheimer- 
 Swarts Shoe Co. v. United States Casualtv 
 Co. 172 Mo. 135. 72 S. w. 635, 61: 766 
 
 747. The reversal of a judgment on a ver- 
 dict for excessive damages, authorized by Pa. 
 act May 20, 1891, even if the lower court 
 had denied a motion for a new trial, does 
 not infringe the constitutional right to a 
 jury trial. Smith v. Times Pub. Co. 178 
 Pa. 481, 36 Atl. 296, 35: 819 
 
 3. Findings of Court, 
 a. In General. 
 
 Presumptions as to, see supra, 421-433. 
 See also supra, 219, 467; infra, 811. 
 
 748. A finding of fact by the court in a 
 case at law is conclusive on appeal. Kansas 
 City, M. & B. R. Co. v. Southern Railway 
 News Co. 151 Mo. 373, 52 S. W. 205, 45: 380 
 
 749. Findings of fact by the trial court 
 on conflicting evidence will not be disturbed 
 on appeal. Barnes v. Western U. Teleg. Co. 
 27 Mev. 438, 76 Pac. 931, 65: 660 
 
 750. Findings of fact will not be disturbed 
 on appeal, when they have evidence to sup- 
 port them and are not against the weight 
 of the evidence. Bates v. American Mort- 
 gage Co. 37 S. C. 88, 16 S. E. 883, 21: 340 
 
 751. The credibility of witnesses and the 
 weight of evidence are for the trial court, 
 and the appellate court will not disturb its 
 finding, unless plainly contrary to the pre- 
 ponderance of l/he evidence. Moore v. Strick- 
 lin<*. 40 W. Va. 515, 33 S. E. 274, 50: 279 
 
 752. Undor Tnd. Code, 658, a judgment 
 oannot be reversed where it appears that 
 the merits of the cause have been fairly tried 
 
 and determined in the court below. McNutt 
 v. McNutt, 116 Ind. 545, 19 N. E. 115, 
 
 2: 372 
 
 753. A ruling of the trial court upon the 
 weight of evidence is not subject to review. 
 Utley v. Hill, 155 Mo. 232, 55 S. W. 1091, 
 1102, 49: 32* 
 
 754. Failure of the superior court to de- 
 termine the facts correctly cannot be consid- 
 ered in the supreme court of errors. Nolan 
 v. New York, N. H. & H. R. Co. 70 Conn. 
 159, 39 Atl. 115, 43: 305- 
 
 755. A general finding of fact in a case 
 tried by a United States court without the- 
 intervention of a jury cannot be reviewed by 
 an appellate court. Rhodes v. United States 
 Nat. Bank, 24 U. S. App. 607, 66 Fed. 512,. 
 13 C. C. A. 612, 34: 742: 
 
 756. An appeal does not lie in Connecticut 
 on the ground that the evidence does not 
 support the facts found by the court below,, 
 but does support a state of facts whieh the 
 court found not proved. Curtis v. Bradley, 
 65 Conn. 99, 31 Atl. 591, 28: 143 
 
 757. A material finding in favor of plain- 
 tiff cannot be stricken from the record and a 
 judgment rendered for defendant, where 
 there is any evidence to support it. Conroy 
 v. Chicago, St. P. M. & O. R. Co. 96 Wis. 
 243, 70 N. W. 486, 38: 419- 
 
 758. In an action at law, the inferences of 
 fact made by the trial court are not review- 
 able on appeal, provided they are fairly 
 within the scope of the evidence. Conrad v. 
 Fisher, 37 Mo. App. 352, 8: 147 
 
 759. The findings of the trial court on con- 
 flicting evidence will not be disturbed unless 
 they are clearly against the preponderance- 
 of the evidence. Case v. Hoffman, 100 Wis. 
 314, 72 N. W. 390, 74 N. W. 220, 75 N. W. 
 945, 44: 72* 
 
 760. The findings of the trial court should 
 receive such construction as will uphold, 
 rather than defeat, its judgment thereon. 
 Breeze v. Brooks, 97 Cal. 72, 31 Pac. 742, 
 
 22: 25$ 
 
 761. The supreme court cannot make find- 
 ings of fact in a law case, nor substitute 
 one finding for another, except, perhaps, in 
 a case whe,re no other reasonable inference- 
 can be derived from the evidence. Scott v. 
 Ford, 45 Or. 531, 78 Pac. 742, 68: 46 
 
 762. The jurisdiction of the supreme couro 
 of Wisconsin under the Constitution being 
 appellate only, except in specified cases, a 
 statute attempting to make it the duty of 
 that court to examine and review the evi- 
 dence preserved by bill of exceptions, and 
 give judgment according to the right of the 
 case, regardless of the decision by the court 
 below, upon questions of fact as well as of 
 law, is unconstitutional. Kleim v. Vale- 
 rius, 87 Wis. 54.. 57 N. W. 1112, 22: 60- 
 
 763. The legal sufficiency of evidence to- 
 support a finding by the court is a question 
 of law on appeal. Texas Loan Agency v. 
 Fleming. 92 Tex. 458, 49 S. W. 1039, 44: 270 
 
 764. An erroneous conclusion drawn by the 
 trial court from facts found by it from the- 
 evidence offered may be corrected on appeal. 
 Xolan v. New York, N. H. & H. R. Co. 7O 
 Conn. 159, 39 Atl. 115, 43: 30
 
 APPEAL AND ERROR, VII. 1, 3. 
 
 765. Conclusions of the trial court from 
 subordinate facts found may Ve reviewed on 
 appeal. Jloadlcy v. Savings Bank of Dan- 
 Lury. 71 Conn. 599, 42 Atl. 067, 44: 321 
 
 7ti6. The conclusion of law to be deduced 
 from a special finding of facts is a question 
 to be finally determined by the supreme 
 court. Jones v. Glidewell, 53 Ark. 161, 13 
 S. W. 723, 7 : 831 
 
 767. That the trial court found in accord- 
 ance with the testimony of one witness 
 against that of three others is not ground 
 for exception. Condon v. Poinroy-Grace, 73 
 Conn. 607, 48 Atl. 756, \53: 696 
 
 768. The same strict rule must be applied 
 by the appellate court as by the court be- 
 low in respect to the sufficiency of parol evi- 
 dence to show that a deed was intended for 
 a mortgage. Jasper v. Hazen, 4 N. D. 1, 58 
 N. W. 454, 23: 58 
 
 769. A finding by the presiding judge in a 
 law case tried without a jury, that plaintiff 
 in an action to try title to real estate has 
 sufficiently connected himself with the orig- 
 inal grant from t'^e state to maintain the 
 action, is a finding of fact that cannot be 
 reviewed by the supreme court upon appeal. 
 Heyward v. Farmers' Min. Co. 42 S. C. 138, 
 19 'S. E. 963, 20 S. E. 64, 28: 42 
 
 770. A finding by the trial court that cer- 
 tain land is overflowed with back water from 
 a dam, which is supported by a fair pre- 
 ponderance of the evidence, will not be dis- 
 turbed by the appellate court. Charnley v. 
 Shawano Water-Power & R. Improv. Co. 109 
 Wis. 563, 85 N. W. 507, 53: 895 
 
 771. Whether or not the construction of 
 a granite curb in place of an old one of blue- 
 stone is new work for the repair of old work 
 is a question of fact, upon which the deter- 
 mination of the trial court is not reviewable 
 on appeal. People ex rel. North v. Feather- 
 aterihaugh, 172 N. Y. 112, 64 N. E. 802, 
 
 60: 768 
 
 772. A finding that the sanitary code of a 
 board of health was subscribed by the secre- 
 tary will not be disturbed on appeal, where 
 there is no proof that the original which 
 has been destroyed, was not signed, and a 
 copy of the code as published purports to be 
 signed by the secretary, and is attested by 
 his signature as published. Yon.kers Bd. of 
 Health v. Copcutt, 140 N. Y. 12, 35 N. E. 
 
 443, . 23: 485 
 
 773. An order discharging a writ of habea 
 corpus upon the report of a guardian ad 
 litem will not be reversed because of what 
 the appellant may allege he could have 
 proved, where the record shows no proof or 
 offer to give proof of any facts which would 
 require a different decision. King v. McLean 
 Asylum of M. G. H. 21 U. S. App. 481, 12 C 
 C. A. 145, 64 Fed. 331, 26: 784 
 Misconduct of counsel. 
 
 774. A decision of the trial court on con 
 flicting evidence as to the misconduct oi 
 counsel will not be disturbed on error. Ger 
 man Ins. Co. v. Shader, 68 Neb. 1, 93 N. W 
 972, 60: 918 
 Lowest bidder. 
 
 775. The decision of municipal authori 
 ties as to who among several bidders is the 
 
 owest cannot, if resting on legal evidence, 
 ^e reviewed on writ of error. State ex rel. 
 Wilson v. Trenton, (N. J. Err. & App.) 61 
 N. J. L. 599, 40 Atl. 575, 44: 540 
 
 Residence of voters. 
 
 776. The decision of the trial court as to 
 ;he residence of voters will not be disturbed 
 when supported by their testimony and the 
 question is one of fact into which the in- 
 dention of the parties largely enters. Hope 
 v. Flentge, 140 Mo. 390, 41 S. W. 1002, 
 
 47: 806 
 Testamentary capacity. 
 
 777. A finding by the court that testator 
 had testamentary capacity of the highest 
 order is erroneous where the question of un- 
 due influence is also involved, if it appears 
 that, possessed of property over $300,000 in 
 
 luej he gave more than three fourths of 
 it to one of his children, and for a period of 
 ten years covering the time of the will he 
 drank largely of intoxicating liquors and 
 was afflicted with locomotor ataxia; while 
 disinterested witnesses testify to the daily 
 consumption of unusual quantities of intox- 
 icants, and the failure of memory, and 
 weakening of will power, although the evi- 
 dence of incapacity is not sufficient to send 
 the case to the jury. Re Miller's Will, 179 
 Pa. 645, 36 Atl. 139, 39: 220 
 
 Fraud; good faith. 
 
 Exces&iveness of Allowance, see Divorce and 
 Separation, 82. 
 
 778. A finding of the trial court as to the 
 existence of facts constituting a fraud, will 
 not be disturbed on appeal, unless clearly 
 wrong. Galusha v. Sherman, 105 Wis. 263, 
 81 N. W. 495, 47:417 
 
 779. A finding by the trial court upon a 
 distinct issue of fact whether or not the 
 assignee of a savings-bank pass-book is a 
 bona fide holder is conclusive. McCaskill v. 
 Connecticut Sav. Bank, 60 Conn. 300, 22 
 Atl. 568, 13: 737 
 Agency. 
 
 780. A finding by the trial court that an 
 agent of a foreign corporation upon whom 
 process was served was not such an agent 
 as the statute authorized the service of pro- 
 cess upon is not such a finding of fact as 
 precludes the appellate court from examin- 
 ing the question in view of the undisputed 
 testimony in the case. Abbeville E. L. & P. 
 Co. v. Western Electrical Supply Co. 61 S. 
 C. 361, 39 S. E. 559, 55: 146 
 
 781. The appellate court will not review a 
 finding of the trial court that an agent 
 for liquidating the affairs of an insolvent 
 bank misapplied its funds by declaring and 
 paying a dividend on stock belonging to 
 himself, while he claims that it belonged 
 to a third person, where there was persua- 
 sive evidence to go to the jury in favor of 
 the finding; among which was the nonpro- 
 dxiction of the check by which the money 
 was paid, and the existence of uncollected 
 indebtedness of the third person to the 
 bank of more than the amount of the divi- 
 dend. Jewett v. United States, 41 C. C. A. 
 88, 100 Fed. 832, 53: 568 
 Divorce; alimony. 
 
 782. The decision of a single justice on a
 
 100 
 
 APPEAL AND ERROR, VII. 1, 3. 
 
 question of fact in a cause for divorce can- 
 not be revised by the supreme judicial court 
 of Massachusetts, eitter on appeal or on 
 report. Darrow v. Darrow, 159 Mass. 262, 
 34 N. E. 270, 21: 100 
 
 783. An allowance of alimony by the trial 
 court will not be disturbed unless manifest- 
 ly unjust. Hooper v. Hooper, 102 Wis. 598, 
 78 N. W. 753, 44: 725 
 Contested election cases. 
 
 784. Where the law makes the judge the 
 trier of facts in cases to which the consti- 
 tutional right of trial by jury does not ex- 
 tend, as has been done in contested election 
 cases, his findings of fact are -as conclusive 
 on appeal as the verdict of a jury. Jones 
 vl Glidewell, 53 Ark. 161, 13 S. W. 723, 
 
 7; 831 
 
 785. Although the supreme court will not 
 attempt to ascertain where the weight or 
 the preponderance of the evidence lies in 
 a contested election case, it will determine 
 whether or not a given finding is sustained 
 by the testimony. Id. 
 Insurance cases. 
 
 786. A finding of the trial court on th> 
 question whether or not a refusal to answer 
 as to the cost of insured property will pre- 
 vent recovery on an insurance policy which 
 requires the insured to submit to an exam- 
 ination will not be reviewed by the New 
 York court of appeals, since it is a finding 
 on a question of fact, or a mixed question 
 of law and fact. Porter v. Traders' Ins. 
 Co. 164 N. Y. 504, 58 N. E. 641, 52: 424 
 
 787. Fndings of a trial court on the ques- 
 tion of the waiver of a forfeiture by re- 
 ceiving subsequent payments do not present 
 any question of law for review on appeal 
 by -the supreme court after affirmance by 
 the appellate court of Illinois, where such 
 findiners are made on a denial of the facts 
 alleged to constitute the waiver after a 
 demurrer to the pleading which set them up 
 has been overruled. Moerschbaecher v. Su- 
 preme Council Royal League, 188 111. 9, 59 
 N. E. 17. 52:281 
 
 788. Where insured arrived in Council 
 Bluffs so much intoxicated that he was left 
 in the car until morning, but registered in 
 a hotel at that place on thnt morning, and 
 was next seen, in the evening, at Omaha, 
 near a ditch containing 3 or 4 feet of water, 
 where he was found dead the next morning; 
 and the witness who claims to have seen 
 him that morning testifies that he walked 
 like a drunken man, but his testimony 
 shows marked discrepancies in the descrip- 
 tion of the man, a finding by the trial 
 judge, that the defense based on his intox- 
 ication at the time of his death was not 
 made out, will not be disturbed. Newman 
 v. Covenant Mut. Ben. Asso. 76 Iowa, 56, 
 40 N. W. 87, 1 : 659 
 Negligence. 
 
 789. An exception to a finding of fact as 
 to negligence, where there is no uncertain- 
 ty as to the rule by which it is to be gov- 
 erned, but only as to what the conduct was, 
 constitutes no ground of anpeal under Conn, 
 act 1893. Peltier v. Bradley, D. & C. Co. 
 67 Conn. 42, 34 Atl. 712, 32: 651 
 
 790. A finding of negligence cannot be re- 
 viewed for error in law if a separate state- 
 ment of the facts ascertained and the ap- 
 olication of the law thereto is impractica- 
 ble, so that the case cannot serve as a prece- 
 dent. Nolan v. New York, N. H. & H. R. 
 Co. 70 Conn. 159, 39 Atl. 115, 43: 305 
 
 791. Negligence is a question of fact 
 which cannot be reviewed on appeal unless 
 the trial court failed to apply the correct 
 standard of duty, or violated some ru.e or 
 principle of law applicable to the facts as 
 found. Bergin v. Southern Mew England 
 Teleoh. Co. 70 Conn. 54, 38 At]. 888, 39: 192 
 
 791a. A finding that conditions attending 
 two trains moving in the same direction on 
 a single-track road created an emergency 
 for which the rules governing the operation 
 of trains did not provide, requiring the exer- 
 oise of ordinary prudence in giving special 
 instructions, is a finding of law reviewable 
 by the appellate court. Nolan v. New York, 
 N. H. & H. R. Co. 70 Conn. 159, 39 Atl. 
 115, 43: 305 
 
 792. Findings by a trial court that a rail- 
 road did not sufficiently provide for the op- 
 eration of two trains which came into col" 
 lision; that it was negligent in failing so to 
 provide by special order in addition to the 
 general rules; that an injurv resulted from 
 this negligence; and that the railroad did 
 not exercise ordinary care in the move- 
 ments of trains, although called findin-rs of 
 fact, are reviewable by the appellate court 
 as conclusions of law. Id. 
 Amount of damages. 
 
 For Editorial Notes, see infra, XL 13. 
 
 793. A finding upon evidence, of the 
 amount of compensation for propertv con- 
 demned, by the court below, is conclusive 
 in the New York court of appeals, unless 
 <n erroneous rule of law has been followed. 
 Re Brooklyn, 143 N. Y. 596, 38 N. E. 983, 
 
 26: 270 
 
 794. A question of fact on conflicting evi- 
 dence is not reviewable by the New York 
 court ' of appeals, on an appeal from an 
 award of damages in condemnation proceed- 
 ings under N. Y. Laws 1877, chap. 445. Re 
 Thompson, 127 N. Y. 463, 28 N. E. 389, 
 
 14: 52 
 
 795. A conditional assessment by the trial 
 court of substantial damages for death by 
 wrongful act in case such damages may 
 properly be awarded, together with an act- 
 ual assessment of nominal damages only, is 
 not conclusive in case the appellate court 
 holds the actual assessment erroneous, since 
 the finding was, in the* view of the trial 
 court, upon an immaterial fact. Broughel 
 v. Southern New England Teleph. Co. 72 
 Conn. 617.. 45 Atl. 435, 49: 404 
 Attachment. 
 
 796. A finding of a trial court sustaining 
 an attachment upon conflicting evidence 
 will not be disturbed on appeal. Second 
 Nat. Bank v. Fitzpatrick, 111 Ky. 228, 63 
 S. W. 459, 62: 599 
 
 797. A decision on a motion to dis"hnr<re 
 an attachment upon conflicting affidavits 
 will not be disturbed, unless clearly againsfc
 
 APPEAL AND ERROR, VII. 1, 4. 
 
 the weight of evidence. Whipple v. Hill, 
 
 36 Neb. 720, 55 N. W. 227, 20: 313 
 Sanity of accused. 
 
 798. A finding by the trial court that 
 there is not any doubt of the sanity of the 
 accused, upon which it refuses to impanel 
 a jury to try that question, has the same 
 effect 011 appeal as a verdict of a jury 
 aaainst the accused. Maas v. pklahoma, 10 
 Okla. 714, 03 Pac. 960, 53: 814 
 
 6. In Equity. 
 
 See also supra, 793-795 ; infra, 809, 810, 822, 
 823, 1198. 
 
 799. Findings of fact in a chancery case 
 are conclusive in the appellate court, unless 
 they are so manifestly erroneous as t dem- 
 onstrate some oversight or mistake. Block 
 v. Salt 'Lake Rapid Transit Co. 9 Utah, 
 31, 33 Pac. 229, 24: 610 
 
 800. The findings or decree of a chancellor 
 may be sustained on conflicting evidence, al- 
 though so doubtful and unsatisfactory that 
 the appellate court, if acting on it in the 
 first instance, would have pronounced- a 
 different decree. Reger v. O'Neal, 33 W. Va. 
 159, 10 S. E. 375, 6: 427 
 
 801. A decree as to the mental capacity 
 of one who enters into a marriage contract, 
 rendered on sufficient but conflicting , evi- 
 dence, cannot be disturbed on appeal. Prine 
 v. Prine, 36 Fla. 676, 18 So. 781, 34: 87 
 
 802. Judgment by a court of equity will 
 not be disturbed because the uncontradicted 
 testimony of a witness examined by com- 
 mission was rejected, where the court states 
 that it is not favorably impressed with such 
 testimony, and does not believe the witness 
 to have been actuated by a desire to speak 
 the whole truth, and believes him interested 
 in the result. Bates v. American Mortg. Cb. 
 
 37 S. C. 88, 16 S. E. 883, 21: 340 
 
 803. Findings of fact are not conclusive 
 on the appellate court in equity cases, un- 
 less the evidence is so evenly balanced or so 
 unsatisfactory as to leave the court in seri- 
 ous doubt. North Point Consol. Irrigation 
 Co. v. Utah & S. L. Canal Co. 16 Utah, 246 
 52 Pac. 168, 40: 851 
 
 804. The legal effect of undisputed evi- 
 dence consisting of written statements as 
 to whether or not a race meeting successive- 
 ly held on different tracks close to each 
 other constitutes one race meeting or more 
 is a question of law, and not of fact, on 
 reviewing a finding of a lower court. State 
 ex rel. Matthews v. Forsyth, 147 Ind. 466, 
 44 N. E. 593, 33: 221 
 
 805. An injunction against an alleged nui- 
 sance, granted against a great preponder- 
 ance of evidence, will be reversed. Wood v. 
 McGrath, 150 Pa. 451, 24 Atl. 682, 16: 715 
 
 806. The granting of a temporary injunc- 
 tion to plaintiff by the trial court, after is- 
 sue joined, and upon the pleadings and affi- 
 davits of both parties, is, fer the purpose 
 of reviewing the action of the court, deemed 
 to be, in effect, a finding that the allega- 
 tions of the complaint upon which the writ 
 is prayed for are true; and, upon appeal 
 from the order granting the writ, the ap- 
 
 pellate court will review the affidavits only 
 to the extent of determining whether they 
 fairly tend to support the allegations of 
 the complaint. Gray v. Building Trades 
 Council, 91 Minn. 171, 97 N. W. 663, 
 
 63: 753 
 
 4. Of Findings by Referee, etc. 
 
 See also supra, 427. 
 
 807. A referee's findings must be against 
 the clear preponderance of evidence in order" 
 to be set aside on appeal. Guetzkow Bros. 
 Co. v. A. H. Andrews & Co. 92 Wis. 214, 
 66 N. W. 119, 52: 209 
 
 808. The finding of commissioners of the 
 value of towage services based upon con- 
 flicting evidence will not be disturbed on 
 appeal. Scott v. Wiswall, 30 C. C. A. 339, 
 57 U. S. App. 179, 86 Fed. 671, 42: 85 
 
 809. The concurrent finding of a master 
 and a chancellor on a disputed matter of 
 fact cannot be reversed on appeal by the 
 chancery court of appeals, where there is 
 material evidence to support it. Royston v. 
 McCulley (Tenn. Ch.) 59 S. W. 725, 52: 899 
 
 810. A finding by a referee and court, 
 made without excluding any evidence, to the 
 effect that there is no evidence tending to 
 prove an allegation, cannot be reviewed on 
 appeal, as that would be to pass upon the 
 weight of the evidence. Lenoir v. Linville 
 Improv. Co. 126 N. C. 922, 36 S. E. 185, 
 
 51: 146 
 
 811. Although the court is required upon 
 appeal to review questions of fact under 
 N. D. Laws 1891, chap. 120, 25, in cases 
 tried by the court or referee when excep- 
 tions to the findings are duly taken and re- 
 turned, it will not try the case de novo, but 
 the findings below are presumed to be cor- 
 rect; and a finding based upon parol evi- 
 dence will not be disturbed unless the error 
 be made clearly to appear. Jasper v. 
 Hazen, 4 N. D. 1, 58 N. W. 454, 23: 58 
 
 812. Findings of fact of a commissioner, 
 though not as conclusive as the verdict of a 
 jury, will be sustained on appeal, where 
 they have been approved by the court below, 
 unless plainly not warranted by any rea- 
 sonable view of the evidence. Reger v. 
 O'Neal, 33 W. Va. 159, 10 S. E. 375, 6: 427 
 
 813. The finding of a referee in favor of 
 the genuineness of a promissory note upon 
 which the suit is brought is conclusive upon 
 the court of appeals of New York, if there 
 was enough evidence before him to call for 
 his opinion upon that subject. Mills v. 
 Davis, 113 N. Y. 243, 21 N. E. 68, 3: 391 
 
 814. The finding of a referee affirmed by, 
 the trial court is conclusive as to whether 
 or not an attempted amendment of the con- 
 fession of faith of a religious society was 
 so radical as to destroy the identity of the 
 church, unless clear error in the finding is 
 pointed out. Schlichter v. Keiter, 156 i'a. 
 119, 27 Atl. 45, 22: 161; 
 
 815. A general finding by a referee that a 
 party was duly appointed adminstrator of 
 the estate of a person referred to as "de-J 
 ceased" throughout the report is sufficient
 
 102 
 
 APPEAL AND ERROR, VII. 1, 5. 
 
 to sustain the administration, where noth- 
 ing further appears in the record to enable 
 the appellate court to judge of its legality. 
 Manning v. Leighton, 65 Vt. 84, 26 Atl. 258, 
 
 24: 684 
 
 816. The court of appeals will not review 
 the conclusion of the officer specially 
 charged with the determination of the ques- 
 tion of the necessity of certain work to com- 
 plete a job or certain supplies for the city 
 of New York, Where it appears that the 
 facts called for the exercise of his judg- 
 taent, and that a reasonable necessity 
 might by possibility have existed. Brady 
 v. New York, 112 N. Y. 480, 20 N. E. 390, 
 
 2:751 
 
 817. A referee's finding in an action for 
 an accounting of the profits of a con- 
 tract, that defendants are entitled to judg- 
 ment dismissing the complaint, and direct- 
 ing judgment to be entered accordingly, up- 
 on the ground that the contract is contrary 
 to public policy and void, is simply a non- 
 suit, and entitles plaintiff to have it re- 
 viewed in the light of the facts and infer- 
 ences most favorable to him. Veazey v. Al- 
 len, 173 N. Y. 359, 66 N. E. 103, 62: 362 
 
 5. On Appeal from Appellate Court. 
 See also supra, 793. 
 
 818. The facts may be reviewed by the 
 supreme court of Illinois to the extent of 
 ascertaining whether or not there was such 
 evidence tending to establish plaintiff's dec- 
 larations as should have been submitted to 
 the jury, where error is assigned to the 
 .giving or refusal of an instruction to find 
 for the defendant. Siddall v. Jansen, 168 
 111. 43, 48 N. E. 191, 39:112 
 
 819. Controverted questions of fact can- 
 not be considered on appeal from the ap- 
 pellate court of Illinois, although the court 
 has not expressly found, in terms, against 
 appellant on those questions, and portions 
 of its opinion are inconsistent with and neg- 
 ative the presumption of such a finding. 
 Postal Teleg. Cable Co. v. Lathrop, 131 111. 
 575, 23 N. E. 583, 7: 474 
 
 820. A finding of the lower court as to 
 the amount of benefits sustained by an ele- 
 vated railroad company from a street pave- 
 ment is not subject to review by the Illi- 
 nois supreme court. Lake Street Elev. R. 
 Co. v. Chicago, 183 111. 75, 55 N. E. 721, 
 
 47: 624 
 
 $21. A statute making the judgment of 
 the appellate court conclusive on all ques- 
 tions ot fact does not violate the provisions 
 of the Illinois Constitution authorizing ap- 
 peals and writs of error to the supreme 
 <;ourt in all criminal cases and cases in 
 which a franchise or freehold or the validity 
 of a statute is involved, and "in such other 
 case as may be provided by law." Lake 
 Shore & M. S. R. Co. v. Richards, 152 111. 
 69, 38 N. E. 773, 30: 33 
 
 822. The finding of facts by the appellate 
 court of Illinois does not bind the supreme 
 court in chancery cases. Belleville v. Citi- 
 zens' Horse R. Co. 152 111. 171, 38 N. E. 584, 
 
 2G: 681 
 
 823. The supreme court of Illinois will ex- 
 amine and determine for itself the truth 
 in respect to controverted questions of fact, 
 from the evidence in the record, in review- 
 ing causes in chancery. Miller v. Cook, 135 
 111. 190, 25 N. E. 756, 10: 292 
 
 824. Findings of facts by the district 
 judge, affirmed by the court of appeal, will, 
 except in case of manifest error, be treated 
 and considered as true. Delisle v. Bourri- 
 ague, 105 La. 77, 29 So. 731, 54: 420 
 
 825. The supreme court of Louisiana has 
 authority to review conclusions of fact 
 reached by the court of appeals, but only 
 does so in exceptional cases. Brignac v. 
 Pacific Mut. L. Ins. Co. 112 La. 574, 36 So. 
 595, 66: 322 
 
 826. A finding of facts affirmed by the ap- 
 pellate division is binding on the court of 
 appeals. Lahey v. La'hey, 174 N. Y. 146, 
 66 N. E. 670. 61 : 791 
 
 827. On an appeal to the New York court 
 of appeals from an order of the general 
 term of the supreme court denying a motion 
 for a new trial, made under N. Y. Code Civ. 
 Proc. 1001, only the questions of law 
 presented can be considered. Wahl v. Bar- 
 rmm, 116 N. Y. 87, 22 N. E. 280, 5: 623 
 
 828. A decision of the general term re- 
 versing a judgment upon exceptions, and at 
 the same time affirming an order separate- 
 ly appealed from which denied a motion for 
 a new trial, can be reviewed by the New 
 York court of appeals only upon questions 
 of law arising upon the exceptions, and not 
 in respect to sufficiency of evidence or ex- 
 cess of damages. Edgecomb v. Buckout, 146 
 N. Y. 332, 40 N. E. 991, 28: 816 
 
 829. Exceptions to alleged findings of fact 
 when they are supported by evidence, and 
 to the refusals to find when they are estab- 
 lished by undisputed proof, present ques- 
 tions of law reviewable in the New "Vork 
 court of appeals. Bedlow v. New York 
 Floating Dry Dock Co. 112 N. Y. 263, 19 
 N. E. 800, " 2: 629 
 
 830. On appeal from a judgment of re- 
 versal upon questions of both law and fact, 
 it will be reviewed as to both in the New 
 York Court of Appeals. Holmes v. Gilman, 
 138 N. Y. 369, 34 N. E. 205, 20: 566 
 
 831. A certificate by the appellate divi- 
 sion, that a reversal was upon the law and 
 upon the facts,, will not prevent the court 
 of appeals from determining whether a ques- 
 tion of fact is involved, and reviewing the 
 law, if there is none. Hirshfeld v. Fitzger- 
 ald, 157 N. Y. 166, 51 N. E. 997, 46: 839 
 
 832. A statement in an order of the ap- 
 pellate division, that it reverses the judg- 
 ment of the trial court "upon the law and 
 the facts," will not prevent a review by the 
 court of appeals of the only question is 
 whether the transaction as disclosed by the 
 facts was forbidden by a statute.. O'Brien 
 v. East River Bridge Co. 161 N. Y. 539, 56 
 N. E. 74, 48: 122 
 
 833. The New York court of appeals will 
 not reverse a determination of a matter of 
 fact which is supported by some evidence, in 
 case of a certiorari to review an assessment 
 for taxes. People ex rel. Hecker-Jones-Jew-
 
 APPEAL AND ERROR, VII. m. 1. 
 
 103 
 
 -ell Mill Co. v. Barker, 147 N. Y. 31, 41 N. 
 E. 435, 29: 393 
 
 834. The court of appeals cannot review 
 the decision of the comptroller when bused 
 on sufficient evidence and affirmed by the 
 appellate divison of the supreme court as 
 to the capital employed within the state up- 
 on Which a corporation is subject to a 
 franchise tax. People ex rel. Commercial 
 able Co. v. Morgan, 178 N. Y. 433, 70 N. 
 E. 967, 67: 960 
 
 835. What may be the law which is to be 
 applied to a contract made in a foreign 
 state is a question of fact, upon which the 
 finding of the trial court, followed by a 
 judgment based thereon, which is affirmed 
 by the appellate division, is binding on the 
 court of appeals. Spies v. National City 
 Bank, 174 N. Y. 222, 66 N. E. 736, 61 : 193 
 
 836. Findings that a plaintiff suing to set 
 aside a deed and mortgages never executed 
 or acknowledged the deed, bvit that her sig- 
 nature and that of the notary public to the 
 acknowledgment clause, though genuine, 
 were obtained by some trick or artifice 
 which is unknown, when accompanied by a 
 decision in her favor and unanimously af- 
 firmed by the appellate division, without 
 any finding that the plaintiff was negligent 
 or was estopped to deny the validity of the 
 deed, or that the holders of the mortgages 
 were bona fide purchasers, are conclusive 
 in the court of appeals in her favor, and pre- 
 clude any contention that she was negligent 
 or estopped or that the mortgages were held 
 by bona fide purchasers. Harden v. Uorthy, 
 160 N. Y. 30, 54 N. E. 726, 46:694 
 
 837. The court of appeals may review the 
 reversal of a judgment by the appellate di- 
 vision of the supreme court, although it is 
 stated to be upon the facts, if the inferences 
 from tne uncontradicted evidence all point 
 in one direction, so that but one conclusion 
 could be reached by any reasonable mind. 
 Re Totten, 179 N. Y. 112, 71 N. E. 748, 
 
 70: 711 
 
 838. A finding that there is no such dis- 
 parity or difference between signatures on 
 drafts presented to a savings bank and that 
 of the depositor on file as to create a doubt 
 or misgiving concerning the genuineness of 
 the signatures in the mind of a competent 
 and reasonably careful bank officer when 
 presented by a person unknown to him, 
 and that, therefore, the bank is not guilty 
 of negligence in failing to make a compari- 
 son, is a conclusion of law reviewable by the 
 appellate court, and not a finding of fact. 
 Kelloy v. Buffalo Sav. Bank, 180 N. Y. 171, 
 72 N." E. f)0f> 3 60: 317 
 
 839. That questions raised by exceptions 
 to instructions and to refusals to instruct 
 are the same as would be raised by a mo- 
 tion to dismiss the complaint will not pre- 
 clude the court of appeals from considering 
 them after unanimous affirmance by the ap- 
 pellate division where there was no request 
 for direction of a verdict or nonsuit, since 
 the constitutional provision which precludes 
 that court from looking into the record to 
 soe if there is any evidence to support the 
 verdict equally precludes looking into the 
 
 evidence to see whether or not the propo- 
 sition requested to be charged Miould logical- 
 ly have been fatal to the disposition of a 
 motion for nonsuit or for direction of a 
 verdict. McGuire v. Bell Teleph. Co. 167 
 N. Y. 208, 60 N. E. 433, 52: 437 
 
 840. The New York court of appeals can- 
 not draw the inference of fraud in the first 
 instance for the purpose of supporting a 
 judgment which does not proceed upon that 
 ground, even though there is evidence which 
 would permit such inference, if there is 
 also evidence negativing its existence. Cle- 
 mans v. Supreme Assembly R. S. of G. F. 
 131 N. Y. 485, 30 N. E. 496, 16: 33 
 
 m. What Ei-rors Warrant Reversal. 
 1. In General. 
 
 Errors Waived or Cured below, see supra, 
 
 VII. k. 
 Failure to Appoint Guardian ad Litem for 
 
 Infant, see Infants, 110. 
 See also supra, 214; infra, 1188, 1189. 
 For Editorial Notes, see infra, XL 14. 
 
 841. Error without prejudice is no ground 
 for reversal. Huron v. Second Ward Sav. 
 Bank, 30 C. C. A. 38, 57 U. S. App. 593, 86 
 Fed. 272, 49: 534 
 
 Southern P. Co. v. Schoer, 52 C. C. A. 268, 
 114 Fed. 466, 57: 707 
 
 St. Louis, A. & T. R. Co. v. Triplett, 54 
 Ark. 289, 15 S. W. 831, 16 S. W. 266, 
 
 11: 773 
 
 Bergin v. Southern New England Teleph. 
 Co. 70 Conn. 54. 38 Atl. 888, 3: 192 
 
 Hartford F. Ins. Co. v. Redding, 47 Fla. 
 228, 37 So. 62, 67:518 
 
 John v. Farwell Co. v. Josephson, 96 Wis. 
 10, 70 N. W. 289, 71 N. W. 109, 37: 138 
 
 842. A correct verdict will not be set 
 aside because of errors occurring on the trial. 
 Krantz v. Rio Grande W. R. Co. 12 Utah, 
 104, 4] Pac. 717, 30: 297 
 
 843. A verdict will not be set aside be- 
 cause of minor errors of law, where the 
 charge of the court on the principal ques- 
 tion in the case necessarily controlled the 
 verdict. Little v. Southern R. Co. 120 Ga. 
 347, 47 S. E. 953, 66: 509 
 
 844. Prejudicial error must be made af- 
 firmatively to appear in ordar to cause the 
 reversal of a judgment. Franke v. Mann, 
 106 Wis. 118, 81 N. W. 1014, 48: 856 
 
 845. A special verdict does not cure mate- 
 rial errors unless it affirmatively shows 
 with decisive clearness that they did no 
 harm. Bowlus v. Phoenix Ins. Co. 133 Ind. 
 106, 32 N. E. 319, 20: 400 
 
 846. Failure to show that a designated 
 person was regularly appointed shorthand 
 reporter to take the testimony of an ac- 
 cused before a committing magistrate will 
 not support an assignment of error if it 
 does not appear that he acted or reported 
 the testimony or certified to it. People v. 
 Ebanks, 117 Cal. 652, 49 Pac. 1049, 40: 269 
 
 847. The failure to specify in the order 
 of record granting a new trial the ground 
 on which it; was granted, as required by Mo. 
 Rev. Stat. 1889, 2241, is not reversible
 
 104 
 
 APPEAL AND ERROR, VII. m, 2. 
 
 error. Smith v. Sedalia, 152 Mo. 283, 53 
 S. W. 907, 48: 711 
 
 848. In an action for damages for person- 
 al injuries, if the declaration shows the ju- 
 risdiction of the court, and no plea in abate- 
 ment has been filed, the judgment will not 
 be reversed for want of prool of the venue 
 as laid. Snyder v. Philadelphia Co. 54 W. 
 Va. 149, 46 S. E. 366, 63: 896 
 
 849. The omission to allege or prove an 
 offer to return benefits received under an 
 agreement for a release is not prejudicial 
 error on appeal, where the point was Hot 
 made in the trial court and the benefits 
 were accounted for in the judgment. Gi- 
 rard v. St. Louis Car- Wheel Co. 123 Mo. 358. 
 27 S. W. 648, 25: 514 
 
 850. Applause at the conclusion of the ad- 
 dress by the prosecuting attorney, which 
 was not connived at by the prosecution, and 
 was quickly suppressed and rebuked by the 
 judge, is not ground for reversal where the 
 record fails to show that it prejudiced the 
 defendant. Debney v. State, 45 Neb. 856, 
 64 N. W. 446, 34: 851 
 
 851. An order for a new trial on plaintiff's 
 motion, even if inadvertently granted as to 
 one of the defendants, whose right to an 
 undivided half of real property in dispute 
 was admitted to be as the judgment deter- 
 mined it, must be reversed as to him. Lee 
 v. Fletcher, 46 Minn. 49, 48 N. W. 456, 
 
 12: 171 
 Failure to summon jury. 
 
 852. The error of the chancellor in failing 
 to summon a jury to inquire into the in- 
 competeney of the complainant in a suit 
 brought by his next friend to set aside a 
 conveyance, where he denies his incompe- 
 tency and asks for the dismissal of the 
 suit, being prejudicial to him alone, may be 
 disregarded on appeal when such person has 
 died, and his heirs have been substituted 
 and ask for the affirmance of the judgment. 
 Howard v. Howard, 87 Ky. 616, 9 S. W. 411, 
 
 1:610 
 Parties. 
 
 853. An error, if any, in bringing an ac- 
 tion in the corporate name of a church, in- 
 stead of in the name of its trustees, is im- 
 material, as the appellate court will direct 
 the substitution of the trustees as plaintiffs. 
 Chicago G. W. R. Co. v. First M. E. Church, 
 42 C. C. A. 178, 102 Fed. 85, 50: 488 
 Costs. 
 
 854. Error in refusing to retax costs after 
 rendition of a judgment is no ground for 
 reversal of the judgment. Mobile Transp. 
 Co. v. Mobile, 128 Ala. 335, 30 So. 645, 
 
 64: 333 
 Consolidation of actions. 
 
 855. The improper consolidation of sever- 
 al actions attacking deeds of a decedent is 
 ground of reversal where the defendants 
 therein were thereby deprived of the right 
 to each other's testimony. Smith v. Smith, 
 22 Colo. 480, 46 Pac. 128, 34: 49 
 
 2. As to Pleadings. 
 
 Errors Waived or Cured below, see supra, 
 VII. k, 2. 
 
 856. Exceptions as to issues are untenable 
 where the party making them was not de- 
 prived of the opportunity to present any 
 view of the law arising out of the testi- 
 mony. Bass v. Roanoke Nav. & W. P. Co.. 
 Ill N. C. 439, 16 S. E. 402, 19: 247 
 
 857. Permitting the signature of the clerk 
 and master of the court to be affixed to the- 
 jurat of an answer on the trial of the case 
 and before the answer is read, on counsel's' 
 statement that it has been sworn to before 
 such officer, instead of on the evidence of the 
 officer himself, is not reversible error unless 
 it appears that the evidence so accepted has- 
 led the chancellor aside from the truth to* 
 the injury of the lit.igant affected thereby. 
 Royston v. McCulley (Tenn. Ch.) 59 S. W. 
 725, 52: 89!) 
 
 858. Only the entire absence of a material 
 fact in a complaint will make it insufficient 
 on appeal to sustain a judgment on the 
 merits. Bates v. Babcock, 95 Gal. 479. 30 
 Pac. 605, 16: 745- 
 
 859. A judgment in a suit to set aside the- 
 cancelation of a policy of insurance and to 
 recover the amount thereof will not be re- 
 versed when it is for the precise sum which 
 plaintiff could have recovered at law, be- 
 cause he asked for equitable relief, which 
 was not necessary to his recoverv. Duncan 
 v. New York Mut. Ins. Co. 138 N. Y. 88, 
 33 N. E. 730, 20: 38<> 
 
 840. A verdict in favor of a railway pas- 
 senger to. compensate him for injuries 'to- 
 his arm caused by contact with a bridge 
 abutment cannot be sustained on appeal^ 
 after the striking of a count alleging that 
 he voluntarily placed his arm out of the- 
 car window, if the other counts allege that 
 it was flung out by a lurch of the car caused 
 by one rail being lower than the other, and 
 the evidence shows only % inch difference- 
 in the height of the rails, that the window 
 was 15 feet from the abutment, which was- 
 not touched by the car, and the body of no- 
 passenger was moved from its position, the 
 allegation being so improbable in view of the- 
 evidence that the stricken count must have- 
 influenced the verdict. Richmond & D. R. 
 Co. v. Scott, 88 Va, 958, 14 S. E. 763, 16: 91 
 
 861. The allowance of bad pleas is harm- 
 less error, if no evidence is given under 
 them. Tower v. Whip, 53 W. Va. 158, 44 
 S. E. 179, 63: 93T 
 
 862. A decree in a cause in which the par- 
 ties, after plea is filed and set down, fait 
 to bring it on for 'hearing, and proceed to 
 take testimony as to the merits of the plea, 
 and further bring the case on for hearing, 
 will not be reversed unless there is error on 
 the merits. Stackpole v. Hancock, 40 Fia. 
 362, 24 So. 914, 45: 814 
 
 863. The omission of the noncollusion 
 clause from a cross-bill in a divorce suit is- 
 not fatal on appeal, but the court may al- 
 low it to be supplied. Glutton v. Glutton, 
 108 Mich. 267, 66.- N. W. 52, 31: 160- 
 
 864. Failure to dispose of a special plea, 
 is not ground for reversal if the same de- 
 fense was available Minder the other plead- 
 ings. Taylor v. Branham, 35 Fla. 297, 17 So. 
 552, 39: 362
 
 APPEAL AND ERROR, VII. nv 2. 
 
 105 
 
 865. Refusal to permit the filing of addi- 
 tional defenses to certain counts in the dec- 
 laration is not error when the counts k.re 
 treated as out of the case. Hygeia Distilled 
 Water Co. v. Hygeia Ice Co. 72 Conn. 640, 
 45 Atl. 957, 49: 147 
 Exceptions. 
 
 Krrors Waived below, see supra, G85. 
 
 866. Error, in sustaining exceptions to 
 portions of an answer is immaterial, if the 
 averments excluded could not have changed 
 the result. Smith v. McDowell ex rel. Hall, 
 148 111. 61, 35 N. E. 141, 22: 393 
 Rulings on demurrer. 
 
 Krrors Waived or Cured below, see supra, 
 
 686-690. 
 See also infra, 887. 
 
 867. If a party whose pleading is de- 
 murred to, instead of applying for leave to 
 amend, procures a ruling in his favor, he 
 does so at his peril that such ruling will be 
 reversed on appeal. Johnson v. Robinson 
 Cunsol. Mill. Co. 13 Coio. 258, 22 Pac. 459, 
 
 5: 769 
 
 868. Error in overruling a demurrer to a 
 bud answer will require reversal unless it 
 dearly appears from the record that no 
 harm was done plaintiff. Bowlus v. Phosnix 
 Ins. Co. 133 Ind. 106, 32 N. E. 319, 20: 400 
 
 869. Overruling a demurrer to a bad par- 
 agraph of a complaint is not available error 
 if the judgment rests on a good paragraph. 
 Pittsburg, C. C. & St. L. R. Co. v. Moore, 
 152 Ind. 345, 53 N. E. 290, 419, 44: 638 
 
 870. Sustaining a demurrer to a plea is 
 not prejuuicial error, if other pleas gave 
 defendant the same advantage that he could 
 have had under the former. Kansas City, 
 \L & B. R. Co. v. Higdon, 94 Ala. 286, 10 
 So. 282, 14: 515 
 
 871. Sustaining a demurrer to special de- 
 fenses is not prejudicial error, when defend- 
 ant has had the benefit on the trial of all 
 evidence that could have been introduced 
 under those defenses, flatt Bros. & Co. v. 
 Waterbury, 72 Conn. 531, 45 Atl. 154, 
 
 48: 691 
 
 S72. Sustaining a demurrer to one para- 
 graph of an answer is not cause for reversal, 
 if the appellant could avail himself of the 
 same defense under the paragraph remain- 
 ing. Wolilford v. Citizens. Bldg. L. & S. 
 ABSO. 140 Ind. 662, 40 N. E. 694. 29: 177 
 Lucas v. Herbert, 148 Ind. 64, 47 X. E. 
 146, 37. 370 
 
 873. Sustaining a demurrer to a plea in 
 an action for negligent injuries, which al- 
 leges that they were committed by a third 
 person, is not error where there is also a 
 plea of the general issue, since the plea de- 
 murred to amounts merely to the general 
 issue. Hagentown v. Klotz, 93 Md. 437, 
 49 Atl. 836, .')4: !I40 
 
 874. Error in overruling demurrers to cer- 
 tain paragraphs of an answer is immaterial 
 where the same evidence could be introduced 
 and the same facts found under the general 
 denial as under those paragraphs of the 
 answer, and there is a special finding of 
 facts which controls the judgment. Walling 
 v. Burgess, 122 Ind. 299, 309, 22 N. E. 419, 
 23 N. E. 1076, 7: 481 
 
 875. An erroneous ruling in sustaining a 
 demurrer to a cross bill is harmless where 
 all the facts and circumstances alleged in 
 such cross bill were brought before the court 
 so as to show that such cross bill could not 
 have been maintained upon the facts. Dun- 
 ham v. Dunham, 162 111. 589, 44 N. E. 841, 
 
 35: 70 
 
 876. Error in sustaining a demurrer of 
 a party disclaiming any interest in the liti- 
 gation is not sufficient to justify a reversal 
 nnd remanding of the cause for the purpose 
 of allowing him to answer. Harding v. 
 American Glucose Co. 182 111. 551, 55 N. E. 
 577, 64: 738- 
 
 877. A statute forbidding reversal of a 
 judgment when it shall appear that the 
 merits of the case have been fairly tried and 
 determined cannot be applied in case of the 
 erroneous sustaining of a demurrer to the 
 affirmative matter in a paragraph of the 
 answer, when the effect was to exclude 
 evidence of the matters therein alleged, so- 
 that it is impossible to determine from the 
 record how far defendant was prejudiced by 
 the ruling. Barnard v. Shirley, 135 Ind. 
 547. 34 N. E. 600, 35 N. E. 117, 24: 568 
 
 878. The erroneous overruling of a demur- 
 rer to a bad paragraph of a complaint re- 
 quires a reversal, if it is not shown by the 
 record proper that the judgment rests on a 
 good paragraph. Terre Haute & T. R. Co. 
 v. Sherwood, 132 Ind. 129, 31 N. E. 781, 
 
 17: 339 
 
 879. Where a defendant was totally de- 
 prived of his defense by the action of the 
 court in first sustaining a demurrer to his 
 answer, which set up a contract for the sole 
 agency of the goods purchased by him, and 
 a breach thereof by plaintiffs, and then, on 
 his amended answer setting up the invalid- 
 ity of the contract as an absolute defense, 
 making a ruling, after the case as submit- 
 ted on the pleadings, to the effect that the 
 contract was valid, although the latter rul- 
 ing was correct the judgment will be re- 
 versed. Newell v. Meyendorff, 9 Mont. 254, 
 23 Pac. 333, 8: 440 
 
 880. Failure to pass upon a demurrer to a 
 defense, and entering judgment for plaintiff 
 on the pleadings, is not prejudicial to de- 
 fendant when the defense was insufficient 
 and the defect such that it could not have 
 been cured by amendment. Kindel v. Beck 
 & P. Lithographing Co. 19 Colo. 310, 35 Pac. 
 538, 24: 311 
 Amendments. 
 
 881. Refusal to allow a pleading to be 
 amended during trial will not be ground for 
 reversal, where no abuse of discretion or 
 necessity to amend is shown. York v. Stew- 
 ard, 21 Mont. 515, 55 Pac. 29, 43:125 
 
 882. Refusal to permit an amendment of 
 a complaint for detention of property so as 
 to claim damages is not prejudicial where 
 the right to recover the property is denied 
 by the judgment. National Steamship Co. 
 v. Sheahan, 122 N. Y. 461, 25 N. E. 858, 
 
 10: V2 
 
 883. A defendant cannot urge that he was 
 prejudiced by an amendment of the com- 
 plaint, when it was made on condition that
 
 1C6 
 
 APPEAL AND ERROR, VII. m, 3. 
 
 lie be given sufficient time to prepare to 
 meet the .issues as amended, and he subse- 
 quently announced himself ready and pro- 
 ceeded to trial on the amended pleadings. 
 McCabe v. ^Etna Ins. Co. 9 iN. D. 19, 81 N. 
 W. 426, 47: 641 
 
 Striking out. 
 
 884. An erroneous order striking from the 
 files a bill of review -will not be reversed 
 unless it is prejudicial. Wood v. Wood, 59 
 Ark. 441, 27 S. W. 641, 28: 157 
 
 885. Striking a paragraph from a com- 
 plaint on motion is not reversible error, if 
 it was not sufficient to authorize a recovery. 
 Braithwaite v. Harvey, 14 Mont. 208, 36 
 Pac. 38, 27: 101 
 
 886. Technical error in refusing to strike 
 out mere probative matter from a com- 
 plaint is not groun.i for reversal. Sloane v. 
 Southern Cal. R. Co. Ill Cal. 668, 44 Pac. 
 320, 32: 193 
 
 887. A judgment will not be reversed be- 
 cause the sufficiency of an answer was test- 
 ed by what was called a motion to strike, 
 instead of by demurrer, although the prac- 
 tice is improper, where the motion has been 
 treated by the parties as in effect a de- 
 murrer. Wisconsin Lumoer Co. v. Greene & 
 W. Teleph, Co. 127 Iowa, 350, 101 N. W. 742, 
 
 69: 968 
 
 Criminal cases. 
 Errors Cured below, see supra, 675. 
 
 888. A judgment entered on general ver- 
 dict of guilty upon an infonnation for prac- 
 tising medicine without a license, one count 
 of which is good and sustained by the evi- 
 dence, will not be set aside on appeal be- 
 cause some counts of the information are 
 insufficient. Parks v. State, 159 Ind. 211, 
 64 N. E. 862, 59: 190 
 
 3. As to Evidence. 
 
 a. Erroneous Admission. 
 
 (1) In General; Various Particular Matters. 
 
 Errors as to, Waived or Cured below, see 
 supra, VII. k, 3; infra, VII. m, 3, a, (5). 
 See also Evidence, 1934. 
 
 889. Material evidence erroneously admit- 
 ted will not be hold harmless unless the 
 other evidence in favor of the verdict so 
 greatly preponderates that a contrary ver- 
 dict would be set aside by the court as con- 
 trary to the evidence. Re Eysaman's Will, 
 113 N. Y. 62, 20 X. E. 613, 3: 599 
 
 890. Incompetent evidence on a material 
 point cannot be held harmless, unless the 
 facts which it tended to prove were estab- 
 lished by contradictory evidence. Ohio & M. 
 R. Co. v. Stein, 133 Ind. 243, 31 N. E. 180 ? 
 
 19: 733 
 
 891. Where there is error which cannot be 
 said to bo without injury, as it cannot be 
 where testimony contributing to the weight 
 of evidence on a pnint as to which there is 
 conflict of testimony hns been erroneous'y 
 admitted, tho judgment must be reversed. 
 Simmons v. Sprat't, 26 Fla. 449, 8 So. 123. 
 
 9: 343 
 
 892. The admission of improper testimony 
 will ca.use the reversal of a case if it might 
 have influenced the jury in arriving at their 
 verdict, although, in the absence of such tes- 
 timony, the appellate court might have sus- 
 tained the verdict upon the other facts 
 proved in the case. Fordyce v. McCants, 51 
 Ark. 509, 1 S. W. 694, 4: 296 
 
 893. Permitting incompetent evidence 
 tending to support a finding to go to the 
 jury over objection will cause a reversal of 
 the judgment, where the other evidence in 
 support of such finding is not of a satisfac- 
 tory character. Terre Haute & I. R. Co. v. 
 Clem, 123 Ind. 15, 23 N. E. 965, 7: 588 
 
 894. Improper evidence introduced by eva- 
 sion of an adverse ruling will be presumed 
 prejudicial. Bank of Commerce v. Goos, 39 
 Neb. 437, 58 K W. 84, 23: 190 
 
 895. Proof made by an original book of 
 records cannot be prejudicial merely because 
 the proof should have been made by certified 
 copy. State v. Hoskins, 109 Iowa, 656, 80 
 N. W. 1063, 47 : 223 
 
 896. Although the motion for the produc- 
 tion of books and papers is defective, or the 
 order made upon it too broad, yet, if such 
 instruments of evidence are used in the 
 mode required by law on the trial, there ia 
 no prejudicial error. Cleveland, C. C. & I. 
 R. Co. v. Closser, 126 Ind. 348, 26 N. E. 159, 
 
 9: 754 
 
 897. The admission of testimony by phy- 
 sicians appointed by the court to examine 
 plaintiff in an action for negligent inju- 
 ries, as to the result of an examination made 
 after defendant's motion for such exami- 
 nation was withdrawn, is erroneous. South 
 Covington & C. Street R. Co. v. Stroh, 23 
 Ky. L. Rep. 1807, 66 S. W. 177, 57: 875 
 
 898. The admission in evidence of news- 
 paper publications and proceedings of pub- 
 lic bodies, consisting, in the main, of decla- 
 rations and statements irrelevant to the is- 
 sue, and manifestly tending to inflame the 
 minds of the jury, is prejudicial error, 
 though containing some evidence which, 
 standing alone, might be proper. Green v. 
 Ashland Water Co. 101 Wis. 258, 77 N. W. 
 722, 43: 117 
 
 899. Testimony by the plaintiff in a suit 
 for breach of promise to marry, that she 
 supposed a phrase in one of defendant's 
 letters had reference to getting married, 
 though it was the province of the jury to 
 interpret the phrase, does no injury because 
 it is inconclusive, and merely gives her sup- 
 position. Lewis v. Tapman, 90 Md. 294, 45 
 Atl. 459, 47: 385 
 
 900. It is not reversible error to admit 
 evidence of general reputation as to the fi- 
 nancial ability of a prior indorser of a noto, 
 to corroborate testimony by the holder that 
 his indorser waived presentment and notice 
 of dishonor of the note to him. Coleman v. 
 Lewis, 183 Mass. 485, 67 N. E. 603, 68: 48'J 
 
 901. In a suit by the wife of a member of 
 a mutual benefit association, who is tho 
 beneficiary named in the certificate, to ro- 
 cover the amount of the death benefit named 
 therein, tho admission in evidence by the 
 trial judge over objection, of parol declara-
 
 APPEAL AND ERROR, VII. m, 3. 
 
 107 
 
 tions of the secretary to the plaintiff, waiv- 
 ing the payment or assessments for death 
 benefits required by the by-laws until such 
 time as she should find out whether her hus- 
 band was dead or alive, is error. Kocher v. 
 Supreme Council C. B. L. (N. J. Err. & App.) 
 65 N. J. L. 649, 48 Atl. 544, 52: 861 
 
 902. Error, if any, in allowing the intro- 
 duction in evidence of a deed defective be- 
 cause executed in the name of a partnership 
 simply, and not signed by the individual 
 members thereof, is immaterial where the 
 deed was given to a new firm composed of 
 the members of the partnership and one 
 other, who afterwards executed a deed 
 signed by both the firm and the individual 
 members thereof, coveying to a third party 
 the property described in the first, deed, and 
 the question at issue is whether title to the 
 property has passed out of the grantors in 
 the first deed into the grantees in the second 
 deed. McRae v. Stillwell, 111 Ga. 65, 36 S. 
 E. 604, 55: 513 
 
 903. Evidence in rebuttal, which further 
 refers to repairs ma.de by a railroad com- 
 pany to an alleged defective fence after an 
 accident, will net require reversal, if the 
 company first gave evidence of such repairs. 
 Atchison, T. & S. F. R. Co. v. Reesman, 9 
 C. C. A. 20, 19 U. S. App. 596, 60 Fed. 370, 
 
 23: 768 
 
 904. A person on trial for collecting fic- 
 titious claims against a county is not pre- 
 judiced by the admission in evidence of 
 claims actually filed by him, although they 
 were not properly authenticated, and were 
 therefore incompetent, had the proper ob- 
 jection been made. State v. Brady, 100 
 Iowa, 191. 69 N. W. 290, 36: 693 
 
 905. The admission of incompetent evi- 
 dence will not be held to be nonprejudicial 
 to defendant in an action to enjoin an ele- 
 vated raiload company from operating its 
 road until it pays the damage done to an 
 abutting property owner, because the com- 
 pany is not bound to pay the ascertained 
 damages to acquire the easement, but may 
 submit to the injunction and proceed to ac- 
 quire the right by eminent domain. Roberts 
 v. New York Elev. R. Co. 128 N. Y. 455, 
 28 N. E. 486, 13: 499 
 Erroneous reason. 
 
 906. The admission of evidence which was 
 not objectionable for the reason urged 
 against it will not be ground for reversal, 
 even if the reason urged for its admission 
 may be erroneous. Jenney Electric Co. v. 
 Branham, 145 Ind. 314, 41 N. E. 448, 
 
 33: 395 
 Criminal cases. 
 
 907. It is not prejudicial error to admit 
 against one on trial for murder the whole 
 of a conversation in which some of his re- 
 plies had a tendency to show guilt, while 
 others were explicit denials of guilt. Com. 
 \. Trefethen, 157 Mass. 180, 31 N. E. 961, 
 
 24: 235 
 
 908. Evidence of the commission of an of- 
 fense at different times will not require the 
 reversal of a conviction where the offense is 
 .a continuous one and all prior violations are 
 
 barred by the conviction. Townsend v. 
 State, 147 Ind. 624, 47 N. E. 19, 37: 294 
 
 909. Although in a murder trial the proof 
 of the murder is abundant, yet the admis- 
 sion of evidence that defendant, a short 
 time after the killing, committed rape upon 
 the wife of the deceased, no apparent con- 
 nection being shown between the two 
 crimes, is such error as calls for a rever- 
 sal, the tendency of such evidence being to 
 destroy any feeling of mercy which might 
 otherwise have existed in the minds of the 
 jury. Fan-is v. People, 129 111. 521, 21 N. E. 
 821, 4: 582 
 
 910-911. It is not error to admit evidence 
 of comparisons of bills presented against 
 him in an equity case and those found on 
 the bill file of one accused of obtaining prop- 
 erty by false pretenses, although evidence 
 of the private bill file was not proper evi- 
 dence in the case, if no motion had been 
 made to strike it out. Blum v. State, 94 
 Md. 375, 51 Atl. 26, 56: 322 
 
 (2) Immaterial; Admitted or Uncontrovert- 
 ed Facts. 
 
 912. Irrelevant testimony will not require 
 a reversal, if it was harmless. Mack v. 
 South Bound R. Co. 52 S. C. 323, 29 S. E. 
 905, 40: 679 
 
 913. Error in admitting evidence to estab- 
 lish immaterial facts incorporated in special 
 findings does not require reversal. Lamson 
 v. Beard, 36 C. C. A. 56, 94 Fed. 30, 45: 822 
 
 914. An error in admitting testimony 
 which was immaterial upon any of the is- 
 sues submitted, and which affected no sub- 
 stantial right, is not ground of reversal. 
 Kircher v. Milwaukee Mechanics Mut Ins. 
 Co. 74 Wis. 470, 43 N. W. 487, 5: 779 
 
 915. Evidence of the suffering of the moth- 
 er on account of a son's death, for which 
 action is brought, is not prejudicial error on 
 the ground that the damages belong to the 
 father only, as it is immaterial to the de- 
 fendant how they are distributed. Norfolk 
 & W. R. C>. v. Stevens, 97 Va. 631, 34 S. E. 
 525, 46: 367 
 
 916. The admission of evidence of a con- 
 versation between the maker and payee of 
 a note as to the law by which it shall be 
 governed, which took place in the absence ot 
 the surety, is not reversible error upon com- 
 plaint of the surety, where the conversation 
 merely corroborated the effect of the con- 
 tract itself, and there was no evidence to 
 the contrary. Oarrigue v. Keller, 164 Ina. 
 676, 74 N. E. 523, 69: S70 
 
 917. If no evidence was introduced tending 
 to support a counterclaim, error of a court 
 in basing its finding against the counter- 
 claim on its judicial notice of the record in 
 another cause, which record is not in evi- 
 dence, will not cause a reversal of the judg- 
 ment. Stanley v. McElrath, 86 Cal. 449, 25 
 Pac. 16, 10: 545 
 
 918. The admission of incompetent dec- 
 larations of an employee of a railroad com- 
 pany, in an action against it for damages 
 for injuries to stock transported by it, is 
 immaterial error where the facts stated by 
 such employee are not in controversy. At-
 
 108 
 
 APPEAL AND ERROR, VII. m, 3. 
 
 chison, T. & S. F. R. Co. v. Temple, 47 Kan. 
 7, 27 Pac. 98, 13: 362 
 
 (3) Facts Otherwise Proved. 
 
 919. The admission of incompetent evi- 
 dence does not constitute reversible error 
 when without the evidence the decision 
 must have been the same. Barber Asphalt 
 Paving Co. v. French, 158 Mo. 534, 58 S. W. 
 934, 54: 492 
 
 920. A judgment will not be reversed be- 
 cause of the admission of incompetent evi- 
 dence, where there is sufficient uncontra- 
 dicted and admissible evidence to uphold it. 
 Re Crawford, 113 N. Y. 560, 21 N. E. 692, 
 
 5 - 71 
 
 Parsons v. New York C. & H. R. R. Co. 
 113 N. Y. 355, 21 N. E. 145, 3:683 
 
 921. The admission of an answer to a 
 question which, as propounded, is too broad, 
 is not' reversible error if, irrespective of 
 such answer, there is ample testimony to 
 sustain the finding of the jury. Bergh v. 
 Herring-Hall-Marvin Safe Co. 136 Fed. 368, 
 
 70: 756 
 
 922. The admission of evidence for the 
 purpose of proving the identity of goods 
 delivered to and lost by a common carrier, 
 in an action brought to recover damages for 
 such loss, will not, although improperly ad- 
 mitted, cause a reversal of a judgment 
 against the carrier, if the identity of the 
 goods was sufficiently established by other 
 testimony in the case. Browning v. Good- 
 rich Transp. Co. 78 Wis. 391, 47 N. W. 428, 
 
 10: 415 
 
 923. The admission of an action for dam- 
 ages for the destruction of property by fire 
 set- by locomotive, of a statement made oy 
 the witness at the time of the fire, that if 
 there were any coals under the plank walk 
 there would be a blaze, though error, is not 
 prejudicial where the correctness of the re- 
 mark is shown by other testimony. Jack- 
 sonville, T. & K. W. R. Co. v. Peninsular 
 Land; T. & M.'g. Co. 27 Fla. 1, 157, 2 So. 661, 
 9 So. 689, 17: 33 
 
 924. Allowing a witness to give an opin- 
 ion as to negligence is not ground for re- 
 versal, if the facts were fully shown and 
 the negligence fully proved by other evi- 
 dence. Giraudi v. Electric Improv. Co. 107 
 Cal. 120, 40 Pac. 108, 28: 596 
 
 925. Error in permitting consignees of 
 dressed poultry to give their opinions that 
 nothing was omitted to be done towards the 
 proper handling of the poultry by them 
 alter receiving it, and that delay in deliv- 
 ery was not caused by anything they did 
 or failed to do, does not require reversal 
 of a judgment against the carrier for loss 
 caused by delay in transportation, where it 
 appears, from uncontradicted facts in the 
 record, that the opinions were correct. 
 Pennsylvania R. Co. v. Naive, 112 Tenn. 
 239, 79 S. W. 124, 64: 443 
 
 926. To permit an answer by an expert on 
 a hypothetical question a& to insanity, em- 
 bracing only the evidence of one party, is 
 not reversible error if both parties subse- 
 quently submit and obtain answers to ques- 
 
 tions containing .all the evidence. Burt v*. 
 State, 38 Tex. Crim. Rep. 397, 40 S. W 
 1000, 43 S. W. 344, 39: 305- 
 
 927. A ruling by a referee that the pe- 
 tition in" a case be taken as true becauso of 
 the defendant's failure to produce book* 
 and papers and answer interrogatories i 
 not reversible error, where plaintiff's evi- 
 dence establishes the facts pleaded without 
 conflict and defendant introduces no evidence 
 whatever.' Cook v. Chicago, R. I. & P. R'. 
 Co. 81 Iowa, 551, 46 N. W. 1080, 9: 764 
 
 928. Permitting a paper to be read in evi- 
 dence which vas set out in the complaint, 
 and thus made a part of the record in the 
 cause, cannot be detrimental to the objecting 
 party so as to constitute reversible error. 
 Citizens Street R. Co. v. Robbins, 128 Ind. 
 449, 26 N. E. 116, 12: 498- 
 
 (4) Witnesses and Their Examination. 
 
 Instructions as to Credibility of Witnesses,, 
 see Trial, 711-724. 
 
 929. A judgment will not be reversed be- 
 cause an improper question is asked, if no- 
 inadmissible evidence is obtained in answer 
 to it. State v. Burbee, 65 Vt. 1, 25 Atl. 964. 
 
 19: 145- 
 
 930. Erroneously permitting an expert to- 
 give his opinion on a question which the 
 jury should decide without such aid will not 
 cause a reversal, if the opinion was correct,, 
 and expressed the conclusion which the jury 
 must necessarily have drawn from the fact* 
 in evidence. Fisher v. Oregon S. L. & U. N~ 
 R. Co. 22 Or. 533, 30 Pac. 425, 16: 519' 
 
 931. An error in permitting a question to- 
 be asked which calls for the opinion of the 
 witness, involving a mixed question of law 
 and fact as to the depreciation in the mar- 
 ket value of property from certain causes, 
 is harmless where the answer of the witnes* 
 is equivalent to stating the value of the- 
 property before and after the alleged causes 
 existed, and that the causes of the de- 
 crease are those enumerated. Gainesville,. 
 H. & W. R. Co. v. Hall, 78 Tex. 169, 14 S. 
 W. 259, 9 : 29* 
 
 932. The refusal of the court to allow a. 
 witness on his re-examination to answer a 
 question whether or not he had recovered a 
 judgment against the defendant, where on 
 cross-examination he had been asked if he 
 had not a controversy with the defendant, 
 sufficiently protects the defendant's right* 
 as against an objection to the question. 
 Kentucky C. R. Co. v. Smith, 93 Ivy. 449_ 
 20 S. W. 392, 18: 6* 
 Leading questions. 
 
 933. No reversal will be granted for the 
 allowance of leading questions unless there- 
 has been a manifest abuse of discretion. 
 White v. White, 82 Cal. 427, 23 Pac. 276, 
 
 7: 799' 
 
 Examination of witness; physical exami- 
 nation. 
 
 934. There will be no reversal for cross-ex- 
 amination as to matters not testified to in 
 chief if the examination in chief is not itt 
 the record, so that it does not appear wheth-
 
 APPEAL AND ERROR, VII m, 3. 
 
 1(9 
 
 cr the cross-examination was improper or I 
 not. People v. Ebanks, 117 Cal. 652, 49 
 Pae. 1049, 40: 269 
 
 935. Allowing the plaintiff in an action 
 for personal injuries to exhibit her actual 
 condition to the jury by lying on a lounge, 
 with her physician attending her, when her 
 testimony is taken, and allowing her daugh- 
 ter to weep, is not ground of reversal. fc>ei- 
 leck v. Janesville, 100 Wis. 157. 75 N. W. 
 Q75, 41: 563 
 
 936. If a proper case for granting a mo- 
 tion for the surgical examination, by ex- 
 perts, of the person of one seeking to recover 
 lor personal injuries, is clearly made out, 
 iind the motion is refused, the appellate 
 ^ourt, having before it all the facts involved 
 in the determination by the Iqwer court, 
 will reverse the judgment. Alabama G. S. 
 II. Co. v. Hill, 90 Ala. 71, 8 So. 90, 9: 442 
 
 937. It is reversible error to refuse defend- 
 ant in an action by a child for personal in- 
 juries an order for a physical examination 
 of plaintiff by physicians to be appointed by 
 the court, where defendant has no other 
 method of determining the extent of the 
 injury, and the examination may be made 
 without pain or danger to the plaintiff. 
 South Bend v. Turner, 156 Ind. 418, 60 N. E. 
 271, 54: 396 
 
 (5) Error Cured by Instruction, Verdict, etc. 
 
 See also supra, VII. k. 3. 
 
 938. A ruling admitting competent evi- 
 dence to be given by a witness who at the 
 time was incompetent, over the objection 
 that the evidence was not competent, does 
 not require a reversal where evidence subse- 
 quently admitted removed the disability, 
 and by a proper objection the witness might 
 have been qualified before his testimony was 
 received. Hoag v. Wright, 174 N. Y. 36, 66 
 N. E. 579, 63: 163 
 By withdrawal ; striking out. 
 
 939. The erroneous admission of evidence 
 which was substantially withdrawn from 
 the jury will not constitute ground for re- 
 versal where it does not appear that it was 
 calculated to operate to the injury of the 
 party complaining. Dillingham v. Anthony, 
 73 Tex. 47, 11 S. W. 139, 3: 634 
 
 940. Permitting a witness to answer a 
 question as to what he did on a certain 
 occasion, over an objection that it calls for 
 .a conclusion or opinion, is not reversible er- 
 ror where the court subsequently strikes out 
 of the answer all that portion which states 
 a conclusion or opifiion. Pennsylvania Co. 
 v. Marien, 123 Ind. 415, 23 N. E. 973, 7: 687 
 
 941. Admission of testimony by the pre- 
 siding judge on a trial for murder, reflecting 
 on the good faith of defendant in a pre- 
 vious application for a continuance, is re- 
 versible error although the testimony is sub- 
 sequently excluded and no objection was 
 taken to the competency of the judge as a 
 ^witness, where the competency of the evi- 
 dence was objected to. Rogers v. State, Co 
 Ark. 76, 29 S. W. 894, 31: 465 
 
 By instructions. 
 
 942. An error in admitting improper evi- 
 dence is cured where the court, in its general 
 charge, placed the matter before the jury in 
 a manner which relieved the defendant of 
 any effect such testimony might have had 
 in enhancing plaintiff's damages. Cadman 
 v. Markle, 76 Mich. 448, 43 IS. W. 315, 
 
 5: 707 
 
 943. The admission of testimony relative 
 to an injury to property by the flow of 
 water is not injurious where the charge of 
 the court confines the jury to the sole ques- 
 tion of damages caused by the obstruction 
 of the street in front of the property. 
 Schneider v. Detroit, 72 Mich. 240, 40 N. W. 
 329, 2: 54 
 
 944. Permitting witnesses to give an opin- 
 ion as to the amount of damage inflicted on 
 abutting property by the construction of a 
 viaduct in the street is not reversible error, 
 where the jury is instructed that the dam- 
 age will be the difference in the value of 
 the property before such construction and 
 immediately afterwards. Spencer v. Metro- 
 politan Street R. Co. 120 Mo. 154, 23 S. W. 
 126, 22: 668 
 
 945 The admission of evidence as to the 
 degree and time of plaintiff's disablement 
 in an action for assault, is not error, al- 
 though no damages are claimed for loss of 
 time, where the jury was instructed to allow 
 nothing for such loss, since the evidence is 
 admissible to show the extent of the inju- 
 ries. Gutzman v. Clancy, 114 Wis. 589, 90 
 N. W. 1081, 58: 744 
 
 946. Admitting testimony as to the num- 
 ber of his family and who constitute it, by 
 plaintiff in an action for personal injuries, is 
 immaterial, at least where the jury are 
 limited by instruction to actual damages un- 
 less they find a wilful, palpable disregard of 
 duty by the defendants. Johns v. Charlotte, 
 C. & A. R. Co. 39 S. C. 162, 17 S. E. 698, 
 
 20: 520 
 
 947. Error in admitting a judgment as evi- 
 dence in another suit is not relieved by the 
 court's statement to the jury that the judg- 
 ment is not conclusive, but merits serious 
 consideration. State v. Bradneck, 69 Conn. 
 212, 37 Atl. 492, 43: 620 
 
 948. Permitting proponent's counsel to 
 ask contestant if she did not destroy a sub- 
 sequent will in which she was beneficiary 
 is not reversible error, where the court 
 charged that' if the will was not destroyed 
 by testator, but by another person, it is 
 still his last will, since, although the evi- 
 dence might prejudice contestant, it was 
 proper as bearing upon a possible change of 
 testator's mind towards contestaut. Cheaver 
 v. North, 106 Mich. 390, 64 N. W. 455, 
 
 37: 561 
 
 6. Erroneous Exclusion. 
 
 Curing Errors as to, below, see supra, 694. 
 
 949. The exclusion of evidence which 
 would not have benefited the party offering 
 it is not error. Bartlett v. Patton, 33 W. 
 Va. 71, 10 S. E. 21, 5: 523
 
 110 
 
 APPEAL AND ERROR, VII. m, 3. 
 
 950. A decision will not be reversed mere- 
 ly because a seemingly pertinent question 
 was excluded, if it is not shown what the 
 party proposed to prove. Hickman v. Green, 
 123 Mo. 165, 27 S. W. 440, 22 S. W. 455, 
 
 29: 39 
 
 951. Excluding answers to pertinent ques- 
 tions is not ground for reversal, unless the 
 record affirmatively shows that the answers 
 would have been competent and material. 
 Weeks v. McXulty,. 101 Tenn. 495, 48 S. W. 
 809, 43: 185 
 
 952. Refusal to allow answers by witness- 
 es is not prejudicial error, if no possible an- 
 swers could have been substantially mate- 
 rial. East Tennessee, V. & G. R. Co. v. 
 Kane, 92 Ga. 187, 18 S. E. 18, 22: 315 
 
 953. The exclusion of relevant evidence is 
 not legal error if it is only slight and con- 
 jectural, and afford^ no basis for real belief. 
 Re Claflin, 75 Vt. 19, 52 Atl. 1053, 58: 261 
 
 954. Refusing to allow a witness to an- 
 swer a question which calls for an expres- 
 sion of opinion will not warrant reversal, 
 even if erroneous, when it was harmless. 
 Mason v. Southern R. Co. 58 S. C. 70, 36 
 S. E. 440, 53: 913 
 
 955. A technical error in the rejection of 
 evidence will not cause a reversal of the case, 
 if it appears that early in the trial the par- 
 ties assented to a rule excluding evidence of 
 that character, and there is no probability 
 that the ruling has occasioned harm to the 
 complaining partj\ Kane v. New York 
 Kiev. R. Co. 125 X. Y. 164, 26 X. E. 278. 
 
 11:640 
 
 956. The exclusion of evidence of payment 
 of a third person's claim as an admission of 
 liability is not ground for reversal, where it 
 does not appear that it was against the evi- 
 dence to hold that it was a mere purchase of 
 peace. C'olburn v. Groton, 66 N. H. 151. 
 29 Atl. 95, 22: 763 
 
 957. The exclusion of evidence in corro- 
 boration of an interested party, on the 
 ground that it is cumulative or that the 
 fact is no longer open to dispute, being; un- 
 eontradicted, is ground for reversal if the 
 judge in his charge does not treat the fact 
 as established, but submits the question to 
 the jury on such party's uncorroborated tes- 
 timony. Page v. Krekey, 137 X. Y. 307, 
 33 N.'E. 311, 21: 409 
 
 958. Rejection of evidence that one joint 
 maker of a promissory note was financially 
 responsible at the time the payee is alleged 
 to have accepted his individual note in pay- 
 ment of the joint note, upon which the ac- 
 tion is brought is not reversible error, al- 
 though the verdict is in plaintiffs favor, 
 since that fact would have no tendency to 
 show that the obligation of the other re- 
 sponsible makers was voluntarily surren- 
 dered. Brink v. Stratton, 176 N. Y. 150. 68 
 N. E. 148. 63: 182 
 
 959. Orders suppressing portions of the 
 evidence, allowing the retaking of deposi- 
 tions, and regulating preparation of the 
 cause for hearing, must, on appeal there- 
 from, appear by the face of the record to be 
 not only erroneous, but prejudicial to ap- 
 
 pellant, to warrant reversal. Boggs v. Bod- 
 kin, 32 W. Va. 566, 9 S. E. 891, 5: 245- 
 
 960. The rejection of e\idence that a car 
 in which goods were shipped was sealed at 
 the loading point and remained under seal 
 until tne delivery of the goods to the con- 
 signee is error, where the issue i& whether 
 the railroad company delivered to the con- 
 signee all the goods it received. Missouri, 
 K. & T. R. Co. v. Simonson, 64 Kan. 802, 6 
 Pac. 653, 57 : 765 
 
 960a. Direct evidence of suicide is not nec- 
 essary to require the consideration of the 
 correctness of the exclusion of evidence of 
 intention to commit it, since that theory 
 must be considered by the jury if the cir- 
 cumstances of the case afford evidence to 
 support it. Com. v. Trefethen, 157 Mass. 
 180, 31 N. E. 961, 24: 235 
 
 Established by other proof. 
 
 961. Excluding evidence of a fact which 
 is otherwise indisputably proved is not ma- 
 terial error. Houston, *E. & W. T. R. Co. 
 v. Campbell, 91 Tex. 551, 45 S. W. 2, 43: 225- 
 
 962. Rejection of evidence is immaterial 
 error if the complaining party has had the 
 full benefit of it from another witness. 
 Greenville v. Ormand, 51 S. C. 58, 28 S. E. 
 50, 39: 84 / 
 
 963. The exclusion of a question designed" 
 only to show the bias of a witness already 
 effectually impeached by record evidence is 
 not prejudicial error. Tyler v. Wadding- 
 ham, 58 Conn. 375, 20 Atl. 335, 8: 657 
 
 964. Where evidence improperly rejected 
 tends to prove an item which may or may 
 not have been considered by the jury in fix- 
 ing the amount in the verdict; and it is 
 manifest that outside of such item there 
 was ground for finding at least the amount 
 found; and a new trial is refused by the 
 trial court, the judgment will not be re- 
 versed. Bartlett v. Patton, 33 W. Va. 71, 
 10 S. E. 21, 5: 523 
 
 965. Where, on the trial of an issue devi- 
 sarit vel non, a medical expert was permit- 
 ted to answer two improper hypothetical 
 qiiestions. which he did, fully covering the 
 whole case, and the court refused to permit 
 him to answer two proper hypothetical ques- 
 tions which embraced no more than the two 
 he was permitted to answer, the party who 
 was thus deprived of having his proper hy- 
 pothetical questions answered was not, an<J 
 could not have been, prejudiced by the er- 
 ror; and for such error the appellate court 
 would not reverse the decree and set aside 
 the verdict. Kerr v. Lunsford, 31 W. Va. 
 659. 8 8. E. 493, 505, . 2 : 668- 
 Subsequent admission. 
 
 9U6. Excluding evidence is not reversible- 
 error where the excluded evidence is subse- 
 quently admitted. Pennsylvania Co. v. Mar- 
 ien, 123 Ind. 415, 23 N. E. 973, 7: 687 
 
 967. Especially where it is admitted with- 
 out objection. Mitchell v. Southern P. R. 
 Co. S7 Cal. 62, 25 Pac. 245, 11: 130 
 
 968. An error in the exclusion of evi- 
 dence on examination in chief is cured by 
 the admission of the evidence on re-exam- 
 ination, if it is as effectual at that time as
 
 APPEAL AND LRIIOR, VII. m, 4. 
 
 lit 
 
 it would have been on the examination in 
 chief. Re Claflin, 75 Vt. 19, 52 Atl. 1053, 
 
 58: 261 
 
 969. Where, at the trial of a cause to a 
 jury, a party offers evidence competent to 
 the issue, which, upon objection by the oppo- 
 site party, is not permitted to be given, but 
 afterward, during the trial, the same wit- 
 ness being upon the stand, the subject of the 
 former inquiry is, without objection, fully 
 entered upon, both in chief and on cross- 
 examination, and the questions which had 
 been held incompetent fully answered, the 
 error in sustaining the objection will be 
 deemed cured. Mauk v. Brundage, 68 Ohio 
 St. 89, 67 N. E. 152, 62: 477 
 
 970. Error in refusing to allow the cross- 
 examination of a witness may be, cured by 
 subsequently permitting such cross-exam- 
 ination. Mason v. Southern R. Co. 58 S. C. 
 70, 36 S. E. 440, 53: 913 
 
 971. Ruling out a question to a motorman 
 whose car collided with a bicyclist as to 
 whether or not he would have moved Ins 
 car forward if he thought that he was en- 
 dangering hie is not reversible error, where 
 he is subsequently permitted to testify that 
 he thought that by so doing he would avoid 
 a collision, and that it would be dangerous 
 to stop. Harrington v. Los Angeles R. Co. 
 140 Cal. 514, 74 Pac. 15, 63: 238 
 
 972. The exclusion of general evidence as 
 to the past life of one accused of murder 
 and the condition of his father, offered as 
 a foundation for the inference that he was 
 suffering from de'.irium tremens at the time 
 of the homicide, is not error if evidence is 
 subsequently admitted showing his condi- 
 tion and habits within a reasonable time of 
 the commission of the crime. State v. Quig- 
 ley, 26 R. I. 263, 58 Atl. 905, 67: 322 
 Cross-examination and re-examination. 
 
 973. The exclusion, on cross-examination, 
 of questions bearing on the motive or feeling 
 of a witness for the state against an ac 
 cused person, will not be prejudicial error, 
 when these matters were made immaterial 
 by the admitted conduct of the accused.- 
 State v. Abley, 109 Iowa, 61, 80 N. W. 225, 
 
 46: 862 
 
 974. The refusal to permit a witness to be 
 questioned on redirect examination as to 
 matters not brought out on the examina- 
 tion in c'hief will not cause" a reversal of 
 the judgment. Blake v. Stump, 73 Md. 160, 
 20 Atl. 788, 10: 103 
 
 c. Refusal to Strike Out. 
 
 Curing Error as to, see supra, 695, 696. 
 As to Striking out Evidence Generally, see 
 Trial, 27-37. 
 
 975. It is not reversible error to refuse 
 to strike out testimony of one injured in a 
 railroad accident that "every function of my 
 body, I think, was out of order from the 
 shock," as being a mere matter of opinion, 
 since it is also a statement of fact. Chicago 
 City R. Co. v. Saxby, 213 III. 274, 72 N. E. 
 755, 68: 164 
 
 976. Refusal of the court to withdraw ob- 
 jectionable evidence as to damages from the 
 
 jury is reversible error, where it may have 
 had the effect of enhancing them, although 
 the charge as to what damages might be 
 allowed was unobjectionable. Maynard v. 
 Oregon R. & Nav/Co. (Or.) 78 Pac. 983, 
 
 68: 477 
 
 977. Refusing to strike out the opinion of 
 a witness as to the genuineness of signa- 
 tures in evidence upon withdrawing other 
 signatures which had been introduced for the 
 purpose of comparison is not error, where 
 the witness had seen the person write who 
 is alleged to have written the signatures, as 
 to which he testifies, and is therefore com- 
 petent to give his opinion as to their gen- 
 uineness independently of any comparison 
 with other signatures in evidence. State 
 v. Hali; 16 S. D. 6, 91 N. W. 325, 65: 151 
 
 d. Variance. 
 
 978. Varance in a suit upon a judgment 
 alleged to be simply for a sum of money^ 
 in that the judgment proved is payable in 
 gold coin, does not constitute cause for re- 
 versal, where tne judgment recovered there- 
 on contains no direction for payment in any 
 particular kind of money. Belford v. \Vood- 
 ward, 158 111. 122,41 N/E. 1097, 29: 593 
 
 979. A variance between plaintiff's plead- 
 ing and proof is noc fatal on appeal, where 
 the precise nature of the defect would be 
 peculiarly within defendant's knowledge, 
 and there has been no surprise unless to the 
 plaintiff. Willey v. Boston Electric Light (Jo. 
 168 Mass. 40, 46 N. E. 395, 37: 723 
 
 e. In Cases Tried without Jury. 
 
 980. The court on writ of error will not 
 reverse the judgment in a case tried to the 
 court without a jury, merely because of the 
 admission of improper evidence. Lunney v_ 
 Healey, 56 Neb. 313, 76 N. W. 558, 44: 593 
 
 981. In an equity case the judgment will 
 not be reversed on the sole ground of the 
 admission of incompetent evidence, where 
 the other evidence in the case is sufficient 
 to sustain the findings. Cameron v. White, 
 74 Wis. 425, 43 N. W. 155, 5: 493 
 
 Richardson v. Eveland, 126 111. 37, 18 N. 
 E. 308, 1: 203 
 
 982. A reversal for the admission of irrele- 
 vant evidence, where the court tried the case, 
 will not be made unless it appears that the 
 evidence was relied upon. White v. White, 
 82 Cal. 427, 23 Pac. 276, 7: 799 
 
 4. As to Instructions'. 
 
 a. Instructions Given. 
 
 (1) Generally; Miscellaneous Matters. 
 
 Errors as to, Waived or Cured below, see 
 
 supra, VII. k. 4. 
 
 As to Instructions Generally, see Trial, III. 
 As to Correctness of Instructions Generally, 
 
 see Trial, III. e. 
 See also supra, 657a. 
 
 983. Erroneous instructions, if not preju- 
 dicial to the complaining party, will not
 
 112 
 
 APPEAL AND ERROR, VII. m, 4. 
 
 cause the reversal of a case. State v. Gibbs, 
 10 Mont. 213, 25 Pac. 289, 10: 749 
 
 Jacksonville, T. & K. W. R. Co. v. Pennin- 
 sular Land T. & M. Co. 27 Fla. 1, 157, 2 So. 
 <J61, 9 So. 689, 17: 33 
 
 984. An inaccuracy in an instruction on an 
 immaterial point, and not prejudicial, is not 
 .ground for reversal. Com. v. McManua, 143 
 Pa. 64, 21 Atl. 1018, 22 Atl. 761, 14: 89 
 
 984a. An instruction which could not pos- 
 sibly have prejudiced the party, though in- 
 correct or abstract, will not be ground for 
 reversal; but it must be very clear that it 
 could not have hurt the party complaining of 
 it. Carrico v. West Virginia C. & P. R. 
 Co. 39 W. Va. 86, 19 S. E. 571, 24: 50 
 
 985. A verdict will not be set aside be- 
 cause the instructions were not clear, if up- 
 on the evidence no other verdict could be 
 sustained. Jansen v. Williams, 36 Neb. 869, 
 55 N. W. 279, 20: 207 
 
 986. An erroneous instruction which could 
 not have prejudiced t'he complaining party 
 is not ground for reversal. Debney v. State, 
 45 :Neu. 856, 64 N. W. 446, 34: 851 
 
 987. An erroneous instruction will not 
 cause a reversal when it affirmatively ap- 
 pears that the defeated party was not in- 
 jured by the error. (jJray v. Merriam, 148 
 111. 179, 35 N. E. 810, 32: 769 
 
 988. An erroneous instruction will not re- 
 quire a reversal if the verdict was correct 
 and should have been rendered if the in- 
 struction had been correct. Richmond R. & 
 E. Co. v. Garthright, 92 Va. 627, 24 S. E. 
 267, 32: 220 
 
 988a. If an instruction has been given, 
 this court will not reverse a judgment be- 
 cause of it, if there is any evidence tending 
 to prove the fact it supposes, Chough that 
 evidence is very weak in the opinion of 
 this court. Carrico v. West Virginia C. & 
 P. R. Co. 39 W. Va. 86, 19 S. E. 571, 24: 50 
 
 989. Where the testimony is clearly suffi- 
 cient to sustain the verdict, and it is evi- 
 dent that no injury could have been sus- 
 tained by an error in an instruction given lo 
 the jury, the verdict will not be disturbed. 
 Wooten v. State, 24 Fla. 335, 5 So. 39, 
 
 1: 819 
 
 990. An instruction subject to criticism 
 in he abstract is not prejudicial if it was 
 correct when tested by the only evidence in 
 the case to which it could relate. Holland v. 
 Tennessee Coal, I. & R. Co. 91 Ala. 444. 8 
 S,o. 524, 12. -232 
 
 9!)1. An inapplicable illustration in an in- 
 struction to the jury is not prejudicial error, 
 if it is not such as to mislead them. .Mason 
 v. Southern R. Co. 58 S. C. 70, 36 S. E. 440, 
 
 53: 913 
 
 992. Verbal inaccuracy of a charge to the 
 jury will not require a reversal, if the charge 
 as a whole fairly and accurately presents 
 the law applicable to the facts. Perham v- 
 Portland General Electric Co: 33 Or. 451, 53 
 Pac. 14, 40: 799 
 
 993. Defects in portions of a charge to 
 the jury do not require a reversal if the 
 charge as a whole was an accurate state- 
 jnent of the law, and the defects could not 
 
 have misled the jury. State v. Power, 24 
 Wash. 34, 63 Pac. 1112, 63: 902 
 
 994. In considering the correctness of a 
 single instruction in a charge to the jury 
 the entire charge must be viewed, and, un- 
 less it appears that t'he jury would or might 
 have been misled, mere verbal inaccuracies 
 will not require a reversal. Scott v. Astoria 
 & C. River R. Co. 43 Or. 26, 72 Pac. 594, 
 
 62: 543 
 
 995. An instruction not incorrect in itself, 
 although not a>s definite as it migiit have 
 been, will not be ground for reversal where 
 no further instruction on the matter was 
 asked. Kliegel v. Aitken, 94 Wis. 432, 69 N. 
 W. 67, 35: 249 
 
 996. An instruction which was not influ- 
 ential because no finding was made on the 
 point involved therein by the jury, which 
 rendered a special verdict, is not ground lor 
 reversal. Louisville, IS. A. & C. R. Co. v. 
 Lynch, 147 Ind. 165, 44 N. E. 997, 46 N. E. 
 471, 34: 293 
 
 997. An instruction which correctly states 
 the law cannot be complained of by a party 
 on the ground that it is inconsistent with 
 other instructions more favorable to him. 
 George v. Los Angeles R. Co. 126 Cal. 357, 58 
 Pac. 819, 46: 82l> 
 
 998. A party cannot complain of the 
 granting of prayers for his opponent Which 
 did not authorize a recovery of anything 
 more than might be recovered under prayers 
 offered by himself. Salabes v. Castelberg, 
 98 Md. 645, 57 Atl. 20, 64: 800 
 
 999. Where there is no pretense of any de- 
 fense except under the general issue requir- 
 ing plaintiff to prove his case, and this is 
 done by undisputed testimony showing a 
 right to recovery, error in the instructions 
 is immaterial. Perin v. Parker, 126 111. 201, 
 18 N. E. 747, 2: 336 
 
 1000. An instruction directing the jury to 
 do substantial justice between the parties, 
 although not to be commended, is not pre- 
 judicial error, where they are told to do so 
 by finding a verdict "solely from the evi- 
 dence in the case, applying the law as given 
 in these instructions." German Ins. Co. v. 
 Shader, 68 Neb. 1, 93 N. W. 972, 60: 918 
 
 1001. In a civil case, where there is no 
 well-founded complaint of the exclusion of 
 evidence, it becomes immaterial, on appeal 
 to the supreme court of Louisiana, whether 
 the charge of the trial judge was right or 
 wrong, since it is the duty and privilege of 
 the court to apply the law, according to its 
 understanding thereof, and regardless of 
 what the trial judge may have charged, to. 
 the facts as disclosed by the record. War- 
 ner v. ialbot, 112 La. 817, 36 So. 743, 
 
 66: 336 
 
 1002. Failure of an instmction to ex- 
 plain the meaning of a word which might 
 mislead the jury is not ground for reversal, 
 if a proper charge upon the subject was not 
 requested. Clarendon Land, I. & A. Co. v. 
 McClelland Bros. 89 Tex. 483, 34 S. W. 98, 
 35 S. W. 474, 31: 669 
 
 1003. The characterization of instructions 
 as requested by one party or the other, or 
 t'he failure to so characterize them, is not
 
 APPEAL AND ERROR, VII. m, 4. 
 
 113 
 
 ordinarily reversible error. Gutzman v. 
 Clancy, Il4 Wis. 589, 90 N. W. 1081, 
 
 58: 74* 
 
 1004. An explanation of a charge, given 
 without objection, is not error where it does 
 not lay down a difl'erent proposition of law 
 from that contained in such instruction. 
 Mitchell v. Charleston Light & P. Co. 45 S. 
 C. 146, 22 S. E. 767, 31:577 
 
 1005. The definition of a word by the 
 court in response to a request for such defi- 
 nition from the jury, if correct, is not re- 
 versible error, although the word is one in 
 common use. Cobb v. Covenant Mut. Ben. 
 Ass). L>3 Mass. 176, -26 N. E. 230, 10: 606 
 
 1000. The giving of erroneous or inappro- 
 priate instructions in the trial of a criminal 
 case affords the accused no just ^ause of 
 complaint, when so doing could not in any 
 manner have operated to his injury. Arn- 
 heiter v. State, 115 Ga. 572, 41 S. E. 989, 
 
 58: 392 
 
 1007. An instruction permitting one 
 charged with conspiracy to murder to be 
 found guilty as an accessory before the fact, 
 whether he was present at the time of the 
 shooting or not, is not prejudicial error 
 where there is no evidence that accused was 
 present. Powers v. Com. 110 Ky. 386, 61 
 S. W. 735, 53: 245 
 
 1008. An irrelevant instruction which 
 may have been in some degree prejudicial 
 may constitute ground of reversal. O'Rourke 
 .v. Citizens' Street R. Co. 103 Tenn. 124, 52 
 S. W. 872, 46: 614 
 
 1009. A general verdict in a case where 
 there are several material issues tried can- 
 not be upheld if the jury are given an erron- 
 eous charge upon any one of them. Funk v. 
 St. Paul City R. Co. 61 Minn. 435, 63 N. W. 
 1099, 29: 208 
 
 1010. A case cannot be affirmed on other 
 grounds, where erroneous instructions on 
 one count have been given to the jury. 
 Amaker v. New, 33 S. C. 28, 11 S. E. 386. 
 
 8: 6J7 
 
 1011. It is error to inform the jury of the 
 legal effect of their answers to questions 
 in a special verdict. Gutzman v. Clancy, 
 114 Wis. 589, 90 N. W. 1081, 58: 144 
 
 1012. That instructions requested by the 
 defeated party, embodying correct princi- 
 ples of law, were given to the jury, will not 
 prevent a reversal if contradictory and er- 
 roneous instructions were given for his 
 adversary. Gilmore v. Fuller, 198 111. 130, 
 5 N. E/84, 60: 286 
 
 1013. A mere verbal mistake uy the court 
 in calling a mine by the wrong name, which 
 could not prejudice defendant, cannot be as- 
 signed by him as error. Burgess v. Terri- 
 tory, 8 Mont. 57, 19 Pac. 558, 1:808 
 
 1014. An erroneous instruction as to the 
 effect of usury is harmless where the jury 
 have found there was no usury. Sanborn v. 
 Cole, 63 Vt. 590, 22 Atl. 716, 14: 208 
 
 1015. In a charge of the court a mistake 
 in stating the number of letters sent from 
 a certain place, made, not positively, but 
 with the qualification "I think," is not 
 ground for reversal When no suggestion of 
 the mistake is made in the court below. 
 
 L.R.A. Dig. 8. 
 
 Muetze v. Tuteur, 77 Wis. 236, 46 N. W. 123, 
 
 9: 86 
 
 1016. Error in a statement by the judge 
 that the jury are not to try the constitu- 
 tionality of a statute will not require re- 
 versal of a conviction when no motion was 
 made to discharge the jury, and the judge 
 at the proper time instructed them to de- 
 termine the law for themselves, especially 
 when there is no question as to the fact that 
 the statute was violated. Townsend v. 
 State, 147 Ind. 624, 47 N. E. 19, 37: 294 
 
 1017. A judgment will not be reversed for 
 failure of the trial court to expressly state 
 that certain requested instructions are given, 
 where it states that counsel have handed it 
 some requests as stating propositions of law 
 by which the jury should be guided in deter- 
 mining their verdict, and proceeds to read 
 them to the jury. Noble v. Bessemer S. S. 
 Co. 127 Mich. 103, 86 N. W. 520, 54: 456 
 Mistake in copying. 
 
 1018. A manifest clerical mistake in 
 copying an instruction is not prejudicial er- 
 ror. Pittsburgh, C. C. & St. L. R. Co. v. 
 Montgomery. 152 Ind. 1, 49 N. E. 582, 
 
 69: 875 
 Failure to number or sign. 
 
 1019. Failure of counsel either to num- 
 ber or sign instructions furnishes no ground 
 for reversal, when the instructions are given 
 by the court, although it might have been 
 ground for refusing them. Orman v. Man- 
 nix, 17 Colo. 564, 30 Pac. 1037, 17: 602 
 
 (2) As to Negligence. 
 
 Necessity of Propriety of Instructions, see 
 
 Trial, 663-674. 
 Correctness of Instructions Generally, see 
 
 Trial, III. e. 4. 
 
 As to act of God.. 
 
 1020. Failure correctly to distinguish be- 
 tween ''unavoidable accident" and "the act 
 of God," in charging the jury, will not re- 
 quire a reversal, if the jury could not have 
 been misled thereby. Blythe v. Denver & 
 R. G. R. Co. 15 Colo. 333, 25 Pac. 702, 
 
 11: 615 
 
 1021. An instruction that the failure of a 
 defendant to establish a special defense that 
 the injury was caused by an act of God 
 which is pleaded in addition to the general 
 denial will require a verdict lor the plain- 
 tiff may be ground for reversal of judgment 
 against him. Fremont, E. & M. V. R. Co. v. 
 Harlin, 50 Neb. 698, 70 N. W. 263, 36: 417 
 Negligence of carrier. 
 
 Necessity of Instructions, see Trial, 665, 
 668, 670, 672, 673. 
 
 1022. An instruction that a railroad com- 
 pany is bound to exercise very great vigi- 
 lance and care in maintaining order and 
 guarding passengers against violence will 
 require a reversal of a judgment against such 
 a company based on lack of care, althougl 
 other instructions correctly require a lower 
 degree of care. Illinois C. R. Co. v. Minor, 
 69 Miss. 710, 11 So. 101, 16: 627 
 
 1023. Error, if any, in instructing that it 
 is the duty of a railroad company to use the 
 utmost care an'l diligence to see that a pas- 
 senger on a sleeper is awakened in tiuie to
 
 114 
 
 APPEAL AND ERROR, VII. m, 4. 
 
 dress before making a change of cars is elim- 
 inated by a special verdict finding that she 
 was not awakened and no attempt was made 
 to awaken her, and that the porter did not 
 have good reason to believe tha he had 
 awakened her. McKeon v. Chicago, M. & 
 St. P. R. Co. 94 Wis. 477, 69 N. W. 175, 
 
 35: 252 
 
 1024. An instruction that if the failure to 
 awaken plaintiff so as to give her reasonable 
 time to dress herself and child before the 
 train reached a station at which she was 
 compelled to change cars, and the treatment 
 she received thereafter, were the cause which 
 under all the proof led naturally to and 
 might have been expected to be directly in- 
 strumental in producing the injury which 
 the jury should find the plaintiff had sus- 
 tained, their answer to a certain question 
 should be "Yes," is not reversible error as 
 allowing the jury to answer such question 
 in the affirmative if the defendant or its 
 porter might have expected the result, in- 
 stead of if a man of ordinary intelligence 
 and prudence would have expected it, in the 
 absence of a request for a more definite and 
 certain instruction. Id. 
 
 1025. An instruction that a boy injured 
 while playing with a street car was not en- 
 titled to the rigtits of a passenger, though it 
 did not state what the rights of a passenger 
 would be, is not prejudicial error, where the 
 jury were fully instructed as to the law ap- 
 plicable to the facts in the case. George v. 
 Los Angeles R. Co. 126 Cal. 357, 58 Pac. 
 819, 46: 829 
 Of railroad. 
 
 Correctness of Instruction Generally, see 
 
 Trial, 822-828. 
 See also infra, 1028. 
 
 1026. The giving of an instruction assum- 
 ing that it was a railway company's duty to 
 keep a flagman at a street crossing, whereas 
 the statute imposes no such duty, is not 
 ground for reversal, where the company 
 could not have been prejudiced thereby be- 
 cause the evidence clearly shows that it did 
 have a flagman at such crossing. Sclnnitz 
 v. St. Louis, I. M. & S. R. Co. 119 Mo. 256, 
 24 S. W. 472, 23:250 
 
 1027. Instructions to the jury in an action 
 for injuries on a highway crossing, that "the 
 fact that the gates were up would be notice 
 to plaintiff that there was no danger in 
 crossing the track; it would be an invita- 
 tion to him to cross the track ;" and that, 
 "if the jury find that there was no warning 
 given at all, the plaintiff had a right to 
 suppose that the track was clear," are not 
 so erroneous as to demand a reversal where 
 the context shows that they were applied to 
 the question of negligence on the part of de- 
 fendant, and not to plaintiff's conduct as 
 constituting contributory negligence. Lake 
 Shore & M. S. R. Co. v. Franz, 127 Pa. 297, 
 18 Atl. 22, 4:389 
 Negligence of master. 
 
 Necessity of Instructions! see Trial, 663, 664. 
 
 671/674. 
 Correctness of Instructions Generally, see 
 
 Trial. 814-821. 
 
 1028. An instruction in an action against 
 
 a railroad company for the death of an em- 
 ployee, which permits the jury to consider 
 the question of the safety of the location 
 of the road, is reversible error, although 
 other portions of the charge correctly in- 
 struct tnem as to the degree of care which it 
 is necessary for the company to have exer- 
 cised. Scott v. Astoria & C. River R. Co. 
 43 Or. 26, 72 Pac. 594, 62: 543 
 
 1029. Instructions to the jury upon the 
 question of the duty which a master owes 
 to one servant in hiring others are not 
 ground for reversal, where, taken as a whole, 
 they state that the master's duty is to fur- 
 nish reasonably suitable servants, and that 
 he discharges this duty when he exercises 
 ordinary and reasonable care in so doing, al- 
 though some portions of them seem to re- 
 quire a higher duty in this respect. Srout'e 
 v. Moran Brothers Co. 28 Wash. 381. t>8 
 Pac. 896, 58: 313 
 Comparative negligence. 
 
 1030. An instruction as to comparative 
 negligence is not reversible error in an action 
 against a master for negligent injury of his 
 servant, where there is not a particle of evi- 
 dence of negligence on the part of the serv- 
 ant. Sroufe v. Moran Brothers Co. 28 Wash. 
 381, 68 Pac. 869, 58: 313- 
 
 1031. An instruction that plaintiff in an 
 action to recover for negligent injuries may 
 recover if guilty of only slight negligence, 
 if defendant was guilty of gross neglige'nce, 
 will not require reversal if the jury find 
 plaintiff was not negligent at all. Smith v. 
 Union Trunk Line, 18 Wash. 351, 51 Pac. 
 400, 45: 169 
 Contributory negligence. 
 
 Necessity of Instruction, see Trial. 606. 
 Correctness of Instruction as to, Generally^ 
 
 see Trial. 809-811. 822. 82<i. 
 See also supra. 1030. 1031. 
 
 1032. Error in charging on the rule of con- 
 tributory negligence is not prejudicial to- 
 defendant where there is no evidence of 
 plaintiff's negligence. Pullman Palace Car 
 Co. v. Smith, 79 Tex. 468. 14 S. W. 993. 
 
 13: 215 
 
 1033. In an action to recover damages for 
 personal injuries sustained by the plaintiff 
 on account of the defeiwhuit's negligence, it 
 is not error to omit to instruct the jury as 
 to the law of contributory negligence, in an 
 instruction given for the plaintiff, when the 
 court, in giving the defendant's instructions, 
 instructs the jury fully and fairly on that 
 point. Normile v. Wheeling Traction Co~ 
 57 W. Va. 132, 49 S. E. 1030, 68: 901 
 
 1034. A technical error in saying that an 
 infant sixteen months old could not bo a 
 trespasser is not prejudicial error in an in- 
 struction to the jury as to the killing of the- 
 infant by a train, when the remarks of the 
 judge draw the attention of the jury to the 
 distinction between the infant and an adult, 
 and state that such an infant could not be 
 guilty of contributory negligence, and does 
 not know right from wrong. Mason v^ 
 Southern R. Co. 58 S. C. 70, 36 S. E. 440. 
 
 53: 913 
 
 1035. In an action for the deaili of a child 
 the father, as administrator, being plaintiff,.
 
 APPEAL AND ERUOR. V.I. in A. 
 
 115 
 
 it is error to instruct the jury that contrib- 
 utory negligence of the father is no defense. 
 Tucker v. Draper. 62 Xeb. 60. 86 X. W. 917. 
 
 54: 321 
 
 (3) As to Damages. 
 
 Xecessity or Propriety of Instructions Gen- 
 erally, see Trial. 656-660. 
 
 Correctness of Instructions Generally, see 
 Trial. III. e, 2. 
 
 1036-1037. An instruction which fails to 
 present separately the elements of actual 
 and exemplary damages, but limits the 
 amount of recovery, is not prejudicial if the 
 verdict is for less than the jury can properly 
 lincl. Heiligmann v. Rose, 81 Tex. 222, 16 S. 
 W. 931, *^3: 272 
 
 ln:;s. Where, in giving the rule for dam- 
 in a suit against a railroad company to 
 i i.-r lor personal injuries, the idea of 
 compensation was clearly in the judge's 
 mind, and was fairly brought before the jury 
 in the enumeration of the elements of the 
 damages which might be allowed, the fact 
 that the jury were told that they might con- 
 sider the pain and suffering which the plain- 
 tiff "may undergo" in the future will not 
 rau.-e a reversal as giving the jury unbridled 
 license or leaving them without a guide in 
 the ascertainment of damages. Lake Shore 
 & M. S. R. Co. v. Franz. 127 Pa. 297, 18 Atl. 
 2-2. 4: 389 
 
 1039. A verdict for an entire sum to be 
 awarded to a man and wife for injury to 
 her by a physician's abandonment of her 
 during confinement will be set aside if the 
 court's instructions authorized a considera- 
 tion of the fact of the child's death in fixing 
 the damages. Lath rope v. Flood, 135 Cal. 
 458. 63 Pac. 1007. 67 Pac. 683, o7: 215 
 
 1040. An instruction in an action for false 
 imprisonment permitting the damages to be 
 fixed by what the average man would suffer 
 under the circumstances is not reversible er- 
 n r. where there is nothing to show that 
 plaintiff suffered less than would the average 
 man. although the measure of damages 
 should actually have been what plaintiff suf- 
 fered. Mumford v. Starmont. 139 Mich. 188, 
 102 X. W. 662.. 69: 350 
 
 1041. A charge in an action for breach of 
 promise of marriage, that plaintiff is entitled 
 at least to such damages as would place her 
 in as good a pecuniary condition as she 
 would have been in if the contract had been 
 fulfilled, although a careless use of language, 
 is not ground for reversal, where the jury 
 could not have failed to understand from the 
 whole charge that they were to compensate 
 plaintiff for what she had lost and was de- 
 prived of by failure of the marriasre. Cheliis 
 v. Chapman. 125 X. Y. 214. 26 X. E. 308. 
 
 11: 784 
 
 (4) As to Witnesses. 
 
 Instructions as to Credibility Generally, see 
 Trial, 711-724. 
 
 1042. An instruction by the court, where 
 a defendant does not testify in his own be- 
 half, that, "while a statute of this state 
 
 provides that a person charged with crime 
 may testify in his own behali. he is under 
 no obligation to dn BO. and the statute ex- 
 pressly declares that his neglect to testily 
 shall not create any presumption against 
 him," is not prejudicial error. State v. 
 Ryno. 68 Kan. 348. 74 Pac. 1114. 64: 303 
 
 (5) Upon Facts and Evidence. 
 
 Instructions on, Generally, see Trial. III. d. 
 See also supra, 1042. 
 
 1043. An instruction which submits to the 
 jury an inquiry of fact concerning which 
 there is no evidence is reversible error. Mc- 
 Cormick Harvesting Mach. Co. v. Willan, 63 
 Xeb. 391, 88 X. W. 497, 56: 338 
 
 1044. Instructions which are lengthy and 
 in the nature of a resume of the evidence 
 and an argument, do not constitute revers- 
 ible error, if they are not so unfair to appel- 
 lant as to have prejudiced the jury. Postal 
 Teleg. Cable Co. v. Lathrop, 131 111. 575. 23 
 X. E. 583, 7: 474 
 
 1045. An erroneous charge as to the pre- 
 sumption against a party from failure to 
 produce books or papers under his control 
 will require a reversal, where the evidence 
 was conflicting and irreconcilable. Cartier 
 v. Troy Lumber Co. 138 111. 533, 28 X. E. 932. 
 
 14:470 
 
 1046. An instruction as to the effect of the 
 interruption of possession by a stranger, 
 even if erroneous, is immaterial where there 
 was no evidence of any interruption by a 
 stranger or anybody else. Wren v. Parker. 
 57 Conn. 529, 1 8 Atl. 790, 6: 80- 
 
 1047. An instruction in an action for per- 
 sonal injuries, that defendant's answer de- 
 nied the lameness of plaintiff, is prejudicial 
 error, where the answer really denied that 
 the lameness was caused by defendant, and 
 by the means alleged, and there was evi- 
 dence tending to show a previously existing 
 lameness. Swift v. Bleise, 63 Neb. 739. 89 
 X W. 310. 57: 147 
 
 1048. An objectionable instruction as to 
 the credit and weight of the testimony of 
 interested witnesses is not cause for rever- 
 sal where there is no serious conflict be- 
 tween the appellant and any other witness, 
 and nothing to show that it applied to him 
 more than to the other party, who also testi- 
 fied. Hess v. Lowrey. 122 Ind. 225, 23 N. E. 
 
 j 156, 7:90 
 
 1049. Representatives of a person who 
 killed himself to give his estate the benefit 
 of his insurance cannot, in a suit upon the 
 policies, complain of an instruction that 
 deceased was sane if he understood, as a 
 man of sound mind would, the consequences 
 to follow from his contemplated suicide to 
 himself, his c-hnracter. his family, and others, 
 and was able to comprehend the wrongful - 
 ness of what he was about to do as a sane 
 man would. Ritter v. Mutual L. Ins. Co. 17 
 C. C. A. 537. 28 U. S. App. 612, 70 Fed. 954. 
 
 42: 583 
 
 1050. Comment upon the testimony by the 
 court, to the effect that there is nothing to 
 show that lumber was set on fire by sparks 
 from a boat, where there is no attempt to
 
 116 
 
 APPEAL AND ERROR, VII. m, 4. 
 
 prove any other cause of the fire and several 
 witnesses have sworn to seeing sparks from 
 the boat falling upon the lumber, although 
 the court allowed the case to go to the jury, 
 requires reversal of a judgment on a ver- 
 dict for the defendant. Burrows v. Delta 
 Transp. Co. 106 Mich. 582, 64 N. W. 501, 
 
 29: 468 
 
 Assuming facts. 
 
 Instructions Assuming Facts Generally, see 
 Trial, 733-740. 
 
 1051. For the court to assume in its 
 charge to the jury the existence of undis- 
 puted facts is not reversible error. For- 
 syth v. Hammond, 142 Ind. 505, 40 N. E. 
 267, 41 N. E. 950, 30: 576 
 
 1052. An instruction assuming as true 
 facts proved beyond controversy is not 
 ground for reversal because of such assump- 
 tion. Carrico v. West Virginia C. & P. R. 
 Co. 39 W. Va. 86, 19 S. E. 571, 24: 50 
 Burden of proof. 
 
 Instructions as to, Generally, see Trial, 697- 
 704. 
 
 1053. To instruct the jury that the burden 
 is on the proponents of a will to establish 
 the testator's sanity, and that they must fail 
 if at the close of the evidence "the scales 
 stand evenly balanced," without instructing 
 as to the legal presumption of sanity, is 
 reversible error. Re Barber's Estate, 63 
 Conn. 393, 27 Atl. 973, 22: 90 
 
 1054. It is reversible error to instruct the 
 jury in a proceeding to -establish a will, that 
 if from the whole evidence "it is left un- 
 certain whether or not the testator was of 
 sound mind, then it is left uncertain whether 
 .a person of sound mind, within the meaning 
 of our statute, has made the will, and the 
 will should not be sustained," although pre- 
 ceded by an intimation that the proponent 
 lias the burden of establishing the will by 
 only a fair preponderance of evidence, and 
 followed by a statement that to defeat the 
 will because of insane delusions they should 
 be established by "a fair preponderance of 
 evidence." Id. 
 Amount of evidence necessary. 
 
 1055. An instruction in an action on an 
 insurance policy, that the jury should be 
 satisfied by a "clear" preponderance of proof 
 that plaintiff burned the buildings, before 
 finding the fact, is not misleading in connec- 
 tion with an instruction that the action is 
 a civil one, and is not required to establish 
 the facts beyond a reasonable doubt, but 
 only by a fair preponderance of proof. Hart 
 v. Niagara F. Ins. Co. 9 Wash. 620, 38 Pac. 
 213, 27: 86 
 
 1056. An instruction on a life insurance 
 policy that fraud is not to be presumed, but 
 like any other fact may be proved by circum- 
 stances from which the inference of fraud 
 is natural and "irresistible," is not ground 
 for reversal because of the use of the word 
 "irresistible" where it is so qualified by the 
 instruction given immediately thereafter 
 that its use could not have prejudiced ap- 
 pellant. Seiler v. Economic L. Asso. 105 
 Iowa, 87, 74 N. W. 941, 43: 537 
 
 Criminal cases. 
 
 Instructions as to, Generally, see Trial, 701- 
 
 705, 708-710, 714, 715, 717, 722, 723, 739, 
 
 744-749. 
 
 1057. Reference by the court to the "crime 
 charged," in its instructions, will not be re- 
 garded as having misled the jury from the 
 fact that a witness incidentally stated that 
 accused had been arrested upon another 
 charge than that for which he was on trial. 
 State v. Thornton, 10 S. D. 349, 73 N. W. 
 196, 41:530 
 
 1058. Charging the jury as to the effect of 
 verbal statements of accused, when there is 
 no evidence that he made airv, is not revers- 
 ible error, where the facts disclosed by the 
 record show that accused was not prejudiced 
 thereby. State v. Coleman, 186 Mo. 151, 84 
 S. W. 978, 61: 381 
 
 1059. The court's reciting facts which the 
 evidence tends to establish, and stating to 
 the jury that if they find these facts to have 
 existed their verdict must be in a certain 
 way, is a comment on the evidence, which is 
 around for reversal in Missouri. State v. 
 Grugin, 147 Mo. 39, 47 S. W. 1058, 42: 774 
 
 1060. A charge permitting the jury to con- 
 sider evidence of an unlawful sale of cider 
 within two years preceding is immaterial, 
 although the statute creating the offense had 
 been passed within that time, where the only 
 evidence actually given related to a sale 
 after the act took effect. Lawrence v. Mon- 
 roe, 44 Kan. 607, 24 Pac. 1113, 10: 520 
 
 6. Failure or Refusal to Instruct. 
 
 See also Trial, 665. 
 
 1061. The fact that a necessary limitation 
 upon a requested charge which is too broad 
 is found in the general charge cannot have 
 the legal effect of making the requested 
 charge sound law, so as to constitute its re- 
 fusal reversible error. Wellston Coal Co. v. 
 Smith, 65 Ohio St. 70, 61 N. E. 143, 55: 99 
 
 1062. The refusal of a proper instruction 
 is not ground of reversal if it could not have 
 been prejudicial. St. Louis S. W. R. Co. v. 
 Jones, 64 Ark. 613, 44 S. W. 809, 39: 784 
 
 1063. Failure to give instructions, though 
 correct, that would have been mere surplus- 
 age because already substantiallv given, is 
 not prejudicial error. Bonte v. Postell, 109 
 Ky. 64, 58 S. W. 536, 51:187 
 
 1064. Refusal to give to the jury a re- 
 quested instruction which is not strictly cor- 
 rect is not reversible error. Pennsvlvania 
 R. Co. v. Naive, 112 Tenn. 239, 79 S. W. 124. 
 
 64: 443 
 
 1065. The refusal of parts of instructions 
 asked in the aggregate is not available as 
 error on appeal, where the instruction as a 
 whole contains objectionable matter. Mann 
 Boudoir Car Co. v. Dupre, 13 U. S. App. 183, 
 4 C. C. A. 540, 54 Fed. 646, 21 : 289 
 
 1066. Failure to give a requested instruc- 
 tion is not reversible error, where the in- 
 structions given were calculated to impart 
 to the jury fully as clear an idea of the mat- 
 ter involved as would have been done, by 
 the use of the language in the one requested.
 
 APPEAL AND ERROR, VII. m, 4. 
 
 117 
 
 Nashville, C. & St. L. R. Co. v. Heikens, 112 
 Tenn. 378, 79 S. W. 1038, 65: 298 
 
 1067. A refusal to instruct a jury in ac- 
 cordance with suggestions contained in spe- 
 cial questions presented for submission to 
 them, or the giving of instructions in regard 
 to a particular subject, is not reversible er- 
 r, i. if. DV the verdict rendered, it is clear 
 that the facts necessary to the applicability 
 of such instructions given or refused did not 
 exist. Tp.ch v. Milwaukee Electric R & L. 
 Co. 108 Wis. 533, 84 N. W. 823, 53: 618 
 
 iniiS. Failure to give proper instructions 
 as to contributory negligence, in an action 
 to recover damages for wrongful death, is 
 not reversible error, where there was no evi- 
 dence upon which to base any instruction 
 upon the subject. Louisville & E.^lail Co. 
 v. Barnes, U7 Ky. 860, 79 S. W. 261, 
 
 64: 574 
 
 1069. Refusal of an instruction as to how 
 far intent constitutes fraud is not reversible 
 error if a proper disposition of the case can 
 be arrived at from the acts of the parties 
 without regard to the intent. Rice v. Wood, 
 61 Ark. 442, 33 S. W. 636, 31: 609 
 
 1070. Refusal of instructions the meaning 
 of which is involved in doubt, or which are 
 uncalled for in the case, is not reversible 
 error if the instructions given upon that 
 branch of the case are as favorable to the 
 complaining party as the facts and the law 
 will warrant. People v. Erbanks, 117 Cal. 
 652. 49 Pac. 1049, 40: 269 
 
 1071. The refusal of the court to instruct 
 the jury as to assault is not error, where it 
 appears that, if the defendant was guilty of 
 any offense, it was one of a higher grade 
 than a mere assault. State v. Ryno, 68 Kan. 
 348. 74 Pac. 1114, 64: 303 
 
 1072. The refusal of instructions as to the 
 rights of a tinder in respect to the property 
 found is reversible error in a prosecution 
 against him for murder, in which he pleads 
 self-defense and the evidence shows that the 
 homicide occurred while he was attempting 
 to enforce a right to possession as against 
 the owner, when both men used firearms, 
 since such instructions are necessary to en- 
 able the jury to determine which was first 
 in the wrong. People v. Hecker, 109 Cal. 451, 
 4-2 Pao. 307, 30: 403 
 
 1072a. The refusal of an instruction in an 
 action for personal injuries, to the effect that 
 defendant was not responsible for damage 
 caused by want of reasonable care on plain- 
 tiff's part after the alleged injury, is er- 
 roneous, where evidence has been admitted, 
 without objection, tending to show that 
 plaintiff's condition, expense, and suffering 
 were in part due to his failure to exercise 
 reasonable care after the hurt was received. 
 Swift v. Bleise, 63 Neb. 739, 89 N. W. 310, 
 
 57: 147 
 
 1073. The refusal of instructions which 
 correctly state the law as to an issue, which 
 would not be material otherwise, may con- 
 stitute error if the court gives other instruc- 
 tions on that issue which may mislead the 
 jury. Try on v. Pingree, 112 Mich. 338, 70 
 &. W. 905, 37: 222 
 
 Where no instruction is requested. 
 
 1074. Failure to give instructions not 
 asked is not available error in" a civil case. 
 Mitchell v. Bradstreet Co. 116 Mo. 226, 22 S. 
 W. 358, 20: 138 
 
 1075. Failure to state the law on an issue 
 is not ground for reversal if no instruction 
 on that question is requested. Texas & P. 
 R. Co. v. Gay, 86 Tex. 571, 26 S. W. 599, 
 
 25: 52 
 
 1076. Failure to give an instruction which 
 is not requested upon a matter to which 
 the attention of the court is not called is 
 not reversible error. State v. Coleman, 186 
 Mo. 151, 84 S. W. 978, 69: 381 
 
 1077- Failure to instruct the jury upon a 
 particular branch of the case is not revers- 
 ible error, where the complaining party pre- 
 sented no request tor sucn instruction. 
 Nashville, C. & St. L. R. Co. v. Heikens, 112 
 Tenn. 378, 79 S. W. 1038, 65: 298 
 
 As to facts or evidence. 
 
 1078. The refusal to give a charge to the 
 effect that there is no evidence tending to 
 show a given state of facts is not ground 
 for reversal. Texas & P. R. Co. v. Miller, 
 79 Tex. 78, 15 S. W. 264, 11: 395 
 
 1079. It is not error for the court to refuse 
 to instruct the jury under a request which 
 assumes the existence of a fact to be estab- 
 lished by evidence. Daniels v. State, 2 
 Penn. (Del.) 586, 48 Atl. 196, 54: 286 
 
 1080. Where testimony of accomplices is 
 the principal evidence against an accused, he 
 is entitled, as a matter of right, to have an 
 instruction given to the jury as to the legal 
 character of such evidence, and a refusal of 
 it will constitute reversible error, unless the 
 evidence of his guilt is so conclusive that 
 such an instruction could have no effect on 
 the result reached by the jury. Hoyt v. Peo- 
 ple, 140 111. 588, 30 N. E. 315, 16: 239 
 As to burden of proof. 
 
 1081. Refusal to instruct the jury, upon a 
 trial for violation of a Sunday law, that the 
 burden of proof is on the state to show 
 that the work was not a work of necessity 
 or charity within the exception of the stat- 
 ute, is error. State v. McBee, 52 W. Va. 
 257, 43 S. E. 121, 60: 638 
 
 1082. Refusal to charge the jury that the 
 burden of showing that the loss was caused 
 by fire was upon the one seeking to recover 
 under a fire insurance policy is not error, 
 where the fact was fully proved, with no 
 question as to the accuracy of the proof. 
 Western Assur. Co. v. J. E. Mohlman Co. 
 28 C. C. A. 157, 51 U. S. App. 577, 83 Fed. 
 811, 40: 561 
 In equity case. 
 
 1083. Refusal to give instructions is not 
 cause for reversal in an equity case, although 
 the court adopts the answer of the jury in 
 its findings of fafct, where it proceeds at 
 length to find upon all the issues in the case. 
 Riley v. Martinelli, 97 Cal. 575, 32 Pac. 579, 
 
 21:33 
 
 c. Modification of Instruction. 
 
 1084. When proper instructions are given 
 it is no ground of exception that they are
 
 118 
 
 APPEAL AND ERROR, VII. m, 5. 
 
 not given in the form requested. Wheeler 
 v. Grand Trunk R. Co. 70 N. H. 607, 50 Atl. 
 103, 54: 955 
 
 1085. A party cannot complain of the 
 court's modification of an instruction to 
 which he is not entitled. Harrington v. Los 
 Angeles Ry. Co. 140 Cal. 514, 74 Pac. 15, 
 
 63: 238 
 
 1086. Modification of an instruction re- 
 quested by a party, which leaves it more 
 favorable to him than he is entitled to, is 
 not ground for reversal upon his complaint. 
 Wertheimer-Swarts Shoe Co. v. United 
 States Casualty Co. 172 Mo. 135, 72 S. W. 
 635, 61: 76(5 
 
 1087-1088. An improper or insufficient 
 modification of an instruction is not ground 
 for a reversal, if, on the facts and evidence 
 in the case, it was not misleading. Prosser 
 v. Montana C. R. Co. 17 Mont. 372, 43 Pac. 
 81,- 30: 814 
 
 1089. A correction of an instruction dur- 
 ing the argument is not ground for reversal, 
 when it merely adds what has been implied- 
 ly expressed in another instruction, although 
 amendments should not ordinarily be made 
 after the argument. Henderson v. Clayton, 
 -22 Ky. L. Rep. 283, 57 S. W. 1, 53: 145 
 
 1090. The elimination from a requested in- 
 struction for defendant in a criminal trial, 
 of the direction to find the defendant not 
 guilty if the jury find the facts hypothesized 
 in the instruction, is not reversible error, al- 
 though it is the better practice to add such 
 conclusion to each instruction which war- 
 rants it. People v. Hecker, 109 Cal. 451, 42 
 Pac. 307, 30: 403 
 
 5. Argiiment or Remarks of Counsel. 
 
 Matters as to, Generally, see Trial. I. d. 
 
 As Ground for New Trial, see New Trial, 2. 
 
 See also supra, 336. 
 
 For Editorial Notes, see infra, XI. 14. 
 
 1091. The enforcement of a rule that at- 
 torneys who testify in a case cannot, with- 
 out permission of the court, argue the case 
 to the jury, is not reversible error, where 
 counsel did not, before testifying, explain his 
 position and request the court's permission 
 to sum up. State v. Gleim, 17 Mont. 17, 
 41 Pac. 998, 31: 294 
 
 1091a. Harsh and unjust statements of the 
 district attorney, not founded upon evidenc-p. 
 but resting wholly upon his unsupported 
 declarations, persisted in after repeated ob- 
 jections, and his right to make them sus- 
 tained by the court, together with threats 
 of popular denunciation, and an attempt to 
 frighten the^ jury by declaring that they 
 would commit the unpardonable sin if they 
 found for the defendant, will constitute 
 cause for reversal of the conviction. People 
 v. Fielding. 158 N. Y. 542, 53 X. K. 4!)7. 
 
 46: 641 
 
 1092. It is reversible error for the trial 
 judge to permit, without rebuke, the prose- 
 cuting attorney to .state to the jury, in a 
 prosecution for burglary, that, if they do not 
 convict, we might as well tear clown the 
 courthouses; that, if defendant is not guilty, 
 there are too manv courts for the case to go 
 
 through to permit his conviction; that the 
 state has proved that defendant stole the 
 property by his pleas of guilty, which the 
 judge would not have entered if it was not 
 true; so that the ease is one of direct, and 
 not circumstantial, evidence, although a 2x4 
 appellate court had held that it was the 
 latter. Season v. State, 43 Tex. Crim. Rep. 
 442, 67 S. W. 96, 69: 193 
 
 As to evidence, witnesses, and facts. 
 Argument as to, Generally, see Trial, 49-59. 
 For Editorial Notes, see infra, XI. 14. 
 
 1093. Statements by counsel in argument 
 will not be ground for reversal, where there 
 is evidence from which the facts stated 
 might be inferred. Morrill v. Palmer. 68 Vt. 
 1, 33 Atl. 829, 33: 411 
 
 1094. An unwarranted statement by coun- 
 sel in argument as to the effect of evidence 
 in the case will not cause a reversal, if it 
 was made with reference to an immaterial 
 issue in the case. Noble v. Mitch ell, 100 
 Ala. 519, 14 So. 581. 25: 238 
 
 [Affirmed bv the Supreme Court of the 
 United States in 164 U. S. 367, 41 L. ed. 472, 
 17 Sup. Ct. Rep. 110.] 
 
 1095. Allowing counsel to read to the jury 
 the opinion of a judge overruling a demurrer 
 in the case, in which he unmistakably indi- 
 cates his opinion as to the libelous character 
 of language on which the jury must decide, 
 is cause for reversal. Press Pub. Co. v. Mc- 
 Donald, 26 U. S. App. 167, 11 C. C. A. 155, 
 63 Fed. 238, 26: 531 
 
 1096. An abuse of privilege in making an 
 opening statement will not justify setting 
 aside a verdict, unless there is bad faith or a 
 gross misconception of what is admissible 
 whereby matter is stated which is wholly ir- 
 relevant and calculated to create so pro- 
 found an impression that the charge of the 
 court cannot eliminate the prejudice pro- 
 duced. Prentis v. Bates, 93 Mich'. 234. 53 N. 
 W. 153.. 17: 494 
 
 1097. Assertions by counsl in argument 
 to the jury derogatory to the character of 
 the opposing party, based on his own knowl- 
 edge, and not on the facts in evidence, are 
 erroneous. Gutzman v. Clancy, 114 Wis. 
 589, 90 N. W. 1081, 58: 744 
 
 1098. Allowing the state's counsel to argue 
 before the jury, after objection by the jni<- 
 oner's counsel, that the defendant's charac- 
 ter is bad because ae had a right to prove 
 his good character and has not done so. is 
 an error which will require a reversal of a 
 conviction. Bennett v. State, 86 Ga. 401, 
 12 S. E. 806. 12: 449 
 
 1099. The conduct of the assistant prose- 
 cutor on a trial for rape in repeateaiy asking 
 the son of the accused on cross-examination 
 if he had not stated to a specified person 
 that he suspected his father of having com- 
 mitted a similar offense with other girls, one 
 of whom was a member of his family, and 
 that such conduct on the part of the accused 
 caused the death of the witness's mother, 
 and that if at such conversation the witness 
 did not cry and say "I cannot go against my 
 father, even if he is guilty," is ground for 
 reversal. State v. Irwin, 9 Idaho, 35, 71 
 Pac. 608, 60: 716
 
 APPEAL AND ERROR, VII. m, 6. 
 
 119 
 
 1100. A statement by the prosecuting at- 
 torney in opening a ease of homicide by 
 shooting and throat-cutting, that he will 
 show that defendant did both, will not re- 
 quire reversal of a conviction, although no 
 attempt is made to prove that defendant 
 did the latter, if there is nothing to show 
 that the statement was not made in good 
 faith, and the effect was in fact to weaken 
 the case of the prosecution. People v. Lewis, 
 1-J4 Cal. 551, 57 Pac. 470, 45: 783 
 
 1101. The jury in a murder case cannot 
 infer that a verdict was rendered by a coro- 
 ner's jury, merely because the prosecuting 
 attorney asked a witness whether or not he, 
 as a member of such jury, did not render 
 such verdict, which question the witness was 
 not permitted to answer, so as to\make the 
 conduct of the prosecuting attorney ground 
 for reversal. State v. Coleman, 186 Mo. 151, 
 84 S. W. 978. 69: 381 
 Correction or withdrawal. 
 
 Waiver of Errors Below, see supra, 698. 
 For Editorial Notes, see infra, XI. 14. 
 
 1102. Misuse of a paper admitted in evi- 
 dence by counsel in argument wrongfully 
 construing it as an admission of defendant's 
 liability is not reversible error, if the judge 
 autioned the jury not to put that interpre- 
 tation on it. Shaw v. Chicago & G. T. R. Co. 
 123 Mich. 629, 82 N. W. 618. 49: 308 
 
 1103. Remarks of counsel in argument as 
 to matters not in evidence are not ground for 
 reversal on appeal, where the court declined 
 to permit him to proceed, and charged the 
 jury to disregard statements as to facts not 
 in evidence, and the remarks were not mani- 
 festly intended to unduly influence or mis- 
 lead the jury. Boyd v. Portland Gen. Elee. 
 Co. 37 Or. 567, 62 Pac. 378, 52: 509 
 
 1 1 04. An improper statement by counsel 
 in opening a case, which is immediately 
 withdrawn after an exception, with an ac- 
 knowledgment that it was not justified un- 
 der the existing state of the record, will not 
 be regarded on appeal as prejudicial error, 
 if it was not so considered by the trial judge. 
 Erb v. German-American Ins. Co. 98 Iowa, 
 <iO<5. 07 X. W. 583, 40: 845 
 
 1 104a. The immediate withdrawal and re- 
 traction of an obnoxious and untrue state- 
 ment made by counsel during argument to 
 the jury, upon objection by opposing coun- 
 sel, removes any prejudice that might other- 
 wise have been caused by such statement. 
 State v. Gibbs, 10 Mont. 213, 25 Pac. 289, 
 
 10: 749 
 
 1 105. In an action for malpractice, coun- 
 sel's comment on the failure to call defend- 
 ant and certain other physicians who were 
 present, as witnesses, if it was improper, 
 could have worked no prejudice when it was 
 promptly counteracted by the disapprobation 
 of Iht- judge and his charge that no presump- 
 tions could be drawn from the failure to 
 call such witnesses. Nelson v. Harrington, 
 72 Wis. 591, 40 N. W. 228, 1:719 
 
 1106. The judgment should be reversed 
 and a new trial granted in a criminal case 
 where the solicitor general, in his address 
 to the jury, uses highly improper language, 
 
 not authorized by the evidence or any fair 
 deduction therefrom, and the court fails to 
 rebuke him or charge the jury with reference 
 to the matter, and, upon motion of the coun- 
 sel for the accused, refuses to declare a mis- 
 trial. Ivey v. State, 113 Ga. 1062, 39 S. E. 
 423, 54: 959 
 
 6. Remarks or Conduct of Judge. 
 
 See also supra, 1091. 
 
 1107. The court's telling the jury the legal 
 effect of their answers to questions submit- 
 ted to them for a special verdict is ground 
 for reversal. Gerrard v. La Crosse City R. 
 Co. 113 Wis. 258, 89 N. W. 125, 57: 465 
 
 1108. A statement by the court in admit- 
 ting in evidence in a libel suit a circular con- 
 taining tne libelous letter the republication 
 of which is not shown to have been author- 
 ized by defendant, to the effect that the cir- 
 cular was the natural effect of sending the 
 letter under the circumstances, is reversible 
 error as tending to lead the jury to believe 
 that the question of defendant's responsi- 
 bility for the republication is settjed by the 
 court. Coffin v. Brown, 94 Md. 190, 50~ Atl. 
 567, 55:732 
 
 1109. A remark by the trial judge to 
 counsel in the presence of the jury in a 
 criminal case, indicating that in his opinion 
 the case is not one depending on circumstan- 
 tial evidence, and that he gives instructions 
 on that subject only in deference to the 
 opinion of the higher court, is reversible er- 
 ror. Season v. State, 43 Tex. Grim. Rep. 
 442, 67 S. W. 96 ; 69: 193 
 
 1110. Remarks by the court in the pres- 
 ence of the jury, in a colloquy with counsel 
 as to the propriety of submitting a special 
 finding, will not require reversal because 
 they indicate the court's opinion upon the 
 defense of contributory negligence, if the 
 jury have been fully instructed on that ques- 
 tion, and the remarks are not intended for 
 their guidance, and do not prejudice defend- 
 ant's case. Boyti v. Portland General Elec- 
 tric Co. 40 Or. 126, 66 Pac. 576, 57: 619 
 Absence of judge. 
 
 1111. The absence of a judge from a court- 
 room while a trial is in progress, for a brief 
 space of time, will not be ground for re- 
 versal of the judgment, where the evidence 
 demanded the verdict rendered and his ab- 
 sence was known to counsel, who made no 
 objection, and no request to suspend the 
 trial, and no motion for a mistrial upon the 
 judge's return. Home v. Rodgers, 110 Ga. 
 362, 35 S. E. 715, 49: 176 
 
 1112. The temporary relinquishment by a 
 judge of the control of proceedings in a 
 trial for felony by going 250 or 300 yards 
 from the court room, leaving a member of 
 the bar presiding in his absence, and being 
 gone about twenty minutes, during which 
 the trial goes on, amounts to a dissolution 
 of the court which makes the trial void. 
 Ellerbee v. State, 75 Miss. 522, 22 So. 950. 
 
 41 : 569
 
 120 
 
 APPEAL AND ERROR, VII. m, 7. 
 
 7. As to Jury; Conduct of Trial. 
 a. In General. 
 
 Determining; Case Without Calling Jury, see 
 Jury, 20. 
 
 1113. A defendant who has the benefit of 
 an inspection of a letter offered to contra- 
 dict his testimony, and who testifies that 
 he did not write it, is not injured by the 
 fact that he is not shown the letter or asked 
 in regard to it until after it is read in evi- 
 dence. Lewis v. Tapman, 90 Md. 294, 45 
 Atl. 459, 47: 385 
 
 1114. A judgment will not be reversed for 
 improperly allowing a former verdict to go 
 to the jury with other papers, where it was 
 not known or read by them until their own 
 verdict was agreed upon. Georgia P. R. Co. 
 v. Dooly, 86 Ga. 294, 12 S. E. 923, 12: 342 
 
 1115. The fact that a party is compelled 
 to close his case before all his witnesses have 
 been examined is not reversible error, where 
 the time for taking testimony was limited 
 at his request, in order that a decision might 
 be reached before the adjournment of the 
 term, and he was allowed more time than 
 he said he would require when the date for 
 closing the trial was fixed, especially where 
 he does not show that any material evidence 
 was thereby lost. Jones v. Glidewell, 53 
 Ark. 161, 13 S. W. 723, 7: 831 
 Opening and closing. 
 
 As to Risht to Open and Close Generally, 
 see Trial, 40-44. 
 
 1116. Error, if any, in refusing defendant 
 in an action on a life insurance policy the 
 right to open and close, is not ground for re- 
 versal, where defendant was not thereby 
 prejudiced in any manner. Seiler v. Eco- 
 nomic L. Asso. 105 Iowa, 87, 74 N. W. 941, 
 
 43: 537 
 Absence of attorney. 
 
 1117. The accidental absence of the attor- 
 ney of a party when the verdict is received, 
 not due to any order or action of the court 
 or any conduct by the counsel or parties 
 on the other side, is not cause for reversal. 
 Fitzgerald v. Clark, 17 Mont. 100, 42 Pac. 
 273. 30: 803 
 
 [Affirmed by the Supreme Court of the 
 United States in 171 U. S. 92, 58 L. ed. 87, 
 18 Sup. Ct. Rep. 941.] 
 Refusal to elect between counts. 
 As to Election Between Counts, Generally, 
 see Trial, I. b. 
 
 1118. There can be no reversal of an order 
 dismissing the suit because of plaintiff's re- 
 fusal to comply with the direction of the 
 court to elect upon which cause of action 
 stated in his complaint he will proceed, al- 
 though the direction' is erroneous, since un- 
 til reversed the direction is binding and as 
 capable of enforcement as any other order, 
 which may be by dismissal of the suit for 
 disobedience. Craft Refrigerating Mach. Co. 
 v. Quinnipiac Brew. Co. 63 Conn. 551, 29 
 Atl. 76. 25: 856 
 Order of reception of evidence. 
 
 As to Order of Proof Generally, see Trial, 
 20-26. 
 
 1119. Permitting the prosecution to offer 
 unimportant evidence after the defense has 
 closed does not require reversal of a convic- 
 tion. People v. Lewis, 124 Gal. 551, 57 Pac. 
 470, 45: 783 
 
 5. Summoning and Selection of Jury. 
 
 Errors Cured below, see supra, 676. 
 Summoning and Selection of Jury Generally, 
 
 see Jury, II. 
 Ground for New Trial as to, see New Trial, 
 
 m. c. 
 
 1120. The provisions of the Oklahoma 
 statute in relation to the selecting, summon- 
 ing, and impaneling of a jury are not man- 
 datory, but merely directory, and hence 
 mere irregularities will not be deemed pre- 
 judicial unless it is clearly shown that some 
 injury has resulted therefrom. Queenan v. 
 Territory, 11 Okla. 261. 71 Pac. 218, 61: 324 
 
 1121. Filing the sheriff's affidavit that he 
 was biased, taken upon a challenge to a spe- 
 cial venire summoned by him, embodying 
 facts brought out while the jury were ex- 
 cluded from the room, is not reversible er- 
 ror. People v. Ebanks, 117 Cal. 652, 49 Pac. 
 1049, 40: 269 
 
 1122. Exclusion of negroes from jury duty 
 upon the trial of a negro is not ground for 
 reversal if the exclusion was not designed. 
 Johnson v. State (N. J. Err. & App.) 59 N. 
 J. L. 535, 37 Atl. 949, 38: 373 
 
 1123. The excusing of a competent juror 
 on motion of the court itself is not ground 
 of error, if a fair and impartial jury was 
 obtained. Pittsburgh, C. C. & St. L. R. Co. 
 v. Montgomery, 152 Ind. 1, 49 N. E. 582, 
 
 69: 875 
 
 1124. Excusing for cause some of those on 
 the venire does not constitute available 
 error to one who is tried by twelve qualified, 
 competent jurors. People v. Searcey, 121 
 Cal. I, 53 Pac. 359, 41: 157 
 
 1125. The denial of a challenge to a juror 
 for cause is not ground of error unless ap- 
 pellant exhausted his peremptory challen- 
 ges. State v. Hartley, 22 Nev. 342, 40 Pac. 
 372, 28: 33 
 
 1126. A refusal to sustain challenges for 
 proper cause, necessitating peremptory chal- 
 lenges on the part of the accused, will be 
 considered on appeal as prejudicial, where 
 the accused has been compelled subsequent- 
 ly to exhaust all his peremptory challenges 
 before the final selection of the jury. State 
 v. Stenly, 30 Wash. 134, 70 Pac. 241, 
 
 63: 807 
 
 1127. A violation of the statute prescrib- 
 ing the order of peremptory challenges is 
 a substantial and not a mere technical error. 
 People v. McQuade, 110 N. Y. 284, 18 N. to. 
 156, 1: 273 
 
 c. Conduct of or Interference with Jury. 
 
 Gound for New Trial as to, see New Trial, 
 III. d. 
 
 1128. The moderate use of intoxicants by 
 the jurors in a capital case, though improp- 
 er, will not require the reversal of a verdict
 
 APPEAL AND ERROR, VII. m, 7. 
 
 121 
 
 against the prisoner, where none of the. 
 jurors became intoxicated, and it is clearly 
 shown that no injury resulted therefrom to 
 the accused. Gamble v. State, 44 Fla. 42!), 
 33 So. 471, 60: 547 
 
 1129. An alleged error in allowing the 
 jury to separate temporarily, without being 
 admonished by the trial court not to con- 
 verse among themselves or with others up- 
 on the subject of the trial, is without pre- 
 judice, if, upon undisputed facts, no other 
 verdict could have been properly rendered. 
 Kirby v. Western U. Teleg. Co. 4 S. D. 105, 
 439, 7 S. D. 623, 55 N. W. 759, 57 N. W. 
 ]<)0. 05 N. W. 37, 30: 612 
 Coercion of jury. 
 
 Improper Influence on, or Coercion of Jury 
 as Ground for New Trial, e New 
 Trial, 34-39. 
 
 1130. It is error to suggest to a jury as 
 a reason for agreeing, that failure to agree 
 is "almost to confess incompetency," as 
 personal considerations should never be ner- 
 mitted to influence their conclusions. Peo- 
 ple v. Sheldon, 156 N. Y. 268, 50 N. E. 840, 
 
 41 : 644 
 
 1131. A jury must be deemed coerced so 
 that a judgment of conviction based on 
 their verdict will be reversed, when they 
 agreed after they had been out for eighty- 
 four hours without beds or cots, during for- 
 ty of which they had been confined in a 
 small room, and from the remarks of the 
 court and the treatment they had received 
 they had every reason to believe that a 
 still longer confinement on chairs and hard 
 benches was in store for them, while the 
 judge had also told them, after the foreman 
 had reported that their agreement was im- 
 possible, that a failure to agree was "almost 
 to confess incompetency." Id. 
 
 d. Submission of Issues; Directing Verdict. 
 
 Errors as to. Cured or Waived below, see 
 supra, VII. k, 5. 
 
 1132. The failure to rule upon a motion 
 for a nonsuit, where both parties proceeded 
 to trial on the merits and proposed findings 
 which were passed upon, will not put the 
 plaintiff in a better position than if the 
 motion had been formally denied. Burt v. 
 Oneida Community, 137 N. Y. 346, 33 N. E. 
 307, 19: 297 
 Submitting; issues. 
 
 As to Authority of Local Lodge, see Benev- 
 olent Societies, 11. 
 
 As to Submission of Issues to Jury General- 
 ly, see Trial. II. 
 
 As to Special Interrogatories Generally, see 
 Trial. IT. e. 
 
 1133. Refusal to take the case from the 
 jury is not error if there is evidence tending 
 to sunnort the cause of action set up in 
 the declaration. Illinois C. R. Co. v. I?eeV>e. 
 174 111. 13, 50 N. E. 1019. 43: 210 
 
 1134. Error in submitting a question of 
 law to the jury is harmless, if their deci- 
 sion upon the question is correct. Chilton 
 v. St.. Louis & I. M. R. Co. 114 Mo. 88. 21 
 S. W. 458, 19: 269 
 
 1135. An error in submitting a question 
 to the jury is not material, where the court 
 has sufficiently ruled in accordance with the 
 jury's decision by refusing to set aside the 
 verdict. Central Lithographing & E. Co. v. 
 Moore, 75 Wis. 170, 43 N. W. 1124, 6: 788 
 
 1136. When, upon a trial to a jury, im- 
 material or improper questions for special 
 findings are submitted to a jury at the re- 
 quest of a party afterwards complaining, 
 and the jury is discharged without answer- 
 ing such questions, the error is without 
 prejudice. Missouri P. R. Co. v. Vandeven- 
 ter, 26 Neb. 222, 41 N. W. 998, 3: 129 
 
 1137. Leaving to the jury the construc- 
 tion of a record is harmless, if they find 
 what the court should have directed them to 
 find. Morey v. Hoyt, 62 Conn. 542, 26 Atl. 
 129, 19: 611 
 
 1138. No complaint can be made of the 
 act of the court in leaving the interpreta- 
 tion of a written instrument to the jury 
 where their finding accords with the legal 
 interpretation. Quebe v. Gulf, C. & S. F. R. 
 Co. 98 Tex. 6. 81 S. W. 20, 66: 734 
 
 1139. Submission to the jury of the ques- 
 tion whether or not services rendered to an 
 infant were necessaries, is not available as 
 error to defendant, who is sought to be held 
 liable therefor, where the jury found them 
 to be necessaries, and the court would have 
 been compelled to make the same ruling had 
 it undertaken to decide the question. Crafts 
 v. Carr, 24 R. I. 397, 53 Atl. 275, 60: 128 
 
 1140. That the damasres awarded a widow 
 for the negligent killing of her husband 
 fall short of the value of his life will not 
 prevent a reversal in case the court per- 
 mitted a consideration of her loss of com- 
 fort and enjoyment in awarding the dam- 
 ages', and there is nothing to show how 
 much, if anvthing, was allowed for such 
 loss. Illinois C. R. Co. v. Benz, 108 Tenn. 
 670, 60 S. W. 317, 58: 690 
 
 1141. Submission to the jury of the issue 
 of murder in the first degree is not reversi- 
 ble error where accused is found guilty of 
 murder in the second degree, thereby ac- 
 quitting him of the higher charge. White 
 v. State, 44 Tex. Grim. Rep. 346, 72 S. W. 
 173, 63: 660 
 
 1142. A judgment will not be reversed for 
 the refusal of the court to withdraw from 
 the jury the consideration of the question 
 presented by one charge in an indictment, 
 as to which there has been a failure of proof, 
 where the verdict and sentence are fully 
 justified by the proof of another charge con- 
 tained in the same indictment. People v. 
 Budd, 117 N. Y. 1, 22 N. E. 670, 5: 559 
 Refusal or failure to submit. 
 
 Refusal of Special Interrogatories Generally, 
 see Trial, II. e. 
 
 1143. It is error not to submit to the 
 jury facts fairly in the case. J. Thompson 
 Mfg. Co. v. Gunderson, 106 Wis. 449, 82 N. 
 W. 29!\ 49: 859 
 
 1144. Refusal to submit special questions 
 as to evidentiary facts is not cause for re- 
 versal. McKeon' v. Chicago. M. & St. P. R. 
 Co. 94 Wis. 477, 69 N. W. 175, 35: 252 
 
 1145. The refusal to submit an issue to
 
 122 
 
 APPEAL AND ERROR, VII. m, g. 
 
 the jury is not error if the view of the law 
 embraced in it could have been presented 
 to the jury by pertinent instructions upon 
 the issues submitted. Blackwell v. Moor- 
 man, 111 X. C. 151, 16 S. E. 12, 17: 729 
 
 1146. A judgment for defendant will be 
 reversed for excluding from the considera- 
 tion of the jury an element which might 
 have entitled plaintiff to nominal damages 
 at least, although it is difficult to say how 
 the jury could, under the evidence, have 
 determined the amount of damages attribu- 
 table thereto. Moore v. Xew York Elev. R. 
 Co. 130 X. Y. 523, 29 X. E. 997, 14: 731 
 Demurrer to evidence. 
 
 Errors as to, Waived below, see supra, 712. 
 As to Demurrer to Evidence Generally, see 
 Trial, II. d, 4. 
 
 1147. A ruling sustaining a demurrer to 
 the evidence will not be reversed, notwith- 
 standing that sufficient evidence was ac- 
 tually admitted by the trial court to make 
 a prima faci case for plaintiff, where a 
 part of the evidence essential for that pur- 
 pose was incompetent and admitted over 
 proper objection, although it was not for- 
 mally stricken out, and no notice was giv- 
 en plaintiff that it was to be disregarded. 
 Lee v. Missouri P. R. Co. 67 Kan. 402, 73 
 Pac. 110, 63: 271 
 Directing verdict. 
 
 Errors as to, Waived or Cured below, see 
 
 supra, 708-711. 
 As to Direction of Verdict Generally, see 
 
 Trial, II. d, 3. 
 
 1148. The evidence failing to disclose in 
 what amount, if any, the plaintiffs were 
 damaged, the court erred in directing a ver- 
 dict in their favor for the definite amount 
 for which suit was brought. Western U. 
 Toleg. Co. v. Waxelbaum, 113 Ga. 1017, 39 
 S. E. 443. 56: 741 
 
 1149. A verdict 'by direction of the court 
 when no verdict was required, but the court 
 should have disposed of the case on demur- 
 rer to the evidence, is not substantial error 
 if the jury disposed of the case correctly. 
 Mapel v. John, 42 W. Va. 30, 24 S. E. 608. 
 
 32: 800 
 
 11 50. A judgment will not be reversed for 
 a general charge directing a verdict, erron- 
 eous because not indicating the specific 
 ground of the ruling, if no ground appears 
 on which the adverse party could prevail in 
 the action. Weinhenmayer v. Bitner, 88 Md. 
 325, 42 Atl. 245, 45: 446 
 
 1151. A judgment will not be reversed 
 for the error of the court in directing a ver- 
 dict for plaintiff when the case should have 
 been submitted to the jury because the 
 right of recovery depended on oral testi- 
 mony, where no interest of defendant would 
 "be subserved by reversal, if the assignments 
 of error do not contain the language of the 
 court in tot idem verbis, and the question is 
 not argued for appellant. Genesee Fork 
 Tmprov. Co. v. Tves. 144 Pa. 114. 22 Atl. 
 SS7. 13: 427 
 
 8. As to Findings, Verdict, or Judgment. 
 
 As to Findings Generally, see Trial. IV. 
 As to Verdict Generally, see Trial, V. 
 For Editorial Xotes, see infra, XI. 14. 
 
 1152. A judgment will not be reversed 
 for error in a conclusion of law stated by 
 the lower court, if a proper judgment is 
 rendered upon the facts found by it. White 
 v. Chicago, St. L. & P. R. Co. 122 Ind. 317. 
 23 X. E. 782, 7: 257 
 
 1153. That the personalty was erroneous- 
 ly directed to be exhausted before the real 
 estate, by a judgment subjecting to pay- 
 ment of debts of the assignor property as- 
 signed in fraud of the rights of creditors, 
 will not require a reversal of the judgment 
 if the entire property is insufficient to sat- 
 isfy the creditors' claims. Oppenheimer v. 
 Collins, 115 Wis. 283, 91 X. W. 690, 60: 406 
 
 1154. That a judgment for an assess- 
 ment upon a stockholder of a corporation 
 was reversed in toto by the appellate divi- 
 sion when a part of the assessment was 
 valid will not require interference by the 
 court of appeals, to which the case has 
 been taken under a stipulation for judgment 
 absolute in case of affirmance, where the 
 whole claim was treated as one in the lower 
 courts. Bank of China, Japan, and the 
 Straits v. Morse, 168 X. Y. 458, 61 X. E. 
 774, 56: 139 
 Verdict disregarding instructions. 
 
 1115. A verdict will riot be set aside be- 
 cause the jury disregarded an instruction 
 which is erroneous in law. Watts v. Xor- 
 folk & W. R. Co. 39 W. Va. 196, 19 S. E. 
 521, 23: 674 
 
 1156. A verdict rendered in disregard of 
 correct instructions will be set aside on ap- 
 peal. Fisher v. West Virginia & P. R. Co. 
 42 W. Va. 183, 24 S. E. 570. 33: 69 
 
 1157. A verdict ignoring the instructions 
 of the court to limit the recovery to the 
 amount required to repair the building, and 
 givincr the whole amount of insurance there- 
 of, will be set aside. Limburg v. German F. 
 Ins. Co. 90 Iowa, 709. 57 X. W. 626, 23: 99 
 Insufficiency of verdict or finding. 
 
 1158. A judgment will not be reversed for 
 insufficiency of the special verdict on which 
 it is founded, if the verdict supports the 
 theory of the complaint and the issuable 
 facts found support the judgment, although 
 it is unnecessarily long and contains evi- 
 dentiary facts, as well as conclusions from 
 the facts stated. Brush Electric Lighting 
 Co. v. Kelley. 126 Ind. 220. 25 X. E. 812. 
 
 10: 250 
 
 lloO. A special finding must be consid- 
 ered as a whole, and cannot be assailed in 
 parts; and if. taken as a whole, the find- 
 ing legitimately supports the judgment, it 
 will bp upheld. A finding containing more 
 facts than necessary is not objectionable, 
 if such facts do not establish another cause 
 of action. Cleveland, C. C. & I. R. Co. v. 
 Clossor. 126 Tnd. 348. 26 X. E. 159, 9: 754 
 1160. Insufficient finding upon certain is- 
 sues in the case does not require reversal 
 unlo^? the finding of those issues in favor 
 of appellant would entitle him to a judg-
 
 APPEAL AND ERROR, VIII. a. 
 
 123 
 
 ment. Blochman v. Spreckels. 135 Cal. 662, 
 67 Pac. 1061. 57: 213 
 
 1161. The omission of admitted or undis- 
 puted facts from a finding is not an error 
 that affects the judgment, unless, by cor- 
 recting the record and including them in 
 the finding, it appears that the court erred 
 in some ruling of law material to the judg- 
 ment. Hoadley v. Savings Bank of Dan- 
 bury, 71 Conn/ 599, 42 Atl. 667, 44: 321 
 Paiiure to find. 
 
 1162. Want of a finding will not warrant 
 .a reversal where the evidence would not 
 have justified a finding in favor of the com- 
 plaining party. White v. White. 82 Cal. 
 427. 23 Pac. 276.. 7: 799 
 
 1163. Failure to make a finding on an is- 
 sue \f not ground for reversal, if "(,he find- 
 ing would necessarily have been prejudicial 
 to the appellant, and the facts found are 
 sufficient to sustain the decree. Hague v. 
 Nephi Irrig. Co. 16 Utah, 421, 52 Pac. 765, 
 
 41: 311 
 
 1104. Refusal to find facts material to 
 sustain a defense, and which are established 
 l>y undisouted evidence, is error. Farmers' 
 Loan & T. Co. v. New York & N. R. Co. 150 
 ~N. Y. 410.. 44 N. E. 1043. 34: 76 
 
 Amount; measure of damages. 
 
 11(55. Rendering judginent for a sum in 
 excess of that covered by the prayer of the 
 complaint is not ground for reversal, where 
 it does not exceed the amount due. as the 
 complaint might have been amended if the 
 objection had been made in the lower court. 
 Ke-tuc-e-mun-guah v. McClure. 122 Ind. 541, 
 23 X. E. 1080. 7: 782 
 
 1166. Failure to credit overdue premium 
 notes on a life insurance policy in entering 
 judgment thereon, as provided in the con- 
 tract, is cause for reversal. Union C. L. 
 Ins. Co. v. Spinks. 26 Kv. L. Rep. 1205, 
 S3 S. W. 615. 69: 264 
 
 1167. The right to nominal damages is 
 not sufficient ground for reversing a judg- 
 ment dismissing an action. United States 
 Exp. Co. v. Koerner. 65 Minn. 540. 68 X. W. 
 181. 33: 600 
 
 1168. A decree will not be reversed for 
 failure to include the proper elements of 
 damages in the order of reference to ascer- 
 tain the measure of damages for breach of 
 contract, if at the reference evidence is 
 given of every proper element of damage, so 
 that the complainant has the full benefit of 
 them. Jonas v. Noel. 98 Tenn. 440. 39 S. W. 
 724. 36: 862 
 
 11651. The failure of the court upon a 
 trial without a jury to definitely adopt one 
 of the two measures of damages contended 
 for by the respective parties is not reversi- 
 ble error, where the application of either 
 rulo loads to substantially the *ame result. 
 <3ustafson v. Rustemeyer. 70 Conn. 125. 39 
 Atl. 104, 39: 644 
 
 1170. A decision awarding punitive dam- 
 ages must be reversed where, although they 
 were allowable under the facts set out in 
 the first count of the declaration, they were 
 not asked for by it. but were asked for in 
 another count under which no damages were 
 allowable, where, from the instructions and 
 
 the award, it is evident that they were al- 
 lowed under the wrong count. Illinois C. 
 R. Co. v. Harper, 83 Miss. 560, 35 So. 764. 
 
 64: 283 
 Wrong reasons. 
 
 1171. A judgment which is correct is not 
 affected by the reasons on which it was 
 based. Pennsylvania Co. v. Versten, 140 
 111. 637, 30 N. E. 540. 15: 798 
 
 1172. The expression of an' erroneous opin- 
 ion will not require the reversal of a de- 
 cision which makes a proper disposition of 
 the case. Underbill v. Hernandez, 13 C. C'. 
 A. 51. 26 U. S. App. 573. 65 Fed. 577. 
 
 38: 405 
 
 [Affirmed by the Supreme Court of the 
 United States' in 168 U. S. 250. 42 L. ed. 
 456. 18 Sup. Ct. Rep. 83.] 
 
 1173. On appeal from a general term de- 
 cision which held that the overruling of a 
 motion for a new trial by the special term 
 was erroneous, the court is not restricted to 
 the particular points or reasons considered 
 by the general term as the basis of its de- 
 cision, but may uphold it on other grounds 
 presented by an assignment of errors in the 
 general term, if the conclusion was correct. 
 Springer v. "Byram, 137 Ind. 15. 36 X. E. 
 361, ' 23: 244 
 
 1174. Plaintiff in an action for personal 
 injuries having charged the defendant with 
 negligence in three particulars, and the 
 trial judge having withdrawn from the 
 consideration of the jury the first two 
 grounds of complaint because of want of 
 evidence to support them, and submitted 
 the case solely upon the third ground, upon 
 which a verdict was found against the de- 
 fendant, the judgment cannot be sustained 
 upon appeal upon the theory that the evi- 
 dence would have justified a finding against 
 defendant upon either of the first two 
 grounds. Fielders v. Xorth Jersey Street 
 R. Co. (X. J. Err. & App.) 68 N. J. L. 343. 
 53 Atl. 404. 59: 455 
 
 VIII. Judgment, 
 a. In General. 
 
 For Editorial Xotes. see infra, XI. 15. 
 
 1175. Judgment absolute must be entered 
 upon appeal, in favor of the principal, in 
 an action against principal and agent for an 
 injury caused by the alleged negligence of 
 the agent, where judgment was entered in 
 the trial court in favor of the agent and 
 against the principal, and the principal alone 
 appeals, since the judgment in favor of the 
 agent precludes a recovery against the 
 principal, and the appellate court has no 
 power to revise such judgment. Doremus 
 v. Root. 23 Wash. 710, 63 Pac. 572. 54: 649 
 
 1176. The appellate court has no juris- 
 diction to make a finding of fact from evi- 
 dence before the trial court upon which the 
 latter court made no finding. Dinola v. 
 Allison, 143 Cal. 106, 76 Pac. 976, 65: 419 
 
 1177-1178. An agreed state of facts, 
 adopted by the trial court as the basis
 
 124 
 
 APPEAL AND ERROR, VIII. b. 
 
 of its findings, and spread upon the record, 
 which includes all facts essential to the de- 
 termination of the controversy between the 
 parties, will be treated as a special verdict, 
 upon which the court of review will render 
 the same judgment that the trial court 
 ought to have rendered. National Bank of 
 New Jersey v. Berrall (N. J. Err. & App.) 
 70 N. J. L. 757, 58 Atl. 189, 66: 599 
 
 1179. Where a demurrer to the evidence 
 is sustained, the appellate court proceeds to 
 render the judgment which should have 
 been rendered in the court below. Good v. 
 Galveston, H. & S. A. R. Co. (Tex.) 11 S. W. 
 854, 4: 801 
 
 1180. An appeal by a purchaser of a 
 pledged note at an invalid sale of it, from 
 a decree allowing his claim against the es- 
 tate of an indorser only for the amount 
 which he paid for the note, and denying 
 his right to the face value, brings up the 
 question of his title to the note, and au- 
 thri7es the court to reverse the decree, not 
 only so far as it is against him, but also 
 that part of it which is in his favor. Moses 
 v. Grainger, 106 Tenn. 7, 58 S. W. 1067, 
 
 53:857 
 
 1181. Appeal by defendant against whom 
 judgment is rendered in an action against 
 two for an injury caused by the alleged 
 negligence of one acting as agent for the 
 other, in which judgment is rendered against 
 one and in favor of the other, will take up 
 only that part of the judgment which affects 
 appellant, and the appellate court will have 
 no power over the other judgment on such 
 appeal. Doremus v. Root, 23 Wash. 710. 
 63 Pac. 572, 54: 649 
 
 1182. A dismissal of the complaint on the 
 merits cannot be made by the appellate di- 
 vision on hearing exceptions upon a motion 
 for a new trial under N. Y. Code Civ. Proc. 
 1000, but if the exceptions are well taken 
 the motion should be granted and the case 
 sent back for a new trial; if they are not 
 well taken, the motion should be denied 
 and judgment entered on the verdict or or- 
 der of nonsuit, as the case may be. Mat- 
 thews v. American C. Ins. Co. 154 N. Y. 
 449. 48 N. E. 751, 39: 433 
 
 1183. Instructions to receivers, which 
 seem material, if not necessary, to their 
 work, may be given by an appellate court 
 in reviewing instructions given by a lower 
 court. Stran,ss v. Carolina Interstate Bids:. 
 & L. Asso. 117 N. C. 308. 23 S. E. 450. 
 
 30: 693 
 
 1184. A court may, in dismissing an ap- 
 peal by a railroad company from the refusal 
 of an injunction to prevent the tracks of a 
 street railroad from being carried over its 
 tracks on a bridge, require the bridge to be 
 made safe for such use, under a penalty of 
 continuing the preliminary injunction. 
 Pennsylvania R. Co. v. Greensburg, J. & P. 
 Street R. Co. 176 Pa. 559, 35 Atl. 122, 
 
 36: 839 
 
 1185. An appellate court will not deter- 
 mine in what precise manner an upper pro- 
 prietor upon a stream may use the water, 
 and at what specific place it must be re- 
 turned to the stream so as not to infringe 
 
 the rights of a lower proprietor, where no 
 such issue was made in the lower court, and 
 the record contains no evidence from which 
 such questions could be determined. Pat- 
 ten Paper Co. v. Kaukauna Water-Power 
 Co. 90 Wis. 370, 61 N. W. 1121, 28: 443 
 
 1186. A certificate of affirmance of a chan- 
 cellor's decree dissolving an injunction will 
 not be withheld for the purpose of giving 
 complainant an opportunity to amend his 
 bill so as to give it equity under the decree 
 of affirmance. Mack v. De Bardeleben Coal 
 & L Co. 90 Ala. 396, 8 So. 150, 9: 650 
 Changes pending appeal. 
 
 1187. Affirmance of a judgment on a pro- 
 bate bond for the full amount will not be 
 prevented Ly the fact that some of the sure- 
 ties have paid their proportion of the judg- 
 ment, since that fact occurring after judg- 
 ment cannot be considered by the appellate 
 court. Belden v. Hurlbut, 94 Wis. 562, 69 
 N. W. 357, 37:853 
 
 1188. A judgment against an insolvent es- 
 tate will not be reversed at the instance of 
 the administratrix, where the reversal would 
 result in no benefit to her or the estate from 
 the fact that the claim has been allowed by 
 the probate court. Weare Commission Co. 
 v. Druley, 156 111. 25, 41 N. E. 48, 30: 465 
 
 1189. Reversal of an erroneous injunction 
 decree against making a bust of a deceased 
 person for exhibition at a public fair will 
 not be refused because the fair has closed, 
 if there is also the purpose of placing the 
 bust permanently in a proper place as a 
 memorial to the deceased. Schuyler v. 
 Curtis, 147 N. Y. 434, 42 N. E. 22, '31 : 286 
 
 1190. A plaintiff whose time to redeem 
 from a mortgage as allowed by the court 
 has expired pending an appeal by defendant 
 which prevented the redemption will be al- 
 lowed by the appellate court the same time 
 after entry of final judgment upon the trial. 
 Schlawig v. De Peyster, 83 Iowa, 323, 49 N. 
 W. 843, 13: 785 
 Withholding mandate of possession. 
 
 1191. On affirming a judgment in eject- 
 ment against a railroad company which has 
 taken land without consent of the owner 
 under proceedings which lack a material 
 requirement of the law, the court may with- 
 hold its mandate of possession, in the ab- 
 sence of any bad faith on the part of the 
 company, to allow a reasonable time for 
 now condemnation proceedings. Jackson- 
 ville, T. & K. W. R. Co. v. Adams, 28 Fla. 
 631, 10 So. 465, 14: 533 
 
 1192. An order withholding a mandate for 
 possession on affirmance of a judgment of 
 ejectment against a railroad company, until 
 the decision of an appeal in new condemna- 
 tion proceedings on the part of the company, 
 should be on the express condition that 
 they shall not affect the landowner's right 
 to sue tor mesne profits for the use or re- 
 tention of the land by the company. Id. 
 
 b. Rendering Modified Judgment. 
 
 1193. Any clerical mistake in the amount 
 for which a judgment is entered in the 
 Illinois appellate court may be corrected in
 
 APPEAL AND ERROR, VIII. c. 
 
 125 
 
 the supreme court, where there is sufficient 
 in the record and on the face of the judg- 
 ment itself to show the correct amount. 
 Belford v. Woodward, 158 111. 122, 41 N. E. 
 1097, 29: 593 
 
 1194. Alimony, counsel fees, and suit 
 money may be allowed by an appellate 
 court as essential to justice, and not as 
 an exercise of original jurisdiction, when on 
 appeal in a suit to annul a marriage the 
 wife is destitute while the husband has 
 means wherewith to live and to litigate. 
 Prine v. Prine, 36 Fla. 676, 18 So. 781, 
 
 34: 87 
 
 1105. When, upon appeal from a judgment 
 granting the petition of a city to extend 
 its limits to embrace outlying territory, the 
 petition as allowed is found to , have in- 
 cluded lands not proper to be annexed, the 
 petition cannot be amended so as to exclude 
 such land and the judgment affirmed as 
 to the remainder, but the whole case must 
 be remanded for a new trial. Vestal v. 
 Little Rock, 54 Ark. 321, 329, 15 S. W. 891, 
 16 S. W. 291, 11: 778 
 
 Affirming in part and reversing in part. 
 
 1196. A judgment against minor defend- 
 ants for whom no guardian ad Utem was ap- 
 pointed as required by Mo. Rev. Stat. 1879, 
 3477, will be reversed as to them, though 
 it may be affirmed as to other defendants. 
 Lehew v. Brummell, 103 Mo. 546, 15 S. W. 
 765, 11:828 
 Reduction of damages; remittitur. 
 Remittitur on New Trial, see New Trial, V. 
 
 e. 
 Remittitur on Trial, see Trial, V. e. 
 
 1197. A judgment upon a verdict for a 
 lump sum of damages and interest will not 
 be modified to exclude the interest, which 
 is found to be erroneous, but a reversal is 
 necessary. King v. Southern P. Co. 41 Pac. 
 786, 109 'Cal. 96, 29: 755 
 
 IIDS. A fee allowed to the master by the 
 trial court will not be reduced by the appel- 
 late court, in the absence of evidence show- 
 ing it to be clearlv excessive. Linn v. Cham- 
 bersburg, 160 Pa. 511, 28 Atl. 842, 25: 217 
 
 1199. A remission of the excess cannot be 
 allowed, under the Wisconsin practice, in 
 order to prevent reversal of a judgment 
 which is excessive, although it is due to 
 a mistake in reckoning. Evans v. Foster, 80 
 Wis. 509, 50 N. W. 410, 14: 117 
 
 1200. A remittitur of the excess in a 
 judgment may b'e ordered under Wash. 
 Code Proc. 1429, as an alternative to re- 
 versal for a new trial. King County v. 
 Ferry. 5 Wash. 536, 32 Pac. 538, 19: 500 
 
 1201. A remittitur of the excess of a 
 verdict may bo required as a condition of 
 denying a reversal. Sloane v. Southern Cal. 
 R. Co. Ill Cal. 668, 44 Pac. 320, 32: 193 
 
 1202. Mere excess of damages not due to 
 passion or prejudice of the jury should be 
 designated by the appellate court, and the 
 plaintiff allowed the option to remit such 
 excess and take an affirmance for the resi- 
 due, or submit to a new trial. Burdict v. 
 
 'Missouri P. R. Co. 123 Mo. 221, 27 S. W. 
 453. 26: 384 
 
 1203. Interest improperly included in a 
 
 judgment may be remitted on appeal, to 
 prevent reversal for that reason. Louis- 
 ville & N. R. Co. v. Wallace, 91 Tenn. 35, 
 17 S. W. 882, 14: 548 
 
 1204. An appellate court may, instead of 
 reversing a judgment for damages in an 
 action for tort in which the verdict is so 
 excessive as to evince passion, prejudice, or 
 caprice, require the prevailing party to re- 
 mit the portion which it deems excessive 
 upon penalty of a reversal for refusal to 
 comply, and affirm the judgment for the 
 smaller amount in case the plaintiff as- 
 sents to it. Alabama G. S. R. Co. v. Roberts, 
 113 Tenn. 488, 82 S. W. 314, 67: 495 
 
 1205.. Where, in an action for damages for 
 negligence, the judgment for plaintiff is ex- 
 cessive, and the correct amount is very 
 small, making it admissible to avoid the 
 expense and delay of a new trial, the Cali- 
 fornia supreme court will remand, with 
 directions to enter an order requiring plain- 
 tiff to file with the clerk a waiver of any 
 greater sum than the proper amount found, 
 together with interest thereon and costs, 
 and directing that, unless such waiver be 
 filed within a time to be specified, a new 
 trial shall be granted; in case such waiver 
 is filed each party to pay one half the costs 
 of such appeal. Loveland v. Gardner, 79 
 Cal. 317, 21 Pac. 766, 4: 395 
 
 Reduction of punishment. 
 
 1206. A sentence warranted by statute 
 will not be reduced by the court on appeal 
 because of apparent undue severity, where 
 no error appears in the record. Fanton v. 
 State, 50 Neb. 351. 6T N. W. 953, 36: 158 
 
 1207. A fine of $500 for the publication, 
 without provocation, of a grossly offensive 
 libel, will not be reduced on appeal as ex- 
 cessive. State v. Belvel, 89 Iowa, 45. 56 
 N. W. 545, 27 : 846 
 
 1208. The appellate court may correct a 
 judgment which erroneously imposes im- 
 prisonment in addition to a fine for a stat- 
 utory misdemeanor, by striking out the 
 erroneous portion and affirming the judg- 
 ment as modified. Pressly v. State (Tenn.) 
 86 S. W. 378, 69: 291 
 
 c. Remanding; Granting New Trial. 
 
 See also supra, 1182. 
 
 1209. An appellate court may grant a new 
 trial when there is no evidence to support 
 the verdict. State v. Shaw, 64 S. C. 566. 
 43 S. E. 14, 00: 801 
 
 1210. Judgment for new trial, and not of 
 reversal, will be rendered on appeal whero 
 error is found in the proceeding anterior to 
 and including the verdict. Bernhnrdt v. 
 T?rown. 118 N. C. 700. 24 S. E. 527, 715, 119 
 N. C. 506, 26 S. E. 162. 36: 402 
 
 1211. On affirming a judgment against 
 plaintiff for fatal variance between the 
 pleading and proof, although a good cause of 
 action is proved, the court may remand the 
 case for new trial. Lucke v. Clothing Cut- 
 ters & T. Assembly, No. 7507, K. of L. 77 
 Md. 396, 26 Atl. 505, 19: 408 
 
 1212. If a judgment in an equity case or
 
 126 
 
 APPEAL AND ERROR, VIII. d. 
 
 an action at law tried by the court be re- 
 versed on appeal to the supreme court, and 
 there is an unsolved question of fact that 
 must be determined before final judgment 
 can be rendered, and there are conflicting 
 reasonable inferences as to how such issue 
 should be solved, rendering it doubtful 
 which way is the right of the matter, lest 
 injustice may be done by the exercise of 
 jurisdiction to decide the issue here as an 
 original matter, the court will remand the 
 cause to the trial court to determine such 
 issue and then to apply the law to the 
 case as directed. Bostwick v. Mutual L. 
 Ins. Co. 116 Wis. 392, 89 X. W. 538. 92 X. 
 W. 246, 67:705 
 
 1213. On an appeal which could have been 
 heard upon questions of law alone, under 
 the Constitution in force when the appeal 
 was taken, but which could have been heard 
 upon both the law ana the facts if taken 
 after the adoption of La. Const. 1898, which 
 went into effect while the appeal was pend- 
 ing, but in which the evidence has not been 
 brought up and no statement of facts can 
 be agreed upon, the case must be remandec 
 in order that, on a second trial, the testi- 
 mony may be reduced to writing; and on a 
 second appeal the court can discharge its 
 constitutional duty of adjudging the facts 
 as well as the law of the case. Cassard v 
 Tracy, 52 La. Ann. 835, 27 So. 368. 49: 272 
 
 1214. Where a general verdict has been 
 rendered in favor of plaintiff, upon all the 
 counts in a eorrmlaint seeking to recover 
 damages for slander, and the avmellate court 
 holds some of the counts insufficient, with- 
 out any means of determining upon which 
 counts the damages were in fact assessed. 
 it will not arrest the judgment, but will 
 award a venire de novo. Posnett v. Marble. 
 62 Vt. 481. 20 Atl. 813. 11: 162 
 
 1215. A new trial solely for the purpose 
 of inquiring as to the damages may be 
 granted on a reversal for errors affecting 
 damages only. Pickett v. Wilmington & W. 
 R. Co. 117 X. C. 616, 23 S. E. 264, 30: 257 
 
 1216. A new trial in a foreclosure action 
 will not be granted under X. Dak. Rev. 
 Codes, 5630, providing that the supreme 
 court, if it deem such a course necessary to 
 the accomplishment of justice, may order a 
 new trial of an action, where, although the 
 defendant introduced no evidence on the 
 trial because the court held at the close of 
 plaintiff's testimony that the notice of sale 
 was insufficient and the foreclosure void, 
 there is not even the suggestion of the pos- 
 sibility of establishing facts which would 
 alter the conclusions already reached. 
 Orandin v. Emmons. 10 X. D. 223, 86 X. W. 
 723, 54: 610 
 
 1217. Where the New York court of ap- 
 peals cannot determine what proportion of 
 insurance premiums paid by a fraudulent 
 grantee whose conveyance is set aside at 
 the suit of creditors of the grantor should 
 be borne by the receiver in the action, it 
 will make no allowance, but will leave it to 
 the discretion of the supreme court to order 
 a further reference, if that court considers 
 
 it necessary. Loos v. Wilkinson 113 N Y 
 485, 21 X. E. 392. 4/353 
 
 Directions to trial court. 
 See also supra, 1205. 
 
 1218. On reversing an interlocutory order 
 or decree from which an appeal has been 
 taken, the Federal circuit court of appeals,. 
 in its discretion, may. and should when 
 equity so requires, make full direction aa 
 to the manner in which the cause shall be 
 disposed of below. Richmond v. Atwood, 5 
 U. S. App. 151, 2 C. C. A. 596. 52 Fed. 10, 
 
 17: 615 
 
 1219. The appellate court will not, upon 
 remanding a case after reversing a judgment 
 because of the error of the trial judge in 
 holding that it was barred by a former 
 judgment, direct judgment to' be -entered 
 upon a verdict rendered at the first trial 
 of the action, where it was set aside and 
 a new trial granted because the jury did 
 not follow the instructions of the court as 
 to the effect of such judgment, although a 
 contrary verdict was rendered at the second 
 trial by the direction of the court, which 
 as the appellate court holds, was an error. 
 Hoover v. King. 43 Or. 281. 72 Pac. 880, 
 
 65: 790 
 d. Costs. 
 
 Staying Further Proceedings Till Payment 
 
 of. see Constitutional Law. 1105. 
 Out of Fund in Suit, see Costs and Fees, 31. 
 For Editorial Notes, see infra, XI. 16. 
 
 1220. Under statutes providing that in 
 will contests the court may award costs to 
 either party in its discretion, and upon ap- 
 peal the costs shall be paid by appellant or 
 respondent "and shall be directed by the- 
 court," the costs allowed should be limited 
 to the actual taxable costs. Cheever v. 
 Xorth. 10J? >Ju-h. 3:>(>. 64 X. W. 455. 37: 561 
 
 1221. Where a decree against plaintiff in 
 a suit to quiet title is reversed upon ap- 
 peal because of want of jurisdiction in the- 
 lower court, the costs in the appellate court 
 will be awarded against him. Freer v 
 Davis. 52 W. Va. 1. 43 S. E. 164. 59: 556" 
 
 1222. On a reversal in the supreme court 
 of a judgment of the district court, the 
 plaintiff in certiorari is not entitled to costs. 
 Seabury v. Crowell (X. ,7. Err. & App.) 51 
 X. J. L. 103. 52 X. J. L. 413. 21 Atl. 952. 
 
 11: 13fr 
 
 1223. The costs of an appeal must be 
 borne by the appellant, where he brought 
 the whole case to the supreme court for 
 review, and was xmsupccssful as to every- 
 thing except a small item of interest, al- 
 though he obtained a decision for reversal 
 on account of that item unless a remittitur 
 should be entered therefor. Illinois C. R. 
 
 !o. v. Southern Seating & C. Co. 104 Tenn. 
 368, 58 S. W. 303, 50: 729 
 
 1224. Appellees in an appeal from a de- 
 Tee fixing the amount due on a loan as- 
 sociation contract, from which they do not 
 appeal, should not be charged with the costs 
 merely because the trial court did not * 
 adopt the strictly correct rule of settle- 
 ment, where one was adopted which for
 
 APPEAL AND ERROR, VIII. e. . 
 
 127 
 
 practical results is hardly distinguishable 
 from the correct one, and is quite equitable. 
 Mdhvaine v. Ellington, 49 C. C. A. 446, 111 
 Fed. 578, 55: 933 
 
 122.~>. Costs will not be allowed to either 
 party upon reversal of a decision in favor of 
 a quasi officer of the law, where the proposi- 
 tion sustaining the reversal is brought for- 
 ward by the court of its own motion. Re 
 Dickson, 49 C. C. A. 574, 111 Fed. 726, 
 
 55: 349 
 
 1220. Interest on the amount of the judg- 
 ment, although directed by statute to be 
 added to the costs, is no part of the costs 
 so as to be included in an affirmance by the 
 appellate court of the allowance by the trial 
 court of costs, if the appellate court desig- 
 nates the amount of interest to be, allowed. 
 John V. Farwell Co. v. Josephson,*!)6 Wis. 
 Id. 70 X. W. 28!). 71 X. W. 109. 37: 138 
 
 1227. The abatement of a divorce pro- 
 ceeding by the death of appellant pending 
 an appeal terminates the power of the court 
 over costs, under a statute making costs 
 dependent upon a judicial determination of 
 the action. Begbie v. Begbie. 128 Cal. 154. 
 00 Pae. 667. 49: 141 
 Of brief. 
 
 1228. The expense of printing a large 
 amount of unnecessary matter in a brief 
 without justification will not be allowed in 
 taxintr costs on appeal. Jackson v. Wiscon- 
 sin feleph. Co. 88 Wis. 243. 60 X. W. 430, 
 
 26: 101 
 
 1220. The cost of bringing up superfluous 
 matter will be taxed against the party at 
 whose instance it w r as added to the brief 
 of evidence. Pullman's Palace Car Co. v. 
 Martin. 95 Ga. 314, 22 S. E. 700, 29: 498 
 
 e. Effect of Decision. 
 
 Effect of Affirmance on Appeal, on Motion 
 
 for Xew Trial, see Xew Trial. 63. 
 For Editorial Xotes, see infra, XI. 15. 
 
 1230. The affirmance, by the Illinois ap- 
 pellate court, of a judgment rendered on a 
 verdict, is a decision that the verdict was 
 authorized by the evidence. Pennsylvania 
 Co. v. Versten, 140 111. 637, 30 N. E. 540. 
 
 15: 798 
 
 1231. If a decree in chancery be partly in 
 favor of a party and partly adverse to him, 
 and he appeal from that portion which is 
 adverse, a judgment of affirmance does not 
 affirm that portion of the decree which was 
 in his favor. Pennington v. Todd (N. J. 
 Err. & App.) 47 X. J. Eq. 569, 21 Atl. 297. 
 
 11: 589 
 Conclusiveness of, generally. 
 
 1232. An order of affirmance by the ap- 
 pellate court as embodied in its remittitur 
 will not prevent the court to which it is 
 directed from opening the judgment for the 
 hearing of a new party and the determina- 
 tion of a new claim. Re Rochester. 136 X. 
 V. 83. 32 X. E. 702. 19: 161 
 
 1233. The jurisdiction of a court is estab- 
 lished as res jtiflicata although not dis- 
 cussed or expressly decided, where an ap- 
 pellate court treats its judgments and de- 
 crees as those of a lawful court in the exer- 
 
 cise of its lawful jurisdiction. White v. 
 Hinton, 3 Wyo. 753, 30 Pac. 953, 17: 6ft 
 
 1234. Where a judgment for plaintiff in 
 an action for personal injuries, removed 
 from a state to a Federal court, is reversed 
 and the cause remanded for new trial on 
 the ground that the injury was caused by 
 the act of a fellow servant, such ruling i 
 not the law of the case if plaintiff discon- 
 tinues the action and begins a new one in a 
 court of another county of the state, but 
 the state courts may apply their law with 
 reference to that question. Illinois C. R. 
 Co. v. Benz, 108 Tenn. 670, 69 S. W. 317, 
 
 58: 690 
 
 On later appeal. 
 For Editorial Notes, see infra, XI. 15. 
 
 1235. A decision on a former appeal 
 is the law of the case so far as it is appli- 
 cable to the facts established on the 
 second trial. Case v. Hoffman. 100 Wis. 
 314. 72 X. W. 390. 74 X. W. 220. 75 X T . W. 
 945. 44:728 
 
 1236. A decision by the Kansas City 
 court of appeals is not binding on the Mis- 
 souri supreme court upon subsequent ap- 
 peal to it after retrial in the circuit court. 
 Hennessy v. Bavarian Brew. Co. 145 Mo. 
 104, 46 S. W. 966. 41 : 385 
 
 1237. An appellate court on a second ap- 
 peal may re-examine and reverse its rulings 
 on the first appeal, if the case was then re- 
 manded generally for a new trial. Hastings 
 v. Foxworthy, 45 Neb. 676. 63 X. W. 955, 
 
 34: 321 
 
 1238. A judgment in plaintiff's favor on 
 his appeal from an involuntary nonsuit 
 granted at the close of his evidence is not 
 conclusive on an appeal by defendant from 
 a judgment in plaintiff's favor at the close 
 of all the evidence, which differs in many 
 essential particulars from that introduced at 
 the first trial. Fuchs v. St. Louis. 167 Mo. 
 620. 67 S. W. 610, 57: 136 
 
 1239. A decision on appeal that the pos- 
 session of a note by the maker raises a 
 presumption of payment does not preclude 
 the raising upon a subsequent appeal of the 
 question as to the legal effect of the in- 
 dorsement and transfer of the note by the 
 payee. Vann v. Edwards. 135 X'. C. 661, 47 
 S. E. 784, 67: 461 
 Restitution. 
 
 On Certiorari, see Certiorari, 28. 
 
 1240. An order of restitution is not nec- 
 essary to enable a defendant who has ap- 
 pealed from a judgment of foreclosure to 
 asx-rt his right to the property upon re- 
 versal of the judgment. Di Xola v. Allison, 
 143 Cal. 106, 76 Pac. 976. 65: 419 
 
 1241. A statute authorizing an appellate 
 court, upon reversal of a judgment or fore- 
 closure, to make restitution so far as such 
 restitution is consistent with the protection 
 of a purchaser at a sale under the judgment, 
 does not operate to perfect the title of a 
 strancrer who purchases from the plaintiff in 
 
 'the a-ction after an appeal is taken, since 
 its operation must be limited to parties 
 over whom the court has jurisdiction. Id. 
 
 1242. The title secured by a purchase, by 
 a stranger after an appeal has been taken
 
 128 
 
 APPEAL AND ERROR, VIII. f, IX. 
 
 from the judgment, from one who has pur- 
 chased mortgaged real estate at his own 
 foreclosure sale, is subject to be defeated by 
 a reversal of the judgment, notwithstand- 
 ing the execution of the judgment was not 
 superseded pending the appeal. Id. 
 
 1243. A writ of possession which has been 
 executed will not be quashed unless a writ 
 of restitution should be granted, as the 
 quashal would otherwise do no good. Bowar 
 v. Chicago W. D. R. Co. 136 111. 101, 26 N. 
 E. 702, 12: 81 
 Liability for acts done in accordance with. 
 For Editorial Notes, see infra, XI. 15. 
 
 1244. Acts done pursuant to a subsisting 
 judgment which is afterwards reversed can- 
 not be made the basis of an action for dam- 
 ages for tort. Bridges v. McAllister, 106 
 Ky. 701, 51 S. W. 603, 45: 800 
 
 1245. An action sounding in tort cannot 
 be maintained to recover damages for in- 
 juries resulting to lands by reason of the 
 casting of surface water thereon through a 
 drain which was constructed in good faith 
 in accordance with a judgment of a court 
 having jurisdiction of the parties and sub- 
 ject-matter, although such judgment has 
 been subsequently reversed on appeal for 
 error, no stay of proceedings pending the 
 appeal having been obtained. Thompson v. 
 Reasoner, 122 Ind. 454, 24 N. E. 223, 
 
 7:495 
 
 f. Correction. 
 
 Due Process as to, see Constitutional Law, 
 813. 
 
 1246. The court has a right to file a new 
 and fuller opinion containing every reason 
 for tlie decision that was included in the 
 first opinion and an additional reason also, 
 although the cause has been remanded to a 
 lower court. Adams v. Yazoo & M. V. R. 
 Co. 77 Miss. 194, 24 So. 200, 317, 28 So. 956. 
 
 60: 33 
 
 1247. An appellate court, having reversed 
 a judgment in a capital case on a transcript 
 of the record of the court below, which was 
 an entire misrepresentation of the real 
 record, does not lose its jurisdiction by is- 
 suing a remittitur to the court below, but 
 may vacate its entry of judgment and re- 
 store the cause to its docket; and the case 
 is not altered by the fact that the misrepre- 
 sentation was unintentional. Lovett v. 
 State. 29 Fla. 384, 11 So. 176, 16: 313 
 
 TX. Rehearing. 
 
 Filing Supplemental Record on Petition for, 
 
 see supra, 167. 
 Pow^r of Legislature to Authorize, see 
 
 Courts, 245. 
 See also supra, 69. 70. 
 
 1248. A rehearing cannot be considered if 
 no brief is filed in its support. Parker v. 
 State ex rel. Powell. 133 Ind. 178, 32 X. F.. 
 836. 18: 567 
 
 1249. The right to file a petition to rehear 
 
 a case in the supreme court, given by N. C. 
 Code. 966, does not extend to the right to 
 require the court to consider the rehearing 
 contrary to its rules. Herndon v. Imperial 
 F. Ins. Co. Ill N. C. 384, 16 S. E. 465, 
 
 18: 547 
 
 1250. On vacating a judgment which was 
 void because the qualified members of the 
 court were equally divided, the court, in- 
 stead of entering judgment, may order a re- 
 argument, if it sees fit to do "so. Case v. 
 Hoffman, 100 Wis. 314, 72 X. W. 390, 74 N. 
 W. 220, 75 N. W. 945, 44: 728 
 
 1251. A rehearing will not be granted 
 where the petition for it suggests nothing 
 which gives reason to apprehend error in the 
 judgment. Jacksonville. T. & K. W. R. Co. 
 v. Peninsular Land, T. & Mfg. Co. 27 Fla. 
 1, 157, 2 So. 661, 9 So. 689, 17: 33 
 
 1252. An order for the payment of a divi- 
 dend to creditors, made during the course of 
 proceedings for the winding up of an in- 
 solvent insurance company, to which no ob- 
 jection was taken until a rehearing of an 
 appeal from the final decree in the case had 
 been granted, and upon which the receiver 
 has acted and had his report confirmed, will 
 not be disturbed. Republic L. Ins. Co. v. 
 Swigert, 135 111. 150, 25 N. E. 680, 12: 328 
 Who mav petition for. 
 
 1253. One to whom the decision is not ad- 
 verse cannot petition for a rehearing. 
 Parker v. State ex rel. Powell, 133 Ind. 178. 
 32 X. E. 836, 18: 567 
 
 1254. The attornev general is only an 
 amicus curire when invited by the court to 
 appear in an action involving an important 
 constitutional question which is brought in 
 the name of the state on the relation of a 
 person who seeks thereby to enforce a 
 private right, and he is not a party or inter - 
 vener who is entitled as such to file a peti- 
 tion for a rehearing. Id. 
 Grounds for. 
 
 1255. The surprise of the unsuccessful 
 counsel at a decision does not constitute a 
 ground for reopening the case. People ex 
 rel. L'Abbe v. Lake County Dist. Ct. 26 
 Colo. 386, 58 Pac. 604, 46: 850 
 
 1256. A rehearing will not be granted in 
 order to consider points not made in the 
 argument, upon which the case was original- 
 ly submitted. Kellogg v. Cochran, 87 Cal. 
 192, 25 Pac. 677, 12: 104 
 
 1257. A rehearing will be granted for the 
 purpoep of considering new matter stated in 
 the petition therefor, which may materially 
 afreet the merits of the main controversy, 
 and was not considered at the rendition of 
 the original opinion. Kirby v. Western U. 
 Teleg. Co. 4 S. D. 105, 439, 7 S. D. 623, 55 
 X. W. 759. 57 X. W. 199, 65 X. W. 37, 
 
 30: 612 
 
 1258. The supreme court of Indiana will 
 not errant a motion for rehearing to appellee 
 on the ground that the question decided was 
 not properly before it, where the defect, if 
 any. was a technical one in the form of the 
 motion for new trial in the lower court, and 
 f he appellee, without questioning appel- 
 lant's stateme?it, which showed the ques- 
 tion to have been properly raised, discussed
 
 APPEAL AND ERROR, X. 
 
 129 
 
 the question on the merits, while a rule of 
 the court provides that any statement of 
 fact by counsel, unquestioned by opposing 
 counsel, will be deemed by the court to be 
 accurate. Ohio & M. R. *Co. v. Stein, 133 
 Ind. 243, 31 N. E. 180, 19: 733 
 
 1259. A rehearing may be granted, even 
 when the result must be the same as an- 
 nounced in the original opinion, when (1) 
 the concurrence of one of two judges consti- 
 tuting the court delivering the judgment on 
 appeal is limited to the result; and thereby 
 the law of the case is not made; and (2) the 
 original opinion fails to consider a point 
 raised upon the appeal, which, if tenable, 
 might be fatal to the cause of action set 
 forth in the complaint; and (3) the former 
 opinion announces certain rules, of law 
 which, in the judgment of the court as con- 
 stituted when the motion for rehearing is 
 considered, require modification to prevent 
 misapplication of same upon a new trial of 
 the cause. Fenstermaker v. Tribune Pub. 
 Co. 12 Utah, 439, 13 Utah, 532, 43 Pac. 112, 
 
 35: 611 
 What will be considered. 
 
 1260. No ground or position not taken on 
 the hearing can be assumed in a petition for 
 rehearing. Jacksonville, T. & K. W. R. Co. 
 v. Peninsular Land, T. & Mfg. Co. 27 Fla. 1, 
 157, 2 So. 661, 9 So. 689, 17: 33 
 
 1261. A motion for a new trial for newly 
 discovered evidence cannot be considered on 
 
 petition to rehear on appeal, even if due 
 iiligence has been shown. Fleming v. 
 Bordon, 126 N. C. 450, 36 S. E. 17, 127 N. C. 
 214, 37 S. E. 219, 53: 316 
 
 1262. That the death of deceased was not 
 produced solely by the act of accused can- 
 not be raised as a defense to a prosecution 
 for murder for the first time on a petition 
 for rehearing in the appellate court under 
 the Texas Code of Criminal Procedure. 
 White v. State, 44 Tex. Grim. Rep. 346, 72 
 S. W. 173, 63: 660 
 
 1263. In a criminal case, if the accused 
 has actually overlooked an error in the 
 original submission which might have mis- 
 led the jury in reaching their verdict, the 
 court will correct it on rehearing. State 
 v. Phillips, 119 Iowa, 652, 94 N. W. 229, 
 
 67 : 292 
 In bane. 
 
 1264. A constitutional provision for the 
 transfer of criminal cases from a division 
 of the appellate court to the court in bane 
 on motion of the losing party when a judge 
 dissents from the opinion applies in favor 
 of the state; and the rule that in such cases 
 the state is not entitled to a review of a 
 judgment of the trial court, except in spe- 
 cial cases allowed by statute, is not appli- 
 cable. State v. Hamey, 168 Mo. 167, 65 S. 
 W. 946, 57: 846 
 
 X. Liability on Appeal Bond. 
 
 Matters as to Security Generally, see supra, 
 
 III. g. 
 
 Presumption as to, see supra, 445. 
 L.R.A. Dig. 9. 
 
 Protection of Appeal Bond against Impair- 
 ing Obligation of Contract, see Constitu- 
 tional Law, 1120-1122. 
 
 Corporation as Surety, see Corporations, 137, 
 138. 
 
 Jurisdiction of Action on, see Courts, 438, 
 439. 
 
 On Appeal from Justice's Judgment, see 
 Justice of the Peace, 30. 
 
 For Editorial Notes, see infra, XI. 8. 
 
 1265. An appeal bond executed in accord- 
 ance with the law in force at the time does 
 not become inoperative by a transfer of the 
 appellate jurisdiction to a different court. 
 Mexican Nat. R. Co. v. Mussette, 86 Tex. 
 708, 26 S. W. 1075, 24: 642 
 
 1266. Failure of the court to fix the 
 amount of an undertaking on appeal does 
 not prevent its enforcement, if the respond- 
 ent has treated the undertaking as sufficient 
 and thereby waived the defect. Braith- 
 waite v. Jordan, 5 N. D. 196, 65 N. W. 701, 
 
 31 : 238 
 
 1267. A good common-law obligation sup- 
 ported by a sufficient consideration is made 
 by an undertaking to secure a stay of pro- 
 ceedings on appeal in an admiralty case, 
 even if a mere cost bond might have been 
 sufficient, where the respondent treats the 
 undertaking as entitling the appellant to a 
 stay. Id. 
 
 1268. A bond reciting judgment for de- 
 livery of a vessel to the claimant in an ad- 
 miralty case, when given to secure a stay 
 of proceedings, is in the nature of a stipu- 
 lation for value, which is valid as a volun- 
 tary bond when claimant refrains from dis- 
 turbing the appellants in possession of the 
 vessel pending an appeal. Id. 
 Amount of liability. 
 
 1269. One becoming surety on a super- 
 sedeas bond which is substituted for a prior 
 similar bond assumes, under the Arkansas 
 statutes, liability for all damages accruing 
 during the pendency of the appeal, and not 
 for those only which accrue after his bond 
 is filed. Wilson v. King, 59 Ark. 32, 26 S. 
 W. 18, 23: 802 
 What will release sureties. 
 
 See also Principal and Surety, 49. 
 
 1270. The sureties on an appeal bond 
 conditioned for the prosecution of the appeal 
 to a court of appeals, and the performance 
 of the judgment of that court, or of the su- 
 preme court of the state in the event of an 
 appeal thereto, are discharged where, by a 
 change in the statute governing appeals, no 
 judgment is rendered by the court of ap- 
 peals, or any appeal taken from that court 
 to the supreme court, but the case is taken 
 by a legislative transfer from the court of 
 appeals to the supreme court. Schuster v. 
 Weiss, 114 Mo. 158, 21 S. W. 438, 19: 182 
 
 1271. It is no defense to the sureties in 
 an action on an appeal bond that the plain- 
 tiff has unlawfully taken possession of 
 more than enough of the property of the 
 principal in the bond, who is deceased, and 
 that there has been no administration on 
 the estate. Id. 
 
 1272. The liability of sureties on an ap-
 
 ISO 
 
 APPEAL AND ERROR, XI. (Ed. Notes.) 
 
 peal bond is wholly discharged when the 
 judgment is paid by sureties upon a bond 
 for further appeal to a higher court after 
 affirmance by it, and the latter cannot, by 
 taking an assignment of the judgment, 
 raise any liability on the part of the former 
 which will give them an interest in the 
 judgment debtor's property, and make them 
 necessary parties to foreclose proceedings 
 against him. Wronkow v. Oakley, 133 N. 
 Y. 505, 31 N. E. 521, 16: 209 
 
 XI. Editorial Notes. 
 a. Substitutes for appeal or writ of error. 
 
 i. Generally. 
 
 Exercise of superintending control in place 
 of appeal. 51 : 109. 
 
 Exceptions to rule that certiorari will not 
 lie where there is an ap- 
 peal. 50:787. 
 
 Lack of remedy by appeal as ground for in- 
 junction against judg- 
 ment. 30:560. 
 
 Prohibition not issued to review or correct 
 errors of law or fact. 3: 
 57. 
 
 Writ of prohibition not to serve purpose of 
 writ of error. 9:59. 
 
 b. Appellate jurisdiction. 
 
 2. Generally. 
 
 What adjudication of state courts can be 
 brought up for review in 
 the Supreme Court of the 
 United States by writ of 
 error to those courts. 62: 
 513. 
 
 Nature of decisions reviewable. 62:515. 
 
 Finality of determination. 62:515. 
 
 Adjudication must be that of the 
 
 highest state court. 62: 
 
 518. 
 
 When adjudication is rendered in a 
 
 suit. 62: 619. 
 
 The nature of the controversy essen- 
 tial to this jurisdiction. 
 62: 519. 
 . In general. 62:519. 
 
 Validity of Federal law. 62:521- 
 Questions respecting Federal au- 
 thority. 62:521. 
 
 Repugnancy of state statutes or 
 authority to Federal law. 
 62:525. 
 
 State authority. 62:525. 
 State statutes generally. 62: 
 
 526. 
 
 State legislation impairing 
 contract obligations. 62: 
 527. 
 
 Eights and immunities claimed 
 under Federal law. 62: 
 529. 
 
 In general. 62:529. 
 Full faith and credit. 62: 529. 
 Former jeopardy. 62:530. 
 Commerce. 62:530. 
 
 Due process of law. 62:530. 
 Equal protection of the laws. 
 
 62:531. 
 
 Treaty rights. 62:532. 
 Land title. 62:532. 
 Title to office. 62:534. 
 Mining claims. 62:534. 
 Bankruptcy. 62:535. 
 National banks. 62:536. . 
 Citizenship. 62:537. 
 Indians. 62:537. 
 Contracts. 62:537. 
 Vested water rights. 62:537. 
 Legal tender. 62:537. 
 Exemption from taxation. 62: 
 
 537. 
 Customs and internal revenue. 
 
 62:538. 
 
 Removal of causes. 62:538. 
 Navigation. 62 : 538. 
 Civil rights. 62:538. 
 Patents for inventions. 62: 
 
 538. 
 
 Slavery. 62:539. 
 Limitation of actions. 62:539. 
 Miscellaneous. 62:539. 
 Questions of local or general law 
 
 are not Federal. 62:540. 
 In general. 62: 540. 
 Practice and procedure. 62: 
 
 541. 
 Validity of state legislation 
 
 under state Constitution. 
 
 62:542. 
 Statutory construction. 62: 
 
 542. 
 
 Questions of fact. 62:543. 
 How and when questions must be raised and 
 
 decided in a state court in 
 
 order to make a case for 
 
 a writ of error from the 
 
 Supreme Court of the- 
 
 United States. 63:33. 
 Presentation of the Federal question to 
 
 the state court. 63:33. 
 How raised. 63:33. 
 
 The general rules. 63:33. 
 Illustrative cases. 63: 395. 
 When presented in time. 63:39. 
 The decision of the Federal question 
 
 by the state court. 63:42. 
 Necessity of decision. 63:42. 
 Essential requisites to decision. 
 
 63:42.. 
 
 In general. 63:42. 
 Application of the rules to dif- 
 ferent Federal questions. 
 
 63:44. 
 Nature of decision as affecting 
 
 right of review. 63:53. 
 Decision need not be erroneous. 
 
 63:56. 
 Decision must be controlling. 63: 
 
 56. 
 
 c. Who may appeal; from what decisions. 
 
 3. Generally. 
 
 See also supra, II. 
 
 Who may appeal to. or sue out writ of error 
 
 from. Federal Supreme 
 
 Court, 66:854.
 
 APPEAL AND ERROR, XI. (Ed. Notes ) 
 
 131 
 
 Right to appeal from order of Federal cir- 
 cuit court remanding 
 cause to state court. 
 1: 67. 
 
 Right of administrator, executor, or trustee 
 to appeal as party ag- 
 grieved. 13:745.* 
 
 Appeal by distributee from decree on ac- 
 counting of which he had 
 no notice. 63:97. 
 
 Right of state to appeal in a criminal case. 
 19:342. 
 
 What entry or record necessary to com- 
 plete judgment or order 
 for purposes of appeal. 
 28:627. 
 
 Appeal from drain assessment. 10:288.* 
 
 < 
 
 d. Transfer of cause. 
 
 4. Generally. 
 
 Practice and procedure governing the trans- 
 fer of causes to the Fed- 
 eral Supreme Court on 
 writ of error or appeal. 
 66:833. 
 The writ of error. 66:834. 
 
 Issuance and allowance. 66:834. 
 In general. 66:834. 
 Where the writ runs to a 
 
 state court. 66:835. 
 To what court directed. 66:836. 
 Form. 66:838. 
 
 Generally. 66:838. 
 Description of parties. 66: 839. 
 Amendments. 66:839. 
 Service. 66:840. 
 The appeal. 66:841. 
 
 General requirements. 66:841. 
 Allowance. 66:841. 
 Description of parties. 66:843. 
 The citation. 66:843. 
 Necessity. 66:843. 
 
 On appeal. 66:843. 
 On writ of error. 66:844 
 Formal requisites. 66:844. 
 By whom signed. 66:845. 
 Tn general. 66:845. 
 On writ of error to state court. 
 
 66:845. 
 
 Service. 66:845. 
 Appearance. 66:853. 
 Second appeal or writ of error. 66:870. 
 5. Time. 
 
 Time for instituting proceedings to transfer 
 cause to Federal Supreme 
 Court. 66:846. 
 
 When review only is desired. 66:846. 
 Appeals from, or writs of error to, 
 inferior Federal courts. 
 66:846. 
 Writs of error to state courts. 
 
 66:847. 
 
 When supersedeas is desired. 66:847. 
 How time is to be computed. 66:848. 
 When time begins to run. 66:848. 
 When appellate proceedings are 
 
 deemed begun. 66:849. 
 Suspensions and interruptions. 66: 
 
 849. 
 How objections may be raised. 66:850. 
 
 Constitutionality of statute reviving right 
 
 of appeal on writ of error 
 
 after same barred by lapse 
 
 of time. 45:614. 
 
 First and last days in computing time for. 
 
 49:226. 
 
 Time for filing record and docketing cause 
 on error or appeal to Fed- 
 eral Supreme Court. 66: 
 850. 
 
 6. Parties. 
 
 Parties necessary. 7:231.* 
 On error or appeal to Federal Supreme 
 
 Court. 66:854. 
 Who may institute proceedings. 66: 
 
 854. 
 
 Xecessary or proper parties. 66:855. 
 Abatement and substitution. 66: 856. 
 Description of. 66: 839, 843. 
 7. Record. 
 
 What record on appeal must show. 8:611. 
 What the record must show respecting the 
 presentation and decision 
 of a Federal question in 
 order to confer jurisdiction 
 on the Supreme Court of 
 the United States of a 
 writ of error to a state 
 court. 63:471. 
 The general rules. 63:471. 
 Presentation as affected by the class 
 to which the Federal ques- 
 tion belongs. 63:472. 
 The decision of the Federal question. 
 
 63:474. 
 Effect of certificate of state court. 63: 
 
 477. 
 
 The record for the purpose of showing juris- 
 diction in the Supreme 
 Court of the United 
 States of a writ of error 
 to a state court. 63:329. 
 In general. 63:329. 
 Findings of fact. 63:330. 
 Opinion of state court. 63:330. 
 Certificate of state court. 63:332. 
 Petition for rehearing. 63: 333. 
 Petition for allowance of writ of error. 
 
 63:333. 
 
 Counsel's arguments or briefs. 63:333. 
 Assignment of errors. 63:333. 
 Filing record and docketing cause in Fed- 
 eral Supreme Court. 66: 
 850. 
 
 Time. 66:850. 
 Clerk's fees. 66:850. 
 Docketing twice. 66:852. 
 Opinion of the court below as part of the 
 
 record. 15:798. 
 
 Amendment of record to cure defect for 
 which motion in arrest of 
 judgment has been made. 
 67: 185. 
 8. Bond. 
 
 Security on error or appeal to Federal Su- 
 preme Court. 66:858. 
 Necessity. 66 : 858. 
 Requirements as to time. 66:858. 
 
 When supersedeas is desired. 66: 
 
 858. 
 
 Formal requisites in general. 66:859. 
 Parties. 66:859.
 
 182 
 
 APPEAL AND ERROR, XI. (Ed. Note.-.) 
 
 Sureties. 66:860. 
 Acceptance and approval. 66:860. 
 Amount. 66:860. 
 
 New or additional security. 66:860. 
 Condition in execution of appeal bond as 
 to its execution by anoth- 
 er. 45:333. 
 Power of surety company to act as surety 
 
 on appeal bond. 48:590. 
 Who is real party in interest, who must 
 bring action on appeal 
 bond. 64: 605. 
 Form of judgment on appeal bond. 62: 
 
 442. 
 Penalty as limit of liability on appeal bond. 
 
 55:387. 
 
 9. Effect of appeal. 
 
 Effect of right to appeal from divorce decree 
 on party's right to remar- 
 ry. 17:573. 
 
 Effect, on marriage relation, of appeal from 
 conviction of husband or 
 wife. 31:518. 
 Protection of property pending appeal. 11: 
 
 480.* 
 
 Effect of appeal from order appointing re- 
 ceiver. 20:395. 
 
 Further proceedings pending error or ap- 
 peal to Federal Supreme 
 Court. 66:862. 
 
 When there is supersedeac. 66: 864. 
 Compliance with statutes as af- 
 fecting. 66: 864. 
 In civil cases. 66: 864. 
 In criminal cases. 66: 864. 
 What action is precluded by super- 
 
 sedeas. 66: 868. 
 
 Modifying or vacating. 66: 868. 
 Injunction cases. 66: 868. 
 Habeas corpus proceedings. 66: 869. 
 Bail. 66: 869. 
 
 e. Objections and exceptions. 
 
 10. Generally. 
 
 Objections must be made in court below. 
 
 5: 591;* 8: 608.* 
 
 Necessity of exception to improper state- 
 ment by prosecuting at- 
 torney. 46: 645. 
 Exceptions to ruling. 8: 608.* 
 
 Purpose and effect of. 12: 554.* 
 When must be taken. 8 : 608 ; * 12 : 554.* 
 Necessity of taking at trial. 12: 555.* 
 Sufficiency of general exceptions. 
 
 8: 608.* 
 
 What exceptions too indefinite. 8:609.* 
 Necessity that exceptions to admission 
 of evidence be specific. 
 8: 609;* 12: 555.* 
 
 Necessity of stating grounds of objec- 
 tion. 8: 610.* 
 What bill of exceptions must show. 8: 611. 
 
 f. Hearing and determination. 
 
 ii. Questions reviewable; extent of re- 
 view. 
 Decision as to competency of children as 
 
 witnesses. 19: 605. 
 Excessive sentence. 45: 150. 
 
 What questions the Federal Supreme Court 
 will consider in reviewing 
 the judgment of state 
 courts. 63: 571. 
 The general rule. 63: 572. 
 Particular questions not reviewable. 
 
 63: 573. 
 Non-Federal questions in general. 
 
 63: 573. 
 
 Statutory construction. 63: 575. 
 Validity of state legislation. 63: 
 
 576. 
 
 Questions not involved in the rec- 
 ord. 63: 576. 
 
 Questions of fact. 63: 577. 
 Miscellaneous. 63: 578. 
 The rule where constitutional rights are 
 
 involved. 63: 578. 
 Impairment of contract obligations. 
 
 63: 578. 
 
 Full faith and credit. 63: 580. 
 Due process of law. 63: 581. 
 Equal protection of the laws. 
 
 63: 581. 
 
 12. Sufficiency of evidence; facts. 
 Power to reverse conviction for insufficiency 
 of evidence to sustain the 
 verdict. 17: 484. 
 
 Questions of fact on error from Federal Su- 
 preme Court to state 
 Court. 63: 577. 
 
 13. Excessive or inadequate damages. 
 Inadequacy of damages as a ground for set- 
 ting aside a verdict. 47: 
 33. 
 Power and duty of the court as to. 
 
 47: 33. 
 
 Rule in contract actions. 47: 35. 
 Rule in actions with relation to prop- 
 erty and property rights. 
 47:38. 
 Rule in actions for personal injuries. 
 
 47: 39. 
 
 Generally. 47: 39. 
 Actions for libel and slander. 
 
 47: 42. 
 
 Actions for malicious prosecution 
 and false imprisonment. 
 47:43. 
 Actions for assault and battery and 
 
 other torts. 47: 44. 
 Actions for personal injuries caused 
 
 by negligence. 47: 44. 
 General rules as to. 47: 44. 
 What sufficient to show bias or 
 omission of duty in- 
 stances. 47 : 45. 
 
 Statutory provisions as to small- 
 ness of damages for per- 
 sonal injury. 47: 48. 
 Effect of uncertainty as to cause of in- 
 jury. 47:48. 
 
 Who entitled to relief. 47:49. 
 Matters of procedure. 47: 50. 
 Increase of verdict by court. 47: 51. 
 Power of appellate court to interfere with 
 verdict for excessive dam- 
 ages. 26: 384. 
 
 Reviewing power generally. 26: 384. 
 Requiring remittitur in appellate court. 
 26: 385.
 
 APPEAL AND ERROR, XI. (Ed. Notes); APPEARANCE. 
 
 133 
 
 Appellate courts granting new trials for 
 excessive damages. 26: 
 391. 
 New York cases. 26: 396. 
 
 Requiring remittitur. 26: 396. 
 Reversing for excessive damages. 
 
 26: 398. 
 
 English cases. 26: 398. 
 Decision that damages excessive, effect on 
 
 second appeal. 34: 343. 
 14. What will warrant reversal. 
 Reversal of conviction because of unfair or 
 irrelevant argument or 
 statements of facts by 
 prosecuting attorney. 46: 
 641. 
 
 Improper arguments or statements as a 
 ground for appeal. 46: 
 641. 
 Necessity of objection, and when made. 
 
 46: 642. 
 What relief must be asked for. 46: 
 
 644. 
 Necessity of ruling and exception. 46: 
 
 645. 
 Necessity of perpetuation in the record. 
 
 46: 646. 
 
 Effect of withdrawal or direction to dis- 
 regard. 46: 648. 
 Generally. 46: 648. 
 By prosecuting attorney. 46: 648. 
 By the court. 46: 648. 
 Must be prejudicial. 46: 650. 
 The degree of impropriety warranting a 
 
 reversal. 46: 652. 
 The general principle. 46: 652. 
 Denunciation and abuse of the de- 
 fendant. 46: 652. 
 Attack on defendant's witnesses. 
 
 46: 653. 
 
 Attack on counsel. 46: 655. 
 Misstatement of the facts. 46: 
 
 655. 
 Statement of facts not proved. 46: 
 
 657. 
 
 In opening address. 46: 657. 
 In closing argument. 46: 658. 
 In embellishment or illustra- 
 tion of argument. 46: 661. 
 Comments on excluded evidence. 
 
 46: 661. . 
 
 Misstatements of the law. 46: 663. 
 Reference to previous conviction or 
 
 other crimes. 46: 663. 
 Comments on personal appearance 
 of the defendant. 46: 665 
 Comments on absence of witnesses 
 and what they would testi- 
 fy to. 46: 665. 
 
 Comments on character and failure 
 to prove character. 46: 
 666. 
 Expression of personal opinion as 
 
 to guilt. 46: 667. 
 Appeals to passion, prejudice, and 
 
 public opinion. 46: 668. 
 Comments on cost of trial, right to 
 appeal, punishment, etc. 
 46: 670. 
 
 Improper language prompted by state- 
 ments of the defense. 46: 
 670. 
 
 Effect of verdict which is clearly right. 
 
 46: 672. 
 Excessive sentence as ground of reversal. 
 
 45: 150. 
 Placing manacles upon prisoner as ground 
 
 of reversal of conviction. 
 
 39: 824. 
 
 g. Effect and collusiveness of decision. 
 
 15. Generally. 
 
 Effect of reversal upon previous judicial 
 
 sale. 21 : 52. 
 
 Liability for tort in doing acts authorized 
 by subsisting judgment 
 which is afterwards re- 
 versed. 45: 800. 
 
 Form and extent of relief in case of ex- 
 cessive sentence. 45:150. 
 Conclusiveness of prior decisions on subse- 
 quent appeals. 34: 321. 
 
 Generally. 34: 321. 
 
 Where the prior decision is erroneous. 
 34: 325. 
 
 As applied to matters after remanding 
 a case. 34: 329. 
 
 As to evidence. 34 : 332. 
 
 As to party. 34: 332. 
 
 As to matters necessarily involved. 34: 
 333. 
 
 As to matters of estoppel. 34: 334. 
 
 As to matters of jurisdiction. 34: 334. 
 
 As to defective appeals. 34: 335. 
 
 As to cross appeals. 34: 335. 
 
 Where prior decision is not final. 34: 
 336. 
 
 As to matters of pleading. 34: 337. 
 
 As to injunctions and interlocutory or- 
 ders. 34: 340. 
 
 As to questions which might have been 
 made on prior appeal. 34: 
 341. 
 
 As to excessive verdicts. 34: 343. 
 
 Change of court. 34: 343. 
 
 As to effect of dicta. 34: 344. 
 
 Where the questions are different. 34: 
 345. 
 
 As to ambiguous decisions. 34: 346. 
 
 As to limited decisions. 34: 34t, 
 
 As to decisions by a divided court. 34: 
 346. 
 
 Statute and Constitution changing the 
 rule. 34: 347. 
 
 Rule in intermediate courts. 34: 347. 
 
 h. Costs. 
 
 1 6. Generally. 
 
 Right of executor or administrator to ap- 
 peal in forma pauperis. 
 68: 418. 
 
 APPEARANCE. 
 
 On Appeal, see Appeal and Error, m. e. 
 
 Attorney's Right to Withdraw, see At- 
 torneys, 48. 
 
 Opinion Evidence as to, see Evidence, 1409, 
 1410.
 
 APPELLATE COURT-APPRAISALS. 
 
 By Garnishee, see Garnishment, 113. 
 
 For State in Habeas Corpus Proceeding, see 
 
 Habeas Corpus, 51, 52. 
 For Infant, see Infants, 101. 
 Effect of, on Right to Attack Judgment, see 
 
 Judgment, 136, 153, 156. 
 
 Unauthorized, see Injunction, 281; Judg- 
 ment, 25, 156, 428, 436, 439; Judicial 
 
 Sale, 37. 
 Jurisdiction to Render Judgment on, see 
 
 Judgment, 35. 
 Waiver of Defect in Pleading, see Pleading, 
 
 53. 
 Waiver of Objection to Tax by, see Taxes, 
 
 394. 
 
 1. A general appearance by any of a num- 
 ber of nonresident defendants renders an 
 order of publication unnecessary as to such 
 of them as appear. McClung v. Sieg, 54 W. 
 Va. 467, 46 S. E. 210, 66: 884 
 
 2. A nonresident owner of property at- 
 tached within the state waives his objection 
 to the jurisdiction of the court by entering 
 his appearance and pleading to the merits. 
 Brand v. Brand, 116 Ky. 785, 76 S. W. 868, 
 
 63: 206 
 
 3. The appearance of a city to an amend- 
 ed petition making it a defendant in an 
 action originally brought against an alleged 
 waterworks corporation whieh had no exist- 
 ence gives jurisdiction as if the petition was 
 originally filed against the city. Newport 
 v. Com. 106 Ky. 434, 50 S. W. 845, 51 S. W. 
 433, 45: 518 
 
 4. A railroad company, by appearing for 
 any other purpose than to object to juris- 
 diction, submits itself to the jurisdiction of 
 the court, and waives an objection that the 
 action is brought in the wrong countv, con- 
 trary to. Ohio Rev. Stat. 5027. Ohio S. R. 
 Co. v. Morey, 47 Ohio St. 207, 24 N. E. 269, 
 
 7:701, 
 
 Editorial Notes. 
 
 Effect of, by nonresident to give jurisdiction 
 of divorce case. 23: 287. 
 
 Effect of, as an admission or waiver by a 
 fiduciary. 32: 671. 
 
 Power of defendant's attorney to withdraw 
 answer or appearance and 
 permit default judgment. 
 33: 515. 
 
 Effect of unauthorized, of attorney. 9: 
 844;* 21: 848. 
 
 Effect of, upon local jurisdiction of action 
 against foreign corpora- 
 tion. 70: 701. 
 
 By appellee or defendant in error in Fed- 
 eral Supreme Court. 66: 
 853. 
 
 APPELLATE COURT. 
 Original Jurisdiction of, see Courts, II. a, 2. 
 
 APPLAUSE. 
 
 As Ground for Reversing Conviction, see 
 Appeal and Error, 850. 
 
 APPLIANCES. 
 
 Master's Duty as to, see Master and Serv- 
 ant, II. a, 4. 
 
 APPLICATION. 
 
 Of Deposits, see Banks, IV. a, 2; VIII. 7. 
 For Insurance, see Conflict of Laws, 69-71; 
 
 Evidence. 1023; Insurance, III. e, 2; 
 
 V. b. 
 
 For Patent, see Patents, 15. 
 Of Payments, see Payments, IV.; V. 5. 
 
 APPOINTMENT. 
 
 Of Personal Representative, see Executors 
 and Administrators, I. 
 
 Of Guardian, see Guardian and Ward, I. 
 
 Of Committee for Insane Person, see In- 
 competent Persons, 49. 
 
 To Office, see Officers, I. b; IV. 4. 
 
 Power of, see Powers. 
 
 Of Receiver, see Receivers, I. 
 
 Of Preachers, see Religions Societies, 46. 
 
 Of Trustees, see Trusts, 107-113, 118. 
 
 APPORTIONMENT. 
 
 Of Annuity, see Annuities, 5, 6. 
 
 Of Expense of Highway and Bridge between 
 City and Towns, see Bridges, 7. 
 
 Of Representation in Congress, see Con- 
 gress, 3. 
 
 Of Taxes. Review of, see Constitutional 
 Law, 229. 
 
 Of Right of Action, see Contracts, 681. 
 
 Review of Apportionment Act, see Courts, 
 129-135; Mandamus, 169. 
 
 Of Damages, see Damages, III. u. 
 
 Of Election Districts, see Election Districts. 
 
 Of Loss Between Insurers, see Insurance, 
 VI. g. 
 
 Between Judges, of Labor of Holding Courts, 
 see Judges, 5. 
 
 Of Rent, see Landlord and Tenant, 205, 206. 
 
 Termination of Legislative Existence by, 
 see Legislature, 6. 
 
 Of Loss between Life Tenant and Re- 
 maindermen, see Life Tenants, 2, 3. 
 
 Of Representatives in Congress, see Man- 
 damus, 48. 
 
 Mandamus to Compel Division of County 
 for, see Mandamus, 60. 
 
 Of Street Improvement Assessment, see 
 Public Improvements, III. e. 
 
 Editorial Notes. 
 Of annuities, in absence of statute. 63: 616. 
 
 APPRAISALS. 
 
 As Evidence, see Evidence, 1007. 
 
 Of Insurance Loss, see Insurance, VI. a.
 
 APPRENTICES APPROPRIATIONS. . 
 
 135 
 
 On Foreclosure, see Mortgage, 171, 172. 
 
 Conclusiveness of Decision cf Appraisers, 
 see Arbitration, 20. 
 
 Right to Review Appointment of Apprais- 
 ers, see Contracts, 754. 
 
 APPRENTICES. 
 
 Evidence of Abuse of, see Evidence, 1543. 
 Enjoining Enticing of, see Injunction, 140. 
 
 1. An instrument binding children to the 
 service of a person during their minority, 
 though signed by him and by their parents, 
 is void as to them as an indenture of ap- 
 prenticeship under S. C. Rev. Stat. 1893, 
 2206 unless signed by the infants, Although 
 the statute does not expressly prdVide for 
 their signature. Anderson v. Young, 54 S. 
 . 388. 32 S. E. 448, 44:277 
 
 2. Directors of the poor who apprentice a 
 pauper boy, with knowledge of the unfit 
 character of the master, and who, with 
 knowledge that the child is being abused 
 by such master, refuse to take any measures 
 to rescue him from the cruelty to which he 
 is subjected, are criminally liable at common 
 law as for a wilful neglect or refusal to 
 discharge their duties. Com. v. Covle, 160 
 Pa. 36, 28 Atl. 634, "24: 552 
 
 Editorial Notes. 
 
 Effect of death on contract of. 23: 707. 
 Duty to furnish medical aid to. 28: 555. 
 Effect of master's death. 23: 713. 
 Homicide by excessive chastisement of ap- 
 prentice. 60: 804. 
 
 APPROACHES. 
 
 To Bridge, see Bridges, 4. 20. 32; Eminent 
 Domain. 393. 421-426; Trial, 230. 
 
 To Railroad Station, Safety of, see Carriers, 
 II. a, 9; IV. 8. 
 
 Editorial Notes. 
 
 Approaches of a bridge as part of it. 20: 
 416. 
 
 APPROACHING. 
 
 Who Are Persons Approaching, Entitled to 
 Notice of Blast, see Blasting, 5. 
 
 APPROPRIATIONS. 
 
 Usurpation of Judicial Power in Act, see 
 Constitutional Law, 254. 
 
 Retrospective Legislation as to Form and 
 Method of Passing Bill, see Constitu- 
 tional Law, 118. 
 
 Refusal to Make, as Impairment of Obli- 
 gation of Contract, see Constitutional 
 Law. 1114. 
 
 (Review of, by Court, see Courts. 136. 
 
 For Disposal of Sewage, see Drains and 
 Sewers, 7. 
 
 Injunction against, see Injunction, 340, 341. 
 
 Mandamus to Compel Adjustment, see Man- 
 damus, 37. 
 
 Of Public Money, for what Purposes Al- 
 lowed, see Public Moneys. 
 
 For Factory Inspectors, see Statutes, 227. 
 
 Sufficiency of Title, see Statutes, 278. 
 
 Of Water, see Waters, II. c. 
 
 1. An appropriation for a county exhibi- 
 tion at a state centennial exposition in 189(1 
 is not avoided by a subsequent extension 
 and prolongation of the exposition so that, 
 while beginning in 1896, it shall be carried 
 into the year 1897. Shelby County v. Ten- 
 nessee Centennial Exposition Co. 96 Tenn. 
 653, 36 S. W. 694, 33: 717 
 
 2. An appropriation in a prior act is not 
 annulled as to future interest on certificates 
 by an unconstitutional statute which at- 
 tempts to ratify the act of commissioners 
 in stopping interest on such certificates, in 
 violation of the contract, for nonpresent- 
 ment for payment at a time and place 
 specified in a notice given by them. Carr v. 
 State ex rel. Du Coetlosquet, 127 Ind. 204. 
 26 N. E. 778, 11:370 
 Necessity of. 
 
 See also infra. Editorial Notes. 
 
 3. Ark. act March 18, 1879 (Mansf. Dig. 
 1451). forbidding contracts in behalf of a 
 county in the absence of an appropriation, 
 is not unconstitutional in its application to 
 bridges as interfering with the exclusive 
 jurisdiction vested by the Constitution in 
 the county court over bridges. Fones Bros. 
 Hardware Co. v. Erb, 54 Ark. 645, 17 S. 
 W. 7, 13: 353 
 
 4. Ark. act March 18, 1879 (Mansf. Dig. 
 1451). forbidding contracts in behalf of 
 a county for which there is no unexpended 
 appropriation, applies to contracts for 
 bridges. Id. 
 
 4a. A constitutional provision that "no in- 
 debtedness shall be incurred . . . ex- 
 cept in pursuance of an appropriation" does 
 not prevent the legislature from incurring, 
 or immediately directing the incurring of. 
 indebtedness for the usual and current ad- 
 ministration of state affairs, such as 
 making a contract for public printing, 
 without first making an appropriation for 
 the specific purpose. Carter v. Thorson. 5 
 S. D. 474, 59 N. W. 469, 24: 734 
 
 5. A statute providing for the payment of 
 bounties 1 by a county treasurer for the de- 
 struction of certain wild animals or poison- 
 ous weeds and for planting trees, the 
 amount to be credited in his settlement 
 with the state treasurer, violates a consti- 
 tutional provision that "no money shall be 
 paid out of the treasury except upon ap- 
 propriations made by law and on warrant 
 drawn by the proper officer." The fact that 
 the money has not actually reached the 
 treasury does not prevent the application of 
 this provision to money belonging to the 
 state. Institution for Edu. of Mute & Blind 
 v. Henderson, 18 Colo. 98. 31 Pac. 714, 
 
 18: 398
 
 136 
 
 APPROPRIATIONS. 
 
 What constitute; form; sufficiency. 
 
 6. A promise to pay, contained in a state 
 certificate of indebtedness, is not an appro- 
 priation. Carr v. State ex rel. Du Coetlos- 
 quet, 127 Ind. 204, 26 N. E. 778, 11 : 370 
 
 7. An act creating a state debt sinking 
 fund, and setting apart for the payment of 
 such debts certain funds which shall not be 
 paid out for any other purpose, declaring 
 that the purpose of the act is to provide for 
 the payment of certain bonds or certificates, 
 constitutes an appropriation for their pay- 
 ment. Id. 
 
 8. A sufficient appropriation is made by 
 an act expressly authorizing expenses to be 
 incurred, and directing that they shall be 
 paid, when it is taken in connection with 
 the general statute authorizing the auditor 
 of the state to "draw warrants on the treas- 
 urer for all moneys directed by law to be 
 paid," etc. Henuerson v. State Soldiers & S. 
 Monument Comrs. 129 Ind. 92, 28 N. E. 127, 
 
 13: 169 
 
 9. An appropriation need not be made in 
 a particular form or in express terms. It is 
 sufficient if the intention is clearly evinced 
 by language employed in the statute upon 
 the subject, or if it is evident that no effect 
 can possibly be given to a statute except 
 to make an appropriation. Carr v. State ex 
 rel. Du Coetlosquet, 127 Ind. '204, 26 TST. E. 
 778, 11:370 
 
 10. An appropriation is "made by law" 
 for the salary of an officer by a state Consti- 
 tution which plainly declares what the 
 amount of his compensation shall be; and 
 no legislative appropriation is necessary in 
 that case to authorize payment. State ex 
 rel. Rotwitt v. Hickman, 9 Mont. 370. 23 
 Pac. 740, 8: 403 
 
 11. No appropriation is made by a statute 
 providing for the payment of a bounty of $5 
 out of the general fund in the treasury for 
 each coyote which shall be destroyed, since 
 the total amount which may be devoted te 
 such purpose is not specified. Ingram v. 
 Colgan, 106 Cal. 113, 39 Pac. 437, 28; 187 
 Confining bill for, to subject of. 
 
 12. A provision in a statute establishing 
 free employment agencies, that the salaries 
 of those in charge of them, and the expenses 
 of necessary equipment, shall be paid out of 
 public moneys, violates a constitutional pro- 
 vision that bills making appropriations for 
 salaries for public officers shall contain no 
 provision on any other subject. Mathews 
 v. People, 202 Til. 389, 67 N.'E. 28. 63: 73 
 
 13. Factory inspectors provided for in 111. 
 act June 17, 1893, are state officers or offi- 
 cers of the government, within the provision 
 of Til. Const, art. 4. 16. providing that 
 bills making appropriations for the pay of 
 members and officers of the general assem- 
 bly and for the salaries of the officers of 
 the government shall contain no provisions 
 on any other subject. Ritchie v. People, 155 
 111. 8, 40 N. E. 454, 29: 79 
 
 14. A statute regulating factories and 
 providing for the appointment of factory in- 
 spectors is not invalidated by the inclusion 
 within it of an appropriation for the salaries 
 of such inspectors, under 111. Const, art. 4, 
 
 16, declaring that appropriation bills for 
 the salaries of government officers shall con- 
 tain no provision on any other subject, as 
 such appropriation is merely subordinate to 
 the main purpose of regulating factories. 
 
 Id. 
 Majority necessary to pass bill for. 
 
 15. An appropriation for the payment of 
 a debt or the repair of an injury such as 
 the restoration to the original channel of 
 a river for the benefit of certain riparian 
 owners of waters diverted by authority of 
 the state for a canal, thus depriving them of 
 its use is not for a local or special purpose 
 such as requires a two-thirds vote under N. 
 Y. Const, art. 1, 9, but is for a public pur- 
 pose. Waterloo Woolen Mfg. Co. v. Shana- 
 han, 128 N. Y. 345, 28 N. E. 358, 14: 481 
 
 16. The expense of the maintenance of 
 a state militia is a necessary expense of 
 government, within the meaning of a consti- 
 tutional provision that appropriations for 
 other purposes must receive the assent of 
 two thirds of the members of the legislature. 
 State ex rel. Rogers v. Moore (Ark.) 88 S. 
 W. 881, 70: 671 
 
 17. That a portion of the state militia has 
 assumed the character of a voluntary 
 organization, and expects to receive, aid as- 
 such from the Federal government, does not 
 prevent its maintenance being a necessity of 
 the government, within the meaning of a 
 constitutional provision allowing appropria- 
 tions for such purposes to be made by a 
 mere majority vote of the legislature. Id. 
 
 18. The restriction on appropriations of 
 public moneys .for local purposes without the 
 assent of two thirds of the members elected 
 to each branch of the legislature, made by 
 1ST. Y. Const, art. 3, 20. is not violated by 
 the act of March 23, 1896. giving two thirds 
 of the excise taxes thereby imposed to the 
 towns and cities in which they are raised, 
 since such funds, which never reach the 
 state treasury, have by long course of legis- 
 lation been treated like revenues levied for 
 local purposes, and not as public moneys of 
 the state within the meaning of that consti- 
 tutional provision. People ex rel. Einsfeld 
 v. Murray, 149 N. Y. 367, 44 N. E. 146. 
 
 32: 344 
 
 19. A joint resolution of the legislature is 
 within Mich. Const, art. 4, 45, reouiring 
 the assent of two thirds of the members to 
 "every bill appropriating the public money 
 or property for local or private purposes."' 
 Allen v. Board of State Auditors, 122 Mich. 
 324. 81 N. W. 113, 47: 117 
 
 20. The use of public moneys of the state 
 to pay a convict for wrongful conviction and 
 imprisonment is a mere gratuitv, subject 
 to Mich. Const, art. 4, 45. requiring the as- 
 sent of two thirds of the legislature for an 
 appropriation for private purposes. Id. 
 Power of executive to veto or reduce items 
 
 of. 
 See also Courts, 495. 
 
 21. A constitutional requirement that the 
 legislature shall appropriate each year at 
 least a certain amount for the support of 
 public schools does not deprive the executive 
 of his veto power of separate items of the
 
 APPURTENANCES; ARBITRATION, I. 
 
 137 
 
 appropriation. Com. ex rel. Elkin v. Bar- 
 nett, 199 Pa. 161, 48 Atl. 976, 55: 882 
 
 22. Constitutional power to veto separate 
 items in an appropriation bill includes power 
 to cut down an item. Id. 
 
 23. Under constitutional power to dis- 
 approve of any item or items of an ap- 
 propriation bill the executive may dis- 
 approve one or more of the subdivisions of 
 a clause making appropriations for schools, 
 by which the amount is distributed among 
 separate designated schools or educational 
 interests, either as to the beneficiary or as 
 to the amount, and approve the residue. Id. 
 Continuing appropriation. 
 
 24. A continuing appropriation of the 
 amount of the salary, which omission of an- 
 nual appropriation will not affect, is made 
 by a statute creating an office and filing the 
 salary in obedience to a constitutional man- 
 date, and requiring it to be paid by the 
 treasurer in the same manner as other sal- 
 aries of state officers are paid, where the 
 constitution provides that an officer's salary 
 shall not be diminished during his term, al- 
 though it also provides that no money shall 
 be paid out of the treasury except on ap- 
 propriations made by the legislature. State 
 ex rel. Henderson v. Burdick, 4 Wyo. 272, 
 33 Pac. 125, 24: 266 
 Partial invalidity of appropriation act. 
 
 25. An appropriation by statute does not 
 fail because of the invalidity of a portion of 
 the act which names the officers who are to 
 expend the money. McCornick v. Pratt, 8 
 Utah, 294, 30 Pac. 1091, 17: 243 
 Duty of officers as to. 
 
 26. The auditor has not only the right, 
 but the duty, to question the validity of a 
 legislative appropriation on the ground that 
 it is unconstitutional, when he is called 
 upon for a warrant upon the treasurer 
 under such appropriation. Norman v. Ken- 
 tucky Bd. of Managers of World's Col. Expo. 
 93 Ky. 537, 20 S. W. 901, 18: 556 
 
 27. The state auditor must, under Kan. 
 Gen. Stat. 1889, Iffl 6582, 6597, 6676, take 
 notice of the amount appropriated for a 
 specific purpose, and, when that amount has 
 been exhausted for that purpose, has no 
 authority to allow or audit other claims 
 against such appropriation, and issue war- 
 rants therefor. Henderson v. Hovey, 46 
 Kan. 691, 27 Pac. 177, 13: 222 
 
 28. The state treasurer may properly re- 
 fuse to recognize or pay a warrant drawn 
 by the state auditor after the appropriation 
 against which it was drawn is exhausted. 
 
 Id. 
 
 Editorial Notes. 
 
 Necessity of, for use of public moneys. 13: 
 222.* 
 
 Self-executing constitutional provision as 
 to. 16: 285. 
 
 To aid sectarian institutions. 14: 418. 
 
 How made. 13: 169.* 
 
 For salary. 13:178.* 
 
 Injunction to restrain town and village from 
 making illegal appropria- 
 tions. 7: 180.* 
 
 Power to use public school moneys in sup- 
 port of other educational 
 institutions. 15: 825. 
 
 APPURTENANCES. 
 
 Passing by Deed, see Cotenancy, 45; Deeds, 
 
 Easement as, see Easements, n. c. 
 
 Of Yacht, see Sale, 9. 
 
 Of Water Rights to Nonriparian Land, see 
 
 Waters, 493. 
 To Uplands, see Waters, 134. 
 
 Editorial Notes. 
 
 Corporeal appurtenances to realty. 15:652. 
 
 Soil of road. 15: 652. 
 
 Land as appurtenant to buildings. 15: 
 652. 
 
 Appurtenances to railroads. 15: 654. 
 
 In mechanics' lien cases. 15: 653. 
 
 Water-pipe, aqueduct, etc. 15:653. 
 
 Personal property and fixtures. 15: 
 653. 
 
 In will cases. 15: 654. 
 Appurtenant easements. 2: 285;* 14: 300. 
 
 ARBITRATION. 
 
 I. In General. 
 II. Arbitrators; Umpire. 
 
 III. Award. 
 
 IV. Editorial Notes. 
 
 As Affecting Bond for Injunction, see In- 
 junction, 491, 492. 
 
 Waiver or Estoppel by Participation in, see 
 Insurance, V. b, 5, h. 
 
 Of Insurance Loss, see Insurance, VI. a; IX. 
 47. 
 
 Provision for Fixing Rent on Renewal, by, 
 see Landlord and Tenant, 47, 48. 
 
 Provision for, in Street Railway Franchise, 
 see Municipal Corporations, 249. 
 
 Pleading in Case of, see Pleading, 433. 
 
 Effect on Title of Judgment Based on, see 
 Vendor and Purchaser, 97. 
 
 As to References Generally, see Reference. 
 
 I. In General. 
 
 1. The failure to appoint an arbitrator 
 under an agreement for arbitration cannot 
 be objected to by another party who has ex- 
 pressly given notice of a refusal to comply 
 with the contract for arbitration. Bristol 
 v. Bristol & W. Waterworks, 19 R. I. 413, 
 34 Atl. 359, 32: 740 
 Agreements for; what may be submitted to. 
 Attorney's Authority to Submit Case to 
 
 Arbitration, see Attorneys, 58-60. 
 What Constitutes a Breach of Agreement, 
 
 see Election of Remedies, 22. 
 Agreement by Infant, see Infants. 56-58. 
 For Editorial Notes, see infra, IV. 
 
 2. A claim arising out of an illegal trans- 
 action is not legitimate subject-matter for 
 submission to arbitrators, and an award
 
 138 
 
 ARBITRATION, II. 
 
 founded thereon is a mere nullity. Single- 
 ton v. Benton, 114 Ga. 548, 40 S. E. 811, 
 
 58: 181 
 
 3. A dispute as to the ownership of a 
 strip of land 108 feet wide, claimed by each 
 party in fee simple under a deed which in- 
 cludes the strip, cannot be settled by arbi- 
 tration, under How. (Mich.) Stat. 8475, 
 which allows arbitration to settle bound- 
 aries of lands, but not to determine a claim 
 to anv estate in fee or for life. Lang v. 
 Salliotte, 79 Mich. 505, 44 N. W. 938, 7: 720 
 
 4. The decision of the question of law as 
 to the effect which the failure of a city to 
 have bridge piers completed within a certain 
 time had upon its right to demand liqui- 
 dated damages under a contract to com- 
 plete the bridge at a certain time is outside 
 the jurisdiction of a commission to whom 
 the contract refers all questions "relative to 
 the execution" of the contract. King Iron 
 Bridge & Mfg. Co. v. St. Louis, 43 Fed. 768, 
 
 10: 826 
 
 5. A provision in a contract, that all dif- 
 ferences arising under it shall be submitted 
 to arbitrators thereafter to be chosen will 
 not prevent a party from maintaining a suit 
 in the first instance to enforce his rights 
 under it. Kinney v. Baltimore & O. Em- 
 plovees' Asso. 35 W. Va. 385, 14 S. E. 8, 
 
 15: 142 
 
 6. An agreement between parties to a 
 contract that neither shall maintain a suit 
 thereon after breach all differences to be 
 =ettled by arbitration is without binding 
 force, as tending to oust the courts of their 
 jurisdiction. Hartford F. Ins. Co. v. Hon. 
 66 Neb. 555, 92 N. W. 746, 60: 436 
 
 7. An agreement by which parties thereto 
 stipulate in advance not to enforce, by a 
 resort to a court of justice, a substantial 
 right which may subsequently be involved 
 in flispute between them, but to submit such 
 right to the decision of a private tribunal, 
 although other questions involved may be 
 reserved for adiudication by the courts, can- 
 not bf> enforced. Id. 
 
 8. The failure to appoint an arbitrator 
 under an agreement for arbitration cannot 
 he objected to by another party who has ex- 
 pressly given notice of a refusal to comply 
 with the contract for arbitration. Bristol 
 v. Bristol & W. Waterworks. 19 R. T. 413. 
 34 Atl. 359. 32: 740 
 Revocation of submission. 
 
 By National Bank, see Banks, 30. 
 
 See nlso infra. 10. 11. 
 
 For Editorial Notes, see infra. TV. 
 
 9. An express agreement not to revoke, 
 ;md to waive anv right to revoke, a submis- 
 sion to arbitration, does not prevent a rev- 
 ocation thereof, under X. Y. Code Civ. Proc. 
 2383, at any time before the closing of the 
 proofs and the final submission of the cause 
 for decision ; and upon such revocation the 
 foundation of the arbitrator's power is gone, 
 and no further action can be had under the 
 submission. People ex rel. Union Ins. Co. 
 v. Nash. Ill N. Y. 310, 18 N. E. 630, 2: 180 
 Forfeiture of deposit made to secure award. 
 
 10. That an arbitration agreement pro- 
 vides that the costs shall not become part 
 
 of the amount for which a deposit made to 
 secure payment of the award shall be liable 
 will not, in case the deposit is forfeited by 
 revocation of the award, prevent the deposit 
 from becoming chargeable with the costs 
 which the statute casts upon the one who 
 revokes an arbitration. Union Ins. Co. v. 
 Central Trust Co. 157 N. Y. 633, 52 N. E. 
 671, 44: 227 
 
 11. A deposit made to secure payment of 
 an award under an arbitration agreement 
 becomes forfeited upon revocation of the 
 arbitration, and subject to payment of the 
 damages allowed by statute against one 
 who revokes an arbitration, although made 
 by a third person who committed no breach 
 of the agreement and had no control over 
 the one who did so. Id. 
 Court of. 
 
 Staying Order for Rehearing by, see Courts, 
 * 268, 273. 
 
 12. The court of mediation and arbitra- 
 tion for the amicable adjustment of dif- 
 ferences between employers and employees, 
 which is created by Mich. Comp. Laws, 
 559-568, is not outside the grant by Mich. 
 Const, art. 6, 23, of the power to create 
 courts of conciliation on the ground that it 
 is lacking in the essential powers to compel 
 attendance of the parties and to enforce its 
 decisions. Renaud v. State Court of Media- 
 tion and Arbitration, 124 Mich. 648, 83 X. 
 W. 620, 51 : 458 
 
 13. An election of the judges of a court 
 of conciliation the creation of which is pro- 
 vided for by Mich. Const, art. 6, 23. is 
 not necessary, since the Constitution does 
 not specify the mode of their selection, and 
 the legislature may therefore provide for 
 their appointment. Id. 
 
 14. The power to grant a rehearing is not 
 possessed by the state court of mediation 
 and arbitration established by Mich. Comn. 
 Laws, 559-568, since the statute contains 
 no grant of such power. Id. 
 
 IT. Arbitrators; Umpire. 
 
 Certificate of Arbitrator, see Contracts, 
 
 IV. d. 
 
 See also infra, 19. 
 For Editorial Notes, see infra, IV. 
 
 15. An umpire, as distinguished from a 
 third arbitrator, may properly act alone 
 and make up his decision alone. Hartford 
 F. Ins. Co. v. Bonner Mercantile Co. 44 Fed. 
 151, 11:623 
 
 16. Submission of authorities to an arbi- 
 trator after the close of the testimony, 
 where it is expressly agreed that neither 
 party is to be represented by counsel, is a 
 violation of the spirit of the submission, 
 which will avoid the award. Hewitt v. Reed 
 City. 124 Mich. 6, 82 N. W. 616, 50: 128 
 Compensation of. 
 
 See also infra, 22. 
 
 17. An agreement that arbitrators may 
 fix their own compensation is subject to the 
 implied condition that the allowance made 
 to themselves shall not be unreasonable.
 
 ARBITRATION, III. ARCHITECTS. 
 
 139 
 
 and that its reasonableness may be de- 
 termined by the court. Kelly v. Lynchburg 
 A D. R. Co. 110 N. C. 431, 15 S. E. 200, 
 
 16: 514 
 
 III. Award. 
 
 Doctrine of Comity as to, see Conflict of 
 
 Laws, 12. 
 Federal Jurisdiction to Set Aside, see 
 
 Courts, 345e, 361. 
 Admissibility of, in Evidence, see Evidence, 
 
 842. 
 Arbitrators as Parties to Action to Set 
 
 Aside, see Parties, 139. 
 
 Validity. 
 
 Jvstoppcl to Deny Validity, see Estoppel, 155. 
 
 See also supra, 2. 
 
 For Editorial Notes, see infra, IV. 
 
 18. The award of an arbitrator is void 
 when he acts not upon his own volition and 
 investigation, but under the direction of one 
 of the parties. Hartford F. Ins. Co. v. 
 Conner Mercantile Co. 44 Fed. 151, 11: 623 
 
 19. If an umpire, on an arbitration as to 
 the amount of damage to goods insured, did 
 not examine damaged goods, but procured 
 the separate estimates of each of the other 
 arbitrators, and then made up his estimate 
 of damage and loss from these, with the 
 bills, invoices, books, and inventories of the 
 insured, he was guilty of misconduct which 
 should avoid his award. Id. 
 Conclusiveness; review. 
 
 Award against Infant, see Infants, 113. 
 For Editorial Notes, see infra, IV. 
 
 20. The decision by the appraisers as to 
 what particular articles or items of property 
 are embraced within the general descrip- 
 tion of the property on which they are to 
 appraise damages is final and conclusive, 
 where there is nothing in the description of 
 the property to embrace or suggest the 
 items omitted by them. Chandos v. Ameri- 
 can F. Ins. Co. 84 Wis. 184, 54 N. W. 390. 
 
 19: 321 
 
 21. Where a cause is submitted to a 
 solicitor of the court as an arbitrator, "to 
 liear and decide the same according to the 
 law and the evidence," the court may de- 
 termine exceptions as to whether the arbi- 
 trator's conclusions of law are warranted by 
 the facts found. Galbraith v. Lunsford, 87 
 Tenn. 89, 9 S. W. 365, 1: 522 
 
 22. The court when asked to confirm a re- 
 port of arbitrators may, upon suggestion by 
 exception or by motion, determine whether 
 nn allowance which the arbitrators have 
 made to themselves by consent of the 
 parties is or is not reasonable; and a for- 
 mal action is not necessary. Kelly v. Lynch- 
 burg &. D. R. Co. 110 N. C. 431, 15 S. E. 200. 
 
 16: 514 
 
 23. An award made by arbitrators may be 
 set aside and declared null and void, when 
 it dearly appears that the arbitrators who 
 signed the award were guilty of misconduct, 
 partiality, or fraud. Hartford F. Ins. Co. 
 v. Bonner Mercantile Co. 44 Fed. 151, 
 
 11: 623 
 
 IV. Editorial Notes. 
 
 Agreements to arbitrate. 15: 142. 
 Specific performance. 15 : 142. 
 Remedy at law for breach. 15:142. 
 As a bar to actions. 15:142. 
 Claims against building and loan asso- 
 ciation. 35: 294. 
 Validity of award. 11: 625.* 
 Omissions from a/ward. 1 1 : 626.* 
 When award set aside. 11:623.* 
 Relief from mistake in award. 11: 624.* 
 Submission to; effect of; revocation of; 
 judgment on award. 2: 
 180.* 
 Right of woman to hold office of arbitrator. 
 
 38: 210. 
 Arbitration of infant's cause of action. 70: 
 
 170. 
 
 Effect of award upon claim arising out of 
 illegal transaction. 58: 
 181. 
 
 In general. 58: 181. 
 The illegal transaction which has been 
 the subject of arbitration. 
 58: 181. 
 An evasion of public statutes. 58: 
 
 181. 
 
 The general rule. 58: 181. 
 Davis v. Went worth. 58: 182. 
 Private agreement as to costs in 
 
 criminal case. 58: 182. 
 Composition of felony. 58: 182. 
 Gaming agreements. 58: 182. 
 Futures. 58: 182. 
 Horse race. 58: 183. 
 Confederate treasury notes as con- 
 sideration. 58: 183. 
 Variant decisions distinguished by 
 reference to statutes, 58: 
 183. 
 
 ARCHBISHOP. 
 Rights as to Pew, see Pews, 2. 
 
 ARCHITECTS. 
 
 Certificate of Performance of Contract by, 
 
 see Contracts, IV. d. 
 Lien of, see Mechanics' Liens, 41. 
 As Party to Injunction Suit, see Parties. 
 
 195. 
 
 Editorial Notes. 
 
 As independent contractors. 65: 465. 
 
 Architect's certificate as condition precedent 
 to recovery under building 
 contract. " 5: 273;* 17: 
 211. 
 
 Effect of stipulation in contract that work 
 shall be done to satisfac- 
 tion of architect. 5: 272.* 
 
 Binding effect of architect's decision as to 
 performance of building 
 contract. 5:273.*
 
 140 AREA WAYS ARREST, I. a. 
 
 AREAWAYS. ARREST. 
 
 Under Sidewalks, see Highways, 58, 59. 
 Editorial Notes. 
 
 Liability of landlord to third persons for 
 condition of. 26: 198. 
 
 ARGUMENT. 
 
 Of Counsel, see Appeal and Error, Vll. m. 5; 
 Trial, I. d. 
 
 ARGUMEN TATI VENESS. 
 Demurrer for, see Pleading, 569. 
 
 ARID LANDS. 
 
 Providing for Irrigation of, see Waters, 39. 
 
 ARMORY. 
 
 Duty of County to Maintain, see Militia, 12. 
 Tax on, see Taxes, 320. 
 
 ARMY AND NAVY. 
 
 Commander's Liability to Action for Tort, 
 
 see Action or Suit, 10. 
 Assignability of Unearned Pay of Retired 
 
 Officer of, see Assignment, 21. 
 Bounty to Soldiers, see Bounties, 4. 
 Preference of Veterans under Civil Service 
 
 Laws, see Civil Service, 13-19. 
 See also Militia. 
 
 The enlistment of a minor without the 
 written consent of his parent or guardian, 
 if he has one entitled to his services and 
 control, is invalid and of no legal effect; 
 and the invalidity may be claimed by the 
 minor himself, either before or after attain- 
 ing his majority. Re Chapman, 37 Fed. 
 327, 2: 332 
 
 Editorial Notes. 
 
 Use of municipal funds to provide soldiers. 
 
 14: 476. 
 Exemption of consul from military service. 
 
 45: 587. 
 
 ARRAIGNMENT. 
 
 Waiver of Objection as to, see Appeal and 
 
 Error, 675. 
 Trial without, as a Bar, see Criminal Law, 
 
 148. 
 
 I. For Crime. 
 
 a. In General 
 
 b. Without Warrant. 
 11. In Civil Cases. 
 
 III. Editorial Notes. 
 
 Assault While Attempting to Escape Ar- 
 rest, see Assault and Battery, 13, 14. 
 
 Assault in Resisting, see Evidence, 2137. 
 
 Release from, on Bail, see Bail and Recog- 
 nizance. 
 
 Liability for, of Sureties on Mayor's Bond, 
 see Bonds, 72. 
 
 Of Passenger, see Carriers, II. a, 3, d. 
 
 Equal Privileges as to, see Constitutional 
 Law, 3587 
 
 Validity of Contract to Make, see Contracts, 
 515, 516. 
 
 Of Convict Violating Parole, see Criminal 
 Law, 279. 
 
 Punitive Damages for, see Damages, 48, 214. 
 
 Measure of Damages, see Damages, III. g. 
 
 Evidence as to, see Evidence, 774, 1853, 
 2133, 2137. 
 
 Of Fugitive from Justice, see Extradition, 
 32-36; and also infra, III. 7. 
 
 Civil Liability for Making, see False Im- 
 prisonment ; Municipal Corporations, 
 506-509; Partnership, 47; and also 
 infra, III. 4. 
 
 Garnishment of Property Taken from Per- 
 son Arrested, see Garnishment, 53-55. 
 
 Right to Go on Another's Premises to Make, 
 see Homicide, 16. 
 
 Unlawful, as Reducing Homicide to Man- 
 slaughter, see Homicide, 20-22. 
 
 Homicide While Resisting, see Trial, 222, 
 678. 
 
 Homicide While Making, see Homicide, 30- 
 36; Trial, 868. 
 
 Of Judgment, see Criminal Law, 137-139; 
 Judges, 12. 
 
 Libelous Charge of, see Libel and Slander, 
 35. 
 
 Mandamus to Compel, see Mandamus, 23. 
 
 For Disturbing Military Parade, see 
 Parades, 2. 
 
 Reward for, see Reward. 
 
 Question for Jury as to, see Trial, 118, 195. 
 
 Privilege from, see Dismissal or Discontinu- 
 ance, 10 ; Writ and Process, II. d, 1 ; IV. 
 3. 
 
 I. For Crime. 
 a. In General. 
 
 For Editorial Notes, see infra, HI. 
 
 1. It is not the official duty of a peace of- 
 ficer to arrest a criminal, under Tex. Code 
 Critn. Proc. art. 229, unless he knows the 
 guilty party, as well as the fact that a 
 folony has been -committed. Morris v. Kas- 
 sling,' 79 Tex. 141, 15 S. W. 226, 11: 398 
 
 2. An arrest under a warrant which was 
 not supported either by oath or affirmation
 
 ARREST, I. b. 
 
 141 
 
 is in violation of S. C. Const, art. 1, 16. 
 State v. Higgins, 51 S. C. 51, 28 S. E. 15. 
 
 38: 561 
 
 3. An officer with a writ for the arrest 
 of a railroad engineer may lawfully stop a 
 train run by him, for that purpose. St. 
 Johnsbury & L. C. R. Co. v. Hunt, 60 Vt. 
 588, 15 Atl. 186, 1: 189 
 
 4. A misrecital of the hour of meeting in 
 a warrant of arrest of absent members of 
 a board of commissioners, which could mis- 
 lead no one, will not impair the validity of 
 the warrant. State ex rel. Rylands v. Pink- 
 erman, 63 Conn. 176, 28 Atl. 110, 22: 653 
 Disclosing authority. 
 
 5. A peace officer attempting to make an 
 arrest for unlawfully carrying arms must 
 make known to accused under what au- 
 thority the arrest is made, although by 
 statute he has power to make tfie arrest 
 without warrant, where he is by statute re- 
 quired in executing warrants to make known 
 his authority. Montgomery v. State, 43 
 Tex. Grim. Rep. 304, 65 S. W. 537, 55: 866 
 
 6. The exhibition of a warrant, or a 
 statement of the grounds of the arrest, can- 
 not be demanded before submitting to an 
 officer who makes an arrest, although it can 
 be demanded immediately after the arrest. 
 State v. Tavlor, 70 Vt. 1, 39 Atl. 447. 
 
 42: 673 
 
 7. A statement of official capacity suf- 
 ficient to compel submission to an arrest is 
 shown by a statement by companions of 
 the one making the arrest, that he is an 
 officer, and his statement that he makes the 
 arrest by authority of the state. Id. 
 Measures to prevent escape. 
 
 Liability for Killing to Prevent Escape, see 
 
 Bonds, 69. 
 For Editorial Notes, see infra, III. 3. 
 
 8. No greater force or violence can be used 
 to prevent the escape of a person from ar- 
 rest than might rightfully be employed to 
 effect his arrest. Thomas v. Kinkead, 55 
 Ark. 502, 18 S. W. 57, 15: 558 
 
 9. An officer has no right to shoot at a 
 person who is merely running away from 
 him. without committing any violence, when 
 under arrest for a misdemeanor. Brown v. 
 Weaver. 76 Miss. 7. 23 So. 388, 42: 423 
 
 10. An officer cannot take the life of a 
 person arrested for a misdemeanor or in- 
 flict upon him a great bodily harm in order 
 to prevent his escape, except to save his 
 own life or prevent a like harm to himself. 
 Thomas v. Kinkead, 55 Ark. 502, 18 S. W. 
 57, 15: 558 
 Right to take money from person arrested. 
 
 11. Money can be taken from a prisoner 
 under arrest only when there is probable 
 ground for believing that it is connected 
 with the offense charged, or may be used as 
 evidence on his 'trial. Ex parte Hurn. 92 
 Ala. 102, 9 So. 515, 13: 120 
 
 b. Without Warrant. 
 
 Of Passenger, see Carriers. 196. 
 
 Due Process in, see Constitutional Law, 822, 
 
 823. 
 
 See also Reward, 15. 
 For Editorial Notes, see infra, m. 2. 
 
 12. An arrest by an officer without war- 
 rant is justified, if he has reasonable cause 
 to believe that the person arrested has com- 
 mitted a felony in another state. State v. 
 Taylor, 70 Vt. 1, 39 Atl. 447, 42: 673 
 
 13. Constitutional provisions against is- 
 suing a warrant without probable cause sup- 
 ported by oath or affirmation do not apply 
 to an arrest without a warrant. Burroughs 
 v. Eastman, 101 Mich. 419, 59 N. W. 817. 
 
 24: 859 
 Warrant in possession of or authority from 
 
 other person. 
 See also False Imprisonment, 26, 27. 
 
 14. An arrest for a misdemeanor cannot 
 be made without warrant, on the authority 
 of a letter from a police officer of another 
 state. Scott v. Eldridge, 154 Mass. 25, 27 
 N. E. 677, 12: 379 
 
 15. The arrest and detention of a person 
 cannot be justified against a petition for 
 habeas corpus, by a telegram from the au- 
 thorities of another state, stating that they 
 have 1 a warrant for his arrest, a copy of 
 which is included in the message, and that 
 they have started after him with proper 
 papers, at least where no judicial inquiry 
 or commitment has been made. Simmons v. 
 Van Dyke, 138 Ind. 380, 37 N". E. 973. 
 
 26: 33 
 
 16. A warrant in the hands of a marshal 
 or sheriff will not justify a deputy who does 
 not have possession of it, in making an ar- 
 rest, where the statutes require the warrant 
 to be exhibited on request to the person ar- 
 rested. Cabell v. Arnold, 86 Tex. 102, 23 
 S. W. 645, 22: 87 
 For what crimes. 
 
 For Carrying Weapons, see Carrying Weap- 
 ons, 2. 
 For Editorial Notes, see infra, III. 2. 
 
 17. An officer has no authority, unless ex- 
 pressly given, to arrest without a warrant 
 for a mere statutory misdemeanor not 
 amounting to a breach of the peace. Com. 
 v. Wright, 158 Mass. 149, 33 N. E. 82, 
 
 19: 206 
 
 18. A person who openly commits a 
 breach of the peace may be arrested with- 
 out warrant. Boutte v. Emmer, 43 La. 
 Ann. 980, 9 So. 921, 15: 63 
 
 19. An officer must determine at his peril 
 whether an offense has been committed, be- 
 fore making an arrest without a warrant, 
 where his poM'er to arrest without warrant 
 is expressly confined to cases where he has 
 seen an offiense committed, or where he 
 knows it has been committed, and has 
 reasonable ground to apprehend an escape. 
 State v. Hunter, 106 N. C. 796, 11 S. E. 366, 
 
 8: 529 
 
 20. The mere fact that a person is drunk 
 on the streets will not authorize his arrest, 
 under an ordinance for being "found drunk 
 in the streets, hallooing or making an un- 
 usual noise." Id. 
 
 21. If all except one of those who are ob- 
 structing a sidewalk disnerse upon request 
 of an officer, the one remaining is not sub- 
 ject to arrest for obstructing the free pas- 
 sage of the street "and failing to disperse 
 upon notice." Id.
 
 142 
 
 ARREST, II., III. 
 
 22. A policeman who without a warrant 
 arrests a citizen for refusing to make way 
 for a parade on the public street, although 
 he has been ordered by the chief of police to 
 clear the street, is liable to an action for 
 false imprisonment, if there was no express 
 legislative authority for the exclusive ap- 
 propriation of the street for the purpose of 
 the parade. White v. State, 99 Ga. 16, 26 
 S. E. 742, 37: 642 
 
 23. A mere suspicion that a woman walk- 
 ing on the street in the night is plying the 
 vocation of a prostitute will not justify her 
 arrest, without a warrant, without any act 
 on her part indicating that such is her pur- 
 pose. Finkerton v. Verberg, 78 Mich. 573, 
 44 N. W. 579, 7: 507 
 
 24. Being saucy to an officer, or daring 
 him to arrest after he has threatened to ar- 
 rest without warrant or any right to do so, 
 will not justify him in making the arrest. 
 
 Id. 
 
 25. An arrest without warrant may be 
 authorized by the legislature for other mis- 
 demeanors committed in the presence of an 
 officer as well as for breach of the peace. 
 Burroughs v. Eastman, 101 Mich. 419, 59 N. 
 W. 817, 24: 859 
 
 20. An officer has no authority to make 
 nn arrest without a warrant, for a breach 
 of the peace committed when 'he was out of 
 sight on another street 150 feet away, al- 
 though the disturbance was heard by him. 
 People v. Johnson. 86 Mich. 175, 4.8 N. W. 
 870. 13: 163 
 
 27. An officer cannot, without a warrant, 
 arrest a person for breach of the peace not 
 committed in his presence, where the arrest 
 is not made until the parties have departed 
 from the vicinity, and the officer's knowl- 
 edge is obtained only from statements of 
 bystanders. State v. Lewis, 50 Ohio St. 179, 
 33 X. E. 405. 19: 449 
 
 28. An officer cannot, under the laws of 
 Florida, lawfully arrest a person without a 
 warrant for the bare crime of carrying con- 
 r-ealed weapons; whether he knows it of his 
 own knowledge, or is informed of it by 
 others, and whether it occurs in or out of 
 his presence, unless it is done in such man- 
 ner or under such circumstances as, in the 
 presence of the officer, to create, threaten, or 
 amount to a breach of the peace; and even 
 in the latter case the arrest would be au- 
 thorized, not from the bare fact of carrying 
 concealed weapons, but because of the 
 threatened or actual breach of the peace 
 accompanying it. Roberson v. State, 43 
 Fla. 156. 2!) So. 535. 52: 751 
 
 29. The commission of a criminal assault 
 in the presence of one known to be a justice 
 of the peace will justify an arrest by the 
 latter of the offender without warrant and 
 without givinir information of the nature of 
 the charge. State v. McAfee, 107 N. 0. 812, 
 12 S. E. 435. 10: 607 
 
 30. A man's striking his wife with a stick 
 from 4 to 5 feet in length and from 1 to 2 
 inches in thickness, when so near an officer 
 that the latter can distinctly hoar the 
 ronversation and the sound made by the 
 blow, is a breach of the peace in the presence 
 
 of the officer, within the rule permitting 
 an arrest without warrant, although the of- 
 ficer could not at the time see the parties on 
 account of darkness. Id, 
 
 Who may make arrest. 
 
 31. An arrest without a warrant for ob- 
 structing a public street and interrupting a 
 military parade in violation of Ga. Code, 
 1103^, may be made by a policeman, al- 
 though the power of arrest in such cases is 
 expressly given by that section to the com- 
 manding officers on the parade, since their 
 authority is merely cumulative. White v. 
 State, 99 Ga. 16, 26 S. E. 742, 37: 642 
 
 II. In Civil Cases. 
 
 Privilege of Exemption from, see Writ and 
 
 Process, II., d. 1. 
 For Editorial Notes, see infra, III. 
 
 32. "Injuring property," Within the mean 
 ing of N. C. Code, 291, H 1, authorizing the 
 arrest of a defendant ''where the action is 
 for injuring or for wrongfully taking, de- 
 taining, or converting property," means an 
 injury .to personal property only, and not 
 to real property. Briclgers v. Taylor, 102 
 N. C. 86, 8 S. E. 93, 3: 376 
 
 III. Editorial Notes. 
 
 i. Generally. 
 
 Validity of marriage under compulsion of 
 arrest or imprisonment. 
 43: 816. 
 
 First and last days in computing time on. 
 49: 223. 
 
 Searching prisoner for evidence of guilt, 
 9: 323.* 
 
 2. Right to make. 
 
 Right of private person to make arrest. 
 8: 532.* 
 
 Distinction between private person and 
 peace officer with respect 
 to arrest. 8: 532.* 
 
 Right to make arrest without a warrant,. 
 
 generally. 8: 529.* 
 For crime committed within view. Sr 
 
 529:* 
 
 For breach of peace committed in offi- 
 cer's presence. 8: 530.* 
 For misdemeanors. 8: 531.* 
 
 3. How made, rights and powers of person 
 making. 
 
 Right to use necessary mears to effect. 8: 
 533.* 
 
 Authority to break in doors. 8: 533.* 
 
 Right of officers to call on citizens to as- 
 sist. 8: 534.* 
 
 Killing by officer in making arrest. 8: 534.* 
 In cases of misdemeanor. 8: 534.* 
 
 What information is an accused person en- 
 titled to at the time of hi* 
 arrest. 42: 673. 
 
 Disclosing the cause of attempted ar- 
 rest. 42: 673. 
 Exhibiting the warrant. 42: 677.
 
 ARSON. 
 
 Right of peace officer to enter dwellings to 
 
 make arrests. 16: 500. 
 Without a warrant. 16: 500. 
 With a warrant. 16: 501. 
 To recapture escaping prisoner. 16: 
 
 501. 
 
 Necessity of notification and demand 
 before entering. 16: 502. 
 Right of surety on bail bond to pursue prin- 
 cipal into another state 
 for the purpose of arrest- 
 ing him. 14: 605. 
 4. Liability for making. 
 Liability of judicial officer for issuing war- 
 rant of arrest. 14: 142. 
 Liability of an officer. 51: 193. 
 
 Under a warrant or writ. 51 : 193. 
 Valid on its face. 51: 193. 
 Where the warrant or wri^ is ir- 
 regular. 51: 196. 
 Where the warrant is invalid or 
 
 void. 51: 197. 
 
 Where the court has no jurisdic- 
 tion. 51: 199. 
 Where the defendant is exempt 
 
 from arrest. 51 : 200. 
 Return. 51:201. 
 
 Where the warrant is not in pos- 
 session of the arresting of- 
 ficer. 51 : 202. 
 Without warrant. 51 : 203. 
 For a felony. 51 : 203. 
 For a breach of the peace "on 
 
 view." 51 : 205. 
 For a breach of the peace not "on 
 
 view." 51 : 206. 
 For breach of a oity ordinance. 
 
 51 : 207. 
 
 Whore a statute authorizes ar- 
 rests on view. 51: 207. 
 Where an ordinance authorizes 
 arrests on view. 51:209. 
 Other arrests made on view. 
 
 51: 209. 
 Arrests not made on view. 
 
 51 : 210. 
 
 For other misdemeanors. 51:211. 
 Past offenses. 51: 211. 
 For offenses "on view" under 
 statutory authority. 51: 
 212. 
 Arrests in other cases. 51: 
 
 213. 
 Circumstances attending arrest. 51: 
 
 214. 
 
 Time. 51:214. 
 Place of arrest. 51: 214. 
 Manner of making arrest. 51: 215. 
 Disposition of prisoner. 51:216. 
 Unreasonable detention. 51: 
 
 216. 
 Place of detention or delivery. 
 
 51: 218. 
 Arrest of wrong party or by wrong 
 
 name. 51: 219. 
 Name unknown. 51 : 219. 
 Arresting wrong man. 51: 21fl. 
 Arresting right man under wrong 
 
 name. 51:221. 
 
 Arrest after judgment taken 
 against wrong party. 51: 
 221. 
 
 Joinder. 51 : 222. 
 
 Liability on official bond. 51 : 222. 
 
 Arresting for one offense and justifying 
 
 for another. 51: 224. 
 Question of probable cause. 51: 225. 
 
 Liability of municipal corporation for false 
 imprisonment and unlaw- 
 ful arrest. 44: 795. 
 
 Municipal liability for arrest and imprison- 
 ment under invalid ordi- 
 nance. 47: 593. 
 
 5. Resisting; escape. 
 
 Right to resist illegal arrest. 8: 535.* 
 
 Homicide in resisting. 66: 353. 
 
 Evidence of crime committed in resisting 
 'arrest after commission of 
 crime charged. 62: 338. 
 
 6. In civil action. 
 
 As ground of action for malicious prosecu- 
 tion. 13: 60.* 
 
 Effect on suit of discharge from wrongful' 
 arrest. 19: 560. 
 
 Right to, in breach of promise case. 59: 
 957. 
 
 7. In extradition proceedings. 
 
 Complaint for warrant of, in extradition- 
 proceedings. 1: 372.* 
 
 Without warrant, awaiting arrival of extra- 
 dition papers. 26: 34. 
 
 Warrant of, in extradition proceedings. 1: 
 372.* 
 
 ARSON. 
 
 Solicitation to Commit, see Criminal Law, 
 
 45. 
 
 Evidence as to, see Evidence, 1597, 2134. 
 Indictment for, see Indictment, etc., 43. 
 
 1. Setting fire to one's own dwelling 
 house is not arson, either at common law or 
 under a statute making it arson to set fire 
 to "any house of whatever name or kind."' 
 although the property is insured so that the 
 loss may fall on the insurer. State v. Sar- 
 vis, 45 S. C. 668, 24 S. E. 53, 32: 647 
 
 2. Procuring the burning of one's dwell- 
 ing house with intent to defraud an insur- 
 ance company is not arson in the absence of 
 a statute making it such. Id. 
 
 3. A man is not guilty of arson in burn- 
 ing his own house, unless it or some part of 
 it was in the possession of another, under 
 Cal. Pen. Code, 447. defining arson as the 
 wilful and malicious burning of a building 
 with intent to destroy it. and 452, declar- 
 ing that it is not necessary that a person 
 other than the, accused should have had 
 ownership in the building, but it is sufficient 
 that another was rightfully in possession of 
 or actually occupying the building or any 
 part thereof. People V. De Winton. 113 Cal. 
 403. 45 Pac. 708. 33: 374 
 
 Editorial Notes. 
 
 Solicitation to. 25: 437. 
 
 Criminal liability of children for. 36:201. 
 
 Arson in setting fire to one's own building.. 
 
 32: 647. 
 At common law. 32: 647.
 
 144 
 
 ART ASSAULT AND BATTERY, I. 
 
 Under statute. 32: 647. 
 Generally. 32: 647. 
 To injure insurer. 32: 648. 
 Cruel and unusual punishment for. 35: 569. 
 Evidence of other crimes in prosecution for. 
 62: 208, 238, 289, 319, 325. 
 Proof of corpus delicti in. 68: 41, 55, 71. 
 
 ART. 
 
 Gift for, see Charities, 22, 78, 79, 89, 124. 
 
 ARTESIAN WELL. 
 
 Prohibiting Waste of Water from, see 
 
 Constitutional Law, 987. 
 Judicial Notice of, see Evidence, 61. 
 Disposal of Water from, see Waters, 295, 
 
 296. 
 Watercourses Supplying, see Waters, 434, 
 
 444, 446, 449, 450. 
 
 ARTICLES OF INCORPORATlbN. 
 
 See Corporations, III. 
 
 ARTIFICIAL POND. 
 
 As Boundary, see Boundaries, 59. 
 
 ASCERTAIN. 
 
 Meaning of Term, see Corporations, 550. 
 
 ASHES. 
 
 Liability for Injury by Hot Ashes, see Negli- 
 gence, 122. 
 
 ASPHYXIA. 
 
 Death of Insured from, see Insurance, 1021, 
 1027, 1033-1037. 
 
 ASPORTATION. 
 
 Editorial Notes. 
 
 What law defines larceny for purposes of a 
 statute against bringing 
 
 stolen property into the 
 state. 15: 722. 
 
 ASSASSINATION. 
 Of Judge, see Marshal, 1. 
 
 ASSAULT AND BATTERY. 
 
 I. In General. 
 
 II. Justification; Defenses. 
 III. Editorial Notes. 
 
 Survivability of Action for, see Abatement 
 and Revival, 24. 
 
 Liability to Arrest for, see Arrest, 29, 30. 
 
 "By Military Commander, see Action or Suit, 
 10. 
 
 On Passenger, see Carriers, II. a, 3, c; Dam- 
 ages, 72-75, 212, 213. . 
 
 Jurisdiction of Prosecution for, see Courts, 
 51. 
 
 Conviction as Bar to Subsequent Prose- 
 cution, see Criminal Law, 165. 
 
 With Intent to Commit Robbery, see Crim- 
 inal Law, 39. 
 
 With Intent to Rape, see Rape. 
 
 Damages for, see Damages, 44-46, 72-75, 
 212, 213, 270-273, 579, 647, 663. 
 
 Evidence as to, see Evidence, 2133. 
 
 In Making Arrest, see False Imprisonment, 
 25; Municipal Corporations, 508. 
 
 Homicide in Resisting, see Homicide, III. b. 
 
 Effect of, on Right to Subsequently Kill in 
 Self-Defense, see Homicide, 41-48. 
 
 Indictment for, see Indictment, etc., 129. 
 
 Hotel Keeper's Liability for Assault by Em- 
 ployees on Guest, see Innkeepers, 26, 30. 
 
 Protection of Judge against, see Judges, 3. 
 
 On Servant, Master's Right of Action for, 
 see Master and Servant, 3. 
 
 By Licensee, see Master and Servant, 16. 
 
 Master's Liability for, see Master and Serv- 
 ant, 668, 677. 
 
 Father's Duty to Furnish Counsel Fees to 
 Prosecute Action for, see Parent and 
 Child, 8. 
 
 Allegations in Action for, see Pleading, 510, 
 511, 602. 
 
 On Seamen, see Seamen, 2. 
 
 Counterclaim for Injuries Received, see Set- 
 Off and Counterclaim, 12. 
 
 Right to Open and Close in Action for, see 
 Trial, 44. 
 
 Question for Jury as to, see Trial, 194, 195. 
 
 Direction of Verdict in Action for, see 
 Trial, 551. 
 
 I. In General. 
 
 1. There may be an actionable assault 
 and battery without any actual or specific 
 intent to commit that offense. Mercer v. 
 Corbin, 117 Ind. 450, 20 N. E. 132. 3: 221 
 
 2. Liability to a civil action for assault 
 is incurred by one who goes to the home of 
 another and orders the latter's wife and 
 children to move out, states his intention 
 to burn the building , pours oil on it, 
 scratches a match for the seeming purpose 
 of setting fire to the house, points a gun at 
 the woman, and tells her that if she does 
 not leave the place he will shoot her and 
 the children. Kline v. Kline, 158 Ind. 602, 
 64 N. E. 9, 58: 397 
 
 3. Merely pushing off the horses of an- 
 other from grass which one is entitled to cut
 
 ASSAULT AND BATTERY, II. 
 
 145 
 
 in a highway, where the other is wantonly 
 endeavoring to spoil the grass, and then de- 
 fending against the latter's attack, do not 
 make one guilty of assault and battery. 
 People v. Foss, 80 Mich. 559, 45 N. W. 480, 
 
 8: 472 
 
 4. The raising of a stick which is from 
 4 to 5 feet long and from 1 to 2 inches in 
 thickness, by one whom an officer is at- 
 tempting to arrest, over the latter's head, so 
 as to cause him to step aside to avoid an 
 apprehended blow, constitutes an assault 
 upon him. State v. McAfee, 107 N. C. 812, 
 12 S. E. 435, 10: 607 
 
 5. The marshal and policemen of a city, 
 and any persons aiding and abetting them, 
 are liable in damages for unnecessary cruel- 
 ties and indignities inflicted by the<n on 
 prisoners in their charge. Topeka v. Bout- 
 well, 53 Kan. 20, 35 Pac. 819, 27: 593 
 
 6. A kick upon the leg, given by one 
 pupil to another in school in violation of 
 the order and decorum of the school while in 
 session, being unlawful, renders the one giv- 
 ing it liable for damages caused thereby, re- 
 gardless of any intention to inflict an in- 
 jury. Vosburg v. Putney, 80 Wis. 523, 50 
 N. W. 403.. 14: 226 
 
 7. The fact that a student acts merely in 
 sport, and that he is only the foremost of 
 a line of students to push the one before 
 him, when making a "rush" upon a fellow 
 student, giving him an unexpected and 
 violent push between the shoulders, will not 
 prevent the act from being an unlawful as- 
 sault creating a liability for personal in- 
 juries thereby caused to the person as- 
 saulted. Markley v. Whitman, 95 Mich. 236, 
 54 N. W. 763, 20: 55 
 
 8. Both the unlawful attempt and the 
 present ability necessary to constitute an 
 assault are present where a person fires his 
 pistol at a hole in the roof through which 
 the bullet will pierce, which was made by 
 a policeman for the purpose of watching the 
 inside of the building, believing that the 
 policeman is then present, although the 
 latter is saved from harm by the fact that 
 at that instant he is on another part of the 
 roof. People v. Lee Kong, 95 Cal. 666, 30 
 Pac. 800, 17: 626 
 
 9. An assault is involved in the unlawful 
 infliction of an injury by administering poi- 
 son. Carr v. State, 135 Ind. 1, 34 N. E. 533, 
 
 20: 863 
 By bicyclist. 
 
 10. A person riding a bicycle, who reck- 
 lessly runs against a person standing with 
 his back partially toward him, when he can 
 avoid doing so by the exercise of the slight- 
 est care, is guilty of an assault and battery. 
 Mercer v. Corbin, 117 Ind. 450, 20 N. E. 132, 
 
 3: 221 
 By druggist. 
 
 11. A druggist who drops croton oil on 
 candy for a customer in quantity sufficient 
 to produce serious injury if taken into a 
 person's system, knowing or reasonably 
 believing that it is intended for a practical 
 joke on someone, and not for medicinal 
 purposes, will be guilty of assault upon one 
 injured by its administration by way of 
 
 L.R.A. Dig. 10. 
 
 joke. State v. Monroe. 121 N. C. 677. 28 
 S. E. 547, 43: 861 
 
 Aggravated; intent to kill. 
 In Resisting Arrest, Evidence as to, see Evi- 
 dence, 2137.. 
 For Editorial Notes, see infra, 1TL 3. 
 
 12. Specific intent to kill is an essential 
 element of an assault with intent to kill, 
 even when the assault was by shooting at 
 an officer in resisting an authorized arrest. 
 State v. Taylor, 70 Vt. 1, 39 Atl. 447, 
 
 42: 673 
 
 13. Assault with intent to murder, by 
 firing on an officer when attempting to 
 escape arrest, is not reduced to an assault 
 with intent to kill by the fact that the of- 
 ficer, when asked if he had any papers, 
 drew his revolver, saying that was all the 
 papers he needed, but at once returned it to 
 his pocket. Id. 
 
 14. A common purpose of several persons 
 to resist arrest will not make them all lia- 
 ble for assault with intent to kill, when one 
 shoots at an officer in attempting to escape, 
 unless they had a common understanding 
 that they would do whatever might be 
 necessary to avoid the arrest. Id. 
 
 15. An. assault with a deadly weapon 
 with intent to kill is sufficiently proved by 
 evidence that defendant, after some contro- 
 versy, had made a threat against the prose- 
 cuting witness and fired a pistol after her, 
 sending a ball through her clothing. State 
 v. Kodat, 158 Mo. 125, 59 So. 73, 51:509 
 
 II. Justification; Defenses. 
 
 Consent to, see Abortion, 2. 
 
 To Prevent Escape of Person Arrested, see 
 Arrest, 9. 
 
 For Assault on Passenger, see Carriers, 170- 
 172. 
 
 Good Faith in Making Complaint for Ar- 
 rest, see False Imprisonment, 12. 
 
 For Editorial Notes, see infra, III. 2. 
 
 16. Forcing a passage to the upper rooms 
 of a hotel against the remonstrance and re- 
 sistance of the landlord and his wife and 
 servants, thereby injuring the landloYd's 
 wife, on a mere suspicion that the law in 
 respect to the sale of intoxicating liquors 
 is being violated there, but without any 
 knowledge of the fact and without any 
 warrant for the arrest of any person, can- 
 not be justified under the common-law pow- 
 ers and authorities of constables, or other 
 peace officers, or by the statutory authority 
 of marshals of law-and-order societies in 
 New Jersey, to arrest persons who have vio- 
 lated any law, without warrant. Delafoyle 
 v. State (N. J. Err. & App.) 54 N. J. L. 381, 
 23 Atl. 557, 16: 500 
 
 17. A license to commit an assault and 
 battery which constitutes a misdemeanor is 
 no defense to an action therefor. Willey 
 v. Carpenter, 64 Vt. 212, 23 Atl. 630, 15: 853 
 Mistake in identity. 
 
 For Editorial Notes, see infra, III. 2. 
 
 18. To excuse a person for assaulting 
 another under the belief that h* is a third
 
 146 
 
 ASSAULT AND BATTERY, II. 
 
 person, upon whom an assault would be 
 justified, he must exercise the highest de- 
 gree of care practicable under the circum- 
 stances to ascertain whether or not the per- 
 son whom he is about to strike is in fact 
 the one whom he believes him to be. Crab- 
 tree v. Dawson. 26 Ky. L. Rep. 1046, 83 S. 
 W. 557, 67: 565 
 
 19. A property owner, who, having re- 
 moved from his premises an intoxicated 
 person, strikes and injures a stranger who 
 is attempting to enter the premises, under 
 the belief, after exercising the highest care 
 practicable under the circumstances to as- 
 certain the facts, that it is the person whom 
 h has just ejected returning, is excused 
 from liability for the assault on the ground 
 of self-defense and apparent necessity, if be- 
 lief in the identity of the persons is based 
 on reasonable grounds, and, if, in the exer- 
 cise of a reasonable judgment, he further be- 
 lieves that it is necessary to strike the eject- 
 ed person to defend himself, and uses no 
 more force than is, or appears to be, nec- 
 essary for the purpose. Id. 
 Opprobrious words. 
 
 20. Mere words, however gross and abu- 
 sive, and although spoken for the purpose of 
 provoking an assault, are no defense to an 
 action for the assault. Willey v. Carpen- 
 ter, 64 Vt. 212, 23 Atl. 630, 15: 853 
 Goldsmith v. Joy, 61 Vt. 488, 17 Atl. 1010, 
 
 4: 500 
 
 21. Opprobrious words and abusive lan- 
 guage cannot be considered by the jury in 
 a civil action for assault and battery in jus- 
 tification thereof, but only in mitigation of 
 damages, under Ga. Pen. Code, 103, pro- 
 viding that on the trial of an indictment 
 for an assault or assault and battery de- 
 fendant may give in evidence any oppro- 
 brious words or abusive language used by 
 the person assaulted, and the jury shall de- 
 termine whether they amount to a justifi- 
 cation, since this provision is not applica- 
 ble to civil cases. Berkner v. Dannenberg, 
 116 Ga. 954, 43 S. E. 463, 60: 559 
 Unlawful arrest. 
 
 22. An assault upon an officer with a 
 deadly weapon by one upon whom he is at- 
 tempting to serve process is not excused by 
 the fact that the process is not fair on its 
 face. People v. Bernard, 125 Mich. 550, 84 
 N. W. 1092, 65: 559 
 
 23. One is not justified in shooting an of- 
 ficer who merely announces the intention to 
 arrest him, although the character of the 
 officer does not appear, and the arrest would 
 be unwarranted. Ready v. People, 32 Colo. 
 57, 74 Pac. 892, 66: 353 
 Defense of property or dwelling. 
 
 For Editorial Notes, see infra, III. 2. 
 
 24. One from whom property has been 
 wrongfully taken may regain his momentar- 
 ily interrupted possession thereof by the 
 use of reasonable force short of wounding 
 or the employment of a dangerous weapon, 
 especially after making demand for its re- 
 turn. Com. v. Donahue, 148 Mass. 529, 20 
 N. E. 171, 2: 623 
 
 25. An assault on an employee to recover 
 money voluntarily given him to pay other 
 
 help is not justified by his refusal to use 
 it as directed, and his claim of right to re- 
 tain it in order to make good a deduction 
 from his wages, which he claims to have 
 been unlawful. Kirby v. Foster, 17 R. L 
 437, 22 Atl. 1111, 14: 317 
 
 26. An assault on an officer in charge of 
 a pound, who forbids a person from tearing 
 down the pound to regain possession of his 
 hogs which are therein, and threatens to ar- 
 rest him if he does not desist, is not justi- 
 fied by the fact that the hogs were taken 
 and impounded under an illegal ordinance. 
 State v. Black, 109 N. C. 856, 13 S. E. 877, 
 
 14: 205 
 
 27. A small boat used for the common 
 carriage of passengers for hire, and having 
 neither sleeping apartments nor .places for 
 meals, is not within the rule justifying the 
 forcible resistance of an attempt to enter 
 a dwelling house, although a seat in the 
 boat is used for a sleeping place by the per- 
 son in possession of the boat. People v. 
 Bernard, 125 Mich. 550, 84 N. W. 1092, 
 
 65: 559 
 
 28. A person's dwelling house is a castle 
 of defense for himself and his family; and 
 an assault upon it, with intent to injure 
 him or any of them, may be met in the same 
 way as an assault upon himself or any of 
 them; and he may meet the assailant at 
 the threshold and use the force necessary 
 for his or their protection against the 
 threatened invasion and harm. Wilson v. 
 State, 30 Fla. 234, 11 So. 556, 17: 654 
 
 29. An innkeeper may be justified, on a 
 prosecution for assault and battery, in re- 
 moving from his hotel a person who was not 
 there as a guest or on business with guests, 
 if he did not use excessive force, and first 
 requested him to depart. State v. Steele, 
 106 N. C. 766, 11 S. E. 478, 8: 516 
 Self-defense. 
 
 See also supra, 18, 19. 
 
 For Editorial Notes, see infra, 111. 4. 
 
 30. One upon whom an assault is com- 
 mitted may become liable for a battery 
 upon the aggressor, if he uses more than 
 necessary force in repelling the assault. 
 Gutzman v. Clancy, 114 Wis. 589, 90 N. W. 
 1081, 58: 744 
 
 31. When one violently assaults another 
 without cause, the fact that the other goes 
 beyond the limit of self-defense, and admin- 
 isters a chastisement in proportion to the 
 provocation, does not make him guilty of an 
 assault. People v. Pearl, 76 Mich. 207, 42 
 N. W. 1109, 4: 709 
 
 32. One assaulted by citizens of a town 
 for the purpose of compelling him to leave 
 it is not bound to retreat to avoid a conflict 
 in order to protect himself from liability to 
 prosecution for assault, but he may repel 
 force with force so long as he uses only 
 such force as is necessary, short of killing 
 his assailants, even th'ough he provoked the 
 attack by drunkenness and disorderly con- 
 duct. State v. Evenson, 122 Iowa, 88, 97 
 N. W. 979, 64: 77 
 Defense of others. 
 
 33. A man is not bound to notify a char- 
 ivari party that their shooting, noise, and
 
 ASSAULT AND BATTERY, III. ASSETS. 
 
 147 
 
 tumult by making all kinds of hideous 
 noises are causing terror and fright to his 
 wife and children and endangering their 
 lives, before taking effectual means, by 
 shooting or otherwise, to drive them away, 
 where such party has returned for the 
 third night and on the first night he had 
 warned them to desist. Higgins v. Mina- 
 ghan, 78 Wis. 602, 47 N. W. 941, il: 138 
 Criminal intimacy with wife. 
 
 34. A husband may attack for intimacy 
 with his wife in his presence, raising a 
 well-founded belief that the criminal act 
 is just over or about to begin; and the adul- 
 terer, though in danger, has no right to de- 
 fend himself by using a deadly weapon. 
 Drysdale v. State, 83 Ga. 744, 10 S. E. 358, 
 
 ,6: 424 
 
 TTT. Editorial Notes. 
 
 i. Generally. 
 
 Intent as an element of simple assault or 
 . assault and battery. 14: 
 226. 
 
 Accidental or reckless injuries. 14: 227. 
 
 Solicitation as assault. 25: 434. 
 
 Solicitation to commit. 25: 438. 
 
 Cruel and unusual punishment for. 35:569. 
 
 Evidence of other crimes in prosecution for. 
 62: 207, 228, 278, 313, 314. 
 
 Homicide in commission of. 63: 375, 391. 
 
 2. Excuse; justification; defense. 
 
 Consent as justification for assault. 15: 
 
 853. 
 
 As to civil liability. 15: 853. 
 As to. criminal liability. 15: 854. 
 
 Mistaken identity as justification for. 67: 
 565. 
 
 What intoxication will excuse. 36: 477. 
 
 Assault in defending rights in land. 8: 
 472.* 
 
 Assault in recapture of property. 14:317. 
 
 3. Criminal responsibility of children for. 
 
 Assault and battery upon female. 36: 206. 
 
 Indecent assault. 36:205. 
 
 Common assault upon female. 36: 205. 
 
 Assault with intent to rape. 36: 204, 205. 
 
 Assault with intent to inflict great bodily 
 harm. 36: 201. 
 
 4. Resisting assault. 
 
 Homicide in resisting. 67:532, 541. 
 
 Degree of force that may be used in de- 
 fense of person or prop- 
 erty. 2: 624;* 6:424.* 
 
 5. Civil liability. 
 
 When civil action for assault lies. 9: 445.* 
 
 Effect upon civil liability, of consent to as- 
 sault. 15: 853. 
 
 Carrier's duty to protect passenger from 
 assault by fellow passen- 
 ger. 16: 627. 
 
 Liability of carrier for assault upon passen- 
 ger by strikers, mob, or 
 third persons. 55: 713. 
 
 Liability of master for assault by servant. 
 14: 737. 
 
 Liability of servant or agent for, when act- 
 ing under orders. 50: 646. 
 
 Effect of admission to change burden of 
 proof and right to open 
 and close in action for as- 
 sault. 61 : 539, 548, 558. 
 
 Right to plead inconsistent defenses in ac- 
 tions for assault. 48: 197. 
 
 Damages in civil action for. ^9:445.* 
 
 Inadequacy of damages as ground for set- 
 ting aside verdict. 47: 44. 
 
 ASSEMBLY. 
 
 Apportionment of Districts of, see Election 
 
 Districts. 
 Denial of Eight of, see Elections, 318. 
 
 ASSENT. 
 
 By Corporate Directors to Unlawful Acts, 
 
 see Corporations, 289-292. 
 Estoppel by, see Estoppel, III. f. 
 Presumption and Burden of Proof as to, 
 
 see Evidence, II. e. 
 
 ASSESSMENT. 
 
 Against Members of Association, see In- 
 junction, 239-241; Receivers, 77. 
 
 By Loan Association to Meet Losses, see 
 Building and Loan Associations, 78-82. 
 
 Rights of Purchaser of Stock Sold for, see 
 Corporations, 465. 
 
 On Corporate Stock, see Corporations, 535, 
 VTH. 36, 37. 
 
 On Winding up of Corporation, see Corpora- 
 tions, 594-599, 603. 
 
 As Encumbrance, see Covenant, 21-24. 
 
 Of Damages, see Damages, IV. 
 
 For Drains and Sewers, see Drains and 
 Sewers, HI.; IV. 
 
 Injunction against, see Injunction, I. k. 
 
 Forfeiture of Benefit Certificate for Nonpay- 
 ment of, see Insurance, III. f, 2. 
 
 For Insurance, see Insurance, in. h; IX. 
 35. 
 
 Action against Assessment Company, see 
 Insurance, VI. h, 2. 
 
 Of Punishment by Jury, see Jury, 37, 38, 
 66, 67. 
 
 Pleading as to, see Pleading, 39, 286, 287, 
 298. 
 
 For Public Improvements, see Public Im- 
 provements, III.; V. 4-12. 
 
 Of Tax, see Taxes, ILL; V. d. 
 
 ASSETS. 
 
 Life Insurance Policy as, see Bankruptcy, 
 27, 28. 
 
 Of Corporation, Division among Stockhold- 
 ers, see Corporations, 471, 472, 485. 
 
 Of Decedent's Estate, see Executors and Ad- 
 ministrators, II. c. 
 
 Of Insurance Company, see Insurance, 73-85.
 
 148 
 
 ASSIGNATION; ASSIGNMENT, I. 
 
 Summary Proceedings by Receiver to Re- 
 cover, see Receivers, 122, 123. 
 
 ASSIGNATION. 
 
 % 
 
 Tenant's Liability for Using Rooms for, see 
 Case, 20. 
 
 ASSIGNMENT. 
 
 1. What Assignable; Validity. 
 II. Equitable Assignment; Orders. 
 
 III. Rights and Liabilities of Assignees. 
 
 IV. Editorial Notes. 
 
 Of Negotiable Paper, see Bills and Notes, 
 III.; V.; VII. 13-24. 
 
 Of Bill of Lading, see Bills of Lading. 
 
 Of Chattel Mortgage, see Chattel Mortgage, 
 V. 
 
 Of Interest in Copyright, see Copyright, 
 21, 22. 
 
 Of Land Contract, see Contracts, 350a, 827. 
 
 Of Expectancy, see Contracts, 432. 
 
 Of Corporate Franchise, see Corporations, 
 H. 
 
 Of Right to Use Corporate Name, see Cor- 
 porations, 42, 43. 
 
 Of Damages from Conspiracy, see Corpora- 
 tions, 130. 
 
 Of Corporate Stock, see Corporations, V. c. 
 
 Of Overdue Corporate Notes, see Corpora- 
 tions, 617. 
 
 Of Coupon, see Coupons, 4-7. 
 
 Of Deed, see Deeds, 55. 
 
 Of Dower, see Dower, 57-63. 
 
 Of Land Warrant, Presumption as to, see 
 Evidence, 689. 
 
 Of Ferry Lease, see Ferry, 12, 13. 
 
 Of Unearned Salary, Forgery of, see For- 
 gery, 16. 
 
 Of Unpaid Stock, see Garnishment, 3. 
 
 Of Homestead, see Homestead, 47. 
 
 Of Insurance Policy, see Insurance, IV.; 
 VIII. 37-40. 
 
 Of Claim on Employer's Liability Policy, 
 see Insurance, 1345, 1346. 
 
 Of Judges, see Judges, IV. 
 
 Of Judgment, see Judgment, V.; VIII. 30. 
 
 Of Lease, see Landlord and Tenant, II. e; 
 
 rv. 4. 
 
 Of Mortgage, see Mortgage, IV.; VTII. 13. 
 
 Of Street Railway Franchise, see Street 
 Railways, 50-60. 
 
 Of Telephone Franchise, see Telephones, 7. 
 
 Of Trademark, see Trademark, III. 
 
 Of Tradename, see Tradename, 13, 16, 21. 
 
 Of Usurious Mortgage, see Usury, 47. 
 
 Of Purchase Money Notes, see Vendor and 
 Purchaser, 60, 61, 81-83, 85. 
 
 To Evade Exemption Laws, Prohibition 
 against, as Impairing Obligation of Con- 
 tract, see Constitutional Law, 1210. 
 
 Power of Corporation to Take, see Corpora- 
 tions, 130, 180. 
 
 Effect of, on Federal Jurisdiction, see Courts, 
 345-345b. 
 
 Effect of, on Right of Action, see Parties, 
 I. a, 3. 
 
 By Indian, see Courts, 443. 
 
 Right of Assignor on Covenant of War- 
 ranty, see Covenant, 62. 
 
 Estoppel as to, see Estoppel, 114, 131, 159. 
 
 Admissibility of, see Evidence, 823. 
 
 Unknown Assigns as Parties Defendant, 
 see Parties, 181. 
 
 As to Composition with Creditors, see Com- 
 position with Creditors. 
 
 As to Pledge, see Pledge and Collateral Se- 
 curity. 
 
 As Affecting Set-Off, see Set-Off and Coun- 
 terclaim, 25, 26, 35^3. 
 
 As Declaration of Trust, see Trusts, 7. 
 
 I. What Assignable; Validity. 
 
 Stockholder's Right to Have Voidable Trans- 
 action Set Aside, see Corporations, 492. 
 
 Assignment to Defraud Creditors, see* 
 Fraudulent Conveyances, 5. 
 
 Right of Re-entry for Condition Broken, 
 see Real Property, 27. 
 
 See also infra, 34; License, 1. 
 
 For Editorial Notes, see infra, IV. 2. 
 
 1. An assignment of a chose in action, 
 void at the time of its execution, cannot 
 become validated by the removal of the 
 cause making it void ipso facto. Brick v. 
 Campbell, 122 N. Y. 337, 25 N. E. 493, 
 
 lO: 259 
 
 2. The fact that a claim is assigned for ! 
 collection does not destroy its validity or 
 deter the holder from suing in his own 
 name. Falconio v. Larsen, 31 Or. 137, 48 
 Pac. 703, 37: 254 
 
 3. The assignment of a bare right to file a 
 bill in equity for a fraud committed upon 
 the assignor will be held void as against 
 public policy and as savoring of the charac- 
 ter of maintenance. Gruber v. Baker, 20 
 Netf. 453, 23 Pac. 858, 9: 302 
 What assignable generally. 
 
 Railroad Ticket, see Carriers, 616-620. 
 
 Claim against Government, see Attorneys, ! 
 82, 83; Claims, 6-10. 
 
 Covenant of Seisin, see Covenant, 59. 
 
 Claim for Alimony, see Divorce and Separa- 
 tion, 64. 
 
 Expectancy, see Expectancy. 
 
 For Editorial Notes, see infra, IV. 2. 
 
 4. A cause of action which will survive 
 
 is assignable. Lehmann v. Deuster, 95 Wis. ; 
 185, 70 N. W. 170, 37: 333 
 
 5. A right of action for personal injuries 
 is not assignable. North Chicago Street 
 R. Co. v. Ackley, 171 111. 100, 49 N. E. 222, 
 
 44: 177 
 
 6. A cause of action for personal injuries 
 resulting from negligence is assignable un- 
 der Wis. Rev. Stat. 4253, as amended by 
 Wis. Laws 1887, chap. 280, which provides 
 for the survival of actions for assault and 
 battery, false imprisonment, "or other dam- 
 ages to the person." Lehmann v. Deuster, 
 95 Wis. 185, 70 N. W. 170, 37: 333 
 
 7. The fact that an assignor and assign-
 
 ASSIGNMENT, I. 
 
 149 
 
 ee are tenants in common of the propertj 
 in question does not change the rule pro 
 hibiting the assignment of a right of action 
 to set aside a conveyance for fraud. Gruber 
 v. Baker, -20 Nev. 453, 23 Pac. 858, 9: 30: 
 
 8. A right to recover damages for false 
 imprisonment is a mere personal right, anc 
 not assignable, even after verdict but before 
 judgment. Hunt v. Conrad, 47 Minn. 557 
 50 N. W. 614, 14: 512 
 
 9. A right of action for the severance 
 of gravel from the realty and its wrongfu 
 conversion is assignable. Rogers v. Port- 
 land & B. Street Railway, 100 Me. 86, 60 
 Atl. 713, 70: 574 
 
 10. The right of a purchaser at a wrong- 
 ful, unlawful, or erroneous tax sale to have 
 his money refunded under the provisions 
 of Dak. Comp. Laws, 1629, is assignable 
 so as to sustain an action, by the assignee 
 in case of refusal to refund the money. 
 Erickson v. Brookings County, 3 S. D. 434 
 53 X. W. 857, 18: 347 
 
 11. An assignment may be made of the 
 income arising out of personal property 
 held in trust for the support of a person 
 during life, where there is no statute re- 
 stricting it and no restriction on the assign 
 ment in the will creating the trust, espe- 
 cially where the assignment is to the wife 
 of the assignor, on her agreement to main- 
 tain and educate their children. Lamber- 
 ton v. Pereles, 87 Wis. 449, 58 N. W. 776, 
 
 23: 824 
 
 12. A claim for damages growing out of 
 a conspiracy to defraud is not assignable. 
 John V. Farwell Co. v. Josephson, 96 Wis. 
 10, 70 N. W. 289, 71 N. W. 109, 37: 138 
 Assignment, by Indian. 
 
 13. An assignment by an Indian of a 
 right of action for the destruction of his 
 personal property is not invalid. Missouri 
 P. R. Co. v. Cullers, 81 Tex. 382, 17 S. W. 
 19, 13: 542 
 Right of action for wages against stock- 
 holders of employer. 
 
 14. A laborer's right to recover wages due 
 him by a corporation, from its stockholders 
 personally, under Wis. Rev. Stat. 1769, is 
 assignable. Day v. Vinson, 78 Wis. 198, 
 47 N. W. 269, 10: 205 
 Preference of claim for wages. 
 
 15. Assignees of employees may have 
 their priority of payment out of the assets 
 of a receiver. Drennen v. Mercantile Trust 
 & D. Co. 115 Ala. 592, 23 So. 164, 39: 623 
 
 16w The preference of claims for wages, 
 given by Or. act February 20, 1891, in case 
 of an assignment for creditors, is an inci- 
 dent of the debt or claim for wages, which 
 is assignable therewith so as to entitle the 
 assignee to the benefit thereof; and he may 
 prosecute the claim in his own name. Fal- 
 conio v. Larsen, 31 Or. 137, 48 Pac. 703, 
 
 37:254 
 
 Future wages. 
 
 Effect of Discharge on, see Bankruptcy, 50. 
 Constitutionality of Statute Forbidding, see 
 
 Constitutional Law, 735. 
 See also Contracts, 417. 
 For Editorial Xotes, see infra, IV. 2. 
 
 17. The court will not construe exemp- 
 tion laws as forbidding laborers from as- 
 signing wages yet to be earned. Mallin v. 
 Wenham, 209 111. 252, 70 N. E. 564, 
 
 65: 602 
 
 18. Public policy does not invalidate an 
 assignment of future wages to be earned 
 under an existing contract of employment. 
 
 Id. 
 
 19. An assignment of wages to be earned 
 in the future under an existing contract is 
 valid, and it is immaterial that the term of 
 employment is not of definite duration. Id. 
 
 20. An assignment of wages for -the pe- 
 riod of one year, made by a person then 
 working under a contract, whether it was 
 for work by the day, by the week, or oth- 
 erwise, is valid, under R. I. Gen. Laws, 
 chap. 254, 28, when made and recorded as 
 the statute provides. Dolan v. Hughes, 20 
 R. I. 513, 40 Atl. 344, 40: 735 
 Unearned pay of officers. 
 
 For Editorial Notes, see infra, IV. 2. 
 
 21. The assignment, by a retired officer 
 of the United States Army, of his unearned 
 pay, is against public policy, and will not 
 be upheld by the courts. Schwenk v. 
 Wyckoff (N. J. Err. & App.) 46 N. J. Eq. 
 560, 20 Atl. 259, 9: 221 
 
 22. An assignment by a sheriff of such 
 fees as he may become entitled to receive 
 from the state or county, for public services 
 thereafter to be rendered, is contrary to 
 public policy and void. Bowery Nat. Bank 
 v. Wilson, 122 N. Y. 478, 25 N. E. 855, 
 
 9: 706 
 
 23. An assignment by a mail carrier in 
 the postoffice department, of a month's sal- 
 ary not yet earned, is void as against pub- 
 lic policy. State v. Williamson, 118 Mo. 
 146, 23 S. W. 1054, 21: 827 
 Commissions of executor. 
 
 24. An assignment by an executor before 
 his accounting, of his commissions, is void 
 as contrary to public policy, since when the 
 hope of compensation is gone a strong in- 
 centive to diligence and zeal is wanting, and 
 the temptation to be content with a lax or 
 perfunctory administration of the trust be- 
 comes more persuasive. Re Worthington, 
 141 N. Y. 9, 35 N. E. 929, 23: 97 
 Future instalment of alimony. 
 
 25. An instalment of alimony which is to 
 aecome due at a future time under a decree 
 is not assignable. Kempster v. Evans, 81 
 Wis. 247, 51 N. W. 327, 15: 391 
 Vendor's lien. 
 
 For Editorial Notes, see infra, IV. 2. 
 
 26. A vendor's lien upon real estate is 
 not, in general, assignable. Law v. Butler, 
 44 Minn. 482, 46 N. W. 53, 9: 856 
 
 )f right to use name. 
 See also Trade Name, 21. 
 
 27. The right of one person to use the 
 name of another, given him by contract, 
 cannot be assigned or transferred to a third 
 
 >arty, in the absence of an express stipula- 
 tion to that effect. Bagby & R. Co. v. 
 
 Rivers, 87 Md. 400, 40 Atl. 171, 40: 632 
 
 Of contract. 
 
 28. A railroad company's interest in an 
 executory agreement, by certain of its first-
 
 150 
 
 ASSIGNMENT, II, III. 
 
 mortgage holders, to pay it a certain sum of 
 money, for which debenture bonds were _ to 
 be issued to them, is not capable of being 
 sold or assigned. Pettibone v. Toledo, C. & 
 St. L. R. Co. 148 Mass. 411, 19 N. E. 337, 
 
 1:787 
 
 29. A lawyer cannot make a valid assign- 
 ment of a contract giving him an option as 
 to certain lands in consideration of the use 
 of his professional skill in removing clouds 
 on the title, unless the contract has been 
 fully performed on his part. Sloan v. Wil- 
 liams, 138 111. 43, 27 N. E. 531, 12: 496 
 
 30. The right to assign a contract under 
 Iowa Code, 2084, giving the as- 
 signee a right of action in his 
 own name, does not permit one who 
 has ordered machines agreeing to give 
 his own notes therefor, and turn over as 
 collateral any notes taken by him from pur- 
 chasers, to assign the contract so as to sub- 
 stitute another in his stead, whose note 
 must be accepted in lieu of his own. Rap- 
 pleye v. Racine Seeder Co. 79 Iowa, 220, 44 
 N. *W. 363, 7: 139 
 Of claim against nonresident; to defeat 
 
 exemption laws. * 
 
 To Evade Exemption Law, see Exemptions, 
 6-9. 
 
 31. Where a creditor, knowing his debtor 
 to be insolvent, attaches an asset belonging 
 to him in a foreign state, and then sells and 
 delivers his claim, with all rights acquired 
 by the attachment suit, to a nonresident, to 
 obtain an advantage over other creditors 
 and to avoid being enjoined from the furth- 
 er prosecution of the suit, no action can be 
 maintained against him by the debtor's as- 
 signee in insolvency, either to enjoin the 
 suit or the lending of his name for such 
 purpose, or to recover the amount which he 
 has realized from the claim. Proctor v. 
 National Bank of the Republic, 152 Mass. 
 223, 25 N. E. 81, 9: 122 
 
 n. Equitable Assignment; Orders. 
 
 Check as Equitable Assignment, see Banks, 
 90, 105-108, 117, 120; Checks, 21; Lim- 
 itation of Actions, 185. 
 
 Of Savings Bank Account, see Banks, 368. 
 
 Of Part of Mortgage Indebtedness, see 
 Mortgage, 157. 
 
 See also infra, 45; Pledge and Collateral 
 Security, 28. 
 
 For Editorial Notes, see infra, IV. 3. 
 
 32. A fund that exists potentially, al- 
 though it is not yet due, is subject to an 
 equitable assignment of a portion of it, 
 which will be operative as soon as the fund 
 is acquired. Warren v. First Nat. Bank, 149 
 111. 9, 38 N. E. 122, 25: 746 
 
 33. The test of an equitable assignment 
 is whether the debtor would be justified in 
 paying the debt, or the portion contracted 
 about, to the person claiming to be assign- 
 ee. Fairbanks v. Sargent, 117 N. Y. 320, 
 22 N. E. 1039, 6: 475 
 
 34. Part of a debt or chose in action may 
 be assigned in equity, creating a trust in 
 
 favor of the assignee and an equitable lien 
 upon the fund. Warren v. First Nat. Bank, 
 149 111. 9, 38 N. E. 122, 25: 746 
 
 35. One who pays the debt of another on 
 a promise by the creditor to assign it is the 
 equitable assignee of the debt, although no 
 assignment in writing is made. Crumlish 
 v. Central Improv. Co. 38 W. Va. 390, 18 S. 
 E. 456, 23: 120 
 
 36. An agreement that an attorney shall 
 have a fixed share of the proceeds of certain 
 claims in consideration of their prosecution 
 by him and the extinguishment of a debt 
 due him for past services, although the sole 
 right to compromise them and the power 
 to bring suit is reserved to the creditor, 
 constitutes an equitable assignment of the 
 stipulated share. Fairbanks v. Sargent, 117 
 N. Y. 320, 22 N. E. 1039, 6: 475 
 
 37. The moment a creditor attains legal 
 title and possession of bonds received in 
 payment of a claim, the equity of another 
 to whom he had previously made an 
 equitable assignment of a share of the 
 claims becomes a legal title, and the pos- 
 session as to that share is the possession 
 of the assignee. Id. 
 Orders. 
 
 Issued by De Facto Town, see Municipal 
 
 Corporations, 34. 
 Liability of Town Trustees on, see Officers, 
 
 196, 197. 
 
 38. An order to pay money 'to become 
 due under a contract for services to a third 
 person will constitute a valid assignment 
 which equity may enforce. Merchants' & 
 M. Nat. Bank v. Barnes, 18 Mont. 335, 45 
 Pac. 218, 47: 737 
 
 39. An assignment of the claims of la- 
 borers to a bank which furnishes money to 
 their employer to pay them is not effected 
 by the indorsement of the orders, by the 
 laborers as evidence of payment, and their 
 retention by the bank as vouchers. United 
 States Use of Fidelity Nat. Bank v. Run- 
 die, 46 C. C. A. 251, 107 Fed. 227, 52: 505 
 
 40. Neither a legal transfer of, nor a lien 
 upon, the proceeds of milk to be delivered 
 by a producer to a cheese manufacturer, ia 
 effected by an order directing the latter to 
 deliver to a third person the proceeds of all 
 milk which the producer shall deliver at the 
 factory in the future, where no contract 
 exists requiring the delivery of any milk. 
 O'Niel v. Helmke, 124 Wis. 234, 102 N. W. 
 573, 70: 338 
 
 III. Rights and Liabilities of Assignees. 
 
 In Savings Bank Pass Book, Assigned, see 
 Banks, 367. 
 
 Rights of Assignees of Negotiable Paper, 
 see Bills and Notes, V. a. 
 
 On Transfer of Probate Bond, see Bonds, 14. 
 
 Liability of Transferee of Corporate Fran- 
 chise, see Corporations, 63-68. 
 
 Rights of Transferees of Corporate Stock, 
 see Corporations, V. c, 1. 
 
 Liability of Transferees of Corporate 
 Stock, see Corporations, V. f, 2.
 
 ASSIGNMENT, IV 
 
 151 
 
 Right to Enforce Covenant, see Covenant, 
 76-79. 
 
 Of Executor's Commissions, see Executors 
 and Administrators, 181. 
 
 Assignee of Distributee, see Executors and 
 Administrators, 196-199. 
 
 Right of Assignee to Intervene in Garnish- 
 ment Proceeding, see Garnishment, 114. 
 
 Of Insurance Policy, see Insurance, 724-720. 
 
 Rights of Assignee to Insurance, see In- 
 surance, VI. d, 2, b. 
 
 Priority of Assignees over Mechanic's Lien, 
 see Mechanics' Liens, 19. 
 
 Rights of Assignee of Rent Note, see Land- 
 lord and Tenant, 227. 
 
 Liability of Assignee for Rent, see Land- 
 lord and Tenant, 212-216. 
 
 Of Gas Lease, see Mines, 82. 
 
 Of Assignee of Mortgage, see Mortgage, IV. 
 
 Assignee's Right of Action, see Parties, 
 I. a, 3. 
 
 Duty of Assignee of Warehouse Receipt, 
 see Pledge and Collateral Security, 
 21-23. 
 
 See also supra, 15, 16, 30. 
 
 For Editorial Notes, see infra, IV. 5. 
 
 41. The assignee of a chose in action 
 takes it subject to all the defenses which 
 could have been set up against it in the 
 hands of the assignor at the time of the as- 
 signment. Williams v. Neely, 67 C. C. A. 
 171, 134 Fed. 1, 69: 232 
 
 42. An assignment by a purchaser of a 
 contract of purchase, although it does not, 
 under Cal. Civ. Code, 1457, relieve him of 
 his obligation to the seller, unless the latter 
 consents to the assignment, does make him 
 merely a surety for the payment of the pur- 
 chase price as between himself and the as- 
 signee. The assignee is not relieved from 
 the obligation under the assignment to pay 
 such purchase price by the fact that the 
 seller refuses to accept him as his debtor 
 in place of the assignor. Cutting Packing 
 Co. v. Packers' Exchange, 86 Cal. 574, 25 
 Pac. 52, 10: 369 
 Priority between assignees. 
 
 For Editorial Notes, see infra, IV. 6. 
 
 43. As between successive assignments of 
 a fund in the hands of a third person, the' 
 one which, being acquired without notice 
 of prior ones, is first brought to the 
 knowledge of the depositary, is entitled to 
 priority. Phillips' Estate, 205 Pa. 515, 55 
 Atl. 213, 66: 760 
 
 44. An assignment of accounts and other 
 choses in action to a purchaser in good 
 faith, who obtains actual possession of them 
 and immediately notifies the debtors, gives 
 him a perfect legal title thereto as against 
 a prior assignee to whom they were as- 
 signed for security, but who, without ob- 
 taining possession of them or giving notice 
 to the debtors, left them with the assignor 
 for collection. Graham Paper Co. v. Pem- 
 broke, 124 Cal. 117, 56 Pac. 627, 44: 632 
 
 45. The equity of an attorney to whom 
 an equitable assignment is made of a share 
 of claims which are to be, and which are, 
 collected by his efforts, although the power 
 to bring suit and the sole right to com- 
 
 promise are reserved to the creditor, is not 
 inferior to that of one to whom they are 
 assigned as collateral security for a prece- 
 dent debt, and who cannot prevent a com- 
 promise by the creditor if sufficient is ob- 
 tained to satisfy his claim. Fairbanks v. 
 Sargent, 117 N. Y. 320, 22 N. E. 1039, 
 
 6: 475 
 
 IV. Editorial Notes. 
 
 By Bankrupt, see Bankruptcy, V. 6. 
 
 Of Promissory Note, see Bills and Notes, 
 VTI. 13-24. 
 
 Of Insurance, see Insurance, VIII. 37- 
 40. 
 
 Of Judgment, see Judgment, VIII. 30. 
 
 Of Mortgage, see Mortgage, VIII. 13. 
 
 Of Lease, see Landlord and Tenant, IV. 
 4. 
 
 i. Generally. 
 
 Transfer of right to use water for irriga- 
 tion. 65:407. 
 
 Necessity of, to surety's right of subroga- 
 tion to judgment against 
 principal. 68: 572. 
 
 Law governing assignment of claim for 
 damages for death or bod- 
 ily injury. 56: 223. 
 
 2. Assignability. 
 
 Of cause of action for personal tort. 14: 
 
 512. 
 
 Test of assignability. 14: 512. 
 Illustrations of rule. 14: 513. 
 Iowa rule. 14: 513. 
 Effect of verdict. 14: 514. 
 Collusiveness of survivability as a 
 
 test. 14: 514. 
 
 Effect of verdict on assignability of 
 cause of action for per- 
 sonal tort. 14: 514. 
 
 Of cause of action for personal injury. 
 
 44: 177. 
 In cases of insolvency and bankruptcy. 
 
 44: 180." 
 
 Test of assignability. 44: 180.' 
 Classification by states. 44: 181. 
 
 Of mechanic's lien. 13: 704. 
 
 Of vendor's lien. 13: 188.* 
 
 Of insurance policy. 9: 660.* 
 
 Of policy of insurance taken out by wife 
 on husband's life. 10: 
 259.* 
 
 Of railroad ticket. 18: 55. 
 
 Of future contingent interest. 5: 122.* 
 
 Of option. 21: 133. 
 
 Of contracts for personal services. 12: 496.* 
 
 Of future accounts or earnings. 14: 126. 
 
 Of unearned salary of officer. 9: 706.* 
 
 Of contract hiring out convicts. 27: 608, 
 
 Of right of entry for a condition broken. 
 60: 750. 
 
 Of claim for penalty against national bank 
 taking usurious interest. 
 56: 695. 
 
 Of trademark or trade name. 9: 148.* 
 
 Of right to set aside judgment. 15: 813. 
 
 Of good-will of business. 13: 381.* 
 
 Of claims against United States. 2: 571.* 
 
 3. How made; what constitutes equitable 
 assignment.
 
 i52 
 
 ASSIGNMENTS FOR CREDITORS. 
 
 How future crops assignable. 23: 449. 
 Effect of check or bill of exchange as equi- 
 table assignment. 7: 596.* 
 Assignment of life insurance policy. 9: 
 
 660.* 
 
 Equitable assignees of mortgagor. 5: 292.* 
 4. Effect of. 
 
 Effect of assignment of debt to carry mort- 
 gage security. 3: 785.* 
 Effect of assignment of oil and gas lease. 
 
 34: 62. 
 
 Undelivered written transfer or assignment 
 of property as a gift. 21: 
 693. 
 
 Assignment of mortgage as a conveyance 
 within recording acts. 5: 
 292.* 
 
 5. Rights and liabilities of parties; notice. 
 Liability of assignee of leasehold for rent. 
 
 14: 151. 
 Right of assignee of claim against foreign 
 
 government. 3: 460.* 
 
 Rule that assignee of non-negotiable chose 
 in action takes subject to 
 prior equities. 5: 620.* 
 Effect on assignee of insurance policy of 
 acts of forfeiture by as- 
 signor. 18: 135. 
 
 Right of attorney to purchase chose in ac- 
 tion. 9: 91.* 
 6. Priority rights of different assignees of 
 
 fund in hands of third person. 
 Priority of notice to trustee gives priority 
 
 of right. 66: 761. 
 In general. 66: 761. 
 As applied to assignees in bankruptcy. 
 
 66: 766. 
 
 Under English statutes. 66: 766. 
 Notice before bankruptcy. 66: 
 
 766. 
 No notice before bankruptcy. 
 
 66: 767. 
 
 When the assignment was giv- 
 en after the bankruptcy 
 of the assignor. 66:768. 
 In the United States. 66: 769. 
 Subsequent assignee must take bona 
 
 fide. 66: 769. 
 In general. 66: 769. 
 Duty to inquire as to prior encum- 
 brances. 66: 770. 
 Sufficiency of notice. 66: 770. 
 
 Informal and imperfect notice. 
 
 66: 770. 
 
 Accidental knowledge. 66: 771. 
 Indirect notice. 66: 771. 
 
 Notice to solicitor of trustees. 
 
 66: 771. 
 
 Filing Us pendens. 66: -.771. 
 Notice to one or more of several 
 
 trustees. 66: 771. 
 When trustees notified are super- 
 seded by others. 66: 772. 
 Notice given to wrong party. 66: 
 
 772. 
 When assignor is also a trustee. 
 
 66: 772. 
 
 When assignee is also the trustee, 
 or one of the trustees. 66: 
 773. 
 When the fund is in court. 66: 773. 
 
 Notice to trustee before fund is 
 vested in him as the prop- 
 erty of assignor. tJ6: 773. 
 When notices are simultaneous. 
 
 66: 774. 
 
 Interests not within scope of rule. 60: 
 774. 
 
 Qui prior est tempore, potior est jure. 66: 
 774. 
 
 States in which both rules have been fol- 
 lowed. 66: 775. 
 New York. 66: 775. 
 Pennsylvania. 66: 770. 
 Other states. 66:776. 
 
 Other cases. 66: 777. 
 
 When the contract assigned provides as to 
 mode of assignment. 66: 
 777. 
 
 Priority of notes falling due at different 
 times secured by same 
 mortgage. 24: 800. 
 
 7. Actions. 
 
 Assignment as ground of action. 36: 582. 
 
 Suit by assignee of chose in action. 12: 
 681.* 
 
 Assignee of account for work and labor of 
 goods sold, as real party 
 by whom action must be 
 brought. 64: 597. 
 
 When assignee of chose in action may sue 
 in United States court. 2: 
 746.* 
 
 Right of assignee of choss in action to sue 
 in his own name. 5: 430.* 
 
 8. Set-off. 
 
 Against insolvent of claims purchased after 
 insolvency. 21: 2SO. 
 
 Against assigned claim, of debtor's de- 
 mand against assignor. 
 23: 305. 
 
 Against judgment in hands of assignee. 23: 
 335. 
 
 Against assignee of commercial paper, of 
 claim against assignor 
 23: 325. 
 
 Availability of equitable set-off against a 
 signee. 2: 273.* 
 
 ASSIGNMENTS FOR CREDITORS. 
 
 I. What Constitutes an Assignment. 
 II. Construction and Effect of Assign- 
 ment. 
 ITI. Assignee or Trustee. 
 
 a. In General. 
 
 b. Right and Powers. 
 
 1. In General. 
 
 2. Property or Title Taken. 
 
 3. Actions by. 
 
 c. Liabilities. 
 
 IV. Rights and Liabilities of Assignee's 
 
 Attorney. 
 
 V. Validity; Taking Effect. 
 VI. Property Included. 
 VTI. Preferences by Insolvent. 
 
 a. In General. 
 
 b. Validity of.
 
 ASSIGNMENTS FOR CREDITORS, I. 
 
 153 
 
 . Rights, Duties, and Liabilities of 
 Creditors; Priority and Release 
 of Claims. 
 
 a. In General. 
 
 b. Release of Claims. 
 IX. Liability of Assignor. 
 
 X. Editorial Notes. 
 
 Discharge of Attachment as against As- 
 signee, see Attachment, 52. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 I. f ; III. . 16. 
 
 Power of Corporate Agent to Make, for 
 Corporation, see Corporations, 224. 
 
 By Insolvent Corporation, Generally, see 
 Corporations, 764, 765. 
 
 By Foreign Corporation, see Corporations, 
 871-874. 
 
 Priority of Garnishment Proceedings, see 
 Garnishment, 99, 100. 
 
 Effect of Partial Invalidity of ^Statute as 
 to, see Insolvency, 4. *< 
 
 By Insurance Company, see Insurance, 79. 
 
 Action by Stockholders to Set Aside As- 
 signment, see Insurance, 676. 
 
 Libelous Charge of Making, see Libel and 
 Slander, 51, 120; Trial, 262. 
 
 Parties to Action to Set Aside, see Parties, 
 169. 
 
 Set-Off in Case of, see Set-Off and Counter- 
 claim, 36-43, 56, 67. 
 
 As to Bankruptcy Matters, see Bankruptcy. 
 
 As to Insolvency Generally, see Insolvency. 
 
 As to Receivers, see Receivers. 
 
 I. What Constitutes an Assignment. 
 
 See also Sale, 5. 
 
 For Editorial Notes, see infra, X. 1. 
 
 1. A bill of sale in satisfaction of debts 
 cannot be turned into an assignment by 
 the fact that the creditor agrees to pay 
 other claims against the debtor, if the in- 
 ability is absolute and not dependent on 
 the disposition made of the property. Rice 
 v. Wood, 61 Ark. 442, 33 S. W. 636, 31: 609 
 
 2. The transaction constitutes an assign- 
 ment for creditors, where one or more in- 
 struments are executed by a debtor, in 
 whatsoever form or by whatsoever name, 
 with the intention of having them operate 
 as an assignment, and with the intention 
 of granting the property conveyed abso- 
 lutely to a trustee to raise a fund to pay 
 debts. Richmond v. Mississippi Mills, 52 
 Ark. 30, 11 S. W. 960, 4: 413 
 
 3. A voluntary transfer by an insolvent 
 of certain specified property in trust to 
 sell enough of it to pay certain specified 
 debts and return the remainder is, regard- 
 less of the form of the instrument, an as- 
 signment within the meaning of 111. act 
 May 22, 1877, conferring jurisdiction on 
 county courts to supervise the execution 
 of trusts growing out of voluntary assign- 
 ments for creditors. Farwell v. Cohen, 138 
 111. 216, 28 N. E. 35, 32 N. E. 893, 18: 281 
 
 4. A partial assignment for particular 
 creditors is included within the provisions 
 of 111. act May 22, 1877, which provides that 
 
 an assignment shall include "any other 
 property . . . comprehended within the 
 general terms of" the same, and that all 
 debts and liabilities are to be paid pro rata 
 "from the assets thereof," and the trust is 
 enlarged by the statute, which makes it 
 inure to the benefit of all the creditors. Id. 
 
 5. An instrument transferring property 
 to a trustee, with authority to sell it and 
 make a deed "in the name of the grantors," 
 and providing for return of the surplus to 
 the grantors, is a deed of trust, and not an 
 assignment for creditors. Tittle v. Vanleer, 
 89 Tex. 174, 34 S. W. 715, 37: 337 
 
 5a. An intent to make a mortgage, and 
 not an assignment for creditors, is indi- 
 cated by the insertion in the instrument of 
 provisions for a preference of creditors, 
 where such preference could be legally made 
 in a mortgage, but could not be made in an 
 assignment for creditors, and is to be ig- 
 nored, under a statute requiring a provision 
 for such preferences to be ignored only 
 when the conclusion is reached from other 
 language in the instrument that it was in- 
 tended to be an assignment. Id. 
 
 6. The question whether an instrument is 
 an assignment for creditors or a mortgage 
 depends on the legal intent of the grantor 
 as expressed in the language used, when 
 read in the light of the surrounding circum- 
 stances; and it will be considered as a 
 mortgage, unless there appears an intent to 
 devest the grantor of, and vest in the 
 grantee, all title and interest in the prop- 
 erty for the purpose of providing for the 
 immediate payment of the debt or debts 
 provided for. Id. 
 
 7. A conveyance of property of a corpora- 
 tion in trust to be sold and the proceeds 
 applied to the payment of indebtedness, also 
 authorizing the trustee to collect accounts 
 and use the proceeds in payment of debts, 
 but providing that any surplus shall be re- 
 turned to the corporation or its assigns, is 
 an assignment for the benefit of creditors, 
 and not a mere mortgage. Conely v. Col- 
 lins, 119 Mich. 519, 78 N. W. 555, 44: 844 
 
 8. A deed of trust to pay debts is a 
 mortgage, and not an assignment fer ben- 
 efit of creditors, where it is not the inten- 
 tion of the parties to devest the debtor of 
 the title, or to make an appropriation of 
 the property affected to the raising of a 
 fund to pay debts. Smeacl v. Chandler, 71 
 Ark. 505, 76 S. W. 1066, 65: 353 
 
 9. A mortgage by a merchant of all his 
 property for the security of certain credi- 
 tors will not constitute in law an assign- 
 ment for creditors, invalid because partial, 
 where the mortgagor intends to keep up his 
 business if he can, and does not intend to 
 devest himself of title to and control over 
 the property. Noyes v. floss, 23 Mont. 425, 
 59 Pac. 367, 47: 400 
 
 10. A mortgage taken by a surety from 
 a debtor in contemplation of insolvency, as 
 indemnity not only for the debt on which 
 he is liable, but also for another debt on 
 which he was not previously liable, but 
 which he assumes and actually pays in 
 consideration of the mortgage, is in effect
 
 154 
 
 ASSIGNMENTS FOR CREDITORS, II., III. a. 
 
 a trust for the benefit of all the insolvent's 
 creditors within the meaning of Ohio Rev. 
 Stat. 6343; and the mortgagee holds it 
 not for himself alone, bat is a trustee for 
 the creditors in proportion to their respec- 
 tive demands. Pendery v. Allen, 50 Ohio 
 St. 121, 33 N. E. 716, 19: 367 
 
 11. A mortgage by a debtor of his entire 
 stock of goods and store furniture to secure 
 certain creditors, and an assignment "in 
 pledge" of all notes, accounts, and choses in 
 action to the same parties as security for 
 the same debts, constitute a general assign- 
 ment for the benefit of creditors, where the 
 debts are past due and no extension of time 
 for payment is given, and an immediate 
 sale of the property is provided for, the 
 proceeds to be applied to pay debts, and a 
 person is designated to take charge of the 
 property and do all that is required of a 
 trustee in an assignment; upon whom or- 
 ders are drawn in favor of nonpreferred 
 creditors, which are directed to be paid out 
 of the surplus proceeds of the property; 
 and where letters written to the nonpre- 
 ferred creditors state that the transaction 
 "protects all from complications." Richmond 
 v. Mississippi Mills, 52 Ark. 30, 11 S. W. 
 960, 4: 413 
 
 12. A petition by a creditor or some other 
 party in interest is a proper way to call 
 upon the court to declare a deed of trust 
 for certain creditors to be in effect an as- 
 signment for all creditors. Farwell v. Co- 
 hen, 138 111. 216, 28 N. E. 35, 32 N. E. 893. 
 
 18: 281 
 
 12a. A voluntary assignment which on 
 its face includes only part of the debtor's 
 property, and contains no general terms 
 descriptive of property, is not converted 
 into a general assignment of all the debtor's 
 unexempt property by 111. act May 22, 1877, 
 which provides that an assignment for cred- 
 itors shall not be void for want of any 
 list or inventory, and that a list or inven- 
 torv shall not be conclusive, but that the 
 assignee shall take title to "any other 
 property not exempt by law . . . com- 
 prehended within the general terms" of the 
 assignment. Id. 
 
 II. Construction and Effect of Assignment. 
 
 Effect of Preference on Assignment, see 
 
 infra, 67, 68. 
 
 To Prevent Attachment, see Courts, 420. 
 Dissolution of Prior Attachments by, see 
 
 Parties, 218. 
 On Carrier's Lien, see Carriers, 839, 840, 
 
 844. 
 Testing Validity of Assignment, see Cer- 
 
 tiorari, 29. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 262-267. 
 
 Change in Statute as to, as Impairing Ob- 
 ligation of Contract, see Constitutional 
 
 Law, 1199, 1211. 
 Abrogation or Breach of Contract by, see 
 
 Contracts, 744. 
 
 Effect on Right to Rescind Fraudulent Con- 
 tract, see Contracts, 779. 
 
 Taking Possession of Vessel Constructed, 
 because of, as Acceptance, see Con- 
 tracts, 707. 
 
 Termination of Insurance Policy by, see 
 Insurance, 1365, 1370, 1371. 
 
 Assignment as Payment of Judgment, see 
 Insurance, 1344. 
 
 Right to Levy on Property Assigned, see 
 Levy and Seizure, 38. 
 
 Retrospective Statutes as to, see Statutes, 
 538. 
 
 For Editorial Notes, see infra, X. 5. 
 
 13. The legal effect of two deeds executed 
 in duplicate, and in all essential respects 
 exactly the same, assigning property for 
 creditors, is the same as that of a single 
 deed. Riley v. Carter, 76 Md. 581, 25 Atl. 
 667, 19: 489 
 
 14. An assignment for the benefit of his 
 "creditors," by a person in his own right 
 and as surviving partner of all partnership 
 and individual property, is to be considered 
 as an assignment of the partnership prop- 
 erty for the benefit of partnership credi- 
 tors, and of separate property for the bene- 
 fit of separate creditors. Id. 
 
 15. An assignment by lessees of a coal 
 mine for benefit of their creditors will not 
 defeat the right of the lessor to proceed 
 under the terms of the lease to declare a 
 forfeiture for existing defaults and to take 
 the fixtures at an appraised value and ap- 
 ply their value in satisfaction of claims for 
 breaches of covenants in the lease. Potter 
 v. Gilbert, 177 Pa. 159, 35 Atl. 597, 35: 580 
 
 HI. Assignee or Trustee, 
 a. In General. 
 
 Right to Have Assignee Account, see infra, 
 
 89-92. 
 
 Estoppel against, see Estoppel, 84. 
 Approval of Bond on Holiday, see Holidays, 
 
 3. 
 
 Who may be. 
 
 16. A creditor of the assignor may be as- 
 signee in an assignment for benefit of cred- 
 itors. Farwell v. Cohen, 138 111. 216, 28 N. 
 E. 35, 32 N. E. 893, 18: 281 
 Creditor's rights in choice of. 
 
 17. Partnership creditors may vote in 
 the choice of assignees and on the matter 
 of the discharge of a single insolvent part- 
 ner, although the firm is not insolvent. 
 Clark v. Stanwood, 166 Mass. 379, 44 N. E. 
 537. 34: 378 
 
 18. The right of the creditors of an insol- 
 vent to select the assignee, under the Mary- 
 land insolvent law, by insolvent proceedings 
 begun within four months after the commis- 
 sion of an act of insolvency, cannot be de- 
 feated by a deed executed within that time 
 assigning for creditors all the estate of th 
 insolvent to a trustee selected by himself. 
 Riley v. Carter, 76 Md. 581, 25 Atl. 667, 
 
 19: 489
 
 ASSIGNMENTS FOR CREDITORS, III. b c 
 
 155 
 
 b. Rights and Powers. 
 1. In General. 
 
 Sending Notice of Protest to Assignee, see 
 
 Bills and Notes, 175. 
 Power to Avoid Landlord's Lien for Rent, 
 
 see Landlord and Tenant, 219. 
 Right to Attorney's Fees for Defending 
 
 Suit, see Costs and Fees, 49, 50. 
 Right to Set up Defense of Usury, see 
 
 Usury, 45. 
 For Editorial Notes, see infra, X. 7. 
 
 19. An assignee for creditors is regarded 
 as the representative of the creditors, and, 
 as such, may, for the benefit of creditors, 
 set aside conveyances by the assignor in 
 fraud of them, to the extent that property 
 is needed for the payment of debts. Moore 
 v. Williamson (N. J. Prerog. Ct:\ 44 N. J. 
 Eq. 496, 15 Atl. 587, 1 : 336 
 
 20. Under N. Y. Laws 1858, chap. 314, so 
 long as a voluntary assignment for creditors 
 is in force, the right to assail prior trans- 
 fers of property made by the assignor rests 
 in the assignee. Loos v. Wilkinson, 110 N. 
 Y. 195, 18 N. E. 99, 1: 250 
 
 21. When there is fraud upon an honest 
 assignment (as distinguished from fraud in 
 the assignment), by prior fraudulent trans- 
 fers of his property by the assignor, or by 
 a subsequent withholding of property from 
 the assignee, or in the schedules required by 
 law to be made, the remedy is with the as- 
 signee. Id. 
 
 2. Property or Title Taken. 
 
 Property Included in Assignment Gener- 
 ally, see infra, VI. 
 For Editorial Notes, see infra, X. 4. 
 
 22. An assignee for the benefit of credi- 
 tors can have no greater rights in the as- 
 signed property than his assignor had. 
 Lockett v. Robinson, 31 Fla. 134, 12 So. 67, 
 
 20: 67 
 
 23. A trustee of an insolvent, 'as a gen- 
 eral rule, takes the estate subject to all out- 
 standing equities. Merwin v. Austin, 58 
 Conn. 22, 18 Atl. 1029, 7: 84 
 
 24. An assignee for creditors takes the 
 choses in action of his assignor as a volun- 
 teer and as the representative of the assign- 
 or and his estate, subject to all the de- 
 fenses and equities existing against them in 
 the hands of the assignor. Nashville Trust 
 Co. v. Fourth Nat. Bank, 91 Tenn. 336, 18 
 S. W. 822, 15: 710 
 
 3. Actions by. 
 
 Jurisdiction of, see Courts, 307. 
 
 To Enforce Stockholder's Liability, see 
 
 Banks, 24, 25; Corporations, 631. 
 Trover, see Trover, 23. 
 See also Chattel Mortgage, 70. 
 
 25. An assignee in insolvency to whom, by 
 the California insolvent . act, 18, 21, all 
 the insolvent's estate passes, may maintain 
 an action on behalf of the creditors to de- 
 
 clare a chattel mortgage void. Ruggles v. 
 Cannedy, 127 Cal. 290, 53 Pac. 911, 
 
 46: 371 
 
 26. A general assignee for the benefit of 
 creditors of an insolvent corporation, being 
 vested with the legal title to its property, 
 and having the power to reduce its assets to 
 possession, is permitted by public policy 
 and state comity to sue in another state to 
 collect unpaid stock subscriptions. Stoddard 
 v. Lum, 159 N. Y. 265, 53 N. E. 1108, 
 
 45: 551 
 
 27. An assignee for creditors has no right 
 to maintain a suit for property claimed to 
 belong to the 'assignor's estate, where the 
 assignor would be prevented from doing so 
 by his own agreement. Sayre v. Weil, 94 
 Ala. 466, 10 So. 546, 15: 544 
 
 28. An action by a trustee in insolvency 
 to set aside a voluntary assignment by the 
 insolvent must be brought within a rea- 
 sonable time after he has qualified. Riley v. 
 Carter, 76 Md. 581, 25 Atl. 667, 19: 489 
 
 c. Liabilities. 
 
 Liability to Tax, see Taxes, 122, 127, 370. 
 
 29. An assignee for creditors who, under 
 the advice of his own counsel and after con- 
 sultation with and by the consent of counsel 
 employed by a creditor, compromises suits 
 affecting the trust estate, is not chargeable 
 by that creditor with lack of good faith 
 and proper diligence which will render him 
 liable for assets which upon the compromise 
 the creditors suing are allowed to retain 
 under attachment. Loucheimer v. Weil, 
 113 N. C. 181, 18 S. E. 103, 23: 578 
 
 30. An equity order confirming the re- 
 port of an auditor as to the proper dis- 
 tribution of funds in the hands of an as- 
 signee for benefit of creditors cannot be at- 
 tacked, even upon ground of fraud, in a pro- 
 ceeding at law upon the assignee's bond 
 after his failure to comply with the terms 
 of the order. Such attack is not permitted 
 by a statute which allows equitable de- 
 fenses to be made in actions at law. Tay- 
 lor v. State, Use of Mallory, 73 Md. 208, 
 20 Atl. 914, 11:852 
 For act of coassignee. 
 
 31. An assignee for creditors is not re- 
 sponsible for money of the trust estate col- 
 lected and misapplied by a coassignee with- 
 out having at any time come under the 
 former's control. Bruen v. Gillet, 115 N. Y. 
 10, 21 N. E. 676, 4: 529 
 
 32. An assignee for creditors, who signs 
 checks by which money under the joint 
 control of himself and his coassignee is 
 drawn from a bank and transferred to the 
 individual and separate control of a co- 
 assignee, is responsible for any amount 
 which is lost in consequence of such act, 
 notwithstanding that the money had been 
 originally collected by the coassignee, and 
 voluntarily deposited by him to the joint 
 credit of both assignees, and notwithstand- 
 ing, also, that the assignee is a private 
 sanker. Id. 
 
 33. An assignee in insolvency whose coas-
 
 ASSIGNMENTS FOR CREDITORS, iV., V 
 
 156 
 
 signee collects in his own name certain of 
 the trust funds and deposits them in bank 
 to the joint account of both, where they 
 subsequently unite in drawing the funds 
 from the bank and in transferring them 
 to the individual account of the coassigriee, 
 who is an individual banker, is responsible 
 for the proper application of the funds by 
 the coassignee; but if the latter has proper- 
 ly disbursed a greater amount than that 
 transferred to him from the joint account, 
 he is entitled to show that the particular 
 funds transferred were used in such dis- 
 bursements. Moore v. Williamson (N. J. 
 Prerog. Ct.) 44 N. J. Eq. 496, 15 Atl. 587, 
 
 1 : 336 
 
 34. An assignee for creditors who united 
 with a coassignee in drawing out funds de- 
 posited jointly by them in bank, and in 
 transferring them to the individual con- 
 trol of the coassignee, who is a private 
 banker, is not chargeable, in. case of a mis- 
 application of the funds by such coassignee, 
 with more than 5 per cent interest on such 
 portion of the fund as cannot be properly 
 accounted for, in the absence of any evi- 
 dence of affirmative wrongdoing on the part 
 of the defendant, or of the use by him of 
 any of the funds. Bruen v. Gillet, 115 N. 
 Y. 10, 21 N. E. 676, 4: 529 
 For interest. 
 
 See also supra, 34. 
 
 35. It is the duty of an assignee to have 
 a dividend declared as soon as he has col- 
 lected a large part of the assets and has as- 
 certained the probable amount of the 
 claims; but where he neglects so to do, 
 without excuse, he is liable for interest 
 from the time when he could have re- 
 ceived an order declaring a dividend. Man- 
 hattan Cloak & S. Co. v. Dodge, 120 Ind. 
 1, 21 N. E. 344, 6: 369 
 On bond. 
 
 Release of Sureties on, see Principal and 
 Surety, 48. 
 
 36. The sureties on the bond of the as- 
 signee of an insolvent's estate are not lia- 
 ble for his conversion to the use of the 
 estate of property not belonging to it. Best 
 v. Johnson, 78 Cal. 217, 20 Pac. 415, 3: 168 
 
 IV. Rights and Liabilities of Assignee's 
 Attorney. 
 
 37. An assignee's attorney has no right 
 to borrow the trust funds, paying interest, 
 and buy claims against the debtor below 
 their face value, and then file them and 
 have them allowed. Manhattan Cloak & 
 S. Co. v. Dodge, 120 Ind. 1, 21 N. E. 344, 
 
 6: 369 
 
 38. The attorney of an assignee, who 
 buys claims of creditors who have replevied 
 goods sold to the debtor, and enters judg- 
 ments in the replevin suits, declaring the 
 goods to be of a certain value, and sells 
 them at private sale for a less sum, is ac- 
 countable to the estate of the insolvent for 
 the actual value of the goods only, and 
 not for the amount of the judgment. Id. 
 
 V. Validity; Taking Effect. 
 
 Effect of Preferences, see infra, 67, 68. 
 Validity of Preferences, see infra, VII. b. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 252-261. 
 Of Foreign Corporation, see Corporations, 
 
 871-874. 
 Estoppel to Deny Validity, see Estoppel, 
 
 242. 
 
 By Partnership, see Partnership, 49, 52-54. 
 See also supra, 9. 
 
 39. Provisions, in a general assignment 
 for benefit of creditors, requiring the exe- 
 cution of the trust in a manner prohibited 
 by law, render it void as to nonassenting 
 creditors. Richmond v. Mississippi Mills, 
 52 Ark. 30, 11 S. W. 960, 4: 413 
 Assignments by partnerships. 
 
 40. A surviving partner may make an as- 
 signment of all the estate of the late firm 
 for creditors, if he does not in so doing 
 violate any statutory provisions. Riley v. 
 Carter, 76 Md. 581, 25 Atl. 667, 19: 489 
 
 41. An assignment, by the surviving part- 
 ners of an insolvent firm which has been 
 dissolved by the death of one of its mem- 
 bers, of the partnership effects for the bene- 
 fit of the social creditors, is valid, in the 
 absence of any statutory provision to the 
 contrary, although it provides that some 
 creditors shall be paid before others. Pat- 
 ton v. Leftwich, 86 Va. 421, 10 S. E. 686. 
 
 1:689 
 
 42. The separate property of the part- 
 ners, as well as the firm . property, must 
 be included to make valid an assignment by 
 a partnership for benefit of creditors, where 
 the statute requires all creditors accepting 
 dividends to release the assignors from fur- 
 ther liability. McCord-Brady Co. v. Mills, 
 8 Wyo. 258, 56 Pac. 1003, ' 46: 737 
 
 43. An assignment by a firm of all part- 
 nership property for the benefit of creditors 
 is not rendered invalid by reason of the 
 fact that the property of the individual 
 members was not also assigned, where no 
 releases are required from the creditors. 
 McFarland v. Bate, 45 Kan. 1, 25 Pac. 238, 
 
 10: 521 
 
 44. Statutes which relate to voluntary 
 assignments by "insolvent debtors" for the 
 benefit of creditors; and require sworn 
 schedules of assets and creditors to be pre- 
 pared and attached to the deed or instru- 
 ment of assignment by "the person, firm, 
 or corporation" making such assignment; 
 and provide that "in case of assignments 
 by firms" the required oaths may be made 
 by any member of the firm, assume the 
 right of insolvent firms to assign the part- 
 nership property for the benefit of their 
 creditors, though the partners themselves, 
 as individuals, may be solvent. It follows 
 that the individual property of the part- 
 ners respectively need not be assigned in 
 order to render the assignment valid. Druck- 
 er-v. Welthouse, 82 Ga. 129, 8 S. E. 40, 
 
 2: 328 
 
 45. A voluntary assignment, by a firm, of 
 partnership property for the benefit of
 
 ASSIGNMENTS FOB CREDITORS, VI. 
 
 157 
 
 creditors, is not invalidated by a provision 
 excepting therefrom such articles as are 
 exempt by law, such provision being nuga- 
 tory and to be treated as surplusage. Mc- 
 Farland v. Bate, 45 Kan. 1, 25 Pac. 238, 
 
 10: 521 
 Delivery of possession. 
 
 46. The delivery by an assignor for bene- 
 fit of creditors to his assignee of the deed 
 of assignment and of the key to his store- 
 house, and the failure of the assignor to 
 go near, or exercise any control over, the 
 assigned goods thereafter, is a delivery 
 of the possession thereof, within the mean- 
 ing of that term as used in Mansf. (Ark.) 
 Dig. 305. Gilkeson-Sloss Commission Co. 
 v. London, 53 Ark. 88, 13 S. W. 513, 
 
 7: 403 
 
 47. Delivery of possession to an assignee 
 for creditors before he has filed^ an inven- 
 tory and executed a bond will ^avoid the 
 assignment, although made in accordance 
 with a parol agreement between the par- 
 ties, entered into contemporaneously with 
 the execution of the deed of assignment, 
 which is valid on its face, mat it was for 
 the purpose of enabling the assignee to pre- 
 pare an inventory. Id. 
 Fraud. 
 
 See also supra, 19-21. 
 
 For Editorial Notes, see infra, X. 1. 
 
 48. When the fraudulent intent of an as- 
 signor for the benefit of creditors is estab- 
 lished, the assignment may be set aside, 
 and creditors may then pursue their rem- 
 edies as if it had not been made. Loos v. 
 Wilkinson, 110 M. Y. 195, 18 N. E. 99, 
 
 1:250 
 
 49. Frauds upon the assignment by the 
 (assignor or assignee do not necessarily 
 avoid the assignment, but may be con- 
 sidered in determining whether there was 
 fraud in the assignment. Id. 
 
 50. A creditor of an assignor for the bene- 
 fit of creditors cannot assail prior trans- 
 fers of property made by him, unless he also 
 effectually assails the assignment; but this 
 may all be done in the same action. Id. 
 Matters as to schedules. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 
 260, 261. 
 
 See also supra, 12a, 21, 44. 
 For Editorial Notes, see infra, X, 3. 
 
 51. An assignment preferring some credit- 
 ors whom it fails to specify either in the 
 instrument itself or in an indexed schedule 
 is void upon its face. Wolf v. O'Connor, 88 
 Mich. 124, 50 N. W. 118, 13: 693 
 
 52. Where the schedules required by stat- 
 ute are in fact attached to a deed of as- 
 signment, and there is no reason to con- 
 clude or even suspect that they were not 
 attached at the time the assignment was 
 executed, failure of the writings to declare 
 expressly on their face that they were then 
 attached is of no consequence. Drucker 
 v. Wellhouse, 82 Ga. 129, 8 S. E. 40, 
 
 2: 328 
 
 Taking effect; acceptance. 
 For Editorial Notes, see infra, X. 2. 
 
 53. Failure to acknowledge and record an 
 assignment for creditors as required by a 
 
 statute which contains no negative words 
 declaring it void for such failure will not 
 prevent the assignment from becoming 
 operative. Farwell v. Cohen, 138 111. 216, 
 28 N. E. 35, 32 N. E. 893, 18: 281 
 
 54. An assignment for creditors takes ef- 
 fect, as to all .persons, from the time of its 
 delivery to the probate court of the county 
 in which the assignor resides at the time of 
 its execution, it is not necessary that it 
 be also filed for record with the recorder of 
 deeds. Betz v. Snyder, 48 Ohio St. 492, 28 
 N. E. 234, 13: 235 
 
 55. A deed in trust for the benefit of 
 creditors vests the title of personal prop- x 
 erty in the trustee, under Md. Code, art. 16, 
 205, when the deed is recorded and the 
 bond filed in the county in which the grant- 
 or resides; and such title is not affected 
 by the fact that the bond is not filed in 
 another county in which real estate of the 
 grantor is located. Fidelity & D. Co. v. 
 Haines, 78 Md. 454, 28 AtL 393, 23:652 
 
 56. To make a deed of trust valid against 
 an attachment of the property, it must 
 have been accepted by some of . the bene- 
 ficiaries before the attachment was levied. 
 Tittle v. Vanleer, 89 Tex. 174, 34 S. W. 715, 
 
 37: 337 
 
 VI. Property Included. 
 
 Property or Title Taken by Assignee, see 
 
 supra, III. b, 2. 
 See also supra, 42-45, 55. 
 For Editorial Notes, see infra, X. 4. 
 
 57. A deed assigning for creditors all the 
 property, estate, and assets whatsoever of 
 a late firm, sufficiently conveys all the real 
 estate of the firm, whether standing in 
 the name of the firm or of the individual 
 partners or either of them. Riley v. Carter, 
 76 Md. 581, 25 Atl. 667, 19: 489 
 
 58. A claim accruing after an assign- 
 ment for creditors on a contract previously 
 made by the assignor is assets in the hands 
 of the assignee only to the extent of the 
 balance due after deducting a claim against 
 the assignor which was a valid existing 
 set-off at the time of the assignment. Re 
 Hatch, 155 N. Y. 401, 50 N. E. 49, 40: 664 
 
 59. The assignees of an insolvent banking 
 firm, the surviving partner of which has 
 made an assignment, cannot hold as assets 
 of the firm the proceeds of checks and 
 drafts which were in the mails at the time 
 of the death of the other partner, one morn- 
 ing before banking hour&, and were received 
 by the survivor the same day, and paid 
 by charging them against the accounts of 
 the drawers, the proceeds being placed to 
 the credit of the bank which sent them. 
 First Nat. Bank v. Payne, 85 Va. 890, 9 
 S. E. 153, 3: 284 
 
 60. A claim upon an employer's liabil- 
 ity policy does not pass to an assignee in 
 insolvency proceedings under an assignment 
 by the employer, before any action has been 
 commenced against him by the employee 
 who was injured. Anoka Lumber Co. v. Fi- 
 delity & C. Co. 63 Minn. 286, 65 N. W. 353, 
 
 30: 689
 
 158 
 
 ASSIGNMENTS FOR CREDITORS, VII. , a, b. 
 
 61. A trademark whica is not strictly per- 
 sonal, such as the words "King Bee," as ap- 
 plied to manufactured tobacco, will pass by 
 an assignment of all of the owner's prop- 
 erty for benefit of creditors, under state 
 insolvency laws, although the same is regis- 
 tered In the United States patent olnce un- 
 der the act of Congress of March 3, 1881. 
 Sarrazin v. W. R. Irby Cigar & T. Co. 35 
 C. C. A. 496, 93 Fed. 624, 46: 541 
 
 62. Estates of a debtor and his wife, by 
 entireties, except her right of survivorship, 
 pass by his assignment of all his estate, 
 real and persqnal, for the benefit of credi- 
 tors, under statutes making everything pass 
 which might ue taken in execution against 
 him, and providing that neither the wife's 
 separate property nor its products shall be 
 liable for his debts. Laird v. Perry, 74 
 Vt. 454, 52 Atl. 1040, 59: 340 
 Property held in trust 
 
 63. An interest in property held in trust 
 for a person during life, under a will pro- 
 viding that no part of it shall be "as- 
 signable, . . . or in any way liable to 
 be taken," for any of his debts or liabili- 
 ties before payment, conveyance, or transfer 
 to him, does not pass to his assignee in in- 
 solvency, under Mass. Pub. Stat. chap. 157, 
 44, as. limited by 46, since s; eh inter- 
 est is not property which the debtor "could 
 have lawfully sold, assigned, or conveyed, 
 or which might have been taken upon exe- 
 cution." Billings v. Marsh, 153 Mass. 311, 
 26 N. E. 100, 10: 7o4 
 
 64. Property held upon trusts for uses 
 of public worship, etc., by the archbishop 
 does not pass to his assignee in insolvency 
 b'y a deed of assignment made in his in- 
 dividual capacity for the payment of his 
 individual debts. Such an assignment 
 passes to the assignee no better or dif- 
 ferent title to the assigned property than 
 the assignor held; and cestuis que trust 
 may assert, as against the assignee and the 
 creditors of the assignor, the same rights 
 that they could against the latter if no as- 
 signment had been made. Mannix v. Pur- 
 cell, 46 Ohio St. 102, 19 N. jfi. 572, 2: 753 
 
 65. Where such trustee has made ad- 
 vances from his own private means, other- 
 wise than as donations, to assist in buying 
 or improving the trust property, he has a 
 claim upon the particular property so pur- 
 chased or improved, which passes to his 
 assignee in insolvency as individual as- 
 sets; and in a proceeding by the assignee to 
 subject the assets of his assignor to the 
 payment of his debts, it is competent for 
 the court to order an accounting of the 
 advances so made, with a view to subject- 
 ing such property to the satisfaction of 
 such claim. Id. 
 
 VIL Preferences by Insolvent. 
 
 a. In General. 
 Priority of State, see infra, 82. 
 
 Necessity of Surrender of Preferences 
 Made by Bankrupt, see Bankruptcy, 
 40-47. 
 
 Effect of Statute as to, on Right to Pre- 
 fer Creditors, see Fraudulent Convey- 
 ances, 24, 25. 
 
 See also supra, 5a. 
 
 For Editorial Notes, see infra, X. 8. 
 
 66. Any preference in a deed of trust 
 for the benefit of all creditors must be 
 plainly expressed. Goodman Bros. & Co. v. 
 Henry, 42 W. Va. 526, 26 S. E. 528, 35: 847 
 Effect on assignment. 
 
 See also supra, 41. 
 
 For Editorial Notes, see infra, X. 8. 
 
 67. That one of the preferred debts of a 
 firm was a due-note payable to the attor- 
 ney who drafted the assignment, and was 
 given to him by the firm "for services 
 rendered in drawing this deed of assign- 
 ment, and for advice and counsel in refer- 
 ence thereto, and services to be rendered 
 hereafter for the purpose of protecting and 
 upholding this assignment," does not render 
 tne assignment void per se. If there was 
 actual fraud, the fraud is matter for proof 
 aliunde, and if no fraud was intended, but 
 the amount of the note is more than the 
 services rendered and to be rendered are 
 worth, or if the assignee should not ac- 
 cept the attorney as his counsel in behalf 
 of the creditors, or should not need his 
 services, a proper deduction from the 
 amount can be made, and the note be left 
 to stand gooa against the assets for the 
 balance only. Drucker v. Wellhouse, 82 Ga. 
 129, 8 S. E. 40, 2: 328 
 
 68. An assignment for benefit of credit- 
 ors will be annulled by the preference 
 therein of an usurious debt, where there is 
 a statutory right of action to recover back 
 the entire interest when usury has been 
 paid. Hiller v. Ellis, 72 Miss. 701, 18 So. 
 95, 41 : 707 
 
 b. Validity of. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 
 257-259. 
 
 See also supra, 51. 
 For Editorial Notes, see infra, X. 8. 
 
 69. When a conveyance of property is 
 made in good faith directly to a creditor 
 in absolute executed payment of a debt, 
 the transaction lacks the essential element 
 of a trust, and cannot be brought within 
 the range of a law denying preferences in 
 insolvent assignments. Sandwich Mfg. Co. 
 v. Max, 5 S. D. 125, 58 N. W. 14,. 24: 524 
 
 70. A bank president who has induced the 
 cashier, to loan money to a minor whereby 
 it is lost, promising that it shall be repaid 
 before money which the minor owes him 
 individually, will not, as against the bank, 
 be permitted by a court of equity to take 
 advantage of a priority in his favor in an 
 assignment by the minor for the benefit of 
 creditors. Brown v. Farmer's & M. Nat. 
 Bank, 88 Tex. 265, 31 S. W. 285, 33: 359 
 
 71. Assignments to a mortgagee of bills,
 
 ASSIGNMENTS FOR CREDITORS, VIII. a. 
 
 159 
 
 notes, and accounts, being the proceeds of 
 the sales of the mortgaged property, can- 
 not be held to be made in fraud of the 
 South Carolina assignment act, although 
 made within the prohibited time before a 
 general assignment, where the mortgage 
 was made previous to that time and was 
 valid under such act. Akers v. Rowan, 33 
 S. C. 451, 12 S. E. 165, 10:705 
 
 By mortgage or bill of sale. 
 Following State Decisions as to, see Courts, 
 551. 
 
 72. A mortgage of real property, which 
 has not been deposited for record with the 
 recorder of the proper county before an 
 assignment of the property by the mort- 
 gagor for the benefit of his creditors takes 
 effect, is not a valid lien upon the property, 
 as against the assignee or the creditors; nor 
 does it become so by being subsequently 
 recorded. Betz v. Snyder, 48 On*o St. 492, 
 28 N. E. 234, 13: 235 
 
 73. A mortgage given in renewal of a 
 prior mortgage is not invalid as an unlaw- 
 ful preference, under the South Carolina as- 
 signment law, if the prior mortgage was 
 valid under such law; it is merely a change 
 of securities. Akers v. Rowan, 33 S. C. 451, 
 12 S. E. 165, 10: 705 
 
 74. A mortgage giving a preference, made 
 by an insolvent debtor within ninety days 
 before a general assignment, is, under the 
 South Carolina assignment act, a nullity, 
 having no vitality or lien. Id. 
 
 75. A statute prohibiting preferences in 
 an assignment for the benefit of creditors 
 is not violated by the execution of chattel 
 mortgages covering substantially all of the 
 debtor's property to secure only a portion 
 of his creditors, even if the debtor knew 
 that the consequence would be to prevent 
 his continuing business, and the mortgagees 
 at once took possession and commenced 
 foreclosure. Cutter v. Pollock, 4 N. D. 205, 
 59 N. W. 1062, 25: 377 
 
 76. An agreement for compromise between 
 a debtor and his creditors, between the date 
 of the execution of a chattel mortgage on 
 his stock and an assignment by him for 
 benefit of creditors, will prevent the mort- 
 gage being a part of the assignment, al- 
 though he said that if he was attached he 
 must executa an assignment, and his in- 
 ability to carry out his part of the com- 
 promise agreement resulted in an attach- 
 ment and assignment. Sabin v. Wilkins, 31 
 Or. 450, 48 Pac. 425, 37: 465 
 
 77. A chattel mortgage executed and de- 
 livered, no matcer how short a time be- 
 fore the making of an assignment for credit- 
 ors, is not invalid although the mortgagor 
 contemplated the making of the assignment, 
 where the mortgagee acted in good faith 
 in demanding and accepting 'the mortgage, 
 and without knowledge of the mortgagor's 
 purpose to make an assignment. Otten- 
 berg v. Corner, 40 U. S. App. 320, 76 Fed. 
 263, 22 C. C. A. 163. 34: 620 
 
 78. A creditor who does not know of his 
 debtor's intention to make a general assign- 
 ment for creditors at the time of taking a 
 
 bill of sale for an honest debt is not af- 
 fected by such intention, so as to make the 
 transfer a part of the subsequent assign- 
 ment and bring it within the New .York 
 act of 1887 restricting preferences in such 
 assignments. Manning v. Beck, 129 N. Y. 1, 
 29 N. E. 90, 14: 198 
 
 79. -A bill of sale which constitutes a 
 voluntary transfer or assignment of a stock 
 of goods for creditors, securing to one of 
 them a preference over all others, is in vio- 
 lation of Wis. Rev. Stat. 1693a. Fuller & 
 F. Co. v. McHenry, 85 Wis. 573, 53 N. W 
 896, 18: 512 
 
 By confession of judgment. 
 
 80. A confession of judgment, made in 
 contemplation of a general assignment for 
 creditors which immediately follows, must 
 be treated as part of the assignment in 
 respect to prohibited preferences. Berger 
 v. Varrelmann, 127 N. Y. 281, 27 N. E. 1065, 
 
 12: 808 
 
 81. The lack of the knowledge of a credit- 
 or, on receiving a confession of judgment, 
 that his debtor intends immediately to 
 make a general assignment, does not ex- 
 empt the judgment from the provisions of 
 the New York statute in respect to prefer- 
 ences in such assignments. Id. 
 
 . Rights, Duties, and Liabilities of 
 Creditors ; Priority and Release of Claims. 
 
 a. In General. 
 
 Right to Proceeds of Insurance by As- 
 signee, see Attachment, 26. 
 
 Priority of Claim against Receivers, see Re- 
 ceivers, III. 
 
 For Editorial Notes, see infra, X. 6. 
 
 82. The right of a state or a municipal- 
 ity, if any exists, to priority or preference 
 of payment from an insolvent's estate, can- 
 not be asserted after a general assignment 
 for creditors, which passes the title. State 
 v. Foster, 5 Wyo. 199, 38 Pac. 926, 29: 226 
 
 83. Creditors for whose benefit the debt- 
 or has made an assignment of all his prop- 
 erty are entitled, at all reasonable times and 
 in all reasonable ways, to be informed of 
 the progress of affairs and the state of the 
 business. State ex rel. Fourth Nat. Bank 
 v. Johnson, 103 Wis. 591, 79 N. W. 1081, 
 
 51: 33 
 
 Rights of creditor attacking assignment. 
 Right to Share in Distribution, see Election 
 
 of Remedies, 36. 
 For Editorial Notes, see infra, X. 6. 
 
 84. While a creditor is under no obliga- 
 tion to accept the provisions of an assign- 
 ment made for his benefit, yet he cannot 
 hold an assignment good in part and bad 
 in part; nor can he receive the benefits of 
 the assignment while ne is in actual hostil- 
 ity to it, claiming in the courts that it is 
 fraudulent and void, and refusing to accept 
 its benefits. McLaughlin v. Park City Bank. 
 22 Utah, 473, 63 Pac. 589, 54: 343
 
 160 
 
 ASSIGNMENTS FOR CREDITORS, VIII. a. 
 
 85. A creditor is not entitled to two in- 
 consistent, adverse, or c nflicting rights, and 
 if he accepts the benefit of an assignment 
 knowing the facts, he cannot, ordinarily, 
 impeach or repudiate it thereafter on the 
 ground that it is illegal and fraudulent; nor 
 can he, having repudiated it, take under its 
 provisions as other creditors who have ac- 
 cepted it. Id. 
 
 86. While an assignee, or a receiver as 
 his successor, holds the assigned property in 
 trust for such creditors as accept the provi- 
 sions of the assignment, the trust relation 
 cannot exist between the receiver and a 
 creditor who repudiates the assignment as 
 well as the trust relation. Id. 
 Rights of creditor unsuccessfully defending 
 
 assignment. 
 
 87. A preferred creditor, who has been 
 defending an assignment successfully at- 
 tacked as fraudulent, cannot share pro rata 
 with the successful creditors in the pro- 
 ceeds of the property reached. Hancock v. 
 Wooten, 107 N. C. 9, 12 S. E. 199, 11: 466 
 
 88. An order in an action by creditors 
 to set aside an assignment by their debtor 
 as fraudulent, which requires all creditors 
 to come in and make themselves parties to 
 the action, cannot be extended so as to per- 
 mit creditors who joined with the assignee 
 in endeavoring to uphold the assignment to 
 come in after the assignment has been set 
 aside, and prove their claims before the re- 
 ceiver so as to share pro rata with the 
 creditors who attacked the assignment. Id, 
 Right to have assignee account. 
 
 89. Any creditor for whose benefit a debt* 
 or has made a general assignment of his 
 property may demand that the assignee 
 make and file an account answering the re- 
 quirements of the statute, before he is re- 
 quired to make special objection to any par- 
 ticular items of such account. State ex 
 rel. Fourth Nat. Bank v. Johnson, 103 Wis. 
 591, 79 N. W. 1081, 51: 33 
 
 90. A trial judge has no discretionary 
 power to deny creditors for whose benefit 
 a general assignment has been made the 
 right to an account by, and examination 
 of, the assignee, given by statute, which is 
 beyond the control of mandamus. Id. 
 
 91. A general assignee for benefit of 
 creditors of one who purchased a stock of 
 goods, upon the agreement to pay the debts 
 of the vendor out of the purchase price, 
 does not take any of the property impressed 
 with a trust jn favor of the creditors of 
 such vendor, which they can enforce in 
 priority to claims of other creditors of the 
 assignor; but, as creditors of the assignor, 
 they may compel the assignee to show 
 whether any assets came into his hands 
 which are applicable to their claim. Voor- 
 hees, Miller, & Co. v. Porter, 134 N. C. 591 
 47 S. E. 31, 65: 736 
 
 92. If the purchaser of a stock of goods, 
 who undertakes to pay the debts of the 
 seller out of the purchase price, makes a 
 general assignment for benefit of his credit- 
 ors to one who has guaranteed perform- 
 
 ance of his undertaking, creditors of the 
 original vendor may bring suit against the 
 assignee, either as such, or as guarantor, 
 or in both capacities, and compel him to 
 show what funds came to his hands which 
 are applicable to payment of their claims. 
 
 IdL 
 Liability for goods purchased by trustee. 
 
 93. Creditors who join with an insol- 
 vent debtor in his deed of trust by which a 
 trustee is to continue the business as long 
 as he shall deem it for the interest of the 
 creditor^ to do so, with the entire manage- 
 ment and control of the business, and, when 
 he deems it best, to sell the property and 
 pay the claims of the creditors from the pro- 
 ceeds, are not the real proprietors of the 
 business, so as to become liable for goods 
 purchased by the trustee in the prose- 
 cution of the business, but their relation 
 to him is that of beneficiary and trustee, 
 and not that of principal and agent. Wells- 
 Stone Mercantile Co. v. Grover, 7 N. D. 460, 
 75 N. W. 911, 41: 252 
 Trusts;' liens. 
 
 See also supra, 86. 
 
 94. No trust can be imposed upon funds 
 or goods in the hands of an assignee for 
 creditors, even if they were held by the 
 assignor as an agent, unless they were kept 
 separate and can be identified. Arbuckle 
 Bros. v. Kirkpatrick, 98 Term. 221, 39 S. 
 W. 3, 36: 285 
 
 95. The proceeds of bonds belonging to a 
 decedent's estate, which had been sold un- 
 der a power of attorney from the adminis- 
 tratrix, can be recovered by her from the 
 estate of an insolvent broker who has re- 
 ceived them. Skiff v. Stoddard, 63 Conn. 
 198, 26 Atl. 874, 21: 102 
 
 96. Where an executor and trustee under 
 a will renders a final account and charges 
 himself with a certain amount as retained 
 by him to pay annuities, and never sets 
 this sum apart, but uses it in his business, 
 together with his own money, and after- 
 wards makes an assignment for benefit of 
 creditors, the annuitants cannot impress the 
 funds in the hands of the assignee with a 
 trust for the payment of their annuities. 
 Little v. Chadwick, 151 Mass. 109, 23 N. E. 
 1005, 7:570 
 
 97. Moneys collected by the trustees of an 
 insolvent, as the proceeds of sales made by 
 him as a commission merchant, and which 
 are capable of identification, belong to the 
 consignor. Drovers' & M. Nat. Bank v. 
 Roller, 85 Md. 495, 37 Atl. 30, 36: 767 
 
 98. The general assets in the hands of an 
 insolvent's trustee are not chargeable with 
 a lien in favor of one for whom the insol- 
 vent has sold goods on commission, when 
 the proceeds have been collected and spent 
 or dissipated by the insolvent before the 
 trustee is appointed. Id. 
 
 99. Notice to an assignee for creditors be- 
 fore execution of the assignment is not nec- 
 essary to make a lien on the assigned prop- 
 erty valid as against him, if notice is filed 
 as required by statute. Lockett v. Rob- 
 inson, 31 Fla. 134, 12 So. 67, 20: 67
 
 ASSIGNMENTS FOR CREDITORS, VIII. b. X. 
 
 161 
 
 b. Release of Claims. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 254. 
 
 Estoppel by Accepting Dividend, see Es- 
 toppel, 30. 
 
 Before Sharing in Benefits of Receivership, 
 see Receivers, 79. 
 
 See also supra, 42, 43; Principal and Agent, 
 16. 
 
 100. A statute providing for the release 
 of a claim in full by a creditor who accepts 
 a dividend under an assignment cannot ap- 
 ply to the- state or a municipality, under 
 a constitutional provision that such lia- 
 bility can be extinguished only by payment 
 into the proper treasury. State v. Foster, 
 5 Wyo. 199, 38 Pac. 926, 29: 226 
 
 101. The release by a creditor ^of all per- 
 sonal claim against an assignor for creditors 
 who makes a preference in favor of such 
 creditor will not make the creditor a pur- 
 chaser of the assignment if the assignor 
 was hopelessly insolvent and the release 
 was executed to uphold the assignment, and 
 not to procure either it or the preference, 
 ffiller v. Ellis, 72 Miss. 701, 18 So. 95, 
 
 41: 707 
 
 102. The release by creditors of personal 
 claims against the assignor in consideration 
 of a preference in their favor in an assign- 
 ment for benefit of creditors does not en- 
 title the assignee to hold the assigned prop- 
 erty as a purchaser for value for the satis- 
 faction of such claims, if he was a party 
 to a fraudulent preference which annulled 
 the assignment. Id. 
 
 103. A statute requiring a creditor ac- 
 cepting a dividend from an estate assigned 
 for benefit of creditors to release the assign- 
 or from further liability is not, as applied 
 to a partnership assignment, limited in its 
 effect to liability of the partnership alone, 
 but includes individual liability of the 
 partners as well. McCord-Brady Co. v. 
 Mills, 8 Wyo. 258, 56 Pac. 1003, 46: 737 
 
 IX. Liability of Assignor. 
 
 104. An insolvent who makes a deed of 
 trust for creditors is not liable on con- 
 tracts made by the trustee in administer- 
 ing the trust. Wells-Stone Mercantile Co. 
 y. Grover, 7 N. D. 460, 75 N. W. 911, 
 
 41 : 252 
 
 X. Editorial Notes. 
 
 See also Conflict of Laws, X. 16. 
 
 As to Insolvency, Generally, see Insolvency, 
 VI. 
 
 As to Bankruptcy, see Bankruptcy, V. 
 
 i. Generally. 
 
 For Conflict of Laws as to, and Effect of 
 Foreign Assignments, see 
 Conflict of Laws, X. 16. 
 
 What operates as. 10: 707.* 
 
 Assignment by bill of sale. 10: 707.* 
 L.R.A. Dig. 11. 
 
 Assignment by mortgage. 10: 708.* 
 By chattel mortgage. 10: 709.* 
 Is a preference by mortgage or sale an as- 
 signment for creditors. 
 37: 337. 
 First and last days in computing time in 
 
 matters of. 49: 240. 
 
 Garnishment of claim to surplus under as- 
 signment for creditors. 
 59: 372. 
 By firm or partner. 2: 328;* 6:569;* 10: 
 
 521.* 
 
 By surviving partner. 6: 569.* 
 Power of one partner to assign partnerEip 
 real estate for benefit of 
 creditors. 28: 97. 
 
 Necessity of participation of assignee or 
 beneficiaries in fraud of 
 assignor to invalidate as- 
 signment. 32: 44. 
 2. Necessity of acceptance. 
 Assent and presumption. 24: 369. 
 
 General doctrine. 24: 369. 
 Assent presumed. 24: 370. 
 In general. 24: 370. 
 Statutory presumption. 24: 373. 
 Extent of presumption. 24: 374. 
 Rebuttal of presumption. 24: 374. 
 In general. 24: 374. 
 Conditions imposing a release. 24: 
 
 375. 
 
 Other conditions. 24: 375. 
 Assignments hindering, delaying, or de- 
 frauding creditors. 24 : 
 376. 
 Assignment direct to creditors. 24: 
 
 376. 
 
 Express assent. 24: 376. 
 Sufficiency of assent. 24: 378. 
 Time of assent. 24: 379. 
 Effect of assent. 24: 379. 
 In general. 24: 379. 
 After attack. 24: 380. 
 Effect of assignment. 24:380. 
 The Massachusetts doctrine. 24: 381. 
 Principles of. 24: 381. 
 Time of assent. 24: 384. 
 Comity. 24: 384. 
 English decisions. 24: 384. 
 3. Schedule. 
 Annexing schedule; sufficiency of schedule 
 
 and affidavit. 12: 809.* 
 Necessity .of annexing schedule to assign- 
 ment. 3: 139;* 6: 109.* 
 Necessity that schedule be full and com- 
 plete. 3: 140;* 6: 109.* 
 Necessity that schedule be sworn to. 3: 
 
 140.* 
 Effect of defective affidavit to schedule. 3: 
 
 140.* 
 
 Fraudulent assignment for creditors as 
 ground of attachment. 
 30: 480. 
 
 To whom notice of protest or nonpayment 
 of bill or note should be 
 given after appointment 
 of assignee. 61: 900. 
 4. What passes by; assets. 
 What does not pass. 3: 822.* 
 Whether cause of action for personal in- 
 juries passes to assignee. 
 44: 180.
 
 162 
 
 ASSIGNMENTS OF ERROR ASSOCIATIONS. 
 
 Life insurance as assets of bankrupt. 50 
 
 33. 
 Transfer of trademark by insolvency as 
 
 signment. 46: 541. 
 Effect of assignment by husband upon wife' 
 
 right of dower. 18: 77. 
 5. As affecting right of set-off. 
 Right of debtor of insolvent bank to se 
 
 off demand. 2: 273.* 
 Right of bank to set off unmatured claim 
 against deposit account o 
 insolvent debtor. 15: 710 
 Assignee's right of set-off in case of bank 
 
 ruptcy. 55: 54. 
 
 Right to set off insolvent's claim in hand 
 of assignee for creditors 
 23: 313. 
 
 Right to set off, against insolvent, claims 
 purchased after insol 
 ' vency. 21 : 280. 
 
 Effect of immaturity of claim at time in 
 solvency occurs upon righi 
 of set-off. 17: 456. 
 6. Rights and duties of creditors. 
 Attachment of property in hands of as- 
 signee for creditors. 26: 
 593. 
 
 Rule of distribution of estate among cred- 
 itors. 8: 458.* 
 
 Ripht to dividends. 11: 327.* 
 Right of creditor to participate under as- 
 signment or deed of trust 
 for the benefit of credit- 
 ors which he has repudi- 
 ated. 54: 343. 
 
 When creditor has successfully assailed as- 
 signment or deed of trust. 
 o4: 343. 
 
 When creditor's attack on assignment or 
 deed of trust has failed. 
 54: 345. 
 
 When creditor's attack on assignment or 
 deed of trust is still pend- 
 ing and undetermined. 
 54: 350. 
 
 7. Rights and duties of assignee. 
 Right of assignee for creditors to compro- 
 mise claims. 23: 578. 
 Statutory provisions. 23: 579. 
 Duty or power of assignee as to fraudulent 
 
 transfers. 5: 140.* 
 
 Right of assignee fo~ creditors to question 
 validity of attachment. 
 35: 776. 
 
 Injunction in favor of assignee for creditors 
 to prevent execution sale. 
 30: 124. 
 
 Liability for rent of premises occupied by 
 receiver or assignee for 
 creditors. 59: 673. 
 
 Assignee for creditors as real party in in- 
 terest by whom action 
 must be brought. 64: 610. 
 Collection of notes by assignee of creditors 
 of mutual fire insurance 
 company. 32: 486. 
 
 Right of assignee to have judgment against 
 assignor set aside. 54- 
 762. 
 
 Power to accept notice of protest. 61: 900. 
 Bond of assignee. 7:403;* 11:852.* 
 
 8. Preferences, generally. 
 
 Right of insolvent debtor to make prefer- 
 ences, generally. 11:466. 
 
 Preference by mortgage or sale as an as- 
 signment. 37: 337. 
 
 Necessity of naming preferred creditors in 
 an assignment. 8: 693. 
 
 Assignment with preferences. 6: 571; 12: 
 808. 
 
 In case of partnership assignment. 10: 
 523. 
 
 Of claims of laborers. 18: 305. 
 
 9. Effect of preferring usurious debt in 
 . assignment. 
 
 General doctrine. 41: 707. 
 
 Deed of assignment rendered void. 41: 708. 
 
 Preference of actual debt sustained, but 
 usury rejected. 41:709. 
 
 Preference of usurious debt sustained gen- 
 erally. 41: 710. 
 
 Who may, and who may not, urge the usu- 
 rious character of the debt 
 preferred. 41: 711. 
 
 ASSIGNMENTS OF ERROR. 
 
 On Appeal, see Appeal and Error, IV. p. 
 On Petition for Certiorari, see Certiorari, 
 36. 
 
 ASSISTANT ROAD MASTER. 
 
 As Fellow Servant, see Master and Serv- 
 ant, 576, 577. 
 
 ASSOCIATIONS. 
 
 I. In General. 
 II. Members. 
 
 a. In General. 
 
 b. Right to Membership; Expul- 
 
 sion. 
 III. Editorial Notes. 
 
 STote by Member of, see Bills and Notes, 22. 
 Note by, Effect of Seal on, see Bills and 
 
 Notes, 57. 
 As Beneficiary or Trustee of Charity, see 
 
 Charities. 
 
 Refusal of, to Deal with Person, see Com- 
 pulsory Service, 2, 3. 
 llegal Combinations of, see Conspiracy, 
 boycott by, see Conspiracy, I. c, 2. 
 By-Law to Prevent Competition, see Con- 
 spiracy, 155. 
 Equal Protection and Privileges as to, see 
 
 Constitutional Law, III. a, 3. 
 Of Plumbers, Matters Not Germane to Pur- 
 pose of Association, see Corporations, 
 21. 
 urisdiction Over, see Courts, I. d; VI. 
 
 3. 
 -imitation of Action as to Offices in, see 
 
 Limitation of Actions, 223. 
 )uo Warranto against, see Quo Warranto, 7. 
 Title of Statute as to, see Statutes, 188. 
 Benevolent Societies, see Benevolent Socie- 
 ties.
 
 ASSOCIATIONS, I., II. a. 
 
 163 
 
 Building and Loan Associations, see Build- 
 ing and Loan Associations. 
 
 Itonip Meeting Associations, see Camp Meet- 
 ing Associations. 
 
 Exchanges, see Exchanges. 
 
 Investment Associations, see Investment 
 Associations; Receivers, 21. 
 
 .Partnership Association, see Partnership, 
 VIII. 
 
 Press Associations, see Press Associations. 
 
 Railroad Relief Associations, see Railroad 
 Relief Asociations. 
 
 Religious Societies, see Religious Societies. 
 
 Syndicate, see Syndicate. 
 
 I. In General. 
 
 1. By-laws of an incorporated nonprofit 
 association, like those of all other^ corpora- 
 tions, must be limited to the powers enum- 
 erated in the charter, plus those necessarily 
 implied from the object of incorporation. 
 Bailey v. Master Plumbers' Asso. 103 Tenn. 
 99, 52 S. W. 853, 46: 561 
 
 2. A by-law of a liverymen's association 
 which binds the members not to do business 
 with any person who does not patronize its 
 members exclusively, and prevents any of 
 them from letting a hearse to a private par- 
 ty for a funeral where the undertaker in 
 charge of it is reputed to patronize non- 
 union members, ' or to any person whose 
 family for the occasion patronizes a non- 
 union livery, is unlawful as against pub- 
 lic policy. Gatzow v. Buening, 106 Wis. 1, 
 81 N. W. 1003, 49:475 
 
 3. A by-law of a land association to which 
 real estate is conveyed for the purpose of 
 having it opened up for building purposes', 
 enacted in accordance with its contract with 
 the grantor that lots shall not be sold or 
 leased without pledge to build speedily, is 
 for the benefit of the grantor and the asso- 
 ciation, and may be waived by them. Pea- 
 body weights Co. v. Willson, 82 Md. 186, 
 32 Atl. 386, . 36 : 393 
 
 4. A provision in a by-law of a land as- 
 sociation to which property is conveyed for 
 the purpose of being opened up for building 
 lots, that the houses shall be placed, a cer- 
 tain distance from the street, and that the 
 plans of houses shall be approved by the di- 
 rectors, is for the benefit of purchasers, as 
 well as of the association, and cannot be 
 waived by the association. Id. 
 
 5. A camp-meeting association which has 
 made perpetual leases of cottages on its 
 grounds, without any restriction except 
 that they are "subject to such rules and 
 regulations as the association may from 
 time to time adopt," and which also owns 
 a store on the grounds 1 which it has leased 
 for a rental, cannot impose a revenue tax 
 on the business of taking orders for fruit, 
 groceries, and provisions from cottagers up- 
 on the grounds of the association. North- 
 port Wesleyan Grove Camp Meeting Asso. 
 v. Perkins, 93 Me. 235, 44 Atl. 893, 48: 272 
 Dissolution; property rights. 
 Dissolution of Benefit Societies see Benev- 
 olent Societies, V. 
 
 Annulhnent of Franchise of, see Corpora- 
 tions, 751. 
 
 6. The general assembly of an unincor- 
 porated organization cannot be invested by 
 the constitution of the order with govern- 
 mental power which will enable it by its 
 own edict, without a hearing, not only to 
 dissolve a local assembly, but devest the 
 latter of its title to property derived from 
 its own members, and vest it in itself. 
 Wicks v. Monihan, 130 N. Y. 232, 29 N. E. 
 139, 14: 243 
 
 7. Furniture purchased with the proceeds 
 of an Odd Fellows fair, and placed by the 
 committee of the fair in the building of 
 an Odd Fellows hall association, which is 
 a corporation, can be recovered in replevin 
 by such corporation when removed by the 
 trustees of voluntary associations called 
 "Encampments of Odd Fellows," who leased 
 a portion of the building and used the fur- 
 niture soon after it was placed therein, 
 where there is nothing to show more defi- 
 nitely any title to the property. Odd Fel- 
 lows Hall Asso. v. McAllister, 153 Mass. 292, 
 26 N. E. 862, 11: 172 
 
 8. The arbitrary and illegal deposition of 
 the president of a voluntary benevolent as- 
 sociation cannot be relied upon by him sev- 
 eral months afterwards as a ground for 
 dissolving the association, if at the time 
 he submitted to the action without any at- 
 tempt to enforce his rights either under the 
 constitution of the association or in the 
 courts of law. Industrial Trust Co. v. 
 Green, 17 R. I. 586, 23 Atl. 914, 17: 202 
 
 9. A vote to dissolve a voluntary asso- 
 ciation is ineffectual if it is passed at a 
 special meeting called by one who has been 
 deposed from the presidency, and whose con- 
 tinued claim to the office is neither known 
 to nor recognized by the society, and the 
 notices of the meeting do not specify its 
 object. Id. 
 
 II. Members, 
 a. In General. 
 
 As to Membership in Benefit Society, see 
 Benevolent Societies, IV. 
 
 Estoppel of Member of, see Estoppel, 138, 
 152. 
 
 Evidence of Nonmeinbership, see Evidence, 
 2022. 
 
 In Exchange or Board of Trade, see Ex- 
 changes, 6--10. 
 
 Injunction against Illegal Assessments, see 
 Injunction, 239-241. 
 
 Blacklisting Member, see Libel and Slander, 
 115. 
 
 Admission of Membership, see Pleading, 112. 
 
 For Editorial Notes, see infra. III. 
 
 10. The contractual relation between an 
 association and one of its members is that 
 which exists by virtue of the rules of the 
 association, and the contract is not violated 
 so long as the association acts towards him 
 in accordance with those rules. Lawson v. 
 Hewell, 118 Cal. 613, 50 Pac. 763, 49: 400 
 
 11. Rules enacted by a voluntary asso-
 
 164 
 
 ASSOCIATIONS, II. b. 
 
 ciation for the government of its members 
 must be conformed to by it in all matters 
 relating to it in disciplining them. Green 
 v. Chicago Bd. of Trade, 174 111. 585, 51 N. 
 E. 599, 49 : 365 
 
 12. The by-laws to which a member of a 
 voluntary association agrees to submit are 
 such as are authorized by the nature of the 
 association and the laws of the country, and 
 must not be contrary to the policy of -the 
 law, or unreasonable. Id. 
 
 13. By-laws of a plumbers' association 
 which compel every member to make week- 
 ly reports in open meetings of the work done 
 by him, and to pay fixed sums for certain 
 items of plumbing work, if done in compe- 
 tition with other members, are void on 
 grounds of public policy, because tending to 
 the destruction of free and natural compe- 
 tition and to the unreasonable increase of 
 prices to customers. Bailey v. Master 
 Plumbers' Association, 103 Tenn. 99, 52 S. 
 W. 853, 46: 561 
 
 14. The defense that a by-law of a 
 plumbers' association is illegal because tend- 
 ing to restrict competition and enhance 
 prices may be set up in an action by the 
 association against a member for sums 
 
 ' which the by-law requires him to pay for 
 work done in competition with other mem- 
 bers although the defendant has himself 
 received the sums sued for from his custom- 
 ers on account of the by-law, in addition to 
 what he would have charged them except 
 for that. Id. 
 
 15. The legal right of each individual 
 plumber to purchase supplies and materials 
 from any dealer or dealers he may choose 
 will not justify a by-law of an association 
 of plumbers which permits them to make 
 purchases only from such dealers as will 
 sell to members thereof exclusively, as the 
 individual right is radically different from 
 the binding action, the former being free- 
 dom, the latter restraint. Id. 
 Property rights of. 
 
 See also supra, 6; infra, 23, 29, 35. 
 
 16. The incorporation of a community 
 holding all property in common, even if it 
 should be regarded as a dissolution of the 
 original community, entitling the members 
 to a distribution of the property, gives no 
 right to share therein to one who had pre- 
 viously withdrawn frqm its membership. 
 Burt v. Oneida Community, 137 N. Y. 346, 
 33 N. E. 307, 19: 297 
 
 17. A contract between the members of 
 an unincorporated association or commun- 
 ity, by which the property of each becomes 
 an inseparable part of the capital held in 
 common by the members of the community 
 as one large family, no part of which can 
 be demanded by the member on withdrawal, 
 is not in contravention of any law regulat- 
 ing the possession, ownership, or tenure of 
 property. Id. 
 Liability. 
 
 18. A member of a voluntary association 
 is responsible for the acts of its officers in 
 placing the name of another member on 
 the black list, as provided by the by-laws 
 of the association, when he sent them the 
 
 name for that purpose. Weston v. Barni- 
 coat, 175 Mass. 454, 56 N. E. 619, 49: 812 
 
 19. Individual members of an unincorpo- 
 rated association are liable for contracts 
 made in the name of the association, with- 
 out regard to the question whether they 
 so intended, or so understood the law, and 
 even if the other party contracted in form 
 with the association, and was ignorant of 
 the names of the individual members com- 
 posing it. Lawler v. Murphy, 58 Conn. 294, 
 20 Atl. 457, 8: 113 
 
 20. Knowledge and approval by the mem- 
 bers of a law and order league, of the re- 
 tainer by its officers of a lawyer to prose- 
 cute violations of the law, will not render 
 them personally liable for the services if 
 they had no reason to suppose the employ- 
 ment was on their credit, bu-t expected the 
 expenses to be met by individual contribu- 
 tions placed at the disposal of their officers 
 for that purpose. McCabe v. Goodfellow, 
 133 N. Y. 89, 30 N. E. 728, 17 : 204 
 
 21. An action cannot be maintained by a 
 lawyer against the treasurer of a law and 
 order league, under a statute authorizing a 
 suit against the treasurers of voluntary as- 
 sociations when actions might be maintained 
 against all the associates by reason of their 
 joint liability, to recover for services ren- 
 dered under contract with its officers in 
 enforcing the laws which the society was 
 organized to enforce, if there is nothing 
 in the organization or methods of the league 
 to show an intention on the part of the 
 members to become personally liable for 
 debts of that character, and no express au- 
 thority to the officers to bind the members 
 for such services appears. Id. 
 
 b. Right to Membership; Expulsion. 
 
 Expulsion from Benefit Society, see Benev- 
 olent Societies, 38a-52. 
 
 Power of Courts, as to, see Courts, 219. 
 
 Review by Court of Expulsion, see Courts, 
 225-228. 
 
 Right to Expel Member of Political Com- 
 mittee, see Elections,- 325. 
 
 In Exchange or Board of Trade, see Ex- 
 changes, 6-9. 
 
 Injunction against Expulsion, see Injunc- 
 tion, 230-238. 
 
 Mandamus to Compel Reinstatement, see 
 Mandamus, 194, 195. 
 
 For Editorial Notes, see infra, III. 2. 
 
 22. The resolution of the community, that 
 a member has severed his connection with 
 it and can no longer be recognized as a 
 member does not constitute an expulsion of 
 which he can complain, where this is based 
 upon his voluntary withdrawal in violation 
 of his contract and without recognizing the 
 established practice of the community with 
 reference to outgoing members. Burt v. 
 Oneida Community, 137 N. Y. 346, 33 N. E. 
 307, 19:297 
 
 23. The rights of membership and the 
 privilege of returning cannot be reserved by 
 a member of a community in which all prop- 
 erty is held in common and all members 
 work without wages, when he withdraws
 
 ASSOCIATIONS, III; ASSUMPSIT. 
 
 165 
 
 and eaters the employment of an outride 
 building establishment on a salary, in vio- 
 lation of his obligation to the community 
 and without consent of its members, al- 
 though he announces that his withdrawal is 
 only temporary pending an adjustment of 
 differences 1 , and that he shall insist upon 
 his rights as a member. Id. 
 
 24. A resolution of the Masonic Order 
 denying membership to saloon keepers ap- 
 plies to existing members if they continue 
 thereafter in that business. Ellerbe v. 
 Faust, 119 Mo. 653, 25 S. W. 390, 25: 149 
 
 25. Denial of guilt does not affect the 
 right of a voluntary association to proceed 
 to try one of its members for an alleged of- 
 fense which is clearly in violation of its 
 by-laws. Green v. Chicago Bd: of Trade, 
 174 111. 585, 51 N. E. 599, 49:365 
 
 26. The directors of a voluntary asso- 
 ciation are not deprived of jurisdiction to 
 try a member of the association I5y the fact 
 that the charges are preferred by some of 
 tlioir number. Id. 
 
 27-28. The members of a social club may 
 regulate through their by-laws- the causes 
 for the expulsion of members and the man- 
 ner of effecting the same, when such power 
 has been expressly conferred upon them by 
 the legislature. Com. ex rel. Burt v. Union 
 League, 135 Pa. 301, 19 Atl. 1030, 8: 195 
 
 29. The enforcement of the provisions of 
 the charter and by-laws of a social club, 
 which provide for the expulsion of members, 
 in the case of a person who became a mem- 
 ber after their adoption, can deprive him of 
 no legal constitutional right on the ground 
 that his personal franchise and property 
 rights are subject to the action of a ma- 
 jority of the members. Id. 
 
 30. By-laws of a social club providing for 
 the expulsion of members guilty of acts or 
 conduct which the board of directors shall 
 deem disorderly or injurious to the inter- 
 ests or hostile to the objects of the club 
 are not unreasonable, arbitrary, or oppres- 
 sive, nor do they violate any principle of 
 natural justice. Id. 
 
 31-32. Failure of a by-law to designate 
 and define the various and specific acts 
 which will be deemed disorderly within 
 the rule subjecting members of a social 
 club to expulsion therefor, the determi- 
 nation of which question is left to the board 
 of directors, does' not render the by-law il- 
 legal. Id. 
 What will authorize expulsion. 
 
 33. A minor offense is sufficient to justify 
 the expulsion of a member from a social 
 club, if the club acts in good faith, and 
 exercises only the powers conferred by its 
 charter. Com. ex rel. Burt v. Union League, 
 135 Pa. 301, 19 Atl. 1030, 8: 195 
 
 34. Acts defaming members for reasons 
 connected with the society, causing dissen- 
 sions and disorders in the midst of the as- 
 sociation, within the meaning of a by-law 
 of a secret society, authorizing the expul- 
 sion of members, are committed by the pub- 
 lication of an article by members appointed 
 upon a committee to conduct a celebration, 
 charging that they were compelled to re- 
 
 sign because of unjust and stupid attacks 
 by their fellow members, who were incap- 
 able of executing such an exterprise, but, be- 
 cause of their illiteracy, were compelled to 
 commit the matter to nonmembers ; and that 
 since the contemplated celebration, because 
 of the unreasonableness of the majority, 
 brings the society to dishonor, the persons 
 making the publication do not recognize it. 
 Del Ponte v. Societa Italiana di Marconi 
 (R. I.) 60 Atl. 237, 70: 188 
 
 Interest preventing expulsion. 
 
 35. The interest of a member in tne prop- 
 erty of an association, when merely inci- 
 dental to his membership, will not prevent 
 his expulsion if his right of membership 
 has been forfeited; nor will it give the 
 courts any right to prevent the investiga- 
 tion of the charge against him, or to deter- 
 mine its sufficiency. Lawson v. Hewell, 118 
 Cal. 613, 50 Pac. 763, 49:400 
 
 III. Editorial Notes. 
 
 i. Generally. 
 
 Benefit association as an insurance com- 
 pany. 38: 33. 
 
 Liability of members of mutual fire insur- 
 ance companies. 32: 481 
 
 How far members bound by rules of. 8: 
 177.* , 
 
 Infant as member of co-operative insurance 
 (company. 17 : 547. 
 
 When held to be partnerships. 3 : 430.* 
 
 Power and authority as partnerships. 17: 
 204.* 
 
 Effect of subsequent incorporation to make 
 valid a gift to an unin- 
 corporated association. 
 14:410. 
 
 Relations and rights of syndicate members. 
 40: 216. 
 
 2. Expulsion. 
 
 Effect of expulsion from a society to de- 
 stroy right to insurance 
 connected therewith. 25: 
 149. 
 
 Mandamus to obtain reinstatement in club 
 or social organization. 
 8: 195. 
 
 ASSUMPSIT. 
 
 I. In General. 
 II. Money Paid or Received. 
 
 a. Money Paid. 
 
 b. Money Received. 
 
 c. Recovering Back Payments. 
 
 1. In General. 
 
 2. Of Assessment or Taxes. 
 
 3. Public Money. 
 III. Editorial Notes. 
 
 Against Servant or Agent, see Case, 8. 
 
 Implied Promise to Pay for Benefit, see Con- 
 tracts, 8. 
 
 For Breach of Contract by Telegraph Com- 
 pany, see Election of Remedies, 27.
 
 J66 
 
 Changing to Bill in Equity, see Equity, 75. 
 
 For Negligence of Physician, see Physicians 
 and Surgeons, 58. 
 
 By Subscriber for Establishment of Manu- 
 factory, see Subscription. 
 
 ASSUMPSIT, I. H. b. 
 
 I. In General. 
 
 1. Assumpsit will not lie to recover per 
 diem fees of a witness for the time of his 
 detention to secure his attendance, but the 
 appropriate proceeding is by mandamus, if 
 anything is due him. Hall v. Somerset 
 County, 82 Md. 618, 34 Atl. 771, 32: 449 
 
 2. A recovery upon a quantum meruit can- 
 not be had for literary services under a con- 
 tract which provides that compensation 
 therefor is to be derived solely from a di- 
 vision of profits from sales after publica- 
 tion. Keyser's Appeal, 124 Pa. 80, 16 Atl. 
 577, 2: 159 
 
 3. No recovery can be had for goods deliv- 
 ered by one corporation in payment of an in- 
 valid subscription to the stock of another, 
 although in ignorance of the law affecting 
 the contract. Valley R. Co. v. Lake Erie 
 Iron Co. 46 Ohio St. 44, 18 N. E. 486, 
 
 1: 412 
 
 4. If one furnishes goods upon an execu- 
 ted consideration, he cannot maintain an ac- 
 tion to recover for their price, although the 
 original agreement was void under the stat- 
 ute of frauds. Starratt v. Mullen, 148 Mass. 
 570, 20 N. E. 178, 2: 697 
 
 II. Money Paid or Received, 
 a. Money Paid. 
 
 Sufficiency of Pleading, see Pleading, 218. 
 See also Banks, 200. 
 
 5. A person who pays money under the 
 demand of another, with full knowledge of 
 all the facts, cannot afterwards recover. 
 Howard v. Mutual Reserve Fund L. Asso. 
 125 N. C. 49, 34 S. E. 199, 45: 853 
 
 6. A stranger paying tho debt of another 
 without request cannot smtain an action at 
 law against such other, unless he has in 
 some way ratified such pavment. Crumlish 
 v. Central Improv. Co. 38 W. Va. 390, 18 S. 
 E. 456, 23: 120 
 
 7. The payment by one receiving a nego- 
 tiable promissory' note indorsed for collec- 
 tion, of the amount thereof out of his own 
 funds, if made with the assent of the maker, 
 renders the latter liable as for money paid to 
 his use, or on the note as a reissued note; 
 but as to a maker who does not assent to 
 such payment there is no liability. People 
 & Drovers' Bank v. Craig, 63 Ohio' St. 374. 59 
 X. E. 102, 52: 872 
 
 8. The sum paid by a broker for corn pur- 
 chased by him to fill a contract, in conform- 
 ity with rules and usages of the board oi 
 trade, whereby the principal is under an im- 
 plied obligation to indemnify him, is a debl 
 ooverable upon common money counts as 
 
 momrv advanced to defendant's use. Perin 
 v. Parker, 126 111. 201, 18 N. E. 747, 2: 33ff 
 
 9. Money subscribed and paid as a dona- 
 ;ion to a manufacturing company in order 
 -jo be used in buildings on lands donated to 
 it, in consideration of the removal of a 
 manufacturing business to that place, can 
 ye recovered back by the subscriber for fail- 
 ure of consideration if the company fails 
 to move the business to that place as agreed, 
 although the money has been expended ih 
 the erection of the contemplated buildings. 
 Ft. Wayne Electric Light Co. v. Miller, 131 
 Ind. 499, 30 N. E. 23, 14:804 
 
 10. A lessee which has for nine years paid 
 taxes under a system requiring return to be 
 made before demanding reimbursement or 
 deduction from the rental cannot recover 
 the amounts 1 thus paid from the lessor. 
 Western & A. R. Co. v. State (Ga. Special 
 Judicial Commission) 14: 438 
 
 b. Money Received. 
 
 Equity Jurisdiction to Compel Payment 
 
 Over, see Equity, 22. 
 Right of De Jure Officer to Recover Salary 
 
 (Paid to De Facto Officer, see Officers, 
 
 227, 228. 
 See also Principal and Agent, 57. 
 
 11. One who lends money to a corpora- 
 tion upon the agreement of the latter to 
 repay the loan in preferred stock to be sub- 
 sequently issued may maintain an action 
 to recover back the money loaned, where the 
 corporation, at the time, had no author- 
 ity to issue the stock. Anthony v. House- 
 hold Sewing-Mach. Co. 16 R. I. 571, 18 Atl. 
 176. 5:575 
 
 12. An action for money had and re- 
 ceived will not lie against a corporation in 
 favor of one who has loaned money to its 
 treasurer for the company in the mistaken 
 belief that he had authority to borrow it, al- 
 though the money was used in paying debts 
 of the corporation, where the treasurer was 
 a defaulter, having embezzled money which 
 otherwise would have paid such debts, and 
 may reasonably be presumed to have bor- 
 rowed the money to cover up his default and 
 escape detection. Craft v. South Boston R. 
 Co. 150 Mass. 207, 22 N. E. 920, 5: 641 
 
 13. Restitution may be had by an action 
 based on an implied promise in favor of 
 plaintiffs in an attachment suit, where mon- 
 ey obtained by the levy was paid over by 
 the sheriff before judgment to subsequent 
 lienors who had procured a vacation of the 
 attachment, if the attachment is afterwards 
 held valid on appeal, and the plaintiffs have 
 obtained judgment and issued execution 
 which is returned unsatisfied. Haebler v. 
 Myers, 132 N. Y. 363, 30 N. E. 963, 15: 588 
 
 14. A public officer receiving fees to which 
 he is not entitled, from a party whom he 
 knows to be ignorant of the law, without 
 informing him that he is not bound to pay, 
 receives money fraudulently, and is liable 
 to an action for money had and received. 
 Marcotte v. Allen, 91 Me. 74, 39 Atl. 346, 
 
 40: 185
 
 ASSUMPSIT, II. c, 1. 
 
 167 
 
 Purpose for which money received. 
 Loan to Married Woman, see Husband and 
 Wife, 31. 
 
 15. The only legal remedy to compel an 
 agent to account for funds furnished him for 
 an illegal purpose is an action in assumpsit 
 to recover so much of the money as was not 
 actually used by him in carrying such pur- 
 pose into effect*. Singleton v. Benton, 114 
 Ga. 548, 40 S. E. 811, 58: 181 
 
 16. An action for money had and received 
 will lie to recover the consideration paid for 
 land, where the purchaser is entitled to re- 
 scind the contract, and has tendered a suffi- 
 cient reconveyance. McKinnon v. Vollmar, 
 75 Wis. 82, 43 N. W. 800, 6: 121 
 
 17. Advancements to a contractor, made 
 by the owner of a building, may be recovered 
 for failure of consideration, on its destruc- 
 tion by fire before completion, atyhough the 
 contractor can set off his claim on an im- 
 plied assumpsit for the value of what was 
 already done, where he is discharged by the 
 fire and entitled to such compensation be- 
 cause the contract was for part only of the 
 labor and materials. Butterfield v. Byron, 
 153 Mass. 517, 27 N. E. 667, 12: 571 
 
 18-19. Where money was 1 advanced to a 
 person to be used by him in raising sunken 
 treasure, upon his promise to retain a large 
 sum if successful, and it appeared that the 
 further prosecution of the work by him had 
 become impossible, it was held that he must 
 account for the moneys received, and, after 
 certain allowances, pay back the unexpended 
 balance. Thomas v. Hartshorne (N. J. 
 Err. & App.) 45 N. J. Eq. 215, 16 Atl. 
 916, 3: 381 
 
 20. An action of assumpsit may be main- 
 tained by the owner of stolen money to re- 
 cover the amount thereof against one with 
 whom it was deposited by the thief, and 
 who, after notice of the owner's rights, paid 
 it upon the thief's order to third persons. 
 Hindmarch v. Hoffman, 127 Pa. 284, 18 Atl. 
 14, 4: 368 
 
 21. A man who places checks in the hands 
 of another to be cashed for his benefit, al- 
 though with the original intent to defraud 
 creditors, is entitled to recover the money 
 collected on them, in an action for the bene- 
 fit of one to whom he has assigned in con- 
 sideration of a debt, according to the compo- 
 sition with creditors, after he has demanded 
 it for that purpose. Carll v. Emery, 148 
 Mss. 32, 18 N. E. 574, 1: 618 
 
 '-2. Money paid to a broker for effecting 
 the sale of real estate in ignorance of the 
 fact that he is also the agent of the pur- 
 chaser may be recovered back, even if the 
 sale is an advantageous one. Cannell v. 
 Smith. 142 Pa. 25. 21 Atl. 793, 12: 395 
 
 23. A finding of fact that the president of 
 a bank made a wrongful and unauthorized 
 appropriation of its funds for payment of 
 his own debts cannot be overcome in favor 
 of persons who received them, by the fact 
 that entries exist in the bank's books which 
 tend to show the contrary, since their liabil- 
 ity to refund depends, not upon the fraud- 
 ulent bookkeeping, but upon the misappro- 
 priation of the money, to which they were 
 
 parties, in regard to which they were bound 
 to inquire of the directors, and not look to 
 the books* Lamson v. Beard, 36 C. C. A. 
 56, 94 Fed. 30, 45 : 822 
 
 24. An action for money had and received 
 will not lie against a municipality in favor 
 of a bona fide purchaser of its bonds issued 
 without authority to a railroad corporation 
 of another state, in payment of a stock sub- 
 scription which, it had no power to make, 
 although the proceeds of the bonds were used 
 in constructing tracks and depot in the mu- 
 nicipality, fftid it has received the stock cer- 
 tificates, while it might have issued such 
 bonds to a domestic corporation in payment 
 of a subscription to stock, Travelers' Ins. 
 Co. v. Johnson City, 40 C. C. A. 58, 99 Fed. 
 663, 49 : 123 
 Privity between parties. 
 
 25. An attorney is not subject to an ac- 
 tion for money received by the one sending 
 him the money in response to a telegram 
 from his client, but who was not a party to 
 a contract befween the attorney and client 
 under which he retained the money. Atwell 
 v. Jenkins, 163 Mass. 362, 40 N. E. 178, 
 
 28 : 69 t 
 
 26. No privity between the parties, am! 
 no promise to pay, other than that wind- 
 is implied, is necessary to sustain a right of 
 action in assumpsit when defendant has 
 money in his hands belonging to plaintiff 
 that he has no right conscientiously to ro 
 tain. Soderberg v. King County, 15 Wash. 
 194, |5 Pac. 785, 33: 670 
 
 c. Recovering Back Payments. 
 1. In General. 
 
 By Bank from Bona Fide Holder of Check, 
 see Banks, 110. 
 
 Of Amount Paid on Forged Check, see 
 Banks, 136-140, 142, 145, 166-168; 
 Checks, 45. 
 
 Recovery Back of Money Deposited with 
 Stakeholder, see Betting, 2. 
 
 For Amount Paid on Note, see Bills and 
 Notes, 101. 
 
 Of Money Paid on Draft Attached to B^ill of 
 Lading, see Bills of Lading, 4, 5. 
 
 Of Overcharges . by Carrier on Interstate 
 Shipments, see Carriers, 1018. 
 
 Of Money Collected by Carrier C. O. D., see 
 Carriers, 779. 
 
 Recovering Donation on Removal of Busi- 
 ness by Donee, see Contracts, 830. 
 
 Of Money Paid under Illegal Contract, see 
 Contracts. 628. 
 
 Amounts Paid by Fraudulent Grantee, see 
 Fraudulent Conveyances, 41, 42. 
 
 Insurance Premiums Paid, see Insurance, 
 678-684, 1366. 
 
 Limitation of Action to Recover Excessive 
 Freight Charges, see Limitation of Ac- 
 tions. 111-113. 
 
 Of Part of Purchase Price of Land in Case 
 of Deficiency, see Vendor and Purchas- 
 er, 56. 
 
 27. Money or assets of a corporation with- 
 drawn by a majority stockholder and con- 
 verted to his own use, the transactions be-
 
 168 
 
 ASSUMPSIT, II. c, 1. 
 
 ing concealed by means of opportunities af- 
 forded him as an officer of the company un- 
 til a change in management, may be re- 
 covered back by the corporation, although 
 no one but subsequent stockholders will de- 
 rive benefit from such recovery. Home F. 
 Ins. Co. v. Barber, 67 Neb. 644, 93 N. W. 
 1024, 60: 927 
 
 Voluntary payments. 
 Usurious Interest, see Usuiy, 46. 
 See also infra, 34, 35, 59-60a. 
 
 28-29.Voluntary payment which cannot be 
 recalled, by a bank to its principal, is made 
 where, after taking a check instead of cash, 
 without authority to do so, on the sale of 
 stock, it notifies the principal of the deposit 
 of the check to his credit, and* afterwards 
 pays his check for the proceeds. Pepperday 
 v Citizens' Nat. Bank, 183 Pa. 519, 38 Atl. 
 1030, 39:529 
 
 30. No part of the interest paid in ad- 
 vance on a note in accordance with its terms 
 can be recovered back on a voluntary pay- 
 ment of the principal sum during the period 
 for which the interest was paid, at least 
 where the creditor has not reserved the 
 right to demand payment during that time. 
 Skelly v. Bristol Sav. Bank, 63 Conn. 83, 
 26 Atl. 474, 19 : 599 
 
 31. Payments of freight charges made by 
 shippers of goods in ignorance that services 
 similar to those received by them were being 
 secretly rendered by the carrier to other 
 shippers for much less compensation, and 
 after the positive assertion of the carrier 
 that no lower rates were received by it, are 
 not voluntary within the rule that volun- 
 tary payments cannot be recovered back. 
 Cook v. Chicago, R. I. & P. R. Co. 81 Iowa, 
 551, 46 N. W. 1080, 9: 764 
 
 32. Payment of an overcharge of freight 
 to a railroad company engaged as a com- 
 mon carrier of goods is not voluntary so 
 as to prevent recovering it. Louisville, E. 
 & St. L. Consol. R. Co. v. Wilson, 132 Ind. 
 517, 32 N. E. 311, 18: 105 
 
 33. One who voluntarily and knowingly 
 deals with parties combined to monopolize 
 trade and arbitrarily control prices cannot 
 accept and retain the goods and have a right 
 of action against the seller for the money 
 paid, or any part of it, either upon the 
 ground that the combination was illegal or 
 that its prices were unreasonable, however 
 urgent the need of dealing with such combi- 
 nation may have seemed for preservation of 
 business interests, as such need cannot 
 change the voluntary character of the pay- 
 ment. Dennehy v. McNulta, 30 C. C. A. 
 422, 59 U. S. App. 264, 86 Fed. 825, 41 : 609 
 Effect of protest. 
 
 See also infra, 48, 49. 
 
 34. The only effect of a protest to the 
 payment of money in a case in which it may 
 be legitimately applied is to show that the 
 payment was not voluntarily made, and that 
 the party protesting intends to claim it 
 back. De la Cuesta v. Insurance Co. of N. 
 A. 136 Pa. 62, 20 Atl. 505, 9: 631 
 
 35. The payment under protest, of an un- 
 lawful demand, when such payment is neces- 
 sary to avoid serious injury or risk in re- 
 
 spect to property, is not to be deemed as 
 voluntarily made, and the . money may be 
 recovered back. State ex rel. McCarty v. 
 Nelson, 41 Minn. 25, 42 N. W. 548, 4: 300 
 
 36. Paying money under protest will not 
 entitle a stockholder of a corporation who is 
 required to make the payment as a bonus 
 for the privilege of subscribing to new stock 
 to be issued by the corporation for the pur- 
 pose of increasing its capital, to recover 
 back the amount paid, although it is sub- 
 sequently judicially determined that the 
 bonus was wrongfully exacted, and that he 
 was entitled to new stock upon payment of 
 merely its par value. De la Cuesta v. Insur- 
 ance Co. of N. A. 136 Pa. 62, 20 Atl. 505, 
 
 9: 631 
 
 37. An assurance to one who is about to 
 make a written protest before the payment 
 of money which is demanded of him that, if 
 he will not write the protest, he shall re- 
 ceive under his verbal one any benefit which 
 anyone shall receive under a written one in 
 any suit, will have no more effect than to 
 place him in the same position he would 
 have occupied had he completed his written 
 protest. Id. 
 
 38. If a demand made upon a person for 
 the payment of money is illegal, and he 
 can save himself and his property in no 
 other way, he may pay under protest and 
 recover back the payment; but if other 
 means are open to him by a day in court or 
 otherwise, he must resort to such means. 
 
 Id. 
 
 Mistake. 
 Check Jt*aid to Bona Fide Holder, see Banks, 
 
 132. 
 
 See also infra, 61-63b. 
 For Editorial Notes, see infra, III. 3. 
 
 39. Money paid by mistake of law, with 
 knowledge of all the facts, cannot, in the 
 absence of fraud, deceit, or undue impor- 
 tunity, be recovered back. Scott v. Ford. 45 
 Or. 531, 78 Pac. 742, 68: 469 
 
 40. Payment of the amount due on an 
 instrument by one who indorsed it, which is 
 made and accepted in the mistaken belief 
 of both parties that such indorser was le- 
 gally liable, where the matter was equally 
 open for the inquiry and judgment of both 
 parties, cannot be recovered back whether 
 the mistake is to be considered one of fact 
 or of law. Alton v. First Nat. Bank, 157 
 Mass. 341, 32 N. E. 228, 18: 144 
 
 41. An assignee of a mortgage holding it 
 as collateral security, who receives payment 
 of his debt from the mortgagor, and there- 
 upon surrenders the mortgage and joins 
 with the mortgagee in directing a cancela- 
 tion of the mortgage on the record, which 
 is effected, while both he and the mortgagor 
 are ignorant of the fact that there is a 
 prior assignment of the mortgage, duly re- 
 corded, cannot be compelled to repay to the 
 mortgagor the amount received from him 
 without being restored to his- former posi- 
 tion, although the mortgagor is compelled 
 to pay a second time to the first assignee. 
 Behring v. Somerville (N. J. Err. & App.) 
 63 N. J. L. 568, 44 Atl. 641, 49: 578 
 
 42. Assumpsit will lie against a county
 
 ASSUMPS1T, II. c, 2. 
 
 169 
 
 for the recovery of a surplus on foreclosure 
 sale, which the sheriff has mistakenly paid 
 into the treasury as the amount of commis- 
 sions which he supposed it was his duty to 
 retain and pay over, but which he should 
 have paid to the judgment debtor. Soder- 
 berg v. King County, 15 Wash. 194, 45 Pac. 
 785, 33:670 
 
 43. That a building was erected on a 
 railroad right of way under an agreement 
 releasing the railroad company from liabil- 
 ity for injury to it by fire from its loco- 
 motives will not entitle one who insures it 
 against fire without notice of such provision 
 to reclaim from its owner the amount paid 
 under the policy upon its destruction as 
 paid under a mistake of fact. Greenwich 
 Ins. Co. v. Louisville & N. R. Co. 112 Ky. 
 598, 66 S. W. 411, 56:477 
 
 44. One who takes checks drawn by a per- 
 son as treasurer of a corporation, in pay- 
 ment of his individual debt, is liaole to the 
 corporation for the amount of the checks 
 after they have been paid, if the funds of 
 the corporation have been in this way mis- 
 appropriated by the treasurer to pay his in- 
 dividual obligation. Rochester & C. Tump. 
 R. Co. v. Paviour, 164 N. Y. 281, 58 N. E. 
 114, 52: 790 
 
 45. Money paid by executors under the 
 erroneous belief that, as matter of law, the 
 payee was entitled to it as representative 
 of a deceased legatee of the will, cannot be 
 recovered back. Scott v. Ford, 45 Or. 531, 
 78 Pac. 742, 68: 469 
 
 46. Money paid by executors to the rep- 
 resentative of one whom they, without neg- 
 ligence on their part, erroneously believed, 
 as matter of fact, to have been alive when 
 the will took effect, so as to be entitled to 
 the benefit of its provisions, may be recov- 
 ered back. Id. 
 
 47. An overpayment by an administrator 
 to a creditor, in the mistaken belief that the 
 estate is solvent, where the mistake is one 
 of law or of fact, may be recovered back al- 
 though the creditor received it in good faith 
 believing that he was justly entitled thereto. 
 Mansfield v. Lynch, 59 Conn. 320, 22 Atl. 
 313, 12: 285 
 Duress. 
 
 See also infra, 64, 65. 
 
 For Editorial Notes, see infra, III. 3. 
 
 48. A declared intention not to recognize 
 a right is not duress within the rule that 
 a person acting under duress of person or 
 property, who under protest makes a pay- 
 ment of money unlawfully demanded from 
 him, can recover the same back again. De 
 la Cuesta v. Insurance Co. of N. A. 136 Pa. 
 62, 20 Atl. 505, 9: 631 
 
 49. Payment under protest of a mechan- 
 ics'* lien filed upon an unfounded claim, in 
 order to clear the title of record so that the 
 owner might consummate a loan upon the 
 property which he had negotiated in order 
 to raise money to pay a prior overdue mort- 
 gage and other oppressing debts, when he 
 had no available means of raising the mon- 
 ey, is made under duress, and may be re- 
 covered back. Joannin v. Ogilvie, 49 Minn. 
 564, 52 N. W. 217, 16:376 
 
 50. Duress may be shown with respect to 
 real property as well as personal, so as to 
 render a payment on account of it involun- 
 tary and permit it to be recovered back. 
 
 Id. 
 
 51. Payment by a wife of her husband's 
 debt, induced by threats of his arrest on the 
 eve of their departure for Europe, and her 
 fear of the effect thereof on his shattered 
 and feeble health, even if there is a lawful 
 ground for his arrest, constitutes duress, and 
 she can recover back the money paid. 
 Adams v. Irving Nat. Bank, 116 N. Y. 606, 
 23 N. E. 7, 6: 491 
 
 2. Of Assessment or Taxes. 
 
 Assignability of Purchaser's Right to Re- 
 imbursement, see Assignment, 10. 
 
 Retrospective Statute as to, see Constitu- 
 tional Law, 121. 
 
 Jurisdictional Amount, see Courts, 290. 
 
 Limitation of Action for, see Limitation of 
 Actions, 148. 
 
 Suit by Single Taxpayer to Recover Back, 
 see Parties, 99. 
 
 Prerequisites to Refunding Illegal Tax, see 
 Counties, 74. 
 
 See also Taxes, 473, 507-509. 
 
 For Editorial Notes, see infra, III. 4. 
 
 52. A county is a "municipal corporation'' 
 within the meaning of the proviso of Wyo. 
 Rev. Stat. 3055, respecting actions against 
 municipal corporations to recover back taxes 
 actually paid over to such corporation. 
 Kelley v. Rhodes, 7 Wyo. 237, 51 Pac. 593, 
 
 39 : 594 
 
 52a. Payment in excess of the amount 
 constitutionally chargeable for a license fee 
 imposed under an unconstitutional ordi- 
 nance entitles the one who pays it to re- 
 cover it back from the city. Harrodsburg v. 
 Renfro, 22 Ky. L. Rep. 806, 58 S. W. 795, 
 
 51: 897 
 
 53. One who is compelled by judicial pro- 
 ceedings to pay assessments for a street 
 improvement which is never completed, but 
 is wholly abandoned by the city, is entitled 
 to recover from the city the amount so paid 
 by him as upon a failure of consideration. 
 McConville v. St. Paul, 75 Minn. 383, 77 N. 
 W. 993, 43: 584 
 
 53a. A city cannot be compelled to re- 
 pay an assessment for a street improvement 
 to the lot owner from whom it was col- 
 lected, on account of the failure to com- 
 plete the work and the fact that his prop- 
 erty was not benefited by the work 'done, 
 when it does not appear that the money ac- 
 cruing from the assessment has not been 
 legally and honestly expended on the im- 
 provement. Rogers v. St. Paul, 79 Minn. 5, 
 81 N. W. 539, 47:537 
 
 54. Where a county has caused land 
 which is not taxable to be assessed and taxes 
 levied thereon, under which the land is 
 afterwards sold and attempted to be con- 
 veyed; and the county, from year to year, 
 afterwards causes said land to be assessed 
 and taxes levied thereon, a tax purchaser 
 may pay such taxes to protect his supposed 
 lien, and, upon the failure of his interest
 
 170 
 
 ASSUMPSIT, II. c. 2. 
 
 in the land, may recover the amount he has 
 so paid, with interest thereon, from the 
 county. Wilson v. Butler County, 26 Neb. 
 l!76. 42 N. W. 891, 4: 589 
 
 55. Where a county has caused certain 
 real estate to be assessed and taxes to be 
 levied thereon, a tax purchaser may pre- 
 sume that the property was taxable, and is 
 not required to make a further examination 
 of that fact as a condition of maintaining 
 an action against the county for the pur- 
 chase money and interest, and taxes there- 
 after paid to protect the tax lien which 
 was believed to exist. Id. 
 
 56. Where the lessee of a railroad is com- 
 pelled to pay taxes assessed against the les- 
 sor, the law implies a request on the part of 
 the lessor for the making of such payment, 
 and the lessee may maintain an action to re- 
 cover the amount from the lessor, or may 
 deduct the amount from the rent due. Ver- 
 mont & C. R. Co. v. Vermont C. R. Co. 63 
 Vt. 1, 21 Atl. 262, 10: 562 
 
 56a. The remedy of a taxpayer in case too 
 large a portion of his land is taxed is by 
 application for abatement, and not payment 
 of the whole amount and suit to recover 
 the illegal portion of the assessment. All 
 Saints Parish v. Brookline. 178 Mass. 404, 
 f.9 N. E. 1003, 52: 778 
 
 57. If an assessment of taxes upon three 
 adjoining lots of the same owner is unlawful 
 as to two of them and lawful as to the other 
 one, his remedy is by petition for abatement 
 of the over-assessment, and not by action 
 at law to recover back the amount after 
 payment under protest. St. James Educa- 
 tional Inst. v. Salem, 153 Mass. 185, 26 N. 
 E. 636, 10: 573 
 
 58. State and school district taxes are 
 collected for the "use and benefit" of the 
 
 ' county within the meaning of the proviso 
 of Wyo. Rev. Stat. 3055, authorizing ac- 
 tion to recover back a tax actually paid over 
 to any municipal corporation for whose use 
 and benefit it was levied or collected. Kel- 
 ley v. Rhodes, 7 Wyo. 237, 51 Pac. 593, 
 
 39: 594 
 Voluntary. 
 See also infra, 61. 
 For Editorial Notes, see infra, III. 4. 
 
 59. One who, by force of the statute, is 
 unable to place on record a deed of convey- 
 ance by which he has acquired title to real 
 estate, by reason of illegal taxes being 
 charged upon the land, may pay such taxes 
 in order to secure the recording of his deed, 
 without such payment being deemed volun- 
 tary. btate ex rel. McCarty v. Nelson, 41 
 Minn. 25, 42 N. W. 548, 4: 300 
 
 60. A payment of a tax on sheep is not 
 voluntary when made after first refusing to 
 pay it and because the collector declares 
 either that he can or that he will take 
 enough sheep to pay the tax. Kelley v. 
 Rhodes, 7 Wyo. 237, 51 Pac. 593, 39': 504 
 
 60a. Taxpayers in one school district who 
 voluntarily pay a tax for another district, 
 levied by mistake upon the lands cannot 
 recover back the amount paid, where the 
 books were kept open for inspection by them 
 and the means of knowledge existed to learn 
 
 and know all the facts, although they sup- 
 posed that they were paying the tax of the 
 district in which their lands were situated. 
 Walser v. Bd. of Edu. of School Dist. No. 1, 
 160 111. 272, 43 N. E. 346, 31:329 
 
 Mistake. 
 See also supra, 60a. 
 
 61. A voluntary payment, without duress 
 of person or goods, of an assessment for the 
 expense of grading and paving a street, un- 
 der an ordinance which was void on its face, 
 is a mistake of law, and no action will lie 
 to recover back the money so paid. Phelps 
 v. New York, 112 N. Y. 216, 19 N. E. 408, 
 
 2: 626 
 
 62. Payment of license fees by one who 
 insists that the law exacting them is un- 
 constitutional cannot be held to have been 
 made under a mutual mistake, so that he 
 is not entitled -to recover them back upon 
 that ground after the law is declared to be 
 invalid. C. & J. Michel Brewing Co. v. State, 
 (S. D.) 103 N. W. 40, 70: 911 
 
 63. The mistaken belief of an agent that 
 three lots jointly sold for taxes all belonged 
 to his principal, whereas one belonged to an- 
 other person, will not entitle the principal 
 to recover any part of the money paid by 
 the agent to redeem the three lots from the 
 tax sale. Langevin v. St. Paul, 49 Minn. 
 189, 51 N. W. 817. 15: 766 
 
 63a. A school district cannot, if it can 
 recover at all, recover from another district 
 which has collected taxes upon lands within 
 the former through a mistake of the clerk 
 as to the location of the lands, a greater 
 sum than it would have collected had there 
 been no mistake. Walser v. Board of Edu. 
 of School Dist. No. 1, 160 111. 272, 43 N. E. 
 346, 31 : 329 
 
 63b. A school district cannot recover from 
 another district which has collected taxes 
 upor la,nds within the former, through a 
 mistake of the clerk as to the location of the 
 lands, any of the taxes so collected, although 
 the rate per cent of the tax as extended in 
 the former was thereby made greater than 
 it otherwise would have been, where the 
 full amount of the levy made by its board 
 of education was collected, as the district 
 does not become a trustee for one taxpayer 
 of anexcessive amount collected from an- 
 other. Ivl. 
 Duress. 
 
 64. Requiring a foreign corporation to pay 
 a license fee as a condition precedent to 
 the sale of its product within the state, 
 or subject itself to penalties supposed to be 
 prescribed by a statute, is not such com- 
 pulsion as will entitle it to recover the 
 amounts paid in case the statute is adjudged 
 to be unconstitutional. C. & J. Michel 
 Brewing Co. v. State (S. D. 103 N. W. 40, 
 
 70: 911 
 
 65. Illegal taxes may be recovered as 
 paid under compulsion, where the tax col- 
 lector, after a constructive seizure of per- 
 sonal property, is attempting to sell it un- 
 der authority of law, and the owner, to pre- 
 vent Buch sale, pays the taxes under written 
 protest of their illegality and of his inten- 
 tion to immediately bring suit for their re-
 
 A8SUMPSIT, II. c, 3-ATTACHMENT. 
 
 171 
 
 covery, although there has been no actual 
 seizure or detention of the property. St. 
 Anthony & D. Elevator Co. v. Soucie, 9 N. 
 D. 346, 83 N. W. 212, 50:262 
 
 66. An occupation tax paid under coer- 
 cion of criminal proceedings may be recov- 
 ered back where the ordinance imposing it 
 was unconstitutional, although fair on its 
 face, because of the persistent failure to en- 
 force it against part of the persons to whom 
 it applied. Hoefling v. San Antonio, 85 Tex. 
 228, 20 S. W. 85, 16: 608 
 
 3. Public Money. 
 
 Running of Limitation against Right to Re- 
 cover, see Limitation of Actions, 72. 
 
 67. A payment of salary in excess of tne 
 lawful amount, by order of a municipal 
 council, to one of its members, is, not with- 
 in the rule which precludes recovery of mon- 
 ey voluntarily paid. Tacoma v. Lilis, 4 
 Wash. 797, 31 Pac. 321, 18: 372 
 
 68. Payments for services outside the 
 scope of his official duties, rendered by a 
 city councilman, and which could have been 
 appropriately performed by a private indi- 
 vidual, under a contract which is contrary 
 to public policy, cannot be recovered back 
 by the city, in the absence of corruption or 
 fraud. . Id. 
 
 69. A city cannot recover back money paid 
 to a councilman for his services in pursuance 
 of a vote or resolution, on the sole ground 
 that it had failed to pass an ordinance au- 
 thorizing the payment, if it had legal au- 
 thority to compensate him. Id. 
 
 in. Editorial Notes. 
 
 i. Generally. 
 
 Effect of admission to change burden of 
 
 proof and right to open 
 
 and close. 61 : 534, 540. 
 2. When lies. 
 Election between assumpsit and trover. 8: 
 
 216.* 
 
 Recovery on quantum meruit. 5:707,* 763.* 
 On partly performed contract for services. 
 
 24: 233. 
 
 To recover on building contract. 5: 275.* 
 For money paid on illegal contract. 6: 493.* 
 To enforce contribution. 1: 312.* 
 Against cotenant for rents and profits. 28: 
 
 844. 
 
 For repairs and improvements. 29: 452. 
 On contract with third person. 25: 262. 
 
 See also Parties, V. 3. 
 3. For money paid under mistake or 
 
 compulsion. 
 
 For money paid by mistake. 4: 300.* 
 To recover back compulsory payment. 4: 
 
 302.* 
 
 Threats as coercion. 4: 302.* 
 4. Taxes; assessments. 
 Assumpsit to recover tax. 11:818.* 
 Assumpsit to recover back money paid for 
 
 illegal taxes. 2: 626;* 4: 
 
 300.* 
 
 Necessity that payment shall have been 
 
 in money. 4 : 301.* 
 Necessity that payment be involuntary. 
 
 2: 626;* 4: 301.* 
 Necessity of protest against payment. 
 
 4: 302.* 
 
 Sufficiency of protest. 2: 627;* 4: 303.* 
 Taxes voluntarily paid. 2: 627;* 4: 
 
 304.* 
 
 ASSUMPTION OF DEBT. 
 
 As Consideration for Conveyance, see Fraud- 
 ulent Conveyance, 15; Mortgage, III.; 
 
 vni. 11. 
 
 ASSUMPTION OF RISK. 
 
 By Passenger, see Carriers, 230, 265, 629. 
 
 By Employees, see Carriers, 41, 57. 
 
 By Servant, see Master and Servant, n. b; 
 Trial, 535. 
 
 Of Explosion of Powder Magazine, see Ex- 
 plosions and Explosives, 3, 4. 
 
 From Fireworks, see Fireworks, 6. 
 
 By One Crossing Highway Partly Obstruct- 
 ed by Train, see Highways, 153. 
 
 On Sale of Property, see Sale, 112, 113. 
 
 ASYLUM. 
 
 Equal Privileges as to Keeping, see Consti- 
 tutional Law, 530. 
 
 Right to Furnish Support to Person in, see 
 Contracts, 704. 
 
 Soldiers' Home as, see Elections, 35a. 
 
 As Public Institution, see State Institutions, 
 4. 
 
 Liability of Keeper for Injury to Guest, see 
 Innkeepers, 23, 24, 31. 
 
 See also Hospitals. 
 
 * 
 
 AT. 
 
 Meaning of, see Contracts, 321. 
 
 ATLAS. 
 
 Copyright of, see Copyright, 2, 
 
 ATTACHMENT. 
 
 I. When Lies. 
 
 a. In General. 
 
 b. On What Claims. 
 
 c. By or Against Nonresidents 
 
 Foreign Corporations. 
 
 d. For Fraud. 
 
 II. Interest Acquired; Lien; Priority. 
 
 a. In General. 
 
 b. Lien; Priority.
 
 172 
 
 ATTACHMENT, I. a, b. 
 
 III. Procedure. 
 
 a. Affidavits, Petition, etc. 
 
 b. Bonds ; Liability on. 
 
 c. Dissolution; Setting Aside. 
 
 IV. Editorial Notes. 
 
 Review of Decision on, see Appeal and Er- 
 ror, 609, 796, 797. 
 
 Waiver of Objection to Jurisdiction by Ap- 
 pearance in, see Appearance, 2. 
 
 Against Nonresident, Assignment of Claim, 
 see Assignment, 31. 
 
 Necessity of Acceptance to Make Deed of 
 Trust Valid as Against, see Assignments 
 for Creditors, 56. 
 
 Abuse of, to Learn Secrets, see Attorneys, 
 86. 
 
 By Collecting Bank, see Banks, 193. 
 
 Of Property Covered by Bill of Lading, see 
 Bills of Lading, 2. 
 
 By Owner of Chattel Mortgage as Waiver 
 of Mortgage Lien, see Chattel Mortgage, 
 89. 
 
 Chattel Mortgagee, Obtaining Benefit of, see 
 Chattel Mortgage, 93. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 290, 325-327. 
 
 As a Contempt of Court, see Contempt, 9, 
 10, 65. 
 
 Contribution Between Attaching Creditors, 
 see Contribution, 4-6. 
 
 Against Insolvent Corporation, ' see Corpora- 
 tions, 766-768. 
 
 Acquiring Jurisdiction by, see Courts, 376. 
 
 Creditors' Bill as, see Creditors' Bill, 2, 3. 
 
 Enforcement by Creditors' Bill of Judgment 
 Obtained by Attachment Only, see Cred- 
 itors' Bill, 7. 
 
 Wrongful, Damages for, see Damages, 47, 
 279, 280, 399. 
 
 As Election of Remedy, see Election of Rem- 
 edies, 33, 37, 38, 51, 52; Estoppel, 263, 
 264. 
 
 Record of, as Evidence, see Evidence, 853, 
 854. 
 
 Of Corporate Dividends after Stockholder's 
 Death, see Executors and Administra- 
 tors, 129. 
 
 Property Exempt from, see Exemptions; 
 Homestead. 
 
 Issue of, on Holiday, see Holidays, 1, 2. 
 
 Of Homestead, see Homestead, 41. 
 
 Injunction Against Removal of Materials 
 Pursuant to Sale, see Injunction, 266. 
 
 Injunction in Aid of, see Injunction, 514, 
 and also infra, IV. 12. 
 
 As Process, see Insurance, 419. 
 
 Effect on Insurance of Issuance of, see In- 
 surance, 419-422. 
 
 Jurisdiction to Render Judgment Against 
 Nonresident, see Judgment, 24. 
 
 Oonclusiveness of Judgment on, see Judg- 
 ment, 299. 
 
 Sale under, see Judicial Sale. 
 
 On Fixtures, see Landlord and Tenant, 114. 
 
 What Property Subject to Attachment, see 
 Levy and Seizure, I. and also infra, IV. 
 4. 
 
 Mode and Sufficiency of Levy and Return, 
 see Levy and Seizure, II. 
 
 Sufficiency of Pleading in Action for Wrong- 
 ful Attachment, see Pleading, 240. 
 
 Effect of, on Right of Stoppage in Transit 1 ^ 
 
 see Sale, 143. 
 
 Against Receiver, see Receivers, 57. 
 Substituted Service in Case of, see Writ 
 
 and Process, 53. 
 A to Garnishment, see Garnishment. 
 
 I. When Lies. 
 a. In General. 
 
 1. An attachment of property of an in- 
 solvent bank which has failed and closed its 
 doors cannot be allowed under the California 
 bank commissioners' act, 11, which fully 
 provides for the winding up of insolvent 
 banks by commissioners, and takes them out 
 of the operation of the insolvent act applic- 
 able to other corporations. Crane v. Pacific 
 Bank, 106 Cal. 64, 39 Pac. 215, 27: 562 
 
 b. On What Claims. 
 
 See also infra, 33.- 
 
 2. Attachment of the debtor's property to 
 secure a debt not due is not authorized by 
 Mich. Pub. Acts 1889, No. 149, where the 
 facts alleged in the affidavit as a basis for 
 the attachment are consistent with an hon- 
 est purpose on the part of other creditors to 
 secure their just claims. Pierce v. Johnson, 
 93 Mich. 125, 53 N. W. 16, 18: 486 
 
 3. No debt is created on the part of a bank 
 by the sale of its draft on another bank for 
 cash, which can be levied on under attach- 
 ment against the purchaser, so long as the 
 draft remains outstanding without default 
 thereon. . Capital City Bank v. Parent, 134 
 N. Y. 527, 31 N. E. 976, 18.- 240 
 
 4. The assignee of a note given on the pur- 
 chase of land 'by contract is entitled to the 
 benefit of the vendor's lien, and cannot at- 
 tach the land as a creditor without security. 
 Gessner v. Palmater, 89 Cal. 89, 26 Pac. 789, 
 
 13: 187 
 
 5. The creditor of a partnership has no 
 lien on the partnership property in the hands 
 of a surviving partner, within the meaning 
 of Mont. Code, 181, providing that an at- 
 tachment can be issued only for a debt which 
 is "not secured by a mortgage lien or pledge 
 upon real or personal property." Kruger v. 
 Spieth, 8 Mont. 482, 20 Pac. 664, 3: 291 
 
 6. A surviving partner does not hold the 
 partnership property as a trustee in such 
 sense that he is exempt from the levy of an 
 attachment in an action upon promissory 
 notes made by the firm. Id. 
 
 7. The liability of sureties on a contrac- 
 tor's bond is not for the direct payment of 
 money, within the meaning of a statute au- 
 thorizing an attachment in actions on con- 
 tracts "for the direct payment of money." 
 Ancient Order of Hibernians v. Sparrow, 29 
 Mont. 132, 74 Pac. 197, 64: 128 
 
 8. An attachment is not authorized in a 
 suit for breach of promise of marriage by a 
 statute authorizing attachment upon the 
 filing of an affidavit that plaintiff has a just 
 claim against defendant that is due, upon
 
 ATTACHMENT, I. c, d. 
 
 173 
 
 which he expects to recover a sum sufficient 
 to give jurisdiction. Mainz v. Lederer, 24 
 R. L 23, 51 Atl. 1044, 59: 954 
 
 c. By or Against Nonresidents or Foreign 
 Corporations. 
 
 For Editorial Notes, see infra, IV. 2. 
 
 By nonresident. 
 
 9. A nonresident may invoke the remedy 
 of attachment, as well as a citizen. Sheldon 
 v. Blanvelt, 29 S. C. 453, 7 S. E. 593, 13 Am. 
 St. Rep. 749, 1: 685 
 
 10. That a nonresident creditor has ex- 
 hausted his remedy against his debtor in the 
 state of his residence, so as to be enabled to 
 take advantage of Mill. & V. (Tenn.) Code, 
 5040, permitting him to subject property 
 in Tennessee to the payment of his claim, is 
 shown by the fact that the property of the 
 debtor in the state of his residence has been 
 placed in the possession of a receiver under 
 a statute forbidding interference with it. 
 Commercial Nat. Bank v. Matherwell Iron 
 & S. Co. 95 Tenn. 172, 31 S. W. 1002, 
 
 29: 164 
 
 Against nonresidents generally. 
 For Editorial Notes, see infra, IV. 2. 
 
 11. vv^here a man has a settled abode for 
 the time being in another stafce for the pur- 
 pose of business or pleasure, he is a non- 
 resident within the meaning of the Califor- 
 nia attachment law. Hanson v. Graham, 82 
 Oal. 631, 23 Pac. 56, 7: 127 
 
 12. The exercise of the right of suffrage in 
 the state is not conclusive on the question of 
 domicil for the purposes of an attachment 
 under the Louisiana Code; but in the deter- 
 mination of such question, the nature of the 
 domicil the party is supposed to have in the 
 state, and the purpose that brings him there, 
 the time he spends there and elsewhere 
 Where his wife and children are, his declara- 
 tions, and his conduct, must all be consid- 
 ered. Hewes v. Baxter, 48 La. Ann. 1303, 20 
 So. 701 3 36: 531 
 
 13. Nonresidence in the state for the pur- 
 pose of an attachment does not exist in the 
 case of railroad contractors in the state who 
 intend to remain therein permanently, and 
 who have entered into a binding contract 
 which will take nearly a year, if not longer, 
 to complete. Munroe v. Williams, 37 S. C. 
 81, 16 S. E. 533, 19: 665 
 
 14. While it is necessary, when all of the 
 distributees are within the jurisdiction of 
 the court in which an ancillary administra- 
 tor who has been compelled to pay a debt 
 against the estate after he has, in ignorance 
 of the tlebt, turned over the assets in his 
 hands to the principal administrator, is en- 
 titled to proceed against the distributees for 
 relief, that all of them shall be made parties, 
 to the end that they shall contribute ratably, 
 and that it may not be in the power of the 
 administrator to throw the whole liability 
 upon one of them in the first instance, yet, 
 when they are not all within the jurisdiction 
 of the court, he may sue such of them as are 
 within the reach of the court's process; and, 
 if they are all nonresidents, and any of them 
 
 have property within reach of such process, 
 it may be subjected by attachment in a suit 
 in equity. McClung v. Sieg, 54 W. Va. 467, 
 46 S. E. 210, 66: 884 
 
 15. A nonresident's shares of stock in a 
 foreign corporation cannot be reached by at- 
 tachment in a state where the corporation 
 is doing business, although its officers are 
 also in such state. Ireland v. Globe Milling 
 & R. Co. 19 R. I. 180, 32 Atl. 921, 29: 429 
 Against nonresident partnership. 
 
 See also infra, 31. 
 
 16. The nonresidence of one partner will 
 not be ground for an attachment against the 
 firm to the prejudice of social creditors. 
 Goodman Bros. & Co. v. Henry, 42 W. Va. 
 
 526, 26 S. E. 528, 35: 847 
 
 17. Attachment against the property of a 
 partnership on the ground of nonresidence 
 may be had, where the members of the firm 
 reside out of the state, although the firm 
 carries on business in the state, and the 
 statute allows a partnership to be sued in 
 the firm name and service to be made by 
 leaving a copy of the summons at its usual 
 place of business. Byers, v. Schlupe, 51 Ohio 
 St. 300, 38 N. E. 117, 25: 649 
 Against foreign corporations. 
 
 See also supra, 15. 
 
 18. No jurisdiction can be acquired of a 
 domestic corporation by an attachment is- 
 sued against it as a foreign corporation. 
 Bernhardt v. Brown, 118 N. C. 700, 24 S. E. 
 
 527, 715, 119 N. C. 506, 26 S. E. 162, 
 
 36: 402 
 
 19. Jurisdiction by attachment and publi- 
 cation can no longer be obtained against a 
 corporation originally chartered in a foreign 
 state, after it has obtained a domestic char- 
 ter. Id. 
 
 d. For Fraud. 
 
 Strict Construction of Statute as to, see 
 
 Statutes, 515. 
 See also infra, 47. 
 For Editorial Notes, see infra, IV. 3. 
 
 20. A conveyance by a debtor, legally or 
 constructively fraudulent as to creditors, aa 
 contradistinguished from fraudulent in fact, 
 is not ground for attachment by them under 
 the Illinois attachment law.' Weare Com- 
 mission Co. v. Druley, 156 111. 25, 41 N. E. 48, 
 
 30:466 
 
 21. Individual property of an innocent 
 partner is not subject to attachment for a 
 partnership debt fraudulently contracted 
 by his copartner, under a general provision 
 of the statute authorizing attachment for 
 fraud of the debtor, where another provision 
 expressly says that in a case for attachment 
 against partners or joint creditors the writ 
 shall issue against the property and effects 
 of those brought within the statute. Jaffray 
 v. Jennings, 101 Mich. 515, 60 N. W. 52, 
 
 25: 645 
 
 22. Property of one partner in a law firm 
 cannot be attached for failure of his copart- 
 ner to account for money collected under 
 
 Contract made by the latter in the firm 
 name, but in his own purely personal trans- 
 action and without the knowledge of the
 
 174 
 
 other partner, that the firm would make such 
 collection free of charge. Davis v. Dodson, 
 95 Ga. 718, 22 S. E. 645, 29: 496 
 
 23. The shipping by an insolvent corpora- 
 tion of its manufactured products out of the 
 state to fill orders by which the goods are 
 to be delivered in other states, so that they 
 remain its property when sent out of the 
 state, is a removal of its property beyond 
 the state which constitutes a ground for at- 
 tachment, although its business cannot be 
 successfully conducted unless the property 
 is sent outside the state for sale. Queen 
 City Mfg. Co. v. Blalak (Miss.) No Off. Rep. 
 18 So. 800, 31 : 222 
 
 24. The making of a false written state- 
 ment as to financial ability, for the purpose 
 of obtaining credit, does not make one liable 
 to an attachment in favor of a creditor who 
 had no knowledge of such statement until 
 after the credit was given, under N. Y. Laws 
 1894, chap. 736, 1, authorizing th* granting 
 of an attachment where defendant for the 
 purpose of procuring credit makes a false 
 statement in writing as to his financial re- 
 sponsibilities. Penoyar v. Kelsey, 150 N. Y. 
 77, 44 N. E. 788, 34: 248 
 
 ATTACHMENT, II. a, b. 
 
 H. Interest Acquired; Lien; Priority, 
 a. In General. 
 
 As Custody of Law, see Courts, 418, 419. 
 Insurable Interest of Attaching Creditor. 
 
 see Insurance. 139. 
 Surrendering Benefit of Attachment Before 
 
 Sharing in Benefits of Receivership, see 
 
 Receivers, 79, 80. 
 
 25. In the absence of fraud and statutory 
 regulations, a creditor proceeding by execu- 
 tion or attachment obtains only such rights 
 in the property seized as his debtor had at 
 the time of the seizure. Lipscomb v. Condon, 
 56 W. Va. 416, 49 S. K 392, 67:670 
 
 26. An attachment creditor who sits back 
 during the pendency of legal proceedings, 
 and allows the receiver of the estate to in- 
 sure the attached property for the benefit of 
 the estate, and who all the time is main- 
 taining a hostile attitude towards the re- 
 ceiver and the assignment under which he 
 holds, cannot, after money is collected by the 
 receiver on an insurance policy, claim a trust 
 in his favor on account of his attachment 
 on the burned building, which might have 
 satisfied his execution had it not burned. 
 McLaughlin v. Park City Bank, 22 Utah, 473, 
 63 Pac. 589, 54: 343 
 
 b. Lien; Priority. 
 
 Priority Between Attachment and Bank 
 Check, see Checks, 21. 
 
 Effect of Subsequent Commencement of In- 
 solvency Proceedings, see Conflict of 
 Laws, 267, 271, 272. 
 
 Priority as to Previous Assignment for 
 Creditors in Other State, see Conflict of 
 Laws, 266. 
 
 Against Insolvent Corporation, see Corpora- 
 tions, 766-768. 
 See also infra, 51. 
 For Editorial Notes, see infra, IV. 6, 7.. 
 
 Lien generally. 
 
 Discharge of, by Commencement of Bank- 
 ruptcy Proceedings, see Bankruptcy, 14. 
 
 Effect on, of Discharge in Bankruptcy, see 
 Bankruptcy, 50a. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 274. 
 
 Vested Right in, see Constitutional Law, 
 159. 
 
 See also Mortgage, 229. 
 
 27. An attachment lien on land, the legal 
 title to whieh is in the attachment debtor, 
 is subject to every equity which exists 
 against the debtor at the time of the levy 
 of the attachment, and courts of equity will 
 limit the lien to the actual interest of the 
 attachment debtor in such real estate. Wes- 
 tervelt v. Hagge, 61 Neb. 647, 85 N. W. 852, 
 
 54: 333 
 
 28. The lien of an attachment levied on 
 land fraudulently alienated becomes effective^ 
 and enforceable after the real estate is re- 
 conveyed, and restored to the fraudulent 
 grantor, the same as though the conveyance 
 in the first instance had not been made. Id. 
 
 29. An attachment levied on real estate- 
 fraudulently "alienated by the attachment 
 debtor and grantor for the purpose of hin- 
 dering, delaying, and defrauding creditors,, 
 even though the legal title of record is in an- 
 other, gives the attachment creditor a lien 
 upon the interest of the debtor in the land 
 attached, which he may enforce by appro- 
 priate proceedings after recovery of judg- 
 ment. Id. 
 
 30. Shares of corporation stock are includ- 
 ed in the terms "personal property, choses in 
 action, and other securities," as. used in W. 
 Va. Code 1899, chap. 106, 9, giving the 
 plaintiff in an ai/uichment proceeding a lien 
 on the personal property of the debtor front 
 the time of the levying of the attachment, or 
 serving a copy thereof on the garnish ee, on 
 all the personal property, choses in action, 
 and other securities of the defendant in the 
 hands of the garnishee, and on any real es- 
 tate of the debtor levied on by virtue there- 
 of, from the suing out of the same. Lips- 
 comb v. Condon, 56 W. Va. 416, 49 S. E. 392. 
 
 67: 670 
 
 31. Service of a warrant of attachment 
 upon a resident member of a nonresident 
 partnership, to reach a sum due by the 
 partnership to a nonresident corporation, 
 does not create a lien upon the liability of 
 the nonresident partners to pay the debt, so- 
 as to form the basis of a suit against them 
 when they can be served with process within 
 the state. National Broadway Bank v, 
 Sampson, 179 N. Y. 213, 71 N. E. 766. 
 
 66: 606- 
 
 Waiver or forfeiture of lien. 
 Retrospective Legislation as to, see Con- 
 stitutional Law, 119. 
 See also Garnishment, 90. 
 
 32. An attachment creditor cannot be 
 deemed guilty of laches such as will forfeit
 
 ATTACHMENT, II. b. 
 
 175 
 
 his lieu where he obtains judgment in his ac- 
 tion within two years after the attach- 
 ment is levied and within five months there- 
 after sets up his attachment in a suit to 
 which he is made a defendant, which is 
 brought to foreclose a mortgage on the 
 property upon which he claims a lien. Wes- 
 tervelt v. Hagge, 16 Neb. 647, 85 N. W. 852, 
 
 54: 333 
 Priority between attachment liens. 
 
 33. An attachment issued upon a debt 
 not due may be avoided by a junior at- 
 taching creditor and postponed to his at- 
 tachment lien, where there is no statute au- 
 thorizing the issuance of an attachment for 
 a debt not due under the circumstances and 
 conditions of the e-ase. Davis v. H. B. Claflin 
 Co. 63 Ark. 157, 38 S. W. 662, 1117, 
 
 35: 776 
 
 34. A groundless attachment based on 
 false allegations of the debtor's 'fraudulent 
 intent to hinder and delay creditors is a con- 
 structive fraud on the part of the creditor, 
 which will postpone him, as to all his debts 
 not due When the attachment is sued out, 
 to a junior attachment creditor. Id. 
 Priority between attachment and mortgage. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 292-294. 
 
 See also Corporations, 768; Chattel Mort- 
 gage, 46. 
 
 35. Under the law of Arkansas, as ex- 
 tended by act of Congress over the Indian 
 territory, the owner of an unrecorded mort- 
 gage out of possession, although having the 
 legal title to the property, cannot defeat an 
 attachment upon the property as that of the 
 mortgagor. McFadden v. Blocker, 2 Ind. 
 Terr. 260, 48 S. W. 1043, 58: 878 
 
 36. Creditors bringing attachment suits 
 on prior judgments are within the meaning 
 of a statute making mortgages liens from 
 the time they are filed for record, and de- 
 claring that such filing shall be notice to all 
 persons, so that their attachments will take 
 precedence of unrecorded mortgages, al- 
 though founded on pre-existent debts. Id. 
 
 37. A judgment by default against the 
 debtor in an attachment suit does not es- 
 tablish the lien against the claim of an in- 
 tervening mortgage creditor so as to pre- 
 vent a subsequent statute validating mort- 
 gages from operating to defeat the attach- 
 ment lien. Evans-Snider-Buel Co. v. Mc- 
 Fadden, 44 C. C. A. 494, 105 Fed. 293. 
 
 58: 900 
 
 38. The filing of an interplea in an at- 
 tachment suit setting up a claim to the 
 property under a mortgage improperly ad- 
 mitted to registration will not prevent the 
 judgment in the attachment suit from per- 
 fecting the attachment lien so that it can- 
 not be devested by a subsequent statute 
 validating the registration of the mortgage. 
 McFadden v. Blocker, 2 Ind. Terr. 260, 48"S. 
 W. 1043, 58: 878 
 
 38a. Attachments levied on the property 
 of a mortgagor subsequently to the execu- 
 tion of the mortgage are properly given 
 priority over money afterwards paid over 
 on the security of the mortgage in accord- 
 ance with the agreement under which it was 
 
 executed. Dummer v. Smedley, 110 Mich. 
 466, 68 N. W. 260, 38: 490 
 
 38b. A deed of trust in favor of certain 
 creditors does not become operative without 
 their consent and before they have knowl- 
 edge of it, so as to take priority over an 
 attachment which is levied after the ac- 
 ceptance of the trust by the trustee and his 
 taking possession of the property. Allianco 
 Milling Co. v. Eaton, 86 Tex. 401, 25 S. W. 
 614, 24: 369 
 
 38c. A lien may be given to a second mort- 
 gagee and to a receiver of a corporation, 
 i or money advanced to pay interest on the 
 first mortgage and taxes, as against attach- 
 ment creditors of the corporation. Dummer 
 v. Smedley, 110 Mich. 466, 68 N. W. 260, 
 
 38: 490 
 
 Priority between attachment and other liens. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 327. 
 Between Attachment and Garnishment Lien, 
 
 see Garnishment, 98, 100. 
 Between Attachment and Innkeeper's Lien, 
 
 see Innkeepers, 43. 
 
 39. The judgment of the court in an at- 
 tachment case cannot create a lien operat- 
 ing retroactively, so as to cut out interven- 
 ing rights of others. West v. People's Bank, 
 67 Miss. 729, 7. So. 513, 8: 727 
 
 40. An attachment levied upon pledged 
 propertv as that of the pledgeor is subject 
 to the lien of the pledge. First Nat. Bank 
 v. Harkupss, 42 W. Va. 156. 24 S. E. 548. 
 
 32: 408 
 
 41. One who has acquired a lien on real 
 estate, pending litigation, after the levy of 
 an attachment thereon, is charged with no- 
 tice and takes subject to the rights of the 
 plaintiff in the action wherein the attach- 
 ment was levied and final judgment ren- 
 dered. Westervelt v. Hagge. 61 Neb. 647, 
 85 N. W. 852. 54: 333 
 
 42. No valid lien is acquired by an at- 
 tachment on real estate by a creditor of a 
 fraudulent grantee to whom the legal title 
 has been conveyed in fraud of the rights 
 of the creditors of the fraudulent grantor, 
 and who has no actual interest therein, 
 and who restores and reconveys the real 
 estate to the fraudulent grantor, who vol- 
 untarily encumbers the same for the benefit 
 of his creditors, as against such creditors of 
 the grantor under their liens thus acquired. 
 
 Id. 
 
 43. A written transfer of a certificate of 
 shares of stock in a corporation, made in 
 good faith and for value, possession being 
 taken thereof as a pledge for the payment 
 of a private debt of the assignor, and the 
 transfer of which is not entered on the 
 proper book of the corporation, has prefer- 
 ence over a subsequent attachment thereof 
 in favor of a creditor of the assignor or 
 transferrer of the stock. Mapleton Bank v. 
 Standrod, 8 Idaho. 740, 71 Pac. 119, 67: 656 
 44. The right of a creditor to sequester a 
 portion of the debtor's property by attach- 
 ment, and thereby gain priority over other 
 creditors, is suspended by the appointment 
 of a receiver. New Haven Wire Co. Cases, 
 57 Conn. 352, 18 Atl. 266, 5: 300
 
 176 
 
 ATTACHMENT, III. a c. 
 
 45. The ratification of the act of an at- 
 torney in bringing an unauthorized attach- 
 ment suit will not relate, back to the time of 
 the commencement of the suit, so as to 
 give the attachment lien priority over the 
 liens of third parties which have been ac- 
 quired in good faith during the interval 
 between the bringing of the suit and the 
 ratification. Carruth-Byrnes Hardware Co. 
 v. Deere, 53 Ark. 140, 13 S. W. 517, 7: 405 
 
 III. Procedure, 
 a. Affidavits, Petition, etc. 
 
 Consideration of, in Determining Whether 
 Other Action is Fraudulent, see Bank- 
 ruptcy, 58. 
 
 See also imra, 57. 
 
 For Editorial Notes, see infra, IV. 10. 
 
 46. A statement of material facts in an 
 affidavit for attachment must be certain and 
 definite in a legal point of view, so as to in- 
 form those entitled to defend the attach- 
 ment what particular facts they must repel. 
 Goodman Bros. & Co. v. Henry, 42 W. Va. 
 626, 26 S. E. 528, 35: 847 
 
 47. A mere statement that a debtor has 
 conveyed or attempted to convey his prop- 
 erty with intent to defraud is not sufficient 
 ground lor an attachment without stating 
 facts and circumstances to sustain the 
 charge of fraud. Id. 
 
 48. Where the affidavit for attachment 
 and other papers in a cause show that the 
 defendants are nonresidents, and no order 
 of publication has been taken on the return 
 day of the process, the plaintiff is entitled 
 to a reasonable time in which to perfect his 
 suit by order of publication, and the suit 
 does not abate immediately upon the return 
 of the process and failure to take the order 
 of publication. McClung v. Sieg, 54 W. Va. 
 467, 46 S. E. 210, 66: 884 
 Supplemental affidavits. 
 
 For Editorial Notes, see infra, IV. 10. 
 
 49. The provision allowing time to file a 
 supplemental affidavit of other material 
 facts to show ground of attachment, made 
 by W. Va. Code, chap. 106, 1, is remedial, 
 and should be liberally construed. Good- 
 man Bros. & Co. v. Henry, 42 W. Va. 526, 
 26 S. E. 528, 35: 847 
 Amendments. 
 
 For Editorial Notes, see infra, IV. 10. 
 
 50. An attachment suit may be amended 
 so as to embrace the same cause of action 
 against persons who have intervened to 
 claim the property as was set up against the 
 original defendant. Finch v. Gregg, 126 N. 
 C. 170, 35 S. E. 251, 49: 679 
 
 51. An amendment to the prejudice of a 
 second lien by a deed of trust or attachment 
 cannot be made to an affidavit for an at- 
 tachment under W. Va. Code, chap. 106, 1, 
 allowing time to file a supplemental affi- 
 davit. [Court equally divided.] Goodman 
 Bros. & Co. v. Henry, 42 W. Va. 526, 26 S. 
 E. 528, 35:847 
 
 52. An attachment is discharged as to an 
 
 assignee for creditors of the defendant by an 
 amendment to the complaint and affidavit 
 for attachment, made after the assignment, 
 which substitutes an entirely different and 
 distinct cause of action. Heidel v. Benedict, 
 61 Minn. 170, 63 N. W. 490, 31: 422 
 
 b. Bonds; Liability on. 
 
 For Editorial Notes, see infra, IV. 11. 
 
 53. Sureties on an indemnity bond to a 
 sheriff to cause him to levy an attachment 
 may be held liable as principals to the own- 
 ers of the property attached if the attach- 
 ment is wrongful. Rice v. Wood, 61 Ark. 
 442, 33 S. W. 636, 31 : 609 
 
 c. Dissolution; Setting Aside, 
 
 Abatement of Proceedings, see Abatement 
 and Revival, 35, 45. 
 
 Appealability of Order as to Quashing, see 
 Appeal and Error, 40. 
 
 Review of Finding as to, see Appeal and 
 Error, 797. 
 
 Proper Party to Certiorari to Review Deci- 
 sion as to, see Certiorari, 31. 
 
 By Commencement of Insolvency Proceed- 
 ings, see Conflict of Laws, 267, 271, 272. 
 
 By Assignment for Creditors, see Constitu- 
 tional Law, 1199; Parties, 218. 
 
 Effect of Subsequent Appointment of Receiv- 
 er, see Courts, 419. 
 
 See also supra, 33, 48, 52. 
 
 54. The failure to continue an attachment 
 suit as required by statute does not defeat 
 the jurisdiction of the court, which has been 
 lawfully acquired over the plaintiffs and the 
 property attached. Morey v. Hoyt, 62 
 Conn. 542, 26 Atl. 127, 19: 611 
 
 55. An attachment suit against a foreign 
 building and loan association is not cut off 
 by the fact that it has gone into the hands 
 of a receiver in its home state. Southern 
 Bldg. & L. Asso. v. Price, 88 Md. 155, 41 
 Atl. 53, 42: 206 
 
 56. A claim filed with a receiver of a 
 corporation by a nonresident creditor, with 
 an express reservation or condition that by 
 filing it he does not intend to abandon any 
 rights gained by reason of an attachment 
 suit previously brought in another state, 
 does not estop the creditor from pursuing 
 the attachment. Linville v. Hadden, 88 Md. 
 594, 41 Atl. 1097, 43: 222 
 Grounds for; right to. 
 
 For Editorial Notes, see infra, IV. 8. 
 
 57. An attachment creditor cannot have a 
 prior attachment set aside oecause it was 
 without legal grounds, and was based on an 
 affidavit known to be false, by both parties 
 to the action in which it was filed, and was 
 permitted by the debtor while in failing cir- 
 cumstances to give a preference. Glaser 
 Bros. v. First Nat. Bank, 62 Ark. 171, 34 
 S. W. 1061, 35: 765 
 
 58. False statements by one creditor to 
 another as to an intent not to procure an 
 attachment will not constitute any ground 
 for setting aside an attachment on com- 
 plaint of the other creditor. Id.
 
 ATTACHMENT, IV. (Ed. Notes.) 
 
 177 
 
 Waiver of right to. 
 
 59. The right of attachment debtors to 
 move to quasli the attachment is not waived 
 by the fact that a bond was given to the 
 sheriff for the retention of the chattels at- 
 tached, by a stranger to the suit in whose 
 possession tney were. Pierce v. Johnson, 93 
 Mich. 125, 53 N. W. 16, 18: 486 
 
 IV. Editorial Notes. 
 
 See also Garnishment, IV. 
 
 i. Generally. 
 
 By Federal court to obttiin jurisdiction. 6: 
 
 252.* 
 Corporations as 'persons under laws relating 
 
 to attachment. 19: 224. 
 Effect of foreign attachment. 17: 88. 
 Effect of as election of remedies in case of 
 fraudulent purchase. 15: 
 90. 
 
 Jurisdiction obtained by attachment proc- 
 ess. 10: 505.* 
 
 Right to attachment or order of arrest in 
 breach of promise case. 
 59: 954. 
 
 Waiver of lien by. 50: 714. 
 First and last days in computing time on. 
 
 49: 223. 
 
 2. Nonresidence. 
 Attachment of property of nonresident. 10: 
 
 504.* 
 
 What is nonresidence for the purpose of at- 
 tachment. 19: 665. 
 Protracted absence from the state. 19: 
 
 665. 
 
 Absence on account of war. 19: 665. 
 Absence on account of contract work on 
 
 railroads. 19: 665. 
 Temporary absence from the state 19: 
 
 665. 
 Having a place of business in the state. 
 
 19: 666. 
 
 Temporary residence in the state where 
 attachment issues. 19: 
 666. 
 Effect of mere presence in the state. 
 
 19: 667. 
 
 Coming into the state to locate where 
 the attachment issues. 
 19: 667. 
 Going away to locate elsewhere. 19: 
 
 667. 
 
 Absconding debtors. 19: 668. 
 Fugitives from justice. 19: 668. 
 Nonresidence, generally. 19: 668. 
 3. Fraud. 
 See also infra, 8. 
 
 What intent to defraud will sustain an at- 
 tachment. 30: 465. 
 
 Actual as distinguished from construc- 
 tive fraud. 30: 465. 
 Fraudulent contraction of debts. 30: 
 
 468. 
 
 Against absconding debtors. 30: 470. 
 For removal of property. 30: 471. 
 For assignment, disposal, or secretion 
 
 of property. 30: 473. 
 The intent to defraud. 30: 473. 
 Participation in fraudulent intent 
 
 by transferee. 30: 475. 
 L.R.A. Dig. 12. 
 
 Gifts. 30: 476. 
 
 Sales of property. 30: 476. 
 
 Mortgaging or pledging property. 
 
 30: 479. 
 
 Assignments for the benefit of cred- 
 itors. 30: 480. 
 Threats to assign or dispose of 
 
 property. 30: 482. 
 Making preferences. 30: 484. 
 Transfers in payment of debts. 
 
 30: 485. " 
 
 Confession of judgment. 30: 486. 
 Transfers and withdrawals by part- 
 ners. 30: 486. 
 
 Formation of and transfer to corpo- 
 ration or partnership. 
 30: 487. 
 
 Overbuying. 30: 488. 
 Refusal to pay. 30: 488. 
 Statements and misrepresentations 
 
 by debtor. 30: 488. 
 Conversion of property. 30: 490. 
 Miscellaneous cases. 30: 490. 
 Right of creditors to attack attachment for 
 fraud and collusion. 35: 
 779. 
 
 4. Property subject; where subject. 
 As to Property Subject to Levy Generally, 
 see Levy and Seizure, IV. 
 1-4- 
 
 Property of national banks. 6: 226.* 
 Individual property of one partner for fraud 
 of his copartner. 25: 645. 
 Foreign railroad cars.' 64: 501. 
 Pew. 22: 215. 
 Property in the hands of an assignee for 
 
 creditors. 26: 593. 
 Valid assignments. 26: 593. 
 Proceeds of assigned property. 26: 593. 
 Choses in action. 26: 593. 
 Acknowledgment and record. 26: 594. 
 Acts of assignee qualifying inven- 
 tory. 26 : 594^ 
 Possession. 26: 594. 
 Estoppel. 26 : 595. 
 Fraudulent and void assignments. 26: 
 
 595. 
 
 Statutory rights of assignee. 26: 596. 
 When assent of creditors is required 
 
 26: 599. 
 
 Partnership assignments. 26: 600. 
 Shares of stock in foreign corporation. 55: 
 
 796. 
 
 Liability of rights or shares to attach- 
 ment or garnishment. 55: 
 797. 
 Presence or absence of certificates. 55: 
 
 806. 
 
 Property in custody of law. 10: 529.* 
 5. Exemption. 
 For Exemption, Generally, see Exemptions, 
 
 rv. 
 
 Exemption of laborers' wages from. 18: 
 
 309, 586. 
 
 Protection of pension money fund. 3: 219,* 
 Liability for evasion of exemption laws of 
 
 domicil by action in other 
 
 state. 36: 582. 
 6. Priorities. 
 Sufficiency of attachment to confer priority 
 
 of claim of United States. 
 
 29: 234.
 
 178 
 
 ATTACHMENT, IV. (Ed. Notes); ATTAINDER. 
 
 Right of landlord as against attaching cred- 
 itors of tenant. 12: '848'.* 
 Right of possession as between receiver and 
 creditor levying attach- 
 ment on property. 20: 
 392. 
 
 Effect as against attachment, of pledge or 
 other transfer of corpo- 
 rate stock not made in 
 books of company. 67: 
 656. 
 
 7. Proceedings in other states. 
 Right of attachment as affected by appoint- 
 ment of foreign receiver. 
 23: 52. 
 
 Effect of insolvency proceedings in other 
 state. 23: 35. [See also 
 65: 353.] 
 
 Priority of foreign assignment over sub- 
 sequent domestic attach- 
 ment. 17: 85. 
 Priority of foreign attachment over foreign 
 
 assignment. 17: 88. 
 8. Right of creditors to question validity 
 
 of. 
 What creditors may question the validity of 
 
 attachment. 35: 766. 
 Creditors interested in the property at- 
 tached. 35: 766. 
 Attachment creditors. 35: 767. 
 Judgment creditors. 35:768. 
 Mortgage creditors. 35: 768. 
 Partnership creditors. 35: 7(59. 
 Garnishee having an interest. 
 
 35: 769. 
 
 General creditors in absence of de- 
 fendant. 35: 769. 
 Receiver or assignee of creditors. 35: 
 
 770. 
 Insolvency gives an interest in the 
 
 property. 35: 770. 
 Rule as to receivers. 35: 770. 
 Rule as to assignee. 35: 770. 
 How creditors may question the validity of 
 
 attachment. 35: 771. 
 In the absence of statute relating to. 
 
 interventions. 35: 771. 
 Motion in court of law. 35: 771. 
 By other proceedings at law. 35: 
 
 77i. 
 
 Bill in equity. 35: 771. 
 By proceedings under a statute. 35: 
 
 772. 
 
 Intervention and defense. 35: 772. 
 Not by proceedings in another 
 
 court. 35: 774. 
 
 Assertion of vendor's lien or privi- 
 lege. 35: 774. 
 
 For what creditors may question the validi- 
 ty of attachment. 35: 775. 
 In general. 35: 775. 
 For want of cause of action. 35: 775. 
 For illegality or irregularity in the 
 
 proceedings. 35: 777. 
 In general. 35: 777. 
 For lack of ground for attachment. 
 
 35: 778. 
 For insufficiency of affidavits. 35: 
 
 778. 
 
 For fraud and collusion. 35: 779. 
 Rulo stated gonprally. 35: 779. 
 In amount of demand. 35: 779. 
 
 In preference of creditors. 35: 780. 
 In benefit to debtor himself. 35: 
 
 781. 
 
 Other frauds and deceits. 35: 781. 
 For injury to vested rights by altera- 
 tion of the amount 
 claimed. 35: 782. 
 
 At what stage of the proceeding creditors 
 may question the validity 
 of the attachment. 35: 
 782. 
 
 Before the trial. 35: 782. 
 After the trial. 35:783. 
 9. Judgment. 
 
 Extent of relief when process served con- 
 structively against non- 
 resident. 50: 583. 
 10. Affidavit. 
 Right to- amend affidavit for attachment. 
 
 31: 422. 
 Statute permitting amendments. 31 : 
 
 422. 
 General statute of amendments. 31: 
 
 424. 
 
 What is matter of substance and mat- 
 ter of form. 31 : 425. 
 Statute denying amendment. 31 : 425. 
 Rule in absence of statute. 31: 425. 
 Additional affidavits. 31 : 427. 
 Right to amend as against third person. 
 
 31 : 428. 
 
 11. Bond; damages for wrongful attach- 
 ment. 
 Form of judgment on attachment bond. 
 
 62: 442. 
 
 Execution of bond on condition that others- 
 shall sign. 45: 334. 
 
 Loss of profits as element of damages under 
 wrongful attachment. 52: 
 54. 
 
 Who is real party in interest who must 
 bring action on attach- 
 ment bond. 64: 605. 
 12. Injunction. 
 
 Injunction in aid of attachment. 20: 446. 
 Injunction in favor of attaching creditors 
 against sale under execu- 
 tic" or subsequent attach- 
 ment. 30: 127. 
 Against attachment in other state. 21: 75. 
 
 ATTAINDER. 
 
 Effect of Constitutional Provision as to, 
 on Murderer's Right to Inherit, see 
 Descent and Distribution. 12. 14. 
 
 1. A resolution expelling a member from 
 the legislature is not a bill of attainder 
 forbidden by the Constitution. French v. 
 Senate. 146'Cal. 604, 80 Pac. 1031, 69:556 
 
 2. The provision of a state Constitution 
 disfranchising all persons who have volun- 
 tarily borne arms against the. government 
 of the United States or aided or abetted an 
 attempted overthrow of the government, 
 unless the disability has been removed by 
 service and honorable discharge in the 
 Army, or by the legislature, is not invalid 
 as a bill of attainder, in violation of U. S.
 
 ATTEMPT ATTORNEYS. 
 
 179 
 
 Const, art. 1, 10. Boyd v. Mills, 53 Kan. 
 694, 37 Pac. 16, 25: 486 
 
 ATTEMPT. 
 
 To Commit Crime, see Criminal Law, I. c. 
 Punishment for, see Criminal Law, 223, 224, 
 
 240. 
 To Procure False Testimony, Evidence of, 
 
 see Evidence, 1796, 1797. 
 
 Editorial Xotes. 
 
 To commit offenses; what constitutes. 3: 
 
 743.* 
 
 As Crimes. 10: 109.* 
 Solicitation as attempt to commit crime. 
 
 25: 434. 
 
 ATTENDANCE. 
 At School, see Schools, 9, 10. 
 
 ATTESTATION. 
 
 Of Change of Beneficiary, see Insurance, 738, 
 
 739. 
 
 Of Bill, see Statutes, 6. 
 Of Will, see Wills, I. b. 
 
 ATTESTATION CLAUSE. 
 
 To Will, see Evidence, 669; Wills. 46, 123, 
 125. 
 
 ATTESTING WITNESSES. 
 See Subscribing Witnesses. 
 
 ATTORNEY GENERAL. 
 
 Application for Rehearing by, as Amicus 
 
 Curi(p, see Appeal and Error, 1254. 
 Affidavit by, for Certiorari, see Certiorari, 
 
 20, 34, 35. 
 Power to Dismiss Prosecution, see Criminal 
 
 Law, VI. 24. 
 Judicial Notice of Order to Prosecute Crim- 
 
 inal Proceedings, see Evidence, 28. 
 Signing of Indictments by, see Indictment, 
 
 etc., 6. 
 Prior Decision as Bar to Suit, see Judgment, 
 
 297. 
 
 As Proper Party to Suit, see Parties, 138. 
 Effect of Refusal to Bring Suit, see Parties, 
 
 93. 
 
 1. The mere signature of the attorney 
 general in his official capacity, to a com- 
 plaint or bill shown to be that of a private 
 relator, is not sufficient to impress it with 
 
 the functions and capacity of an informa- 
 tion competent to put in motion the ma- 
 chinery of the courts, whereby they will 
 take cognizance of questions pertaining to 
 the high prerogative powers of the state, 
 or affecting the whole people in the sover- 
 eign capacity. State ex rel. Taylor v. Lord, 
 28 Or. 489/43 Pac. 471, 31: 473 
 
 Right to bring suit. 
 For Enforcing Provision as to Height of 
 
 Building, see Buildings, 5, 6. 
 Proceeding for Dissolution of Corporation, 
 
 sec Corporations, 745-749. 
 To Protect Fish, see Fisheries, 11. 
 To Restrain Corporate Excess of Power, see 
 
 Injunction, 227. 
 
 Necessity of Bringing Mandamus Proceed- 
 ing, see Mandamus, 157, 163, 164. 
 For Abatement of Nuisance, see Nuisances, 
 
 120. 
 Action to Determine Title to Office, see 
 
 Officers, 165. 
 
 Right to Institute Quo Warranto Proceed- 
 ings, see Quo Warranto, 15, 26, 27. 
 To Vacate Street Railway Franchise, see 
 
 Street Railways, 40, 41. 
 Retrospective Statute as to, see Statutes, 
 543. 
 
 2. The discretion of the attorney general 
 in determining what the public 'interests 
 require as to bringing an action against a 
 domestic business corporation or its officers 
 is absolute under N. Y. Code Civ. Proc. 
 1808, and cannot be made the subject of in- 
 quiry by the courts. People v. Ballard, 134 
 N. Y. 269. 32 N. E. 54, 17: 737 
 
 3. A proceeding in equity to enjoin an in- 
 trusion thereon, and to compel the reinovaf 
 of buildings erected on land reserved for 
 public landing places by private individuals, 
 may be maintained by the attorney general. 
 Attorney General ex rel. Adams v. Tan. 148 
 Mass. 309, 19 N. E. 358, 2:87 
 
 4. The attorney general can properly in- 
 stitute proceedings, under Mass. Stat. 18.')2 r 
 chap. 389. to require a railroad company to 
 issue mileage tickets and receive those of 
 other companies, since it is not a proceeding 
 in equity, but rather a petition for a writ 
 of mandamus in a matter concerning the 
 public. Attorney General v. Old Colony R. 
 Co. 160 Mass. 62, 35 N. E. 252, 22-" 112 
 
 5. The want of interest or title to relief 
 in a private person on whose complaint the 
 attorney general has based an information 
 in a suit on behalf of the state does not de- 
 feat the right of action, as it is not essen- 
 tial to the jurisdiction of the court that 
 there should be any private relator beyond 
 the attorney general. State ex rel. Adams 
 County v. Cunningham, 81 Wis. 440, 51 N. 
 W. 724, 15:561 
 
 ATTORNEYS. 
 
 I. Right to Practise. 
 
 a. Admission. 
 
 b. Disbarment. 
 
 c. License.
 
 180 
 
 ATTORNEYS, I. a. 
 
 II. Relation to Client. 
 
 a. In General; Liability. 
 
 b. Authority. 
 
 c. Compensation; Lien. 
 
 1. In General; Amount of. 
 
 2. Lien for; Rights in Fund or 
 
 Property. 
 
 d. Summary Proceedings. 
 
 III. Remedies Against; Motions. 
 
 IV. Editorial Notes. 
 
 Absence of, as Ground for Reversal, see 
 Appeal and Error, 1117. 
 
 Absence of, as Ground for Continuance, see 
 Continuance and Adjournment, 5, 6. 
 
 Argument of, see Appeal and Error, VII. m, 
 5; New Trial, 2; Trial, I. d. 
 
 Appearance by, see Appearance. 
 
 Contempt by, see Contempt, 25, 26. 
 
 Validity of Contract with, Contracts, 450, 
 451. 
 
 What Constitutes Fulfilment of Contract to 
 Employ Permanently, see Contracts, 
 697. 
 
 Assisting in Prosecution, see District and 
 Prosecuting Attorneys, 3, 4. 
 
 Estoppel by Letter of, see Estoppel, 132. 
 
 Opinion Evidence bv, see Evidence, 1331, 
 1361, 1369. 
 
 Confidential Communications to, see Evi- 
 dence, 1493-1507, 1514, and also infra, 
 IV. 9. 
 
 Administrator as Assistant Attorney, see 
 Executors and Administrators, 37. 
 
 Exemption of Library of, see Exemptions, 
 46. 
 
 Larceny by, see Larceny, 6, 7. 
 
 Of Legislative Committee, see Legislature, 
 13. 
 
 Application by, for Mandamus, see Man- 
 damus, 162. 
 
 Notice to Member of Firm of, see Notice, 
 52-54. 
 
 Accounting between Partners, see Partner- 
 ship, 115. 
 
 Receipt of Money by, as Trustee, see Prin- 
 cipal and Surety, 13. 
 
 Subrogation of, see Subrogation, 10. 
 
 Reference of Title to, see Vendor and Pur- 
 chaser, 51, 52. 
 
 Privilege from Arrest, see Writ and Process, 
 61, 62. 
 
 Exemption of, from Service of Process, see 
 Writ and Process, 68, 69. 
 
 As to Attorney General, see Attorney Gen- 
 eral. 
 
 I. Right to Practise, 
 a. Admission. 
 
 Special Legislation as to, see Statutes, 298. 
 For Editorial Notes, see infra, IV, 1. 
 
 1. The details of the common law as to 
 the appointment of attorneys at law are 
 not in force in New Hamoshsire, being in- 
 applicable to the situation and circumstan- 
 ces of the inhabitants of that state. Re 
 Ricker. 66 N. IT. 207, 29 Atl. 559, 24: 740 
 
 la. The power to prescribe reasonable 
 
 rules for the admission of persons to prac- 
 tise law is one of the inherent privileges 
 of the courts, and necessarily extends to 
 control over the membership of the bar. 
 Re Leach, 134 Ind. 665, 34 N. E. 641, 21 : 701 
 
 2. A statute overriding the rules of court 
 respecting admission of attorneys, by requir- 
 ing the admission of any person who began 
 to study law before a specified date, provid- 
 ed he has obtained a diploma from a law 
 school in the state after a specified period 
 of attendance, or passed a satisfactory ex- 
 amination before an examining board, af- 
 ter a prescribed course of study, is an un- 
 constitutional assumption by the legislature 
 of power properlv belonging to the courts. 
 Re Day, 181 111. 73, 54 N. E. 646, 50: 519 
 
 3. A statute providing for the admis- 
 sion of attorneys from other states with- 
 out examination does hot affect a provision 
 of a prior statute that attorneys must be 
 citizens of the United States. Re Yam- 
 ashita, 30 Wash. 234, 70 Pac. 482, 59: 671 
 
 4. Attorneys at law are not civil officers 
 within Colo. Const, art. 7, 6, requiring the 
 incumbent of a civil office to be a qualified 
 elector. Re Thomas, 16 Colo. 441, 27 Pac. 
 707, 13: 538 
 
 5. An attorney at law is not an officer of 
 the government, such that the right of ad- 
 mission to the bar will depend on eligibility 
 to public office. Re Ricker, 66 N. H. 207, 
 29 Atl. 559, 24: 740 
 Right of women to. 
 
 For Editorial Notes, see infra, TV. 1. 
 
 6. The right to practise law is not a nat- 
 ural right inherently possessed by a woman, 
 independent of legislative authorization. 
 Re Maddox, 93 Md. 727, 50 Atl. 487, 55: 298 
 
 7. Women are not excluded from admis- 
 sion as attorneys at law by the common-law 
 rule which denies them the right to vote or 
 hold public office. Re Ricker, 66 N. H. 207. 
 29 Atl. 559, 24: 740 
 
 8. Women will be admitted to the bar on 
 equal terms with men, in the absence of a 
 statutory or constitutional provision to the 
 contrary. Re Thomas, 16 Colo. 441, 27 Pac. 
 707, 13: 538 
 
 9. A woman is not excluded from the 
 right to practise law by the provision of 
 Ind. Const, art. 7, 21, that "every person of 
 good moral character, being a voter, shall be 
 entitled to admission to practise law," and 
 the corresponding provision of Ind. Rev. 
 Stat. 1881. 962. Re Leach, 134 Ind. 665, 
 34 N. E. 641. 21: 701 
 
 10. A provision for admitting to the bar 
 lawyers from other states will not apply in 
 favor of women, when found in a statute 
 providing for admission to the bar of "male 
 citizens." Re Maddox, 93 Md. 727, 50 Atl. 
 487, 55: 298 
 
 11. A code provision that the masculine in- 
 cludes all genders, except where such con- 
 struction would be absurd or unreasonable, 
 will not entitle a woman to admission to the 
 bar, under a provision that "any male cit- 
 izen" having certain qualifications sh'all be 
 so admitted, or an amendment changing the 
 method of admitting applicants, which deals 
 alone with the masculine gender. Id.
 
 ATTORNEYS, I. b. 
 
 181 
 
 12. The use of the masculine pronoun ex- 
 clusively in the statutes relating to appli- 
 cants for admission to the bar and to li- 
 censed attorneys is not sufficient to show a 
 legislative intent to exclude women from the 
 bar. Re Thomas, 16 Colo. 441, 27 Pac. 707, 
 
 13: 538 
 
 12a. In New Hampshsire the legal disa- 
 bilities of married women have been so far 
 removed that marriage does not disqualify 
 a woman for admission to the bar. Re 
 Ricker, 66 N. H. 207, 29 Atl. 559, 24: 740 
 In court of Alabama claims. 
 
 13. That a person has been admitted as 
 an attorney at law in the Supreme Court of 
 the United States, in the courts of Massa- 
 chusetts, and in the United States court of 
 claims, does not confer upon him the right 
 to practise before the Court of Commission- 
 ers of Alabama Claims; and an order dis- 
 barring him from practising be^pre the lat- 
 ter court will not remove him from the bar 
 of any of the other courts. Manning v. 
 French, 149 Mass. 391, 21 N. E. 945, 4: 339 
 
 14. The Court of Commissioners of Ala- 
 bama Claims had authority to make rules 
 for the admission of persons to prosecute 
 claims before it as attorneys for claimants, 
 under the grant, in the act of June 23, 1874, 
 3, of power to make rules for regulating 
 the forms and mode of procedure before it, 
 and for carrying into full and complete ef- 
 fect the provisions of the act creating the 
 court: and this authority included power to 
 determine whether or not an attorney al- 
 ready admitted was a fit person to remain 
 an attorney, and to remove him in case 
 he was not. Id. 
 
 b. Disbarment. 
 
 Compensation of Attorney Conducting Pro- 
 ceedings, see Counties, 43. 
 
 Costs in Proceedings for, see Costs and 
 Fees, 7. 
 
 Disqualification of Judge to Hear Proceed- 
 ing, see Judges, 41. 
 
 Individual Liability of Judge for, see Judges, 
 63, 64. 
 
 See also supra, 13, 14. 
 
 For Editorial Notes, see infra, IV. 2. 
 
 Grounds for. 
 
 Conviction of Felony, Effect of Appeal in 
 Supersedeas, see Appeal and Error, 116. 
 Repeal of Statute as to, see Statutes, 568. 
 For Editorial Notes, see infra, IV. 2. 
 
 15. A bad or fraudulent motive must be 
 shown to justify the disbarment of an attor- 
 ney, although the acts charged against him 
 are proved to have been committed. State 
 ex rel. Fowler v. Finley, 30 Fla. 325, 11 So. 
 674, 18: 401 
 
 16. The interlineation into a decree, after 
 it has received the judicial signature, of im- 
 material words patently omitted therefrom 
 through clerical oversight, is not ground for 
 disbarring an attorney, where he acted with- 
 out any bad or fraudulent motive. Id. 
 
 17. An attorney's anonymous advertise- 
 ment that divorces are legally obtained by 
 him very quietly which are erood everywhere 
 is sufficient ground for his disbarment. 
 
 People ex rel. Attorney General v. MacCabe, 
 18 Colo. 186, 32 Pac. 280, 19:231 
 
 18. The absolute disbarment of an attor- 
 ney is justified where, upon receiving an un- 
 enforceable claim against his own client, he 
 caused a complaint to be served in the name 
 of another attorney, and then advised his 
 client to settle, falsely telling him, with full 
 knowledge of the facts, that the claim was 
 good and could be collected out of his prop- 
 erty. Fairfield County Bar ex rel. Fessen- 
 den v. Taylor, 60 Conn. 11, 22 Atl. 441, 
 
 13: 767 
 
 19. Champerty renders an attorney ame- 
 nable to the summary jurisdiction of the 
 court, notwithstanding it may be effectual 
 as a defense to the enforcement of a con- 
 tract. Re Evans, 22 Utah, 366, 62 Pac. 913, 
 
 53: 952 
 
 20. An attorney who, in the pursuit of his 
 profession, makes an agreement which is 
 against public policy, is guilty of a flagrant 
 breach of professional duty. Id. 
 
 21. Receiving property of the government 
 knowing it to have been stolen, with intent 
 to convert the same to one's own use, is 
 an offense involving moral turpitude. Re < 
 Kirby, 10 S. D. 322, 73 N. W. 72, 10 S. D. 
 414, 73 N. W. 907, 39: 856 
 
 22. An attorney convicted of an offense 
 punishable by imprisonment in the peniten- 
 tiary is guilty of felony within the meaning 
 of a statute authorizing disbarment. Id. 
 
 23. A license to practise law will be re- 
 voked which is secured by a fraudulent con- 
 cealment of the fact that the plaintiff has 
 recently been convicted of embezzling funds 
 from a client in another state, especially if, 
 since its issuance, the plaintiff has been 
 guilty of professional misconduct evincing 
 such lack of personal integrity and profes- 
 sional honor as to establish that he is un- 
 worthy to be allowed to hold it. People 
 ex rel. Deneen v. Gilmore, 214 111. 569, 73 
 N. E. 737, 69: 701 
 
 24. An attorney will not be struck from 
 the roll and suspended from practice of his 
 profession because of a wrongful appropria- 
 tion to his own use of money belonging to 
 his client, which appears as a single offense 
 in a long professional career, where he had 
 no actual intent to defraud, and not only 
 fully expected to repay the money when de- 
 manded, but has in fact made full restitu- 
 tion, and has for eight years thereafter 
 maintatined a good character for integrity 
 in private and public stations. Re Lentz 
 (N. J. Sup.) 65 N. J. L. 134, 46 Atl. 761, 
 
 50: 415 
 
 Practice as to. 
 Admissibility of Record of Conviction in, 
 
 see Evidence, 876. 
 Judgment against Attorney as Evidence for 
 
 Disbarment, see Evidence, 868. 
 
 25. An order for an attorney at law to 
 show cause why he should not be disbarred 
 is not a process within the meaning of a 
 constitutional provision requiring process to 
 be in the name of the state. Re Kirby, 10 
 S. D. 322, 73 N. W. 92, 10 S. D. 414, 73 N. 
 W. 907, 39: 856
 
 ATTORNEYS, I. c; II a. 
 
 26. A proceeding for disbarring an attor- 
 ney is a civil proceeding. Id. 
 
 27. The summary proceeding of disbar- 
 ment is civil, not criminal, but requires more 
 than a preponderance of the evidence. The 
 <milt of the attorney must be clearly estab- 
 lished. Re Evans, 22 Utah, 366, 62 Pac. 
 913, 53: 952 
 
 28. A judge should personally hear the 
 evidence in a proceeding for the disbarment 
 nf an attorney, and should not delegate the 
 taking of the evidence to a commissioner 
 or anyone else. State ex rel. Fowler v. Fin- 
 ley. 30 Fla. 325, 11 So. 674, 18: 401 
 Charges against attorney for. 
 
 29. Charges preferred against an attorney 
 for the purpose of disbarring him should be 
 clear, specific, and circumstantial, and should 
 be stated with great particularity. State 
 ex rel. Fowler v. Finlev, 30 FH, 325, 11 So. 
 674. 18:401 
 
 30. Attorneys preferring charges against 
 another attorney of unprofessional conduct, 
 for the purpose of having him disbarred, 
 need not show that they constitute a com- 
 mittee appointed by the bar association of 
 the county for that purpose, either to estab- 
 lish their' right to institute the proceeding 
 or to give the court jurisdiction. Fairfield 
 County Bar ex rel. Fessenden v. Taylor, 60 
 Conn 'll. 22 Atl. 441. 13: 767 
 Suspension instead of disbarment. 
 
 30a. An attorney's answer to a charge of 
 improper advertising for divorce business, 
 that he did it in entire ignorance that it 
 was wrong, and that he ceased on com- 
 mencement of the proceeding, and that he 
 would cheerfully abide by and obey the di- 
 rections of the court, was considered suffi- 
 cient to justify his suspension for six 
 months, instead of his disbarment. People 
 ex rel. Attorney General v. MaeCabe. 18 Colo. 
 ISO. 32 Pac. 280. 19: 231 
 
 What will preclude; defenses. 
 
 31. The resignation of an attorney with- 
 out consent or privilege of the court is in- 
 effectual to preclude his disbarment, when 
 proceedings therefor were pending at the 
 time of his resignation. Re Thompson, 32 
 Or. 490, 52 Pac. 570, 40: 194 
 
 32. The pardoning of a lawyer who has 
 been convicted of embezzling funds from 
 his client does not efface the moral turpi- 
 tude nnd want of professional honesty in- 
 volved in the crime, nor obliterate the 
 stain upon his moral character. People ex 
 rel. Deneen v. Gilmore. 214 Til. 569. 73 X. 
 E. 737. 69: 701 
 
 . 33. A writ of error and supersedeas in a 
 proceeding in which an attorney has been 
 convicted of felony are matters of defense 
 which ho must prove in n proceeding to dis- 
 bar him on account of the conviction. RP 
 Kirbv. 10 S. D. 322. 73 X. W. 92. 10 S. D. 
 414. 73 X. W. 907, 39: 856 
 
 c. License. 
 
 Impairing Obligation of Contract as to. see 
 
 Constitutional Law. 1124. 1125. 
 See also supra. 23. 
 
 34. Each member of a firm of practising 
 
 lawyers must pay a license tax and fee 
 prescribed for lawyers practising their pro- 
 fession, by Fla. act June 10, 1891 (Fla. Rev. 
 State, pp. 929 et seq.) and must take out 
 the required license, before he can lawfully 
 practise his profession. Blanc-hard v. State 
 ex rel. Calhoun, 30 Fla. 223, 11 So. 785, 
 
 18: 409 
 
 35. Lawyers are not exempt from occupa- 
 tion tax under the Texas Constitution, an 
 the ground that as officers of the court they 
 are a part of the judicial system, which such 
 occupation tax would tend to cripple or de- 
 stroy. Ex parte Williams, 31 Tex. Crim. 
 Rep* 262, 20 S. W. 580, 21:783 
 
 36. An occupation tax will not be hpld 
 unconstitutional as to lawyers, on the 
 ground that some criminal might be de- 
 prived of counsel by reason of the law, 
 at least without showing that some criminal 
 has been actually deprived thereby of legal 
 counsel. Id. 
 
 37. An attorney at law who has his office 
 and place of business within the city limits, 
 although he resides outside, is subject to a 
 license tax imposed by ordinance in general 
 terms "on every attorney at law." Peters- 
 burg v. Cocke." 94 Va. 244, 26 S. E. 576, 
 
 36:432 
 
 II. Relation to Client, 
 a. In General; Liability. 
 
 Disqualification to Take Acknowledgment, 
 see Acknowledgment, 4. 
 
 Ratification of Unauthorized Bringing of 
 Attachment Suit, Effect, see Attach- 
 ment 45. 
 
 Settlement of Suit without Attorney's 
 Knowledge, see Compromise and Settle- 
 ment. 15. 
 
 Illegal Contract to Defend Prosecutions for 
 Sale of Liguor, see Contracts, 418. 
 
 Rescission of Contract for Undue Influence 
 see Contracts, 803, 804. 
 
 Right to Purchase at Judicial Sale, see Ju- 
 dicial Sale, 16. 
 
 Laches Preventing Vacation of Deed to At- 
 torney, see Limitation of Actions, 12. 
 
 Power of Bank Attorney to Emplov, see 
 Banks. 31. 
 
 Governor's Power to Employ, see Governor, 
 2. 
 
 Employment by Insane Person, see Incom- 
 petent Persons, 14. 
 
 Employment of, by Bishop, see Religious 
 Societies. 66. 67. 
 
 Power of Town to Employ, see Towns, 6, 
 14. 
 
 Appointment of, by Foreign Association, see 
 Building and Loan Associations, 83. 
 
 Emplovment by. for County, see Counties, 
 83. 
 
 See also supra. 24. 
 
 For Editorial Xotes. see infra, TV. 4. 
 
 38. The relation of attorney and client 
 is confidential. The attorney by his obliga- 
 tion is bound to discharge his duties to his 
 client with the strictest fidelity, and he is 
 amennblp to the summary jurisdiction of
 
 ATTORNEYS, II. b. 
 
 183 
 
 the court for dereliction of duty. Re Evans, 
 22 Utah, 366, 62 Pac. 913, 53: 952 
 
 39. The appearance as attorney in pro- 
 ceedings to enforce a loggers' lien on be- 
 half of the claimant, of the notary public 
 who administered the oath in support of the 
 lion, is not unlawful. S'ullivan v. Hall. 80 
 Mich. 1, 48 X. W. (546, 13:556 
 
 40. An attorney who lias prepared deeds 
 of trust, and been consulted as to the pur- 
 poses for which they were made, cannot 
 afterwards, on purchasing the land included 
 therein, on an execution sale, maintain a 
 suit to set aside such deeds as fraudulent : 
 and where another person simply loans to 
 him the use of his name in purchasing the 
 lands and bringing the suit, the case will 
 be treated as if the attorney were the ac- 
 tual party. Davis v. Kline, 96 Mo. 401, 
 9 S. W. 724.. 2: 78 
 
 41. An attorney cannot withhold from his 
 client information acquired by 'him in the 
 exercise of such attorneyship, and use the 
 same to extort an increased compensation 
 from his client, or coerce him into a contract 
 he would not enter into upon full informa- 
 tion. Dorr v. Camden, 55 W. Va. 226, 46 
 S. E. 1014. 65: 348 
 Substitution. 
 
 42. The substitution of an attorney for a 
 corporation, in a proceeding to restrain a re- 
 ceiver, cannot be prevented by the prior at- 
 torney on the ground of disqualification by 
 reason of his relations to the receiver, so 
 long as the parties do not object. People's 
 Home Sav. Bank v. San Francisco Super. Ct. 
 104 Cal. 649, 38 Pac. 452, 29: 844 
 Liability. 
 
 Of Attorney for Assignee of Creditors, see 
 Assignments for Creditors, 38. 
 
 For Receiving Money, see Assumpsit, 25. 
 
 As Stockholder, see Corporations, 546. 
 
 For Mistake in Drawing Will, see Parties, 
 59. 
 
 For Editorial Notes, see infra, IV. 8. 
 
 43. A lawyer cannot be held liable for a 
 mistake in reference to a matter in which 
 members of the profession, possessed of rea- 
 sonable skill and knowledge, may differ as 
 to the law, until it has been settled in the 
 courts: nor if he is mistaken ir. a point of 
 law on which reasonable doubt may be en- 
 tertained by well-informed lawyers. Citi- 
 zens Loan, P. & Sav. Asso. v. Friedley, 123 
 Tnd. 143, 23 N. E. 1075. 7:669 
 
 44. Attorneys are not liable to their 
 client for an error of judgment upon a 
 doubtful question of law, such as a deter- 
 mination to proceed in a pending action in 
 a state court, instead of abandoning that 
 and'presonting their claim against a receiver 
 in a Federal court, where the circumstances 
 were such that attorneys of the greatest 
 emiiipmt 1 in the profession might well have 
 doubted as to the best course to pursue to 
 attain success for their client. Hill v. My- 
 natt (Tenn. Ch.) 59 S. W. 163, 52: 883 
 
 45. A lawyer upon whose advice a mort- 
 gage was taken in 1883, executed by*a hus- 
 band and wife upon lands held by them as 
 tenants by entireties, to secure the hus- 
 band's debt, cannot be held liable for the loss 
 
 occasioned by the death of the husband and 
 the defeat by the wife of a foreclosure suit 
 upon the ground that she signed as surety 
 for her husband, although it was well set- 
 tled when the mortgage was executed that 
 the wife's signature was void, since it was 
 not decided until 1884 that such mortgage 
 was void as to both husband and wife. Cit- 
 izens Loan, F. & Sav. Asso. v. Friedley, 
 123 Ind. 143, 23 X. E. 1075, 7:669 
 
 46. An attorney is not liable to a son 
 for even gross negligence in so drawing the 
 will of the mother as not to carry out her 
 desires in the disposition of her property, 
 even though the son suffers great pecuniary 
 loss thereby, there having been no privity of 
 contract between the son and the attorney. 
 Buckley v. Gray, 110 Gal. 339, 42 Pac. 900. 
 
 31 : 862 
 Settlement with client. 
 
 47. Independent advice is not necessary to 
 enable a competent client to effect a binding 
 settlement with his attorney concerning serv- 
 ices already rendered, where the client is in 
 a position to form an entirely free and un- 
 fettered judgment independent altogether of 
 any sort of control. Kidd v. Williams, 132 
 Ala. 140, 31 So. 458, 56: 879 
 
 b. Authority. 
 
 Unauthorized Appearance on Appeal, see 
 Appeal and Error, 138. 
 
 Acceptance of Service of Citation on Appeal, 
 see Appeal and Error, 136. 
 
 Power to Assign Option Contract, see As- 
 signment, 29. 
 
 Of Assignee for Creditors, see Assignments 
 for Creditors, 37. 
 
 To Purchase on Foreclosure, Presumption as 
 to, see Evidence, 285. 
 
 Admission by Attorney for Infant, see In- 
 fants, 102. 
 
 Of Citv Attorney, see Municipal Corpora- 
 tions, 603. 
 
 Imputing Knowledge of, to Client, see No- 
 tice, 29, 33, 38. 
 
 For Editorial Notes, see infra, IV. 5. 
 
 48. An attorney who appears for defend- 
 ant in an action for divorce, and serves an 
 answer therein, cannot withdraw such ap- 
 pearance and answer in avowed hostility 
 to his client and as an act of retaliation 
 against him for alleged nonpayment of fees. 
 Nickells v. Nickells, 5 N. D. 125. 64 N. W. 
 73. 33: 515 
 
 49. Acts of record by counsel, consenting 
 to the allowance of alimony in a gross sum, 
 are binding on the client. Wood v. Wood. 
 59 Ark. 441. 27 S. W. 641, 28: 157 
 , 50. An attorney of record has power to 
 waive objections to evidence, and enter into 
 stipulations for the admission of facts on 
 the trial. Oarrett v. Hanshue, 53 Ohio St. 
 482. 42 N. E. 256, 35: 321 
 
 51. A stipulation by an attorney that the 
 action shall abide the event of another 
 action pending binds his adult clients, un- 
 less it be improvidently, fraudulently, or 
 collusively made. Eidam v. Finnegan. 48 
 Minn 53/50 N. W. 933, 16: 507
 
 184 
 
 ATTORNEYS, IL c, I. 
 
 52. But such stipulation does not bind an 
 infant party unless approved and ratified by 
 the court upon a showing that it is for the 
 interest, or, at least, not prejudicial to the 
 interest, of the infant. It must appear that 
 the matters in controversy in the two 
 actions, so far as affect the infant, are pre- 
 cisely the same, and that he is represented 
 in the two actions by the same guardian 
 ad litem. Eidam v. Finnegan, 48 Minn: 53, 
 50 N. W. 933, 16: 507 
 
 53. Although money made on execution 
 can by the Florida statute be paid to an at- 
 torney of record of the execution creditor, 
 such attorney has no authority as such to 
 authorize the clerk of the circuit court in 
 his official capacity to accept money on a 
 judgment. Hendry v. Benlisa, 37 Fla. 609, 
 20 So. 800, 34: 283 
 To settle or make final disposition of suit. 
 
 54. That an agreement by an attorney 
 for settlement was not brought to the at- 
 tention of the court, and did not obtain its 
 sanction before it was entered of record, 
 does not impair its effect. Beliveau v. 
 Amoskeag Co. 68 N. H. 225, 40 Atl. 734, 
 
 44: 167 
 
 55. An attorney employed by the next 
 friend of an infant to prosecute a suit on 
 the infant's behalf has power to make a 
 settlement of the suit which will bind the 
 infant. Id. 
 
 56. A discharged attorney who is per- 
 mitted to remain the attorney of record 
 without notice to the opposite party may 
 enter into an agreement for settlement of 
 the suit, which will "bind his former client. 
 
 Id. 
 
 57. A final disposition of a cause may be 
 made by agreement of the attorney of 
 record, as to whose authority no limitation 
 is known or might be known by reasonable 
 inquiry by the opposite party, which is 
 entered of record, made an order of court, 
 and executed by the adversary in good faith. 
 
 Id. 
 To submit case to arbitration. 
 
 58. An attorney has no implied authority 
 to submit a case in which he is employed to 
 arbitration by a submission made in. pais, 
 without order or direction of the court or 
 the knowledge of his client. Daniels v. New 
 London. 58 Conn. 156. 19 Atl. 573, 7: 563 
 
 5!). A material change in a submission to 
 arbitration, made by the parties by an act 
 in pa'ti. is not within the authority of an 
 attorney, unless he is expressly authori/ed 
 to make it. Id. 
 
 60. A change in a written submission to 
 arbitration by which the award is to be 
 made final, instead of being returned to 
 court for judgment by the court, is a ma- 
 terial change such as an attorney cannot 
 make unless expressly authorized. Daniels 
 v. New London, 58 Conn. 156, 19 Atl. 573. 
 
 7: 563 
 
 c. Compensation ; Lien. 
 1. In General; Amount of 
 
 Matters Included in Item of Account, see 
 Accounts. ~2. 
 
 Stipulation in Contract for Attorney's Fees 
 to Be Added to Obligation, see At- 
 torneys' Fees. 
 
 Champertous Agreements between Attorney 
 and Client, see Champerty, II. 
 
 Validity of Contract as to, see also Con- 
 tracts, 413-418, 486. 
 
 Implied Agreement to Pay for Services, see 
 Contracts, 11-13. 
 
 Preference of, see Corporations, 806, 807. 
 
 Of Attorney Conducting Disbarment Pro- 
 ceedings, see Counties, 43. 
 
 Allowance for Attorneys as Element of 
 Damages without any Stipulation there- 
 for, see Damages, III. r. 
 
 Opinion Evidence as to Value of Service, see 
 Evidence. 1331. 
 
 For Services to Decedent's Estate, see Ex- 
 ecutors and Administrators, 134, 135. 
 
 Exemption of Claim for, from Garnishment, 
 see Exemptions, 36. 
 
 Married Woman's Liability on Contract 
 Employing Attorney, see Husband and 
 Wife, 39. 
 
 For Services to Infant, see Infants, 67, 68. 
 
 Father's Duty to Pay, see Parent and 
 Child, 8. 
 
 Right of one Partner to Make Collection 
 without Charging for Services, see 
 Partnership, 23. 
 
 For Services in Procuring Pension, see 
 Pension, 2. 
 
 See also supra, 41; Mortgage, 228. 
 
 For Editorial Notes, see infra, IV. 3, 7. 
 
 61. In determining the value of the pro- 
 fessional services of an attorney, the im- 
 portance of the case to the client may be 
 considered. Selover v. Bryant, 54 Minn. 434, 
 56 N. W. 58, 21 : 418 
 
 62. One thousand dollars is adequate 
 compensation for the services of an at- 
 torney in enforcing the liability of a 
 sheriff's bond for his failure to pay $7,114.50 
 as directed by a judgment, where the judg- 
 ment for principal and penalty is $10,000, 
 and property is turned over to his client in 
 compromise valued at $8.850. Davis v. 
 Webber, 66 Ark. 190, 49 S. W. 822, 45: 196 
 
 63. An attorney who has withdrawn from 
 a case in which the client has other counsel, 
 because of misconduct of the client sufficient 
 to justify him, may recover for services pre- 
 viously rendered. Powers v. Manning, 154 
 Mass. '370, 28 N. E. 290, 13: 258 
 
 64. An attorney employed by a building 
 and loan association to procure the dis- 
 charge of all the receivers who have been 
 appointed for it, but who is also employed 
 and paid by one of the contesting sets of 
 receivers and renders services for them,*will 
 be precluded by public policy from recover- 
 ing from the association, even if the board 
 of directors has by resolution approved 
 what he has done, with full knowledge of 
 his inconsistent employments. Strong v. 
 Brennan, 183 111. 97. 55 N. E. 675, 47: 792 
 Contract for contingent fee. 
 
 As Equitable Assignment, see Assignment, 
 
 30. 
 
 Priority of Attorney's Equity under, see 
 Assignment, 45.
 
 ATTORNEYS. II. c, 1. 
 
 185 
 
 Champertous Agreements for, see Champer- 
 ty, 11-13. 
 
 Consideration for, see Contracts, 68. 
 
 Admissibility of Evidence as to, see Evi- 
 dence, 2130. 
 
 Specific .Enforcement of Contract for, see 
 Specific Performance, 56. 
 
 See also infra, 82. 
 
 65. Ordinary services requiring no legal 
 ability are not a sufficient consideration for 
 a contingent fee wholly disproportionate 
 thereto. Dorr v. Camden, 55 W. Va. 226, 
 46 S. E. 1014, 65: 348 
 
 66. An attorney whose services are not of 
 such character as to furnish a consideration 
 for a contract for a contingent fee unfair- 
 ly obtained from a client may recover for 
 the value of his actual services rendered his 
 client, upon pleadings and proofs justifying 
 such recovery. Id. 
 
 67. To sustain a contract for * contingent 
 fee it must be shown that no unfair ad- 
 vantage was taken of his client by the at- 
 torney, but that the same was entered into 
 by the client, after full knowledge of the 
 facts and circumstances, for legal services 
 of skill, judgment, and ability of a char- 
 acter to justify a contract for such con- 
 tingent, fee. Id. 
 
 68. A contract by plaintiff in a divorce 
 proceeding to pay to her attorney one 
 third of all amounts recovered by him is 
 illegal and void as against public policy, and 
 cannot be specifically enforced by a court of 
 equity in favor of an assignee thereof. 
 Newman v. Freitas, 129 Cal. 283, 61 Pac. 
 907, 50: 548 
 
 69. A contract between attorney and 
 client during the pendency of a litigation 
 as to the title of property, to give a part 
 of the property involved therein as com- 
 pensation for the attorney's services in the 
 litigation, is voidable at the election of the 
 client, irrespective of the fairness or un- 
 fairness of the contract, provided such elec- 
 tion is exercised within a reasonable time. 
 Elmore v. Johnson. 143 111. 513, 32 N. E. 
 413. 21:366 
 Rights on death of one member of firm. 
 
 70. One who has made a contract with a 
 partnership for legal services, to be com- 
 pensated partly by a contingent fee, can- 
 not, after the death of one partner, for the 
 purpose of depriving his estate of any inter- 
 est in the fee not fully earned, make a new 
 contract with the surviving partner for the 
 same services. Clifton v. Clark, 83 Miss. 
 446. 36 So. 251, 66: 821 
 
 71. Permitting the surviving partner of 
 a firm which has contracted to render legal 
 services to remain in control of the business 
 and conduct it to its close is a recognition 
 and continuance of the original contract, 
 rendering the client liable for the compen- 
 sation originally agreed upon notwithstand- 
 ing the death of one of the firm. Id. 
 
 72. The doctrine of quantum meruit is 
 not applicable to limit the amount of re- 
 covery, in favor of the estate of a deceased 
 member of a firm of attorneys, to the value 
 of services performed during the decedent's 
 lifetime, where the compensation was to be 
 
 a contingent fee, and the surviving partner 
 conducts the litigation to a successful 
 termination, and thereby earns the fee. Id. 
 
 2. Lien for; Rights in Fund or Property. 
 
 Right to Protect Lien by Preventing Dis- 
 missal, see Dismissal or Discontinu- 
 ance, 6. 
 
 Embezzlement of Funds on which Lien 
 Claimed, see Embezzlement, 5, 6. 
 
 Sufficiency of Finding to Support Lien, see 
 Judgment, 49. 
 
 Priority of Mechanic's Lien, see Mechanics' 
 Liens, 17. 
 
 Right of Set-Off in Case of, see Set-Off and 
 Counterclaim, 68. 
 
 73. An attorney's lien is either a retain- 
 ing or a charging lien. The former is based 
 upon the possession of money or papers, 
 and expires when the possession ends. The 
 latter is the right to make the claim for 
 compensation a charge upon the judgment, 
 and is not perfected until notice is given 
 the defendant. Manning v. Leighton, 65 
 Vt. 84, 26 Atl. 258, 24: 684 
 
 74. The value of services rendered in one 
 suit cannot be included in a judgment estab- 
 lishing the lien of an attorney for his fees 
 on property received by his client in 
 compromise of a judgment in a different 
 suit. Davis v. Webber, 66 Ark. 190. 49 S. 
 W. 822, 45: 196 
 
 75. A lien for attorneys' fees allowed by 
 a judgment foreclosing a real-estate mort- 
 gage attaches to the land, and may be en- 
 forced against it after it has been bid in 
 by the mortgagee or his assignee with 
 notice for an amount less than that due on 
 the mortgage, which has been credited on 
 the judgment, especially when the sale is 
 brought about, without payment of the fees, 
 through the connivance or fraud of the 
 purchaser or those acting in his behalf. 
 Loofbourow v. Hicks, 24 Utah, 49, 66 Pac. 
 602, 55: 874 
 
 76. Plaintiff's attorney has no lien on the 
 land in controversy, or any claim against 
 defendants personally for his fees, under Ky. 
 Gen. Stat. chap. 5, 15, giving an attorney 
 a lien on a demand arising out of contract 
 placed in his hands for collection, and on a 
 judgment whether in contract or for a tort, 
 and on property recovered, upon the dis- 
 missal in good faith of an action to enforce 
 a contract for land without any recovery or 
 consideration except that each party shall 
 pay his own costs, although it is against 
 the consent of such attorney. Rowe v. 
 Fogle, 88 Ky. 105, 10 S. W. 426, 2: 708 
 
 77. An attorney's lien for services ren- 
 dered his client cannot be successfully as- 
 serted against money appropriated to such 
 client by an act of the legislature, while 
 such money is in the custody or under the 
 control of the state treasurer. State ex 
 rel. Sayre v. Moore, 40 Neb. 854, 59 N. W. 
 755, 25: 774 
 
 78. A lien for counsel fees attaches to the 
 property recovered in a suit by minority 
 stockholders to recover corporate property
 
 186 
 
 ATTORNEYS, II. d. IV. 
 
 wrongfully conveyed by the corporate of- 
 ficers at the instance of the majority stock- 
 holders. Grant v. Lookout Mountain Co. 93 
 Tenn. 691, 28 S. W. 90, 27: 98 
 
 79. A stipulated compensation of at- 
 torneys, consisting of 30 per cent of the 
 amount recovered in an action for un- 
 liquidated damages, on which insurance 
 companies have some claims for subro- 
 gation, is properly paid out of the fund re- 
 covered, before paying over any of the 
 money to the insurers, where they have paid 
 over the insurance money with full knowl- 
 edge of this agreement, and have permitted 
 the attorneys to proceed in the litigation 
 without objection. Svea Assur. Co. v. 
 Packham, 92 Md. 464, 48 Atl. 359, 52: 95 
 
 80. The provision of the act of Congress 
 of June 5, 1882, re-establishing the court of 
 Alabama claims, and authorizing the ren- 
 dition of judgments in the mode and subject 
 to the conditions, limitations, and provisions 
 of the act of 1874 originally establishing 
 such court, revive the provision that the 
 court shall on motion allow the compen- 
 sation of attorneys and enter it as part of 
 its judgment, and that all other liens upon 
 the judgment shall be of no effect. Man- 
 ning v. Leighton, 65 Vt. 84, 26 Atl. 258. 
 
 24: 684 
 
 81. An attorney who h.as rendered 
 services in the recovery of a claim from the 
 United States, which has finally been re- 
 covered by the administrator of the bene- 
 ficiary through another attorney, cannot im- 
 pose a lien upon the funds, where such ad- 
 ministrator had no further notice of the 
 lien than the mere knowledge that such at- 
 torney had rendered services in connection 
 with the claims; nor can he hold him per- 
 sonally liable although he has paid over the 
 fund to the persons entitled. Id. 
 
 82. The right of an attorney to assert a 
 lien upon a recovery on a claim against the 
 United States, under an agreement for a 
 conditional fee. is inconsistent with U. S. 
 Rev. Stat. 3477. U. S. Comp. Stat. 1901, 
 p. 2320. providing that all transfers and 
 assignments of any claim upon the United 
 States, or of any interest therein, shall be 
 absolutely null and void unless made with 
 certain formalities and after the allowance 
 of the claim and the issuing of a warrant 
 therefor. Id. 
 
 83. Claims under the act of Congress of 
 June 5, 1882 (22 Stat. at L. 98. chap. 195), 
 for damage on the high seas by Confederate 
 cruisers and for premiums charged for war 
 risks after the sailing of any Confederate 
 primer, although to be satisfied out of a 
 particular fund without further responsi- 
 bility on the part of the United States, are, 
 since the monev had been covered into the 
 treasury and the right to it was to be es- 
 tablished by legal proceedings, within the 
 proceedings, within the provisions of U. S. 
 Rev. Stat. 3477, U. S. Comp. Stat. 1901, 
 p. 2320, making void all transfers and as- 
 signments of any claim upon the United 
 States before the allowance of the claim 
 and the issuing of the warrant, so as to 
 prevent a lien in favor of an attorney un- 
 
 der an agreement for a conditional fee for 
 their prosecution. Id. 
 
 d. Summary Proceedings. 
 
 Unauthorized Appearance as Ground for 
 Setting aside Judicial Sale, see Judicial 
 Sale, 37. 
 
 See also supra, 38; infra, III. 
 
 84. The power of the court of chancery to 
 compel a solicitor to pay over to his client 
 funds obtained in the course of proceedings 
 to enforce a decree of that court is not af- 
 fected by the fact that he may have re- 
 ceived his commission from another court, 
 instead of the chancery court, or that he 
 mav have had no commission at all. Lynde 
 v. Lynde (N. J. Err. & App.) 64 N. J. Eq. 
 736/52 Atl. 694.. 58: 471 
 
 85. A solicitor in chancery residing in 
 New Jersey, who is employed to procure the 
 reopening of a divorce decree in that state 
 and an order for the payment of alimony, 
 and who, after obtaining the order, brings 
 actions in the state of Xew York as an at- 
 torney at law in that state to collect the 
 alimony, and obtains large sums of money 
 in compromise of the litigation, is subject 
 to a summary proceeding in the New Jersey 
 chancery court to compel him to do justice 
 to his client, where he has refused to pay 
 over a large part of the funds, claiming the 
 right to retain them as compensation, and 
 contends that, as they were obtained by 
 him in his capacity as an attorney at law 
 in New York, he is not amenable to the 
 summary jurisdiction of the New Jersey 
 chancery court. Id. 
 
 III. Remedies Against; Motions. 
 
 See also supra, 38, II. d. 
 
 86. Attorneys who have abused the proc- 
 ess of the court by causing a writ of at- 
 tachment known to them to be utterly void 
 to issue for the purpose of obtaining 
 custody of the books and private papers of 
 the defendant, for the purpose of founding 
 subsequent proceedings upon them and for 
 inquisitorial purposes, will be compelled to 
 surrender such books and any copies con- 
 taining evidence taken from such books and 
 papers, and to make proof that they have 
 surrendered the whole so that it may not 
 be used by them or anyone else. Rosenthal 
 v. Muskegon Circuit Judge, 98 Mich. 208, 57 
 N. W. 112, 22: 693 
 
 IV. Editorial Notes. 
 a. Relation to court and public. 
 
 i. Generally. 
 
 As public officers. 17: 244. 
 
 Constitutional privilege to practise law. 
 
 14: 581. 
 
 Right of women to practise law. 21 : 701. 
 License tax on. 18: 409.
 
 ATTORNEYS, IV. (Ed. Notes.); ATTORNEYS' FEES. 
 
 187 
 
 Improper influence or interference with 
 
 "rand jury by attorneys. 
 
 28: :!7o! 
 
 - z. Disbarment, 
 {generally. 13: 767." 
 Necessity of bad or fraudulent motive to 
 
 justify. 18:401. 
 3. Champerty; maintenance. 
 When contract between attorney and client 
 
 not champertous. 1: 
 
 516.* 
 Prohibition of purchase of choses in action 
 
 by. 9: 91.' 
 
 Assignment of claim to. 9: 92.* 
 Right to purchase adverse title. 9: 92.* 
 
 b. Relation to Client. 
 
 4. Generally. 
 
 Transactions between attorney and client to 
 be closelv scru\inized. 9: 
 90.* 
 
 Burden on attorney to show good faith of 
 transaction with client. 
 9: 90.* 
 
 Right of insured to have attorney present 
 at examination as to loss. 
 52 : 426. 
 
 5. Authority. 
 
 To enter appearance in case in behalf of in- 
 fant or incompetent. 32: 
 681. 
 
 .Effect of unauthorized appearance of at- 
 torney in an action. 9: 
 844:*' 21: 848. 
 
 Power of defendant's attorney to withdraw 
 answer or appearance and 
 permit a default judg- 
 ment. 33: 515. 
 In general. 33: 515. 
 Withdrawal of attorney's appearance. 
 
 33: 517. 
 
 In general. 33: 517. 
 Effect on defendant's appearance. 
 
 33: 518. 
 
 Effect on plea or answer. 33: 518. 
 Withdrawal of answer. 33: 519. 
 Withdrawal of answer and appearance. 
 33 : 520. 
 
 Xotice to attorney as notice to client. 2: 
 734.* 
 
 Right to take acknowledgment. 33: 337. 
 
 6. Client's responsibility for attorney's 
 neglect. 
 
 .Negligence of, as a bar to injunction against 
 judgment. 31: 36. 
 
 ' 7. Employment of; contract with; com- 
 pensation of. 
 
 See also supra, IV. 3. 
 
 Right of governor to employ for state. 
 55: 493. 
 
 Power of public officers to bind successors 
 by employment of attor- 
 ney for term of years. 
 16': 257. 
 
 Power of president and vice president of 
 corporation to employ at- 
 torneys. 14: 360. 
 
 Effect of death on contract with. 23: 710. 
 
 Recovery for services to wife in divorce 
 suit. 24: 629. 
 
 Damages for breach of contracts with. 53: 
 
 57.. 79. 
 
 Claims against state for fees of. 42: 51. 
 Statement of account by. 27: 821. 
 Expert testimonv-of value of legal services. 
 
 " 11: 787.* 
 
 8. Duty and liability to client. 
 Liability of attorney to client for mistake. 
 
 52: 883. 
 
 Generally. 52: 883. 
 In pleading. 52: 885. 
 In practice. 52: 886. 
 In wrong proceeding. 52: 888. 
 In examination of titles. 52: 889. 
 In payment and distribution of money. 
 
 52: 890. 
 In drafting and preparing instruments 
 
 and decrees. 52: 891. 
 Mistakes or omissions in advice. 52: 
 
 892. 
 Liability of, for interest on money collected 
 
 for client. 18: 457. 
 
 9. Privileged communications between at- 
 torney and client. 
 Generally. 6:481.* 
 W T aiver of privilege. 6: 481.* 
 Testimony of third person. 6: 482.* 
 Privilege of communications to attorney 
 during preparation of will. 
 17: 188. 
 
 ATTORNEYS' FEES. 
 
 [This title includes only the matter of 
 attorneys' fees added to a recovery upon an 
 obligation by virtue of a stipulation in 
 the instrument creating the liability. For 
 the right of an attorney to recover fees 
 from his own client see Attorneys, II. c. 
 For an allowance for attorneys as an ele- 
 ment of costs or damages without any 
 stipulation therefor, see Costs and Fees, 44- 
 54; Damages, III. r.] 
 
 Interlineation of Agreement to Pay, see 
 Alteration of Instruments, 8. 
 
 Right to Appeal from Allowance of, see Ap- 
 peal and Error, 33. 
 
 Effect of Provision for, on Negotiability of 
 Note, see Bills and Notes, 83-89. 
 
 Guaranty of, in Note, see Bills and Notes, 
 108. 
 
 Equal Protection and Privileges as to, see 
 Constitutional Law, II. a, 6. 
 
 Due Process of Law as to, see Constitution- 
 al Law, 623, 624. 
 
 Allowance of, to Successful Lien Claimants, 
 see Constitutional Law, 1106. 
 
 Against Insurance Company, see Constitu- 
 tional Law. 1107. 
 
 In Divorce Suit, see Divorce and Separa- 
 tion, V. b. 
 
 To Counsel for State on Recovery Back of 
 Escheated Property, see Escheat, 3, 4. 
 
 Subrogation of Insurer to Claim for, see 
 Insurance, 1265. 
 
 On Foreclosure, see Building and Loan As- 
 sociations, 47 ; Costs and Fees, 44 ; 
 -Mortgage, 204. 
 
 Repeal of Statute as to, see Statutes. 567.
 
 188 
 
 ATTORNMENT; AUCTION. 
 
 Special Legislation as to, see Statutes, 392, 
 
 393. 
 Retrospective Statute as to, see Statutes, 
 
 550. 
 As Usury, see Usury, 17. ' 
 
 1. A provision allowing attorneys' fees on 
 recovery by the plaintiff does not impose a 
 ''penalty for exercising the right of de- 
 fense." Burlington, C. R. & N. R. Co. v. 
 Dey, 82 Iowa, 312, 48 N. W. 98, 12: 436 
 
 2. A stipulation to pay all costs of col- 
 lecting not less than 10 per cent "refers to 
 attorneys' fees," as the parties are liable 
 for court costs without any stipulation. 
 Montgomery v. Crosthwait, 90 Ala. 553, 
 8 So. 498, 12: 140 
 
 3. Attorneys' fees provided for in a bill 
 of exchange are earned when an action on 
 the bill is prosecuted to judgment, and, if 
 lawful to be charged, may properly be in- 
 cluded therein, without the necessity of a 
 separate action. Bank of Commerce v. 
 Fuqua, 11 Mont. 285, 28 Pac. 291, 14: 588 
 
 4. A stipulation in a negotiable bill, for 
 attorney's fees, becomes operative only 
 after the bill has been dishonored, espe- 
 cially where it is made among other stipu- 
 lations which become operative only in that 
 event. Farmers Nat. Bank v. Sutton Mfg. 
 Co. 6 U. S. App. 312, 3 C. C. A. 1, 52 Fed. 
 191, . 17: 595 
 
 5. The indorsement of a negotiable note 
 passes with it to the assignee the right to 
 enforce a stipulation in the note for an at- 
 torney's fee, to be recovered either as part 
 of the note or bv separate action. Dorsey 
 v. Wolff, 142 111/589, 32 N. E. 495, 18: 428 
 
 6. A separate suit for an attorney's fee 
 may be authorized by express stipulation in 
 a promissory note. Id. 
 
 7. An affidavit for an attorney's fee filed 
 by an attorney employed pending the suit, 
 after the one who brought the action has 
 withdrawn, may be regarded as an amend- 
 ment of the affidavit made by the latter at 
 the commencement of the action. Fletcher 
 v. Kelly, 88 Iowa, 475, 55 X. W. 474, 
 
 21 : 347 
 
 8. The regulation of attorney's fees by 
 Wash. Laws 1805. p. 81. limiting stip- 
 ulations of the parties in that respect, is a 
 valid measure of public policy. Dennis v. 
 Moses. 18 Wash. 537. 52 Pac. 333, 40: 302 
 Validity. 
 
 Authority of Directors to Stipulate for, see 
 
 Corporations, 242. 
 Presumption as to Reasonableness of. see 
 
 Kvidenr-e, 077. 
 See also infra, Editorial Notes. 
 
 9. An agreement for a specified percent- 
 age in case a note is "collected by process 
 of law or by an attorney" is invalid, al- 
 though a provision for a reasonable at- 
 torney's foe to be ascertained by the court 
 would I c good. Levens v. Briggs, 21 Or. 
 333. 28 Psio. 15. 14 : 188 
 
 10. An unconditional stipulation in a 
 note for 10 per cent attorney's fees, in ad- 
 dition to interest, is void. Wright v. 
 Traver. 73 Mich. 493, 41 X. W. 517, 3: 50 
 
 11. The provision, in a promissory note, 
 for attornev's fees of a fixed and definite 
 
 amount in case the note is collected by suit, 
 is not contrary to public policy and there- 
 fore void, although courts might interfere 
 to prevent oppression or collusion. Ex- 
 change Bank v. Tuttle, 5 N. M. 427, 23 Pac. 
 241, 7:445 
 
 See Wright v. Traver, 73 Mich. 493, 41 
 N. W. 517, 3: 50 
 
 Montgomery v. Crosthwait, 90 Ala. 553, 8 
 So. 498, 12: 140 
 
 Bank of Commerce v. Fuqua, 11, Mont. 285, 
 28 Pac. 291, 14: 588 
 
 12. A stipulation in a promissory note for 
 payment, in addition to interest, of costs of 
 collection, including attorney's commis- 
 sions, on failure to pay at maturity, is valid 
 although rendering the note non-negotiable. 
 Bowie v. Hall, 69 Md. 433, 16 Atl. 64, 
 
 1:546 
 
 13. A statute making void an agreement 
 to pay attorney's fees "upon any condition 
 therein set forth" does not make void a 
 stipulation for attorney's fees in a bill of 
 exchange which expresses no condition for 
 such stipulation, although it is properly 
 construed to be operative only on condition 
 of the dishonor of the bill. Farmers Nat. 
 Bank v. Sutton Mfg. Co. 6 U. S. App. 312. 
 3 C. C. A. 1, 52 Fed. 191, 17: 595 
 
 14. A provision in a trust deed for at- 
 torneys' fees in case the property is sold 
 under the d*ed is void as contrary to pub- 
 lic policy. Turner v. Boger, 126 N. C. 300, 
 35 S. E. 592, 49: 590 
 
 15. An attorney's fee for the foreclosure 
 of a mortgage, expressly provided for in the 
 instrument, is collectible on foreclosure. 
 Falls v. United States Sav. L. & B. Co. 97 
 Ala. 417, 13 So. 25, 24: 174 
 
 Editorial Notes. 
 
 Constitutionality of provision for. 14: 586. 
 
 Validity and effect of stipulations for, gen- 
 erally. 1: 546; 3: 50; 7: 
 445.* 
 
 Allowance of, out of fund for attorneys of 
 creditors who sue in be- 
 half of themselves and 
 other creditors. 54: 817. 
 
 Effect of stipulation for, upon negotiability. 
 1: 547;* 3:51.* 
 
 ATTORNMENT. 
 
 To Mortgagee, see Landlord and Tenant, 
 
 196. 
 
 By Subtenant, see Landlord and Tenant, 91. 
 By Possessor of Pledged Property,' see 
 
 Pledge and Collateral Security, 10. 
 By Carrier Preventing Stoppage in Tran- 
 
 situ, see Sale, 157. 
 
 AUCTION. 
 
 Liability of Auctioneer for Sale of Goods 
 OHained by Fraud, see Fraud and De- 
 ceit, 7.
 
 AUDITOR. 
 
 189 
 
 Fraudulent Statement by Auctioneer, see 
 
 Fraud and Deceit, 47. 
 
 License for Auctioneer, see License, 153, 154. 
 Conversion by Auctioneer, see Trover, 11. 
 
 1. A sale will be treated as made by 
 auction where, at the time duly appointed 
 and announced, property to which the vend- 
 or has a good title is put up and offered for 
 sale, bids are made, and it is sold to the 
 highest bidder, although some of the con- 
 ditions which attended the sale may be un- 
 usual. Rowley v. D'Arcy, 184 Mass. 550, 69 
 N. E. 325, 64: 190 
 
 2. A tender of money in satisfaction of 
 the amount of his bid by one who, acting 
 as clerk at a public sale, bid off property 
 sold thereat, will not vest the title to the 
 property in him so as to enable him to re- 
 cover it from the possession of the seller, 
 where the terms of sale provided for pay- 
 ment in interest-bearing notes, *^ith surety. 
 Morgan v. East, 126 Ind. 42, 25 N. E. 867, 
 
 9: 558 
 Puffing. 
 
 3. A bid at a public sale by one who does 
 not desire the property, and who is em- 
 ployed to bid in the interests of persons 
 who are interested in having the property 
 bring a good price, but who are not con- 
 ducting the sale so as to be able to release 
 a bidder from responsibility, does not 
 constitute "puffing" or such a fraud on other 
 bidders as to release them from responsi- 
 bility for their bids. McMillan v. Harris, 
 110 Oa. 72, 35 S. E. 334, 48: 345 
 
 4. An auction sale by the assignee of 
 property of an insolvent debtor is not 
 rendered void by a combination between 
 creditors of the estate to enhance the price 
 by fictitious bids, which is not known to, or 
 participated in by, the assignee. Rowley v. 
 D'Arcy, 184 Mass. 550, 69 N. E. 325, 64: 190 
 Agreement not to bid. 
 
 Setting Aside Rale for Prevention of Bid- 
 ding, see Judicial Sale, 39. 
 See also infra, Editorial Notes. 
 
 5. An agreement between two or more 
 persons that all but one shall refrain from 
 bidding at a judicial sale, and that he shall 
 be permitted to purchase the property, is 
 not necessarily void, but will be upheld if 
 the intention of the parties is fair and 
 honest, and the primary purpose is not to 
 suppress competition but to protect their 
 own rights, and there is no fraudulent pur- 
 pose to injure or defraud others interested 
 in the sale. Hopkins v. Ensign, 122 N. Y. 
 144, 25 N. E. 306, 9: 731 
 
 6. An agreement between a person who 
 thinks of attempting to collect a debt due 
 him from the estate of an insolvent mort- 
 gagor, and the mortgagor's devisee, who 
 wishes to bid in the property for the value 
 of the mortgage, by which, in consideration 
 of the creditor's refraining from bidding at 
 the sale, the devisee is to give him a mort- 
 gage on the property for the amount of his 
 claim, provided the latter is thereby en- 
 abled to secure the property at the desired 
 price, is not illegal in the absence of un- 
 lawful intent, although incidentally prevent 
 
 ing competition; and, in case it is carried 
 out and acquiesced in by the other person 
 interested in having a large amount realized 
 by the sale, the mortgage cannot be repudi- 
 ated by the devisee. Id. 
 
 Editorial Notes. 
 
 Implied exception in statute as to. 25: 569. 
 
 Rights of vendee at. 9: 558.* 
 
 In street, as a nuisance, subject to city 
 
 control. 39: 678. 
 Delegation of municipal power as to license 
 
 of. 20: 724. 
 Right of auctioneer or officer conducting a 
 sale to make bids. 20: 
 593. 
 
 On their own account. 20: 503. 
 Auctioneers. 20: 503. 
 Sheriffs, deputy sheriffs, commis- 
 sioners, collecto-s, consta- 
 bles, etc. 20: 505. 
 For third party. 20: 508. 
 Right to withdraw property from an auc- 
 tion sale after it has been 
 offered. 57: 784. 
 
 In England and Canada. 57: 784. 
 Withdrawal after bids. 57: 784. 
 Withdrawal before bids. 57: 787. 
 In the United States. 57: 787. 
 In general. 57: 787. 
 Judicial and official sales. 57: 789. 
 Effect of preventing or checking bids upon 
 the validity of sales at 
 auction. 20: 545. 
 The general rule. 20: 545. 
 The qualifications and exceptions to the 
 
 rule. 20: 551. 
 English cases. 20: 553. 
 
 AUDITOR. 
 
 Mandamus to, see Mandamus, 10. 
 
 Duty of, as to Appropriations, see Appro- 
 priations, 26-28. 
 
 Adjustment of Claims by, see Claims, 12. 
 
 Delegation of Power to, see Constitutional 
 Law, 171. 
 
 Empowering, to Determine Innocence of 
 Pardoned Convict, see Courts, 239. 
 
 Mandamus to. see Mandamus, 37. 
 
 Assumption of Risk by, see Master and 
 Servant, 269. 
 
 Casting Vote of, see Parliamentary Law, 
 34. 
 
 Reference to, see Reference, 6. 
 
 Suit Against, see State, 7. 
 
 Power to Correct Tax, see Taxes, 463. 
 
 Service of Process on, see Writ and Process, 
 27. 
 
 A county auditor receiving a letter of in- 
 structions from the auditor of state, which 
 commands the performance of a number of 
 acts, some of which are proper and others 
 not, is bound to follow the former, but may 
 disregard the latter. State ex rel. Guilbert 
 v. Halliday, 61 Ohio St. 352, 56 N. E. 118, 
 
 49: 427
 
 190 
 
 AUTHOR AYES AND NOES. 
 
 AUTHOR. 
 
 Libel of, see Libel and Slander, 15, 18, 86. 
 
 AUTHORITIES. 
 
 Submission of, to Arbitrator after Close of 
 Testimony, see Arbitration, 16. 
 
 AUTHORITY. 
 
 Presumption as to, see Evidence, IL e, 4. 
 
 Evidence as to, see Evidence, XI. x. 
 
 Of Agent, see Principal and Agent, II. 
 
 AUTOMATIC FIRE EXTINGUISHER. 
 
 Insurance against Loss by Accidental Dis- 
 charge of, see Insurance, 434, 435. 
 
 Cause of Discharge of, see Insurance, 969- 
 971. 
 
 Liability for Injury by, see Landlord and 
 Tenant, 131. 
 
 AUTOMATIC SWITCH. 
 
 Duty as to Use of, see Master and Servant, 
 '89. 
 
 AUTOMOBILES. 
 
 Judicial Notice as to Speed of, see Evi- 
 dence, 162. 
 
 Limiting Speed of, see Parks and Squares, 
 15-17. 
 
 1. The regulation of the speed of auto- 
 mobiles may be effected by the use of the 
 words "ride or drive." Com. v. Crownin- 
 shield, 187 Mass. 221, 72 N. E. 963, f>8: 245 
 
 2. Requiring an automobile to carry a 
 number does not violate the constitutional 
 provision against unreasonable searches, or 
 compel the owner to testify against him- 
 self, or deprive him of property without 
 due process of law. People v. Schneider, 
 13!) Mich. 673, 103 N. W. 172, 69: 345 
 
 3. Power to require the registering and 
 numbering of automobiles is conferred upon 
 the city council by charter authority to 
 control, prescribe, and regulate the manner 
 in which the streets shall be used and en- 
 joyed. Id. 
 
 AUTOPSY. 
 
 Opinion Evidence as to, see Evidence, 1256, 
 
 1289. 
 Evidence as to What Took Place on, see 
 
 Evidence, 1559. 
 Evidence as to Subsequent Condition of 
 
 Body, see Evidence, 1951. 
 See also Corpse, 6-8. 
 
 Editorial Notes. 
 Power of coroner to order. 31 : 540. 
 
 AUXILIARY SUIT. 
 
 In Federal Court, see Courts, III. g. 
 Service of Writ in, see Writ and Process, 9_ 
 
 AVERAGE. 
 
 Effects of passengers not in daily use or 
 attached to the person are not only to be 
 contributed for, but are liable to contribute, 
 in general average. Heve v. North German 
 Lloyd, 36 Fed. 705, 2: 287 
 
 Editorial Notes. 
 
 Contribution of passengers' effects. 
 Maritime lien for. 70: 363, 375. 
 
 2: 287.* 
 
 AVOWRY. 
 
 For Rent, see Landlord and Tenant, 223. 
 
 AWARD. 
 
 Of Arbitrators, see Arbitration, III. 
 Doctrine of Comity as to. see Conflict of 
 
 Laws, 12. 
 As Evidence, see Evidence, 842. 
 
 AWNING. 
 
 Estoppel as to, see Estoppel. 22. 
 
 Presumption as to License, see Evidence,. 
 731. 
 
 Injunction against Removal of. see Injunc- 
 tion, 323. 
 
 In Street Generally, see Highways, 71-76. 
 
 Landlord's Liability for Injury by, see 
 Landlord and Tenant, 165. 
 
 Ordinance as to, see Municipal Corporations, 
 150, 151. 
 
 Negligence as to, see Negligence, 88. 
 
 Editorial Notes. 
 
 Right to maintain in streets. 26: 340. 
 Liability of landlord to third persons for 
 condition of. 26: 200. 
 
 AX. 
 
 Fall of Head of. from Building, see Negli- 
 gence, 45. 
 
 AYES AND NOES. 
 
 On Note on Proposed Constitutional Amend- 
 ment, see Constitutional Law, 15. 
 
 On Vote to Employ Teachers, see Schools. 
 33. 
 
 On Passage of Statute, see Statutes, 2, 18, 
 127-130.
 
 BACK F1KE BAIL AND RECOGNIZANCE. 
 
 191 
 
 B 
 
 BACK FIRE. 
 
 As Proximate Cause, see Proximate Cause, 
 47-49. 
 
 Question for Jury as to Negligence in Start- 
 ing, see Trial, 456. 
 
 See also Fires, 12-14. 
 
 Editorial Notes. 
 
 Liability of. 34: 137. 
 
 BAD DEBTS. < 
 
 Libel by Collecting Agency, see Libel and 
 
 Slander, 1, 47, 48, 122. 
 Liability of Member of Collecting Agency 
 
 for Libel, see Libel and Slander, 1. 
 
 BAGGAGE. 
 
 In General, see Carriers, II. a, 12; IV. 
 
 15, 28. 
 Grant of Exclusive Privilege to Solicit, see 
 
 Carriers, 1045-1067. 
 
 Forfeiture of Dutiable Articles in, see Du- 
 ties. 2-5. 
 
 Lien on. for Duties, Instructions as to, see 
 Trial, 788. 
 
 Disinfection of, see Health, 16. 
 
 Complaint for Carrying without License, see 
 Indictment, etc., 75. 
 
 License for Carrying, see License, 142. 
 
 Innkeeper's Liability for, see Innkeepers, 
 III. b. 
 
 BAGGAGE CAR. 
 
 Passenger Riding in, see Carriers, 246, 247, 
 320. 
 
 Placing Disorderly Passenger in, see Car- 
 riers, 188. 
 
 BAGGAGE MASTER. 
 
 Carrier's Liability for Arrest by, see Car- 
 riers, 187. 
 
 BAGGAGE TRANSFER COMPANY. 
 
 Contract for Baggage Transfer, see Car- 
 riers, 680. 
 
 BAIL AND RECOGNIZANCE. 
 
 Loss of Jurisdiction by Admitting to, see 
 Criminal Law, 249,' 250. 
 
 Garnishment of Money Deposited as, see 
 Garnishment, 56. 
 
 Municipal Liability for Requiring Exces- 
 sive Bail, see Municipal Corporations, 
 510. 
 
 1. Where a party is in custody under an 
 information charging him with a bailable 
 felony, and the judge of the criminal court 
 of record before which he is charged refuses 
 to take any action whatever in the case, 
 either as to bail or trial, on the ground 
 that he is disqualified by reason of interest 
 and affinity to act, and it does not appear 
 to the supreme court, on a habeas corpus 
 proceeding, that tne judge is disqualified, 
 bail conditioned for the party's appearance 
 before the criminal court of record will be 
 allowed. Ex parte Harris, 26 Fla. 77, 7 So. 
 1, 6: 71* 
 Right to; when admitted to. 
 
 See also infra, Editorial Notes. 
 
 2. Whether one under arrest as an al- 
 leged fugitive from justice shall be ad- 
 mitted to bail pending appeal from an order 
 refusing to annul the warrant of arrest, is 
 a matter "of judicial discretion. Farrell v. 
 Hawley, 78 Conn. 150, 61 Atl. 502, 
 
 70: 68ft 
 
 3. The discretion of the circuit court to 
 order into actual custody a defendant in 
 a criminal trial which has commenced can- 
 not be restricted by a previous allowance 
 of bail by a county judge. Atkins v. Com. 
 98 Ky. 539, 33 S. W. 948. 32: 108 
 
 4. Bail pending appeal from a conviction 
 may be allowed because of the extraordinary 
 character of the circumstances, on proof by 
 physicians, one of whom was selected by 
 the district attorney, that the prisoner is 
 suffering from asthma and trouble with his 
 lungs to such an extent that his continued 
 incarceration in the county jail in the physi- 
 cal conditions existing there will be fraught 
 with serious impending danger to his health, 
 and will probably be fatal if he is left 
 there three months or more. Re Ward, 127 
 Cal. 489, 59 Pac. 894, 47: 466 
 
 5. The court must, upon an application 
 made before his trial by one indicted for 
 murder in the first degree, the punishment
 
 192 
 
 BAILIFF; BAILMENT. I. 
 
 for which is death, investigate the proof o 
 his guilt; and if, although aided by th 
 presumption arising from the indictment 
 it is not so clear and strong as to lead i 
 well-guarded and dispassionate judgmen 
 to the conclusion that the offense has been 
 committed, that the accused is the guiltj 
 agent, and that he will probably be punishd 
 capitally if the law is administered, the ac 
 cused must be admitted to bail under a 
 constitutional provision that all person 
 shall be bailable except for capital offenses 
 when the proof is evident or the presump 
 tion great. Re Losasso, 15 Colo. 163, 2< 
 Pac. 1080, 10: 84 
 
 Validity of bond. 
 
 6. A bail bond given under Fla. act Janu 
 ary 6, 1848 (McCIel. Dig. 439, 440), mus 
 be approved by the court, if given whil< 
 the court rendering judgment or sentenci 
 is in session. Williams v. State, 25 Fla 
 734, 6 So. 831, 6: 821 
 
 7. Unless an instrument giv<m as bail, un 
 der Fla. act January 6, 1848 (McCIel. Dig 
 439, 440), has a seal, it is not a bond as 
 required by the act, and will not authorize 
 execution thereon, under the statute, "as 
 if there had been judgment at law upon duel: 
 bond." Id 
 
 8. A bail surety who requests the courl 
 to impose a fine, instead of imprisonment 
 on a prisoner, and offers to give bond to 
 secure payment of the fine, and who signs 
 a paper purporting to be a bond, and in- 
 forms the court he has given the bond re- 
 quired by law, whereupon the prisoner is 
 released and works as a tenant for the 
 surety until the paper falls due, is not es- 
 topped from questioning the legality of an 
 execution issued by the clerk upon "the re- 
 turn of the paper, on the ground that there 
 was no seal to such paper, where it wa 
 taken and approved in open court by the 
 judge. Id. 
 Who may act as bail. 
 
 9. Persons who have been indemnified 
 by the accused should not be accepted as 
 bail for one convicted and sentenced to im- 
 prisonment for embezzlement, pending his 
 appeal from the judgment of conviction. 
 United States v. Simmons, 47 Fed. 575, 
 
 14: 78 
 
 Rights of sureties. 
 See also infra, Editorial Notes. 
 
 10. Sureties on the bail bond of an in- 
 dicted person who has fled into another 
 state may follow and arrest him there, 
 either in person or by agent; and the fact 
 that the bond has been conditionally for- 
 feited and a scire facias issued is imma- 
 terial. State v. Lingerfelt, 109 N. C. 775, 
 14 S. E. 75, 14: 605 
 Forfeiture of bond. 
 
 11. The pardon of an accused whose bail 
 bond has been forfeited for a departure 
 from court contrary to the conditions of the 
 bond does not affect the forfeiture. Dale 
 v. Com. 101 Ky. 012, 42 S. W. 93, 38: 808 
 
 Editorial Notes. 
 Indemnity to, in Criminal eases. 14: 78. 
 
 Execution of bail bond on condition that 
 others shall sign. 45: 334. 
 
 Right of sureties on bail bond to pursue 
 their principal into an- 
 other state for the pur- 
 pose of arresting him. 
 14: 605. 
 
 Admission to, on arrest for crime, a con- 
 stitutional right; form of 
 recognizance; in capital 
 offenses; in cases of homi- 
 cide; proof insufficient to 
 justify denial of; discre- 
 tion of court conclusive 
 on appeal. 10: 847.* 
 
 Special, in suit for slander by wife. 30: 
 530. 
 
 Delay of prosecution as ground for dis- 
 charge where accused out 
 on bail. 56: 533. 
 
 Form of judgment on bail bond. 62: 443. 
 
 Penalty as limit of liability on bail bond. 
 55:391. 
 
 BAILIFF. 
 
 Accompanying Jury, Oath of. see Trial. 
 889. 
 
 BAILMENT. 
 
 I. In General. 
 II. Rights of Bailee. 
 
 III. Duty and Liability of Bailee. 
 
 IV. Editorial Notes. 
 
 Liability of Bank Directors as Gratuitous 
 
 Mandatories, see Banks, 57. 
 Carrier as Bailee of Baggage, see Carriers, 
 
 675. 
 
 Consideration of, see Contracts, 37. 
 Contribution in Case of Insurance of Bailed 
 
 Property, see Insurance, 1277. 
 Levy on Property Bailed, see Levy and 
 
 Seizure, 9. 
 Lien for Repairs on Chattel Bailed, see 
 
 Liens, 15. 
 .imitation of Action as to, see Limitation 
 
 of Actions, 107. 
 Right of Bailee of Logs to Compensation for 
 
 Driving, see Logs and Logging,. 2. 
 Bailee's Servant as Servant of Bailor, see 
 
 Master and Servant, 15. 
 ID put ing Bailee's Negligence to Bailor, see 
 
 Negligence, 251, 252. 
 )f Public Money, see Officers, 204. 
 Defense to Bailee's Breach of Contract to 
 
 Procure Insurance, see Payment, 5. 
 'ledge as, see Pledge and Collateral Secu- 
 rity, 1. 
 'onversion by Bailee, see Trover, 17, 36; 
 
 and also infra, IV. 4. 
 As to Warehousemen, see Warehousemen. 
 
 I. In General. 
 1. A general proposal to all persons hav-
 
 BAILMENT, II., 111. 
 
 193 
 
 ing articles deemed worthy of exhibition 
 to entrust them to a corporation for a 
 competitive exhibition at a fair, with a 
 promise of redelivery when the exhibition 
 is closed, becomes a special contract with 
 each person sending articles for exhibition, 
 when they are received and accepted.* Prince 
 v. Alabama State Fair, 106 Ala. 340, 17 
 So. 449, 28: 716 
 
 2. A library board of a city, which has 
 statutory power to receive property by 
 gift, grant, purchase, devise, bequest, "or 
 otherwise," for the purpose of maintaining 
 public libraries, art galleries, and museums, 
 has power to receive a collection of coins 
 as a loan from the owner, and become lia- 
 ble therefor as bailee. Smith v. Minneapo- 
 lis Library Bd. 58 Minn. 108, 59 N. W. 
 979, 25: 280 
 
 3. A person sued individually for bonds 
 received from another may sh.ow that he 
 received them from the latter ak the prop- 
 erty of her husband's estate, of which he 
 was executor, as against a claim by her 
 administrator that they belonged to her 
 by gift from the testator. Penny v. Croul, 
 87 Mich. 15, 49 N. W. 311, .13: 83 
 What constitutes. 
 
 See also Warehousemen, 4, 6. 
 
 County Treasurer as Bailee, see Bonds, 74, 
 
 77. 
 For Editorial Notes, see infra, IV. 1. 
 
 4. A mere bailment, and not a sale which 
 passes title, is made by a contract whereby 
 farmers deliver produce at a. factory owned 
 by them, to be manufactured into pickles, 
 sauerkraut, and other similar articles, the 
 proceeds of the sales of which are to be 
 divided in a certain ratio between the farm- 
 ers and the manufacturers. Sattler v. Hal- 
 lock, 160 N. Y. 291, 54 N. E. 667, 46: 679 
 
 5. No bailment is created by placing a 
 gas meter on the premises of the consumer, 
 to fulfil the requirements of the law for 
 the purpose of measuring the gas consumed 
 by him and connecting his pipe with the 
 supply pipe of the gas company. Con- 
 solidated Gas Co. v. Blondell, 89 Md. 732, 43 
 Atl. 817, 46: 187 
 
 6. An agreement to manufacture engrav- 
 ings and lithographs for theatrical purposes 
 for the special use of a person, to be taken 
 and paid for by him during a theatrical sea- 
 son, the work to be ready for delivery by a 
 certain day, is not a sale, but an agreement 
 for work and labor; and the manufacturer 
 holds the work merely as bailee subject to 
 the lien of the consideration to be paid. 
 Central Lithographing & E. Co. v. Moore, 
 75 Wis. 170, 43 N. W. 1124, 6: 788 
 Different kinds of bailment. 
 
 7. A bailment is for hire, although no 
 hire is paid, when it is a necessary incident 
 of a business in which the bailee makes a 
 profit. Woodruff- v. Painter, 150 Pa. 91, 24 
 Atl. 621, 16: 451 
 
 8. The essentia'l elements and character- 
 istics of a lucrative as distinguished from a 
 mere gratuitous bailment exist in the case 
 of the loan of a painting for a competitive 
 exhibition at a fair. Prince v. Alabama 
 
 L.R.A. Dig. 13. 
 
 State Fair, 106 Ala. 340, 17 So. 449, 28: 716 
 Termination of. 
 
 9. A bailment of hire is terminated 
 when the property is no longer fit and suit- 
 able for and cannot be devoted to the use 
 for which it was hired, so as to give the 
 bailor the right to maintain an action for 
 injury done to the property. New Jersey 
 Elec. R. Co. v. New York, L. E. & W. R. 
 Co. (N. J. Sup.) 61 N. J. L. 287, 41 Atl. 
 1116, 43: 849 
 Rights of purchaser from bailee. 
 
 10. An innocent purchaser of a diamond 
 intrusted by the owner to another for the 
 purpose of exhibition to a pretended pur- 
 chaser, but immediately pledged by him to 
 the keeper of a gambling house, and sold 
 by the two, acquires no title as against the 
 owner. Baehr v. Clark, 83 Iowa, -313, 49 
 N. W. 840, 13: 717 
 
 11. The fact that lessees of a piano have 
 a retail store at which musical instruments 
 are kept for sale, which is well known to 
 the lessor, gives the lessees no right to sell 
 the instrument. Oliver Ditson Co. v. Bates, 
 181 Mass. 455, 63 N. E. 908, 57: 289 
 Bailor's right of action against third per- 
 son. 
 
 12. A bailor can maintain an action 
 against a third party for injury done to a 
 chattel during the continuance of the bail- 
 ment, whether an action might or might not 
 be maintained against such third party by 
 the bailee for trover, trespass, or replevin to 
 control the immediate possession. New 
 Jersey Elec. R. Co. v. New York, L. E. & W. 
 R. Co. (N. J. Sup.) 61 N. J. L. 287, 41 Atl. 
 1116, 43: 849 
 
 II. Rights of Bailee. 
 
 For Editorial Notes, see infra, IV. 1, 2. 
 
 13. Storage charges may be recovered, al- 
 though the goods stored are damaged 
 through the negligence of the storer, where 
 he has been compelled to make good the 
 loss by paying damages. Marks v. New 
 Orleans Cold Storage Co. 107 La. 172, 31 
 So. 671, . 57: 271 
 
 14. The owner of a cold-storage ware- 
 house may retain possession of goods stored 
 until the storage charges are paid; and the 
 amount due for storage cannot be com- 
 pensated by an unliquidated claim for dam- 
 ages suffered by the goods. Id. 
 
 15. Insurance of goods manufactured to 
 order by the manufacturer, who holds them 
 as bailee, although taken by him as nominal 
 owner, is not material as bearing on the 
 question of their ownership, or of his right 
 to collect the amount due him on the con- 
 tract from the person for whom they were 
 made. Central Lithographing & E. Co. v. 
 Moore, 75 Wis. 170, 43 N. W. 1124, 6: 788 
 
 III. Duty and Liability of Bailee. 
 
 Banker's Liability for Negligence in Loan- 
 ing for Customer, see Banks, 289-294.
 
 194 
 
 BAILMENT; in. 
 
 On Breach of Contract to Insure Property, 
 
 see Contracts, 748. 
 
 As to Livery Horse, see Livery Stable, 1. 
 For Editorial Notes, see infra, IV. 2. 
 
 16. It is the duty of a bailee of goods to 
 do work upon them for a reward, to re- 
 turn them to the owner immediately upon 
 completion of the work. Dale v. See (N. 
 J. Err. & App.) 51 N. J. L. 378, 18 Atl. 
 306, 5: 583 
 
 17. Upon a bailment of goods to do work 
 upon them for a reward, the contract im- 
 plied by law that the work shall be done 
 with due care ana competent skill arises im- 
 mediately upon delivery of the goods. Id. 
 Limitation of liability. 
 
 Sv Warehouseman, see Warehousemen, 16, 
 17. 
 
 18. A cold-storage company may by con- 
 tract limit its liability, provided such limi- 
 tation does not contravene rules and laws 
 enacted on grounds of public policy; but 
 the limited liability clause should be specific, 
 and include in its terms al. 1 Images and 
 acts for which the cold storer does not hold 
 himself responsible. Marks v. New Or- 
 leans Cold Storage Co. 107 La. 172, 31 
 So. 671, 57: 271 
 
 19. Stipulations or conditions qualifying 
 or abridging the contract implied by law 
 upon a bailment must be contained in, or 
 made a part of, the original contract of 
 bailment. Dale v. See (N. J. Err. & App.) 
 51 N. J. L. 378, 18 Atl. 306, 5: 583 
 
 20. A notice printed on bills presented 
 by a dyer of goods for work done by him, 
 "All claims for deficiency or damage must 
 be made within three days from date; oth- 
 erwise not allowed," is not binding upon 
 the party for whom the work is done. Id. 
 
 21. Notice by a bailee of goods to do work 
 upon them for a reward, together with a re- 
 turn of the goods, or with the bill for the 
 work done, containing conditions qualify- 
 ing his liability for defective workmanship, 
 lacks the consideration necessary to sup- 
 port a contract, although the owner ac- 
 cepts the goods with knowledge of the con- 
 tents of the notice. Id. 
 Loss of, or injury to property, generally. 
 Presumption and Burden of Proof as to 
 
 Negligence, see Evidence, 537-539. 
 Liability of Warehouseman, see Warehouse- 
 men, 11, 12. 
 
 22. The degree of care required of a 
 bailee depends on the nature and value of 
 the thing bailed' and its liability to loss 
 or injury. Prince v. Alabama State Fair, 
 106 Ala.* 340. 17 So. 449, 28: 716 
 
 23. A lack of proper care which will create 
 a liability for the loss of a painting on the 
 part of a corporation to which it has been 
 loaned for a competitive exhibition at a 
 fair is shown where, after the close of the 
 fair and the withdrawal of policemen, the 
 duty of repacking and reshipping it is in- 
 trusted to an agent or officer who is not 
 informed that the painting has been exhibit- 
 ed or in the possession of the corporation, 
 and servants are employed to aid him who 
 
 are unknown to him and of whose skill or 
 integrity there is no evidence. Id. 
 
 24. A resolution by the board of direct- 
 ors of a corporation which has become a- 
 bailee of property, to the effect that it 
 will not be .responsible in any manner for 
 the safety of the property, will not, even 
 if it is brought to the notice of the owner, 
 relieve the corporation from liability for 
 loss in case of its gross negligence. Smith 
 v. Minneapolis Library Bd. 58 Minn. 108, 
 59 N. W. 979, 25: 28O 
 
 25. One who hires a horse to go to a 
 certain point has no right, without the con- 
 sent of the owner, to go with the horse be- 
 yond that point, unless forced to do so by 
 circumstances which he cannot controL 
 Farkas v. Powell, 86 Ga. 800, 13 S. E. 200. 
 
 12: 397 
 
 26. Riding a hired horse a few miles be- 
 yond the point to which he was hired to go- 
 will not make the hirer liable for the losa 
 of the horse, where, after returning from 
 the extra trip, he fell on the homeward 
 road, and died a day or two afterwards, un- 
 less the extra ride caused or materially con- 
 tributed to this result. Id- 
 By fire. 
 
 Liability of Warehouseman, see Warehouse - 
 
 hien, 9, 10. 
 See also Contracts, 670. 
 
 27. A hirer of personal property under 
 an agreement to return it at the expira- 
 tion of the lease in as good condition as 
 when taken, usual wear excepted, is not 
 liable for its loss by fire without his fault. 
 Seevers v. Gabel, 94 Iowa, 75, 62 N. W. 060, 
 
 27: 73 J 
 
 28. Failure of the owner of a building 
 to comply with an ordinance requiring fire- 
 proof shutters on all brick buildings with- 
 in the city limits is not such negligence a* 
 will render him liable to persons whose- 
 goods were in his custody as bailee, and 
 were destroyed by fire communicated to the- 
 building through the unprotected windows. 
 Frontier Steam Laundry Co. v. Connolly 
 (Neb.) 101 N. W. 995, * 68: 425- 
 
 29. A livery-stable keeper who stores a 
 hearse for an undertaker, under an agree- 
 ment which does not expressly specify any 
 particular stable, though both expect that 
 it will be kept at the main stable, at which 
 place only it is covered by an insurance 
 policy, is not liable for the loss of the 
 hearse by fire while stored in another stable- 
 also used in his business, where he did not 
 in fact know of the limitation of the insur- 
 ance, although a similar limitation existed 
 in policies upon his own vehicles. Bradley 
 v. Cunningham. 61 Conn. 485, 23 Atl. 432, 
 
 15: 679 
 
 30. Where engravings and lithographs 
 were burned while in the possession of the 
 manufacturer, after they were ready for 
 delivery and after they had been accepted 
 by the person for whom they were made, 
 the latter must suffer the loss. Central 
 Lithographing & E. Co. v. Moore, 75 Wis. 
 
 I 170, 43 N. W. 1124, 6: 788- 
 
 I Of customer in store. 
 
 31. A retail merchant is liable for the-
 
 BAILMENT, IV. 
 
 195 
 
 loss of a customer's watch and chain which 
 is taken off, and, at the suggestion of a 
 salesman, put in a drawer while the cus- 
 tomer is trying on clothing, if ordinary care 
 is not exercised for its safety, but not if 
 it is stolen , where he has exercised such 
 care. Woodruff v. Painter, 150 Pa, 91, 24 
 Atl. 621, 16: 451 
 
 32. A merchant having a store in which 
 he keeps ready-made cloaks for sale, who 
 provides mirrors for the use of customers 
 trying on such cloaks, and clerks to aid in 
 the process, thereby impliedly invites cus- 
 tomers to remove their old cloaks while try- 
 ing on new ones; and he is bound to exer- 
 cise some care over the old cloak while 
 the customer's attention is engaged in look- 
 ing at the new one. Bunnell v. Stern, 122 
 N. Y. 539, 25 N. E. 910, 10: 481 
 
 33. Where a merchant, whose duty it is 
 to exercise some care over the, old cloak 
 of 'a customer, which has been removed 
 for the purpose of trying on a new one, 
 while the customer's attention is engaged 
 with the new cloak, provides no place where 
 the old cloak can be left, fails to notify 
 the customer to look out for it, and makes 
 no rules requiring employees, after seeing 
 it placed on a counter, to keep watch of it, 
 he is liable to the customer for its value 
 if it is lost. Id. 
 While in cold storage. 
 
 For Editorial Notes, see infra, IV. 2. 
 
 34. For the deterioration of goods while 
 in cold storage the cold storer is responsi- 
 ble, notwithstanding that in the heading of 
 the receipt issued for the goods there is 
 printed a limited-liability clause to the ef- 
 fect that goods are not examined when re- 
 ceived, and therefore the warehouseman 
 will not be responsible for the contents 
 or damage, or for leakage, depreciation, or 
 damage by rats. Marks v. New Orleans 
 Cold Storage Co. 107 La. 172, 31 So. 671, 
 
 57:271 
 
 35. The undertaking of the owner of a 
 cold-storage warehouse being to preserve 
 goods liable to undergo or actually under- 
 going deterioration through the develop- 
 ment in them of insect life, it is not neces- 
 sary, in order to recover against him for 
 damage to goods, to prove more than that 
 the goods, when delivered into his cold stor- 
 age, were, according to the usual and or- 
 dinary test of commerce, sound. Id. 
 
 36. Bailees for hire who received dressed 
 poultry to be kept in cold storage, without 
 any specific agreement respecting the tem- 
 perature to be maintained, are not liable for 
 a damaged condition of the poultry due to 
 the fact that the temperature was too high, 
 when this was such as is usually maintained 
 in cold-storage rooms, and both parties sup- 
 posed it would be sufficiently cold, but it 
 was not so low as that at which a freezer 
 is kept. Allen v. Somers, 73 Conn. 355. 47 
 Atl. 653, 52: 106 
 Delivery to third person. 
 
 By Warehouseman, see Warehousemen, 14, 
 15. 
 
 37. Lack of care by a bailor in keeping 
 a check for his property, given him by the 
 
 bailee, will not prevent recovery for wrong- 
 ful surreirder of the property by the bailee 
 to one who presented the check, but who 
 had no right to it, if the bailee could have 
 avoided the loss by the exercise of reason- 
 able care. Tombler v. Koelling, 60 Ark. 62, 
 28 S. W. 795, 27: 502 
 
 38. Possession of a check for a watch and 
 other valuables, given by the keeper of a 
 bath-house to a patron as a means of iden- 
 tifying his property, is not proof of a right 
 to the property, and will not justify its de- 
 livery to one who has no right to the check, 
 where the custodian knows both the bailor 
 and the property and would have known 
 that the person presenting the check was 
 not entitled to the property if he had 
 looked t*,t him. Id. 
 
 39. When property in the custody of a 
 safe deposit company for safe keeping and 
 storage is demanded by third persons undei- 
 color of process, it becomes the duty of 
 the company to ascertain whether or not 
 the process requires a surrender of the prop- 
 erty; and if it does not then the company 
 must refuse to surrender it and offer such 
 resistance to the taking, and, if unsuccess- 
 ful in this, adopt such measures for re- 
 claiming it, as a prudent and intelligent 
 man would offer and adopt if the demand 
 was made and the property taken by a 
 third person under a claim of right without 
 legal process. Roberts v. Stuyvesant Safe 
 Deposit Co. 123 N. *Y. 57, 25 N. E. 294, 
 
 9: 438 
 
 40. It is no defense to an action by the 
 owner of property against a safe deposit 
 company to recover for the loss of the prop- 
 erty, which was left with it for safe keep- 
 ing, and which it negligently permitted to 
 be taken by a third person, that after it 
 
 I went into the possession of such third per- 
 
 ! son it was seized under legal process against 
 
 I the owner; but if it can be shown that the 
 
 | owner had the benefit of it by application, 
 
 through regular legal proceedings, upon a 
 
 judgment against him, such fact will go in 
 
 mitigation of damages. Id. 
 
 IV. Editorial Notes. 
 
 i. Generally. 
 
 Distinguished from sale. 10: 233.* 
 
 Reservation of title, as against creditors 
 
 in bailment for sale. 22: 
 
 850. 
 Criminal responsibility of child for larceny 
 
 while bailee. 36 : 202. 
 2. Duty and liability of bailee. 
 Liability of gratuitous bailee. 10: 481.* 
 Liability of carrier as bailee. 6: 853.* 
 Liability of warehousemen as bailees. 6: 
 
 857;* 7: 529.* 
 
 Liability of innkeeper as bailee. 8: 98.* 
 Liability of bailee for hire. 12: 397-* 
 Liability of bailee of horse. 12: 397.* 
 Liability of hirer for driving team to place 
 
 where it was not hired to 
 
 go. 26: 366. 
 Liability of bailee of bicycle. 47: 305.
 
 196 
 
 BAIL TROVER BANKRUPTCY. 
 
 Liability of infant bailee for negligence or 
 
 wilful injury. 57: 680. 
 
 Liability of bailee for wrongful appropria- 
 tion by his servant of 
 thing bailed. 29: 92. 
 Where servant has no duty in respect 
 
 to thing bailed. 29: 94. 
 Where servant's duties give him some 
 control of thing bailed. 
 29:94. 
 Goods not in possession of master. 29: 
 
 96. 
 
 Effect of statute. 29: 96. 
 Ratification. 29: 96. 
 Special contract. 29: 96. 
 Liability of bailee for damages to goods 
 received for cold storage. 
 52: 106. 
 
 Measure of damages. 52: 108. 
 Liability of pledgee of stock as a share- 
 holder. 36: 139. 
 
 When statute of limitations begins to run 
 in favor of bailee. 1: 
 319:* 
 
 3. Duty and liability of bailor. 
 Duty to inform bailee as to character of 
 
 horse. 12: 397. 
 Implied warranty of horse or vehicle. 19: 
 
 "283. 
 
 Liability to servants of bailee for injuries 
 caused by condition of 
 thing bailed. 46: 104. 
 4. Conversion. 
 
 By bailte; necessity of demand. 1: 518.* 
 Of coin by bailee, payment for in coin. 29: 
 522. 
 
 BAIL TROVER. 
 
 See Trover, 35. 
 
 BAKERY. 
 
 A city ordinance having for its object the 
 prevention of the use of unwholesome well- 
 water in the making of bread for public 
 distribution and consumption may validly 
 require, as a means to that end, the filling 
 up of wells on premises where such bread 
 is made. State v. Schlemmer, 42 La. Ann. 
 1166, 8 So. 307, 10: 135 
 
 BAKING POWDER. 
 
 Requiring Label for, see Constitutional 
 
 Law, 471. 
 
 Containing Alum, Statute Prohibiting Sale 
 of, see Constitutional Law, 1074. 
 
 BALLOON ASCENSION. 
 Injury to Spectator at, see Exhibition, 3-6. 
 
 BALLOT BOX. 
 
 Taking Before Grand Jury, see Elections, 
 276. 
 
 BALLOT MACHINES. 
 See Elections, 192-194. 
 
 BALLOTS. 
 
 Burden of Proof as to Genuineness of, see 
 
 Evidence, 214. 
 Presumption as to, see Evidence, 614, 615, 
 
 617. 
 
 As Best Evidence, see Evidence, 779-781. 
 Admissibility in Evidence, see Evidence, 
 
 1020, 1021. 
 
 Proof as to Care of, see Evidence, 2313. 
 Vote by, at School Meeting, see Schools, 
 
 72, 73. 
 See also Elections, II. b. 
 
 BALL PLAYING. 
 
 Contract with Ball Player, see Contracts, 
 361-363. 
 
 Custom as to Discharging Player, see Cus- 
 tom, 20. 
 
 Injunction against Breach of Contract, see 
 Injunction, 36, 85. 
 
 On Sunday, see Constitutional Law, 538, 
 539, 1095c; Indictment, etc., 77; Stat- 
 utes, 57; Sunday, 7. 
 
 BANG. 
 
 Removal of Case from Division to Court 
 in Bane, see Appeal and Ei-ror, 1264. 
 
 BANK BOOKS. 
 
 Admissibility of, in Evidence, see Evidence, 
 
 963, 964, 967, 968. 
 
 Oral Evidence as to, ee Evidence, 1130. 
 See also Banks, 35a, 360, 369-379a. 
 
 BANK CLERK. 
 Liability on Bond of, see Bonds, 44, 45. 
 
 BANK EXAMINER. 
 
 Authority of, see Banks, 53, 54. 
 Demand on, for Payment of Note, see Bills 
 and Notes, 167.
 
 BANKRUPTCY, I. 
 
 197 
 
 BANKRUPTCY. 
 
 I. In General. 
 
 II. Property Vesting in, and Rights of, As- 
 signee or Trustee. 
 III. Claims against Estate. 
 IV. Discharge. 
 V. Editorial Notes. 
 
 Time of Taking Appeal, see Appeal and 
 
 Error, 144. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 328. 
 As to Insolvency, see Insolvency. 
 
 I. In General. 
 
 1. A court in which a person has been ad- 
 judged bankrupt has power to proceed sum- 
 marily to compel the bankrupt to sign a 
 transfer of property to which 'the trustee 
 in bankruptcy is entitled. Fisher v. Cush- 
 man, 43 C. C. A. 381, 103 Fed. 860, 51: 292 
 
 2. The fact that an unauthorized appeal, 
 which must be dismissed, is taken in a 
 bankruptcy case in which a petition is also 
 filed to revise the proceedings of the lower 
 court, will not defeat the right to have the 
 case determined on the petition. Id. 
 
 3. An election made by an assignee in 
 bankruptcy to abandon a claim, an action 
 on which by him is barred by U. S. Rev. 
 Stat. 5057, and his consent to suit there- 
 on by the bankrupt for his own benefit, 
 will not empower the bankrupt to maintain 
 such suit. Kenyon v. Wrisley, 147 Mass. 
 476, 18 X. E. 227, 1: 348 
 Effect of bankruptcy acts on state insol- 
 vency laws and proceedings. 
 
 For Editorial Notes, see infra, V. 5. 
 
 4. The enactment of the Federal bank- 
 ruptcy-law of July 1, 1898, did not suspend 
 the right of a state court to appoint a re- 
 ceiver for an insolvent corporation under 
 state laws, when it had not been adjudged 
 a bankrupt under the law of Congress. 
 State ex rel. Strohl v. King County Super. 
 Ct. 20 Wash. 545, 56 Pac. 35, 45: 177 
 
 5. An action by a trustee in insolvency 
 under Conn. Gen. Stat. chap. 52, which is 
 in the fullest sense an insolvency law, to 
 set aside a fraudulent conveyance of goods 
 by the insolvent, since the Federal bank- 
 rupt act of 1898 took effect, cannot be main- 
 tained, although the insolvent has not been 
 declared a bankrupt; since the title of the 
 trustee under the state insolvency law is 
 not merely voidable by proceedings in 
 bankruptcy, but is absolutely void. 
 Ketcham v. McNamara, 72 Conn. 709, 46 
 Atl. 146, 50: 641 
 What is an act of bankruptcy. 
 
 For Editorial Notes, see infra, V. 3. 
 
 6-7 Permitting a mortgagee to take pos- 
 session of mortgaged chattels after the 
 mortgagor has become insolvent, under an 
 unrecorded mortgage which had been in ex- 
 istence a long time, is an act of bankruptcy 
 under the act of Congress of 1898, and the 
 preference thereby secured will be defeated 
 by the institution of bankruptcy proceed- 
 ings within four months after that time. 
 
 Tatman v. Humphrey, 184 Mass. 361, 68 N. 
 E. 844, 63: 738 
 
 8. A transfer of property forbidden by 
 the bankruptcy act is not effected by the 
 appropriation by a bank of the balance of 
 the bankrupt's deposit account in payment 
 of his indebtedness to it after knowledge of 
 the bankruptcy. Re George M. Hill Co. 64 
 C. C. A. 561, 130 Fed. 315, 66: 68 
 
 9. The payment of money by an insol- 
 vent to an unsecured creditor, in the ordin- 
 ary course of business, is a transfer of 
 property within the meaning of the bank- 
 ruptcy act of 1898, 60a, providing that a 
 person shall be deemed to have given a 
 preference, if, being insolvent, he makes a 
 transfer of any of his property the effect 
 of which will be to enable any one of his 
 creditors to obtain a greater percentage 
 of his debt than any other of such creditors 
 of the same class. Re Fixen, 42 C. C. A. 
 354, 102 Fed. 295, 50: 605 
 Who may be adjudged bankrupt. 
 
 To what Court Decision Appealable, see Ap- 
 peal and Error, 61. 
 
 10. Keeping a hotel is not trading or a 
 mercantile pursuit within the meaning of 
 a statute permitting the institution of in- 
 voluntary bankruptcy proceedings against 
 corporations principally engaged in trading 
 or such pursuit. United States Hotel Co. 
 v. Niles, 67 C. C. A. 153, 134 Fed. 225, 
 
 68: 588 
 
 11. Since the national bankruptcy law 
 contains no provision for involuntary pro- 
 ceedings against persons engaged chiefly 
 in the tillage of the soil, it does not super- 
 sede the provision of the state law author- 
 izing such proceedings. Old Town Bank v. 
 McCormick. 96 Md. 341, 53 Atl. 934, 60: 577 
 
 12. The building, sale, and repairing of 
 vessels employed in commerce is within the 
 provisions of a statute permitting bank- 
 ruptcy proceedings to be instituted against 
 corporations engaged principally in manu- 
 facturing and mercantile pursuits. Colum- 
 bia Ironworks v. National Lead Co. 62 C. 
 C. A. 99, 127 Fed. 99, 64: 645 
 
 13. The obligation of a married woman, 
 not a free trader, to pay for goods which 
 form part of a stock in trade with which 
 she is carrying on business, which may, in 
 equity, be enforced against her separate es- 
 tate, is a "debt" within the meaning of the 
 clause of the bankruptcy act relating to 
 involuntary bankruptcy proceedings. Mac- 
 donald v. Tefft-Weller Co. 63 C. C. A. 381, 
 128 Fed. 381, 65: 106 
 Discharge of prior liens by commencement 
 
 of proceeding. 
 So also supra. 6; infra, 50a. 
 
 14-15. An attachment lien upon property 
 of a bankrupt which is exempt and over 
 which the bankruptcy court has disclaimed 
 jurisdiction is not included in 67f of the 
 bankruptcy act, providing that liens of at- 
 tachments levied within four months prior 
 to the petition in bankruptcy shall be null 
 and void, and that the property covered 
 thereby shall pass to the trustee as part of 
 the estate of the bankrupt. Powers Dry
 
 198 
 
 BANKRUPTCY, II.. III. 
 
 Goods Co. v. Nelson. 10 N. D. 580, 88 N. 
 \V. 703, 58: 770 
 
 Sufficiency of schedule of debt. 
 
 16. A debt is properly scheduled in bank- 
 ruptcy proceedings, so as to give notice to 
 the creditor or his assignor, where in the 
 schedule the name of the original creditor 
 and the nature and the amount of the debt 
 are correctly stated. Loomis v. Wallblom. 
 91 Minn. 392, 102 N. W. 1114, 69: 771 
 Exemptions. 
 
 17. The jurisdiction of a court of bank- 
 ruptcy over exempt property of the bank- 
 rupt is limited to determining whether or 
 not it is exempt, and the title thereto re- 
 mains "in the bankrupt; and when set apart 
 as exempt by the bankruptcy court it is 
 subject to the jurisdiction of the state, and 
 not of the Federal, courts. Powers Dry 
 Goods Co v. Nelson, 10 N. D. 580, 88 N. W. 
 703, 58: 770 
 
 18. The voluntary conveyance by an in- 
 solvent fo' the use" of his wife, without ac- 
 tual fraud, of all his real estate, the value 
 of which is not greater than is subject by 
 law to a homestead exemption during the 
 life of himself and wife and the minority 
 of his children, will not deprive him of the 
 right to have the homestead set off to him 
 in a bankruptcy proceeding, in case he ob- 
 tains a reconveyance after the .adjudication 
 of his bankruptcy, and includes the land in 
 Iris schedule of property. Re Tollett. 46 C. 
 C. A. 11, 106 Fed. 866,' 54: 222 
 Effect of adjudication in bankruptcy. 
 
 19. An adjudication of bankruptcy ab- 
 solves the bankrupt from no agreement, ter- 
 minates no contract, and discharges no lia- 
 bility. Watson v. Merrill, 136 Fed. 359. 
 
 69: 719 
 
 20. An adjudication of bankruptcy in a 
 case in which there was no rent due at the 
 time of the filing of the petition in bank- 
 ruptcy does not constitute a breach at that '< 
 time of the covenants of the bankrupt in 
 2iis lease to pay rents accruing thereafter. 
 
 Id. 
 
 II. Property Vesting in. and Rights of, 
 Assignee or Trustee. 
 
 For Editorial Notes, see infra, V. 1. 
 
 21. A bankruptcy trustee has sufficient 
 interest to.be entitled to contest the claim 
 of the bankrupt's landlord to a lien on the 
 assets for rent. Atkins v. Wilcox, 44 C. C. 
 A. 626. 105 Fed. 595. 53: 118 
 
 22. A trustee in bankruptcy has the op- 
 tion to assume or to renounce the leases 
 and other executory contracts of the bank- 
 rupt, as he may deem for the best inter- 
 est of the estate. Watson v. Merrill, 136 
 Fed. 359, . 69: 719 
 
 23. A trustee in bankruptcy is entitled to 
 maintain an action to set aside the convey- 
 ance alleged to be fraudulent as to a judg- 
 ment creditor where the estate of the judg- 
 ment debtor is in the bankrupt court, and 
 the claim of the creditor has been filed. 
 Sohmitt v. Dahl, 88 Minn. 506, 93 N. W. 
 C65, 67: 590 
 
 Property vesting in trustee. 
 
 24. An assignment in bankruptcy prior 
 to the act of Congress of .lune 5, 1882, re- 
 establishing the Court of Commissioners 
 of Alabama Claims, does not cover a claim 
 allowed by such commissioners for war 
 premiums paid by the bankrupt in 1863 on 
 vessels insured against confederate cruis- 
 ers; and where the assignee prosecuted and 
 collected such claim, he holds the proceeds 
 in trust for the bankrupt. Kingsbury v. 
 Mattocks, 81 Me. 310, 17 Atl. 126, 3: 460 
 
 25. A liquor license which is by law 
 transferable to any person who is satisfac- 
 tory to a board of police commissioners, 
 though it may be destroyed without com- 
 pensation by subsequent legislation, is 
 "property" within the meaning of the 
 bankrupt act, 70 (30 Stat. at L. 565, 
 566), which provides that a banKrupt must 
 transfer "property which, prior to the pe- 
 tition, he could by any means have trans- 
 ferred." Fisher v. Cushman. 43 C. C. A. 
 381, 103 Fed. 860, 51: 292 
 
 26. A seat in a stock exchange, owned by 
 one who has no unsettled contracts with, 
 or claims against him in favor of, other 
 members, under which circumstances the 
 rules of the exchange permit a sale of the 
 seat, is within the provision of the bank- 
 ruptcy act that the trustee shall be vested, 
 by operation of law, with the bankrupt's 
 title to all property which, prior to the fil- 
 ing of the petition, he could by any means 
 have transferred. Re Page, 46 C. C" A. 160, 
 107 Fed. 89. 59: 94 
 
 27. A policy of insurance upon the life of 
 a bankrupt, though payable to his legal rep- 
 resentatives, does not vest in the trustee as 
 assets of the bankrupt's estate, under the 
 bankrupt act of 1898, 70a, if the policy 
 has no cash surrender value; and a* trans- 
 fer of such a policy by a bankrupt to his 
 wife, within four months of the filing of 
 his petition in bankruptcy, will not be set 
 aside as in fraud of creditors. Morris v. 
 Dodd, 110 Ga. 606, 36 S. E. 83, 50: 33 
 
 28. A life insurance policy of a bankrupt, 
 which has a cash surrender value, passes to 
 his trustee in bankruptcy as assets under 
 the bankrupt act of 1898, 70, unless its 
 cash surrender value is paid over or secured 
 to the trustee, although by, the laws of the 
 state in which the bankrupt resides such 
 policies are exempt from claims of credi- 
 tors, and the bankrupt act, 6, provides in 
 general that the same exemptions shall ex- 
 ist under that act as exist under state 
 laws, since the specific provisions of 70, 
 providing that such a policy shall pass 
 to the trustee unless its cash surrender 
 value is paid over, constitute a limitation 
 of the more general provisions of 6. 
 Re Scheld, 44 C. C. A. 233, 104 Fed. 870. 
 
 52: 188 
 
 III. Claims against Estate. 
 
 Proper Mode of Reviewing Rejection, se 
 
 Appeal and Error, 60. 
 See also supra, 21.
 
 BANKRUPTCY-, III. 
 
 199 
 
 29. A receiver appointed by the court 
 to enforce payment of the statutory liabil- 
 ity of stockholders of an insolvent corpora- 
 tion to contribute towards payment of its 
 debts is a duly authorized agent of its 
 creditors, within the meaning of the bank- 
 ruptcy act, so as to be entitled to prove 
 the claim against the estate of an insol- 
 vent stockholder. Dight v. Chapman, 44 
 Or. 265, 75 Pac. 585. 65: 793 
 
 30. A petition for bankruptcy filed by a 
 tenant at a time when there is no default 
 in payment of rent notes does not mature 
 the notes for the remainder of the term, 
 so as to give the landlord a lien on the 
 bankrupt's assets for their amount, under 
 a provision in the contract that upon failure 
 to pay rent punctually the rent for the un- 
 expired term shall at once become due and 
 exigible. Atkins v. Wilcox, 44 C. C. A. 626, 
 105 Fed. 595, ^ 53: 118 
 What claims provable. 
 
 For Editorial Notes, see infra, V. 8. 
 
 31. There is no liability on a covenant of 
 warranty which was provable as a "con- 
 tingent debt" or "contingent liability" un- 
 der the bankrupt act of 1867 (U. S. Rev. 
 Stat. 5068), until there was a hostile 
 assertion of the paramount title. Wight 
 v. Gottschalk (Tenn.) 48 S. W. 140, 
 
 43: 189 
 
 32. Rents which a bankrupt had agreed 
 to pay at times subsequent to the filing of 
 the petition in bankruptcy do not consti- 
 tute a provable claim under the bankrupt- 
 cy law of 1898, because they are not a 
 "fixed liability . . . absolutely owing 
 at the time of the filing of the petition 
 against him," and because they do not con- 
 stitute an existing demand. Watson v. 
 Merrill, 136 Fed. 359, 69: 719 
 
 33. Damages for the breach of a contract 
 of the bankrupt to pay rents at times sub- 
 sequent to the filing of the petition in 
 bankruptcy are not a fixed liability, abso- 
 lutely owing, which may be proved in 
 bankruptcy proceedings under the law of 
 1898. Id. 
 
 34. Under a statute requiring debts to 
 be fixed liabilities absolutely owing at the 
 time of filing the petition to be provable 
 in bankruptcy, claims for unaccrued rent 
 are not provable, where, by the terms of 
 the lease, the rent is to abate in case of 
 destruction of the property or the lessee 
 is deprived of its use. Atkins v. Wilcox, 
 44 C. C. A. 626, 105 Fed. 595, 53: 118 
 
 35. Liability upon a penal bond condi- 
 tioned for the payment of rents and an- 
 nuities to another during life is within 
 the provisions of 63a of the bankruptcy 
 act. of 1898, allowing the proving against 
 the bankrupt's estate of a fixed liability, 
 evidenced by instrument in writing, abso- 
 lutely owing at the time of filing the pe- 
 tition, whether then payable or not; but 
 the claim proved must be limited to the 
 penalty of the bond, where the computed 
 value of the expectancy exceeds that 
 amount. Cobb v. Overman, 48 C. C. A. 
 223, 109 Fed. 65, 54: 360 
 
 36. A decree for alimony being a penalty 
 
 imposed for a failure to perform a duty, 
 and always subject to modification by the 
 court according to the varying circum- 
 stances of the parties, the obligation im- 
 posed thereby is not a provable debt in 
 bankruptcy proceedings. Barclav v. Bar- 
 clay, 184 111. 375, 56 N: E. 636, * 51: 351 
 
 37. A judgment determining the amount 
 to be contributed by the stockholders of 
 an insolvent corporation for the payment 
 of its debts under constitutional and stat- 
 utory provisions making stockholders lia- 
 ble for debts to the amount of the par 
 value of the stock held by them renders 
 the amount due from each stockholder a 
 debt provable in bankruptcy proceedings 
 against him, so as to be canceled by a 
 discharge, although he did not appear in 
 the proceeding against the corporation, 
 where the judgment against the corpora- 
 tion is binding upon him. Dight v. Chap- 
 ">in. 44 Or. 265, 75 Pac. 585, 65: 793 
 Set-offs. 
 
 For Editorial Notes, see infra, V. 9. 
 
 38. A bankrupt's debtor who in the re- 
 lation of a surety has paid claims against 
 the bankrupt which have been disallowed 
 in the bankruptcy proceedings because the 
 creditor had accepted a preference contrary 
 to 57g of the bankruptcy act cannot on 
 the theory of subrogation, set them off 
 under 68b of that act, allowing set-off 
 only of claims provable against the estate, 
 since he takes them subject to the disabil- 
 ities attaching to them in the creditor's 
 hands. Morgan v. Wordell, 178 Mass. 350, 
 59 N. E. 1037, 55: 33 
 
 39. A debtor of a bankrupt, who, as 
 quasi surety, has paid claims against the 
 bankrupt, may, under 68 of the bank- 
 ruptcy act, set them off as a "mutual cred- 
 it," in a proceeding against him to enforce 
 the debt although they could not have 
 been enforced by the original creditor, 
 since the provision of 68b. forbidding 
 set-off of claims "not proyable against the 
 estate," refers not to claims which could 
 not be proved in the bankruptcy proceed- 
 ing, but to those not provable in their na- 
 ture, that is, not liquidated when the set- 
 off is claimed. 
 
 40. The amount recoverable from a pre- 
 ferred creditor, against which, under | 60c 
 of the bankruptcy act of 1898, he is enti- 
 tled to set off further credit extended to the 
 bankrupt in good faith, is not limited to 
 the amount of preference knowingly re- 
 ceived, which may be recovered by the 
 trustee under 60b. but includes pay- 
 ments innocently received, which he is en- 
 titled to surrender under 57g, as a con- 
 dition of proving his claim in the bank* 
 ruptcy proceedings. Peterson v. Nash 
 Bros. 50 C. C. A. 260, 112 Fed. 311, 55: 344 
 Surrender of preferences. 
 
 See also supra, 40. 
 
 41. A creditor who has received an un- 
 lawful preference by payment from an in- 
 solvent within four months before his ad- 
 judication in bankruptcy cannot be allowed 
 to claim for the balance of his account 
 without surrendering his preference as re-
 
 200 
 
 BANKRUPTCY, IV. 
 
 quired by the bankruptcy act of 1898, 
 57<r, although he received the payment in 
 the regular course of business, without 
 knowledge of the debtor's insolvency, and 
 continued to sell him goods. Re Fixen, 42 
 C. C. A. 354, 102 Fed. 295, 50: 605 
 
 42. That payments received by a credi- 
 tor within four months of the bankruptcy 
 of his debtor were not on account of any 
 merchandise for the price of which he *eks 
 to make a claim in the bankruptcy pro- 
 ceedings will not take him out of the oper- 
 ation of 57g of the bankruptcy act of 1898, 
 requiring surrender of preferences as a 
 condition of sharing in the assets. Re 
 Dickson, 49 C. C. A, 574, 111 Fed. 726, 
 
 55: 349 
 
 43. Payments on an account current will 
 not be required to be surrendered, under 
 57g of the bankruptcy act of 1898, reqiiir- 
 ing surrender of preferences as a condition 
 of proof of claims, in order to entitle the 
 creditor to prove his claim, where they 
 were received without any intention of ac- 
 quiring an unjust preference, and the cred- 
 its have been increased during the period 
 when they were made, so that the bank- 
 rupt's estate has been increased, rather 
 than diminished. Id. 
 
 44. Payment to a bank, by an insolvent 
 within four months of the institution of 
 bankruptcy proceedings against nim, of 
 notes given to and discounted for other per- 
 sons by the bank, constitutes preferential 
 payments which the bank must return to 
 be* entitled to share in the bankrupt's es- 
 tate, although the indebtedness was not 
 charged by the bank against the maker 
 of the notes, but was carried in the ac- 
 counts of the payees. Re George M. Hill 
 Co. 64 C. C. A. 561, 130 Fed. 315, 66: 68 
 
 45. In determining whether or not the 
 dealings between a bank and an insol- 
 vent customer have decreased the estate 
 within four months prior to the institution 
 of bankruptcy proceedings, so as to re- 
 quire the bank to return the amount of 
 such decrease in order to be entitled to 
 prove claims against the estate, all the 
 transactions must be considered, including 
 payments by the insolvent upon notes giv- 
 en to and discounted for other persons, al- 
 though such notes do not appear in his ac- 
 count on the bank's books. Id. 
 
 46. The increase of contingent liability of 
 an insolvent person to a bank by reason 
 of tlie discount for him of notes executed 
 by other persons and indorsed by him can- 
 not be taken into consideration in deter- 
 mining whether or not the result of trans- 
 actions between him and the bank within 
 four months of the institution of the bank- 
 ruptcy proceedings has been to decrease the 
 estate, so as to require the bank to return 
 the ;i mount of the decrease in order to be 
 permitted to file claims against the estate. 
 
 Id. 
 
 47. Only the amount of direct loss to the 
 estate of an insolvent during the 'period of 
 four months prior to the institution of 
 bankruptcy proceedings, because of trans- 
 actions with a bank consisting of payments 
 
 and loans, must be returned by the bank 
 in order to be permitted to file claims 
 against the estate. Id. 
 
 IV. Discharge. 
 
 Estoppel as to, see Estoppel, 257. 
 Discharge in Insolvency, see Insolvency, V. 
 Of Stockholder in Insolvent Corporation, 
 
 see Notice, 73. 
 Plea of, see Pleading, 496. 
 Collateral Attack on Judgment to Prevent, 
 
 see Judgment, 148. 
 For Editorial Notes, see infra, V. 10, 11. 
 
 48. A statute permitting one who has 
 obtained a discharge in bankruptcy to ap- 
 ply to the courts in which judgments were 
 rendered against him for an order direct- 
 ing their cancelation has no application to 
 judgments from which the bankruptcy act 
 does not release the debtor. Colwell v. 
 Tinker, 169 N. Y. 531, 62 N. E. 668, 
 
 58: 765 
 
 49. The discharge of a judgment debtor 
 in bankruptcy, although the judgment has 
 ceased to be a lien, does not render it un- 
 availing for the purpose of redeeming the 
 debtor's lands from sale under a prior 
 judgment. Pease v. Ritchie, 132 111. 638, 
 24 N. E. 433, 8: 566 
 
 50. A discharge in bankruptcy of one 
 who has assigned wages to be earned in 
 the future does not affect the right to en- 
 force the assignment. Mallin v. Wenham. 
 209 111. 252, 70 N. E. 564, 65: 602 
 
 50a. The lien of an attachment on per- 
 sonal property of a bankrupt is not de- 
 stroyed by a mere discharge of the debt se- 
 cured by the lien, through a discharge un- 
 der the present national bankruptcy act; 
 and, unless such lien is one which is itself 
 declared void by said act, it may be en- 
 forced, through a modified form of judg- 
 ment, as against the property on which the 
 lien exists. Powers Dry Goods Co. v. Nel- 
 son, 10 N. D. 580, 88 N. W. 703, 58: 770 
 Of one member of firm. 
 For editorial Notes, see infra, V. 11. 
 
 51. A full discharge of the individual lia- 
 bility of one partner on a firm debt may 
 be had in bankruptcy proceedings concern 
 ing that partner only. Loomis v. Wall- 
 blom, 91 Minn. 392, 102 N. W. 1114, 
 
 69: 77) 
 
 52. A discharge of individual liability on 
 a firm debt in bankruptcy proceedings con- 
 cerning one partner only is a good defense 
 in an action brought against both partners 
 to renew a judgment on a partnership debt, 
 the process in which action was served only 
 on the partner who had been duly dis- 
 charged in bankruptcy proceedings, where 
 it appears that, many years before, the 
 parties dissolved the firm, and the firm, to 
 the actual knowledge of the judgment cred- 
 itor, made an assignment of all unexempt, 
 firm and individual property under a state 
 insolvency law, and that the claim was 
 properly scheduled, and notice thereof duly 
 given ; and it does not affirmatively appear 
 that anv firm assets now exist. Id.
 
 BANKRUPTCY, V. 
 
 201 
 
 Effect on surety's liability of discharge of 
 principal. 
 
 53. A surety on a capias bond in a suit 
 to hold the principal liable for selling and 
 converting the proceeds of property sold 
 to him on condition cannot be held after 
 the principal has been discharged in bank- 
 ruptcy. Bryant v. Kinyon, 127 Michr 152, 
 8(i N. W. 531, 53: 801 
 What debts released by discharge. 
 
 See also supra, 37. 
 
 54. A debt arising from the sale and col- 
 lection of the proceeds of property condi- 
 tionally sold to the vendor, with reten- 
 tion of title until the payments were made 
 as required by the contract, is not within 
 the provision of the bankruptcy act ex- 
 cepting from the operation of the discharge 
 debts created by fraud, etc., while acting 
 as an officer "or in any fiduciary capacity;" 
 but the dischnvge will reach ;ts under tiic- 
 other provisions of the act. JJ-vant v. 
 Kinyon, 127 Mich. 152, 86 N. VY. .031, 
 
 53: 801 
 
 55. A judgment for the publication of a 
 libel is within the clause of the bankruptcy 
 act excepting from release judgments for 
 wilful and malicious injuries to the person 
 or property of another. McDonald v. 
 Brown, 23 R. I. 546, 51 Atl. 213, OS: 7CS 
 
 56. A discharge in bankruptcy includes 
 liability under a judgment for future in- 
 stalments of alimony, where the btate law 
 makes the husband an ordinary debtor, un- 
 der such judgment, for a fixed sum of mon- 
 ey for which his estate is liable, in che 
 same manner that it would be liabl-i for a 
 debt due upon any contract. Fite v. Fite, 
 110 Ky. 197, 61 S. W. 26, 53: 2o5 
 
 57. No fiduciary relation exists between 
 persons negotiating for the sale and pur- 
 chase of goods, within the meaning of the 
 section of the bankruptcy act of 1898, which 
 prevents a release from affecting debts 
 created by fraud" while acting in any fidu- 
 ciary capacity, so as to prevent the release 
 from being operative in case the goods were 
 obtained by the purchaser through fraud 
 and false representations. Goodman v. 
 Herman, 172 Mo. 344, 72 S. W. 546, 60: 885 
 
 58. An affidavit for attachment in an ac- 
 tion upon an account for goods sold and 
 delivered cannot be looked to in determin- 
 ing whether or not the action was for fraud, 
 so that a discharge in bankruptcy will not 
 release liability on the judgment therein. 
 
 Id. 
 
 59. A final money judgment obtained for 
 the total amount due from a putative 
 father, who in bastardy proceedings was 
 required to pay a monthly stipend for the 
 support of the child, is a debt dischargeable 
 by procedings under the bankruptcy act 
 of 1898. McKittrick v. Cahoon, 89 "Minn. 
 383. 95 N. W. 223, 62: 757 
 
 60. A judgment obtained by a wife 
 njrainst another woman for damages sus- 
 tained by the wife by reason of the alien- 
 ation of the affections of her husband is not 
 released by the discharge of the judgment 
 debtor under proceedings in bankruptcy, 
 where such alienation has been accomplish?*! 
 
 by schemes and devices of the judgment 
 debtor, and has resulted in the loss of sup- 
 port and impairment of health to the wife. 
 Leicester v. Hoadley, 66 Kan. 172, 71 Pac. 
 318, 65: 523 
 
 61. A judgment awarding damages for 
 criminal conversation with plaintiff's wife 
 is within the exception in 17 of the bank- 
 ruptcy act, providing that a discharge shall 
 not release judgments for wilful and ma- 
 licious injuries to the person or property 
 of another. Colwell v. Tinker, 169 N. Y. 
 531, 62 N. E. 668, 58: 765 
 
 V. Editorial Notes. 
 
 i. Generally. 
 
 Effect of husband's bankruptcy upon wife's 
 
 right of dower. 18: 77. 
 Respective rights of receiver and assignee 
 
 in bankruptcy. 20: 391. 
 First and last days in computing time for 
 
 matters of. 49: 240. 
 Allowance of attorneys' fees in bankruptcy 
 
 cases. 54: 826. 
 2. Jurisdiction. 
 Of bankruptcy court. 1 : 121.* 
 Of state courts over actions by or against 
 assignee in bankruptcy. 
 48: 36. 
 Question relating to bankruptcy as Federal 
 
 question. 62: 535. 
 
 3. Relation of bankrupt law to assign- 
 ments and insolvency proceedings un- 
 der state laws. 
 Provision of the various bankrupt laws. 
 
 45: 177. 
 An assignment for creditors as an act of 
 
 bankruptcy. 45: 177. 
 Effect of bankrupt law on assignments for 
 
 creditors. 45: 178. 
 Cases under the bankrupt act of 1841. 
 
 45: 178. 
 Cases under the bankrupt act of 1867. 
 
 45: 179. 
 Where no bankrupt proceedings 
 
 were instituted. 45: 179. 
 Where bankrupt proceedings were 
 instituted, but the assign- 
 ment was not attacked. 
 45: 179. 
 
 Where the assignment was not at- 
 tacked in time by bank- 
 rupt's assignee. 45: 180. 
 Where the assignment was at- 
 tacked in time by bank- 
 rupt's assignee. 45: 181. 
 Effect on intervening judgments 
 and executions. 45: 183. 
 Allowances to assignee for cred- 
 itors where the assign- 
 ment was avoided. 45: 
 184. 
 Cases under bankrupt act of 1898. 45: 
 
 185. 
 
 Effect of bankrupt law on insolvency pro- 
 ceedings under state laws. 
 45: 186. 
 
 On subsequent proceedings. 45: 186. 
 On pending proceedings. 45: 187.
 
 202 
 
 BANKRUPTCY, V. (Ed. Notes ) 
 
 On proceedings after the repeal of the 
 
 bankrupt law. 45: 187. 
 On proceedings for arrest. 45: 188. 
 Proceedings for a receiver as affected by 
 
 bankrupt law. 45: 190. 
 Effect of creditor's bill or supplementary 
 proceedings as against 
 bankrupt proceedings. 45: 
 193. 
 
 Effect of an assignment for creditors on 
 the right to a dis- 
 charge in bankruptcy. 
 45: 194. 
 
 4. Foreign proceedings. 
 Effect of. 1: 121;* 2: 99.* 
 Conclusiveness of foreign adjudications in 
 
 bankruptcy. 20: 673. 
 Transfer of property by foreign bankrupt 
 and insolvent assign- 
 ments. 23: 33; 65: 353. 
 5. Acts of bankruptcy. 
 Assignment for creditors as .n act of bank- 
 ruptcy. 45: 177. 
 
 6. Assets; transfer of property. 
 Causes of action for personal injuries as 
 
 assets. 44: 180. 
 Transfer of trademark by bankruptcy or 
 insolvency assignment. 
 46: 541. 
 
 7. Priority; preferences. 
 Effect of creditor's participation in fraud- 
 ulent intent of debtor in 
 making transfer by way 
 of preference. 31: 647. 
 Priority of rights to fund as between as 
 signees in bankruptcy and 
 prior assignees. 66: 760. 
 8. Debts provable. 
 
 What constitutes a fixed liability as evi- 
 denced by a judgment or 
 an instrument in writing 
 absolutely owing at the 
 time of the filing of the 
 petition in bankruptcy. 
 54: 369. 
 Judgments. 54: 369. 
 
 In general. 54: 369. 
 For alimony. 54: 369. 
 Written instruments. 54: 372. 
 In general. 54: 372. 
 Bonds. 54: 373. 
 Notes. 54: 373. 
 Leases. 54: 374. 
 
 g. Set-off in bankruptcy cases. 
 Debts or claims existing and mature at the 
 time of insolvency. 55: 
 34. 
 
 In general. 55: 34. 
 Provability of debt. 55: 36. 
 Unliquidated damages. 55: 37. 
 Breach of contract. 55: 37. 
 Security for particular debt, or special 
 directions or agreements 
 as to application or pay- 
 ment of funds. 55: 38. 
 In general. 55: 38. 
 Brokers or agents. 55: 40. 
 Banking and commercial paper. 55: 
 
 40. 
 
 Debtors and creditors in same right. 55: 41. 
 In general. 55: 41. 
 
 Joint or partnership debts. 55 : 41. 
 Corporations. 55: 44. 
 Agents, factors, and brokers. 55: 
 
 44. 
 
 In general. 55: 44. 
 Insurance brokers. 55: 45i 
 Trustees, 55: 46. 
 Executors and administrators. 55: 
 
 46. 
 
 Husband and wife. 55: 47. 
 Assignee in bankruptcy. 55: 47. 
 Unpaid shares of corporate stock. 55: 
 
 47. 
 Bank deposits. 55: 48. 
 
 Bankruptc} 7 of bank. 55: 48. 
 Bankruptcy of depositor. 55:48. 
 Other banking transactions _ and com- 
 mercial paper. 55: 48. 
 Insurance matters. 55: 49. 
 Landlord and tenant. 55: 50. 
 Overpayment in composition proceed- 
 ings. 55: 50. 
 
 Debts created, or claims arising, after in- 
 solvency. 55: 50. 
 In general. 55: 50. 
 Agreement to pay cash or by bill of 
 
 exchange. 55: 51. 
 Debtors and creditors in same right. 
 
 55: 51. 
 
 Agents and factors. 55:51. 
 Executors and administrators. 55: 
 
 52. 
 Bank deposits. 55: 52. 
 
 Deposits by trustee in bankruptcy 
 in bank which subsequent- 
 ly becomes bankrupt. 55: 
 52. 
 
 Bankruptcy of depositor. 55:53. 
 Other banking transactions and. com- 
 mercial paper. 55: 53. 
 Landlord and tenant. 55:54. 
 Expenses of, or payments by, assignees 
 
 for creditors. 55: 54. 
 Payments by ba-nkrupt. 55: 54. 
 Set-off of costs. 55: 55. 
 Set-off after discharge. 55: 56. 
 Immaturity of debts or claims at time of 
 
 insolvency. 55: 56. 
 In general. 55: 56. 
 Uncertainty or contingency of claims. 
 
 55: 57. 
 
 Breach of contract. 55: 58. 
 Security for particular debt or special 
 directions or agreements 
 as to application or pay- 
 ment of funds. 55:- 58. 
 In general. 55: 58. 
 Banking and commercial paper. 
 
 55: 59. 
 Debtors and creditors in same right. 
 
 55: 60. 
 
 In general. 55: 60. 
 Agents, factors, and brokers. 55: 
 
 60. 
 
 In general. 55: 60. 
 Insurance brokers. 55: 61. 
 Executors and administrators. 55: 62. 
 Bank deposits. 55: 62. 
 
 Bankruptcy of bank. 55: 62. 
 Bankruptcy of depositor. 55: 63. 
 Other banking transactions and com- 
 mercial paper. 55: 64.
 
 BANKRUPTCY, V. (Ed. Notes); BANKS. 
 
 203 
 
 In general. 55: 64. 
 Accommodation acceptor or indors- 
 
 er. 55: 65. 
 
 Insurance matters. 55: 66. 
 Life insurance. 55: 66. 
 Fire and marine insurance. 55: 67. 
 Landlord and tenant. 55: 67. 
 Principal and surety. 55:68. 
 Annuities. 55: 68. 
 Debts or claims assigned. 55: 68. 
 In general. 55: 68. 
 Partnership. 55: 69. 
 Bank deposits. 55: 70. 
 
 Bankruptcy of bank. 55: 70. 
 Bankruptcy of depositor. 55: 70. 
 Other banking transactions and com- 
 mercial paper. 55: 70. 
 Insurance matters. 55:72. 
 "Bankruptcy of third persons. 55: 73. 
 Form of action. 55: 74. 
 
 Effect of proving claim. 55: 74. 
 Extent of set-off. 55: 75. 
 Right to set off, against bankrupt, claims 
 purchased after bankrupt- 
 cy. 21:280. 
 
 Eight of creditor to set off new credits 
 given after receiving a 
 preference. 55: 344. 
 10. Discharge. 
 
 Right of one to avail himself of discharge 
 
 procured by fraud. 25:571. 
 
 Effect of assignment for creditors on right 
 
 to discharge. 45: 194. 
 
 Eight of alleged fraudulent grantee to set 
 up grantor's discharge in 
 bankruptcy as against a 
 judgment creditor of the 
 latter. 67: 599. 
 
 New promise after discharge. 53: 362. 
 ii. Of partnership liability in individu- 
 al proceedings. 
 In general. 69: 772. 
 
 Provability of partnership debts in individ- 
 ual proceedings. 69: 772. 
 Introductory. 69: 772. 
 In general/ 69: 773. 
 Exceptions. 69: 775. 
 
 Absence of joint assets or solvent 
 
 partners. 69: 775. 
 In general. 69: 775. 
 When partnership assets have 
 been assigned to bank- 
 rupt. 69: 777. 
 
 Fraudulent abstraction of partner- 
 ship funds by bankrupt. 
 69: 777. 
 Right of petitioning joint creditor 
 
 to prove. 69: 778. 
 
 Discharge of partnership liability in individ- 
 ual proceeding. 69: 778. 
 Discharge of liability by reason of pay- 
 ability* of claim. 69: 778. 
 In general. 69: 778. 
 The English doctrine. 69: 779. 
 Necessity of making firm or copartners 
 
 parties. 69: 780. 
 Under bankruptcy law of 1867. 
 
 69: 780. 
 
 In general. 69: 780. 
 In absence of joint assets. 
 69: 782. 
 
 Under bankruptcy law of 1898. 
 
 783/ 
 
 In general. 69: 783. 
 In absence of joint assets. 
 
 784. 
 
 69: 
 
 BANKS. 
 
 I. Right to Do Business; Powers. 
 II. Stockholders. 
 III. Officers and Agents. 
 
 a. Qualification; Election. 
 
 b. Authority; Ratification. 
 
 c. Liability. 
 IV. Banking. 
 
 a. Deposits. 
 
 1. In General; Nature of; 
 
 Liens on. 
 
 2. Bank's Control over; Appli- 
 
 cation of. 
 
 3. Payment of Checks; Forger- 
 
 ies. 
 
 a. In General. 
 6. Forgeries. 
 
 (1) In General. 
 
 (2) Altered Checks. 
 
 (3) Forged Indorse- 
 
 ments. 
 
 4. Certificate of Deposit. 
 
 b. Collections. 
 
 1. In General. 
 
 2. Insolvency. 
 
 c. Other Transactions; Discounts, 
 
 etc. 
 
 d. Clearing House Business. 
 V. Insolvency. 
 
 VI. Savings Banks. 
 VII. Crimes. 
 VIII. Editorial Notes. 
 
 Attachment for Outstanding Draft, see At- 
 tachment, 3. 
 
 Carrier's Liability for Delivery to Consignee 
 after Assignment of Bill of Lading to, 
 see Carriers, 820. 
 
 Due Process of Law as to, see Constitution- 
 al Law, 680, 681. 
 
 Illegality of Contract by Defaulting Of- 
 ficer of, see Contracts, 405. 
 
 By-laws of, see Corporations, 233. 
 
 Presumption of Officer's Knowledge of Fals- 
 ity of Representations, see Evidence. 
 313. 
 
 Interest to, see Interest, 4. 
 
 Libel of Teller, see Libel and Slander, 59, 
 109. 
 
 Libel by Bank Cashier, see Libel and Slan- 
 der, 103. 
 
 Limitation of Action on Teller's Bond, see 
 Limitation of Actions, 123. 
 
 Notice to, see Notice, 11, 12, 42. 65-70. 
 
 Title of Statute as to, see Statutes, 275. 
 
 Subrogation of, see Subrogation, 26. 
 
 Taxation of, see Constitutional Law, 1152; 
 Statutes, 609; Taxes, especially, 5- 
 12, 24, 186, 243, 370, 463, 625, VI. 
 11-15, and also infra, VIII. 2. 
 
 Liability to, for Mistake in Telegram, see 
 Telegraphs, 21.
 
 204 
 
 BANKS, I., II. 
 
 Recovery for Money Paid on False Tele- 
 gram, see Telegraphs, 30. 
 Usury in Transactions by, see Usury, I. c. 
 
 I. Eight to Do Business; Powers. 
 
 Powers of Savings Banks, see infra, 345- 
 349. 
 
 Presumption as to Incorporation of, see Evi- 
 dence, 402-405. 
 
 Title of Statute as to, &ee Statutes, 171. 
 
 Question for Jury as to, see Trial, 175. 
 
 Sefe also infra, 293. 
 
 For Editorial Notes, see infra, VTQ. 1. 
 
 1. Constitutional provisions authorizing 
 the organization and control of banks of 
 circulation do not prohibit the enactment 
 of laws imposing reasonable regulations 
 upon banks of deposit and discount. Blaker 
 v. Hood, 53 Kan. 499, 36 Pac. 1115, 
 
 24: 854 
 
 2. Stockholders of a corporation, who 
 are obligors on a bond guaranteeing pay- 
 ment of notes, bills, etc., discounted for the 
 corporation by a national bank, cannot de- 
 fend against an action on such bond on the 
 ground that the paper was discounted after 
 the expiration of the corporate existence 
 of the bank, and an extension thereof un- 
 der the act of Congress of July 12, 1882, 
 .especially where the paper discounted after 
 the extension was merely in renewal of 
 prior notes, and they had failed to exercise 
 the privilege reserved to them in the bond, 
 of terminating at any time their liability 
 for further discounts by giving written 
 notice to that effect to the bank. National 
 Exch. Bank v. Gay, 57 Conn. 224, 17 Atl. 
 555, 4:343 
 
 3. A banking corporation organized under 
 the laws of Nebraska has no power to be- 
 come a stockholder in an insurance com- 
 jKinv. Bank of Commerce v. Hart, 37 Neb. 
 197.' 55 N. W. 631, 20: 780 
 Right to do business. 
 
 Equal Protection and Privileges as to, 
 see Constitutional Law, 510-516. 
 
 Due Process of Law as to, see Constitution- 
 al Law, 680. 
 
 What Constitutes Banking Business, see 
 Corporations, 49. 
 
 For Editorial Notes, see infra, VIII. 1. 
 
 4. A legislative declaration in an act, that 
 a corporation under it shall not be deemed 
 a bank, or a company having or exercising 
 banking powers, does not affect the powers 
 conferred, nor does it limit the authority 
 of the corporation ; and, if any section of 
 the art in express words confers banking 
 powers, the character of the corporation is 
 to be determined thereby. Reed v. People 
 ex rel. Attorney General, 125 111. 592, 18 N. 
 E. 295, 1 : 324 
 
 II. Stockholders. 
 
 Judgment against in Suit to Recover As- 
 sessment as Bar to Suit on other As- 
 sessment, see Action or Suit, 79. 
 
 Right of Stockholders in Proceeds of Pol- 
 icy, see Corporations, 471. 
 
 Garnishment of Stock, see Garnishment, 33. 
 
 Limitation of Action against, see Limita- 
 tion of Actions, 102, 103. 
 
 See also infra, 310, 349, 380. 
 
 Transfer of Stock. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 167. 
 
 Gift of Stock, see Gift, 35-37, 41, 49. 
 
 See also infra, 22, 23, 29. 
 
 5. The transferable quality of national 
 bank stock as it is left by the statutes of 
 the United States cannot be limited or in- 
 terfered with by state legislation. Doty 
 v. First Nat. Bank, 3 N. D. 9, 53 N. W. 
 77, 17:259 
 
 6. A transfer of national bank stock, good 
 at common law, is good as to all parties 
 other than the corporation, its shareholders, 
 and creditors, under U. S. Rev. Stat. 5139, 
 U. S. Comp. Stat. 1901, p. 3461', making 
 the stock transferable on the books of the 
 association. Id. 
 
 7. An unrecorded transfer of national 
 bank stock good at common law makes the 
 rights of the transferee superior to those 
 of a subsequent attaching creditor of the 
 transferrer without notice. Id. 
 
 8. A transfer on the books of a national 
 bank is not necessary to give to a donee or 
 purchaser an equitable title to the shares. 
 Leyson v. Davis, 17 Mont. 220, 42 Pac. 775, 
 
 31: 429 
 
 [Writ of Error Dismissed by the Supreme 
 Court of the United States in 170 U. S. 36, 
 42 L. ed. 939.] 
 
 9. Statutory provisions as to the trans- 
 fer of bank stock will not preclude a condi- 
 tion in the stock certificates that the stock 
 will not be transferred on the books until 
 the holder has paid all his debt to the bank. 
 Jennings v. Bank of California, 79 Cal. 323, 
 21 Pac. 852, 5: 233 
 
 10. A bank is put upon inquiry as to the 
 right of an executrix to transfer stock in 
 the bank to herself as an individual by a 
 proposal to make such transfer as security 
 for her indorsement of the note of another; 
 and if the bank relies upon the statement 
 of the maker of the note as to her owner- 
 ship, instead of consulting the will, and the 
 transfer by the executrix was unauthorized, 
 it can claim no lien as security for such 
 indorsement against those who are enti- 
 tled to the stock under the will. Peck v. 
 Bank of America, 16 R. I. 710, 19 Atl. 369, 
 
 7: 826 
 
 11. One who contemplates the purchase 
 of stock in a national bank is entitled to 
 rely on the publication of reports to the 
 comptroller of the currency respecting its 
 condition. Gerner v. Mosher, 58 Neb. 135, 
 78 N. W. 384, 4G: 244 
 Lien on stock. 
 
 Lien on Corporate Stock Generally, see 
 Corporations, V. c, 3. 
 
 12. The invalidity of a lien on shares of 
 stock in a national bank, under a by-law 
 in conflict with the national banking act 
 of Congress, can be asserted by the owner
 
 BANKS, II. 
 
 205 
 
 of the stock to defeat the lien, and the 
 right to raise the question of its invalid- 
 ity is not restricted to the Federal govern- 
 ment. Buffalo German Ins. Co. v. Third 
 Nat. Bank, 162 N. Y. 163, 56 N. E. 521, 
 
 48: 107 
 
 13. An equitable lien in favor of a nation- 
 al bank upon its shares of stock cannot be 
 asserted against a third person by virtue 
 of a loan to a stockholder on the security 
 of the shares, under a by-law providing 
 that any liability of the stockholder should 
 be a lien upon the stock, which by-law is 
 printed on the face of the certificate of 
 stock so as to be notice to all persons deal- 
 ing therein, since such by-law is in con- 
 flict with the provisions of the national 
 banking act of 1864, 35, prohibiting any 
 loan by such bank on the security of its 
 own shares of stock. Id. 
 
 14. By-laws of a bank, subsequently 
 adopted* that certificates of its stock shall 
 be transferable by indorsement and deliv- 
 ery thereof, the transfer to be complete 
 and binding on the bank only when record- 
 ed on its books, and which do not provide 
 for any lien, do not forbid a contract for a 
 lien upon shares to secure a loan to a stock- 
 holder, the lien is independent of the 
 by-laws. Jennings v. Bank of California, 
 79 Cal. 323, 21 Pac. 852, 5: 233 
 
 15. The assets of an insolvent stockholder 
 in an insolvent national bank, whether liv- 
 ing or dead, are not, as against his other 
 creditors, subject to a preferential lien by 
 virtue of the trust-fund doctrine applicable 
 to the assets of insolvent corporations, 
 for the payment of his liability, under U. S. 
 Rev. Stat! 5152, U. S. Comp. Stat. 1901, 
 p. 3463, for the debts of the bank for an 
 amount equal to the par value of his stock. 
 Re Beard's Estate, 7 Wyo. 104, 50 Pac. 226, 
 
 38: 860 
 
 Nature and extent of stockholder's liability. 
 
 Liability of Corporate Stockholders Gener- 
 ally, see Corporations, V. f. 
 
 See also supra, 15. 
 
 For Editorial Notes, see 'infra, VIII. 22; 
 Corporations, VIII. 35-43. 
 
 16. The contract of the shareholder of 
 a national bank with the bank and its 
 creditors, regarding its debts, is that, to 
 an amount not exceeding the par value of 
 his shares of stock, and not exceeding his 
 equal and ratable proportion, he will pay, 
 at such times and in such amounts as the 
 Comptroller of the Currency shall demand, 
 the debts and obligations of his bank. De- 
 weese v. Smith, 45 C. C. A. 408, 106 Fed. 
 438, 66: 971 
 
 17. The liability of the shareholders of 
 national banks for their debts under U. S. 
 Rev. Stat. 5151, U. S. Comp. Stat. 1901, p. 
 3465, is based upon contract. Id. 
 
 18. A bank holding certificates of de- 
 posit issued by another bank in which it 
 has not actually deposited the moneys 
 thereby represented, but to which it has 
 given credit for the amount ou its own 
 books, against which checks or drafts are 
 drawn, is not a depositor within the pro- 
 vision of 3 Pow. (Mich.) Ann. Stat. 
 
 3208e5, creating an individual liability of 
 stockholders to depositors. State Sav. 
 Bank v. Foster, 118 Mich. 268, 76 N. W. 
 499, 42:404 
 
 19. The decision of the Comptroller of 
 the Currency that it is necessary to col- 
 lect, and his requisition of, a certain per- 
 centage of the liability of the shareholders 
 of a national bank, in order to pay its debts, 
 is not a decision that a larger percentage 
 will not be necessary; and he has plenary 
 power to make successive assessments un- 
 til the full liability of the shareholder is 
 exhausted. Deweese v. Smith, 45 C. C. A. 
 408, 106 Fed. 438, 66: 971 
 
 20. Under the acts of Congress the Comp- 
 troller of the Currency is constituted a 
 quasi-judicial tribunal to determine at what 
 times and what amounts, not exceeding 
 the full liability of the stockholders, it is 
 necessary to collect from them to pay the 
 debts of the bank; and his decisions of 
 these questions are impervious to collateral 
 attack, and open to avoidance by a court 
 only in a direct attack upon them for error 
 of law, fraud, or mistake. Id. 
 Who liable as stockholder. 
 
 See also Corporations, 572, 628-637. 
 For Editorial Notes, see Corporations, 
 38, 39. 
 
 21. Under U. S. Rev. Stat. 5151, U. S. 
 Comp. Stat. 1901, p. 3465, a married woman 
 who is a shareholder in a national bank is 
 liable for an assessment upon stock held 
 by her, whether acquired by subscription, 
 purchase, bequest, or otherwise. Witters 
 v. Sowles, 35 Fed. 640, 1: 64 
 
 22. A pledgee of stock in a national bank, 
 who holds it solely as collateral security for 
 a debt due from the real owner of the 
 stock, cannot be held liable as a stockholder 
 for assessments thereon, when the name of 
 such pledgee as owner or holder of the 
 shares has never appeared upon the books 
 of the bank, or even upon the certificates 
 of stock. Welles v. Larrabee, 36 Fed. 866, 
 
 2: 471 
 
 23. A person who is not the owner of 
 stock in a national bank, and has no bene- 
 ficial interest therein, cannot be held liable 
 for assessments thereon by reason of the 
 fact that the shares have been assigned to 
 him to hold in trust, where it appears upon 
 the proper books of the bank that he holds 
 the same as trustee. If he can be held to 
 be technically a stockholder, under U. S. 
 Rev. Stat. 5151, U. S. Comp. Stat. 1901, p. 
 3465, he must also be held exempt from 
 liability as trustee, under 5152. Id. 
 Enforcement of liability. 
 
 Of Corporate Stockholders Generally, see 
 
 Corporations, V. f, 4. 
 For Editorial Notes, see Corporations, 
 
 42, 43. 
 
 24. The statutory liability of a share- 
 holder of an insolvent bank cannot, in the 
 absence of statutory authority, be enforced 
 by the assignee of such bank. Runner v. 
 Dwiggins, 147 Ind. 238, 46 N. E. 580, 
 
 36: 645 
 
 25. The assignee of an insolvent bank can- 
 not enforce the statutory liability against
 
 206 
 
 BANKS, III. a, b. 
 
 a shareholder, under Ind. Rev. Stat. 1894. 
 2908, providing that the trustee shall pro- 
 ceed to collect the "rights and credits" of 
 the assignor. Id- 
 
 Release from liability. 
 
 For Editorial Notes, see Corporations, 38. 
 26. A resolution passed by stockholders 
 of a bank a year after the bank had begun 
 business, but before any certificates of stock 
 had been issued, reducing the amount of 
 stock to 50 per cent of the amount origi- 
 nally subscribed, which was the minimum 
 amount fixed by charter and all that it had 
 been contemplated to pay in, thus reducing 
 the stock to full paid-up stock, where it 
 is not shown that any publicity had been 
 given to the subscription list, or that any 
 creditor knew what it contained, releases 
 the stockholders from any liability either 
 to the bank or to creditors on account of 
 the additional 50 per cent of stock for 
 which they originally subscribed. Hill v. 
 Silvey, 81 Ga. 500, 8 S. E. 808, 3: 150 
 
 III. Officers and Agents, 
 a. Qualification; Election. 
 
 27. A national bank which elects not to 
 avail itself of the privilege given by act 
 of Congress of July 12, 1882, to extend its 
 corporate existence, may, under the pro- 
 vision of that act extending its "fran- 
 chise" for the sole purpose of liquidating 
 its affairs, exercise all the powers original- 
 ly conferred upon it which are appropriate 
 for that purpose, among which is the elec- 
 tion of directors. Richards v. Attlebor- 
 ough Nat. Bank, 148 Mass. 187, 19 N. E. 
 353, 1 : 781 
 
 28. The qualification of directors pre- 
 scribed by the national bank act, that they 
 shall be the owners of ten shares of the 
 stock of the bank is not dispensed with 
 when the franchise is extended merely for 
 the purpose of liquidation. Id. 
 
 29. National bank stock is not transfer- 
 able so as to make the transferee a corpora- 
 tor, after the bank has entered into liquida- 
 tion; and hence only those can become di- 
 rectors after that time who were qualified 
 by the requisite holding of stock when the 
 bank ceased to do business and commenced 
 liquidation. Id. 
 
 30. When, on the expiration of its char- 
 ter term, a national bank elected to go in- 
 to liquidation, its franchise being extend- 
 ed for that purpose by force of the act of 
 Congress of July 12, 1882, and, after its 
 affairs had been nearly closed up, a board 
 of directors was elected, members of which, 
 required to make up the legal number, were 
 disqualified by reason of not being holders 
 of the requisite shares of stock when the 
 bank commenced liquidation, the election 
 was invalid, and the board so chosen had 
 no powc-r to revoke a submission to arbi- 
 tration theretofore entered into by the bank. 
 
 Id. 
 
 b. Authority; Ratification. 
 
 Imputing Officer's Knowledge to Bank. se 
 
 Notice, 42, 65-70. 
 See also infra, 60-62, 299, 300. 
 For Editorial Notes, see infra, VIII. 5. 
 
 Authority of president. 
 
 Measure of Bank's Liability for Fraud by,. 
 
 see Damages, 258. 
 
 Estoppel to Deny, see Estoppel, 157. 
 See also infra, 294. 
 
 31. The president of a banking corpora- 
 tion has the power to employ counsel and 
 manage the litigation of the bank, in the- 
 absence of any order of the board of direct- 
 ors depriving him of such power. Citizens^ 
 Nat. Bank v. Berry, 53 Kan. 696, 37 Pac. 
 131, 24: 719' 
 
 32. The president of a national bank is 
 conclusively presumed to have authority to- 
 guarantee commercial paper on a saje there- 
 of, in the absence of notice to the contrary. 
 Thomas v. City Nat. Bank, 40 Neb. 501,. 
 58 N. W. 943, 24 : 265 
 
 33. False representations by a defaulting 
 bank president as to his liability to the- 
 bank and the value and condition of securi- 
 ties already furnished by him are not bind- 
 ing upon the bank, so as to enable a per- 
 son furnishing securities at his request,, 
 with knowledge of the purpose for which 
 he intends to use the same, to rely upon' 
 such representations as a defense in a sub- 
 sequent action by the bank to foreclose its- 
 lien upon such securities. Tecuinseh Nat. 
 Bank v. Chamberlain Bkg. House, 63 Neb_ 
 163, 88 N. W. 186, 57: 811 
 
 34. Brokers who receive drafts drawn in 
 their favor by the president of a bank upon- 
 its funds in settlement of his transactions 
 upon the board of trade are bound to com- 
 municate that fact to the bank directors,, 
 and inquire as to his authority to execute 
 the paper. Lamson v. Beard, 36 C. C. A. 
 56, 94 Fed. 30, 45: 822 
 Authority of cashier. 
 
 To Induce Person to Become Surety on 
 Teller's Bond, see Bonds, 41, 43. 
 
 Estoppel of Bank by Cashier's Acts, see Es- 
 toppel, 293. 
 
 Presumption as to, see Evidence, 287. 
 
 Imputing Cashier's Knowledge to Bank, see 
 Notice, 65-68. 
 
 Right to Finding as to, see Trial, 870. 
 
 See also infra, 274. 
 
 35. Persons dealing with the cashier of 
 an incorporated savings bank as such are 
 chargeable with knowledge of the corporate 
 powers of the bank and of the extent to 
 which the cashier can bind it; and it is im- 
 material that the institution is a foreign 
 one. Jemison v. Citizens Sav. Bank, 112 
 N. Y. 135, 25 N. E. 264, 9: 708- 
 
 36. The fact that the cashier is personal- 
 ly interested in the transaction is sufficient 
 to put his creditor upon inquiry as to the- 
 actual extent of his power, where the cash- 
 ier of a bank attempts to pay his individ- 
 ual debt by entering the amount thereof
 
 BANKS.-III. b. 
 
 207 
 
 as a credit on the passbook of his creditor. 
 Hier v. Miller, 68 Kan. 258, 75 Pac. 77, 
 
 63: 952 
 
 37. A cashier of a national bank has au- 
 thority to indorse negotiable paper for the 
 bank to parties dealing with it in good 
 faith. Auten v. Manistee Nat. Bank, 67 
 Ark. 243, 54 S. W. 337, 47: 329 
 
 38. A cashier of a bank has no implied 
 power, merely by virtue of his office, to 
 receive money for interest in advance on a 
 note owned by the bank, and agree to ex- 
 tend the time of payment, and thus dis- 
 charge an indorser from liability. Bank of 
 Ravenswood v. Wetzel (\V. Va.) 50 S. E. 
 886, 70: 305 
 
 39. A bank cashier in stealing or clandes- 
 tinely appropriating to his own use a 
 special deposit received by the bank through 
 him for gratuitous safe keeping is not act- 
 ing within the scope of his employment, so 
 as to make the bank liable therefor. Mer- 
 chants' Nat. Bank v. Guilmartin, 88 Ga. 
 797, 15 S. E. 831, 17: 322 
 
 40. The cashier of a banking corporation 
 has; by virtue of his office, no authority 
 to accept, in payment and discharge of a 
 debt due the bank, certificates of the capital 
 stock of an insurance company. Bank of 
 Commerce v. Hart, 37 Neb. 197, 55 N. W. 
 631, 20: 780 
 
 41. The validity of a purchase of national 
 bank stock by the cashier for the bank 
 in violation of U. S. Rev. Stat. 5201, U. 
 S. Comp. Stat. 1901, p. 3494, cannot be de- 
 nied by sureties of the cashier as a de- 
 fense to an action on his bond for mis- 
 appropriation of the stock, since only the 
 Federal government can set up the in- 
 validity of that transaction. Walden Nat. 
 Bank v. Birch, 130 N. Y. 221, 29 N. E. 
 127, 14: 211 
 
 42. A bank cashier is not acting within 
 the scope of his authority, in giving informa- 
 tion as to the value of notes executed by 
 customers of the bank, so as to render it 
 liable in case the statements prove to be 
 untrue. Taylor v. Commercial Bank, 174 
 N. Y. 181, 66 N. E. 726, 62: 783 
 
 43. A bank is not made liable for the 
 fraud of its cashier in inducing a third 
 person to give credit to one of its custom- 
 ers by false representations as to his re- 
 sponsibility, by the facts that the customer 
 was then largely indebted to the bank, and 
 its representative was soon after made re- 
 ceiver of his property to aid the bank in 
 collecting its claim against him, where the 
 receivership resulted in no benefit to the 
 hank, and it received no advantage from 
 the credit given. Id. 
 
 44. No duty rests on the cashier of a bank 
 to disclose the situation of the account of 
 a customer with the bank upon receiving 
 an inquiry from a third person as to the 
 responsibility of the customer. Id. 
 
 45. A statement by the cashier of a bank 
 to one inquiring into the condition of one 
 of its corporation customers, dividing its 
 deposit into capital and surplus, is binding 
 on the bank. Hindman v. First Nat. Bank, 
 50 C. C. A. 623, 112 Fed. 931, 57: 108 
 
 46. A false certificate by the cashier of 
 a bank, stating that an insurance company 
 had on deposit subject to check certain 
 amounts of paid-up capital and net sur- 
 plus, made to assist the company to obtain 
 a license, and authorized by the board of 
 directors, who knew it to be false, and the 
 publication of the same statement in the 
 public press, to which the bank was privy r 
 for the purpose of securing a large bank 
 deposit and of selling stock held by the 
 bank as collateral, render the bank liable 
 for deceit to a person who bought worth- 
 less stock of the insurance company in reli- 
 ance on these statements. Hindman v. 
 First Nat. Bank, 39 C. C. A. 1, 98 Fed. 562 r 
 
 48: 210 
 
 47. A bank is liable for the act of its 
 cashier in falsely certifying that the capi- 
 tal of an insurance company is all paid in 
 and on deposit in the bank, if made in 
 the general course of the bank's business 
 from facts supposed to be known to him, 
 although the giving of such a certificate is 
 ultra vires the bank, if it is not sufficient- 
 ly so to carry notice to all of its ultra 
 vires character. Id. 
 
 48. If the cashier of a bank, without ac- 
 tual authority so to do, undertakes to pay 
 his individual debts by entering the amount 
 thereof as a credit upon the passbook of his 
 creditor, who keeps an account with the 
 bank, the bank may recover of his credi- 
 tor the amount of money it may pay out 
 upon checks drawn upon the faith of the 
 unauthorized passbook entries. Hier v. Mil- 
 ler, 68 Kan. 258, 75 Pac. 77, 63: 952 
 
 49. The cashier of a bank organized under 
 the laws of Kansas has no implied author- 
 ity to pay his individual debts by entering 
 the amount of them as a credit upon the 
 passbook of his creditor, who keeps an ac- 
 count with the bank, and permitting the 
 creditor to exhaust such account by checks 
 which are paid, the bank having received 
 nothing of value in the transaction. Id. 
 
 50. One who goes into a bank after busi- 
 ness hours, and finds in a room used for 
 the transaction of business after the usual 
 hours the paying teller of such bank, who 
 is the only officer with whom he was ac- 
 quainted, and deposits with such teller for 
 collection a post-dated check upon such 
 bank, upon the teller's promise to hold 
 the proceeds subject to his check, the trans- 
 action being substantially in the presence 
 of the cashier, though he is separated by a 
 wire partition, is entitled to hold the bank 
 liable, especially where such teller has, to- 
 the knowledge of the cashier, occasionally 
 acted as receiving teller, and the depositor 
 is not aware of any limitations upon his 
 authority. Averell v. Second Nat. Bank r 
 2 App. D. C. 470, 25: 761 
 
 51. A subsequent misuse or misapplica- 
 tion by bank officers of the proceeds of 
 notes bought from the cashier of a national 
 bank and deposited to the credit of sijch 
 bank, by its direction, in a New York hank. 
 will not affect the rights of the purchaser,
 
 208 
 
 BANKS, III. c. 
 
 if it wa!s innocent. Auten v. Manistee Nat. 
 Bank, 67 Ark. 243, 54 S. W. 337, 47: 329 
 Authority of directors. 
 
 52. The acts of the directory of a bank- 
 ing corporation in dealing with and invest- 
 ing the funds of the stockholders, to bind 
 the bank must be confined to the express 
 purposes for which the bank was incor- 
 porated, and to purposes incidental thereto 
 in the necessary conduct of its legitimate 
 business. Bank of Commerce v. Hart, 37 
 Neb. 197, 55 N. W. 631, 20: 780 
 Authority of bank examiner. 
 
 53. A bank examiner who takes charge of 
 the assets of a national bank under the di- 
 rection of the comptroller is not the agent 
 for the bank in such negotiations as it may 
 be permitted to enter into with a view to 
 the resumption of business. Tecumseh Nat. 
 Bank v. Chamberlain Bkg. House, 63 Neb. 
 
 163. 88 N. W. 186, 
 
 57: 811 
 
 54. Statements by a bank examiner who 
 takes charge of the assets of a national 
 bank under the direction of the comptrol- 
 ler, as to the liabilities of, and the value 
 an^ condition of securities already furnished 
 by, a defaulting officer of such bank, who, 
 for the purpose of replenishing its assets 
 and enabling it to resume business, is al- 
 lowed to furnish collateral securities for 
 his indorsements upon paper . previously 
 sold by him to the bank, are not bind- 
 ing upon the bank; and one who furnishes 
 collateral securities to such defaulting of- 
 
 is to assist in discounting paper is not that 
 which they take of their own affairs, but 
 the ordinary care of bank directors in the 
 business of a bank. Swentzel v. Penn 
 Bank, 147 Pa. 140, 23 Atl. 405, 15: 305 
 
 57. Bank directors who are gratuitous 
 mandatories are only liable for fraud, or for 
 such gross negligence as amounts to fraud. 
 
 Id. 
 
 58. The failure of bank directors to ex- 
 amine the individual ledger of the bank, 
 which, by the rules of their bank and of 
 most other banks in the city, directors are 
 not permitted to see, and in which alone 
 the frauds by which the bank was wrecked 
 could be discovered, will not make them 
 liable for the fraud of officers and employees 
 
 of the bank. 
 
 Id. 
 
 59. Directors of a national bank are re- 
 quired to cause examination of the dis- 
 counted paper of the bank due, with rea- 
 sonable frequency, and to keep themselves 
 sufficiently informed about it to enable 
 them to pass an intelligent judgment upon 
 its value. Warner v. Penoyer, 33 C. C. A. 
 222, 61 U. S. App. 372, 91 Fed. 587, 44; 761 
 
 60. Directors of a national bank who 
 aie members of the discount and examining 
 committees will be held liable for losses 
 occasioned by the reckless loans of the 
 cashier, where they made not even a cur- 
 sory examination of the discounts or over- 
 drafts beyond looking at such notes as the 
 cashier saw fit to consult them about. Id. 
 
 ficer, to be so used by him, cannot rely i 61. Mere failure to attend meetings of 
 upon such representations of the examiner j the board will not render directors of a 
 as a defense in an action by the bank to j national bank liable for defalcation of the 
 foreclose its lien upon such securities. Id. cashier. Id. 
 
 Ratification. 
 
 .See also infra, 82. 
 
 55. The retention and enjoyment by a na- 
 tional bank of the proceeds of a guaranty 
 of payment of a commercial paper sold by 
 its president ratifies his act. Thomas v. 
 City Nat. Bank, 40 Neb. 501, 58 N. W. 943, 
 
 24: 263 
 c. Liability. 
 
 Liability on Bond of, see Bonds, 34-45. 
 
 62. Bank directors are not required to 
 procure periodical expert examination of 
 the books in order to verify by personal 
 examination such details of the bank's con- 
 dition as they ought to know before declar- 
 ing dividends, or which are required to be 
 reported to the comptroller of the currency, 
 if there is no reason to distrust the in- 
 tegrity or efficiency of the cashier. Id. 
 
 63. A director who did not attest or in 
 
 Election of Remedies, 55. 
 See also infiia, 358. 
 
 Of president. 
 
 Assumpsit for Money Misappropriated by, 
 see Assumpsit, 23. 
 
 55a. The president of a bank, who, by 
 verbal promises of collateral liability, in- 
 duces the cashier to advance money to , a 
 minor, whereby it is lost, is liable 'to the 
 bank for the amount on the ground that he 
 is guilty of a breach of the trust imposed 
 in him by reason of his position. Brown 
 v. Farmers' & M. Nat. jiank, 88 Tex. 2<>5 
 .'{I S. W. 285, 33: 359 
 
 Of directors. 
 See also infra, 382, 383. 
 For Editorial Notes, see infra, VIII. 4. 
 
 56. The degree of care required of bank 
 
 ble for misstatements therein. Gerner v. 
 Mosher, 58 Neb. 135, 78 N. W. 384, 46: 244 
 
 64. Directoi's of an insolvent national 
 bank, who attested a report to the comp- 
 troller of the currency, representing the 
 bank to be solvent, are personally liable to 
 one who purchased stock in the bank ic 
 reliance on the report, even if they had no 
 intent to defraud, and did not know that 
 the report was false. Id. 
 
 65. False statements in a report which a 
 banking corporation is required to make 
 to the secretary of state by Mo. Rev. Stat. 
 188!), S 2752, making it a misdemeanor 
 punishable by fine or imprisonment for the 
 directors to refuse to make the statement, 
 or wilfully and corruptly to make a false 
 statement, will not make the directors 
 liable to a common-law action for deceit by 
 
 directors who receiv.- no compensation for | one who makes a deposit in the bank re- 
 tlieir services and whose principal business Ivinsr on such renort. if th*v m*1 th. 
 
 g on such report, if they make the
 
 BANKS, IV. a, I. 
 
 209 
 
 statements in good faith, honestly believing 
 them to be true. Utley v. Hill, 155 Mo. 
 232, 55 S. W. 1091, 1102, 49:323 
 
 66. The liability of bank directors and 
 officers under Mo. Rev. Stat. 1889, 2760, 
 for deposits accepted with the directors' as- 
 sent after they have knowledge that the 
 bank is insolvent or in failing circumstances, 
 does not extend to deposits received when 
 they did not have actual knowledge of the 
 bank's condition, but acted in good faith 
 and were innocent of wrongdoing, although 
 they were negligently ignorant of the 
 bank's condition, which they could have as- 
 certained if they had not neglected to in- 
 vestigate or keep posted as to its affairs. 
 
 Id. 
 
 IV. Banking. , 
 a. Deposits. 
 1. In General; Nature of; Liens on. 
 
 Rights in Deposit in Insolvent Bank, see 
 infra, 309-318. 
 
 Judicial Notice of Custom as to Deposit of 
 Check, see Evidence, 135. 
 
 Parol Evidence as to Custom, see Evidence, 
 1092. 
 
 Parol Evidence as to Pass Book, see Evi- 
 dence, 1130. 
 
 Evidence as to Deposit of Check, see Evi- 
 dence, 2181. 
 
 Duty of Executrix to Deposit Funds, see 
 Executors and Administrators, 27. 
 
 Authority of Insolvent Factor to Make, see 
 Factors, 13. 
 
 Gift of Bank Deposit, see Gift, 20-24, 38, 
 58-65. 
 
 Interest on Deposit, see Interest,. 19, 75- 
 77. 
 
 Liability of Judge for Loss of Deposit in, see 
 Judges, 65. 
 
 Imputing Agent's Knowledge to Depositor, 
 see Notice, 45-48. 
 
 Liability as Partner in Banking Business, 
 see Partnership, 45. 
 
 Power of Surviving Partner to Accept De- 
 posit, see Partnership, 128. 
 
 Reply in Action for Balance of Deposit, see 
 Pleading, 562. 
 
 Deposits of Public Money, see Public 
 Moneys, 310. 
 
 Taxation of Deposits, see Taxes, 75, 621. 
 
 Question for Jury as to Bank's Negligence 
 as to. see Trial. 492. 
 
 Deposit by Trustee as Negligence, see 
 Trusts, 158. 
 
 As Ademption of Legacy, see Wills, 452. 
 
 See also infra, 364-368. 
 
 For Editorial Notes, see infra, VIII. 6. 
 
 67. Obtaining a new check in place of 
 one lost in the mail, which bears the date 
 of the former one and is marked "Dupli- 
 cate," is not a new transaction, and the 
 payee does not, by placing his name upon 
 it to facilitate collection, assume any obliga- 
 tion to which he was not subject under his 
 L.R.A. Dig. 14. 
 
 original indorsement. Aebi v. Bank of 
 Evansville, 124 Wis. 73, 102 N. W. 329, 
 
 68: 964 
 
 68. Where tax receipts are received by 
 a bank in good faith as deposits, and credit- 
 ed as so much money, it becomes at once 
 legally liable to the depositor as for so 
 much cash deposited. Wasson v. Lamb, 120 
 Ind. 514, 22 N. E. 729, 6: 191 
 
 69. In determining the liability of a bank 
 for fraudulent representations as to solvency 
 to induce certain deposits, where this de- 
 pends on the question whether the deposit- 
 or had checked out the whole amount de- 
 posited after such representations, the time 
 of deposit of tax receipts is the time when 
 they were delivered and credited on the de- 
 positor's tax book, and the same marked 
 paid by him on the tax duplicate, although 
 he was not credited therewith on the books 
 of the bank for five days thereafter. Id. 
 Special. 
 
 Burden of Proving Diligence in Keeping, see 
 Evidence, 540. 
 
 Proof of Agreement Allowing Checks 
 aeainst, see Evidence, 2315. 
 
 Parol Evidence as to Checking against, see 
 Evidence, 1104. 
 
 Evidence as to Liability for Loss of, see 
 Evidence, 2150. 
 
 Sufficiency of Proof of Care as to, see Evi- 
 dence, 2234. 
 
 See also supra, 39; infra, 380, 381, 386. 
 
 For Editorial Notes, see infra, VIII. 8. 
 
 70. A deposit of money with bankers at 
 their banking house is regarded as general 
 unless it appears that the depositor makes 
 it special or deposits it expressly in some 
 particular capacity. Meadowcroft v. Peo- 
 ple, 163 111. 56, 45'N. E. 303, 35: 176 
 
 71. The addition to the name of the de- 
 positor in an account with a bank, of the 
 words "judge of probate, license money," is 
 not alone sufficient to make deposits on such 
 account special. Alston v. State, 92 Ala. 
 124, 9 So. 732, 13: 659 
 
 72. Money deposited in a bank on open ac- 
 count subject to check, and not received as 
 a special deposit, is in substance and legal 
 effect a loan. State ex rel. First Nat. Bank 
 v. Bartley, 39 Neb. 353, 58 N. W. 172, 
 
 23: 67 
 
 73. A deposit is not special by reason of 
 a certificate of deposit showing that it is 
 made to secure the banker against a liabil- 
 ity as surety of the depositor, where the 
 latter knows that the money is mingled 
 with funds of the bank; but such deposit 
 passes to the banker's assignee in case of 
 his insolvency. Mutual Acci. Asso. v. Ja- 
 cobs, 141 111. 261, 31 N. E. 414, 16: 516 
 
 74. A special deposit is gratuitous if it 
 be accepted for the accommodation of the 
 depositor, and without any undertaking by 
 him, express or implied, to pay or 'do any- 
 thing as compensation or reward for keep- 
 ing the deposit. Merchants' Nat. Bank v. 
 Guilmartin, 88 Ga. 797, 15 S. E. 831, 
 
 17: 322 
 
 75. A deposit of gold coin in a bank as a 
 pledge to secure an obligation on a bail 
 bond and the receipt of an acknowledgment
 
 210 
 
 BANKS, IV. a, I. 
 
 that it is payable on return of the certifi- 
 cate, with a clause stating that it is pay- 
 able only on release of bonds and is not 
 subject to check, constitute a special de- 
 posit, the return of which can be enforced 
 in case of the bank's insolvency, the nature 
 of which is not changed by the fact that 
 without the knowledge or consent of the 
 depositor the money afterwards gets into 
 the bank vaults through, the regular chan- 
 nels. Anderson v. Pacific Bank, 112 Cal. 
 598. 44 Pac. 1063, 32: 479 
 
 76. A bank is not relieved from liability 
 to the owner of a special deposit stolen by 
 the cashier, by the fact that up to a time 
 three or more years previous to the dis- 
 covery of the theft his reputation was good, 
 and he stood in the community for honesty 
 and integrity as high as any man; but it is 
 incumbent upon the bank to show that it 
 exercised at least a slight supervision of 
 him, and that no indication of dishonesty 
 or other reasons for distrusting him had 
 appeared. Merchants' Nat. Bank v. Car- 
 hart, 95 Ga. 394, 22 S. E. 628, 32: 775 
 
 77. A bank which, according to its cus- 
 tom, receives securities as a special deposit, 
 is liable for any loss thereof occurring 
 through the want of that degree of care 
 which good business men usually exercise 
 in keeping property of such value. Gray 
 v. Merriam, 148 111. 179, 35 N. E. 810, 
 
 32: 769 
 
 78. A bank holding United States bonds 
 as collateral security is liable for their 
 amount if they are stolen by its employee 
 who has access to them, after the manag- 
 ing officer of the bank Knows that he is 
 speculating on the board of trade, and ac- 
 cepts his statement that he is using his 
 own money, without knowledge that he has 
 property other than his salary, which is 
 $1,800 a year. Id. 
 
 79. Where, upon a bank's agreement to 
 transmit money to a person in a distant 
 city, plaintiff makes with it a special de- 
 posit of the amount for that purpose, and 
 receives a letter of advice directed to a bank 
 in that city, to the effect that the latter's 
 account is credited with the money for the 
 use of the one to whom it is to go, plain- 
 tiff may recover back the deposit in case 
 the correspondent bank fails before receiv- 
 ing the letter, which is returned with the 
 amount unpaid; and the fact that the 
 money is credited to the account of the 
 correspondent bank on the books of the 
 bank of deposit is immaterial. Cutler v. 
 American Exch. Nat. Bank, 113 N. Y. 593, 
 21 N. E. 710, 4: 328 
 Trusts. 
 
 Gift of Bank Deposit, see Gift, 20-24, 38, 
 
 C8-65. 
 Trust in Deposit Generally, see Trusts, 10, 
 
 15-22, 87, 156. 
 See also infra, 101-104, 112, 113, 175, 260- 
 
 272, 319-32^, 379. 
 For Editorial Notes, see infra, VIII. 9, 
 
 20. 
 
 80. Money deposited in a bank by a per- 
 son described as "manager" is subject to 
 
 his checks, even if the bank knows that it 
 was originally obtained from other persons 
 on a certificate of deposit. Leaphart v. 
 Commercial Bank, 45 S. C. 563, 23 S. E. 
 939, 33: 700 
 
 81. A check stating that it is for "de- 
 posit to the credit of" a person named, 
 with the word "Trustee" added to his 
 name, is an explicit notification to the bank 
 in which he deposits it that he is not the 
 actual owner of the money; and if the 
 bank credits it to his individual account, 
 and loss ensues to the trust estate by rea- 
 son of his drawing out the fund by checks 
 on his personal account, the bank is liable 
 for participation in the breach of trust. 
 Duckett v. National Mechanics' Bank, 86 
 Md. 400, 38 Atl. 983, 39: 84 
 
 82. A ratification by a trustee of the act 
 of a bank in placing to his individual cred- 
 it a check which showed on its face that 
 it was due to him as trustee cannot re- 
 lieve the bank from liability to the trust 
 estate, if the funds are lost by his check- 
 ing them out on his personal account. Id. 
 
 83. A check stating that it is "for de- 
 posit to credit of" a person named, without 
 adding the word "Trustee" to his name, al- 
 though it contains a further clause stat- 
 ing that it is "the balance of purchase 
 money due him as trustee," does not im- 
 press the funds with a trust, so as to pre- 
 vent a bank in which he deposits it from 
 crediting the check to his individual ac- 
 count. Id. 
 
 84. Money placed in a bank by a trustee 
 merely for safe keeping until an invest- 
 ment can be found, although at a small 
 rate of interest and with a requirement of 
 two weeks' notice for withdrawal, is, when 
 treated by the bank as a deposit, and so 
 entered on its books, merely a deposit, and 
 not a loan to the bank, and is not at the 
 trustee's risk if he has used due care in 
 selecting the bank. Re Law's Estate, 144 
 Pa. 499, 22 Atl. 831, 14: 103 
 Lien. 
 
 Allegation as to, see Pleading, 311. 
 See also infra, 247-249, 262. 
 For Editorial Notes, see infra, VTII. 13. 
 85-86. No equitable lien exists upon funds 
 of a bank in the hands of a receiver, in 
 favor of one who deposited money in the 
 bank for a special purpose, if the bank was 
 permitted to use the money in the course 
 of its regular business, so that no part of 
 it can be identified in the receiver's hands. 
 Muhlenberg v. Northwest Loan & T. Co. 
 26 Or. 132, 38 Pac. 932, 29: 667 
 
 87. A bank cannot claim a lien on de- 
 posits for an indebtedness of the estate of 
 the depositor upon unmatured notes given 
 by him and others, when an action at law 
 is brought by his administrator for the de- 
 posits. Gardner v. First Nat. Bank, 10 
 Mont. 149, 25 Pac. 29, 10:45 
 
 88. Where securities are delivered to a 
 bank specifically to protect the banker in a 
 particular transaction or series of trans- 
 actions, the bank has no lien upon them 
 for any other purpose, and cannot assert 
 one for any other indebtedness, whether
 
 BANKS, IV. a, 2. 
 
 211 
 
 arising upon general account or otherwise. 
 Armstrong v. Chemical Nat. Bank, 41 Fed. 
 234, 6: 226 
 
 2. Bank's Control over; Application of. 
 
 Banks Application to Payment Df Indebt- 
 edness to It, as Act of Bankruptcy 
 see Bankruptcy, 8. 
 
 Duress in Application of, see Duress, 0. 
 
 Set-Off by, or against, see Set-Off and 
 Counterclaim, 11, 25, 44-64, 66, and 
 also infra, VIII. 13, 19, 21. 
 
 See also infra, 314, 332. 
 
 For Editorial Notes, see infra, VIII. 7, 
 13, 19, 21. 
 
 89. The amount of an overdraft upon a 
 bank account is not necessarily the sum 
 drawn; but it is the amount drawn less the 
 amount to which the drawer, at the time, is 
 entitled as a credit balance upon his ac- 
 count. Armstrong v. Chemical Nat. Bank, 
 41 Fed. 234, 6: 226 
 Application on note due to bank. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 
 263. 
 Custom as to, see Custom, 18. 
 
 90. A bank to which a check is presented 
 by a third person receiving it in the usual 
 course of business cannot, where such check 
 constitutes an equitable assignment of the 
 fund, appropriate sueli fund after such pres- 
 entation to the payment of a note neld by it 
 against the depositor and refuse to pay 
 the check, if at the time of presentation it 
 has taken no steps to appropriate the de- 
 posit to the payment of the note. Niblack 
 v. Park Nat. Bank, 169 111. 517, 48 N. E. 
 438, 39: 159 
 
 91. A bank holding an overdue note of a 
 depositor of greater amount than his de- 
 posit may properly refuse to pay his check, 
 without any formal appropriation of the de- 
 posit upon the note. Mt. Sterling Nat. Bank 
 T. Greene, 99 Ky. 262, 35 S. W. 911, 
 
 32: 568 
 
 91a. A bank having money to the credit of 
 the maker of a note which it holds is not 
 obliged to apply the money thereon, even 
 if it may have the right to do so, without 
 the consent of the depositor. Doctor v. 
 Riedel, 96 Wis. 158, 71 N. W. 119, 37: 580 
 
 92. A bank is not bound to apply to the 
 payment of a note held by it the deposit ac- 
 count of the first indorser, although the note 
 was made for his accommodation, and he, 
 and not the apparent maker, is, as between 
 themselves, primarily liable on it. First 
 Nat. Bank v. Peltz, 176 Pa. 513, 35 Atl. 218, 
 
 36: 832 
 
 92a. A pow.er given to a bank by one who 
 was liable with others unon notes held by 
 tflie bank, to apply his deposits to the pay- 
 ment of the notes, even before their matu- 
 rity if the bank desired, is not a power cou- 
 pled with an interest, but ceases if not ex- 
 ercised before the death of the depositor 
 and the bank's knowledge thereof. Gardner 
 v. First Nat. Bank, 10 Mont. 149, 25 Pac. 
 29, 10: 45 
 
 On note due to third person. 
 
 93. A bank has no implied authority to 
 
 pay to a third party a note made by a de- 
 positor payable at its place of business, 
 simply because he has funds there, sufficient 
 for that purpose, in the absence of any 
 course of dealing or previous instructions 
 so to apply the deposits. Grissom v. Com- 
 mercial Nat. Bank, 87 Tenn. 350, 10 S. W. 
 774, 3:2/3 
 
 94. A bank which in good faith pays a 
 note made by one of its depositors, payable 
 .at its place of business, and against which 
 there is no defense, may set off the amount 
 so paid against the balance due on the mak- 
 er's account although the payment was made 
 without notice to, or express authority 
 from, him. Bedford Bank v. Acoam, 125 
 Ind. 584, 25 N. E. 713, 9: 560 
 On note on which depositor is surety. 
 
 95. A bank cannot apply money due to a 
 depositor to the payment of a note upon 
 which he is a surety, in the absence of a 
 special agreement giving it the right to do 
 so. Harrison v. Harrison, 118 Ind. 179, 20 
 N. E. 746, 4: 111 
 
 96. An agreement between a depositor and 
 the bank, authorizing the bank to charge 
 him with the amount of a note on wHch he 
 was surety, although the actual Aitry was 
 not made at the time, and that the bank 
 should retain the note and collect it for its 
 benefit, is an equitable sitisfaction of the 
 note, so far as respects the depositor, and 
 makes it his property, and he is entitled to 
 the proceeds thereof when collected by a re- 
 ceiver of the bank after it has become insol- 
 vent. Id. 
 Deposits by partner. 
 
 Estoppel as to Overdraft, see Estoppel, 84. 
 
 97. The deposit of a partner cannot be 
 applied to an overdraft of the firm, al- 
 though the bank, in an action by the part- 
 ner, might set Tip such overdraft as a 
 counterclnim. Adams v. First Nat. Bank, 
 113 N. C. 332, 18 S. E. 513, 23: 111 
 Deposit by agent or factor. 
 
 For Editorial Notes, see infra, VTII. 9. 
 
 98. A bank which receives from an agent 
 for deposit in his own name the money of 
 his principal, without notice of the agency, 
 is protected, i'j applying it to a past-due 
 debt of the depositor, to the same extent 
 as in paying it out upon his checks, when- 
 ever such application is authorized by the 
 agent, either expressly or by legal implica- 
 tion; and such authority ordinarily arises 
 from* the making of a deposit, without 
 other directions, where the debt to which it 
 is applied is an overdraft. Kimmel v. Bean, 
 68 Kan. 598, 75 Pac. 1118, 64: 785 
 
 99. A bank cannot apply funds deposited 
 by a factor in his own name upon a clair/t 
 held by it against him individually, after 
 knowledge that he is insolvent and has com- 
 mitted an ret of bankruptcy, where it has 
 the means of knowing that the funds belong 
 to the factor's principal. Interstate Nat. 
 Bank v. Claxton, 97 Tex. 569, 80 S. W. 604, 
 
 65: 820 
 Deposit by administrator. 
 
 100. A bank account kept by a person as 
 administrator cannot be applied by the 
 bank to the payment of a check drawn by
 
 212 
 
 BANKS, IV. a, 3. 
 
 him individually. First Nat. Bank v. First 
 Xat. Bank, 58 uhio St. 207, 50 N. E. 723, 
 
 41: 584 
 
 Duty as to trust funds. 
 See also supra, 80-84. 
 For Editorial Notes, see infra, VIII. 9. 
 
 101. A bank which, at the request of the 
 trustee, has knowingly applied a trust de- 
 posit to the cancelation of his individual 
 note, cnnnot afterwards maintain a suit 
 against him on the note. Sayre v. Weil, 94 
 Ala. 466, 10 So. 546, 15 : 544 
 
 102. An agreement by a bank to apply a 
 trust deposit in cancelation of an individual 
 note of the trustee operates to destroy the 
 relation of debtor and creditor between 
 them, although no entries are at the time 
 made, and the note is not surrendered up or 
 canceled. Id. 
 
 103. A bank is not responsible for the use 
 of trust funds made by a trustee unless :t 
 knowingly participates in the breach of 
 trust or profits by the fraud. Duckett v. 
 National Mechanics' Bank, 86 Md. 400, 38 
 Atl. 983, 39: 84 
 
 104. A bank receiving a check deposited 
 and indorsed by a person to whom it was 
 payable as administrator, but who claims to 
 be the sole heir of the estate and deposits it 
 to his individual credit, cannot appropriate 
 a part of the fund to pay his individual 
 debts to the bank. American Trust & Bkg. 
 Co. v. Boone, 102 Ga. 202, 29 S. E. 182, 
 
 40: 250 
 
 3. Payment of Checks; Forgeries, 
 o. In General. 
 
 As to Bights and Liabilities on ChecKs, o f 
 Persons other than Banks, see Checks. 
 
 Presentation of Negotiable Paper for Pay- 
 ment, see Bills and Notes, IV.; Checks, 
 II. 
 
 Bank's Rieht to Recover Back Amount Paid, 
 see Parties, 9. 
 
 See nlso supra, 80. 
 
 For Editorial Notes, see infra, VIII. 10, 
 11, 24. 
 
 105. A bank depositor is presumed to as- 
 sign so much of the fund which he has on 
 deposit as his checks call for. Raesser v. 
 National Exch. Bank, 112 Wis. 591. 88 N. W. 
 618. 56: 174 
 
 106. The giving of a check on a bank for 
 the whole amount of a deposit, together with 
 the mere delivery of the deposit slip to an- 
 other bank, which discounts them, do not 
 constitute an assignment of the deposit. 
 First Nut. Bank v. Clark. 134 N. Y. 368. 32 
 N. E. 38, 17: 580 
 
 107. No notice or demand by the holder of 
 a bnnk check can impose on a nonconsenting 
 bank any duty to protect his equitable 
 rights, or any trammels upon its freedom 
 in paying out the fund to others, although 
 the check operates as an assignment pro 
 tanto of the fund on denosit. Raesser v. 
 National Exch. Bank, 112 Wis. 591, 88 N. W. 
 618, 56: 174 
 
 108. A check drawn upon a bank is an 
 appropriation to the holder of the amount 
 
 designated in the check; and after notice 
 to the bank of the drawing of the check 
 the funds cannot be drawn out by the draw- 
 er. Fonner v. Smith, 31 Neb. 107, 47 N. W. 
 632, 11:528 
 
 109. When a bank pays its depositor's 
 check which has been given for a valid con- 
 sideration, it discharges to that extent all 
 obligation to the depositor, and the latter 
 has no rights against it. Raesser v. Na- 
 tional Exch. Bank, 112 Wis. 591, 88 N. W. 
 618, 56: 174 
 
 110. A bank on which a check is drown, 
 after payment to a bona fide holder, cannot 
 recover back the amount. Germania Bank 
 v. Boutell, 60 Minn. 189, 62 N. W. 327, 
 
 27: 035 
 Paying check of insane person. 
 
 111. Payment of a check of an insane per- 
 son who had been lawfully adjudged insane 
 by a court in another state will render a 
 bank liable for the money, although it did 
 not know of his insanity. American Trust 
 & Bkg. Co. v. Boone, 102 Ga. 202, 29 S. K. 
 182, 40- 250 
 Individual check of fiduciary. 
 
 112. Knowledge by a bank of the insolven- 
 cy of" factors possessing authority to deposit 
 money belonging to their customers in their 
 own names is not sufficient to charge it 
 with liability for the misappropriation of 
 such funds which it permits to be checked 
 out in favor of third persons, although by 
 the exercise of care it might have known 
 that a misappropriation was being thereby 
 effected. Interstate Nat. Bank v. Claxton, 
 97 Tex. 569, 80 S. W. 604, 65: 820 
 
 113. Knowledge by a bank of facts which 
 would enable it to know that a depositor 
 holding funds in a fiduciary relation was 
 violating his trust does not impose upon it 
 the duty of instituting an inquiry into its 
 customer's financial condition for the pur- 
 pose of protecting the beneficiary, or charge 
 it with participating in a misuse of the funds 
 in case it honors the checks without such in- 
 quiry. Id. 
 Check with invalid indorsement. 
 
 114. A bank has sufficient notice of the 
 invalidity of an indorsement on a cashier's 
 check to render it liable for paying it to 
 the indorsee, where it knows that the latter 
 is the keeper of a gambling establishment, 
 and he presents the check the day after it 
 is drawn, before the regular hour for opening 
 the bank, and the indorser is present at the 
 time, and repeatedly protests against the 
 payment of the check, and demands its can- 
 celation. Drunkall v. Movius State Bank, 
 11 N. D. 10, 88 N. W. 724, 57: 341 
 
 115. The payee of a cashier's check in- 
 dorsed in payment of chips to be used in 
 gambling may enforce payment thereof 
 against the maker, notwithstanding the 
 check has already been paid to the indorsee, 
 where payment was made to the latter after 
 notice of the invalidity of the consideration 
 for the indorsement. Id. 
 Effect of drawer's death. 
 
 See also infra, 378. 
 
 116. A bank to which is presented a check 
 for a greater sum than the drawer has on
 
 BANKS, IV. a, 3. 
 
 213 
 
 deposit, after it has notice of the drawer's 
 death, and "which thereupon refuses payment 
 and protests the check, has no right to sub- 
 sequently apply the deposit upon the check. 
 Roden v. State Nat. Bank, 112 Ky. 310, 65 
 6. W. 617, 56: 178 
 
 117. Where a bank check works an assign- 
 ment pro tanto of the fund on deposit, the 
 death of the depositor will not revoke the 
 authority of the bank to pay a check which 
 has been given for a valuable consideration 
 under circumstances which make it irrevoc- 
 able as to the assignee. Raesser v. National 
 Exch. Bank, 112 Wis. 591, 88 N. W. 618, 
 
 56: 174 
 
 Liability for dishonoring check. 
 Punitive Damages for, see Damages, 54. 
 Measure of Damages for, see Damages, 164- 
 
 167, 572. 
 Presumption of Damage from, see Evidence, 
 
 744. , 
 
 Limitation of Action for, see Limitation of 
 
 Actions, 202. 
 
 Allegation as to, see Pleading, 241, 311. 
 Venue of Action for, see Venue. 6, 7. 
 See also infra, 272. 
 
 118. Damages are recoverable against a 
 bank for refusal to pay the check of a cus- 
 tomer who has sufficient funds in the bank 
 applicable to the check. Mt. Sterling Nat. 
 Bank v. Greene, 99 Ky. 262, 35 S. W. 911, 
 
 32: 568 
 
 119. The refusal to honor a check when 
 there are funds in a bank against which it 
 is drawn gives the drawer a right of action 
 against the bank, if he is a trader or mer- 
 chant. Svendsen v. State Bank, 64 Minn. 
 40, 65 N. W. 1086, 31 : 552 
 
 120. lucre is an implied promise on the 
 part of a bank to pay checks drawn by its 
 depositors by whomsoever presented, sub- 
 ject to the limitation that the total amount 
 drawn shall not exceed the amount of the 
 deposits. Fonner v. Smith, 31 Neb. 107, 47 
 N. W. 632, 11:628 
 
 121. The holder of a check drawn upon 
 funds in a bank, and presented before such 
 funds are otherwise drawn out, may sue the 
 bank lor refusal to pay such check. Id. 
 
 122. The holder of a check has no contract 
 with the uank on which it is drawn, and no 
 legal right to exact its payment. National 
 Bank of New Jersey v. Berrall (N. J. Err. 
 & App.) 70 N. J. L. 757, 58 Atl. 189, 66: 593 
 
 123. A check, although it constitutes an 
 assignment of a fund on deposit, as between 
 the drawer and drawee, does not charge t'Le 
 bank in ravor of the payas, if the deposit is 
 otherwise lawfully appropriated before the 
 presentment of the check, or any good equiv- 
 alent thereto. Bank of Antigo v. Union 
 Trust Co. 149 111. 343, 36 N. E. 1029, 
 
 23: 611 
 
 124. The holder of an unaccepted check 
 cannot maintain an action against the bank 
 for refusal to pay it, although there stands 
 to the credit of the drawer on the bank 
 books a sum more than sufficient to meet it. 
 Cincinnati, H. & D. R. Co. v. Metropolitan 
 Nat. Bank, 54 Ohio bt. 60, 42 N. E. 700, 
 
 31: 653 
 
 125. The acceptance of a check is neces- 
 sary in order to give the holder a right 
 of action thereon against the bank. Pickle 
 v. People's Nat. Bank, 88 Tenn. 380, 12 S. 
 W. 919, 7: 93 
 
 126. The acceptance of a check, so as to 
 give a right of action to the payee, is> in- 
 ferred irom the retention of the check by 
 the bank, and a subsequent charge of the 
 check to the drawer, although it was pre- 
 sented by and payment made to an unau- 
 thorized person. Id. 
 
 127. The payee of a check which never 
 came into his hands, but which was- paid 
 to some person who had no right to collect 
 it, or was left with the bank to be credited 
 to him, and credit not given through mere 
 oversight by suing the bank upon it ratifies 
 the receipt of the check from the drawer, as 
 if it had'been received by his agent for his 
 use and benefit. Id. 
 
 128. A stipulation stamped on the face of 
 a check, that it will not be paid if present- 
 ed through a specified agency, may be up- 
 held to prevent any right of action on the 
 check by the prohibited agency. Commer- 
 cial Nat. Bank v. First Nat. Bank, 118 N. 
 C. 783, 24 S. E. 524, 32: 712 
 Stopping payment. 
 
 As. against Tiona Fide Purchaser of Bill, 
 
 see Bills and Notes, 198. 
 See also \:\ f r&, 239-241. 
 
 129. After a check is given, the depositor 
 cannot, in Illinois, by arrangement with the 
 bank, prevent the application of future de- 
 posits to its payment. Gage Hotel Co. v. 
 Union Nat. Bank, 171 III. 531, 49 N. E. 420, 
 
 39: 479 
 
 130. Payment of a check given after full 
 opportunity for investigation in accordance 
 with a storage contract requiring a return 
 of the property or "if it is destroyed to pay 
 its value," under the belief that the prop- 
 erty had been stolen, may be stopped and 
 the settlement avoided as made under a mu- 
 tual mistake of fact, where the property is 
 discovered in the storehouse the day after 
 the chec 1 ; is given. State Savings Bank v. 
 Buhl, 123 Mich. *93, 88 N. W. 471, 56: 944 
 
 131. A cashier's check, being merely a bill 
 of exchange urawn by a bank upon kself, 
 and accepted in advance by the act oJ its 
 issuance, is not subject to countermand like 
 an ordinary check; and the relations of the 
 parties to such an instrument are anal- 
 ogous to those of the parties to a negotiable 
 promissory note payable on demand. Drink- 
 all v. Movius State Bank, 11 N. D. 10. 83 
 N. W. 724, 57: 341 
 
 132. A bank which receives in the ordinary 
 course of business a check drawn upon it, 
 presented by a bona fide holder, who is with- 
 out notice of the fact that payment there- 
 of has been stopped, and pays the amount 
 thereof to such holder, cannot afterwards 
 recover back the money as paid by mistake, 
 on the ground that payment of the check 
 had been countermanded by the drawer. 
 National Bank of New Jersey v. Berrall 
 (N. J. Err. & App.) 70 N. J. L. 757, 58 Atl. 
 189, 66: 599
 
 214 
 
 BANKS, IV. a, 3. 
 
 6. Forgeries. 
 (1) In General. 
 
 By Savings Bank, see infra, 369-377a. 
 
 Conclusiveness of Finding as to Bank's Neg- 
 ligence, see Appeal and Error, 838. 
 
 Rights and Liabilities as to Parties Other 
 than Bank, see Checks, V. 
 
 Estoppel of Depositor, see Estoppel, 229-231. 
 
 Imputing Agent's Knowledge of, to Deposi- 
 tor, see Notice, 46-50. 
 
 Counterclaim by Bank Paying, see Set-Off 
 and Counterclaim, 11. 
 
 Question for Jury as to, see Trial, 490, 491. 
 
 See also infra, 262. 
 
 For Editorial Notes, see infra, VIII. 24. 
 
 133. The forgery of an indorsement on a 
 forged check will not make a good-faith 
 holder liable to the drawee, which- has paid 
 the check. First Nat. Bank v. Marshall- 
 town State Bank, 107 Iowa, 327, 77 N. W. 
 1045, 44: 131 
 
 134. Negligence of a bank which first cash- 
 es a forged check and puts it in circulation 
 cannot be imputed to a subsequent good- 
 faith holder of the check, so as to make him 
 liable to the drawee, from whom he has ob- 
 tained payment of the check. Id. 
 
 135. In balancing an account between a 
 bank and its depositor, whose clerk has 
 forged checks which were cashed by the 
 bank, when the vouchers are lost so that the 
 stubs of the checks are relied on to show the 
 amount for which the checks were drawn, 
 the court is not authorized to charge the 
 bank for the whole amount of a check for 
 which there is a stub corresponding in num- 
 ber but not in amount, unless it is shown 
 that the depositor did not owe money or 
 draw checks for the amount expressed in 
 the stubs. First Nat. Bank v. Allen, 100 
 Ala. 476, 14 So. 335, 27: 426 
 Recovery back by drawee of amounts paid. 
 See also infra, 142, 145, 166-168. 
 
 136. The drawee bank which pays the 
 good-faith holder of a forged check cannot 
 recover back the money paid. First Nat. 
 Bank v. Marshalltown State Bank, 107 Iowa, 
 327, 77 N. W. 1045, 44: 131 
 
 137. Payment by the drawee of forged 
 checks made payable to a fictitious person 
 to one who cashed them upon an indorse- 
 ment purporting to be that of the payee, 
 without requiring identification of the one 
 to whom payment was made, will not pre- 
 vent his recovering back the money so paid, 
 where he was ignorant of the facts, and 
 relied upon the indorsement of the one who 
 cashed the checks; and the latter will not 
 be placed in a worse position by the recovery 
 than he would have been had the checks not 
 been paid. Canadian Bank of Commerce v. 
 Bingham, 30 Wash. 484, 71 Pac. 43, 60: 955 
 
 138. Recovery by the payor of a forged 
 check will not be permitted under Pa. act 
 1849, 10, providing for recovery of money 
 paid on forged signatures, if the check was 
 paid and apparently dismissed from further 
 attention until five days later, when the 
 payee, after parting with the funds, started 
 an investigation which disclosed the forgery. 
 
 Iron City Nat. Bank v. Fort Pitt Nat. Bank, 
 159 Pa. 46, 28 Atl. 195, 23: 615 
 
 139. Where a bank accepts and cashes a 
 check drawn on a bank in another county, 
 to whiclh the names of the drawer and payee 
 have been forged, without requiring any 
 identification of the parties to whom pay- 
 ment is made, the bank on which it purports 
 to have been drawn, and by which it is paid 
 on its being transmitted by tne former bank, 
 can recover .back the amount so paid. Peo- 
 ple's Bank v. Franklin Bank, 88 Tenn. 299, 
 12 S. W. 716, 6: 724 
 
 140. A bank which pays forged checks pur- 
 porting to have been drawn by one of its 
 depositors, to other banks which had in good 
 faith advanced money on them to the forger, 
 must, as between itself and the other banks, 
 bear the loss, especially where the depos- 
 itor lived near, and the checks continued to 
 be presented and paid for several months be- 
 fore the forgery was discovered. Deposit 
 Bank v. Fayette Nat. Bank, 90 Ky. 10, 13 
 S. W. 339, 7: 849 
 Drawee's presumed knowledge of drawer's 
 
 signature. 
 
 141. The drawee of a check, draft, or bill 
 of exchange is held to know the signature 
 of the drawer, and makes payment in case 
 of forgery at his own peril, unless the rule 
 is modified by local custom. First Nat. 
 Bank v. First Nat. Bank, 58 Ohio St. 207. 
 50 N. E. 723, 41 : 584 
 
 142. Indorsing a draft "For collection" 
 does not guarantee the signature of the 
 drawer as between the indorser and drawee, 
 so as to relieve the latter of its obligation 
 to know such signature, and entitle it to 
 recover back the amount paid in case the 
 signature proves to be a forgery. North- 
 western Nat. Bank v. Bank of Commerce, 
 107 Mo. 402, 17 S. W. 982, 15: 102 
 
 143. An indorsement of a check, draft, or 
 bill of exchange, "For collection," by one 
 other than the payee, guarantees the gen- 
 uineness of the names of the indorsers, but 
 not that of the drawer. First Nat. Bank v. 
 First IN at. Bank, 58 Ohio St. 207, 50 N. E. 
 723, 41 : 584 
 
 144. Presentation for payment of a check 
 by a bank which is the indorsee for collec- 
 tion does not justify the drawee bank in 
 relaxing its vigilance in determining whether 
 or not the name of the drawer is genuine. Id. 
 
 145. The rule that a drawee is presumed 
 to know his drawer's signature, and hence 
 cannot recover back money paid, through a 
 mistake of fact, upon a bill to which the 
 drawer's signature was forged, is not avail- 
 able in favor of a holder wfio, by his own 
 negligence, contributed to the success of the 
 fraud practised, and whose conduct had a 
 tendency to mislead the drawee, who was 
 himself free from fault. Woods v. Colony 
 Rank, 114 Ga. 683, 40 S. E. 720, 66: 929 
 Duties and liabilities of depositor. 
 Amount Recoverable from Depositor, see 
 
 Damages, 105. 
 
 Question for Jury as to, see Trial, 493. 
 See a'so infra, 174-177. 
 For Editorial Notes, see infra, VIII. 24. 
 
 146. A depositor's procurement of a rub-
 
 BANKS, IV. a. 
 
 215 
 
 her stamp which will make a facsimile of 
 his signature, of which tne bank has no 
 notice, does not, in the absence of his negli- 
 gence, make him liable for the loss ocea- 
 sioned by payment of his deposit on forged 
 checks made by one who had unlawfully and 
 clandestinely obtained the stamp and used 
 it in forging checks. Robb v. Pennsylvania 
 Co. for Ins. on Lives, etc. 86 Pa. 456, 40 
 Atl. 969. 41-JJ95 
 
 147. A bank depositor will be held res^on- 
 stthe to the bank for failure to impart to it 
 knowledge of forgeries of checks possessed 
 by his clerk, if he intrusts to his clerk the 
 duty of examining the vouchers, although 
 the clerk deceives him and keeps him in 
 ignorance of the forgeries. First Nat. Bank 
 v. ALen, 100 Ala. 476, 14 So. 335, 27: 426 
 
 148. A depositor owes to the bank the 
 duty of examining his checks within a rea- 
 sonable time after they are returned ta him, 
 in order to discover and give notice of any 
 forgery. Janin v. London & S. F. Bank, <J2 
 Cal. 14, 27 Pac. 1100, 14: 320 
 
 149. A depositor owes the bank the duty 
 to exercise reasonable care to verify the 
 vouchers returned by the bank on balancing 
 the account by the record of issued checks, 
 if he has kept one. Critten v. Chemical 
 Nat. Bank, 171 N. Y. 219, 63 N. E. 969, 
 
 57: 529 
 
 150. A bank depositor owes to the bank 
 the duty of examining returned vouchers 
 and reporting forgeries to the bank. First 
 Nat. Bank v. Allen, 100 Ala. 476, 14 So. 335, 
 
 27: 426 
 
 151. In case a bank depositor fails to no- 
 tify the bank of forged checks returned in 
 his vouchers, the bank is entitled to hold 
 him liable for damages caused to it by such 
 failure. Id. 
 
 152. A depositor who, by negligence in 
 failing to detect forgeries among the vouch- 
 ers returned by the bank, ana give the bank 
 notice thereof, causes loss to the bank, ei- 
 ther by enabling the forger to repeat his 
 fraud, or by depriving the bank of an oppor- 
 tunity to obtain restitution, will be responsi- 
 ble for the damage caused by his default. 
 Critten v. Chemical Nat. Bank, 171 N. Y. 219, 
 63 N. E. 969, 57 : 529 
 
 153. By failing to discover forgeries 
 among the vouchers returned by the bank 
 on balancing t'he depositor's account, and to 
 notify the bank thereof, the depositor does 
 not adopt the checks as genuine, ratify their 
 payment, or estop himself from asserting 
 that they are forgeries. Id. 
 
 154. A depositor's delay in returning a 
 forged check sent him by the bank, which 
 had paid it and charged it up to his account, 
 or in giving notice of the forgery after he 
 discovers it, will not be a defense to his ac- 
 tion against the bank to recover the amount 
 of the check, unless the bank was injured by 
 the delay. Janin v. London & S. F. Bank. 
 92 Cal. 14, 27 Pac. 1100, 14: 320 
 
 (2) Altered Checks. 
 
 Bank Loaning Customer's Money on Raised 
 Collateral, see infra, 292. 
 
 Imputing Agent's Knowledge as to, to De- 
 positor, see Notice, 47, 48. 
 
 See also infra, 250, 251, 369-377. 
 
 155. A bank which pays to a clerk of the 
 drawer a plainly altered check without re- 
 quiring an explanation of the alteration 
 from his employer cannot throw the loss 
 occasioned by subsequent payment of a ser- 
 ies ot such checks upon the emp.oyer, on the 
 ground that he negligently failed to detect 
 t'he frauds when the vouchers were returned 
 to him. Critten v. Chemical Nat. Bank, 171 
 N. Y. 219, 63 N. E. 969, 57: 529 
 
 150. Mere presentation of a check for pay- 
 ment by a bank, which has indorsed upon 
 it a restrictive indorsement, does not con- 
 stitute a warranty that it is what it pur- 
 ports to be, and has not been altered from 
 the form in which it was originally drawn, 
 when oy statute a contract of sale does not 
 imply a warranty except as provided by the 
 statute, which provides that the seller of a 
 note merely warrants that he has no knowl- 
 edge of defects. Crocker-Woolworth Nat. 
 Bank v. Nevada Bank, 139 Cal. 564, 73 Pac. 
 456, 63: 245 
 
 Negligence of depositor. 
 Burden of Provin?, see Evidence, 597a. 
 See also supra, 155. 
 
 157. Whether or not the drawer of a check 
 was negligent in signing it in the condi- 
 tion in which it was prepared is a question 
 of fact to be determined largely by an in- 
 spection of the check itself. Critten v. 
 Chemical Nat. Bank, 171 N. Y. 219, 63 N. E. 
 969, 57: 529 
 
 158. The drawer of a check is not b:u-id to 
 prepare it so that no one else can success- 
 fully tamper with it, to charge the bank 
 with the loss in case it pays it after its 
 amount has been fraudulently raised. Id. 
 
 159. The drawer of a check owes no duty 
 to detect a fraudulent alteration of it to a 
 bank in which it is deposited for collection, 
 and to which the proceeds are paid by the 
 drawee. Id. 
 
 (3) Forged Indorsements. 
 
 Drawee's Duty to Pay One Holding under 
 Spurious Indorsement, see Bills and 
 Notes, 214, 215. 
 
 Rights and Liabilities as to Persons Other 
 than Bank, see Checks, 46-49. 
 
 Imputing Agent's Knowledge as to, to De- 
 positor, see Notice, 49. 
 
 See also supra, 100. 
 
 160. The liability of a bank to its deposi- 
 tor is not avoided by payment of money 
 upon his check to a person who forces the 
 name of the payee. Atlanta Nat. Bank v. 
 Burke, 81 Ga. 597, 7 S. E. 738, 2: 96 
 
 161. A drawee bank which pays a draft 
 relying on a forged indorsement thereon of 
 the name of a fictitious person to whom the 
 payee indorsed it innocently as the result 
 of a fraud practised upon him is not there-
 
 216 
 
 BANKS, IV. a. 
 
 by relieved from liability to the payee. 
 Chisra v. First Nat. Bank, 96 Tenn. 641, d6 
 S. W. 387, 32:778 
 
 162. A bank cannot justify the payment 
 of a check on the indorsement, by one who 
 procured it by representing himself as an- 
 other, of the latter's name, at least under 
 a statute declaring an indorsement to be 
 wholly inoperative which is made without 
 the authority of the person whose signature 
 it purports to be. Tolman v. American 
 Nat. Bank, 22 R. I. 462, 48 Atl. 480, 52: 877 
 
 163. A collecting bank which as indorser 
 of checks is called on by the drawee bank 
 to refund the proceeds because of the forgery 
 of prior indorsements cannot throw the loss 
 on the drawee bank by asserting the forgery 
 of the signature of the drawer also, since 
 estoppel to deny the drawer's signature is 
 mutual. First Nat. Bank v. Northwestern 
 Nat. Bank, 152 111. 296, 38 N. E. 739, 26: 289 
 
 164. The fact that the forger of indorse- 
 ments on checks has made good the amount 
 to the payee constitutes no defense to the 
 bank which 'has paid out money on the 
 checks, in an action by the depositor on his 
 deposit money founded upon the checks, 
 where he has not profited by such payment. 
 Shipman v. Bank of the State of New York, 
 126 N. Y. 318, 27 N. E. 371, 12: 791 
 
 165. Checks drawn by the cashier of a 
 bank in its name upon another bank in 
 which it has a deposit, for the purpose of 
 speculating in stocks without the knowl- 
 edge of the officers of the bank, the names of 
 the payees being actual customers of the 
 bfmk, but such customers having no knowl- 
 edee of the checks or connection with the 
 transaction, are subject to the same rule as 
 if fictitious names were selected and used; 
 and the payment by the drawee bank of such 
 checks, upon indorsements made by such 
 cashier, is ^ood as asrainst the bank of which 
 he is an officer. Phillips v. Mercantile Nat. 
 Bank. 140 N. Y. 556, 35 N. E. 982, 23: 584 
 Recovery tack by drawee of amounts pai3. 
 See nisi supra, 136-140; infra, 252. 
 
 166. The drawee of a draft upon which 
 the indorsement of the payee and his sig- 
 nature to a bill of sale on the back, which 
 is the consideration of the acceptance of the 
 instrument, are forged, who pays it in ig- 
 norance of the forgery, upon its presentation 
 bearing the indorsement of the collecting 
 bank, may recover back the proceeds from 
 the bank as money paid under mistake. 
 La Fayette v. Merchants' Bank, 73 Ark. 561, 
 84 S. W. 700, 68: 231 
 
 167. The rule that the drawee of a draft 
 upon which the indorsement of the payee 
 was forged cannot recover back money paid 
 to the holder where the forgery was com- 
 mitted by the drawer does not apply where 
 the draft itself contains evidence that it 
 was not drawn upon funds of the drawer 
 in the hands of the drawee, but was accept- 
 ed and paid on the faith of property to be 
 delivered to the drawee. Id. 
 
 168. Failure to discover that the indorse- 
 ment of the payee on a draft was a forgery, 
 and to notify the holder, to whom its pro- 
 ceeds had been paid, for five or six months, 
 
 is not such negligence on the part of the 
 drawee, in the absence of anything to ex- 
 cite his suspicion, as to prevent his recover- 
 ing back the payment; at least if the hold- 
 er is not shown to have been injure? by the 
 delay. Id. 
 
 Bank's duty as to discovering genuineness. 
 See also infra, 304. 
 
 169. Accepting a check does not, even as 
 to subsequent bona fide holders, admit the 
 genuineness of any indorsement which may 
 be on it at the time. First Nat. Bank v. 
 Northwestern Nat. Bank, 152 111. 296, 38 
 N. E. 739, 26: 289 
 
 170. The drawee bank which pays a check 
 does not thereby admit the genuineness of 
 any indorsement on it, although it does ad- 
 mit the genuineness of the drawer's signa- 
 ture. Id. 
 
 171. The genuineness of the last indorse- 
 ment on a check does not relieve a bank 
 from looicing to the genuineness of preced- 
 ing indorsements. Atlanta Nat. Bank v. 
 Burke, 81 Ga. 597, 7 S. E. 738, 2: 96 
 
 172. In the absence of a course of dealing 
 or understanding to the contrary between 
 the parties, the duty of a banker is, in all 
 cases, to pay to the person named or his or- 
 der, where the terms of the check are such; 
 and he may and should withhold payment 
 until fully satisfied as to the genuineness of 
 the indorsement. Armstrong v. Pomeroy 
 Nat. Bank, 46 Ohio St. 512, 22 N. E. 866, 
 
 6: 625 
 
 173. Payment of checks stolen from the 
 depos : tor without negligence on his part, by 
 his clerk, who forged the indorsements of the 
 payees' names, constitutes no defense to the 
 bank against an action by the depositor for 
 its deposit, especially where the bank nnde 
 no inouirv as to the genuineness of the in- 
 dorsements, but relied upon the responsibil- 
 ity of the persons presenting the checks for 
 payment. Shipman v. Bank of the State of 
 New York, 126 N. Y. 318, 27 N. E. 371, 
 
 12: 791 
 
 Duty and liability of depositor. 
 See also supra. 146-154. 
 For Editorial Notes, see infra, VIII. 24. 
 
 174. A depositor has the right to assume 
 when checks are returned to him by the 
 bank that it has ascertained the genuineness 
 of indorsements thereon. Shipman v. Bank 
 of the State of New York, 126 N. Y. 318, 
 27 N. E. 371, 12: 791 
 
 175. The entry in a depositor's bank book, 
 which is returned to him, of the payment of 
 a check to the payee n^med therein, puts the 
 depositor under no obligation to look to see 
 whether the check was paid upon a forged 
 indorsement or not. Atlanta Nat. Bank v. 
 Burke, 81 Ga. 597, 7 S. E. 738, 2: 96 
 
 176. A bank depositor is not precluded 
 from holding the bank liable for cashing his 
 check on a forged indorsement, by the fact 
 that a note and deed forged in the same 
 manner had been palmed off on the depos- 
 itor nimself. Id. 
 
 177. Vvhere, by the fraud of a third per- 
 son, a depositor of a bank is induced to draw 
 his check payable to a nonexisting person or 
 order, the drawer being in ignorance of the
 
 BANKS, IV. b, 1. 
 
 217 
 
 fact and intending no fraud, the bank on 
 which the check is so drawn is not author- 
 ized to pay it and charge the amount or 
 the account to its customer, on the indorse- 
 ment of the party presenting it, although it 
 appears to have been previously indorsed by 
 the party named as payee. Such indorse- 
 ment is, in effect, a forgery, and the pay- 
 ment thereon by the bank confers no right 
 on it as against the drawer of the check. 
 Armstrong v. Pomeroy Nat. bank, 46 Ohio 
 Ct. 512, 22 N. E. 866, 6: 625 
 
 (4) Certificate of Deposit. 
 
 Demand for Payment of, to Bind Indorser, 
 see Bills and Notes, 172. 
 
 Transfer of, by Public Officer, see Bonds, 
 49. 85. 
 
 Parol Evidence as to, see Evidence, 1181. 
 
 Opinion Evidence as to, see Evitl^nce, 1401. 
 
 Personal Liability of Administrator, see Ex- 
 ecutors and Administrators, 84. 
 
 Preference of, against Deceased Banker's 
 Estate, see Executors and Administra- 
 tors. 151. 
 
 Limitation of Action on, see Limitation of 
 Actions. 88, 225, 226. 
 
 Set-Off Against, see Set-Off and Counter- 
 claim, 25, 50. 
 
 Finding as to, see Trial, 876. 
 
 See also sunra. 18, 73; infra, 222, 223, 309, 
 32?. 388.. 389. 
 
 For Editorial Notes, see infra, VIII. 12. 
 
 178. A deposit of money with the manager 
 of a "depositors' co-operative association" 
 on receipt of a certificate stipulating that 
 the money shall be repaid at an agreed time, 
 with a specified rate of interest, does not 
 create a trust, but a loan. T.eaphart v. Com- 
 mercial Bank, 45 S. C. 563, 23 S. E. 939. 
 
 33: 700 
 
 179. An ordinary deposit slip showing the 
 anrnmt of a deposit in a bank, although 
 s'"Tied by the cashier, is not a certificate of 
 deposit, but is a mere receipt. First Nat. 
 Bank v. Clark, 134 N. Y. 368, 32 N. E. 38, 
 
 17: 580 
 
 180. Merely adding the word "surety" LO 
 his signature, by one who si?ns his name on 
 the back of a certificate of deposit in order 
 to induce a depositor to take such certifi- 
 cate in place of a former one instead of 
 withdraw'n? his monev. does not prevent 
 him from being held liable as m^ker instead 
 of as in-'ors-M-. Ballard v. Burton, 64 Vt. 
 387. 24 Atl. 769, 16: 664 
 
 181. Forbearing to withdraw monev from 
 a bank tor a reasonable time although with- 
 out any definite time agreed upon, is a 
 sufficient consideration for the signing by a 
 third person as surety of another certificate 
 of deposit in place of a former one which 
 is surrendered. Id. 
 
 182. The return of a certificate of deposit 
 is properly made to the receiver of a bank 
 where the bank has been closed and a re- 
 ceiver appointed. Id. 
 Negotiability. 
 
 183. A certificate of deposit issued by a 
 bank and made payable to order or bearer, 
 and payable on return of the certificate 
 
 properly indorsed, is a negotiable instru- 
 ment. Kirkwood v. First Nat. Bank, 40 
 Neb. 484, 5S N. W. 1016, 24: 444 
 
 184. A provision for interest if left for six 
 months, but no interest after six months, 
 does not destroy the negotiability of a cer- 
 tificate of deposit. la. 
 
 185. The provision that a certificate of de- 
 posit is payable in current funds does not 
 prevent it from being negotiable. lu. 
 
 186. A certificate of deposit in the usual 
 form, issued by a bank and made payable 
 to bearer or order, is negotiable and enti- 
 tled to the same protection in the hands 
 of a bona fide purchaser as other negotiable 
 paper. First Nat. Bank v. Security Nat. 
 Bank. 34 Neb. 71, 51 N. W. 305, 15: 386 
 Restrictive indorsements. 
 
 187. An indorsement on a certificate of 
 deposit of the words, "Pay to the order of 
 R. C. O. cash, for account" of the indorser, 
 is a restrictive indorsement which vests no 
 general property to the paper in the indor- 
 see, but merely constitutes him an agent for 
 collection. United States Nat. Bank v. 
 Greer, 53 Neb. 67, 73 N. W. 266, 55 Neb. 462, 
 75 N. W. 1088, 41: 439 
 
 188. An indorsement "without recourse" 
 is not sufficient to charge the purchaser of 
 a certificate of deposit before maturity with 
 notice of defenses. First Nat. Bnnk v. fee- 
 "iirity Nat. Bank, 34 Neb. 71, 51 N. W. 
 305, 15: 386 
 Maturity. 
 
 For Editorial Notes, see infra, VIII. 12. 
 
 189. A certificate of deposit becomes over- 
 due after the expiration of six months, and 
 not until then, when it provides that it is 
 not subject to check, and that it shall bear 
 interest at 6 per cent if left six months, but 
 no interest after six months. Kirkwood v. 
 First Nat. Bank, 40 Neb. 484, 58 N. W. 1016, 
 
 24: 444 
 
 190. The words, "This certificate payable 
 three months after date, with 6 per cent in- 
 terest per annum for the time specified." 
 stamped across the face of a certificate of 
 deposit which recites that it is pnyable "on 
 the return of this certificate properly in- 
 dorsed," make it a time certificate which 
 is overdue after the expiration of three 
 months. First Nat. Bank v. Security Nat. 
 Bank, 34 Neb. 71, 51 N. W. 305, 15: 386 
 
 191. A demand to hold the indorser of a 
 certificate of deposit which contains the 
 clause, 'To be left six months. No interest 
 ifter maturity," must be made on the last 
 day of grace on the expiration of the six 
 months, as the certificate is not payable on 
 demand, but six months after date, and 
 therefore does not fall within the sixty-day 
 limitation fixed for demand certificates by 
 Minn. Gen. btat. 1894, 2231. Towle v. 
 Starz, 67 Minn. 370, 69 N. W. 1098, 36: 463 
 
 b. Collections. 
 1. In General. 
 
 Presentment of Negotiable Paper at, for 
 Payment, see Bills and Notes, IV.
 
 218 
 
 BANKS, IV. b, I. 
 
 Effect of Delay in Presentation of Check 
 Taken in Payment of Other Check, see 
 Checks, 22-25. 
 
 What Law Governs, see Conflict of Laws, 44. 
 
 Opinion Evidence as to Intent, see Evi- 
 dence, 1404. 
 
 Allegation of Negligence in, see Pleading, 
 316. 
 
 Set-Off in Case of, see Set-Off and Counter- 
 claim, 45. 
 
 See also supra, 50. 
 
 For Editorial Notes, see infra, VLTL 
 14-16, 20. 
 
 192. Only the first of several banks suc- 
 cessively receiving a check for collection is 
 the agent of the payee. Corn Exch. Bank v. 
 Farmers' Nat. Bank, 118 N. Y. 443, 23 N. E. 
 923, 7: 559 
 
 193. A bank receiving drafts for collection 
 merely does not thereby become a guaran- 
 tor, so as to be prevented from securing 
 the priority of a debt due from the drawee 
 to itself, by attaching his property. Free- 
 man v. Citizens Nat. Bank, 78 Iowa, 150, 42 
 N. W. 632, 4: 422 
 
 194. A person receiving at the place of 
 payment a negotiable promissory note in- 
 dorsed for collection has no power to sell 
 or transfer it, his power being limited to 
 collection. Peonle's & Drovers' Bank v. 
 CraiT. 63 Ohio St. 374, 59 N. E. 102, 52: 872 
 
 195. The owner of drafts, who indorses 
 them in blank and places them with a bank 
 for collection, may avail himself of the 
 benefit of a restrictive indorsement placed 
 thereon by such bank when it transmitted 
 them to its correspondent for the purpose of 
 effecting such collection. Freeman's Nat. 
 Bank v. National Tube Works Co. 151 Mass. 
 413, 24 N. E. 779, 8: 42 
 
 196. The selection of a suitable inter- 
 mediate bank for the purpose of sending a 
 check for collection discharges the duty of 
 the initial bank to the person who deposits 
 the check. Givan v. Bank of Alexandria 
 Tenn. Ch.) 52 S. W. 923. 47: 270 
 
 197. Failure of the bank on which a 
 check is drawn and with which it is de- 
 posited "for collection and credit," to notify 
 the drawer of its neglect to transfer the 
 credit, will discharge him from further lia- 
 bility in case he is injured thereby. Ex- 
 change Bank v. Sutton Bank, 78 Md. 577. 
 28 Atl. 563, 23: 173 
 
 198. A bank receiving for collection a 
 check the proceeds of which it is to retain 
 to the drawer's credit will be regarded as 
 receiving sufficient compensation , for its 
 services to make it liable for negligence in 
 attempting to make the collection. Ker- 
 shaw v. Ladd, 34 Or. 375, 56 Pac. 402, 44: 236 
 
 199. A credit of checks deposited for col- 
 lection, and the issuance of a deposit slip 
 stating that all cash items not actual cash 
 are entered subject to payment, entitle the 
 bank to charge back a check if it proves un- 
 colleetible. Givan v. Bank of Alexandria 
 (Tenn. Ch.) 52 S. W. 923, 47: 270 
 
 200. The proceeds of a bank draft, sent in 
 payment of goods sold, deposited in bank, 
 collected, and placed to the credit of payee, 
 
 cannot be claimed by the drawer because, 
 to get possession of the property which he 
 bought, he was compelled to pay a draft 
 on himself which the seller of the goods had 
 drawn, attached to the bill of lading, and 
 had discounted, although the seller fraudu- 
 lently appropriated his draft while leaving 
 the one against him outstanding in the 
 hands of the concern which discounted it 
 with a lien on the property as security. 
 T. S. Reed Grocery Co. v. Canton Nat. 
 Bank, 100 Md. 299, 59 Atl. 716, 70: 959 
 
 Title to paper. 
 Title of Bon a Fide Purchaser, see Bills and 
 
 Notes, 196. 
 
 See also infra, 248, 308. 
 For Editorial Notes, see infra, VIII. 15, 20. 
 
 201. An indorsement "for collection" will 
 not pass the title to commercial paper to 
 the bank in which it is deposited. Tyson 
 v. Western Nat. Bank, 77 Md. 412, 26 Atl. 
 520, 23: 161 
 
 202. Entering the amount of commercial 
 paper deposited with the bank "for col- 
 lection" as cash in the pass book of the de- 
 positor and to his credit on the books of the 
 bank will not pass to the book the title to 
 the paper, if it was not to be an absolute 
 credit, but was to be charged back if not 
 collected. Id. 
 
 203. The legal title to commercial paper 
 indorsed "For collection" passes only sp 
 far as to enable the indorsee to demand, 
 receive, and sue for the money to be paid. 
 Upon such indorsement the owner may con- 
 trol his paper until it is paid, and may 
 intercept the proceeds thereof in the hands 
 of an intermediate agent. Freeman's Nat. 
 Bank v. National Tube Works Co. 151 Mass. 
 413, 24 N. E. 779, 8: 42 
 
 204. A third person can acquire from the 
 bank no title to commercial paper deposited 
 with an indorsement "for collection." 
 Tvson v. Western Nat. Bank, 77 Md. 412, 
 26 Atl. 520, 23: 161 
 
 205. The title to commercial paper pay- 
 able on demand, which is sent by one bank 
 to another for collection and so indorsed, 
 does not pass to the latter bank prior to 
 its collection, although it is accompanied by 
 a letter stating that it is sent "for collection 
 and credit," and its amount is credited upon 
 the account of the transmitting bank im- 
 mediately upon its receipt by the collecting 
 bank, in pursuance of a custom existing be- 
 tween the two banks in regard to their 
 dealings. National Butchers & D. Bank v. 
 Hubbell, 117 N. Y. 384, 22 N. E. 1031, 
 
 7: 852 
 
 206. No title to a check on another bank 
 passes to the bank with which it is deposit- 
 ed for collection, although it is indorsed 
 "For deposit" and its amount is immediate- 
 ly credited on the depositor's passbook, in 
 the absence of some special agreement to 
 that effect or some practice or custom 
 equivalent to such agreement. Hence, if the 
 depositary becomes insolvent before collect- 
 ing the check it can acquire no title to the 
 proceeds. Beal v. Somerville, 5 U. S. App. 
 14, 1 C. C. A. 598, 50 Fed. 647, 17: 291
 
 BANKS, IV. b, 1. 
 
 219 
 
 207. The collection of paper deposited 
 with a bank indorsed "for collection" after 
 the bank has ceased to do business because 
 of insolvency will not vest the title to the 
 paper in the bank. Tyson v. Western Nat. 
 Bank z 77 Md. 412, 26 Atl. 520, 23: 161 
 
 208. The assignee of a bank holding 
 paper indorsed for collection uncollected, 
 takes no title thereto, and, if he collects the 
 same, it is his duty to remit the proceeds 
 to the transmitting bank; and the fact that 
 he has expended such proceeds in the pay- 
 ment of the debts of his assignor in good 
 faith, without notice of the claim of the 
 transmitting bank, and under an order of 
 court for the payment of a dividend to 
 creditors, is no defense to a suit by the lat- 
 ter to recover them. National Butchers & 
 
 D. Bank v. Hubbell, 117 N. Y. 384, 22 N. 
 
 E. 1031, 7: 852 
 Notice as to title from indorsement. 
 
 209. An indorsement for collection is 
 notice to the drawee that the indorsee is 
 not the owner of the paper, but only the 
 agent of the owner authorized to receive 
 payment for him. First Nat. Bank v. First 
 Nat. Bank, 58 Ohio St. 207, 50 N. E. 723, 
 
 41: 584 
 
 210. Notice that a draft is held by its 
 correspondent merely for collection is not 
 given to a bank where the indorsements are 
 all without restriction, and the draft is 
 transmitted to it with directions to collect 
 and credit, by the fact that on the face of 
 the draft, are stamped the name of the 
 correspondent, together with the words 
 "Collection No. 4627." Garrison v. Union 
 Trust Co., 139 Mich. 392, 102 N. W. 978, 
 
 70: 615 
 
 211. A bank's indorsement of com- 
 mercial paper directing payment "for ac- 
 count of itself" does not imply that it is the 
 owner of the paper, where the indorsement 
 of the bank from which its title was de- 
 rived was of the same kind. Freeman's 
 Nat. Bank v. National Tube Works Co. 151 
 Mass. 413,' 24 N. E. 779, 8: 42 
 
 212. An indorsement of a check by a 
 bank holding it for collection, "for clear- 
 ing house purposes only," does not consti- 
 tute a representation that it is its owner. 
 Crocker-Woolworth Nat. Bank v. Nevada 
 Bank, 139 Cal. 564, 73 Pac. 456, 63: 245 
 Care in selecting correspondent. 
 
 213. The selection of its regular corre- 
 spondent employed to transact its own busi- 
 ness, for the purpose of sending a check for 
 collection, indicates proper care on the 
 part of a bank with which it is deposited 
 for collection. Givan v. Bank of Alexandria 
 (Tenn. Ch.) 52 S. W. 923, 47:270 
 
 214. A bank cannot be held negligent in 
 selecting, as agent for the collection of a 
 note for its customer, another bank which 
 is regarded as solvent, merely because it is 
 in fact insolvent and makes an assignment 
 for creditors soon afterwards, and because 
 the treasurer of the corporation making the 
 note is also cashier of the bank. Second 
 Nat. Bank v. Merchants' Nat. Bank, 111 
 Ky. 930, 65 S. W. 4, 65: 273 
 
 Sending directly to bank required to pay. 
 
 See also Checks, 12, 13. 
 
 For Editorial Notes, see infra, VIII. 16. 
 
 215. A collecting bank must not transmit 
 checks or drafts directly to the bank or 
 prrty by whom payment is to be made. 
 Minneapolis Sash & D. Co. v. Metropolitan 
 Bank, 76 Minn. 136, 78 N. W. 980, 44: 504 
 
 216. Sending a check directly to the 
 drawee bank for collection constitutes neg- 
 ligence on the part of the collecting bank. 
 Givan v. Bank of Alexandria (Tenn. Ch.) 
 52 S. W. -923, 47:270 
 
 217. A collecting bank is chargeable with 
 the loss, where it sends a check directly to 
 the drawee bank, with instructions to re- 
 mit in exchange upon another place, and 
 the drawee, although having a deposit 
 against which the check was drawn and con- 
 tinuing to do business for one whole day 
 after receiving it, mails back the check at 
 the close of that day with the statement, 
 "No funds," and immediately suspends bus- 
 iness. Anderson v. Rodgers, 53 Kan. 542, 
 36 Pac. 1067, 27: 248 
 
 218. Notice to a depositor by a collecting 
 bank that it will be responsible only for 
 the selection of agents according to its 
 judgment and means of knowledge, and will 
 assume no risk or responsibility on ac- 
 count of their omission, neglect, or failure, 
 will not relieve the bank from liability for 
 sending a check directly to the bank by 
 which payment is to be madn. Minneapolis 
 Sash & D. Co. v. Metropolitan Bank, 76 
 Minn. 136, 78 N. W. 980, 44: 504 
 
 219. An established usage and custom ex- 
 isting among banks will not justify a col- 
 lecting bank in sending a check or a draft 
 by mail directly to the drawee because 
 there is no other bank of good standing in 
 the same town. Id. 
 
 220. A custom of banks to send a check 
 direct to the Drawee bank for collection and 
 return is not unreasonable, at least as ap- 
 plied to the collection of a plain, unindorsed 
 check. Kershaw v. Ladd, 34 Or. 375, 56 
 Pac. 402, 44:236 
 
 221. One who deposits for co) lection a 
 check on a distant bank, with knowledge 
 that it is the only bank in the place, and 
 that the check will be collected without 
 expense to him through other banks, in ac- 
 cordance with banking usages, is estopped 
 from charging the bank in which he depos- 
 ited it, with negligence in sending it to a 
 correspondent who forwards it to the draw- 
 ee for collection, in accordance with the 
 custom in such cases. Wilson v. Carlin- 
 ville Nat. Bank, 187 111. 222, 58 N. E. 250, 
 
 52: 632 
 
 222. A collecting bank is impliedly in- 
 structed to send a certificate of deposit for 
 collection directly to the bank which made 
 it, when this is the only bank in the place, 
 and is rated and supposed to be responsi- 
 ble, and the instructions received by the 
 collecting bank, after calling attention to 
 the fact that it had a correspondent at 
 that place, said "Please collect for us at 
 your best rate of exchange." First Nat.
 
 220 
 
 BANKS, IV. b, 1. 
 
 Bank v. Citizens' Sav. Bank, 123 Mich. 336, 
 82 N. W. 66, 48: 583 
 
 223. Sending a certificate of deposit di- 
 rectly to the drawer for collection without 
 instructions to do so constitutes negligence 
 on the part of a collecting bank, for which 
 it will be liable in case of a resulting loss. 
 
 Id. 
 
 Promptness in making collection or giving 
 notice of failure. 
 
 224. A bank receiving a check for collec- 
 tion exercises due diligence if, in accordance 
 with its custom, 'it credits the check and 
 forwards it on the following day. Givan v. 
 Bank of Alexandria (Tenn. Ch.) 52 S. W. 
 923, 47:270 
 
 225 A bank which receives a post-dated 
 check upon itseif for collection, under a 
 promise to hold the proceeds subject to the 
 check of the depositor, is liable to the lat- 
 ter where, when the bank opens on the day 
 of the date of such check, the drawer has 
 funds sufficient to discharge the debt, al- 
 though at the closing hour on such day the 
 account of the drawer is overdrawn. Aver- 
 ell v. Second Nat. Bank, 2 App. D. C. 470, 
 
 25: 761 
 
 2?fi. The retention by a collecting bank of 
 a dishonored check until after the drawee 
 bark has closed does not create any lia- 
 bility to the sender, unless he was injured 
 thereby. Kcrshaw v. Ladd, 34 Or. 375. 56 
 Pac. 402, 44: 236 
 
 227. Where a bank receives a draft for 
 collection, with instructions to wire the 
 drawer and await reply in case of nonpay- 
 ment, it is not negligent in not bringing a 
 suit a<raint the drawee for nonpayment, 
 where it telegraphs the drawer two days be- 
 fore it commences an attachment suit 
 against the drawee on a note held by it- 
 self, and receives no directions to sue until 
 after the levy of its attachment. Freeman 
 v. Citirens' Nat. Bank, 78 Iowa, 150, 42 N. 
 W. 632, 4: 422 
 
 228. Disobedience of an instruction to ad- 
 vise payment promptly, and return at once 
 if not paid, by a bank receiving a draft for 
 colle-tion, is not shown by merely holding 
 the draft a few days to await the arrival 
 of the property against which it is drawn, 
 in acc<'rdn^e with a course of dealing which 
 has existed between the parties. Garrison 
 v. Urion Trust Co. 139 Mich. 392, 102 X 
 W. 978, 70: 615 
 
 22!). A bank which has received com- 
 mercial paper for collection and forwarded it 
 to an agpnt bank is negligent in not send- 
 ing a tracer promptly when the paper is not 
 heard from at maturity, or in allowing the 
 matter to run along without hearing from 
 the tracer, or. in case it is heard from, in 
 not notifying the ow^er of the paper of t.h" 
 true situation, or taking any steps to pro- 
 tect his interest. Second Nat. Bank v. Mer- 
 chants' Nat. Bank, 111 Ky. 930, 65 S. \V. 4. 
 
 55: 273 
 
 230. A bank -which, having received u i:> f .^ 
 for collection, sends it to another bank the 
 cashier of which is the treasurer of the 
 corporation making the note, at a time of 
 great financial uncertainty, is negligent, 
 
 when the note is not collected at maturity, 
 in failing to ascertain promptly the cause r 
 or whether or not steps have been taken to- 
 hold the indorser, and in sending forward 
 another note of the same kind after the 
 maturity of the former one, without hearing 
 from it. Id. 
 
 Payment 
 Payment of Notes Preventing Further Suit 
 
 Thereon, sec Bills and Notes, 284. 
 Sec also infra, 298. 
 For Editorial Notes, see infra, VIII. 16. 
 
 231. A check by one bank upon another,, 
 sent in payment of the collection of a draft, 
 is not an equitable assignment of any por- 
 tion of a general deposit on which it is 
 drawn. Akin v. Jones, 93 Tenn. 353, 27 S. 
 W. 669, 25: 523 
 
 232. Payment of a d^aft presented by a 
 collecting bank to the drawee, who is its 
 own depositor, is not made, as between him 
 and the drawer, by his acceptance of the 
 draft, which was regarded by him and the 
 bank as equivalent to a check. State Bank 
 v. Byrne, 97 Mich. 178, 56 N. W. 355, 21 : 753 
 
 233. No custom of a bank to receive 
 checks or acceptances from a depositor as 
 payment can be operative as against one 
 not a party to the custom, whose draft on 
 one of its depositors is received by the bank 
 for collection. Id. 
 
 234. A bank receiving a note for collec- 
 tion, which accepts in payment a check on 
 the owner of the note, does so at its own 
 risk, in case the check is not good. Bank 
 of Antigo v. Union Trust Co. 149 111. 343 r 
 36 N. E. 1029, 23: 611 
 
 235. Where a debtor sends his creditor a 
 check on bankers, which the creditor on the 
 same day sends to his bank for collection r 
 and the latter, on the day after its receipt, 
 sends it to the drawees for collection and 
 remittance according to the common prac- 
 tice among banks, a draft, which was the 
 usual form of remittance in such cases, sent 
 by the drawees for the amount of the debt, 
 will not constitute a payment where the 
 drawees fail and make an assignment on 
 the same day, payment of the draft being 
 refused on its being presented without de- 
 lay. Thomas v. Westchester County, 115 
 N. Y. 47, 21 N. E. 674, 4: 477 
 
 236. Worthless drafts received by a bank 
 with which paper was deposited for col- 
 lection, from a collecting bank to which the 
 paper was sent, and thereupon credited to 
 the depositor, without knowledge of the in- 
 solvency of the collecting agent, do not 
 change the rule that the depositor must 
 bear the loss, since the rights of the parties 
 are the same as if the worthless drafts had 
 been deposited by him. Waterloo Milling 
 Co. v. Kuenster, 158 111. 259, 41 N. E. 906, 
 
 29: 794 
 
 237. A bank which has received for col- 
 lection a check which it forwards to its 
 Correspondent for that purpose cannot ful- 
 fil its obligation to the owner by delivering 
 to him the correspondent's draft on a third 
 person, drawn and used for transmitting 
 the proceeds of the check, not to the ow-er, 
 but to itself, and which has become worth-
 
 BANKS, IV. b, 1. 
 
 221 
 
 less because of the insolvency of both draw- 
 er and drawee. St. Nicholas Bank v. State 
 Nat. Bank, 123 N. Y. 26, 27 N. E. 84.). 
 
 13: 241 
 
 238. If a collecting bank surrenders a 
 check to a bank on which it is drawn, and 
 accepts a cashier's check 01* other obliga- 
 tion in lieu thereof, its liability to its de- 
 positor is fixed as much as if it had re- 
 ceived the cash. The bank holding the check 
 for collection has no right, unless specially 
 authorized to do so, to accept anything in 
 lieu of rnonev. Fifth Nat. Bank v. Ash- 
 worth, 12.3 Pa. 212, 16 Atl. 593, 2: 491 
 Stopping paj'ment. 
 
 239. A bank which at its customer's re- 
 quest mails its own draft to his creditor in 
 payment of the creditor's draft on him can- 
 not defeat the creditor's right to its draft 
 by intercepting it in the mail, although it 
 extended credit for the amount ^f the draft 
 to its customer in ignorance of the fact 
 that he was insolvent. Canterbury v. Bank 
 of Sparta, 91 Wis. 53, 64 N. W. 311, 30: 845 
 
 240. A bank to which commercial paper 
 has been transmitted for collection will 
 not be permitted to dispute the right of 
 the owner to stop payment thereof, al- 
 though it has made credits or advances to 
 an intermediate collecting agent on account 
 of the paper, if the same were made before 
 the papor had been collected; nor can such 
 advances be recovered from the owner as 
 money paid for his use. Freeman's Nat. 
 Bank v. National Tube Works Co. 151 Mass. 
 413, 24 N. E. 779, 8: 42 
 
 241. A bank which has charged up to the 
 drawer, canceled, and sent a draft in pay- 
 ment of, a check received through the agen- 
 cy of two other banks which had succes- 
 sively received it for collection, the latter 
 of which, not knowing that the former was 
 not the owner thereof, as the payee's in- 
 dorsement was in blank, had given credit 
 therefor, reserving the right to charge it 
 back if dishonored, and thereupon sent it 
 on for collection and remittance, cannot, 
 at the request of the drawer and payee of 
 the check, stop payment of the draft to 
 the correspondent bank because the bank 
 first receiving the check for collection had 
 become insolvent. The insolvent bank only 
 is the agent of the payee of the check, and 
 the drawee, after sending the draft, is not 
 justified in resisting payment, for the bene- 
 fit of such payee, even assuming that he is 
 entitled to the proceeds thereof. Corn 
 Exch. Bank v. Farmers' Nat. Bank, 118 N. 
 Y. 443. 23 N. E. 923, 7: 559 
 Default of correspondent. 
 
 242. A bank with which a customer has 
 left for collection his draft upon a party 
 residing at a distant point is liable for the 
 failure and default of a correspondent to 
 whom it forwarded the draft for collection. 
 Streissguth v. National German-Am. Bank. 
 43 Minn. 50, 44 N. W. 797, 7: 363 
 
 243. A bank with which a draft is de- 
 posited for collection discharges its duty by 
 transmitting it in due season to a suitable 
 agent at the residence of the drawee, with 
 necessary instructions, and is not liable for 
 
 loss occasioned by the negligence or default 
 jf the latter, as such collecting agent be- 
 "omes the agent of the holder of the draft, 
 and not of the bank with which it is de- 
 posited for col'ection. Waterloo Milling Co. 
 v. Kuenster, 158 Til. 259, 41 N. E. 906, 
 
 2): 794 
 
 244. A bank which receives for collection 
 a note or bill payable at a distant point, 
 with the understanding that such collec- 
 tion is an accommodation only, or that it 
 shall receive no compensation therefor be- 
 yond the customary exchange, is not liable 
 for the defaults of a reputable and suit- 
 able correspondent at the place of payment 
 to which it transmits the paper with prop- 
 er instruction for collection and remittance 
 of the proceeds. First Nat. Bank. v. 
 Sprague, 34 Neb. 318, 51 N. W. 846, 15: 498 
 
 245. The failure to collect a check in 
 consequence of the negligence of a bank to 
 which it was sent for collection by a bank 
 in which it was deposited for collection will 
 not preclude the latter bank from recover- 
 ing the amount thereof from the depositor, 
 to whom it had given credit for the amount, 
 if that bank exercised due care in selecting 
 the correspondent to which it sent the check 
 since the correspondent bank is the agent 
 of the depositor. Wilson v. Carlinville Nat. 
 Bank. 187 111. 222, 58 N. E. 250, 52: 632 
 
 246. The exchange usually charged by 
 banks for transmission of money from one 
 place to another is not a sufficient consid- 
 eration to support an implied undertaking 
 to answer for the default of a correspon- 
 dent selected to make collections for cus- 
 tomers according to the course of business 
 of ba^ks. First Nat. Bank v. Sprague, 34 
 Neb. 318. 51 N. W. 846. 15: 498 
 Lien of collecting bank. 
 
 See also infra, 262. 
 
 247. A bank has a lien on drafts received 
 from a correspondent bank for collection 
 and credit for settlement of its deposit ac- 
 count with the latter, unless it has notice 
 that the correspondent was merely an 
 agent for collection, and not owner of the 
 draft, or unless it forfeits its lien bv dis- 
 obedience of instructions. Garrison v. Union 
 Trust Co. 139 Mich. 392, 102 N. W. 978. 
 
 70: 615 
 
 248. A bank which sends to another bank, 
 which is its regular correspondent, for col- 
 lection, a draft indorsed for collection and 
 credit, cannot assert its title against the 
 lien upon the proceeds to -which a third 
 bar>k. to which the draft is forwarded for 
 collection, is entitled in the ordinary course 
 of business to balance its account against 
 the intermediate bank. Id. 
 
 249. The fact that the bank to which a 
 draft has been sent by a correspondent for 
 collection and credit has become insolvent 
 when it receives notice of the collection 
 from a third bank, to which the paper was 
 forwarded for that purpose, does not change 
 the rule that the bank making the collec- 
 tion is entitled to a lien on the proceeds to 
 balance its account with its correspondent, 
 as against the title of the original trans- 
 mitting bank. Id.
 
 223 
 
 BANKS, IV. b, 2. 
 
 Forgeries. 
 
 Rights of Bank Paying Forged Note Taken 
 for Collection, see Bills and Notes, 238 
 See also supra, 142-144, 163. 
 
 250. A drawee bank which pays a raised 
 check under the mistaken belief that it has 
 not been altered cannot compel the collect- 
 ing bank to refund the excessive amount 
 after it has, in -good faith and without no 
 tice of the fraud, turned the proceeds over 
 to the payee, where the indorsement of the 
 collecting bank is restrictive, and the draw- 
 ee knows that it holds the check merely for 
 collection. Crocker- Woolworth Nat. Bank v. 
 Nevada Bank, 139 Cal. 564, 73 Pac. 456. 
 
 63: 245 
 
 251. A bnnk cannot recover money paid 
 on a raised check from tbe collecting bank, 
 merely because the evidence might justify 
 a presumption that it relied upon the rep- 
 resentations of the latter as to the genuine- 
 ness of the paper, unless the evidence is con- 
 clusive of the fact, where it does not plead 
 such reliance. Id. 
 
 2;/2. Payment to a collecting bank of a 
 check bearing a forged indorsement of the 
 payee's name does not entitle the drawee 
 bank to recover back the proceeds on the 
 theory that the collecting bank had guaran- 
 teed the indorsement, when the drawee had 
 drawn the check on itself, and delivered it 
 to a person who falsely personated the pay- 
 ee named therein, for money to be loaned 
 on a mortsrage. Land Title & T. Co. v. 
 Northwestern Nat. Bank, 196 Pa. 230. 46 
 Atl. 420, 50: 75 
 
 Negligence 3s to protesting and giving no- 
 tice of dishonor. 
 
 253. Instruction to "protest" a note for- 
 warded bv one bnnk to another for the 
 purpose of collection requires everything to 
 be done which is necessary to bind the 
 drawer or indorsers. Williams v. Parks. 
 63 > T eb. 7-17, 80 N. W. 305, 56: 750 
 
 254. A draft having been sent to a bank 
 for collection, with instructions to protest 
 in case of nonpayment, the sender is not re- 
 quired to make examination to find out 
 whether proper notices of dishonor have 
 been served, since that is the duty of the 
 notnry. Id. 
 
 2o.">. A bnnk receivincr for collection a note 
 on wJ'Mi it is an indorser is not relieved 
 of liability by reason of its own failure 
 to make demand and give notice of dishonor. 
 Auten v. Manistee Nat. Bank, 67 Ark. 243, 
 54 S. W. 337, 47: 3<>!) 
 
 256. The negligence of a notary public 
 in failing to learn the residence of an rn- 
 dorsor of an inland draft, and give him 
 pronrr notice of its dishonor, is not charge- 
 able to a ba^k of which he is assistant cash- 
 ier, and which placed the. draft, which it 
 held only for collection, in his hands for 
 protest, although no protest of the draft 
 was remiired by law, but the law recognizes 
 the giving of notices in case of protest as 
 part of the official duty of the notary. 
 First Nat. Bank v. German Bank, 107 Iowa 
 543. 78 N. W. 105, 44: 133 
 
 257. An honest mistake of a banker as to 
 the law concerning holidays and days of 
 
 grace, concerning which able lawyers and 
 judges were not agreed, will not make the 
 bank liable for failure to protest a note 
 until" the day after that on wliich the court 
 finally holds that it should have been done. 
 Morris v. Union Nat. Bank, 13 S. D. 329, 8& 
 N. W. 252, 50: 182 
 
 2. Insolvency. 
 
 See also supra, 206-208, 217, 225, 226, 235- 
 
 237. 
 For Editorial Notes, see infra, VIII. 15, 
 
 20. 
 
 258. A bank which becomes liable to pay 
 a check sent to it for collection, by accept- 
 ing a cashier's check, instead of cash, from 
 the bank on which it was drawn, just be- 
 fore the latter suspends payment, cannot 
 claim the benefit of any payment made in 
 the meantime to the payee of the check by 
 the drawer. Fifth Nat. Bank v. Ashworth, 
 123 Pa. 212, 16 Atl. 593, 2: 401 
 
 250. The retention of worthless drafts 
 after knowledge of the insolvency of the 
 drawer, by a bank which has received them 
 as proceeds of paper forwarded for collec- 
 tion and credited to the depositor before 
 learning of such insolvency, and the subse- 
 quent proof of a claim on the drafts by the 
 bank in its own name, and the receipt of a 
 dividend thereon from the receiver of the 
 drawer, do not relieve the depositor from 
 liability to the bank for the loss sustained 
 on the balance of the drafts. Waterloo 
 Milling Co. v. Kuenster, 158 111. 259, 41 N. 
 E. 906, 29: 794 
 
 Insolvency of tank. 
 See also supra, 241, 249 
 For Editorial Notes, see infra, VCTT. 15, 20. 
 
 260. Sending a draft to a bank for col- 
 lection with instructions to remit in New 
 York exchange, is equivalent to an agree- 
 ment that the money collected may he used 
 by the collecting bank, and precludes the 
 claim that such proceeds are held in trust, 
 where the bank fails before it has paid the 
 collection. Akin v. Jones, 93 Tenn. 353. 27 
 S. W. 660, 25: 523 
 
 261. A bank receiving for collection from 
 a correspondent bank a draft indorsed by 
 the payee in blank, without notice that the 
 correspondent holds the draft for collection 
 only, may, before receiving notice of the 
 insolvency of the correspondent, apply the 
 proceeds in reduction of the correspondent's 
 overdraft, and cannot be compelled by the 
 layee to account therefor. American Exch. 
 Nat. Bank v. Theummler, 195 111. 90, 62 N. 
 E. 032, 58: 51 
 
 202. If a bank, on receiving from another 
 iank commercial paper "for collection and 
 mmediate return," makes the collection and 
 mingles the money collected with its genera! 
 'unds, and thereafter becomes insolvent, 
 laving cash on hand sufficient to cover such 
 ollection, the fund collected must be held 
 o have so lost its identity, that the cash 
 on hand will not be impressed with a trust 
 ien in favor of the bank for which the col- 
 lection was made, as against general cred-
 
 BANKS, IV. c. 2. 
 
 223 
 
 itors. Philadelphia Nat. Bank v. Dowd, 38 
 Fed. 172, 2: 480 
 
 263. A bank which sends paper for col- 
 lection to another bank, which maV'es an as 
 signment for creditors after the money has 
 been collected and paid out in the usual 
 course of its business, occupies a position 
 no different from that of other creditors of 
 the assigning bank, so far as the proceeds 
 of such collections are concerned, where the 
 custom of the assigning bank is to remit 
 the proceeds of collections once a week, and 
 the identical moneys collected upon the pa- 
 per are not expected to be sent to the trans- 
 mitting bank. National Butchers & D. 
 Bank v. Hubbell, 117 N. Y. 384, 22 N. E. 
 1031, 7:852 
 
 264. Where money collected by a bank 
 for another bank, under instructions for im- 
 mediate return, is allowed to remain sever- 
 al months with the collecting bojik, which 
 becomes insolvent without having made re- 
 turn, the bank for which the collection was 
 made will not he considered a cesttii que 
 trttsf, but will be treated as on ordinary 
 creditor. Philadelphia Nat. Bank v. Dowd. 
 38 Fed. 172, 2: 480 
 
 265. Where a national bank contracts to 
 collect drafts and checks for another hank. 
 under which contract it has the right to 
 mingle the proceeds of collections with its 
 own funds and make itself debtor for the 
 amount, its insolvency Avill terminate such 
 right; and the proceeds of a check nronerly. 
 indorsed as for collection, and sent by it to 
 a third bank to be collected, which is not 
 accomplished until after such insolvency. 
 are the property of the principal bank, and 
 may be recovered by it in a suit against 
 such third bank. Manufacturers Nat. Bank 
 v. Continental Bank, 148 Mass. 553, 20 N. 
 E. 103, 2: 630 
 
 266. One who sends a draft for collection 
 to a bank, which, after being advised bv 
 another bank, to which it sends the drnft 
 for the same purnose, that it has been col- 
 lected, credits him with the amount, and 
 afterwords becomes insolvent without hav- 
 ing received the proceeds, is entitled to such 
 proceeds frjm the collecting bank, as 
 against the creditors and receiver of the. 
 insolvent bar-k. Armstrong v. Bovertown 
 Nat. Bank, 00 Kv. 431, 14 S. W. 411, 9: 553 
 
 267. Money collected by a bank for anoth- 
 er on notes or drafts, and retained, does not 
 become a part of the assets of the bank, 
 but is held in trust for the owner, so that, 
 in case the bank becomes insolvent and goes 
 into the hands of a receiver, the person for 
 whom such money is collected is a preferred 
 creditor. State v. Edwards, 61 Neb. 181, 
 85 N. W. 43, 52: 858 
 
 268. Payment to an assignee of an in- 
 solvent bank of overdrafts allowed by the 
 bank, on the faith of which it had canceled 
 drafts held by it for collection, cannot be 
 regarded as payments of such previously can- 
 celed drafts so as to give the sender of 
 them a right to such proceeds as a trust 
 fund. Akin v. Jones, 93 Tenn. 353, 27 S. 
 W. 669, 25: 523 
 
 269. The fraud of a bank in receiving a 
 
 note for collection when insolvent will not 
 alter the rule that collections made under 
 directions to remit "by draft" will not be 
 impressed with a trust giving a preferential 
 claim against the bank's assets. Savles v. 
 Cox, 05 Tenn. 579, 32 S. W. 626, 32: 715 
 
 270. It is not such laches on the part of 
 (he transmitting bank to fail for sixteen 
 days after the recording of the assignment 
 by a bank to give notice of its claim and 
 make demand upon the assignee for the 
 proceeds of the paper belonging to it as will 
 l>ar its right of action to recover them from 
 the assignee, -especially where there is no 
 reason to suppose that he will use its mon- 
 ey to pay his assignor's debts. National 
 Butchers & D. Bank v. Hubbell, 117 N. Y. 
 384. 22 N. E. 1031, 7: 852 
 
 271. The completion of a transfer of cred- 
 it to the payee of a check indorsed "for 
 collection and credit" by the assignee for 
 creditors of an insolvent bank, which just 
 before assignment had charged the check to 
 the' maker, but had not given credit to the 
 payee, will not constitute a payment of 
 the demand for which the check was given. 
 Exchange Bank v. Button Bank, 78 Md. 577, 
 28 Atl. 563, 23: 173 
 
 272. The fact that when a bank received 
 a check upon itself "for collection and cred- 
 it" to another account it was hopelessly in- 
 solvent, and the same day placed its as- 
 sets in the hands of trustees for creditors, 
 shows that its failure to notify the drawer 
 of its neglect to transfer the credit worked 
 no injury to him which would discharge him 
 from liability for the debt for which the 
 check was given. Id. 
 
 c. Other Transactions; Discounts, etc. 
 
 Bank Taking Note as Collateral as Bona 
 Fide Purchaser, see Bills and Notes, 
 261. 
 
 Depositor Giving Check to Bank in Payment 
 for Negotiable Paper as Bona Fide Pur- 
 chaser, see tfills and Notes, 254. 
 
 Rights and Liability of Bank Paying Draft 
 with Bill of Lading Attached, see Bills 
 of Lading, 3-8. 
 
 Furnishing Money to Pay Labor Claims, see 
 Bonds, 18. 
 
 Estoppel of Bank as to Stolen Money, see 
 Estoppel, 135. 
 
 Usury in Transactions, see Usury, I. c. 
 
 For Editorial Notes, see infra, VIII. 17. 
 
 273. A bank is not liable for the libelous 
 protest of a draft sent for collection by a 
 notary employed by it to protest negotiable 
 paper, although he is an employee and 
 agent of the bank. May v. Jones, 88 Ga. 
 308, 14 S. E. 552, 15: 637 
 
 274. A national bank is not bound by the 
 promise, without consideration, of its cash- 
 ier, to pay a draft drawn or to be drawn 
 upon a depositor, since the power so to con- 
 tract is not embraced within those given 
 by U. S. Rev. Stat. 5136, subd. 7, U. S. 
 Comp. Stat. 1901, p. 3456, empowering it 
 to exercise all incidental powers necessary 
 to carry on the business of banking by dis-
 
 224 
 
 BANKS, IV. c. 
 
 counting and negotiating notes, drafts, bills, 
 and other evidences of debt, receiving de- 
 posits, 1-uying and selling exchange, coin, 
 and bullion, loaning money on personal se- 
 curity, and issuing and circulating notes. 
 Flannagan v. California Nat. Bank, 56 Fed. 
 959 23: 836 
 
 275. That a mortgage to cover advances 
 by a bank runs to the cashier individually, 
 and not to the bank, will not prevent its 
 enforcement in favor of the bank, if no one 
 will be prejudiced by the fact that it was 
 taken in that form. Chafey v. Mathews, 
 104 Mich. 103, 62 N. W. 141, 27: 558 
 Guaranty. 
 
 See also supra, 32, 303. 
 
 276. A national bank may guarantee the 
 payment of commercial paper as incidental 
 to the exericse of its power to buy and sell 
 the same. Thomas v. City Nat. Bank, 40 
 Neb. 501, 58 N. W. 943, 24: 263 
 Discounts generally. 
 
 Surrender by Bank of Preference from Bank- 
 , rupt Customer, see Bankruptcy, 45, 46. 
 
 Bank Discounting, as Bona Fide Purchaser, 
 see Bills and Notes, 243, 252. 
 
 Discrimination as to, see Constitutional 
 Law, 514. 
 
 Discounting of Three Notes as Entire Trans- 
 action, see Contracts, 302. 
 
 Imputing to Bank Officer's Knowledge in 
 Matters Concerning, see Notice, 67-70. 
 
 Usury in, see Usury, 33-36. 
 
 See also supra, 2; Fraud and Deceit, 63. 
 
 For Editorial Notes, see infra, VIII. 17. ^ 
 
 277. A discount is a loan upon an evi- 
 dence of debt, where the compensation for 
 the use of the money until the maturity of 
 the debt is deducted from the principal and 
 retained by the lender at the time of making 
 the loan. Youngblood v. Birmingham Trust 
 & S. Co. 95 Ala. 521, 12 So. 579, 20: 58 
 
 277a. A bank does not become a purchas- 
 er of negotiable paper by discounting it for 
 one not its debtor at the time, and placing 
 the amount to the credit of the holder by 
 way of denosit. Warman v. First Nat. 
 Bank, 185 111. 60, 57 N. E. 6, 49: 412 
 
 278. The maker of a note cannot show that 
 a bank which discounted it did not become 
 its purchaser merely by showing that the 
 proceeds were placed to the credit of the 
 transferrer, but must prove by the state 
 of accounts between the bank and the trans- 
 ferrer that it was not such, or had not, by 
 the drawing of the deposit, become such, as 
 to make the bank a purchaser. Id. 
 
 270. Absence of an assignment, or an as- 
 signment without recourse, and the nonac- 
 countability of the assignor for the value 
 of the note, are necessary to make a trans- 
 fer of a note to a bank for value, before ma- 
 turity in the usual course of discounting, 
 and without notice of any infirmity, a bar- 
 ter and sale as distinguished from a dis- 
 count. Nicholson v. New Castle Nat. Bank, 
 92 Ky/251, 17 S. W. 627. 16: 223 
 
 280. The purchase by a bank of a note 
 by a lumping trade which results in a great- 
 er discount than would be produced by an 
 exact calculation at the usual rate does not 
 deprive the paper of its standing as a bill 
 
 of exchange, if the circumstances attending 
 the transaction to show a discount, and not 
 a bargain and sale. Id. 
 
 281. The title of a note and its negotia- 
 bility are not affected by the fact that a 
 national bank discounts it at a usurious 
 rate of interest, although the bank thereby 
 forfeits the entire interest. Id. 
 
 282. Knowledge on the part of a bank ' 
 when discounting drafts that they were 
 given in consideration of a promise to de- 
 liver coal in the future, will not afj'ect its 
 right to enforce payment of them, although 
 the promise is not complied with, if it took 
 the drafts for value before maturity and 
 before the time for delivery had arrived. 
 Tradesmen's Nat. Bank v. Curtis, 167 N. Y. 
 194, 60 N. E. 429, 52:430 
 Discounting for agent. 
 
 283. A bank which, with knowledge that 
 a person holds negotiable paper simply as 
 agent, discounts the paper for the agent's 
 own benefit, relying on his statement that 
 he has secured authority to discount the 
 paper for himself, acts as its peril. Mer- 
 chants' & M. Nat. Bank v. Ohio Valley 
 Furniture Co. 57 W. Va. 625, 50 S. E. 880, 
 
 70: 312 
 
 284. A bank discounting negotiable paper, 
 with knowledge that the person from whom 
 it is taken holds it as agent only, is 
 bound to ascertain the extent of the au- 
 thority of the agent; but, in the absence 
 of knowledge of any limitation upon the au- 
 thority apparently conferred by the princi- 
 pal, it" may rely upon such apparent author- 
 ity. Id. 
 
 285. Knowledge by a bank that a person 
 holds negotiable paper as agent only, pre- 
 cludes the bank from dealing with him, in 
 respect thereto, on the basis of title or own- 
 ership in him. Id. 
 Deceptive credits. 
 
 Question for Jury as to Bank's Liability, 
 
 see Trial, 492. 
 See also supra, 42-47; Fraud and Deceit, 
 
 63, 72. 
 
 286. A bank falsely certifying that an in- 
 surance company has its authorized capi- 
 tal on deposit, for the purpose^of inducing 
 the insurance commissioner to grant it a 
 license, is liable to persons who are damaged 
 by the purchase of the stock in reliance 
 thereon, if it is intended for the informa- 
 tion of all who shall be disposed to deal 
 in the company's stock, or to one who, de- 
 siring to purchase stock, applies to the bank 
 for information, and is referred to the cer- 
 tificate, and who purchases in reliance there- 
 on. Hindmnn v. First Nat. Bank, 50 C. C. 
 A. 623, 112 Fed. 931, 57: 108 
 
 287. That a false entry of a credit by a 
 banker upon the pass book of a customer 
 was not originally intended to mislead a 
 nerson who dealt with the customer on the 
 faith of it do?s not necessarily relieve the 
 hanker of liability for loss incurred by him 
 in reliance upon such credit and the conduct 
 of the banker when inquired of, calculated 
 to induce him to believe that the credit was 
 genuine. -Tames v. Crosthwait, 97 Ca. 673, 
 25 S. E. 754, 36: 631
 
 BANKS, IV. d. 
 
 225 
 
 288. A banker is not liable to a third per- 
 son who deals with a customer upon the 
 faith of an apparent credit to his favor in 
 his pass book, which was ab initio false, 
 but which was immediately canceled by 
 another entry based upon the customer's 
 agreement to draw at once a check for the 
 full amount of the credit, in the absence 
 of other acts of misconduct on the part of 
 the bank. Id. 
 Loaning for customer. 
 
 ^Evidence of Negligence as to, see Evidence, 
 1734, 1941. 
 
 289. A banker who loaned money for a 
 -customer without any compensation for the 
 service is liable for failure to exercise the 
 skill and knowledge of a banker engaged in 
 that business, especially where he had 
 promised to give careful attention thereto. 
 Isham v. Post, 141 N. Y. 100, 35. N. E. 1084, 
 
 * 23: 90 
 
 290. Taking stock as collateral without 
 verification of its validity at the company's 
 office, especially if there is nothing in the 
 appearance of the certificate to excite sus- 
 picion, is not negligence on the part of a 
 banker in making a loan for a customer. 
 
 Id. 
 
 291. A banker making a loan for a cus- 
 tomer on collateral securities is not, for the 
 purpose of avoiding loss on the collaterals, 
 bound to make inquiry as to the solvency of 
 the borrower, if he was reputed to be re- 
 sponsible when the loan was made, and 
 nothing indicated the slightest reason for 
 refusing the loan. Id. 
 
 292. A banker is not chargeable with neg- 
 ligence in loaning a customer's money on 
 raised collateral, if the forgery was such as 
 to deceive any reasonable scrutiny of a fair- 
 ly prudent banker knowing the signatures, 
 Tjut not suspecting fraud in the body of the 
 instrument. Id. 
 
 293. The loaning of money for depositors 
 or other persons is not within the authority 
 of a national bank. Grow v. Cockrill, 63 
 Ark. 418, 39 S. W. 60, 36: 89 
 
 294. A receiver of a national bank is not 
 liable for the act of its president in loaning 
 the money of a depositor, apparently as an 
 accommodation, but really for his own bene- 
 fit, taking a note from the nominal borrow- 
 er secured by stock in the bank which be- 
 comos worthless and the nominal borrower 
 insolvent by the failure of the bank, caused 
 by the misconduct of the president. Id. 
 Note for bank's accommodation. 
 
 295. A bank, or its receiver, cannot recov- 
 er on a note made for its accommodation 
 for nse at the clearing house upon the so-' 
 licitation of its president, who was its sole 
 managing officer. Simons v. Fisher, 5 C. C. A. 
 311, 17 U. S. App. 1, 55 Fed. 905, 20: 554 
 
 296. The wrongful appropriation to his 
 own use, by the managing officer of a bank, 
 of an accommodation note to the bank, or 
 its proceeds, which was obtained by him 
 in the exercise of his power, will not render 
 the maker liable to the bank. Id. 
 
 297. A bank cannot set up its own want 
 of legal capacity to take a note for its own 
 accommodation for use at the clearing 
 
 L.R.A. Dig. 15. 
 
 house, as a basis for the enforcement of 
 payment thereof from the maker. Id. 
 
 Taking check for payment. 
 
 298. A bank receiving a check instead of 
 cash, without authority from its principal, 
 on a sale- of his stock, and crediting his ac- 
 count with the amount of it, is liable to 
 him therefor notwithstanding the fact that 
 the check proves worthless, and irrespective 
 of the question of its diligence in attempt- 
 ing to collect it. Pepperday v. Citizens' Nat. 
 Bank, 183 Pa. 519, 38 Atl. 1030, 39:529 
 Borrowing money. 
 
 299. The fact that an officer authorized 
 to borrow money for a bank is engaged in 
 defrauding it will not prevent the liability 
 of the bank on a loan obtained by him for 
 the bank from another bank which has no 
 knowledge of his fraud. Chemical Nat. 
 Bank v. Armstrong, 16 U. S. App. 465, 31 
 U. S. App. 75, 8 C. C. A. 155, 13 C. C. A. 
 47, 59 Fed. 372, 65 Fed. 573, 28: 231 
 
 300. To charge a national bank on a loan 
 of money, the persons making it must see 
 that the officer or agent acting for the bank 
 has special authority to borrow money, or 
 that his act is ratified. Id. 
 
 d. Clearing House Business. 
 
 Time to Present Checks in City Containing 
 Clearing House, see Checks, 9. 
 
 See also supra, 212, 295-297; infra, 337, 
 338; Checks, 38. 
 
 For Editorial Notes, see infra, VIII. 
 
 301. An arrangement between a clearing 
 house and a bank which is one of its mem- 
 bers and another bank which is not a mem- 
 ber, whereby the latter pays the clearing 
 house a fee for the privilege of being repre- 
 sented by such member, and makes a cer- 
 tain deposit of money and securities with 
 such member in consideration of the lat- 
 ter's agreement to clear through the clear- 
 ing house checks drawn upon the other 
 bank, while . the constitution of the clear- 
 ing house prohibits the discontinuance of 
 such arrangement .without previous notice, 
 which notice shall not take effect until the 
 exchanges of the morning following the re- 
 ceipt of the notice shall have been complet- 
 ed, constitutes a tripartite agreement, up- 
 on ample consideration, for the mutual ben- 
 efit of all the parties who enter into it. 
 O'Brien v. Grant, 146 N. Y. 163, 40 N. E. 
 871, 28: 361 
 
 302. A bank which is a member of a 
 clearing house and bound by contract and 
 the constitution of the clearing house to 
 clear checks drawn on another bank, which 
 is not a member, until the completion of 
 exchanges on the morning after notice to 
 terminate the arrangement, is not relieved 
 from paying such checks on the morning 
 after such notice by reason of the known 
 insolvency of the bank on which they were 
 drawn. Id. 
 
 303. A bank which guaranteed the pay- 
 ment of the checks of another bank that 
 was not a member of a clearing house as- 
 sociation, in order to clear its checks, and,
 
 BANKS, V. 
 
 after the latter bank had made an assign- 
 ment for creditors, and a check thereon 
 which had bee'n certified for the drawers 
 had been refused at the clearing house, paid 
 the chock in pursuance of the guaranty, 
 did not do this as agent of the other bank, 
 but becaine an assignee of the check, with 
 the right to recover thereon against the 
 drawers. Voltz v. National Bank, 158 111. 
 532. 42 X. E. 69, 30: 155 
 
 304. Clearing house rules that paper not 
 owned by a bank, but deposited for clear- 
 ance, shall bear a stamped indorsement 
 which shall guarantee the validity of all 
 prior indorsements, abrogates, as between 
 members of the clearing house, a statutory 
 provision that a general indorsement war- 
 rants that the paper is "in all resnects what 
 it purports to be." Crocker-Woolworth 
 Nat. Bank v. Nevada Bank, 139 Cal. 564. 
 73 Pac. 456, 63:245 
 
 305. The equities and rights arising from 
 express agreement, or implied from the 
 nature of dealings between a national bank 
 and a clearing house association or the 
 other members thereof prior to the closing 
 of the bank, must be preserved and enforced 
 in settling its affairs by a receiver. Yard- 
 ley v. Philler, 10 C. C. A. 562, 62 Fed. 
 645. 17 U. S. App. 647, 25: 824 
 [Reversed by the Supreme Court of the 
 United States in 167 U. S. 344, 42 L. ed. 
 192. 17 Sup. Ct. Rep. 835.] 
 
 V. Insolvency. 
 
 In Case of Collections, see supra, IV. b, 2. 
 
 Assets Passing under Assignment for Credit- 
 ors, see Assignments for Creditors, 59. 
 
 Attachment of Property of Insolvent Bank, 
 see Attachment, 1. 
 
 Demand for Payment of Note on Bank Ex- 
 aminer, see Bills and Notes, 167. 
 
 Officer's Liability on Bond for Loss by Fail- 
 ure of Bank, see Bonds, II. c, 2. 
 
 Federal Jurisdiction of Action by Agent, 
 see Courts, 333. 
 
 Presumption as to, see Evidence, 405, 706. 
 
 Interest on Dividends, see Interest, 55- 
 58. 
 
 Interest on Deposits in Case of, see Inter- 
 est, 77. 
 
 Liability of Probate Judge for Loss of 
 Public Funds by, see Judges, 65. 
 
 Officers' Liability for Loss by Failure of 
 Bank, see Officers, 205, 206. 
 
 Substitution of Agent in Place of Re- 
 ceiver of, see Parties, -219. 
 
 Taking Draft in Payment after Bank's In- 
 solvency, see Payment, 11. 
 
 Rights of Surety Satisfying Claims Due to, 
 see Principal and Surety, 53. 
 
 Receivers for, see Receivers, 15, 17, 66, 
 85. 
 
 Set-Off in Case of, see Set-Off and Counter- 
 claim, 44-53. 66. 
 
 Taxation of Insolvent Bank, see Taxes, 122, 
 170. 
 
 See also supra, 15. 24, 25, 30. 206-208, 303, 
 305; infra, 380, 384, 385; Corpora- 
 tions, 780. 
 
 For Editorial Notes, see infra, VIII. 1&- 
 22, 25. 
 
 306. The general scope of the duties and 
 powers of an agent appointed under the 
 national banking act, in place of a re- 
 ceiver, are those of the receiver and of all 
 receivers winding up an insolvent corpora- 
 tion. McConville v. Gilinour, 36 Fed. 277, 
 
 1: 498 
 
 307. The closing of the doors of a na- 
 tional bank by the comptroller of the cur- 
 rency on account of insolvency, and the 
 appointment of a receiver and placing him 
 in charge of its assets to administer them 
 for the benefit of creditors, does not ex- 
 tinguish the corporation or work a for- 
 feiture of its charter. Hutchison v. Crutch- 
 er, 98 Tenn. 421, 39 S. W. 725, ' 37: 89 
 
 808. On indorsement "for deposit" of a 
 check which is credited as cash by the 
 bank which receives it, and thereafter by 
 indorsement in the same form is trans- 
 ferred to another bank which, in good faith, 
 credits it as cash and pays the proceeds 
 to the former bank, which afterwards makes 
 an assignment for creditors, the title to 
 the check must be held to be in the bank 
 which holds it and has paid for it. Ditch 
 v. Western Nat. Bank, 79 Md. 192, 29 Atl. 
 72, 138, 23: 164 
 
 Rights in deposit after insolvency gener- 
 ally. 
 
 For Editorial Notes, see infra, VIII. 19, 
 2Q. 
 
 309. A cashier's check given to a de- 
 positor as a mere acknowledgment of in- 
 debtedness on the par* of the bank to him, 
 being in legal effect the same as a certifi- 
 cate of deposit or a certified check, does 
 not amount to an assignment to him by the 
 bank of the amount of the check, so as to 
 give him any better right against the re- 
 ceiver of the bank than he would have had 
 by reason of his original deposit. Clark 
 v. Chicago Title & T. Co. 186 111. 440, 
 57 N. E. 1061, 53: 232 
 Rights in deposit taken while insolvent. 
 Election of Remedy as to, see Election of 
 
 Remedies, 56. 
 Estoppel to Demand Return of Full 
 
 Amount, see Estoppel, 241. 
 Evidence as to Insolvency, see Evidence, 
 
 2110. 
 Laches Preventing Relief, i see Limitation 
 
 of Actions, 42. 
 See also supra, 66, 269; infra, 386-395. 
 
 310. A shareholder is not, by reason of 
 his relation to the bank, precluded from 
 recovering back a deposit fraudulently 
 taken by the bank when insolvent. Rich- 
 ardson v. Oliver, 44 C. C. A. 468, 105 Fed. 
 277, 53: 113 
 
 311. Checks and drafts fraudulently re- 
 ceived by a bank after its officers know 
 of its insolvency can be reclaimed if they 
 can be found and are not yet collected and 
 credited when the bank closes its doors. 
 Bruner v. First Nat. Bank, 97 Tenn. 540, 
 37 S. W. 286, 34: 532 
 
 312. The identical proceeds of a check 
 or draft fraudulently received on deposit by
 
 BANKS. V. 
 
 227 
 
 an insolvent bank are sufficiently traced by 
 the depositor when it appears that they 
 are included in a fund paid over to the re- 
 ceiver of the bank by a correspondent as 
 the proceeds of credits made after the bank 
 failed, but before notice thereof to the cor- 
 respondent. Id. 
 
 313. A deposit obtained by fraud when 
 a bank is hopelessly insolvent creates a 
 trust in favor of the depositor, which can 
 be recovered from a receiver of the com- 
 pany, even if the identical money deposit- 
 ed does not pass into his hands, where the 
 funds received by him are in any event 
 increased by the amount of the deposit. 
 Richardson v. New Orleans Debenture Re- 
 demption Co. '42 C. C. A. 619, 102 Fed. 780, 
 
 52: 67 
 
 314. Crediting checks and drafts to a 
 bank which has failed, although done by 
 a correspondent which does not* yet know 
 of the failure, cannot prejudice the rights 
 of persons who deposited such paper in the 
 insolvent bank to recover back their paper 
 or its proceeds, when the deposit was re- 
 ceived after the officers of the bank knew 
 it to be insolvent. Bruner v. First Nat. 
 Bank, 97 Tenn. 540, 37 S. W. 286, 34: 532 
 
 315. Fraud in receiving a deposit of checks 
 or drafts after bank officials know that it 
 is insolvent will not give the depositor a 
 preferential claim against assets in the 
 hands of the receiver of the bank, if the 
 bank before its failure had received the 
 proceeds of such paper or credit therefor 
 from a correspondent, although the bank 
 had on hand when it failed and always 
 after the deposits were made more than 
 the amount thereof in cash. Id. 
 
 316. A cash deposit fraudulently received 
 by an insolvent bank after its officers know 
 of its insolvency cannot be reclaimed from 
 its receiver, when it went into the general 
 funds of the bank and cannot be identi- 
 fied and separated from other funds on 
 hand when the receiver took charge. Id. 
 
 . 317. A credit for a draft given by one 
 bank to another on the same day that the 
 latter failed will not be presumed, in the 
 absence of proof, to have been given after 
 the failure in order to entitle one who de- 
 posited the draft in the insolvent bank after 
 its officers knew it was insolvent to reclaim 
 the proceeds of the draft out of the assets 
 in preference to other creditors who seek to 
 have them distributed pro rat a. Klepper v. 
 Cox, 97 Tenn. 534, 37 S. W. 284, 34: 536 
 318. Depositors in an insolvent partner- 
 ship bank, who take dividends on account 
 of deposits which were voluntarily received 
 after the banker knew of his insolvency, 
 have no greater equities than other con- 
 tract creditors of the firm against the as- 
 sets of a corporation which was entirely 
 owned by one member of the firm. Potts v. 
 Schmucker, 84 Md. 535, 36 Atl. 592, 35: 392 
 Trust fund generally. 
 Following Trust Funds Generally, see 
 
 Trusts, V. 
 
 See also supra, 260-269, 310-318. 
 For Editorial Notes, see infra, VIII. 
 
 20. 
 
 319. A receiver of a bank in which a 
 trust fund was deposited cannot be re- 
 quired to repay it in preference to the 
 claims of other creditors, unless the trust 
 fund can be identified or traced into some 
 other specific fund or property. Marquette 
 Fire & W. Comrs. v. Wilkinson, 119 Mich. 
 655, 78 N. W. 893, 44: 493 
 
 320. The cash found among the assets of 
 an insolvent bank at the time of its failure 
 will be first appropriated to the claim of a 
 beneficiary of trust money which the bank 
 has mingled with its own funds, unless it 
 is affirmatively shown that these cash as- 
 sets are not part of the trust fund. State 
 v. Edwards, 61 Neb. 181, 85 N. W. 43, 
 
 52: 858 
 
 321. The statutory prohibition against 
 preferences in the distribution of assets of 
 insolvent national banks will not prevent a 
 cestui que trust from following trust 
 money held for him by such bank as trus- 
 tee, into any new investment thereof made 
 by the bank, capable of identification, but 
 will prevent its oeing followed after it has 
 lost its identity by being mingled with the 
 funds of the bank. Philadelphia Nat. Bank 
 v. Dowd, 38 Fed. 172, 2: 480 
 
 322. Money received by a banker from 
 one about to lease property, to be kept as 
 security for the performance of his un- 
 dertaking to the property owner, is held 
 by the bank as trustee, and it acquires no 
 title to it as part of its general fund, al- 
 though, in accordance with its plan of book- 
 keeping, it makes out a certificate of de- 
 posit, which it pins to the retained dupli- 
 cate of the receipt given the depositor, and 
 mingles the money with its funds. Wood- 
 house v. Crandall, 197 111. 104, 64 N. E. 
 292, 58: 385 
 
 323. Money deposited in a bank for pay- 
 ment to another person on his presentation 
 of a warranty deed, with abstract showr 
 ing good title to the land, for which the de- 
 positor takes a receipt reciting the pur- 
 pose for which the money is left, consti- 
 tutes a trust fund, and not assets of the 
 bank which can pass to a recei\ r er of the 
 bank, although the bank on receipt of the 
 money gave credit to the depositor, with- 
 out his knowledge or consent, and mingled 
 the money with that of the bank. Kimmel 
 v. Dickson, 5 S. D. 221, 58 N. W. 561, 
 
 25: 309 
 
 323a. The general deposit by an adminis- 
 trator, of moneys of the estate in a hank 
 owned by him, destroys its identity if any 
 portion of the money in the bank is after- 
 ward checked out, so that it is impossible 
 to trace the fund as a trust fund into the 
 hands of the bank's assignee in case of in- 
 solvency, although more than the amount of 
 such deposit remains in the bank. Shute 
 v. Hinman, 34 Or. 578, 56 Pac. 412, 58 Pac. 
 882, 47: 265 
 
 3^4. Money remaining in the vaults of a 
 bank and on deposit by it in other banks 
 when the banker becomes insolvent will 
 be held to constitute part of a trust fund 
 of greater amount, which had been received 
 by the banker; but it is otherwise with
 
 228 
 
 BANKS, V. 
 
 commercial paper representing loans made i 
 by him before assignment. State v. Foster, 
 
 5 Wyo. 199, 38 Pac. 926, 29: 226 
 
 325. In case a bank fails after receiving 
 money to be kept as a trust fund for the 
 benefit of the depositor, the presumption 
 is that enough of the money in its posses- 
 sion when it closes its doors to satisfy it 
 belongs to the trust, and, in case the bal- 
 ance on hand does not equal the trust 
 fund, such balance will all be turned over to 
 the beneficiary. Woodhouse v. Crandall, 
 197 111. 104, 64 N. E. 292, 58: 385 
 Trust in public funds. 
 
 326. Public moneys placed by general 
 deposit in a bank do not establish a trust 
 in the estate of the banker on his insol- 
 vency, except so far as they can be traced 
 into some specific fund or property. State 
 v. Foster, 5 Wyo. 199, 38 Pac. 926, 29: 226 
 
 327. Public moneys deposited by an of- 
 ficer in a bank of which he was a partner 
 constitute a' trust fund, even if he had the 
 legal title to the money. Marquette Fire 
 
 6 W. Comrs. v. Wilkinson, 119 Mich. 655, 
 78 N. W. 893, 44: 493 
 
 328. City funds received on deposit by a 
 banker, but redeposited by him in other 
 banks under an arrangement for sharing 
 in the deposits, under which he receives 
 from them the same interest that he pays 
 the city, and agrees that they shall be 
 drawn only to pay city orders, are held in 
 "trust for the city as against his assignee for 
 creditors. Marquette v. Wilkinson, 119 
 Mich. 413, 78 N. W. 474, 43: 840 
 Rights of holders of checks. 
 
 'See also supra, 308. 
 
 329. The holder of a check drawn by a 
 Ibank which becomes insolvent before its 
 presentation, whereupon the drawee bank, 
 without knowledge of the check, applies 
 the deposit upon its own claims against 
 the insolvent bank, is entitled to be sub- 
 rogated to any collateral which the drawee 
 bank has after its own claims are satisfied. 
 Wyman v. Ft. Dearborn Nat. Bank, 181 
 111. 279, 54 N. E. 946, 48: 565 
 
 330. The insolvency of a national bank 
 and its passing into the hands of a receiver 
 will destroy the right ef holders of its 
 checks to the funds called for by them, 
 even in a state where the holder of a check 
 is regarded as the owner of the fund and 
 entitled to maintain an action for it against 
 the drawee. First National Bank v. Sel- 
 -den. 56 C. C. A. 532, 120 Fed. 212, 62: 559 
 
 331. The inconvenience which will accrue 
 to the drawee of checks of a national bank 
 from suits by holders upon its refusal to 
 pay them when the drawer becomes in- 
 solvent gives it no right to make the pay- 
 ment to the injury of the general creditors 
 of the insolvent bank. Id. 
 
 332. That the comptroller of the cur- 
 rency has taken charge of a bank at the 
 time of the presentation of a check by a 
 third person holding it in the regular course 
 of business does not authorize the applica- 
 tion subsequent to such presentation of the 
 fund to the payment of a note held by 
 the bank against the depositor, as neither 
 
 the comptroller nor the receiver appointed 
 by him has any more right to transfer 
 such fund than the bank itself. Niblack 
 v. Park Nat. Bank. 169 111. 517, 48 N. E. 
 438, 39: 159 
 
 Credits on claims. 
 See also supra, 318. 
 
 333. The claims of creditors of an in- 
 solvent national bank cannot be reduced 
 by any credit for collections from collateral 
 made after the declared insolvency of the 
 bank, whether before or after proof of 
 claims. Chemical Nat. Bank v. Armstrong, 
 16 U. S. App. 465, 31 U. S. App. 75, 8 C. 
 C. A. 155, 13 C. C. A. 47, 59 Fed. 372, 65 
 Fed. 573, 28: 231 
 
 334. The collection by a creditor of an in- 
 solvent bank, after receiving part of his 
 claim out of dividends from its assets, of 
 another part by enforcing the liability of 
 stockholders, will not prevent the computa- 
 tion of subsequent dividends to be paid 
 from corporate assets upon the claim as it 
 originally existed, in the same proportion 
 as is awarded to other creditors. Sacra- 
 mento Bank v. Pacific Bank, 124 Cal. 147. 56 
 Pac. 787, 45: 863 
 Unlawful preferences. 
 
 To Officers, Presumption of Knowledge of 
 
 Insolvency, see Evidence, 312. 
 See also supra, 321, 331. 
 For Editorial Notes, see infra, VIII. 19. 
 
 335. The preference xinder state law of 
 the debt of an insolvent national bank for 
 a lawful deposit by a savings bank is not 
 such a preference as is prohibited by U. S. 
 Rev. Stat. 5236, 5242, U. S. Comp. Stat. 
 1901, pp. 3508, 3517, requiring a ratable dis- 
 tribution among creditors, and prohibiting 
 preferences in contemplation of or after 
 committing an act of insolvency. Elmira 
 Sav. Bank v. Davis, 142 N. Y. 590, 37 
 N. E. 646, 2o : 546 
 
 [Reversed on Other Grounds by -the Su- 
 preme Court of the United States in 161 U. 
 S. 275, 40 L. ed. 700, 16 Sup. Ct. Rep. 502.] 
 
 336. The prohibition, under U. S. Rev. 
 Stat. 5242, U. S. Comp. Stat. 1901, p. 3517, 
 against transfers by a national banking as- 
 sociation after commission of an act of in- 
 solvency or in contemplation thereof, wfth 
 a view to the preference of one creditor, 
 does not include a pledge of its securities 
 to a reasonable amount to raise money to 
 meet an unexpected run, although the bank 
 is then in fact insolvent, if it has not be- 
 come reasonably apparent to its officers that 
 it will presently be unable to meet its ob- 
 ligations, and will be obliged to suspend 
 its ordinarv operations. Armstrong v. 
 Chemical Nat. Bank, 41 Fed. 234, 6: 226 
 
 337. A preference to creditors of an insol- 
 vent bank in violation of the New York 
 corporation law of 1892, chap. 687, 48, 
 prohibiting transfers with intent to give a 
 preference when the corporation is insol- 
 vent or its insolvency is imminent, is not 
 made by the payment of checks drawn on 
 an insolvent bank, in the course of ex- 
 changes at a clearing house, by a member 
 of the clearing house which knew of the in- 
 solvency, but by its contract and the consti-
 
 BANKS, VI. 
 
 239 
 
 tution of the clearing house was under ob- 
 ligation to pay them, and held securities 
 which it was entitled to and did apply to 
 its own reimbursement. O'Brien v. Grant, 
 146 N. Y. 163, 40 X. E. 871, 28: 361 
 
 338. The appropriation on its own claims, 
 by a clearing house, after the closing of a 
 national bank by an examiner, of money 
 paid by other banks on a call by the clear- 
 ing house to take up drafts and checks on 
 the insolvent bank, which they had sur- 
 rendered to its clerk in due course of busi- 
 ness, in an exchange at the clearing house 
 before the bank suspended and which had 
 been left there as security for a balance 
 due from it to the clearing house, is not 
 an unlawful preference, as the subsequent 
 transactions do not rescind the exchange 
 of securities made while the bank was do- 
 ing business; and gives no rigjit of action 
 to the receiver of the bank against the 
 clearing house committee for the amount 
 of the drafts and checks on other banks 
 which it surrendered on the exchange. 
 Yardley v. Philler, 17 U. S. App. 647, 10 
 C. C. A. 562, 62 Fed. 645, 25: 824 
 
 [Reversed by the Supreme Court of the 
 United States in 167 U. S. 344, 42 L. ed. 
 192, 17 Sup. Ct. Rep. 835.] 
 
 339. Payments to a depositor during a 
 run on a bank and after the cashier has per- 
 suaded some persons not to withdraw their 
 deposits, but when the bank has assets 
 sufficient so that its officers hope and ex- 
 pect to continue business and be able to 
 pay all the debts of the bank, are not made 
 with a view to prevent the application of 
 the assets of the bank in the manner pre- 
 scribed by statute, or with a view to the 
 preference of that depositor over other cred- 
 itors, within the meaning of 3 How. (Mich.) 
 Anno. Stat. 3208e6. Stone v. Jenison, 111 
 Mich. .~,!t:>. 70 X. \V. 149, 36: 675 
 
 340. Payment by an insolvent bank of a 
 check of a company in which the president 
 of the bank held most of the stock, and of 
 a note on which its directors are indorsers, 
 although it has not committed the formal 
 act of insolvency, will be held to be an un- 
 lawful preference, whether the estate be 
 administered in equity or under the in- 
 solvent law, and will be set aside in an ac- 
 tion by receivers appointed under Md. Code 
 Gen. Pub. Laws, art. 23, relating to the 
 dissolution of insolvent corporations, art. 
 47, 22, of which prohibits preferences 
 made when insolvent or in contemplation of 
 insolvency. James Clark Co. v. Colton, 91 
 Md. 195, 46 Atl. 386, 49: 698 
 
 341. A withdrawal of the funds of a cor- 
 poration from a bank that is about to fail, 
 under advice of the president of the cor- 
 poration, who also signed a check for the 
 money, although he was also a director of 
 the bank and his knowledge of its condition 
 was acquired by him as such director, does 
 not violate the \e\v YorK stock corpora- 
 tion law, 48, which prohibits any transfer 
 of assets or payment by the bank or any of- 
 licer. director, or stockholder thereof, with 
 intent to prefer any creditor, when the 
 bank is insolvent or its insolvency immi- 
 
 nent. O'Brien v. East River Bridge Co. 
 161 N. Y. 539, 56 N. E. 74, 48: 122 
 
 342. A communication by a director of a 
 bank of his knowledge that it is about to 
 fail, though made to a depositor which is a 
 corporation of which he is president, does 
 not violate the New York stock corpora- 
 tion law, 48, which prohibits a bank 
 which is insolvent or the insolvency of 
 which is imminent, or any officer or director 
 thereof, from giving a preference to any 
 particular creditor by transfer of assets, 
 payment, suffering judgment, the creation 
 of a lien, or the giving of security. Id. 
 
 VI. Savings Banks. 
 
 Bond to, see Bonds, 6. 
 Presumption as to Deduction from Old De- 
 posit, see Evidence, 641. 
 Change of Ownership by Wife's Deposit of 
 
 Husband's Money in, see Husband and 
 
 ^Vife, 56. 
 Imputing Knowledge of Officer to Bank, see 
 
 Notice, 65, 66. 
 Taxation of Mortgages Held by, see Taxes, , 
 
 75. 
 Testamentary Nature of Entry of Account 
 
 in, see Wills, 11. 
 See also supra, 35. 
 For Editorial Notes, see infra, VIII. 9, 
 
 23, 24. 
 
 343. The Kansas banking law of 1891 
 suspended the savings bank act of 1868, and 
 thereafter all savings banks previously or- 
 ganized and engaged in the business of re- 
 ceiving money on deposit were amenable to 
 its provisions. West v. Topeka Sav. Bank, 
 66 Kan. 524, 72 Pac. 252, 63: 137 
 
 344. A corporate debt or liability is creat- 
 ed by a deposit in a savings bank having a 
 capital stock and stockholders, which i 
 organized under Cal. Civ. Code, div. 1, pt. 
 4, tit. 10. Wells v. Black, 117 Cal. 157, 48 
 Pac. 1090, 37: 611) 
 Powers. 
 
 345. A savings institution has power to 
 borrow money. Heironimus v. Sweeney, 83 
 Md. 146, 34 Atl. 823, 33: 99 
 
 346. Speculative dealing in cotton futures 
 is not authorized by a clause in the char- 
 ter of a savings bank giving it power to buy 
 and sell exchange, bullion, bank notes, gov- 
 ernment stocks, and other securities. Jean- 
 son v. Citizens Sav. Bank, 122 N. Y. 135, 25 
 N. E. 264, 9: 708 
 
 347. Where brokers purchase and hold 
 cotton futures in their own names in com- 
 pliance with the orders of a savings bank, 
 there never being any delivery of cotton or 
 other property, or transfer of any title 
 thereto, to the bank, it is not estopped to 
 set up the defense of ultra vires when sued 
 for commissions and the amount expended 
 by the brokers in purchasing the futures. 
 
 Id. 
 
 348. Speculative contracts entered into by 
 a saving bank which is incorporated with 
 the usual powers of receiving on deposit 
 and loaning money and discounting notes, 
 for the sale or purchase of cotton futures,
 
 230 
 
 BANKS, VL 
 
 subject to the hazard and contingency of 
 gain or loss, are ultra vires. Id. 
 
 340. A savings bank with power to re- 
 ceive money on deposit and to discount 
 notes has banking powers, within the mean- 
 ing of 111. Const, art. 11, 5, requiring a 
 statute creating corporations with banking 
 powers to be approved at a general election; 
 and it is immaterial whether it has any 
 stockholders or not. Reed v. People ex 
 rel. Attorney General, 125 111. 592, 18 N. 
 E. 295, 1 : 324 
 
 By-laws, rules, ani agreements. 
 Judicial Notice of, see Evidence, 101. 
 See also infra, 369-377, 383. 
 For Editorial Notes, see infra, VIII. 24. 
 
 350. A depositor in a savings bank is 
 bound by the reasonable rules of the bank, 
 to which he assents by an agreement in 
 writing. Langdale v. Citizens' Bank, 121 
 Ga. 105, 48 S. E. 708, 69- 341 
 
 351. Rules of a savings bank governing 
 its contractual relations with depositors 
 need not be shown to have been adopted 
 formally by vote of the trustees of the in- 
 stitution, to be binding on depositors, if 
 
 . they have been long in use with the knowl- 
 edge and approval of the trustees. Ladd v. 
 Auirusta Sav. Bank, 96 Me. 510, 5?, Atl. 
 1012, 58: 288 
 
 352. A depositor in a savings, bank, who 
 receives a bank book containing rules which 
 affect his contractual relations with the 
 bank and its liability to him, which he 
 reads, will be bound by them if he con- 
 tinues to leave his deposit in the bank and 
 to make additional deposits. Id. 
 
 353. A rule of a savings bank that the 
 institution will not be responsible for loss 
 sustained by payment to a stranger, when 
 the depositor has not given notice of loss 
 of his book, since the officers of the insti- 
 tution may be unable to identify every de- 
 positor transacting business at the bank, 
 does not relieve the officers of the bank 
 from the exercise of reasonable care to pro- 
 tect the interests of the depositor, and 
 prevent loss to him by payment to a per- 
 son not entitled to it. Id. 
 
 3.54-5. A savings bank whose rules permit 
 withdrawal of money by the depositor, "or 
 by any other person duly authorized," acts 
 at its peril as to the genuineness of orders, 
 when it undertakes to make payment to one 
 purporting to hold the order of the deposit- 
 or. Id. 
 
 356. A depositor in a' savings bank, by 
 accepting and using a deposit book, assents 
 to and is bound by the rules printed therein 
 regulating the method of withdrawing 
 money. Chase v. Waterbury Sav. Bank, 77 
 Conn. 295. 59 Atl. 37, G9: 329 
 
 357. Failure of a depositor in a savings 
 bank, who sent his deposit by letter, to 
 assent to the by-laws by subscribing his, 
 name in a book kept for that purpose, will 
 not prevent him from being deemed to have 
 assented to them, where he retains a de- 
 posit book in which such by-laws are print- 
 ed. Gi fiord v. Rutland Sav. Bank, 63 Vt. 
 108, 21 Atl. 340, 11: 794 
 
 358. A by-law of a savings bank declar- 
 
 ing a waiv'er by depositors of all individ- 
 ual liability of officers or stockholders, 
 whether founded upon Constitution or stat- 
 utes of the state, is void, since by-laws must 
 be consistent with the Constitution and 
 laws. Wells v. Black, 117 Cal. 157, 48 Pac. 
 1090, 37: 619 
 
 359. An agreement printed at the top of 
 each page of what is called a "signature 
 book" of a savings bank, below which are 
 ruled lines extending across the page, and 
 under these the spaces divided by perpen- 
 dicular lines, is not made binding on a 
 depositor by his writing his name in one 
 of the ruled columns at the top of which 
 is the word "signature." Id. 
 
 360. By-laws printed in a deposit book 
 given for a deposit in a savings bank, 
 which is a stock corporation the profits of 
 which belong to the stockholders, are not 
 conclusively presumed to receive the assent 
 of the depositor, at least where he is not 
 well acquainted with the English language, 
 although it is provided therein that he 
 will assent before his deposit can be re- 
 ceived. Ackenhausen v. People's Sav. Bk. 
 110 Mich. 175, 68 N. W. 118, 33: 408 
 
 361. An agreement between a depositor 
 and a savings bank that the accruing semi- 
 annual interest shall be left in the institu- 
 tion to draw interest as a new principal 
 is valid. Heironimus v. Sweeney, 83 Md. 
 146, 34 Atl. 823, 33: 99 
 Negotiability of order on. 
 
 See also infra, 367. 
 
 362. An order on a savings bank is not 
 negotiable when upon its face, although be- 
 low the signature, it says: "The bank book 
 
 | of the depositor must accompany this or- 
 der," since this constitutes a contingency 
 which mav impair its circulation. White v. 
 Gushing. 88 Me. 339, 34 Atl. 164, 32: 590 
 
 363. An order on a savings bank, which 
 has at the top the words "Return notice 
 ticket with this order," and at the bottom 
 the words "Deposit book must be at bank 
 before money can be paid," is not negoti- 
 able, as the production of such ticket and 
 book are conditions of payment. Iron City 
 Nat. Bank v. McCord, 139 Pa. 52, 21 Atl. 
 143, . 11:559 
 Rights in deposits generally. 
 
 Election of Remedy by Depositor, see Elec- 
 tion of Remedies, 45. 
 
 For Editorial Notes, see infra, VIII. 9, 
 24. 
 
 364. Savings -banks in Massachusetts do 
 not. by mere force of their relation to their 
 depositors, under the statutes of that state, 
 undertake absolutely to pay depositors In 
 full at all events. Their undertaking is, in 
 effect, to pay each depositor in full, with 
 his dividends, provided the assets are suf- 
 ficient; and if not sufficient, then to pay 
 each one his proportionate share. Lewis v. 
 Lynn Sav. Inst. 148 Mass. 235, 19 N. E. 365, 
 
 1:785 
 
 365. Losses sustained by a savings bank 
 may be deducted by its officers from the 'de- 
 
 | posits pro rata ; and if a depositor accepts, 
 without objection, the balance found due 
 him after such deduction, as a settlement
 
 BANKS, VI. 
 
 231 
 
 and payment of his deposit, he is, in the 
 absence of fraud, bound thereby. Id. 
 
 366. The entry by a savings bank of a 
 credit in a pass book will not estop it from 
 denying that a deposit was made, as against 
 an assignee of the account, where the entry 
 was procured by fraud, and the bank made 
 it without knowledge of the material facts 
 or any intention that the representation 
 should be acted on, especially where the 
 assignee is not a bona fide holder. Mc- 
 Caskill v. Connecticut Sav. Bank, 60 Conn. 
 300, 22 Atl. 568, 13: 737 
 Assignment of deposit. 
 
 Collusiveness of Trial Court's Finding as 
 to, see Appeal and Error, 779. 
 
 Gift of Deposit, see Gift, 20-24, 38, 58- 
 65. 
 
 367. A savings-bank pass book is not a 
 negotiable instrument, either by itself or 
 in connection with an order signed by the 
 depositor directing payment to a third 
 person or bearer; nor can it be made so by 
 contract. The account may be transferred, 
 but the assignee takes it subject to the 
 equities and defenses between the original 
 parties, in the absence of facts creating an 
 estoppel. McCaskill v. Connecticut ka.v. 
 Bank, 60 Conn. 300, 22 Atl. 568, 13: 737 
 
 368. A transfer of a savings bank account 
 to a new account in the names of the for- 
 mer depositor and his wife, making it sub- 
 ject to the order of either and to survivor- 
 ship on the death of either, partakes some- 
 what of the nature of an equitable assign- 
 ment, and entitles the wife to the fund 
 after the husband's death. Metropolitan 
 Sav. Bank v. Murphy, 82 Md. 314, 33 Atl. 
 640, 31:454 
 Payment to wrong person. 
 
 Judicial Notice as to, see Evidence, 101. 
 Question for Jury as to, see Trial, 490, 
 
 491. 
 For Editorial Notes, see infra, VIII. 24. 
 
 369. A rule of a bank that payment made 
 to a person presenting a pass book shall be 
 good and valid on account of the owner, 
 unless the pass book has been lost and no- 
 tice in writing given to the bank before 
 such payment is made, is reasonable and 
 binding upon depositors. Langdale v. Citi- 
 zens' Bank, 121 Ga. 105, 48 S. E. 708, 
 
 69: 341 
 
 370. Payment of a savings-bank deposit 
 to the wrong person on his presenting the 
 deposit book claiming to be the -depositor 
 and giving correct answers as to the mode 
 of deposit, which was by letter, where the 
 depositor is unknown at the. bank and has 
 not given notice of the loss of his book, 
 will not make a bank liable to the latter, 
 where the by-laws require the deposit book 
 to be produced in order to draw the money, 
 and that immediate notice of its loss must 
 be given, and expressly deny responsibility 
 for loss by payment to the wrong person 
 if such notice has not been given. Gifford 
 v. Rutland Sav. Bank, 63 Vt. 108, 21 Atl. 
 340, 11:794 
 
 371. Under a rule of a bank that payment 
 to a person presenting a pass book shall 
 be good on account of the owner, unless 
 
 the book has been lost and notice in writ- 
 ing given to the bank, where a pass book is 
 presented by a person other than the de- 
 positor to whom it belongs, together with 
 a forged check bearing a signature similar 
 to that of the depositor, and there is noth- 
 ing to arouse the suspicion of the teller, 
 or put him upon inquiry, as a reasonably 
 prudent man, as to the genuineness of the 
 check, and the bank in good faith pays the 
 check, believing the person presenting it to 
 be the depositor, it is not liable in a suit 
 by the depositor to recover the money so 
 paid, notwithstanding another rule of the 
 bank, that depositors must always present 
 their pass books when depositing or with- 
 drawing money, and that, "if not present 
 personally, an order properly signed and 
 witnessed must accompany the presenta- 
 tion of the book in case of withdrawal." 
 Langdale v. Citizens' Bank, 121 Ga. 105, 48 
 S. E. 708, 69: 341 
 
 372. A by-law of a savings bank which is 
 organized under the general banking law, 
 and the profits of which belong to stock- 
 holders, and not to the depositors, must be 
 brought to the attention of a depositor and 
 his assent actually or impliedly given there- 
 to before it can operate to relieve the bank 
 from liability to repay him his deposit be- 
 cause of payment to another person who 
 had presented the book without authority 
 and forged the depositor's name. Acken- 
 hausen v. People's Sav. Bank, 110 Mich. 175, 
 68 N. W. 118, 33: 408 
 
 373. Active vigilance to detect fraud and 
 forgery is due by savings-bank officers to a 
 depositor on paying the deposit to one pre- 
 senting the pass book, although the by-laws 
 provide that the bank will not be responsi- 
 ble for fraud in presenting the bank book 
 and drawing the money, where they also 
 require its presentation by the owner, or 
 his agent duly constituted by a writing 
 signed and acknowledged, as a condition 
 of payment. Kummel v. Germania Sav. 
 Bank/127 N. Y. 488, 28 N. E. 398, 13: 786 
 
 374. A regulation printed in the deposit 
 books of a savings bank relieving the bank 
 from liability for any fraud that may be 
 practised on its officers in withdrawing 
 money by means of forged certificates, does 
 not relieve the bank from its duty to exer- 
 cise ordinary care to prevent payment to 
 the wrong person. Chase v. Waterbury Sav. 
 Bank, 77 Conn. 295. 59 Atl. 37, 69: 329 
 
 375. Failure of the officers of a savings 
 bank to make a physical comparison of 
 the signature on a draft presented with a 
 depositor's bank book with his signature 
 on file will render it liable for paying out 
 money on a forged draft, in the absence 
 of some unusual and pertinent excuse which 
 will justify such failure. Kelley v. Buf- 
 falo Sav. Bank, 180 N. Y. 171, 72 N. E. 
 995. 69: 317 
 
 376. Negligence of a depositor in a sav- 
 ings bank in failing to keep his deposit 
 book where it will not fall into the hands 
 of persons who will fraudulently withdraw 
 the deposit does not relieve the bank from 
 liability in case it is guilty of negligence
 
 232 
 
 BANKS, VII. 
 
 in paying out a deposit to one not au- 
 thorized to receive it. Chase v. Waterbury 
 Sav. Bank, 77 Conn. 295, 59 Atl. 37, 
 
 69: 329 
 
 377. A depositor in a savings bank is 
 not estopped to hold the bank responsible in 
 case it negligently pays the deposit to an 
 unauthorized person by the fact that he 
 also is negligent in the care which he takes 
 of his bank book. Id. 
 
 377a. A savings bank having thousands 
 of depositors does not exercise reasonable 
 care to protect them from loss by payment 
 of accounts to strangers, where the only 
 proof of identity it requires is the posses- 
 sion of the bank book. Ladd v. Augusta 
 Sav. Bank, 96 Me. 510, 52 Atl. 1012, 
 
 58: 288 
 
 Paying out deposit after depositor's death. 
 To Foreign Executor, see Executors and 
 
 Administrators, 39. 
 See also infra, 379. 
 
 378. Ordinary care, under the circum- 
 stances of each particular case, is the 
 measure of tne duty of a savings bank in 
 paying money out of a depositor's account 
 after his death, upon production of the bank 
 book and the presentation of a draft pur- 
 porting to bear his signature, when the 
 bank has no actual notice of the depositor's 
 death, and nothing has transpired to charge 
 it with knowledge of that fact. ' Kelley v. 
 Buffalo Sav. Bank, 180 N. Y. 171, 72 N. E. 
 995, 69: 317 
 Trusts. 
 
 Trust in Deposit Generally, see Trusts, 15- 
 
 22. 
 For Editorial Notes, see infra, VIII. 9. 
 
 379. Payment by a savings bank of a de- 
 posit on account of one person in trust for 
 another, to the depositor's administrator, is 
 good and effectual to discharge the savings 
 bank, in the absence of any notice from 
 the beneficiary, where the by-laws of the 
 bank authorized by law provided for pay- 
 ment on the death of a depositor to his 
 legal representatives. Schluter v. Bowery 
 Sav. Bank, 117 N. Y. 125, *2 N. E. 572, 
 
 5:541 
 Insolvency. 
 
 380. A savings institution which has re- 
 ceived and appropriated to the purposes of 
 its business a special deposit under circum- 
 stances which gave the stockholders every 
 opportunity to know of the transaction 
 must, in case of insolvency, return it be- 
 fore the stockholders can claim any of its 
 assets, whether it had power to receive 
 the deposit or not. Heironimus v. Sweeney, 
 83 Md. 146, 34 Atl. 823, 33: 99 
 
 381. A special deposit of money at in- 
 terest with a savings institution, the regu- 
 lar depositors in which are stockholders, 
 must, in case of insolvency of the institu- 
 tion, be repaid before the regular deposit- 
 ors are entitled to a dividend out of its 
 assets. Id. 
 Liability of officers. 
 
 For Editorial Notes, see infra, VIII. 4. 
 
 382. Directors of savings banks are per- 
 sonally responsible for frauds and losses 
 resulting from gross negligence and inatten- 
 
 tion to the duties of their trust. Marshall 
 v. Farmers & M. Sav. Bank, 85 Va. 676, 8- 
 S. E. 586, 2: 534 
 
 383. Where, instead of meeting every 
 week, as required by their by-laws, the 
 directors of a savings bank met, in some 
 years, but once or twice, and never caused 
 the books of the bank to be examined, or 
 called for a statement of their accounts 
 with other banks, while their vaults and 
 cash drawer were emptied by illegal ab- 
 stractions and insolvent loans; and while 
 one of them was president of an insolvent 
 railroad company, and knew its condition, 
 and secured himself, its notes to the bank 
 for a large sum were allowed to become 
 worthless, although there was nothing to- 
 show dishonesty or bad faith, they were 
 held guilty of such negligence as made them 
 liable for losses to depositors, occasioned 
 by the insolvency of the bank. Idi 
 
 VII. Crimes. 
 
 Conviction for Embezzlement Under Indict* 
 ment for Misapplying Funds, see Em- 
 bezzlement, 1. 
 
 Indictment for, see Indictment, etc., 113,. 
 114. 
 
 384. An agent appointed to wind up the 
 affairs of an insolvent bank is subject to- 
 indictment under U. S. Rev. Stat. 5209, 
 U. S. Comp. Stat. 1901, p. 3497, in case he 
 wilfully misapplies its funds, although such 
 office was not created by statute, since it 
 has long been recognized as permitted by 
 law, and the word "agent" is used in the 
 statute as descriptive of those subject to 
 its provisions. Jewett v. United States, 
 41 C. C. A. 88, 100 Fed. 832, 53: 568- 
 
 " 385. That an agent to wind up the affairs 
 of an insolvent bank was appointed by vote 
 of the stockholders does not make him their 
 individual agent, rather than the agent of 
 the corporation so as to take him out of 
 the provisions of U. S. Rev. Stat. 5209, 
 U. S. Comp. Stat. 1901, p. 3497, which pro- 
 vides for the punishment of agents of banks- 
 who misapply the bank funds. Id. 
 
 Taking deposit when insolvent. 
 Due Process of Law as to, see Constitu- 
 tional law, 681. 
 Inference o f Fraud, see Constitutional Law,. 
 
 921, 922; Jury, 68. 
 Evidence as to, see Evidence, 1008. 
 Validity of Provision for Imprisonment for,. 
 
 see Imprisonment, 1. 
 Indictment of Banker, see Indictment, etc. 
 
 21, 63. 
 
 Sufficiency of Verdict, see Trial, 919. 
 For Editorial Notes, see infra, VIII. 25. 
 386. A banker who receives money, know- 
 ing that he is insolvent, but puts it into a 
 special envelope with intent to return it to- 
 the depositor, which is afterwards done,, 
 without making the money at any time part 
 of the funds of the bank, is not guilty of re- 
 ceiving money from a depositor with knowl- 
 edge that the bank is insolvent, which un- 
 der Pa. Laws 1889, 1, is declared to b
 
 BANKS, VIII. 
 
 233 
 
 embezzlement. Com. v. Junkin, 170 Pa. 
 194, 32 Atl. 617, 31: 124 
 
 387. A banker who fails to repudiate the 
 act of his son in receiving a deposit con- 
 trary to his instructions, an hour or two 
 before the bank finally closed and when its 
 insolvency was known, and who fails to re- 
 turn the money, but within four days after 
 its receipt includes it in a general assign- 
 ment for the benefit of creditors, is guilty 
 of accepting and receiving the deposit 
 knowing himsQlf to be insolvent, in viola- 
 tion of the Iowa statute. State v. Eifert, 
 102 Iowa, 188, 65 N. W. 309, 71 N. W. 248, 
 
 38: 485 
 
 388. A certificate of deposit for money 
 received by an insolvent bank, providing 
 that the money shall not be subject to 
 check, but shall be payable, with interest, in 
 one year on return of the certificate, does 
 not makf the transaction a loaji instead of 
 a deposit, or take it out of the operation 
 of Wis. Rev. Stat. 4541, making it an of- 
 fense punishable by imprisonment to re- 
 ceive money on deposit in a bank when the 
 one receiving it knows, or has good reason 
 to know, that the bank is unsafe or in- 
 solvent. State v. Shove, 96 Wis. 1, 70 N. 
 W. 312, 37: 142 
 
 389. The mere fact that a portion of the 
 deposit received by an insolvent bank was 
 made by the surrender of a certificate of 
 deposit held against the same bank, and 
 the accrued interest thereon, does not re- 
 lieve .the bank from the criminal liability 
 imposed by statute for receiving a deposit 
 when insolvent. Id. 
 
 390. The loss of a deposit in an insolvent 
 bank is sufficientlv established within the 
 meaning of Ind. Rev. Stat. 1894, 2031, de- 
 fining embezzlement as receiving deposits 
 in such banks, by proving the insolvency 
 of the bank at the time of the deposit, and 
 that by reason thereof it has not been 
 repaid. State v. Beach, 147 Ind. 74, 46 N. 
 E. 145, 36: 179 
 
 391. A bank receiving a deposit while in- 
 solvent has no right to apply it upon an un- 
 matured note of the depositor, so as to 
 avoid criminal liability for receiving the 
 money during insolvency, especially when 
 there is a large balance due to the depositor 
 before the deposit in question is made. Id. 
 
 392. A depositor of money in an insol- 
 vent bank is not indebted to it within the 
 meaning of Ind. Rev. Stat. 1894, 2031, so 
 as to relieve the banker from criminal 
 liability, merely because the bank holds his 
 unmatured note while a much larger sum 
 is due him from the bank. Id. 
 
 393. Money received by a banker when 
 insolvent is lost to the depositor within 
 the meaning of a statute making the bank- 
 er guilty of embezzlement if when insol- 
 vent he receives a deposit which is lost to 
 the depositor when the banker closes his 
 doors, leaving some portion of the amount 
 so deposited unpaid. Meadowcroft v. Peo- 
 ple, 163 111. 56, 45 X. E. 303, 35: 176 
 
 394. Demand for return of a bank deposit 
 is waived by the banker when he suspends 
 payment, discontinues business, and closes 
 
 his doors against creditors and depositors. 
 
 Id. 
 
 395. Tender of the amount of the deposit 
 at the trial of an indictment for receiving 
 a bank deposit when insolvent, whereby it 
 is lost to the depositor, will not defeat the 
 prosecution. IcU 
 
 VIII. Editorial Notes. 
 
 As to Matters of Stock and Stockholders 
 Generally, see Corpora- 
 tions, VIII. 19-46. 
 
 a. In general. 
 
 i. Generally. 
 
 Constitutionality of statute prohibiting 
 private banking. 15: 477. 
 
 Nature and privileges of state bank. 29: 
 378. 
 
 Nature and relation to state of incorporated 
 bank belonging to it. 29: 
 378. 
 
 Forfeiture or other effect of taking or re- 
 serving illegal interest by 
 national bank. 56: 673. 
 
 Restrictions on transfer of stock of national 
 bank. 27: 273. 
 
 Right to issue attachment against national 
 bank. 6: 226.* 
 
 2. Taxation. 
 
 As to Corporate Taxation, General ly^ see 
 Taxes, VI. 11-15. 
 
 Taxation of banking corporations in the 
 United States as affected 
 by the contract clause in 
 the Federal Constitution. 
 60: 60, 86. 
 
 State taxation of national banks. 45: 737. 
 
 Of franchise. 57: 56. 
 
 Taxation of bank deposits. 57: 72. 
 
 3. Jurisdiction. 
 
 Question relating to national banks a* 
 Federal question. 62: 536. 
 
 Jurisdiction of state courts over actions by 
 or against national banks. 
 48: 35. 
 
 b. Officers and agents. 
 
 4. Duties and liability of. 
 Care required of bank directors. 15: 305.. 
 As to the corporation and stockholder. 
 
 15: 305. 
 
 As to third parties. 15: 308. 
 Liability of savings bank directors. 2: 535.* 
 5. Authority. 
 
 Power of agents to indorse negotiable- 
 paper. 27:401. 
 
 c. Banking, 
 i. In general; deposits. 
 
 6. Generally. 
 
 Banking customs. 21:440. 
 
 Relation of bank to depositors. 2: 491;* 
 9:108;* 12:791;* 13:370.* 
 
 Relation between bank officials and depos- 
 itors. 13: 371.*
 
 BANKS, VIII. (Ed. Notes.) 
 
 234 
 
 Deposit tickets given by bank. 17: 580. 
 Entries in bank books as contracts. 24: 
 
 737. 
 
 Statement of account. 27: 820. 
 Transfer of deposit by assignment and de- 
 livery of pass book. 13: 
 737.* , 
 
 Right of set-off, in case of bankruptcy, in 
 respect of banking trans- 
 actions and commercial 
 paper, generally. 55: 48, 
 53, 59, 64, 70. 
 
 When statute of limitations begins to run 
 against depositor. 1 : 
 319.* 
 
 7. Application. 
 As to Bank's Right of Set-off, see infra, 
 
 Vlll. 13. 
 
 Application of depositor's money. 9: 560.* 
 Application by bank of individual partner's 
 deposit on firm debt. 23: 
 111. 
 
 8. Special deposit. 
 
 When a deposit is special so that the title 
 remains in the depositor. 
 16: 516. 
 
 Care required of bank in keeping. 32:769. 
 Liability of national banks for loss of. 
 
 32: 770. 
 Measure of care required generally. 32: 
 
 771. 
 
 General rulings. 32: 774. 
 Delivery to wrong person. 32: 775. 
 Misappropriation by bank.' 32: 775. 
 Misappropriation by officer. 32: 776. 
 Retention of. dishonest officer. 32: 
 
 776. 
 
 Trover. 32: 776. 
 Recovery back of. 4: 328.* 
 9. Trust in, or gift of, deposit. 
 See also infra, VIII. 20. 
 Deposit as direct trust. 8: 648.* 
 Gift of deposit. 1:356;* 5:72;* 6:405;* 
 
 11: 686.* 
 
 Effect of delivery of bank book to sustain 
 gift of money in bank. 3: 
 230;* 11: 686;* 18: 171; 
 19: 700. 
 
 Effect of depositing money in bank in trust 
 for third person. 32: 373. 
 What sufficient to show trust general- 
 ly. 32: 373. 
 Effect of making third person trustee. 
 
 32: 374. 
 
 Where deposit is made for a purpose 
 
 other than to pass title. 
 
 32: 374. 
 
 Effect of subsequent acts of depositor. 
 
 32: 375. 
 
 Rights and ^abilities of representative 
 of deceased depositc*-. 32: 
 375. 
 
 Liability of bank or other depositary, or 
 of drawee, for taking de- 
 posit of agent, fiduciary 
 or other representative to 
 pay his own debt. 52: 
 790. 
 
 Check or draft drawn by agent, fiducia- 
 ry, etc. 52: 791. 
 
 Where same is on its face drawn 
 in fiduciary or represen- 
 tative capacity. 52: 791. 
 Where same does not show agency 
 or representative charac- 
 ter. 52: 798. 
 
 Depositary applying trust, etc., funds 
 to its own claim against 
 agent, etc. 52: 799. 
 10. Paying out deposits. 
 See also infra, VIII. 24. 
 Pass book as evidence of fight to draw 
 
 money. 13: 737.* 
 Liability to depositors for payment of al- 
 tered or raised check or 
 forged paper. 2:96:* 7: 
 596,* 849;* 12: 793.* 
 Duty of bank in paying check. 6: 626;* 7: 
 
 490.* 
 Drawee's duty to know signature of drawer. 
 
 27: 635. 
 
 Duty of bank. 27: 635. 
 In general. 27: 635. 
 Negligence or fault of party ob- 
 taining payment. 27: 637. 
 Duty of other parties. 27: 639. 
 Duty of depositor in respect to forged 
 checks chargeu to him by 
 the bank. 27: 426; 36: 
 539. 
 
 As to forged indorsements. 27: 428. 
 As to raised or altered checks. 27: 
 
 429. 
 Examination intrusted to agent. 27: 
 
 429. 
 
 As to Liability of Person Whose Signature 
 is Forged on Commercial 
 Paper, Generally, see Bills 
 and Notes, VII. 5. 
 Check or bill issued, or indorsed, to im- 
 postorwho must bear 
 loss. 50: 75. 
 
 Theory of actual intent. 50: 75. 
 Impostor assuming to act as agent of 
 
 payee. 50: 80. 
 
 Check or bill sent by mail. 50: 81. 
 Applicability of rule as to fictitious 
 
 payees. 50: 82. 
 Theory of estoppel. 50: 83. 
 11. Checks. ., 
 
 See also supra, VIII. 10. 
 As to Matters Not Involving Duty or Lia- 
 bility of Bank, see Checks, 
 VI. 
 
 Banking customs as to. 21: 443. 
 What constitutes bank check. 7: 489.* 
 Effect of certification of. 12: 492.* 
 On liability of drawer. 16: 510. 
 Of parol certification. 7 : 428.* 
 Indorsement of, "For deposit." 23: 164. 
 Right to stop payment of. 30: 845. 
 Liability of bank for refusal to pay. 15: 
 
 134. 
 
 I?,. Certificates of deposit. 
 Defense against, when transferred after 
 
 maturity. 46: 809. 
 Maturity of. 15: 387. 
 13. Bank's lien or right of set-off against 
 
 depositor. 
 Lien on deposits. 6: 227.*
 
 BANKS, VIII. (Ed. Notes.) 
 
 235 
 
 Bank's right of set-off when depositor be- 
 comes bankrupt. 55:48, 
 53, 63, 70. 
 
 Right of bank to set off unmatured claim 
 
 against deposit account 
 
 of its insolvent debtor. 
 
 15: 710. 
 
 In case depositor dies insolvent. 15: 
 
 711. 
 
 Effect of presentation of check against 
 , the fund. 15: 711. 
 
 2. Collections. 
 
 14. Generally. 
 
 Banking customs as to. 21: 442. 
 
 For whom is collecting bank agent. 2: 
 
 699;* 4:422;* 8:42.* 
 15. Title to, and disposition of, collection 
 
 of funds. 
 When collecting bank becomes insolvent. 
 
 7 : 859.* 
 Trust in proceeds of collection by insolvent 
 
 bank. 32: 715. 
 
 When paper indorsed in blank. 7: 852.* 
 When paper indorsed "for collection." 7: 
 
 852;* 8: 42.* 
 Banking custom as to treatment of check 
 
 deposited "for collection." 
 
 21: 443. 
 What gives collecting bank right to apply 
 
 proceeds. 7: 854.* 
 Effect of custom or course of dealing. 7: 
 
 855.* 
 Right to set off collection against amount 
 
 due to bank. 2: 700.* 
 
 16. Duty and liability of collecting bank. 
 Generally. 7: 857.* 
 Liability of collecting bank for neglect of 
 
 agent. 8: 44.* 
 
 Sending directly to drawee bank. 27: 248. 
 Effect of banking custom as to. 21: 
 
 443. 
 
 What agent may accept in pavment of col- 
 lections. 2: 491.* 
 
 3. Other transactions; discounts. 
 
 17. Generally. 
 
 Transmission of money for benefit of third 
 party. 4: 328.* 
 
 Purchase of notes and bills by bank as dis- 
 tinguished from discount- 
 ing. 16: 223. 
 
 What is discounting. 16: 223. 
 Whether discounting includes buying 
 
 and selling. 16: 223. 
 Application of usury laws. 16: 224. 
 
 Clearing-house business. 25: 824. 
 
 Liability of bank as accommodation in- 
 dorser. 23: 836. 
 
 Nature of drafts bv one bank on another. 
 23*: 173. 
 
 Effect of national bank reserving illegal 
 interest. 56: 673. 
 
 4. Clearing-house business. 
 
 i7 l /2. Generally. 
 Clearing-house business. 25: 824. 
 
 Origin and description. 25: 824. 
 
 Rights and liabilities of clearing- 
 houses. 25: 825. 
 
 Clearing-house loan certificates. 25: 
 826. 
 
 Clearing-house duebill. 25: 826. 
 
 Presentation and payment through 
 
 clearing-house. 25: 826. 
 Return of paper not good after receiv- 
 ing it through clearing- 
 house. 25: 827. 
 
 Effect of clearing-house rules and cus : 
 toms. 25: 830. 
 
 Agency of clearing-house members. 
 25: 830. 
 
 Gold clearing-house. 25: 830. 
 
 Country clearing-house of London. 
 25: 831. 
 
 Miscellaneous. 25: 831. 
 
 Collection made through clearing-house. 
 2: 700.* 
 
 d. Insolvency of .bank. 
 
 18. Generally. 
 See also infra, VIII. 25. 
 Liability of executor or trustee for loss of 
 funds through failure of 
 bank. 14: 103. 
 
 Deposit awaiting investment. 14: 103. 
 Continuing deposit made by testator. 
 
 14: 104. 
 Requisite character of deposit. 14: 
 
 105. 
 Deposit contrary to order of court. 14: 
 
 105. 
 
 Losing control of funds. 14: 105. 
 Loss caused by war. 14: 106. 
 Liability on official bond for loss by bank 
 
 failure. 22: 449. 
 
 19. Preferences; set-off against bank. 
 Payment of depositor during a run on a 
 bank as an unlawful pref- 
 erence. 36: 675. 
 
 Exceptions to the prohibition of preferences 
 by insolvent national 
 banks. 25: 546. 
 Priority by reason of trust character of 
 
 deposit. 25: 546. 
 Transfers by insolvent national banks. 
 
 25: 548. 
 Right of debtor of insolvent bank to set off 
 
 demand. 2:273.* 
 
 When debt to bank not mature at time 
 of bank's insolvency. 17: 
 .456. 
 
 20. Trust in funds. 
 Trust in deposit in insolvent bank. 34: 
 
 532. 
 Receiving deposit when insolvent, a 
 
 fraud. 34: 533. 
 
 How far trust exists. 34: 534. 
 Right to follow money. 34: 535. 
 Right to follow commercial paper. 34: 
 
 536. 
 
 Trust in proceeds of collection made by 
 bank when insolvent. 32: 
 715. 
 
 As against claims of bank's represen- 
 tative. 32: 715. 
 Where title has passed to bank. 
 
 32: 715. 
 
 Effect of insolvency at time of re- 
 ceiving paper. 32: 715.
 
 236 
 
 BANKS, VIII. (Ed. Notes.) BAR ASSOCIATION. 
 
 Where title has not passed, and 
 the paper or its proceeds 
 are in hands of receiver. 
 32: 716. 
 
 Proceeds capable of distinct iden- 
 tification. 32: 716. 
 Where bank has received no fund. 
 
 32: 717. 
 
 Where proceeds have been mixed 
 by bank with its own 
 funds. 32: 719. 
 Taking trust money out of general 
 
 fund. 32:* 7 19. 
 
 As against claims of subagent. 32: 720. 
 When title in collecting agent. 
 
 32: 720. 
 In case of restrictive indorsement. 
 
 32: 721. 
 
 Effect of knowledge by subagent of 
 true condition of title. 
 32: 721. 
 Rule where the indorsement is in 
 
 blank. 32: 721. 
 
 Priority in assets of insolvent national bank 
 by reason of trust char- 
 acter of deposit. 25: 546. 
 21. Right of set-off. 
 Right of debtor of insolvent bank to set 
 
 off demand. 2: 273.* 
 By or against insolvent bank. 17:456. 
 Right to set off against insolvent bank 
 claims purchased after in- 
 solvency. 21: 282. 
 
 Depositor's right of set-off when bank be- 
 comes bankrupt. 55: 48. 
 52, 62, 70. 
 
 22. Liability of stockholders. 
 Liability of Stockholders of Corporation, 
 Generally, see Corpora- 
 tions, VIII. 35-43. 
 
 Contingency of liability of stockholders in 
 national bank as affecting 
 time for presentation 
 against estate. 58: 85. 
 
 e. Savings bank. 
 
 23. Generally. 
 
 Savings banks distinguished from banks of 
 
 deposit. 1: 785.* 
 Joint account in. 31:454. 
 Effect of delivery of savings bank book as 
 'gift of deposit. 18: 171. 
 As to Gifts of Deposit. Generally, see supra, 
 
 viii. ;. 
 
 24. Liability of, for payments to fraudu- 
 lent claimants. 
 General rule requiring reasonable care by 
 
 the bank. 9: 317. 
 
 The application of the rule of reasonable 
 
 i-are as affected by the 
 
 bank's by-laws. 69: 318. 
 
 In general. 69: 318. 
 
 By-law providing for payment to the 
 
 depositor's representative 
 
 after his death. 69: 323. 
 
 The binding effect of the by-laws upon the 
 
 depositor/ 69: 324. 
 Assent by the depositor. 69: 324. 
 What is a reasonable by-law. 69: 326. 
 Limits of the application of the rule re- 
 quiring reasonable care. 
 69: 327. 
 
 In general: 69: 327. 
 
 Payment upon iraudulent claim of 
 identity merely. 69: 327. 
 
 Payment upon impersonation of the 
 depositor, combined with 
 forgery. 69: 329. 
 
 Payment upon forged orders alone. 
 69: 333. 
 
 Payment without either impersonation, 
 or forgery. 69: 336. 
 
 Payment after the death of tht depos- 
 itor. 69: 338. 
 
 The obligation to compare the signa- 
 tures. 69: 339. 
 
 Contributory negligence of the depositor.. 
 69: 340. 
 
 In general. 69: 340. 
 
 Failure to give notice to the bank. 69: 
 341. 
 
 Failure to keep pass book safely. 69: 
 
 342. 
 Matters of evidence. 69: 342. 
 
 f. Crimes. 
 
 25. Generally. 
 
 Criminal liability for receiving deposit itt 
 bank knowing of its in- 
 solvency. 31: 124. 
 
 Constitutionality of statutes. 31: 124 
 
 Effect of adopting existing nomencla- 
 ture in denning the of- 
 fense. 31: 124. 
 
 Liability in the absence of statute. 31 1 
 125. 
 
 Who liable. 31 : 125. 
 
 Liability of partnership. 31: 125. 
 
 Sufficiency of proof. 31: 125. 
 
 Other rulings. 31: 125. 
 
 BAPTISMAL RECORD. 
 
 Libelous Entry in, see Libel and Slander,, 
 33, 106. 
 
 BAPTISTS. 
 
 Power of Majority of Church, see Reli- 
 gious Societies, 35, 36, 80. 
 
 BAR. 
 
 How Dower May be Barred, see Dower, L 
 
 c. 
 
 Of Judgment, see Judgment, II. 
 Of Limitation, see Limitation of Actions. 
 
 BAR ASSOCIATION. 
 
 Disqualification of Judge by Membership 
 in, see Judges, 41.
 
 BARBED WIRE BASTARDY. 
 BARBED WIRE. BASE BALL. 
 
 237 
 
 ee Fences, 11, 12. 
 
 BARBER. 
 
 Equal Protection and Privileges as to 
 Working on Sunday, see Constitution- 
 al Law, 534-537. 
 
 Due Process in Prohibiting Work on Sun- 
 day, see Constitutional Law, 683. 
 
 Prohibiting against working on Sunday, 
 see Constitutional Law, 1018-1021. 
 
 Police Regulation of Business of, see Con- 
 stitutional Law, 1034. 
 
 Contract to Restrain Business of, see Con- 
 tracts, 589. 
 
 Agreement Not to Engage in Business of, 
 see Contracts, 734. % , 
 
 Judicial Notice of Danger of Spread of 
 Contagious Disease by, see Evidence, 
 115. 
 
 Exemption of Property of, see Exemptions, 
 38. 
 
 Work of, Generally, on Sunday, see Sun- 
 day, 17-19. 
 
 Question for Jury as to Necessity of Keep- 
 ing Shop Open on Sunday, see Trial, 
 156. 
 
 BARBER'S POLE. 
 
 Liability for Injury by, see Highways, 288. 
 
 BARK. 
 
 Editorial Notes; 
 Oral contract for sale of. 19: 721. 
 
 BARKING. 
 
 Right to Kill Barking Dog, see Animals, 
 24, 25. 
 
 BARN. 
 
 i 
 As a Fixture, see Fixtures, 15. 
 
 BARRIERS. 
 
 At Dangerous Place in Highway, see High- 
 ways, 266-268, 271, 324. 
 
 BAR WAY. 
 
 Easement of, see Easements, 95, 106, 110. 
 
 See Ball Playing. 
 
 BASEMENT. 
 
 Use of Elevator as Appurtenant to, see 
 Easements, 59. 
 
 BASTARDY. 
 
 Right to Appeal from Acquittal in, see 
 
 Appeal and Error, 51. 
 Release from Judgment in, by Discharge 
 
 in Bankruptcy, see Bankruptcy, 59. 
 Consideration for Contract against Pro- 
 ceedings, see Contracts. 75. 
 Effect of Illegitimacy on Right to Inherit, 
 
 see Descent and Distribution, I. c; IV. 
 
 4. 
 Admissibility of Pictures of Putative 
 
 Father and Child, see Evidence, 1053. 
 Exhibition of Child to Jury, see Evidence, 
 
 1044. 
 Right of Putative Father to Custody of 
 
 Child, see Infants, 45. 
 Service bv Publication in, see Judgment, 
 
 27. 
 Form of Judgment on Bond in Proceedings 
 
 in, see Judgment, 44. 
 
 Merger in Judgment of Rights under Or- 
 der of Affiliation, see Judgment, 97. 
 Libelous Charge of, see Libel and Slander, 
 
 32, 33. 
 Legitimation of Bastard, see Conflict of 
 
 Laws, 149-154; Parent and Child, II. 
 See also Illegitimacy. 
 
 1. At common law a bastard child was 
 one who was not born in lawful wedlock 
 nor within a competent time after its termi- 
 nation, or one who was born under cir- 
 cumstances rendering it impossible that 
 the husband of its mother could be its 
 father. Parker v. Nothomb, 65 Neb. 315, 
 93 N. W. 851, 60: 699 
 
 2. The marriage after the birth of a 
 child, of a woman who was unmarried at 
 the time such child was begotten and born, 
 does not prevent her from maintaining an 
 action in bastardy, under tke Nebraska 
 statute of 1875 entitled "An Act for the 
 Maintenance and Support of Illegitimate 
 Children," amending the act of 1869 en- 
 titled "An Act to Provide for the Support 
 of Illegitimate Children," authorizing such 
 an action on complaint made to any jus- 
 tice of the peace "by any unmarried wom- 
 an" resident therein who shall hereafter 
 be delivered of a bastard child, or is preg- 
 nant with a child which, if born alive, may 
 be a bastard. Id. 
 
 3. After judgment has been rendered in 
 a bastardy proceeding, and at the same 
 term of court, it is competent for the court 
 to set aside the judgment on its own mo- 
 tion, having ascertained, that the com- 
 plainant was mentally incapacitated, and
 
 238 
 
 BATH HOUSE BATHING RESORT. 
 
 that the court was without jurisdiction. 
 State ex rel. Yilek v. Jehlik, 66 Kan. 301, 
 71 Pac. 572, 61 : 265 
 
 4. An unmarried woman, who is an im- 
 becile, and incompetent to testify, cannot 
 institute and prosecute a proceeding in 
 bastardy, under a statute giving the right 
 to institute such a proceeding to "any un- 
 married woman." Id. 
 
 5. If the putative father of a bastard 
 child is a resident of the state, the mother j 
 can institute proceedings against him un- 
 der the Kansas statute, even if the mother 
 and child are residents of another state. 
 Moore v. State ex rel. Vernon, 47 Kan. 772, 
 28 Pac. 1072, 17: 714 
 
 6. The penalty incurred by a person con- 
 victed in a bastardy proceeding, under S. 
 C. Gen. Stat. ? 1579 et seq., on failure 
 to enter into a recognizance for the sup- 
 port of the bastard child, is not a "debt," 
 within the meaning of a constitutional pro- 
 vision against imprisonment for debt. 
 State v. Brewer, 38 S. C. 263, 16 S. E. 1001, 
 
 19: 362 
 
 7. A judgment on conviction of bastardy 
 does not authorize perpetual punishment 
 because it directs execution for $25 annu- 
 ally as for a penalty on default of the re- 
 quired recognizance, and confinement upon 
 execution in jail until payment is made 
 in case the execution be returned nulla 
 bona as in a ca. sa., since the accused is en- 
 titled to the privileges of insolvent debtors. 
 
 Id. 
 
 Editorial Notes. 
 
 Penalty as limit of liability on bond in 
 bastardy proceedings. 55 : 
 395. 
 
 Form of judgment on bastardy bond. 62: 
 444. 
 
 Imprisonment under order in bastardy pro- 
 ceeding, as imprisonment 
 for debt. 34: 667. 
 
 Cruel and unusual punishment for. 35: 
 570. 
 
 Existence of bastard child as ground of 
 uivorce or annulment of 
 marriage. 18: 377. 
 
 BATH HOUSE. 
 
 Check for Property in, see Bailment, 36. 
 Use of Water from Artesian Well for, see 
 Waters, 449, 450. 
 
 BATHING. 
 
 Pollution of Water by, 'see Waters, 291, 
 
 292. 
 Rights of Riparian Owner as to, see 
 
 Waters, 291, 292. 
 
 BATHING RESORT. 
 
 Liability for Injury in Use of Toboggan 
 Slide at, see Landlord and Tenant, 
 181. 
 
 1. A company maintaining a bathing re- 
 sort and letting out its privileges to the 
 public for hire is bound to take such pre- 
 cautions for the safety of bathers as a 
 person of ordinary prudence would take 
 under the circumstances. Brotherton v. 
 Manhattan Beach Improv. Co. 48 Neb. 563. 
 67 N. W. 479, 33: 598 
 
 2. Ordinary care requires the keeper of 
 a public bathing resort frequented by a 
 great number of people and at which there 
 is dewp water, to keep some one on duty 
 to supervise bathers and rescue any appar- 
 ently in danger, or at least to exert every 
 effort, Avithout a moment's delay, to 
 search for a person who is reported miss- 
 ing and who was last seen in the water. 
 
 Id. 
 
 3. One maintaining a bathing resort on 
 the shore of a natural body of water, to 
 which he invites the public, must use rea- 
 sonable care to keep the bottom under the 
 section of water which the bathers use 
 free from everything which might injure 
 their feet, failure to do which, resulting 
 in injury, is actionable negligence. Boyce 
 v. Union P. R. Co. 8 Utah, 353, 31 Pae. 
 450, 18: 509 
 
 4. A municipality upon which a statu- 
 tory duty has been imposed of establish- 
 ing and maintaining a bathing beach is 
 not responsible for its safety and the safe 
 use of it by those likely to have recourse 
 to it, in the same manner as streets and 
 highways, or even- as parks and grounds 
 kept for entertainment and asnusement 
 without profit, are to be rendered safe. 
 McGraw v. District of Columbia, 3 App. 
 D. C. 405, 25: 691 
 
 5. If a municipality required by statute 
 to establish and maintain a free bathing 
 beach is liable for its unsafe condition 
 after the^ beach is opened, the detail of a 
 policeman to preserve the peace and good 
 order at such beach before the work of 
 construction is completed, where boys and 
 young men are in the habit of congregat- 
 ing and have congregated for many years, 
 is not an opening of the beach to the pub- 
 lic and an invitation to the public to use 
 it. Id. 
 
 6. A municipal corporation required by 
 statute to establish and maintain a free 
 bathing beach, if liable for the condition 
 of such beach, cannot be held responsible 
 until it has completed the work of con- 
 struction and thrown the beach open to 
 the public for the uses contemplated. Id. 
 
 7. A municipality required by statute 
 to establish and maintain a free bathing 
 beach upon the margin of a river is not 
 bound to warn the public against change 
 in the bed of the stream, or to mark in 
 any way the depth or relative depth, of the 
 water, so as to guard the ignorant bather 
 fiom venturing too far. Id.
 
 BATTERY. 
 
 See Assault and Battery. 
 
 BATTERY BELIEF. 239 
 
 BEER GARDEN. 
 Injunction against, see Nuisances, 128b. 
 
 BATTURE. 
 
 License to Use, see Municipal Corpora- 
 tions, 235. 
 
 Ordinance as to Use of, see Public Grounds, 
 3. 
 
 Editorial Notes. 
 In bed of river. 5: 687.* 
 
 BAWDY HOUSE. 
 See Disorderly Houses. 
 
 BAY. 
 
 Boundary on, see Boundaries, 41. 
 
 Editorial Notes. 
 Jurisdiction over. 46: 275. 
 
 BAY WINDOWS. 
 
 Covenant as to, see Covenant, 36. 
 In Highway, see Highways, 77. 
 
 BEACH. 
 Bond to Secure Right in, see Common, 2. 
 
 BEER. 
 
 Claim of Right to Inspect, as Cloud on 
 
 Title, see Cloud on Title, 11. 
 Illegal Combinations as to, see Conspiracy, 
 
 143. 
 Illegal Sale of, to Keeper of Unlawful 
 
 House, see Contracts, 445. 
 Judicial Notice as to, see Evidence, 125- 
 
 127. 
 Burden of Proving Intoxicating Quality of, 
 
 see Evidence, 212. 
 Injunction against Requiring Inspection of, 
 
 see Injunction, 165. 
 As Intoxicating Liquor, see Intoxicating 
 
 Liquors, 94, 95. 
 
 Allegation as to Inspection of, see Plead- 
 ing, 191. 
 As to Intoxicating Liquor Generally, see 
 
 Intoxicating Liquor. 
 
 Editorial Notes. 
 As intoxicating liquor, 20: 647. 
 
 BEES. 
 
 Negligence in Hitching Horse Near Bee 
 
 Hive, see Trial, 444. 
 Question for Jury as to, see Trial, 444. 
 
 Negligence of keeper of. 
 
 See also infra, Editorial Notes. 
 
 1. A keeper of bees must exercise or- 
 dinary prudence in locating their hives 
 so as to avoid unnecessary danger to those 
 who are likely to make lawful use of the 
 premises or the highway near by. Parsons 
 v. Manser, 119 Iowa, 88, 93 N. W. 86, 
 
 62: 132 
 
 2. A keeper of bees may be found guilty 
 of negligence in locating their hives with- 
 in a few feet of a post which he has fixed 
 for fastening horses to, where he knows 
 that they are prone to attack perspiring 
 horses. Id. 
 
 3. The rule as to the duty which a prop- 
 erty owner owes licensees regarding the 
 safety of the premises is not applicable 
 in a case where horses were left tied in a 
 highway near a hive of bees, which at- 
 tacked them and caused them to crowd 
 over the fence into such proximity to the 
 hives as to be stung to death. Id. 
 Rights of finder of. 
 
 4. A trespasser who finds bees on the 
 land of another and hives them, but is not 
 the owner of the hive in which he puts 
 them dr the land on which he leaves thorn, 
 has no interest in them which is the sub- 
 ject of larceny. State v. Repp, 104 Iowa, 
 305, 73 N. W/829. 40: 687 
 
 5. The mere finding of bees in a tree on 
 the land of another person gives the finder 
 no right to the bees or to the tree. Id. 
 
 Editorial Notes. 
 
 Property rights in. 40: 687. 
 
 Generally. 40: 687. 
 
 Trespass and trover. 40: G88. 
 
 Larceny. 40: 689. 
 
 Tithes. 40: 689. 
 Liability of owners of, for injuries done 
 
 by them. 62: 132. 
 As a nuisance. 62: 133. 
 
 BEET SUGAR BOUNTY. 
 See Bounties, 1-3. 
 
 BELIEF. 
 
 Burden of Proof as to, see Evidence, 339. 
 Of Person Making False Representation, 
 
 see Fraud and Deceit, IV. 
 Question for Jury as to, see Trial, 223.
 
 240 
 
 BEXCH WARRANT BENEVOLENT SOCIETIES, II. 
 
 BENCH WARRANT. 
 
 Mandamus to Compel Issuance of, see Man- 
 damus, 24. 
 
 BENEFICIARY. 
 
 In Polio}', see Insurance. 
 In Trusts, see Trusts. 
 In Will, see Wills, III. 
 
 BENEFITS. 
 
 Deduction for, in Condemnation Proceed- 
 ings, see Damages, III. 1, 6. 
 
 Estoppel by Receiving, see Estoppel, III. k. 
 
 Front Local Improvement, Judicial Notice 
 of, see Evidence, 153, 154. 
 
 BENEVOLENT SOCIETIES. 
 
 I. In General. 
 II. Local Lodges. 
 
 III. Constitution, Rules, and By -Laws. 
 
 IV. Membership; Expulsion. 
 V. Irregularities: Dissolution. 
 
 VI. Editorial Notes. 
 
 Issue as to Funds of, in Contempt Proceed- 
 ings, see Contempt, 11. 
 
 Validity of Agreement against Selling Ben- 
 efit Certificates, see Contracts, 578. 
 
 Distribution of Assets of Incorporated As- 
 sociations, see Corporations, 485. 
 
 Jurisdiction Over, see Courts, I. d.; VI. 
 3. 
 
 Usage as to Mode of Deciding Questions, 
 see Custom, 15. 
 
 Measure of Damages against, see Damages, 
 92, 93. 
 
 Injunction to Compel Admission of Dele- 
 gate, see Injunction. 40. 
 
 Injunction against Excluding, from Right 
 to Vote, sec Injunction. 234. 
 
 Injunction against Removal of Officer of, 
 see Injunction, 237. 2.38. 
 
 Injunction against Illegal Assessments, see 
 Injunction, 239-241. 
 
 Insurance by, see Insurance. 
 
 Board of Control of, see Insurance, 22. 
 
 Pleading in Case of, see Pleading, 2/57. 
 
 Receiver of. see Receivers, 30. 129-131, 139. 
 
 For Associations Generally, see Associa- 
 tions. 
 
 See also Railroad Relief Associations. 
 
 I. In General. 
 
 1. Authority to hold meetings for the 
 exercise of strictly corporate functions 
 outside of the state of incorporation arises 
 by implication where the corporation con- 
 stitutes the supreme legislative deoart- 
 ment of a benevolent order to be estab- 
 
 lished by it, with power to organize subor- 
 dinate bodies throughout the Unite'd States 
 and Canada. Sovereign Camp, W. O. W. v. 
 Fraley, 94 Tex. 200, 59 S. W. 879, 
 
 51 : 898 
 
 2. A benevolent and social organization 
 having also in view the protection, bene- 
 fit, and welfare of its members in their 
 various employments is in no sense a part- 
 nership. Brown v. Stoerkel, 74 Mich. 269, 
 41 N. W. 921, 3: 430 
 Name. 
 
 3. The Supreme Lodge, Knights of Py- 
 thias, which becomes incorporated after 
 the words "Knights of Pythias" have been 
 used by the order as an existing voluntary 
 society, cannot claim any greater right to 
 that name than the order of which it is 
 the head. Supreme Lodge, K. of P. v. Im- 
 proved Order, K. of P., 113 Mich. 133, 71 
 N. W. 470, 38: 658 
 
 4. The name "Improved ^)rder. Knights 
 of Pythias," can be lawfully taken as the 
 name of a new order formed by members 
 who withdraw from the Knights of Pythias 
 chiefly because the old order refuses to per- 
 mit them to have the ritual printed in the 
 German language. Id. 
 Disbursement of money donated for mem- 
 bers. 
 
 5. Money donated by members of a mu- 
 tual benefit society for disbursement by a 
 committee, in response to a call by the 
 chief officer for aid to members and friends 
 of a subordinate lodge who a.re injured in 
 a cyclone, must all be distributed to the 
 intended donees, in the absence of any mis- 
 take or fraud in the donation; and the 
 committee has no discretion to withhold 
 any part of it from them on the ground 
 that they did not need it, and to turn it 
 over, instead, to the general treasurer* of 
 the order. Supreme Lodge Knights & L. 
 of H. v. Owens, 94 Ky. 327, 22 S. W. 327, 
 
 20: 347 
 
 II. Local Lodges. 
 
 Effect of Failure to Remit Assessments to 
 Grand Lodge, see Insurance, 626. 
 
 Effect on Beneficiary of Officer's Failure 
 to Act, see Insurance, 595. 
 
 6. The financial secretary of a subor- 
 dinate lodge of a benefit society, who ia 
 designated by the supreme lodge to re- 
 ceive and forward assessments from certifi- 
 cate holders, is for that purpose the agent 
 of the supreme lodge, so that the stand- 
 ing of certificate holders will not be af- 
 fected by his failure to foiward assess- 
 ments paid him. Bragaw v. Supreme 
 Lodge K. & L. of H. 128 N. C. 354. 38 S. 
 K 905, 54: 602 
 
 7. A person to whom all the members of 
 a local assembly of the Knights of Labor 
 in good standing have executed an assign- 
 ment of their right, title, and interest can 
 maintain an action to recover money paid 
 in by members of the assembly on the for- 
 mation of a preliminary organization pre-
 
 BENEVOLENT SOCIETIES, III. 
 
 241 
 
 paratory to forming such local assembly, 
 with the intention that the money so con- 
 tributed should be used as initiation fees 
 in the assembly to be formed as a successor 
 to the first association, when the defend- 
 ants, who were the treasurer and one of 
 the trustees of the first association, refuse 
 to give it up. Brown v. Stoerkel, 74 Mich. 
 269, 41 N. W. 921. 3: 430 
 
 8. A statute authorizing the Grand 
 Lodge Independent Order of Odd Fellows 
 to establish subordinate lodges, and pro- 
 viding that such lodges may hold title to 
 property, does not delegate power to 
 create corporations; and such subordinate 
 lodges do not become corporations. Heis- 
 koll v. Chickasaw Lodge No. 8, 87 Tenn. 
 668, 11 S. W. 825, 4: 699 
 Rights and powers of local lodge. 
 
 9. Local lodges of a mutual* benefit so- 
 ciety are the agents of the supreme camp, 
 for whose acts within the scope of their 
 authority the latter is responsible, where 
 the supreme camp, which is organized and 
 incorporated for the purpose of furnish- 
 ing aid to members and their families, se- 
 lects :md organizes local lodges to trans- 
 act its business, which are under its com- 
 plete direction and control, and the mem- 
 bers of which are to all intents and pur- 
 poses inembers of the supreme camp. 
 Mitchell v. Leech. 69 S. C. 413, 4g S. E. 290. 
 
 66: 723 
 
 10. The supreme lodge of a mutual ben- 
 efit sooictv which has authorized its agent, 
 a local lodge, to initiate inembers into the 
 order, is liable for injuries inflicted upon 
 ;t candidate by the use of a mechanical 
 goat in the initiation ceremony, although 
 it ha> not authorized the use of such con- 
 trivance. Id. 
 
 11. Although it is the duty of the court 
 to determine the authority of local lodges 
 of a mutual benefit society when the writ- 
 ten instruments determining such author- 
 ity are before it, the lodge cannot com- 
 plain of the submission of the question to 
 the jury, which made the true construction, 
 and which was given an opportunity to 
 find against such construction and in fa- 
 vor of the contention of the lodge. Id. 
 
 12. Where the Grand Lodge Independent 
 Order of Odd Fellows is authorized by stat- 
 ute to establish subordinate lodges, such 
 .1 subordinate lodge organized under a char- 
 ter from the grand lodge, having a contin- 
 uous personality and officers representing 
 it. and being clothed by the legislature with 
 power to hold property, is such a legal 
 person as is capable of holding and admin- 
 istering a trust germane to the purposes 
 of the order. Heiskell v. Chickasaw 
 Lodge Xo. 8, 87 Tenn. 668, 11 S. W. 825, 
 
 4: 699 
 
 13. A subordinate lodge duly incorpo- 
 rated under state laws cannot be deprived 
 of the possession and control of property 
 belonging to it, by the grand lodge of the 
 order with which it is connected, although 
 under the constitution of the order it has 
 fceen suspended bv the grand lodge. Mer- 
 
 L.R.A. Dig. 16. 
 
 rill Lodge No. 299. I. O. G. T. v. Ells- 
 worth, 78 Cal. 166, 20 Pac. 399, 2: 841 
 
 14. The legal title to the 20 per cent of 
 assessment received by local branches of 
 the Order of Iron Hall, which they are al- 
 lowed to retain as a reserve fund, which 
 by the law of the order is declared to be 
 the property of the supreme sitting and 
 subject to its control at all times, and 
 which is to be called for in annual instal- 
 ments after the period of six years and 
 six months. is. like the other 80 per cent, 
 which is paid over immediately, in the su- 
 preme sitting, although the possession is 
 for the time retained by the branches. 
 Buswell v. Supreme Sitting O. of I. H. 161 
 Mass. 224, 36 N. E. 1065. 23: 846 
 
 Baldwin v. Hosmer, 101 Mich. 119, 59 N. 
 W. 432, 25: 739 
 
 15. Local branches of a secret benefit or- 
 der cannot, when called upon to pay over 
 assessments which they have collected un- 
 der the laws of the order, and which by 
 such laws belong to the supreme sitting, 
 question the validity of the incorporation 
 of the supreme sitting. Baldwin v. Hos- 
 mer, 101 Mich. 119, 59 X. W. 432, 25: 739 
 
 III. Constitution, Rules, and By-laws. 
 
 As to Matters Relating to Insurance, see 
 Insurance. 189-199, 321, 622-626, 629, 
 677, 821, 926, 927, 978, 1181, 1228, 1229, 
 1232, 1306. 
 
 See also infra, 39-43. 
 
 For Editorial Notes, see infra, VI. 3. 
 
 16. A constitution of a voluntary associa- 
 tion or a corporation, which is created by 
 itself, is nothing more than a by-law un- 
 der an inappropriate name. Supreme Lodge 
 K. of P. v. Knight, 117 Ind. 489, 20 N. E. 
 479, 483, 3: 409 
 
 17. By-laws may be unreasonable and 
 invalid as to persons who are members of 
 a beneficial association when they are 
 adopted, although reasonable and valid as 
 to those who subsequently become mem- 
 bers. Thibert v. Supreme "Lodge K. of H. 
 78 Minn. 448, 81 N. W. 220, 47: 136 
 
 18. The constitution and by-laws of a 
 mutual insurance association are binding 
 upon the members, whether they have ac- 
 tual knowledge thereof or not. Clark v. 
 Mutual Reserve Fund L. Asso. 14 App. D. 
 C. 154, 43: 390 
 
 19. The articles of agreement of a benev- 
 olent association, whether called a consti- 
 tution, charter, by-laws, or any other name, 
 constitute a contract between the members, 
 which the courts will enforce if not im- 
 moral or contrary to public policy or the 
 law of the land. Brown v. Stoerkel, 74 
 Mich. 269, 41 X. W. 921, 3: 430 
 
 20. Individuals who associate themselves 
 in a voluntary fraternal organization may 
 prescribe conditions upon which member- 
 ship in the association may be acquired or 
 upon which it may continue, and may also 
 prescribe rules of conduct for themselves 
 during their membership, with penalties 
 for their violation, and the tribunal and
 
 BENEVOLENT SOCIETIES. III. 
 
 mode in which the offenses shall be deter- 
 mined and the penalty enforced. Lawson 
 v. Hewell, 118 Cal. 613. 50 Pac. 763, 
 
 49: 400 
 
 21. A by-law prohibiting members from 
 being connected with societies not approved 
 by a particular church is authorized by a 
 provision in the statute authorizing the 
 incorporation of mutual benefit societies 
 that they shall have power to establish 
 rules for the regulation of the affairs of 
 the corporation not contrary to the laws 
 of the state or United States, and to de- 
 cide the necessary qualifications of mem- 
 bership, ^lazurkiewicz v. St. Adelbertus 
 Soc. 127 Mich. 145, 86 N. W. 543, 54: 727 
 
 22. The supreme lodge of a benefit so- 
 ciety cannot delegate to a board of con- 
 trol its power to enact general laws affect- 
 ing the whole endowment rank of the order, 
 without express authority in the charter. 
 Supreme Lodge K. of P. v. La Malta, 95 
 Tenn. 157, 31 S. W. 493, 30: 838 
 
 23. Power given by the supreme lodge 
 of a benefit association to the board of 
 control of the endowment rank, to have 
 "entire charge and full control" of such 
 rank, does not authorize the board to enact 
 laws. Id. 
 Changes in. 
 
 As to Matters Relating to Insurance, see 
 
 Insurance, 195-199. 
 For Editorial Notes, see infra, VI. 3. 
 
 24. Any change or amendment of the 
 rules of a voluntary fraternal organiza- 
 tion, if adopted in accordance with the 
 mode provided by the association there- 
 for, is binding upon each of the members. 
 Lawson v. Hewell, 118 Cal. 613, 50 Pac. 
 763, 49: 400 
 
 25. Where a change is regularly made in 
 the by-laws of a benefit society, a~nd the 
 motive which influences the change is an 
 honest one, to promote the welfare of the 
 society, and the members are all given 
 an opportunity to avail themselves of the 
 change, no actionable wrong is done the | 
 members or their beneficiaries. Supreme 
 Lodge K. of P. v. Knight, 117 Ind. 489, 20 
 N. E. 479, 483, 3: 409 
 
 26. A person who becomes a member of 
 a benefit society, the constitution of which 
 makes a clear reservation of the right to 
 amend, is bound to take notice of the ex- 
 istence and effect of that reserve power. 
 
 Id. 
 
 27. An amendment to the constitution 
 of a benevolent order incorporated as the 
 "Sovereign Camp of the Woodmen of the 
 World," when adopted by delegates as- 
 sembled as the sovereign camp, in the 
 manner required by the by-laws, is a prop- 
 er exercise of the power given to the cor- 
 poration to make its own constitution and 
 to exercise general legislative authority, 
 when the sovereign camp constitutes the 
 supreme judicial department of the order, 
 although an executive council composed of 
 the officers of the sovereign camp may ex- 
 ercise legislative authority under certain 
 conditions and limitations. Sovereign Camp 
 
 W. O. W. v. Fraley, 94 Tex. 200, 59 S. W. 
 879, 51: 898 
 
 28. Changes, amendments, and repeals of 
 the by-laws of a beneficial insurance asso- 
 ciation are subject to the restrictions and 
 limitations of the charter or articles of as- 
 sociation, and of the by-law* themselves, 
 and also subject to the implied condition 
 of being reasonable. Thibert v. Supreme 
 Lodge K. of H. 78 Minn. 448, 81 N. W. 
 220, 47: 136 
 
 29. A provision in the constitution of a 
 benefit society, that members should be- 
 come such subject to the power of the cor- 
 poration to change its by-laws, cannot be 
 construed into liberty to change at will 
 the contract of insurance it has made with 
 each member. Bragaw v. Supreme Lodge 
 K. & L. of H. 128 N. C. 354, 38 S. E. 905, 
 
 54: 602 
 
 30. A mere general consent by a member 
 of a mutual benefit society, that the con- 
 stitution and by-laws may be amended, 
 applies only to such reasonable regulations 
 as may be within the scope of its original 
 design, and does not authorize changes 
 which will destroy the value of his con- 
 tract. Strauss v. Mutual Reserve Fund 
 L. Asso. 126 N. C. 971, 36 S. E. 352, 128 
 N. C. 465, 39 S. E. 55, 54: 605 
 
 31 v The contract evidenced by a certif- 
 icate of membership in a mutual benefit so- 
 ciety cannot, after the holder has paid 
 large sums thereon, be altered by resolu- 
 tions of the society without the holder's 
 consent so as to place him in a class and 
 assess that class in a manner different 
 from the rule applied to newer members, 
 the result of which is to destroy the value 
 of the contract. Id. 
 
 32. A provision in a certificate of mem- 
 bership in a benefit society, that the holder 
 shall comply with the constitution and by- 
 laws of the association, a copy of which is 
 attached to the certificate, refers to such 
 laws as they then exist, and will not bind 
 him to submit to a change subsequently 
 made, depriving him of the right to dis- 
 pose of the benefit by will, although the 
 constitution provides for amendment. Pe- 
 terson v. Gibson, 191 111. 365, 61 N. E. 127, 
 
 54: 836 
 
 33. The officers of a mutual benefit asso- 
 ciation have no power to waive the provi- 
 sions of such by-laws as relate to the sub- 
 stance of the contract between the indi- 
 vidual member and his associates, in their 
 corporate capacity, where the constitution 
 and by-laws of the association limit the 
 appointment of its oilicers and the scope of 
 their powers and duties, and forbid the al- 
 teration or amendment of such constitu- 
 tion except by the governing body in the 
 mode therein provided, and where the mem- 
 bers of such association have agreed, as 
 part of their contract of membership, to 
 comply strictly with the laws, rules, and 
 regulations of the association. Kocher v. 
 Supreme Council C. B. L. (N. J. Err. & 
 App.) C5 N. J. L. 649, 48 Atl. 544, 52: 861 
 
 34. The amendment to the charter of a 
 produce exchange and the by-laws enacted
 
 BENEVOLENT SOCIETIES, IV. 
 
 243 
 
 pursuant thereto, establishing a gratuity 
 fund for the families of deceased members, 
 to be created by assessment, as well as the 
 contract among the members providing for 
 the making of assessments and the payment 
 of benefits, must be looked to in determin- 
 ing a member's rights, where, by the con- 
 tract, the assessments to which he is liable, 
 and the payments to his beneficiaries, are 
 to be determined by the "by-laws;." and 
 consequently he is bound by reasonable 
 amendments to the by-laws. Parish v. New 
 York Produce Exchange, 1(59 N. Y. 34, 61 
 N. E. 977, 56: 149 
 
 35. An association authorized by char- 
 ter, and undertaking by its by-laws, to ac- 
 cumulate a fund for the benefit of per- 
 sons dependent upon members 'at the time 
 of their death, cannot bind dissenting mem- 
 bers by an amendment of its by-laws so as 
 to distribute the accumulated fund among 
 the living members. Id. 
 
 36. An amendment to the by-laws of an 
 association authorized to accumulate a 
 fund for the benefit of persons dependent 
 on members at the time of their decease 
 will fall entirely if it contains an illegal 
 provision which, from its importance, may 
 have contributed more than any of the 
 others to secure the small majority of 
 votes bv which it was adopted. Id. 
 
 37. The aooption, certification, promulga- 
 tion, and printing as one full and complete 
 instrument, of a constitution by the proper 
 body of a benefit society, will cause that 
 instrument to annul and supersede all por- 
 tions of former constitutions which are 
 not embodied in it. Supreme Lodge K. of 
 P. v. La Malta, 95 Tenn. 157, 31 S. W. 
 493, 30: 838 
 
 IV. Membership; Expulsion. 
 
 Members Bound by Constitution, By-Laws, 
 
 etc.. see supra, III. 
 For Editorial Notes, see Associations, III. 
 
 2; and also infra, VI. 
 Representation of members. 
 
 38. The representation of the 4,000 
 Maryland members in the Supreme Lodge, 
 Order of the Golden Chain, extends, under 
 Md. Laws 1894, chap. 295 (Md. Code, art. 
 23, 143el), to eight members, as the law 
 gives the right to as many representatives 
 as will equal the number of times the mem- 
 bership is greater than the unit of repre- 
 *entation, which is the number of mem- 
 bers necessary to secure one representative, 
 and the constitution of the organization 
 gives each state one representative for the 
 first 500 members, although it also pro- 
 ceeds to declare that there shall be two 
 representatives for 1,500 and three for 
 4,500. Supreme Lodge Order of Golden 
 ^hain v. Simering, 88 Md. 276. 40 Atl. 723, 
 
 41 : 720 
 Expulsion. 
 
 Measure of Damages for, see Damages, 250. 
 Injunction against, see Injunction, 234-238. 
 Reinstatement, see Insurance, 635; Manda- 
 imia, 195. 
 
 Question for Jury as to Notice Before Ex-> 
 
 pulsion, see Trial, 226. 
 See also Insurance, 199. 
 For Editorial Notes, see Associations, ill. 
 
 2, and also infra, VI. 2. 
 38a. Affirmative action on the part of the 
 society is not necessary to terminate the 
 rights of a member of a mutual benefit so^ 
 ciety with reference to the benefit fund, for 
 violation of the rules of the order, where 
 the contract provides that there shall be no 
 liability upon any certificate of membership 
 unless che member shall have complied with 
 all such rules, although such action would 
 be necessary to expel him from membership, 
 Langnecker v. Trustees of Grand Lodge A. 
 O. U. W. Ill Wis. 279, 87 N. W. 293, 
 
 55: 185 
 
 39. A by-law of a mutual benefit society 
 providing for the expulsion of mejnbers for 
 defaming members of the directing council, 
 or any member whatsoever, for reasons con- 
 nected with the society, causing dissensions 
 and disorders in the midst of the associa- 
 tion, is reasonable. Del Ponte v. Societa 
 Italiana di Marconi (R. I.) 60 Atl. 237, 
 
 70: 188 
 
 40. A by-law of a mutual benefit society 
 requiring the expulsion of a member who en- 
 gages in a certain business by necessary im- 
 plication prohibits such business, so that his 
 engaging in it will be a violation of the 
 rules of the society. Langnecker v. Trus- 
 tees of Grand Lodge A. O. U. W. Ill Wis. 
 279, 87 N. W. 293, 55: 185 
 
 41. A by-law of a mutual benefit society, 
 which provides that any member of the or- 
 der, who shall, after a certain date, enter in- 
 to a certain business, shall be expelled from 
 the order, will apply to a member not en- 
 gaged in such business at the time men- 
 tioned, although he has formerly been so en- 
 gaged. Id. 
 
 42. A requirement of the constitution of 
 a mutual benefit society that its privileges 
 shall be limited to members of a specified 
 religious denomination, and that members 
 neglecting to comply with the rules govern- 
 ing that denomination shall be suspended or 
 expelled, does not violate a provision of the 
 state Constitution securing the right to wor- 
 ship God according to the dictates of one's 
 own conscience, and providing that no hu- 
 man authority can control or interfere with 
 the rights of conscience. Franta v. Bohe- 
 mian Roman Catholic C. Union, 164 Mo. 304, 
 63 S. W. 1100, 54: 723 
 
 43. One who joins a mutual benefit society 
 whose by-laws provide that no one can be 
 a member of it who is a member of a so- 
 ciety not approved by a particular church 
 cannot complain if he is expelled fiom the 
 society for membership in a society prohib- 
 ited by such church. Mazurkiewicz v. St. 
 Adelbertus Soc. 127 Mich. 145, 86 N. W. 543, 
 
 54: 727 
 
 44. Benefit societies being charitable or- 
 ganizations, their proceedings may be law- 
 fully transacted on Sunday, even to the 
 hearing and determination of charges 
 against members which result in their ex-
 
 244 
 
 BENEVOLENT SOCIETIES, V. 
 
 pulsion. Pepin v. Societe St. Jean Baptiste, 
 24 R. I. 550, 54 Atl. 47, 60: 626 
 
 45. The hearing of charges against a mem- 
 ber of a benefit society, and expelling him. 
 ffom membership because of violation of the 
 rules, are not a judicial proceeding within 
 the rule which forbids such proceedings on 
 Sunday. Id. 
 
 46. The unlawful expulsion o a member 
 of a mutual benefit society will not give him 
 a right of action for damages, as such action 
 is based on an acquiescence in the expul- 
 sion and a waiver of the illegality which 
 must be counted a waiver of the entire cause 
 of action. Other reasons against the action 
 are found in the lack of any fund from 
 which damages can be paid and in the im- 
 possibility of measuring the damages. The 
 proper remedy is mandamus to restore him 
 to membership. Lavalle y. Socie'te' St. Jean 
 Baptiste de Woonsocket, 17 B. I. 680, 24 Atl. 
 467. 16: 392 
 
 47. A mutual benefit society cannot escape 
 liability for damages for the illegal expul- 
 sion of a member on the ground that the 
 meeting at which the expulsion occurred was 
 not a lawful one, and that, therefore, its 
 action was not binding on the society, where 
 the society at a subsequent regular meet- 
 ing approved the act. Lahiff y. St. Joseph's 
 Total Abstinence & Beoev. Soc. 76 Conn. 
 648, 57 Atl. 692, 65: 92 
 
 48. The possibility of resorting to man- 
 damus to compel reinstatement to his rights 
 will not deprive a member wrongfully ex- 
 pelled from an unincorporated benefit socie- 
 ty of the right to resort to an action for 
 damages, where the circumstances are such 
 that mandamus could not restore him to the 
 full enjoyment of the privileges of member- 
 ship. Id. 
 
 49. A member who has been wrongfully 
 expelled from an unincorporated benefit so- 
 ciety may abandon all claims to reinstate- 
 ment, and resort to an action for damages 
 for the injury inflicted upon him by the 
 expulsion. Id. 
 
 50. The termination of membership in a 
 Masonic lodge, which is in substance and 
 effect an expulsion, although not so in form, 
 forfeits membership in a Masonic mutual 
 benefit association which not only provides 
 that expulsion from the lodge shall work a 
 forfeiture of membership in the association, 
 but also makes it a requisite for membership 
 that the applicant be a Mason in good stand- 
 ing. Ellcrbe v. Faust, 119 Mo. 6.53. 25 S. W. 
 390, 25: 149 
 
 51. >Jo appeal is necessary from an inferi- 
 or to a superior tribunal of a mutual bene- 
 fit society, to avoid the effect of an absolute- 
 ly void expulsion of a member. Langnecker 
 v. Trustees of Grand lx>dge A. 0. U. W. Ill 
 Wis. 279, 87 X. W. 293. no: 185 
 
 52. A member of a benefit society having 
 actual notice of the charge against him for 
 which he is expelled from the society can- 
 not reverse the decision because such charge 
 is not specially stated in the form of pro- 
 ceedings against him. Pepin v. Societe St. 
 Jean Baptiste. 24 P.. I. 550, 54 Atl. 47, 
 
 60: 626 
 
 V. Irregularities; Dissolution. 
 
 For Editorial Notes, see infra, VI. 1. 
 
 53. It is a breach of official duty for the 
 officers of a mutual, benefit society to fail 
 to keep correct and intelligible books of ac- 
 count, whether such failure results from 
 design, carelessness, or want of skill. Chi- 
 cago Mut. L. I. Asso. v. Hunt, 127 111. 257, 
 20 N. E. 55, 2: 549 
 
 54. Limiting and perpetuating the admin- 
 istration of the society in the hands of the 
 manager and secretary, by means of a sys- 
 tem of blank proxies inadvisedly signed by 
 applicants for membership, is a violation of 
 the provision of the statute requiring the 
 affairs of mutual benefit societies to be man- 
 aged by not less than five trustees. Id. 
 
 65. A promise to members to refund to 
 them, at the expiration of a certain period, 
 all the reserve fund to which they would be 
 equitably entitled, is a violation of the stat- 
 utory prohibition against the receipt by 
 members of mutual benefit societies of any 
 money as profit. Id. 
 
 56. The creation of a tontine reserve fund 
 to be distributed among persistent members 
 after a certain period, out of moneys col- 
 lected for death benefits, is a violation of 
 the statute which requires such moneys to 
 be devoted to payment of death benefits 
 only, and will warrant a dissolution of the 
 society. Id. 
 
 57. Numbering certificates of membership 
 much higher than the actual number issued 
 operates as a fraud upon those becoming 
 members in reliance upon such false num- 
 bers, and is an improper practice, whether or 
 not done with an actual intent to deceive 
 and defraud. Id. 
 
 58. The use of advance mortuary assess- 
 ments to pay current expenses is such a vio- 
 lation of law as will warrant the dissolu- 
 tion of a mutual benefit society, where the 
 statute provides that no part of the funds 
 collected for the payment of death benefits 
 shall be applied for any other purpose. Td. 
 
 59. A proceeding to dissolve a mutual ben- 
 efit society, or to remove its officers, for fail- 
 ure to make proper reports or for improp- 
 erly conducting its business, instituted un- 
 der 111. act 1883, 10. is not a criminal pros- 
 ecution within the meaning of 111. Const, art. 
 (!, 33, which requires criminal prosecutions 
 to be carried on "in the name and by the 
 authority of the people of the state of Illi- 
 nois." but is a civil proceeding to protect 
 property rights, and may be brought in 
 equity by the attorney general in his own 
 name. Id. 
 
 60. Jurisdiction to decree the dissolution 
 of a corporation may be conferred upon 
 courts of equity by statute; and such juris- 
 diction is so conferred by III. act 1883 (1 
 Starr & C. Stat. 1348), in reference to mu- 
 tual benefit societies. Id. 
 
 (51. Minors are not, merely because of their 
 minority, disqualified from becoming mem- 
 bers of mutual benefit societies, in the ab- 
 sence of any statute on the subject; and 
 their admission is not such a violation of
 
 BENEVOLENT SOCIETIES, VI. BIBLE. 
 
 215 
 
 the policy of the law as will subject such 
 a society to dissolution. Id. 
 
 VI. Editorial Notes. 
 
 As to Collusiveness and Review of Deci- 
 sions of, see Courts, VI. 
 3. 
 
 i. Generally. 
 
 How regarded under the vn.rjons state stat- 
 utes. -2: 421.* 
 
 Is a benefit association an insurance com- 
 pany. 38: 33. 
 
 Enlarged powers conferred by statute. 4: 
 382.* 
 
 Dissolution of. 2: 550.* 
 
 Property rights. 2: 841.* 
 
 Liability of property owned by fraternal 
 societies to ass*assment for 
 local improvements.. 35: 
 38. 
 
 z. Rights and obligations of members. 
 
 Expulsion and Discipline of Members, see 
 Associations, III. 2. 
 
 Powers of members of. 2: 163.* 
 
 Laws of society determining rights of mem- 
 bers. 5: 96." 
 
 Application of accrued benefits upon dues 
 or assessments accruing 
 on a benefit certificate. 
 .">">: 005. 
 
 3. Regulations; by-laws. 
 
 Power to make by-laws; repeal. 3: 409.* 
 
 Members bound by by-law. 3: 409.* 
 
 Amendment and repeal of by-laws. 3 : 409.* 
 
 BENZINE. 
 
 Effect of Keeping, on Insurance, see Insur- 
 ance, 481, 482. 
 
 BEQUEST. 
 
 Bee Wills, III. 
 
 BERMUDA GRASS. 
 
 The mere spreading to adjoining farms of 
 Bermuda grass planted by a railroad com- 
 pany upon its right of way to preserve the 
 embankments does not render the company 
 liable for the damages caused thereby, where 
 it is not shown that a person of ordinary 
 prudence would not have planted such grass 
 upon such right of way. Gulf. C. & S. F. 
 R. Co. v. Oakes. 94 Tex. 155, 58 S. W. 9!)9. 
 
 52: 293 
 
 BERRIES. 
 Levy on, see Levy and Seizure, 25. 
 
 BERTILLON SYSTEM. 
 
 Authority to Measure Convict Awaiting Ex- 
 ecution, see Convicts, 6. ' 
 
 BEST AND SECONDARY EVIDENCE. 
 See Evidence, III. 
 
 BETTERMENTS. 
 Preference of Claim for, see Receivers, 93, 98, 
 
 BETTING. 
 
 Validity of Note Payable in Event of Elec- 
 tion to Office, see Bills and Notes, 25. 
 
 Validity of Gambling and Wager Contracts, 
 see Contracts, III. d. 
 
 Regulation of, as Interference with Com- 
 merce, see Commerce, 8-10. 
 
 On Horse Race, see Conflict of Laws, 244 ; 
 Gaming, 11-16. 
 
 Playing Pool as. see Gaming, 1. 
 
 Partnership in Business of, see Partnership, 
 104-107. 
 
 Title of Statute as to, see Statutes, 230-232. 
 
 1. The Texas statute against betting on 
 the result of an election is not violated 
 where one party offers to bet a specified 
 amount on the result of an election, and 
 puts up such amount, while the other party 
 puts up a smaller amount, which is to be, for- 
 feited upon his failure within a specific 
 time to put up the balance, and a forfeiture 
 is declared for failure to put up the balance. 
 Rich v. State, 38 Tex. Crim. App. 199, 42 S. 
 W. 291, 38: 719 
 
 2. Money deposited with a stakeholder as 
 a wager on a foot race, by one who knows 
 that the race is to be bogus and has been 
 fixed in advance, may be recovered by him 
 on demand before the race has been run. 
 Bernard v. Taylor, 23 Or. 416, 31 Pac. 968, 
 
 18: 859 
 
 BIAS. 
 
 Effect of. on Competency of Juror, see Jury, 
 
 84, 95. 
 Cross-Examination of Witness to Show, see 
 
 Witnesses, 116-118. 
 
 BIBLE. 
 
 Judicial Notice of Contents of, see Evidence, 
 
 145. 
 Entries in, as Evidence, see Evidence, 1018, 
 
 1019.
 
 246 
 
 BICYCLE PATHS; BICYCLES. 
 
 Reading of, in Schools, see Constitutional 
 Law, 1094; Evidence, 136; Pleading, 
 448; Schools, 114, 119-128; Trial, 508. 
 
 Editorial Notes. 
 Entries in, as evidence. 41: 449. 
 
 BICYCLE PATHS. 
 
 Indictment for Driving on, see Indictment, 
 
 etc., 69. 
 
 License Tax to Maintain, see License, 45. 
 Special Legislation as to, see Statutes, 375. 
 Tax for, see Taxes, 70, 71. 
 
 1. A bicycle path constructed with the 
 proceeds of a tax on bicycles is a highway 
 for bicvclists and pedestrians. Ellis v. Fra- 
 /.ier. 38 Or. 462, 63 Pac. 642, 53: 454 
 Prohibition against driving animals or ve- 
 hicles on. 
 
 2. The bicycle paths upon which it is made 
 unlawful by Minn. Laws 1899, chap. 43, 1, 
 to drive animals or vehicles except bicycles, 
 include public bicycle paths only, and not 
 private bicycle paths which a person has 
 constructed upon his own land. State v. 
 Bradford, 78 Minn. 387, 81 N. W. 202, 
 
 47: 144 
 
 3. The establishment of a public bicycle 
 path by county commissioners' is impliediy 
 ratified, and the use of a portion of the 
 public highway therefor impliediy author- 
 ized, by Minn. Laws 1899, chap. 43, 1, 
 making it a misdemeanor to drive animals 
 or any vehicles except bicycles upon such 
 paths. Id. 
 Duty ani liability of city constructing. 
 
 4. The location of a bicycle path is not 
 so far a governmental function that the 
 city making it will be relieved on that 
 ground from liability for injuries caused by 
 a location which is unsafe for the ordinary 
 travel for which it is intended. Prather v. 
 Spokane. 29 Wash. 549, 70 Pac. 55, 59: 346 
 
 5. A city which voluntarily constructs 
 a cinder bicycle path along the side of one 
 of its streets must construct and maintain 
 it so that it will be reasonably safe for the 
 ordinary use for which it is intended. Id. 
 
 6. A city which locates a turn in a bicy- 
 cle path at a street corner, within 4 feet of 
 the gutter of the cross, street, into which 
 persons usinsr it are liable to ride and be 
 injured, without any barrier, sien. or other 
 means of notifying travelers of the danger, 
 is liable to a traveler who, after dark, in 
 the exercise of ordinary care, goes over the 
 curb and is injured. Id. 
 
 7. Vhat one using a bicycle path con- 
 structed by the city for that purpose might 
 have used the street without injury will 
 not relieve the city from liability for inju- 
 ries caused by the unsafe condition of the 
 path. Id. 
 
 BICYCLES. 
 
 Assault by Use of, see Assault and Batterv, 
 10. 
 
 Discrimination against Riders, see Consti- 
 tutional Law, 348, 349. 
 
 Judicial Notice as to, see Evidence, 102, 161. 
 
 Burden of Disproving Negligence in Use of, 
 see Evidence, 559. 
 
 Exemption of, see Exemptions, 42. 
 
 Manslaughter by Collision Resulting in 
 Death, see Homicide, 7. 
 
 Restraining Use of Railroad Track by Rider, 
 see Injunction, 421. 
 
 License Tax on, see License, 45, 100. 
 
 Tax on, see Statutes, 375; Taxes, 70, 71. 
 
 Title of Ordinance Regulating, see Munici- 
 pal Corporations, 100. 
 
 Municipal Liability for Injury by, see Mu- 
 nicipal Corporations, 549, 550. 
 
 Contributory Negligence of Boy Riding, see 
 Negligence, 200. 
 
 Rider's Right to Pass on Right-Hand Side, 
 see Neglierence, 233. and also infra, 
 Editorial Notes. 
 
 Proximate Cause of Injury to Rider, see 
 Proximate Cause, 92, 105. 
 
 Injury to Rider by Street Car. see Street 
 Railways, 124, 129, 148, and also infra, 
 Editorial Notes. 
 
 Right to Collect Toll from Riders, see Tolls 
 and Toll Roads, 18-21, and also infra, 
 Editorial Notes. 
 
 Injury to Rider, Question for Jury, see 
 trial, 395, 390. 
 
 For Bicycle Paths, see Bicycle Paths. 
 
 On sidewalk. 
 
 Tricycle as Bicycle, see Highways, 102. 
 Who may be Informer as to use of, see 
 Informers. 
 
 1. The riding of a bicycle upon a sidewalk 
 is not an unlawful act at the common law. 
 Lee v. Port Huron, 128 Mich. 533, 87 N. W. 
 637, 55: 308 
 
 2. Charter power to regulate the use of 
 sidewalks authorizes an ordinance permit-; 
 i\u*r the riding of bicycles on them, where 
 such act will not amount to a nuisance. Id. 
 
 3. A tricycle is not within the scope of 
 an ordinance prohibiting the use of "all va- 
 rieties of vehicles known by the general 
 name 'bicycles,' " on sidewalks. Wheeler v. 
 Boone, 108 Iowa, 235, 78 N. W. 909, 44: 821 
 
 4. A sidewalk is intended for the use of 
 pedestrians, and a person on a bicycle makes 
 an unlawful use of it when he rides or drives 
 his bicycle along it longitudinally. Mercer 
 v. Corb'in, 117 Ind. 450, 20 J.N. E. 132, 3: 221 
 
 5. One riding a bicycle on a sidewalk or 
 footway incurs the penalty provided by Pa. 
 act May 7, 1889, against driving any horse, 
 or any other animal upon such walk, by vir-. 
 tue of the act of April 23, 1889, declaring 
 that bicycles and persons using them are 
 entitled to the same rights and subiect to' 
 the same restrictions as are prescribed in 
 case of persons using carriages drawn by 
 horses. Com. v. Forrest, 170 Pa. 40, 32 Atl. 
 653. 29: 365 
 
 6. The fact that a sidewalk was on land 
 appropriated by a turnpike company, and 
 had been constructed and kept un by the 
 turnpike eompanv, aided by contributions 
 from village residents, does not exempt it 
 from the provisions of Pa. act 1889, prohibit-:
 
 BICYCLES. 
 
 247 
 
 ing the use of sucfh walks by persons riding 
 bicycles. Id. 
 
 7. The consent of a turnpike company to 
 the use by bicycles of a sidewalk established 
 alongside the highway and on land appro- 
 priated by the company cannot make such 
 use lawful under Pa. act 1889, prohibiting 
 the use of bicycles on sidewalks. Id. 
 
 8. The unlawful use of a sidewalk by bi- 
 cyclers for a time without complaint can- 
 not avail as a defense to the prosecution of 
 a person for such offense. Id. 
 On bridge. 
 
 Burden of Proof as to, see Evidence, 204. 
 
 !). A law forbidding the riding of bicycles 
 on a public bridge is reasonable if such rid- 
 ing would be likely to frighten horses and 
 imperil the lives of passengers on the bridge. 
 Twilley v. Perkins, 77 Md. 252, 2G Atl. 286, 
 
 19: 632 
 
 10. A rule or by-law forbidding any per- 
 son to ride a bicycle, tricycle or velocipede, 
 over a public bridge is within the authority 
 granted to county commissioners by statute 
 to "make reasonable rules and regulations 
 for the use of said bridge." Id. 
 
 11. An ordinance making it unlawful to 
 ride upon any bicycle or velocipede upon 
 any sidewalk within the city of Topeka, 
 Kansas, or across the Kansas river bridge, 
 will not be construed to forbid riding on that 
 part of the bridge used for other vehicles, 
 as such a construction would render the or- 
 dinance void. Swift v. Topeka, 43 Kan. 671, 
 23 Pac. 1075, 8: 772 
 In highway generally. 
 
 Right of Person Riding in Highway to Re- 
 cover for Injuries Due to Defects There- 
 in, see Highways, 251-255. 
 
 Contributory Negligence on Approaching 
 Railroad Track, see Railroads, 282, and 
 also infra, Editorial Notes. 
 
 12. A bicycle is not within the meaning of 
 a statute passed in 1786, requiring highways 
 to be kept reasonably safe for carriages. 
 Richardson v. Danvers, 176 Mass. 413, 57 N. 
 E. 688, 50: 127 
 
 13. A bicycle is a vehicle, and may be law- 
 fully ridden upon the public highway for 
 convenience, recreation, pleasure, or business. 
 Thompson v. Dodge, 58 TJinn. 555, 60 N. W. 
 545, 28: 608 
 
 14. An ordinance forbidding the use of bi- 
 cycleson that part of a public street devoted 
 to the use of vehicles is void as against com- 
 mon right. Swift v. Topeka, 43 Kan. 671. 
 23 Pac. 1075, 8: 772 
 
 15. A person driving a horse on a highway 
 has no rights superior to those of a person 
 riding a bicycle. Thompson v. Dodge, -58 
 Minn. 555, 60 N. W. 545, 28: 608 
 
 16. One riding a bicycle down a narrow 
 path at a rate of 5 or 6 miles an hour, when 
 it is occupied by many other persons going 
 in the same direction, is not excused from 
 liability for running into a pedestrian by 
 the fact that the accident was caused by his 
 striking an obstacle, at least if it does noc 
 appear that he was unable to see and avoid 
 it by the. exercise of due care. Myers v. 
 Hinds, 110 Mich. 300, 68 N. W. 156, 33: 356 
 
 17. A person who rides a bicycle without 
 
 a light or other signal of warning in a pub- 
 lic thoroughfare when he is liable to meet 
 moving vehicles or pedestrians, at a time 
 when objects can be discerned readily at a 
 distance of but a few feet, is guilty of neg- 
 ligence. Cook v. Fogarty, 103 Iowa, 500, 72 
 N. W. 677, 39: 488 
 
 18. Authority to provide for the safety 
 of its inhabitants will give a municipality 
 power to require bicyclists using its streets 
 after dark to carry lights. Des Moines v. 
 Keller, 116 Iowa, 648, 88 N. W. 827, 57: 243 
 
 19. The reasonableness or unreasonable- 
 ness of an ordinance or regulation prohibit- 
 ing any person to ride on the streets a bi- 
 cycle having handle bars of which the lower 
 end is on a plane more than 4 inches below 
 the top of the saddle at its center is more 
 or less a question of fact, depending on the 
 proof as to the safety of such a vehicle 
 when used by a person of ordinary care and 
 skill in riding. Moore v. District of Colum- 
 bia, 12 App. D. C. 537, 41 : 208 
 Rules of the road. 
 
 See also infra, feuitorial Notes. 
 
 20. A bicycle is a carriage or a vehicle 
 within the meaning of R. I. Pub. Stat. chap. 
 66, 1, requiring every person traveling 
 with any carriage or other vehicle, on meet- 
 ing any other person so traveling on any 
 highway or bridge, to pass on the right of 
 the centre of the traveled part of the road. 
 State v. Collins, 16 R. I. 371, 17 Atl. 131, 
 
 3: 394 
 
 21. The rider of a bicycle is not required 
 to give way to a heavily laden wagon when 
 turning a corner and keeping on the right 
 side of the street, as required by the law 
 of the road and the express terms of an or- 
 dinance, unless some apparent necessity is 
 shown tor an exception to the rule. Foote 
 v. American Product Co. 195 Pa. 190, 45 Atl. 
 934, 49: 764 
 
 22. One riding a bicycle, as he approaches 
 a corner, keeping on the right side of the 
 street, has a right to assume that the driver 
 of a wagon approaching the corner from an- 
 other direction will keep to the right if they 
 meet, so that the bicycle can pass between 
 the wagon and the curb. Id. 
 
 23. The rule requiring drivers of vehicles 
 drawn by horses, and riders 'of bicycles, to 
 regard the ordinary rules of the road for 
 each other's convenience and safety in the 
 ordinary occupancy of streets, does not re- 
 quire the driver of a cart in an open, un- 
 obstructed highway to drive to one side in 
 order that the bicyclist may be relieved of 
 the necessity of deviating from a straight 
 line. Taylor v. Union Traction Co. 184 Pa. 
 465, 40 Atl. 159, 47: 289 
 
 24. Bicycles are not within the meaning of 
 an ordinance giving vehicles a right of way 
 upon street railway tracks in the direction 
 in which the cars usually run, over vehicles 
 moving in the opposite direction, so that a 
 bicyclist riding between the rails can compel 
 an approaching vehicle to give way to him. 
 
 Id. 
 
 25. A bicyclist who rides between street 
 railway tracks towards a vehicle approach- 
 ing from the opposite direction, under the
 
 248 
 
 BID; BIGAMY. 
 
 erroneous impression that he can compel it 
 to give way to him, until a collision is un- 
 avoidable, cannot hold the owner of the ve- 
 hicle liable for injuries received by him 
 from the collision. Id. 
 
 26. A person riding between the rails of 
 an electric street railway upon a bicycle 
 has the duty to look out for and endeavor 
 to avoid danger from the electric cars. Ev- 
 erett v. Los Angeles Consol. Electric R. Co. 
 115 Gal. 105, 43 Pac. 207, 34: 350 
 
 27. Contributory negligence will prevent 
 a recovery under a statute making one driv- 
 ing on a highway liable for damages caused 
 by his failure to turn to the right upon 
 meeting another vehicle. Cook A T . Fogarty, 
 103 Iowa, 500, 72 N. W. 677, 39: 488 
 Insurance of. 
 
 See also infra. Editorial Notes. 
 
 28. A bicycle association which for mem- 
 bership fees of $6 per year agrees to clean a 
 member's bicycle twice during the year, re- 
 pair tires whien punctured by accident, and 
 the bicycle when damaged by accident, and 
 replace it if stolen unless recovered in 
 eight weeks, and provide a bicycle during 
 that time, does not constitute an insurance 
 company which is required to have a char- 
 ter as such, under Pa. act 1876. Com. ex 
 rel. Hensel v. Provident Bicycle Asso. 178 
 Pa. 636, 36 Atl. 197, 36: 589 
 
 Editorial Notes. 
 
 Bicycle law. 47 : 289. 
 
 Right of bicyclists to use highways, 
 generally. 47: 289. 
 
 Validity of enactments restricting the 
 use of highways by cy- 
 clists. 47:290.' 
 
 Reciprocal duties of cyclists and other 
 persons traveling on high- 
 ways. 47: 292. 
 
 Duty of cyclists to pedestrians. 
 47 : 292. , 
 
 Bicyclists entitled to benefits 
 and subject to burdens 
 of the rules of the road. 
 47: 293. 
 
 Liability for frightening horses. 47: 
 295. 
 
 Duty of cyclists to carry bells and 
 lamps. 47: 295. 
 
 Use of footpath by cyclists. 47 : 296. 
 Under the common law. 47:296. 
 Under statutes and ordinances. 
 47: 296. 
 
 Right of cyclists to recover for injuries 
 caused by defective high- 
 ways. 47: 298. 
 
 Special enactments for the protection 
 and convenience; of cy- 
 clists. 47: 301. 
 
 Injuries to cyclists at railway cross- 
 ings. 47: 301. 
 
 Injuries to cyclists caused by street 
 cars. 47: 302. 
 
 Injuries to bicycles left standing in 
 streets. 47: 303. 
 
 Payment of tolls, liability of cycles to. 
 47: 303. 
 
 Cycles as a subject of taxation by mu- 
 nicipalities. 47: 304. 
 
 Bicycles as a subject of contracts of 
 
 sale or lease. 47: 305. 
 The bicycle as a subject of bailment. 
 
 47: 305. 
 The bicvcle as a subject of insurance. 
 
 47 : 307. 
 When a bicycle is a necessary for a 
 
 minor. 47: 307. 
 
 BID. 
 
 At Auction, see Auction, 3, 4. 
 
 Construction of Contract as to, see Con- 
 tracts, 359. 
 
 Validity of Contract to Affect, see Con- 
 tracts, 426-430. 
 
 Disqualification of Bidder, see Contracts,. 
 514. 
 
 Validity of Contract Affecting, see Con- 
 tracts, 634, 635. 
 
 For Corporate Stock, Performance of Con- 
 tract to Procure, see Contracts, 706. 
 
 For Public Contract, see Contracts, VII. b. 
 
 At Judicial Sale, Necessity of Compliance 
 with, see Judicial Sale, 29-32. 
 
 Grant of Franchise to Highest Bidder, see 
 Railroads, 1. 
 
 Editorial Notes. 
 Lowest, for public contracts. 26: 707. 
 
 BIGAMY. 
 
 Conflict of Law as to, see Conflict of Laws, 
 245, 246, 307. 
 
 Evidence of Former Marriage, see Evidence, 
 979. 
 
 Right of One Committing to Administer For- 
 mer Husband's Estate, see Executor* 
 and Administrators, 9. 
 
 Competency of Wife as Witness, see Wit- 
 nesses, 34, 37. 
 
 1. Cohabitation with a bigamous wife, 
 in violation of Ala. Grim. Code, 1896, 4406, 
 continues while the parties live together os- 
 tensibly as husband and wife, presenting- 
 to the community the appearance of the open 
 and demoralizing example of living in an 
 illicit relation, although in fact such rela- 
 tions have ceased because of the wife's 
 physical incapacity. Cox v. State, 117 Ala. 
 103, 23 So. 80<, 41: 760 
 
 2. A man may be guilty of bigamy al- 
 though he believes his former marriage is 
 annulled, where a statute describes the of- 
 fense as marrying again while a former hus- 
 band or wife is living, without any specific 
 provision as to criminal intent. State v. 
 Xichfekl, 23 Nev. 304, 46 Pac. 802, 34: 784 
 
 3. The fact that at the time one accused 
 of polygamy contracted his alleged polyga- 
 mous marriage, he had a bona fide and rea- 
 sonable belief that his former wife was dead, 
 does not constitute a defense under the 
 Massachusetts statutes. Com. v. Harden, 
 163 Mass. 453. 40 N. E. 846, 28: 318
 
 BILL BOARDS BILLS AND NOTES. 
 
 249 
 
 Editorial Notes. 
 
 Necessity of proof of marriage. 08: 42. 
 Criminal liability of children for. 36: 202. 
 
 BILL BOARDS. 
 
 Judicial Notice as to, .see Evidence, 157. 
 
 Unreasonableness of License Fees for Main- 
 taining, see License, 149. 
 
 Municipal Regulation of, see Municipal Cor- 
 porations, 153158. 
 
 Municipal Liability for Injury by Fall of, 
 see Municipal Corporations, 551. 
 
 Liability for erecting a billboard in ex- 
 cess of the height authorized by ordinance is 
 not controlled by the fact that no injury 
 lias occurred by reason thereof, or that it 
 is improbable that any such injur^will occur 
 therefrom. Rochester v. West, 164 N. Y. 
 510, 58 N. E. 073, 53: 548 
 
 BILLS. 
 
 See Statutes. 
 
 BILLS AND NOTES. 
 
 I. Nature; Requisites and Validity. 
 
 a. In general. 
 
 b. Validity Generally; Delivery. 
 
 c. Consideration. 
 
 d. Negotiability. 
 
 1. In General. 
 
 2. Certainty as to Maturity and 
 
 Amount. , 
 
 II. Acceptance. 
 
 III. Indorsement and Transfers. 
 
 a. In General. 
 
 b. Liability of Indorser. 
 
 1. In General. 
 
 2. Indorsement before Delivery. 
 
 3. Restrictive Indorsements. 
 o. Discharge of Indorser. 
 
 IV. Presentment; Demand; Notice; Protest. 
 
 a. Necessity. 
 
 b. Sufficiency. 
 
 c. Notice of Protest. 
 V. Rights of Transferees. 
 
 a. Extent of Rights and Protection 
 
 Generally. 
 
 1. In General. 
 
 2. Of Bona Fide Holders. 
 
 b. Who are Protected as Bona Fide 
 
 Purchasers. 
 
 1. In General. 
 
 2. Knowledge; Notice; Facts 
 
 Putting on Inquiry. 
 
 3. Taken as Collateral Security 
 
 or for Antecedent Debt. 
 
 VI. Actions and Defenses: Maturity. 
 
 a. In General; Right of Indorser to 
 
 Sue. 
 
 b. Maturity; Extension. 
 
 c. Defenses. 
 
 VII. Editorial Notes. 
 
 For Part of Debt as Accord and Satisfaction, 
 see Accord and Satisfaction, 11. 
 
 Effect on, of Releasing Contract of Satisfac- 
 tion, see Accord and Satisfaction, 19. 
 
 Alteration of, see Alteration of Instruments, 
 II.; III. 
 
 Recovery by Volunteer Paying, see Assump- 
 sit, 7. 
 
 Recovery of Advance Payment of Interest 
 on, see Assumpsit, 30. 
 
 Attachment against Bank for Outstanding 
 Draft, see Attachment, 3. 
 
 Provision for Attorneys' Fees in, see Attor- 
 neys' Fees. 
 
 Payment Out of Bauk Deposit, see Banks, 
 90-96. 
 
 Cashier's Check as, see Banks, 131. 
 
 Collection of, see Banks, IV. b; Pleading, 
 316. 
 
 Draft with Bill of Lading Attached, see 
 Banks, 200; Bills of Lading, 3-8; Car- 
 riers, 813; Pleading, 290; Sale, 23-26, 
 and also infra, VII. 1. 
 
 Power of Loan Association to Execute or 
 Accept, see Building and Loan Associa- 
 tions, 58, 59. 
 
 As to Certificates of Deposit, see Banks, IV. 
 a, 4. 
 
 As to Checks, see Banks, IV. a, 3; IV. b; 
 Checks. 
 
 Chattel Mortgage Securing Several Notes, 
 see Chattel Mortgage, 93. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 I. b, 2; III. 3. 
 
 Oral Agreements as to, see Contracts, 140- 
 142. 
 
 Authoritj' of Corporate Officers to Make, see 
 Corporations. 226, 231, 234, 242, and 
 also infra, VII. 8. 
 
 Liability of Corporate Officers on, see Cor- 
 porations, 295-302, and also infra, VII. 
 8. 
 
 Following State Decisions as to, see Courts, 
 546-549. 
 
 State Courts Following Federal Decisions as 
 to, see Courts, 517, 518. 
 
 Measure of Damages for Protesting, see 
 Damages, 287. 
 
 Restoration of, Before Rescinding Contract, 
 for Duress, see Duress. 12. 
 
 Estoppel of Maker to Claim Right to Re- 
 ceive Back, see Estoppel, 221. 
 
 Presumption and Burden of Proof as to, see 
 Evidence. 170. 236. 282, 305, 403, 640, 
 671-680. 691-694, 732-738. 
 
 Proof of Ownership of, see Evidence, 2272. 
 
 As Evidence, see Evidence, IV. m. 
 
 Parol Evidence as to, see Evidence, VI. f. 
 
 Stay of Execution on Judgment for Maker, 
 see Execution, 13. 
 
 Personal Liability of Personal Representa- 
 tive, see Executors and Administrators^ 
 81-83. 
 
 Fraud as to, see Fraud and Deceit. VI. 
 
 Gift of, see Gift. 13-18, 40, 43, 51, 56. 
 
 Guaranty of, see Guaranty, 14-18, 23, 25. 29, 
 35, 38, 41. 
 
 Third Person's Right of Action on Guaranty 
 of, see Parties, 71.
 
 250 
 
 BILLS AND NOTES. I. a. 
 
 Exemption of Homestead from, see Home- 
 stead, 25. 
 
 By Married Woman, see Conflict of Laws, 
 116-118; Husband and Wife, 28-35, 40, 
 47. 
 
 Injunction against Making, for Corporation, 
 see Injunction, 228. 
 
 Stay of Action on Purchase Money Notes, 
 see Injunction, 270. 
 
 Premium >otes, see Insurance, 220, 602-4306, 
 644, 648-659, 809, 858-860. 
 
 Interest on, see Interest, 13, 14, 73, 82, 86, 
 87, 98. 100. 
 
 Joint Liability as Makers on, see Principal 
 and Surety, 6, 9, 55. 
 
 Effect of Judgment as to, see Judgment, 
 236. 
 
 Judgment on, see Judgment, 350, 368. 
 
 Action on Lost Note, see Lost Instruments. 
 
 Rights of Holder in Mortgage Security, see 
 Mortgage 1, 79-81, 106-117, 127, 149, 
 218. 
 
 Surety on Mortgage to Secure, see Principal 
 and Surety, 10. 
 
 Power of Partners as to., see Partnership, 
 27-34. 
 
 Liability of Partners on, see Partnership, 
 36, 37, and also infra, VII. 8. 
 
 Payment of Firm Debt Out of Proceeds of 
 Note to Partner, see Partnership. 98. 
 
 Payment of, see Payment, 2, 4, 27-31 ; Sub- 
 rogation, 7. 
 
 Payment by Note, see Payment, 8-12. 
 
 Application of Payments on, see Payment, 
 38-41, 48, 49. 
 
 Pleading as to, see Pleading, 15, 41, 42, 86, 
 120, 24.3, 2<>6. 288-291, 316, 469, 512, 533, 
 534, 608. 
 
 Failure to Pay on Demand, see Pledge and 
 ('pHit^nl' Securitv. i:$. 
 
 Pledge to Secure, see Pledge and Collateral 
 oeturity, 13, 14. 
 
 Pledge of. see Pledge and Collateral Secur- 
 ity, 25, 26, 33. 
 
 Agency as to Loan, see Principal and Agent, 
 2. 
 
 Holder's Power to Repudiate Condition 
 Agreed to by Agent Taking, see Prin- 
 cipal and Agent. 19, 20. 
 
 Liability of Agent Signing, see Principal and 
 Agent, 92. and also infra, VII. 8. 
 
 Surety on, see Conflict of Laws, 41 ; Prin- 
 cipal and Surety, 1, 3, 6. 9, 11, 12, 25, 28, 
 29, 34. 35, 40-4!. 51. 52, 55. 
 
 Note for Purchase Price of Goods, see Sale, 
 106, 126, 131, 164-166. 
 
 Effort, of Taking, on Right of Stoppage in 
 Transitu, see Sale, 148, 149. 
 
 Set-OfT of, or Against, see Set-Off and Coun- 
 terclaim, 41, 51-53, 61. 
 
 Taxat : on of, see Taxes, 109. 121, 343. 
 
 Liability of Town on, see Towns; 18. 
 
 Usury in. seo Usury, 12-16, 32, 35-37, 39, 42- 
 44. 50-53. 
 
 POT Purchase Money, see Vendor and Pur- 
 e-baser, (xi, 61. 63. M. 
 
 Secured by Vendor's Lien, see Vendor and 
 Purchaser, II. 
 
 Service on Pledgeor of, see Writ a;;d Pro- 
 cess. 50. 
 
 I. Nature; Requisites and Validity, 
 a. In General. 
 
 Nature of Check, see Checks, 1, 2. 
 
 Time of Taking Effect of Note Given in 
 Settlement, see Compromise and Set- 
 tlement, 17. 
 
 Preliminary Proof of Execution, see Evi- 
 dence, 815. 
 
 For Editorial Notes, see infra, VII. 3. 
 
 1. The terms of a note may be modified 
 and controlled by an accompanying mort- 
 gage. Brooke v. Struthers, 110 Mich. 562, 
 68 N. W. 272, 35: 536 
 
 2. A promissory note, and a contemporan- 
 eous written agreement referring thereto 
 and providing that the maker may receive 
 back the' note on surrendering certain stock, 
 constitute an entire contract the stipula- 
 tions of which are mutual and dependent, 
 rather than independent and collateral. 
 American Gas & V. M. Co. v. Wood, 90 Me. 
 516, 38 Atl. 548, 43: 449 
 
 3. A stipulation on the face of a promis- 
 sory note that it is given to secure the 
 payment of a church debt does not make 
 the instrument a contract of guaranty on 
 which liability is contingent on default of 
 the principal debtor. Clanin v. Esterly Har- 
 vesting-Mach. Co. 118 Ind. 372, 21 N. E. 
 35, 3: 863 
 
 4. A payee who knows of the facts in- 
 volved has no better right to enforce drafts 
 drawn by his secret agent than the latter 
 had to claim the fund drawn upon. Balti- 
 more Trust & G. Co. V. Hambleton, 84 Md. 
 456, 36 Atl. 597, 40: 217 
 
 5. That a draft is to the knowledge of 
 the payee drawn by the agent of the 
 drawee to pay the latter's debt will not re- 
 lieve the drawer from personal liability 
 thereon if he directs the amount to be 
 charged to his account. Citizens' Bank v. 
 Millett, 103 Ky. 1, 44 S. W. 366, 44: 664 
 
 6. The execution of a renewal note in con- 
 sideration of the surrender of one upon 
 which the signer was liable as surety will 
 bind him as principal, as between himself 
 nml the payee. Garrigue v. Keller, 164 Ind. 
 676, 74 N. E. 523, 6T: 870 
 
 7. A dunlicate draft given by the drawer 
 of one which has been lost does not, as a 
 matter of law, import a promise to pay the 
 draft or waive a defense to liability there- 
 on, where it was done to accommodate the 
 payee and enable him to collect the money 
 from the drawee. Bank of Gilby v. Farns- 
 worth. 7 N. D. 6, 72 N. W. 901, 38: 843 
 What are. 
 
 Certificates of Stock as Negotiable Instru- 
 ments, see Corporations, 397, 398. 
 Soe also infra. 59. 
 For Editorial Notes, see infra, VTT, 2. 
 
 8. The fact that the bank at which a note 
 is made payable is itself the payee does 
 not tnke the note out of the operation of a 
 statute which makes notes payable to or- 
 der at banks, within the state inland bills 
 of ex-chancre. De Pauw v. Bank of Salem, 
 126 Ind. 553, 25 N. E. 705, 10:46 
 
 9. That an instrument may be a promis-
 
 BILLS AND NOTES, I. b. 
 
 251 
 
 sory note it must contain on its face an ex- 
 press promise to pay money. Hence an in- 
 strument in the following form: "I. O. U 
 the sum of $17.05 for value received,' 
 signed by the maker, is not a promissory 
 note. Gay v. Rooke, 151 Mass. 115, 23 N 
 E. 835,' 7: 392 
 
 10. A draft for money drawn on a bank 
 payable at a day subsequent to its date and 
 to the date of its issue, is not a "check," 
 but is a "bill of exchange" and entitled to 
 grace. Harrison v. Nicollet Nat. Bank, 41 
 Minn. 488, 43 N. W. 336, 5: 746 
 Note payable to fictitious person. 
 
 For Editorial Notes, see infra, VII. 4. 
 
 11. The rule that a negotiable instrument 
 made payable to a fictitious person or order 
 is, in effect, an instrument payable to bear- 
 er, applies only where it is so made with 
 the knowledge of the party making it, and 
 does not apply where the mal^sr, supposing 
 the payee to be a real person, and intending 
 payment to be made to such person or his 
 order, is induced by the fraud of another 
 to draw it. Armstrong v. Pomeroy Nat. 
 Bank, 46 Ohio St. 512, 22 N. E. 866, 6: 625 
 
 12. A negotiable paper note made payable 
 to a fictitious person and negotiated by the 
 maker, which is given the same validity as 
 against the maker and all persons having 
 knowledge of the facts as if payable to bear- 
 er, by N. Y. Rev. Stat. 768.' 5, includes 
 only paper made with knowledge that the 
 payee is fictitious, and does not include pa- 
 per made by one who supposes the payee to 
 be a real person, and which is fraudulently 
 negotiated by a third person without the 
 maker's fault. ShSpman v. Bank of the 
 Bank of New York, 126 N. Y. 318, 27 N. E. 
 371, 12: 791 
 Memorandum on. 
 
 13. A statement upon the face of a prom- 
 issory note, that it is given for advance- 
 ments, may be regarded as a mere memo- 
 randum not changing the contract, and is 
 immaterial. Citizens' Nat. Bank v. Piollet. 
 126 Pa. 194, 17 Atl. 603, 4: 190 
 
 14. A condition or memorandum written 
 in or indorsed on a promissory note by the 
 maker prior to its delivery is a substantive 
 part of such note. Snecht v. Beindorff, 56 
 Neb. 553, 76 N. W. 1059, 42: 429 
 
 b. Validity Generally: Delivery. 
 
 Validity as to Transferee, see infra, V. a. 
 Validity of Provision for Attorneys' Fees, 
 
 see Attorneys' Fees, 9-13. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 35-40. 
 
 Given for Money to Use in Cotton Specula- 
 tion, see Contracts, 530. 
 Effect of Provision against Payment with 
 
 Money Borrowed from Third Person, 
 
 see Contracts, 437, 438. 
 Note by Indian, see Indians, 2. 
 By Incompetent Person, see Incompetent 
 
 Persons, 12, 13. 
 
 By Infant for Necessaries, see Infants, 64. 
 By Insolvent Firm, see Partnership, 68. 69. 
 To Withdrawing Member of Insolvent Firm, 
 
 see Partnership, 50. 
 For Editorial Notes, see infra, VII. 7. 
 
 15. A note given as a forfeit in case of 
 the nonperformance of a parol contract for 
 the sale of land void under the statute of 
 frauds is itself void. Kraak v. Fries, 21 D. 
 C, 100, 18: 142 
 Certainty as to maturity. 
 
 Effect, on Negotiability, see infra, 63-70. 
 
 16. A note is not invalid because it prom- 
 ises to pay "on or before" a named date. 
 Miller v. Western College, 177 111. 280, 52 
 N. E. 432, 42: 797 
 
 17. The fact that a note is to become due 
 in the event of the death of the maker be- 
 fore the date of its maturity does not in- 
 validate it. Id. 
 
 18. A note payable "thirty days after 
 death" may be a valid instrument. Carn- 
 wright v. Gray, 127 N. Y. 92, 27 N. E. 835, 
 
 12: 845 
 Note making gift to college. 
 
 19. A provision in a promissory note 
 making a gift to a college, that it is to be 
 used for a specific purpose, does not make 
 the note invalid. Miller v. Western Col- 
 lege, 177 111. 280, 52 N. E. 432, 42: 797 
 By intoxicated person. 
 
 20. A note is not rendered void by the 
 fact that at the time of signing it the mak- 
 er is voluntarily intoxicated, merely to the 
 extent that he cannot give proper atten- 
 tion to it, that attention that a reasonably 
 prudent man would be able to give. Wright 
 v. Waller, 127 Ala. 557, 29 So. 57. 54: 440 
 Payable to "estate" of a deceased person. 
 
 21. A note payable to "the estate" of a 
 certain person deceased, or order, is not in- 
 valid as a promissory note for want of a 
 sufficiently definite pavee. Shaw v. Smith, 
 150 Mass.* 166, 22 N. E.- 887. 6: 348 
 Against public policy; wagering contract. 
 For Editorial Notes, see infra. VTT. 7. 
 
 22. A note for benefits and advantages re- 
 ceived or expected to be received by a mem- 
 ber of an association under the provisions 
 and by-laws, which are contrary to public 
 policy, cannot be enforced by the associa- 
 tion against the maker. Milwaukee Masons' 
 & B. Asso. v. Niezerowski, 95 Wis. 129, 70 
 N. W. 166, 37: 127 
 
 23. A note given to reimburse a surety 
 on a fidelity bond for what it has been com- 
 pelled to pay because of the principal's em- 
 bezzlement, on condition that the surety 
 would not prosecute the principal for the 
 defalcation, is void. United States Fidelity 
 & G. Co. v. Charles, 131 Ala. 658, 31 So. 
 558, 57:212 
 
 24. A note given in consideration of con- 
 cealing from the maker's wife and from the 
 public his criminal intimacy with another 
 woman cannot be enforced. Case v. Smith, 
 107 Mich. 416, 65 N. W. 279, 31:282 
 
 25. A promissory note payable in the 
 event of election to an office is void on 
 grounds of public policv as a wagcrinsr con- 
 tract. Specht v. Beindorff, 56 Neb. 553, 76 
 N. W. 1059, 42: 429 
 
 26. In the absence of a statute in direct 
 terms prohibiting speculative or wager con- 
 tacts and declaring them unlawful, or ex 
 iressly declaring promissory notes growing 
 
 out of such transactions invalid, to make
 
 252 
 
 BILLS AND NOTES, I. c. 
 
 such notes invalid in the hands of one who 
 advanced money thereon to be used in such 
 transactions, it* is not enough to show that 
 the lender knew the borrower's purpose; 
 there must also be a participation in the il- 
 legal or immoral purpose. Sondheim v. Gil- 
 bert, 117 Ind. 71, 18 N. E. 687, 5: 432 
 Note far patent right. 
 Requiring Statement as to, on Face of Note, 
 
 see Constitutional Law, 363. 
 Police Power as to, see Constitutional Law, 
 
 053. 
 See also Patents, 17, 18. 
 
 27. The statute requiring that promissory 
 notes executed for a patent right, or rights 
 claimed to be a patent right, shall contain 
 the words "given for a patent right," does 
 not apply to notes given for articles manu- 
 factured 'under a patent. Hankey v. Down- 
 ey, 116 Ind. 118, 18 N. E. 271, 1: 447 
 
 28. The rights of the owner of a patent 
 under laws of the United States are not in- 
 fringed by a state statute applicable to the 
 sale of patent rights requiring the words 
 "peddler's note" to be written across the 
 face of all notes executed for articles sold 
 by a peddler or itinerant person. Union 
 Nat. Bank v. Brown, 101 Ky. 354, 41 S. 
 W. 273, 38: 503 
 Delivery. 
 
 Delivery in Escrow, see Escrow, 5-7. 
 Evidence of Declarations as to, see Evi- 
 dence, 1592. 
 
 In Case of Gift, see Gift, 43, 51, 56. 
 For Editorial Notes, see infra, VII. 6, 7. 
 
 29. A conditional delivery of a promissory 
 note to the payee or the agent of the payee 
 cannot be made so as to make the subse- 
 quent signature of another person essen- 
 tial to its validity. Hurt v. Ford, 142 Mo. 
 283, 44 S. W. 228, 41:823 
 
 30. A promissory note is not delivered so 
 that it can become valid, even in the hands 
 of a bona fide purchaser, where the maker 
 signs his name to it through fear of violence, 
 and it is snatched up as soon as signed, and 
 carried away against his will. Palmer v. 
 Poor, 121 Ind. 135, 22 N. E. 984, 6: 469 
 
 31. Notes placed by the maker in the 
 hands of another person, with directions to 
 hand them when called for, to a board of 
 education to which they were made payable, 
 are sufficiently delivered. Kansas City 
 School Dist. v. Stocking, 138 Mo. 672, 40 
 S. W. 6.56, 37: 406 
 
 32. A non-negotiable note intended to be 
 given a manufacturing corporation in pay- 
 ment for machinery, but in terms payable to 
 a bank, is not rendered void for want of de- 
 livery by the fact that it was sent to a 
 person who was an officer of such corpora - 
 lion and the bank, and by him deposited 
 with the latter as collateral security for 
 overdrafts by the manufacturing corpora- 
 lion, under an agreement between the two 
 corporations by which the bank was to take 
 nil notes of the other, since the bank acts 
 as ayent of the manufacturing corporation. 
 Stockton Sav. * L. Soc. v. Giddings. 96 Cal. 
 84. 10 Pac. 1016. 21: 406 
 
 c. Consideration. 
 
 Failure of, as Defense, see infra, 291-295. 
 Consideration of Contracts Generally, see 
 
 Contracts, I. c. 
 Presumption and Burden of Proof as to,. 
 
 see Evidence, 675, 676. 
 Parol Evidence as te, see Evidence, 1155 
 
 1158. 
 For Editorial Notes, see infra, VII. 9. 
 
 33. A note by a stockholder, director, and 
 creditor of a corporation, given to the mak- 
 er of an accommodation note which the 
 corporation had received the benefit of in 
 consideration of money furnished by the 
 maker of the accommodation note to pay 
 it, is not without consideration although the 
 payee was bound to take up the other note, 
 Abbott v. Doane, 163 Mass. 433, 40 N. E. 
 197, 34: 35 
 
 34. The expenditure of a considerable- 
 sum in holding an election by a school dis- 
 trict and the incurring of a valid indebt- 
 edness for a large amount by the issue of 
 bonds voted at the election to secure money 
 for the erection of a library building, will 
 constitute a sufficient consideration for a. 
 promissory note to the district which the 
 maker intended should go for the purchase 
 of a site for the building but which he con- \ 
 sented might be used as the board should 
 deem best in aid of. the enterprise. Kansas- 
 City School Dist. v. Stocking, 138 Mo. 672, 
 40 S. W. 656, 37: 40ft 
 Necessity of expressing. 
 
 35. A promissory note, although non-ne- 
 gotiable, need not express any considera- 
 tion. Carnwright v. Gray, 127 N. Y. 92, 27 
 N. E. 835, 12: 845> 
 To enable payee to cease work. 
 
 36. A promissory note given to enable the 
 payee to cease work, but without any con- 
 dition imposed or promise exacted, is with- 
 out consideration. Ricketts v. Scothorn, 5T 
 Neb. 51, 77 X. W. 365, 42: 794 
 Debt due from drawee. 
 
 37. The existence of a debt due by the 
 drawee of a bill of exchange to the payee 
 is a sufficient consideration to bind the 
 drawer upon his promise to pay the bilk 
 and render him liable for the amount, al- 
 though he was a stranger to the debt. 
 Citizens' Bank v. Millett. 103 Ky. 1, 44 S. 
 W. 366. 44: 664 
 Invalid foreign patent. 
 
 38. An English patent, if regular in form 
 and in existence as a document is, by force 
 of the English decisions, sufficient consid- 
 eration to support a promissory note made 
 in Massachusetts, even although the pat- 
 ent is in fact invalid for want of novelty, 
 and notwithstanding the fact that, under the 
 Massachusetts decisions, a note given for are 
 invalid United States patent is without-con - 
 sideration. Chemical Electric Light & P 
 Co. v. Howard, 148 Mass. 352, 20 N.*E. 92, 
 
 2: 16* 
 Parol antenuptial agreement. 
 
 39. A parol antenuptial agreement which 
 is void under the statute of frauds will 
 not support a promissory note given by the
 
 BILLS AND NOTES, I. d, 1. 
 
 253 
 
 husband to his wife after marriage. Rich- 
 ardson v. Richardson, 148 111. 503. 36 N. 
 E. 608, '26: 305 
 
 Jfote for amount of subscription. 
 See also supra, 34. ' 
 
 40. A sufficient consideration for a prom- 
 issory note executed to an incorporated col- 
 lege is the accomplishment ot the purposes 
 for which it is incorporated and 'in whose 
 aid the note is executed, at least after the 
 corporation has been encouraged thereby to 
 expend money and incur obligations in car- 
 rying out its purposes. Irwin v. Webster, 
 56 Ohio St. 9, 46 JN. E. 63, 36: 239 
 
 41. A promissory note payable at a future 
 day to an incorporated charitable education- 
 al institution, dependent for the most part 
 on voluntary contributions for its support, 
 the amount thereof to form, by itself, or 
 with other similar contributions, a perma- 
 nent endowment fund for such institution, 
 which is accepted by the board of direct- 
 ors, in reliance upon which and other simi- 
 lar donations such institution continues its 
 work and incurs debts and obligations, and 
 solicit s siil<.-riptions from others, all of 
 which is known to the maker of the note, 
 as supported by a sufficient consideration, 
 and it not revoked by the maker's death be- 
 fore its maturity. Albert Lea College v. 
 Brown. 88 Minn.' 524,, 93 X. W. 672, 60: 870 
 Compromise of disputed claim. 
 
 See also infra, 210-212. 
 
 42. A note given in compromise or set- 
 tlement of a disputed claim the validity of 
 which is doubtful is supported by a suffi- 
 cient consideration. French v. French, 84 
 Iowa, 655, 51 X. W. 145, 15: 300 
 Substituted note; extension. 
 
 43. Indulgence to a debtor by extending 
 the time for payment for a certain period 
 is a valuable consideration for a note for the 
 ame debt, as against a surety on the note. 
 Fowler v. Allen, 32 S. C. 229, 10 S. E. 947, 
 
 7:745 
 
 44. A note given in part satisfaction of a 
 "red line wheat note" which was void for 
 fraud and failure of consideration is, if un- 
 supported by any other consideration, itself 
 void in the hands of the original payee, or 
 of an indorsee with notice. Hunt v. Rum- 
 sey, s:i Mich. 13(i, 47 N. W. 10.1, 9: 674 
 On ratification of altered note. 
 
 45. No new consideration is necessary in 
 order to make valid a ratification of a 
 note by one who was entitled to his release 
 therefrom because of an alteration. Mont- 
 gomery v. Crosthwait, 90 Ala. 553. 8 So. 
 498, 12: 140 
 
 d. Negotiability. 
 1. General. 
 
 Of Note Discounted by Bank, see Banks, 
 
 280, 281. 
 Of Savings Bank Pass Book, see Banks, 
 
 367. 
 Of Order on Savings Bank, see Banks, 362, 
 
 363. 
 Of Certificate of Deposit, see Banks. 183- 
 
 186. 
 
 Of Checks, see Checks, 3-5. 
 
 Of Corporate Bonds, see Bonds, 98-100. , 
 
 Of Stock Certificate, see Corporations, 397, 
 
 398. 
 
 Of County Warrant, see Counties, 5">. 
 Of Interest Coupons, see Coupons, 4-7. 
 Of Warehouse Receipts, see Warehousemen, 
 
 20, 21. 
 Test of, for Jurisdictional Purposes, see 
 
 Courts, 345b. 
 
 Evidence as to, see Evidence, 977. 
 For Editorial Notes, see infra, VII. 10. 
 
 46. The provisions of a mortgage secur- 
 ing a contemporaneous note, which merely 
 relate to the preservation of the security, 
 are not made a part of it so as to destroy 
 its negotiability by the rule that contem- 
 poraneous instruments relating to the same 
 subject-matter are to be construed together. 
 Thorpe v. Mindeman, 123 Wis. 146, 101 N. 
 W. 417, 68: 146 
 
 47. A statement or recital in a note that 
 it is given, for the privilege of hanging ad- 
 vertising signs in street cars for three 
 months from a certain subsequent date will 
 not destroy its negotiability. Siegel v. Chi- 
 cago Trust & Sav. Bank, 131 111. 569. 23 N. 
 E. 417, 7:537 
 
 48. The negotiability of a note is not de- 
 stroyed by a clause stating that it is given 
 for certain property the title to which shall 
 not pass until the note is paid, and which 
 is subject to be retaken in case of nonpay- 
 ment of the note. Choate v. Stevens, 116 
 Mich. 28, 74 N. W. 289, 43: 277 
 
 49. A condition in a promissory note, that 
 if it is not paid when due the property de- 
 scribed therein for which it is given shall be- 
 long to the payee, destroys the character of 
 the instrument as a promissory note, and 
 reduces it to a mere contract. Wright v. 
 Travel. 7:? Mich. 493, 41 N. W. 517, 3: 50 
 Effect of blanks. 
 
 50. Blanks in the body of a note where the 
 amount and place of payment should be 
 named will not render the note non-negotia- 
 able. if the amount is expressed in figures at 
 the head of the note,- especially under a 
 statute making negotiable any written 
 promise to pay money, which is signed by 
 the promisor. Witty v. Michigan Mut. L. 
 Ins. Co. 123 Ind. 41 L 24 N. E. 141, 8: 365 
 Certainty as to parties. 
 
 51. Certainty as to the payor and payee, 
 the amount to be paid, and the terms of pay- 
 ment, is the essential quality of a negotia- 
 ble promissory note; and that certainty 
 must continue until the obligation is dis- 
 charged. Hegeler v. Comstock, 1 S. D. 138. 
 45 N. W. 331, 8: 393 
 
 52. A note payable to i certain person 
 "et fiL, or order." is not negotiable, because 
 of uncertainty as to the unnamed payees. 
 This rule is not changed by Iowa Code, 
 2085, making an instrument promising to 
 pay money or property to another negotia- 
 able if such is the manifest intent of the 
 maker. Gordon v. Anderson, 83 Iowa, 22*, 
 49 N. W. 86, 12: 483 
 
 53. A note containing no name of a payee, 
 nor space to insert it, is not negotiable
 
 254 
 
 BILLS AND NOTES, I. d, 2. 
 
 Smith v. Willing, 123 Wis. 377, 101 N. W. 
 692, 68: 040 
 
 54. Incorporating a power of attorney to 
 confess judgment in favor of the holder, in 
 a note in which the name of the payee is 
 not mentioned, does not render the paper 
 negotiable by making it payable to holder. 
 
 Id. 
 
 Adding word "trustee" to payee's name. 
 For Editorial Notes see infra VII. 10. 
 
 55. The addition of the word "trustee" to 
 the name of the payee of a note does not de- 
 stroy its negotiability. Central State Bank 
 v. Spurlin, 111 Iowa, 187, 82 N. W. 493, 
 
 49: 661 
 
 56. The addition of the word "trustee" to 
 the name of the payee of a note does not de- 
 stroy its negotiability. Fox v. Citizens' 
 Bank & T. Co. (Tenn. Ch. App.) 37 S. W. 
 1102, 35: 678 
 Seal. 
 
 For Editorial Notes, see infra, VII. 10. 
 
 57. The negotiability of a note given by 
 the treasurer of a limited partnership, is 
 not destroyed by a device stamped upon it 
 purporting to be the seal of the association, 
 which has no common seal, and did not au- 
 thorize any seal to be affixed to the note. 
 Stevens v. Philadelphia Ball Club, 142 Pa. 
 52, 21 Atl. 797, 11: 860 
 
 58. A corporate seal does not destroy the 
 negotiability of the commercial paper of a 
 corporation which is negotiable in form. 
 Chase Nat. Bank v. Faurot, 149 N. Y. 532, 
 44 N. E. 164, 35: 605 
 
 r>9. An instrument in the form of a ne- 
 gotiable promissory note, but with a scroll 
 in which the word "seal" is written after 
 the signature of the maker, is a sealed in- 
 strument in Oregon, and not a negotiable 
 note, tlionirh there is no reference to a seal 
 in the body of the instrument. D. M. Os- 
 borne & Co. v. Hubbard, 20 Or. 318. 25 Pac. 
 1021, 11:833 
 
 Payment dependent on election. 
 See also supra, 25. 
 
 fiO. A note payable at a certain time if 
 the maker is elected to a certain office is 
 not a negotiable instrument. Specht v. 
 ReindorflT, 56 Neb. 553, 76 N. W. 1050. 
 
 42: 42!) 
 
 Indorsments of payments. 
 For Editorial Notes, see infra, VII. 10. 
 
 61. Payments indorsed on the back of a 
 note before its transfer by the payee do 
 not destroy its negotiability. Farmers' 
 Bank v. Shippey, 182 Pa. 24, 37 Atl. 844. 
 
 38: 823 
 Guaranty of payment. 
 
 62. An unrestricted guaranty of payment 
 indorsed on a negotiable instrument is ne- 
 gotiable, and passes with tho title to the 
 instrument. Commercial Bank v. Cheshire 
 Provident Institution, 59 Kan. 361, 53 Pac. 
 131. 41:175 
 
 2. Certainty as to Maturity and Amount. 
 
 Certainty as to maturity. 
 
 Effect on Validity, see supra, 16-18. 
 
 For Editorial Notes, see infra, VII. 10. 
 
 63. Making a note payable "on or before" 
 
 a certain fixed future date will not make 
 the time of payment so uncertain as to de- 
 stroy the negotiability of the note. First 
 Nat. Bank v. Skeen, 101 Mo. 683, 14 S. W. 
 732, 11:748 
 
 64. A promissory note, on the face of 
 which, across one end, is written an agree- 
 ment that the note will be renewed at ma 
 turity, is not negotiable. Citizens' Nat. 
 Bank v. Piollet, 126 Pa. 194, 17 Atl. 603, 
 
 4: 190 
 
 65. An option indorsed upon the back of 
 a negotiable note for its extension for a defi- 
 nite time, by giving a new note at the op- 
 tion of the makers and indorsers similar to 
 the original, does not destroy its negotia 
 biKtv. Anniston Loan & T. Co. v. Stickney. 
 108 Ala. 146, 19 So. 63, 31: 234 
 
 66. A note for the payment of a certain 
 3um at a fixed date is not rendered non- 
 negotiable by a stipulation that, upon de- 
 fault in the payment of interest, the whole 
 amount shall become due, at the option of 
 the holder, and then draw a greater rate of 
 interest. Clark v. Skeen, 61 Kan. 626,60 
 Pac. 327, 49: 190 
 
 67. An option in a note to declare the 
 whole amount due upon default in payment 
 of an instalment does not render the note 
 non-negotiable. Wilson v. Campbell, 110 
 Mich. 580, 68 N. W. 278, 35: 544 
 
 68. A provision in a mortgage securing 
 a promissory note requiring the mortgago-r 
 to pay taxes and assessments for default -of 
 which the whole debt may be declared im 
 mediately payable does not- make the note 
 non -negotiable. Id. 
 
 69. A provision of a note making the prin- 
 cipal due, at the option of the payee, upon 
 failure to comply with certain provisions of 
 the accompanying mortgage, looking to the 
 preservation of the security does not de- 
 stroy the negotiability of the note, under 
 a statute providing that an instrument i 
 payable at a determinate future time when 
 it is payable at a fixed period, though pay- 
 able before then on a contingency. Thorpe 
 v. Mindeman, 123 Wis. 146, 101 N. W. 417. 
 
 68: 146 
 
 70. A provision in a mortgage securing, 
 and referred to in, a note otherwise negoti- 
 able, that the mortgagor shall pay taxes 
 and assessments, and that failure to do so 
 for thirty days shall render the whole debt, 
 principal and interest, immediately due, de- 
 stroys the negotiability of the instrument, 
 Brooke v. Struthers, 110 Mich. 562, 68 N. 
 W. 272, 35 : 536 
 Certainty as to amount generally. 
 
 In Certificate of Deposit, see Banks, 184. 
 
 See also supra, 51, 66. 
 
 For Editorial Notes, see infra, VII. 10. 
 
 71. To render a note negotiable under the 
 law merchant, the amount to be paid at 
 maturity must be ascertainable by the face/ 
 of the note, without resort to evidence de- 
 hors the instrument. Windsor Sav. Bank 
 v. McMahon, 38 Fed. 283, 3: 192 
 
 72. Statutes providing that negotiable 
 notes should be for "any sum of money," or 
 for "a sum of money in property or labor,", 
 do not change the common-law rule as to
 
 BILLS AND NOTES, I. d, 2. 
 
 255 
 
 the certainty of amount. Culbertson v. Nel- 
 son, 93 Iowa, 187, 61 N. W. 854, 27:222 
 
 73. A provision in a mortgage securing 
 a note, that insurance premiums paid by the 
 mortgagee shall constitute a lien, added to 
 the note, does not alter the amount of the 
 note so as to destroy its negotiability, but 
 merely provides for a lien on the property 
 in addition to the amount called for by the 
 note. Thorpe v. Mindeman, 123 Wis. 146, 
 101 N. W. 417, 68: 146 
 
 74. Expressing in Mexican silver dollars 
 the sum due on a promissory note does not 
 affect the negotiability of the note. Hogue 
 v. Williamson, 85 Tex. 553, 22 S. W. 580. 
 
 20: 481 
 
 75. The negotiability of a note with ac- 
 companying interest coupons is not de- 
 stroyed by clauses declaring that the con- 
 tract shall be construed by the laws of the 
 state in which it is executed, tl*at it shall 
 draw a specified higher rate of interest after 
 maturity, and that if any coupon is not 
 paid, when due the whole debt shall mature 
 at that time without demand, and the first 
 unpaid coupon shall become a part of the 
 principal and bear interest at the higher 
 rate specified. DeHass v. Dibert, 28 U. S. 
 App. 559, 17 C. C. A. 71), 70 Fed. 227, 30: 183 
 
 76. Legislation passed after . the making 
 of a mortgage securing a promissory note 
 which relieves the mortgagor of a portion 
 of the burden as to payment of taxes, and 
 imposes it on the mortgagee, will not make 
 the note non-negotiable if it is otherwise 
 negotiable. Wilson v. Campbell, 110 Mich. 
 580, 68 N. W. 278, 35: 544 
 Provision for exchange. 
 
 For Editorial Notes, see infra, VII. 10. 
 
 77. A note made payable with current ex- 
 change on a place other than the place of 
 payment is not, by that fact, made non- 
 negotiable. Hastings v. Thompson, 54 
 Minn. 184, 55 N. W. 968, 21:178 
 
 78. A promissory note is not rendered 
 non-negotiable by an agreement to pay the 
 sum named "with exchange" on a point 
 other than that at which it is payable. 
 Haslack v. Wolf, 66 .Neb. 600, 92 N. W. 374, 
 
 60: 434 
 
 79. A stipulation, in an instrument for 
 the payment of a certain sum of money, for 
 payment of current exchange on a place 
 other than the place of payment, is not de- 
 structive of negotiability. Clark v. Skeen, 
 (51 Kan. 528, 60 Pac. 327, , 49: 190 
 
 80. The words "with exchange," in a 
 draft, destroys its negotiability. Culbertson 
 v. Nelson, 93 Iowa, 187, 61 N. W. 854, 
 
 27:222 
 
 81. A provision for the payment of ex- 
 change in addition to principal and interest 
 destroys the negotiability of an instrument. 
 Flagg v. Barnes County School Dist. No. 70, 
 4 N. D. 30, 58 N. W. 499, 25: 363 
 
 82. A clause in a promissory note binding 
 the maker to pay exchange between two 
 places renders the amount payable uncertain 
 and defeats its negotiability, where there is 
 no fixed rate of exchange established by law 
 or by the terms of the note. Windsor Sav. 
 Bank T. McMahon, 38 Fed. 283, 3: 192 
 
 Provision for attorneys' fees. 
 
 See also infra, 90. 
 
 For Editorial Notes, see infra, VII. 10. 
 
 83. A provision in a bill or note for the 
 payment of an attorney's fee in case of a 
 suit does not affect the negotiability of the 
 instrument. Bank of Commerce v. Fuqua, 
 11 Mont. 285, 28 Pac. 291, 14: 58H 
 
 Montgomery v. Crosthwait, 90 Ala. 553. 
 8 So. 498, 12: 140 
 
 Contra, Bowie v. Hall, 69 Md. 433, 16 Atl 
 64, 1:546 
 
 84. The negotiability of a note is not de 
 stroyed by an agreement to pay costs of 
 collection, including attorneys' fees, al 
 though Ca. Civ. Code, 3667, provides that 
 such agreements shall be void unless a plea 
 be filed by the defendant and not sustained. 
 Jones v. Crawford, 107 Ga. 318, 33 S. E. 51. 
 
 45: 105 
 
 85. The negotiability of a note is not ci< 
 stroyed by a stipulation for 10 per <<; 
 attorney's fee to be recovered as part of 
 the note or in a separate suit, if the note i- 
 not paid when due, and suit is brought 
 thereon. Dorsey v. Wolff, 142 111. 589, 32 
 N. E. 495, 18: 42H 
 
 86. A note is not rendered non-negoti 
 able by a stipulation for the payment of at 
 torney's fees, which is entirely inoperativ 
 until after the maturity of the note and it- 
 dishonor by the maker. Oppenheimer ,v. 
 Farmers' & M. Bank, 97 Tenn. 19, 36 S. \\ 
 705, 33: 767 
 
 87. The negotiability of a bill of exchang 
 is not defeated by a stipulation for at 
 torneys' fees, which becomes operative onlv 
 after dishonor. Farmers Nat. Bank ^ . 
 Sutton Mfg. Co. 6 U. S. App. 312, 3 C. C. A. 
 1, 52 Fed. 191, 17: 59f> 
 
 88. A promissory note is rendered non 
 negotiable by a provision for attorneys' 
 fees in addition to principal and interest if 
 it is collected by suit or placed in the hands 
 of an attorney for collection. Sylvester 
 Bleckley Co. v/Alewine, 48 S. C. 308, 26 S. 
 E. 609,' 37: 86 
 
 89. A -provision in a note for a percentag.- 
 of the amount due, as attorneys' fees "on 
 suit by himself or an attorney employed,'' 
 destroys its negotiability, under Cal. Civ. 
 Code, 3088, providing that "negotiable 
 instruments must be without any condition 
 not certain of fulfilment." Adams v. 
 Seaman, 82 Cal. 636, 23 Pac. 53, 7: 224 
 Higher rate of interest after maturity. 
 
 90. The character of an instrument as a 
 promissory note is not destroyed by the ad- 
 dition to the promise of payment of clauses 
 providing for additional interest after ma- 
 turity, and for payment of attorneys' fees 
 in ease suit is necessary to collection. 
 Cherry v. Sprague, 187 Mass. 113, 72 N. E. 
 456, 67: 33 
 
 91. The negotiability of a note is not af- 
 fected by a provision for a higher rate of 
 interest after maturity, or by a clause that 
 upon default in the payment of interest for 
 ten days the principal sum may, at the 
 option of the holder, become due. Hollins- 
 bead v. Globe Invest. Co. 8 N. D. 35, 77 N. 
 W. 89, 42: 65
 
 BILLS AND NOTES, II.. III. a. 
 
 92. A note promising to pay a certain 
 sum. "with interest from date until paid, at 
 the rate of 10 per cent per annum, 8 per 
 cent if paid when due." is not negotiable 
 because of uncertainty in the amount to be 
 paid. ITegeler v. Comstock, 1 S. D. 138, 45 
 N. W. 331.. 8: 393 
 Provision for discount. 
 
 93. A stipulation for a discount of 12 per 
 cent if a note is paid before maturity ren- 
 ders it non-negotiable because of the un- 
 certainty as to the amount to be paid. 
 National Bank of Commerce v. Feeney, 9 
 S. D. 550, 70 X. W. 874, 12 S. D. 156, 80 N. 
 W. ISC, 46: 732 
 
 IT. Acceptance. 
 
 Effect of Cashier's Promise to Pay Draft, 
 see Banks. 274. 
 
 Acceptance of Check, see Banks, 125, 126. 
 
 Acceptance by Loan Association, see Build- 
 ing and Loan Associations, 59. 
 
 Exchange as Affecting Duty to Accept, see 
 Contracts, 317. 
 
 Consideration for. see Contracts, 66. 
 
 Statute of Frauds as to Promise for, see 
 Contracts, 137. 
 
 See also infra. 2(iti. 267. 
 
 For Editorial Notes, see infra. .VII. 12. 
 
 93a. Liability on a written promise to ac- 
 cept and pay an order of another for a cer- 
 tain sum is not created by the latter s in- 
 dorsement on such writing, without draw- 
 ing any order. Allen v. Leavens, 26 Or. 
 164. 37'Pac. 488, 26: 620 
 
 94. A telegram stating that "Tate is good. 
 f?end on your paper," sent by a bank in 
 reply to an inquiry as to whether or not it 
 would pay such person's check for a certain 
 amount, constitutes a written acceptance of 
 such check which will render the bank lia- 
 ble for its amount to a holder thereof who 
 was shown the telegram and took the check 
 for value in reliance thereon, Garrett- 
 *on v. North Atchison Bank. 39 Fed. 163. 
 
 7:428 
 
 9,~. A letter from one expecting a consign- 
 ment of goods for sale on commission, to a 
 bank, stating that the writer will honor the 
 consignor's drafts with bill of lading at- 
 tached, must be read in the light of a usatre 
 of trade known to both parties, for the 
 consignor to draw for an amount not ex- 
 ceeding three fourths of the value of the 
 consigned goods, and will render the writer 
 liable onlv for siu-li amount. Fiske v. First 
 Nat. Bank. 133 Pa. 241. in Atl. 554, 7: 209 
 Contribution bv acceptor from indorsers. 
 
 96. Contribution cannot, be enforced by an 
 accommodation acceptor against subsequent 
 accommodation indorsers with or without 
 knowledge of the nature of the acceptance. 
 Gillespie v. Ca.npbell. 39 Fed. 724. 5: 608 
 
 111. Indorsement and Transfers. 
 
 a. In General. 
 For Ttiglits of Indorsees, see infra, V. 
 
 Bank Discounting Note as Purchaser, see 
 
 Banks, 277-282. 
 Bank Cashier's Power to Indorse, see Banks, 
 
 37. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 42, 43. 
 Writing Contract of Guaranty over Blank 
 
 Indorsement, see Contracts, 216. 
 Of Overdue Notes of Corporation, see Cor- 
 porations, 617. 
 
 Power of Corporation to Indorse, for Ac- 
 commodation, see Corporations, 135. 
 Following State Decisions as to, see Courts, 
 
 548. 
 Damages for Breach of Contract not to 
 
 Transfer, see Damages, 104. 
 Variance in Proof of, see Evidence, 2399. 
 Fraud in Inducing Indorsement, see Fraud 
 
 and Deceit, 52, 54. 
 Injunction against Transfer, see Injunction, 
 
 70. 107. 
 Admission of Genuineness of Indorsement, 
 
 see Pleading, 120. 
 Indorsees Rights, as to Collateral Security, 
 
 see Pledge and Collateral Security, 41, 
 
 42. 
 Agent's Authority to Make, see Principal 
 
 and Agent, 32-39. 
 Assignment of Purchase Money Note, see 
 
 Vendor .and Purchaser, 60, 61, 81-83, 
 
 85. 
 
 See also supra, 62: infra, 263-268. 
 For Editorial Notes, see infra, VII. 13- 
 
 19. 
 
 97. One who writes on the back of a note 
 an assignment with a guaranty of payment 
 is an indorser. Maddox v. Duncan, 143 Mo. 
 613. 45 S. W. 688, 41: 581 
 Rights of accommodation indorser paying 
 
 note. 
 See also supra, 06; infra, 266, 267. 
 
 98. An accommodation indorser of a ne- 
 gotiable note which he is compelled to pay 
 on the maker's default can enforce it against 
 the maker if his indorsement was made in 
 good faith, although it was for the accommo- 
 dation of a third person, and although after 
 his indorsement he may have learned of a 
 failure of consideration. Sheahan v. Davis, 
 27 Or. 278, 40 Pac. 405, 28: 47 
 Warranty of genuineness of prior signatures. 
 Presumption of Drawee's Knowledge of 
 
 Drawer's Signature, see Banks, 141-145. 
 Of Prior Indorsements on Checks, see Checks, 
 
 49. 
 For Editorial Notes, see infra, VII. 4, 17, 
 
 18. 
 
 99. A warranty of the genuineness of a 
 signature to a promissory note arises upon 
 a sale and a delivery thereof to a purchaser 
 in good faith. Strauss v. Hensey, 7 App. D. 
 C. 289. 36: 92 
 
 100. One who, at the request of the prin- 
 cipal rtel)tor. places his name as surety on a 
 note after the signatures of several makers, 
 guarantees the genuineness of such signa- 
 tures to an innocent payee, and cannot be re- 
 leased from liability on the ground that one 
 signature is a forgery. Wheeler v. Traders' 
 Deposit Bank, 107 Ky. 653, 55 S. W. 552. 
 
 49: 315
 
 BILI 8 AND NOTES, III. b, 1, 2. 
 
 257 
 
 101. An agent of one who made a note 
 under an assumed name, who pays and takes 
 up the note as agent of the maker, although 
 believing him to be the person he assumed to 
 be, cannot recover back the money paid on 
 
 , the ground that the holder of the note in 
 transferring it to him, impliedly warranted 
 the genuineness of the signature. Strauss v. 
 Hensey, 7 App. D. C. 289, 36: 92 
 
 Liability for wrqngful transfer. 
 For Editorial Notes, see infra, VII. 19. 
 
 102. The transfer of a negotiable note, by 
 which an indorser is made liable to a bona 
 fide holder for the ultimate benefit of the 
 transferrer, who knows the indorsement is 
 ultra vires and void, makes him liable to ' 
 such indorser for the damages thereby sus- [ 
 tained. N*s*hville Lumber Co. v. Fourth Nat. 
 Bank, 94 Tenn. 374, 29 S. W. 368, 27: 519 
 
 103. A widow who, after her husband's 
 death, negotiates to a bona fide holder a 
 promissory note made by him to her as a 
 gift, may be compelled to refund to his es- 
 tate the amount which it is compelled to pay 
 on the note. Richardson v. Richardson, 148 
 111. 563, 36 N. E. 608, 26: 305 
 
 104. Payees of a negotiable note given 
 for the purchase price of property, who have 
 transferred it before maturity to a bona 
 fide purchaser, are liable to the makers in an 
 action for the amount of the note, where the 
 sale 'has been rescinded for breach of war- 
 ranty; but a judgment against them should 
 not be enforced until they are relieved of 
 their liability as indorsers on the note. 
 Baker v. Brem, 103 N. C. 72, 9 S. E. 629, 
 
 4:370 
 
 b. Liability of Indorser. 
 1. In General. 
 
 Rights of Transferee against Indorser, see 
 
 infra, V. 
 
 Of Sole Stockholder, see Corporations, 548. 
 Effect of Adding Word "Surety" to Signa- 
 ture, see Banks, 180. 
 Parol Evidence as to, see Evidence, 1176, 
 
 1179. 
 Liability of Guarantor, see Guaranty, 14- 
 
 18.' 
 Wife's Liability .as Surety for Husband, see 
 
 Husband and Wife. 46, 47. 
 Indorsement by Married Woman, see Hus- 
 - band and Wife, 28, 29, 32-35. 
 Liability of Married Woman on Guaranty 
 
 of Note, see Husband and Wife. 35. 
 Effect of Mental Incompetency of Indorser, 
 
 see Incompetent Persons, 12.- 
 Indorser as Creditor, see Lew and Seizure, 
 
 5. 
 
 See also supra. 96. 
 For Editorial Notes, see infra, VTI. 13, 15, 
 
 17. 
 
 105. Notice to the indorsee that an indors- 
 er has no interest in the transaction will not 
 relieve tne indorser from liability on the 
 note. Tradesmen's Nat. Bank v. Loonev, 
 99 Tenn. 278, 42 S. W. 149, 38: 837 
 
 106. The signature of the payee to an as- 
 signment written out on the back of a ne- 
 gotiable note makes him liable as an ordi- 
 
 L.R.A. Dig. 17. 
 
 nary indorser. Maine Trust & Bkg. Co. v. 
 Butler, 45 Minn. 506, 48 N. W. 333, 
 
 12: 370 
 
 107. An action against a person as the in- 
 dorser of a promissory note cannot be main- 
 tained where the note indorsed by him is 
 not negotiable because of an agreement on 
 the face of it for a renewal. Citizens' Nat. 
 Bank v. Piollet, 126 Pa. 194, 17 Atl. 603, 
 
 4: 190 
 
 108. A guaranty of attorney's fees "up to 
 10 per cent, if this note has to be collected 
 by law, on its prompt payment," without 
 other indorsement, made for the purpose 
 and in the course of negotiation, makes the 
 payee liable as an indorser with a superadd- 
 ed liability for such reasonable sums, not 
 exceeding 10 per cent, as might be expend- 
 ed for attorney's fees by the holder in the 
 collection of the note. Pattillo v. Alexander, 
 96 Ga. 60, 22 S. E. 646, 29: 616 
 
 109. Where the payees of a promissory 
 note Who, for the purpose of discounting it, 
 had left it, with their indorsement, to enable 
 the proposed purchaser to inquire as to the 
 solvency of the makers, had obtained judg- 
 ment for the value of the note against the 
 purchaser, wno refused either to discount or 
 return it, the payment of the judgment in- 
 vested the latter with title to the note as 
 of the date of the conversion, but without 
 any obligation of the payees as indorsers, 
 because the indorsement, being made for 
 the mere purpose of discounting the note, 
 had never been consummated. Haas v. Sack- 
 ett, 40 Minn. 53, 41 N. W. 237, 2: 449 
 Indorsement by trustee. 
 
 110. The liability of the indorser of a note 
 is not affected by the addition of the word 
 "trustee" to his name. Tradesmen's Nat. 
 Bank v. Looney, 99 Tenn. 278, 42 S. W. 149, 
 
 38: 837 
 
 2. Indorsement before Delivery. 
 
 Parol Evidence as to, see Evidence, 1173- 
 
 1175. 
 
 See also infra, 140. 
 For Editorial Notes, see infra, VII. 16. 
 
 111. A non -negotiable note signed on its 
 back by third persons -prior to its passing 
 to the payee -is not evidence per se of a 
 contract bv such indorsers. Absecom Mut. 
 L. & B. Asso. v. Leeds (N. J. Err. & App.) 
 50 N. J. L. 399, 18 Atl. 82, 5: 353 
 
 112. Persons who indorse a note before de- 
 livery, in order to give credit to the maker, 
 are liable as joint makers rather than as in- 
 dorsers. Sylvester Bleckley Co. v. Alewine, 
 48 S. C. 308, 26 S. E. 609, 3/: 86 
 
 113. A stranger to a note who places his 
 name upon it before delivery, to give it cred- 
 it with the payee, is prima facie liable as a 
 comaker. First Nat. Bank v. Guardian 
 Trust Co. 187 Mo. 494, 86 S. W. 109, 
 
 70: 79 
 
 114. That one who places his name 'on a 
 note before delivery to give it credit with 
 the payee is to be he'd merely as a surety, 
 is not shown by the fact that the note was 
 duly protested, and that one count in the
 
 258 
 
 BILLS AND NOTES, III. b, 3, c. 
 
 complaint against him proceeds upon the 
 theory that he is an indorser. Id. 
 
 115. One who indorses a note in blank, 
 whether by writing his name above or be- 
 low that of the payee, is liable prima facie 
 as a maker, and may be sued as such. Na- 
 tional Bank of Bellows Falls v. Dorset Mar- 
 ble Co. 61 Vt. 106, 17 Atl. 42, 2: 428 
 
 116. If ?. non-negotiable note bearing on 
 its back the signature of the payee and fol- 
 lowing it that of another person does not 
 represent an existing debt, but is made for 
 the purpose of obtaining on it a loan of 
 money for one or all of the parties to it, 
 a person who makes such loan on the faith 
 of it and takes it may, in the absence of 
 an agreement to the contrary, of which he 
 has notice, treat those whose names are on 
 the back of it as copromisors with him who 
 signed on its face, or as guarantors, at his 
 election. Young v. Sehon, 53 W. Va. 127, 
 44 S. E. 136. 62: 499 
 
 117. By placing his signature on the back 
 of a non-negotiable note at or prior to the 
 time of its inception, without making an 
 express contract denning the nature and ex- 
 tent of his obligation, a person becomes lia- 
 ble as a surety or joint promisor; and a 
 stipulation in such note Avaiving notice of 
 nonpayment is wholly immaterial. Pool v. 
 Anderson, 116 Ind. 88, 18 N. E. 445, 
 
 1: 712 
 
 118. The undertaking of a third person 
 who places his name on the back of a note 
 payable to the maker's order, before or at 
 the time of its delivery by the maker, rests 
 upon the consideration which supports the 
 note in the hands of the holder, and is 
 prima facie that of a surety of the maker 
 for the payment of the note, although it is 
 competent for him to show a different un- 
 derstanding or agreement between the par- 
 ties. Ewan v. Brooks-Waterfield Co. 55 
 Ohio St. 596, 45 N. E. 1094, 35: 786 
 
 119. An indorsement in blank before in- 
 ception makes an indorser liable, under the 
 Pennsylvania statute of frauds of 1885. as 
 second indorser only, and creates no liability 
 to the payee. Temple v. Baker, 125 Pa. 634, 
 17 Atl. 516, 3: 709 
 
 120. The words "credit the drawer." writ- 
 ten on the face of a note and signed by one 
 who indorses the note in blank before de- 
 livery and who is liable, by such indorse* 
 ment. only as second indorser, must be con- 
 strued, not as a guaranty of the note, but 
 as a statement, for the purpose of advising 
 any party to whom it may be offered, that 
 the indorsement is for the accommodation 
 of the prior parties, and that, as between 
 the indorser and them, the drawer is en- 
 titled to have the proceeds of the note de- 
 livered to him or passed to his credit. Id. 
 
 121. A blank indorsement under Conn. 
 Gen. Stat. 1860, which makes it "import 
 the contract of an ordinary indorsement," 
 renders the indorser liable as such precis?ly 
 in the order in which he stands upon the 
 note, although he signs before and above the 
 payee. Spencer v. Allerton, 60 Conn. 410. 
 22 Atl. 778, 13; 806 
 
 122. The liability of one who places his 
 
 name on the back of an inland bill of ex- 
 change before its delivery, in order to give 
 the maker credit with the payee, is, in the 
 absence of any agreement to the contrary, 
 that of an indorser entitled to notice of 
 dishonor. And this liability can be in n > 
 way affected oy any understanding or agrep - 
 ment between the maker and the payee. De 
 Pamv v. Bank of Salem, 126 Ind. 553, 25 
 N. E. 705,, 10: 46 
 
 Liability of maker indorsing note. 
 
 123. The maker of a note payable to his 
 own order, who indorses his name on the 
 back, does not thereby become an indorser 
 in the legal sense of the term, or contract 
 any liability except that of maker. Ewan 
 v. Brooks-Waterfield Co. 55 Ohio St. 596, 45 
 N. E. 1094, 35:786 
 
 124. The indorsement of the maker's name 
 on the back of a promissory note payable to 
 his order, and its delivery in that form to 
 another for value, are essential parts of tue 
 execution of the note, which then becomes 
 in legal effect payable to the holder or 
 bearer. Id. 
 
 3. Restrictive Indorsements. 
 
 On . Certificate of Deposit, see Banks, 187, 
 
 188. 
 On Notes Placed with Bank for Collection, 
 
 see Banks, 195. 
 Indorsement for Collection, see Banks, 201- 
 
 212. 
 Indorsing Check "for Deposit," see Banks, 
 
 308. 
 
 Parol Evidence as to, see Evidence, 1178. 
 See also infra, 183, 192. 
 For Editorial Notes, see infra, VII. 15, 
 
 17. 
 
 124a. The phrase "without recourse," or 
 its equivalent, must be used to limit and 
 qualify an indorsement made on ' the back 
 of a negotiable note. Maine Trust & Bkg. 
 Co. v. Butler, 45 Minn. 506, 48 N. W. 333. 
 
 12: 370 
 
 125. An assignment without recourse by 
 the payee of a negotiable note payable to 
 order will not prevent an indorsement by the 
 assignee from making him liable as indorser 
 of negotiable commercial paper. De Hass 
 v. Dibert, 28 U. S. App. 559, 17 C. C. A. 79, 
 70 Fed. 227, 30: 189 
 
 126. One is not liable as indorser on 9 
 promissory note, who places over his signa- 
 ture thereon the words, "I hereby transfer 
 my interest in the within note." Spencer v. 
 Halpern, 62 Ark. 595, 37 S. W. 711, 36: 120 
 
 127. Liability as indorser on a promissory 
 note is not prevented by the use of the words 
 "I hereby assign the within note to" the 
 persons named as assignees. Markey v. 
 Corey, 108 Mich. 184, 66 N. W. 493, 36: 117 
 
 c. Discharge of Indorser. 
 
 Matters as to Presentment and Notice of 
 Nonpayment to Hold Indorser, see infra, 
 
 Rights of Transferee Against, see infra, V. a. 
 Bank Cashier's Power as to, see Banks, 38.
 
 BILLS AND NOTES, IV. a. 
 
 259 
 
 As Consideration of Chattel Mortgage, see 
 
 Chattel Mortgage, 8. 
 Discharge of Guarantor, see Guaranty, 23, 
 
 25, 29-38, 41. 
 Release of Surety, see Principal and Surety, 
 
 25, 28, 29, 34, 35, 40-44. 
 By Limitation of Action, see Limitation of 
 
 Actions, 259. 
 For Editorial Notes, see infra, VII. 28. 
 
 128. The suspension, even for a day, of a 
 right of action on a promissory note against 
 the maker by an arrangement with him, 
 irrevocably discharges an indorser, although 
 the maker may break his contract by which 
 the right of action against him was suspend- 
 ed. Timberlake v. Thayer, 71 Miss. 279, 14 
 So. 446, 24: 231 
 
 129. The giving of a judgment or other se- 
 curity by the maker or prior indorser of a 
 note does not discharge a subsequent in- 
 dorser. First Nat. Bank v. Peltz, 176 Pa. 
 513, 35 Atl. 218, 36: 832 
 
 130. The holder of a note cannot collect it 
 from an accommodation indorser, if, with- 
 out giving him notice that the note is un- 
 paid, it induces him to discharge a judgment 
 which has been given to' secure him against 
 liability on his indorsement, which is a 
 prior lien on property of the one primarily 
 liable, and thereby advances to the position 
 of first lien a judgment which has been giv- 
 en by such person to the holder to secure 
 payment of the note in question. Id. 
 
 131. One whose name is indorsed on a note 
 cannot be held liable thereon by a transferee 
 if, prior to the transfer, he had given in- 
 structions for the erasure of his name, which 
 was known to the transferee, although the 
 instructions were not complied with. Gregg 
 v. Groesbeck, 11 Utah, 310, 40 Pac. 202, 
 
 32: 266 
 
 132. The liability of the indorser of a note 
 cannot be preserved by a reservation of the 
 rights and claims against him by the holder, 
 when he releases a judgment against the 
 maker upon payment of less than the 
 amount due. Spies v. National City Bank, 
 174 N. Y. 222, 6<3 N. E. 736, 61 : 193 
 
 IV. Presentment; Demand; Notice; Protest. 
 a. Necessity. 
 
 Note Received for Collection, see Banks, 255- 
 
 257. 
 What will Excuse Nonpresentment, see 
 
 Checks, 26-28. 
 
 Presumption as to. see Evidence, 170. 
 Necessity of Alleging Protest, see Pleading, 
 
 289.' 
 Pledgee's Liability for Failure to Present, 
 
 see Pledge and Collateral Security, 26. 
 See also supra, 122; infra, 163, 164, 265. 
 For Editorial Notes, see infra, VII. 26. 
 
 133. To charge the payment of a demand 
 note upon a payee who has indorsed and 
 transferred the same, demand for payment 
 must be made upon the maker, and notice 
 of failure to pay be given to the indorser, 
 within a reasonable time after the indorse- 
 
 ment. Turner v. iron Chief Min. Co. 74 
 Wis. 355, 43 N. W. 149, 5: 533 
 
 134. A failure of the holder of a promis- 
 sory note to present for payment, or to give 
 notice of nonpayment, discharges the indors- 
 er from liability. Pattillo v. Alexander, 96 
 Ga. 60, 22 S. E. 646, 29:616 
 
 135. An indorser of a note after its ma- 
 turity is not liable thereon without demand 
 upon the maker and notice of nonpayment. 
 Beer v. Clifton, 98 Cal. 323, 33 Pac. 204, 
 
 20: 580 
 
 136. One who sends paper for collection, 
 whether he indorses it or not, is entitled to 
 notice of dishonor and to one day thereafter 
 to notify prior indorsers. Rosson v. Carrol. 
 90 Tenn. 90, 16 S. W. 66, 12: 727 
 
 137. The liability of the indorser of a. 
 note for annual interest which becomes due 
 before the maturity of the note is dependent 
 upon a prior demand of the maker. Mt. 
 Mansfield Hotel Co. v. Bailey, 64 Vt. 151, 24 
 Atl. 136, 16: 295 
 
 138. An indorser of a forged bill is liable 
 to the indorsee on its dishonor withoiit proof 
 of demand or notice. Hamer v. Brainard, 7 
 Utah, 245, 26 Pac. 299, 12: 434 
 
 139. An indorser for whose benefit an ac- 
 commodation note was made, being bound 
 to provide funds to meet it at maturity, is 
 not released by lack of presentment, pro- 
 test, or notice. American Nat. Bank v. Junk 
 Bros. Lumber & Mfg. Co. 94 Tenn. 624, 30 
 S. W. 753, 28:492 
 
 140. A third person placing his name on 
 the back of a promissory note before de- 
 livery to the payee is an original promisor 
 or maker, not entitled to demand or notice 
 of nonpayment, and, as to him, no consider- 
 ation need be proved. Cherry v. Sprague, 
 187 Mas-s. 113.. 72 N. E. 456, 67: 33 
 Effect of insolvency. 
 
 Necessity of Presenting Check, see Checks, 
 10. 
 
 141. Insolvency of the maker of a note is 
 no excuse for failure to give notice of dis- 
 honor. Hudson Furniture Co. v. Harding, 
 34 U. S. App. 148, 17 C. C. A. 203, 70 Fed. 
 468, 30: 513 
 
 142. The mere insolvency of the makers 
 of a note does not excuse a demand on them 
 as a condition of holding the indorser lia.ble. 
 Leonard v. Olson, 99 Iowa, 162, 68 N. W. (577, 
 
 35: 381 
 Waiver. 
 
 See also infra, 225. 
 For Editorial Notes, see infra, VII. 29. 
 
 143. The indorsement of a waiver of pro- 
 test and notice of protest implies knowledge 
 of all the paper contains at the time, and 
 precludes any defense based on matters then 
 apparent on the face of the instrument. 
 Montgomery v. Crosthwait, 90 Ala. 553, 8 
 So. 498, 12: 140 
 
 144. Oral directions by indorsers. not to do 
 anything with a note on default of payment, 
 may constitute a sufficient waiver of de- 
 mand and notice. Markland v. McDaniel, 
 51 Kan. 350, 32 Pac. 1114, 20: 96 
 
 145. An indorser, by asking that the time 
 of payment be extended, and promising to 
 let his name remain on the note if the ex-
 
 260 
 
 BILLS AND NOTES, IV. b. 
 
 tension is granted, waives demand and no- 
 tice of nonpayment. C&dy v. Bradshaw, 116 
 N. Y. 188, 22 N. E. 371, 5: 557 
 
 146. A drawer's promise to pay a draft, 
 or his recognition of liability to pay a draft, 
 with full knowledge of the facts releasing 
 him from liability, is a waiver of his right 
 to insist that he* has been released by fail- 
 ure to take the necessary steps to charge 
 him. Bank of Gilby v. Farnsworth, 7 N. D. 
 6, 72 N. W. 901. 38: 843 
 
 147. Payment of interest on a note after 
 maturity waives the defense of failure to 
 present the note for payment at the place 
 where it was payable. Greeley v. White- 
 head, 35 Fla. 523, 17 So. 643, 28: 286. 
 
 148. Statements by an indorser to third 
 persons, merely showing that he thought 
 himself still liable on a note from which he 
 had been discharged by failure to give him 
 notice of dishonor, does not establish an 
 admission of liability. Rosson v. Carrol, 90 
 Tenn. 90, 16 S. W. 66, 12: 727 
 
 149. Acknowledgment of liability by an 
 indorser will not prevent his discharge for 
 lack of notice of dishonor, unless made with 
 full knowledge of his discharge. Id. 
 
 150. A subsequent promise to pay will 
 not bind an indorser who has been released 
 by lack of notice, unless supported by a con- 
 sideration. Sebree Denorit Bank v. More- 
 land, 96 Ky. 150, 28 S. W. 153, 29: 305 
 
 b. Sufficiency. 
 
 Effect of Dishonor of First of Series on Pur- 
 chaser of Later Note, see infra, 233. 
 
 Mode of Presenting Check, see Checks, 11- 
 13. 
 
 Evidence as to, see Evidence, 2031. 
 
 Extortionate Protest Fees, see Extortion, 3. 
 
 Allegation of Giving of Notice, see Pleading, 
 288. 
 
 For Editorial Notes, see infra, VII. 27. 
 
 151. The notice served by the last in- 
 dorser of a promissory note need not be 
 actually prepared by him, but he may adopt 
 and utilize for that purpose a notice sent 
 him by the protesting officer, addressed to 
 the next prior indorser. Oakley v. Carr, 
 66 Xeb. 751. 92 N. W. 1000, 60: 431 
 Notice by mail. 
 
 Proof of Sending of Notice, see Evidence, 
 
 2348. 
 For Editorial Notes, see infra, VII. 27. 
 
 152. A notice of protest of a note, mailed 
 to an indorser at the town where the note 
 was payable, under N. Y. Laws 1857, chap. 
 416, 3, permitting such notice where the 
 inrlorspr lives in the same town, in reliance 
 only upon an entry in a directory, without 
 further inquiry as to the indorser's ros'- 
 dence. which is in fact in another town and 
 which could have been readily ascertained by 
 inouiry, is insufficient to charge him with 
 liability on the note. Bacon v. Hanna, 137 
 N. Y. 379, 33 N. E. 303, 20: 495 
 Time generally. 
 
 Effect of Banker's Honest Mistake as to, see 
 
 Banks. 257. 
 On Certificate of Deposit, see Banks, 191. 
 
 Effect of Delay in Presenting Check, see 
 
 Checks, 14-25. 
 Presumption of Premature Presentment, see 
 
 Evidence, 640. 
 Sufficiency of Proof as to, see Evidence, 
 
 2347. 
 
 Pleading as to, see Pleading, 42. 
 See also supra, 133, 136. 
 For Editorial Notes, see infra, VII. 27, 
 
 28. 
 
 153. The time for notice of dishonor of a 
 note is the same whether it was indorsed 
 before or after maturity. Rosson v. Carrol, 
 90 Tenn. 90, 16 S. W. 66, ,12: 727 
 
 154. Demand of payment of a note In- 
 dorsed when overdue, which is ineffectual be- 
 cause not followed by protest or notice, pre- 
 vents any effectual demand and protest on 
 a subsequent date. Id. 
 
 155. Motice of dishonor of a promissory 
 note is sufficient, if sent to the last indorse'r 
 by the first mail of the day following dis- 
 honor, even though such indorser is an agent 
 for collection, merely, and he is entitled to 
 one additional day to notify the indorser im- 
 mediately preceding him. Oakley v. Carr, 
 66 Neb. 751. 92 N. W. 1000, 60: 431 
 
 156. Where the last indorser of a promis- 
 sory note receives notice of dishonor on Sat- 
 urday, his notice to the next prior indorser 
 is timely if served on the following Monday. 
 
 Id. 
 
 157. The drawer of a draft which is lost 
 in course of transmission through the mails 
 from the payee to his correspondent in an- 
 other city where the drawee is located is re- 
 lieved from liability, where the payee fails 
 to present the draft or to discover the loss 
 for nearly six months, although the fact of 
 the loss appeared by report from the corre- 
 spondent showing that the draft had never 
 been received. Bank of Gilby v. Farnsworth, 
 7 N. D. 6, 72 N. W. 901, 38: 843 
 
 158. A notice of the protest of a note for 
 nonpayment is sufficient to fix the liability 
 of an indorser, if, being sent by the notary 
 in due time, it is delivered the next day 
 to the wife of the indorser at his place of 
 residence; and the fact that the letter con- 
 taining it was taken from the mail bag in 
 violation of a postal regulation is imma- 
 terial. Stanley v. McElrath, 86 Cal. 449, 
 25 Pac. 16, 10: 545 
 On demand note. 
 
 Time for Presenting Checks, see Checks, 6- 
 
 9. 
 Question for Jury as to, see Trial, 150, 151. 
 
 159. A demand note, whether with or 
 without interest, only matures as to an in- 
 dorser thereof when payment is demanded, 
 but in the absence of acts excusing the same 
 demand must be made of the maker within 
 a reasonable time in order to hold an in- 
 dorwr. Leonard v. Olson, 99 Iowa, 162, 68 
 N. W. 677, 35:381 
 
 160. The holder of a demand note who is 
 unable by reason of the removal of the 
 makers from the state to make a demand 
 on them within a reasonable time must give 
 notice of that fact and of the fact of non- 
 payment to the indorser within a reasonable 
 time, in order to hold him. Id.
 
 BILLS AND NOTES, IV. c. 
 
 261 
 
 161. A demand made nearly ten years aft- 
 er the giving of a note is not made within a 
 reasonable time within the rule that to bind 
 the indorser of a demand note demand or 
 payment must be made upon the maker 
 within a reasonable time. Id. 
 
 162. A delay of more than ten months in 
 making a demand of payment and giving no- 
 tice of protest, after the indorsement of a 
 promissory note payable on demand, is un- 
 reasonable. Turner v. Iron Chief Min. Co. 
 7+ Wis. 355, 43 N. W. 149, 5: 533 
 Place. 
 
 For Editorial Notes, see infra, VII. 27. 
 
 163. The general rule that the holder of a 
 note or bill is not required to make personal 
 or other demand on the maker as a condi- 
 tion of holding the indorser if the place of 
 payment designated in the note or bill is 
 closed on the day the paper falls due is 
 not modified or altered by the'^act that a 
 new bank is occupying the place where the 
 bank at which the Jjaper was made payable 
 had formerly been engaged in business. 
 Hutchison v. Crutcher, 98 Tenn. 421, 39 S. W. 
 725, 37: 89 
 
 164. Th.e removal of the maker of a note 
 from and his continued residence out of the 
 state, after the making of the note and be- 
 fore its maturity, excuses an actual demand 
 on him as a condition of holding an indorser, 
 unless the note is payable at a particular 
 place, in which case demand must be made 
 in that place; but if it is made payable at 
 a specified town or city without further 
 specification as to place it is to be treated 
 a. payable generally, unless expressly made 
 payable at such town or city alone; and 
 presentation there is not necessary in the 
 event of such removal. Leonard v. Olson, 
 99 Iowa, 162, 68 N. W. 677, 35: 381 
 
 165. The only bank doing business in a 
 place is, for the purpose of demand and pro- 
 test of a note, the successor of a defunct 
 bank which formerly was engaged in busi- 
 ness at that place but is closed, and at which 
 the note was made payable, where the in- 
 dorser resides at that place, but the maker 
 does not. First Nat. Bank v. Wever (Tex. 
 App.) 15 S. W. 41, 11: 295 
 Upon whom generally. 
 
 166. A notarial notice of protest for non- 
 payment of a note, addressed to an indorser 
 as if living, when the indorser is dead, it 
 actually received by his administrator, is 
 good to charge such indorser's estate. Bank 
 of Ravenswood v. Wetzel (W. Va.) 50 S. E. 
 886, 70: 305 
 
 167. A demand and notice upon a Federal 
 examiner in possession of an insolvent na- 
 tional bank may be sufficient to bind the 
 bank as an indorser, when he is by operation 
 of law in charge of its books and papers, so 
 that there is no other person upon whom to 
 make the demand at the place appointed in 
 the note. Auten v. Manistee Nat. Bank. 67 
 Ark. 243, 54 S. W. 337, 47: 329 
 
 168. To render the indorser liable on a 
 note signed by one who affixed the word 
 "a<rent" t'> liis nime without disclosing his 
 principal payment must be demanded of, 
 and refused by, the agent; demand on the 
 
 principal is not sufficient. Stinson v. Lee, 
 68 Miss. 113, 8 So. 272, 9: 8?0 
 
 On joint or joint and several parties. 
 For Editorial Notes, see infra, VII. 27. 
 
 169. Presentment to all the makers of a 
 note must be made in order to hold an indor- 
 ser, whether the note is joint in form or 
 joint and several. Benedict v. Schmieg, 13 
 Wash. 476, 43 Pac. 374, 36: TO3 
 
 170. A statute making all joint obliga- 
 tions joint and several applies to the in- 
 dorsement of a promissory note, so that no- 
 tice on nonpayment given to any one of 
 several joint indorsers is sufficient to bind 
 him. Jarnagin v. Stratton, 95 Tenn. 619, 
 32 S. W. 625, 30: 495 
 
 171. The fact that persons who become 
 joint makers of a corporation note are direct- 
 ors of the company and constitute a ma- 
 jority of the board does not make it un- 
 necessary to give them notice of dishonor 
 of the note, when by the law of the state 
 joint makers are entitled to the same notice 
 as indorsers. Hudson Furniture Co. v. Hard- 
 ing, 34 U. S. App. 148, 17 C. C. A. 203, 70 
 Fed. 468, 30: 513 
 On receiver. 
 
 172. Presentment and demand of payment 
 made on a receiver pendcnte lite of an insol- 
 vent bank and notice of nonpayment by 
 him are insufficient to bind an indorser of a 
 negotiable certificate of deposit issued by the 
 bank before its insolvency. Jackson v. Mc- 
 Innis, 33 Or. 529, 54 Pac. 884, 43: 128 
 
 173. The holder of a bill or note payable 
 by its terms at a national bank must, as a 
 condition of holding the indorser, present 
 tiie same to a receiver of the bank, appointed 
 by the Comptroller of the Currency because 
 of its insolvency, in charge of its assets and 
 administering them for the benefit of its 
 creditors, where the place in which he is ad- 
 ministering his trust, though not the former 
 banking house, is in the same city, and its 
 location is well known in the business com- 
 munity. Hutchison v. Crutcher, 98 Tenn. 
 421, 39 S. W. 725, 37: 89 
 On Assip-nor or assignee for creditors. 
 
 174. Notice of protest of a bill of ex- 
 change to a drawer who has executed an as- 
 signment for benefit of creditors, is sufficient 
 to bind his estate in the hands of the as- 
 signee. Tavlor v. Citizens' Sav. Bank, 114 
 Ky. 577, 71 S. W. 520, ' 61: 900 
 
 175. An assignee of the indorser, under a 
 general assignment for creditors, vi far 
 stands in the shoes of his -assignor that no- 
 tice to him of nonpayment of the indorsed 
 paper will bind the indorser. American Nat/ 
 Bank v. Junk Bros. Lumber & Mfg. Co. 94 
 Tenn. 624, 30 S. W. 753, 28: 492 
 
 c. Notice of Protest. 
 
 Effect of Instruction to "Protest" Note Sent 
 for Collection, see Banks, 253, 254. 
 
 Liability on Bond of Notary for Failure to 
 Give, see Bonds, 73. 
 
 Of Nonpayment of Check, see Checks, 29. 
 
 Liability for Libelous Protest, see Banks, 
 273. 
 
 As Libel, see Libel and Slander, 56, 57.
 
 262 
 
 BILLS AND NOTES, V. a, 1. 
 
 Pleading as to, see Pleading, 368, 469. 
 
 176. A sufficient noting of protest of a 
 bill for nonpayment is made by an indorse- 
 ment of the words "Protested for nonpay- 
 ment," together with the date and the offi- 
 cial signature of the notary. Taylor v. Citi- 
 zens' bav. Bank, 114 Ky. 577, 71 S. W. 520, 
 
 61: 900 
 
 177. railure to preserve the slip upon 
 which the noting of protest of a bill was 
 entered will not discharge the person sought 
 to be held liable thereon, if the noting was 
 actually made, the instrument of protest 
 executed, and notice duly given to him. Id. 
 
 V. Eights of Transferees. 
 
 a. Extent of Rights and Protection Gener- 
 ally. 
 
 1. In General. 
 
 Right to Attach Land as Creditor, see At- 
 tachment, 4. 
 Right to Enforce Provision for Attorneys' 
 
 Fees, see Attorneys' Fees, 5. 
 Draft with Bill of Lading Attached, see 
 
 Banks, 200; Bills of Lading, 3-8. 
 On Assignment of Coupon Interest Note, 
 
 see Coupons, 4. 
 False Representations by Transferrer as to 
 
 Value, see Fraud and Deceit, 28, 29, 56. 
 Right to Attack Fraudulent Conveyance, see 
 
 Fraudulent Conveyances, 60. 
 Rights of Donee, see Gift, 13, 16. 
 Of Rent Note, see Landlord and Tenant, 
 
 227. 
 Of Note Secured by Mortgage, see Mortgage, 
 
 106-114, 218. 
 Assignee's Right of Action, see Parties, 88- 
 
 90. 
 Allegation as to Transferee's Ownership of 
 
 Bill of Lading Attached seee Pleading, 
 
 290. 
 
 See also supra, 44, 109. 
 For Editorial Notes, see infra, VII. 20- 
 
 24. 
 
 178. Unless payable to bearer or indorsed 
 negotiaole paper, although assigned before 
 maturity, will be subject in the hands of the 
 assignee to all equities which accrue before 
 notice is given of the assignment. Vann v. 
 Marbury, 100 Ala. 438, 14 So. 273, 23: 325 
 
 179. One who purchases for value, of a 
 creditor, the obligation of his debtor, and 
 obtains the latter's promissory note, pay- 
 able to himself, as evidence of his obligation, 
 with full knowledge of the consideration 
 thereof, and of the facts which condition the 
 inception of the original obligation, takes 
 the note subject to all the defenses which 
 existed against it in the hands of the orig- 
 inal creditor. Williams v. Neely, 67 C. C. 
 A. 171, 134 Fed. 1, 69: 232 
 
 180. A transfer of commercial paper be- 
 fore maturity but without indorsement 
 passes an equitable title only; and notice 
 thereafter given to the transferee, of enuitios 
 between the maker and payee, will make the 
 transferee subject thereto, notwithstanding 
 
 he subsequently obtains an actual indorse- 
 ment before maturity. Pavey v. Stauffer, 
 45 La. Ann. 353, 12 So. 512, 19: 716 
 
 181. An assignment of a note on which 
 is indorsed a guaranty not referred to in the 
 assignment, but which is all that gives the 
 note any value, assigns the guaranty also. 
 Lemmon v. Strong, 59 Conn. 448, 22 Atl. 293, 
 
 12: 270 
 
 182. A note, bill, or draft, is void in the 
 hands of one who acquired it at an illegal 
 discount, which is made by statute a mis- 
 demeanor. Youngblood v. Birmingham 
 Trust & S. Co. 95 Ala. 521, 12 So. 579, 
 
 20: 58 
 
 183.' The title to personal property re- 
 served for securing the payment of a debt 
 by the terms of a promissory note for the 
 purchase money is devested by a transfer 
 of the note by the payee for value to a 
 third person, without recourse, and, unless 
 at the time of such transfer of the note the 
 title to the property is not also transferred 
 to the purchaser of the note as security, it 
 vests in the maker, and the transferee of 
 the note becomes an ordinary creditor of 
 such maker. Burch v. Pedigo, 113 Ga. 1157, 
 39 S. E. 493, 54: 808 
 
 184. The pledgee of a promissory note as 
 collateral security can enforce it against the 
 maker only to the extent of his claim 
 against the pledgeor, at least where the 
 maker has a valid defense against the en- 
 forcement of the note by the pledgeor. 
 Yellowstone Nat. Bank v. Gagnon, 19 Mont. 
 402, 48 Pac. 762, 44: 243 
 
 185. An assignment of a mortgage and the 
 note secured thereby as collateral security, 
 before maturity of the note, accompanied 
 by a delivery of the mortgage and what pur- 
 ported to be the note, but which was in fact 
 a forgery of it, will pass a valid title to the 
 note as against one to whom the assignor 
 transfers the genuine note after maturity. 
 Kernohan v. Durham, 48 Ohio St. 1, 26 N. E. 
 982, 12: 41 
 
 186. Enforcement of a note given as a 
 subscription to the stock of a syndicate or- 
 ganized to purchase the property of a cor- 
 poration, and which is used to pay for such 
 property, cannot be defeated by fraudulent 
 overvaluation of the property purchased, if 
 the parties making the representations were 
 representatives of the syndicate and not of 
 the vendor corporation. Tradesmen's Nat. 
 Bank v. Looney, 99 Tenn. 278, 42 S. W. 149, 
 
 38: 837 
 
 Taken after maturity. 
 See also supra. 185; infra, 205. 
 For Editorial Notes, see infra, VII. 23. 
 
 187. An equitable claim of right or title 
 to a negotiable note may be asserted by a 
 third party not a party to the instrument, 
 aarninst an indorsee after maturity. Ker- 
 nohan v. Durham, 48 Ohio St. 1, 26 N. E. 982, 
 
 12: 41 
 
 187a. The purchaser of a note surrepti- 
 tiously taken by the nominal payee from the 
 true owner after maturity gets no title as 
 against the latter, although he paid value for 
 it, and had no notice of the defective title 
 of the person from whom he purchased.
 
 BILLS AND NOTES, V. a, 2. 
 
 263 
 
 Merrell v. Springer, 123 Ind. 485, 24 N. E. 
 258, 8: 61 
 
 188. The fact that negotiable paper is 
 overdue when transferred in the usual course 
 of business by an indorsee having all the 
 indicia of an absolute title, but who holds 
 it in fact only as collateral security, does not 
 subject the title of the transferee, who take's 
 it after maturity, to the latent equities ex- 
 isting in favor of third parties against the 
 person holding the paper as collateral. 
 Young Men's Christian Asso. Gymnasium Co. 
 v. Rockford Nat. Bank, 179 111. 599, 54 N. E. 
 297, 46: 753 
 
 189. Purchasers from the payee, after ma- 
 turity, of a negotiable note on which there 
 are indorsements subsequent to that of the 
 payee by persons who have held the note as 
 collateral, and on surrendering it have failed, 
 by mistake, to cancel their indorsements, 
 cannot maintain an action against such sub- 
 sequent indorsers. Adrian v. McCaskill, 103 
 N. C. 182, 9 S. E. 284, 3: 759 
 
 190. An accommodation note paid at its 
 maturity by the real debtor, although he is 
 not a party to it, cannot be thereafter trans- 
 ferred by him so as to give it validity 
 against the accommodation makers and in- 
 dorsers. Cottrell v. Watkins, 89 Va. 801, 
 17 S. E. 328, 19: 754 
 
 191. The purchaser of an accommodation 
 note after its maturity gets no better or 
 greater right to enforce it against the maker 
 or indorser than if it were ordinary nego- 
 tiable business paper given for value. Id. 
 Transfer by restrictive indorsement. 
 Indorsed for Collection, see Banks, 194. 
 See also supra, 124a-127, 183. 
 
 192. A transfer of a promissory note un- 
 der an indorsement stating a sale, transfer, 
 and assignment of the note and interest cou- 
 pons "without recourse" does not destroy 
 the commercial character of the indorsement, 
 so as to make it subject to equities, where 
 the statute provides that the addition of the 
 words "without recourse." to an indorsement 
 of a note, shall not destroy its negotiability. 
 Thorpe v. Mindeman, 123 Wis. 146, 101 N. 
 W. 417, 68: 146 
 Payment to other person. 
 
 193. In the absence of notice of the assign- 
 ment, payment to the payee of a note, as- 
 signed without indorsement, will be a com- 
 plete protection against the assignee, al- 
 though the note was not produced or deliv- 
 ered up at the time of the payment. Vann 
 v. Marbury, 100 Ala. 438, 14 'So. 273, 
 
 23: 325 
 
 2. Of Bona Fide Holders. 
 
 Of Raised Draft, see Alteration of Instru- 
 ments, II. 
 
 Of Check, see Checks, 43, 44. 
 
 Of Note Secured by Mortgage, see Mortgage, 
 111, 113. 
 
 Effect of Misapplication of Proceeds by 
 Bank Officers, see Banks, 51. 
 
 Following State Decision as to, see Courts, 
 549. 
 
 As Against Married Woman, see Husband 
 and Wife, 28-35. 47. 
 
 Proximate Cause of Injury to, see Proximate 
 
 Cause, 133. 
 Construction of Statute as to, see Statutes, 
 
 420. 
 
 Effect of Lsury, see Usury, 39. 
 See also supra,' 30, 102-104. 
 For Editorial Notes, see infra, VII. 20, 
 
 22. 
 
 194. The fact that the consideration ot a 
 negotiable note is future and contingent does 
 not make it liable to equities between the 
 parties in the hands of a bona fide holder 
 before maturity. Pavey v. Stauffer, 45 La. 
 Ann. 353, 12 So. 512, 19: 716 
 
 195. Where the legislature has expressly 
 declared that illegality in a transaction 
 shall make the security growing out of it 
 void, a note given on a consideration which 
 is thereby declared illegal, is void even in 
 the hands of an innocent holder for value. 
 Sondheim v. Gilbert, 117 Ind. 71, 18 N. E. 
 687, 5: 432 
 
 196. A bona fide purchaser of drafts in- 
 dorsed in blank for the purpose of collection 
 has a good title without regard to prior 
 equities between the owner and the collect- 
 ing agent. German Nat. Bank v. Coors, 
 14 Colo. 202 3 23 Pac. 328, 7: 845 
 
 197. A promissory note delivered by an 
 agent before the execution of a contract on 
 which he was instructed to deliver it, and 
 on the mere promise of the other party to 
 execute the contract or return the note, 
 has such a legal inception as will sustain it 
 in -the hands of a bona fide purchaser, al- 
 though tne party who obtained it of the 
 agent acted in bad faith. Chase Nat. Bank 
 v. Faurot, 149 N. Y. 532, 44 N. E. 1G4. 
 
 35: 605 
 
 198. A purchase for value and in good 
 faith, by a third person, of a foreign bill of 
 exchange from the one by whose direction it 
 was drawn, and who promised to pay for it, 
 but who failed to do so, will cut off the 
 drawer's right to stop payment on the draft 
 because of the nonreceint by him of the pur- 
 chase price. Mayer v. Heidelbach, 123 N. Y. 
 332, 25 N. E. , 9: 850 
 
 199. A note given to an unlicensed prac- 
 titioner for medical services is valid in the 
 hands of a bona fide purchaser, notwith- 
 standing the provisions of Neb. Comp. Stat. 
 art. 1, requiring all persons practising medi- 
 cine to obtain a license, and providing that 
 no person shall recover any sum of money 
 for any medical services unless he has ob- 
 tained a license, and making it unlawful and 
 a misdemeanor for any unlicensed person to 
 practise medicine. Citizens' State Bank v. 
 Nore (Neb.) 93 N. W. 160, 60: 737 
 Accommodation paper. 
 
 See also supra, 190. 191; infra, 217, 218. 
 
 200. An indorser cannot deny the validity 
 of a original note, as against a bona fide 
 holder, although the indorsement was merely 
 for accommodation. Binney v. Globe Nat. 
 Bank, 150 Mass. 574, 23 N. E. 380. 
 
 6: 379 
 
 201. A bona fide holder for value of a 
 draft accepted and delivered to the drawer 
 to ennble him to raise money upon it is not 
 affected by the fact that he took it with
 
 264 
 
 BILLS AND NOTES, V. a, 2. 
 
 knowledge that, as between the original 
 parties, it was merely an accommodation 
 bill, rfopps v. Savage, 69 Md. 513, 16 Atl. 
 133, 1:648 
 
 202. Accommodation paper of a corpora- 
 tion is not void in the hands of a bona fide 
 purchaser, under a statute which does not 
 expressly declare it void, although it makes 
 it unlawful for a corporation to appropriate 
 its funds to any purpose not stated in its 
 articles. Farmers' Nat. Bank v. Sutton 
 Mfg. Co. 6 U. S. App. 312, 3 C. C. A. 1, 52 
 Fed. 191, 17: 595 
 
 203. The holder for value and without no- 
 tice of notes indorsed by a business corpor- 
 ation for the accommodation of the makers, 
 and not in the usual course of business, 
 is entitled to recover against the corporation, 
 if it had the general power to bind itself 
 by promissory notes and contracts of in- 
 dorsement. National Park Bank v. German- 
 Am. Mut. Warehousing & S. Go. 116 N. Y. 
 281. 22 N. E. 567, 5: 673 
 Rights of purchaser from bona fide holder. 
 
 204. The general rule that if a person, 
 with knowledge of facts which will defeat 
 a promissory note in the hands of the payee, 
 purchases it from a bona fide holder thereof, 
 he may recover thereon upon the strength of 
 such bona fides, does not apply to a pur- 
 chaser who is the payee of the note. If he 
 sells such paper to an innocent third person 
 and repurchases it for value, he does not 
 thereby become possessed of any better right 
 as against the maker than he possessed in 
 the first instance. Andrews v. Robertson, 
 111 Wis. 334.. 87 N. W. 190, 54: 673 
 
 205. A transfer of a negotiable note aft- 
 er maturity and without consideration, for 
 the purpose of enabling the transferee to 
 bring an action thereon in the state, will 
 sustain a right of action by him against the 
 maker in the right of the transferrer when 
 the latter is a bona fide 'holder before matu- 
 rity for value. Edsrerly v. Lawson, 176 
 Mass. 551, 57 N. E. 1020, 51: 432 
 Note procured by fraud. 
 
 For Editorial Notes, see infra, VII. 22. 
 
 206. A plea that a negotiable note signed 
 by a party was procured by deception and 
 fraud in representing it to be a paper of 
 different character is not good against a 
 holder for value, who acquired it in due 
 course of business before maturity, unless 
 the plea aver notice to the holder of such 
 fraud and deception before he acquired the 
 note. Tower v. Whip, 53 W. Va. 158, 44 
 S. E. 179, 63: 937 
 
 207. An illiterate maker of a note and 
 mortgage for $1.000, who is fraudulently in- 
 duced to sign them supposing that he is 
 signing a lease and a note for $100 to a 
 different payee, is not liable on the note, 
 even when it is in the hands of an innocent 
 purchaser, unless he is guilty of negligence 
 in making it, since he was never a party to 
 such contract. Green v. Wilkie, 98 Iowa, 74, 
 66 N. W. 1040, 36: 434 
 Note bv incomne'-ent person. 
 
 For Editorial Notes, see infra. VII. 22. 
 
 208. A note skmod by a person mentally 
 incapacitated although negotiable in form, 
 
 is not within the rule of commercial law 
 which protects negotiable paper in the hands 
 of a bona fide holder for value against de- 
 fenses to which it was subject in the hands 
 of the payee, but the purchaser takes it 
 charged with notice of the maker's disabil- 
 ity and occupies the same position as 
 against him as the payee. Hosier v. TCeard, 
 54 Ohio St. 398, 43 N. E. 1040, 35: 161 
 
 Stolen note. 
 
 209. No liability in favor of a bona fide 
 purchaser of a negotiable paper attaches to 
 the maker, where it was drawn and signed, 
 but not delivered or intended to be delivered, 
 but was obtained by the payee by theft, 
 without gross carelessness or recklessness 
 on the part of the maker. Salley v. Terrill. 
 95 Me. 553, 60 Atl. 896, 55: 730 
 Wagering contracts or against public policy. 
 
 210. A promissory note given to stop a 
 criminal prosecution is for an "immoral and 
 illegal consideration," and invalid even in 
 the hands of a bona fide purchaser for value 
 before maturity, under Ga, Civ. Code, 3694, 
 protecting such holder except Against cer- 
 tain defenses, including "immoral and ille- 
 gal consideration." Jones v. Dannenberg Co. 
 112 Ga, 426, 37 S. E. 729, 52:271 
 
 211. A negotiable note given for differ- 
 ences on a settlement of an illegal option 
 contract which the statute expressly de- 
 clares shall be void is not of itself void in 
 the hands of an innocent holder for value 
 before maturity, unless the statute ex- 
 pressly or by necessary implication declares 
 that such note shall be void. Pone v. 
 Hanke, 155 111. 617, 40 N. E. 839, 28: 568 
 
 212. A negotiable note is not valid, even 
 in the hands of a bona fide holder, where it 
 was given in consideration of a wager con- 
 tract, which is made a crime by statute, a 
 transfer of such note to a party ignorant of 
 its illegality being also made a crime, al- 
 though the statute does not expressly de- 
 clare that such notes shall be void in the 
 hands of innocent holders. Snoddv v. Amer- 
 ican Nat. Bank, 88 Tenn. 573, 13 "S. W. 127, 
 
 7: 705 
 Duress. 
 
 213. The defense of duress is one of the 
 defenses to negotiable paper which is cut off 
 by transfer to a bona fide holder. Mack v. 
 Prang, 104 Wis. 1, 79 N. W. 770, 45: 407 
 Spurious indorsement. 
 
 214. The drawee of a draft cannot be 
 compelled to make payment to one who 
 holds under a spurious indorsement, al- 
 though the draft was taken in good faith 
 in due course of business. Beattie v. Nation- 
 al Bank, 174 111. 571, 51 N. E. 602, 43: 654 
 
 215. Title to a bill of exchange is not 
 transferred by indorsement of one bearing 
 the name of the payee, but who was in 
 fact a stranger to the bill, and who ac- 
 quired possession of it by mistake. Id. 
 Taken during days of grace. 
 
 216. The transfer of a negotiable note on 
 the second day of grace is before maturity 
 for the purpose of conferring risrhts on a 
 bona fide purchaser. Haug v. Riley, 101 Ga. 
 372, 29 S. E. 44, 40: 244
 
 BILLS AND NOTES, V. b, 1, 2. 
 
 265 
 
 Payment to other party. 
 See also supra, 193. 
 
 217. Payment of a negotiable note by one 
 of the joint makers, for whose accommoda- 
 tion it was signed by the other, will not 
 discharge the latter as against a bona fide 
 holder to whom tne note is indorsed be- 
 fore maturity after such payment. Haug v. 
 Riley, 101 Ga. 372, 29 S. E. 44, 40: 244 
 
 218. Payments by the maker of a note, 
 which are not indorsed upon it, are of no 
 effect as against a subsequent bona fide pur- 
 chaser of the note before maturity without 
 notice of the payments. Kernohan v. Dur- 
 ham, 48 Ohio St. 1, 26 N. E. 982, 12: 41 
 Extent of recovery. 
 
 For Editorial Notes, see infra, VII. 35. 
 
 219. The bona fide holder of a note pro- 
 cured by fraud can recover only to the ex- 
 tent of the sum actually paid by him for it. 
 Oppenheimer v. Farmers' & M.NBank, 97 
 Term. 19, 36 S. W. 705, 33: 767 
 
 220. A bona fide holder of a note the con- 
 sideration for which has failed in part as 
 between the original parties is not limited, 
 by the fact that it was taken as collateral 
 security, to recovery only of the amount for 
 which it was valid as between the original 
 parties, unless he had notice of the equities 
 between them, but may recover at least the 
 amount for which it was pledged. Bank of 
 Edgefield v. Farmers Co-op. Mfg. Co. 2 U. 
 S. App. 282, 2 C. C. A. 637, 52 Fed. 98, 
 
 18: 201 
 
 221. An indorsee of a promissory note 
 given and transferred for value may recov- 
 er the whole amount from the maker, al- 
 though a portion of such amount has been 
 paid by the receiver in insolvency of the in- 
 dorser, and hold the judgment pro tanto 
 as trustee for the indorser, since upon the 
 merger of the note in judgment the indorser 
 can only proceed through the judgment or 
 against its proceeds, and such judgment and 
 payment thereunder will discharge the note 
 utterly. Madison Square Bank v. Pierce, 
 137 N. Y. 444, 33 N. E. 557, 20: 335 
 
 b. Who are Protected as Bona Fide Purchas- 
 ers. 
 
 1. In General. 
 
 Of Check, see Checks, 39-42. 
 
 Burden of Proof as to, see Evidence, 671- 
 
 673. 
 For Editorial Notes, see infra, VII. 21. 
 
 222. The payment of value for negotiable 
 paper is never conclusive upon the question 
 of the bona fides of its purchase, excepting 
 in the absence of evidence tending to show 
 bad faith or notice on the part of the pur- 
 chaser of equities in favor of the maker. 
 Canajoharie Nat. Bank v. Diefendorf, 123 N. 
 Y. 191, 25 N. E. 402, 10: 676 
 
 223. In the absence of actual or construct- 
 1 ive notice of defect of title, fraud, or other 
 
 circumstance which would vitiate the title, 
 a purchaser of negotiable paper before ma- 
 turity, for a valuable consideration, is 
 under no duty to make inquiry as to how 
 the holder acquired it. Merchants' & M. 
 
 Nat. Bank v. Ohio Valley Furniture Co. 57 
 W. Va. 625, 50 S. E. 880, 70: 312 
 
 224. A guardian is a bona fide holder of an 
 unmatured note taken from a former joint 
 guardian, who has resigned, to pay an in- 
 debtedness to the ward for property which 
 the resigning guardian has had and failed 
 to account for. Mack v. Prang, 104 Wis. 1, 
 79 N. W. 770, 45: 407 
 
 225. The transferee of a note by an in- 
 dorsement of a guaranty thereon waiving 
 notice of protest and demand is an indorsee 
 within the rule protecting an innocent pur- 
 chaser of such paper for value and oefore 
 maturity, against defenses good between the 
 original parties. Dunham v. Peterson, 5 
 N. D. 414, 67 N. W. 293, 36:232 
 
 226. An assignee of negotiable notes is not 
 a bona fide purchaser as between himself and 
 a prior assignee of other notes secured by 
 the same mortgage or vendor's lien, with re- 
 spect to rights in such security. Nashville 
 Trust Co. v. Smythe, 94 Tenn. 513, 29 S. W. 
 903, 27: 663 
 
 227. One who takes title to a promissory 
 note payable to order, but not indorsed, un- 
 der a mere assignment of the note and a 
 mortgage securing it, cannot claim the pro- 
 tection of the law merchant, but holds the 
 notes subject to the equities that would 
 affect it in tne hands of his assignor. Gal- 
 usha v. Sherman, 105 Wis. 263, 81 N. W. 
 495, 47:417 
 Carelessness of purchaser. 
 
 228. Evidence of gross carelessness in the 
 purchase of negotiable paper may be con- 
 sidered as tending to prove bad faith on the 
 part of the purchaser, which will prevent 
 his claiming to hold the paper free from 
 equities on the part of the maker. Canajo- 
 harie Nat. Bank v. Diefendorf, 123 N. Y. 
 191, 25 N. E. 402, 10: 676 
 
 229. One who takes a note without ob- 
 serving that it does not name the payee, or 
 contain a blank for the insertion of his 
 name, is so negligent that he cannot claim 
 an estoppel of the maker to set up the de- 
 fense that the note . has been used for a 
 purpose not intended by him. Smith v. 
 Willing, 123 Wis. 377, 101 N. W. 692, 
 
 68: 940 
 Reliance on security. 
 
 230. One who takes a negotiable note rely- 
 ing wholly upon the sufficiency of mortgage 
 security, or for the purpose of acquiring the 
 mortgaged property by foreclosure, and 
 without inquiry or care as to the financial . 
 standing of the makers of the note, is not 
 thereby precluded from being a bona fide 
 holder of the note, when l)e takes it for full 
 consideration, before maturity, in the ordi- 
 nary course of business. Christensen v. 
 Farmers' Warehouse Asso. 5 N. D. 438, 67 
 N. W. 300, 32: 730 
 
 2. Knowledge; Notice; Facts Putting on In- 
 quiry. 
 
 Note Discounted by Bank, see Banks, 282- 
 
 285. 
 Burden of Proof as to, see Evidence, 305, 
 
 671. 
 1 For Editorial Notes, see infra, VII. 21.
 
 266 
 
 BILLS AND NOTES, V. b, 2. 
 
 231. Mere negligence in making inquiries 
 as to the validity of negotiable paper before 
 purchasing does not charge one with notice 
 of infirmities. Central State Bank v. Spur- 
 lin, 111 Iowa, 187, 82 N. W. 493, 49: 661 
 
 232. The letters "C. I. P.," preceding the 
 signature on the face of a note, are not 
 alone sufficient notice that it was given for a 
 patent named "Chapin Iron Process," so as 
 to bring it within Mill. & V. (Tenn.) Code, 
 2481, providing that a note given for an 
 interest in a patent shall be subject in any 
 holder's hands to all defenses against the 
 original payee, when the fact that it was 
 so given appears on its face. First Nat. Bank 
 v. Stockell, 92 Tenn. 252, 21 S.'W. 523, 
 
 20: 605 
 
 233. Dishonor of the first to mature of 
 several notes given upon the same considera- 
 tion, but not showing that fact upon their 
 face, is no notice to a subsequent indorsee 
 for value before maturity of the other notes, 
 of the equities existing between the original 
 parties. Bank of Edgefiejd v. Farmers' Co- 
 Op. Mfg. Co. 2 U. S. App. 282, 2 C. C. A. 637, 
 52 Fed. 98, 18: 201 
 
 234. Letters by the holder of drafts in- 
 dorsed in blank, to a bank with which he had 
 rediscounted them, referring to his account 
 and to the drafts as "discounts" and "accept- 
 ances" of the drawer, are not notice that 
 such holder is not the absolute owner. Ger- 
 man Nat. Bank v. Coors, 14 Colo. 202. 23 
 Pac. 328, 7: 845 
 
 235. A recital in a promissory note that it 
 is given for a payment on land that day 
 purchased does not constitute notice that 
 the sale of the land was oral, so as to af- 
 fect the rights of an indorsee in case the sale 
 of the land is rescinded. Ferress v. Tavel, 
 87 Tenn. 386, 11 S. W. 93, 3r414 
 
 2.36. Indorsees of a note are not put upon 
 inquiry as to a subsequent failure of con- 
 sideration, by a statement or recital in the 
 note that it is given for the privilege of 
 hanging advertising signs in street cars after 
 a certain subsequent date. Siesel v. Chicago 
 Trust & Sav. Bank, 131 111. 569, 23 N. E. 417, 
 
 7:537 
 
 237. Knowledge of a warranty on a sale 
 in which a note was given will not affect the 
 rights of a bona fide purchaser of the note 
 for value before maturity, if he had no 
 knowledge of the breach of the warranty. 
 Miller v. Ottaway, 81 Mich. 196, 45 N. W. 
 665. 8: 428 
 
 238. A bnnk is a bona fide holder for value 
 of a draft within the rule that, if the drawee 
 pays it while in such holder's hands, he will 
 be concluded by the act, although the draft 
 proves to be a forgery, where it has credit- 
 ed it to the account of the payee, who had 
 become its customer upon presenting a letter 
 of introduction from another bank showing 
 his genuine signature, and has honored his 
 check for the amount and indorsed it "For 
 collection" and forwarded it for that pur- 
 pose, although the name of the depositor 
 ,was fictitious and many things about his 
 business would have aroused suspicion had 
 it been investigated, if there was nothing 
 about his appearance or actions, or about 
 
 the draft itself, to indicate that it was not 
 genuine. Northwestern Nat. Bank v. Bank 
 of Commerce, 107 Mo. 402, 17 S. W. 982, 
 
 15: 102 
 
 239. A party who takes negotiable paper 
 before maturity, for a valuable considera- 
 tion, without knowledge of defect of title, 
 and in good faith, obtains indefeasible title 
 thereto, although at the time of the purchase 
 he has knowledge of circumstances which are 
 sufficient to excite, in the mind or a pru- 
 dent man, a suspicion of want or defect of 
 title, and is grossly negligent in taking it. 
 Merchants' & M. Nat. Bank v. Ohio Valley 
 Furniture Co. 57 W. Va. 625, 50 S. E. 880, 
 
 70: 312 
 
 240. One who has destroyed his prima 
 facie title to negotiable paper, arising from 
 the fact of possession, by admitting that he 
 has no title, cannot restore it by a mere 
 verbal claim that he has since obtained ti- 
 tle or the right to discount the paper for 
 his own benefit; and a purchaser who is put 
 on inquiry by sufficient knowledge cannot 
 rely upon information imparted by one 
 whose interest it is to deceive him. Id. 
 
 241. The purchase from strangers at a dis- 
 count of 20 per cent, of a note, one maker 
 of which was known to be perfectly solvent, 
 does not charge a bank with constructive 
 notice of fraud in procuring the note, when 
 the bank was accustomed to discount notes 
 of solvent parties at from 12 to 25 per cent 
 per annum. Oppenheimer v. Farmers' & M. 
 Bank, 97 Tenn. 19, 36 S. W. 705, 33: 767 
 
 242. Knowledge of the purchaser of a note 
 at 20 per cent discount, who asked the seller 
 to keep quiet about it, that it was given for 
 "hulless oats" to a company which he knew 
 was engaged in selling such oats, with proof 
 that the seller of the note knew the oats 
 were worthless, is sufficient to justify a 
 finding that he was not a bona fide purchas- 
 er, where the oats were purchased at an 
 exorbitant price with an agreement that the 
 company should sell again for the maker of 
 the note a still larger quantity of oats at 
 the same price per bushel. Griffith v. Ship- 
 ley, 74 Md. 591, 22 Atl. 1107, 14: 405 
 
 243. Negotiable notes bought by a bank 
 cashier cannot, as matter of law, be said to 
 have been purchased in good faith in the 
 usual course of business so as to cut off the 
 defense of fraudulent inception on the part 
 of the maker, a farmer known to the cashier, 
 who had never engaged in any business re- 
 quiring the discounting of paper to the ex- 
 tent represented by the notes, which were 
 executed 200 miles from home, if they were 
 purchased at a usurious rate of interest 
 from the payee, a stranger, without any in- 
 quiry on the part of the cashier as to their 
 origin or the existence of equities in favor 
 of the maker; the question of good faith is 
 for the jury. Canajoharie Nat. Bank v. Die- 
 fendorf, 123 N. Y. 191, 25 N. E. 402, 10: 676 
 Note taken from partner. 
 
 244. The indorsement of a firm name on a 
 note to the firm from one partner, made in 
 his handwriting, and his discount of the note 
 to his own credit at a bank, are sufficient to 
 put the banker upon inquiry and prevent
 
 BILLS AND NOTES, V. b, 3. 
 
 267 
 
 him from being a bona fide holder, if the 
 indorsement was unauthorized. Brown v. 
 Pettit, 178 Pa. 17, 35 Atl. 865, 34: 723 
 J45. The possession of a negotiable note 
 by a firm to which one of the makers be- 
 longs will not charge a purchaser of the 
 note on the second da,y of grace with notice 
 that the note has been paid. Haug v. Riley, 
 101 Ga. 372, 29 S. E. 44, 40: 244 
 
 Taken from trustee. 
 
 246. A note is not subjected to equities in 
 the hands of a holder for value by the fact 
 that it is payable to a person, "trustee," if 
 inquiry would have disclosed the fact that 
 the word was merely descriptive, and that 
 the note was made to him for the purpose of 
 enabling him to turn it over in consumma- 
 tion of a subscription to the stock of a syn- 
 dicate, which was accomplished by his in- 
 dorsement and transfer. Tradesmen's Nat. 
 Bank v. Looney, 99 Tenn. 278, 42,8. W. 149, 
 
 38: 837 
 Taken from officer of corporation. 
 
 247. One who takes the negotiable note of 
 a corporation from its president as collater- 
 al security for a loan to him or a firm to 
 which he belongs is not precluded from claim- 
 ing as a bona fide holder by reason of the 
 fact that the note was signed by the pres- 
 ident, where it was payable to a third per- 
 son who had indorsed it. Cheever v. Pitts- 
 burg, C. & L. E. R. Co. 150 N. Y. 59, 44 N. 
 E. 701, 34: 69 
 Taken from agent. 
 
 248. If the holder of negotiable paper in- 
 forms a person intending to purchase it that 
 he has no title to it, or that he holds it in 
 the capacity of agent for the maker or other 
 party to it, and afterwards a sale of the 
 paper is effected between the parties, the 
 purchaser takes it subject to the equities 
 existing between the antecedent parties. 
 Merchants' & M. Nat. Bank v. Ohio Valley 
 Furniture Co. 57 W. Va. 625, 50 S. E. 880, 
 
 70: 312 
 
 249. An agent having in his possession for 
 discount, sale, safekeeping, or other purpos- 
 es, on behalf of his principal, bills, notes, or 
 other paper belonging to his principal, in- 
 dorsed in blank or in such other form as to 
 permit transfer of title thereto by mere 
 delivery, may be regarded, by strangers hav- 
 ing no notice of the agency or the capacity 
 in which such paper is held, as the owner 
 thereof, and dealt with accordingly in re- 
 spect to it. Id. 
 For maker's accommodation. 
 
 250. The fact that tfte maker of a promis- 
 sory note procures it to be discounted for 
 his own benefit is, if unexplained, notice to 
 the discounter that the indorsement is not 
 in the usual course of business, but is for 
 the accommodation of the mnker. National 
 Park Bank v. German-Am. Mut. Warehous- 
 ing & S. o. 116 N. Y. 281. 22 N. E. 567, 
 
 5: 673 
 
 3. Taken as Collateral Security or for An- 
 tecedent Debt. 
 
 251. One who takes a promissory note in 
 payment of an antecedent debt in the usual 
 
 course of business may be a purchaser for 
 value within the rule as to negotiable paper. 
 Dunham v. Peterson, 5 N. D. 414, 67 N. W. 
 293, 36: 232 
 
 252. A purchase for value in due course of 
 trade, of a note, is made by a bank which 
 discounts it and applies the proceeds to the 
 payment of a prior note due by the inaorser 
 and an overdraft in a bank in which the in- 
 dorser is interested. Tradesmen's Nat. Bank 
 v. Looney, 99 Tenn. 278, 42 S. W. 149, 
 
 38: 837 
 
 253. The actual and absolute extinguish- 
 ment of a pre-existing debt in consideration 
 of a transfer to the creditor of negotiable 
 paper will constitute the transferee a holder 
 for value so as to be protected against prior 
 equities therein. Mayer v. Heidelbach, 123 
 N. Y. 332, 25 N. E. 416, 9: 850 
 
 254. Where a depositor in a bank having 
 sufficient funds standing to his credit ten- 
 ders to it his check upon it in payment for 
 negotiable paper which it has for sale, 
 and the bank accepts the check, charges it 
 against the deposit, files it as a voucher, and 
 delivers over the paper purchased, tile pur- 
 chaser is a holder for value, as the antece- 
 dent debt is pro tanto extinguished. Id. 
 
 255. One who takes a promissory note in 
 payment of a pre-existing debt holds it sub- 
 ject to any defense that could have been 
 made available against the original payee. 
 Ferress v. Tavel, 87 Tenn. 386, 11 S. W.* 93, 
 
 3: 414 
 Debt of third person. 
 
 256. Brokers who take from its president 
 drafts of a bank payable to them and signed 
 by him, in payment of his individual debt 
 to them, are not bona fide purchasers so as 
 to be able to hold the proceeds against the 
 bank in case he had n r > authority to draw the 
 drafts. Lamson v. Beard, 36 C. C. A. 56, 
 94 Fed. 30, 45: 822 
 
 257. One who executes an instrument to 
 enable his son to borrow money from a par- 
 ticular bank for his own use has a merito- 
 rious defense to an action upon it in the 
 hands of one who has derived his title 
 through an attempt to use the instrument 
 in satisfaction of a debt of a corporation of 
 which his son is a member. Smith v. Will- 
 ing, 123 Wis. 377, 101 N. W. 692. 68: 940 
 Taken as collateral security. 
 
 258. Negotiable paper held as collateral 
 security for a pre-existing debt is open in 
 the hands of the holder to all defenses 
 which could have been made against it in the 
 hands of the original owner, whether there 
 was notice of them or not. Vann v. Mar- 
 bury, 100 Ala. 438, 14 So. 273, 23: 325 
 
 259. A bank to which a non-negotiable 
 note is made payable, instead of to a corpo- 
 ration with whom the transaction in wh^ch 
 the note arose was had, and which holds it 
 as collateral security for an existing debt 
 of such corporation, takes subject to all de- 
 fenses which might Have been made had the 
 note been made to the corporation, except 
 such as arise from subsequent transactions 
 or subsequent assignments of claims against 
 the corporation. Stockton Sav. & L. Soc. v. 
 Giddings, 96 Cal. 84, 10 Pac. 1016, 21 : 406
 
 268 
 
 BILLS AND NOTES, VI. a, b 
 
 260. An indorsee of a negotiable note tak- 
 en as collateral security for a pre-existing 
 debt, there being no extension of time of 
 payment or other new consideration, except 
 such as may be deemed to arise from the ac- 
 ceptance of the paper, is a holder for value 
 and in due course of business, and, in the 
 absence of an}' circumstances charging him 
 with notice, is protected against a claim of 
 payment made to the original payee. Birk- 
 et v. Eiward, 68 Kan. 295, 74 Pac. 1100, 
 
 64: 568 
 
 261. A bank which, on making a loan, 
 takes the borrower's note, with other notes 
 payable to the borrower, regularly indorsed 
 and attached thereto as collateral security 
 before their maturity, and enters up the pro- 
 ceeds to the borrower's individual account, 
 is a bona fide holder for value in due course 
 of trade of such other notes, so as to render 
 unavailable defenses against the original 
 payee. First Nat. Bank v. Stockell, 92 
 Tenn. 252, 21 S. W. 523, 20: 605 
 
 VI. Actions and Defenses; Maturity, 
 a. In General; Right of Indorser to Sue. 
 
 Right of Action on Note Transferred after 
 Maturity, see supra, 205. 
 
 Joining Action on Note for Principal and 
 for Interest, see Action or Suit, 92. 
 
 Payment of Note for Purchase Price as Con- 
 dition Precedent to Action for Breach, 
 see Action or Suit, 21. 
 
 Successive Actions on Mortgage Securing 
 Series of Notes, see Action or Suit, 74. 
 
 Judgment by Confession on, see Judgment, 
 8, 10, 17. 
 
 Time of Entering Judgment on, see Judg- 
 ment, 70. 
 
 Right of Surety Paying Judgment to Col- 
 lect from Principal, see Judgment, 384. 
 
 Right to Jury Trial, see Jury, 11. 
 
 Assignee's Right- to Sue, see Parties, 88-90. 
 
 Payee as Party Defendant, see Parties, 140. 
 
 Bringing in Additional Defendants, see Par- 
 ties, 215. 
 
 Action on Note Given by Firm to one Mem- 
 ber, see Partnership, 139. 
 
 Set-Off by Indorser, see Set-Off and Counter- 
 claim, 24. 
 
 For Editorial Notes, see infra, VII. 31-38. 
 
 262. Mere promises to pay a forged note 
 do not lay a foundation for liability, in the 
 absence of circumstances to create an es- 
 toppel, and when the promises are made aft- 
 er maturity, without consideration and with- 
 out full knowledge of the material facts in 
 relation to the note. Barry v. Kirkland. 6 
 Ariz. 1, 52 Pac. 771, 40: 471 
 
 Right of indorser to sue. 
 See also supra, 189. 
 For Editorial Notes, see infra, VII. 32. 
 
 203. The indorsement of a note and de- 
 livery of it as collateral security for a loan 
 will not prevent the payee from maintain- 
 ing suit upon it in case ho regains possession 
 of it for that purpose. Hutchings v. Rein- 
 halter, 23 R. I. 518, 51 Atl. 429, 58: 680 
 
 2(i4. Payment of a note by a new note 
 
 of an indorser which is accepted in full sat- 
 isfaction, and a transfer of the note to the 
 indorser by an indorsement without re- 
 course, give him an immediate right of ac- 
 tion against the maker, either on the note as 
 equitable assignee, or for money paid to 
 the maker's use. Stanley v. McElrath, 86 
 Cal. 449, 25 Pac. 16,1 10: 545 
 
 265. The maker of a note cannot defeat 
 a suit against him by an indorser, who has 
 paid it, on the ground that the indorser did 
 not receive such notice of default as was 
 necessary to fix his liability on the note. 
 
 Id. 
 
 266. The fact that an accommodation in- 
 dorser who has been compelled to pay a bill 
 of exchange knew at the time of the in- 
 dorsement that the acceptance of the bill 
 was for accommodation will not prevent his 
 recovery thereon against the accommodation 
 acceptor. Gillespie v. Campbell, 39 Fed. 
 724, 5: 698 
 
 267. That the proceeds of a bill of ex- 
 change indorsed for accommodation when 
 discounted were applied by .the drawer to 
 the payment of other paper on which the 
 same person was an indorser is not a defense 
 in favor of an accommodation acceptor of the 
 bill against the indorser, where the latter 
 has been compelled to pay it on maturity. 
 
 Id. 
 
 268. A written assignment of a negotiable 
 note on a separate and unattached piece of 
 paper does not pass the legal title, or at 
 least when it was made a collateral secu- 
 rity and has been surrendered to the payee 
 merely for the purpose of collection pre- 
 clude him from bringing action on the note. 
 Haug v. Riley, 101 Ga. 372. 29 S. E. 44, 
 
 40: 244 
 
 b. Maturity ; Extension. 
 
 Effect of Uncertainty as to Maturity on Va- 
 lidity, see supra, 16-18. 
 
 Effect of Uncertainty as to, on Negotiabil- 
 ity, see supra, 63-70. 
 
 Provision for Higher Rate of Interest after 
 Maturity, see supra, 90-92. 
 
 Rights of One Taking Assignment of Note 
 after Maturity, see supra, 187-191. 
 
 Maturing of Notes by Maker's Petition for 
 Bankruptcy, see Bankruptcy, 30. 
 
 Maturity of Certificate of Deposit, see 
 Banks, 189-191. 
 
 Judgment before Maturity, see Judgment. 
 54. 
 
 See also supra, 10, 43. 
 
 For Editorial Notes, see infra, VII. 30. 
 
 269. A bill of exchange reading "One hun- 
 dred and eighty days, pay to the order of," 
 is payable one hundred and eighty days aft- 
 er date. Taylor v. Citizens' Sav. Bank, 114 
 Ky. 577, 71 S. W. 520, 61: 900 
 
 270. A promissory note on demand "pay- 
 able when payor and payee mutually agree" 
 is due within a reasonable time if the payor 
 will not agree. Page v. Cook, 164 Mass. 116, 
 41 N. E. 115, 28: 759 
 
 271. A note for value received, promising 
 to pay a certain sum at the maker's "con-
 
 BILLS AND NOTES, VI. c. 
 
 269 
 
 venience and upon this express condition, 
 that" he is "to be the sole judge of sucli 
 convenience and time of payment," may be 
 enforced by an action, after the expiration 
 of a reasonable time, on demand and re- 
 fusal of payment. It does not give the 
 maker the sole right to say when it would 
 suit his convenience to pay it. Smithers v. 
 Junker, 41 Fed. 101, 7: 264 
 
 272. A promissory note payable when the 
 United States pays judgments in "Class 2'' 
 of the Alabama claims was due when judg- 
 ments of the first class were fully paid, and 
 the residue of the fund was practically ex- 
 hausted in the pro rata payment of the 
 second class. Powers v. Manning, 154 Mass. 
 :570, 28 N. E. 290, 13:258 
 Effect of provision in mortgage. 
 
 273. The maturity of a negotiable prom- 
 issory note expressly made payable in the 
 future cannot be hastened by a'^clause in a 
 mortgage given to secure it, authorizing the 
 mortgagee to declare the "whole sum" to be 
 due upon default in any provision of the 
 mortgage. White v. Miller, 52 Minn. 367, 54 
 N. W. 736, 19:673 
 
 274. The mere nonpayment of the first of 
 two notes, secured by deed of trust, without 
 any action on the part of holders, will not 
 render the other note due, although the deed 
 of trust provided that upon default in pay- 
 ment of the first note both should become 
 immediately due and payable. Owings v. 
 McKenzie, 133 Mo. 323, 33 S. W. 802, 
 
 40: 154 
 
 Excluding Sunday. 
 See also supra, 156. 
 For Editorial Notes, see infra, VII. 30. 
 
 275. A negotiable note without days of 
 grace, falling due according to its face upon 
 Sunday, is not payable on Saturday, but on 
 the following Monday, unless that day is 
 also a legal holiday. Hirshfield v. Ft. Worth 
 Nat. Bank, 83 Tex. 452, 18 S. W. 743, 15: 639 
 Extension. 
 
 As Consideration for Promise, see Contracts, 
 80. 
 
 Extension of Lien of Mortgage by, see Lim- 
 itation of Actions, 218. 
 
 Effect of, on Mortgage, see Mortgage, 127. 
 
 Ratification by Sureties of Renewal, see 
 Principal and Surety, 1. 
 
 Enforcement of Oral Contract to Renew, 
 see Specific Performance. 46. 
 
 SOP also supra. 64, 65. 
 
 276. 'I ne taking of interest in advance on 
 a note is. in the absence of any contrary 
 agreement, prima facie evidence of an agree- 
 ment to forbear collecting the note during 
 the period for which interest is paid. Skelly 
 v. Bristol Sav. Bank. 63 Conn. 83, 26 Ati. 
 474, 19: 599 
 
 c. Defenses. 
 
 As to Notes Transferred or Assigned, see 
 supra, V. a. 
 
 Diversion of Note as, see supra, 257. 
 
 Bank's Right to Recover on Note Made for 
 Its Accommodation,- see Banks, 295-297. 
 
 Bank President's Lack of Authority to Ex- 
 ecute, see Banks. 34. 
 
 Notes Given for Purchase of Library Site, 
 see Contracts, 797. 
 
 Nonpossession of Note, see Contracts, 823. 
 
 Right to Plead Ultra Vires as, see Corpora- 
 tions, 174. 
 
 Duress, see Duress., 9. 
 
 Parol Agreement to Procure Another Signer, 
 see Evidence, 1154. 
 
 Parol Evidence as to Duplicate Draft, see 
 Evidence, 1156. 
 
 To Note for Insurance Premium, see Insur- 
 ance, 651. 
 
 Former Judgment as Defense, see Judgment, 
 236. 
 
 Limitation of Action on, see Limitation of 
 Actions, 40. 48, 56-58, 87, 92, 252, 253, 
 256, 257, 259, 273. 
 
 Defense of Surety, see Principal and Sure- 
 ty, 3, 8, 11, 12, 25, 28, 29, 34. 35, 40-44. 
 
 Usury, Who May Set up, see Usury, 42-44. 
 
 For Editorial Notes, see infra, VII. ' 33-38. 
 
 276a. A sound reason, inhering in the same 
 transaction from which a promissory note 
 springs, why the holder ought not, in equity 
 and good conscience, to recover its face 
 value, is a good equitable defense to it, al- 
 though this defense constitutes neither an 
 offset or a counterclaim, nor an affirmative 
 cause of action against the holder of the 
 note. Williams v. Neely, 67 C. C. A. 171, 
 134 Fed. 1, 69: 232 
 
 277. The liability of the maker of a note 
 to an indorsee is not affected by a compro- 
 mise of a suit by the indorsee against the 
 indorser by which the latter is permitted to 
 substitute securities in lieu of his liability 
 as indorser, under the express agreement 
 that the liability of the maker shall not 
 be affected, and that when any money is 
 collected from the maker it shall be ap- 
 plied to release the securities so deposited. 
 Tradesmen's Nat. 'Bank v. Looney, 99 Tenn. 
 278, 42 S. W. 149, ' , 38: 837 
 
 278. The other makers of a joint note 
 which by statute is made joint and several 
 remain liable for the amount unpaid on it, 
 including the sum not realized by a suit 
 against one maker for his proportionate 
 share, although that proceeded to judgment 
 and execution against his property. Sully 
 v. Campbell, 99 Tenn. 434, 42 S. W. 15. 
 
 43: 161 
 Note signed without reading. 
 
 279. It is no defense to an action on a 
 promissory note, that it does not contain the 
 agreement which the maker supposed it to 
 embody, and that he signed it without read- 
 ing it. in reliance upon representations made 
 by the party who drew it, where there was 
 nothing to prevent him from reading it, and 
 it was not signed under any emergency or 
 in consequence of anv actual fraud perpe- 
 trated upon him at the time of its execu- 
 tion. Walton Guano Co. v. Copelan, 112 Ga. 
 319. 37 S. E. 411, 52: 268 
 Promise not to sue. 
 
 Parol Evidence as to, see Evidence, 11 Si- 
 ll 53. 
 For Editorial Notes, see infra, VII. 33. 
 
 280. A collateral promise never to sue a 
 note, made to a stranger who is not a party
 
 270 
 
 BILLS AND NOTES, VI. c. 
 
 to the note or to the suit, is not a good 
 defense to a suit on the note brought 
 against the maker. Marston v. Bigelow, 
 150 Mass. 45, 22 N. E. 71, 5: 43 
 
 281. A son who is the maker of a note 
 cannot avail himself, in an action upon the 
 note, of a promise not to sue the note, made 
 for his benefit to his father by the plaintiff's 
 intestate, the payee of the note. Id. 
 
 282. A promise never to sue, made upon 
 good consideration, to the maker of the 
 note himself, would operate to defeat a suit 
 on the note. Id. 
 Agreement to substitute other note. 
 
 283. An agent who made a note in his own 
 name is not released by an agreement after 
 its maturity between the payee and the 
 principal for the substitution of the latter's 
 note, when this was never made. Shuey v. 
 Aclair. 18 Wash. 188, 51 Pac. 388, 39: 473 
 Payment. 
 
 Presumption and Burden of Proof as to, see 
 Evidence, 732-737. 
 
 Payment to Transferrer, see Payment, 28. 
 
 Allegations of Readiness to Pay, see Plead- 
 ings. 533, 534. 
 
 See also supra. 193, 217, 218. 221. 
 
 For Editorial Notes, see infra, VII. 36. 
 
 284. A remittance to the owner, of the 
 amount of a negotiable promissory note in- 
 dorsed for collection, by the one receiving 
 it, out of his own funds, as though he had 
 in fact collected the note, constitutes a pay- 
 ment and extinguishment thereof, and not 
 a mere transfer. People's & Drovers' Bank 
 v. Craiir, 63 Ohio St. 374, 59 N. E. 102. 
 
 52: 872 
 
 285. The mere possession of a negotiable 
 instrument indorsed by the payee in blank 
 is prinia facie evidence of the holder's right 
 to demand and receive payment; and pay- 
 ment to such holder will discharge the in- 
 strument, when made in .good faith and in 
 ignorance of facts which impair the holder's 
 title. Drinkall v. Movius State Bank, 11 N. 
 I). 10. 88 N. W. 724. 57: 341 
 
 2SO. Suit cannot be maintained on the or- 
 igiml note after it has been surrendered for 
 a new note and judgment taken on the lat- 
 ter, although the judgment is uncollected. 
 Dick v. Flanagan, 122 Ind. 277, 23 N. E. 
 705, 7: 590 
 
 287. Sealed notes, which have been surren- 
 dered up and canceled by a valid arrange- 
 ment between the parties thereto, cannot 
 afterwards form a legal cause of action in 
 favor of a stranger asainst their maker's 
 estate. MeClure v. Melton. 34 S. C. 377, 
 13 S. E. (515, 13: 723 
 
 288. Payment of a principal debt pending 
 suit on a note, held only as collateral secu- 
 rity leaves it subject, to any defense that 
 existed against the pledgeor. although the 
 suit may be continued. First Nat. Bank v. 
 Mann. 94 Tenn. 17. 27 S. W. 1015, 27: 565 
 Waiver of limitations. 
 
 2R9-290. An agreement indorsed on a note 
 by the maker, in connection with a small 
 payment, just before the expiration of six 
 yenrs from its date and of five years from 
 its maturity, not to take advantage of the 
 statute of limitations, does not waive the 
 
 defense of the statute for more than six 
 years from the making of the agreement. 
 Kellogg v. Dickinson, 147 Mass. 432, 18 N. E. 
 223, 1: 346 
 
 Failure of consideration. 
 Evidence as to, see Evidence, 1157, 1158, 
 
 1833, 1834, 2062. 
 See also supra, 220; Gift, 17. 
 
 291. Mere absence from the record of one 
 of the vendees of a machine who was not a 
 party to the note given for its purchase 
 price, will not prevent the defendants, in a 
 suit upon the note, from setting up failure 
 of consideration because of the machine's 
 proving worthless. Stockton Sav. & L. Soc. 
 v. Giddings, 96 Cal. 84, 10 Pac. 1016, 21: 406 
 
 292. A partial failure of consideration, 
 which results from a defect of title, is a 
 good defense pro tanto to an action by the 
 vendor upon a promissory note given for 
 the purcnase price of land which he has con- 
 veyed with covenants of warranty and 
 against encumbrances. Williams v. Neelv, 
 67 C. C. A. 171, 134 Fed. 1, 69: 232 
 
 293. The failure of a vendee under a bond 
 for title, to obtain possession of the prem- 
 ises, is no defense to a suit on a note given 
 for the purchase price, where it appears that 
 he not only never desired possession, but 
 also that he could have obtained possession 
 at any time on demand. Home v. Rodgers, 
 110 Ga. 362, 35 S. E. 715, 49: 176 
 
 294. One who bdught land, paid a part of 
 the purchase money, gave a promissory note 
 for the balance, and took a bond for titles 
 with knowledge of an existing encumbrance 
 on the property, and who subsequently en- 
 tered into an agreement with the vendor 
 recognizing liability on the note, and, in 
 effect, the promise to pay therein contained, 
 upon the vendor's removing the encum- 
 brance, could not defeat a recovery upon the 
 note by the vendor when it affirmatively ap- 
 peared that the latter had complied with 
 the terms of the agreement, and could, and 
 would, on the payment of the note, nave 
 made the vendee a good title. Id. 
 
 295. Where, under a contract of sale, the 
 title to the property is to remain in the 
 vendor until a note given for the purchase 
 money is paid, and the vendee- has posses- 
 sion and use of the property, it is no de- 
 fense to an action on the note that the 
 property was destroyed by fire before the 
 note became due. Tufts v. Griffin, 107 N. C. 
 47, 12 S. E. 68, 10: 520 
 Forged paper. 
 
 Alteration of, see Alteration of Instruments, 
 
 II. 
 
 Evidence as to, see Evidence, 2063. 
 Estoppel to Rely on, see Estoppel, 219. 
 What Constitutes Forgery, see Forgery, 7, 8. 
 For Forired Check, see Checks. V. 
 See also supra. 100, 238, 262; Mortgage. 113. 
 For Editorial Notes, see infra, VII. 5. 22. 
 
 296. Failure to repudiate the signature to 
 a promissory note when first shown to him 
 is not of itself an affirmation by an appar- 
 ent indorser of the signature, but is merely 
 evidence in the nature of an admission bear- 
 ing upon the question of the assumption of
 
 BILLS AND NOTES.. VII. (Ed. Notes.) 
 
 the signature. Traders' Nat. Bank v. Rog- 
 ers. 107 Mass. 315. 45 X. E. 923. 36: 539 
 297. A statement by the apparent indorser 
 of a note that it will be paid is not a rati- 
 fication of a forged signature, if the remark 
 was not made with intent to induce the 
 holder to assume that the signature was 
 genuine, or that the statement was an ad- 
 mission of genuineness. Id. 
 
 VII. Editorial Notes. 
 
 a. In general; nature, requisites, and va- 
 lidity. 
 
 i. Generally. 
 
 Conflict of laws as to. 61: 193. 
 
 What law governs as to collateral effect of 
 instrument. 61 : 199. 
 
 General commercial principles "as opposed 
 to local law with respect 
 to bills and notes. 61: 193 
 
 Where notes taxable. 2: 801.* 
 
 Situs of, for purposes of administration. 
 24: 689. 
 
 Proof of, as fixed liability under bankruptcy 
 act. 54: 373. 
 
 Effect of attaching draft to bill of lading, 
 upon passing of title to 
 the property. 22: 423. 
 
 Right to follow commercial paper as a trust. 
 34: 536. 
 
 Conversion of commercial paper. 2: 449.* 
 
 2. What are. 
 
 What is a letter of credit. 7: 209.* 
 
 Order as note. 3: 50.* 
 
 3. Nature; form. 
 
 Drawn in blank; ricrht to fill blanks. 1: 
 648> 
 
 Nature of bank draft. 23: 173. 
 
 As subjects of book account. 52: 712. 
 
 Effect of debtor's note as accord and satis- 
 faction. 20: 791. 
 
 Nature of drafts by one bank on another. 
 23: 173. 
 
 4. Signature; use of fictitious names. 
 
 Signing by proxy. 22: 297. 
 
 Signing by mark. 22: 372. 
 
 Use of initials in signing or indorsing com- 
 mercial paper. 14: 693. 
 
 Guaranty by surety of other signatures. 
 49: 315. 
 
 Signing as surety for surety. 21 : 247. 
 
 Fictitious names as affecting validity of. 
 39: 425. 
 
 Right of bona fide holder of paper with 
 fictitious name. 6: 625.* 
 
 5. Forgery. 
 
 As to Liability of Bank for Paying Forged 
 Check, see Banks^ VIII. 
 
 id. 
 
 Liability of person whose signature is forged 
 on commercial paper. 36: 
 539. 
 
 Generally. 36: 539. 
 On forged checks. 36: 539. 
 Estoppel and ratification. 36: 539. 
 By a promise. 36: 539. 
 By silence. 36: 540. 
 By benefit to alleged maker. 36: 
 541. 
 
 By prejudice to holder. 36: 541. 
 On account of other transactions. 
 
 36: 542. 
 
 By adoption. 36: 542. 
 6. Delivery. 
 Necessity of. 6: 470.* 
 Commercial paper as an escrow. 5: 697.* 
 Taking effect from delivery. 6:469;* 13: 
 
 52.* 
 
 Conditional delivery. 43: 480. 
 Agreement for other signatures before de- 
 livery. 45: 343. 
 7. Validity. 
 
 Note given for money lost at play. 7 : 705.* 
 
 Note given as a forfeit or as- collateral to 
 
 an invalid oral agreement 
 
 within statute of frauds. 
 
 18: 142. 
 
 Notes given for patent rights. 20: 605. 
 Where the patent is invalid. 20: 605. 
 Failure of consideration. 20: 605. 
 As to recording and defective assign- 
 ments. 20: 606. 
 
 As to notice to the holder affecting the 
 validity of the note. 20: 
 606. 
 
 As to statutory restrictions. 20 : 606. 
 Validity of stipulation for attorney's fee. 
 
 7:445.* 
 
 Renewal of note by insane person. 34: 274. 
 8. Right to make; who liable; in what 
 
 capacity. 
 
 Power of building association to issue ne- 
 gotiable paper. 43: 419. 
 Power of president or vice president of a 
 corporation to make. 14: 
 357. 
 
 Liability on infant's note for necessary sup- 
 plies. 5: 177;* 12: 859.* 
 Personal liability of officers on note made 
 
 for corporation. 19: 676. 
 Liability of public officers on negotiable 
 
 paper. 15:512. 
 'ommercial paper executed by nontrading 
 
 partner. 11:238.* 
 
 Admissibility of evidence to charge one aa 
 % undisclosed principal on 
 commercial paper. 9 : 830.* 
 Personal liability of agent on commercial 
 
 paper. 9: 830.* 
 
 Admissibility of extrinsic evidence to show 
 who is liable as maker of 
 a note. 20: 705. 
 9. Consideration. 
 Implication of. 12: 845.* 
 Effect of absence of phrase "for value re- 
 ceived." 12: 846.* 
 Want of, as a defense. 1: 594.* 
 
 When paper transferred after maturity. 
 
 46: 760. 
 
 False representations as to. 10: 676.* 
 Gift of promissory note. 26: 305. 
 Gift of check. 18: 855. 
 10. Negotiability. 
 What law governs as to. 61: 205. 
 What instruments are negotiable. 7: 537;* 
 
 8: 393.* 
 Certainty as to payment; pavment in money 
 
 only. 3: 50.* 
 Of bonds issued bv railroad companies. 1: 
 
 299.* 
 Of couoon bonds. 1 : 299.*
 
 273 
 
 BILLS AND NOTES, VII. (Ed. Notes.) 
 
 Of certificates of stock. 12: 781.* 
 
 Of check. 26: 568. 
 
 Of note payable in foreign money. 20: 481. 
 
 Of note payable "on or before" a certain 
 
 date. 11:749.' 
 Of note secured by mortgage as affected by 
 provisions in mortgage. 
 35:536. 
 Of note payable out of particular fund. 35: 
 
 647. 
 
 Orders payable out ,of particular fund 
 not bills of exchange. 
 35: 647. 
 
 Analogous rulings. 35: 649. 
 Money payable absolutely. 35: 649. 
 Draft against consignments. 35: 650. 
 Of note payable to trustee. 35: 678. 
 Provision for renewal as affecting. 31: 234 
 Pavments indorsed on note as affecting. 
 
 38: 823. 
 As affected by transfer after maturity. 46: 
 
 753. 
 Effect of stipulation for attorney's fee. 1: 
 
 547;* 3:51.* 
 Effect of seal. 35: 605. 
 
 Note of corporation. 35: 606. 
 Ignoring seal. 35: 607. 
 Statutes. 35: 608. 
 Provision for exchange as affecting. 27: 
 
 222. 
 
 Reservation of title of property as affect- 
 ing negotiability of note 
 for purchase price. 43: 
 277. 
 
 General rule. 43: 277. 
 Modifications of the rule. 43: 278. 
 Effect of statutes. 43: 279. 
 Michigan decisions. 43: 279. 
 ii. Accommodation paper. 
 Liability of accommodation maker and in- 
 
 dorser. 5 : 698.* 
 
 Accommodation indorsement by bank. 23: 
 836. 
 
 b. Acceptance and payment of bills. 
 
 12. Generally. 
 
 As to Liability of Bank ' Paying Forged 
 
 Check, see Banks, VIII. 
 
 10. 
 What law governs as to mode of acceptance 
 
 of bill. 61: 196. 
 Sufficiency and effect of acceptance. 1 : 
 
 648 ; 7: 209.* 
 
 Acceptance by telegram. 2: 709.* 
 Promise to accept. 2: 709.* 
 Validity of parol promise to accept an or- 
 der or bill of exchange. 
 
 26: 620. 
 
 Orders and bills drawn. 26: 620. 
 Orders and bills not drawn. 26: 620. 
 Effect of acceptance of bill payable at bank. 
 
 2: 709.* 
 Drawee's duty to know signature of drawer. 
 
 27: 635. 
 Acceptance of forged paper. 7: 596.* 
 
 c. Indorsement and transfer. 
 
 13. Generally. 
 
 What law governs as to sufficiency of in- 
 dorsement or assignment. 
 61 : 222. 
 
 What law governs as to liability of, and de- 
 fenses available to. draw- 
 ,er or indorser. 61: 212. 
 
 W r hat law governs as to necessity of suing 
 primary obligor as condi- 
 tion of holding drawer or 
 indorser. 61 : 220. 
 
 Parol evidence as affecting indorsement. 
 13: 52.* 
 
 Who must bear loss when check or bill is- 
 sued or indorsed to im- 
 postor. 50: 75. 
 
 Injunction against negotiation of note. 
 28: 577. 
 
 Liability of bank as accommodation indors- 
 er. 23: 836. 
 
 14.' Power to transfer or indorse. 
 
 Powers of president and vice president of 
 corporation as to transfer 
 of negotiable paper. 14: 
 358. 
 
 Power of agents to indorse negotiable paper. 
 
 27: 401. 
 
 Checks. 27: 401. 
 Other negotiable paper. 27: 402. 
 
 Of agents in general. 27: 402. 
 Of corporate ' officers and agenta. 
 
 27: 404. 
 Of bank officers and agents. 27: 
 
 405. 
 
 Indorsement for accommodation. 27: 
 407. 
 
 Effect of principal's death on agent's right 
 to indorse. 23: 711. 
 
 Right of pledgeor and pledgee in respect of 
 sale of commercial paper. 
 53: 857. 
 
 Right of pledgee to sell. 4: 857.* 
 
 15. Various forms of indorsement. 
 
 Blank indorsement, what is. 1: 712.* 
 
 Indorsement on paper with blanks not filled 
 up. 1:648.* 
 
 Filling of blanks in notes. 6: 469.* 
 
 Effect of restrictive indorsements. 12: 370.* 
 
 Effect of indorsement "without recourse." 
 12: 371.* 
 
 For collection. 2: 699;* 7: 852;* 8: 42.* 
 
 1 6. Irregular indorsement. 
 
 What law governs as to character and lia- 
 bility of irregular indors- 
 er. 61 : 200. 
 
 Liability of a stranger who indorses com- 
 mercial paper before de- 
 livery. 18: 33. 
 
 Distinction between negotiable and 
 non-negotiable instru- 
 
 ments. 18: 34. 
 Presumption as to date of signature. 
 
 18: 35. 
 
 Intention of the parties controls liabil- 
 ity. 18: 35. 
 
 Intention may be shown by parol. 18: 
 36. 
 
 17. Assignor as indorse*; guaranty. 
 
 Assignment merely an indorsement. 36:117. 
 
 Assignor not an indorser. 36: 118. 
 
 Assignment on separate paper. 36: 118. 
 
 Assignment with guaranty of payment. 36: 
 119. 
 
 Without recourse. 36: 119. 
 
 Special statute. 36: 119.
 
 BILLS AND NOTES, VII. (Ed. Notes.) 
 
 273 
 
 Transfer of title to note by indorsement in 
 form of guaranty. 36 : 232. 
 Guaranty on separate paper. 36: 233. 
 Guaranty by surety of other signatures. 49: 
 
 315. 
 
 Effect of indorsement of negotiable paper to 
 transfer guaranty. 12: 
 270.* 
 
 1 8. Implied warranty of genuineness. 
 Implied warranty of genuineness upon sale 
 of negotiable paper. 36: 
 92. 
 
 Exceptional cases. 36: 93. 
 Liability of vendor. 36: 94. 
 Sale by agent. 36: 95. 
 Knowledge of defect. 36: 95. 
 Effect of special contract. 36: 95. 
 Analogous rulings. 36: 95. 
 Effect of delay. 36:96. 
 
 Right of indorser to question maker's sig- 
 nature. 12:4341* 
 Guaranty by surety of other signatures. 
 
 49: 315. 
 
 19. Liability for transferring note to bona 
 fide holder so as to cut off defenses. 
 In general. 27: 519. 
 
 Cutting off defense of indorser. 27: 520. 
 Effect of rule as to parties in pan. delicto. 
 
 27: 520. 
 Form of action. 27: 521. 
 
 d. Rights of transferees. 
 
 20. Generally. 
 
 Rights of payee of note after repurchasing 
 from bona fide holder. 54: 
 673. 
 
 Rights and liabilities of assignee of bill of 
 lading with draft at- 
 tached, as against con- 
 signee who does not get 
 goods or finds them defect- 
 ive. 49: 679. 
 
 21. Who protected as bona fide purchasers. 
 What law governs. 61 : 202. 
 Effect of notice of facts and circumstances 
 respecting note. 10: 677;* 
 12: 41.* 
 22. Extent of rights and protection of 
 
 bona fide purchaser. 
 What law governs. 61 : 206. 
 Fraud in obtaining the execution of a note 
 as a defense against a 
 bona fide holder. 36: 434. 
 No relief in equity. 36: 435. 
 Exception where maker was misled as 
 to character of paper. 36: 
 435. 
 
 The maker must not be guilty of neg- 
 ligence. 36: 437. " 
 What is negligence. 36: 437. 
 Intention to sign note. 36: 439. 
 Rule not applicable to noncommercial 
 
 paper. 36: 439. 
 General rule applicable to sureties 
 
 36: 439. 
 
 Effect of statutes. 36: 439. 
 Right of assignee of bona fide holder. 
 
 36: 441. 
 
 Amount of recovery. 36: 441. 
 Regular course of business. 36: 441. 
 L.R.A. Dig. 18. 
 
 Right of bona fide holder of promissory note 
 
 of insane person. 35: 161. 
 
 Intoxication of maker as affecting uona 
 
 fide holder. 54:451. 
 
 Right of transferee of void note. 6: 502.* 
 Rights of bona fide purchaser of note de- 
 clared void by statute. 
 16: 45. 
 
 Right of bona fide purchaser of paper with 
 fictitious name used. 6: 
 625.* 
 Alteration of note as affecting bona fide 
 
 holders. 35: 464. 
 Reasons of the rule. 35: 465. 
 Illustrations. 35: 465. 
 
 Change in ralace of payment. 35: 
 
 465. 
 
 Change in date. 35: 466. 
 Adding interest clause. 35: 466. 
 Removal of condition. 35: 466. 
 Reducing amount of note. 35: 467. 
 Raising amount of note. 35: 467. 
 Alteration must be material. 35: 467. 
 Corrections. 35: 467. 
 Alteration by stranger or by mistake. 
 
 35: 467. 
 
 Restoration of altered bill. 35: 467. 
 Consent. 35: 467. 
 Persons signing after alteration. 35: 
 
 467. 
 
 Filling blanks. 35 : 467. 
 Leaving blanks will not authorize fur- 
 ther change. 35 : 469. 
 Spaces. 35: 469. 
 Change apparent on face of note. 35: 
 
 470. 
 
 As to Effect of Alteration, Generally, see 
 Alteration of Instruments, 
 
 in. 
 
 23. Presumption and burden of proof. 
 
 In action by purchaser. 17: 326. 
 
 24. Rights of holder of negotiable paper 
 
 transferred after maturity. 
 Effect of transfer after maturity on nego- 
 tiability. 46:753. 
 
 Rights acquired unaer transfer. 46: 754. 
 The general doctrine. 46: 754. 
 Different statements of the rule. 46: 
 
 757. 
 
 The correct rule. 46: 760. 
 Defenses which maker may make. 46: 760. 
 General rules as to right to defend. 
 
 46: 760. 
 Want or failure of consideration. 46: 
 
 761. 
 
 Illegal consideration. 46: 764. 
 Usury. 46: 767. 
 Fraud in inception. 46: 768. 
 Violation of contemporaneous agree- 
 ment. 46: 769. 
 
 That it was partnership paper. 46:771. 
 That it was accommodation paper. 46: 
 
 772. 
 
 That it was intended for collateral se- 
 curity. 46 : 774. 
 That it had been lost or stolen. 46: 
 
 775. 
 That transfer was unauthorized. 46: 
 
 776. 
 
 That debt had been attached or gar- 
 nished. 46: 778.
 
 BILLS AND NOTES, VII. (Ed. Notes.) 
 
 Payment. 46: 778. 
 
 As a defense generally. 46: 778. 
 Payment by person only second- 
 arily liable. 46: 781. 
 Effect of reissue after payment. 
 
 46: 782. 
 
 Right of the transferee to sue. 46: 783. 
 Equities of intermediate holders. 46: 783. 
 Exception as to paper taken from bona fide 
 
 holder. 46: 784. 
 
 Exception as to collateral matters. 46: 787. 
 The general rule. 46: 787. 
 What matters are collateral instances. 
 
 46: 787. 
 Exceptions as to set-offs and counterclaims. 
 
 46: 790. 
 
 The general rule. 46: 790. 
 Under statutes as to set-off of mutual 
 
 claims. 46: 792. 
 Under special statutes. 46:794. 
 Equitable set-offs. 46:796. 
 Interposition or set-off against set-off. 
 
 46: 797. 
 
 Effect of agreement for set-off. 46: 797. 
 Exception as to instruments drawn pay- 
 able without defalcation 
 or discount. 46: 799. 
 
 Effect of dishonor as to interest, instal- 
 ments, or part of a series. 
 46: 799. 
 
 Effect of transfer and indorsement at dif- 
 ferent times. 46: 801. 
 Effect of extension of time. 46: 802. 
 Effect of renewal of note. 46: 802. 
 Effect of action brought. 46: 803. 
 Rights of holder against indorser. 46: 803. 
 General rules as to effect of transfer. 
 
 46: 803. 
 Demand and notice to charge indorser. 
 
 46: 804. 
 
 Special rules based on character of the in- 
 strument. 46: 807. 
 On demand notes. 46: 807. 
 Checks. 46: 808. 
 Certificates of deposit. 46: 809. 
 Negotiable bonds. 46:810. 
 Actions against transferees to enforce equi- 
 ties. 46: 811. 
 Proof with reference to equities. 46: 812 
 
 e. Presentment; demand; notice; protest. 
 
 25. Generally. 
 
 What law governs. 61: 216. 
 
 Banking customs as to demand and notice. 
 21: 441. 
 
 26. Necessity of. 
 
 What law governs. 61: 216, 217. 
 
 When paper held as collateral or condition- 
 al payment. 68: 487. 
 
 Of presentation, demand, and notice. 12: 
 727.* 
 
 27. Sufficiency; mode; time. 
 
 What law governs. 61: 217, 218. 
 
 Sufficiency of notice to indorser. 12: 731.* 
 
 To whom should notice of protest or non- 
 payment be given after 
 appointment of receiver, 
 assignee, or other repre- 
 sentative of insolvent. 
 61 : 900. 
 
 Absence of notice, either to insolvent, 
 or to his representative- 
 61 : 900. 
 
 Notice to assignee, or other representa- 
 tive of insolvent. 61 : 900. 
 Notice to insolvent maker, indorser, 
 or accommodation payee- 
 61: 901. 
 
 Place of demand. 12: 727.* 
 Presentment to joint makers to hold indors- 
 
 ers of note. 36: 703. 
 Partnership notes. 36: 704. 
 Time within which notice of dishonor must 
 
 be given. 12: 729.* 
 Diligence required. 12: 729.* 
 Contingency of claim against, as affecting 
 limitation of time for 
 presentation against es- 
 tate of deceased indorser. 
 58: 87. 
 
 Service of notice by mail. 12: 731.* 
 Banking customs as to demand and notice- 
 
 21: 441. 
 
 In case of death of prior obligor. 23: 711. 
 28. Effect of failure or delay. 
 Effect of failure of holder to make demand' 
 or give notice of dishonor 
 of paper held as collateral 
 or conditional payment- 
 68: 482. 
 Effect, generally, on original debt. 68 1 
 
 483. 
 
 Conditional payment. 68: 483. 
 Collateral security. 68: 485. 
 Necessity for demand. 68: 487. 
 Necessity for notice. 68: 488. 
 
 To parties to the paper. 68: 488. 
 To nonparties. 68: 488. 
 Excuses for default of demand or notice- 
 
 68: 490. 
 
 Insolvency of a party. 68: 490. 
 Waiver. *68: 491. 
 Release of indorser of check by delay in 
 
 presenting it. 22: 785. 
 29. Waiver. 
 
 When paper held as collateral or condition- 
 al payment. 68: 491. 
 
 Waiver of laches and presumption of dili- 
 gence. 29: 305. 
 
 Promise as evidence of notice. 29: 305. 
 Promise as evidence of waiver. 29: 307. 
 Promise as a waiver. 29: 308. 
 What knowledge necessary to effect waiver- 
 
 29: 309. 
 
 Sufficiency of promise. 29: 310. 
 Effect of' waiver. 29: 313. 
 Effect of payment or part payment. 29: 
 
 313. 
 Right to contradict presumption of notice.- 
 
 29: 314. 
 
 Burden of proof. 29: 314. 
 How far knowledge mav be inferred. 29: 
 
 315. 
 Is question for court or jury. 29: 315. 
 
 Effect of statute. 29: 315. 
 Writing waiver on note. 29: 315. 
 Promise secondary evidence of a notice ac- 
 tually given. 29: 315. 
 
 Necessity of consideration or writing. 29 :; 
 315.
 
 BILLS AND NOTES, VII. (Ed. Notes.) 
 
 275 
 
 Sufficiency of moral obligation to sustain 
 new promise after defense 
 of laches. 53: 365. 
 
 t. Maturity. 
 
 30. Generally. 
 
 What law governs. 61 : 195. 
 
 Banking customs as to. 21 : 440. 
 
 Of demand note. 5: 533.* 
 
 When statute of limitations begins to run 
 on note payable on de- 
 mand. 1 : 319.* 
 
 When note, transferred after maturity, pay- 
 able. 3: 759.* 
 
 Extension of time when last day falls on 
 Sunday. 14: 120. 
 
 Bank customs as to days of grace. 21: 442. 
 
 First and last days in computing time on. 
 49: 207. 
 
 Meaning of term "month" in relation to 
 promissory note. 12: 772.* 
 
 Priority of notes falling due at different 
 times secured by same 
 mortgage. 24: 800. 
 
 g. Actions and defenses. 
 
 31. Generally. 
 
 What law governs respecting right to join 
 primary and secondary 
 obligors. 61 : 226. 
 Effect of alteration of bill of exchange by 
 
 holder. 4: 196.* 
 By agent. 4: 196.* 
 Alteration as Affecting Subsequent Bona 
 
 Fide Holder, see supra, VII. 22. 
 Liability of maker or drawer on raised 
 negotiable paper. 22: 686. 
 32. Who may sue. 
 What law governs. 61 : 222. 
 Who is real party in interest by whom ac- 
 tion must be brought. 
 64: 599. 
 Right of assignee to maintain action. 
 
 12: 683.* 
 33. Contemporaneous agreement and 
 
 breach as defense. 
 Parol agreements. 43: 449. 
 General rule. 43: 449. 
 That note is not to be paid. 43: 450. 
 That payment is to be conditional. 43: 
 
 453. 
 
 As to time of payment. 43: 456. 
 As to place of payment. 43: 458. 
 As to medium of payment. 43: 458. 
 As to mode of payment. 43: 459. 
 As to amount to be paid. 43: 460. 
 As to capacity of maker. 43: 462. 
 As to negotiation. 43: 463. 
 As to subject-matter of the considera- 
 tion. 43:463. 
 Collateral and independent agreements. 43: 
 
 464. 
 
 General rule. 43: 464. 
 What agreements are collateral and in- 
 dependent. 43: 465. 
 
 Mutual and dependent agreements. 43: 467. 
 General doctrine. 43: 467. 
 What agreements are mutual and de- 
 pendent. 43: 468. 
 
 Must be between same parties. 43: 
 
 472. 
 Mortgage contemporaneous with note, 
 
 43: 472. 
 
 Consistent agreements constituting parts of 
 a whole transaction. 43: 
 473. 
 Agreements constituting consideration for 
 
 note. 43: 474. 
 
 Scope of the subject. 43: 474. 
 The general doctrine. 43: 474. 
 Application to parol agreements. 43: 
 
 476. 
 What agreements are within the rule. 
 
 43: 477. 
 
 Agreements constituting condition of deliv- 
 ery. 43 : 480. 
 
 Agreements constituting satisfaction or dis- 
 charge. 43: 482. 
 Executed agreements. 43: 483. 
 Effect on transferee of note. 43: 485. 
 Violation of contemporaneous agreement as 
 defense against holder of 
 negotiable paper trans- 
 ferred after maturity. 
 46: 769. 
 
 34. Paper lost or destroyed. 
 Right of action at law on lost bill or note. 
 
 16: 205. 
 
 Non-negotiable paper. 16: 205. 
 Presumptions. 16: 206. 
 Negotiable papers. 16: 206. 
 Paper overdue or otherwise subject to 
 
 equities. 16: 206. 
 Action against indorser. 16: 207. 
 Loss pending action. 16:207. 
 Right of action at law on distroyed bill or 
 
 note. 16: 207. " , 
 35. Amount of recovery. 
 By Bona fide holder when execution of note 
 obtained by fraud. 36: 
 441. 
 
 Extent of recovery by pledgee on negotia- 
 ble paper which pledgeor 
 could not collect. 44:243. 
 The general rule. 44: 243. 
 Limitation to unpaid advances made 
 without notice. 44: 245. 
 Application to accommodation paper. 
 
 44: 249. 
 
 Matters of procedure. 44: 250. 
 36. Payment. 
 Effect of payment of, by volunteer. 23".- 
 
 124. 
 
 Making negotiable paper payable at bank 
 as authority to bank to- 
 pay same. 9: 560.* 
 
 Note payable in foreign money. 20: 481. 
 37- Set-off. 
 In bankruptcy cases. 55:40, 48, 53, 59, 64, 
 
 70. 
 
 As to commercial paper in the hands of in- 
 solvent's assienee or re- 
 ceiver. 23: 325. 
 In case of transfer after maturity. 46: 
 
 790. 
 
 38. Pleading; practice; evidence. 
 Sufficiency of answers denying ownership of 
 plaintiff in actions on ne- 
 gotiable instruments. 66: 
 513.
 
 276 
 
 BILLS OF ATTAINDER BILLS OF LADING. 
 
 Right to plead inconsistent defenses in ac- 
 tions relating to. 48: 194. 
 
 Effect of admission to change burden of 
 proof and right to open 
 and close in assumpsit on 
 bill or note. 61 : 535, 541, 
 544. 
 
 Adrnissibility of parol evidence of condition 
 to vary or contradict com- 
 mercial paper. 3: 863.* 
 
 Adniissibility of parol evidence to vary 
 maker's liability. 1: 594.* 
 
 Admissibility of extrinsic evidence to show 
 who is liable as maker of 
 a note. 20: 705. 
 
 Admissibility of parol evidence to vary con- 
 tract. 1: 816.* 
 
 Admissibility of parol evidence to prove 
 relation of parties. 1: 
 817.* 
 
 Admissibility of parol evidence as between 
 immediate parties to 
 promissory note. 13:649.* 
 
 Presumption and burden of proof in action 
 by purchaser. 17: 326. 
 
 BILLS OF ATTAINDER. 
 See Attainder. 
 
 BILLS OF CREDIT. 
 
 Estate by Entireties Created by, see Hus- 
 band and Wife, 67. 
 
 BILLS OF DISCOVERY. 
 
 See Discovery and Inspection. 
 
 BILLS OF EXCEPTIONS. 
 
 On Appeal, see Appeal and Error, IV. o. 
 On Certiorari, see Certiorari, 37. 
 As Evidence, see Evidence, 894, 895. 
 To Impeach Witness, see Witnesses, 149. 
 
 BILLS OF EXCHANGE. 
 See Bills and Notes. 
 
 BILLS OF LADING. 
 
 With Draft Attached, see also Banks, 200; 
 
 Carriers, 813; Pleading, 290; Sale, 23- 
 
 26. 
 Rights of Holder of, against Carrier, see 
 
 Carriers, II. b; IV. 31-47. 
 Delivery of Property Shipped to Holder of, 
 
 see Carriers, 813-820. 
 Parol Evidence as to, see Evidence, 1072. 
 
 Right of Bank Accepting as Security, see 
 
 Factors. 4. 
 Liability of Factor Obtaining Possession 
 
 through Forged Bill of Lading, see 
 
 Factors, 7. 
 Levy ori Consignment Covered by, see Levy 
 
 and Seizure, 3. 
 Transfer of Title by Delivery of, see Sale, 
 
 22-26. 
 Construction of, by Court, see Trial, 244. 
 
 1. Minn. Gen. Stat. 1878, chap. 124, 17, 
 declaring that bills of lading shall be ne- 
 gotiable, does not put them on the footing 
 of bills of exchange, but merely provides 
 that the transfer and delivery of these sym- 
 bols of property while it is in transit be 
 equivalent to an actual transfer and de- 
 livery of the property itself. National Bank 
 of Commerce v. Chicago, B. & N. R. Co. 44 
 Minn. 224, 46 N. W. 342, 560, 9: 263 
 
 2. Assignment for value of a bill of lad- 
 ing made "to order of shipper" transfers 
 title to the property covered thereby as 
 against all the world except the shipper, so 
 that the property can no longer be attached 
 by a third person for the shipper's debts. 
 Finch v. Gregg, 126 N. C. 176, 35 S. E. 251. 
 
 49: 679 
 
 3. An assignee of a bill of lading with 
 draft attached will, in case he receives pay- 
 ment of the draft, be subject to action for 
 a return of the money in case the property 
 covered by the bill does not comply with the 
 contract. Id. 
 
 4. Money paid by the drawee upon a 
 draft drawn against "indorsed bills of lad- 
 ing" which are in fact fictitious, and ac- 
 cepted "against" such bills in ignorance of 
 the fraud, may be recovered back from the 
 payee. Guaranty Trust Co. v. Grotrian, 52 
 C. C. A. 235, 114 Fed. 433, 57: 689 
 
 5. Payment by the drawee to the payee, 
 of a negotiable draft with bill of lading at- 
 tached, cannot be recovered back by the 
 drawee on the ground that the payee has re- 
 ceived money which it cannot equitably re- 
 tain because of a breach of warranty made 
 by the drawer to the drawee on the sale of 
 the goods for which the bill of lading was 
 given, since any equities arising therefrom 
 do not affect the payee when he has secured 
 an acceptance or payment. Tolerton & S. 
 Co. v. Anglo-California Bank, 112 Iowa, 
 706, 84 X. W. 930, 50: 777 
 
 6. The purchaser of a draft with bill of 
 lading attached is not liable on a war- 
 ranty, made by his assignor, of the goods 
 represented by the bill of lading. Id. 
 
 7. A bank does not, by purchasing a 
 draft with bill of lading attached, become 
 a party to the sale, so as to be responsible 
 to the consignee in case, after he has paid 
 the draft, the bill of lading proves to be 
 fraudulent so that the consideration fails. 
 S. Blaisdell, Jr., Co. v. Citizens, Nat Bank, 
 96 Tex. 626, 75 S. W. 292, 62: 968 
 
 8. Neither a bank which purchased a 
 draft for a consignment of grain, with bill 
 of lading attached, nor the payees who in- 
 dorsed and delivered it to the bank, are 
 liable to the drawees, the consignees of the
 
 BILLS OF PARTICULARS BLACKMAIL. 
 
 277 
 
 grain, who accepted and paid the draft, for 
 failure of title in the drawer to the prop- 
 ertv shipped. Hall v. Keller, 64 Kan. 211, 
 67 "Pac. 518, 62: 758 
 
 Editorial Notes. 
 
 As to Liability of Carriers of Freight, Gen- 
 erally, see Carriers, IV. 
 31-47. 
 
 Character and effect of. 10: 416.* 
 As a receipt and contract. 4:244;* 10: 
 
 416.* 
 
 Right to contradict. 9 : 263.* 
 Restriction in. 6: 849;* 10: 415.* 
 Rule as to valuation fixed in. 12: 799.* 
 To whom may delivery be made under bill 
 of lading. 38: 358. 
 
 BILLS OF PARTICULARS. 
 
 Confining Proof to Facts Stated in, see Evi- 
 dence, 2061. 
 
 In Support of Indictment, see Indictment, 
 etc., 99. 
 
 See also Pleading, I. i. 
 
 BILLS OF REVIEW. 
 See Review. 
 
 BILLS OF RIGHTS. 
 
 See Constitutional Law, especially, 32, 278. 
 
 BILLS OF SALE. 
 
 As Evidence, see Evidence, 821, 822. 
 As Assignment, see Sale, 5. 
 
 BINDING SLIP. 
 See Insurance, 181, 182. 
 
 *-*- 
 
 BISHOP. 
 
 Bequest to, for Masses, see Masses, 2. 
 
 Power of, as to Church Property, see Re- 
 ligious Societies, 24. 
 
 As Employer of Priest, see Religious So- 
 cieties, 55. 
 
 Liability on Contract, see Religious So- 
 cieties, 65. 
 
 As Trustee, see Trusts, 11, 168. 
 
 BITTERS. 
 
 As Intoxicating Liquors, see Intoxicating 
 Liquors, 93. 
 
 Editorial Notes. 
 -\s intoxicating liquor. 20:647. 
 
 BLACKBERRIES. 
 Levy on, see Levy and Seizure, 25. 
 
 BLACKBOARDS. 
 
 Blackboard Announcements as to Trains, 
 see Carriers, II. a, 11; Constitutional 
 Law, 419. 
 
 BLACKLISTING. 
 
 Placing Member of Association on, see As- 
 sociations, 18. 
 
 Admissibility of Evidence as to Placing of 
 Name on, see Evidence, 946, 947. 
 
 Injunction against, see Injunction, 124. 
 
 Placing Debtor's Name on Blacklist, see 
 Libel and Slander, 176. 
 
 Joinder of Actions for, see Parties, 121. 
 
 Pleading as to, see Pleading, 49. 
 
 See also Libel and Slander, 115. 
 
 1. A statute prohibiting employers from 
 combining for the purpose of interfering 
 with or preventing any person, either by 
 threats, promises, or blacklisting, from pro- 
 curing employment (Minn. Laws, 1895. chap. 
 174), is not in conflict with the Minnesota 
 Constitution or U. S. Const. 14th Amend. 
 State ex rel. Scheffer v. Justus, 85 Minn. 
 279, 88 N. W. 759, 56: 757 
 
 2. The right of railroad companies to dis- 
 charge employees does not imply the right 
 to be guilty of a violent or malicious act 
 which results in injury to the discharged 
 employee's calling. Hundley v. Louisville 
 & N. R. Co. 105 Ky. 162, 48 S. W. 429. 
 
 63: 289 
 
 3. A custom of railroads to keep a rec- 
 ord of the causes of the discharge of em- 
 ployees, and to decline to employ those who 
 are discharged for certain causes, makes it 
 a part of the contract of employment that 
 no false entry as to the cause of such dis- 
 charge shall be made, or communicated, if 
 made, to any other railroad company. Id. 
 
 4. An agreement between railroad com- 
 panies not to employ persons discharged by 
 the respective companies gives employees 
 no right of action unless carried out. Id. 
 
 Editorial Notes. 
 
 Injunction against. 20: 342. 
 Of dealer as libel. 49: 612. 
 Blacklisting employees. 63: 289. 
 
 BLACKMAIL. 
 
 As to Extortion, see Extortion.
 
 278 
 
 BLACKSMITH BLASTING. 
 
 1. A demand by the owner upon the of- 
 fender for a reasonable compensation for 
 property criminally destroyed by the latter, 
 with an accusation of the crime and a 
 threat to prosecute for it if the demand is 
 not complied with, does not constitute the 
 offen.se, under Ohio Rev. Stat. 6830, of 
 accusing a person of a crime with intent to 
 extort or gain money or other advantage. 
 Mann v. State, 47 Ohio St. 556, 26 N. E. 
 226, 11:656 
 
 2. The truth of the accusation may be 
 material on the trial of an indictment for 
 accusing another of crime with intent to ex- 
 tort money from him, on the question of 
 the intent with which the accusation was 
 made. Id. 
 
 3. The name and signature of a claimant 
 agency subscribed to threatening letters 
 and circulars which are sent in violation of 
 Mo. Rev. Stat. 1889, 3782, are entirely im- 
 material to the offense of the persons who 
 sent them. State v. McCabe, 135 Mo. 450, 37 
 S. W. 123, 34: 127 
 
 BLACKSMITH. 
 
 Question for Jury as to Negligence of, see 
 Trial, 352. 
 
 BLACKSMITH SHOP. 
 
 As Nuisance, see Nuisances, 3. 
 
 BLANK. 
 
 In Acknowledgment, see Acknowledgment, 
 
 11. 
 Filling of, see Alteration of Instruments, 
 
 34, 37^ 
 
 In Note, see Bills and Notes, 50. 
 In Bond, see Bonds, 5. 
 Leaving Mortgagee's Name Blank, see Chat- 
 
 tel Mortgage, 7. 
 In Deed, see Deeds, 47-49. 
 Indorsement in, Parol Evidence as to, see 
 
 Evidence, 1176, 1177. 
 In Assignment of Mortgage, see Mortgage. 
 
 105. 
 
 Editorial Notes. 
 
 Indorsement, what is. 1:712.* 
 
 In warrant of attorney to confess judg- 
 
 ment. * 13: 706. 
 Filling of blanks in notes. 1:648;* 6: 
 
 460.* 
 For name in certificate of acknowledg- 
 
 ment. 19: 279. 
 
 BLASPHEMY. 
 
 Editorial Notes. 
 
 Blasphemy and profanity as crimes 22- 
 353. 
 
 Definitions. 22: 353. 
 
 Indictable at common law. 22: 353. 
 
 Constitution of the offenses. 22: 354. 
 
 The indictment. 22: 355. 
 
 State statutes. 22: 357. 
 
 Constitutionality of statutes. 22: 359. 
 
 English decisions. 22: 359. 
 
 BLAST FURNACES. 
 
 Judicial- Notice as to, see Evidence, 79. 
 
 BLASTING. 
 
 Measure of Damages for Injuries by, see 
 
 Damages, 417. 
 
 Evidence as to, see Evidence, 1714, 2086. 
 Injunction against, see Injunction, 159. 
 Negligence of Independent Contractor as to, 
 
 see Master and Servant, 702, and also 
 
 infra. Editorial Notes. 
 Municipal Liability for Injury by, see 
 
 Municipal Corporations, 441. 
 As Nuisance, see Nuisances, 66. 
 See also Explosions and Explosives. 
 
 1. Blasting by the use of gunpowder or 
 dynamite is an appropriate and justifiable 
 mode of removing rock from the right of 
 way of a railroad in order to bring it to 
 grade; and a railroad company or its grad- 
 ing contractors may lawfully employ it, 
 with reasonable care. Cary v! Morrison, 63 
 C. C. A. 267, 120 Fed. 177, 65: 659 
 
 2. Persons using such an inflammable 
 and powerful instrumentality as blasting 
 powder are charged with knowledge of any 
 fact in reference to its actual effect that by 
 reasonable diligence they could have ascer- 
 tained. Blackwell v. Moorman, 111 N. C. 
 151, 16 S. E. 12, 17: 729 
 
 3. A provision in a contract for excavat- 
 ing a sewer trench, that blasts are to be 
 carefully covered to effectually prevent in- 
 jury to persons or property, 'refers to in- 
 jury from flying debris, and not from noise 
 of the explosion. Mitchell v. Prange, 110 
 Mich. 78. 67 N. W. 1096, 34: 182 
 Duty to give warning. 
 
 See also infra 20, and Editorial Notes. 
 
 4. The words "all persons," in Me. Rev. 
 Stat. chap. 17. 23. 24, requiring notice by 
 those engaged in blasting before an ex- 
 plosion, so that ''all persons" or teams shall 
 have time to retire to a safe distance, do 
 not apply to the workmen in the quarries. 
 Hare v. Mclntyre, 82 Me. 340, 19 Atl. 453, 
 
 8: 450 
 
 5. Persons "approaching" to whom notice 
 is required by Me. Rev. Stat. chap. 17, 23, 
 by persons blasting rock, include those who 
 have passed the point nearest the blasting 
 and are receding from it, if they are in 
 noar proximity to. and not ,a safe distance 
 from, the place of explosion. Wadsworth 
 v. Marshall, 88 Me. 203, 34 Atl. 30, 32: 588 
 
 (!. A contractor removing rock in a rail- 
 road ri;rht of wav bv blasting with gun-
 
 BLASTING. 
 
 279 
 
 powder must give persons rightfully occupy- 
 ing or using neighboring property reason- 
 able warning of coming explosions. Gary v. 
 JMorrison, 63 C. C. A. 267, 129 Fed. 177'. 
 
 65: 659 
 
 7. Failure to give warning of an intended 
 blast in an excavation in which blasting had 
 been going on for several weeks will not 
 render the person discharging the blast 
 liable for injury to a blacksmith injured by 
 the starting, in consequence of the noise, 
 of a horse which he was shoeing at a place 
 several hundred feet distant from the ex- 
 cavation. Mitchell v. Prange, 110 Mich. 78, 
 67 X. W. 1096, 34: 182 
 
 8. The frightening of horses by the noise 
 of an explosion in blasting rock is one of 
 "the dangers which it is intended to guard 
 against by Me. Rev. Stat. chap. 17, 23, re- 
 quiring reasonable notice of the explosion, 
 and 24, declaring liability, in case the pro- 
 vision is violated, for all damages caused by 
 the explosion. Wadsworth v. Marshall, 88 
 Me. -JG3, 34 Atl. 30, 32: 588 
 Injury to persons or property on adjoining 
 
 land. 
 Compensation for Injury by, see Evidence, 
 
 323. 
 'See also supra. 6. 
 
 9. Injury to another's house by a mere 
 concussion, without throwing rock or other 
 material on the premises occasioned by 
 blasting on one's own premises in order to 
 adapt them to a lawful use, when that 
 mode is the only one and the work is 
 transacted with due care and diligence 
 
 '^creates no liability. Booth v. Rome, W. & 
 O. T. R. Co. 140 'X. Y. 267. 35 X. E. 592, 
 
 24: 105 
 
 10. Injuries to a house from blasting, 
 caused merely by the shaking of the earth 
 or pulsations of the air. or both, give no 
 right of action, in the absence of negligence 
 in doing the blasting, where it was done 
 tinder a contract with the United States for 
 the purpose of removing rocks from a 
 harbor. Benner v. Atlantic Dredging Co. 
 134 X. Y. 156, 31 X. E. 328, 17: 220 
 
 11. One who uses high explosives in ex- 
 cavating so near the property of another 
 that the natural and probable result of an 
 explosion will be injury to such property is 
 liable for injuries caused, even by the 
 vibration of earth or air, however high a 
 degree of care he may have exercised in 
 their use. Fitzsimons & C. Co. v. Braun, 199 
 111. 300. 65 X. E. 249, 59: 421 
 
 12. The operation of a stone quarry on 
 city lots for a long period of time by means 
 of blasting, which causes vibrations of the 
 earth and air in such a manner as to render 
 an adjoining dwelling unsafe for occupation, 
 and causes rents in its walls, will render the 
 one responsible therefor liable for the in- 
 jury, although he uses due care in the 
 prosecution of the work. Longtin v. Persell. 
 30 Mont. 306, 76 Pac. 609. 65: 655 
 
 13. Persons engaged in blasting, who 
 know, or by reasonable diligence could 
 know, that stones thrown by the blasts 
 have been falling on or around a neighbor- 
 ing dwelling so as to emperil the safety of 
 
 the occupants, must protect them by cover- 
 ing the blast if this can be done at a 
 reasonable cost, and, if not, must give 
 actual warning to those who are in peril. 
 Blackwell v. Moorman, 111 N. C. 151. -Iti S. 
 E. 12, 17: 729 
 
 14. While a contractor may lawfully 
 blast with gunpowder or dynamite to re- 
 move rock in the right of way of a railroad 
 company, he has no right by blasting to 
 throw rocks upon persons rightfully occupy- 
 ing or using neighboring property. Gary v. 
 Morrison. 63 C. C. A. 267, 129 Fed. 177, 
 
 65: 659 
 Injury to former tenapt's property. 
 
 15. Blasting for the improvement of one's 
 property does not make him liable for an 
 accidental destruction thereby caused, with- 
 out wilful or wanton negligence, of the 
 buildings of a former tenant, who by fail- 
 ure to remove them and by violent preven- 
 tion of their removal by the landowner had 
 become a trespasser. Emry v. Roanoke 
 Xav. & W. P. Co. Ill X. C. 94, 16 S. E. 18, 
 
 17: 699 
 Injury to person in highway. . 
 
 16. One who explodes a blast upon his 
 own land and thereby causes a piece of 
 wood to fall upon a person lawfully travel- 
 ing in a public highway is liable as a tres- 
 passer for the injury thus inflicted, al- 
 though the blast is fired for a lawful pur- 
 pose and without negligence or want of 
 skill. Sullivan v. Dunham, 161 X. Y. 290, 
 55 X. E. 923. 47: 715 
 Contributory negligence. 
 
 Question for Jury as to, see Trial, 458. 459. 
 
 17. It is the duty of one who is lawfully 
 using property near to that upon which 
 another is legally engaged in blasting, and 
 who is warned of a coming explosion, to use 
 reasonable diligence to escape from danger 
 on account of it; and a failure to exercise 
 such care, which concurs in producing his 
 injury, waives his right of action for the 
 trespass, and constitutes contributory negli- 
 gence, which is fatal to his action for dam- 
 ages for the injury. Cary v. Morrison, 63 
 C. C. A. 267, 129 Fed. 177, 65: 659 
 
 18. A person imperiled by blasting opera- 
 tions near his dwelling is not chargeable 
 with contributory negligence because he 
 fails to find an absolutely safe place when 
 in the moment of peril he makes an effort 
 to protect himself. Blackwell v. Moorman, 
 111 N. C. 151, 16 S. E. 12, 17: 729 
 
 19. A passenger who goes upon a boat at 
 a wharf, and sits down and goes to sleep in 
 the cabin, knowing that blasting is being 
 done by contractors near by, assumes, as 
 against such contractors, all risks neces- 
 sarily incident to such work if prosecuted 
 with skill and reasonable care. Smith v. 
 Day, 40 C. C. A. 366, 100 Fed. 244, 
 
 49: 108 
 
 20. Driving a vicious horse not properly 
 broken, and unsafe for the purpose, may 
 contribute to the injury when the horse is 
 frightened by blasting rock, so as to consti- 
 tute a defense to the statutory liability for 
 failure to give notice of the explosion.
 
 280 
 
 BLASTING POWDER BOARDS. 
 
 Wadsworth v. Marshall, 88 Me. 263, 34 Atl. 
 30, 32: 588 
 
 Editorial Notes. 
 
 Duty of those engaged in, as to the safety 
 
 of others. 17: 729. 
 
 Injuries to land and buildings from blast- 
 ing. 17 : 220. 
 
 In railway construction. 17: 221. 
 Liability for, when done by independ- 
 ent contractor. 14: 830; 
 65: 753, 854. 
 
 BLASTING POWDER. 
 
 Use of, in Blasting, see Blasting. 
 Limiting Carrier's Liability as to, see Car- 
 riers, 893, 894. 
 
 BLIND. 
 
 Duty to Receive Blind Passengers, see Car- 
 riers, 447-451, 469, 483. 
 
 Institution for, as Charity, see Charities, 31. 
 
 Walking on Street Unattended, see High- 
 ways, 366. 
 
 BLINDNESS. 
 
 i 
 
 Effect of, on Application of Payments, see 
 Payment, 41. 
 
 BLIND VEIN. 
 Cutting of, by Tunnel, see Mines, 22, 23. 
 
 BLOCKING SWITCHES. 
 
 Remedy for Violation of Statute as to, see 
 Election of Remedies, 12. 
 
 Judicial Notice of Danger from, see Evi- 
 dence, 109. 
 
 Injury to Employee bv, see Master and 
 Servant, 165/327, 392. 
 
 BLOODHOUNDS. 
 
 Admissibility of Photograph of, see Evi- 
 dence, 1054. 
 
 Use of, in Making Unlawful Search, see Evi- 
 dence, 1807. 
 
 Evidence as to Trailing of Criminal with, 
 see Evidence, 2146-2148, 2161, 2189. 
 
 Editorial Notes. 
 Evidence of trailing by. 42: 432. 
 
 BLOOD POISONING. 
 
 Opinion Evidence as to, see Evidence, 1288. 
 Death of Insured by, see Insurance, 1001, 
 1002, 1024, 1038. 
 
 BOARD BILL. 
 
 Of Infant as Necessaries, see Infants, 70. 
 
 BOARDING HOUSES. 
 
 Requiring Furnishing of List of Boarders 
 for Poll Tax, see Municipal Corpora- 
 tions, 234. 
 
 Title of Statute as to Keepers of, see Stat- 
 utes, 273, 274. 
 
 BOARDS. 
 
 Of Agriculture, see Boards of Agriculture. 
 Of County Commissioners, see Counties, II. 
 
 d. 
 
 Of Pardons, sec Criminal Law, 261. 
 Of Underwriters, see Fire Underwriters. 
 Of Health, see Health, I. 
 Of Schools, see Prohibition, 32; Schools, 
 
 III. a. 
 
 Of Review of Taxes, see Taxes, III. c. 
 Delegation of Power to, see Constitutional 
 
 Law, I. d, 4. 
 Quorum at Meeting of, see Parliamentary 
 
 Law, 5-10. 
 Quo Warranto to, see Quo Warranto, 13, 14. 
 
 Individual action by members. 
 
 1. The signature of a majority of the 
 members of a board of trustees, separately 
 obtained to a paper when the board is not 
 in session, will not constitute a valid act 
 by the board. Curry Library v. Bliss, 151 
 Mass. 364, 25 N. E. 92, 7 : 765 
 
 2. A majority of the trustees of a corpo- 
 ration, acting in their individual names, can- 
 not act for the board itself and bind the 
 corporation, without any meeting of the 
 board. Thompson v. West, 59 Neb. 677, 82 
 N. W. 13, 49: 337 
 
 3. Members of a board of education act- 
 ing individually and separately, and not as 
 a board convened for the transaction of bus- 
 iness, cannot accept a proposal to make any 
 contract whatever that will bind them as a 
 corporation. Honaker v. Pocatalico Dist. 
 Bd. of Edu. 42 W. Va. 170, 24 S. E. 544, 
 
 32: 413 
 
 4. The consent of supervisors to the con- 
 struction of a street railway over a road 
 must be given when they are together and 
 acting in their official character, and should 
 appear upon the township books kept by the 
 town clerk. Pennsylvania R. Co. v. Mont- 
 gomery County Pass. R. Co. 167 Pa. 82, 31 
 Atl. 408, . 27: 766 
 Notice of meeting. 
 
 5. The specification of certain objects in
 
 BOARDS OF AGRICULTURE BOILERS. 
 
 281 
 
 a notice of a meeting of a board of alder- 
 men does not exclude action upon any 
 others which are within the range of its 
 general powers. State ex rel. Rylands v. 
 Pinkerman, 63 Conn. 176, 28 Atl. 110, 
 
 22: 653 
 
 6. Want of notice to rightful commission- 
 ers of the meeting of a pretended board is 
 fatal to action by the latter without a 
 quorum of legal members. Id. 
 Disqualification of members. 
 
 Of School Directors to Try Superintendent, 
 see Schools, 70. 
 
 7. The disqualification of two out of fif- 
 teen freeholders elected to prepare a city 
 charter under Cal. Const, art. 11, 8, which 
 does not in terms require the joint action 
 of all the members of the board, but does 
 provide that it shall be signed by the mem- 
 bers or a majority of them, do$s not pre- 
 vent the lawful organization and action as 
 a board by the other members. People ex 
 rel. Hoffman v. Hecht, 105 Cal. 621, 38 Pac. 
 941, 27:203 
 
 8. The disqualification of one of the three 
 members of a town board to sit on a hear- 
 ing for the revocation of a license will make 
 the decision of the board revoking the li- 
 cense invalid. State ex rel. Getchel v. Brad- 
 ish, 95 Wis. 205, 70 N. W. 172, 37: 289 
 
 9. The chairman of a town board is dis- 
 qualified to sit as a member of the board in 
 hearing a case for the revocation of a li- 
 cense to sell intoxicating liquors, under Wis. 
 Rev. Stat. 1558 et seq., when he has pro- 
 cured and hired a minor to purchase whisky 
 of the dealer for the purpose of procuring 
 evidence on which to revoke the license. Id. 
 
 BOARDS OF AGRICULTURE. 
 
 Mandamus to, see Mandamus, 38. 
 See also Agricultural Societies, 6. 
 
 BOARDS OF CLAIMS. 
 See Claims. 
 
 BOARDS OF CONTROL. 
 
 Conclusiveness of Decision of, see Judgment, 
 270. 
 
 BOARDS OF EDUCATION. 
 
 Jurisdiction of Equity as to, see Equity, 
 
 41. 
 
 Liability of Member of, see Officers, 201. 
 See also School*, III. a. 
 
 BOARDS OF TRADE. 
 
 Court's Power to Correct Abuses by Com- 
 mittee, see Courts, 229. 
 
 Estoppel of Member of, see Estoppel, 152. 
 
 Protection of Quotations by, see Injunction) 
 128; Property, 2. 
 
 In General, see Exchanges. 
 
 Editorial Notes. 
 
 Compulsory service by. 15: 322. 
 Review of decisions of, against members. 
 49: 358, 361. 
 
 BOAT. 
 
 As Dwellinghouse within Rule Authoriz- 
 ing Resistance of Attempt to Enter, see 
 Assault and Battery, 27. 
 
 Right of Owner of, to Abate Obstruction of 
 Stream, see Nuisances, 93, 94, 96-!; 8. 
 
 BODY SNATCHING. 
 
 Removal of Corpse from Grave, see Corpse, 
 9-5. 
 
 BOGUS COIN DETECTER. 
 
 Validity of Patent on, see Patents, 4. 
 
 BOHEMIAN OATS. 
 
 Enforcement of Note Given for, see Bills 
 
 and Notes, 242. 
 Illegality of Bohemian Oat Contract, see 
 
 Contracts, 607. 
 
 Evidence of Fraud as to, see Evidence, 1788. 
 Fraud in Note for, see Fraud and Deceit, 
 
 58. 
 
 Editorial Notes. 
 
 Fraud in contract for sale of. 6: 498,* 501.* 
 Notes for. 6: 501.* 
 
 BOILERS. 
 
 Presumption of Negligence from Explosion 
 of, see Evidence, 552, 553. 
 
 Inspection of, see Municipal Corporations, 
 259, 260. 
 
 Conclusiveness of Report of Inspectors, see 
 Evidence, 2307. 
 
 Explosion of, see Explosions and Explo- 
 sives, 18-23. 
 
 As a Fixture, see Fixtures, 23, 36, 51, 52. 
 
 Injury to Employee by Explosion of, see 
 Master and Servant, 124-126, 606. 
 
 Municipal Liability for Explosion of, see 
 Municipal Corporations, 543-545; No- 
 tice, 71.
 
 -282 
 
 BOMBS BONDS. 
 
 Editorial Notes. 
 
 Duty of master to inspect steam boiler. 
 41: 87. 
 
 BOMBS. 
 
 Explosion of, see Fireworks, 1, 2. 
 
 BONA FIDE PURCHASERS. 
 
 Of Bills or Notes, see Bills and Notes, V.; 
 VI. 22. 
 
 Uf Municipal Bonds, see Bonds, III. b, 5. 
 
 Of Certificate of Deposit, see Banks, 186. 
 
 Of Mortgaged Chattels, see Chattel Mort- 
 gage. 79. 
 
 Of Check, see Banks, 110, 132-134, 159; 
 Checks, IV.; Telegraphs, 44. 
 
 Of Corporate Stock, see Corporations, 424, 
 425. 428, 429, 439, 443-447, 453, 454, 
 675. 
 
 Of County Warrants, see Counties, 55. 
 
 Of Coupons, see Coupons, 2. 
 
 Of Land Descended or Devised, see Descent 
 and Distribution, 65. 
 
 Of Goods Consigned, see Carriers, 845; Es- 
 toppel, 121; Factors, 10. 
 
 Of Store Order, see Master and Servant, 24. 
 
 Of Part of Mortgage Debt, see Insolvency, 
 15. 
 
 Of Mortgage, see Mortgage, 101. 
 
 Of Property Subject to Trusts, see Notice, 
 11. 
 
 Of Stolen Property, Compromise of Rights, 
 sec Compromise and Settlement, 10. 
 
 Of Liind, see Evidence, 2275; Real Prop- 
 erty, 62-64, 67, 70-75 ; Vendor and Pur- 
 chaser. 86, 110; IV. 6. 
 
 Of Personalty, see Sale, III. d. 
 
 From Grantee in Escrow, see Escrow, 4. 
 
 From Fraudulent Grantor, see Fraudulent 
 Conveyances, 57. 
 
 From Grantfo of Lunatic, see Incompetent 
 Persons. 24. 
 
 Curing Defective Acknowledgment in Fa- 
 vor of, see Acknowledgment, 26. 
 
 Kstopnel as against, see Estoppel, 45, 148, 
 297. 
 
 Kxociitor as. see Executors and Administra- 
 tors, 73. 
 
 Pl< dfjee as, see Pledge and Collateral Securi- 
 ty. 29. 
 
 By Deed Unrecorded at Time of Assignment 
 in Insolvency, see Insolvency. 12. 
 
 At Slii>riir* Sale, see Judicial Sale. 27. 
 
 At Foreclosure Sale, see Mortgage, 198. 200. 
 
 Trover against, see Trover, 24. 
 
 Editorial Notes. 
 
 Who is, within protection of statute of 
 frauds. 31 : 612. 
 
 Sufficiency of pre-existing debt to give one 
 character of bona fide 
 purchaser or mortgagee. 
 1!): 590. 
 
 Pre-existing debt as consideration for bona 
 fide purchase of property 
 not negotiable. 3>: 161. 
 
 Law determining character of person as 
 bona fide holder of bill or 
 note. 61 : 202. 
 
 Effect of notice to indorsee of facts and cir- 
 cumstances respecting 
 note. 10:677;* 12:41.* 
 
 Eow far a purchaser at execution or judi- 
 cial sale is protected as a 
 bona fide purchaser. 21: 
 33. 
 
 BOND FOR TITLE. 
 
 Failure to Obtain Possession under, as De- 
 fense to Purchase Money Note, see 
 Bills and Notes, 292. 
 
 Right to Crop on Foreclosure of, see Crops, 
 10. 
 
 Presumption that Crops were Planted be- 
 fore Commencement of Foreclosure of, 
 see Evidence, 746. 
 
 BONDHOLDERS. 
 
 Rights of, on Mortgage, see Mortgage, I. f. 
 
 BONDS. 
 
 1. In General; For Private Oligations. 
 II. For Indemnity and Security. 
 
 a. In General. 
 
 b. For Fidelity of Employees or Cor- 
 
 porate Officers. 
 
 c. By Public Officers. 
 
 1. In General. 
 
 2. Liability for Money Lost or 
 
 Stolen. 
 
 d. By State Depository. 
 
 III. Commercial and Municipal. 
 
 a. Corporate Bonds. 
 
 b. Municipal Bonds. 
 
 1. In General; Power to Issue 
 
 Generally. 
 
 2. For What' Purpose. 
 
 3. Authorizing; Elections. 
 
 4. Form; Conditions and Regu- 
 
 lations of Issue. 
 
 5. Who are, and Rights of, Bona 
 
 Fide Holders. 
 
 6. Estoppel as to; Ratification. 
 
 7. Payment; Time and Place of. 
 
 IV. Editorial Notes. 
 
 On Appeal, see Appeal and Error, III. g. ; X.; 
 XL 8: Justice of the Peace, 30. 
 
 Of Assignee for Creditors, see Assignments 
 for Creditors, 36, 55. 
 
 For Attachment, see Attachment, 53. 
 
 For Retention of Chattels Attached, see At- 
 tachment, 59. 
 
 Bail Bonds, see Bail and Recognizance. 
 
 To Secure Right in Beach, see Common, 2. 
 
 Of Commission Merchant, Delegation of 
 Power to Fix Amount, see Constitution- 
 al Law, 223.
 
 BONDS, I. 
 
 283- 
 
 JFrom Merchant Selling Farm Products, see 
 Constitutional Law, 478. 
 
 From Owner of Property on Which Build- 
 ing is Constructed, see Constitutional 
 Law, 817. 
 
 "On Issuing Duplicate Certificates of Stock, 
 see Corporations, 369-371. 
 
 For Creditors' Bill, see Creditors' Bill, 15. 
 
 For Good Behavior, see Damages, 172. 
 
 _As Security for Compensation in Eminent 
 Domain, see Eminent Domain, 303, 304, 
 306. 
 
 Of Personal Representative, see Executors 
 and Administrators, 30, 31, 91-97, IV. 
 14. 
 
 Of Guardian, see Guardian and Ward, III. 
 
 Of Pest House Keeper, see Hospitals, 5. 
 
 In Injunction Suit, see Injunction, 488-492. 
 
 On Proceedings for Creating Irrigating Dis- 
 trict, see Irrigating District^, 7. 
 
 For Alimony, see Judgment, 48. 
 
 To Release Building irom Mechanic's Lien, 
 see Mechanics' Liens. 107. 
 
 Prom Electric Light Company, see Munici- 
 pal Corporations, 64. 
 
 Of Junk Dealers, Second-Hand Dealers, or 
 Pawnbrokers, see Municipal Corpora- 
 tions, 229. 
 
 .For Maintenance of New Pavements, see 
 Public Improvements, 28. 
 
 For Removal of Cause, see Removal of 
 Causes, 30, 49, 50. 
 
 In Replevin, see Replevin, 26. 
 
 In Trover, see Trover. 35. 
 
 Alteration of, see Alteration of Instru- 
 ments, I. 
 
 'Trust in Proceeds of, see Assignments for 
 Creditors, 95. 
 
 Effect, on Surety, of Principal's Discharge 
 in Bankruptcy, see Bankruptcy, 53. 
 
 Liability on. as Fixed Liability, see Bank- 
 ruptcy, 35. 
 
 Conllict of Laws as to, see Conflict of Laws, 
 45-47. 
 
 Invalid Consideration for, see Contracts, 
 475. 
 
 As Condition of Exercising Corporate Fran- 
 chise, see Corporations, 95. 
 
 Coupons on, see Coupons. 
 
 Covenant in Bond to Town Treasurer, see 
 Covenant, 106. 
 
 Stipulation for Liquidated Damages in, see 
 Damages, 172, 180. 
 
 Damages on, see Damages. III. a. 2; Replev- 
 in, 26, and also infra. IV.; 4. 
 
 Estoppel by. see Estoppel, 62, 63. 
 
 By Life Tenant, Eviction Constituting 
 Breach of. see Eviction. 
 
 Bill to Protect Rights of Town under, see 
 Executors and Administrators, 5. 
 
 "Necessity of Requiring of Legatee, see Exec- 
 utors and Administrators, 174. 
 
 Effect of Administrator's Failure to Take 
 Refunding Bond, see Executors and Ad- 
 ministrators. 185. 
 
 Suit by Administrator without Giving, see 
 Costs and Fees. 21. 
 
 Gift of, see Gift, 4, 25. 26. 34. 
 
 Guaranty by, see Guaranty. 41. 
 
 Effect of Taking from Railroad Laying 
 Tracks in Street, see Highways. 237. 
 
 .Approval of, on Holiday, see Holidays. 3. 
 
 Delivery on Sunday, see Sanday, 4. 
 Interest on, see Interest, 12, 33, 64, 79, 80, 
 
 83. 
 
 Usury in, see Usury, 9, 20. 
 Joint Liability of Obligors in, see Joint 
 
 Creditors and Debtors, 5; Judgment, 
 
 39. 
 Judgment on, see Judgment, 21, 44, 48, and 
 
 also infra, IV. 3. 
 Nunc Pro Tune Entry of Judgment on, see 
 
 Judgment, 76. 
 Effect of Judgment Against Principal, see 
 
 Judgment, II. e, 4, and also infra, IV. 
 
 Rendition of Judgment against Surety on, 
 see Judgment, 21. 
 
 Relative Rights of Life Tenant and Remain- 
 dermen in, see Life Tenants, 46-49. 
 
 Limitation of Action on, see Limitation of 
 Actions, 46, 84, 121, 122. 
 
 As Lottery Ticket, see Lottery, 16. 
 
 Priority over Mechanic's Lien, see Mechan- 
 ics' Liens, 19. _ 
 
 Liability for Requiring Excessive Bond, see 
 Municipal Corporations, 510. 
 
 Notice that Delivery was Unauthorized, see 
 Notice, 5. 
 
 Intervention of Surety, see Parties, 216. 
 
 Agreement to Make Payment by, see Pay- 
 ment, 2, 51. 
 
 Allegation of Indorsement on, see Pleading, 
 285. 
 
 Liability and Release of Sureties on, Gen- 
 erally, see Principal and Surety. 
 
 Failure of Part of Obligors to Sign, see 
 Principal and Surety, 14-17. 
 
 Erasure of Name of Surety on. see Princi- 
 pal and Surety, 18-20. 
 
 Record of, see Real Property, 79. 
 
 Reformation of. see Reformation of Instru- 
 ments, 1. 
 
 Requirement of, from Foreign Partnership, 
 see Statutes, 442. 
 
 Transfer Tax on United States Bonds, see 
 Taxes, 614, 615. 
 
 Effect of Unaccepted Tender on Liability on, 
 see Tender, 1. 
 
 I. In General; For Private Obligations. 
 
 Burden of Proving Consent to Delivery 
 Without Signing by Principal, see Evi- 
 dence, 280. 
 
 For Editorial Notes, see infra, IV. 2. 
 
 1. One who executes a bond may be liable 
 upon it although his name does not appear 
 in the body of it. Campbell v. Rotering, 42 
 Minn. 115, 43 N. W. 795, 6:278 
 
 2. An obligor in a bond conditioned for 
 the ultimate payment of all promissory 
 notes, etc.. discounted for a corporation of 
 which he is a stockholder, the proceeds of 
 which notes are used for the purposes of 
 the corporation, and therefore in effect for 
 the profit of the obligor himself, will not 
 be granted the special protection of the 
 law accorded to one who guarantees the 
 faithful discharge of the duties of an of- 
 fice. National Exch. Bank v. Gay. 57 Conn. 
 224, 17 Atl. 555, 4: 343
 
 284 
 
 BONDS, II. a. 
 
 3. Where a bond provides a penalty for 
 failure to perform its covenants, recovery 
 cannot be had upon the covenants and for 
 the penalty also. Carey v. Mackey, 82 Me. 
 516, 20 Atl. 84, 9: 113 
 
 4. Where a bond running to a town treas- 
 urer is to secure privileges to the inhabi- 
 tants of the town, the obligor cannot have 
 the option to pay the penalty and avoid the 
 condition, as the penalty would go to the 
 town, instead of to the inhabitants. Mid- 
 dletown v. Newport Hospital, 16 R. I. 319, 
 15 Atl. 800, 1: 191 
 Signing in blank. 
 
 Evidence as to, see Evidence, 2065. 
 
 5. The signer of a blank bond which is 
 filled up thereafter with terms different from 
 those authorized by him is not bound there- 
 by unless he has become estopped as to the 
 holder of the bond to deny that he author- 
 ized it to be filled up in that form. Rich- 
 ards v. Day, 137 N. Y. 183, 33 N. E. 146, 
 
 23: 601 
 To savings bank. 
 
 6. A bond taken by a savings bank in ex- 
 cess of the amount which it is authorized 
 to take by Iowa Acts 15th Gen. Assem. 
 chap. 60, 18, limiting the amount of mon- 
 ey that may be loaned to any person or 
 firm, is not for that reason void, especial- 
 ly when it is not limited to indebtedness 
 for borrowed money. Benton County Sav. 
 Bank v. Boddicker, 105 Iowa, 548, *75 N. 
 W. 632, 45: 321 
 Necessity of seal. 
 
 7. An instrument in the form of a bond 
 but without seals, if executed for a suffi- 
 cient consideration and delivered to take ef- 
 fect as security, is a valid contract obliga- 
 tion. First Nat. Bank v. Briggs, 69 Vt. 
 12, 37 Atl. 231, 37: 845 
 
 8. A seal, or a scrawl to which the stat- 
 ute gives the same effect, is essential to a 
 bond; and an instrument without such seal 
 or scrawl is not a bond, although reciting 
 in the body thereof that the obligors or 
 parties thereto have set their hands and 
 seals. Williams v. State, 25 Fla. 734. 6 So. 
 831, 6: 821 
 
 II. For Indemnity and Security. 
 a. In General. 
 
 For Editorial Notes, see infra, IV. 1-6. 
 
 9. An action on a bond to save a person 
 harmless from all damages and costs by 
 reason of a claim, and to pay all costs and 
 damages to which he may be put by reason 
 thereof, does not accrue until he has actual- 
 ly paid such costs and damages. Campbell 
 v. Rotering, 42 Minn. 115, 43 N. W. 705. 
 
 6: 278 
 
 10. A bond conditioned to pay the full 
 amount of the indebtedness of a firm, but 
 which recites an intention to indemnify 
 against all losses by reason of the failure 
 of the firm to pay indebtedness then ow- 
 ing or afterwards contracted, is not limited 
 to the indebtedness then existing. Ben- 
 
 ton County Sav. Bank v. Boddicker, 105 
 Iowa, 548, 75 N. W. 632, 45: 321 
 
 To indemnify sheriff. 
 Liability on Forthcoming Bond, see Levy 
 
 and Seizure, 66. 
 Liability of Obligors on Indemnity Bond to 
 
 Sheriff, see Levy and Seizure, 63. 
 
 11. A bond to indemnify a sheriff against 
 liability for failure to execute final process, 
 given by the person against whom the proc- 
 ess is directed, is invalid. Harrington v. 
 Crawford, 136 Mo. 467, 38 S. W. 80, 35: 477 
 To support wife. 
 
 See also Divorce and Separation, 130. 
 
 12. A defendant who is made a party by 
 substituted service cannot be required to 
 give a bond to support his deserted wife. 
 Murray v. Murray, 115 Cal. 266, 47 Pac. 
 37, 37: 626 
 
 13. The surety on a bond by a wife to 
 secure her husband against claims for fu- 
 ture support will be liable thereunder to 
 the obligee for amounts which the obligee 
 has been compelled to pay on a decree of 
 the probate court in a subsequent proceed- 
 ing by the wife to obtain money for her 
 support; and this although such de- 
 cree had been reversed by agreement of the 
 parties. Winn v. Sanford, 148 Mass. 3'. 
 18 N. E. 677, 1: 512 
 Probate bond. 
 
 14. Affirmance of a judgment in favor of 
 a county judge upon a probate bond will 
 not be prevented by the fact that his in- 
 terest has been transferred and the estate 
 settled, since the rights of the transferee 
 may be protected by the trial court. Beld- 
 en v. Hurlbut, 94 Wis. 562, 69 N. W. 357. 
 
 37: 853 
 
 Contractor's bond. 
 
 Attachment of Surety's Property in Action 
 on, see Attachment, 7. 
 
 Measure of Damages on. see Damages, 109. 
 
 Pleading as to, see Pleading. 25, 66. 
 
 Subrogation of Surety, see Subrogation, 24. 
 
 See also Parties, 69, 70; Principal and Sure- 
 ty, 26, 32. 
 
 15. The fact that the bond is voluntary 
 and founded upon a valid consideration will 
 not enable a city to enforce a bond by a 
 street contractor to repair a street for five 
 years, when the contract is entirely beyond 
 the general scope of the powers of the city, 
 even if it has been fully executed by the 
 city. Portland v. Portland Bituminous 
 Pavintr & Improv. Co. 33 Or. 307, 52 Pac. 
 28. 44: 527 
 
 16. A bond to a city by a street con- 
 tractor which constitutes an independent 
 undertaking by the latter to keep the 
 street and pavement in repair for five years, 
 and which covers in effect all injuries liable 
 to arise from whatsoever source, is not au- 
 thorized by statutory power to take secur- 
 ity by bonds for the performance of the 
 contract. Id. 
 
 17. Payment in full and acceptance of a 
 plant by a city under a contract for its 
 construction will release sureties on the con- 
 tractor's bond from liability under a con- 
 dition that materials shall be paid for, 
 where the contract nrovidos that before
 
 BONDS, II. b. 
 
 285 
 
 payment is made the contractor shall pre- 
 sent receipts in full for all materials fur 
 nished. Electric Appliance Co. v. United 
 States Fidelity & G. Co. 110 Wis. 434, 
 N. W. 648, 53: 60[ 
 
 18. Money furnished by a bank to paj 
 labor claims is not within the protection o 
 a bond conditioned to pay persons supply 
 ing the principal with "labor or materials 
 in the prosecution" of his work. Unitec 
 States Use of Fidelity Nat. Bank v. Run 
 die, 46 C. C. A. 251, 107 Fed. 227, 52: 505 
 
 19. A bond reciting the proposal of a 
 board of commissioners "to advance" the 
 money to the obligor, who binds himsel: 
 to complete the job of furnishing heating 
 apparatus for a public building, in conse- 
 quence of the default of the principal con- 
 tractor for the building, is a contract to pay 
 for the work when completed, and not mere- 
 ly to "advance" money. Gibson County v 
 Cincinnati Steam Heating Co. 128 Ind. 240 
 27 N. E. 612, 12: 502 
 Liquor bond. 
 
 See also Intoxicating Liquors, 11, 162. 
 
 20. The bond to be executed by a person 
 making application for a license, to sell 
 intoxicating liquors, in accordance with 
 Minn. Gen. Stat. 1894, 2026, is one of 
 indemnity, given to protect the state, as 
 well as such private parties as are author- 
 ized to maintain actions under the pro- 
 visions of 1992; and the amount thereof, 
 fixed by statute at $2,000, is a penalty, and 
 not in the nature of liquidated damages, 
 to be recovered as an entire sum in case 
 any of the conditions of the bond are vio- 
 lated. State v. Larson, 83 Minn. 124, 86 
 N. W. 3, 54: 487 
 
 21. A statutory liquor bond which must 
 be approved by the town board, and then 
 filed with the county treasurer, who has no 
 discretion as to the filing, becomes opera- 
 tive on its approval and before filing, so as 
 to make the sureties liable for the acts of 
 the principal between the dates of the ap- 
 proval and the filing. Brockway v. Petted, 
 79 Mich. 620, 44 N. W. 61, 7: 740 
 
 22. A liquor bond dated back several days 
 before the time of signing, and reciting that 
 the principal then professes to carry on the 
 business of liquor dealer, relates back to 
 and covers the period from its date. Id. 
 
 23. A recital in a liquor bond, that the 
 principal then professes to carry on the 
 business of a liquor dealer, estops the sure- 
 ties from denying that fact. Id. 
 
 b. For Fidelity of Employees or Corporate 
 Officers. 
 
 Defense of Illegality in Action on Bond, see 
 Banks, 41. 
 
 Requiring Execution of, by Surety Com- 
 pany, see Constitutional Law, 695. 
 
 Validity of Stipulation as to Conclusiveness 
 of Evidence, see Contracts, 442. 
 
 Business of, as Insurance, see Insurance, 
 1341. 
 
 24. A contract guaranteeing the honesty 
 of employees is not void as agamst public 
 
 policy. Fidelity & C. Co. *. Eickhoff, 63 
 Minn. 170, 65 N. W. 351, 30: 586 
 
 25. The obligation of an esilployee to in- 
 demnify a guaranty insurance company for 
 payments to his employer in satisfaction of 
 a guaranty policy executed at his request 
 insuring against his fraud or dishonesty 
 is coextensive with the insurer's obligation 
 to indemnify the employer. Id. 
 
 26. Provisions as to proof of liability on 
 a guaranty policy insuring against fraud or 
 dishonesty of an employee are as binding 
 on the employee at whose request the pol- 
 icy was executed, when reimbursement is 
 claimed by the insurer, as they were upon 
 the insurer in favor of the employer. Id. 
 Of agent. 
 
 27. Failure to disclose to persons sign- 
 ing an agent's bond in ignorance of the fact, 
 that he has been short in his accounts, and 
 is retained in his employment cdly on con- 
 dition that he pays the shortage and exe- 
 cutes a new bond, is such a fraud on their 
 rights as will discharge them from all lia- 
 bility on the bond. Connecticut Gen. L. 
 Ins. Co. v. Chase, 72 Vt. 176, 47 Atl. 825, 
 
 53: 510 
 
 28. The sureties in a bond given by an 
 agent to his principal, to secure the faith- 
 ful performance of a contract by the terms 
 of which the agent was required to make 
 weekly reports to his principal of the bus- 
 iness transacted by him, are released from 
 liability on the bond where the principal, 
 without the knowledge or consent of the 
 sureties, permitted the agent to continue 
 in its employ, and to transact its business 
 under the agency, without requiring him to 
 make such weekly reports, since this con- 
 stituted a material departure from the terms 
 of the contract, and one affecting the sub- 
 stantial rights of the sureties. Fidelity 
 Mut. Life Asso. v. Dcwey. 83 Minn. 389, 86 
 N. W. 423, 54: 945 
 
 29. Liability upon a fidelity bond which 
 insures against loss through the fraud or 
 dishonesty of an agent cannot be extended 
 ;o cover failure to pay for goods purchased 
 jy a factor or broker, although the appli- 
 cation and letter of advice stated that ap- 
 plicant wished the bond to cover the lia- 
 )ility of one who was engaged in an agency 
 
 or commission business, and who desired a 
 credit with applicant. Orion Knitting Mills 
 v. United States Fidelity & G. Co. 137 N. 
 C. 565, 50 S. E. 304, 70: 167 
 
 Of firm as agent. 
 
 30. Sureties on a bond for the fidelity of 
 a firm as agents for the obligee are not li- 
 able for funds misappropriated by one mem- 
 
 >er of such firm after its dissolution and 
 ;he retirement of the other partner from the 
 business of such agency, even if the obligee 
 Iocs not know of such dissolution. Stan- 
 dard Oil Co. v. Arnestad, 6 N. D. 255, 69 N. 
 W. 197, 34: 861 
 
 Corporate officer generally. 
 
 31. The surety on the bond of an officer 
 >f a corporation is not discharged from lia- 
 lility thereon by the fact that the books of 
 he officer were open to inspection by the
 
 286 
 
 BONDS, II. b. 
 
 obligees in his bond, and that they failed 
 to detect defaults which a close examination 
 might have disclosed, where the officer bore 
 a good reputation and was generally be- 
 lieved by the obligees to be honest, and 
 they had no knowledge or notice of unfaith- 
 fulness, if they acted in good faith toward 
 the surety. McMullen v. Win field Bldg. & 
 Loan Asso. 64 Kan. 298, 67 Pac. 892. 56: 924 
 
 32. The liability of a surety on the bond 
 of an officer of a corporation extends to 
 the defaults of the entire year, where the 
 bond recited that the officer had been elect- 
 ed for the year beginning January 1, 1885, 
 and ending December 31, 1885, was condi- 
 tioned that, if he should faithfully perform 
 the duties of his office "during said year," 
 the bond should be void and of no effect, 
 but otherwise should remain in full force 
 and effect, although the officer was not 
 elected until some time after the first of the 
 year, but had held successive terms and 
 been continually in office for several years 
 before and after 1885. Id. 
 
 33. A bond insuring a foreign corporation 
 against the dishonesty of its manager in 
 Pennsylvania is void and there can be no re- 
 covery thereon when such corporation has 
 not complied with the Pennsylvania statute 
 requiring the filing of a statement and de- 
 claring that any persons transacting busi- 
 ness for such' corporation without compli- 
 ance shall be guilty of a misdemeanor. 
 McCanna & F. Oo. v. Citizens' Trust & S. 
 Co. 39 IT. S. App. 332, 24 C. C. A. 11, 76 
 Fed. 420, 35: 236 
 Cashier. 
 
 Measure of Damages on, see Damages, 108. 
 
 Election of Remedy Preventing Recovery 
 on, see Election of Remedies, 55. 
 
 Admissions of. as against Surety, see Evi- 
 dence, 1465. 
 
 See also Principal and Surety. 22-24, 46. 
 
 34. The cashier of a national bank, who 
 misappropriates its stock which he has tak- 
 en in his own name as security for a note 
 to the bank which he indorses in order to 
 evade the prohibition against loans by the 
 bank on the securitv of its own sto?k. is 
 guilty of misappropriating the property of 
 the bank intrusted to him as cashier; nnd 
 his sureties are therefore liable. Walden 
 Nat. Bank v. Birch. 130 N. Y. 221, 29 N. E. 
 127. 14: 211 
 
 35. The appropriation by a bank cashier 
 to his own use, of money belonging to the 
 bank, is a breach of the conditions of his 
 bond that he shall well and faithfully dis- 
 charge the duties imposed on him as such 
 cashier by the charter and by-laws of the 
 bank, although there are no by-laws. , -<d 
 the charter merely requires him to make 
 oath that he will discharge his duties dili- 
 gently, honestly, and impartially, and pro- 
 hibits him from borrowing money from ! 
 the bank. McShane v. Howard Bank. 73 i 
 Md. 135, 20 Atl. 776, 10: 552 j 
 
 S6. The fact that accommodation notes 
 have been procured by a defaulting bank 
 officer, to be used as apparent assets during i 
 an expert examination of the bank, for the | 
 purpose of concealing his default, will "not 
 
 operate as the payment of the amount owed 1 
 by the defaulting officer, so as to release- 
 the sureties on his bond, if the notes, after 
 being used to conceal the default by means 
 of false checks and credits, were returned 
 to their makers without anything ever be- 
 ing paid on them. Id. 
 
 37. The bond of a cashier of a bank condi- 
 tioned for the faithful discharge of his 
 duties as cashier forever so long as he shall' 
 occupy the position extends for but one- 
 year, where his first election was for the en- 
 suing year, and he was thereafter re-elected 1 
 annually, and a by-law of the company pro- 
 vided that he should be appointed to hold 
 his office during the pleasure of the board. 
 First Xat. Bank v. Briggs. 69 Vt. 12. 37 Atl. 
 231, 37: 845- 
 
 38. The bond of a cashier of a national 
 bank for the faithful performance of his du- 
 ties "for and during all the time he shall 
 hold the said office 1 ' covers defaults in years 
 subsequent to that in which it is given, not- 
 withstanding the by-laws of the bank pro- 
 vide that the cashier shall be elected annual- 
 ly and a resolution appointing him to the- 
 office was passed in each year, as the act of 
 Congress relating to national banks provides 
 that the cashier may be dismissed at pleas- 
 ure of the board of directors, and the first 
 appointment under such act is for an unlim- 
 ited term. Westervelt v. Mohrenster-l'er. 
 22 C. C. A. 93. 40 U. S. App. 221, 76 Fed. 
 118, 34: 477 
 
 39. It is no defense to an action upon the 
 bond of a cashier of a national bank for 
 misappropriation of money and excessive- 
 loans, that the bank or its receiver has ob- 
 tained judgment upon the notes taken by 
 the cashier for such money and loans. Id. 
 Other employees of bank. 
 
 Limitation of Action on, see Limitation of 
 Actions, 123. 
 
 40. Dishonesty in the position of assistant 
 cashier of a bank is covered by a fidelity- 
 policy insuring against dishonesty as re- 
 ceiving teller or in the duties "to which in> 
 the employer's service he may be subse- 
 quently appointed or assigned." although no 
 notice of the employee's appointment as as- 
 sistant cashier had been given to the insur- 
 er. Fidelity & C. Co. v. Gate City Xat. 
 Bank. 97 Ga. 634, 25 S. E. 392. 33: 821 
 
 41. Statements made by the cashier of a 
 bank without authority, for the purpose of 
 inducing a person to become a surety on the 
 bond of a teller, will not bind the bank so- 
 as to relieve the surety if the statements. 
 are not true. Lieberman v. First Xat. Bank, 
 2 Penn. (Del.) 416, 45 Atl. 901, 43 Atl. 305. 
 
 48: 514- 
 
 42. The published reports of a bank pur- 
 porting to show its resources and liabilities. 
 but which were not made to induce a person 
 to sign the bond of an employee of the 
 bank, will not relieve such surety, who re- 
 lied upon them, from liability because the- 
 reports failed to show previous defalcations 
 by such employee, which he had concealed" 
 by false entries. Id. 
 
 43. A bank cashier's knowledge of the 
 fraud or dishonest v of an assistant cashier
 
 BONDS, II. c, 1. 
 
 287 
 
 and teller, or of his acts involving loss to 
 the bank, is not imputable to the bank so 
 as to make it the duty of the bank to give 
 immediate notice thereof to a guaranty in- 
 surance company under a policy requiring 
 notice of such acts of which, the bank has 
 knowledge. Fidelity & C. Co. v. Gate City 
 Nat. Bank, 97 Ga. 634, 25 S. E. 392, 33: 821 
 
 44. If a bank clerk, during a series of 
 years covered by different bonds guaran- 
 teeing the bank against "loss" through his 
 act s, falsifies the accounts of a customer so 
 as to give him a fictitious credit, the court, 
 in determining the liability of the surety 
 on the last bond, will appropriate the de- 
 posits of the customer, made during that 
 time, to the checks drawn during the same 
 lerm, and if. when so applied, the drafts 
 have not exceeded the deposits, no loss has 
 resulted to the bank for which the last 
 surety can be charged. First Rational Bank 
 v. National Surety Co. 64 C. C.*A. 601, 130 
 Fed. 401.. 66: 777 
 
 45. A bank clerk who, having gone on a 
 vacation, has overstayed his time for a 
 short period, must be regarded as stil! 
 in the service of the bank, where that re- 
 lation is yet recognized by the employer for 
 the purpose of adjusting the liability of his 
 bondsman for losses suffered by the bank 
 because of fictitious credits entered by him 
 in the accounts of a customer, so that 
 transactions which occur during such ab- 
 sence must be taken into consideration. Id. 
 Express messenger. 
 
 46. Under the bond of a conductor of a 
 railroad train to an express company for 
 the faithful discharge of his duties as an 
 express messenger, reciting that it shall not 
 be impaired by a change of his place, posi- 
 tion, or duties, or by his temporary absence 
 from duty, a surety cannot defend against 
 an action for his negligence in carrying a 
 package of money, on the ground that he 
 had been given a temporary leave of ab- 
 sence, during which a person alleged to be 
 guilty of stealing the money had been put 
 in his place, and become acquainted with 
 the safe in which the money was carried. 
 Frin k v. Southern Exp. Co. 82 Ga. 33. 8 S. 
 E. 8G2. 3: 482 
 
 47. The conductor of a train who is in- 
 trusted with a package of money as an ex- 
 press messenger may be found by the jury 
 to be guilty of negligence rendering him and 
 his sureties liable on his bond to the ex- 
 press company, in leaving the car wherein 
 the money is placed in a small iron safe, 
 with an ordinary lock and key, standing at 
 a place about 75 yards from the depot, with 
 no house near by, from sundown until half- 
 past o'clock at night, while he jjoes up 
 town to play cards and visit drinking sa- 
 loons, although the only instructions lie re- 
 ceived when the package was given him 
 were to put it in the safe, lock the safe, and 
 put the key in his pocket. Id. 
 
 c. By Public Officers. 
 1. In General. 
 
 Premature Action on Bond of County Treas- 
 urer, see Action or Suit, 19. 
 
 Effect of Invalidity to Sell Office, see Con- 
 tracts, 507. 
 
 Estoppel to Pursue Treasurer's Bond, see- 
 Estoppel, 30. 
 
 Interest on County Treasurer's Bond, see 
 Interest, 64. 
 
 Presumption of Misappropriation by Princi- 
 pal, see Evidence, 416. 
 
 Of Justice of the Peace, see Damages, 280; 
 Justice of the Peace, 6, 8. . 
 
 Limitation of Action on, see Limitation of 
 Actions, 121, 122. 
 
 Compelling Approval of, see Mandamus, 140 r 
 142. 
 
 Effect of Failure to Give, see Officers, 71, 75 r 
 76. 
 
 Liability of Officers Generally, see Officers, 
 II. c. 
 
 Of Postmaster, see Postoffice, 4. 
 
 Judgment on Joint Official Bond, see Judg- 
 ment, 39. 
 
 For Editorial Notes, see infra, IV. 3, 4, 
 7. 
 
 48. The failure of a state treasurer to ac- 
 count to the state for, or deliver to his 
 successor in office, the interest received by 
 him on deposits of the public money, is a 
 breach of the conditions of his official bond 
 for which he and his sureties are liable. 
 State v. McFetridge, 84 Wis. 473, 54 N. W. 
 1, 998, 20: 223 
 
 49. A certificate of deposit for moneys 
 deposited by a county treasurer in a bank 
 before the giving of a bond to secure de- 
 posits of public money therein is to be re- 
 garded as the equivalent of currency with 
 respect to liability on such bond, when de- 
 posited in such bank after the bond is given. 
 Allibone v. Ames, 9 S. D. 74, 68 X. W. 165, 
 
 33: 585 
 
 50. Neither the negligence of the county 
 commissioners in respect to their supervi- 
 sory duties over the treasury, nor their ac- 
 tual malfeasance facilitating or encouraging 
 a conversion of the public funds by the 
 treasurer, is a defense in an action on his 
 bond. Waseca County Comrs. v. Sheehan, 
 42 Minn. 57, 43 N. W. 690, 5: 785 
 
 51. An action may be prosecuted by a, 
 county against its treasurer and the sure- 
 ties on his official bond, without first ob- 
 taining leave from the court. Id. 
 After end of term. 
 
 For Editorial Notes, see infra, IV. 7. 
 
 52. The defalcation of an officer while 
 holding over pending the election or appoint- 
 ment of his successor, and after the end of 
 the year for which he was elected, under a 
 city charter providing that he shall hold 
 his office until his successor is elected and 
 qualified.makes his sureties liable upon his 
 official bond. Baker City v. Murphy, 30 Or. 
 405, 42 Pac. 133, 35: 88 
 
 53. The extension by statute of the term 
 of an officer who was elected for two years, 
 and "until his successor is elected or qual- 
 ified," will not make his sureties liable for 
 any default occurring after the two years 
 have expired, although the bond states the 
 time when the term commences, but not 
 when it ends, and further provides that it
 
 288 
 
 BONDS, II. c, 1. 
 
 shall remain in effect while he shall act 
 "under such election." King County v. Fer- 
 ry, 5 Wash. 536, 32 Pac. 538, 19: 500 
 During second term. 
 Liability of Officers Generally, see Officers, 
 
 205, 206. 
 For Editorial Notes, see infra, IV. 7. 
 
 54. The sureties for the second term of a 
 county treasurer are prima facie liable for 
 a deficiency occurring at the expiration of 
 that term, and have the burden of prov- 
 ing that this deficiency occurred during the 
 prior term. Pine County v. Willard, 39 
 Minn. 125, 39 X. W. 71, 1: 118 
 
 55. The sureties for the second term of a 
 county treasurer are liable for money com- 
 ing into the treasury during that time, al- 
 though it was placed there merely to cover 
 a prior defalcation. Id. 
 
 56. The fact that a county treasurer had 
 converted funds during his first term does 
 not conclusively show that such conversion 
 was identical with the deficiency at the ex- 
 piration of his second term, where there 
 is evidence of continued conversion during 
 the second term. Id. 
 
 57. The knowledge of county commission- 
 ers upon acceptance of the bond of the coun- 
 ty treasurer for a second term, that he had 
 been chargeable with conversion of funds 
 during his first term, does not avoid the 
 bond. Id. 
 Loan to city treasurer. 
 
 Evidence as to, see Evidence, 2184. 
 
 58. Money is not loaned to a city treas- 
 urer who is also a banker, so as to relieve 
 his sureties from liability for it, by his in- 
 valid promise, made to induce his elec- 
 tion, that he will pay interest on the bal- 
 ances in favor of the city. Wilkes Barre 
 v. Rockafellow, 171 Pa. 177. 33 Atl. 269, 
 
 30: 393 
 
 59. Interest paid to himself as city treas- 
 urer by such officer on money which he had 
 borrowed from a fund in his custody is 
 held by him as treasurer; and his failure 
 to pay it over to his successor is a breach 
 of his official bond. Id. 
 
 60. A city treasurer who borrows money 
 in his custody, from sinking fund commis- 
 sioners who have the power to invest it, 
 holds the money as a debtor rather than as 
 an officer; and the sureties on his bond are 
 not liable for his repayment of the money, 
 but only for his care of the security held 
 by him. Id. 
 Examination or settlement of county treas- 
 urer's account. 
 
 61. Negligence or carelessness in the ex- 
 amination of accounts or reports of a coun- 
 ty treasurer will not constitute any defense 
 to his sureties for his failure to pay over 
 funds received by him. Bush v. Johnson 
 County, 48 Neb. 1, 66 N. W. 1023, 32: 223 
 
 62. Periodical settlements made with a 
 county treasurer under a statutory require- 
 ment do not have' the effect of a judicial 
 determination, and an approval of his ac- 
 count or report is not conclusive in favor 
 of his bondsmen. Id. 
 
 Sheriff. 
 
 Punitive Damages on, see Damages, 49. 
 
 Who may Maintain Action on, see Parties, 
 
 72. 
 Substitution of Parties in Action on, see 
 
 Parties, 220. 
 For Editorial Notes, see infra, IV. 4, 7. 
 
 63. A sheriff is not liable in an action on 
 his official bond in the name of the state 
 for acts done under process which was void 
 upon its face. McLendon v. State Use of 
 Kennedy, 92 Tenn. 520, 22 S. W. 200, 
 
 21: 738 
 
 64. The sureties on a sheriff's bond are 
 not liable for his wrongful acts under proc- 
 ess which is void upon its face. Id. 
 
 65. A sheriff's wrongful, illegal, and op- 
 pressive act in levying on a growing crop 
 of peaches and failing to gather them, or 
 permit the owner to do so, until they have 
 become rotten and worthless, is an official 
 act, for which an action can be maintained 
 upon his bond. State ex rel. Wilson v. Fow- 
 ler, 88 Md. 001, 42 Atl. 201, 42: 849 
 
 66. The official bond of a sheriff is not 
 liable for his act in sending out a photo- 
 graph and description of a person committed 
 to his charge together with a statement of 
 the accusation against him, in such a man- 
 ner as to be libelous. State ex rel. Brims 
 v. Clausmeier, 154 Ind. 599, 57 N. E. 541. 
 
 50: 73 
 
 67. The malicious act of a sheriff in aiding 
 a mob to take a prisoner from a jail and 
 kill him does not create any liability of the 
 sureties on his official bond. State Use of 
 Cocking v. Wade, 87 Md. 529, 40 Atl. 104, 
 
 40: 628 
 
 68. The wrongful shooting by a deputy 
 sheriff of a prisoner attempting to escape 
 from arrest for a misdemeanor is an official 
 act which creates a liability on the sher- 
 iff's bond. Brown v. Weaver, 76 Miss. 7, 
 23 So. 388, 42: 423 
 
 69. A sheriff is liable on his bond for the 
 killing by a deputy of a third person under 
 the mistaken belief that he is one for 
 whose arrest on a charge of felony he has 
 a warrant, and that the killing is necessary 
 to prevent his escape, where the statute 
 provides that the sheriff shall be liable on 
 his bond for any misconduct or default of 
 his deputies. Johnson v. Williams, 111 Ky. 
 289, 63 S. W. 759, 54: 220 
 Deputy sheriff. 
 
 Who may Maintain Action on Bond, see 
 Executors and Administrators. 110. 
 
 70. The bond of a deputy sheriff condi- 
 tioned for the faithful performance of his 
 duty, and containing a reference to a con- 
 tract between him and the sheriff which is 
 illegal because in violation of W. Va. Code, 
 chap. 7, 5, prohibiting the sale or farm- 
 ing out of any office under the laws of the 
 state, is void as to the private interest of 
 the sheriff and his deputy, and no recovery 
 can be had against the latter for a sum 
 which he has agreed to pay to the sheriff 
 in consideration of such illegal contract; but 
 the sheriff may recover thereon for taxes, 
 fines, etc., received by the deputy by vir- 
 tue of his office, since such funds have come
 
 BONDS, II. c, 2. 
 
 into his hands as a de facto officer, and be- 
 long primarily to the public and innocent 
 private individuals. White v. Cook, 51 W. 
 Va. 201, 41 S. K 410, 57: 417 
 
 Constable. 
 
 Conclusiveness Against Sureties of Judg- 
 ment Against Constable, see Judgment, 
 277. 
 For Editorial Notes, see infra, IV. 4. 
 
 71. The sureties on a constable's bond are 
 not liable for the return of money taken by 
 him from an execution defendant to stay 
 the execution and give time to perfect an 
 appeal, under a promise to return it in 
 case the appeal is perfected, since such act 
 is not within the constable's authority. 
 Feller v. Gates, 40 Or. 543, 67 Pac. 416, 
 
 56: 630 
 Mayor. 
 
 72. The sureties on the official bond of a 
 mayor are liable for his act in causing a per- 
 son's arrest without a warrant, and trying, 
 convicting, and sentencing him for an of- 
 fense not made punishable by the ordi- 
 nances of the city under authority of which 
 he claimed to act. State ex rel. McLauren 
 v. McDaniel, 78 Miss. 1, 27 So. 994, 50: 118 
 Notary. 
 
 73. (Jiving notice of dishonor of protest- 
 ed paper is, in the absence of contrary in- 
 structions, an official duty of a notary pub- 
 lic under the Nebraska statutes, for neg- 
 lect of which an action is maintainable by 
 the party jnjured, upon his official bond. 
 Williams v. Parks, 63 Neb. 747, 89 N. W. 
 395, 56: 759 
 
 2. Liability for Money Lost or Stolen. 
 
 Liability of Officers Generally, see Officers, 
 203-207. 
 
 74. A county treasurer who is by law re- 
 quired safely to keep, account for, and pay 
 over the public moneys that come to his 
 hands, and is forbidden to make any loan 
 therefrom, is not a mere bailee, but his 
 liability on his bond is absolute, except for 
 loss from overruling necessity, such as the 
 act of God or the public enemy. Maloy v. 
 Bernalillo County Comrs, 10 N. M. 638, 62 
 Pac. 1106, 52: 126 
 
 75. An officer is not an insurer of the 
 safety of public funds in his hands, on a 
 bond faithfully to perform his duties and 
 to collect and pay over moneys, but is re- 
 sponsible only for the exercise of good faith, 
 diligence, prudence, caution, and a disinter- 
 ested effort to keep and preserve the fund 
 for those entitled. State use of Overton 
 County v. Copeland, 96 Tenn. .296, 34 S. W. 
 427, 31:844 
 
 76. A statute requiring a treasurer to 
 keep safely and pay over the money re- 
 ceived by him in his official capacity mere- 
 ly states his common-law duties, and does 
 not enlarge his responsibility as bailee, or 
 that of his sureties. Healdsburg v. Mulli- 
 gan, 113 Cal. 205, 45 Pac. 337, 33: 461 
 
 77. A bond given by an officer does not 
 extend the obligation imposed on him by 
 la.w, unless by force of constitutional or leg- 
 islative provisions; but his duty and lia- 
 
 L.R.A. Dig. 19. 
 
 bility as to moneys coming into his hands 
 are measured by the law of bailment. Wil- 
 son v. People use of Pueblo & A. V. R. Co. 
 19 Colo. 199, 34 Pac. 944, 22: 449 
 
 78. The rule which makes a public officer 
 an insurer of the safety of the public funds 
 under his control is not based upon the mere 
 fact that he is a public officer intrusted with 
 public funds, but is based upon the princi- 
 ple that by his bond, considered alone or in 
 connection with the statutes defining his 
 duties, he has contracted to be become an in- 
 surer; and the rule is limited to cases in- 
 volving such contracts. State v. Gramm, 7 
 Wyo. 329, 52 Pac. 533, 40: 600 
 Lost by failure of bank. 
 
 Liability of Probate Judge, see Judges, 65. 
 For Editorial Notes, see infra, IV. 7. 
 
 79. The loss, through failure of a bank in 
 which it was deposited, of money received 
 by the clerk of the district court in his 
 official capacity, renders the clerk and the 
 sureties on his bond liable, although the 
 bank was solvent at the time the money 
 was deposited, and the clerk in making the 
 deposit acted in good faith and with rea- 
 sonable care and diligence. Northern P. R. 
 Co. v. Owens, 86 Minn. 188, 90 N. W. 371, 
 
 57: 634 
 
 80. The loss of money deposited by a 
 clerk of court in a bank of reputed solven- 
 cy, acting as a prudent man would, will 
 not make him liable on his bond to pay over 
 moneys that come into his hands Wilson 
 v. People use of Pueblo & A. V. R. Co. 19 
 Colo. 199, 34 Pac. 944, 22: 449 
 
 81. A deposit of public money by a coun- 
 ty treasurer, without authority of law, in 
 a. bank that has not given bond and become 
 an authorized depository, renders him lia- 
 ble for the loss of the money by bank fail- 
 ure, under Neb. Comp. Stat. 1901, chap. 18, 
 art. 3, 21, making such unauthorized de- 
 posit a felony, where other statutes pro- 
 vide that the treasurer shall pay out money 
 only on warrant, except where special pro- 
 vision otherwise is made, and provide gen- 
 erally that an officer shall be responsible 
 on his bond for moneys received by him, and 
 make no provision for his exemption from 
 liability for the loss of the money except 
 Avhere it is deposited in a bank which has 
 given bond and become an authorized de- 
 pository. Thomssen v. Hall County, 63 Neb. 
 777, 89 N. W. 393, 57 : 303 
 
 82. The loss of public money by a bank 
 failure will not prevent liability of the 
 county treasurer upon his bond to pay the 
 money as the commissioners shall direct, 
 although he was not negligent in selecting 
 the bank and the county has not provided 
 a suitable and safe place in which to de- 
 posit the money. Fairchild v. Hedges, 14 
 Wash. 117, 44 Pac. 125, 31: 851 
 
 83. Liability for money lost by failure of 
 the bank in which it was deposited with due 
 care by the state treasurer is not imposed 
 by his bond conditioned to account for all 
 money coming into his hands by virtue of 
 his office, and to perform all the duties of 
 his office, when his statutory duty is to re- 
 ceive and keep all moneys of the state not
 
 290 
 
 BONDS, II. d, III. a. 
 
 required to be received and kept by some 
 other person. State v. Gramm, 7 Wyo. 329, 
 52 Pac. 533, 40: 690 
 
 84. The theft of public money or its loss 
 by bank failure without the fault or negli- 
 gence of a county treasurer does not exon- 
 erate him or his bondsmen from liability on 
 a bond conditioned for the faithful account- 
 ing for and paying over of the funds. Bush 
 v. Johnson County, 48 Xeb. 1, 66 N. W. 1023. 
 
 32: 223 
 
 85. A certificate of deposit received by a 
 county treasurer from his predecessor as 
 representing public funds, and surrendered 
 for a new certificate payable to himself as 
 county treasurer, is the equivalent of the 
 money for the purpose of charging his 
 bondsmen therefor on a failure of the bank 
 which had the money. Id. 
 Stolen. 
 
 See also supra, 84. 
 
 For Editorial Notes, see infra, IV. 7. 
 
 86. The forcible taking by robbers of mon- 
 ey in the custody of a city treasurer is a 
 defense in an action upon his bond provid- 
 ing that he shall "well and faithfully per- 
 form all official duties," where by the Con- 
 stitution and laws of the state the re- 
 ceipt of the money makes him a bailee, and 
 not a debtor. Healdsburg v. Mulligan, 113 
 Cal. 205. 45 Pac. 337. 33: 461 
 
 87. Recovery on a bond conditioned that 
 a postmaster shall turn over the money re- 
 ceived in the money order department of 
 his office is not prevented by the fact that 
 the money was embezzled without his fault 
 or neglect, by a clerk holding office under 
 the civil service rules of the government. 
 Bryan v. United States, 33 C. C. A. 617. 61 
 U. S. App. 259, 90 Fed. 473, 53:218 
 
 d. By State Depository. 
 
 88. The approval of a bond given by a 
 bank selected as a state depository by the 
 secretary of state and the attorney general 
 only, is sufficient where the governor is 
 present at the conference upon the sub- 
 ject, under Xeb. Cornp. Stat. 1895, p. 1036, 
 3, requiring such bond to be "approved by" 
 the three officers named. Bartley v. Me- 
 serve, 51 Xeb. 116, 70 X. W. 532,' 36: 746 
 
 89. The deposit by a state treasurer of 
 public funds in a bank chosen as a state de- 
 pository, in excess of half the amount of 
 the penalty of the bond given by such bank, 
 in violation of the Xebraska statute, will 
 not release either the bond or the sureties 
 on the bond from their obligation to re- 
 pay the moneys deposited, to half the 
 amount of the bond and the accretions 
 thereof. Id. 
 
 III. Commercial and Municipal, 
 a. Corporate Bonds. 
 
 Liability of Stock Broker in Case of Forg- 
 ery of. see Brokers. 13. 
 
 Corporate Liability to Owner of Registered 
 Bonds, see Corporations, 203. 
 
 Bondholders as Members of Corporation, see 
 Corporations, 426. 
 
 Efl'ect of Forgery on Liability on, see Cor- 
 porations, 238. 
 
 Provision against Liability of Stockholders 
 on, see Corporations, 558. 
 
 Liability of Bondholders as Members of 
 Corporations, see Corporations, 549. 
 
 Stipulation for, in Subscription to Stock,, 
 see Corporations, 379. 
 
 Purchase of, by Corporate Officers, see Cor- 
 porations, 268. 
 
 Pledge of, see Corporations, 190, 778. 
 
 Coupons on, see Coupons. 
 
 Estoppel of Majority Bondholders to As- 
 sert Prior Lien, see Estoppel, 292. 
 
 Burden of Proving Bona Fides of Holder, 
 see Evidence, 674. 
 
 Guaranty of, by Parties Interested in De- 
 cedent's Estate, see Executors and Ad- 
 ministrators, 153. 
 
 Fraud in Sale of, see Fraud and Deceit, 30, 
 71. 
 
 Conclusiveness of Decision as to, see Judg- 
 ment, 231, 232. 
 
 Rights of Holders of, on Mortgage, see- 
 Mortgage, I. f. 
 
 Consideration of, in Determining Amount 
 of Indebtedness, see Municipal Corpo- 
 rations, 364-368. 
 
 Bondholders as Parties to Action, see Par- 
 ties, 172, 174. 
 
 Right of Trustee for Bondholders to Main- 
 tain Action on Contract, see Parties, 
 46. 
 
 Preference of Bondholders in Proceeds in 
 Receiver's Hands, see Receivers, 88-90, 
 92. 94-98, 103. 
 
 Specific Performance of Contract as to, see- 
 Specific Performance, 31. 
 
 Taxation of, see Taxes, 146, 147. 339, 342, 
 427, 436. 526. 
 
 Transfer Tax on, see Taxes, 618, 619. 
 
 Trust for Bondholders, see Trusts. 164, 
 165. 
 
 See also Mechanics' Liens, 85-87; Trusts, 
 208, 210, 211. 
 
 90. Bonds and coupons reciting that they 
 are upon the terms and conditions set forth 
 in a mortgage securing them charge the 
 holder with notice of the provisions in the- 
 mortgage. McClelland v. Xorfolk S. R. 
 Co. 110 X. Y. 469. 18 X. E. 237, 1: 299 
 
 91. The bonds of a corporation subject to- 
 the provisions of the general manufacturing 
 act (X. Y. Laws 1848, chap. 40, 2) may be 
 issued by it at .less than par for either 
 money or property required for its use. 
 (iamblo v. Queens County Water Co. 123 N. 
 Y. 91. 23 X. E. 201, 9: 527 
 
 92. A constitutional limitation on the 
 issue of corporate bonds except for money, 
 labor done, or property received, and a pro- 
 vision that all fictitious indebtedness shall 
 be void, do not prevent pledging the bonds 
 of a corporation for an amount in excess of 
 the indebtedness to be secured. Xelson v. 
 Hubbard. 96 Ala. 238, 11 So. 428, 17: 375 
 
 93. A corporation which purchases prop- 
 erty intending to pay therefor by issuing 
 its stock and bonds, the former of which.
 
 BONDS, III. b, 1. 
 
 291 
 
 must be issued at par, will not be permit- 
 ted to issue a much larger quantity of 
 bonds taken at their actual value than is 
 necessary to make up the difference between 
 the par value of the stock offered and the 
 purchase price of the property, the surplus 
 of bonds being rendered necessary by the 
 fact that the actual value of the stock is 
 much less than par. Gamble v. Queens 
 County Water Co. 123 N. Y. 91, 25 N. E. 
 201, ' 9:527 
 
 04. A corporation which has power to is- 
 sue bonds to raise money for the construc- 
 tion of its works may issue them in pay- 
 ment for works already constructed, which 
 are suitable for its purposes and can be pur- 
 chased by it. Id. 
 
 !C>. Bondholders of a corporation take 
 their bonds with knowledge that the con- 
 tinuance of the charter rights *nd other 
 franchise of the company depends upon the 
 faithful performance of its duties to the 
 public. Palestine Water & P. Co. v. Pales- 
 tine. 91 Tex. 540. 44 S. W. 814, 40: 203 
 
 or>a. A holder of corporate bonds secured 
 by mortgage is not given a present right of 
 action for the principal of the bonds upon 
 default in payment of interest, by the fact 
 that the mortgage provides that upon de- 
 fault the holder of one ti.ird of the amount 
 of bonds may require a sale of the property, 
 and the ''bonds shall forthwith become due 
 and payable." American Nat. Bank v. 
 American Wood Paper Co. 19 R. I. 149, 32 
 Atl. 305, 29: 103 
 
 96. A corporation which has received and 
 enjoyed the fruits of its mortgage bonds 
 cannot assail their validity in the hands of 
 a bona fide holder for value, on the ground 
 that they exceeded in amount one half of 
 the capital stock paid in, contrary to the 
 provisions of the statute. Wood v. Corry 
 Water Works Co. 44 Fed. 146, 12: 168 
 
 97. Payment of the proceeds of regis- 
 tered bonds belonging to a corporation, to 
 its treasurer, who has no authority to sell 
 or transfer its securities, but who has taken 
 them from the corporation's vault for the 
 purpose of misappropriating them, is made 
 in his character of thief, and cannot be re- 
 garded as having been made to the corpora- 
 tion, so as to prevent its recovery of the 
 value of the bonds from those into whose 
 hands they are traced; and the fact that 
 the parties dealing with him were deceived 
 as to the character in which he acted is 
 immaterial. Jennie Clarkson Home for 
 Children v. Missouri. K. & T. R. Co. 182 1ST. 
 Y. 47, 74 X. E. 571, 70: 787 
 Negotiability. 
 
 For Editorial Notes, see infra, IV. 8. 
 
 !>8. Corporate bonds secured by mort- 
 gage and payable to bearer are so far 
 negotiable that the holder may maintain 
 an action thereon in his own name. 
 American Nat. Bank v. American Wood 
 Paper Co. 19 R. I. 149, 32 Atl. 305. 29: 103 
 
 90. That a statute giving ti title by de- 
 livery and a right of action to the holder of 
 negotiable paper in terms applied only to 
 promissory notes will not prevent the courts 
 
 from recognizing corporate bonds as negotia- 
 ble. Id. 
 100. That a bond is payable ten years 
 after date or sooner after five years does 
 not destroy its negotiability. Id. 
 
 b. Municipal Bonds. 
 1. In General; Power to Issue Generally. 
 
 Due Process in Issue of Improvement 
 Bonds, see Constitutional Law, 893. 
 
 Impairing Obligation of Contract to Issue, 
 see Constitutional Law, 1129. 
 
 Proposition to Issue, as a Contract, see 
 Contracts, 1. 
 
 Coupons on, see Coupons. 
 
 County Tax to Pay Bridge Bonds, see 
 Counties, 61. 
 
 Duty to Convert into Cash, see Counties, 46. 
 
 Jurisdiction of Suit on, see Courts, 344. 
 
 Federal Jurisdiction of Suit to Enjoin Is- 
 suance, see Courts, 247. 
 
 Following State Decision as to, see Courts, 
 550. 
 
 Injunction against Issuance of, see In- 
 junction, 347. 
 
 Interest on, see Interest, 79, 83. 
 
 Laches Preventing Cancelation of, see 
 Limitation of Actions, 36, 37. 
 
 Limitation of Action on, see Limitation of 
 Actions, 47, 183. 
 
 Compelling Indorsement and Attestation of 
 Certificate for Issuance of, see Man- 
 damus, 68. 
 
 Liability for Original Consideration of In- 
 valid Bond, see Municipal Corporations, 
 321. 
 
 Parties to Action to Have Bonds Declared 
 Void, see Parties, 173. 
 
 Special Legislation as to, see Statutes, 365. 
 
 Title of Statute as to, see Statutes, 205. 
 
 As to County Warrants, see Counties, 
 III. b. 
 
 See also infra, 107, 131. 
 
 For Editorial Notes, see infra, IV. 8. 
 
 101. Unlimited power to issue bonds, 
 granted to a municipal corporation by 
 special charter, is not revoked by a general 
 law giving such corporations power to is- 
 sue bonds for specified purposes, where a 
 proviso to the general law expressly pro- 
 vides that it shall not be construed to limit 
 the powers theretofore conferred by any 
 special charter. Huron v. Second Ward 
 Sav. Bank, 30 C. C. A. 38, 57 U. S. App. 593. 
 86 Fed. 272, 49: 534 
 
 lOla. County bonds issued under au- 
 thority of a statute passed in violation of 
 the state Constitution are null and void. 
 Wilkes County v. Call, 123 N. C. 308. 41 S. 
 E. 481, 44: 252 
 
 102. Bonds issued upon a vote at a school 
 meeting held in a district organized by the 
 county superintendent under Dak. Laws 
 1870. chap. 14, in which district officers were 
 elected and exercised their functions, teach- 
 ers were employed, and school taught, are 
 not void because of failure to comply with 
 statutory provisions regulating the organi- 
 zation of such district, as to matters going 
 to the jurisdiction of the superintendent to
 
 292 
 
 BONDS, HI. b, 2. 
 
 organize the district, since the district is 
 a de facto municipal corporation. Coler v. 
 Dwight School Twp. 3 N. D. 249, 55 N. W. 
 587, 28: 649 
 
 Amount. 
 
 103. An amended city charter providing 
 that the city may borrow money by issuing 
 bonds not to exceed the sum of $100,000, 
 omitting the words of the former charter, 
 "but never in any form to make the city 
 liable for exceeding that amount in the ag- 
 gregate," gives authority to issue bonds 
 subsequent to the date of the charter to 
 the extent of $100,000, although a bonded 
 indebtedness already existed. Mauldin v. 
 Greenville, 33 S. C. 1, 11 S. E. 434, 8: 291 
 Right of commissioners to purchase. 
 
 104. Commissioners of the sinking fund of 
 a city have no authority to purchase from 
 the city, for that fund, bonds of the city at 
 the time when they are offered for sale by 
 the city, even when there is no statute ex- 
 pressly forbidding such purposes. Kelly v. 
 Minneapolis, 63 Minn. 125, 65 N. W. 115, 
 
 30: 281 
 
 2. For What Purpose. 
 
 Purposes for which Public Money may be 
 
 Used Generally, see Public Moneys, II. 
 For County Drains, see Drains and Sewers, 
 
 1 ; Public Moneys, 58, 59. 
 For Construction of Electric Light Plant, 
 
 see Municipal Corporations, 333. 
 For Reimbursement of Officer, see Public 
 
 Moneys, 28. 
 
 Evidence as to, see Evidence, 1470, 2092. 
 For Editorial Notes, see infra, IV. 8. 
 
 105. Bonds may be issued by a city to 
 pay for property lawfully purchased, in the 
 absence of any statutory or constitutional 
 prohibition, although they could not law- 
 fully be issued to be placed in the market 
 for sale to obtain money. Rushville Gas 
 Co. v. Rushville, 121 Ind/206, 22 N. E. 72, 
 
 6: 315 
 
 106. Bonds given by the board of edu- 
 cation of a school district to obtain money 
 which was not borrowed or used for any 
 purpose for which the board was author- 
 ized by its charter to issue bonds are void. 
 Norma'l School Dist. Bd. of Edu. v. Blodfett, 
 155 111. 441, 40 N. E. 1025, 31: 70 
 
 lOOa. A statute authorizing a municipal 
 corporation to subscribe for stock in a 
 corporation organized to construct a system 
 of waterworks within its limits, and to 
 issue bonds and pay therefor, does not au- 
 thorize it to issue bonds to pay for stock 
 subscribed to a corporation organized to 
 furnish both water and light to the town 
 for public and private use. Voss v. Water- 
 loo Water Co. 16.3 Ind. 69, 71 N. E. 208. 
 
 66: 95 
 
 For state home for feeble minded. 
 Use of Public Funds for, see Public Moneys, 
 38, 3!). 
 
 107. Implied power to issue bonds is 
 given to a county by authority to make a 
 donation "of money or other securities" for 
 the benefit of a state home for the feeble- ' 
 
 minded. Lund v. Chippewa County, 93 Wis. 
 640, 67 N. W. 927, 34: 131 
 
 For seed grain. 
 
 Jurisdiction of Action to Enjoin Issuance 
 of, see Courts, 280. 
 
 108. The issue of county bonds to be paid 
 by tax, for the purpose of procuring seed 
 grain for needy farmers, is for a public pur- 
 pose; and a statute authorizing counties to 
 take such action is not unconstitutional. 
 Such tax is for the necessary support of the 
 poor. State ex rel. Goodwin v. Nelson 
 County, 1 N. D. 88, 45 N. W. 33, 8: 283 
 For promotion of sugar manufacture. 
 
 Use of Public Funds for, see Public Moneys, 
 13. 
 
 109. Township bonds issued for the pro- 
 motion of the construction and operation of 
 mills and factories to manufacture Sorghum 
 cane into sugar or syrup, and the act of 
 March 1, 1889, authorizing their issue, are 
 beyond the powers of the legislature and 
 the township, and are void. Dodge v. Mis- 
 sion Twp. 46 C. C. A. 661, 107 Fed. 827, 
 
 54:242 
 
 Railroad aid bonds. 
 Evidence as to Inducements Held out by 
 
 .Railroad Company, see Evidence, 1619. 
 Bonds for Street Railway Owned by City, 
 
 see Municipal Corporations, 423. 
 Tax to Aid Railroad, see Taxes, 87, 88, 350. 
 Subscriptions for Stock in Aid of Railroad, 
 
 see Railroads, 31-36; Towns, 3, 19, 20, 
 
 25. 
 
 See also Towns, 1. 
 For Editorial Notes, see infra, IV. 8. 
 
 110. The legislature cannot by a sweeping 
 statute give nil counties in the state the 
 right to issue railroad aid bonds without 
 regard to the restrictions imposed by the 
 Constitution thereon. Wilkes Count v v. 
 Call, 123 N. C. 308, 41 S. E. 481, 44: 252 
 
 111. Hay wood county, Tennessee, has the 
 power to subscribe to the stock of a rail- 
 road company and issue its bonds in pay- 
 ment thereof upon a majority vote of the 
 electors, under the act of 1869-70 provid- 
 ing that, "if a majority of all the votes cast 
 shall be in favor of the issuance of such 
 county bonds, then it shall be the duty" of 
 the county court of Haywood county to is- 
 sue such bonds, although Haywood county 
 is not expressly empowered to issue its 
 bonds in payment for stock subscribed, and 
 the other counties mentioned in the act are 
 empowered so to do. Nelson v. Haywood 
 County. 87 Tenn. 781, 11 S. W. 885, '4: 648 
 
 112. An unconstitutional attempt to tax 
 the citizens of a county for the benefit of 
 certain residents thereof is made by a 
 statute authorizing the issue of county 
 bonds for the benefit of an insolvent rail- 
 road company in the hands of a receiver, 
 with a provision that from the proceeds 
 thereof proper and legal claims held by 
 bona fide residents of the county should be 
 first paid. Baltimore & E S. R. Co. v. 
 Spring. 80 Md. 510. 31 Atl. 208. 27:72 
 
 113. A village will be denied relief in 
 equity ncrninst bonds issued under an act of 
 the legislature authorizing bonds for public 
 improvements in the village and used in
 
 BONDS, III. b, 3. 
 
 293 
 
 aid of a railroad, for which purpose they 
 could not be legally authorized, where the 
 act was obtained by the people of the vil- 
 lage by falsely representing to the legisla- 
 ture that the power to issue bonds was de- 
 sired for the purpose of making public im- 
 provements in the village. The people must 
 be left to such defense as they may be 
 found entitled to in a court of law. Cedar 
 Springs v. Schlich, 81 Mich. 405, 45 X. W. 
 094, 8: 851 
 
 Refunding bonds. 
 See also infra, 155. 
 
 114. Power to borrow money and issue 
 bonds for all municipal purposes includes 
 the power to do so to pay or refund in- 
 debtedness of the municipality. Huron v. 
 Second Ward Sav. Bank, 30 C. C. A. 38, 57 
 U. S. App. 593, 86 Fed. 272, 49: 534 
 
 115. The issuance of bonds to fund the 
 floating indebtedness of a cityv, where the 
 electors have voted therefor, is authorized 
 by S. D. Laws 1890, chap. 37, art. 5, 1, 
 authorizing a city council to borrow money 
 on the city's credit for municipal purposes 
 and issue bonds therefor en a majority vote 
 of the electors. National Life Ins. Co. v. 
 Mead, 13 S. D. 37, 82 N. W. 78, 48: 785 
 
 116. Bonds do not contravene the limi- 
 tation of municipal indebtedness, which are 
 issued to take up what the city is estopped 
 to deny are just debts, although the total 
 indebtedness exceeds the permitted amount. 
 Huron v. Second Ward Sav. Bank, 30 C. C. 
 A. 38, 57 U. S. App. 593, 86 Fed. 272, 
 
 49: 534 
 
 117. Bonds issued for the purpose of re- 
 funding an existing indebtedness are not to 
 be regarded as creating any new or ad- 
 ditional indebtedness, and should not be 
 considered in determining whether or not a 
 city had reached or exceeded its constitu- 
 tional debt limit. National Life Ins. Co. v. 
 Mead, 13 S. D. 37, 82 N. W. 78, 48: 785 
 
 3. Authorizing; Elections. 
 
 Validity of Contract to Procure Election, 
 
 see Contracts, 493. 
 Necessity of Majority Vote, see Elections, 
 
 245,' 247. 
 Canvass of Election at Adjourned Meeting, 
 
 see Elections, 258. 
 Injunction against Unauthorized Issuance, 
 
 see Injunction. 499. 
 See also supra, 111, 115. 
 
 118. The alternative of making interest 
 payable annually or semiannually need not 
 be submitted to the voters on an election 
 respecting the issue of municipal bonds 
 under Cal. act March 19, 1889, 3, requiring 
 a notice of the election, the purpose and 
 character of the bonds, and the rate of 
 interest, without requiring any notice as to 
 the time of paying interest. Murphy v. 
 San Luis Obispo, 119 Cal. 624, 51 Pac. 1085, 
 
 39: 444 
 
 fAff'g in Bane, 48 Pac. 974.] 
 Special election. 
 
 119. A special election upon the question 
 of issuing municipal bonds cannot be held 
 where the Constitution provides that not 
 
 more than one election shall be held in each 
 year, but such question must be submitted 
 at a general election. Belknap v. Louis- 
 ville, 99 Ky. 474, 36 S. W. 1118, 34: 256 
 Notice of election. 
 
 120. A general notice that an election will 
 be held in a certain county on a certain 
 day on the question of issuing county bonds 
 is sufficient without specially naming the 
 places at which the election will be held, 
 when the general election law requires 
 notices to be posted in the several precincts, 
 naming the place of voting. Packwood v. 
 Kittitas County, 15 Wash. 88, 45 Pac. 640, 
 
 33: 673 
 
 121. The terms and conditions of mu- 
 nicipal bonds, which the statute reouires to 
 be stated in a notice of election, including 
 those as to rate of interest and the tax levy 
 required for .payment thereof, must sub- 
 stantially follow those stated in such notice. 
 Skinner v. Santa Rosa, 107 Cal. 464, 4C Pac. 
 742, 29: 512 
 Who entitled to vote. 
 
 122. A charter allowing one vote to the 
 person or persons owning and paying taxes 
 on each $100 worth of property in the city, 
 at an election on the question of issuing 
 bonds, and that no one shall be entitled to 
 vote "unless he or she is the owner of 
 property" within the city to the amount of 
 $100 and has paid taxes thereon, does not 
 authorize the exclusion from the vote of 
 property belonging to estates or corpora- 
 tions, or of any property in the city, no 
 matter who may be the owner. Wilson v. 
 Florence. 39 S. C. 397, 17 S. E. 835, 20: 720 
 Two-thirds vote. 
 
 123. An ordinance providing for the sub- 
 mission to the voters of the question wheth- 
 er or not park bonds shall be issued, at a 
 specified general election, and authorizing 
 the issuance of the bonds "in the event that 
 two thirds of those voting at said election 
 shall Vote in favor," reouires a favorable 
 vote of two thirds of all those voting at 
 the general election. Belknap v. Louisville, 
 99 Ky. 474, 36 S. W. 1118, 34: 256 
 
 124. Two thirds of' the voters voting at 
 an election to be held for that purpose, 
 whose assent is necessary to authorize mu- 
 nicipal indebtedness, means two thirds of 
 all the votes cast for any purpose at the 
 election, where but one election can be held 
 during the year, at which all questions to 
 be submitted to the voters must be decided. 
 
 Id. 
 
 Railroad-aid bonds. 
 See also infra, 139. 
 
 125. In Nebraska, at least fifty free- 
 holders, resident in the township, etc., must 
 sign a petition to the county commissioners, 
 to give the latter jurisdiction to call an elec- 
 tion for the purpose of voting aid for a rail- 
 road. Wullenwaber v. Dunigan, 30 Neb. 
 877, 47 N. W. 420. 13: 811 
 
 126. Railroad-aid bonds issued by a 
 county are not defeated by a consolidation 
 of the railroad with another, taking place 
 after notice of the election at which the 
 bonds were voted, under a statute passed 
 and taking effect before the election. Nel-
 
 294 
 
 BONDS, III. b, 4, 5. 
 
 son v. Hay wood County, 87 Tenn. 781, 11 
 S. W. 885." 4: 648 
 
 4. Form; Conditions and Regulations of 
 Issue. 
 
 Law Governing as to Rate of Interest, see 
 
 Conflict of Laws, 46. 
 Ex Post Facto Law as to Time of Payment, 
 
 see Constitutional Law, 117. 
 Seal of County on, see Seal, 4. 
 See also supra, 118, 121; infra, 139, 140. 
 
 127. Where a statute prescribes the form 
 for the issuance of bonds by an irrigation 
 district, the court should confine its con- 
 firmation of an order of the board of super- 
 visors for the issuance of bonds to the 
 portion thereof which designates the amount 
 to be issued, and leave the form to' be gov- 
 erned by the statute. Re Madera Irrig. 
 Dist. Bonds, 92 Cal. 296. 341, 28 Pac. 272. 
 
 14: 755 
 
 Issuing statement of indebtedness, valua- 
 tion, etc. 
 
 128. Under the Pennsylvania Constitu- 
 tion and the act of April 20. 1874, providing 
 that. a city may incu: debt not exceeding 2 
 per cent of its assessed valuation, but, be- 
 fore issuing security for such debt, a state- 
 ment shall be filed showing the assessed 
 valuation of the property, and the amount 
 of annual tax levied to pay the debt, in ac- 
 cordance with law. bonds issued without the 
 levy of an annual tax and without the filing 
 of a statement are invalid; but the debt 
 may be a valid one, and if so the bond- 
 holders may recover on the contract. Rains- 
 burg v. Fyan, 127 Pa. 74, 17 Atl. 678, 4: 336 
 
 129. The holder of municipal bonds is- 
 sued without the filing, by the principal of- 
 ficers of the municipality, of a statement 
 showing the indebtedness of the district, the 
 amount of the last preceding valuation, the 
 amount of debt to be incurred, etc., as re- 
 quired by Pa. act April 20, 1874, 2. will 
 be deemed to have full knowledge of all that 
 would have appeared in such statement had 
 it been filed. , Id. 
 Providing means for paying. 
 
 Obligation to put Revenues of Gas Works 
 into Sinking Fund, see Constitutional 
 Law. 1176. 
 
 Investment of Taxes for, see Taxes, 538. 
 
 130. The failure of a statute authorizing 
 a, county to improve the navigation of a 
 river and to issue bonds therefor, to provide 
 any means for paying the bonds or any 
 interest thereon, does not make the statute 
 or the bonds invalid. Stockton v. Powell, 
 29 Fla. 1. 10 So. 688, 15: 42 
 Negotiable bonds. . 
 
 131. The issuance of negotiable bonds by 
 a township is authorized by Kan. Laws, 
 1870. chap. 50. authorizing townships to re- 
 fund their indebtedness. Rathbone v. Hop- 
 per, 57 Kan. 240. 45 Pac. 610, 34: 674 
 Payable in gold. 
 
 For Editorial Notes, see infra. TV. 8. 
 
 132. Power to issue bonds payable in gold 
 coin of the United States of the present 
 weight and fineness is not conferred upon a 
 
 county by a statute authorizing the issue 
 of bonds without prescribing the kind of 
 money in which they may be paid. Burnett 
 v. Maloney, 97 Tenn. 697, 37 S. W. 689, 
 
 34: 541 
 
 133. Municipal bonds cannot be made pay- 
 able ''in gold coin of the United States of 
 America of the present standard of weight 
 and fineness," where a statute provides that 
 such bonds shall br payable "in gold coin 
 or lawful money of the United States." 
 Skinner v. Santa Rosa, 107 Cal. 464, 40 Pac. 
 742, 29: 512 
 
 134. Bonds may be made payable in gold 
 coin only, under Cal. act March 19, 1889, as 
 amended in 1893, giving power to issue mu- 
 nicipal bonds "payable in gold coin or law- 
 ful money," as this, to have any effect, must 
 be construed especially in view of other 
 provisions of the statute to give the city 
 the option to make them payable in gold 
 coin alone, or in lawful money. Murphy v. 
 San Luis Obispo, 119 Cal. 624, 51 Pac. 1085, 
 
 39: 444 
 [Aff'g in Bane, 48 Pac. 974.] 
 
 135. Municipal bonds issued under ex- 
 press authority of the incorporating act are 
 not void because by ordinance authorizing 
 their issue they are made payable in "gold 
 coin of the United States of America of the 
 present, standard weight and fineness," that 
 section of the act authorizing their issue 
 not providing the kind of currency in which 
 thev shall be payable. Judson v. Besse- 
 mer. 87 Ala. 240, 6 So. 267. 4: 742 
 
 136. Authority to make county bonds 
 payable in bold coin is implied in legislative 
 authority to issue bonds, especially when 
 such authority to issue bonds is given with- 
 out restriction as to the kind of money in 
 which they should be made payable after 
 it has become customary to make such 
 bonds payable in gold coin. Packwood v. 
 Kittitas County, 15 Wash. 88. 45 Pac. 640. 
 
 33: 673 
 
 5. Who Are, and Rights of, Bona Fide 
 Holders. 
 
 Assumpsit on Railroad-Aid Bonds, see As- 
 
 sumpsit, 24. 
 See also supra, 129; infra, 169. 
 
 137. There can be no bona fide holder of 
 county bonds issued under authority of an 
 unconstitutional statute. Wilkes County v. 
 Call, 123 N. C. 308, 41 S. E. 481, 44/252 
 
 138. Even bona fide purchasers of negotia- 
 ble municipal securities are charged with 
 knowledge of all the requirements of the 
 statute under which such securities were 
 issued. People's Bank v. School Dist. No. 
 52. 3 N. D. 496, 57 N. W. 787, 28: 642 
 
 139. Conditions not fixed by a statute 
 authorizing the issuance of county bonds in 
 aid of railroads, but imposed upon the as- 
 signee of the bonds and accepted by the 
 railroad company, cannot be set up by the 
 county to defeat the bonds in the hands of 
 a bona fide purchaser for value, as such 
 purchaser is not bo'and to inquire into the 
 performance of such conditions. Nelson v.
 
 BONDS, III. b, 6. 
 
 295 
 
 "Ray wood County, 87 Term. 781, 11 S. W. 
 :885, 4: 648 
 
 140. Under N. Y. act May 12, 1871, re- 
 quiring that not more than 10 per cent of 
 town bonds shall be made payable in any 
 one year, a purchaser from a broker em- 
 ployed by the commissioners has a right to 
 assume that the bonds were made payable 
 as the statute then required, and he was not 
 bound to examine the entire series to see 
 that no more became due in a single year 
 than the statute permitted : and he cannot 
 be affected by subsequent acts of the com- 
 missioners in issuing other bonds in a 
 manner not in accordance with law. 
 Brownell v. Greenwich, 114 X. Y. 518, 22 N. 
 E. 21. 4: 685 
 
 141. A judgment of a county court, under 
 the Xew York bonding act of 1869, author- 
 izing issuance of railroad-aid bonds by a 
 town, and appointing commissioners to 
 execute and issue such bonds, makes the ap- 
 pointees commissioners de jure, empowered 
 to act for the town: and their acts within 
 their authority are the acts of the town. 
 Hence irregularities in the manner of per- 
 formance cannot affect the validity of the 
 bonds so issued, in the hands of an innocent 
 purchaser for value. Id. 
 
 142. Although purchasers of bonds issued 
 "by a city are bound to examine the city 
 records to ascertain the authority of the 
 city treasurer to issue the bonds, they are 
 not required to look further for an unusual 
 private agreement between the city treasur- 
 er and certain bankers who are authorized 
 to sell the bonds. Suffolk Sav. Bank v. 
 Boston. 149 .Mass. 364. 21 X. E. 665, 4: 516 
 
 142a. The fact that a private agreement 
 made by a city treasurer with certain bank- 
 ers for a sale of bonds issued by the city 
 .stipulates that a certain proportion of them 
 shall be called and redeemed yearly, where- 
 as the bonds themselves contain an un- 
 conditional promise to pay in thirty years, 
 is recorded with the comniittee of finance, 
 is not constructive notice to purchasers of 
 the bonds. Id. 
 
 143. Where bonds issued by a city con- 
 tain an unconditional promise to pay Tn 
 thirty years, purchasers in good faith, with- 
 out knowledge of a collateral agreement be- 
 tween the city treasurer and certain bank- 
 ers for a sale of the bonds, stipulating that 
 a certain proportion of them shall be called 
 and redeemed yearly, are not bound by 
 such collateral agreement. Id. 
 Refunding bonds. 
 
 See also supra. 114-117. 
 
 144. That the indebtedness of a city was 
 temporarily increased beyond the prescribed 
 limit by the sale of bonds and failure im- 
 mediately to apply the proceeds to retire 
 existing indebtedness will not defeat them 
 in the hands of a bona fide purchaser, where 
 they might have been exchanged directly 
 for the existing evidences of debt, so that 
 there would have been no unlawful in- 
 crease, which method duty required the mu- 
 nicipal authorities to pursue. Huron v. 
 Second Ward Sav. Bank. 30 C. C. A. 38. 57 
 U. S. App. 593, 86 Fed. 272, 49: 534 
 
 Rights of one purchasing from bona fide 
 purchaser. 
 
 145. One who buys the bonds of a city 
 from a purchaser without notice of a private 
 agreement between the city treasurer and 
 certain bankers authorized to sell the bonds 
 takes the unimpeachable title of his vendor, 
 notwithstanding he himself had knowledge 
 of the existence of such contract, and can 
 enforce the bonds according to their tenor. 
 Suffolk Sav. Bank v. Boston, 149 Mass. 364. 
 21 X. E. 665, 4: 516 
 
 6. Estoppel as to; Ratification. 
 
 146. The consideration of bonds cannot 
 be denied, as against a bona fide purchaser, 
 where they were issued to pay claims which 
 had been audited by a committee, acting by 
 authority of a statute. Flagg v. Barnes 
 County School Dist. Xo. 70, 4 X. D. 30, 58 
 X. W. 499, 25: 363 
 
 147. The decision of a count} 7 clerk, 
 whose duty it is to pass upon the question 
 of title to a school site for which bonds are 
 given, before registering and certifying the 
 bonds, is final on that point, as against the 
 district, in favor of a bona fide purchaser 
 for value. Id. 
 
 148. A municipal township is estopped 
 from denying, in an action of mandamus to 
 compel the issue and delivery of railroad- 
 aid bonds voted by it, that the petition for 
 the election was signed by the requisite 
 number of taxpayers, where the county 
 board, whose duty it was to decide the ques- 
 tion, has determined that it was so signed 
 and was legal in all other respects, and the 
 railroad ha.s been constructed on the faith 
 that all the statutory requirements had 
 been complied with as shown by the journal 
 of the board, and the township has received 
 and retained the certificates of stock issued 
 to it. Hutchinson & S. R. Co. v. Fox, 48 
 Kan. 70, 28 Pac. 1078, 15: 401 
 
 149. Where a county issues bonds to aid 
 a railroad, under authority of law, and de- 
 livers them to the railroad company in aid 
 of which they are issued, and pays interest 
 on them for fifteen years, it is thereafter 
 estopped from setting up an irregularity in 
 the election at which it was decided to Is- 
 sue the bonds, as against an innocent pur- 
 chaser for value. Nelson v. Haywood 
 County, 87 Tenn. 781, 11 S. W. 885. 
 
 4: 648 
 
 150. Certificates signed by the mayor, 
 audit or. and attorney of a city, stating 
 what steps had been taken preliminary to 
 the issuing of certain bonds and as to the 
 financial condition of the city, though used 
 by the person who negotiated the bonds, 
 are inadmissible in an action thereon to 
 create an estoppel against the city's assert- 
 ing that the bonds were in excess of the 
 limit of the city's indebtedness, when the 
 making of such a statement was not within 
 the scope of the official duty of the of- 
 ficers making it. National Life Ins. Co. v. 
 Mead, 13 S. D. 37, 82 N. W. 7s. 48: 785
 
 296 
 
 BONDS, III. b, 7. 
 
 By recitals. 
 
 151. Recitals in municipal bonds, to estop 
 the corporation, need not state in detail 
 that all the necessary preliminary steps 
 have been taken, but it is sufficient that 
 they declare that the bonds are issued in 
 pursuance of a specified statute. Coler v. 
 Dwight School Twp. 3 N. D. 249, 55 N. W. 
 587, 28: 649 
 
 152. A municipal corporation is estopped 
 from controverting statements made upon 
 the face of its bonds as to the purpose for 
 which they were issued, so as to invalidate 
 them in the hands of bona fide purchasers. 
 Huron v. Second Ward Sav. Bank, 30 C. C. 
 A. 33, 57 U. S. App. 593, 86 Fed. 272, 49: 534 
 
 153. Recitals by municipal officers who 
 are invested with authority to perform a 
 precedent condition to the issue of negoti- 
 able bonds, or with authority to determine 
 when that condition has been performed, 
 that the bonds have been issued "in pur- 
 suance of," or "in conformity with," or "by 
 virtue of," or "by authority of," the statute, 
 will preclude inquiry, as against an innocent 
 purchaser for value, as to whether or not 
 the precedent conditions had been performed 
 before the bonds were issued. Id. 
 
 154. Recitals in township bonds to the 
 effect that they are issued under Iowa Laws, 
 1880, chap. 51, which authorizes their issue 
 to pay judgments, are not insufficient to 
 constitute the basis of an estoppel by reason 
 of the fact that they are not made payable 
 to the holder of any judgments, or payable 
 at the office of the treasurer of the town- 
 ship, but at the chief commercial city of the 
 county, since these facts do not destroy or 
 weaken the effect of the plain declaration 
 that they are issued in pursuance of the 
 statute. Independent School Dist. v. Rew, 
 49 C. C. A. 198. Ill Fed. 1, 55: 364 
 
 155. A recital or certificate in bonds as to 
 facts which the person making it had au- 
 thority to determine is conclusive in case 
 of non -negotiable bonds, as well as those 
 which are negotiable. Flagg v. Barnes 
 County School Dist. No. 70, 4 N. D. 30. 58 
 N. W.~499, 25: 363 
 
 156. Recitals in municipal bonds may as 
 conclusively estop the municipality from de- 
 feating an action on the coupons as though 
 they were contained in the coupons them- 
 selves. Independent School Dist. v. Rew, 
 49 C. C. A. 108. Ill Fed. 1, 55: 364 
 
 157. A district township is estopped, as 
 against a bona fide holder of its bonds, to 
 denv the truth of recitals contained therein 
 that they are issued under authority of 
 Iowa Laws 1880, chap. 51, to pay unsatis- 
 fied judgments rendered against the town- 
 ship before the passage of the act, where 
 the officers issuing the bonds are expressly 
 authorized by law to make such recitals in 
 the bonds. Id. 
 
 l.")8. Municipal corporations are estopped, 
 as against bona fide holders of their bonds, 
 from setting up as a defense thereto that 
 all the preliminary steps necessary to au- 
 thorize their issue were not taken, where 
 the officers having charge of such issue are 
 specially or impliedly authorized to de- 
 
 termine the performance of all the con- 
 ditions precedent, and the bonds recite such 
 compliance. Coler v. Dwight School Twp. 
 3 N. D. 249, 55 N. W. 587, 28: 649 
 
 159. A municipal corporation which has 
 certified on the face of its bonds that they 
 were issued for funding floating indebted- 
 ness a lawful purpose cannot repudiate 
 them after they have reached the hands of 
 bona fide holders, on the ground that the 
 proceeds were actually intended and used to 
 take up invalid warrants. Huron v. Second 
 Ward Sav. Bank, 30 C. C. A. 38, 57 U. S. 
 App. 593, 86 Fed. 272, 49:534 
 
 160. That a municipality is indebted be- 
 yond its constitutional limit at the time of 
 the issue of bonds will not release it from 
 liability thereon, where they contain re- 
 citals which, if true, warranted their issue 
 notwithstanding the excess of indebted- 
 ness, since the municipality is estopped as 
 against bona fide holders from denying the 
 truth of such recitals. Independent School 
 Dist, v. Rew, 49 C. C. A. 198, 111 Fed. 1. 
 
 55: 364 
 
 161-162. Recitals in a county bond will 
 not estop the county from denying its va- 
 lidity, if they point to an unconstitutional 
 statute as the authority under which the 
 bond was issued. Wilkes County v. Call, 
 123 N. C. 308, 41 S. E. 481, 44: 252 
 
 163.. A recital in city bonds as to the 
 amount of indebtedness of the city does not 
 create an estoppel against showing that the 
 indebtedness was greater, when the statutes 
 require the public records of the city to 
 show the amount of the existing indebted- 
 ness, as well as the amount of the taxable 
 property. National Life Ins. Co. v. Mead, 
 13 S. D. 37, 82 N. W. 78, 48: 785 
 
 Estoppel of holder.. 
 
 164. The holder of a county bond which 
 recites that it was issued under a particular 
 statute which is adjudged unconstitutional 
 will be estopped from contending that it 
 was issued under another statute. Wilkes 
 County v. Call, 123 N. C. 308, 41 S. E. 481, 
 
 44: 252 
 Ratification. 
 
 165. The payment of interest on town 
 bonds which were void because issued with- 
 out authority does not ratify them. Union 
 Bank v. Oxford Comrs. 119 N. C. 214, 25 S. 
 E. 966. 34:487 
 
 7. Payment; Time and Place of. 
 
 Injunction against Payment, see Injunction, 
 
 337. 
 See also supra, 130, 165. 
 
 166. Where an act to provide for the 
 payment of township bonds issued in aid 
 of a railroad provides that no tax shall be 
 levied to pay the interest on any bond until 
 the railroad shall be completed through the 
 township, and also provides that the act 
 shall not be construed to authorize a tax 
 to pay any interest which shall have ac- 
 crued prior to the completion of the road, 
 funds in the hands of the county treasurer 
 at the time of such completion, arising from
 
 BONDS, IV. (Ed. Notes.) 
 
 297 
 
 taxes levied before that time, cannot be ap- 
 plied in payment of interest subsequently 
 i.tvruing; and an application for a man- 
 damus to compel such payment will be de- 
 nied. State ex rel. Dickinson v. Neely, 30 S. 
 C. 587, 9 S. E. 664, 3: 672 
 
 167. Municipal bonds, in the absence of 
 any provision as to the place of payment, 
 are payable at the treasury of the munici- 
 pality/ Friend v. Pittsburgh, 131 Pa. 305, 
 18 Atl. 1060, 6: 636 
 
 168. The inception of a bond, as to a 
 purchaser, being its delivery, town railroad- 
 aid bonds issued under a statute authorizing 
 them to be made "payable at the expiration 
 of thirty years from their date" are not in- 
 valid because made payable in twenty years, 
 although they are executed and dated be- 
 fore the passage of a law allowing them to 
 be made payable in a less time, ^where they 
 are not delivered to the purchaser until aft- 
 er such law takes effect. Brownell v. Green- 
 wich, 114 N. Y.-518, 22 N. E. 24, 4: 685 
 
 169. Bonds issued under a statute author- 
 izing the issue of municipal bonds payable 
 in not less than ten years from date are 
 void even in the hands of a bona fide pur- 
 chaser, where by their terms they are pay- 
 able in eleven days less than ten years 
 from date. People's Bank v. School Dist. 
 No. 52, 3 N. D. 496, 57 N. W. 787. 28: 642 
 
 IV. Editorial Notes. 
 
 For General Principles with Respect to Prin- 
 cipal and Sureties, see 
 Principal and Surety, III. 
 
 For Sale of Liquor, see Intoxicating Li- 
 quors, V. 3. 
 
 a. For indemnity and security. 
 
 i. Generally. 
 
 Contingency of claim on, as affecting lim- 
 itation of time for presen- 
 tation against estate. 
 58: 86. 
 
 Who is real party in interest by whom ac- 
 tion must be brought. 
 64: 599. 
 
 Average bond; jurisdiction of admiralty as 
 to. 66: 235. 
 
 2. Execution. 
 
 Validity of execution. 6: 278.* 
 
 Signing by proxy. 22: 297. 
 
 What essential to bind surety. 8: 486.* 
 
 Execution on condition that others shall 
 sign. 45: 321. 
 
 Guaranty by surety of other signatures. 
 49: 316. 
 
 3. Form of judgment on penal bonds. 
 
 Under English statutes and decisions. 62: 
 
 427. 
 The necessity for 4 & 5 Anne, chap. 16. 
 
 62: 427. 
 Annuity and instalment bonds. 62: 
 
 428. 
 Exceptions to the scope of 8 & 9 Wm. 
 
 III. 62: 431. 
 
 Form of judgment under the statute 8 
 & 9 Wm. III. 62: 431. 
 
 Under statutes and decisions in the United 
 
 States. 62:433. 
 
 When the condition is for the payment 
 of a sum certain at a day 
 certain. 62 : 433. 
 
 When the condition is for the perform- 
 ance of covenants or col- 
 lateral agreements. 62 : 
 435. 
 Annuity, and instalment bonds. 
 
 62: 439. 
 
 Appeal bonds. 62: 442. 
 Attachment bonds. 62: 442. 
 Bail bonds. 62: 443. 
 Bastardy bonds. 62: 444. 
 Certiorari bonds. 62: 446. 
 Injunction bonds. 82: 446. 
 Indemnity bonds. 62: 446. 
 Official bonds. 62: 448. 
 Post-obit bonds. 62: 453. 
 Replevin bonds. 62: 453. 
 Title bonds. 62: 454. 
 Effect of improper form. 62: 455. 
 4. Penalty as limit of liability on stat- 
 utory bond. 
 
 The original rule. 55: 381. 
 Exception when equitable relief is sought. 
 
 55: 382. 
 
 Exception as to bonds for money or for di- 
 rect performance by sure- 
 ties. 55: 383. 
 The modern rule allowing interest. 55: 
 
 384. 
 
 Statement of and reasons for. 55: 384. 
 Measure of recovery under. 55: 385. 
 Allowance for costs. 55: 386. 
 Application of rules to particular classes of 
 
 bonds. 55: 387. 
 
 General statement as to. 55: 387. 
 Bonds for appeal or writ of error. 55: 
 
 387. 
 Certiorari and super sedeas bonds. 55: 
 
 388. 
 
 Injunction bonds. 55: 389. 
 Replevin bonds. 55: 390. 
 Bail bonds. 55: 391. 
 Administration bonds. 55: 392. 
 Guardians' bonds. 55: 392. 
 Treasurers', collectors', and paymasters' 
 
 bonds. 55: 393. 
 Sheriffs' and constables' bonds. 55: 
 
 393. 
 
 Bonds of other public officers and con- 
 tractors generally. 55 : 
 393. 
 
 Indemnity bonds. 55: 394. 
 Bonds in bastardy proceedings. 55: 
 
 395. 
 Stipulations for release in admiralty. 
 
 55: 395. 
 
 5. Of person acting in representative ca- 
 pacity. 
 See also Executors and Administrators, IV. 
 
 14. 
 Necessity of bond by guardian to make his 
 
 acts valid. 33: 759. 
 Sureties on bonds of assignees for creditors. 
 
 11: 852.* 
 Bond required of surviving partner. 7 : 794.*
 
 -298 
 
 BONDS, IV. (Ed. Notes.) BONUS TAX. 
 
 6. In legal proceedings. 
 
 See also Appeal and Error, XI. 8. 
 
 Bond as a condition of removal of cause. 
 
 5: 476.* 
 
 Who is real party in interest by whom ac- 
 tion must be brought on 
 bond given in judicial or 
 other proceedings. 64 : 
 605. 
 
 7. Official bonds. 
 See also supra, IV. 3, 4. 
 As to Liability of Officers, Generally, see 
 
 Officers, IV. 
 
 Suits on official bonds for trespasses or un- 
 authorized acts of officer 
 done colore offtcii. 21 : 
 738. 
 
 Liability of sureties where the officer 
 has no writ, or acts under 
 a void writ. 21 : 738. 
 Oppression in office. 21: 741. 
 Fraud of officer. 21: 741. 
 Liability on official bond for loss of money 
 by theft or bank failure. 
 22: 449. 
 
 Extension of liability on official bond while 
 officer is holding over 
 after expiration of regular 
 term. 35: 88. 
 
 Merely holding beyond term. 35: 88. 
 Provision for liability until successor is 
 
 appointed. 35: 90. 
 Re-election. 35: 92. 
 General bond. 35: 93. 
 Resignation. 35: 93. 
 
 Liability of sureties for second term; de- 
 fenses. 1: 118.* 
 Liability on official bond for making arrest. 
 
 51 : 222. 
 Estoppel of surety to deny official capacity 
 
 of principal. 1: 119.* 
 Breach of official bond : conversion of funds. 
 
 1: 118.* 
 
 Effect against surety on official bond, of 
 judgment against officer. 
 52: 165. 
 When not evidence. 52: 166. 
 
 Judgment recovered in action. 52: 
 
 166. 
 
 Judgment on motion for rule ab- 
 solute or amercement. 
 52: 169. 
 
 When prima facie evidence. 52:170. 
 Judgment recovered in action. 52: 
 
 170. 
 
 Judgment on motion for rule abso- 
 lute or amercement. 52: 
 175. 
 
 When conclusive evidence. 52: 17*5. 
 Judgment recovered in action. 52- 
 
 176. 
 
 Judgment on motion for rule ab- 
 solute or amercement. 
 52: 182. 
 In action on bond of deputy officer. 
 
 52: 184. 
 When not evidence. 52: 184. 
 
 Judgment against superior. 
 
 52: 184. 
 
 Judgment against deputy. 
 52: 184. 
 
 When prima facie evidence. 52: 184 
 
 When conclusive evidence. 52: 185. 
 Judgment in favor of principal. 52: 
 
 187. 
 
 Executors, administrators, and guar- 
 dians. 52: 187. 
 
 When not evidence. 52: 187. 
 
 When prima facie evidence. 52: 
 187. 
 
 When conclusive evidence. 52: 187. 
 
 b. Commercial; government and municipal 
 bonds. 
 
 8. Generally. 
 
 Power to issue in aid of railroad construc- 
 tion. 5: 728.* 
 
 Taxation of United States "bonds as part of 
 capital stock of corpora- 
 tion. 57: 57; 58: 568. 
 
 Issue of bonds in payment of municipal 
 waterworks. 61 : 49. 
 
 Statutes legalizing or validating municipal 
 bonds. 27 : 697. 
 
 Proof of, under bankruptcy act. 54: 373. 
 
 Necessity of notice of default to bind guar- 
 antor of bond. 20: 258. 
 
 Payable in gold coin. 29: 522. 
 
 Rights as to sale of, when pledged. 53: 
 857. 
 
 Implied authority of pledgee to sell bonds. 
 43: 743. 
 
 Right of bondholder to sue for enforcement 
 of trust deed. 20: 535. 
 
 Negotiability of bonds, issued by railroad 
 corporations. 1 : 299.* 
 
 Defense against negotiable bonds trans- 
 ferred after maturity. 46: 
 810. 
 
 9. Coupons. 
 
 Character of: negotiability. 1: 299.* 
 
 As distinct and separate instruments. 6: 
 562.* 
 
 Negotiability of detached coupons. 1: 299.* 
 
 Past -due coupons attached. 2: 353.* 
 
 Mandatory injunction to compel reception 
 of coupons for taxes. 20: 
 167. 
 
 BONUS. 
 
 For Public Enterprise, see Contracts, 493. 
 For Privilege of Subscribing to New Stock, 
 
 see Assumpsit. 36; Judgment, 290. 
 Bonus Stock, see Corporations. 362. 363, 
 
 632, 633: Pleading, 233. 
 To Agent as Usury, see Usury, 22-30. 
 
 Editorial Notes. 
 
 Bonus stock. 38: 490. 
 
 To secure location of county seat, as brib- 
 ery. 15: 501. 
 
 BONUS TAX. 
 
 Effect on Corporate Existence, of Action to 
 Recover, see Corporations, 11.
 
 BOOK MAKING BOUNDARIES. 
 BOOK MAKING. BOTTOMRY. 
 
 299 
 
 Enforcement of Contract as to, see Con- 
 tracts. 617, 618. 
 
 Special Privileges as to, see Constitutional 
 Law, 610, 611. 
 
 As Gaming, see Gaming, 13-16. 
 
 Title of Statute as to, see Statutes, 230- 
 232, 272. 
 
 Special Legislation as to, see Statutes, 300. 
 
 -See also Horse Race. 
 
 BOOKS. 
 
 Of Account, see Account Books. 
 
 Right to Inspect Books of Corporation, see 
 
 Corporations, V. e, 3; Municipal Cor- 
 porations, II. i. % 
 Compelling Production of, see Discovery and 
 
 Inspection, 9, 10, 12. 
 In Schools, see Schools, V. 
 
 Editorial Notes. 
 
 Common-law rights of authors and others 
 in intellectual productions. 
 51 : 353. 
 
 Right to inspect books of public officers. 
 27: 83. 
 
 Right of stockholder to inspect books of 
 corporation. 45: 446. 
 
 Right of taxpayer to inspect books of mu- 
 nicipality. 64: 418. 
 
 Adoption of text-books for public schools. 
 36: 277. 
 
 BOOM. 
 
 Oral Contract as to, see Contracts, 175. 
 Estoppel to Complain of, see Estoppel, 183. 
 As Nuisance, see Nuisances, 54. 95. 
 Right to Fasten to Trees, see Waters, 148. 
 See also Logs and Logging, 1, 5. 
 
 BORN ALIVE. 
 When Child is, see Curtesy, 3. 
 
 BOROUGH. 
 
 See Municipal Corporation. 
 
 BORROWING MONEY. 
 
 For Bank, see Banks, 299, 300. 
 
 Power of Loan Association as to, see Build- 
 ing and Loan Associations, 60-62. 
 
 Power of Corporation as to, see Corpo- 
 rations, 97. 
 
 Power of Municipality as to, see Munici- 
 pal Corporations, II. e. 
 
 In General, see Maritime Liens.' 
 Editorial Notes. 
 
 Jurisdiction of admiralty in case of. 66: 
 204, 233. 
 
 BOULEVARD. 
 
 Class Legislation as to, see Constitutional 
 Law, 322; Statutes, 372. 
 
 Due Process as to, see Constitutional Law, 
 763, 764. 
 
 Condemnation for, see Eminent Domain, 89, 
 90. 
 
 Restriction of Building on, see Eminent Do- 
 main, 221. 
 
 Forbidding Erection of Billboard on Private 
 Property Facing, see Municipal Cor- 
 porations, 154. 
 
 Assessment for, see Public Improvements, 
 68. 
 
 Title of Statute as to, see Statutes, 207, 
 208. 
 
 See also Highways, 49; Municipal Corpora- 
 tions, 137-141. 
 
 1. An ordinance prohibiting the use of a 
 pleasure driveway with traffic vehicles is 
 unreasonable and void, where the enforce- 
 ment of it is made to depend upon the dis- 
 cretion of the village trustees by requiring 
 their permission for such use. Cicero Lum- 
 ber Co. v. Cicero, 176 111. 9, 51 N. E. 758, 
 
 42: 696 
 
 2. Limitation by a municipality, under 
 legislative authority, of the use of a pub- 
 lic highway to the purposes of a pleasure 
 driveway to the exclusion of general traf- 
 fic, does not violate the (rust under which 
 the municipality holds the fee of its streets. 
 
 Id. 
 
 3. Pow r er to change the use of a street 
 from general traffic to pleasure by general 
 laws is implied by a constitutional prohibi- 
 tion of the vacation of streets by local or 
 special laws. Id. 
 Liability for condition of. 
 
 4. A boulevard 150 feet wide, of which 
 60 feet is graded, while the remainder is 
 occupied by grass plots and sidewalks, and 
 which is under the control of park and 
 boulevard commissioners, who constitute a 
 city agency, is a street, for the defective 
 condition of a sidewalk on which the mu- 
 nicipality is liable as much as if the boule- 
 vard was under the direct control of the 
 common council. Burridge v. Detroit. 117 
 Mich. 557, 76 N. W. 84, 42: 684 
 
 BOUNDARIES. 
 
 I. Of State or Municipality. 
 II. Of Private Property. 
 
 a. In General; Rules for Fixing. 
 
 b. By Highway or Passageway. 
 
 c. By Waters. 
 III. Editorial Notes.
 
 800 
 
 BOUNDARIES, I. II. a. 
 
 Of Highway, Conclusiveness of Judgment as 
 to, see Judgment, 264. 
 
 I. Of State or Municipality. 
 
 Of State. 
 
 Jurisdiction as Affected by Change of, see 
 
 Courts, 64. 
 Jurisdiction of Crimes Committed on State 
 
 Boundary, see Courts, 50-53. 
 Jurisdiction of Actions Arising on River 
 
 Forming Boundary of, see Courts, 30- 
 
 37. 
 For Purpose of Regulating Fishing, see 
 
 Fisheries, 6. 
 For Editorial Notes, see infra, III. 1. 
 
 1. The boundary line of Wisconsin, as 
 to its outlying rivers, is the main channels 
 of such rivers. Roberts v. Fullerton, 117 
 Wis. 222, 93 N. W. 1111, 65: 953 
 
 2. A person in a boat on the Savannah 
 river, within thirty yards of the Georgia 
 side, at a point where the river is at least 
 175 yards wide, is prima facie in the state 
 of Georgia. Simpson v. State, 92 Ga. 41, 17 
 S. E. 984, 22: 248 
 
 3. A body of water having well-defined 
 shores and no current, lying entirely in the 
 state of Iowa % of a mile from the main 
 channel of the Mississippi river, and form- 
 ing no part of that river for the purposes 
 of navigation, is within the provisions of 
 Iowa Acts 23 Gen. Assem. chap. 34, against 
 the use of seines in the waters of that state, 
 and is not within the exception of boundary 
 waters, over which the state has not ex- 
 clusive jurisdiction. State v. Haug, 95 
 Iowa, 413, 64 N. W. 398, 29: 390 
 
 4. The sovereignty of the state of Wis- 
 consin extends to the middle of Lake Michi- 
 gan, and its laws, so far as they do not 
 conflict with those of the United States 
 regulating commerce and navigation, are 
 operative within such limits. Bigelow v. 
 Nickcrson, 34 U. S. App. 261, 17 C. C. A. 
 1, 70 Fed. 113, 30: 336 
 
 5. The territorial limit of sovereignty 
 with respect to the high seas, to the 3-mile 
 zone, should not be applied to a lake which 
 is not the common boundary of nations, or 
 open by nature for the commerce of the 
 world, but is within the exclusive jurisdic- 
 tion of each nation. Id. 
 
 6. The space covered by the high sea up- 
 on the border of a state, to the extent of 
 3 miles from the shore, is within the opera- 
 tion of a state statute creating a liability 
 for wrongfully causing the death of another. 
 Humboldt Lumber Mfg. Asso. v. Christo- 
 pherson, 19 C. C. A. 481, 44 U. S. App. 434, 
 73 Fed. 239, 46: 264 
 Of municipality or township. 
 
 Of County, Equity Jurisdiction as to, see 
 Equity, 17. 
 
 Changing Boundary of County, see Coun- 
 ties, 6-9. 
 
 Of Election Districts, see Election Dis- 
 tricts. 
 
 Of Irrigating Districts, see Irrigating Dis- 
 tricts, 4. 
 
 Of Government Subdivisions, see Waters, 
 
 469. 
 
 See also Towns, 4. 
 For Editorial Notes, see infra, III. 1, 2. 
 
 7. The same rule governs as to the boun- 
 daries on streams of water of incorporated 
 territories and of lands of individuals. 
 Ft. Smith & V. B. Bridge Co. v. Hawkins, 54 
 Ark. 509, 16 S. W. 565, 12: 487 
 
 8. The boundary of an incorporated town 
 or city on a navigable river in Arkansas, 
 like that of an individual proprietor, ex- 
 tends only to high-water mark, although 
 the county boundary goes to the middle of 
 the channel. Id. 
 
 9. A scow on which intoxicating liquors 
 are sold, anchored in water about 5 feet 
 deep and about % mile from shore, is not 
 within any township in Michigan, and no 
 prosecution can be had for such sales under 
 the Michigan statute, which makes the 
 shore the boundary line of a municipal cor- 
 poration, although rights of landowners for 
 fishing purposes are extended by the stat-. 
 utes over the water a mile from shore. 
 People v. Bouchard, 82 Mich. 156, 4C N. W. 
 232, 9: 106 
 
 10. The jurisdiction of a municipality 
 bounded by a navigable river does not ex- 
 tend beyond low-water mark, in the absence 
 of anything in the charter extending the 
 limit of its jurisdiction expressly or 'by fair 
 implication. State v. Eason, 114 N. C. 787, 
 19 S. E. 88, 23: 520 
 
 II. Of Private Property. 
 a. In General; Rules for Fixing. 
 
 Adverse Possession Beyond, see Adverse 
 Possession, I. b. 
 
 Of Coal Mine, see Constitutional Law, 341. 
 
 Due Process in Establishing, see Constitu- 
 tional Law, 894. 
 
 Oral Agreement as to, see Contracts, 169- 
 169b. 
 
 Amount Passing Under Deed, see Deeds, 63- 
 65, 78. 
 
 Equity Jurisdiction as to, see Equity, 15, 
 16. 
 
 Burden of Proof as to, see Evidence, 664. 
 
 Evidence as to, see Evidence, 1617, 1618, 
 1658, 1662, 1936, 2159. 
 
 Fences on Boundary Line, see Fences, II. 
 
 Trees on. see Cotenancv, 10; Injunction, 
 198, 199; Trees, 1-3. 
 
 Conclusiveness of Judgment as to, see Judg- 
 ment, 198. 
 
 Indication of, upon Plat, see Plat. 
 
 False Representation as to, see Vendor and 
 Purchaser, 12. 
 
 Mistake as to, see Vendor and Purchaser, 
 67. 
 
 For Editorial Notes, see infra, III. 3, 6. 
 
 11. The rule that a marked line controls 
 a call in a deed for course and distance is 
 not applicable unless the marked line is so 
 connected with the deed, either by intrinsic 
 or extrinsic evidence, as to create a pre-
 
 BOUNH ARIES, II. b, c. 
 
 301 
 
 sumption that the grantor intended to adopt 
 it. Elliott v. Jefferson. 133 X. C. 207.. 45 
 S. E. 558, 64: 135 
 
 12. Where a grantor, in dividing his es- 
 tate, makes calls different from those which 
 he had previously marked upon the ground, 
 the question whether those in the deed, or 
 those marked on the ground, will control, 
 depends upon his intention. Id. 
 
 13. Ascertained objects, natural land- 
 marks, and reputed boundaries, control 
 mere course and distance in determining 
 the boundaries of land. Teass v. St. Al- 
 bans, 38 W. Va, 1, 17 S. E. 400, 19: 802 
 
 14. A general description in a deed of a 
 bank building and lot, which bounds the 
 property conveyed on the south by the 
 land of a third person, yields to a report 
 and plan, expressly referred to in the deed 
 "for a more particular description," which 
 shows that the south line of the bank lot 
 was 2 inches south of the south face of the 
 south wall of the bank building, notwith- 
 standing that such report and plan Were 
 made to settle a dispute between the grant- 
 or and such third person as to their bound- 
 ary line, and that, after they were made, 
 and before the execution of the conveyance 
 in question, the grantor conveyed to him 
 a strip 8 inches wide to the center of the 
 wall of the bank building. Clement v. 
 National Bank of Rutland, 61 Vt. 298, 17 
 Atl. 717, 4: 425 
 
 b. By Highway or Passageway. 
 
 For Editorial Notes, see infra, III. 5. 
 
 15. The title and legal possession of the 
 owner or occupant of lands abutting upon a 
 street presumably extend to the middle of 
 the street, in the absence of anything to 
 show the contrary. Friedman v. Snare & 
 T. Co. (N. J. Err.' & App.) 71 N. J. L. 605, 
 61 Atl. 401, 70: 147 
 
 16. A deed which merely calls for a high- 
 way or street carries title to the center 
 thereof. Iron Mountain R. Co. v. Bing- 
 ham, 87 Tenn. 522, 11 S. W. 705, 4: 622 
 
 17. A conveyance of lots with reference 
 to, or as bounded by, streets and alleys as 
 laid off on a certain plat, passes the title 
 to the center of the street or alley, even 
 if never brought into public use, provided 
 the seller's title extended to the center 
 thereof. Jacob v. Woolfolk, 90 Ky. 426, 
 14 S. W. 415, 9: 551 
 
 18. A conveyance of land bounded "along" 
 a certain road which was laid out entirely j 
 on the grantor's land, but on the margin 
 thereof, carries the fee in the whole road- j 
 bed. Haberman v. Baker, 128 N. Y. 253, ' 
 28 N. E. 370, 13: 611 
 
 19. The owner of a lot abutting upon a 
 street in a city is presumed to be the own- i 
 er of the soil to the center of the street, 
 subject to the public easement of passage i 
 and the rights of the municipality to use ! 
 it for municipal purposes as authorized by ; 
 law. Edmison v. Lowry, 3 S. D. 77, 52 N. ' 
 W. 583, 17:275 
 
 20. A statutory dedication of land for a 
 street by a plat filed under Mo. Rev. Stat. 
 1855, p. 1536, 8, declaring that such plat 
 "shall be a sufficient conveyance to vest 
 the fee . . . for public use . . . 
 and for no other use or purpose," gives the 
 public only an easement, leaving the fee 
 to vest in abutting owners respectively to 
 the center of the street when they subse- 
 quently acquire title to lands abutting 
 thereon. Thomas v. Hunt, 134 Mo. 392, 35 
 S. W. 581, 32: 857 
 
 21. The rule that a city lot bounded by 
 a street extends to the middle of the street 
 may be applied to carry title to minerals 
 under the surface of the street, which had 
 been expressly reserved on a prior convey- 
 ance of the surface of the street. Snoddy 
 v. Bolen, 122 Mo. 479, 25 S. W. 932, 
 
 24: 507 
 
 22. A deed which calls for the side of a 
 street does not carry the fee to the center 
 of the street, but excludes the fee of the 
 street altogether, and gives the grantee a 
 mere easement in the street in front of the 
 premises. Iron Mountain R. Co. v. Bing- 
 ham, 87 Tenn. 522, 11 S. W. 705, 4: 622 
 
 23. A conveyance of land bounded "by a 
 5- foot passageway" does not include any 
 part of the fee of the way. when it grants 
 the use of the passageway in terms without 
 mentioning any rights reserved, and refers 
 for description to a deed conveying no part 
 of such way, and to a plan minutely speci- 
 fying measurements and contents which ex- 
 clude the way, while the fee to one side of 
 the way for a portion of its length remains 
 in those who laid it out, and the parties 
 by practical construction of their rights for 
 a long time treat the conveyance as exclud- 
 ing the way. Crocker v. Cotting, 166 Mass. 
 183, 44 N. E. 214, 33: 245 
 
 c. By Waters. 
 
 Title to Land under Water Passing by Deed 
 
 of Upland, see Deeds, 63. 
 Boundary as Between Individual and Public, 
 
 see Waters, I. c, 4. 
 Boundary under Grant by Government of 
 
 Land under Water, see Waters, I. c, 4, 
 
 d. 
 For Editorial Notes, see infra, III. 4. 
 
 24-26. A purchaser of lots according to a 
 plat showing them bounded by a definite 
 line at a specified distance from the front 
 boundary acquires no riparian rights in 
 lands covered by tidewater, at the rear of 
 such lots. Kenyon v. Knipe, 2 Wash. 394, 
 27 Pac. 227, 13: 142 
 
 River or creek. 
 
 Boundary as between Individual and Pub- 
 lic, see Waters, 74-80, 86-95. 
 See also infra, 44. 45, 55. 
 For Editorial Notes, see infra, III. 4. 
 
 27. Describing land as "lying on the south 
 side" of a non-navigable river which is also 
 named as a boundary does not prevent the 
 grant from extending to the center of the 
 river. Hanlon v. Hobson, 24 Colo. 284, 51 
 Pac. 433, 42: 502
 
 302 
 
 BOUNDARIES II., c. 
 
 28. The bed of the river between the mid- 
 dle of the stream and the abutting land be- 
 longs to the owner thereof, under an ex- 
 ception in a deed of a piece of land fronting 
 on a river "12 rods in length on the bank 
 of said river and extending back far enough, 
 same width, to comprise 1 acre of land." 
 Smith v. Furbish, 68 X. H. 123, 44 Atl. 
 398. . 47: 226 
 
 29-31. A conveyance of lands situated 
 upon a navigable stream, the description 
 being by courses and 'distances from a 
 fixed monument, and establishing a bound- 
 ary line coincident with the line of naviga- 
 tion, conveys the grantor's title as far as 
 the thread of the stream. Lake Shore & 
 M S R. Co. v. Platt, 53 Ohio St. 254, 41 
 X. E. 243, 29: 52 
 
 32. Running the lines of a grant from ob- 
 ject to object along the bank of a stream, 
 so as to inclose a given quantity of land, 
 will prevent the grantee's title from run- 
 ning to the center of the stream, although 
 the words "down the creek" are used in 
 describing the direction of the lines. Stew- 
 art v. White. 128 Ala. 202. 30 So. 526. 
 
 55: 211 
 
 33. A deed of land naming a creek as 
 one boundary, made by a probate judge as 
 trustee of town-site lots under act of Con- 
 gress, conveys only to the bank of the 
 creek, where at the same sale the bed of 
 the creek, which had been separately de- 
 scribed in the notice of" sale, is separately 
 sold and is conveyed the same day to an- 
 other purchaser. Pearce v. Denver, 13 Colo. 
 383, 22 Pac. 774. 6: 541 
 
 34. The boundary line between owners of 
 land on opposite sides of a channel not more 
 than 200 rods wide into which the tide 
 flows, but from which it wholly ebbs and 
 through which a fresh-water stream flows, 
 is the middle of the tidal channel and not 
 affected by the fresh-water stream, although 
 the Colonial ordinance of 1641-47, which ex- 
 tends the ownership of the land on tidal 
 waters to low-water mark, if not more than 
 100 rods, furnishes no guide for the division, 
 since the land to be divided is all above low- 
 water mark. Tappan v. Boston Water 
 Power Co. 157 Mass. 24, 31 N. E. 703. 
 
 16: 333 
 
 Lake or pond. 
 Relative Rights brtween Individual and 
 
 I'nblic. see Waters, 81-85, 88. 
 Relative Rights of Riparian Owners in Bed 
 
 of. see Waters, 195-199. 
 See also infra. 46-49, 56-59. 
 For Editorial Notes, see infra. III. 4. 
 
 35. The ronnnon-law rule governing the 
 construction and extent of grants of land 
 bordering and bounded on non-navigable wa- 
 ters is applicable alike to conveyances , 
 bounding lands on fresh -water rivers and j 
 small non-navigable lakes or ponds. Gouv- j 
 erneur v. .National Ice Co. 134 X. Y. 355. 
 31 X. E. 865. IS: 695 
 
 36. Describing one boundary of a convey- 
 ance of land as along a certain pond will 
 carry "title to the center of the pond, unless , 
 a contrary intention appears. Id. 
 
 37. The designation of the courses and dis- 
 tances of the shore line, in a deed describ- 
 ing one boundary of the land conveyed as 
 "along" a certain pond, will not prevent, 
 the passing by the grant of title to the- 
 center of the pond. Id.. 
 
 38. The raising of a dam pending litiga- 
 tion over the boundary of land conveyed as 
 bounded on a pond will not give the own- 
 er of the bed of the pond any right to the 
 additional land which is thus covered by 
 the water. Boardman v. Scott, 102 Ga. 
 404. 30 S. E. 982, 51: 178 
 
 39. If a description be by metes and 
 bounds, no reference being made therein to- 
 a lake by which the land lies, then only 
 the land included within the lines as fixed 
 by the terms used by the parties to the deed 
 will pass to the grantee. Lembeck v. Xye. 
 47 Ohio St. 336, 24 N. E. 686, 8: 578 
 
 40. Where one who owns a tract of land 
 that surrounds and underlies a non -navi- 
 gable lake, the length of which is distin- 
 guishably greater than its breadth, con- 
 veys a parcel thereof that borders on the 
 lake, by a description that makes the lake 
 one of its boundaries, the presumption is 
 .that the parties do not intend that the 
 grantor should retain the title to the land 
 between the edge of the water and the 
 center of the lake; and the title of the pur- 
 chaser, therefore, will extend to the center 
 thereof. Id. 
 Meandered waters. 
 
 For Editorial Xotes, see infra. III. 4. 
 
 41-42. The meander line of a govern- 
 ment survey along a navigable bay is not to 
 be taken as the shore line for the purpose of 
 determining the respective rights of co- 
 terminous riparian owners of lands front- 
 ing on the bay. Xorthern Pine-Land Co. v. 
 Bigelow, 84 Wis. 157, 54 X. W. 496. 21 : 77ff 
 
 43. Land outside the meander line of a 
 grant, if so grossly in excess of the land 
 sold as to make it apparent that there is 
 fraud or mistake in the survey, will not be 
 included in the grant, but the meander line 
 wilj be the boundary. Fuller v. Shedd, 161 
 111. 462. 44 X. E. 286, 33: 146 
 
 44. A narrow strip of land between a 
 meander line, and a natural boundary, such 
 as a stream or river, if it is much smaller 
 than the land granted, will be included in 
 the grant, and the center of the stream 
 or river will be the boundary, unless a dif- 
 ferent intention is manifested by the terms 
 used. Id. 
 
 45. Mentioning a me"ander line on the 
 bank of a river as a boundary will convey ' 
 the property at least to the water line, 
 with riparian rights, if not to the thread 
 of the stream, unless a contrary intent 
 clearly appears from the deed itself. Sizor 
 v/ Logansport. 151 Tnd. 626, 50 X. E. 377, 
 
 44: 814 
 
 46. Land described as running to a lake, 
 thence by the meandering of said lake, 
 which is an unnavigable body of water from 
 5 to 7 miles in length and from 80 to 100 
 rods in width, does not include any of the 
 bed of the lake. Xoyes v. Collins, 92 Iowa, 
 566, 61 X. W. 250, ' 26: 60
 
 BOUNDARIES, III. a. 
 
 30* 
 
 47. A grant of land bounded on a mean- 
 dered lake conveys only to the water's edge, 
 with riparian rights, but does not include 
 land under the water. Fuller v. Shedd. 161 
 111. 402. JA X. E. 286. 33: 146 
 
 47a. Lakes, whether large or small, if 
 they are of such size that in making the 
 original survey they are meandered, are 
 subject to the same rule as to the bound- 
 ary of the grant to the riparian owner. 
 Fuller v. Shedd, 161 111. 462, 44 X. E. 286, 
 
 33: 146 
 
 48. If a meandered lake is non-navigable 
 in fact, the patentee of riparian land takes 
 the fee to the center of the lake. Lamprey 
 v. State, 52 Minn. 181, 53 N. W. 1139, ' 
 
 18: 670 
 
 49. The purchaser from the government 
 of lands bordering on non-navigable in- 
 land lakes, divided therefrom in he siirvey 
 by a meandering line, and designated as 
 a fractional quarter or lot, giving the num- 
 ber of acres ot dry land, takes all the land 
 within the subdivision, including that part 
 beyond the meandering line and covered by 
 the water. Stoner v. Rice, 121 Ind. 51, 22 
 X. E. 968, 6: 387' 
 
 50. Although a meander line is not, as 
 a general rule, a boundary line, yet where 
 the boundaries of fractional lots appear by j 
 the government plat to abut on a body ] 
 of water which in fact never existed at j 
 substantially the place indicated on the 
 plat, the supposed meander line will, if 
 consistent with the other calls and distances 
 indicated on the plat, mark the limits of the 
 survey, and be held to be the boundary 
 line of the land it delimits. Security Land 
 & E. Co. v. Burns. 87 Miroi. 97, 91 X. W. 304, 
 
 63: 157 
 
 Low-water mark. 
 
 Relative Rights of Individual and Public, 
 see Waters, I. c. 4, b. 
 
 51. Title to low-water mark will pass by 
 a conveyance of land lying on the seashore, 
 the boundary lines of which are described 
 as "beginning at the sea;" thence running! 
 around the parcel to "the shore," thence to | 
 the "first bounds mentioned," especially 
 where nothing appears to show any reason 
 or motive for separating the beach from the 
 upland and retaining title to it. Snow v. 
 Mt. Desert Island Real Estate Co. 84 Me. 
 14. 24 Atl. 429, 17: 280 
 
 52. Riparian rights, including the right 
 to the soil between ordinary high and low- 
 water mark, as incident or appurtenant to 
 the' adjacent land, pass in Virginia by vir- 
 tue of the operation of the statutes extend- 
 ing the rights of individuals to low-water 
 mark, although the conveyance is in terms 
 made to "high -water mark," unless the deed 
 manifests a clear intention to control the 
 operation of the statutes. Waverly Water 
 Front I. & D. Co. v. White, 97 Va. 176, 33 
 S. E. 534, 45: 227 
 
 53. That the object of the purchase of a 
 strip of land was to build ice houses thereon 
 cannot affect the construction of the deed 
 so as to extend the boundary below low- 
 water mark, where it is expressly fixed" by 
 
 the language of the deed. Allen v. Weber,, 
 80 Wis. 531. 50 X. W. 514, 14: 361 
 
 54. The reservation of the right of flow- 
 age on conveyance of land bounded by low- 
 water mark and bordering on a dam does 
 not imply any extension of the boundary 
 below such mark, where there is a margin 
 between high and low-water marks, to 
 which the right of flowage may apply. Id. 
 
 55. Low-water mark will bound lands, 
 where the description in the deed gives a 
 river with its several courses as a bound- 
 ary. Freeland v. Pennsylvania R. Co. 197 
 Pa. 529, 47 Atl. 745, 58: 206 
 
 56. A boundary described as running "to 
 low- water mark; thence northerly along the 
 low -water mark" of a pond or river, fixes 
 that mark as the permanent boundary, and 
 does not convey any land below the water 
 mark. Allen V. Weber, 80 Wis. 531, 50 
 X. W. 514, 14: 361 
 
 57. If the call in the description of land 
 lying by an inland non-navigable lake be 
 to and thence along the margin of the lake, 
 the title of the purchaser will extend to 
 low-water mariv only. Lembeck v. Xye. 47 
 Ohio St. 336, 24 X. E. 686, 8: 578 
 
 58. A description of land as running "to 
 the shore" of a lake, and thence "with 
 said shore" to a certain point, does not in- 
 clude the shore or extend to low- water 
 mark so as to make the grantee a riparian 
 proprietor entitled to submerged lands in- 
 cluded in the Florida grant of 1856, which 
 is limited to owners of lands "actually 
 bounded by, and extending to. low-water 
 mark." Axline v. Shaw. 35 Fla. 305, 17 S-. 
 411, .28: 391 
 
 59. A deed bounding land by an artificial 
 pond which has been in existence more than 
 forty years and has become a permanent 
 body of water, although its waters ebb and 
 flow from time to time so as to leave a 
 margin of land between high and low-water 
 marks, does not carry title to the thread of 
 the stream from whose waters the pond 
 was formed, but only to the low-water 
 mark of the pond at the date of the execu- 
 tion of the deed. Boardman v. Scott, 102 
 Ga. 404, 30 S. E. 982, 51 : 178. 
 
 III. Editorial Xotes. 
 a. Of states and municipalities. 
 
 i. Upon waters. 
 
 Rivers and lakes as state boundaries. 15: 
 187. 
 
 Delaware river. 15: 187. 
 
 Mississippi river. 15: 187. 
 
 Ohio river. 15: 187. 
 
 Missouri river. 15: 188. 
 
 Potomac river. 15: 188. 
 
 Chattahoochee river. 15: 188. 
 
 Hudson river and neighboring waters. 
 15: 189. 
 
 Fluctuation of river. 15: 189. 
 
 Lake Michigan. 15:189. 
 Jurisdiction over boundary river. 65: 953..
 
 804 
 
 BOUNTY; BOWLING ALLEY. 
 
 Of municipality on navigable stream. 23: 
 520. 
 
 Of municipal corporations on tidal waters. 
 45: 243. 
 
 2. Change of. 
 
 Legislative power to change boundaries of 
 municipal corporations. 1: 
 757.* 
 
 Legislative power to change county bound- 
 aries. 1:757.* 
 
 b. Of private property. 
 
 3. Generally. 
 
 Right to inspect public records as to bound- 
 aries and titles. 27: 84. 
 
 Property rights in trees on. 21: 729. 
 
 Fraud in opinion as to. 35: 419. 
 
 Ri"-ht to rely upon representations as to. 
 37: 610. 
 
 Adverse possession in case of ignorance or 
 mistake as to. 21:829. 
 
 4. On waters. 
 
 On non-navigable waters. 8: 579.* 
 On artificial bodv of water. 51: 178. 
 Canal. 51: 179. 
 Pond. 51: 179. 
 
 Permanent artificial pond. 51: 180. 
 Of grant bordering on stream. 10:207.* 
 Change of, bv sudden submergence of land. 
 
 38: 850. 
 Effect of bounding grant on river or tide 
 
 water. 42: 502. 
 General rule. 42: 502. 
 No strip reserved between granted 
 land and water. 42: 502. 
 Title will go to middle of stream. 42: 
 
 503. 
 
 Particular descriptions which have been 
 held to pass title to thread 
 of stream. 42: 505. 
 
 Presumption that title goes to center 
 may be rebutted. 42: 506. 
 Particular descriptions which will re- 
 but presumption. 42: 506. 
 Generally. 42:506. 
 Boundary on margin. 42: 506. 
 Boundary on bank. 42: 507. 
 Where rights in river are in third 
 
 person. 42: 508. 
 Conveyance by plat. 42: 509. 
 Artificial channel. 42: 509. 
 Highway on bank. 42: 509. 
 Stream "between" lands. 42: 510. 
 Effect of call for quantity. 42: 
 
 510. 
 
 Meander line. 42: 510. 
 Between nations. 42: 511. 
 Some exceptional New York cases. 
 
 42:511. 
 
 Specific descriptions. 42: 511. 
 Question for jury. 42: 511. 
 Tidal waters. 42: 511. 
 5. On highway. 
 Conveyance "along" highway. 4: 624.* 
 
 6. Establishment of; description. 
 Established by agreement. 1:214.* 
 Fixing by estoppel. 1: 522.* 
 Effect of acquiescence in boundary lines. 
 
 4: 643. 
 Map as affecting description. 13: 142.* 
 
 BOUNTY. 
 
 Necessity of Appropriation for, see Appro- 
 priations, 5. 
 
 Sufficiency of Appropriation for, see Ap- 
 propriations, 11. 
 
 For Killing Coyotes, see Claims, 24. 
 
 Use of Public Funds for, see Public Moi>eya, 
 49, 50. 
 
 Sugar bounties. 
 
 1. The bounty on the manufaclte of 
 beet sugar, given by Mich. Pub. Acts 1897, 
 act No. 48, is unconstitutional as a taking 
 of the property of the taxpayers for a use 
 which is not public; and, as the act takes 
 the property of one citizen and turns it 
 over to another, or compels one class to 
 donate a part of its property to another, 
 it is void irrespective of any express consti- 
 tutional provisions. Michigan Sugar Co. v. 
 Dix, 124 Mich. 674, 83 N. W. 625, 56: 329 
 
 2. Recognition by Mich. Pub. Acts 1899, 
 act No. 263, of the supposed obligation of 
 the state to pay sugar bounties under the 
 unconstitutional act of 1897 cannot give any 
 ^validity to such bounties. Id. 
 
 3. Engaging in the business of sugar 
 manufacture under the inducement offered 
 by Mich. Pub. Acts 1897, act No. 48, of- 
 fering sugar bounties, and incurring large 
 expense in reliance on such bounties, will 
 not give one a valid claim against the state 
 for the bounties on the ground that after 
 such investments the bounties cannot be 
 considered a gift, but that the state is in 
 honor bound to pay them. Id. 
 To soldiers. 
 
 4. Where a town in 1861 contracted, with- 
 out authority, to pay a monthly bounty to 
 such of its citizens as should be mustered 
 as soldiers into the service of the United 
 States, and the legislature subsequently 
 passed an act empowering the town to car- 
 ry out such contract, but stating that the 
 contract should terminate in ninety days 
 from its date, no recovery can be had for 
 any time of service longer than ninety clays, 
 although in 1863 the legislature passed an 
 act ratifying all acts of towns in agreeing, 
 to pay bounties to soldiers furnished by 
 them for the war then existing. Marsh v. 
 Scituate, 153 Mass. 34, 26 N. E. 412, 
 
 10: 202 
 Editorial Notes. 
 
 Claims against state for. 42: 63. 
 
 Right to use public money to pay. 14: 
 
 476. 
 Decisions under various state statutes. 10: 
 
 202.* 
 
 BOWLING ALLEY. 
 Exemption of, see Exemptions, 39. 
 Editorial Notes. 
 
 Municipal regulation of, as a nuisance. 39: 
 524.
 
 BOXING MATCH BREACH OF PROMISE, 
 BOXING MATCH. 
 See Prize Fighting. 
 
 BOYCOTT. 
 
 Refusal of Association to Deal with a Per- 
 son, see Compulsory Service, 2, 3. 
 
 As Conspiracy, see Conspiracy, I. c, 2. 
 
 As Contempt of Court, see Contempt, 55, 56. 
 
 Jurisdictional Amount in Injunction against, 
 see Courts, 291. 
 
 Estoppel of Boycotted Member of Produce 
 Exchange, see Estoppel, 138. 
 
 Evidence of, see Evidence, 1550. 
 
 Injunction against, see Injunction, 129-152. 
 
 Presumption as to, see Trademark, 67. 
 
 1. Compelling employees to withhold their 
 patronage from a merchant as 3. condition 
 of their employment may be an actionable 
 wrong when done solely from motives of 
 malice. Graham v. St. Charles Street R. Co. 
 47 La. Ann. 214, 16 So. 806, 27: 416 
 
 2. One who maliciously induces the with- 
 drawal of patronage from a person, not for 
 his own benefit in the exercise of the right 
 of free competition, but for the purpose 
 of injuring and destroying such person's 
 business, is liable to an action for damages; 
 and the fact that there was no contract be- 
 tween such person and his patrons is not 
 material. West Virginia Transp. Co. v. 
 Standard Oil Co. 50 W. Va. 611, 40 S. E. 
 591, 56: 804 
 
 Editorial Notes. 
 As conspiracy. 12:194.* 
 
 BRAKEMAN. 
 
 Liability of, for Negligent Homicide, see 
 Homicide, 1. 
 
 Authority to Hire, see Master and Servant, 
 4, 5. 
 
 As to Relative Duties of Brakeman and Em- 
 ployer, see Master and Servant. 
 
 BRAKES. 
 
 Requirement of Air Brakes on Street Cars, 
 see Municipal Corporations, 187-189. 
 
 BRAND. 
 
 False Brand on Illuminating Oil, see Oil, 
 3-6. 
 
 BREACH. 
 
 Of Contract, see Contracts, IV. e; Evi- 
 dence, XI. o. 
 
 L.R.A. Dijr. 20. 
 
 305 
 
 Of Covenant, see Covenant, II. 
 Of Condition in Pardon, see Criminal Law, 
 278-281. 
 
 BREACH OF PROMISE. 
 
 I. In General. 
 
 II. Defenses; What will Excuse Breach. 
 III. Editorial Notes. 
 
 Survivability of Action for, see Abatement 
 
 and Revival, 19. 
 Prematurity of Action for, see Action or 
 
 Suit, 26, 27. 
 Prejudicial Error in Admitting Testimony 
 
 in Suit for, see Appeal and Error, 899. 
 Prejudicial Error in Instruction as to 
 
 Amount of Damages, see Appeal and 
 
 Error, 1041. 
 Attachment in Suit for, see Attachment, 8, 
 
 and also infra, III. 1. 
 
 Agreement to Marry after Death of Di- 
 vorced Wife, see Contracts, 101, and 
 
 also infra, III. 1. 
 Oral Contract to Marry, see Contracts, 156, 
 
 157. 
 Exemplary Damages for, see Damages, 40, 
 
 41. 
 Measure qf Damages for, see Damages, 255- 
 
 257, and also infra, III. 1. 
 Aggravation of Damages for, see Damages, 
 
 668. 
 Evidence in Action for, see Evidence, 943, 
 
 2096. 
 Libelous Charge that Suit is Threatened, 
 
 see Libel and Slander, 27. 
 Contradiction of Witness on Trial for, see 
 
 Witnesses, 166. 
 
 I. In General. 
 For Editorial Notes, see infra, m. 2. 
 
 1. An agreement to marry is not void 
 merely because its performance is intend- 
 ed to depend on the happening of a con : 
 tingency. Lewis v. Tapman, 90 Md. 294, 45 
 Atl. 459, 47: 385 
 
 2. Upon failure of one of the parties to a 
 marriage contract to perform his agree- 
 ment at the time fixed for the ceremony, 
 no reasonable excuse existing for such fail- 
 ure, the other party may rescind the con- 
 tract, and maintain an action for damages. 
 Waneck v. Kratky, 69 Neb. 770, 96 N. W. 
 651, 66: 798 
 
 3. The parties to a marriage contract hav- 
 ing expressly agreeu that the ceremony 
 shall be celebrated in accordance with the 
 rules and customs of a particular religion 
 and church, such rules and customs become 
 a part of the contract, and binding upon 
 the parties. Id. 
 What constitutes a breach. 
 
 4. A breach of a man's promise to marry 
 a woman after his former wife, from whom 
 he is divorced, is dead, is made by his mar- 
 rying another woman during the life of the
 
 306 
 
 BREACH OF PROMISE, II. III. 
 
 divorced wife, notwithstanding the fact that 
 there is a possibility that upon her death 
 he may be able and ready to perform his 
 promise. Brown v. Odill, 104 Tenn. 250, 56 
 S. W. 840, 52: 660 
 
 II. Defenses; What will Excuse Breach. 
 
 For Editorial Notes, see infra, III. 
 
 5. Kinship of the parties is no defense to 
 an action for breach of promise of marriage, 
 when it is not within the degrees within 
 which marriage is made unlawful by stat- 
 ute. Albertz v. Albertz, 78 Wis. 72, 47 N. 
 W. 95, 10: 584 
 
 6. The abusive conduct of plaintiff toward 
 the mother and sister of the defendant in 
 an action for breach of promise of- mar- 
 riage, and her lewd and immodest conduct 
 with another man, are matters for mitiga- 
 tion of damages only. Id. 
 
 7. Breach of a contract to marry a wo- 
 man is not justified as a matter of law, in 
 the absence of fraud, by the fact that she 
 has negro blood in her veins, or has mer- 
 cenary motives, or is wanting in affection, 
 or that there is an incompatibility result- 
 ing from disparity of age, difference in 
 character, disposition, and other causes. 
 Van Houten v. Morse, 162 Mass. 414, 38 N. 
 E. 705, 26: 430 
 Sickness or disease of party breaking prom- 
 ise. 
 
 For Editorial Notes, see infra, III. 1. 
 
 8. To excuse the breach of a promise of 
 marriage on the ground of illness, defend- 
 ant must prove that he has such a disease 
 or complication of diseases as renders the 
 making of the marriage contract and the 
 consummation of the marriage by marital 
 intercourse impossible. Smith v. Compton, 
 (N. J. Err. & App.) 67 N. J. L. 548, 52 Atl. 
 386, 58: 480 
 
 9. A man is excused from breach of a 
 contract of marriage when, after it was 
 made, he has, without fault on his part, 
 developed a grave malady of such a char- 
 acter that marriage would endanger his 
 life or health. Sanders v. Coleman, 97 Va. 
 690, 34 S. E. 621, 47: 581 
 
 10. A man engaged to marry, in whom 
 there subsequently appears, without any in- 
 tervening fault on his part, a loathsome 
 venereal and contagious disease, which ren 
 ders it unsafe or improper for him to marry, 
 is entitled to postpone the marriage until he 
 is cured if the disease is of a temporary 
 character, and to refuse to carry out the 
 contract if the disease is permanent. Tram- 
 mell v. Vaughan, 158 Mo. 214, 59 S. W. 79, 
 
 51: 854 
 
 11. A man is justified in breaking an 
 engagement to marry if he is afflinted with 
 an incurable disease, such as syphilis, which 
 has reappeared without any new fault on 
 his part, after making the engagement 
 where he believed himself at that time to be 
 entirely cured and in sound health. Shackle- 
 ford v. Hamilton. 93 Ky. 80, 19 S. W. 5, 
 
 15:531 
 
 Traud of other party. 
 
 ?or Editorial Notes, see infra, III. 3. 
 
 12. A woman is bound not to suppress or 
 :onceal any material facts necessary to 
 ;he correct understanding of the facts which 
 she states to a prospective husband concern- 
 
 ng her history or life, parentage or fam- 
 ly, or her former or present position, if 
 without inquiry she undertakes to state 
 such facts, although mere silence on her 
 jart might not constitute fraud. Van Hou- 
 ;en v. Morse, 162 Mass. 414, 38 N. E. 705, 
 
 26: 430 
 
 13. A woman's suppression of the fact 
 that a divorce had been obtained from her 
 on account of her vicious disposition and 
 cruel conduct, when stating that she had 
 obtained a divorce from her husband for his 
 cruelty, constitutes a fraudulent conceal- 
 ment and misrepresentation which will jus- 
 tify a breach of a contract to marry her. 
 
 Id. 
 
 in. Editorial Notes. 
 
 i. Generally. 
 
 Validity of agreement to marry on death 
 or divorce of present hus- 
 band or wife. 52: 660. 
 
 Disease as a defense for breach of promise 
 to marry. 15: 531. 
 
 Nature of action for. 10: 584.* 
 
 Abatement of suit for. 3: 213.* 
 
 Right to attachment or order of arrest in 
 breach of promise case. 
 59: 954. 
 
 Constitutionality of imprisonment for debt 
 arising from breach of 
 promise. 34: 639. 
 
 Lewdness of woman, known at time of 
 promise, as a defense. 10: 
 584.* 
 
 Evidence in action. 10:584.* 
 
 Rule of damages. 10: 585.* 
 
 Seduction as an element of damage. 
 10: 585.* 
 
 2. What constitutes. 
 
 Refusal or failure to keep agreement for 
 marriage at a specified 
 time or place as breach 
 of the marriage contract. 
 66: 798. 
 
 Anticipatory refusal. 66: 798. 
 Postponement of ceremony. 66: 798. 
 Right to postpone. 66: 798. 
 Effect of postponement. 66: 799. 
 Failure to fulfil agreement at appoint- 
 ed time or place. 66: 799. 
 Acts subsequent to time agreed upon 
 as constituting refusal./ 
 66: 801. 
 When cause of action accrues. 66: 801. 
 
 3. Effect of fraudulent concealment to 
 
 avoid promise of marriage. 
 Generally. 26: 430. 
 Want of chastity. 26: 431. 
 Physical incapacity. 26: 431. 
 Bad character. 26: 431. 
 
 Personal life and traits and family affairs. 
 26: 432.
 
 BREACH OF THE PEACE BRIDGE COMMITTEE. 
 
 807 
 
 Mitigation of damages. 26: 432. 
 Necessity of alleging fraud. 26: 432. 
 
 BREACH OF THE PEACE. 
 
 Arrest for, Without Warrant, see Arrest, 18, 
 25-30. 
 
 Carrying Weapons as, see Carrying Weap- 
 ons, 2. 
 
 By Assaulting Judge, see Marshal. 
 
 Being intoxicated and yelling on the 
 public streets of a village in such a man- 
 ner as to disturb the good order and tran- 
 quillity is a breach of the peace. People v. 
 Johnson, 86 Mich. 175, 48 N. W. 870, 13: 163 
 
 Editorial Notes. , 
 
 Defined; examples of. 13: 163.* 
 
 Homicide in attempting to prevent. 67: 535. 
 
 Right to arrest for, without warrant. 8: 
 
 530.* 
 Liability of officer for making an arrest 
 
 for, without warrant. 51: 
 
 206. 
 
 BREAD. 
 
 Order to Fill Wells on Premises Where 
 Made, see Bakery. 
 
 Ordinance as to Weight of Loaves, see Con- 
 stitutional Law, 1073. 
 
 Editorial Notes. 
 Legislative power to fix price of. 33: 182 
 
 BREAD AND WATER. 
 
 Editorial Notes. 
 
 Keeping prisoner on, as cruel or unusual 
 punishment. 35: 569. 
 
 BREEDING 
 
 Of Bloodhounds, Evidence as to, see Evi- 
 dence, 2189. 
 
 BREWERS. 
 
 Combination of, see Conspiracy, 143. 
 
 BREWING COMPANY. 
 
 As Surety on Appeal Bond, see Corpora- 
 tions, 138. 
 
 BRIBERY. 
 
 Validity of Contract to Procure Official Ac- 
 tion, see Contracts, III. c, 4. 
 
 In Election as to County Seat, see Counties, 
 21. 
 
 Solicitation of Bribe, see Criminal Law, 42, 
 43. 
 
 Acquittal Procured by, as a Bar, see Crim- 
 inal Law, 147. 
 
 Disfranchisement for, see Elections, 274. 
 
 What Constitutes, see Elections, 277, 278. 
 
 Evidence of, see Evidence, 1676-1678, 1681, 
 2139. 
 
 Indictment for, see Indictment, etc., 35, 42, 
 66, 84, 133, 134. 
 
 Removal of Member of Legislature for, see 
 Legislature, 25. 
 
 Removal from Office for, see Officers, 135. 
 
 Vote Buyer's Right to Reward, see Re- 
 ward, 14. 
 
 Of Witness, as Admission of Weakness in 
 Case, see Evidence, 1906. 
 
 Of Witness, Setting aside Relief from 
 Judgment for, see Judgment, 429. 
 
 1. Any agreement by which a person un- 
 dertook to thwart the ends of justice by us- 
 ing his official position in procuring the re- 
 lease of intoxicating liquors in his posses- 
 sion and under his control as an officer will 
 subject him to the penalties of the crime 
 of receiving a bribe. State v. Potts, 78 
 Iowa, 656, 43 N. W. 534, 5: 814 
 
 2. The question of the legality or ille- 
 gality of the proposed ordinance need not be 
 considered in determining the guilt of a 
 member of a municipal assembly who is al- 
 leged to have agreed to sell his vote to 
 secure its passage. State v. Lehman, 182 
 Mo. 424. 81 S. W. 1118, 66: 490 
 
 Editorial Notes. 
 
 See also Contracts, Vlil. 32. 
 
 By gift to public; for street improvements. 
 
 14: 62. 
 By bonus to secure location of county-seat. 
 
 15:501. 
 
 Of voters at elections. 5: 217.* 
 Of public officer. 5: 814.* 
 Solicitation to. 25: 439. 
 Instigation to. 25: 345. 
 
 BRICK KILN. 
 
 As Nuisance, see Nuisances, 37. 
 
 BRICK YARD. 
 
 What Covered by Mortgage in Lease of, sec 
 Chattel Mortgage, 25. 
 
 BRIDGE COMMITTEE. 
 
 As Office, see Officers, 29.
 
 308 
 
 BRIDGE COMPANY BRIDGES, I. 
 
 BRIDGE COMPANY. 
 
 As Common Carrier, see Carriers, 9-13. 
 
 Right to Compel Business with, see Com- 
 merce, 50. 
 
 Right to Exercise Power of Eminent Do- 
 main in Other State, see Eminent Do- 
 main, 12-15. 
 
 Taxation of, see Taxes, 197. 
 
 BRIDGES. 
 
 I. In General. 
 II. Defects; Injuries on. 
 
 III. Toll Bridges. 
 
 IV. Editorial Notes. 
 
 Admiralty Jurisdiction Over, see Admiral- 
 ty, 3. 
 
 Necessity of Appropriation for, see Appro- 
 priations, 3, 4. 
 
 Riding Bicycles on, see Bicycles, 9-11; Evi- 
 dence, 204. 
 
 Carrier's Liability for Injury to Passenger 
 by Collapse of, see Carriers, 236, 237. 
 
 Excuse for Delay in Completing, see Con- 
 tracts, 678. 
 
 Liability of Contractor for Injury by De- 
 lay in Construction of, see Highways, 
 333. 
 
 Damages for Erection of, in Street, see 
 Damages, 505, 508, 510. 
 
 Damages for Cost of Adjusting to Change 
 in Width of Street, see Damages, 527. 
 
 Destruction of, by Drainage District, see 
 Drains and Sewers, 30. 
 
 Cattle Pass under, see Easements, 87. 
 
 Condemnation for, see Eminent Domain, 87, 
 88. 
 
 Construction of Pier for, as a Taking of 
 Property, see Eminent Domain, 257. 
 
 As New Servitude, see Eminent Domain, 420, 
 425. 
 
 Presumption as to Grant from Use of, see 
 Evidence, 722. 
 
 Over Street or Alley, see Alleys, 3, 4; 
 Courts, 274; Eminent Domain, 337; Es- 
 toppel, 198; Highways, 54, 55, 149-151. 
 
 Temporary Closing of Street while Con- 
 structing, see Highways, 107. 
 
 Liability for Injury by Defective Streets, 
 see* Highways, 213/214, 222. 
 
 Negligence of Gateman at Drawbridge, see 
 Highways, 239. 
 
 Injunction against Building, see Injunction, 
 335, 344. 
 
 License for, over Canal, see License, 21. 
 
 Compelling Repair of, see Mandamus, 103. 
 
 Injury to Railroad Employee by, see Mas- 
 ter and Servant, 91-95, 154-156, 306, 
 470. 
 
 Injury to Employee by Collapse of, see 
 Master and Servant, 130. 
 
 Necessity of Inspecting Material in, see 
 Master and Servant, 219. 
 
 Assumption of Risk as to, see Master and 
 Servant, 328, 329. 
 
 Contributory Negligence of Employee as to, 
 see Master and Servant, 417^19. 
 
 Liability for Negligence of Independent Con- 
 tractor as to, see Master and Servant, 
 700. 
 
 Independent Contractor's Liability for In- 
 juries from Construction of, see Mas- 
 ter and Servant, 723. 
 
 Lien on, see Mechanics' Liens, 38, 67. 
 
 Power of City to Erect, see Municipal Cor- 
 porations, 418. 
 
 Liability of City for Injury from Failure 
 to Open Draw, see Municipal Corpora- 
 tions, 477. 
 
 Extending Highway over Railroad by, see 
 Railroads, 54. 
 
 Over Railroad, see Highways, 197; Railroads, 
 62-67. 
 
 Invitation to Public to Use, see Railroads, 
 110, 113. 
 
 Title of Statute as to, see Statutes, 276. 
 
 Special Legislation as to, see Statutes, 365, 
 366. 
 
 Tax on, see Taxes, 19, 197, 333, 361, 363, 
 and also infra, IV. 2. 
 
 Direction of Verdict in Action for Injury 
 in Constructing, see Trial, 560. 
 
 Obstruction of Navigation by, see Com- 
 merce, 6a, 6b; Courts, 137; Nuisances, 
 98; Waters, 156-158, and also infra, 
 IV. 1, 4. 
 
 I. In General. 
 
 1. A statute authorizing a city to build 
 bridges within its limits does not neces- 
 sarily revoke authority given to the county 
 by general statute, without restriction as 
 to locality, to build a bridge within those 
 limits. As there may be bridges serving 
 only a city purpose, so there may be 
 others demanded in the same territory for 
 county purposes; and where the circum- 
 stances create this demand, and the bridge 
 is for the use and benefit of the people 
 of the county at large or of some consider- 
 able portion of them, and intended and 
 needed as well for those outside as for those 
 inside the city, the authority of the county 
 to build it is not annulled by the local city 
 statute. Skinner v. Henderson, 26 Fla. 121, 
 7 So. 464, 8: 55 
 Management and control of. 
 
 2. The transfer of the management and 
 control of public bridges and ferries may be 
 made by the legislature to any government 
 agency, such as a county court, although 
 the bridges and ferries belong to a city. 
 Simon v. Northup, 27 Or. 487, 40 Pac. 560, 
 
 30: 171 
 Authorizing removal of. 
 
 3. The legislature may authorize a drain- 
 age district to remove a county bridge 
 across a stream which it is necessary to 
 widen for drainage purposes, and require 
 the county to replace it at its own expense. 
 Heffner v. Cass & Morgan Counties, 193 111. 
 439, 62 N. E. 201, 58: 353 
 Approaches. 
 
 Compensation for Property Used for, see 
 Eminent Domain, 393.
 
 BRIDGES, II. 
 
 309 
 
 AB New Servitude, see Eminent Domain, 
 421-426. 
 
 Establishment of Street Grade by Provi- 
 sion as to, see Highways, 199. 
 
 Lack of Barriers to, see Highways, 267, 
 268. 
 
 Injunction against Unauthorized Approach, 
 see Injunction, 55. 
 
 Retrospective Statute as to, see Statutes, 
 544. 
 
 Question for Jury as to, see Trial, 230. 
 
 See also infra, 20, 32. 
 
 For Editorial Notes, see infra, IV. 1. 
 
 4. A trestle or approach to a railroad 
 drawbridge is not a part of the bridge with- 
 in the meaning of a statute and a rule of 
 the company limiting the speed of trains 
 "running on or across any drawbridge." 
 Savannah, F. & W. R. Co. v. Daniels, 90 Ga. 
 608, 17 S. E. 647, , 20: 416 
 As nuisance. 
 
 Conclusiveness of Decision of Congress as 
 to Obstruction of Navigation by, see 
 Courts, 137. 
 
 For Editorial Notes, see infra, IV. 4. 
 
 5. A bridge erected under lawful author- 
 ity cannot be regarded as a nuisance, so as 
 to render those responsible for its construc- 
 tion liable for injuries caused to adjoining 
 land as trespassers or tort leasers. Salliotte 
 v. King Bridge Co. 58 C. C. A. 466, 122 Fed. 
 378, 65: 620 
 Cost of constructing and maintaining. 
 Who May Complain of Invalid Provision 
 
 as to, see Action or Suit, 62. 
 
 Submitting to Arbitration, Damages from 
 Failure to Complete in Time, see Arbi- 
 tration, 4. 
 
 Vested Rights as to, see Constitutional Law, 
 1132. 
 
 Due Process as to, see Constitutional Law, 
 673. 
 
 Town's Vested Right to Contribution for, 
 see Constitutional Law, 158. 
 
 Letting of Contract for Construction of, see 
 Contracts, 853. 
 
 Contract by County to Build, see Counties, 
 70. 
 
 Cost of Replacing County Bridge, see Drains 
 and Sewers, 29. 
 
 Special Election as to Aiding in Construc- 
 tion, see Elections, 104. 
 
 Estoppel to Deny Validity of Contract to 
 Maintain, see Estoppel, 18. 
 
 Parties to Proceeding to Compel Payment 
 of, see Mandamus, 175. 
 
 Legislative Power to Require City to Con- 
 tract Debt for, see Municipal Corpora- 
 tions, 322. 
 
 Apportionment Between City and Railroad 
 Company, see Municipal Corporations, 
 283. 
 
 Special Legislation as to Bond for, see 
 Statutes, 365, 366. 
 
 Assessment for, see Public Improvements, 
 69. 
 
 Tax for, see Counties, 61-64; Municipal 
 Corporations, 571; Taxes, 85. 
 
 6. The legislature may require a town 
 to contribute a portion of the cost of main- 
 taining a highway or bridge wholly out- 
 side of its territorial bounds, but which 
 
 specially benefits the town. State ex rel. 
 Bulkeley v. Williams, 68 Conn. 131, 35 Atl. 
 24, 421, 48: 465 
 
 7. The legislature may reconsider an ap- 
 portionment of the expense of a highway 
 and bridge over a river between a city and 
 certain towns, although its former appor- 
 tionment was based on a determination 
 by judicial proceeding. Id. 
 
 8. A town tax for moneys to be paid over 
 to the treasurer of a bridge or highway dis- 
 trict in which the town is included, for 
 district expenditures, may be required by 
 the legislature. Id. 
 
 9. Failure to require any estimate of the 
 amount needed for the ensuing year to be 
 submitted to a town by a bridge district 
 which includes it, before the time for lay- 
 ing a tax, does not make void a statute 
 charging the town with a portion of the 
 expenses of the district, on the ground that 
 it does not provide the necessary means. 
 
 Id. 
 
 II. Defects; Injuries on. 
 
 Evidence as to Defects, see Evidence, 1943, 
 1988, 1989. 
 
 Lack of Barriers, see Highways, 267, 268. 
 
 Proximate Cause of Injury by, see Proxi- 
 mate Cause, 51, 109, 110. 
 
 For Editorial Notes, see infra, IV. 3. 
 
 Liability of city, county, or town. 
 Question for Jury as to, see Trial, 344. 
 See also Highways, 210. 
 For Editorial Notes, see infra, IV. 3. 
 
 10. A city owes to the public the duty of 
 keeping its bridges in a safe condition for 
 public use, and is liable for special inju- 
 ries resulting from neglect to perform this 
 duty, after reasonable notice of the defect- 
 ive condition of a structure. Buechner 
 v. New Orleans, 112 La. 599, 36 So. 603, 
 
 66: 334 
 
 11. A county is not liable for the negli- 
 gent exercise of the duty of maintaining 
 bridges, imposed on it by the state, since 
 it derives no special advantage from it in 
 its corporate capacity. Markev v. Queens 
 County, 154 N. Y. 675, 49 N. B. 71, 39: 46 
 
 12. An action to recover damages caused 
 by the negligence of the county commis- 
 sioners in failing to keep a bridge in repair 
 is properly brought under Ohio Rev. Stat. 
 845, as amended April 13, 1894 (91 Ohio 
 Laws, p. 142), against the board in its of- 
 ficial capacity, and the county is bound for 
 the payment of the judgment recovered. 
 Hardin County v. Coffman, 60 Ohio St. 527, 
 54 N. E. 1054, 48: 455 
 
 13. The duty of commissioners to keep 
 bridges under their control in a safe con- 
 dition extends to the use of the bridges 
 for all usual and ordinary modes of travel 
 and transportation of property over them, 
 but does not require the commissioners to 
 anticipate an unusual and extraordinary 
 use, subjecting the bridge to an unusual 
 and extraordinary burden involving pecu- 
 liar danger. Id.
 
 310 
 
 BRIDGES, II. 
 
 14. County officers are not negligent in 
 accepting a bridge containing defective tim- 
 bers which an expert employed by them to 
 examine it honestly believes sufficient. Ver- 
 million County v. Chipps, 131 Ind. 56, 29 N. 
 E 1066. 16:228 
 
 15. A mistake in respect to the safety of 
 a bridge made by a competent person em- 
 ployed by the proper county officers to ex- 
 amine it and put it in good repair will not 
 make the county liable if it remains un- 
 safe. Id. 
 
 16. A county is not liable by implication 
 for damages caused by negligence of its 
 officers in respect to keeping bridges in re- 
 pair, where the county commissioners have 
 no power to appropriate county funds for 
 that purpose, except when and so far as the 
 road district is unable to make the repairs, 
 and there is no statute giving a right of ac- 
 tion against the county for its negligence 
 or that of its commissioners, or authorizing 
 the use of county funds to pay damages 
 caused thereby. Jasper Countv v. Allman, 
 142 Ind. 573, 42 N. E. 206, 39: 58 
 
 17. All of the towns whose duty it is to 
 keep a bridge in repair are liable as for an 
 insufficiency of the bridge, for an injury 
 occurring at a space between a point des- 
 ignated by the order of the court as the 
 end of the bridge and the end as built, 
 which space was filled in and the filling 
 maintained by one of the towns at its own 
 expense. Tyler v. Williston, 62 Vt. 269, 
 20 Atl. 304, ' 9: 338 
 
 18. Failure of township officers to know 
 of a defect in a bridge which an examina- 
 tion by one intending to use it did not dis- 
 close is not negligence. Clulow v. McClel- 
 land, 151 Pa. 583, 25 Atl. 147, 17: 650 
 
 19. A statute imposing upon the county 
 commissioners the duty to build all high- 
 way bridges of a certain class does not re- 
 lieve the town in which one of them is lo- 
 cated from damages for injuries resulting 
 from the bridge being out of repair, where 
 another statute gives cities and towns ex- 
 clusive, control over the bridges within their 
 respective limits. Wabash v. Carver, 129 
 Ind. 552, 29 N. E. 25, 13: 851 
 
 20. Failure to repair the planking on the 
 abutment of a bridge which rests upon a 
 dam, in consequence of which water washes 
 away part of the approach behind the abut- 
 ment and damages a mill, gives the owner 
 no right of action against the countv, un- 
 der N. J. act 1860 (N. J. Rev. p. 86," 9), 
 which makes a county or town charged 
 with the maintenance of a bridge liable to 
 anyone who is injured in person or property 
 by reason of neglect to repair it. Such lia- 
 bility does not extend beyond the duty to 
 keep the bridge safe for use as a bridge. 
 Jernee v. Monmouth County Bd. of Chosen 
 Freeholders (N. J. Err. & App.) 52 N. J. L. 
 553. 21 Atl. 291, 11: 416 
 Liability of railroad company. 
 
 21. For injuries caused by defects in a 
 highway bridge which a railroad company is 
 bound to maintain over its tracks, the rail- 
 road company cannot escape liability on the 
 ground that an action would lie for the in- 
 
 jury against the township. Gates v. Penn- 
 sylvania R. Co. 150 Pa. 50, 24 Atl. 638, 
 
 16: 554 
 Notice of defects. 
 
 22. Constructive notice which will ren- 
 der a city liable for injury caused by a de- 
 fect in a bridge under Mich. Pub. Acts 
 1887, p. 345, 2, which creates a right of 
 action against a city for such a defect only 
 when it has knowledge or notice thereof, 
 does not arise from the mere existence of 
 such a defect for two or three dava only. 
 Thomas v. Flint, 123 Mich. 10, 81 N.'W. 936, 
 
 47 : 499 
 
 23. Notice to a road overseer of the de- 
 fective condition of a bridge is notice to a 
 town under the Michigan statutes defining 
 the duties of such overseer. Moore v. Ken- 
 ockee Twp. 75 Mich. 332. 42 N. W. 944, 949, 
 
 4: 555 
 
 24. Under Vt. Acts 1882, No. 13, 4, re- 
 quiring notice to the town or towns in 
 which a bridge is situated, notice of defects 
 to the towns in which the bridge is situated 
 is constructive notice to all of the towns 
 by which it is required to be maintained 
 and kept in repair. Tyler v. Williston, 62 
 Vt. 269, 20 Atl. 304, ' 9: 338 
 
 25. Although township officers receive no 
 actual notice of the unsafety of a bridge 
 maintained by the township, yet if, by the 
 exercise of reasonable care, they might have 
 known of such condition, or if they had ac- 
 tual knowledge through any other means, a 
 statutory requirement as to notice before 
 bringing suit against the township is sat- 
 isfied. Moore v. Kenockee Twp. 75 Mich. 
 332, 42 N. W. 944, 949, 4: 555 
 Contributory negligence. 
 
 Allegation of Freedom from, see Pleading, 
 
 356. 
 
 Question for Jury as to, see Trial, 359, 360. 
 See also Railroads, 262. 
 
 26. A person is not chargeable with con- 
 tributory negligence in assuming that a 
 bridge is in safe condition for travel over it 
 in my usual and ordinary way. Hardin 
 Countv v. Coffman. 60 Ohio St. 527, 54 N. E. 
 1054, ' 48: 455 
 
 27. One who subjects a bridge to an un- 
 usual and extraordinary load or strain can- 
 not recover damages for an injury which 
 he receives in consequence. Vermillion 
 County v. Chipps, 131 Ind. 56, 29 N. E. 1066, 
 
 16: 228 
 
 28. A person who chooses to subject a 
 bridge to some extraordinary burden by 
 placing upon it some unusual weight, and 
 causing it to be moved in an unusual man- 
 ner, takes upon himself the risk of any in- 
 jury thereby sustained, although the bridge 
 was defective and out of repair, and he was 
 not aware of its condition, and did not have 
 good reason to believe that it was insuf- 
 ficient to sustain the load. Hardin County 
 v. Coffman, 60 Ohio St. 527, 54 N. E. 1054, 
 
 48: 455 
 
 29. Attempting to cross a bridge on a 
 public highway which is in constant use, 
 with a traction steam engine, water tank, 
 and threshing machine, is not per se negli-
 
 BRIDGES. III. IV. 
 
 811 
 
 gence as a matter of law. Wabash v. Car- 
 ver, 129 Ind. 552, 29 N. E. 25, 13: 851 
 30. A traveler's inability to read the 
 English language will not relieve him from 
 the charge of contributory negligence in 
 attempting to cross a bridge condemned as 
 unsafe, on which warning notices are con- 
 spicuously posted in that language. Weirs 
 v. Jones " County, 86 Iowa, 625, 53 N. W. 
 321, 17:445 
 
 III. Toll Bridges. 
 
 Traffic of Carrier on, see Carriers, 9-13. 
 
 Compliance with Contracts to Sell Tickets 
 for, see Contracts, 699. 
 
 Amount of Recovery for Taking, see Dam- 
 ages, 465. 
 
 Condemnation for, see Eminent ^Domain, 88. 
 
 What Constitutes a Taking of, s^e Eminent 
 Domain, 226, 227. 
 
 Approach for, as Additional Servitude, see 
 Eminent Domain, 425. 
 
 Evidence as to Value of, see Evidence, 1842, 
 1843. 
 
 Injunction against Unlawful Use by Street 
 Railway, see Injunction, 407. 
 
 Ordinance as to Tickets, see Municipal Cor- 
 porations, 242. 
 
 Duty Toward Person Using, see Railroads, 
 218. 
 
 Contributory Negligence on, see Railroads, 
 262. 
 
 Taxation of, see Taxes, 19. 
 
 Operating Railroad Bridge as, see Trial, 563. 
 
 For Editorial Notes, see infra, IV. 5. 
 
 31. The right to exact tolls on a public 
 bridge does not carry with it the power to 
 prohibit such use of it by the public as is 
 reasonably consistent with its public pur- 
 poses. Pittsburgh & W. E. Pass. R. Co. v. 
 Point Bridge Co. 165 Pa. 37, 30 Atl. 511, 
 
 26: 323 
 
 Authority to construct. 
 . 32. The legislature may lawfully grant 
 franchises to erect a toll bridge which will 
 include the right to provide proper and suit- 
 able approaches and to lay rails thereon for 
 the accommodation of railroad traffic for 
 the benefit of which the bridge is to be 
 erected. Southern I. & M. Bridge Co. v. 
 Stone, 174 Mo. 1, 73 S. W. 453, 63: 301 
 
 33. Power to construct railroad toll 
 bridges is not destroyed by the amendment 
 of a statute providing for the formation of 
 corporations to construct bridges by strik- 
 ing out a provision requiring the articles of 
 incorporation to state whether the bridge 
 is to be for railroad or other purposes, and 
 remitting incorporators to the general pro- 
 visions of the statute in forming their 
 articles of incorporation without mention- 
 ing railroad purposes as one for which a 
 bridge may be constructed. Id. 
 Right of electric or street cars to use. 
 
 See also infra, 36; Street Railways, 30. 
 
 34. An electric railway company has the 
 right to cross a public toll bridge on pay- 
 ment of adequate toll, where the statute 
 gives it the right to use "any street or high- 
 
 way." Pittsburgh & W. E. Pass. R. Co. v. 
 Point Bridge Co. 165 Pa. 37, 30 Atl. 511, 
 
 26: 323 
 
 35. A toll bridge is dedicated to use by 
 street cars as well as to other modes of 
 travel, so that the bridge company cannot 
 prevent such use although it was not 
 obliged to allow it originally, where the 
 bridge company has laid the street-car 
 track over it, and permitted and invited its 
 use by such cars for more than twenty-five 
 years, during which large expenditures of 
 money have been made in building street 
 railways. Covington & C. Bridge Co. v. 
 South Covington & C. Street R. Co. 93 Ky. 
 136, 19 S. W. 403, 15: 828 
 Amount of toll. 
 
 For Editorial Notes, see infra, IV. 5. 
 
 36. A toll of 2 cents for each passenger 
 crossing a bridge in a street car is not un- 
 reasonable or an unjust discrimination as 
 compared with a charge of 20 cents for each 
 two-horse vehicle. Covington & C. Bridge 
 Co. v. South Covington & C. Street R. Co. 
 93 Ky. 136, 19 S. W. 403, 15: 828 
 Expiration of franchise. 
 
 37. Expiration of a franchise to take 
 tolls for the use of a bridge vests the free 
 use of the bridge in the people as a public 
 highway. Brand v. Multnomah County, 38 
 Or. 79, 60 Pac. 390, 62 Pac. 209, 50: 289 
 
 IV. Editorial Notes. 
 
 i. Generally. 
 
 Obstruction of waters of stream by. 59: 
 862. 
 
 Right of foreign corporation as to. 24:313. 
 
 Liability of county for injury to real prop- 
 erty from construction 
 and operation of bridge. 
 39: 65. 
 
 Delegation of municipal power as to. 20: 
 726. 
 
 Municipal control of, as a nuisance. 29: 
 681. 
 
 Liability of street railway company for re- 
 flooring. 46: 199. 
 
 Approaches of a bridge as part of it. 20: 
 416. 
 
 Presumption as to statutory authority to 
 commit nuisance by erec- 
 tion of bridge. 70: 584. 
 
 2. Taxation. 
 
 Bridges as real property for purposes of. 
 15: 298. 
 
 Jurisdiction for purpose of, over bridge 
 spanning boundary of 
 state or its divisions. 
 29: 69. 
 
 Taxation of franchise of bridge company 
 whose structure spans a 
 navigable stream between 
 two states. 57: 56. 
 
 3. Duty and liability with respect to. 
 
 Negligence in respect to; liability for in- 
 juries caused by defects 
 of; extraordinary use. 
 13* 851 * 
 
 Notice of defect to fix liability. 13: 851.'
 
 812 
 
 BRIEFS; BROKERS, I 
 
 Liability for injuries from fall of. 13: 852.* 
 Liability of municipal corporation for inju- 
 ries from defective bridges. 
 5: 253;* 13: 851.* 
 
 Liability of counties for torts and negli- 
 gence as to. 39: 33. 
 
 Sufficiency of general allegations of negli- 
 gence as to. 59: 252. 
 4. Over navigable waters. 
 Power of Congress to legalize. 2 : 540.* 
 Constructed under state authority. 2: 541.* 
 Railroad bridges over navigable streams. 
 
 2: 542.* 
 
 Jurisdiction of United States circuit court 
 with respect to. 2: 541.* 
 Removal of suit with respect to. 2:541.* 
 Power of state as to. 12: 675.* 
 As nuisance; when constructed under legis- 
 lative authority. 59: 64. 
 5. Toll bridges. 
 Rights and duties of toll-bridge proprietors. 
 
 58: 155. 
 
 Creation of rights. 58: 155. 
 Rights of abutting owners. 58: 157. 
 Place and method of construction. 58 
 
 159. 
 
 In general. 58: 159. 
 Imposition of additional duties. 
 
 58: 159. 
 Interference with navigation. 58: 
 
 160. 
 
 Injury to rivals. 58: 161. 
 Use of bridge. 58: 161. 
 Duty as to maintenance of bridge. 58: 
 
 162. 
 Tolls. 58: 163. 
 
 Conditions to right to take. 58: 
 
 163. 
 Legislative interference with. 58: 
 
 164. 
 
 In general. 58: 164. 
 By authorizing competition. 58: 
 
 164. 
 
 Validity of, and remedy for, com- 
 petition. 58: 167. 
 Remission, evasion, and enforce- 
 ment of. 58: 167. 
 
 Remedy for injury to bridge. 58: 168. 
 Taxation. 58: 168. 
 Termination of franchise. 58: 169. 
 Taking of toll bridge by eminent domain. 
 
 13: 432.'* 
 Necessity of franchise for taking tolls on. 
 
 37: 715. 
 Legislative regulation of rates of. 33: 181. 
 
 BRIEFS. 
 On Appeal, see Appeal and Error, IV. r. 
 
 BROKERS. 
 
 I. Stock Brokers. 
 II. Real Estate Brokers. 
 
 a. Liability of.. 
 
 b. Compensation. 
 
 1. In General. 
 
 2. Failure, to Complete Transac- 
 
 tion. 
 III. Editorial Notes. 
 
 As Bona Fide Purchasers of Drafts of Bank 
 from its President, see Bills and Notes, 
 256. 
 
 By What Law Legality of Transaction is 
 Determined, see Conflict of Laws, 36. 
 
 Statute of Frauds as to Contract with, see 
 Contracts, 130. 
 
 Custom of, see Custom, 19, 25; Evidence, 
 1089-1091, 1093. 
 
 Interest on Advances by, see Interest, 20. 
 
 License of, see License, 41, 71-74. 
 
 Authority to Employ Subagent, see Prin- 
 cipal and Agent, 29. 
 
 Usury in Loans by, see Usury, 28, 29. 
 
 As to Factors, see Factors. 
 
 Insurance Broker, see Insurance, I. d. 
 
 I. Stock Brokers. 
 
 First Raising on Appeal Question as to 
 Form of Action against, see Appeal and 
 Error, 604. 
 
 Right to Recover Money Paid for Princi- 
 pal, see Assumpsit, 8. 
 
 Right to Commissions on Illegal Contracts, 
 see Contracts, 625. 
 
 Parol Evidence as to Custom of, see Evi- 
 dence, 1093. 
 
 License of, see License, 73, 74. 
 
 Conversion of Stolen Stock by, see Trover, 
 10. 
 
 Liability of Broker Selling Stocks for Trus- 
 tee, see Trusts, 214. 
 
 For Editorial Notes, see infra, III. 1. 
 
 1. A customer is not precluded from re- 
 covering upon his brokers' agreement that 
 if he shall be dissatisfied with bonds which 
 they shall pruchase for him they will take 
 them off his hands at what they cost him, 
 by delay in returning the bonds to the 
 brokers and demanding the price paid, where 
 he retains them upon the advice of one of 
 the brokers that the bonds are good, and 
 will ultimately advance in the market. 
 Johnston v. Trask, 116 N. Y. 136, 22 N. E. 
 377, 5: 630 
 Margins; claims to stock. 
 Speculations in Cotton Futures by Savings 
 
 Bank, see Banks, 346-348. 
 
 Validity of Contract, for Sales on Margin, 
 see Contracts, III. d. 
 
 Jurisdiction of Suit to Recover Margins, 
 see Equity, 23. 
 
 Enjoining Withdrawal of Margins, see 
 Equity, 74; Injunction, 84. 
 
 Presumption as to Claim on Stock, see 
 Evidence, 709. 
 
 Sufficiency of Proof of Intent Not to Re- 
 ceive Stock Certificates, see Evi- 
 dence, 2287. 
 
 Agreement by Broker to Repurchase Stock, 
 see Partnership, 24. 
 
 Pledge of Stock by, see Pledge and Collat- 
 eral Security, 19. 
 
 Setting Off Amount Paid to Agent, see 
 Set-Off and Counterclaim, 4. 
 
 2. It is not the duty of a broker who is 
 entitled to have a margin supplied by his
 
 BROKERS, II. a, b, 1. 
 
 313 
 
 principal on the sale of corn, to buy in the 
 corn within a reasonable time after the 
 principal's refusal to supply the margin, 
 where such refusal is not absolute, but ac- 
 companied by a promise to pay the losses 
 when differences were settled, and not be- 
 fore. Perin v. Parker, 126 111. 201, 18 N. E. 
 747, 2: 336 
 
 3. Under the rules of the Board of Trade 
 of Chicago, where a broker sells for future 
 delivery under authority from his princi- 
 pal, the latter is under an implied con- 
 tract to furnish margins when demanded; 
 and if he fails to do so the broker is au- 
 thorized, without waiting for the maturity 
 of the contract, to buy produce to fill his 
 contracts. Id. 
 
 4. The relation of pledgeor and pledgee is 
 created where a broker purchases and carries 
 stocks upon a margin by advancing the bal- 
 ance of the purchase price, and holding the 
 stock as security therefor. Skiff v. Stod- 
 dard, 63 Conn. 198, 26 Atl. 874, 21 : 102 
 
 5. The custom of brokers in a certain 
 market to repledge stocks which they are 
 carrying for customers on a margin gives 
 implied authority for sucn repledge when 
 they are employed to deal in that market. 
 
 Id. 
 
 6. The insolvency of a stockbroker does 
 not deprive a customer of the right to re- 
 deem stocks which the broker is carrying 
 for him on a margin, although the stock 
 has been transferred to the broker on the 
 books of the corporation, provided it is 
 capable of identification. Id. 
 
 7. Stock specifically held by a firm of 
 brokers at the time of their insolvency, for 
 the firm or its members, and not carried for 
 its customers, can be claimed by the as- 
 signee for creditors as against customers 
 for whom the brokers had agreed to carry 
 such stocks. Id. 
 
 8. A block of stock carried by a firm of 
 brokers at the time of their insolvency, for 
 customers on margins, but which is insuf- 
 ficient to meet all the demands of such cus- 
 tomers as pleugeors of the stock, is to be 
 divided pro rata among those customers for 
 whom the firm was holden to carry such 
 stock. Id. 
 
 9. The burden of discharging a pledge of 
 stocks belonging to different persons, made 
 by brokers with implied authority from 
 their customers, from whom the brokers 
 themselves hold it in pledge while carrying 
 it on margins, is to be averaged among all 
 the stocks and securities included in such 
 pledge made by the brokers. Id. 
 
 10. The particular certificates of stock 
 bought by a firm of brokers for a customer 
 or carried for him in fulfilment of his order 
 can be claimed by the customer in case of 
 the broker's insolvency, as against other 
 customers for whom no particular stoclc 
 was held, but for all of whom together, 
 including the brokers themselves, a olock 
 of stocks was held. Id. 
 
 11. There is a sufficient identification of 
 the shares of stock claimed by customers of 
 an insolvent broker, where he carried for 
 them a single block of certain stock, and 
 
 their interests are satisfied by a distribu- 
 tion to each of his proper number of shares. 
 
 Id. 
 Transfer of securities. 
 
 12. A member of a stock exchange, who 
 witnesses the signature of an officer of a 
 corporation to a power of attorney for 
 the transfer of securities belonging to it, 
 and demands their transfer thereon, guar- 
 antees that the officer has authority to 
 execute such power, under a rule of the ex- 
 change thai an indorsement by a member 
 of the exchange on a certificate is consid- 
 ered a guaranty of the correctness of the 
 party in whose name the stock stands, so 
 that he will be liable to make good any loss 
 to persons acting upon the faith of the sig- 
 nature, who are injured by reason of want 
 of authority on the part of the officer to 
 sign the corporate name. Jennie Clarkson 
 Home for Children v. Missouri, K. & T. R. 
 Co. 182 N. Y. 47, 74 N. E. 571, 70: 787 
 
 13. A stockbroker who assists the treas- 
 urer of a corporation owning registered 
 bonds to secure a cancelation of the regis- 
 try and dispose of the bonds in the market, 
 taking possession of them and acting as 
 broker for the purpose of the transfer, 
 which results in misappropriation of the 
 proceeds, is liable to the corporation for 
 their value, notwithstanding he was de- 
 ceived into rendering such assistance by the 
 treasurer's forgeries and misrepresenta- 
 tions. Id. 
 
 . Real-Estate Brokers. 
 
 a. Liability of. 
 
 Discrimination in License of, see Constitu- 
 tional Law, 464. 
 
 Purchase of Land for Syndicate by Mem- 
 bers thereof, see Syndicate, 5, 6. 
 
 See also Principal and Agent, 82, 85, 86. 
 
 14. An agent, employed to exchange real 
 estate for other specified property on spec- 
 ified prices and terms, who makes such ex- 
 change without disclosing to his principal 
 a more advantageous exchange which he 
 learns can be made, is liable to the princi- 
 pal for the damages resulting thereby. 
 Holmes v. Cathcart, 88 Minn. 213, 92 N. W. 
 956, 60: 734 
 
 15. An agent, employed to exchange real 
 estate, who is told by his principal that the 
 amount received on the exchange must in- 
 clude all commissions to be received or 
 claimed by such agent, is not liable to 
 such principal for commissions received 
 from the other party on making the ex- 
 change on the terms and for the prices fixed 
 by the principal. Id. 
 
 b. Compensation. 
 1. In General. 
 
 Proper Remedy for Curing Error in Decree 
 as to, see Appeal and Error, 516.
 
 314 
 
 BROKERS, II. b, 1. 
 
 Right of Unlicensed Broker to Recover for 
 Services, see Contracts, 389-391. 
 
 Evidence in Action for, see Evidence, 1005. 
 
 Allowance of Administrator for, see Ex- 
 ecutors and Administrators, 186. 
 
 Modifying Decree as to, see Judgment, 78. 
 
 Sufficiency of Answer as to, see Pleading, 
 518. 
 
 Liability of Trust Estate for Compensation 
 of, see Trusts, 201, 202. 
 
 Question for Jury as to, see Trial, 245. 
 
 See also supra, 15. 
 
 For Editorial Notes, see infra, III. 
 
 16. A person employing brokers to sell 
 land is not liable to them for commissions, 
 where he was acting for an undisclosed 
 principal, and his agency was disclosed 
 after the brokers had brought persons to 
 accept an option merely, but before a bind- 
 ing agreement was made. Brackenridge v. 
 Claridge, 91 Tex. 527, 44 S. W, 819, 43: 593 
 
 17. The right of a broker to commissions 
 on a contract the signature of which he 
 has procured is not affected by the fact 
 that, as agent for the buyer, he subse- 
 quently seeks to procure from the seller 
 some modification of the terms of sale. 
 Fairlv v. Wappoo Mills, 44 S. C. 227. 22 S. 
 E. 108, 29: 215 
 Acting for both parties; compensation from 
 
 both. 
 Recovering back Payments Made to Broker, 
 
 see Assumpsit, 22. 
 Instructions as to, see Trial, 635. 
 For Editorial Notes, see infra, III. 8 2. 
 
 18. It is against public policy for one to 
 act as broker for both parties, unless that 
 fact is fully communicated to them. Can- 
 nell v. Smith. 142 Pa. 25, 21 Atl. 793, 
 
 12: 395 
 
 19. A broker employed as a mere middle- 
 man, not to negotiate a sale or purchase, 
 but simply to bring two parties together 
 and permit them to make their own bar- 
 gain, may recover an agreed compensation 
 from either or both, though neither may 
 know that compensation is expected from 
 the other. Friar v. Smith, 120 Mich. 411, 
 79 N. W. 633, 46: 229 
 
 20. A broker employed to sell property 
 cannot be at the same time the agent of 
 the purchaser and entitled to commissions 
 from both parties, unless both principals 
 know that he is acting in such dual ca- 
 pacity. Id; 
 
 21. A real-estate broker cannot be re- 
 garded as a middleman entitled to a com- 
 mission from both sides, if he has contract- 
 ed expressly to serve the buyer, and 
 throughout the negotiations endeavors to 
 depress the price and arrange conditions 
 favorable to the buyer. Leathers v. Can- 
 field, 117 Mich. 277, 75 N. W. 612, 45: 33 
 Sufficiency of broker's services. 
 Instructions as to, see Trial, 791. 
 
 For- Editorial Notes, sec infra. Iff. 4, 5. 
 
 22. The concealment of the identity of 
 the purchaser from his principal will not 
 preclude a broker from recovering his com- 
 mission on a sale of land, where it does 
 not appear that thore was anything in the 
 
 facts or circumstances to render that fact 
 of any importance to the seller. Veasey v. 
 Carson, 177 Mass. 117, 58 N. E. 177, 
 
 53: 241 
 
 23. That a broker was not given the ex- 
 clusive sale of property, and that the own- 
 er himself made the sale, will not defeat the 
 broker's right to commissions if he was the 
 procuring cause of sale. Hoadley v. Sav- 
 ings Bank of Danbury, 71 Conn. 599, 42 Atl. 
 667, 44: 321 
 
 24. A broker may be found to be the 
 j procuring cause of sale, where he calls a 
 
 person's attention to a certain piece of prop- 
 erty, and gives him information as to how 
 to obtain admission thereto, although the 
 owner, without the broker's knowledge, sub- 
 sequently takes up the negotiation and 
 completes the sale. Id. 
 
 25. That one who is led to begin negotia- 
 tion for property which he finally purchases 
 through the intervention of a broker had 
 been engaged at some prior time in a boot- 
 less negotiation for the same property, and 
 that he finally completes the sale through 
 secret negotiations with the owner, do not 
 deprive the broker of his right to commis- 
 sions. Id. 
 
 26. After a broker has rendered the serv- 
 ices which make him the procuring cause of 
 sale the owner cannot escape liability by 
 telling him that no commission will be paid 
 in case the property brings only a certain 
 price. Id. 
 
 27. A commission for procuring a person 
 willing to take a lease of property on terms 
 fixed by the owner cannot be recovered on 
 proof of procuring an offer for a lease the 
 terms of which were subsequently accepted 
 and the contract executed through another 
 broker. Cadigan v. Crabtree, 179 Mass. 474, 
 61 N. W. 37, 55: 77 
 
 28. A commission is not earned by a real- 
 estate broker from the owner of property, 
 who leases it to one who has been ap- 
 proached by the broker to take the lease 
 on the terms of a lease which had been pre- 
 pared for another person, on substantially 
 the terms of such lease, where, prior to the 
 revocation of the broker's authority, the 
 intending lessee had not agreed to take the 
 lease on the terms proposed, although the 
 broker informed the owner that the custo- 
 mer "was ready to hire" on the terms pro- 
 posed. Id. 
 Transaction effected without broker's aid. 
 
 29. In case of an agency to sell real estate 
 on commission, the exclusive right to sell 
 not being given, the owner himself has still 
 the right to make a sale independent of the 
 agent, and in such case will not be liable 
 to the agent for commissions unless he sells 
 to a purchaser procured by the agent. Dole 
 v. Sherwood, 41 Minn. 535, 43 N. W. 569, 
 
 5: 720 
 
 30. An exclusive agency to sell merely 
 prohibits the appointment of another 
 agency for the sale of the property, but 
 does not prevent the owner himself from 
 making a sale. Id. 
 Amount of compensation. 
 
 31. Where a real-estate broker who under-
 
 BROKERS, II. b, 2, III. 
 
 315 
 
 takes to sell a house and lot only succeeds 
 in disposing of the house and leasing the 
 lot upon a reserved ground rent, he is en- 
 titled to commissions only on the cash ac- 
 tually received, and not on the value of the 
 whole property, unless the owner contracted 
 to pay more, either expressly or by impli- 
 cation. Blake v. Stump, 73 Md. 160, 20 
 Atl. 788, 10: 103 
 
 2. Failure to Complete Transaction. 
 
 32. A real-estate broker who has obtained 
 an optional contract sanctioned by his em- 
 ployer is entitled to commissions upon the 
 sum paid and forfeited by the purchase, al- 
 though the purchase is not completed. Gil- 
 der v. Davis, 137 N. Y. 504, 33 N. E. 599, 
 
 20: 398 
 
 33. A letter to a broker by Jiis principal 
 after the negotiation of a contract for the 
 sale of land upon which a deposit has been 
 made, to be forfeited in case of the failure 
 of the purchaser to complete the sale, stat- 
 ing the understanding of the writer that 
 there shall be no commission paid for the 
 sale until the final purchase money has been 
 paid, as otherwise he would be granting an 
 option for the amount of such deposit less 
 the total commission on the sale; and a 
 reply by such broker that the commission 
 due on the sale shall not be paid until the 
 final purchase money is paid in, do not 
 defeat the right of the broker to commis- 
 sion on the deposit forfeited upon the pur- 
 chaser's failure to complete the sale. Id. 
 Default of princiipal; revocation of author- 
 ity. 
 
 For Editorial Notes, see infra, III. 3. 
 
 34. A broker through whose efforts a 
 binding contract is made for land between 
 his principal and the owner of the land has 
 earned his commission, notwithstanding 
 the fact that the owner cannot make a good 
 title to the land because of encumbrances 
 not known to the broker, as the remedy of 
 the principal is against the other party to 
 the contract. Roche v. Smith, 176' Mass. 
 595, 58 N. E. 152, 51: 510 
 
 35. That work has been done by a real- 
 estate broker in reliance upon a promise to 
 pay a commission in case a purchaser is 
 found for certain property at a price stated 
 will not prevent the ' revocation of his au- 
 thority, without liability for any compen- 
 sation, at any time before a purchaser is 
 found at the price named. Cadigan v. Crab- 
 tree, 179 Mass. 474, 61 N. E. 37, 55: 77 
 
 35a. No compensation can be recovered 
 by a broker employed to procure offers for 
 real estate upon which no price is fixed, in 
 ase all offers are rejected and his authority 
 is revoked, although he has not been given 
 a reasonable time in which to procure an 
 acceptable offer. Id. 
 
 36. No rights of a real estate broker 
 who has been employed to lease property 
 are infringed by the decision of the prin- 
 cipal not to lease the property, and the 
 withdrawing of authority from the broker 
 after he has produced a customer who is 
 willing to negotiate for the lease. Cadigan 
 
 v. Crabtree, 186 Mass. 7, 70 N. E. 1033, 
 
 66: 982 
 
 37. A real-estate broker is not entitled to 
 a commission, where, after having produced 
 a customer willing to negotiate for the 
 lease which he was employed to effect, the 
 principal in good faith decides not to lease, 
 terminates the negotiation, and discharges 
 the broker, although the principal subse- 
 quently again decides to lease, and makes 
 a contract with the customer produced by 
 the broker. Id. 
 Default of other party. 
 
 Burden of Proof as to, see Evidence, 651, 
 652. 
 
 38. Where a real-estate broker contracts 
 to produce a purchaser who shall actually 
 buy he has performed his contract by the 
 production of one financially able, with 
 whom the owner actually makes an en- 
 forceable contract of sale. The failure to 
 carry out that contract, even if the default 
 be that of the purchaser, does not deprive 
 the broker of his right to commissions. 
 Lunney v. Healey, 56 Neb. 313, 76 N. W. 
 558, 44: 593 
 
 39. Refusal to comply with a contract to 
 purchase real estate, by reason of which 
 the broker who negotiated the sale is de- 
 prived of his commissions, will render the 
 intending purchaser liable for the damages 
 thereby inflicted on the broker, although he 
 had agreed to look to the seller for his com- 
 missions. Livermore v. Crane, 26 Wash. 
 529, 67 Pac. 221, 57: 401 
 
 40. A commission for procuring one will- 
 ing to lend a certain sum on mortgage is 
 not earned by the production of a person 
 willing to loan that amount, but who in- 
 sists that the contract shall provide for 
 payment of principal and interest in gold, 
 because of which the offer is not accepted. 
 Caston v. Quimby, 178 Mass. 153, 59 N. E. 
 653, 52: 785 
 
 III. Editorial Notes. 
 
 i. Generally. 
 
 Character of agency. 4: 392.* 
 
 Jurisdiction of admiralty over contracts of 
 ship brokers. 66: 236. 
 
 Implied warranty of genuineness upon sale 
 of negotiable paper by. 
 36: 95. 
 
 Employed by executor or administrator to 
 sell property of estate; 
 liability of estate for com- 
 missions of. 64: 554. 
 
 Statement of account by. 27: 821. 
 
 Right to recover for services rendered or 
 losses incurred in dealings 
 in futures or options. 1: 
 141.* 
 
 Effect of failure to procure license on va- 
 lidity of contract. 16:424. 
 
 Duty to disclose to principal the identity 
 of a purchaser. 53: 241. 
 
 Employment of real estate broker. 10: 
 103.* 
 
 Exclusive agency to sell. 10: 103.*
 
 316 
 
 BROKERS, III. (Ed. Notes.) 
 
 Right of commissions on exchange of prop- 
 erty. 10: 103.* 
 Conditions of right to commissions gener- 
 
 erally. 10: 103.* 
 Effect of procuring contract of sale. 
 
 10: 105.* 
 Set-off in case of bankruptcy. 55: 40, 44, 
 
 51, 60. 
 Maritime lien for services of brokers. 70: 
 
 387. 
 
 2. Fraud and secret dealings of real es- 
 tate broker as affecting commissions. 
 General doctrine. 45: 33. 
 In order to decrease price. 45: 36. 
 In case of conflicting interests. 45: 37. 
 Nondisclosure of true position. 45: 37. 
 Soliciting others. 45: 39. 
 Conspiring with purchaser. 45: 39. 
 Secret profit. 45: 39. 
 Negligence of broker. 45: 39. 
 Agreement to divide commissions. 45: 40. 
 By purchase of property. 45: 40. 
 Double commissions. 45: 44. 
 General rule. 45: 44. 
 Reasons for the rule. 45: 47. 
 Custom or usage. 45: 48. 
 Pooling arrangements. 45: 48. 
 Exceptions to rule. 45: 48. 
 General. 45: 48. 
 Knowledge or consent. 45: 48. 
 Mere middleman. 45: 51. 
 As affecting purchaser. 45: 52. 
 Miscellaneous cases. 45: 53. 
 Burden of proof. 45: 53. 
 3. Negligence, fraud, or default of princi- 
 pal, or defective title as affecting real 
 estate broker's commissions. 
 Default of principal in entering into or 
 carrying out contract with 
 purchaser. 43: 593. 
 In general. 43: 593. 
 Refusal to enter into written contract 
 or to make the sale. 43: 
 595. 
 Refusing to accept purchaser found. 
 
 43: 598. 
 
 Where the contract is oral. 43: 599. 
 When a binding contract exists. 43: 
 
 599. 
 
 Principal's refusal to enforce contract, 
 and release of purchaser. 
 43: 600. 
 
 Refusing to execute deed or convey- 
 ance. 43: 602. 
 Refusal of other parties to convey. 
 
 43: 603. 
 Inability of principal to complete sale. 
 
 43: 603. 
 
 Negligence of principal. 43: 604. 
 Refusal to accept purchase money. 43: 
 
 604. 
 Purchaser's pecuniary responsibility. 
 
 43: 604. 
 Necessity of tender of performance by 
 
 purchaser. 43: 604. 
 
 Effect of stipulations in broker's con- 
 tract. 43: 605. 
 
 Principal's acts justified. 43:605. 
 Actions relating to, and damages there- 
 for. 43: 605. 
 
 Default in carrying out contract with 
 broker. 43: 606. 
 
 Principal's interference with broker. 
 
 43: 606. 
 Wrongful termination of agency. 43: 
 
 608. 
 Defective title. 43: 609. 
 
 General doctrine. 43: 609. 
 The question of notice. 43: 613. 
 Misrepresentation and fraud of principal. 
 
 43: 614. 
 
 4. Procuring cause of sale or exchange. 
 When real estate broker is considered as. 
 
 44: 321. 
 
 Procuring cause of sale. 44: 321. 
 General rule. 44: 321. 
 Evidence to establish procuring cause. 
 
 44: 327. 
 Acts held sufficient to establish. 44: 
 
 328. 
 Acts held not sufficient to establish. 
 
 44: 333. 
 When several brokers are employed. 44: 
 
 337. 
 
 In case of a sale by his principal. 44: 344. 
 General rule governing. 44: 344. 
 Negotiations by principal. 44: 345. 
 Before broker has reasonable oppor- 
 tunity to reap result of his 
 efforts. 44: 345. 
 
 Pending broker's negotiations with pur- 
 chaser. 44: 345. 
 After suspension of negotiations. 44: 
 
 346. 
 After withdrawal or termination of 
 
 agency, etc. 44: 347. 
 After broker has failed to secure pur- 
 cnaser or to close negoti- 
 ations. 44: 348. 
 Within time limited by contract. 44: 
 
 349. 
 When broker has option or sole agency. 
 
 44: 350. 
 Effect of modification of terms. 44: 
 
 350. 
 
 5. Performance of contract. 
 By a real estate broker to find a purchaser 
 or effect an exchange of 
 his principal's property. 
 44: 593. 
 
 General rule. 44: 593. 
 
 Custom as affecting performance. 44: 600. 
 The necessity of a written contract. 44: 
 
 601. 
 
 Necessity of consummated sale. 44: 605. 
 Time of performance. 44: 608. 
 In case of a special contract. 44: 611. 
 In case of an exchange. 44: 612. 
 Negotiations by principal. 44: 612. 
 Acceptance of purchaser by principal. 44: 
 
 616. 
 Broker's presence at sale by principal. 44: 
 
 617. 
 
 Ratification of broker's acts. 44: 618. 
 Position of purchaser found. 44: 619. 
 Effect of purchaser's default. 44: 623. 
 Failure of broker to report purchaser. 44: 
 
 624. 
 
 Acts held sufficient performance. 44: 625. 
 Acts held not to constitute performance. 
 44: 629.
 
 BROTHER BUILDING AND LOAN ASSOCIATIONS, II. 
 
 317 
 
 BROTHER. 
 
 Insurable Interest in Life of, see Insurance, 
 155-157. 
 
 BUGS. 
 
 In Leased Premises, see Landlord and Ten- 
 ant, 60. 
 
 BUILDING AND LOAN ASSOCIATIONS. 
 
 I. In General. 
 II. Stock; Advance Dues. 
 III. Loans; Mortgages. 
 
 a. In General. 
 
 b. Premiums. 
 
 c. Usury. % 
 
 d. Foreclosure. 
 IV. Dues and Fines. 
 
 V. Powers Generally. 
 VI. Withdrawals. 
 VII. Termination; Insolvency; Winding 
 
 up. 
 
 VTII. Foreign Associations. 
 IX. Editorial Notes. 
 
 Foreign, Effect of Appointment of Receiv- 
 er on Attachment against, see Attach- 
 ment, 55. 
 
 Compensation of Attorney Employed by, 
 see Attorneys, 64. 
 
 Restrictions on, as Regulation of Com- 
 merce, see Commerce, 4. 
 
 Equal Protection and Privileges as to, see 
 Constitutional Law, 400-404. 
 
 Impairment of Contract of, by Taxing, see 
 Constitutional Law, 1156. 
 
 Insurance on Life of Member, see Insur- 
 ance, 145, 698, 1218. 
 
 Title of Statute as to, see Statutes, 185, 
 186. 
 
 Tax on, see Taxes, 68, 69, 185, 241. 
 
 I. In General. 
 
 1. A member may recover from a building 
 and loan association the amount which he 
 has contributed to it to enable it to pay 
 the interest on its debt and the premium 
 on a policy of life insurance assigned as 
 collateral security for such debt. Tate v. 
 Commercial Bldg. Asso. 97 Va. 74, 33 S. E. 
 382, 45: 243 
 By-laws. 
 
 See also infra, 20, 21, 54. 
 
 2. A by-law more or less affecting the 
 remedy of a shareholder in a building and 
 loan association may be passed and be bind- 
 ing on existing members, so far at least 
 as they consented to the exercise of such 
 power when they became members, al- 
 though the contract between the member 
 and the corporation cannot be destroyed 
 by a by-law. Engelhardt v. Fifth Ward 
 Permanent Dime S. & L. Asso. 148 N. Y. 
 281, 42 N. E. 710, 35: 289 
 
 Power of officers. 
 
 3. The power to indorse a check which 
 the secretary of a loan association, who is 
 its general financial agent, has authority to 
 collect, is implied in the power given him to 
 collect its securities and pay the money for 
 them to the treasurer. Gate City Bldg. & 
 L. Asso. v. National Bank of Commerce, 126 
 Mo. 82, 28 S. W. 633, 27: 401 
 
 II. Stock; Advance Dues. 
 See also infra, 14-18, 49-51, 73, 75-77. 
 
 Income stock. 
 
 4. Income stock on which 60 per cent 
 shall be paid in advance, with cash dividends 
 limited to 8 per cent as the only profit to 
 the stockholders, while any dividends be- 
 yond these shall go to holders of other 
 kinds of stock, is not illegal under the New 
 York law applicable to savings and loan 
 societies. People ex rel. Fairchild v. Pres- 
 ton, 140 N. Y. 549, 35 N. E. 979, 24: 57 
 Prepaid stock; advance dues. 
 
 See also infra, 26. 
 
 5. The issuance of paid-up stock is not 
 authorized by the Illinois statute govern- 
 ing building associations. Rhodes v. Mis- 
 souri Sav. & L. Co. 173 111. 621, 50 N. E. 
 998, 42: 93 
 
 6. Prepaid stock on which 60 per cent of 
 the amount of the shares shall be paid in, 
 and on which dividends at the rate of 6 per 
 cent per annum on the amount paid in may 
 be drawn out, with any further dividends 
 to be credited and payable with the stock 
 at its maturity, is not illegal under N. Y. 
 Laws 1892, chap. 689. People ex rel. Fair- 
 child v. Preston, 140 N. Y. 549, 35 N. E. 
 979, 24: 57 
 
 7. The illegality of an issue of paid-up 
 stock by a building and loan association 
 cannot be asserted by stockholders who 
 have taken it and paid for it in order to 
 place themselves in a better position with 
 respect to other stockholders, who do not 
 question its validity* than they would be 
 in if the stock had been valid. Gibson v. 
 Safety Homestead & L. Asso. 170 ul. 44, 48 
 N. E. 580, 39: 202 
 
 8. Dues may be paid in advance with the 
 assent of the directors in a savings and loan 
 society, under the New York banking law 
 (N. Y. Laws 1892, chap. 689), and a rebate 
 or discount on such payments allowed at 
 such rate per annum as the directors from 
 time to time prescribe. People ex rel. Fair- 
 child v. Preston, 140 N. Y. 549, 35 N. E. 
 979, 24: 57 
 Preferred stock. 
 
 See also infra, 11, 87-89. 
 
 9. The issuance of preferred stock by a 
 building and loan association which is based 
 on principles of co-operation, equality, and 
 mutuality is void as against public policy. 
 Sumrall v. Columbia Finance & T. Co. 106 
 Ky. 260, 50 S. W. 69, 44: 659 
 Maturity of stock. 
 
 10. A mistaken declaration of the matu- 
 rity of stock by a building and loan associa-
 
 318 
 
 BUILDING AND LOAN ASSOCIATIONS, III. a. 
 
 tion, when the stock is in fact not matured, 
 will not make the stockholder a creditor or 
 put him in the position of a holder of ma- 
 tured stock in subsequently winding up the 
 affairs of the association when insolvent. 
 Post v. Mechanics' Bldg. & L. Asso. 97 
 Tenn. 408, 37 S. W. 216, 34: 201 
 
 11. A guaranty that preferred stock in a 
 building and loan association shall mature 
 at a certain time, and that the common 
 stock shall constitute a guaranty there- 
 for, constitutes a guaranty for the accu- 
 mulation of sufficient profits or dividends to 
 mature the preferred stock, and does not 
 control a distribution of the capital and 
 assets of the concern on the winding up of 
 the association, when there are no profits 
 on hand. Sumrall v. Columbia Finance & 
 T. Co. 106 Ky. 260, 50 S. W. 69, 44: 659 
 
 III. Loans; Mortgages, 
 a. In General. 
 
 Dues and Fines Paid by Borrower, see 
 infra, IV. 
 
 Law Governing, see Conflict of Laws, 27, 
 . 28. 
 
 Giving Priority Over Other Liens, see Con- 
 stitutional Law, 403; Statutes, 50. 
 
 Title of Statute as to, see Statutes, 186. 
 
 See also infra, 64, 79, 80. 
 
 For Editorial Notes, see infra, IX. 1. 
 
 12. The necessary expenses of perfect- 
 ing a loan may be taken out of the money 
 loaned to a member by a loan association. 
 Iowa Sav. & L. Asso. v. Heidt, 107 Iowa, 
 297, 77 N. W. 1050, 43: 689 
 Cancelation of mortgage. 
 
 13. A borrowing member of a building as- 
 sociation is not entitled to cancelation of 
 the mortgage given to secure the loan, un- 
 til the dues paid and the dividends declared 
 and not paid, equal the par value of his 
 shares. Eversmann v. Schmitt, 53 Ohio St. 
 174, 41 N. E. 139, 29: 184 
 Forfeitures; credits on 'default. 
 
 See also infra, 77. 
 
 For Editorial Notes, see infra, IX. 1. 
 
 14. A borrowing member of a building 
 and loan association has no right to receive 
 interest on his stock payments, or to have 
 such payments applied in reduction of his 
 indebtedness, unless such right is express- 
 ly reserved. Reeve v. Ladies Bldg. Asso. 56 
 Ark. 335, 19 S. W. 917, 18: 129 
 
 15. Forfeited payments made by a mem- 
 ber of a loan association on shares which 
 lapse in consequence of his default cannot 
 be credited upon his loan from the associa- 
 tion. Pioneer Sav. & L. Co. v. Cannon, 96 
 Tenn. 559, 36 S. W. 386, 33: 112 
 
 16. Forfeiture of stock in a building and 
 loan association for failure to make re- 
 quired payments, if it is authorized by the 
 contract of the parties, the rules and regu- 
 lations and by-laws of the association, and 
 the statute under which it is created, can- 
 not be relieved against; and the mortgage 
 given by such member may be foreclosed for 
 
 the full amount of his original loan, with in- 
 terest, without any abatement for the value 
 of the stock or for payments made by him 
 thereon. Southern Bldg. & L. Asso. v. 
 Anniston Loan & T. Co. 101 Ala. 582, 15 
 So. 123, 29: 120 
 
 17. The application upon a mortgage to 
 a building and loan association, of pay- 
 ments made by the mortgagor upon his 
 shares of stock in the association, which 
 were declared forfeited after default, must 
 be allowed on foreclosure of the mortgage, 
 notwithstanding a rigid provision in his 
 contract that his membership and all sums 
 theretofore paid should be forfeited in case 
 of default; and a claim that the loan and 
 membership are separate and distinct con- 
 tracts cannot be sustained after the ter- 
 mination of the membership and the ma- 
 turity of the loan by an election to fore- 
 close. Randall v. National Bldg. L. & P. 
 Union, 42 Neb. 809, 60 N. W. 1019, 
 
 29: 133 
 
 18. Stock payments by a borrowing mem- 
 ber of a building and loan association are 
 not ipso facto credits upon his indebtedness, 
 so as to reduce pro tanto the amount due 
 on his mortgage, but a borrower may elect 
 to have payments on account of stock ap- 
 plied upon his indebtedness to the associa- 
 tion. Id. 
 Computing amount due on default. 
 
 19. To compute the amount of recovery 
 on foreclosure of a mortgage in a building 
 and loan association for default of the 
 mortgagor, there should be added to all ar- 
 rearages of dues, interest, and fiue-s the 
 present value of the anticipated future pay- 
 ments, all stated dues and interest for the 
 remainder of the time required for the ma- 
 turity of the stock; that is, the amount of 
 principal, which, with interest thereon from 
 the present date to the time of maturity o)' 
 the stock, would equal the total amount of 
 such anticipated future payments. Rob- 
 erts v. American Bldg. & L. Asso. 62 Ark. 
 572, 36 S. W. 1085, 33: 7-14 
 
 20. Members of a building and loan asso- 
 ciation are bound by the articles of associa- 
 tion which show the scheme of the organ- 
 ization and define the obligation of the as- 
 sociation and the rights of members, as 
 such articles constitute a contract. Engel- 
 hardt v. Fifth Ward Permanent Dime S. & 
 L. Asso. 148 N. Y. 281, 42 N. E. 710, 
 
 35: 289 
 
 21. A by-law that withdrawing members 
 shall be paid, in the order of the presenta- 
 tion of their application is a reasonable 
 regulation of a building and loan associa- 
 tion, and is binding on existing members. 
 
 Id. 
 
 22. Notice of withdrawal before the ap- 
 pointment of a receiver of a building and 
 savings association does not give priority to 
 a shareholder of an insolvent association un- 
 der by-laws providing for the payment of 
 withdrawals "according to the priority of 
 notice," but also providing that no more 
 shall be paid in any month than 30 per 
 cent of the cash receipts of the loan fund 
 during that month, as these by-laws con-
 
 BUILDING AND LOAN ASSOCIATIONS, III. b, c. 
 
 319 
 
 template a going concern. Rabbitt v. Wil- 
 coxen, 103 Iowa, 35, 72 N. W. 306, 38: 183 
 
 23. A nonborrowing member of a mutual 
 building association cannot be allowed to 
 bring an action to take judgment against 
 the association, when there is no money in 
 the treasury legally applicable to the pay- 
 ment of his claim, although he has com- 
 plied with the prescribed conditions of with- 
 drawal. Heinbokel v. National Sav. L. & 
 B. Asso. 58 Minn. 340, 59 N. W. 1050, 
 
 25: 215 
 
 24. A withdrawing member cannot sue a 
 loan association until there are funds in 
 the treasury out of which his claim can be 
 paid, at least in the absence of bad faith 
 or the insolvency of the association, where 
 the articles of association provide for re- 
 funding to withdrawing members "where 
 the necessary funds are collected." Engel- 
 hardt v. Fifth Ward Permanent Dime S. 
 & L. Asso. 148 N. Y. 281, 42 N. E. 710, 
 
 35: 289 
 
 25. Notice of withdrawal from an insol- 
 vent loan association does not entitle mem- 
 bers to priority of payment over their fel- 
 low* stockholders. Gibson v. Safety Home- 
 stead & L. Asso. 170 111. 44, 48 N. E. 580, 
 
 39: 202 
 
 26. Payment of dues in advance under 
 an agreement with a building and loan as- 
 sociation for interest upon the advances 
 until they are absorbed by dues does not 
 entitle the stockholder in case of the insol- 
 vency of the association to be treated as a 
 creditor with the right to repayment of his 
 advances with interest, especially when the 
 agreement for interest thereon was not war- 
 ranted by the charter. Post v. Mechanics' 
 Bldg. & L. Asso. 97 Tenn. 408, 37 S. W. 216, 
 
 34: 201 
 
 27. Borrowing members of an insolvent 
 building and loan association are not es- 
 topped from contesting a scheme of settle- 
 ment agreed upon by a majority of the 
 stockholders, and adopted by the court, on 
 a bill filed by certain other members, bor- 
 rowers and nonborrowers, "on behalf of 
 themselves and all others who may be sim- 
 ilarly situated and having like interests, 
 who may join them as complainants," 
 against the association, a corporation, as 
 sole defendant; none of the complainants be- 
 ing in exactly the same class as such bor- 
 rowing members. Ottensoser v. Scott, 47 
 Fla. 276, 37 So. 161, 66: 346 
 
 b. Premiums. 
 
 See also infra, 35, 44, 48. 
 
 For Editorial Notes, see infra, IX. 1. 
 
 28. A fixed premium is established by a 
 by-law of a building association forbidding 
 loans to be made at a premium greater 
 than 30 per cent or less than 29% per cent. 
 McCauley v. Workingman's Bldg. & S. As- 
 so. 97 Tenn. 421, 37 S. W. 212, 35: 244 
 
 29. The taking of a fixed premium for a 
 loan by a building association is forbidden 
 by a statute providing that the loan shall 
 be to the highest bidder. Id. 
 
 30. A building and loan association may 
 fix a minimum premium to be deducted in 
 advance or paid in periodical instalments, 
 but in either case such premium must be a 
 certain, definite sum, fixed and determined 
 at the time of the making of the loan. 
 Floyd v. National Loan & Invest. Co. 49 
 W. Va. 327, 38 S. E. 653, 54: 536 
 
 31. A fixed minimum premium in a build- 
 ing association which may be paid in ad- 
 vance or in periodical instalments must be 
 a lump sum certain and definite, and not 
 a percentage payable indefinitely at fixed 
 periods. Gray v. Baltimore Bldg. & L. 
 Asso. 48 W. Va. 164, 37 S. E. 533, 54: 217 
 
 32. The exaction of an arbitrary sum in 
 addition to interest from a borrower, when 
 there is no competition, is not authorized by 
 Iowa Code, 1873, tit. 9, chap. 6, allowing 
 premiums bid for the right of precedence in 
 taking loans. Iowa Sav. & L. Asso. v. Heidt, 
 107 Iowa, 297, 77 N. W. 1050, 43: 689 
 
 c. Usury. 
 
 Conflict of Laws as to, see Conflict of Laws. 
 
 56-59. 
 Class Legislation as to, see Constitutional 
 
 Law, 400-402. 
 For Editorial Notes, see infra, IX. 1. 
 
 33. Persons compelled to take stock in 
 a loan association to secure a loan, but for 
 whom the scheme of the concern provides no 
 dividends or other share in the profits, can- 
 not be regarded as members and their pay- 
 ments as made upon stock calls for the pur- 
 pose of taking them out of the usury law. 
 Falls v. United States Sav. L. & B. Co. 97 
 Ala. 417, 13 So. 25, 24: 174 
 What constitutes usury. 
 
 34. The contract of a member borrowing 
 money from a building and loan association 
 is not within the usury laws, where the rate 
 of interest to be paid cannot be known un- 
 til the maturity of the shares, and wheth- 
 er it will be greater or less than the legal 
 rate is wholly contingent on the prosperity 
 of the association. Reeve v. Ladies Bldg. 
 Asso. 56 Ark. 335, 19 S. W. 917, 18: 129 
 
 35. A note to a building and loan associa- 
 tion stipulating for 5 per cent interest per 
 annum, and 5 per cent premium per annum, 
 is not usurious under the laws of Tennes- 
 see. Pioneer Sav. & L. Co. v. Cannon, 96 
 Tenn. 599, 36 S. W. 386, 33: 112 
 
 36. A percentage payable to a building 
 and loan association indefinitely and at fixed 
 periods is interest, although it be called 
 premium, and, being in addition to the legal 
 rate of interest already charged, is usu- 
 rious. Gray v. Baltimore Bldg. & L. Asso, 
 48 W. Va. 164, 37 S. E. 533, 54: 217 
 
 37. A plan of a building and loan asso- 
 ciation by which a borrower is required 
 to bid shares of its stock as a premium for 
 a loan, upon which he is required to pay 
 the dues the same as on the stock which 
 represents his loan, which dues inure to the 
 benefit of the association, is a mere device 
 to cover usury, and if, when added to the 
 regular interest charge, the aggregate is usu-
 
 320 
 
 BUILDING AND LOAN ASSOCIATIONS, III. el. 
 
 rious. the contract cannot be enforced. 
 Pacific States Savings. L. & Bldg. Co. v. 
 Hill, 40 Or. 280, 67 Pac. 103, 56: 163 
 
 38. Loans at fixed premiums without free 
 and competitive bidding, as required by the 
 Tennessee statutes (Mill. & V. Code, 1751), 
 cannot be lawfully made by a building and 
 loan association, but are usurious, if the 
 premium is more than lawful interest. Post 
 v. Mechanics' Bldg. & L. Asso. 97 Tenn. 408, 
 37 S. W. 216, 34: 201 
 
 39. A contract with a building and loan 
 association for a loan, which provides for 
 a fixed premium which, added to the inter- 
 est reserved, exceeds the legal rate, is usu- 
 rious. Shannon v. Georgia State Bldg. & L. 
 Asso. 78 Miss. 955, 30 So. 51, 57: 800 
 
 40. The exaction of a premium consisting 
 of a certain percentage upon the amount of 
 the loan, payable monthly in the same way 
 interest is paid, which, together with the re- 
 quired interest, exceeds the rate allowed by 
 law, is not authorized by a provision in 
 a statute governing building associations 
 that the provisions as to bidding for loans 
 shall not apply to an association which 
 fixes the rate of premium in its by-laws 
 or by resolution, and that no premium shall 
 be considered or treated as interest, since 
 the statute will not be presumed to mean 
 by the words "rate of premium" the same 
 thing as rate of interest. Washington 
 National Bldg. L. & I. Asso. v. Stanley, 38 
 Or. 319, 63 Pac. 489, 58: 816 
 
 41. To bring a transaction by a building 
 and loan association within the statute ex- 
 empting it from the usury laws it must be 
 effected in the mode fixed by the statute, 
 so that in case the statute prescribes that 
 loans shall be made by offering the money 
 to the highest bidder in an open meeting, 
 or under a by-law establishing a uniform 
 premium rate, a loan will not be exempt 
 from the usury law, which is effected by 
 private contract with the borrower with- 
 out such by-law. Borrowers' & I. Bldg. 
 Asso. v. Eklund, 190 111*. 257, 60 N. E. 521, 
 
 52: 637 
 
 42. The premium for a loan, if reason- 
 able in amount, need not be ascertained by 
 competitive bidding for precedence in ob- 
 taining the loan, but it may be fixed at a 
 uniform rate by the constitution and by- 
 laws of the association, under a statute 
 empowering building and loan associations 
 to impose such premiums or assessments as 
 may be provided for in the constitution and 
 by-laws, and exempting such associations 
 from the operation of the usury laws. 
 Cramer v. Southern Ohio L. & T* Co. 72 
 Ohio St. 395, 74 N. E. 200, 69: 415 
 Effect of usury. 
 
 Curative Act as to, see Constitutional Law, 
 
 133-135. 
 .See also infra, 76. 
 
 43. A borrower from a building associa- 
 tion at a fn:ed premium which is forbidden 
 by law will not be compelled to comply 
 with his contract for a series of years upon 
 the possibility that upon the winding up 
 of the association it will not prove to be 
 
 usurious. McCauley v. Workingman's Bldg. 
 & S. Asso. 97 Tenn. 421, 37 S. W. 212, 
 
 35: 244 
 
 44. Only the principal of the loan, with 
 legal interest thereon, together with such 
 sums as have been necessarily expended in 
 preserving the property, less the amounts 
 paid into the association by the borrower 
 as dues, interest, premium, and fines, to be 
 treated in the settlements as partial pay- 
 ments, can be collected by a building and 
 loan association on a contract for a premium 
 which the law deems usurious. Floyd v. 
 National Loan & Invest. Co. 49 W. Va. 327, 
 38 S. E. 653, 54:536 
 
 45. A loan by a building association, usu- 
 rious on its face, will be set aside upon equit- 
 able terms, by requiring the borrower to re- 
 pay the loan with legal interest, taking 
 credit for such payments as may have been 
 made, and proper interest. McCauley v. 
 Workingman's Bldg. & S. Asso. 97 Tenn. 
 421, 37 S. W. 212, 35: 244 
 
 d. Foreclosure. 
 
 Law Governing, see Conflict of Laws, 49. ' 
 
 46. A receiver of a building and loan as- 
 sociation cannot foreclose under the power 
 of sale contained in mortgages held by the 
 association. Strauss v. Carolina I. Bldg. & 
 L. Asso. 117 N. C. 308, 23 S. E. 450, 30: 693 
 
 47. On foreclosure, by the receiver of an 
 insolvent building and loan association, of a 
 mortgage given by a borrowing member, at- 
 torneys' fees are properly allowed; the 
 mortgage providing that the borrowing 
 member "promises and agrees to pay a 
 reasonable sum of money for solicitors' 'fees 
 that may be incurred by the associa- 
 tion in the event that foreclosure of this 
 mortgage becomes necessary." Ottensoser 
 v. Scott, 47 Fla. 276, 37 So. 161, 66: 346 
 
 48. On foreclosure by the receiver of an 
 insolvent building and loan association 
 against a borrowing member who paid his 
 dues and assessments promptly until the 
 association was dissolved by the appoint- 
 ment of the receiver through no fault of 
 such member, the receiver is not entitled 
 to charge such member with the so-called 
 earned premium, where such premium is in 
 the form of a deduction from the sum 
 loaned. Id. 
 
 49. A member of a building and loan as- 
 sociation who borrows money from the as- 
 sociation, and bids a premium for the privi- 
 lege of obtaining the loan, and executes his 
 1)011(1 for the amount of the loan and pre- 
 mium, and gives a mortgage to secure the 
 payment of such bond, and also assigns to 
 such association his shares of stock as col- 
 lateral security for such payment, is not 
 entitled, in an action brought to foreclose 
 such mortgage by the receiver of such asso- 
 ciation (said association being insolvent), to 
 apply the amounts he has paid as dues upon 
 his stock in reduction of his indebtedness. 
 Hale v. Cairns, 8 N. D. 145, 77 N. W. 1010, 
 
 44: 261 
 
 50. In a proceeding to foreclose a mort-
 
 BUILDING AND LOAN ASSOCIATIONS, IV. V. 
 
 321 
 
 gage to an insolvent building and loan as- 
 sociation to aid in winding it up and dis- 
 tributing its assets, no decree for the sale 
 of the pledged stock will be made in the 
 event that the mortgaged land proves in- 
 sufficient, since the object of the proceeding 
 is to pay off the stock by an equitable dis- 
 tribution of the assets. Mcllwaine v. El- 
 lington, 49 C. C. A. 446, 111 Fed. 578, 
 
 55: 933 
 
 51. Borrowers from a loan association 
 who have accepted its stock and dealt with 
 it in its corporate capacity cannot defeat 
 its action to foreclose the mortgage on the 
 ground that the articles of incorporation 
 were not acknowledged by the number of 
 persons required by statute, where the asso- 
 ciation apparently and in good faith at- 
 tempted to comply with the law. Wash- 
 ington National Bldg. L. & I. Assp. v. Stan- 
 ley, 38 Or. 319, 63 Pac. 489, * 58: 816 
 
 IV. Dues and Fines. 
 See also supra, 7, 8, 48, 49; infra, 72, 74-76. 
 
 52. A deduction of a specified part of the 
 dues paid to a loan association for neces- 
 sary expenses of management is lawful. 
 Iowa Sav. & L. Asso. v. Heidt, 107 Iowa, 
 297, 77 N. W. 1050, 43:687 
 
 53. The appointment of a receiver for a 
 building and loan association terminates the 
 contract of a shareholder who is also a bor- 
 rower and has given a mortgage to secure 
 the loan, so that he is not liable for the 
 monthly dues accruing after such appoint- 
 ment. Buist v. Bryan, 44 S. C. 121, 21 S. 
 E. 537, 29:127 
 Fines. 
 
 For Editorial Notes, see infra, IX. 3. 
 
 54. In case the by-laws of a loan associa- 
 tion do not impose as great a fine as is au- 
 thorized by the charter, the by-laws, and 
 not the charter, will govern. Dupuv v. 
 Eastern Bldg. & L. Asso. 93 Va. 460, 25 
 S. E. 537, 35: 215 
 
 55. Cumulation of fines for each addition- 
 al month of default is not permitted by the 
 by-laws of a loan association providing 
 that borrowing members who shall neglect 
 to pay instalments as they become due shall 
 pay a fine of 20 cents per month on each 
 $100 that they have borrowed, so as to 
 make the amount of fine for any month 
 either as many times the designated amount 
 as the number of such month beyond com- 
 mencement of the default, or the designat- 
 ed amount multiplied by the sum borrowed 
 and the arrearages. Id. 
 
 56. Fines for failure to make payments 
 to a building and loan association when 
 they are due are in the nature of liquidat- 
 ed damages, which, so far as they are rea- 
 sonable, may be sustained by a court of 
 equity even without the sanction of any 
 statute. Roberts v. American Bldg. & L. 
 Asso. 62 Ark. 572, 36 S. W. 1085. 33: 744 
 
 57. A fine of 5 cents for the first default 
 
 L.R.A. Dig. 21. 
 
 on each share, and 10 cents for each sub- 
 sequent default by a member of a loan as- 
 sociation, is not exorbitant. Iowa Sav. & 
 L. Asso. v. Heidt, 107 Iowa, 297, 77 N. W. 
 1050, 43: 689 
 
 V. Powers Generally. 
 
 As to negotiable paper. 
 
 For Editorial Notes, see infra, IX. 1. 
 
 58. The right of a building, loan, and in- 
 vestment society to execute negotiable 
 paper is implied in the power to incur debts 
 for various purposes and to sell and mort- 
 gage property. Grommes v. Sullivan, 26 C. 
 C. A. 320, 53 U. S. App. 359, 81 Fed. 45, 
 
 43:419 
 
 59. The acceptance of a negotiable order 
 by a building, loan, and investment society 
 which has power to execute negotiable paper 
 under some circumstances is binding on the 
 corporation in favor of a bona fide holder, 
 although nothing was due to the drawer of 
 the order when it was accented. Id. 
 To borrow money. 
 
 For Editorial Notes, see infra, IX. 1. 
 
 60. A building and loan association, the 
 plan of which contemplates the maturing 
 of its stock by profits and accumulations, 
 and the stock of which is issued in sep- 
 arate series at different dates, has power, 
 in the absence of a statute or by-law to 
 the contrary, to borrow money to pay off 
 nonborrowing holders of a particular series 
 of stock when it attains its par value. 
 North Hudson Mut. Bldg. & L. Asso. v. 
 First Nat. Bank, 79 Wis. 31, 47 N. W. 300, 
 
 11: 845 
 
 61. A building and loan association which 
 has power to borrow money may, in the ab- 
 sence of any law expressly prohibiting it, 
 secure the payment of the loan by an as- 
 signment of the bonds and mortgages which 
 it holds against its members. Id. 
 
 62. Where the directors of a building and 
 loan association have borrowed money and 
 applied it to the retirement of matured 
 shares of stock, the corporation is estopped 
 by receiving the benefit of the loan from 
 setting up a want of power to make it. 
 Even if the stock was not fully matured, 
 and there was, in consequence, no power to 
 borrow the money, the corporation cannot 
 take advantage of that fact without refund- 
 ing the money advanced and used for its 
 benefit. Td. 
 To purchase land. 
 
 63. A building and loan association has 
 no power to engage in the biisiness of trad- 
 ing in real estate or acquiring the same, ex- 
 cept as incidental to its legitimate business. 
 National Home B. & L. Asso. v. Home Sav. 
 Bank. 181 Til. 35. 54 N. E. 619, 64: 399 
 
 64. The right of a building and loan as- 
 sooiation to purchase such real estate as 
 it has a mortgage on for its necessary pro- 
 tection in making: collections does not ex- 
 tend to the purchase of additional real es- 
 tate, though taken as a part of the samp 
 transaction. Id.
 
 822 
 
 BUILDING AND LOAN ASSOCIATIONS, VI. VII. 
 
 VL Withdrawals. 
 
 Running of Limitations against Withdraw- 
 ing Member, see Limitation of Actions, 
 93. 
 
 See also supra, 21-25. 
 
 For Editorial Notes, see infra, IX. 2. 
 
 65. The right of members of a building 
 and loan association under the by-laws, 
 upon one month's notice, to withdraw from 
 it the contributions they have made to its 
 funds, is not applicable to funds loaned by 
 the association. Only the funds in the 
 hands of the association can be thus with- 
 drawn. State v. Redwood Falls Bldg. & L. 
 Asso. 45 Minn. 154, 47 N. W. 540. 10: 752 
 
 66. A stockholder does not become a gen- 
 eral creditor of a mutual building associa- 
 tion by giving notice of withdrawal. Hein- 
 bokel v. National Ssav. L. & B. Asso. 58 
 Minn. 340, 59 N. W. 1050, 25: 215 
 
 67. The inability of a building and loan 
 association to comply with its contract 
 abrogates a condition of the payment of 
 withdrawals, requiring certain collections to 
 be first made, so that an action may be 
 brought in another state by one who has 
 given proper notice of withdrawal. South- 
 ern Bldg. & L. Asso. v. Price, 88 Md. 155, 
 41 Atl. 53, 42: 206 
 
 68. Notice of withdrawal given by a 
 member of a building and loan association 
 does not sever his relation so completely as 
 to preclude him from bringing a suit for the 
 appointment of a receiver and the winding 
 up of the affairs of the company, when it 
 has failed in its duty to set apart a fund 
 to meet its obligation to withdrawing mem- 
 bers, and the stockholders have taken such 
 action as to preclude the possibility of re- 
 lief from that source. Andrews v. Roanoke 
 B. A. & I. Co. 98 Va. 445. 36 S. E. 531. 
 
 49: 659 
 
 VTI. Termination; Insolvency; Winding up. 
 
 Receiver for Association, see Receivers, 77. 
 See also supra, 46-50, 53; infra, 84-86. 
 
 69. A judgment confessed by a building 
 and loan association, otherwise than for a 
 debt contracted or money loaned at the 
 time, will, under Va. Code, 1149, inure 
 ratably to the benefit of all existing credit- 
 ors. Tate v. Commercial Bldg. Asso. 97 
 Va. 74, 33 S. E. 382, 45: 243 
 Accounting when association insolvent. 
 
 70. Upon the voluntary dissolution of a 
 building association the principle of ac- 
 counting with members is the same whether 
 the association is solvent or insolvent. 
 People's Bldg. & L. Asso. v. McPhillamy, 81 
 Miss. 61, 32 So. 1001. 59: 743 
 
 71. The form of the proceeding in which a 
 settlement of the accounts between a bor- 
 rowing member and an insolvent building 
 association is sought cannot affect the meth- 
 od of the accounting. Id. 
 
 12. When an insolvent building and loan 
 association goes into voluntary liquidation 
 
 prematurely, a borrowing member cannot be 
 credited on his debt with the full amount of 
 dues he has paid in on his stock, but his 
 stock payments must share the losses and 
 expenses of winding up, and the balance 
 only be credited on the loan, when it can 
 be ascertained. Id. 
 
 73. Whether the value of the shares of a 
 borrowing member of a building and loan 
 association which is to be credited upon his 
 loan in case of the premature voluntary 
 liquidation of the association should be 
 estimated and credited in advance of the 
 settlement of the affairs of the association, 
 or the credit made only at the settlement, 
 must be determined by the court in its 
 sound discretion. Id. 
 
 74. The affairs of an insolvent building 
 and loan association are to be settled in 
 North Carolina by charging borrowing 
 members 6 per cent interest on the amounts 
 they received, with a credit for all they 
 have paid into the concern, whether it was 
 called "fines," "penalties," "weekly dues," 
 or by any other name; while nonborrowing 
 members are entitled to interret at the same 
 rate upon the amounts due mem. Strauss 
 v. Carolina I. Bldg. & L. Asso. 117 N. C. 
 308, 23 S. E. 450, 30: 693 
 
 75. The monthly payments for subscrip- 
 tions to the shares of a building and loan 
 association, which have been pledged as col- 
 lateral security for a loan secured by mort- 
 gage, in which interest and dues are con- 
 solidated, should be applied upon the mort- 
 gage in determining whether that has been 
 paid, when the association is in the hands 
 of a receiver. Buist v. Bryan, 44 S. C. 121, 
 21 S. E. 537, 29: 127 
 
 76. Payments of dues upon stock in a 
 building and loan association cannot be 
 credited upon an usurious loan to stockhold- 
 ers dn winding up the affairs when the as- 
 sociation is insolvent, since such credit 
 would relieve the borrowing shareholders 
 from their share of the losses and throw 
 them all on the nonborrowing stockholders. 
 Post v. Mechanics' Blag. & L. Asso. 97 Tenn. 
 408, 37 S. W. 216, 34: 201 
 
 77. On a settlement with an insolvent 
 building and loan association, borrowing 
 members are not entitled to be credited 
 with the full face or book value of their 
 stock, but only for such pro rata amount 
 thereof as the actual conditions may war- 
 rant, based upon the net assets in the 
 hands of the receiver. Ottensoser v. Scott, 
 47 Fla. 276, 37 So. 161, 66: 346 
 Losses; assessments for. 
 
 For Editorial Notes, see infra, IX. 1. 
 
 78. The members of a building associa- 
 tion, both borrowers and nonborrowers, 
 must assist in bearing its losses. Evers- 
 mann v. Schmitt, 53 Ohio St. 174, 41 N. E. 
 139. 29: 184 
 
 79. A borrowing member of a building as- 
 sociation whose mortgage stipulates for the 
 payment of such "assessments" as may be 
 levied on him as a member is liable for a 
 pro rata assessment on the members, made 
 by a receiver in insolvency of the associa- 
 tion. Id.
 
 BUILDING AND LOAN ASSOCIATIONS, VIII. IX. 
 
 323' 
 
 80. An assessment on stock in a building 
 and loan association, for the purpose of 
 covering losses and equalizing the members, 
 so that they may all go out at the final 
 close on an equal footing, is within the 
 liabilities of a member upon a note and 
 mortgage which include a provision for the 
 payment, not only of instalments of dues, 
 but of any fees or assessments. Wohlford 
 v. Citizens' Bldg. L. & Sav. Asso. 140 Ind. 
 662, 40 N. E. 694, 29: 177 
 
 81. An assessment to cover losses and 
 equalize members is properly made by the 
 board of directors of a building and loan 
 association instead of by the association as 
 a whole, under a statutory provision that 
 the business of the association shall be 
 managed by a board of directors. Id. 
 
 82. A formal acceptance in writing of 
 the provisions of Ind. 1885, wh^eh ex- 
 pressly grants to building and loan asso- 
 ciations power to make assessments or stock 
 calls to cover losses, is not necessary in 
 order that such an association may exercise 
 the enlarged powers granted by that stat- 
 ute, including the power to make an assess,- 
 ment to cover losses and thereby equalize 
 members, so that all at the close may go 
 out on an equal footing. Id. 
 
 V1LL Foreign Associations. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 
 163. 
 Unconstitutional Discrimination against, see 
 
 Constitutional Law, 404. 
 Taxation of, see Taxes, 68, 69. 
 
 Appointing attorney to accept service. 
 
 83. A building and loan association is not 
 within a statute requiring foreign banking 
 concerns to appoint an attorney to ac- 
 cept, and upon whom lawful service may be 
 made of, process necessary to give jurisdic- 
 tion of the corporation to the state courts. 
 Pacific States Savings, L. & Bldg. Co. v. 
 Hill, 40 Or. 280, 67 Pac. 103, 56: 163 
 Securities deposited by. 
 
 84. Securities deposited by a foreign 
 building and loan association "in trust for 
 the benefit and security of its members in 
 this state," in order to obtain the right to 
 do business in the state under the Wiscon- 
 sin statute (Sanb. & B. Ann. Stat. 2014a, 
 2014b), will be sold or collected in case of 
 insolvency, and the proceeds applied accord- 
 ing to the- trust, and the residue only turned 
 over to the receiver appointed in the state 
 of incorporation. Lewis v. American Sav. 
 & L. Asso. 98 Wis. 203, 73 N. W. 793, 39: 559 
 
 85. Only resident shareholders and credit- 
 ors are entitled to participate in the pro- 
 ceeds of securities deposited with the state 
 treasurer by a foreign building and loan 
 association under the Wisconsin statute 
 (Sanb. & B. Ann. Stat. 2014a, 2014b) in 
 order to obtain the right to do business in 
 the state. Id. 
 
 86. The compliance by a foreign building 
 and loan association with the laws of the 
 
 state which created it need not be investi 
 gated by the authorities of another state in 
 which it deposits securities as required by 
 statute in order to obtain a license to do 
 business therein. Id. 
 
 Exemption from usury statutes. 
 Conflict of Laws as to, see Conflict of Laws, 
 56-59. 
 
 87. A statute giving special advantages 
 to building and loan associations, as to the 
 rate of interest they may receive on loans, 
 will, unless a contrary intention appears, 
 be confined in its operation to domestic 
 corporations. Falls v. United States Sav. 
 L. & B. Co. 97 Ala. 417, 13 So. 25, 24: 174 
 
 88. The exemption of a building associa- 
 tion from usury by the Illinois corporation 
 act, If 78 (Starr & C. Stat. p. 632), does not 
 extend to an association incorporated in 
 another state, which derives its fund for 
 loaning from the issuing of paid-up stock, 
 which Illinois associations are not author- 
 ized by statute to issue. Rhodes v. Missouri 
 Sav. & L. Co. 173 111. 621, 50 N. E. 998, 
 
 42: 93 
 
 89. A foreign building and loan associa- 
 tion which localizes its business in a state 
 cannot complain of a provision of its laws 
 making foreign associations subject to the 
 usury laws, but exempting domestic asso- 
 citations therefrom. Shannon v. Georgia 
 State Bldg. & L. Asso. 78 Miss. 955, 30 So. 
 51, 57: 800 
 
 IX. Editorial Notes. 
 
 i. Generally. 
 
 Power of building association to issue ne- 
 gotiable paper. 43: 419. 
 Power to borrow money. 11: 847.* 
 Conflict of laws as to usurv in contracts 
 
 of. 62: 64. 
 
 How far loans are usurious. 18: 129. 
 Right to apply payments made on stock 
 in a building and loan as- 
 sociation upon a mortgage 
 given for a loan by the 
 same member. 29: 120. 
 Associations not protected by law. 29: 
 
 120. 
 Payments not ipso facto a reduction of 
 
 the mortgage. 29: 121. 
 Right of third persons to require the 
 
 . application. 29: 121. 
 Associations on the terminating plan. 
 
 29: 123. 
 Rule under changed conception of loan 
 
 association. 29: 127. 
 Right to a credit of profits. 29: 129. 
 Forfeiture. 29: 131. 
 Insolvencv or abandonment of scheme. 
 
 29: 132. 
 
 Change of rules. 29: 134. 
 Right of third person to resist applica- 
 tion. 29: 134. 
 
 Effect of special agreement. 29: 134. 
 Liability of advanced member of building 
 and loan association to 
 assessment for losses. 29: 
 177.
 
 324 
 
 BUILDING COMMITTEE BUILDINGS. 
 
 Decisions proceeding on the partner- 
 ship theory. 29: 177. 
 
 The original loan association theory. 
 29: 178. 
 
 Effect of rules of provisions in mort- 
 gage. 29: 180. 
 
 Change of rules. 29: 181. 
 
 Liability as members after release of 
 mortgage. 29: 181. 
 
 Statutory provisions. 29: 181. 
 Fixed premiums or fixed minimum of premi- 
 ums in building and loan 
 associations. 35: 244. 
 
 2. Withdrawals. 
 
 What is a withdrawal. 35: 289. 
 
 Right to withdraw. 35: 289. 
 
 Status of withdrawing member. 35: 290. 
 
 Change of rules affecting withdrawal. 35: 
 
 291. 
 
 Notice of withdrawal. 35: 292. 
 Terms and conditions of withdrawal. 35: 
 292. 
 
 In general. 35: 292. 
 
 Effect of losses on withdrawing mem- 
 bers. 35: 293. 
 
 Interest on withdrawals. 35: 293. 
 
 Applying withdrawal accounts on mort- 
 gage. 35: 294. 
 
 Arbitration of claims. 35: 294. 
 Pavment of withdrawals; priorities. 35: 
 
 294. 
 
 Withdrawal by borrowing members. 35: 
 296. 
 
 In general. 35: 296. 
 
 Effect of losses. 35: 296. 
 
 Amount to be paid. 35: 297. 
 When association is insolvent or is being 
 
 wound up. 35: 298. 
 Termination of liabilitv by withdrawals. 
 
 35: 300. 
 
 Orders to pay withdrawals. 35: 300. 
 Action to enforce withdrawal. 35: 301. 
 3. Fines. 
 Nature and validity. 35: 215. 
 
 In general. 35: 215. 
 
 Power to impose. 35: 215. 
 
 On whom. 35: 216. 
 
 For what. 35: 216. 
 Amount; reasonableness. 35: 217. 
 Construction of provisions imposing. 35: 
 
 218. 
 
 Cumulative and successive fines. 35: 219. 
 Fines on fines. 35: 220. 
 Interest on fines. 35: 220. 
 Secured by mortgage. 85: 220. 
 Enforcement. 35: 221. 
 Payment; crediting. 35: 221. 
 Remission; failure to enforce. 35: 222. 
 When fines cease. 35: 222. 
 
 BUILDING COMMITTEE. 
 Ratification of Act of, see Corporations, 245. 
 
 BUILDING CONTRACT. 
 
 Construction of, see Contracts, 355, 358, 359. 
 
 Effect of Destruction of Building before 
 
 Completion of Contract see Contracts, 
 
 654, 690-694. 
 Sufficiency of Performance of, see Contracts, 
 
 702, 703, 708-710. 
 Certificate of Performance of, see Contracts, 
 
 IV. d. 
 
 BUILDING PERMITS. 
 
 Estoppel by Issuance of, see Estoppel, 20. 
 
 Mandamus to Compel Issuance of, see Man- 
 damus, 152. 
 
 Liability of City for Granting, see Munici- 
 pal Corporations, 440. 
 
 See also Buildings, 11-14. 
 
 BUILDINGS. 
 
 I. Statutory and Municipal Regulations. 
 
 a. In General. 
 
 b. Fire Escapes.- 
 II. Private Rights. 
 
 III. Editorial Notes. 
 
 Requiring Water Closets in, see Constitu- 
 tional Law, 360. 
 
 Prohibiting Malicious Erection of, see Con- 
 stitutional Law, 655. 
 
 Effect of Destruction of, on Contract to Re- 
 pair, see Contracts, 654. 
 
 Right to Recover on Contract for, on De- 
 struction of, before Completion, see 
 Contracts, 690-694. 
 
 Acceptance of, see Contracts, 708-710. 
 
 Measure of Damages for Injury to or De- 
 struction of, see Damages, III. k, 2. 
 
 Easement for, see Easements, 25, 60, 80, 96, 
 97. 
 
 Over Passage Way, see Easements, 81-83. 
 
 Easement of Stairway, see Easements, 84. 
 
 Injury by Electric Wires on, see Elec- 
 tricity, 45-49, 77-81. 
 
 Elevators in, see Elevators, II. 
 
 As Encroachment, see Encroachment. 
 
 Presumption and Burden of Proof as to Fall 
 of, see Evidence, 209, 546, 547. 
 
 Opinion Evidence as to What is a Tenement, 
 see Evidence, 1371. 
 
 Fireman as Licensee in, see Fire Depart- 
 ment, 1, 2. 
 
 Fixtures in, see Fixtures. 
 
 Encroachment of, on Highway, see High- 
 ways, 42, 114, 115, 125. 
 
 Liability for Injuries Caused in Moving 
 Building along Highway, see High- 
 ways, 291. 
 
 Materials for, in Highway, see Highways, 
 111, 261, 302-305, 323, and also infra, 
 III. 1. 
 
 Injury by Fall of Snow from, see High- 
 ways, 315, 329. 
 
 Precaution in Erection of, see Highways, 
 334, 335. 
 
 Homestead in, see Homestead, 10-15, 32, 36. 
 
 Homestead in Rooms in, see Homestead, 35. 
 
 Injunction against, see Injunction. 122, 163, 
 167. 379. 
 
 Injunction against Erection of, see Injunc- 
 tion, 181-185.
 
 BUILDINGS, I. a. 
 
 325 
 
 Proceeding to Compel Removal of, see At- 
 torney General, 3. 
 
 Injunction against Removal of, see Injunc- 
 tion, 72, 174, 500. 
 
 Compelling Removal of, see Injunction, 43, 
 45. 
 
 Injunction against Destruction of, see In- 
 junction, 170. 
 
 Enjoining Publication of Secret Information 
 as to, see Injunction, 125, 126. 
 
 When Separate for Insurance Purposes, see 
 Insurance, 1331. 
 
 Tenant's Right to Remove, see Landlord and 
 Tenant, 116-122. 
 
 Liability of Landlord for Injury by Defects 
 in, see Landlord and Tenant, III. c. 
 
 Lateral Support for, see Lateral Support, 
 II.; III. 
 
 License to Use Stairway on Outside of, see 
 License, 6. 
 
 Removal of, by Life Tenant, see Life Ten- 
 ants, 25. 
 
 Lien on, see Mechanics' Liens. 
 
 Mortgage of, see Mortgage, 32. 
 
 Negligence in Fall of, see Negligence, 77-87. 
 
 Negligence as to Condition of, see Landlord 
 and Tenant, III. c.; IV. 17-22; Negli- 
 gence, I. c; Trial. 351. and also infra, 
 III. 4. 
 
 As Nuisance, see Equity, 13; Highways, 48, 
 and also infra, III. 3. 
 
 Liability for Breaking into, see Officers, 210. 
 
 Possession as Basis of Action for Destruc- 
 tion of, see Parties, 20. 
 
 On Park or Square, see Parks and Squares, 
 3-5. 
 
 Party Wall for, see Party Wall. 
 
 Tax on, see Taxes, 37. 
 
 Loss of, by Fire, After Contract of Sale, 
 see Vendor and Purchaser, 13, 14. 
 
 As to Walls, see Walls; Party Walls. 
 
 I. Statutory and Municipal Regulations. 
 a. In General. 
 
 Due Process in Establishing Building Line, 
 see Constitutional Law, 869. 
 
 Restriction of Building on Boulevard, see 
 Eminent Domain, 221. 
 
 Estoppel to Repudiate Conditions in Build- 
 ing Regulation, see Estoppel, 268. 
 
 Requirement of Roofed Passage Way Dur- 
 ing Construction of, see Municipal Cor- 
 porations, 134. 
 
 For Editorial Notes, see infra, HI. 3. 
 
 1. A monument consisting of a statute 
 upon a pedestal is not a "building" within 
 the meaning of a statute prohibiting the 
 erection of buildings on a public square, 
 which is to remain a public green and walk 
 forever. Re Washington Monument Fund, 
 154 Pa. 621, 26 Atl. 647, 20: 323 
 
 2. The full market value of the property, 
 and not the value above encumbrances, 
 should be taken into consideration in es- 
 timating the reasonableness of a proposed 
 outlay to which a property owner will be 
 subjected in complying with the require- 
 ments of a statute enacted for the pro- 
 
 motion of the public health. Tenement 
 House Department v. Moeschen, 179 N. Y. 
 325, 72 N. E. 231. 70: 704 
 
 Provision as to insecurity of building. 
 
 3. An ordinance requiring the owner of 
 a dangerous or insecure wall or building to 
 make it safe within twelve hours after 
 notice does not apply to a building which is 
 safe for the purpose of commerce and trade, 
 but falls by reason of the large quantities 
 of water thrown into and upon it in ex- 
 tinguishing a fire, while it is stored with 
 stationery by a tenant, thus putting it to 
 an extraordinary strain. Woodruff v. 
 Bowen, 136 Ind. 431, 34 N. E. 1113, 22: 198 
 
 4. An ordinance declaring that any build- 
 ing or structure of any kind partially de- 
 stroyed by fire, which shall be permitted to 
 remain in such condition after notification 
 to remove, repair or rebuild it, shall consti- 
 tute a nuisance, without making any limita- 
 tions with regard to its dangerous character 
 by reason of its weak condition or location 
 or surroundings, is void. Evansville v. 
 Miller, 146 Ind. 613, 45 N. E. 1054, 38: 161 
 Height. 
 
 Compensation for Limiting, see Municipal 
 Corporations, 58. 
 
 See also. Parks and Squares, 2; Public Mon- 
 eys, 17. 
 
 5. An information in equity by the at- 
 torney general is the proper form of pro- 
 ceeding for the enforcement of jpublic rights 
 against a building erected above the height 
 permitted by statute in front of a public 
 park. Knowlton v. Williams, 174 Mass. 476, 
 55 N. E. 77, 47: 314 
 
 6. A statutory remedy for enforcing build- 
 ing laws, given by Mass. Stat. 1894, chap. 
 257, to the city of Boston, does not exclude 
 a suit by the attorney general to enforce 
 Mass. Stat. 1898, chap. 452, prohibiting the 
 erection of buildings adjacent to Copley 
 square above a certain height, and requir- 
 ing the city to pay damages for the interest 
 in lands thus taken, thus giving the city a 
 pecuniary interest against the enforcement 
 of the law. . Id. 
 
 7. An approval of certain sculptured or- 
 naments on the face of the wall on two 
 sides of a building above the lawful height, 
 made by park commissioners under Mass. 
 Stat. 1898, chap. 452, authorizing them to 
 approve sculptured ornaments extending 
 above the permitted height of the building, 
 does not relieve the building from the pro- 
 hibition of the statute, when its solid brick 
 walls extend 6 feet above the limit, and 
 its roof is at the top. Id. 
 Water supply. 
 
 Due Process as to, see Constitutional Law, 
 
 867. 
 Police Power as to, see Constitutional Law, 
 
 1005. 
 
 8. One place of water supply on each 
 floor of a tenement house, fairly accessible 
 to all occupants of the floor, is all that can 
 usually or reasonably be required for health 
 and fire protection, and therefore all that 
 the board of health has power to order un- 
 der N. Y. Laws 1887, chap. 84, amending 
 663 of the New York city consolidation
 
 32C 
 
 BUILDINGS, I. b. 
 
 act. New York Health Dept. v. Trinity 
 
 Church, 145 N. Y. 32, 39 N. E. 833. 27: 710 
 
 Water-closets. 
 
 Police Power as to. see Constitutional Law, 
 
 1002, 1003. 
 Requirement of, as a Taking of Property, 
 
 see Eminent Domain, 218. 
 
 9. An act providing that buildings de- 
 signed for habitation shall have sufficient 
 water-closets connected with the public 
 sewers, and imposing a penalty _ on "any 
 person violating any provision" of it, applies 
 to violations which continue after its pas- 
 sage, as well as to those which then come 
 into existence. Com. v. Roberts, 155 Mass. 
 281, 29 N. E. 522, 16: 400 
 
 10. A water-closet- within the meaning of 
 an act providing that every building de- 
 signed for habitation shall have sufficient 
 water-closets connected with the sewer and 
 shall not have a cess-pool or privy, is an 
 arrangement with a permanent water sup- 
 ply which can be vised systematically and 
 regularly for carrying whatever is deposited 
 therein to the sewer, and does not include a 
 privy vault which, although connected with 
 the sewer, can be flushed only by a rain 
 storm or from a hydrant. Id. 
 Building permits. 
 
 Estoppel by Issuance of, see Estoppel, 20. 
 Mandamus to Compel Issuance of, see 
 
 Mandamus, 152. . 
 Liability of City for Granting, see Municipal 
 
 Corporations, 440. 
 
 11. An ordinance prohibiting any building 
 or addition to any building without per- 
 mission of the aldermen is void because it 
 would make the right depend on their arbi- 
 trary decision, subject to no uniform rule 
 of action. State v. Tenant, 110 N. C. 609, 
 14 S. E. 387, 15:423 
 
 12. An ordinance making the right of the 
 owner of property to improve and use it de- 
 pendent upon the decision of a city building 
 inspector in respect to a permit, from which 
 there is no appeal is an unconstitutional 
 interference with the rights of citizens. 
 Sioux Falls v. Kirby, 6 S. D. 62, 60 N. W. 
 156,' 25: 621 
 
 13. Charter authority to make regulations 
 to guard against construction of buildings 
 so as to be unsafe or inflammable, or of- 
 fensive or deleterious to health, or danger- 
 ous to life, limb, or property, does not cover 
 an ordinance authorizing the refusal of per- 
 mits for the erection of buildings unless 
 they are to conform in size, general 
 character, and appearance to those previous- 
 ly erected in the same locality, and to be 
 such as will not tend to depreciate the value 
 of surrounding improved or unimproved 
 property; nor does the grant of general 
 police power, and power to provide for the 
 general welfare, authorize such ordinance. 
 Bostock v. Sams, 95 Md. 400, 52 Atl. 665, 
 
 59: 282 
 
 14. An ordinance providing for the grant- 
 ing of building permits is not rendered void 
 in toto by the invalidity of a provision that 
 no permit shall be granted unless, in the 
 judgment of the proper officers, the size, 
 general character, or appearance of the 
 
 building will conform to the general char- 
 acter of the buildings previously erected in 
 the same locality, and will not in any way 
 tend to depreciate the value of surrounding 
 property. Id. 
 
 Fireproof shutters. 
 
 Failure to Comply with Ordinance as to, see 
 Bailment, 28. 
 
 15. An ordinance which requires the plac- 
 ing of fireproof shutters upon the windows 
 of brick buildings within a city imposes a 
 duty for the purpose of giving to the gen- 
 eral public protection against fire, which the 
 common law did not provide, and is not 
 intended for the benefit of individuals who 
 may be injured by failure to comply there- 
 with. Frontier Steam Laundry Co. v. Con- 
 nolly (Neb.) 101 N. W. 995, 68: 425 
 Fire limits. 
 
 Estoppel to Tear down Wooden Building 
 
 within, see Estoppel, 20. 
 Rebuilding of Wooden Building within, see 
 
 Injunction, 114. 
 Joint Action to Prevent Rebuilding, see 
 
 Parties, 118. 
 Liability for Failure to Enforce Ordinance 
 
 as to, see Municipal Corporations, 471. 
 
 16. An ordinance establishing fire limits 
 within which wooden buildings cannot be 
 erected is authorized by a city charter giv- 
 ing the city power to make regulations for 
 the prevention of fire, provided such means 
 are proper or necessary to the accomplish- 
 ment of the end in view. Olympia v. 
 Mann, 1 Wash. 389, 25 Pac. 337, 12: 150 
 
 17. The reservation by a city council to 
 itself, in an ordinance establishing fire limits 
 within which the erection of wooden build- 
 ings is prohibited, of the right to grant 
 special permits for the erection of such 
 buildings within such limits, does not make 
 the ordinance so unreasonable as to render 
 it void. Id. 
 
 18. A municipality cannot, without ex- 
 press authority, absolutely and without re- 
 gard to circumstances, prohibit the making 
 upon any wooden building within designated 
 limits, of repairs to the amount of $300 or 
 over. Mount Vernon First Nat. Bank v. 
 Sarlls, 129 Ind. 201, 28 N. E. 434, 13: 481 
 
 19. No judicial proceeding is necessary to 
 give a city the right to tear down a wooden 
 building erected in violation of an ordinance 
 fixing fire limits. Eichenlaub v. St. Joseph, 
 113 Mo. 395, 21 S. W. 8, 18: 590 
 
 20. An ordinance prohibiting wooden 
 buildings within fire limits, which is enacted 
 under a charter which allows such regula- 
 tions to be made only by ordinance, cannot 
 be suspended by a simple resolution of the 
 city council, which is not presented to the 
 mayor, and which does not constitute an or- 
 dinance; and a permit given in accordance 
 with such resolution is void. Id. 
 
 b. Fire Escapes. 
 
 Delegation of Judicial Power as to, see Con- 
 stitutional Law, 241, 242. 
 
 Repeal of Ordinance as to, see Municipal 
 Corporations, 84. 
 
 Title of Statute as to, see Statutes. 217.
 
 BUILDINGS, I. b. 
 
 327 
 
 Special Legislation as to, see Statutes, 297. 
 Construction of Statute as to, see Statutes, 
 
 511. 
 
 Question for Jury as to, see Trial, 94. 
 For Editorial Notes, see infra, III. 4. 
 
 21. The second story of a building is one 
 of "the different upper stories" within the 
 meaning of a statute requiring fire escapes, 
 although it is made applicable only to build- 
 ings "more than two stories high." Rose v. 
 King, 49 Ohio St. 213, 30 N. E. 267, 15: 160 
 
 22. The location in the Ohio Revised Stat- 
 .utes, under the general heading "Municipal 
 
 Corporations," of provisions of a statute 
 as to convenient exits from the upper stories 
 of tenement houses, factories, workshops, 
 inns, or public houses, which was first con- 
 nected with an independent statute, does 
 not confine the effect thereof to buildings 
 within municipal corporations,*, although 
 some sections of the act provide for penal- 
 ties to be recovered by municipal officers, as 
 the manifest purpose of the statute is the 
 protection of life and limb, for the benefit 
 of dwellers in such buildings wherever lo- 
 cated. Id. 
 Liability of owner generally. 
 For Editorial Notes, see infra, III. 4. 
 
 23. The duty to provide fire escapes for 
 buildings properly constructed and peculiar- 
 ly exposed to danger of fire from the char- 
 acter of the work to be carried on therein 
 did not exist at common law. Pauley v. 
 Steam Gauge & L. Co. 131 N. Y. 90, 29 N. E. 
 999; 15: 194 
 
 24. Failure of the owner of a building to 
 comply with the ordinance as to fire escapes, 
 even if not of itself the ground of an action 
 by a person injured thereby, is at least a 
 matter to be considered in connection with 
 other facts and circumstances, on the ques- 
 tion of negligence. Schmalzried v. White, 97 
 Tenn. 36, 36 S. W. 393, 32: 782 
 
 25. Action by the municipal authorities 
 is not necessary to charge the owner of a 
 building with liability for failure to provide 
 fire escapes, under a statute requiring 
 buildings to be equipped with them, and 
 directing such authorities to make, annually, 
 careful inspection of the safeguards pro- 
 vided, pass upon their sufficiency, and notify 
 the owner of the building in case they are 
 insufficient, and imposing a penalty on him 
 for failure to comply with their recom- 
 mendations. Carrigan v. Stillwell, 97 Me. 
 247, 54 Atl. 389, 61 : 163 
 
 26. Notice from the inspector is not neces- 
 sary to charge the owner of a building 
 with the duty of placing a fire escape there- 
 on, under a statute providing that within 
 three months after the passage of the act 
 all buildings of certain kinds shall be pro- 
 vided with fire escapes although one sec- 
 tion provides that any person "who shall be 
 required" to place fire escapes on his build- 
 ing shall obtain a permit, such requirement 
 referring to the duty imposed by the statute 
 itself, and not to any act of the inspector. 
 Arms v. Ayer, 192 111. 601, 61 N. E. 851, 
 
 58: 277 
 
 27. A civil action for damages may lie for 
 
 the owner's neglect of "the duty . . . 
 to provide a convenient exit from the differ- 
 ent upper stories" of a tenement house, as 
 provided by Ohio Rev. Stat. 2573, although 
 the notice by the mayor, provided for by 
 2574, on failure to comply with which for 
 sixty days the owner or agent shall be liable 
 for a penalty, and "may also be held for 
 civil damages to the party injured," has not 
 been given. Rose v. King, 49 Ohio St. 213, 
 30 N. E. 267, 15: 160 
 
 28. Compliance with the terms of a stat- 
 ute requiring fire escapes, by providing es- 
 capes which are examined and approved in 
 number, character, and location by the pub- 
 lic officer, appointed for that purpose, re- 
 lieves 1 the owner of the building from any 
 liability for failure to provide further es- 
 capes. Pauley v. Steam-Gauge & L. Co. 131 
 N. Y. 90, 29 N. E. 999, 15 : 194 
 
 29. An iron ladder constituting a fire 
 escape which is extended from the upper 
 story of a building to the roof is a fit and 
 suitable substitute for an inside ladder and 
 scuttle required by statute. Id. 
 Liability of hotelkeeper. 
 
 30. Failure to construct fire escapes on a 
 hotel as required by an ordinance does not 
 make the proprietor liable for the death of 
 a guest by fire, unless that was caused by 
 the lack of the fire escapes. Weeks v. Mc- 
 Nulty, 101 Tenn. 495, 48 S. W. 809, 43: 185 
 
 31. Want of fire escapes is not shown to 
 be the cause of the death of ar guest in a 
 hotel by fire, where it is not shown that he 
 was at a window or in any position where 
 a fire escape would have afforded him any 
 benefit, but there is evidence that he had 
 locked himself in his room and tried to 
 break the door to make his escape, and also 
 that he could have safely escaped by leaping 
 frojn the window to the roof of an adjoin- 
 ing building. Id. 
 Liability of landlord. 
 
 32. Fire escapes need not be provided by 
 a landlord for the safety of a tenant, or for 
 anyone on the premises by the latter's invi- 
 tation or permission, unless this is required 
 by statute or ordinance. Schmalzried v. 
 White, 97 Tenn. 36, 36 S. W. 393, 32: 782 
 
 33. The owner of a building required by 
 statute to be provided with fire escapes ia 
 not relieved from liability for their absence 
 by the fact that the building was in pos- 
 session of a tenant where the statute re- 
 quires notice to be given to him in case 
 they are found to be unsafe, and imposes a 
 penalty upon him for neglect to comply with 
 recommendations in regard to them. Carri- 
 gan v. Stillwell, 97 Me. 247, 54 Atl. 389, 
 
 61: 163 
 
 34. A four-story building occupied by 
 three families living in separate apartments 
 on the second floor, and by two families 
 living in separate apartments on the third 
 floor, numbering in all sixteen persons, all 
 tenants of one owner, is a "tenement 
 house" within the meaning of Ohio Rev. 
 Stat. 2573, requiring convenient exits from 
 the upper stories. Rose v. King, 49 Ohio St. 
 213, 30 N. E. 267, 15: 160
 
 338 
 
 BUILDINGS, II. III. 
 
 Liability of master. 
 
 Sufficiency of Proof of Master's Negligence, 
 see Evidence, 2248. 
 
 35. Operatives injured by the omission of 
 the owner of a building to provide fire es- 
 capes as required by the New York act of 
 1887 are entitled to recover from him the 
 damages occasioned thereby. Pauley v. 
 Steam-Gauge & L. Co. 131 N. Y. 90, 29 
 N. E. 999, 15: 194 
 
 36. The existence of a chute leading into 
 the basement of a building, almost under 
 the lower end of a fire escape, so as to 
 create danger that persons using the fire 
 escape may fall into the basement, will not 
 charge the owner of the building, on the 
 ground of negligence, with liability for the 
 death of an employee by fire, which was not 
 in any respect caused by such chute. Id. 
 
 37. A building having above the first floor 
 a restaurant kitchen containing three em- 
 ployees is not within the meaning of a stat- 
 ute requiring "fire escapes upon buildings 
 in which any trade, manufacture, or busi- 
 ness is carried on" requiring the presence 
 of workmen above the first floor. Carrigan 
 v. Stillwell, 99 Me. 434, 59 Atl. 683, 68: 386 
 
 38. It is not negligence for a master to 
 fasten windows leading to fire escapes, if 
 this does not violate any statute and the 
 windows can be easily broken through to 
 reach the fire escapes if there is not time 
 to unfasten them. Huda v. American Glu- 
 cose Co. 154 N. Y. 474, 48 N. E. 897, 
 
 40: 411 
 
 39. Screwing down the windows of a fac- 
 tory so that there is no access to fire es- 
 capes except by breaking the windows, and 
 forbidding employees to open the win- 
 dows, in order to preserve a high temper- 
 ature, which is necessary for the business, 
 do not violate a statute requiring the con- 
 struction and maintenance of fire escapes on 
 such buildings where the windows are so 
 light in frame as to offer but the slighest 
 difficulty in breaking through, if there is not 
 time to unscrew them. Id. 
 
 II. Private Rights. 
 
 Equitable Relief in Case of Building Wrong- 
 fully Erected on Another's Land, see 
 Equity, 95. 
 
 40. The fact that a building has stood for 
 ten years without falling is not sufficient to 
 disprove that it was negligently construct- 
 ed. Waterhouse v. Joseph Schlitx Brew. 
 Co. 12 S. D. 397, 81 N. W. 725, 48: 157 
 
 41. Ordinary care is not the full measure 
 of the duty of one who arranges a roof and 
 goitter in such a way that the first will col- 
 lect water and the second discharge it 
 through an aperture upon a neighbor's land. 
 Fitzpatriok v. Welch, 174 Mass. 486, 55 
 N. E. 178. 48: 278 
 
 42. When a building threatens ruin, the 
 neighbor has a right of action against the 
 owner, under the Louisiana Code, to compel 
 him to cause such a building to be demol- 
 ished or propped up. Tn the meantime, if 
 
 there be danger of any damage by its fall, 
 he may be authorized to make the necessary 
 works, for which he shall be reimbursed 
 after the danger shall have been ascertained. 
 Factors & T. Ins. Co. v. Werlein, 42 La. 
 Ann. 1046, 8 So. 435, 11: 361 
 
 Grant of rooms in building. 
 
 43. Grants of rooms or apartments in a 
 building, like leases of the same, must be 
 construed according to the intention of the 
 parties and with reference to the subject- 
 matter upon which they operate. Hahn v. 
 Baker Lodge No. 47, A. F. & A. M. 21 Or. 
 30, 27 Pac. 166, 13: 158 ' 
 
 44. A conveyance of the middle room of 
 the upper story of a building, with an ease- 
 ment of ingress and egress, does not grant 
 any part of the building, or any interest 
 which will continue after a fire has de- 
 stroyed the greater part of the building, 
 and the identity of the room and its ex- 
 istence as such have been extinguished. Id. 
 Malicious erection of building. 
 
 45. Structures intended to spite, injure, 
 or annoy an adjoining proprietor, within 
 the meaning of Ballinger's (Wash.) Anno. 
 Codes & Stat. 5433 (2 Hill's Anno. Stat. 
 & Codes, 268), providing that an injunc- 
 tion may be granted to restrain the mali- 
 cious erection of such a structure or to com- 
 pel its removal, do not include a structure 
 which really enhances the value, usefulness, 
 or enjoyment of land, but include only such 
 as serve no really useful and reasonable 
 purpose. Karasek v. Peier, 22 Wash. 419, 
 61 Pac. 33, 50: 345 
 Restrictions. 
 
 In Covenant, see Covenant, 28-41, 47, 56, 57, 
 63-65, 114. 
 
 In Dedication, see Dedication, 24. 
 
 Against Obstructing View by, see Ease- 
 ments, 56, 57. 
 
 Parol Evidence as to, see Evidence, 1140. 
 
 Injunction against Violation of, see Injunc- 
 tion, 379. 
 
 Creation of Conditional Fee by, see Real 
 Property, 34. 
 
 46. A restriction against the erection of 
 buildings upon land dedicated as a park is 
 not removed by the change of the use of the 
 buildings abutting thereon from residence 
 to business purposes. Chicago v. Ward, 169 
 111. 392, 48 N. E. 927, 38: 849 
 
 47. The submergence of lands dedicated 
 as a public park with the express condition 
 that no buildings shall be erected thereon, 
 as the result of heavy storms, and the 
 subsequent reclamation by the city of such 
 land, does not destroy the restrictions. Id. 
 
 III. Editorial Notes. 
 Lateral Support for, see Lateral Support, 
 
 m. 
 
 i. Generally. 
 
 Covenants with respect to. 3: 580.* 
 
 Injury to. by blasting. 17: 220. 
 
 Covenant against. 3: 579.* 
 
 Erected on another's land. 10: 723.*
 
 BULKHEAD BURGLARY. 
 
 829 
 
 Mechanic's lien upon buildings distinct from 
 
 land. 62 : 369. 
 
 As to Mechanics' Liens, Generally, see 
 Mechanics' and Laborers' 
 Liens, IX. 
 
 Effect of sale of part of building. 13: 158.* 
 Prescriptive right to maintain. 53: 901. 
 Placing building material in street. 14: 
 
 560; 19: 643. 
 Negligence as to electric wires on or in 
 
 buildings. 32 : 400. 
 Building materials not actually attached 
 
 as fixtures. 69: 898. 
 2. Destruction of. 
 
 Liability of city for destroying buildings to 
 stop spread of fire. 19: 
 197. 
 Liability for destruction of, as a nuisance. 
 
 19: 198. 
 
 Limit of power of municipality lt> destroy 
 building as a nuisance. 
 38: 166. 
 3. Control over; regulations concerning; 
 
 nuisance. 
 
 Constitutionality of police regulations con- 
 cerning. 16: 400. 
 
 Municipal control over erection of build- 
 ings. 12: 150;* 13: 481.* 
 Delegation of municipal power as to. 20: 
 
 725. 
 
 Municipal power over buildings as nui- 
 sances. 38: 161. 
 
 Municipal power over buildings as nui- 
 sances in street. 39: 662. 
 Injunction by municipality against! nui- 
 sance of. 41 : 328 ; 42 : 822. 
 4. Duty and liability in respect of condi- 
 tion of. 
 
 As to Negligence with Respect to Premises, 
 Generally see Negligence, 
 HI. 7. 
 
 As to Liability with Respect to Condition of 
 Leased Premises, General- 
 ly, see Landlord and Ten- 
 ant, IV. 17-22. 
 Duty of owner of building to keep it in safe 
 
 condition. 11: 361.* 
 Duty as to fire escapes on. 15: 160. 
 Individual liability for falling walls or 
 buildings. 11:361;* 34: 
 557. 
 
 Liability of owner or occupier. 34: 557. 
 Building in possession of contractor. 
 
 34: 558. 
 Liability for injury to person in street. 
 
 34: 559. 
 
 Liability for injury to person on adjoin- 
 ing property. 34: 560. 
 Liability for injury to person on prop- 
 erty. 34: 561. 
 Neglect to comply with covenants in 
 
 lease. 34: 562. 
 Illegal building. 34: 562. 
 Liability of firemen. 34: 562. 
 Act of third person. 34: 563. 
 Vis major. 34 : 563. 
 Fire. 34: 563. 
 
 Contributory negligence. 34: 563. 
 Liability of county for injury to real prop- 
 erty on account of condi- 
 tion of buildings. 39: 70. 
 
 BULKHEAD. 
 
 Maintenance of, in Canal, see Canal, 10, 11. 
 Limitation of Action for Injury by Erec- 
 tion of, see Limitation of Actions, 142. 
 
 BULL. 
 
 Warranty of, see Sale, 87. 
 
 BUNCO STEERING. 
 
 Indictment for, see Indictment, etc., 65. 
 
 BURDEN OF PROOF. 
 
 In General, see Evidence, II. 
 Instruction as to, see Trial, 697-704. 
 
 BURGLARY. 
 
 Attempt to Commit, see Criminal Law, 37. 
 Effect of Instigation or Consent on Criminal 
 
 Responsibility see Criminal Law, 62, 
 
 63, 65-67. 
 Evidence of Other Burglaries, see Evidence, 
 
 2012. 
 Sufficiency of Proof of Intent, see Evidence, 
 
 2288. 
 Proof of Homicide in Attempt to Commit, 
 
 see Evidence, 2379-2381. 
 Killing of Burglar, see Homicide, 14. 
 Indictment for, see Indictment, etc., 130. 
 Question for Jury as to, see Trial, 78. 
 Instruction as to, see Trial, 680. 
 Sufficiency of Verdict, see Trial, 923. 
 
 1. A servant having a right to lodge in 
 his master's house is guilty of burglary 
 if he opens a closed door or raises a sash 
 and enters the building, not for the purpose 
 of using the house as a lodging place, but 
 with intent to steal his master's goods. 
 State v. Howard, 64 S. C. 344, 42 S. E. 173, 
 
 58: 685 
 
 2. Raising a window partly open so as to 
 create an aperture sufficient to admit of en- 
 trance into a building, which is subsequently 
 effected through the opening, is a sufficient 
 breaking to come within the statute defining 
 burglary as the "breaking and entering into 
 a mansion house by night with intent to 
 commit a felony." Claiborne v. State. 113 
 Tenn. 261, 83 S. W. 352, 68: 859 
 
 3. A burglarious entry into a granary 
 was made by boring holes into it from the 
 outside with an auger, though the burglar 
 did not and could not get into the building, 
 when the auger was used not only for the 
 purpose of breaking into the building, but 
 also for the purpose of committing a felony, 
 which was accomplished by the removal of 
 grain from the granary through the holes 
 bored therein, by the aid of gravitation,
 
 330 
 
 BURIAL BUTTER. 
 
 which forced grain out through the aper- 
 ture. State v. Crawford, 8 N. D. 539, 
 80 X. W. 193, 46: 312 
 
 4. Burglary may be committed by the 
 owner of a horse in feloniously breaking 
 and entering a livery stable where it is 
 kept, for the purpose of removing it and 
 depriving the stable keeper of his lien upon 
 it for food and care. State v. Nelson, 36 
 Wash. 126, 78 Pac. 790, 68: 283 
 
 Editorial Notes. 
 
 Instigation to commit. 25: 342. 
 
 What intoxication will excuse. 36: 470. 
 
 Criminal liability for agent's act in. 41: 
 652. 
 
 Criminal liability of children for. 36: 201. 
 
 Homicide in attempting to prevent. 69: 534. 
 
 Proof of corpus delicti in. 68: 41. 
 
 Necessity of instruction as to law on cir- 
 cumstantial evidence on 
 orosecution for. 69: 197, 
 207. 
 
 Cruel and unusual punishment for. 35: 570. 
 
 Evidence of other crimes in prosecution for. 
 62: 236, 285, 317, 324. 
 
 BURIAL. 
 
 Damages for Interference with 
 
 Right of, see Damages, 30. 
 Expense of, see Funeral Expenses. 
 Within City Limits, Ordinance as to, see 
 
 Municipal Corporations, 203-210. 
 Parties to Action for Interference with 
 
 Right of, see Parties, 149. 
 See also Cemeteries; Corpse. 
 
 Editorial Notes. 
 
 Rights and duties in regard to; right to 
 
 control disposition of 
 
 body. 14: 85. 
 Liability for disinterment of dead bodies. 
 
 42: 721. 
 Prescriptive right with respect to burial of 
 
 dead. 53: 895. 
 Character of estate or property of owner in 
 
 burial lot. 67: 118. 
 Power of coroner to order a post mortem 
 
 examination. 31 : 540. 
 Municipal regulation of burial, as nuisance. 
 
 38: 327. 
 
 BURIAL GROUND. 
 
 See Cemeteries. 
 
 BURIAL LOT. 
 
 Adverse Possession of, see Adverse Posses- 
 sion, 24. 29. fi6. 
 
 Rights in, see Cemeteries. 4-7. 
 
 Executor Setting Apart Separate Fund for, 
 SPP Trusts. 134. 
 
 BURIAL PERMIT. 
 
 See Corpse, 1. 
 
 BURSTING. 
 
 Of Hogshead During Transportation, see 
 
 Carriers, 776. 
 See also Explosions and Explosives. 
 
 BUSINESS. 
 
 Right of Action for Injuries to, see Case, 
 
 16-20. 
 
 Equal Protection and Privileges in Regula- 
 tion of, see Constitutional Law, II. a, 5. 
 Due Process of Law in Regulation of, see 
 
 Constitutional Law, II. b, 4. 
 Police Power Over, see Constitutional Law, 
 
 II. c, 4. 
 Validity of Agreement to Refrain from, see* 
 
 Contracts, III. e, 2. 
 Right of Foreign Corporation to Engage in, 
 
 see Corporations, VII. b. 
 Damages for Injury to, see Damages, 453, 
 
 471, 618; Eminent Domain, 318, 319. 
 As Property, see Eminent Domain, 196. 
 Charges Injurious to, sw Libel and Slander, 
 
 H. c. 
 What Constitutes, see License, 81. 
 
 Editorial Notes. 
 
 What constitutes. 14: 530. 
 
 Constitutionality of restrictions on. 21 : 789. 
 
 Legal restriction on department stores. 48: 
 261. 
 
 Liability for damage to business by injur- 
 ing tangible property of 
 other party. 64: 94. 
 
 Appropriations of public funds for business 
 enterprise. 14: 478. 
 
 Constitutionality of statute attempting to 
 grant a monopoly. 53: 
 763. 
 
 Injunction against unfair competition in. 
 3: 771.* 
 
 Tax on. 9: 787.* 
 
 BUST. 
 
 Injunction against Making, see Injunctions, 
 66, 67. 
 
 Making, as Invasion of Privacy, see Pri- 
 vacy, 5. 
 
 BUTCHERS. 
 
 Sale of Meat on Sunday, see Sunday, 16. 
 
 BUTTER. 
 
 Creation of Monopoly in, see Conspiracy, 
 136.
 
 BUZZ SAW CAMP MEETING ASSOCIATIONS. 
 
 331 
 
 BUZZ SAW. 
 
 Injury to Insured by Use of, see Insurance, 
 1061, 1062. 
 
 BY-LAWS. 
 < 
 
 Of Association, see Associations; Benevo- 
 lent Societies, III.; Conspiracy, 53-56, 
 155, 156; Courts, 219; Injunction, 230, 
 233; Partnership, 146. 
 
 Of Bank, see Banks, 14, 350-360, 369-374; 
 Evidence, 101. 
 
 Of Benefit Society, see Benevolent Societies, 
 
 m. 
 
 Of Building and Loan Association, see 
 Building and Loan Associations, 2, 20, 
 21, 54. 
 
 Of Corporation, see Corporations^ 100, 132, 
 214, 216, 217, 223, 254, 359-361, 392, 
 401, 414, 430, 431, 437, 438, 465, 543, 
 565, 588, 592, 644, 645, 650, 661, 665, 
 743, 744; Notice, 19; Mandamus, 85; 
 Pleading, 613; Principal and Agent, 10; 
 Public Moneys, 32; Statutes, 566. 
 
 Of Exchange, or Board of Trade, see Con- 
 tracts, 543; Exchanges, 6-8; Estoppel, 
 138. 
 
 Of Board of Health, see Constitutional Law, 
 214. 
 
 Of Insurance Company, see Insurance, 27, 
 189-199, 321, 622-626, 629, 677, 821, 
 926, 927, 978, 1134, 1181, 1228, 1229, 
 1232, 1306. 
 
 Of Press Association, see Newspaper, 5; 
 Press Associations, 2. 
 
 Of Railroad Relief Association, see Con- 
 tracts, 468. 
 
 Of Regents, see Schools, 50. 
 
 Of Village, see Mandamus, 25. 
 
 Of Water Company, see Waters, 540. 
 
 As Synonymous with Ordinances, see Mu- 
 nicipal Corporations, 73a. 
 
 Question for Jury as to, see Trial, 142. 
 
 Editorial Notes. 
 
 Defined. 3: 261.* 
 
 To compel acceptance of office. 24: 492. 
 
 Of savings bank as affecting liability for 
 payments to fraudulent 
 claimants. 69: 318. 
 
 Effect of corporate by-laws as notice. 25: 
 48. 
 
 Whether third party dealing with agents of 
 private corporation charge- 
 able with knowledge of. 
 10: 355.* 
 
 Restricting transfer of stock. 27: 271. 
 
 Effect of, on contract of corporation. 1: 
 482.* 
 
 Mandamus to enforce by-laws of corpora- 
 tion. 32: 575.* 
 
 Regulation by by-laws of elections by pri- 
 vate corporations. 18:582. 
 
 Rights of members of benefit society as af- 
 fected by by-laws. 5: 96.* 
 
 Conflict between by-laws and certificate, or, 
 policy, of mutual benefit 
 society or insurance com- 
 pany. 47:681. 
 
 c 
 
 CABLE. 
 
 Liability for Injury by see Negligence, 125. 
 For Ferry, Obstruction of Navigation by, 
 see Waters, 163. 
 
 CABLE ROADS. 
 
 In General, see Street Railways, 7, 79. 
 
 Injury to Passenger, see Carriers, 263, 295, 
 311, 507. 
 
 Who are Fellow Servants on, see Master 
 and Servant, 598. 
 
 Negligence in Operation of, see Street Rail- 
 ways, 91, 101, 111, 114, 123, 134. 
 
 Contributory Negligence of Person Injured 
 by Car," see Street Railways, 168. 
 
 Question for Jury as to Negligence, see 
 Trial, 370. 
 
 CABMAN. 
 
 Carrier's Liability for Injury to Passenger 
 by, see Carriers. 128. 
 
 CABS. 
 
 See Hacks. 
 
 CALENDAR. 
 
 Short Cause Calendar, see Short Cause 
 Calendar. 
 
 CALENDAR MONTH. 
 See Time, 3, 9. 
 
 CALLS. 
 
 For Boundary, see Boundaries, II. 
 
 On Stock, see Corporations, 565, 586-593. 
 
 Of Pastor, see Religious Societies, 48-50. 
 
 CAMP MEETING ASSOCIATIONS. 
 
 Imposition of Revenue Tax by, see Asso- 
 ciations. 5.
 
 332 
 
 CANALS. 
 
 1. Streets shown on the plan of the park 
 of an association organized to maintain a 
 camp meeting and lease lots to persons de- 
 siring the advantages of the ground are 
 dedicated to the use of the lessees and those, 
 at their request, using them for access to 
 their lots, so that the association cannot 
 prevent such use. Thousand Island Park 
 Asso. v. Tucker, 173 N. Y. 203, 65 X. E. 
 975, 60: 786 
 
 2. Exclusive rights are not given by a 
 statute merely authorizing an association 
 organized to maintain a camp meeting to 
 purchase and deal in provisions and other 
 commodities for supplying the needs of lot 
 lessees and visitors, and to maintain stores 
 and shops for that purpose, and to anthor- 
 ize others to engage in such pursuits, and 
 to make and establish regulations therefor. 
 
 Id. 
 
 3. Power to prohibit hawking and ped- 
 dling within a camp-meeting ground does 
 not authorize the prohibition of the de- 
 livery therein of produce ordered by mail 
 by lot lessees, although the price is not 
 fixed until the goods are delivered. Id. 
 
 4. Power to adopt a regulation requiring 
 lessees of lots to purchase all supplies from 
 the lessor is not reserved to an association 
 organized for the maintenance of a camp 
 meeting by a provision in the leases that 
 the lessee shall keep and perform all such 
 conditions or rules as the lessor shall from 
 time to time impose, since such require- 
 ment is not reasonable. Id. 
 
 CANALS. 
 
 Adverse Possession of Canal Lands, see Ad- 
 verse Possession, I. h. 
 
 Police Power to Regulate, see Constitutional 
 Law, 1004. 
 
 Forfeiture of Franchise of Company, see 
 Corporations, 753. 
 
 Measure of Damages in Condemning Right 
 of Way for, see Damages, 448, 452. 
 
 Dedication of Highway Over, see Dedica- 
 tion, 9. 
 
 ( 'ondemnation for. see Eminent Domain, 136 
 137, 163. 
 
 Presumption of Grant for Bridge Over, see 
 Evidence, 722. 
 
 I. it-fuse for Bridge Over, see License, 21. 
 
 Levy on Property of. see Levy and Seizure, 
 27. 
 
 \>Minvption of Risk, in Deepening of, see 
 Master and Servant, 354. 
 
 l-'el low Servants in Deepening of, see Mas- 
 ter and Servant, 546. 
 
 Notice of Rights in, see Notice, 90. 
 
 State as Party to Action Concerning, see 
 Parties, 134. 
 
 Tax on Land Covered by, see Taxes, 97, 98. 
 
 Rights on Opening for Dockage, see Waters, 
 30. 
 
 F.;r Irrigation or Drainage, see Estoppel, 
 201; Waters, 285, 30!). 320, 324, 349 
 473-479. 
 
 Liability of state as to. 
 
 See also infra, Editorial Notes. 
 
 1. The state of New York is liable to a 
 town for damages to a highway from a 
 break in the Erie canal caused by the neg- 
 ligence of the canal officials. Bidelman v. 
 State, 110 N. Y. 232, 18 N. E. 115, 1: 258 
 Lien of state on. 
 
 2. A waiver by the state of its priority 
 in favor of certain liens on a canal, created 
 and authorized by statute, does not operate 
 to defeat the priority of the state as to 
 other claims against the canal company. 
 Brady v. Johnson, 75 Md. 445, 26 Atl. 49, 
 
 20: 737 
 Title of person in possession. 
 
 3. The title of one in possession of a 
 right of way for a canal will, in the ab- 
 sence of evidence showing how the right 
 was acquired, or its extent, be presumed to 
 be a mere easement limited to the extent 
 to which it has been used. Mullen v. Lake 
 Drummond Canal & W. Co. 130 N. C. 496, 
 41 S. E. 1027, 61 : 833 
 Right to surplus waters of. 
 Enforcement of Judgment as to, see Judg- 
 ment, 394. 
 
 ,4. The use by right of the surplus waters 
 of a canal, continued after the state en- 
 larges the canal, cannot ripen into a right 
 to the increased surplus thereby caused, no 
 matter how long the use continues. Water- 
 loo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 
 345, 28 N. E. 358, 14: 481 
 
 5: If any right could be acquired in the 
 increased surplus of water caused by the 
 state's enlargement of a canal, it could not 
 prevent the state from otherwise improving 
 navigation whereby the surplus would be 
 reduced to the original amount. The rem- 
 edy, if any, would be a claim in the dam- 
 ages. Id. 
 Right to divert water to. 
 
 6. A canal company cannot divert water 
 into its canal, and permit it to injure ad- 
 joining proprietors by soaking through the 
 embankments. Mullen v. Lake Drummond 
 Canal & W. Co. 130 N. C. 496, 41 S. E. 
 1027, 61:833 
 Regulating diversion of water from feeder. 
 Practical Construction of Contract as to 
 
 Diversion, see Contracts, 351. 
 Enforcement of Judgment as to, see Judg- 
 ment, 394. 
 
 7. Canal commissioners who have con- 
 tracted to permit a riparian owner to take 
 water from its feeder in consideration of 
 the right to take the water of the river to 
 supply their canal, will not be permitted to 
 place weirs intended to restrict him to the 
 quantity to which he is entitled, in such a 
 manner as to deprive him of a portion of 
 the water to which he is entitled under his 
 contract. Merrifield v. Canal Commission- 
 ers, 212 111. 456, 72 N. E. 405, 587, 67 : 369 
 
 8. Under a contract giving the right to 
 withdraw a certain quantity of water from 
 a canal feeder, with the proviso that the 
 water shall not be drawn so that "during 
 the season of navigation" the water in the 
 
 anal shall' be reduced to less than a speci- 
 fied depth, the canal commissioners have no
 
 CANCELATION OF INSTRUMENTS; CANDIDATES. 
 
 333 
 
 right to place weirs in the flumes by which 
 the water is taken from the feeder, so as 
 to maintain the water in the feeder, at all 
 times, of a depth requisite to maintain the 
 specified depth in the canal, even after the 
 close of navigation, and at times when 
 water from the feeder is not necessary to 
 maintain the specified depth in the canal. 
 
 Id. 
 Continuance of; maintenance of dams and 
 
 bulkheads. 
 
 Dam for supply of, see Dams, 5, 9. 
 See also infra, Editorial Notes. 
 
 9. One whose water rights have been in- 
 jured by diverting a water, course by a 
 canal constructed across his land without 
 his consent may make a valid contract for 
 the continuance of the canal and a supply 
 of water therefrom. Case v. Hoffman, 100 
 Wis. 314, 72 N. W. 390, 74 N. W. 220, 
 
 % 44: 728 
 
 10. The owner of a canal which has be- 
 come a substitute for a natural water 
 course, although he acquires it with notice 
 of certain rights and privileges of other 
 persons thereon, which are open, visible, and 
 notorious, which require the maintenance 
 by him, so long as he uses the canal, of a 
 dam or bulkhead to furnish them water 
 from the canal, can free himself from this 
 obligation by the abandonment of his use 
 of the canal. Id. 
 
 11. The owner of a canal who acquires it 
 with notice of the rights of other persons 
 to have a certain quantity of water sup- 
 plied from it, for which a dam or bulkhead 
 in the canal is required, must maintain such 
 dam or bulkhead as long as he continues to 
 use the canal. Id. 
 
 Editorial Notes. 
 
 Construction and operation of canals. 61: 
 
 833. 
 
 As public improvement. 61: 833. 
 Acquisition of rights. 61 : 834. 
 
 What may be acquired. 61: 834. 
 What is taken or acquired. 61 : 
 
 836. 
 
 Extent of title. 61: 838. 
 Compensation. 61: 841. 
 In general. 61 : 841. 
 Amount. 61 : 844. 
 How paid. 61: 846. 
 Remedy. 61 : 846. 
 
 In general. 61 : 846. 
 Procedure. 61 : 847. 
 Other matters. 61 : 848. 
 Location. 61:849. 
 Use of. 61 : 850. 
 
 As highway. 61: 850. 
 Other uses. 61 : 852. 
 In general. 61: 852. 
 For water power. 61 : 853. 
 Injury by construction and use. 61: 
 
 858. 
 
 Duty to patrons. 61: 862. 
 Adjuncts to canal. 61 : 863. - 
 Rights of owner. 61: 868. 
 Abandonment and transfer. 61: 871. 
 Repair and improvement. 61: 876. 
 Riparian rights. 61: 877. 
 Prescription. 61 : 877. 
 
 Claims against state for injuries on. 42: 
 65. 
 
 Liability of counties for injury to real prop- 
 erty from. 39: 69. 
 
 Boundary on. 51: 179. 
 
 Necessity of franchise for taking tolls on. 
 37: 715. 
 
 CANCELATION OF INSTRUMENTS. 
 
 Proceeding for, as one in Rein, see Action or 
 
 Suit, 65. 
 Jurisdiction of Suit for, see Courts, 56; 
 
 Equity, I. f. 
 Limitation of Action for, see Limitation of 
 
 Actions, 196, 199. 
 
 Parties to Action for, see Parties, 186. 
 For Fraud, see Pleading, 558. 
 As to Reformation of Instruments, see 
 
 Reformation of Instruments. 
 Removal of Action for, see Removal of 
 
 Causes, 15. 
 
 For Usury, see Usury, 48. 
 Of Registry of Corporate Bonds, see Brokers, 
 
 13. 
 Of Mortgage to Loan Association, see 
 
 Building and Loan Associations, 13. 
 Of Nontransferable Railroad Ticket, see 
 
 Carriers, 618. 
 
 Of Contracts Generally, see Contracts, V. c. 
 Of Stock Paid for from Secret Profits of 
 
 Promoters, see Corporations, 338. 
 Of Stock Subscriptions, see Corporations, 
 
 380-388. 
 
 Of Deed by Infant, see Infants, 76. 
 Of Insurance Policy, see Insurance, HI. c. 
 Of Liquor License, see Intoxicating Liquors, 
 
 n. d. 
 
 Of Deeds and Leases not Mentioned in 
 
 Pleading, see Judgment, 59. 
 Of Gas Lease, see Mines, 83. 
 Of Release of Mortgage, see Mortgage, 120. 
 Of Will, see Wills, 57-61. 
 
 1. To authorize equity to cancel a writing 
 on the ground of mistake based on mistaken 
 belief of a party, that belief must be a 
 fair and reasonable one, justified by facts 
 adequate to inspire it. Attkisson v. Plumb, 
 50 W. Va. 104, 40 S. E. 587, 58: 788 
 
 2. A written contract may be canceled on 
 proof that it was signed by one of the par- 
 ties at the request of the other parties, 
 under an agreement that it should not be 
 binding, and on their statement that the 
 signature was necessary to comply with 
 their rules in order to permit him to see a 
 certain process for the manufacture of glu- 
 cose, for the manufacture of which he talked 
 of organizing a corporation. Olmstead v. 
 Michaels, 36 Fed. 455, 1: 840 
 
 CANDIDATES. 
 
 Libel of, see Libel and Slander, 76, 77. 
 147-155.
 
 834 
 
 CANNON CARRIERS. 
 
 CANNON. 
 
 Municipal Liability for Firing, see Munici- 
 pal Corporations, 442, 443. 
 
 CANVASS. 
 Of Vote, see Elections, II. c. 
 
 CANVASSERS. 
 
 Interstate Business of, see Commerce, 154. 
 As Peddlers, see Peddlers, 6. 
 
 CAPACITY. 
 
 Presumption and Burden of Proof as to, see 
 Evidence, II. e, 5. 
 
 CAPITAL. 
 
 Change of Location of, as Subject for 
 Amendment of Constitution, see Con- 
 stitutional Law, 3-6. 
 
 Implied Contract against Change of Loca- 
 tjgn of, see Contracts, 22. 
 
 Of Corporation, see Corporations, V. 
 
 As to County Seat, see Counties, I. b. 
 
 As Distinguished from Income, see Life 
 Tenants, II. b. 
 
 1. There can be no irrepealable law to 
 prevent the removal of the seat of state 
 government, as this involves a governmental 
 subject. Edwards v. Lesueur, 132 Mo. 410, 
 33 S. W. 1130, 31: 815 
 
 2. The power to select and afterwards to 
 change its own seat of government if 
 deemed expedient is necessarily implied in 
 a state Constitution providing for a repub- 
 lican form of government not repugnant to 
 the Constitution "of the United States, and 
 making no limitation upon its political or 
 governmental power or the power to man- 
 age its own internal affairs. Id. 
 
 CAPITAL CASE. 
 
 Editorial Notes. 
 
 .Statute allowing plea of guilty in. 16- 
 358. 
 
 CAPITAL PUNISHMENT. 
 
 As to Execution, .see Certiorari, 41; Consti- 
 tutional Law. 112; Criminal Law, 190, 
 208-211, 208, 209. 
 
 Validity of Insurance Contract against, see 
 Insurance. 185. 186. 073. 
 
 CAPITATION TAX. 
 
 Self-Executing Provision as to, see Consti- 
 tutional Law, 92. 
 
 CAPTAIN. 
 
 Of Foreign Vessel. Liability for Arresting, 
 
 see False Imprisonment, 28. 
 Of Militia, Authority of, see Militia, 2. 
 
 CAPTION. 
 
 Failure to Name Crime in, see Indictment, 
 
 etc., 55. 
 Of Amendatory Act. see Statutes, 245. 
 
 CARCASS. 
 
 See Dead Animals. 
 
 CAR COUPLERS. 
 
 See Couplers. 
 
 CARDS. 
 
 Validity of Agreement as to Winnings from 
 Play, see Contracts, 521, 522. 
 
 CARNAL INTERCOURSE. 
 See Rape; Seduction. 
 
 CARPET MAKERS. 
 Custom of, see Custom, 21. 
 
 CARRIAGES. 
 
 Bicycles as, see Bicycles, 12. 
 Discrimination of Carrier between, see 
 Carriers, 1045-1067. 
 
 CARRIERS. 
 
 I. W'hQ> are Common Carriers: Relation to 
 
 Public. 
 II. Rights, Duties, and Liabilities. 
 
 a. As to Passengers and Other Per- 
 sons. 
 
 1. In General. 
 
 2. Rules and Regulations; Who 
 
 are Passengers.
 
 CARRIERS. 
 
 885 
 
 IL a, 2 continued. 
 
 a. Rules and Regulations 
 6. Who are Passengers. 
 
 (1) Persons Riding Free; 
 
 Wrongfully on 
 Train. 
 
 (a) In General. 
 
 (b) Employee o f 
 
 Carrier. 
 
 (c) Other Persons. 
 
 (2) When Relation Com- 
 
 mences. 
 
 (3) Termination of Rela- 
 
 tion. 
 
 3. Duty to Passengers; Protec- 
 
 tion. 
 
 a. In General; Care of Pas- 
 sengers. 
 
 ft. Abuse 
 
 c. Assault. 
 
 d. Arrest; False 'imprison- 
 
 ment. 
 
 4. Measure of Care Required; 
 
 Negligence Generally. 
 o. Of Carrier. 
 
 (1) In General. 
 
 (2) As to Tracks, Road- 
 
 bed, etc. 
 
 (3) As to Vehicle, or 
 
 Place of Riding Gen- 
 erally. 
 
 6. Contributory Negligence 
 of Passenger. 
 
 (1) In General. 
 
 (2) Riding on Platform 
 
 or Footboard. 
 
 (3) Riding in Wrong Car. 
 6. Ejection of Passenger or Tres- 
 passer. 
 
 a. In General. 
 Z>. Grounds for. 
 
 (1) Misbehavior; Dis- 
 
 ease. 
 
 (2) Nonpayment of Fare, 
 
 or Defective Ticket. 
 c. At What Place. 
 
 6. Leaving at Destination; Stop 
 
 Over. 
 
 7. Disabled or Incompetent Pas- 
 
 sengers. 
 
 a. Duty or Negligence of 
 
 Carrier. 
 
 (1) In General. 
 
 (2) Duty to Receive. 
 
 b. Contributory Negligence. 
 
 8. Getting On or Off. 
 
 a. Duty or Negligence of 
 . Carrier. 
 
 6. Contributory Negligence. 
 
 (1) In Getting On. 
 
 (2) In Getting Off. 
 
 9. Safety of Approaches and 
 
 Platforms. 
 a. In General. 
 
 ,(1) Carrier's Duty or 
 
 Negligence. 
 
 (2) Contributory Negli- 
 gence. 
 6. Platforms Generally. 
 
 c. Duty to Keep open and 
 
 Li 2 ht. 
 
 n. a, 2 continued. 
 
 10. Tickets; Conditions; Fare. 
 
 a. In General. 
 
 6. Excursion or Round Trip 
 Tickets. 
 
 c. Passes. 
 
 d. Extra Fare. 
 
 e. On Street Cars. 
 
 f. Limitation of Liability. 
 
 11. Blackboard Announcements as 
 
 to Trains. 
 
 12. Baggage or Property of Pas- 
 
 senger. 
 
 o. In General. 
 6. What is Baggage. 
 
 c. Taking Parcels on Train. 
 
 d. Liability of Sleeping Car 
 
 Company. 
 
 e. Limitation of Liability. 
 
 b. As to Freight. 
 
 1. In General; Powers of Agents. 
 
 2. Duty to Receive and Trans- 
 
 port. 
 
 3. Loss of, or Injury to, Prop- 
 
 erty. 
 
 4. Delivery by Carrier; Delay. 
 
 a. In General; Refusal to 
 
 Deliver. 
 
 b. Notice of Arrival; Ter- 
 
 mination of Liability. 
 
 c. Misdelivery ; Wr o n g f u 1 
 
 Delivery. 
 
 d. Time; Delay. 
 
 6. Liability and Lien for Freight 
 Charges ; Rates. 
 
 6. Carrying Livestock. 
 
 7. Stipulations to Limit Lia- 
 
 bility. 
 
 a. In General, 
 ft. As to Negligence. 
 
 c. As to Amount. 
 
 d. As to Time of Giving No- 
 
 tice or Commencing Suit. 
 
 e. Excepted Perils. 
 
 8. Contract or Duty to Furnish 
 
 Cars. 
 
 9. Demurrage on Cars. 
 
 c. Connecting Carriers. 
 
 1. Of Passengers. 
 
 2. Of Freight. 
 
 a. In General. 
 
 6. Selection of Route. 
 
 d. Criminal Transportation. 
 
 III. Governmental Control; Rates; Discrim- 
 ination; Duty as to Stopping 
 Places. 
 
 a. In General. 
 
 b. Compulsory Connection and Inter- 
 
 change of Business; Discrimina- 
 tion between Carriers; Hackmen, 
 etc.; Through Rates. 
 
 c. Rates; Discrimination between 
 
 Passengers or Shippers; Re- 
 bates. 
 
 1. In General. 
 
 2. Power to Fix Rates; Mileage 
 
 Tickets. 
 
 3. Reasonableness of Rates. 
 
 4. Discrimination; Rebates. 
 
 d. Duty as to Depots; Stopping 
 
 TraJns : TJntv io Rim Trains. 
 I IV. Editorial Notes.
 
 336 
 
 CARRIERS, I. 
 
 Liability of Passenger's Effects to General 
 Average, see Average. 
 
 Conflict of Laws as to Contracts of, seS Con- 
 flict of Laws, I. b, 4. 
 
 Illegal Combination of, see Conspiracy, II. d. 
 
 Discrimination against, as to Attorney's 
 Fees, see Constitutional Law, 574-576. 
 
 Police Power as to, see Constitutional Law, 
 1014, 1015. 
 
 Equal Protection and Privileges as to, see 
 Constitutional Law, III. a, 3, b. 
 
 Consideration for Contract with, see Con- 
 tracts, 71- 
 
 Agreement for Excursion Party, see Con- 
 tracts, 110. 
 
 Right to Furnish Liquor to Travelers, see 
 Corporations, 91. 
 
 Death Penalty for Assault upon a Train, 
 see Criminal Law, 208. 
 
 Damages in Actions against, see Damages, 
 II. b; III. c; III. d; Trial, 660. 
 
 Elevators as Carriers, see Elevators, II. 
 
 Condemnation of Landing of, for Wharf, 
 see Eminent Domain, 65. 
 
 Judicial Notice as to, see Evidence, 80-98. 
 
 Papers of, as Evidence, see Evidence, 970-2. 
 
 Admissibility of Declarations of Carrier's 
 Agent, see Evidence, 1630-1635. 
 
 Garnishment of, see Garnishment, 16, 17, 36, 
 37. 
 
 Indictment of, see Indictment, etc., 48. 
 
 Place of Sale on Delivery to, see Intoxi- 
 cating Liquors, 145-148. 
 
 Revocability of License to Maintain Siding, 
 see License, 19. 
 
 Liability for Homicide by Station Agent, 
 see" Master and Servant, 678. 
 
 Ordinance Against Soliciting Business in 
 Depot, see Municipal Corporations, 240. 
 
 Shipper's Liability for Negligently Loaded 
 Cars, see Negligence, 62. 
 
 Imputing Carrier's Negligence to Passenger, 
 see Negligence, 254-265. 
 
 Imputing Employee's Knowledge to, see 
 Notice, 58, 60. 
 
 Liability for Loss of Mail, see Postoffice, 9-12. 
 
 Proximate Cause of Loss or Injury by, see 
 Proximate Cause, III. 
 
 Injury to Person Going to Depot to Inter- 
 view Passenger or Employee, see Rail- 
 roads, 114 ; 117. 
 
 Release of, from Liability for Injuries, see 
 Release, 14-16, 19-21. 
 
 Matters Peculiar to Ships, see Shipping. 
 
 Partial Invalidity of Statute as to, see 
 Statutes, 113, 114. 
 
 I. Who are Common Carriers; Relation to 
 Public. 
 
 Owner of Refrigerator Cars as, see infra, 
 
 948. 
 
 Owner of Elevator as, see Elevators, II. 
 Telegraph Company as, ee Telegraphs, 8, 9, 
 
 45. 
 Telephone Companv as, see Telephones, 6, 
 
 19. 
 
 See also infra. 655, 1140. 
 For Editorial Notes, see infra, IV. 2, 33. 
 
 1. A common carrier may be a carrier of 
 either passengers, or freight, or both. 
 
 Thomson-Houston Electric Co. v. Simon, 20 
 Or. 60, 25 Pac. 147, 10: 251 
 
 2. The duty of common carriers with re- 
 spect to the transportation of persons and 
 property is independent of contract. Dela- 
 ware, L. & W. R. Co. v. Trautwein (N. J. 
 Err. & App.) 52 N. J. L. 169, 19 Atl. 178, 
 
 7:435 
 
 3. A person trucking goods for particular 
 customers at prices fixed in each case by 
 special contract is not a common carrier so 
 as to be liable as an insurer of the goods. 
 Faucher v. Wilson, 68 N. H. 338, 38 Atl. 
 1002, 39: 431 
 
 4. A licensed carrier within a city, hauling 
 for all persons who require his services, is 
 liable as a common cairier while carrying 
 goods outside of the city under an agree- 
 ment to take them to a certain point, with- 
 out any further contract, although he could 
 not have been compelled to carry outside the 
 city. Farley v. Lavary, 107 Ky. 523, 54 S. 
 W. 840, 47: 383 
 
 5. A constitutional provision making all 
 railroad companies common carriers does not 
 apply to a corporation organized for busi- 
 ness purposes, which operates a railroad, 
 upon its own property for purposes con- 
 nected with its business. Wade. v. Lutcher 
 & M. Cypress Lumber Co. 41 U. S. App. 45, 
 20 C. C. A. 515, 74 Fed. 517. 33: 255 
 
 6. A railroad company is not a common 
 or public carrier in respect to a special train 
 of cars loaded with wild animals and other 
 property as well as persons, belonging to or 
 connected with a circus, which is loaded and 
 unloaded by the proprietor of the circus and 
 is run on special time to suit his conven- 
 ience, under a special contract that he shall 
 assume all the risk of accidents, the only 
 duty of the railroad company being to haul 
 the cars. Chicago, M. & St. P. R. Co. v. 
 Wallace, 24 U. S. App. 589, 14 C. C. A. 257, 
 66 Fed. 506, 30: 161 
 Sleeping car companies. 
 
 7. A sleeping car company is not a com- 
 mon carrier or an innkeeper. Pullman Pal- 
 ace-Car Co. v. Gavin, 93 Tenn. 53, 23 S. W. 
 70, 21 : 298 
 Street railway companies. 
 
 For Editorial Notes, see infra, IV. 2. 
 
 8. Street railway companies are common 
 carriers, ana liable, like other common -car- 
 riers, upon common-law principles. Spell- 
 man v. Lincoln Rapid Transit Co. 36 Neb. 
 890, 55 N. W. 270, 20: 316 
 Bridge companies. 
 
 9. A bridge company owning no freight 
 cars, which solicits freight for railway com- 
 panies who will furnish the cars and over 
 whose lines the freight is to go, and merely 
 transfers such cars over its bridge to the 
 railway companies furnishing them, charg- 
 ing for its service its regular bridge toll, but 
 making no charge for transporting the 
 freight contained or carried in the cars, is 
 not a common carrier of such interstate 
 freight. Kentucky & I. Bridge Co. v. Louis- 
 ville & N. R. Co. 37 Fed. 567, 2: 289 
 
 10. The franchises and powers of building, 
 maintaining, and oporatincr a bridge nnd ap- 
 proaches, designated as its terminal facil-
 
 CARRIERS, II. a. 1. 
 
 ities, do not, in and of themselves, consti- 
 tute the bridge company a common carrier 
 of property; nor do they, by any clear im- 
 plication, confer upon it authority "to equip 
 its road, and to transport goods and passen- 
 gers thereon, and charge compensation 
 therefor." Id. 
 
 11. Under the charter of a bridge com- 
 pany making its bridge and approaches 
 thereto a public thoroughfare or highway, 
 for the use of which, by railroads or street 
 cars, wagons, vehicles, animals, and foot 
 passengers, it was authorized to charge 
 "reasonable tolls," for the collection of 
 which suitable tollgates could be estab- 
 lished, the word "tolls" is strictly applicable 
 to charges for the use of its highway, rather 
 than to compensation for transportation 
 services which the bridge company may per- 
 form or be permitted to render. Id. 
 
 12. Where a railroad company, by con- 
 tract with a bridge company, acquires the 
 right to use a bridge, with its approaches, 
 for its engines, cars, and trains, it is re- 
 garded, under the Act to Regulate Com- 
 merce, 1, as the owner or operator of the 
 bridge and approaches, for the time being, 
 as to all freight transported by it over the 
 bridge. And as to all such traffic it, and 
 not the bridge company, must be regarded 
 as the common carrier. Id. 
 
 13. A corporation which, being under no 
 legal obligation to do so, voluntarily con- 
 tracts to switch cars over its tracks, be- 
 tween two or more railways, for which 
 service it collects a certain switching charge 
 for switching the cars, loaded or empty, but 
 charges no traffic rates on the freight trans- 
 ported or transferred in the cars in the per- 
 formance of such service, assumes none of 
 the responsibilities of a common carrier, but 
 only those of a switchman. Id. 
 
 II. Rights, Duties, and Liabilities. 
 
 a. As to Passengers and Other Persons. 
 
 1. In General. 
 
 Due Process in Statutory Imposition of Lia- 
 bility, see Constitutional Law, 852. 
 
 Punitive Damages for Injury to Passenger, 
 see Damages, II. b. 
 
 Recovery for Mental Anguish, see Damages, 
 564-566. 
 
 Limitation of Action for Causing Death of 
 Passenger, see Limitation of Actions, 
 200. 
 
 Liability of Railroad Company Operated by 
 Receiver, see Railroads, 23. 
 
 Power of agents. 
 As to Freight, see infra, 742-745. 
 Burden of Proof as to, see Evidence, 294. 
 Allegation as to, see Pleading, 389. 
 See also infra, 605, 606, 613, 979. 
 
 14. The conductor of a train on which a 
 passenger has been carried past destination 
 has no implied authority to constitute the 
 proprietor of a hotel an agent of the car- 
 rier for the purpose of caring for such pas- 
 L.R.A. Dig. 22. 
 
 senger until a return train comes, so as to 
 render the company liable for injuries to the 
 passenger in consequence of the hotelkeep- 
 er's negligence. Central of Ga. R. Co. v. 
 Price, 106 Ga. 176, 32 S. E. 77, 43: 402 
 
 15. Depot agents have the power, as inci- 
 dent to the office, to make reasonable regula- 
 tions as to the conduct of business at their 
 depots, unless restricted, controlled, or limit- 
 ed in that respect. Smith v. Chamberlain, 
 38 S. C. 529, 17 S. E. 371, 19: 710 
 Route. 
 
 For Freight, see infra, n. c, 2 6. 
 See also infra, 23, 607. 
 
 16. Failure of a railroad company to noti- 
 fy a passenger of its regulation that through 
 passengers between two points shall take a 
 direct route, instead of a more circuitous 
 one which it also operates, does not entitle 
 the passenger to ride between such points 
 on the more circuitous route. Church v. 
 Chicago, M. & St. P. R. Co. 6 S. D. 235, 60 N. 
 W/854, 20:616 
 
 17. Failure of a railroad company to no- 
 tify a passenger having a through ticket to 
 change cars at a junction to connect with 
 the more direct route over which its regula- 
 tion requires her to travel does not entitle 
 her to travel by a more circuitous route, al- 
 though such failure may be the groimd for 
 damages. Id. 
 
 18. Failure of a gatekeeper at the initial 
 station to inform a passenger who states 
 that she desires to go to her destination by 
 a certain route, that she will have to change 
 at a junction 500 miles away, and cannot go 
 from such junction by the route named, does 
 not entitle her to take such route against 
 the regulation of the company requiring 
 through passengers to take a more direct 
 route. Id. 
 Injury due to third person's negligence. 
 
 As to Freight, see infra, 772, 949. 
 Negligence of Connecting Carriers, see infra, 
 
 II. c, 1. 
 Joint Liability for, in Case of Concurring 
 
 Negligence, see Joint Creditors and 
 
 Debtors, 4. 
 Effect of Release of One of Parties Causing 
 
 Injury, see Joint Creditors and Debtors, 
 
 8. 
 
 Joint Action against Two Railroad Com- 
 panies, see Parties, 200. 
 See also infra, 164, 231, 264, 528, 537, 559, 
 
 593, 734; Proximate Cause, 63. 
 For Editorial Notes, see infra, IV. 6, 30. 
 
 19. A passenger on a street car, injured 
 by its collision with a wagon at a street 
 crossing, cannot recover from the street car 
 company for his injuries, although he was in 
 the exercise of due care, if the evidence, so 
 far as it goes, tends to show that the col- 
 lision was due to the negligence of the per- 
 son in charge of the wagon. Black v. Bos- 
 ton Elev. R. Co. 187 Mass. 172, 72 N. E. 
 970, 68:799 
 
 20. A railroad company is liable to a pas- 
 senger on its train for negligence of the 
 servants of another railroad company over 
 whose track such train is running under a 
 contract between the companies, whereby 
 the train is to be run subject to the orders
 
 338 
 
 CARRIERS. II. a, 2. 
 
 and signals given by servants of the owner 
 of the track, since they become thereby the 
 servants of the owner of the train for the 
 purpose of its management. Murray v. 
 Lehigh Valley R. Co. 66 Conn. 512, 34 Atl. 
 506, -32: 539 
 
 2. Rules and Regulations; Who are Passen- 
 gers. 
 a. Rules and Regulations. 
 
 Evidence as to, see Evidence, 2077. 
 Alleging Compliance with, see Pleading, 229. 
 Question for Jury as to Reasonableness of, 
 
 see Trial, 143-147. 
 See also supra, 15; infra, 63-72, 140, 258, 
 
 290, 366, 639, 646-649, 683, 686, 691, 
 
 1056. 
 For Editorial Notes, see infra, IV. 7, 17. 
 
 21. A common carrier has a right to make, 
 and as a condition precedent to insist upon a 
 compliance with, reasonable rules and regu- 
 lations designed to protect its interests and 
 promote the safe and convenient transaction 
 of business, when the same contravene no 
 consideration of public policy and in no 
 manner affect its liability under the stat- 
 utory or common law. Kirby v. Western U. 
 Teleg. Co. 4 S. D. 105, 439, 7 S. D. 623, 55 
 X. W. 759, 57 N. W. 199, 65 N. W. 37, 
 
 30: 612 
 
 22. The dominion of a railroad, corporation 
 over its trains, tracks, and right of way is 
 no less complete or exclusive than that 
 which every owner has over his own prop- 
 erty. Hence, the corporation may exclude 
 whom it pleases when they come to transact 
 their own private business with passengers 
 or other third persons, and admit whom it 
 pleases, when they come to transact such 
 business. This applies to selling lunches to, 
 or soliciting orders from, passengers for the 
 sale of lunches Fluker v. Georgia R. & 
 Bkg. Co. 81 Ga. 461, 8 S..E. 529, 2: 843 
 As to route. 
 
 23. It is a reasonable regulation for a rail- 
 road company having two lines of road be- 
 tween two points, one direct and the other 
 circuitous, to require that through passen- 
 gers traveling upon a simple ticket from one 
 of such points to the other shall go by the 
 most direct route; and such regulation be- 
 comes a part of the contract of carriage. 
 Church v. Chicago. M. & St. P. R. Co. 6 S. 
 D. 235. 60 N. W. 854, 26: 616 
 As to dress of passengers. 
 
 24. A rule adopted by a railroad company, 
 which inhibited passengers on its trains 
 from wearing the uniform cap of a line of 
 steamers running in opposition to a line of 
 steamers running in connection with the 
 company, was not reasonable, and hence not 
 binding on the public. South Florida R. Co. 
 v. Rhoads, 25 Fla. 40, 5 So. 633, 3: 733 
 As to keeping depot open. 
 
 For Editorial Notes, see infra, IV. 7- 
 
 25. A rule for closing a railroad waiting 
 room after the departure of a train, until 
 thirty minutes before the departure of the 
 next train, is a reasonable one as applied 
 to a. person who has come to the station 
 at 8 P. M. to wait for a train at 1:30 A. M. 
 
 and is driven out of the room, although the 
 night is cold, to wait several hours until the 
 regular time of- reopening the room; but the 
 rule might not be reasonable in case of 
 through passengers or delayed trains. Phil- 
 lips v. Southern R. Co. 124 N. C. 123, 32 S. 
 E. 388, 45: 163 
 
 As to sleeping in waiting rooms. 
 
 26. In the absence of any duty devolv- 
 ing upon a railway company to provide at 
 its stations a place wherein its patrons may 
 sleep while awaiting the arrival or depart- 
 ure of trains, a regulation forbidding pas- 
 sengers from going to sleep in its waiting 
 rooms, or lying down on the benches there- 
 in, is not, in a legal sense, unreasonable. 
 Central of Georgia R. Co. v. Motes, 117 Ga. 
 923j 43 S. E. 990, 62: 507 
 As to tickets. 
 
 As to Extra Fare, see infra, II. a, 10, d. 
 Question for Jury as to Reasonableness of 
 
 Rule, see Trial, 145. 
 For Editorial Notes, see infra, IV. 17, 18. 
 
 27. A ticket issued by a carrier gives the 
 passenger the right to transportation sub- 
 ject to such reasonable rules and regulations 
 as the company may make concerning the 
 running of its trains and their route. 
 Church v. Chicago, M. & St. P. R. Co. 6 S. 
 D. 235, 60 N. W. 854, 26: 616 
 
 28. The absence of the agent from his of- 
 fice when there is not sufficient time re- 
 maining for an intending passenger to pur- 
 chase a ticket and enter a train before its 
 departure will not entitle the passenger to 
 disregard a rule requiring the possession of 
 tickets as a condition to entering the train. 
 Mills v. Missouri, K. & T. R. Co. 94 Tex. 
 242, 59 S. W. 874, 55: 497 
 
 29. A rule forbidding passengers to enter 
 cars without tickets cannot be enforced 
 under a statute requiring ticket offices to 
 be open half an hour before departure of 
 trains, unless during that time someone has 
 been there to sell tickets; and it is unen- 
 forceable where, although the office was 
 open, the agent was, for a portion of the 
 time, absent therefrom attending to other 
 duties. Id. 
 
 30. A regulation of a railroad company 
 requiring passengers to purchase tickets be- 
 fore entering trains is not forbidden by stat- 
 utes requiring the transportation of passen- 
 gers "on due payment of fare legally author- 
 ized therefor," and prescribing that when 
 fare is paid on the train a higher rate may 
 be exacted than when tickets are purchased. 
 
 Id. 
 
 31. A rule of a street railway company 
 requiring passengers to buy tickets and 
 board the cars within the station, and com- 
 pelling one who boards a car without the 
 station to pay fare, even though he has 
 previously paid a fare within .the station, 
 is a reasonable regulation for facilitating 
 the transfer of passengers and the dispatch 
 of cars; but it must be enforced in a 
 reasonable manner. Nashville Street R. Co. 
 v. Griffin, 104 Tenn. 81, 57 S. W. 153, 49: 451 
 
 32. A regulation upon a crowded subur- 
 ban train, by which a conductor and a col- 
 lector start from each end of the train to
 
 CARRIERS, II. a, 2. 
 
 339 
 
 collect tickets and fares, and passengers are 
 prohibited from passing either without a 
 ticket unless they satisfy the conductor or 
 collector that they have already paid, is 
 reasonable, and may be enforced against a 
 passenger having no previous notice thereof. 
 Faber v.- Chicago G. W. R. Co. 62 Minn. 433, 
 64 N. W. 918, 36: 789 
 
 As to place to ride. 
 
 Question for Jury as to Reasonableness of 
 Rule, see Trial, 146, 147. 
 
 33. A rule requiring passengers to remain 
 in the cars provided for them, and prohibit- 
 ing them to ride in an express car or other 
 place of increased danger set apart for an- 
 other purpose, is reasonable. Florida S. R. 
 Co. v. Hirst, 30 Fla. 1, 11 So. 506, 16: 631 
 
 34. Although a carrier may abandon its 
 rule prohibiting passengers to ride in an ex- 
 press car, the mere delinquency ol,a conduc- 
 tor in enforcing the rule is not sufficient 
 to constitute an abandonment, without such 
 conduct as -in effect establishes the concur- 
 rence of the carrier in the disregard of the 
 regulation. Id. 
 
 35. A rule forbidding passengers on elec- 
 tric cars to ride on the front platform, and 
 declaring that the company will not be re- 
 sponsible for their safety there, is a reason- 
 able one, for the violation of which a pas- 
 senger may be denied any remedy for injury 
 resulting therefrom. Sweetland v. Lynn & 
 B. R. Co. 177 Mass. 574, 59 N. E. 443, 51 : 783 
 
 36. A pustom to receive passengers upon 
 the front and rear platforms of electric cars, 
 without question, and to receive fare from 
 them, will constitute a waiver and abandon- 
 ment of a rule which forbids them to ride 
 there. Id. 
 
 37. The rule of a railroad company that 
 passengers must not stand on platforms is 
 waived by receiving passengers for whom it 
 fails to provide suitable accommodations 
 inside its coaches. Graham v. McNeill, 20 
 Wash. 466, 55 Pac. 631, 43: 300 
 
 38. A rule of a street railway company 
 requiring colored persons to occupy front 
 seats and white passengers the back seats 
 is a reasonable regulation. Bowie v. Bir- 
 mingham Railway & E. Co. 125 Ala. 397, 27 
 So. 1016, 50: 632 
 As to baggage. 
 
 Question for Jury as to Reasonableness of 
 Rule, see Trial, 145. 
 
 39. A rule that a baggage master shall 
 not receive baggage into the baggage room 
 until a ticket shall have been procured is 
 an imposition on the public, unreasonable, 
 and void. Coffee v. Louisville & N. R. Co. 
 76 Miss. 569, 25 So. 157, * 45: 112 
 
 40. The traveling public have the right to 
 stop and receive their baggage at any regu- 
 lar station or stopping place for the train 
 on which they may be traveling; and any 
 regulation that deprives them of that right 
 is necessarily arbitrary, unreasonable, and 
 illegal. Pittsburgh, C. & St. L. R. Co. v. 
 Lyon, 123 Pa. 140, 16 Atl. 607, 2: 489 
 
 41. A regulation of a railroad company by 
 which, although a passenger may himself 
 get off at a regular station or stopping place 
 of a passenger train, which is just across 
 
 the street from the station of another rail- 
 road, he will not be sold a ticket to that 
 place, or his baggage checked to or delivered 
 at that station, but will be compelled to pay 
 for a ticket to another station a mile dis- 
 tant, and go there for his baggage, is un- 
 reasonable and invalid. Id. 
 
 6. Who are Passengers. 
 
 (1) Persons Riding Free; Wrongfully on 
 Train. 
 
 (a) In General. 
 
 Necessity of Proving Alleged Relation of 
 
 Passenger, see Evidence, 2409. 
 Question for Jury as to, see Trial, 173. 
 See also infra, 90; Pleading, 363. 
 For Editorial Notes, see infra, TV. 12, 20. 
 
 42. A newsboy jumping on and off moving 
 street cars to sell papers, without requesting 
 the car to stop to receive or discharge him, 
 and without receiving permission or asking 
 for leave or license, is in no sense a passen- 
 ger, and the carrier is under no obligation 
 to him to exercise a high degree of care, but 
 discharges its duty by exercising ordinary 
 care. Padgitt v. Moll, 159 Mo. 143, 60 S. W. 
 121, 52: 8o4 
 Postal clerk. 
 
 Variance in Proof as to, see Evidence, 2410. 
 For Editorial Notes, see infra, IV. 12, 13. 
 
 43. A United States mail agent on a train 
 in the performance of his duties in charge of 
 the mail is a passenger. Gulf, C. & S. F. R. 
 Co. v. Wilson, 79 Tex. 371, 15 S. W. 280, 
 
 11: 486 
 
 44. A mail agent, who, in pursuance of 
 his duties, rides in a mail car, does not 
 thereby assume any risk of danger that may 
 result from the negligence of the carrier 
 or its servants, even conceding that he as- 
 sumes all risks of danger necessarily arising 
 from his exposed position. Id. 
 
 45. A railway postal clerk in the employ- 
 ment of the United States, who is entitled 
 to ride free while on duty or when traveling 
 to and from duty, is a passenger, entitled to 
 the same care and protection as other pas- 
 sengers, while returning home from duty, 
 although he is in the postal car assisting 
 in handling the mail by request of the clerk 
 in charge, and has not paid or offered to 
 pay fare, or exhibited his commission as 
 postal clerk, or notified the conductor of his 
 presence on the train, and the conductor 
 has not learned that he is on the train. 
 Cleveland, C. C. & St. L. R. Co. v. Ketcham, 
 133 Ind. 346, 33 N. E. 116, 19: 339 
 
 46. A postal clerk in the service of the 
 United States, and doing his duty in a mail 
 car of a train, is a passenger; and the 
 railroad company, in an action against it for 
 injury to him while so employed, is not en- 
 titled to be relieved from the negligence of 
 its servants, on the ground that plaintiff 
 was a fellow servant with them. Mellor v. 
 Missouri P. R. Co. 105 Mo. 455, 14 S. W. 758, 
 16 S. W. 849, 10: 36
 
 340 
 
 CARRIERS, II. a, 2. 
 
 Express messengers. 
 
 For Editorial Notes, see infra, IV. 12. 
 
 47. An agreement by an express company 
 to assume all transportation risks as to its 
 property and express messenger, and in- 
 demnify the railway company against any 
 liability therefor, will not deprive a mes- 
 senger of his rights as a passenger to pro- 
 tection against the negligence of the railway 
 company, unless he had knowledge of such 
 aoreement. Brewer v. New York, L. E. & 
 W. R. Co. 124 X. Y. 59, 26 N. E. 324, 11: 483 
 
 48. An express messenger carried on A 
 railway train in the exercise of his business, 
 under a contract between the railway com- 
 pany and the express company, is a pas- 
 senger entitled to protection as such against 
 the negligence of the railway company. Id. 
 
 (b) Employee of Carrier. 
 
 See also Master and Servant, 505, 545. 
 
 For Editorial Notes, see infra, IV. 12, 20. 
 
 49. An employee of a passenger railway 
 company, who accepts transportation from 
 the company as a mere gratuity, and not 
 in consideration for his services, stands like 
 anyone else traveling on a free pass con- 
 ditioned that the user shall assume risk of 
 injury, notwithstanding the transportation 
 would probably not be bestowed in the ab- 
 sence of the employment. Peterson v. 
 Seattle Traction Co. 23 Wash. 615, 65 Pac. 
 543, . 53: 586 
 
 50. An employee of a railroad company is 
 to be regarded as a passenger when riding 
 on a ticket such as is issued only to em- 
 ployees of the company who live on the line 
 of the road elsewhere than at the place of 
 employment. Doyle v. Fitchburg R. Co. 166 
 Mass. 492, 44 N. E. 611, 33:844 
 On own business. 
 
 For Editorial Notes, see infra, IV. 12. 
 
 51. An employee of a railroad company 
 riding on a pass, not in the course of his 
 employment or in going to or from his work, 
 but in making a trip for his own conven- 
 ience, but whose free transportation is given 
 him under a stipulation in his contract of 
 employment, sustains, while so riding, the 
 relation of a passenger, and not of an em- 
 ployee, to the carrier. Whitney v. New 
 York. N. H. & JJ. R. Co. 43 C. C. A. 19, 102 
 Fed. 850, 50: 615 
 
 52. A street railway employee riding 
 gratuitously under a rule of the company 
 permitting employees to ride free at any 
 time, who is not on actual duty, and who 
 takes no part in the management of the 
 car, is not a fellow servant of the motor- 
 man, by whose negligence he is injured, but 
 a passenger, to whom the company is liable. 
 Dickinson v. West End Street R. Co. 177 
 Mass. 365, 59 N. E. 60, 52: 326 
 
 53. A railroad employee having a month- 
 ly ticket given him, which is good for more 
 rides than are necessary in attending to his 
 work, with the express privilege of usin 
 them for his own private interest or pleas- 
 ure, is not, when passing over the road en- 
 tirely for his own business or pleasure, an 
 
 employee, but is a passenger, within Mass. 
 Pub. Stat. chap. 112, 212, creating a lia- 
 bility for injury to a passenger. Doyle v. 
 Fitchburg R. Co. 162 Mass. 66, 37 N. E. 
 770, 25: 157 
 
 Engaged in duties. 
 For Editorial Notes, see infra, IV. 12. 
 
 54. A railroad employee engaged in work- 
 ing upon a bridge \s a passenger while rid- 
 ing on a railroad train to his home after his 
 day's work is done, where his contract enti- 
 tles him to free transportation and he is not 
 under any obligation to ride, or engaged in 
 any service for the company while so riding. 
 McNulty v. Pennsylvania R. Co. 182 Pa. 479, 
 38 Atl. 524, 38: 376 
 
 55. A civil engineer of a railroad com- 
 pany traveling on duty for the company, 
 upon a pass exempting the company from 
 liability for injuries to person or property, 
 occupies the position of an employee, and 
 not that of a passenger upon the train upon 
 which he is carried. Texas & P. R. Co. v. 
 Smith, 30 U. S. App. 176, 67 Fed. 524, 14 C. 
 C. A. 509, 31:321 
 Riding to or from work or to report for 
 
 duty. 
 For Editorial Notes, see infra, IV. 12. 
 
 56. A night watchman at a railroad depot 
 who boards a train near his home to ride to 
 the depot and report his readiness to return 
 to duty the coming night, after being off 
 duty a few days, has the rights of a pas- 
 senger in case he is injured by the carrier's 
 negligence, although he was riding, in viola- 
 tion of a rule of the company, without a 
 pass or payment of fare, but with the im- 
 plied permission of the conductor, who has 
 neglected to enforce the rule. Chattanooga 
 Rapid Transit Co. v. Venable, 105 Tenn. 
 460, 58 S. W. 861, 51 : 886 
 
 57. A station agent traveling to his home 
 in another town without paying fare, sev- 
 eral hours after his duties for the day have 
 ceased, is to be regarded as a passenger, and 
 does not, by reason of his employment by 
 the carrier as such agent, assume the risk 
 of injury through the negligent operation of 
 the train. Louisville & N. R. Co. v. Weaver, 
 108 Ky. 392, 56 S. W. 674, 50: 381 
 
 58. A railroad employee gratuitously car- 
 ried by a train toward home after his day's 
 work is done, when the ride is a privilege 
 incidental to his contract of service, with- 
 out any charge or deduction from his wages, 
 is not a passenger, but is a fellow servant 
 of the trainmen. lannone v. New York, N^ 
 H. & H. R. Co. 21 R. I. 452, 44 Atl. 592, 
 
 46: 730 
 
 (c) Other Persons. 
 
 Erroneous Instruction as to, see Appeal and 
 
 Error, 1025. 
 
 Presumption as to, see Evidence, 259-261. 
 For Editorial Notes, see infra, IV. 12. 
 
 59. To constitute one a passenger on a 
 train, tne knowledge or consent of the car- 
 rier, or its agent in charge of the train, is es- 
 sential, unless such person is rightfully on 
 the train. Woolsey v. Chicago, B. & Q. R. 
 Co. 39 Neb. 798, 58 N. W. 444, 25: 79
 
 CARRIERS, II. a, 2. 
 
 341 
 
 60. The mere failure to pay fare will not 
 prevent a person from being entitled to the 
 status of a passenger, where, without any 
 attempt on his part to defraud the carrier, 
 the conductor has failed to call upon him for 
 the fare. Florida S. R. Co. v. Hirst, 30 Fla. 
 1, 11 So. 506, 16: 631 
 
 61. One who enters and rides upon a car 
 or train which he knows, or by the exercise 
 of reasonable diligence would know, is pro- 
 hibited from carrying passengers, is a tres- 
 passer, and not a passenger; and the only 
 duty of the railroad company toward him 
 is to abstain from wanton or reckless injury 
 to him. Purple v. Union P. R. Co. 51 C. C. 
 A. 564, 114 Fed. 123, 57: 700 
 
 62. A person lawfully on a car and en- 
 titled to transportation is a passenger en- 
 titled to recover for an injury through the 
 negligence of the carrier or it& servants, 
 whether the carrier receives an agreed com- 
 pensation for his transportation, or is com- 
 pensated therefor by the charge for the car, 
 or for transportation of property in his 
 charffe. 'or receives no compensation what- 
 ever! <iulf. C. & S. F. R. Co. v. Wilson, 79 
 Tex. 371, 15 S. W. 280, 11: 486 
 With knowledge or consent of carrier's em- 
 ployees. 
 
 63. A person cannot claim the rights of a 
 passenger if he has knowingly induced the 
 conductor of a train to violate a rule of the 
 company in carrying him without charge. 
 McVeety v. St. Paul, M. & M. R. Co. 45 
 Minn. 268, 47 N. W. 809, 11: 174 
 
 64. One who pays a brakeman on a pass- 
 enger train a sum of money to be carried 
 to a certain point, and is told to ride upon 
 the platform of the baggage car, and get 
 off the train at all stops, and keep out of 
 sight, and who follows such instructions, is 
 not a passenger. Mendenhall v. Atchison, 
 T: & S. F. R. Co. 66 Kan. 438, 71 Pac. 
 846, 61: 120 
 
 65. One who, knowing that a conductor 
 has no authority to grant free transporta- 
 tion, enters and rides upon his train, with 
 the deliberate intention not to pay his fare, 
 under an agreement, or under a tacit under- 
 standing, with the conductor that he shall 
 ride free, commits a fraud upon the rail- 
 road company, and is not a passenger, but 
 is a mere trespasser, to whom the only duty 
 of the company is to abstain from wilful 
 or reckless injury. Purple v. Union P. R. 
 Co. 51 C. C. A. 564, 114 Fed. 123, 57: 700 
 
 66. A passenger on a freight train with 
 the conductor's permission, but knowing 
 that he is violating the rules of the road, 
 assumes the risk of accidents. Louisville & 
 1ST. R. Co. v. Hailey, 94 Tenn. 383, 29 S. W. 
 367. 27:549 
 
 67. The failure of the conductor of a 
 freight train which is not accustomed to 
 carry passengers to stop it in the night- 
 time and eject from the caboose a cripple 
 whose presence on the train he did not dis- 
 cover until it was well under way, and 
 whom he had previously refused to carry, 
 will not make the latter a passenger within 
 the rule as to liabilities of a carrier to pas- 
 sengers. Atchison. T. & S. F. R. Co. v. 
 Headland, 18 Colo. 477, 33 Pac. 185, 20: 822 
 
 68. A person riding on the locomotive of 
 a freight train without the conductor's 
 knowledge or consent, by agreement with 
 the fireman to shovel coal for the privilege 
 of riding, is not a passenger. Woolsey v. 
 Chicago, B. & Q. R. Co. 39 Neb. 798, 58 N. 
 W. 444, 25: 79 
 
 69. One traveling on a train by courtesy 
 of the conductor, without paying fare, is 
 not deprived of the character and rights of 
 a passenger by the fact that the conductor, 
 in carrying him free, is violating a rule of 
 the company. Louisville & N. R. Co. v. 
 Weaver, 108 Ky. 392, 56 S. W. 674, 50: 381 
 
 70. The acceptance of free transportation, 
 which a railroad company is prohibited, 
 under penalty, from granting, does not de- 
 prive one of the character of a bona fide 
 passenger, or the protection to which he is 
 entitled as such. McNeill v. Durham & C. 
 R. Co. 135 N. C. 682, 47 S. E. 765, 67 : 227 
 
 71. One who is on a freight train with the 
 knowledge and consent of the agent having 
 charge of it canno.t be said to be there 
 wrongfully, although he had knowledge that 
 he was on the train in violation of the rules 
 of the company. White/head v. St. Louis, I. 
 M. & S. R. Co. 99 Mo. 263, 11 S. W. 751, 
 
 6: 409 
 
 72. A passenger allowed to ride on a 
 special train, who has no notice of any want 
 of authority to grant the permission, wheth- 
 er he pays fare or not, in the absence of col- 
 lusion between him and the conductor to 
 defraud the company of its fare, becomes a 
 passenger, and as such is entitled to have 
 the train on which he travels managed with 
 the care that is due from a common carrier 
 to passengers on a train of that character. 
 Wagner v. Missouri P. R. Co. 97 Mo. 512, 
 10 S. W. 486, 3: 156 
 By fraud or stealth. 
 
 73. The relation of carrier and passenger 
 is not established between a railroad com- 
 pany and one who gets upon a passenger 
 train with the deliberate purpose not to pay 
 his fare, and adheres to that purpose, or 
 who, being on the train and having money 
 with him with which he could pay his fare, 
 falsely and fraudulently represents to the 
 conductor that he is without means, and 
 thereby induces the conductor to permit him 
 to remain on the train without paying his 
 faro. Condran v. Chicago, M. & St. P. R. 
 Co. 32 U. S. App. 182, 14 C. C. A. 506, 67 
 Fed. 522, 28: 749 
 
 74. The rule that one riding upon a train 
 by fraud or stealth, without payment of 
 fare, cannot recover for injuries not due to 
 recklessness or wilfulness of the company, 
 is not modified or abrogated by McClain 
 (Iowa) Ann. Code, 2002, making every 
 railroad company liable for all damages sus- 
 tained by any person in consequence of the 
 neglect of agents, or by mismanagement of 
 the engineers or other employees. Id. 
 
 75. One riding on a railroad train by fraud 
 or stealth, without the payment of fare, 
 takes upon himself all the risk, and. if in- 
 jured by an accident happening to the train,
 
 342 
 
 CARRIERS, II. a, 2. 
 
 not due to recklessness, or wilfulness on the 
 part of the company, cannot recover. Id. 
 Person with ticket on wrong train. 
 
 76. A person having a ticket for passage 
 upon a railroad, who boards a freight train 
 which does not carry passengers, believing 
 the ticket good on that train, is to be treat- 
 ed as a passenger, and is not a trespasser. 
 Boggess v. Chesapeake & 0. R. Co. 37 W. 
 Va. 297, 16 S. E. 525, 23: 777 
 
 77. One who boards a train which he 
 should know does not stop at the station 
 for which he has a ticket, in the hope that 
 it will do so and so afford him an oppor- 
 tunity of reaching his destination, and who 
 refuses to pay the additional fare to the 
 first stopping place upon the conductor's de- 
 mand, is a passenger within the meaning of 
 a statute requiring the ejection of passen- 
 gers at usual stopping places. St. Louis S. 
 W. R. Co. v. Harper, 69 Ark. 186, 61 S. W. 
 911, 53:220 
 Shipper with stock. 
 
 For Editorial Notes, see infra, IV. 12, 20. 
 
 78. A person traveling on a train in charge 
 of cattle is a passenger for hire. The con- 
 sideration for his passage is the service he 
 renders in taking care of the cattle, or it is 
 found in the charges made for shipping the 
 cattle. Missouri P. R. Co. v. Ivey, 71 Tex. 
 409, 9 S. W. 346, 1 : 500 
 
 79. A shipper traveling on a freight ear 
 with the consent of the carrier, to care for 
 his stock, is regarded as a pa3*ng passen- 
 ger. Illinois C. R. Co. v. Beebe, 174 111. 13, 
 50 N. E. 1019, 43: 210 
 
 (2) When Relation Commences. 
 For Editorial Notes, see infra, IV. 12. 
 
 80. A person must be expressly or im- 
 pliedly received as a passenger before he can 
 sustain that relation to a carrier. Illinois 
 C. R. Co. v. O'Keefe, 168 111. 115, 48 -N. E. 
 294, 39: 148 
 Before entering train. 
 
 For Editorial Nptes, see infra, IV. 12. 
 
 81. The duty of a railroad company to one 
 as a passenger has not arisen when, with a 
 passage ticket in his pocket, he is crossing 
 its tracks on a public highway for the pur- 
 pose of boarding a train standing on the 
 track farthest from him, and when he has 
 not yet reached the platform provided for 
 passengers. Chicago & E. I. R. Co. v. Jen- 
 nings, 190 111. 478, 60 N. E. 818, 54: 827 
 
 82. One holding a mileage ticket who, 
 with intent to board a train standing on a 
 siding near the station, without going to the 
 station, is compelled to cross the main line, 
 is not a passenger to whom the railroad 
 company owes extraordinary care or 'dili- 
 gence, but is entitled only to ordinary care 
 as one of the general public, as he has done 
 nothing to notify any of the officers or 
 agents of the defendant company that he 
 is a prospective passenger. Southern R. Co. 
 v. Smith, 30 C. C. A. 58, 52 U. S. App. 708, 
 86 Fed. 292, 40: 746 
 
 83. A person does not become a passen- 
 ger because he has previously obtained a 
 ticket, and is on the premises of a railroad 
 
 company designed for the use of passengers, 
 and is about to take a train, where he is 
 running from the direction of a public 
 street, across the premises, outside the sta- 
 tion, to catch a train about to start, and is 
 struck while crossing a track by an incom- 
 ing train. Webster v. Fitchburg R. Co. 161 
 Mass. 298, 37 N. E. 165, 24: 521 
 
 84. One intending to take passage on a 
 railroad train cannot claim the relation of 
 passenger, so as to require the company to 
 protect him from the assaults of strangers, 
 by resorting to its premises an unreason- 
 able time before the departure of the train, 
 in the absence of an agreement, express or 
 implied, on its part to do so; and, when the 
 statute fixes the time during which the 
 station must be open, that time will be re- 
 garded as the reasonable time during which 
 the carrier's responsibility exists. Illinois 
 C. R. Co. v. laloge, 113 Ky. 896, 69 S. W. 
 795, 62: 405 
 
 85. A party coming to a railroad station 
 with the intention of taking the next train 
 is, in contemplation of law, a pa'ssenger, 
 provided his coming is within a reasonable 
 time before the departure of the train. Phil- 
 lips v. Southern R. Co. 124 N. C. 123, 32 S. 
 E. 388, 45: 163 
 
 86. A person who goes to a flag station on 
 a railroad, at which there is no ticket office, 
 for the purpose of boarding a train, is, upon 
 properly signifying an intention to get upon 
 a passenger train which has actually 
 stopped, entitled to the rights of a passen- 
 ger. Western & A. R. Co. v. Voils, 98 Ga. 
 446, 26 S. E. 483, 35: 655 
 
 87. The relation of common carrier and 
 passenger is established when a person pur- 
 chases a ticket at the station or depot of a 
 railroad company, intending to be a passen- 
 ger on the cars of the company; and the 
 company is required to exercise reasonable 
 care to protect the passenger from injury 
 in the use of the station or depot for the 
 purposes of the journey. Exton v. Central 
 R. Co. (N. J. Err. & App.) 63 N. J. L. 356, 
 46 Atl. 1099, 56:508 
 After entering train. 
 
 88. All passengers actually on a train, 
 whether the same is moving or not, and pas- 
 sengers who have left the train at the ex- 
 press or implied invitation of the carrier, for 
 any necessary purpose incident to their jour- 
 ney, are passengers "being transported over 
 the road," within the meaning of Neb. Comip. 
 Stat. chap. 72, art. !, 3, making a carrier 
 liable for all personal damage inflicted on a 
 passenger while being transported over its 
 road. Chicago, R. I. & P. R. Co. v. Sattler, 
 04 Neb. 636, 90 N. W. 649, 57 : 890 
 
 89. The relation of passenger is estab- 
 lished when one has safely entered a passen- 
 ger car with the intention of becoming a 
 passenger, although at a stopping place not 
 a station, and where no invitation was held 
 out to take trains, but where they were 
 permitted to be taken. Dewire v. Boston & 
 M. R. Co. 148 Mass. 343, 19 N. E. 523, 2: 166 
 
 90. The holder of a free pass on a rail- 
 road, who gets on the front platform of a 
 baggage car next tb* tender when the train
 
 CARRIERS. II. a, 2. 
 
 343 
 
 is in motion and after it has left the depot, 
 and then tries to open the baggage-car door, 
 does not thereby become a passenger so as 
 to make the railroad company liable for his 
 protection as such, when he is killed by a 
 collision while he is on the car platform. 
 Illinois C. R. Co. v. O'Keefe, 168 111 115, 48 
 N. E. 294, 39: 148 
 
 91. A conductor's knowledge that some 
 one has boarded his train while in motion 
 by getting on the platform between the 
 tender and baggage car is not sufficient to 
 show that he has accepted him as a passen- 
 ger, when he does not know who the person 
 is or what he is there for. Id. 
 Before entering street car. 
 
 92. The relation of carrier and passenger 
 does not exist between a street railway 
 company and a person who has given a sig- 
 nal, which is seen and responded to. for a 
 car to stop, but who is struck *by the un- 
 expected swinging of the car from its 
 proper track on to a switch track. Donovan 
 v. Hartford Street R. Co. 65 Conn. 201, 32 
 Atl. 350, 29: 297 
 
 93. A woman with a transfer ticket ap- 
 proaching a street car to get on, when she 
 is struck by a piece of the trolley pole, 
 which breaks while the motorman is trying 
 to change it to the other end of the car, 
 is a passenger to whom the high degree of 
 care which a common carrier owes to pas- 
 sengers is due. Keator v. Scranton Trac- 
 tion Co. 191 Pa. 102, 43 Atl. 86, 44: 546 
 
 94. A street car company does not owe to 
 a person upon a street, when its car has 
 stopped to receive him as a passenger, the 
 same high degree of care with respect to de- 
 fects in the car, while he is approaching the 
 car to enter it, that it owes to passengers 
 actually on board, so that its liability for 
 injury to such a person by the fall of the 
 trolley pole and a sign board cannot be de- 
 termined by the application of the rule gov- 
 erning the relation of carrier and passenger. 
 Duchemin v. Boston Elev. R. Co. 186 Mass. 
 353. 71 N. E. 780. 66: 080 
 While on gang plank of vessel. 
 
 95. A person injured by the slipping of a 
 gang plank while attempting to cross it in 
 entering a steamer to take passage is to be 
 regarded as a passenger. Rogers v. Kenne- 
 bec Steamboat Co. 86 Me. 261, 29 Atl. 1069, 
 
 25: 491 
 
 (3) Termination of Relation. 
 
 See also supra, 88; infra, 549. 
 
 For Editorial Notes, see infra, IV. 
 
 12, 25. 
 
 96. A passenger is, whenever the perform- 
 ance of the contract of carriage in a usual 
 and proper way necessarily involves leaving 
 the vehicle and returning to it, entitled to 
 protection as such, as well while so leaving 
 and returning as at any other time. Dodge 
 v. Boston & B. S. S. Co. 148 Mass. 207, 19 
 N. E. 373, 2: 83 
 
 97. The relation of carrier and -passenger 
 exists between a railroad company and a 
 passenger on a train which is temporarily 
 stopped by a burning tank of oil on the 
 track, during which time passengers on the 
 
 train are taken to a piace some distance* 
 from the tank, while waiting for a train to 
 receive them on the other side of the ob- 
 struction. Conroy v. Chicago. St. P. M. & 
 0. R. Co. 96 \Vis. 243, 70 N. W. 486, 38: 419 
 
 98. A person passing from a railroad sta- 
 tion across a track to a platform, intending 
 to take a train for which he has purchased 
 a ticket, is a passenger within the meaning 
 of Mass. Pub. Stat. chap. 112, 212, relating 
 to the liability of a railroad company for 
 negligently causing the death of a passenger. 
 Young v. New York, N. H. & H. R. Co.- 171 
 Mass. 33, 50 N. E. 455, 41 : 193 
 
 99. A passenger on a railroad train does 
 not lose his character as such by alighting 
 from the cars at a regular station from mo- 
 tives of either business or curiosity, al- 
 though he has not yet arrived at the termin- 
 us of his journey. Parsons v. New York C. 
 & H. R. R. Co. 113 N. Y. 355, 21 N. E. 145, 
 
 3:683 
 Chicago, R. I. & P. R. Co. v. Sattler, 64 
 
 Neb. 636, 90 N. W. 649, 57: 890 
 
 Contra, De Kay v. Chicago, M. & St. 
 
 P. R. Co. 41 Minn. 178, 43 N. W. 182, 4: 632 
 
 100. A passenger who leaves his car of his 
 own volition, for some purpose of his own, 
 not incident to the journey he is pursuing, 
 as, for instance, to get a drink of water 
 while the train is standing on a side track, 
 and at a place not designed for t'he discharge 
 of passengers, ^cannot claim the protection 
 of Neb. Comp. Stat. chap. 72, art. 1, 3 
 making a carrier liable for all personal dam- 
 age inflicted on a passenger beiqg transport- 
 ed. Chicago, R. I. & P. R. Co. v. Sattler, 
 64 Neb. 636, 90 N. W. 649, 57:890 
 
 101. A passenger who, having got \ipon 
 the wrong train, voluntarily gets off at a 
 point not a static^, upon the stopping of 
 such train by the conductor, ana walks 
 along the track towards a train pointed out 
 by the conductor as one which will carry 
 him towards his destination, ceases to be a 
 passenger after leaving the train, and cannot 
 recover for injuries susta-ined by falling into 
 a cattle guard upon the track. .Finnegan v. 
 Chicago, St. P. M. & 0. R. Co. 48 Minn. 378, 
 51 N. W. 122, 15: 399 
 
 102. If the performance of a railroad com- 
 pany's contract to transport a passenger is 
 temporarily suspended by a defect in the 
 roadbed, he is entitled, during the time re- 
 quired to overcome the defect, to all the 
 rights of a passenger upon a moving train, 
 including that of protection from the wilful 
 misconduct of the company's servants. 
 Dwinelle v. New York C. &,H. R. R. Co. 120 
 N. Y. 117, 24 N. E. 319, 8: 224 
 
 103. A railroad company owes no duty to 
 a passenger as such after he alights from 
 the train at a station, and proceeds towards 
 a section house connected with the station, 
 for the purpose of engaging in his regular 
 business of a peddler. Krantz v. Rio Grande 
 W. R. Co. 12 Utah, 104, 41 Pac. 717, 30: 297 
 
 104. A person leaving a street car, who 
 passes behind it and is then struck by a car 
 on a parallel track, is no longer a passenger 
 to whom the street railway company o\vc~ 
 the extraordinary degree of care to which
 
 344 
 
 CARRIERS, II. a, 3. 
 
 passengers are entitled, but is to be deemed 
 only a traveler on the highway. Chatta- 
 nooga Electric Ry. v. Boddy, 105 Tenn. 666, 
 58 S. W. 646, 51 : 885 
 
 105. The relation of a passenger is termin- 
 ated as soon as he steps from a street car 
 upon the street, and does not continue dur- 
 ing his passage to the sidewalk. Creamer v. 
 West End Street R. Co. 156 Mass. 320, 31 N. 
 E. 391, 16:490 
 
 3. Duty to Passengers; Protection. 
 a. In General; Care of Passengers. 
 
 Duty to Light and Keep Open Station, see 
 
 infra II. a, 9, c. 
 Measure of Damages for, see Damages, 211, 
 
 218. 
 Recovery for Mental Anguish for Failure of 
 
 Duty, see Damages ill. o, 2, c. 
 Instruction as to Damages, see Trial, 766. 
 Proximate Cause of Injury, see Proximate 
 
 Cause, 73. 
 Repeal of Act Making Liable for Injury, 
 
 see Statutes. 569. 
 See also supra, 20, 102; infra. 200. 
 For Editorial Notes, see infra, IV. 6, 11, 
 
 16. 21. 
 
 106. The relations between a steamboat 
 company and a passenger occupying a state- 
 room are those that exist between an inn- 
 keeper and his guest. Adams v. New Jersey 
 Steamboat Co. 15.1 N. Y. 163. 45 N. E. 365, 
 
 34: 682 
 
 107. It is the duty of a transportation 
 company legitimately to inform itself con- 
 cerning the stages of water on a route over 
 which it contracts to transiport a passenger, 
 and he may rely upon tie carrier's informa- 
 tion concerning the practicability and feas- 
 ibility of the trip. Smith v. North Amer- 
 ican Transp. & T. Co. 20 Wash. 580. 56 Pac. 
 372, 44:557 
 
 108. A passenger carrier is bound to make 
 use of such cars and appliances as have 
 proved by experience to be most efficacious 
 in known use in the same business. Palmer 
 v. Warren Street R. Co. 206 Pa. 574, 56 
 Atl. 40. 63 : 507 
 
 109. A railroad company cannot subject 
 passengers, even in a second-class car, to 
 noxious influences not necessarily or ordin- 
 arily incident to such travel, such as hear- 
 ing rough, profane, and obscene language, 
 and witnessing acts of violence and drunken- 
 ness which the company, by the exercise of 
 proper care and due regard for the welfare 
 of passengers, could prevent. St. Louis, A. 
 & T. R, Co. v. Mackie. 71 Tex. 491, 9 S. W. 
 451. 1:667 
 
 110. A street car conductor's knowledge of 
 the peculiar sensitiveness of a lady passen- 
 ger does not increase the carrier's obliga- 
 tion toward her, although, in case of a 
 wronjr toward her, the carrier will be liable 
 for the actual consequences, even if the ef- 
 fect would have been less upon a normal 
 person. Spade v. Lynn & B. R. Co. 172 
 Mass. 48S. 52 N. E. 747, 4.3 : 832 
 
 111. It i= the duty of a carrier to protect 
 
 a passenger against any injury from the 
 negligence or wilful misconduct of its serv- 
 ants and of his fellow passengers and stran- 
 gers, so far as practicable. Gillingham v. 
 Ohio River R. Co. 35 W. Va. 588, 14 S. E. 
 243, 14: 798 
 
 Passenger entering wrong car. 
 
 112. The conductor of a passenger train is 
 under no obligation to place upon the right 
 car a passenger who has entered the wrong 
 one by mistake. Illinois C. R. Co. v. Har- 
 per, 83 Miss. 560, 35 So. . 764, 64: 283 
 Duty to transport generally. 
 
 Punitive Damages for Failure, see Damages 
 
 68-70. 
 
 Damages for Refusal, see Damages, 210. 
 Form of Action for Failure of Duty, see 
 
 Election of Remedies, 24, 25. 
 
 113. The bad, dilapidated, and ruinous 
 condition of a railroad, and the old, worn, 
 and bad condition of its two engines, render 
 the company liable for compensatory dama- 
 ges to a passenger whom it was unable to 
 carry in accordance with its contract on a 
 return trip, because one of its engines had 
 broken down while the other was in the 
 shop for repairs, although the company was 
 poor and struggling for existence and ex- 
 pending all its earnings and more on the 
 road. Hansley v. Jamesville & W. R. Co. 
 115 N. C. 602^ 117 N. C, 565, 20 S. E. 528, 
 23 S. E. 443, 32:543 
 
 114. On the refusal of a person to take a 
 special train which he has hired, unless the 
 carrier will guarantee to reach the destina- 
 tion by a certain time, the latter is exoner- 
 ated from any liability except to return the 
 money which has been paid on the contract. 
 Wilcox v. Richmond & D. R. Co. 8 U. S. App. 
 118, 3 C. C. A. 73, 52 Fed. 264, 17: 804 
 Leaving before advertised time. 
 
 115. The holder of a steamboat ticket can- 
 not recover damages because the boat leaves 
 before the advertised time and before he is 
 aboard, if, before it leaves, the government 
 inspector has refused to permit any more 
 persons to get aboard because the number 
 permitted by its license has been reached. 
 Hughson v. Winthrop Steamboat Co. 181 
 Mass. 325, 64 N. E. 74, 58: 432 
 On abandoning trip. 
 
 116. A steamer compelled to abandon for 
 the season its trip from Seattle to Dawson 
 after it reaches Ft. Yukon, because of the 
 low stage of the water in the Yukon river, 
 owes to a passenger whom it has agreed to 
 transport to Dawson by September 15 of the 
 current year the duty of bringing him back 
 to Seattle without charge, and has no right 
 to leave him where he will be forced to re- 
 main over winter in the Alaskan climate, to 
 await the convenience of the carrier for com- 
 pleting the transportation the following 
 summer. Smith v. North American Transp. 
 & T. Co. 20 Wash. 580, 56 Pac. 372, 44: 557 
 Riding in smoking or second-class car. 
 
 See also infra, 143. 
 
 117. A passenger who, without protest, 
 obeys the directions of a porter to ride in 
 the smoking car, cannot hold the carrier 
 liable for the discomfort thereby caused to
 
 CARRIERS, II. a, 3. 
 
 345 
 
 Mm, although his ticket entitles him to 
 first-class passage. Brezewitz v. St. Louis, 
 I. M. & S. R. Co. 75 Ark. 242, 87 S. W. 
 127, 70: 212 
 
 118. Where a man in the exercise of such 
 care as a prudent man would ordinarily 
 exercise, on paying for first-class tickets for 
 himself and family, receives second-class 
 tickets without examination, and, on offer- 
 ing them to the conductor, is compelled, 
 with his family, to go into and ride in a 
 second-class car, whereby they are humiliat- 
 ed and injured, he can recover for the phys- 
 ical and mental injuries which they sus- 
 tained. St. Louis, A. & T. R. Co. v. Mackie, 
 71 Tex. 491, 9 S. W. 451, 1: 667 
 
 119. A person compelled to ride in a sec- 
 ond-class car when he had paid for first- 
 class tickets, although by mistake, or other- 
 wise, second-class tickets had ben given 
 him, is not prevented from recovering for 
 damages sustained by the fact that he re- 
 fused the conductor's offer to ride in the 
 first-class car on payment cf 1 cent per mile 
 in addition. . Id. 
 Duty to deliver telegrams. 
 
 Burden of Proof as to, see Evidence, 291. 
 
 120. A steamship company is not, merely 
 by reason of its relation as carrier to its 
 passengers, bound to receive telegrams to be 
 delivered to them. Davies v. Eastern 
 Steamboat Co. 94 Me. 379, 47 Atl. 896, 
 
 53: 239 
 
 121. A steamship company is not liable 
 for the nondelivery to a passenger of a tele- 
 gram which the captain has taken for him, 
 where no habit or custom is shown, no 
 holding out to the world of the captain as 
 having authority to do such an act. Id. 
 Duty to watch sleeping car. 
 
 122. A corporation engaged in running 
 sleeping coaches, with sections separated 
 from the aisle only by curtains, is bound to 
 have an employee charged with the duty of 
 carefully and continually watching the in- 
 terior of the car while the berths are occu- 
 pied by sleepers. Carpenter v. New York, 
 N. H. & H. R. Co. 124 N. Y. 53, 26 N. E. 
 277, 11:759 
 Communication of disease. 
 
 123. A railroad company is not liable for 
 the communication to a passenger of a con- 
 tagious disease from its railroad ticket 
 agent, if neither the company nor any of 
 its superior officers had any knowledge that 
 he had such disease. Long v. Chicago, K. 
 & W. R. Co. 48 Kan. 28, 28 Pac. 977, 15: 319 
 Cutting off car. 
 
 Punitive Damages for, see Damages, 84. 
 Proximate Cause of Injury by, see Proxi- 
 mate Cause, 72. 
 
 124. Cutting off a sleeper from a train and 
 leaving it on a siding late at night, without 
 notice to passengers who have entered it 
 while it was attached to the train on being 
 informed by the carrier's servant that the 
 sleeper would go with that train, renders 
 the carrier liable for the resulting damages 
 to a passenger who is thus left with a sick 
 child, while their baggage, including medi- 
 cine, has been carried off upon the train. 
 
 Xorfolk & W. R. Co. v. Lipscomb. 90 Va. 
 137, 17 S. E. 809, 20: 817 
 
 Medical services. 
 
 125. The mistake of a ship's physician 
 in giving out medicines will not render the 
 shipowner liable, where it has complied with 
 a statute requiring it to employ a competent 
 physician duly qualified, and supply him 
 with proper and necessary medicines, and 
 furnish him a proper place in which to keep 
 them. Allen v. State S. S. Co. 132 N. Y. 91, 
 30 N. E. 482, 15: 166 
 
 126. The owner of a vessel carrying emi- 
 grants, who has provided a competent sur- 
 geon under act of Congress of August 2, 
 1882 (22 U. S. Stat. at L. 188, chap. 374, U. 
 S. Comp. Stat. 1901, p. 2935), is not liable 
 for the want of care of such surgeon in per- 
 forming an operation. O'Brien v. Cunard 
 Steamship Co. 154 Mass. 272, 28 N. E. 266, 
 
 13: 329 
 
 Injury by stranger. 
 Evidence of Other Scuffling by Hackmen 
 
 Causing Injury, see Evidence, 1969. 
 See also supra, 111. 
 
 127. A street railway company is not 
 liable for injury to a passenger caused by 
 iron falling from a canal bridge belonging 
 to the state and over which the railroad 
 company has no control, but which it is 
 necessary to cross on its route, if the com- 
 pany has not been guilty of negligence in 
 failing to discover the defect. Birmingham 
 v. Rochester City & B. R. Co. 137 N. Y. 13, 
 32 N. E. 995, 18: 764 
 
 128. A railroad company is liable for in- 
 juries to a passenger at its station, caused 
 by scuffling cabmen, even if the danger 
 arose from the acts and conduct of intruders 
 or strangers, if such acts and conduct were 
 so continued and so notorious that the serv- 
 ants of the defendant company in charge of 
 the depot and the passageways thereof de- 
 voted to the use of passengers knew of such 
 acts and conduct, or should have known of 
 them and of the danger arising therefrom. 
 Exton v. Central R. Co. (N. J. Err. & 
 App.) 63 N. J. L. 356, 46 Atl. 1099, 56: 508 
 
 129. A railroad company is not liable for 
 an injury to a passenger caused by the 
 grossly criminal act of a stranger in letting 
 off the brakes on loaded cars standing on a 
 switch and closing the switch, which had 
 been left open to derail the cars if they got 
 loose, on account of the cars running down 
 grade and out on the main track, causing a 
 collision, where there was no negligence in 
 failing to discover the mischief or prevent 
 its effect. Fredericks v. Northern C. R. Co. 
 157 Pa. 103, 27 Atl. 689, 22: 306 
 
 130. The unusual, rude, and hasty act of 
 a stranger in rushing through a door while 
 hurrying to take a train, thereby violently 
 striking a person on the other side, does not 
 render the carrier liable. Graeff v. Philadel- 
 phia & R. R. Co. 161 Pa. 230, 28 Atl. 1107, 
 
 23: 606 
 
 131. A carrier is liable for injury to a pas- 
 senger by a third person whenever it knows, 
 or has opportunity to know, of a threat- 
 ened injury from such source, whether the 
 third person is a passenger or not, or when
 
 346 
 
 CARRIERS. II. a, 8. 
 
 the circumstances are such that injury to 
 a passenger from such a source may reason- 
 ablv be anticipated, and proper precautions 
 are not taken to prevent the injury. Savan- 
 nah, F. & W. R. Co. v. Boyle, 115 Ga. 836, 
 42 S. E. 242, 59: 104 
 
 Injury by tramp stealing ride. 
 
 132. The presence upon a train of two 
 negro tramps, secreted and stealing a ride 
 thereon, is not alone sufficient to cause the 
 employees in charge of the train to suspect 
 that such tramps are armed with deadly 
 weapons, and to anticipate that when 
 brought into the train under arrest they 
 may endeavor to escape, and, while an em- 
 ployee is attempting to prevent the escape, 
 make a murderous assault with such 
 weapons upon one to whom the railroad 
 company owes the duty of protection, and 
 who is taking no part in the effort to pre- 
 vent the escape. Savannah, F. & W. R. Co. 
 v. Boyle, 115 Ga. 836, 42 S. E. 242, 59: 104 
 
 133. A carrier is not liable for the shoot- 
 ing of a passenger by negro tramps en- 
 deavoring to escape after having been 
 brought into the train under arrest for 
 stealing a ride, simply because the em- 
 ployees failed to search and bind them, 
 where it does not appear that there was 
 anything in the circumstances under which 
 the tramps were arrested, or in their man- 
 ner, to cause the employees to apprehend 
 that they were dangerous characters, or 
 armed with deadly weapons, or likely to re- 
 sort to violence in an effort to escape. Id. 
 Injury by other passenger. 
 
 See also supra, 111. 
 
 134. A carrier's liability for the miscon- 
 duct of a passenger because of the injury 
 to another passenger arises only when the 
 carrier or his servants could have prevented 
 the injury, but failed to interfere to avert 
 it, with knowledge, or upon facts which 
 ought to have imparted knowledge, that the 
 injury was threatened. Tall v. Baltimore 
 Steam Packet Co. 90 Md. 248, 44 Atl. 1007J 
 
 47: 120 
 
 135. The rule that a carrier is charged 
 with the highest degree of care consistent 
 with the nature of his undertaking, as be- 
 tween him and his passenger, in respect to 
 the acts or omissions of the carrier and his 
 servants, does not extend to the matter of 
 the carrier's liability for injuries to passen- 
 gers by acts of fellow passengers or stran- 
 gers. Id. 
 
 136. A lady passenger whose light, gauzy 
 summer dress is ignited on an open street 
 car by a match carelessly thrown by an- 
 other passenger after lighting a cigarette 
 cannot hold the street railway company 
 liable for her injuries, where the servant in 
 charge of the car was not chargeable with 
 any negligence. Sullivan v. Jefferson Ave. 
 R. Co. 133 Mo. 1, 34 S. W. 566, 32: 167 
 
 137. The lawfulness of the act of a passen- 
 ger on an excursion boat in using his gun 
 with a loaded shell will not excuse the own- 
 ers of the boat from liability for an injury 
 resulting from such passenger's negligence 
 or lack of caution, provided his action is 
 such as to excite apprehension in a reason- 
 
 ably prudent person. West Memphis Pack- 
 et Co. v. White, 99 Tenn. 256, 41 S. W. 
 583, 38 : 427 
 
 138. The owner of a steamboat is required 
 to exercise the utmost vigilance and dili- 
 gence in protecting its passengers from in- 
 juries by the negligent and careless use of 
 a loaded gun exhibited by another passen- 
 ger, where, under all the circumstances, 
 such owner or his officers and agents might 
 reasonably expect or anticipate the injury. 
 
 Id. 
 
 Injury by mail agent. 
 
 Evidence of Other Accidents by Throwing 
 of Mail Bag, see Evidence, 1970, 1971. 
 
 139. A railroad company is liable for the 
 negligence of a mail agent in throwing a 
 mail sack upon a station platform, causing 
 the injury of a person thereon, although the 
 company has no right to interfere with the 
 discharge of his duties, if it had notice of 
 his practice to throw sacks in this way. 
 Galloway v. Chicago, M. & St. P. R. Co. 56 
 Minn. 346, 57 N. W. 1058, 23: 442 
 Homicide of passenger. 
 
 See also infra, 264. 
 
 140. The murder of a passenger when 
 asleep in a sleeping car, by some intruder, 
 stranger, or fellow passenger, does not ren- 
 der the carrier liable, if the carrier or its 
 employees did not know of an impending 
 danger and there were no circumstances to 
 arouse their suspicions. Ball v. Chesapeake 
 & O. R. Co. 93 Va. 44, 24 S. E. 467, 32: 792 
 
 6. Abuse. 
 
 See also infra, 182. 
 
 By employee. 
 
 Punitive Damages for, see Damages, 71. 
 
 141. There is an implied contract on the 
 part of a common carrier that a passenger 
 shall receive proper, polite, and courteous 
 treatment from its employees. Knoxville 
 Traction Co. v. Lane, 103 Tenn. 376, 53 S. 
 W. 557, 46: 549 
 
 142. The cursing, abuse, and maltreat- 
 ment of a person by an agent of an express 
 company, immediately after refunding to 
 such person overcharges which he had come 
 to the office to obtain, and the delivery of 
 a receipt therefor, are part of the res gestce 
 and makes the company liable for the tort. 
 Richberger v. American Exp. Co. 73 Miss. 
 161,18So.922, 31:390 
 
 143. A railroad passenger holding a first- 
 class ticket may recover damages from the 
 company if his request to the conductor for 
 a seat in a first-class coach is met by an ex- 
 plosion of profane and contemptuous wrath, 
 and he is compelled to stand although pas- 
 sengers in the car are occupying more seats 
 than they are entitled to. Louisville, N. O. 
 & T. R.'Co. v. Patterson, 69 Miss. 421, 13 
 So. 697, 22: 259 
 
 144. Injuries to the feelings and sensibil- 
 ities of a woman of good character while a 
 passenger on a street car, caused by insult- 
 ing and indecent language used to and about 
 her by one of the carrier's employees in 
 charge of the car, renders the carrier Tiabl
 
 CARRIERS, II. a, 3. 
 
 34-: 
 
 for damages, irrespective of any negligence 
 in employing the servant or of any author- 
 ization or ratification of his conduct. Knox- 
 ville Traction Co. v. Lane, 103 Tenn. 376, 53 
 S. W. 557, 46:549 
 
 145. For abuse and defamation of a pas- 
 senger by the driver of a street car, who 
 charges the passenger with having given him 
 counterfeit money and threatens to have 
 him arrested, the street car company may 
 be held liable. Lafitte v. New Orleans City 
 & L. R. Co. 43 La. Ann. 34, 8 So. 701, 
 
 12: 337 
 
 146. The fact that a street car conductor 
 acts maliciously in calling a passenger a 
 deadbeat when asked for change due her 
 does not absolve the company from liability 
 for his act, since it is done in the course of 
 his employment, and constitutes a breach of 
 the company's duty to protect thejmssenger 
 from such insult. Gillespie v. Brooklyn 
 Heights R. Co. 178 N. Y. 347, 70 N. E. 857, 
 
 66: 618 
 
 By fellow passenger. 
 Measure of Damages for, see Damages, 215. 
 
 147. Insult to and abuse of a passenger by 
 a drunken and disorderly fellow passenger, 
 which the conductor permits to continue in 
 his presence without interference, renders 
 the carrier liable to damages. Lucy v. Chi- 
 cago G. W. R. Co. 64 Minn. 7, 65 N. W. 944, 
 
 31 : 551 
 
 c. Assault. 
 
 Evidence of Abusive Language by Passen- 
 ger on Other Occasion, see Evidence, 
 1953. 
 
 Evidence as to Vaccination of Passenger, see 
 Evidence, 2177. 
 
 See also infra, 188. 
 
 By fellow passenger or stranger. 
 
 See also supra, 84. 
 
 For Editorial Notes, see infra, IV. 16. 
 
 148. A railroad company is bound to exer- 
 cise reasonable care to protect its passen- 
 gers from assault and injury by strangers; 
 and neglect by its servants to exercise such 
 care, resulting in injury to its passengers, 
 establishes liability to respond in damages. 
 Exton v. Central R. Co. (N. J. Err. & App.) 
 63 N. J. L. 356, 46 Atl. 1099, 56:508 
 
 149. A railroad company is bound to use 
 extraordinary diligence to protect a passen- 
 ger, while in transit, from violence or in- 
 jury by third persons. Brunswick & W. R. 
 Co. v. Ponder, 117 Ga. 63, 43 S. E. 430, 
 
 60: 713 
 
 150. A common carrier is required to pro- 
 tect a passenger from an unprovoked as- 
 sault of a fellow passenger, if the conductor 
 knows that it is threatened and can pre- 
 vent it with the assistance of employees 
 and willing passengers. Illinois C. R. Co. v. 
 Minor, 69 Miss. 710, 11 So. 101, 16: 627 
 
 151. A railroad company is liable for in- 
 jury to a passenger by a missile thrown 
 through the window by fellow passengers 
 who had just alighted, where its servants 
 knew that such passengers were intoxicated 
 and had, before leaving the train, insult- 
 
 ed and mistreated the other passengers, and 
 had threatened that when they reached their 
 station they would be revenged, upon their 
 fellow passengers because the latter had 
 interfered with their boisterous and dis- 
 orderly conduct. Spangler v. St. Joseph & 
 G. L R. Co. 68 Kan. 46, 74 Pac. 607, 63: 634 
 
 152. Failure of employees of a street rail- 
 way company to overpower or remove from 
 the car a drunken passenger whose conduct 
 is such as to indicate danger to other pas- 
 sengers if he is permitted to ride unre- 
 strained is negligence which will render the 
 company liable for injuries which he in- 
 flicts upon a passenger, although there is 
 nothing to indicate that the one injured 
 is in especial peril. United Railways & 
 E. Co. v. State Use of Deane, 93 Md. 619, 
 49 Atl. 923, 54:942 
 
 153. Permitting a drunken passenger who 
 has been removed from a street car for 
 turbulence and an assault upon a fellow 
 passenger, to return to and remain upon the 
 car without further effort to remove him, 
 although his turbulence continues, is negli- 
 gence which will render the street car com- 
 pany liable for injuries inflicted by him 
 upon a passenger. Id. 
 
 154. It is the duty of a railroad company 
 to protect passengers upon its trains from 
 the misconduct and assaults of fellow pas- 
 sengers, not only while such fellow passen- 
 gers remain on the train, but also after they 
 have alighted therefrom at the station of 
 their destination, whenever the company 
 knows of the threatened injury, or might 
 reasonably have anticipated that under all 
 the circumstances it would occur. Spangler 
 v. St. Joseph & G. I. R. Co. 68 Kan. 46, 74 
 Pac. 607, 63: 634 
 
 155. Allowing passengers to play cards in 
 the smoking room of a steamboat, in viola- 
 tion of a rule of the carrier, does not make 
 the carrier liable for the injury to another 
 passenger who is shot during a quarrel 
 which occurs during the game. Tall v. 
 Baltimore Steam Packet Co. 90 Md. 248, 44 
 Atl. 1007, 47: 120 
 
 156. A colored passenger upon a railway 
 train is entitled to the same protection 
 against drunken and violent men seeking to 
 molest, outrage, and humiliate him as a 
 white passenger. This protection must be 
 afforded by the conductor to the extent of 
 all the power with which he is clothed by 
 the company or by the law; and his failure 
 to afford it when he has knowledge that 
 there is occasion for his interference will 
 subject the company to liability in dam- 
 ages. Richmond & D. R. Co. v. Jefferson, 80 
 Ga. 554, 16 S. E. 69, 17: 571 
 By striker. 
 
 For Editorial Notes, see infra, IV. 16. 
 
 157. The attempt of a street railway com- 
 pany to operate its cars during a strike 
 of its employees is not negligence so as to 
 make it liable for an injury to a passenger 
 struck by a stone thrown from the street 
 into the car by a strike sympathizer in 
 no way under the control or direction of th n 
 company. Fewings v. Mendenhall, 88 Minn. 
 336, 93 N. W. 127, 60: 60]
 
 348 
 
 CARRIERS, II. a, 8. 
 
 158. Failure of a street railway company, 
 attempting to operate its cars during a 
 strike of its employees, to pull down the 
 blinds of a car or stretch a heavy canvas 
 over the window outside the car, is not such 
 negligence as will justify a recovery of 
 damages by a passenger injured by a stone 
 thrown into the car by a strike sympa- 
 thizer. Id. 
 By employees. 
 
 Measure of Damages for, see Damages, 72- 
 
 75, 212, 213. 
 
 Burden of Proof AS to, see Evidence, 472. 
 Question for Jury as to, see Trial, 194, 303. 
 For Editorial Notes, see infra, TV. 16. 
 
 159. A common carrier is liable for a 
 malicious assault made by its employee up- 
 on a passenger. Haver v. Central R. Co. (N. 
 J. Err. & App.) 62 N. J. L. 282, 41 Atl. 916, 
 
 43: 84 
 
 160. An unjustifiable assault upon a pas- 
 senger by a railroad employee who owes 
 him the duty of protection renders the car- 
 rier responsible for the injuries caused 
 thereby. Atchison, T. & S. F. R. Co. v. 
 Henry, 55 Kan. 715, 41 Pac. 952, 29: 465 
 
 161. A passenger on whom a drunken man 
 is thrown by being jostled while the con- 
 ductor is removing another drunken man 
 from the car, rightfully and without negli- 
 gence, has no right of action therefor 
 against the carrier. Spade v. Lynn & B. R. 
 Co. 172 Mass. 488, 52 N. E. 747, 43: 832 
 
 162. The porter of a sleeping or drawing- 
 room car which forms a part of the train of 
 a railroad company imder a contract with 
 its owner, who sells separate tickets for 
 privileges upon such cars, and who fur- 
 nishes his own servants to collect tickets 
 and assist passengers, is the servant of the 
 railroad company, for whose acts done in 
 the performance of a contract to carry a 
 passenger it is responsible, notwithstanding 
 an agreement which may be made upon the 
 subject between the company and the owner 
 of the car. Dwindle v. New York C. & H. 
 R. R. Co. 120 N. Y. 117, 24 N. E. 319, 8: 224 
 
 163. It is no defense to a suit against a 
 carrier to recover damages for an assault 
 committed by its servant upon a passenger, 
 that at the time the assault was committed 
 the servant had finished the temporary and 
 particular service which he had undertaken 
 to render to the passenger, if the contract 
 of carriage was not yet performed, and the 
 duty still rested on the carrier to protect 
 the passenger from the violence of its serv- 
 ants. Id. 
 
 104. Receivers of a railroad company are 
 liable for injuries to a passenger on a train, 
 resulting from the wilful or malicious acts 
 of the conductor. Dillingham v. Anthony, 
 73 Tex. 47, 11 S. W. 139, 3: 634 
 
 165. A carrier is liable for an unlawful 
 and improper act, and for the natural and 
 legitimate consequences thereof, which is 
 committed by its servant towards its pas- 
 songer while such servant is engaged in 
 performing a duty which the carrier owes 
 to the passenger, no matter what the mo- 
 tive is which incites the commission of the 
 
 act. Dwinelle v. New York C. & H. R. R. 
 Co. 120 N. Y. 117, 24 N. E. 319, 8: 224 
 
 166. The liability of a railroad company 
 for injury to a trespasser on a freight car by 
 a brakeman is not founded upon the duty 
 and obligation of a common carrier, but is 
 referable to the law of agency. Farber v. 
 Missouri P. R. Co. 116 Mo. 81, 22 S. W. 631, 
 
 20: 350 
 
 167. A boy upon whom a locomotive en- 
 gineer throws hot water and steam to drive 
 him off from the engine is entitled to re- 
 cover from the railroad company for the 
 assault, regardless of injuries which resulted 
 from his attempt to get off in consequence 
 of such act. Galveston, H. & S. A. R. Co. 
 v. Zantzinger, 92 Tex. 365, 48 S. W. 563, 
 
 44: 553 
 
 168. The wrongful act of a brakeman in 
 kicking a boy oft from a train in rapid mo- 
 tion for failure to pay his fare is within the 
 scope of his employment, so as to render the 
 railroad company liable for the act where 
 the brakeman's duties included the assist- 
 ance of the conductor in collecting fares 
 and ejecting persons who had no right to 
 ride; but if he kicked the boy merely for 
 the purpose of injuring him, and not with 
 the purpose of ejecting him from the train, 
 the employer is not liable. Smith v. Louis- 
 ville & N. R. Co. 95 Ky. 11/23 S. W. 652, 
 
 22: 72 
 
 169. A railroad company is not liable for 
 injuries received by a passenger from an ac- 
 cidental blow by one of its employees while 
 making a playful attempt to strike another 
 employee, as the act is not within the line 
 of his employment. Goodloe v. Memphis & 
 C. R. Co. 107 Ala. 233, 18 So. 166, 29: 729 
 
 170. A conductor beating a passenger who 
 slaps his face with his hand renders the car- 
 rier liable, if he uses force greatly exceeding 
 that which would appear to a reasonable 
 man necessary to repel the assault. St. 
 Louis S. W. R. Co. v. Jones, 64 Ark. 613, 44 
 S. W. 809, 39:784 
 
 171. An assault by a conductor upon a 
 passenger is not excused or the liability of 
 the carrier defeated by. the fact that the 
 passenger had used grossly profane and abu- 
 sive language to the conductor without 
 provocation. Baltimore & 0. R. Co. v. Bar- 
 ger, 80 Md. 23, 30 Atl. 560, 26: 220 
 
 172. A street car company is liable for an 
 assault by its conductor on a passenger be- 
 cause the latter, after being carried past his 
 station, in order to stop the car, pulled the 
 bell rope so hard that he broke it, and 
 jerked the conductor several feet along the 
 car floor, notwithstanding the passenger, 
 upon the conductor's following him to the 
 platform, attempted an assault on him. 
 Birmingham R. & E. Co. v. Baird, 130 Ala. 
 334, 30 So. 456, 54: 752 
 
 173. A railroad company is liable in dam- 
 ages to a female for an assault with intent 
 to commit rape upon her person by one em- 
 ployed as a baggage master upon a train on 
 which she is at the time being conveyed as 
 a passenger. Savannah, F. & W. R. Co. v. 
 Quo. 103 Ga. 125, 29 S. E. 607, 40: 483
 
 CARRIERS, II. a, 3. 
 
 349 
 
 174. The vaccination of a passenger by a 
 ship's surgeon will not constitute an assault 
 if the passenger's behavior indicates con- 
 sent, whatever may be his unexpressed feel- 
 ings on the stibject. O'Brien v. Cunard S. S. 
 Co. 154 Mass. 272, 28 N. E. 266, 13: 329 
 
 175. A railroad company is liable for an 
 injury to a person in one of its station 
 houses in a sparsely settled country, al- 
 though he was not an intending passenger, 
 caused without any provocation by one of 
 the employees of such company, aided by 
 strangers, in the presence of the ticket 
 agent, who represented the company, and 
 who made no effort to prevent the injury. 
 Krantz v. Rio Grande W. R. Co. 12 Utah, 
 104, 41 Pac. 717, 30:297 
 
 176. A passenger who displays a persist- 
 ent determination to disregard a regulation 
 of the carrier forbidding passengers from 
 going to sleep in its waiting rooms^or lying 
 down on the benches therein, and by his 
 wrongful conduct so exasperates a servant 
 of the company as to unfit him from prop- 
 erly performing the duty he owes his mas- 
 ter with respect to his treatment of its pat- 
 rons, cannot justly complain that the com- 
 pany's servant lost his temper and resorted 
 to unnecessary force in compelling an ob- 
 servance of the regulation on the part of 
 the passenger. Central of Georgia R. Co. v. 
 Motes, 117 Ga. 923, 43 S. E. 990, 62: 507 
 Duty toward licensee. 
 
 177. A railroad company is under no obli- 
 gation to protect persons who resort to its 
 stations to aid the departure of friends who 
 are to become passengers on its cars, from 
 assaults by persons lounging about the sta- 
 tions, although such duty may exist as to 
 the intending passengers. Houston & T. C. 
 R. Co. Phillio, 96 Tex. 18, 69 S. W. 994, 
 
 59: 392 
 
 d. Arrest; False Imprisonment. 
 
 Right to Stop Train to Arrest Engineer, see 
 
 Arrest, 3. 
 For Editor^ Notes, see infra, IV. 16. 
 
 By employees. 
 
 Measure of Damages for, see Damages, 214. 
 
 Waiver of Cause of Action for, see False 
 
 Imprisonment, 43. 
 Instruction as to, see Trial, 670. 
 See also infra, 196. 
 
 178. A street railroad company is not lia- 
 ble for the act of a driver without instruc- 
 tions in causing the arrest of a passenger 
 on a charge of passing counterfeit money. 
 Lafitte v. New Orleans City & L. R. Co. 43 
 La. Ann. 34, 8 So. 701,' 12: 337 
 
 179. The common carrier of passengers is 
 liable for the false imprisonment of a pas- 
 senger, made, or caused to be made, by its 
 conductor in charge of the train, during his 
 execution of the carrier's contract to treat 
 properly and convey safely. Gillingham v. 
 Ohio River R. Co. 35 W. Va. 588, 14 S. E. 
 243, 14: 798 
 
 180. A statute giving the conductor of a 
 railroad train >11 the powers of a conserv- 
 ator of the peace while in charge of the 
 train does not relieve the carrier from lia- 
 
 bility for false imprisonment of a passenger, 
 made, or caused to be made by him. Id. 
 
 181. An agent whose sole duty is to sell 
 tickets from the window of the ticket office 
 of a railway station is not charged with 
 the protection of passengers waiting for 
 trains, nor intrusted with the execution of 
 the transportation contract, within the rule 
 which renders the carrier liable for wilful 
 misconduct of its servants engaged in per- 
 forming a duty which the carrier owes the 
 passenger, so as to charge the carrier with 
 liability for the wrongful arrest of a wait- 
 ing passenger by direction of the agent. 
 Mulligan v. New York & R. B. R. Co. 129 
 N. Y. 506, 29 N. E. 952, 14: 791 
 
 182. A ticket agent who follows a woman 
 who has bought a ticket out upon the plat- 
 form, and charges her with having given 
 him counterfeit money, with a demand for 
 other money in its stead, and on her refusal 
 angrily insults her by slandering her char- 
 acter, and puts his hand upon her, telling 
 her not to stir until he gets a policeman 
 to arrest and search her, but lets her go 
 when he fails to get an officer, is acting 
 within the scope of his employment, and 
 renders the carrier liable for false imprison- 
 ment and slander, if the detention was un- 
 lawful and his charges false. Palmeri v. 
 Manhattan R. Co. 133 N. Y. 261, 30 N. E. 
 1001, 16: 136 
 
 183. A railroad ticket agent who takes a 
 bill believing it to be counterfeit, in pay- 
 ment for tickets, and immediately procures 
 the arrest of the person from whom he takes 
 it, is not acting within the scope of his busi- 
 ness so as to make the railroad company 
 liable for false imprisonment, although the 
 arrest is wrongful and the bill proves to 
 be a good one. Mulligan v. New York & 
 R. B. R. Co. 129 N. Y. 506, 29 N. E. 952, 
 
 14: 791 
 
 184. Illegal arrest without a warrant, and 
 false imprisonment of a passenger, caused 
 by a conductor in charge of the train on 
 which he was riding, while acting in the line 
 of his employment, renders the carrier lia- 
 ble. Atchison, T. & S. F. R. Co. v. Henry, 
 55 Kan. 715, 41 Pac. 952, 29: 465 
 
 185. The arrest of a street car passenger 
 by a policeman called by the conductor of 
 the car to arrest and take him off, on the 
 charge of riding without payment of fare, 
 does, not render the carrier liable for false 
 imprisonment, when the conductor had been 
 authorized only to put delinquent passen- ' 
 gers off the car. Little Rock Traction & E. 
 Co. v. Walker, 65 Ark. 144, 45 S. W. 57, 
 
 40: 473 
 
 186. The superintendent of a street rail- 
 way company has no implied authority to 
 cause the arrest of a passenger for placing 
 in the fare box a counterfeit coin in pay- 
 ment of fare, so as to make the company 
 liable for false imprisonment in case of such 
 arrest, without proof of precedent authority 
 or subsequent ratification of his act. Cen- 
 tral R. Co. v. Brewer, 78 Md. 394, 28 Atl. 
 615, 27: 63 
 
 187. A railroad company is liable for the
 
 850 
 
 CARRIERS, II. a, 4. 
 
 act of Us baggage master, who has been 
 placed in charge of its waiting room, in as- 
 sisting in the wrongful arrest of a passenger 
 waiting at the station for a train, although 
 the arrest was at the instance of the city 
 authorities, and not on behalf of the rail- 
 road company; since it was the duty of the 
 railroad company, and its servants to whom 
 the care of passengers was committed, to re- 
 frain from committing wrongful acts to- 
 ward them. Texas M. R. Co. v. Dean, 98 
 Tex. 517, 85 S. W. 1135, 70: 943 
 
 188. The removal of a disorderly passen- 
 ger from a passenger car, without arrest- 
 ing him, and placing him in the baggage car 
 to carry him to his destination, may be rea- 
 sonable and proper conduct on the part of a 
 railroad company, and not render it liable 
 for assault or imprisonment. Sullivan v. 
 Old Colony R. Co. 148 Mass. 119, 18 N. E. 
 678, 1:513 
 
 189. The right to remove a disorderly pas- 
 senger without arresting him, which 'rail- 
 road corpoi-ations possess at common law, 
 was not intended to be taken away by 
 Mass. Pub. Stat. chap. 103, 18, which pro- 
 vides that railroad police officers may ar- 
 rest and remove such passenger to the bag- 
 gage car or other suitable place of deten- 
 tion. Id. 
 
 190. Ratification of the act of a street- 
 railway superintendent in arresting a pas- 
 senger for putting counterfeit coin in the 
 box for his fare is not shown by the fact 
 that the president of the company, the su- 
 perintendent and the driver of the street 
 car, gave evidence against the person ar- 
 rested. Central R. Co. v. Brewer, 78 Md. 
 394, 28 Atl. 615, 27: 63 
 
 191. The unreasonable refusal of a pas- 
 senger to state his name when asked by a 
 conductor to whom he tenders a mileage 
 ticket if the name thereon is his own does 
 not justify the conductor in procuring his 
 arrest without a warrant, on the charge of 
 fraudulently evading payment of faro. Pal- 
 mer v. Maine C. R. Co. 92 Me. 399, 42 Atl. 
 800, 44: 673 
 By public officers. 
 
 192. A railroad company owes no duty 
 towards a passenger arrested by the officers 
 of the law acting under color of their of- 
 fice to inquire into the legality of the ar- 
 rest. Brunswick & \V. R. Co. v. Ponder, 
 117 Ga. 63, 43 S. E. 430, 60: 713 
 
 193. A railroad company owes no duty to- 
 wards a passenger arrested by officers un- 
 der color of their office to see that they use 
 only such force as is necessary to make the 
 arrest. Id. 
 
 194. A railroad company is not liable to 
 a passenger illegally arrested by officers 
 of the law under color of their office for 
 failure to interfere and prevent the arrest, 
 or for stopping the train to allow the of- 
 ficers to remove their prisoner therefrom. 
 
 Id. 
 
 195. A statement by a passenger on a 
 railroad train in the hearing of the con- 
 ductor to officers attempting to arrest him, 
 that he has paid them all he owes them, is 
 
 not of itself sufficient to put the conductoi 
 on notice that the arrest is for a debt in- 
 stead of for a crime. Id. 
 
 196. Arrest of a disorderly passenger 
 without a warrant by an officer who was 
 waiting at the depot for that purpose in re- 
 sponse to a telegram from the conductor, 
 who pointed out the passenger as the party 
 to be arrested, was not unlawful because 
 made without a warrant and for an offense 
 not committed within the view of the of- 
 ficer. Baltimore & O. R. Co. v. Cain, 81 Md. 
 87, 31 Atl. 801, 28: 688 
 
 4. Measure of Care Required; Negligence 
 Generally. 
 
 a. Of Carrier. 
 (1) In General. 
 
 Prejudicial Instruction as to, see Appeal and 
 
 Error, 1022. 
 Presumption and Burden of Proof as to 
 
 Negligence, see Evidence, II. h, 1, 6. 
 Evidence as to Having Coach in Front of 
 
 Engine, see Evidence, 1891. 
 Allegation as to Negligence, see Pleading, 
 
 329a-331, 335. 
 
 Instructions as to, see Trial, 668, 830-832. 
 Proximate Cause of Injury, see Proximate 
 
 Cause, 63, 138. 
 Question for Jury as to, see Trial, n. c, 8, 
 
 ft, (1). 
 See also supra, 61, 65, 72, 90, 93; infra, 476, 
 
 524. 
 
 197. The utmost care and diligence which 
 human foresight can use is the measure of 
 duty which a carrier owes to a passenger. 
 Baltimore City Pass. R. Co. v. Nugent, 86 
 Md. 349, 38 AtL 779, 39: 161 
 
 198. The omission of a carrier to exercise 
 the highest degree of practicable care con- 
 stitutes negligence; and its measure of duty 
 is not to be determined by what a reasona- 
 ble and prudent person would ordinarily do 
 under the circumstances. Louisville, N. A. 
 & C. R. Co. v. Snider, 117 Ind. 435, 20 N. E. 
 284, 3: 434 
 Dodge v. Boston & B. S. S. Co. 148 Mass. 
 207, 19 N. E. 373, 2: 83 
 Treadwell v. Whittier, 80 Cal. 574, 22 
 Pac. 266, 5: 498 
 Louisville, N. A, & C. R. Co. v. Lucas, 119 
 Ind. 583, 21 N. E. 968, 6: 193 
 
 199. A common carrier of passengers, al- 
 though not an insurer, must do all that 
 human care, vigilance, and foresight can, 
 under the circumstances, considering the 
 character and mode of conveyance, to pre- 
 vent accident to passengers. Libby v. 
 Maine C. R. Co. (Me.) 85 Me. 34, 26 Atl. 
 943, 20:812 
 Spellman v. Lincoln Rapid Transit Co. 36 
 Neb. 890, 55 N. W. 270, 20: 316 
 
 200. A carrier of passengers is charged 
 with the highest degree of care and fore- 
 sight consistent with the orderly conduct 
 of its business, in respect to the protection 
 of its passengers from injuries resulting 
 from its acts or omissions, from the acts
 
 CARRIERS, II. a, 4. 
 
 351 
 
 or omissions of its servants, and from the 
 acts of strangers, who are under its control 
 or direction; but it is charged with ordi- 
 nary care and prudence only to guard 
 against the lawless acts of third persons 
 not under its direction or control. Fewings 
 v. Mendenhall, 88 Minn. 336, 93 N. W. 127, 
 
 60: 601 
 
 201. Railroad corporations are not the in- 
 surers of the lives or safety of passengers 
 upon their cars, and, in order to render them 
 so, it is essential to show that they have neg- 
 lected the performance of some duty which, 
 in the exercise of reasonable care, prudence, 
 and diligence, they owe to such passengers. 
 Palmer v. Pennsylvania Co. Ill N. Y. 488, 
 18 N. E. 859, 2: 252 
 
 202. The words "utmost care and dili- 
 gence," which carriers of passengers must 
 exercise, do not mean the utmost care and 
 diligence which men are capable of exercis- 
 ing; but they mean the utmost care con- 
 sistent with the carrier's undertaking and 
 with a due regard for all the other matters 
 which ought to be considered in conducting 
 the business. Dodge v. Boston & B. S. S. 
 Co. 148 Mass. 207, 19 N. E. 373.. 2: 83 
 
 203. A railroad company owes to a pas- 
 senger the highest degree of care consistent 
 with the proper management of the busi- 
 ness. Jordan v. New York, N. H. & H. R. 
 Co. 165 Mass. 346, 43 N. E. Ill, 32: 101 
 
 203a. A passenger carrier is bound to ex- 
 ercise the highest degree of 'practical care 
 and diligence that is consistent with the 
 mode of transportation adopted. Palmer v. 
 Warren Street R. Co. 206 Pa. 574, 56 Atl. 
 49, 63 : 507 
 
 204. Trainmen are not guilty of wilful 
 or wanton neglect of duty in failing to stop 
 a freight train running on a sharp up-grade 
 at a speed of 8 miles an hour, to remove 
 a boy eight years and five months old, who, 
 in violation of the statutes as well as of 
 the orders of the engineer, caught hold of 
 and hung to one of the cars in the moving 
 train, especially where it does not appear 
 that the train could safely be stopped at 
 that place. Pittsburgh, Q. C. & St. L. R. 
 Co. v. Redding, 140 Ind. 101, 39 N. E. 921, 
 
 34: 767 
 
 205. A railroad company is liable for in- 
 juries to a passenger by the overturning of 
 the car where it leaves her in the car with- 
 out warning because she cannot understand 
 the language in which other passengers are 
 warned, after the engine has been over- 
 turned by a washout, and the water is run- 
 ning along the track on which the car 
 stands, in such a way as to undermine one 
 side of it and render an overturning of the 
 car probable. Southern Pac. Co. v. Tarin, 
 47 C. C. A. 648, 108 Fed. 734, 54: 240 
 
 206. When a car containing a sleeping 
 passenger becomes detached from a train, 
 and is left standing at the foot of a long 
 down grade, and the trainmen know that 
 another train will soon come down that 
 grade on the same track, and that it is lia- 
 ble to be broken in two and thus not under 
 complete control, and there is frost on the 
 
 track, the failure on tne part of the train- 
 men either to warn the passenger, or to 
 signal the coming train at a greater dis- 
 tance than a quarter of a mile from the 
 standing car, there being ample time to do 
 so, will furnish evidence of gross negligence. 
 Whitehead v. St. Louis, I. M. & S. R. Co. 
 99 Mo. 263, 11 S. W. 751, 6: 409 
 
 207. A passenger who aids in carrying 
 another who has become sick on the train, 
 into another car on the conductor's request 
 in order that he may be treated by a physi- 
 cian, can recover against the carrier for in- 
 juries sustained by falling between the car 
 platforms, which was caused by the negli- 
 gence of the carrier's servants. Lake Shore 
 & M. S. R. Co. v. Salzman, 52 Ohio St. 558, 
 40 N. E. 891, 31: 261 
 
 208. A steamship company is not answer- 
 able for the negligence, in vaccinating pas- 
 sengers, of a surgeon carried by it in obe- 
 dience to law, if it has used due care in his 
 selection and in procuring pure virus. 
 O'Brien v. Cunard S. S. Co. 154 Mass. 272, 
 28 N. E. 266, 13: 329 
 Livery-stable keepers. 
 
 See also Hacks, 3. 
 
 209. Livery-stable keepers are not within 
 the rule that common carriers of passengers 
 are bound to exercise extraordinary care 
 for the safety of their passengers. Stanley 
 v. Steele, 77 Conn. 688, 00 Atl. 640, 69: 561 
 
 210. Whether or not a livery-stable keep- 
 er is liable to a patron for an injury due 
 to a defect in the neck yoke of the carriage 
 furnished by him depends upon whether it 
 was discoverable by the exercise of such 
 care as is usually exercised by persons of 
 ordinary prudence in the conduct of such 
 business. Id. 
 Negligence of sleeping car conductor. 
 
 211. A railroad company is responsible to 
 a passenger for negligence of the sleeping- 
 car conductor. Norfolk & W. R. Co. v. 
 Lipscomb, 90 Va. 137, 17 S. E. 809, 20: 817 
 Speed; sudden jolt. 
 
 As Proximate Cause of Injury, see Proxi- 
 mate Cause, 67. 
 For Editorial Notes, see infra, IV. 26. 
 
 212. A railroad company is liable for in- 
 jury to a passenger thrown from the plat- 
 form of a car on which he is lawfully rid- 
 ing, when the accident is due to the exces- 
 sive speed of the train, considering the 
 curves and condition of the track, which 
 occasion a severe jar or jolt. Lynn v. 
 Southern P. Co. 103 Cal. 7, 36 Pac. 1018, 
 
 24: 710 
 
 213. A passenger lawfully on a freight 
 train, who, in the exercise of due care, 
 arises when the train comes to a standstill, 
 either to leave the train or to feed stock, 
 which his contract requires him to do, may 
 recover from the carrier for injuries caused 
 by a sudden start or unusual jerking of the 
 train. Illinois C. R. Co. v. Beebe, 174 HI. 
 13, 50 N. E. 1019, 43: 210 
 On approach of street car to railroad cross- 
 ing. 
 
 Negligence in Running Street Car Across, 
 see Street Railways, 44, 45.
 
 352 
 
 CARRIERS. II. a, 4. 
 
 213a. Running a street car across a rail- 
 road track at grade without first stopping 
 it, and without some employee going ahead 
 to see if the way is clear and free from danger 
 and giving a signal to that effect as required 
 by Ohio act May 4, 1891 (88 Ohio Laws, 582), 
 -~ i: ~ence at least in the absence 'of 
 
 extraordinary circumstances for which the 
 street railroad company will be liable for 
 any damages directly caused by such neg- 
 ligence. Cincinnati Street R. Co. v. Murray, 
 53 Ohio St. 570, 42 N. E. 596, 30: 508 
 
 213b. The existence of gates and a watch- 
 man at a railroad crossing does not relieve 
 a street railroad company from the neces- 
 sity of complying with the provisions of 
 Ohio act May 4, 1891 (88 Ohio Laws, 582), 
 requiring a street car to be stopped and an 
 employee to go ahead to ascertain if the 
 way is clear and safe and give a signal to 
 that effect before crossing a, railroad track 
 at grade. Cincinnati Street R. Co. v. Mur- 
 ray, 53 Ohio St. 570, 42 N. E. 596, 30: 508 
 Street cars approaching on same track. 
 
 214. Negligence on the part of a street 
 railway company is not shown by the fact 
 that cars are allowed to approach each oth- 
 er from opposite directions on the same 
 track. Palmer v. Warren Street R. Co. 206 
 Pa. 574, 56 Atl. 49. 63: 507 
 Operating during strike. 
 
 215. The attempt of a street railway 
 company to operate' its cars during a strike 
 of its employees does not constitute negli- 
 gence toward its passengers, iinless the con- 
 ditions are such that it ought to know, or 
 ought reasonably to anticipate, that it can- 
 not do so and at the same time guard from 
 violence, by the exercise of the utmost care 
 on its part, those who accept its implied 
 invitation to uecome passengers. Fewings 
 v. Mendenhall, 83 Minn. 237, 86 N. W. 96, 
 
 55: 713 
 
 Failure to. heat car. 
 For Editorial Notes, see infra, IV. 9. 
 
 216. A railroad company is not, as mat- 
 ter of law, free from liability to a passen- 
 ger for a severe illness resulting from its 
 failure to heat the car on which he was 
 riding during a cold night, where there were 
 stoves therein and ample opportunity to 
 supply the needed heat, and the employees 
 in charge of the train were requested to 
 supply the needed heat. Taylor v. Wabasli 
 R. Co". (Mo.) 38 S. W. 304, 42: 110 
 Failure to provide for wreck. 
 
 217. The failure to equip a train with the 
 tools usually carried by trains for emer- 
 gency use in case of a wreck is negligence; 
 and where, for want of such tool, a pas- 
 senger is not rescued as promptly as would 
 otherwise have been practicable from his 
 position in the debris of a wreck, the rail- 
 road company will be held responsible in 
 damages for such additional sufferings, re- 
 gardless of whether the wreck itself is or is 
 not caused by its negligence. Jackson v. 
 Natchex & W. R. Co. 114 La. 981, 38 So. 
 701, 70:294 
 Toward person riding without contract. 
 See also supra. 42. 
 
 218. A trespasser stealing a ride on a 
 freight car is not entitled to any care on 
 the part of the railroad company, except 
 that it must not wilfully or recklessly in- 
 jure him after discovering his presence on 
 the train. Farber v. Missouri P. R. Co. 116 
 Mo. 81, 22 S. W. 631, 20: 350 
 
 219. A person riding on the cars of a rail- 
 Toad company with its consent without any 
 
 contract between him and the company may 
 hold it liable for injuries inflicted upon him 
 by the negligence of the company or its 
 servants. McNeill v. Durham & C. R. Co. 
 135 N. C. 682, 47 S. E. 765, 67: 227 
 
 Duty to stop for passenger thrown from 
 
 train. 
 Allegations as to Negligence, see Pleading, 
 
 336. 
 
 220. A railroad company is under obliga- 
 tion to stop a train, and rescue a passenger 
 who has been thrown or pushed therefrom 
 without any fault on its part, where he is 
 liable to perish or suffer great injury un- 
 less rescued, only when it can stop the train 
 long enough to rescue him without endan- 
 gering the safety of other passengers by 
 collisions. Reed v. Louisville & N. R. Co. 
 104 Ky. 603, 47 S. W. 591, 48 S. W. 416. 
 
 44: 823 
 
 After passenger leaves car. 
 Allegation as to Carrier's Negligence, see 
 
 Pleading, 331. 
 For Editorial Notes, see infra, IV. 27. 
 
 221. A street railway comnany operating 
 a double -track road, on discharging a pas- 
 senger at a street crossing, with reason to 
 know that he must cross its tracks, must 
 so control the speed of cars and give such 
 warning of their approach as will reason- 
 ably protect him from injury. Cincinnati 
 Street R. Co. v. Snell, 54 Ohio St. 197, 43 
 N. E. 207, 32: 276 
 
 222. A railway company is required to 
 exercise only ordinary .care and prudence to- 
 wards a passenger who is temporarily pre- 
 vented from continuing his journey by a 
 burning tank of oil on the track, while he 
 is waiting for a train to come from the 
 other side of the tank to receive him. Con- 
 roy v. Chicago, St. P. M. & O. R. Co. 96 
 Wis. 243, 70 N. W. 486, 38: 419 
 
 223. A railroad company is not required 
 to restrain by physical force a passenger on 
 a railway train which is temporarily 
 stopped by a burning tank of -oil on the 
 track, from unnecessarily exposing himself 
 to danger from an explosion of the tank by 
 approaching too close to it. Id. 
 
 224. A burning tank of oil on a railroad 
 track, the flames from which ascend several 
 feet into the air, is sufficient notice of the 
 danger of an explosion to a passenger on a 
 train temporarily stopped by the fire, to 
 render unnecessary any caution to him from 
 the company not to approach too near the 
 tank. Id. 
 
 225. Where a passenger is injured while 
 attempting to alight from a train at a reg- 
 ular station, by another train belonging to 
 the same carrier and in charge of its serv- 
 ants, which runs past the station platform
 
 CARRIERS, II. a, 4. 
 
 853 
 
 while the passengers of the former train 
 are being received and discharged, the car- 
 rier, to relieve itself from liability for dam- 
 ages, must show that it uses the degree of 
 care which the law imposes upon it. Phil- 
 adelphia, W. & B. R. Co. v. Anderson, 72 
 Md. 519, 20 Atl. 2, 8: 673 
 
 226. If a passenger alights by direction 
 or implied invitation of the carrier at a 
 place where, in order to leave the carrier's 
 premises, it is necessary to cross the car- 
 rier's track, there is an implied agreement 
 that in using that mode of egress trains 
 will not bs so operated as to make the exit 
 unnecessarily dangerous. Chesapeake in O. 
 R. Co. v. King, 40 C. C. A. 432, 99 Fed. 251. 
 
 49: 102 
 (2) As to Tracks, Roadbed, etc. 
 
 Punitive Damages for Injury by Derail- 
 ment, see Damages, 67. \ 
 
 Presumption and Burden of Proof in Case 
 of Derailment, see Evidence, 466, 467. 
 
 Evidence as to Condition of Track at Other 
 Place or Time, see Evidence, 1986, 1993. 
 
 See also supra, 82. 
 
 227. Failure of a railroad company to 
 have a good, substantial, and safe track for 
 its trains, or to see that its trains are 
 properly managed, will render it liable for 
 an injury to a passenger therefrom. Illi- 
 nois C. R. Co. v. Beebe, 174 111. 13, 50 N. E. 
 1019, 43:210 
 
 228. A railroad company should inspect 
 its lines with more than ordinary prompti- 
 tude under circumstances of more than or- 
 dinary peril, as in case of violent storms, 
 particularly those portions which are most 
 liable to injury by storm or flood. The 
 greater the peril the greater the vigilance 
 demanded. Libby v. Maine C. R. Co. 85 Me. 
 34, 26 Atl. 943, ' 20: 812 
 
 229. That an obstruction causing an ac- 
 cident on a railroad was the result of work 
 done on the road by an independent con- 
 tractor is no defense to the carrier. Car- 
 rico v. West Virginia, C. & P. R. Co. 39 
 W. Va. 86, 19 S. E. 571, 24: 50 
 
 230. The assumption by a passenger of 
 the extra risks of riding on a freight train 
 does not include any greater risk as to the 
 condition of the track than passengers on 
 other trains assume. Ohio Valley R. Co. v. 
 Watson, 93 Ky. 654, 21 S. W. 2^4, 19: 310 
 
 231. If a railroad company is using tracks 
 belonging to a third party, and the danger- 
 ous character of such tracks might have 
 been discovered by the exercise of due care, 
 it will be liable for an accident occasioned 
 thereby and resulting in the death of a 
 passenger, whether the defect was in the 
 original construction of the road, or was 
 due to the failure of the owner to make 
 repairs, or however otherwise it may have 
 been caused. Littlejohn v. Fitchburg R. Co. 
 148 Mass. 478, 20 N. E. 103, 2: 502 
 
 232. For a railroad company to have its 
 freight platform so near the track that the 
 elbow of a passenger projecting only 3 or 4 
 inches through an open window is broken 
 by coming in contact with a bale of cotton 
 
 L.R.A. Dig 23. 
 
 on such platform is gross negligence, ren- 
 dering the company liable for the injury 
 sustained. Kird v. New Orleans & N. W. 
 R. Co. 109 La. 525, 33 So. 587, 60: 727 
 
 233. A trolley-railway company should 
 foresee the possible danger to which pas- 
 sengers on the footboards of its cars may 
 be exposed by a slight movement of the 
 body, when trolley poles are placed from 
 10 to 12 inches from the edge of the foot- 
 board. Eiliott v. Newport Street R. Co. 
 18 R. I. 707, 28 Atl. 338, 23: 208 
 
 234. A railroad company is not liable for 
 the insufficiency of its culvert in an un- 
 precedented storm, because the danger 
 might have been averted if known, where 
 the degree of care and prudence used was 
 that which cautious and prudent persons 
 would use under such circumstances, with- 
 out reasonable knowledge that such a storm 
 was likely to occur. Libby v. Maine C. R. 
 Co. 85 Me. 34, 26 Atl. 943, 20: 812 
 
 235. For injxiries to a passenger on a 
 train by the negligent handling of a der- 
 rick near the track, which was operated 
 by employees of a state board engaged in 
 raising the grade of a railroad bridge and 
 the approaches thereto, the railroad com- 
 pany is not liable, in the absence of any 
 negligence on its own part, when it had no 
 voice in the selection of the board or its 
 employees, and no power to interfere with 
 or prevent their operations. New york, N. 
 H. & H. R. Co. v. Baker. 39 C. C. A. 237, 98 
 Fed. 694, 50: 201 
 Bridges. 
 
 Sufficiency of Proof of Negligence, see Evi- 
 dence, 2250. 
 Question for Jury as to, see Trial, 289. 
 
 236. A railroad company will be held re- 
 sponsible for injury to a passenger resulting 
 from the collapse of one of its bridges, un- 
 less it can show that the bridge was as safe 
 as the highest degree of practical care and 
 skill could make a bridge of that class, and 
 that, to the fullest extent that the high- 
 est degree of care and foresight could sug- 
 gest, such bridge was inspected for discov- 
 ering and remedying any defects that might 
 have developed in it from the operation of 
 the road or other causes; and, in case the 
 defect was latent in the materials, then 
 that the materials were thoroughly tested 
 before being put in position. Jackson v. 
 Natchez & W. R. Co. 114 La. 981, 38 So. 
 701, 70: 294 
 
 237. "A* railroad company, before trusting 
 the lives of passengers upon its bridges, 
 must carefully and skilfully test and in- 
 spect the materials used therein; and the 
 duty of inspection continues thereafter dur- 
 ing their use, requiring a test from time to 
 time to ascertain whether they are being 
 impaired by use or exposure to the ele- 
 ments. Louisville, N. A. & C. R. Co. v. 
 Snider, 117 Ind. 435, 20 N. E. 284. * 3: 434 
 Animal on track. 
 
 238. Derailment of a train by contact 
 with an animal is a fact which may be 
 looked to in ascertaining whether the car- 
 rier exercised due care, in view of the fact
 
 354 
 
 CARRIERS, II. a, 4. 
 
 that the carrier has a right to fence its 
 track to keep animals off from it. Gulf, 
 C. & S. F. R. Co. v. Wilson, 79 Tex. 371, 15 
 S. W. 280, 11: 486 
 
 (3) As to Vehicle, or Place of Riding Gen- 
 erally. 
 
 Contributory Negligence as to, see infra, II. 
 
 a, 4, b, (2). 
 Fall of Ventilating Window, Burden of 
 
 Proof as to, see Evidence, 460. 
 Question for Jury 'as to, see Trial, 288a. 
 See also supra, 94; infra, 271, 275. 
 For Editorial Notes, see infra, IV. 
 
 9, 10. 
 
 239. Carriers of passengers are bound for 
 defects in the vehicles furnished by them, 
 which might have been discovered by the 
 most careful examination. Treadwell v. 
 Whittier, 80 Cal. 574, 22 Pac. 266, 5: 498 
 
 240. A railroad company which under- 
 takes to transport all the passengers oh 
 board a train, although some are upon plat- 
 forms, must exercise all additional care 
 commensurate with the perils and dangers 
 surrounding the passengers in such situa- 
 tion. Lynn v. Southern P. Co. 103 Cal. 7, 
 36 Pac. 1018, 24: 710 
 
 241. The failure of a railroad company 
 to furnish accommodations for its passen- 
 gers on a train, so that a large number of 
 them are compelled to stand in the aisles 
 and upon the platforms of the cars, consti- 
 tutes negligence. Graham v. McNeill, 20 
 Wash. 466, 55 Pac. 631, 43: 300 
 
 242. A door, such as is in common use, 
 does not show negligence of a railroad com- 
 pany because it is not all made of glass 
 above the middle, so persons on opposite 
 sides can see each other, nor because a 
 screw-eye 4 feet 10 inches from the bottom 
 projects 9-16 of an inch beyond the surface 
 and causes injury to a person against whom 
 it is violently pushed by another hurrying 
 to a train. Graeff v. Philadelphia & R. R. 
 Co. 161 Pa. 230, 28 Atl. 1107, 23: 606 
 Electric cars. 
 
 Sufficiency of Proof of Negligence, see Evi- 
 dence, 2249. 
 
 243. One operating an electric car may 
 be guilty of negligence in placing a fuse 
 box under the seat of an open car in such 
 a position that its burning out will be lika- 
 ly to injure a person occupying the seat. 
 Oassady v. Old Colony Street R. Co. 184 
 Mass. 156, 68 N. E. 10, 03: 285 
 
 244. An electric street railway company 
 is liable for injuries to a passenger from an 
 electric shock received while passing from 
 one car to another by grasping a hand rail 
 charged with electricity because of imper- 
 fect insulation, where it has ready means 
 of ascertaining the escape of electricity 
 from the works of the car, and the passen- 
 ger is free from contributory negligence. 
 Burt v. Douglas County Street R. Co. 83 
 Wis. 229, 53 N. W. 447, 18: 47!) 
 
 245. An injury to a passenger on a trol- 
 ley car by contact with a trolley wire 
 charged with electricity, which breaks and 
 
 falls over the rear end' of the car, does not 
 render the carrier liable if the accident was 
 caused solely by a hidden or latent defect 
 in the wire, which could not have been dis- 
 covered or detected by any reasonable ex- 
 amination, unless the carrier has been in 
 some way negligent in respect to the danger 
 of such an accident. Baltimore. City Pass. 
 R. Co. v. Nugent, 86 Md. 349, 38 Atl. 779, 
 
 39: 161 
 Baggage cars. 
 
 246. One who purchases a ticket for a 
 regular passenger train has a n'ght to be 
 conveyed in a passenger coach instead of a 
 baggage car, unless the latter is as safe a 
 vehicle as can be procured by the utmost 
 care and diligence. Baltimore & P. R. Co. 
 v. Swann, 81 Md. 400, 32 Atl. 175, 31 : 313 
 
 247. Reasonable effort at least to make a 
 baggage car safe and convenient for a pas- 
 senger is necessary when this is the only 
 vehicle that can be furnished for passengers 
 in a regular passenger train. Id. 
 Freight trains. 
 
 See also supra, 213, 218, 230. 
 
 248. A railroad company admitting pas- 
 sengers to a freight train incurs the same 
 liability to transport them safely as if on 
 a passenger train. New York, C. & St. L. 
 R. Co. v. Doane, 115 Ind. 435, 17 N. E. 913, 
 
 1: 15,7 
 
 249. If one is riding on a freight train 
 with the consent of the agents in charge 
 thereof, the company owes him a duty al- 
 though he is there against the rules of the 
 company. Whitehead v. St. Louis, I. M. & 
 S. R. Co. 99 Mo. 263, 11 S. W. 751, 6: 409 
 
 250. The consent of the conductor of a 
 freight train having entire charge thereof, 
 to permit one to ride on such train, al- 
 though he was forbidden to carry passen- 
 gers on that train, and although the person 
 permitted to ride was not required to pay 
 fare, is within the scope of the conductor's 
 authority so as to render the company lia- 
 ble for an injury resulting from lack of or- 
 dinary care on the part of the employees of 
 the company. Id. 
 Ice, snow, or filth, on floors or car plat- 
 forms. 
 
 251. A passenger who is injured by fall- 
 ing on a small, smooth patch of ice, frozen 
 to the deck in the passageway of a ferry- 
 boat, in ordinary winter weather, has a 
 prima facie right to hold the ferry company 
 liable therefor. Rosen v. Boston, 187 Mass. 
 245, 72 N. E. 992, 68: 153 
 
 252. The mere existence, during the storm 
 which caused it, of snow on the deck of a 
 ferryboat, raises no presumption of negli- 
 gence on the part of the ferry company 
 which will establish its liability to respond 
 in damages to a passenger who receives in- 
 juries by falling on the slippery deck. 
 Fearn v. West Jersey Ferry Co. 143 Pa. 122, 
 22 Atl. 708, 13: 366 
 
 253. Railroad corporations are not obliged, 
 immediately and effectually, to remove 
 from the exposed platform of a car while 
 
 n route the effects of a continuous storm 
 of snow, sleet, rain, or hail; their obliga- 
 tion in this respect is analogous to that im-
 
 CARRIERS. II. a, 4. 
 
 posed upon municipal corporations in re- 
 spect to the removal of snow and ice from 
 streets. Palmer v. Pennsylvania Co. Ill N. 
 Y. 488, 18 N. E. 859, 2: 252 
 
 254. The degree of care required of rail- 
 road corporations in the removal of ice or 
 snow from car platforms must generally be 
 determined by the circumstances of each 
 case; but they should not be held responsi- 
 ble for dangers produced by the elements, 
 until they have assumed a dangerous form 
 and there has been a reasonable opportunity 
 to remove their effects. Id. 
 
 255. The failure of a railroad company to 
 remove from the platform of a passenger 
 car on a through train, before 5 o'clock 
 A. M., while yet on the route, a thin cover- 
 ing of ice and snow which had accumulated 
 during the night, will not constitute negli- 
 gence such as will make it liable for an in- 
 jury which a passenger sustained *by slip- 
 ping thereon, especially when he had sev- 
 eral times crossed over the platform during 
 the night and knew of its slippery condi- 
 tion. Id. 
 
 256. Failure of a railroad company to 
 discover filth on the steps of a passenger 
 car in the nighttime, within half an hour 
 after the car had been inspected and found 
 to be in good condition, will not render the 
 company liable to a passenger who is injured 
 by slipping on the step, where the proof 
 does not show that due care would have 
 prevented the accident. Proud v. Philadel- 
 phia & R. Ry. (N. J. Err. & App.) 64 N. J. 
 L. 702, 46 Atl. 710, 50:468 
 
 6. Contributory Negligence of Passenger. 
 (1) In General. 
 
 On Approaches and Platforms, see infra, II. 
 
 a, 9, a, (2). 
 
 In Getting on or off Train, see infra, II. a, 
 
 8, 6. 
 Of Intoxicated Passenger, see infra, 452, 
 
 453. 
 
 As to Baggage, see infra, 732, 733. 
 First Raising Question as to, on Appeal, see 
 
 Appeal and Error, 611. 
 Passenger on Boat Injured by Blasting 
 
 Nearby, see Blasting, 19. 
 Custom as to Riding on Pilot of Engine, 
 
 see Custom, 11. 
 
 Contributory Negligence of Infant, see Neg- 
 ligence, 210. 
 Imputing Mother's Negligence to Infant 
 
 Passenger, see Negligence, 280. 
 Proximate Cause of Injury to Mail Clerk, 
 
 see Proximate Cause, 120. 
 Violation of Sunday Law, see Sunday, 
 
 33, 34. 
 Question for Jury as to, see Trial, II. c, 8, 
 
 b, (2). 
 
 Instructions as to, see Trial, 833. 
 See also supra, 107, 224; infra, 381. 
 For Editorial Notes, see infra, IV. 29. 
 
 257. Contributory negligence of the pas- 
 senger is no defense to an action under 
 Mass. Pub. Stat. chap. 112, 212, imposing 
 a penalty on railroad companies for neg- 
 
 ligently killing passengers, unless his neg- 
 ligence was the true cause of the accident. 
 Boston & M. R. v. Kurd, 47 C. C. A. 615, 
 108 Fed. 116, 56: 193 
 
 258. In a contract for safe carriage, there 
 is an implied agreement that the passenger 
 will obey the reasonable rules of the car- 
 rier; and where the passenger purposely 
 violates such rule, and is thereby injured, 
 he cannot recover damages from the carrier 
 in an action on the contract. Cincinnati, 
 L. & A. Electric Street R. Co. v. Lohe, 68 
 Ohio St. 101, 67 N. E. 161, 67: 637 
 
 259. One about to board a train, who has 
 knowledge of facts which would put a per- 
 son of ordinary prudence and diligence upon 
 inquiry to ascertain whether or not the 
 train is permitted to carry passengers, is 
 charged with knowledge of all the facts 
 which a reasonably diligent inquiry would 
 discover. Purple v. Union P. R. Co. 51 C. 
 C. A. 564, 114 Fed. 123, 57: 700 
 
 260. Where a passenger is in his proper 
 place in the car, and makes no exposure of 
 his person to danger, there can be no ques- 
 tion of contributory negligence in the case 
 of an injury by the fall of a railroad bridge. 
 Louisville, N. A. & C. R. Co. v. Snider, 117 
 Ind. 435, 20 N. E. 284, 3: 434 
 
 261. An experienced traveler who opens 
 a vestibule door of a sleeping car by mis- 
 take, about 6 o'clock in the morning, while 
 the train is passing through a tunnel and 
 the car is dark, and steps off upon the 
 track, when he supposes he is entering the 
 car closet, is guilty of such negligence as 
 will preclude his recovery even if the car- 
 rier is deemed negligent. Piper v. New 
 York C. & H. R. R. Co. 156 N. Y. 224, 50 N. 
 E. 851, 41: 724 
 
 262. A passenger escaped from a wrecked 
 and burning car is not guilty of contribu- 
 tory negligence in failing to close her ears 
 and shut her eyes as to everything that 
 transpires resulting from the collision, 
 while remaining for about thirty minutes 
 upon an embankment to which she has 
 climbed out of a deep trench, although the 
 horrors incident to the collision may thus 
 increase the fright or nervous shock which 
 she sustains. Denver & R. G. R. Co. v. 
 Roller, 41 C. C. A. 22, 100 Fed. 738, 49: 77 
 
 263. It is not negligence for a passenger 
 on a cable railway to take a seat on the 
 outside of the grip car, in a place provided 
 for passengers, although there is room in 
 the trailer. Hawkins v. Front Street Cable 
 R. Co. 3 Wash. 592, 28 Pac. 1021, 16: 808 
 
 264. A street railway company which per- 
 mits cars of another company to be run 
 over its tracks under a mere traffic arrange- 
 ment is not liable for the death of a pas- 
 senger of the latter company caused by col- 
 lision with a tree beside the track, although 
 it laid its tracks so close to a line of stand- 
 ing trees that faulty construction of a car 
 or negligent management might bring a pas- 
 senger into collision with them, if, by the 
 exercise of care, they could be passed in 
 safety. Sias v. Rochester Railway Co. 169 
 N. Y. 118, 62 N. E. 132, 56: 850
 
 CARRIERS, 11. a, 4. 
 
 26o. A passenger who leaves his train be- 
 fore the completion of his trip must assume 
 all the ordinary risks incident to his ac- 
 tion, where the train is run upon a switch 
 to allow the passage of another train, or is 
 stopped at a place other than that \ised by 
 (lie carrier for receiving and discharging 
 passengers, and the stoppage is not for the 
 purpose of allowing passengers to board 
 the train or alight therefrom. Chicago, R. 
 1. & P. R. Co. v. Sattler, 64 Neb. 636, 90 
 N. W. 649, 57 : 890 
 
 266. The standard of care for a person 
 wrongfully ejected from a railroad train is 
 to get off the track at the earliest practi- 
 cable opportunity that a reasonably prudent 
 man would discover and seize. Ham v. 
 Delaware & H. Canal Co. 155 Pa. 548, 26 
 Atl. 757, 20: 682 
 Entering car before time for starting. 
 
 267. A woman who enters a car left 
 standing, with brakes set, on the ground of 
 a sanitarium, a few minutes before the time 
 for it to start and when no one is in charge 
 of it. but when other women and children 
 are already in it, is not guilty of negli- 
 gence, as matter of law, which will prevent 
 her recovery for injuries occasioned by the 
 starting of the car when a small boy let off 
 the brakes. especially where rules against 
 entering the car before notice had never 
 been published or posted, and she had no ac- 
 tual knowledge of them. Western Mary- 
 land R. Co. v. Herold, 74 Md. 510. 22 Atl. 
 323, 14:75 
 Projection from window. 
 
 Question for Jury as to, see Trial, 311, 312. 
 
 See also infra, 310. 
 
 For Editorial Notes, see infra, IV. 29. 
 
 268. A passenger is not, as a matter of 
 law, guilty of such contributory negligence 
 in permitting his elbow to project 3 or 4 
 inches through an open window as to re- 
 lieve the company from liability for its 
 gross negligence in constructing a freight 
 platform so near the track that the pas- 
 senger's arm is broken by contact with a 
 bale of cotton thereon. Kird v. New Or- 
 leans & N. W. R. Co. 109 La. 525. 33 So. 
 587, 60: 727 
 
 269. A passenger riding with his elbow 
 slightly projecting out of a car window is 
 not thereby precluded from recovering for 
 an injury to his hand and wrist, which were 
 inside the car, from a stick of wood com- 
 ing in through the open window, unless the 
 fact that his elbow was out of the window 
 contributed to the injury. Moakler v. Port- 
 land & W. V. R. Co. '18 Or. 181). 22 Pac. 948. 
 
 6: 656 
 
 270. A youth sixteen years of age, trav- 
 eling alone, cannot be held, merely on ac- 
 count of liis immature years, to have been 
 incapable in law of exercising sufficient disv 
 cretion and judgment to avoid incurring the 
 risk of a voluntary exposure of his person 
 beyond the sides of a moving train. Rene- 
 diet v. Minneapolis & St. L. R. Co. 86 Minn. 
 224. 90 N. W. 360, 57 : 639 
 
 271. While it is the absolute duty of a 
 railway carrier of passengers to provide a 
 
 safe and secure place for its patrons to 
 ride within its cars, when such duty is per- 
 formed the passenger has no right to vol- 
 untarily extend his person beyond the line 
 of a moving car. or ride upon its platform ; 
 and if he does so, and injury follows, no 
 recovery can be had therefor. Id. 
 
 272. A carrier is not liable for injury to 
 a passenger's hand from striking against a 
 bridge, where he put it out of the car win- 
 dow, although it projected but 3 inches. 
 Richmond & D. R. Co. v. Scott, 88 Va. 958, 
 14 S. E. 763, 16: 91 
 
 273. A passenger who protrudes his el- 
 bow through a window in a railway coach 
 as it is passing through a tunnel, so that 
 it strikes against timbers so near that the 
 sides of the cars often touch them in the 
 natural and usual oscillation of the cars, 
 is guilty of negligence, as matter of law. 
 although it was protruded inadvertently 
 and did not extend more than 1% inches 
 beyond the outer surface of the side of the 
 car. Clark v. Louisville & N. R. Co. 101 
 Ky. 34, 39 S. W. 840, 36: 123 
 Remaining in unheated car. 
 
 274. A passenger on a railway train is 
 not, as matter of law, guilty of such con- 
 tributory negligence as will prevent a re- 
 covery for a severe illness resulting from 
 the failure to properly heat the car, by re- 
 maining on the train after he had an op- 
 portunity to get off, by failing to attempt 
 to get any wraps from his trunk in the 
 baggage car, by taking off his overcoat to 
 give his wife the benefit of the same, or 
 by wearing inadequate clothing to meet the 
 demands of the season. Taylor v. Wabash 
 R. Co. (Mo.) 38 S. W. 304, 42: 110 
 Riding on overloaded boat. 
 
 275. The owner of a steamship is liable 
 for the death of a passenger drowned by 
 the swamping of a boat sent to convey him 
 from the shore to the vessel, where the of- 
 ficer in charge of the boat permits it to 
 attempt the journey in an overloaded con- 
 dition, although the passengers are them- 
 selves guilty of contributory negligence in 
 failing to leave the boat when told it is 
 overloaded, and requested to do so. Weiss- 
 haar v. Kimball Steamship Co. 128 Fed. 397. 
 
 65: 84 
 Falling over fender. 
 
 276. A street car passenger who is in- 
 jured after leaving the car and while at- 
 tempting to pass behind the car in the dark, 
 by falling over a fender which had become 
 disarranged Avithout the knowledge of the 
 company, and was projecting from the rear 
 of the car, cannot hold the street railway 
 company liable for the injury. Garsran v. 
 West End Street R. Co. 176 Mass. 106. 57 
 N. E. 217, 49:421 
 Riding on top of car. 
 
 277. Where a shipper of stock of a 
 freight train voluntarily went on too of the 
 train in obedience to an order or direction 
 of the conductor to help signal, and, while 
 watching a brakeman trying to make a 
 coupling, was severely injured by a sudden 
 forward motion or jerk of the train, no re-
 
 CARRIERS, II. a, 4. 
 
 357 
 
 covery can be had against the railroad com- 
 pany for his injuries, as he voluntarily 
 placed himself in a position of known dan- 
 ger. Atchison, T. & S. F. R. Co. v. Lind- 
 ley, 42 Kan. 714, 22 Pac. 703, 6: 646 
 
 Injury by explosion. 
 
 278. A passenger on a railway train 
 which is stopped for some time by tanks 
 of burning oil upon the track who, from mo- 
 livi's of curiosity and pleasure, leaves a 
 place fixed as a temporary station at a 
 safe distance from the burning oil, and goes 
 within 85 feet of the same and remains 
 there for several minutes, is guilty of such 
 contributory negligence as will prevent re- 
 covery for injuries caused by an explosion 
 of a tank by which burning oil is thrown 
 upon him. Conroy v. Chicago, St. P. M. & 
 O. R. Co. 96 Wis. 243, 70 N. W. 486, 38: 419 
 Crossing track. 
 
 Question for Jury as to, see Triaf, 316-320. 
 
 279. A person crossing a street car track 
 in the dark on a crosswalk for the purpose 
 of taking passage, after proper signals have 
 been given to stop the car, is not negligent 
 in assuming that the car will heed the sig- 
 nals, and that it is running at lawful speed 
 only, where reliance upon such assumption 
 is not apparently attended with danger. 
 Walker v. St. Paul City R. Co. 81 Minn. 
 404, 84 N. W. 222, 51: 32 
 
 279a. One who steps around behind a 
 street car from which he alights, and at- 
 tempts to cross a parallel track without 
 looking for an approaching car corning from 
 the other direction on a straight track, is 
 guilty of such negligence as will preclude 
 a recovery for injuries if struck by the car. 
 Baltimore Traction Co. v. Helms, 84 Md. 
 515, 36 Atl. 119, 36: 215 
 
 280. A passenger alighting from a train 
 at a place where he must cross a track to 
 reach the public highway may, in the ab- 
 sence of warning, presume that trains will 
 not be so operated as to impose on him the 
 same degree of care which he would be 
 obligod to exercise if he were not a pas- 
 senger. Chesapeake & O. R. Co. v. King. 
 40 C. C. A. 432, 99 Fed. 251, 49: 102 
 
 281. A passenger has the right to pre- 
 sume that a train will not be permitted to 
 pass between that from which he alights 
 and the station, in violation of a rule of 
 the company, while passengers are being re- 
 ceived and discharged, and is not necessa- 
 rily chargeable with contributory negligence 
 for failure to look and listen before pro- 
 ceeding over the tracks towards the station. 
 Atlantic City R. Co. v. Goodin (N. J. Err. & 
 App.) 62 N. J. L. 394, 42 Atl. 333, 45: 671 
 
 282. A passenger is justified in assum- 
 ing that no train will be permitted to pass a 
 station at which a passenger train has 
 stopped for the discharge and receipt of 
 passengers, in such manner as to interfere 
 with them. Hence he cannot be held guilty 
 of contributory negligence as matter of law 
 because he failed, before leaving the car on 
 which he was traveling, to look out for an 
 approaching train by which he was injured. 
 
 Philadelphia, W. & B. R. Co. v. Anderson, 
 72 Md. 519, 20 Atl. 2, 8: 673 
 
 283. A passenger who steps from a train 
 while slowing up before stopping, and while 
 the exhaust steam of the engine is making 
 considerable noise, who looks and sees no 
 train approaching on a side track, has a 
 right to assume that none is coming at 
 such a rate of speed as will preclude him 
 from crossing a single track, and is not 
 guilty of negligence, as a matter of law, 
 in attempting to cross the track, although, 
 if he had looked in the right direction at 
 the moment of stepping upon the track, he 
 could have seen the approaching train. 
 Parsons v. New York C. & H. R. R. Co. 113 
 N. Y. 355, 21 N. E. 145, 3: 683. 
 
 284. Failure by a passenger to look and 
 listen for approaching trains before cross- 
 ing tracks intervening between his train 
 and an eating house maintained by the car- 
 rier for the accommodation of passengers 
 is not negligence per se. Atchison, T. & S. 
 F. R. Co. v. Shean, 18 Colo. 368, 33 Pac. 108, 
 
 20: 729 
 
 285. A passenger who leaves his car while 
 the train is standing on a side track await- 
 ing the arrival of another train, at a place 
 not designed for the aischarge of passen- 
 gers, and crosses the track to a pump to 
 get a drink of wa^ter, but, on hearing the 
 whistle of the incoming train, starts back 
 on a rapid run to regain his car, and at- 
 tempts to cross in front of the train when 
 it is about 50 feet distant from him, and 
 is struck and killed, is guilty of such neg- 
 ligence as will preclude recovery for his 
 death from the railroad company. Chi- 
 cago, R. I. & P. R. Co. v. Sattler, 64 Neb. 
 636, 90 N. W. 649, 57: 890 
 
 286. Passengers who have left their train 
 at an intermediate station while on a side 
 track for the purpose of letting another 
 train pass are bound to exercise reasonable 
 care and caution to avoid injury from pass- 
 ing trains, although the company has per- 
 mitted the practice of leaving and re-enter- 
 ing the train under such circumstances; and 
 they have no right to expect such a place 
 of ingress or egress to be as safe as a sta- 
 tion platform, or to rely on the conductor's 
 call of "All aboard" as indicating that they 
 can cross the track safely without looking 
 for approaching trains. DeKay v. Chicago, 
 M. & St. P. R. Co. 41 Minn. 178, 43 N. W. 
 182, 4: 632 
 
 287. Recovery for injuries to one struck 
 by a train upon a track which he was 
 obliged to cross to reach the train which he 
 desired to take is barred, under Ga. Code, 
 3830, providing that if the plaintiff by or- 
 dinary care could have avoided the conse- 
 quence to himself caused by defendant's 
 negligence he is not entitled to recover, if 
 such person failed to use his senses to as- 
 certain the approach of the train, and could 
 have avoided the consequence of the com- 
 pany's negligence by the exercise of ordi- 
 nary care. Southern R. Co. v. Smith. 30 
 C. C. A. 58, 52 U. S. App. 708, 86 Fed. 292. 
 
 40: 746
 
 358 
 
 CARRIERS, II. a, 4. 
 
 Place of sleeping. 
 
 288. A steamboat passenger, who, upon 
 being refused a berth in accordance with the 
 transportation contract, elects to occupy a 
 couch in the cabin, rather than pay the 
 small additional sum demanded for the 
 berth, assumes the risk of injury from so 
 doing through drafts and insufficient cov- 
 ering. McWethy v. Detroit, G. R. & W. R. 
 Co. 127 Mich. 333, 86 N. W. 827, 55: 306 
 
 289. A steamship company is not liable 
 for the death of a passenger caused by 
 sleeping on a wet mattress, where, because 
 of an extraordinary passenger list he could 
 not be furnished with a berth, and to reach 
 his destination he agreed to make use of a 
 mattress borrowed by the company from a 
 storekeeper, the condition of which he had 
 an opportunity to inspect. Van Anda v. 
 Northern Nav. Co. 49 C. C. A. 596, 111 Fed. 
 765, 55: 544 
 
 (2) Riding on Platform or Footboard. 
 
 Presumption of Negligence in, see Evidence, 
 
 578. 
 
 Question for Jury as to, see Trial, 308a-310. 
 See also supra, 35, 36, 271. 
 For Editorial Notes, see infra, IV. 29. 
 
 290. The law of negligence governing the 
 standing on a platform of a moving inter- 
 urban car outside of a municipality is the 
 same as in the case of steam cars; and 
 where a rule of the company prohibits pas- 
 sengers from standing on the platform, and 
 notice thereof is properly posted, or where 
 the passengers, upon request, refuse to en- 
 ter the car, there being in either case vacant 
 seats, they remain on the platform at their 
 peril. Cincinnati, L. & A. Electric Street 
 R. Co. v. Lohe, 68 Ohio St. 101, 67 N. E. 
 161, 67:637 
 
 291. While interurban railroad companies 
 are subject to the same regulations and 
 have all the powers of street railroad com- 
 panies, so far as applicable, the law of neg- 
 ligence governing the standing on a plat- 
 form of a moving street car in a munici- 
 pality is not applicable to the case of stand- 
 ing on such platform of a moving interur- 
 ban car in the open country. Id. 
 
 292. Riding on the front platform of an 
 electric street car is not negligence as a 
 matter of law. Watson v. Portland & C. E. 
 R. Co. 91 Me. 584, 40 Atl. 699, 44: 157 
 
 293. A passenger is not bound to antici- 
 pate the danger and be on the lookout for 
 trolley poles while riding with permission 
 on tne footboard of a street car, unless he 
 has knowledge of the proximity of such 
 poles to the track. Elliott v. Newport 
 Street R. Co. 18 R. I. 707, 28 Atl. 338, 
 
 23: 208 
 
 294. Riding on the platform of a street 
 car when there is room inside is not negli- 
 gence per se. Upham v. Detroit City R. Co. 
 85 Mich. 12, 48 N. W. 199, 12: '129 
 
 295. A passenger's standing on the plat- 
 form of the trail car in a moving cable 
 train, in accordance with custom, is not 
 
 negligence S3 matter of law, in the ab- 
 sence of any rule of the company against 
 it. Muldoor? v. Seattle City R. Co. 7 Wash. 
 528, 35 Pac. 422, 22: 794 
 
 296. An attempt by a passenger to escape 
 from danger by going out on the car plat- 
 form cannot be considered contributory neg- 
 ligence, when he acts as a man of ordinary 
 prudence would under the circumstances; 
 but the fact that he was injured in such 
 attempt, while others exposed to the same 
 danger who remained quiet were not in- 
 jured, should be considered by the jury in 
 determining whether he acted with ordi- 
 nary prudence. Mitchell v. Southern P. R. 
 Co. 87 Cal. 62, 25 Pac. 245, 11: 130 
 
 297. A statute providing that a railroad 
 company shall not be liable for injuries re- 
 ceived by any passenger on the platform of 
 a car will not prevent a recovery for any 
 injury received in such place by a passen- 
 ger who went there for the purpose of es- 
 caping danger, and whose act in so doing 
 was such as a person of ordinary care and 
 prudence might do under the circumstances. 
 
 Id. 
 
 298. A passenger riding on the platform 
 of a street car is not a passenger "on any 
 railroad" who assumes the risk of injury, 
 under the provisions of the New York gen- 
 eral railroad law of 1850, 46, as that was 
 not intended to apply to street railways. 
 Vail v. Broadway R. Co. 147 N. Y. 377, 42 
 N. E. 4, 30: 626 
 
 299. It is prima facie negligence for a 
 passenger to ride on the platform or step 
 of a car while the train is running at 30 
 miles an hour around curves, and is sway- 
 ing and jolting badly. Worthington v. Cen- 
 tral Vermont R. Co. 64 Vt. 107, 23 Atl. 590. 
 
 15: 326 
 
 300. A passenger riding on the platform 
 of a car, and refusing to go inside on the 
 conductor's request, is guilty of contribu- 
 tory negligence which will preclude recov- 
 ery for injuries caused by falling from the 
 train. Fisher v. West Virginia & P. R. Co. 
 42 W. Va. 183, 24 S. E. 570, 33: 69 
 
 301. A passenger on the running board 
 along the side of a street car cannot re- 
 cover for injuries caused by coming in con- 
 tact with a pillar near the track while at- 
 tempting to pass around the conductor, who 
 is also on the board, in obeying the con- 
 ductor's direction to come forward and get 
 a seat, unless, under all the circumstances, 
 he acts as a man of ordinary prudence 
 would act. Third Ave. R. Co. v. Barton. 
 46 C. C. A. 241, 107 Fed. 215, 52: 471 
 
 302. Going from a car in which there is 
 plenty of standing room to the lower step 
 of the car platform in order to vomit, when 
 the train is running at the rate of 25 miles 
 per hour, constitutes such contributory neg- 
 ligence on the part of a boy fifteen years 
 of age as to preclude any recovery from the 
 carrier for his injuries when thrown off by 
 a jerk of the train. Cleveland, C. C. & St. 
 L. R. Co. v. Moneyhun, 146 Ind. 147, 44 N. 
 E. 1106, 34: 141
 
 CARRIERS, II. a, 4. 
 
 359 
 
 Of crowded car. 
 
 For Editorial Notes, see infra. IV. 10. 
 
 303. Mere standing place on the inside of 
 a car is not ordinarily such proper accom- 
 modation for a passenger as will make it 
 negligence for him to stand on the car 
 platform. Graham v. McNeill, 20 Wash. 
 466, 55 Pac. 631, 43: 300 
 
 304. A passenger is not guilty of negli- 
 gence in standing on the platform of a car 
 when there are no vacant seats in the car 
 and the platform is the most comfortable 
 and convenient place for him to occupy on 
 the trip. Id. 
 
 305. Excursionists have the right to re- 
 turn home on the train by which they are 
 taken out, and if, owing to the crowded 
 condition of the train, they can secure no 
 safer position than the platforms, it is not 
 negligence on their part to ride thereon. 
 Jackson v. Natchez & W. R. Co. lf4 La. 981, 
 38 So. 701, 70: 294 
 
 306. The right to stand and ride upon 
 the platform of a car exists where, on the 
 return of an excursion, a passenger with an 
 excursion ticket is unable to get room in- 
 side the car, and is not informed that he 
 can be carried on another train. Lynn v. 
 Southern P. Co. 103 Cal. 7, 36 Pac. 1018, 
 
 24: 710 
 
 307. It is not negligence, as matter of 
 law, for a passenger who is upon a train 
 so crowded that he cannot find a seat, and 
 becomes sick because of lack of proper ven- 
 tilation and tobacco smoke, to seek relief 
 upon the platform when unable to reach a 
 window. Morgan v. Lake Shore & M. S. R. 
 Co. 138 Mich. 626, 101 N. W. 836, 70: 609 
 
 308. The failure of a carrier to furnish 
 a seat for a passenger does not justify him 
 in going to a place of peril on the platform 
 when there is plenty of standing room in 
 the car. Cleveland, C. C. & St. L. R. Co. v. 
 Moneyhun, 146 Ind. 147, 44 N. E. 1106, 
 
 34: 141 
 
 309. A person is not excused from con- 
 tributory negligence in standing on the plat- 
 form of a car while the train was in motion 
 when there was standing room in the car, 
 because his position in the car was one of 
 some discomfort to himself and to others. 
 Worthington v. Central Vermont R. Co. 64 
 Vt. 107, 23 Atl. 590, 15: 326 
 
 310. The voluntary exposure of the body 
 beyond the sides of a moving train by a 
 passenger riding on the platform is such 
 negligence as will preclude recovery for his 
 death caused by coming in 'contact with an 
 iron post near the track, although he was 
 forced to ride on the platform because of 
 the overcrowded condition of the car, and 
 the carrier would have been liable for in- 
 jury resulting to him therefrom, in the ab- 
 sence of any negligence on his part. Bene- 
 dict v. Minneapolis & St. L. R. Co. 36 Minn. 
 224, 90 N. W. 360, 57 : 639 
 Preparatory to alighting. 
 
 311. Standing on the platform of a cable 
 car, with one's back against the dashboard; 
 will not constitute negligence on the part 
 of a passenger who goes out ot the car as 
 
 he approaches his destination, so as to pre- 
 clude a recovery for injury caused by a 
 sudden jerk of the car, throwing him into 
 the street. North Chicago Street R. Co. v. 
 Baur, 179 111. 126, 53 N. E. 568, 45: 108 
 
 312. A passenger who leaves his seat in a 
 car on a dummy railroad and goes down on 
 the lower step of the back platform as the 
 train slows up for a street crossing at which 
 he is to stop, and while it is passing over 
 the street at a speed of about three miles 
 an hour, is not guilty of negligence, as mat- 
 ter of law, which will preclude his recov- 
 ering for injuries caused by the sudden in- 
 crease of speed, which throws him to the 
 ground. Watkins v. Birmingham R. & E. 
 Co. 120 Ala. 147, 24 So. 392, 43: 297 
 
 313. A passenger who gets on the step 
 of a car for the purpose of alighting, when 
 the car is slowing down at a stopping place, 
 is not riding on the platform, within the 
 meaning of the carrier's regulations, but is 
 merely using it as a means of egress. Id. 
 
 314. A statute forbidding a passenger to 
 attempt to leave a train at a place other 
 than an established depot, without the con- 
 sent of the person in charge, is not violated 
 by making preparations with intent to leave 
 at a place elsewhere than at a depot if the 
 train shall stop. Smith v. JEina. L. Ins. Co. 
 115 Iowa, 217, 88 N. W. 368, 56: 271 
 While changing cars. 
 
 For Editorial Notes, see infra, IV. 29. 
 
 315. The act of crossing a car platform 
 from one car to another while the train is in 
 motion is not negligence as matter of law in 
 the absence of any rule of the carrier pro- 
 hibiting it or any attempt to prevent pas- 
 sengers from so doing. McAfee v. Huide- 
 koper, 9 App. D. C. 30, 34: 720 
 
 316. It is not, as matter of law, negli- 
 gence contributing to injury from an elec- 
 tric shock caused by imperfect insulation, 
 for a passenger to swing around from the 
 step of an electric street car to that of the 
 trailer, when the railway company has no 
 rule prohibiting, and allows it without ob- 
 jection. Burt v. Douglas County Street R. 
 Co. 83 Wis. 229, 53 N. W. 447, 18 : 479 
 
 317. A passenger who goes to one car 
 from another of a moving train to find a 
 seat does not, while so upon the platform, 
 take the risk of collision with another train; 
 and when his conduct does not contribute 
 to an injury from such collision, he may 
 recover from the railroad company for its 
 negligence. Dewire v. Boston & M. R. Co. 
 148 Mass. 443, 19 N. E. 523, 2: 166 
 
 (3) Riding in Wrong Car. 
 
 As Proximate Cause of Injury, see Proxi- 
 mate Cause, 77. 
 
 Instructions as to, see Trial, 829. 
 For Editorial Notes, see infra, IV. 14, 29. 
 
 318. For a postal clerk to ride in a mail 
 car while off duty, in the absence of any 
 rule of the railroad company forbidding him 
 to do so, is not contributory negligence 
 which will prevent recovery of damages for 
 injuries caused by a collision of trains. Eal-
 
 360 
 
 CARRIERS, II. a, 5. 
 
 timore & 0. R. Co. v. State use of Wiley. 
 72 Md. 36, 18 Atl. 1107, 6: 706 
 
 3J9. A passenger who rides in an ex- 
 press car in violation of a known rule of 
 the carrier, even with the permission, con- 
 nivance, or knowledge of the conductor of 
 tho train, and is there injured through the 
 negligence of the carrier, cannot recover if 
 h<; would not have been injured had he re- 
 mained in the passenger car as required by 
 the rules. Florida S. R. Co. v. Hirst, 30 Fla. 
 1. 11 So. 506, 16:631 
 
 "20. A woman who takes passage in a 
 baggage car, when no passenger cars are 
 provided for a passenger train, and pressing 
 domestic duties call for her immediate 
 transportation, does not thereby renounce 
 her right as a passenger to safety and pro- 
 tection. Baltimore & P. R. Co. v. Swann. 81 
 .Md. 400, 32 Atl. 175, 31 : 313 
 
 321. A member of a theatrical troupe, rid- 
 ing in the show car, does not, as matter of 
 Ir.w. assume the hazard of the journey. es- 
 pecially where it is not shown that the car 
 was not a safe one to ride in or that he had 
 been forbidden to ride there, but there is 
 some evidence that his employment requires 
 him to ride there. Blake v. Burlington, C. 
 R. & N. R. Co. 89 Iowa, 8, 56 N. W. 405, 
 
 21 : 559 
 
 322. A stockowner on a freight train, un- 
 der a contract to care for his stock, but to 
 ride in the caboose, will not be negligent in 
 remaining in the stock car, if, before he has 
 finished attending to the stock, the train 
 starts and proceeds upon its journey. Illi- 
 nois C. R. Co. v. Beebe, 174 111. 13, 50 X. E. 
 1019, 43: 210 
 
 323. Taking an improvised seat made by 
 a plank across empty kegs, on a flat car 
 next to the engine upon a special train, and 
 remaining there after a request by the con- 
 ductor to go into the box car. to which the 
 passenger replies that he wants to ride on 
 the flat car and see the country, on which 
 the conductor says nothing more, is not 
 such negligence, as a matter of law, as will 
 prevent recovery for the death of the pas- 
 senger in consequence of the derailment of 
 the train caused by negligence in its man- 
 agement, although if the passenger had been 
 inside the box car he might not have been 
 killed. But it is a question for the jury 
 whether an ordinarily prudent man could 
 have reasonably anticipated that by taking 
 that position he was exposing himself to 
 the injury received; and also whether the 
 conductor consented to his remaining there; 
 and, if so, whether the train was managed 
 with the care and caution commensurate 
 with the passenger's risk in that situation; 
 and whether his injury was or was not the 
 direct and immediate result of failure to 
 disfharge that duty. Wagner v. Missouri 
 P. R. Co. !)7 Mo. .112, 10 S. W. 486, 3: 150 
 
 324. Whore, in an action for personal in- 
 juries to a civil engineer employed by a 
 railroad company, while riding, under or- 
 ders, on a wrecking train, over a new track 
 which he was constructing, to the front, in 
 order to aid in putting upon the track a 
 
 derailed engine, it appeared that the train 
 consisted of a wrecking car in front, a ca- 
 boose next, fixed up as a tool car, then sev- 
 eral flat cars, and a box car in the rear; and 
 the plaintiff was riding in the tool car, 
 which was as fit for passengers as any, it 
 was held that he was not, as a matter of 
 law, guilty of negligence in riding there in- 
 stead of in the rear car, which was fixed 
 up as a way car, although in the accident 
 which derailed the tool car and injured the 
 plaintiff the rear car was not derailed. Me- 
 loy v. Chicago & N. W. R. Co. 77 Iowa, 743, 
 42 N. W. 563, 4: 287 
 
 5. Ejection of Passenger or Trespasser. 
 a. In General. 
 
 Care Required from Ejected Passenger, see 
 supra. 266. 
 
 Punitive Damages for, see Damages, 7681. 
 
 Measure of Damages for, see Damages, III. 
 c, 2; Trial, 660. 
 
 Recovery for Mental Anguish from, see 
 Damages, 609, 610. 
 
 Remedy for Wrongful Ejectment, see Elec- 
 tion of Remedies, 26. 
 
 Judicial Notice as to Brakeman's Author- 
 ity as to, see Evidence, 92. 
 
 Presumption as to, see Evidence, 293. 
 
 Evidence as to Trouble in Paying Fare on 
 Other Occasion, see Evidence, 1952. 
 
 Of Colored Person, Evidence as to, see Evi- 
 dence, 2077. 
 
 Variance in Proof as to, see Evidence, 2412. 
 
 Engineer Throwing Steam on Trespasser 
 on Footboard, see Negligence, 169. 
 
 Alleging Compliance with Rules, see Plead- 
 ing, 229. 
 
 Question for Jury as to, see Trial, 297. 
 
 See also infra. 521, 631, 640. 
 
 For Editorial Notes, see infra. IV. 19. 
 
 325. Removing a passenger from a train 
 of cars while the train is moving very slow- 
 ly is not negligence or wantonness per se. 
 Southern Kansas R. Co. v. Sanford, 45 Kan. 
 372, 25 Pac. 891, 11: 432 
 
 326. A street car company is liable to 
 damages for injuries occasioned by the 
 wrongful, wanton, and malicious ejection of 
 a passenger by its conductor. Such act is 
 within the general scope of the conductor's 
 employment. And it is immaterial that 
 the person ejected is only a trespasser, if the 
 manner of the 'ejection be violent and ma- 
 licious. North Chicago City R. Co. v. Gast- 
 ka, 128 111. 613, 21 N. E. 522, 4: 481 
 
 327. Authority of a brakeman on a freight 
 train to eject a passenger cannot be implied, 
 so as to render the employer liable for his 
 acts in this respect, from rules of the com- 
 pany providing that such trains shall not 
 carry passengers, and also that the brake- 
 men must familiarize themselves with the 
 rules, but also providing that brakemen are 
 subject at all time to the orders of the 
 conductors. Randall v. Chicago & G. T. R. 
 Co. 113 Mich. 115, 71 N. W. 450, 38: 06U
 
 CARRIERS, II. a, 5. 
 
 361 
 
 Of trespasser. 
 
 Opinion as to Brakeman's Duty in Regard 
 to. see Evidence, 1425. 
 
 328. A railroad company may eject a tres- 
 passer from its train, although a storm is 
 imminent, where he is ejected at a safe 
 place. Burch v. Baltimore & P. R. Co. 3 
 App. D. C. 346, 26:129 
 
 320-339. A railroad company cannot eject 
 from its train a boy ten years old who is 
 trespassing on it, or cause him, by fright 
 or fear, to leave the train while it is in 
 rapid motion so as to endanger his life. 
 Enright v. Pittsburgh Junction R. Co. 198 
 Pa. 166, 47 Atl. 938, 53: 330 
 
 340. The tortious act of a brakeman in 
 throwing coal at a boy on the tender of an 
 engine, by which he knocks him off or 
 frightens him so that he jumps off, causing 
 him to be run over and killed % by the en- 
 gine, renders the railroad compSmy liable. 
 Pierce v. North Carolina R. Co. 124 N. C. 
 83, 32 S. E. 339, 44: 316 
 
 341. The throwing of rocks and clods by a 
 brakeman at a trespasser stealing a ride 
 on rods under a box car is within the scope 
 of his employment, so as to render the rail- 
 road company liable for the death of the 
 trespasser, who falls under the wheels when 
 driven out by the rocks. Dorsey v. Kan- 
 sas City, P. & G. R. Co. 104 La. 478, 29 So. 
 177, 52:92 
 
 342. The ejection of a trespasser from the 
 footboard of a locomotive, though his pres- 
 ence there does not interfere with the ma- 
 nipulation of the machinery by the engineer, 
 whose position is inside the cab, is within 
 the authority of the engineer, when he has 
 possession and control of the engine, so as 
 to charge the railroad company with liabil- 
 ity for his wrongful conduct in exercising 
 the authority. Galveston, H. & S. A. R. 
 Co. v. Zantzinger, 93 Tex. 64, 53 S. W. 379, 
 
 47 : 282 
 
 343. A brakeman has implied authority 
 to eject trespassers from a car, so that his 
 master will be liable for injuries caused by 
 his wantonly and wilfully kicking a tres- 
 passer from a moving car to his injury, un- 
 less entire absence of such authority is 
 shown by the master. Dixon v. Northern 
 P. R. Co. 37 Wash. 310, 79 Pac. 943, 
 
 68 : 895 
 
 From sleeping car berth. 
 For Editorial Notes, see infra, IV. 15, 19. 
 
 344. A sleeping car company is not liable 
 in damages for ejecting a passenger from a 
 berth which has been assigned her by the 
 conductor of the car, where by its standing 
 order such berth was reserved for passen- 
 gers getting upon the car at a station fur- 
 ther along the road, and the conductor er- 
 roneously assigned such berth to such pas- 
 senger, but notified the latter of the error 
 within a reasonable time before reaching 
 such station, and offered her another berth 
 in the car equal in accommodation to that 
 originally assigned her. and she refused to 
 accept such berth and left the car without 
 being compelled to do so. Mann Boudoir 
 Car Co. v. Dupre, 13 U. S. App. 183, 4 C. C. 
 A. 540, 54 Fed. 646, 21 : 289 
 
 Duty after ejection. 
 
 Proximate Cause of Injury after Ejection, 
 
 see Proximate Cause, 75. 
 See also infra, 425, 426; Railroads, 270. 
 
 345. A railroad company owes no duty 
 to a trespasser ejected from its train to 
 provide shelter or see that he incurs no risk 
 from the inclemency of the weather or the 
 fury of the elements, other than that of 
 common humanity to abstain from unnec- 
 essary violence or from exercising its right 
 under circumstances savoring of harshness 
 and cruelty. Burch v. Baltimore & P. R. Co. 
 3 App. D. C. 346, 26: 129 
 
 340. A railroad company which' ejects 
 from its cars at the station where his tick- 
 et expires a drunken passenger acting in a 
 boisterous manner, using no more force than 
 is reasonably necessary, is not liable for 
 any injury which may result to him from 
 his effort to pursue and re-enter the train. 
 Chesapeake & O. R. Co. v. Saulsberry, 112 
 Ky. 915, 66 S. W. 1051, 56: 580 
 
 347. A railroad company which ejects a 
 drunken passenger from its cars at the sta- 
 tion where his ticket expires is under no 
 obligation to stop the train to ascertain th;- 
 extent of his injuries in case he falls in at- 
 tempting to pursue and re-enter the train. 
 
 Id. 
 
 348. A somewhat intoxicated passenger 
 who gets off safely without assistance, when 
 told that he must pay his fare or leave the 
 train, and whom the conductor has seen a 
 few minutes before in an eating-house de- 
 manding food and acting somewhat boister- 
 ously, may be reasonably supposed to be 
 capable of reaching a place of safety, where 
 he is left in the evening, when it is neither 
 raining nor freezing, within 200 yards of a 
 dwelling house, and not far from the rail- 
 road station. Roseman v. Carolina C. R. 
 Co. 112 N. C. 709, 16 S. E. 766, 19: 327 
 
 349. A conductor is not bound to act upon 
 the volunteered opinion of any passenger as 
 to the physical or mental state of a drunk- 
 en man who has been expelled from the 
 train, where he has no reasonable ground to 
 believe that the man is unable to find a 
 place where he will be safe. Id. 
 
 350. A railroad company is liable to one 
 who, at night, without .right and while in 
 a drunken and helpless condition, boards a 
 train standing in a cut, and is immediately 
 ejected from the train with knowledge on 
 the part of the trainmen that a passenger 
 train will soon pass through the cut, for 
 injuries by the latter train, which its super- 
 intendent and nearest station agent, who 
 have been informed of his peril, make no ef- 
 fort to avoid. Waldron v. Louisville & N. 
 R. Co. 113 Ky. 30, 63 S. W. 580, 54: 919 
 
 6. Grounds for. 
 (1) Misbehavior; Disease. 
 
 Misbehavior and drunkenness. 
 
 See also supra, 347; infra, 360. 
 
 For Editorial Notes, see infra, IV. 19. 
 
 351. The use of indecent or profane lan- 
 guage in a street car, which constitutes a
 
 362 
 
 CARRIERS, II. a, 5. 
 
 breach of the peace for which a person may 
 be punished by fine or imprisonment, justi- 
 fies the conductor in putting the offender 
 off the car. Robinson v. Rockland, T. & 
 C. Street R. Co. 87 Me. 387, 32 Atl. 994, 
 
 29: 530 
 
 352. A passenger in a crowded street car 
 in which there are many ladies, who, on be- 
 ing requested by the conductor to stop 
 swearing, denies his guilt, and when told 
 that he has been profane calls the conductor 
 "a damned liar," says that he would swear 
 as much as he "damned pleased," and that 
 he "would be God damned if he would put 
 him off the car,"- should be ejected from 
 the car even if the conductor was at first 
 in error in charging him with profanity. 
 
 Id. 
 
 353. The intoxication and misbehavior of 
 a passenger which will authorize his ex- 
 pulsion from a train will not justify his ex- 
 pulsion without exercising due car.2 for his 
 safety, having reference to time, place, and 
 surroundings. Louisville & N. R. Co. v. 
 Johnson, 108 Ala. 62, 19 So. 51, 31: 372 
 
 354. Permitting a passenger to enter a 
 train knowing him to be intoxicated does 
 not deprive the carrier of a right to eject 
 him when he becomes boisterous and obnox- 
 ious during the journey. Louisville & N. R. 
 Co. v. Logan, 88 Ky. 232, 10 S. W. 655. 
 
 3: 80 
 
 355. An intoxicated passenger who was 
 boisterous, and who followed the conductor 
 from one car to another with a knife, 
 threatening to kill him, causing general ex- 
 citement among the passengers, and who, 
 after being locked in the smoking car, sly- 
 ly pulled the bell rope, causing the train 
 to stop, was properly ejected from the train 
 after refunding to him his fate, although 
 it was at night, but not too dark to see the 
 track distinctly, when the weather was not 
 cold or inclement: and the fact that he was 
 run over during the night and killed by an- 
 other train does not make the railroad com- 
 pany liable. Id. 
 
 356. A conductor requiring an intoxicated 
 man to leave the train for nonpayment of 
 fare does not render the carrier liable for 
 the death of the man from exposure, where 
 the conductor did not have reasonable 
 ground to believe that the man was unable 
 to find his way or walk to the nearest house, 
 or to the railroad station, or even to his 
 own father's house, which was not far 
 away. Roseman v. Carolina C. R. Co. 112 
 N. C. 709, 16 S. E. 766, 19: 327 
 Disease. 
 
 357. A carrier has a right to remove from 
 a train a passenger who breaks out with 
 eruptions which, from the best medical ad- 
 vice that can be obtained, are believed to 
 be smallpox, although such belief may after- 
 wards turn out to be mistaken. Paddock v. 
 Atchison, T. & S. F. R. Co. 37 Fed. 841, 
 
 4: 231 
 
 358. Although a common carrier of pas- 
 sengers owes obligations to its well passen- 
 gers as well as to those who are sick, and 
 is bound to protect the rights of both; and 
 
 although when the condition of one passen- 
 ger, from sickness or otherwise, is such as 
 to be inconsistent with the safety, health, 
 or even reasonable comfort, of his fellow 
 passengers, regard for the rights of the lat- 
 ter will authorize the carrier to terminate 
 the carriage by excluding him, yet this 
 right cannot be exercised arbitrarily and in- 
 humanely, or without due care and provi- 
 sion for the safety and well being of the 
 ejected passenger. Conolly v. Crescent City 
 R. Co. 41 La. Ann. 57, 5 So. 259, 3: 133 
 
 359. A passenger stricken with apoplexy 
 while riding on a street car, although at- 
 tended with severe vomiting, to the incon- 
 venience and great discomfort of other pas- 
 sengers, cannot be 4 removed while in a 
 speechless and helpless condition and laid 
 in the open street on a bleak, drizzling De- 
 cember day, and there abandoned, with no 
 effort to procure him attention, without a 
 gross violation by the carrier of its duty 
 as such, and liability for resulting dam- 
 age. Id. 
 
 360. The mistake of the driver in suppos- 
 ing that a passenger was drunk, when the 
 latter had ridden a considerable distance 
 without misbehavior, and had been guilty of 
 none except vomiting occasioned by illness, 
 cannot excuse the company for ejecting him 
 and leaving him uncared for on the street 
 in inclement weather. Id. 
 Order of board of health. 
 
 361. The ejection of a passenger from a 
 train cannot be justified by a void order of 
 a board of health prohibiting all persons 
 from coming into the state by train until 
 further orders of the board. Wilson v. Ala- 
 bama G. S. R. Co. 77 Miss. 714, 28 So. 567, 
 
 52: 357 
 
 (2) Nonpayment of Fare, or Defective 
 Ticket. 
 
 Punitive Damages for, see Damages, 81. 
 Admissibility of Conductor's Declarations as 
 
 to, see Evidence, 1633. 
 Evidence as to Nonpayment, see Evidence, 
 
 1780. 
 
 Tender of Unusual Coin, see Money, 1. 
 .See also infra, 396, 397. 
 For Editorial Notes, see infra, IV. 19. 
 
 362. A railroad conductor may demand a 
 ticket as evidence of a passenger's right of 
 passage, or, on failure to produce it, may 
 demand payment of fare, and, on failure to 
 pay it, may lawfully eject the passenger 
 from the train, using no more force than is 
 necessary. MacKay v. Ohio River R, Co. 34 
 W. Va. 65, 11 S. E. 737, 9: 132 
 
 363. A passenger who refuses to pay fare 
 or leave the train, and who furnishes only 
 a ticket which does not on its face entitle 
 him to passage on that train, although he 
 was told by the carrier's agent that he 
 could ride upon it, cannot recover for in- 
 juries received in putting him off the train 
 without more force than is necessary. He 
 should either pay his fare, or quietly leave 
 the train and resort to his appropriate rem-
 
 CARRIERS, II. a, 5. 
 
 363 
 
 rdy for any damages sustained. Peabody 
 v. Oregon R. & Nav. Co. 21 Or. 121, 26 
 Pac. 1053, 12: 823 
 
 364. A second demand for fare need not 
 be made by a street car conductor before 
 ejecting from the car a person who, in re- 
 sponse to his first demand, tendered a 
 worthless ticket, and was informed that it 
 was insufficient. United Railways & Electric 
 Co. v. Hardesty, 94 Md. 661, 51 Atl. 406. 
 
 57 : 275 
 
 365. Insulting or ungentlemanly conduct 
 is not necessary to render the ejection of a 
 woman from a train wrongful, if, under the 
 terms of her carriage contract, she has a 
 right there. Illinois C. R. Co. v. Harper, 
 83 Miss. 560, 35 So. 764, 64: 283 
 
 366. A conductor of a train running be- 
 tween two points connected by different 
 routes is bound to listen to the .explanation 
 of a passenger holding a ticket \vhich does 
 not specify the route she is to take, that 
 the agent selling the ticket had directed her 
 to take the route on which the conductor 
 finds her; and he cannot eject her from the 
 train because of regulations of the carrier, 
 unknown to her, requiring her to take the 
 other route. Id. 
 Refusal to pay fare of child. 
 
 See also infra, 394, 395. 
 
 For Editorial Notes, see infra, IV. 19. 
 
 367. A parent who refuses to pay the 
 fare of a child in his custody who is sub- 
 ject to the payment of fare may be ejected 
 from the train with the child, though the 
 parent tenders payment of his own fare. 
 Braun v. Northern P. R. Co. 79 Minn. 404, 
 82 N. W. 675, 49: 319 
 
 368. A person taking passage on a rail- 
 road with a child in his charge of sufficient 
 age to require payment of fare becomes lia- 
 ble for the payment of the child's fare and 
 upon refusal to pay the same both may be 
 ejected from the train at the next station. 
 Lake Shore & M. S. R. Co. v. Orndorff, 55 
 Ohio St. 589, 45 N. E. 447, 38: 140 
 Refusal to pay more than regular fare. 
 
 369. A passenger who refuses to comply 
 with the regulations of a railroad company 
 requiring passengers without tickets to pay 
 25 cents extra may be lawfully ejected in 
 a proper manner .and at a proper place. Mc- 
 Gowen v. Morgan's L. & T. R. & S. Co. 41 
 La. Ann. 732, 6 So. 606, 5: 817 
 
 370. The ejection of a passenger who has 
 no ticket, because he will not pay more 
 than the regular fare, is wrongful where his 
 failure to get a ticket, for which he other- 
 wise would have had time, was, without any 
 fault of his, due to delay in finding his 
 satchel in the baggage room, where he had 
 left it without any check, at a time when 
 the ticket office was closed, as he was di- 
 rected to do by the baggage master, who 
 refused to give him a check until he had 
 procured his ticket. Coffee v. Louisville & 
 N. R. Co. 76 Miss. 569, 25 So. 157. 
 
 45: 112 
 
 371. A passenger on a street car who re- 
 ceives from the driver a package of nickels 
 marked "50 cents" but actually containing 
 
 but 45 cents, in exchange for a 50-cent 
 piece, cannot be lawfully ejected for refusal 
 to put 5 cents in the box, although he is as- 
 sured by the driver that if he will put the 
 fare in the box the mistake will be cor- 
 rected at the office of the company. Curtis \ . 
 Louisville City R. Co. 94 Ky. 573, 23 S. W. 
 363, 21 : 640 
 
 Refusal to pay full fare alter less accepted. 
 
 372. A railway conductor who collects 
 from a passenger boarding the train with- 
 out a ticket a less sum than the full train 
 fare to his destination may, within a rea- 
 sonable time, on discovering the mistake, 
 require him to pay the deficiency, and eject 
 him at the next station on his refusal to 
 pay it, upon first refunding the sum paid, 
 less the fare for the distance actually trav- 
 eled. Wardwell v. Chicago, M. & St. P. R. 
 Co. 46 Minn. 514, 49 N. W. 206, 13: 596 
 Refusal to pay for distance already ridden. 
 For Editorial Notes, see infra, IV. 19. 
 
 373. Refusal to pay fare for the distance 
 already ridden without a valid ticket will 
 justify the ejection of a passenger who, on 
 notice that he must pay such fare or be put 
 off at the next station, has procured at that 
 station a ticket for the remainder of his 
 trip. Manning v. Louisville & N. R. Co. 95 
 Ala. 392, 11 So. 8, 16:55 
 Mistake in transfer slip. 
 
 374. No recovery can be had for injuries 
 received by a passenger in resisting forci- 
 ble ejection from a street car for refusal to 
 pay fare or leave the car, although he ten- 
 ders a transfer from another line, which 
 should be valid, but is not, because of the 
 mistake of the conductor from which it 
 was received, if no more force is used than 
 is reasonably necessary to effect the expul- 
 sion. Kiley v. Chicago City R. Co. 189 111. 
 384, 59 N/E. 794, 52: 626 
 
 375. A street car passenger who is ejected 
 from a ear to which he is transferred be-' 
 cause of a mistake not noticed by him in 
 the transfer slip given him by the conductor 
 to whom he paid his fare may recover sub- 
 stantial damages from the company, since it 
 is responsible for the mistakes of its agents, 
 and cannot require passengers to make tech- 
 nical examination of transfer slips. Lawshe 
 v. Tacoma R. & P. Co. 29 Wash. 681, 70 Pac. 
 118, 59: 350 
 Failure to get transfer. 
 
 376. A passenger who fails to ask or ob- 
 tain any written transfer or other evidence 
 of his right to ride in a car which he enters 
 after leaving one in which he has paid fare 
 may be lawfully ejected if he refuses to pay 
 fare therein; and the conductor is not 
 obliged to take the passenger's statement 
 as evidence of his right to ride. Mahoney 
 v. Detroit Street R. Co. 93 Mich. 612, 53 
 N. W. 793, 18:335 
 Defective ticket. 
 
 377. The refusal of the agent at the inter 
 mediate terminal to indorse a return trip 
 ticket, which indorsement, according to the 
 terms of the ticket, is necessary to validate 
 it, "because his instructions were different," 
 is not a final breach of its contract by the
 
 364 
 
 CARRIERS. II. a, 5. 
 
 carrier, so as to preclude recovery by the 
 passenger of any damages that may subse- 
 quently accrue ; therefore, in case he is eject- 
 ed from a train when attempting to use 
 the ticket, under circumstances of humilia- 
 tion, he may recover damages therefor. Tex- 
 as & P. R. Co. v. Payne (Tex.) 87 S. W. 
 330, "0: 946 
 
 378. The failure of a carrier's agent to 
 stamp the return coupon of a round-trip 
 ticket in order to make it valid for use un- 
 der the carrier's regulations will not justi- 
 fy the expulsion from a train of a passen- 
 ger who had presented himself to the agent, 
 and signed the ticket in the agent's pres- 
 ence, and delivered it Jto and received it from 
 the agent under such circumstances as to 
 justify the belief that the ticket had been 
 properly stamped. Northern P. R. Co. v. 
 Pauson, 70 Fed. 585, 44 U. S. App. 178, 
 17 C. C. A. 287, 30: 730 
 
 379. The expulsion of a passenger from 
 a train for failure to have his round-trip 
 ticket signed and stamped as required by a 
 condition thereon providing that it shall not 
 be good for return passage, unless the orig- 
 inal purchaser shall procure it to be 
 signed and stamped by an agent of 
 the company at the point of desti- 
 nation, and shall use it on the date it is 
 so signed, renders the company liable in 
 damages, where the passenger explains to 
 the conductor that he was unable to comply 
 with the condition because of the failure 
 of the company to have present at the sta- 
 tion before the arrival of the train he 
 wished to take an agent authorized to so 
 sign and stamp his ticket. Southern R. Co. 
 v. Wood, 114 Ga. 140, 39 S. E. 894, 
 
 55: 536 
 
 380. There was no waiver of the wrongful 
 expulsion of a passenger from a train be- 
 cause of his failure, through the fault of 
 the carrier, to have his ticket signed and 
 stamped as required by a condition thereon, 
 by the fact that after being expelled he 
 returned to the station where he had board- 
 ed the train, had his ticket properly val- 
 idated, and used it for passage on a later 
 train. Id. 
 
 381. A passenger in getting on a train 
 with a ticket which he knows does not on 
 its face entitle him to passage is guilty df 
 negligence as a matter of law. which will 
 bar a recovery for his expulsion, although 
 after discovering the defect he sought to ex- 
 change it at the ticket office, and was told by 
 the person in cnarge that the agent who had 
 authority to chanire it was out, but that he 
 thought it was all right, and that conduct- 
 ors would understand the mistake. Poulin 
 v. Canadian P. R. Co. 6 U. S. App. 298, 3 
 C. C. A. 23, 52 Fed. 197, 17 : 800 
 Expired ticket. 
 
 382. One who gets upon a train with a 
 ticket which he knows does not upon its 
 face entitle him to passage, because the 
 time for which it purports to be A'alid has 
 expired, although he thinks the limitation 
 unreasonable, cannot recover damages for 
 being ejected, if he refuses to pay fare. Tre- 
 
 zona v. Chicago G. W. R. Co. 107 Iowa, 22. 
 77 N. W. 486, 43:130 
 
 Misdated ticket. 
 
 383. Failure to pay for a ticket when pur- 
 chased because of haste to catch a train, and 
 the acceptance of a promise to pay on re- 
 turn, will not defeat the right of the pas- 
 senger to recover damages for ejection be- 
 cause the ticket bears a prior date. Ells- 
 worth v. Chicago, B. & Q. R. Co. 95 Iowa, 98. 
 63 X. W. 584, 29: 173 
 Ticket for station at which train does not 
 
 stop. 
 
 384. One who purchases a ticket for pas- 
 sage on a particular train, on the assurance 
 of the ticket agent that the train will stop 
 at the station at which the purchaser de- 
 sires to alight, may recover damages from 
 the company if expelled from the train by 
 the conductor solely on the ground that the 
 train does not stop at the station in ques- 
 tion, unless the purchaser, knows or has rea- 
 son to believe that the information given hint 
 by the ticket agent is incorrect, or that 
 there is a rule or regulation of the com- 
 pany making the agent incompetent to give 
 the information, or prohibiting the conduct- 
 or from stopping the train at that station. 
 Atkinson v. Southern R. Co. 114 Ga. 146, 
 39 S. E. 888, 55: 223 
 
 385. One purchasing a round-trip railroad 
 ticket good only on the day of purchase 
 may recover damages in case he is ejected 
 from the only train passing his station on 
 the return trip on tha-t day, for the reason 
 that the ticket is not good on that train 
 because the train is not scheduled to stop 
 at that station. Illinois C. R. Co. v. Harris, 
 81 Miss. 208, 32 So. 309, 59: 742 
 Refusal to pay second fare; ticket wrong- 
 fully taken up. 
 
 386. Xonpossession of a ticket does not of 
 itself authorize the ejection from a train 
 of a passenger who, having a contract for 
 stopover privileges, exercises them after his 
 ticket has been taken up against his protest, 
 and attempts to complete his journey with- 
 out procuring another ticket. Scofield v. 
 Pennsylvania Co. 50 C. C. A. 553, 112 Fed. 
 855, 56: 224 
 
 387. A railroad company cannot absolve 
 itself from its duty to carry a passenger to 
 his destination by taking up his ticket, so 
 as to require him to sue for the breach of 
 the contract thereby consummated, and pre- 
 vent his suing for the tort in case he is sub- 
 sequently ejected from the train. . Id. 
 
 388. The wrongful expulsion by a conduc- 
 tor of a passenger who had no ticket be- 
 cause it had been taken up by another con- 
 ductor renders the carrier liable. Sloane v. 
 Southern Cal. R. Co. Ill Cal. 668, 44 Pac. 
 320, 32: 193 
 
 3S9. The ejection for refusal to pay a sec- 
 ond far?, of a passenger who, after paying 
 fare within a station, has boarded a car 
 that has left the station and is standing a 
 few feet outside of it. and who would other- 
 wise have to wait twenty minutes for an- 
 other car, is an unreasonable and arbitrary 
 enforcement of a rule of the company re-
 
 CARRIERS, II. a, 5. 
 
 365 
 
 quiring passengers to board the cars within 
 the station or pay another fare if they 
 board them beyond the station limits, and 
 will subject the company to liability for in- 
 juries sustained in consequence of the ejec- 
 tion, where the conductor knows that he 
 has already paid fare at the station. Nash- 
 ville Street Ry. Co. v. Griffin, 104 Tenn. 81, 
 57 S. W. 153, 49:451 
 
 390. The rule that a conductor cannot be 
 required to rely on the word of one who en- 
 ters a train without a ticket, as to a con- 
 tract entitling him to carriage, but that 
 the passenger should provide himself with 
 another ticket and sue for breach of con- 
 tract if he was wrongfully deprived of the 
 old one, does not apply where the conductor, 
 before ejecting the passenger, applies to 
 headquarters for instructions. Scofield v. 
 Pennsylvania Co. 50 C. C. A. 553, 112 Fed. 
 855, ' % 56:224 
 Effect of subsequent willingness or offer to 
 
 pay. 
 For Editorial Notes, see infra, IV. 19. 
 
 391. A mere willingness of a passenger to 
 pay fare, without any tender or offer to 
 pay, when the conductor is about to put 
 him off after passing his destination in 
 spite of his request to be taken to the next 
 station, and when the conductor charges 
 him with trying to "bum" his way, is not 
 sufficient to place the conductor in the 
 wrong in ejecting him. Texas & P. R. Co. 
 v. James, 82 Tex. 306, 18 S. W. 589, 
 
 15:347 
 
 392. A passenger cannot avoid expulsion 
 by tendering fare while the train is being 
 stopped, or after the stoppage, with a view 
 to his expulsion, if he has made the stop 
 necessary by refusal of a rightful demand 
 for fare. Georgia Southern & F. R. Co. v. 
 Asmore. 88 Ga. 529, 11 So. 8, 18: 53 
 Duty to return ticket or unused portion of 
 
 fare. 
 
 393. The retention by a railroad conduc- 
 tor of a worthless ticket after he has stated 
 that it is worthless, although wrongful, does 
 not absolve the holder from the duty of 
 producing a valid one, or paying fare to 
 prevent ejection from the train. Elliott v. 
 Southern P. Co. 145 Cal. 441, 79 Pac. 420. 
 
 68: 393 
 
 394. In ejecting a person who has paid 
 fare or presented a ticket, taken up, for 
 failure to pay the fare of a child in his 
 charge, the conductor must first return or 
 offer to return the unused value of such 
 ticket or fare over and above the fares of 
 both for the distance already traveled; but 
 if the ticket is such that a stop over may be 
 had thereon the conductor may tender a 
 stop-over check instead of money. Lake 
 Shore & is. S. R. Co. v. Orndorff, 55 Ohio 
 St. 589. 45 N. E. 447, 38: 140 
 
 395. The fare paid by a parent who re- 
 fuses to pay the fare rightfully demanded 
 for a child in his custody must be returned 
 or tendered to the parent, or such part 
 thereof as may be unearned, before the child 
 ran lawfully be ejected from the train, since 
 the forcible ejection and removal of the 
 
 child for nonpayment of fare is in effect 
 the ejection and removal of the parent. 
 Braun v. Northern P. R. Co. 79 Minn. 404, 
 82 N. W. 675, 49: 319 
 
 c. At What Place. 
 
 See also supra, 77; infra, 425, 426. 
 
 For Editorial Notes, see infra, IV. 19. 
 
 395a. A railroad company which finds on 
 one of its trains a trespasser who has no 
 right to be there and whom it is entitled 
 to remove is not bound to carry him to a 
 regular station before ejecting him. Burch 
 v. Baltimore & P. R. Co. 3 App. D. C. 346, 
 
 26:129 
 
 396. The expulsion of a passenger for non- 
 payment of fare, at any place other than a 
 usual stopping-place or near a dwelling house 
 is forbidden by Wis. Rev. Stat. 1818, pro- 
 viding that if any passenger shall refuse to 
 pay his fare the conductor may put him 
 and his baggage off the cars, on stopping 
 the cars and using no unnecessary force, at 
 any usual stopping place or near any dwell- 
 ing house, as the conductor may elect. 
 Phettiplace v. Northern P. R. Co. 84 Wis. 
 412, 54 N. W. 1092, 20: 483 
 
 397. The statute (Fla. Laws, chap. 1987, 
 41) prohibit* the expulsion of a passen- 
 ger by a railroad company for nonpayment 
 of fare at any point other than a usual stop- 
 ping place, or near some dwelling house. 
 When, however, a passenger wantonly vio- 
 lates any other reasonable rule of a railroad 
 company, the obligation to transport him 
 ceases, and the company may expel him 
 from the train at any convenient and safe 
 point that may be selected by the officer in 
 charge, no more force being used than may 
 be necessary for such purpose. This is a 
 common -law right, and has not been re- 
 stricted by statute as in cases of nonpay- 
 ment of fare. South Florida R. Co. v. 
 Rhoads, 25 Fla. 40, 5 So. 633, 3: 733 
 Drunken passenger. 
 
 Question for Jury, as to. see Tri-il, 238. 
 For Editorial Notes, see infra, IV. 19. 
 
 398. The ejection from a train at ni^ht, of 
 a passenger known to be drunk and irre- 
 sponsible, at a place from which he can es- 
 cape only by following the roughly ballasted 
 railroad track and crossing cattle guaras on 
 one side and a bridge over a creek on the 
 other, renders the railroad company liable 
 where he is killed by another train soon 
 after. Louisville & N. R. Co. v. Johnson. 
 108 Ala. 62, 19 So. 51. 31: 372 
 
 399. A conductor was not negligent in 
 ejecting from a train, a short distance from 
 the station, within the yard limits, and near 
 dwelling houses, a man who, although ap- 
 parently intoxicated, was able to walk and 
 carry on intelligent conversation, although 
 he had been informed at the station that the 
 man was not fit to travel; where the man. 
 when asked for his fare, refused to pay it 
 or tell his destination. Korn v. Chesapeake 
 & O. R. Co. 62 C. C. A. 417, 125 Fed. 87. 
 
 63: 872
 
 S66 
 
 CARRIERS, II. a, 6. 
 
 6. Leaving at Destination; Stop Over. 
 
 Punitive Damages for Failure to Stop at 
 Station, see Damages, 82, 83. 
 
 Measure of Damages for Carrying Beyond 
 Station, see Damages, 216, 217. 
 
 Allegation as to Carrying Beyond Station, 
 see Pleading, 334. 
 
 Failure to Stop as Proximate Cause of In- 
 jury, see Proximate Cause, 69, 71, 76. 
 
 See also infra, 425, 483. 
 
 For Editorial Notes, see infra, IV. 23,24. 
 
 400. A passenger holding a ticket to a 
 flag station at which trains do not stop 
 unless signaled is not, in the absence of 
 some special reason therefor, required to 
 notify the conductor of his destination be- 
 fore being called upon to exhibit his ticket. 
 Chattanooga, R. & C. R. Co. v. Lyon, 89 
 Ga. 16, 15 S. E. 24, 15: 857 
 
 401. A sleeping car company is liable for 
 the mistake of its servants in awakening 
 passengers in its car, and causing them to 
 get off at a water tank half a mile from 
 the depot in the dark and rain, where they 
 were left by the train, when the consequent 
 exposure resulted in serious damage to them. 
 Pullman Palace Car Co. v. Smith, 79 Tex. 
 468, 14 S. W. 993, 13: 215 
 Train not stopping at destination. 
 
 402. A passenger going upon a railroad 
 train has a right to rely upon the repre- 
 sentations of a local ticket agent, and 
 upon those of the railroad company's agent 
 in charge thereof, that such train will 
 stop at a certain point to which he has pur- 
 chased a ticket and desires to ride, and the 
 company is liable in damages if he is com- 
 pelled to leave the train before arriving at 
 his destination, because by the general rules 
 of the company, unknown to the passenger, 
 such train is not scheduled to stop at such 
 station. Kansas City, Ft. S. & M. R; Co. 
 v. Little. 66 Kan. 378, 71 Pac. 820, 61: 122 
 
 403. The fact that one who asked a ticket 
 agent for a ticket on a limited or fast train 
 was refused a ticket because the train was 
 not allowed to stop at her destination is 
 sufficient notice to her that any agreement 
 the Conductor might afterwards make to 
 put her off at her destination would be a 
 violation of the rules of the company, so as 
 to exempt the company, which provided an- 
 other train which made stops at all sta- 
 tions, from liability, where she paid fare 
 to the conductor, who agreed to let her off 
 at, but carried her beyond, her destination. 
 Alabama G. S. R. Co. v. Carmichael, 90 Ala. 
 19, 8 So. 87, 9: 388 
 Duty to awake. 
 
 Allegations as to, see Pleading. 385. . 
 
 404. A passenger carried beyond his des- 
 tination while asleep is not entitled to a 
 free passage to the next station. Texas & 
 P. R. Co. v. James, 82 Tex. 306, 18 S. W. 
 589, 15: 347 
 
 405. The obligation to awaken and notify 
 a passenger in time for him to prepare safe- 
 ly and comfortably to leave tne train at 
 his destination is directly involved in his 
 contract for the use of a sleeping berth. 
 
 Pullman Palace Car Co. v. Smith, 79 Tex. 
 468, 14 S. W. 993, 13: 215 
 
 406. It is the duty of a railroad company " 
 toward a passenger holding a ticket to one 
 point and a sleeping-car ticket to another 
 at which she must change cars in order to 
 reach her destination, to awaken her in time 
 to make the jiecessary preparation for the 
 change in a suitable and decent manner up- 
 on reaching the station, or, failing so to do, 
 to hold the train for a sufficient time to 
 enable her to make such preparation as is 
 necessary to change cars without trepida- 
 tion or the exposure of her person to the 
 gaze of spectators, whether or not such duty 
 is stipulated in the contract of carriage. 
 McKeon v. Chicago, M. & St. P. R. Co. 94 
 Wis. 477, 69 N. W. 175, 35: 252 
 Stop over. 
 
 Statutory Right of, as Affecting Commerce. 
 
 see Commerce, -1. 
 See also supra, 386; infra, 676. 
 For Editorial Notes, see infra, IV. 22. 
 
 407. A conductor's refusal to honor a rail- 
 road ticket on the ground that It was out 
 of date will not prevent the carrier's setting 
 up the defense to an action for breach of 
 the contract that the passenger had without 
 right stopped at an intermediate point, and 
 attempted to continue his journey on the 
 same ticket. Louisville & N. R. Co. v. 
 Klyman, 108 Tenn. 304, 67 S. W. 472, 
 
 56: 769 
 
 408. A regular, full-rate, non-coupon rail- 
 road ticket is, in the absence of an agree- 
 ment to the contrary, good for a continu- 
 ous passage to destination only; and if the 
 journey necessitates a change of trains it 
 must be continued on the next available 
 train, or the .carrier may refuse to honor 
 the ticket. . . Id. 
 
 409. A ticket which is good for a contin- 
 uous passage only does not entitle a pas- 
 senger who voluntarily takes passage upon 
 a train which he must be held to have 
 known would not convey him to his destina- 
 tion, and who leaves that train at an inter- 
 mediate point, to be carried the remainder 
 of the journey on the train which he ought 
 to have taken in the first place. Gulf, C. 
 & S. F. R. Co. v. Henry, 84 Tex. 678, 19 
 S. W. 870, 16: 318 
 
 410. A passenger contracting for a stop- 
 over privilege is not bound to take notice 
 of a rule of the carrier, of which he is ig- 
 norant, which forbids the granting of such 
 privileges. Scofield v. Pennsylvania Co. 50 
 C. C. A. 553, 112 Fed. 855, 56:224 
 
 411. One having a contract for stop-over 
 privileges, which is assented to by the first 
 conductor to whom his ticket is presented, 
 is not guilty of negligence, as matter of 
 law, in attempting to continue his journey 
 without a ticket, when he has exercised his 
 privilege after the ticket has been taken up 
 by another conductor to whom he stated 
 the contract, since he may be justified in as- 
 suming that the facts will be reported to 
 the company and his right recognized. Id. 
 
 412. The right to ride to "destination or 
 any intermediate station, and from any in-
 
 CARRIERS, II. a, 7. 
 
 367 
 
 termediate station to the depot of destina- 
 tion," declared in Cal. Civ. Code, 4QO, to 
 be given by a railroad ticket, cannot be con- 
 strued to give merely the right to begin a 
 journey at an intermediate station, but in- 
 cludes the right of stopover. Robinson v. 
 Southern P. Co. 105 Cal. 526, 38 Pac. 94. 
 722, 28: 773 
 
 413. A railroad company cannot deprive a 
 passenger who pays the regular rates for a 
 ticket to a certain destination, entitling him 
 to go by a certain route, of his right given 
 by statute to stop over at an intermediate 
 point on such route by giving him a ticket 
 purporting to entitle him to transportation 
 to either the point of destination or the in- 
 termediate point. Id. 
 
 414. A passenger who leaves a train de- 
 layed by a wreck nearly all night, and waits 
 at a hotel for another train because he is 
 not well enough to remain on the^car, is en- 
 titled to pass the next day on the check 
 given him as a substitute for his ticket 
 by the first conductor, or at least upon pay- 
 ment of the regular fare; and, if put on' for 
 refusal to pay the extra charge required of 
 those who fail to procure tickets, he may 
 recover damages. Louisville & N. W. R. Co. 
 v. Wilsey, 11 Ky. L. Rep. 419 (Not to be 
 Rep.) 12 S. W. 275, 5: 855 
 
 415. If there are two or more regular 
 stopping places for trains in a city, where 
 passengers are allowed to enter and leave 
 trains, either of them may be chosen as the 
 place to stop off, under Cal. Civ. Code, 
 490, although no station-house is there lo- 
 cated. Robinson v. Southern P. Co. 105 Cal. 
 526. 38 Pac. 94, 722, 28: 773 
 
 416. The junction of a ferry and a rail- 
 road is an intermediate station within Cal. 
 Civ. Code, 490, giving the right of stop 
 over where a ticket is sold for transporta- 
 tion over both ferry and railroad. Id. 
 
 7. Disabled or Incompetent Passengers. 
 
 a. Duty or Negligence of Carrier. 
 
 (1) In General. 
 
 Termination of Carrier's Liability, see su- 
 pra. II. b. 4, 6. 
 
 Question for Jury as to, see Trial, 301. 
 See also supra, 161, 207; infra, 467, 476. 
 For Editorial Notes, see infra, IV. 16. 
 
 417. A railroad company which volunta- 
 rily accepts a passenger, without an at- 
 tendant, a person whose inability to care for 
 himself is apparent or made known at the 
 time to its servants, is negligent if it fails 
 to render such passenger the necessary care 
 and assistance. Croom v. Chicago, M. & St. 
 P. R. Co. 52 Minn. 296, 53 N. W. 1128, 
 
 18: 002 
 
 418. A railroad company is chargeable 
 with the knowledge of its conductor and 
 baggageman as to the helpless condition of 
 a passenger riding in the baggage car. 
 Wheeler v. Grand Trunk R. Co. 70 N. H. 
 607, 50 Atl. 103, 54: 955 
 
 Sick passengers. 
 
 Proximate Cnuse of Injury to, see Proxi- 
 mate Cause, 71. 
 
 See also supra, 357-360; infra, 4G9, 483. 
 For Editorial Notes, see infra, IV. 10. 
 
 419. Knowledge communicated to the con- 
 ductor of a train, that a passenger is feeble 
 and will need assistance in getting off, is 
 notice to the carrier; and it is not necessary 
 to notify every other conductor and train- 
 IwTid that may be in charge of the train. 
 Foss v. Boston & M. R. Co. 66 N. H. 256, 21 
 Atl. 222, 11: 367 
 
 420-422. A passenger who becomes sick on 
 a railroad train is entitled to such care from 
 the carrier as is fairly practicable for it to 
 give with the facilities at hand, without 
 thereby unduly delaying the train or unrea- 
 sonably interfering with the safety and 
 comfort of other passengers. Lake Shore & 
 M. S. R. Co. v. Salzman, 52 Ohio St. 558, 
 40 N. E. 891, 31: 261 
 
 423. A passenger who, through sudden ill- 
 ness, becomes less able to look after his own 
 safety, and makes that fact known to the 
 proper agent of the carrier, is entitled to a 
 greater degree of care than is demanded in 
 ordinary circu,mstance. McCann v. New- 
 ark & S. 0. R. Co. (N. J. Err. at App.) 58 N. 
 J. L. 642, 34 Atl. 1052, 33: 127 
 
 424. A conductor's failure to stop a street 
 car when twice requested by a girl who had 
 become suddenly ill and who asked to get 
 off, and his failure to afford her such reason- 
 able attention as would save her from harm 
 because of her detention in the moving ve- 
 hicle, constitute negligence. Id. 
 
 425. A railroad company which carries a 
 sick passenger past his destination while un- 
 conseious, although the conductor and sta- 
 tion agent have agreed to give him care on 
 the way and have him carried from the train 
 at his destination, and puts him off in fact 
 at a small way station, where he is left 
 nearly forty hours, without care and atten- 
 tion, and then brought back to his destina- 
 tion is liable for the injuries which result 
 to him therefrom. Weightman v. Louisville, 
 N. 0. & T. R. Co. 70 Miss. 563, 12 So. 586, 
 
 19: 671 
 
 426. It is the duty of a carrier, on remov- 
 ing a passenger with a contagious disease 
 from a train, to put him off at some place 
 where he can find accommodations and med- 
 ical attendance, or where there is reasonable 
 ground to believe that he can do so. Pad- 
 dock v. Atchison, T. & S. F. R. Co. 37 Fed. 
 841, 4: 231 
 
 427. A carrier is not liable for the death 
 of a passenger who was sick, but supposed 
 to be under the influence of liquor, and who 
 was helped from the car at the terminus of 
 the route, and led by the conductor to the 
 front of the station, at or near the public 
 street where the way was open in the di- 
 rection that the passenger wished to go, but 
 who. after the conductor had started on his 
 outward trip, turned and went towards the 
 back of the station, and subsequently slipped 
 down between the wheels of a moving car.
 
 368 
 
 CARRIERS, II. a. 7. 
 
 Bageard v. Consolidated Traction Co. (N. J. 
 Err. & App.) 64 N. J. L. 316, 45 Atl. 620, 
 
 49 : 424 
 
 Injured passengers. 
 Proximate Cause of Injury to. see Proximate. 
 
 Cause, 66, 74. 
 
 Question for Jury as to, see Trial, 298-300. 
 See also supra, 147, 151-153, 346-350, 353- 
 
 356, 427. 
 
 428. A railroad company is under a duty 
 to a passenger who is thrown on its tracks 
 by the fault of its servant, producing men- 
 tal incapacity, to take steps to prevent in- 
 jury to him from the danger it knows he 
 is likely to incur from its trains. Cin- 
 cinnati. I. St. L. & C. R. Co. v. Cooper, 120 
 Ind. 469, 22 N. E. 340, 6: 241 
 
 429. Failure to stop a train and remove 
 from the track one who has stepped or fall- 
 en from the train while it is going at high 
 speed, and is helpless upon the track, where 
 this can be done without danger or any con- 
 siderable inconvenience, or to notify those 
 in charge of another train of his exposed 
 condition, which can be done by telegram be- 
 fore the other train has left the nearest sta- 
 tion, will render the railroad company lia- 
 ble for the death of such person, where he is 
 killed by the following train, although those 
 in charge of it are not guilty of negligence. 
 Cincinnati, H. & D. R. Co. v. Kassen, 49 Ohio 
 St. 230, 31 N. E. 282, 16: 674 
 Intoxicated passengers. 
 
 430. 'ihat incapacity of a passenger is 
 caus?d bv his voluntary intoxication will not 
 absolve the carrier, upon discovering it, from 
 using due care to prevent his being injured 
 because he has placed himself in a danger- 
 ous position without ability to care for him- 
 self. Wheeler y. Grand Trunk R. Co. 70 N. 
 H. 607, 50 Atl. 103, 54: 955 
 
 431. A railroad company is liable for in- 
 juries to a drunken passenger caused by his 
 fall from the door of a baggage car, near 
 which he was permitted to dance and stag- 
 ger, if, by exercising the care the situatio'n 
 required, it could have prevented the injury, 
 and the passenger could not avoid it, al- 
 though his inability resulted from his vol- 
 untary intoxication. Id. 
 
 432. The duty of a carrier to protect an 
 intoxicated mssenser from falling from an 
 exposed position on the cars is not changed 
 by the fact that the intoxication is in viola- 
 tion of a statute. Id. 
 
 433. The dutv of a railroad company may 
 be found by the jury to include the doing 
 of something to prevent injury to a drunken 
 passenger who is in a dangerous position, 
 the danger of which it knows he is ignorant 
 of and powerless to avoid. Id. 
 
 434. A railroad company cannot be held 
 free from fault if its employees in charge of 
 a trnin knowingly permit a person who is 
 beastly drunk to go out alone upon the plat- 
 form of a moving car. Fox \. Michigan 
 C. R. Co. 138 Mich. 433. 101 N. W. 624, 
 
 68: 336 
 
 435. The intoxication of a passenger 
 standing on the running board of a street 
 car will not absolve the company from ex- 
 ercising care toward him, or prevent his re- 
 
 covering damages in case he is injured by its 
 negligence. Kingston v. Fort Wayne & E. R. 
 Co. 112 Mich. 40, 70 N. W. 315, " 40: 131 
 
 436. The failure of a conductor to compel 
 a young man twenty years of age who was 
 somewhat under the influence of liquor to 
 enter a car after he had declined to do so 
 and persisted in riding on the platform will 
 not render the carrier liable for his in- 
 juries when thrown from the car, if the con- 
 ductor did not think he wq,s suflficiently 
 drunk to be unable to care for himself, al- 
 though the young man's father asked the 
 conductor to get him to come in. Fisher v. 
 West Virginia & P. R. Co. 42 W. Va. 183, 
 24 S. E. 570, 33: 69 
 
 437. The carrier is not liable for injury to 
 a passenger who had been drinking, and 
 who, after refusing to go inside the car on 
 the conductor's request, goes down without 
 his knowledge on the steps of the car and 
 falls overboard, where the conductor does 
 not know that he is so much under the in- 
 fluence of liquor as to be incapable of tak- 
 ing care of himself. Fisher v. West Vir- 
 ginia & P. R. Co. 39 W. Va. 366, 19 S. E. 
 578, 23: 758 
 
 438. The conductor of a train, knowing 
 that a passenger standing on the platform 
 of a car is intoxicated, should call his atten- 
 tion to the rules of the company forbidding 
 such exposure, and invite him to go inside 
 of the car. Id. 
 
 439. A person who, from the voluntary 
 use of intoxicants, is incapable of protect- 
 ing himself, cannot, by entering a train 
 from which he is forbidden, and without the 
 knowledge or consent of the conductor, im- 
 pose on the railway company any duty be- 
 yond ordinary care to protect him from 
 injury while ^ipon the train and to leave 
 him in a reasonably safe condition. Mis- 
 souri P. R. Co. v. Evans, 71 Tex. 361, 9 S. 
 W. 325, 1 : 476 
 
 440. The drunken condition of a passen- 
 ger will not excuse a carrier for negligently 
 leaving him exposed on a railroad track, 
 where he had fallen from a train through 
 the fault of the carrier, and was in conse- 
 quence dazed and his mental faculties im- 
 paired. Cincinnati, I. St. L. & C. R. Co. v. 
 Cooper, 120 Ind. 469, 22 N. E. 340, 6: 241 
 
 441. A railroad company which accepted 
 a drunken man as a passenger, negligently 
 carried him beyond his destination, and put 
 him off at another station, from the depot 
 of which he was ejected although the night 
 was cold and stormy, is liable in damages 
 to his widow for his death, where he died 
 from exposure while attempting to find shel- 
 ter. Haug v. Great Northern R. Co. 8 N. 
 D. 23, 77 N. W. 97, 42: 664 
 
 (2) Duty to Receive. 
 
 Person under influence of cocaine. 
 
 442. Knowledge of a station agent that 
 a person desiring to board a train is under 
 the influence of cocaine is not imputable to 
 the company, since it is not his duty to 
 pass upon the effect of that condition upon
 
 CARRIERS, II. a, 8. 
 
 369 
 
 the passenger's fitness to travel. Korn v. 
 Chesapeake & 0. R. Co. 62 C. C. A. 417, 125 
 Fed. 897, 63: 872 
 
 443. That a person is known to be under 
 the influence of cocaine does not require the 
 conductor of a train to refuse to permit 
 him to enter the train when there is nothing 
 in his condition or conduct to indicate 
 that he is not fit to care for himself. Id. 
 Insane persons. 
 
 444. Common carriers cannot absolutely 
 refuse to transport persons who are insane, 
 but may in all cases insist that they be 
 properly attended, safely guarded, and se- 
 curely restrained. Owens v. Macon & B. R. 
 Co. 119 Ga. 230, 46 S. E. 87, 63: 946 
 
 445. Where it becomes necessary to trans- 
 port a lunatic who by reason of his vio- 
 lence may endanger the safety or interfere 
 with the comfort of other travelers, the 
 carrier is entitled to seasonable* notice, in 
 order that it may make proper arrange- 
 ments for his transportation. Id. 
 
 446. The right of other travelers to a 
 safe and comfortable passage warrants a 
 carrier in refusing to receive one who has 
 been adjudged a lunatic, and who, though 
 in charge of attendants, is loudly cursing 
 and using obscene language at the time of 
 boarding the car. Id. 
 Blind person. 
 
 447. A common carrier cannot refuse to 
 accept, a person as a passenger merely be- 
 cause he is blind. Zachery v. Mobile & 0. 
 R. Co. 74 Miss. 520, 21 So. 246, 36: 546 
 
 448. The blindness of a person does not 
 justify his rejection as a passenger of a 
 railroad when unaccompanied by some other 
 person, unless he is otherwise incompetent 
 to travel alone. Zackery v. Mobile & O. R. 
 Co. ,75 Miss. 746, 23 So. 434, 41 : 385 
 
 449. A carrier is liable in damages for re- 
 fusal to accept as a passenger a blind per- 
 son who tenders fare and brings to the car- 
 rier's notice proof of capacity to travel with- 
 out requiring more care from the carrier 
 than the law requires it to bestow upon all 
 passengers alike. Illinois C. R. Co. v. Smith, 
 85 Miss. 349, 37 So. 643, 70: 642 
 
 450. A blind person is entitled to trans- 
 portation upon a railroad upon tender of 
 fare, without an attendant, if, as matter 
 of fact, he is competent to travel alone 
 without requiring other care than that 
 which the law requires the carrier to be- 
 stow upon all its passengers alike. Id. 
 
 451. A carrier cannot be held liable for 
 failure to receive as a passenger an unat- 
 tended blind person, in the absence of any 
 notice to it or knowledge on its part of 
 his competency to travel unattended. Id. 
 
 6. Contributory Negligence. 
 
 Question for Jury as to, see Trial, 314, 335. 
 
 See also supra, 430-441. 
 
 For Editorial Notes, see infra, IV. 29. 
 
 452. The self-inflicted disability of intox- 
 ication will not excuse a passenger from 
 the exercise of such care as is due from a 
 sober man. Fisher v. West Virginia & P. 
 R. Co. 42 W. Va. 183, 24 S. E. 570, 33: 69 
 
 L.R.A. Dig 24. 
 
 453. The rule of contributory negligence 
 does not apply to an injury to a drunken 
 passenger by falling from a train while 
 staggering and dancing between the open 
 doors of the baggage car, where, with 
 knowledge on the part of the carrier of his 
 inability to realize his danger and to care 
 for himself, it makes no effort to protect 
 him from injury. Wheeler v. Grand Trunk 
 R. Co. 70 N. H. 607, 50 Atl. 103, 54: 955 
 
 8. Getting On or Off 
 a. Duty or Negligence of Carrier. 
 
 Negligence in Permitting Children to Get 
 on While Moving, see Negligence, 133. 
 Question for Jury as to, see Trial, 291a. 
 See also supra, 212, 213, 221-226. 
 For Editorial Notes, see infra, IV. 27. 
 
 454. The degree of care required of a car- 
 rier in stopping at stations for passengers 
 to alight is such as persons of the great- 
 est care and prudence would use in similar 
 cases. Texas & P. R. Co. v. Miller, 79 Tex. 
 78, 15 S. W. 264, 11: 395 
 
 455. A railroad company stopping a pas- 
 senger car at a point where there is no plat- 
 form owes a passenger, not only a reason- 
 ably safe appliance for enabling her to 
 alight, but the safest that has been known 
 and tested. Missouri P. R. Co. v. Wortham, 
 73 Tex. 25, 10 S. W. 741, 3: 368 
 
 456. Those in charge of a railroad train 
 are bound to warn passengers about to 
 alight from it of danger of possible injury 
 in case an altercation has taken place be- 
 tween the railroad employees and another 
 passenger which has resulted in an exhibi- 
 tion of, and apparent intention to use, dead- 
 ly weapons after the latter passenger has 
 left the train. Penny v. Atlantic Coast Line 
 R. Co. 133 N. C. 221, 45 S. E. 563, 63: 497 
 
 457. The negligent and terrifying acts and 
 exclamations of a brakeman on a train car- 
 rying both freight and passengers, made in 
 a car containing passengers from which 
 they may reasonably infer that a wreck of 
 the train is imminent, and which caused 
 them to jump from the train, render the car- 
 rier liable for injuries received in thus jump- 
 ing, although the brakeman had no express 
 duty to perform in or about such car or in 
 the direction of passengers. Ephland v. Mis- 
 souri P. R. Co. 137 Mo. 187, 37 S. W. 820, 
 
 35: 107 
 
 Children jumping on and off trains. 
 See also supra, 167; infra, 516. 
 For Editorial Notes, see infra, IV. 27. 
 
 458. A railroad company is liable for in- 
 jury to a child of immature years who gets 
 upon the running board of an engine as it 
 enters a playground, according to a general 
 custom of children playing there, well 
 known to the railroad employees, and who 
 is injured while attempting to jump there- 
 from at a point where children have been, 
 for a long time previous, in the habit of 
 alighting, even though the employees in 
 charge of the train have no actual knowl- 
 edge of the child's presence upon the en-
 
 370 
 
 CARRIERS, II. a, 8. 
 
 gine, sinoe, under the circumstances, they 
 should anticipate the presence of children 
 upon the train, and take measures to pro- 
 tect them. Ashworth v. Southern R. Co. 
 116 Ga. 635, 43 S. E. 36, 59: 592 
 
 459. Where a number of children ranging 
 in age from six to fifteen years are, with 
 the knowledge and without the disapproval 
 of the employees of a railroad company in 
 charge of its trains, permitted to board 
 and ride upon the trains while they are 
 passing over a side track through a play- 
 ground of the children to a point beyond, 
 and while they are returning from such 
 point to the main line of the road, the chil- 
 dren alighting from the trains at the limits 
 of the playground, both going and return- 
 ing; and this custom is a continuous one. 
 it is the duty of the employees of a train 
 who are aware of this custom, to anticipate 
 that when the train enters the playground 
 the children will attempt to ride upon it and 
 alight from it at the point where they have 
 been accustomed to do so; and they are 
 under a further duty, consequent upon the 
 first, to take proper measures to prevent in- 
 jury to such children. Id. 
 Waiting for passenger to reach seat. 
 
 For Editorial Notes, see infra, IV. 26. 
 
 460. A train may be started without wait- 
 ing for a passenger to reach a seat after 
 entering the vehicle, unless there is some 
 special reason to the contrary. Louisville 
 & N. R. Co. v. Hale, 102 Ky. 600, 44 S. W. 
 213, 42: 293 
 
 461. A street car company which stops 
 its car for the purpose of receiving passen- 
 gers is charged with the highest degree of 
 care to see. before starting the car, that all 
 passengers lawfully entering the car get to 
 a place of safety thereon. Normile v. 
 Wheeling Traction Co. 57 W. Va. 132, 49 
 S. E. 1030, 68: 901 
 
 462. A railroad train may be started 
 without waiting for a passenger to reach a 
 seat after he has entered the vehicle, unless 
 there is some special reason to the contrary, 
 as in the case of a weak or lame person. 
 Yarnell v. Kansas City, Ft. S. & M. R. Co. 
 113 Mo. 570, 21 S. W. 1, 18: 599 
 
 463. A street car company is liable for 
 injury to a passenger caused by starting the 
 car after he has got on the step or foot- 
 board, before he has a reasonable oppor- 
 tunity to reach a safe place. Steeg v. St. 
 Paul City R. Co. 50 Minn. 149, 52 N. W. 
 393, 16: 379 
 
 464. The conductor of a street car must 
 see that a passenger entering the car is in a 
 place of safety before he gives the signal to 
 proceed ; and the passenger is entitled to 
 damages if he is thrown down and injured 
 by the premature starting of the car. 
 Akersloot v. Second Ave. R. Co. 131 N. Y. 
 599, 30 N. E. 195. 15: 489 
 Announcing stations. 
 
 Error in Instruction as to Awakening Pas- 
 soncrer on Sleeper, see Appeal and Error, 
 1023. 1024. 
 
 See also infra. 481, 491. 
 
 For Editorial Notes, see infra, IV. 23. 
 
 465. While it is the duty of a railway 
 
 company to duly announce to passengers the 
 approach of its trains to regular stations, in 
 order that they may be prepared to alight 
 promptly at their respective points of desti- 
 nation, yet a failure to comply with this 
 duty cannot count against the company, 
 relatively to a passenger who is in no way 
 misled thereby. Southern R. Co. v. Hobbs, 
 118 Ga. 227, 45 S. E. 23, 63: 68 
 
 Assistance to passengers. 
 Question for Jury as to, see Trial, 296. 
 See also infra, 490. 
 For Editorial Notes, see infra, IV. 27. 
 
 466. Alighting from the train and assist- 
 ing passengers to enter it are no part of the 
 duty of the employees^on a passenger train, 
 where access to the cars is easy, a neglect 
 of which, resulting in injury, can be the 
 basis of an action. Yarnell v. Kansas City, 
 Ft. S. & M. R. Co. 113 Mo. 570, 21 S. W. 1, 
 
 18: 599 
 
 467. A passenger has a right to rely on 
 the assistance offered by the conductor and 
 brakeman, where, in getting off a train, she 
 is in a flustered state of mind and in fear 
 of being carried beyond her destination, so 
 that she does not notice the distance of the 
 car step from the ground; and if in such 
 circumstances they fail to assist her from 
 the car without injury, it is the fault of the 
 carrier. Foss v. Boston & M. R. Co. 66 N. 
 H. 256, 21 Atl. 222, 11: 367 
 
 468. A custom on the part of railroad 
 conductors to lend special assistance to 
 women passengers when traveling unattend- 
 ed is not binding on the carriers, unless 
 the company's officials have knowledge 
 thereof and recognized it as entering into 
 the contracts of carriage made with pur- 
 chasers of tickets. Southern R. Co. v. 
 Hobbs, 118 Ga. 227, 45 S. E. 23, 63: 68 
 
 469. A promise by a conductor to assist 
 a passenger who, to his knowledge is par- 
 tially blind, in alighting from the train 
 when it reaches her destination, does not 
 amount to an undertaking on the part of 
 the conductor to enter the car in which the 
 passenger is riding, assume charge of her 
 bundles, and escort her from her seat, down 
 the aisle, and out upon the platform, un- 
 less the passenger is so helpless as to re- 
 quire this extraordinary attention, and the 
 conductor has notice that such is the case. 
 
 Id. 
 
 470. A trainman attempting to assist a 
 woman to get aboard after the train has 
 moved away from the platform and then 
 stopped for her where the ground is so 
 low that she cannot get on without assist- 
 ance may be found by the jury to be acting 
 within the scope of his duty so as to render 
 the carrier liable for his negligence. West- 
 ern & A. R. Co. v. Voils, 98 Ga. 446, 26 S. E. 
 483. 35: 655 
 
 471. It is the duty of a railroad company 
 which furnishes a box for passengers to 
 alight upon, at a point where there is no 
 platform, at least to render such assistance 
 to passengers as to make the box as safe 
 as a platform would have been. Missouri 
 P. R. Co. v. Wortham, 73 Tex. 25, 10 S. W. 
 741, 3: 368
 
 CARRIERS, II. a, 8. 
 
 371 
 
 472. A stool in the shape of a box, about 
 11 inches square on the top and somewhat 
 larger at the bottom, which is capable of 
 being overturned at least by an incautious 
 step, and which is furnished by a railroad 
 company for a passenger to alight upon, at 
 a place where there is no platform, may be 
 found by a jury to be not such a substitute 
 for a platform as it is the duty of the com- 
 pany to furnish, without regard to the time 
 it has been used and the number of persons 
 who have passed over it securely, or expert 
 opinion as to its safety. Id. 
 Duty toward person assisting passenger. 
 For Editorial Notes, see infra, IV. 27. 
 
 473. If train employees offer to assist a 
 lady and child to a seat and to care for their 
 hand baggage, another person has no right 
 to enter the car to assist them; and, if 
 he does so, the carrier owes him nq duty ex- 
 cept to refrain from wilful or wanton in- 
 jury to him. Little Rock & Ft. S. R. Co. 
 v. Lawton, 55 Ark. 428, 18 S. W. 543, 
 
 15: 434 
 
 474. One who goes upon a train to render 
 necessary assistance to a passenger, in con- 
 formity to a practice approved or acquiesced 
 in by the carrier, is entitled to a reasonable 
 time after rendering the assistance to leave 
 the car, if the carrier has notice that he 
 wishes to get off. Id. 
 
 475. Failure of a train to stop the full 
 length of time that is usually required for 
 passengers to get on and off at that place 
 will give no right of action to a person in- 
 jured in getting off after going an the train 
 to assist a lady and child to a seat, provided 
 he had a reasonable time to get off. Id. 
 
 476. The fact that a woman getting into 
 a car is fleshy and encumbered with a num- 
 ber of children, when she has an escort with 
 her, is not sufficient notice to the conductor 
 of an infirmity which requires him to wait 
 until she reaches a seat before starting the 
 train. Louisville & N. R. Co. v. Hale, 102 
 Ky. 600, 44 S. W. 213, 42: 293 
 
 477. Time need not be given for a per- 
 son who has entered a railroad train merely 
 to assist passengers in getting on to leave 
 the train, where no notice is given of his 
 intent to get off. Yarnell v. Kansas City, 
 Ft. S. & M. R. Co. 113 Mo. 570, 21 S. W. 1, 
 
 18: 599 
 
 Allowing time to alight. 
 See also supra, 474-477. 
 For Editorial Notes, see infra, IV. 26. 
 
 478. A carrier is liable for injuries to a 
 passenger in alighting from a train, caused 
 by the starting of the train with a jerk 
 without giving sufficient time to alight in 
 safety. Texas & P. R. Co. v. Miller, 79 Tex. 
 78, 15 S. W. 264, 11: 395 
 
 479. Stopping a train drawn by a dummy 
 engine, with no regular stopping place, for 
 a reasonable time on request to stop, is not 
 the full measure of the conductor's duty, 
 but before starting he must see that no 
 passenger is in the act of alighting or in a 
 position that will be perilous if the train 
 starts. Highland Ave. & B. R. Co. v. Burt. 
 92 Ala, 291, 9 So. 410, 13: 95 
 
 480. Starting a train without notice or 
 
 warning is negligence, where it has not 
 stopped a reasonable length of time for pas- 
 sengers to get on and off. Carr v. Eel Riv- 
 er & E. R. Co. 98 Cal. 366, 33 Pac. 213, 
 
 21 : 354 
 
 481. A railroad company is liable to a 
 passenger on a freight train for violently 
 jerking the train after a passenger has 
 arisen in the car to alight just as it stops 
 at the station platform after the station 
 had been announced in the usual manner. 
 Chicago & A. R. Co. v. Arnol, 144 111. 261, 
 33 N. E. 204, 19: 313 
 
 482. A passenger on a railroad train, with 
 a ticket for a station at which it is custom- 
 ary for the train not to stop, but to slow 
 its movement so as to allow passengers to 
 alight, will be entitled to damages if, called 
 to the platform by the announcement of the 
 station, he is thrown from the steps of the 
 car and injured, his fall being caused by the 
 sudden increase of the speed of the 
 train when it should have been slowed or 
 stopped. Brashear v. Houston, C. A. & N. R. 
 Co. 47 La. Ann. 735, 17 So. 260, 28: 811 
 
 483. Relatively to a female passenger on 
 a railway train, who is partially blind, and 
 who informs the conductor of her infirmity, 
 and requests him to assist her in alighting 
 from the train when it reaches her destina- 
 tion, which he promises to do, it is at least 
 the duty of the carrier to stop the train 
 at its station a sufficient length of time to 
 enable her, without undue haste, to leave 
 the train in safety; and if the conductor, 
 despite his promise, signals the train ahead 
 before the passenger has had a reasonable 
 opportunity to reach the platform of the 
 car, and in consequence she is carried beyond 
 the station, and then put off at a point 
 some distance therefrom, the carrier is lia- 
 ble to respond for all damages directly at- 
 tributable to the tortious conduct of its 
 conductor. Southern R. Co. v. Hobbs, 118 
 Ga. 227, 45 S. E. 23, 63: 68 
 
 484. A person who has rightfully entered 
 a pay car on the stopping of the train to 
 which it is attached is entitled to a rea- 
 sonable time for the transaction of his 
 business before the train is started, and to 
 a proper warning of the purpose to start 
 the train, to enable him to leave the car 
 in safety. New York, P. & N. R. Co. v. 
 Coulbourn, 69 Md. 360, 16 Atl. 208, 1 : 541 
 
 485. A passenger cannot recover for in- 
 juries received in alighting from a train be- 
 cause it started too soon, if it had stopped 
 a sufficient length of time to enable him 
 to alight in safety, and he had failed to use 
 reasonable diligence to leave the train. Tex- 
 as & P. R. Co. v. Miller, 79 Tex. 78, 15 S. 
 W. 264, 11: 395 
 Stopping at unusual place. 
 
 Question for Jury as to, see Trial, 295. 
 See also infra, 5lO. 
 
 486. A custom to take passengers on a 
 mixed freight and passenger train at a 
 distance from the station is not shown by 
 the fact that they cometimes got on there, 
 where no direction, authority, or consent to 
 do so is shown, except the direction of a 
 baggageman in a single instance, and the
 
 372 
 
 CARRIERS, II. a, 8. 
 
 fact that a flagman saw them board the 
 train, while it appears that the train, when 
 made up, always came to the station. Jones 
 v New York C. & H. R. R. Co. 156 N. Y. 
 187, 50 N. E. 856, 41 : 490 
 
 487. The sudden jolting of a passenger 
 car on a mixed train while the train was 
 being made up and a passenger was at- 
 tempting to enter the car at a distance 
 from the station, without the knowledge 
 of any person in control of the train, al- 
 though the station baggage-master knew 
 it, does, not render the railroad company 
 liable to the passenger for resulting inju- 
 ries, in the absence of any invitation to get 
 on th'j car at that place. Id. 
 
 48S. If a passenger-freight train is 
 stopped near a station, and the passengers 
 rightfully understand they are to leave the 
 train, the company is liable for the injuries 
 they may sustain in so doing, to the same 
 extent and upon the same ground as if 
 suffered from the defectiveness of its own 
 premises. New York, C. & St. L. R. Co. v. 
 Doane, 115 Ind. 435, 17 N. E. 913, 1: 157 
 
 489. A freight train accustomed to dis- 
 charge passengers away from Its platform, 
 or where it is impracticable to reach it, 
 may require them to leave at some con- 
 venient place. Id. 
 
 490. Where a passenger-freight train 
 stopped at an inconvenient place, a female 
 passenger was justified in supposing it 
 would stop at the platform, and, her pres- 
 ence being discovered as the train pass*ed 
 the station, it was negligence in the com- 
 pany not to return to the station or assist 
 her to alight from the train when it stopped, 
 or to reach the station in safety. Id. 
 
 491. Calling the name of a station, and 
 stopping the train soon after to take a 
 side track while another train passes, will 
 not make the carrier liable for injuries to 
 a passenger who attempts to get off at that 
 place, where all the surroundings indicate 
 that it is not the proper place for alight- 
 ing. Smith v. Georgia P. R. Co. 88 Ala. 538, 
 7 So. 119, 7: 323 
 Re-enteiing car which has been ferried 
 
 across river. 
 
 492. A railroad company is not bound to 
 warn passengers who have left its cars 
 while being ferried across a river of the dan- 
 ger of attempting to re-enter {hem after the 
 train has begun to move at a point where 
 it is necessary suddenly to increase the 
 speed to give momentum to ascend the in- 
 cline to the land. Allen v. Northern P. R. 
 Co. 35 Wash. 221, 77 Pac. 204, 66: 804 
 
 493. The sudden increase of the speed of 
 a train which has been ferried across a riv- 
 er, and which has moved at low speed some 
 distance from the point where it stopped on 
 the boat, in order to acquire momentum to 
 carry it up the incline to the land, is not 
 negligence per se with respect to a passen- 
 ger, who, having left the train, is attempt- 
 ing to re-enter it at the point where the 
 speed is increased, where the company has 
 no actual notice of such attempt. Id. 
 
 494. A passenger who attempts to re-en- 
 ter a train which he has left while it is 
 
 crossing a ferry, and is injured by being 
 thrown by a sudden starting forward of the 
 train against an appliance necessary for the 
 operation of the ferry, which is within 26 
 inches of the car, cannot charge the carrier 
 with negligence with respect to the location 
 of such appliance, where it had no reason 
 to believe that passengers would attempt to 
 enter the cars at that point, and no notice 
 of his attempt to do so. Id. 
 
 6. Contributory Negligence. 
 (1) In Getting On. 
 
 Evidence as to, see Evidence, 1901. 
 
 Ordinance Against, see Municipal Corpora- 
 tions, 256. 
 
 Question for Jury as to, see Trial, 97, 324, 
 325. 
 
 See also supra, 279, 287; infra, 503. 
 
 For Editorial Notes, see infra, IV. 29. 
 
 495. Attempting to get up on a slowly 
 moving train is not negligence per se. 
 Mills v. Missouri, K. & T. R. Co. 94 Tex. 
 242, 59 S. W. 874, 55: 497 
 
 496. It is not negligence per se for a pas- 
 senger to step from a station platform to a 
 train moving at the rate of 2 or 3 miles an 
 hour, in accordance with the direction of 
 the conductor, when there is nothing to in- 
 dicate anv unusual or peculiar danger. 
 Distler v. Long Island R. Co. 151 N. Y. 424, 
 45 N. E. 937, 35: 762 
 
 497. Negligence in stepping on to a train 
 in motion will not prevent a passenger from 
 recovering for injuries caused by his being 
 thrown from the train by a sudden jerk or 
 lurch, if this was the proximate cause of 
 the accident, and took place after he had 
 safely boarded the car and reached the top 
 step with one foot upon the platform. Id. 
 
 498. A municipal ordinance making it a 
 misdemeanor for one not an employee of the 
 railroad company to be found jumping or 
 swinging on or off from any moving train, 
 if applied to the case of a passenger attempt- 
 ing to board a train which has begun to 
 move, is void as beyond the power of the 
 municipality to enact. Mills v. Missouri, 
 K. & T. R. Co. 94 Tex. 242, 59 S. W. 874, 
 
 55: 497 
 
 499. Although it is not negligence on the 
 part of a passenger to attempt to board a 
 slowly moving car, he is not entitled to 
 hold the carrier liable for injuries received 
 in making the attempt, unless he showa 
 affirmatively that the injuries were due to 
 its negligence. Allen v. Northern P. R. Co. 
 35 Wash. 221, 77 Pac. 204, 66: 804 
 
 500. It is contributory negligence, as a 
 matter of law, for one under no coercion or 
 necessity, to attempt to get upon a moving 
 train, no matter what the speed, in a place 
 where a false step or a misstep would possi- 
 bly, if not certainly, be serious. Hunt- 
 er v. Cooperstown & S. V. R. Co. 126 N. 
 Y. 18, 26 N. E. 958. _ 12: 429 
 
 501. Endeavoring to board a train mov- 
 ing at the rate of 6 miles an hour is an act 
 of such danger as to prevent any recovery
 
 CARRIERS, II. a. 8. 
 
 873 
 
 from the railroad company for the death 
 of the person attempting it, even though the 
 train w8 evidently about to pass the sta- 
 tion where it was advertised to stop, and 
 where he was waiting for it, without stop- 
 ping, and the conductor called to him to 
 jump on if he was going. Hunter v. 
 Cooperstown & S. V. R. Co. 112 N. Y. 371, 
 19 N. E. 820, 2: 832 
 
 (2) In Getting Off. 
 
 Ordinance Against, see Municipal Corpora- 
 tions, 256, .257. 
 
 Question for Jury as to, see Trial, 326-336. 
 
 See also supra, 279a-286, 311-314, 453, 485. 
 
 For Editorial Notes, see infra, IV. 27, 
 29. 
 
 From ferryboat. 
 
 502. A passenger on a ferryboat on which 
 there are no animals or vehicles is not 
 guilty of negligence contributing to his in- 
 jury, in starting to pass from the boat by 
 the vehicle way when that is opened for 
 passengers by the persons in charge, so as 
 to prevent his recovery for injury by a run- 
 away horse which had escaped from its 
 stable yard at a distance from the ferry, 
 and had bolted into the ferry house and in- 
 to that driveway. Watson v. Camden & 
 A. R. Co. (N. ,T. Err. & App.) 55 N. J. L. 
 125, 26 Atl. 136, 19: 487 
 From moving street car. 
 
 See also infra, 526-530. 
 
 503. To board or depart from an electric 
 car while in motion is not negligence per 
 se. Cicero & P. Street R. Co. v. Meixner, 
 160 111. 320, 43 N. E. 823, 31: 331 
 
 504. Jumping from an electric car moving 
 at the rate of from 4 to 5 miles an hour is 
 contributory negligence as matter of law. 
 Jagger v. People's Street R. Co. 180 Pa, 436. 
 36 Atl. 867, 38: 786 
 
 505. The fact that a door in the side of 
 a grip car is open is no invitation to a pas- 
 senger to jump off while the car is running 
 at full speed. Weber v. Kansas City Cable 
 R. Co. 100 Mo. 194, 12 S. W. 804, 7: 819 
 In front of car on other track. 
 
 506. Stepping from a street car which is 
 slowing up, but is still in motion, in front of 
 an electric car coming from the opposite di- 
 rection at the rate of 15 miles an hour, and 
 which is lighted and can be plainly seen, 
 and the gong of which is ringing, is such 
 negligence as will prevent the liability of 
 the street car company for the resulting 
 death of a passenger, where there is noth- 
 ing to show that his senses are defective or 
 that he exercises any care or caution, al- 
 though his fellow passengers shout to him 
 to stop. Creamer v. West End Street R. 
 Co. 156 Mass. 320, 31 N. E. 391, 16: 490 
 
 507. A passenger who alights from a grip 
 car running at full speed, and is instantly 
 struck by a car running in the other di- 
 rection, which he can see if he looks for it, 
 is guilty of contributory negligence which 
 will prevent any recovery for his injuries. 
 Weber v. Kansas City Cable R. Co. 100 Mo. 
 194, 12 S. W. 804, 7:819 
 
 508. A passenger on a crowded street 
 car, whose view in front of the car is ob- 
 structed by standing passengers, is not guil- 
 ty of negligence, as matter of law, in step- 
 ping from the moving car upon the track 
 used by cars going in the opposite direction, 
 at a largely used street crossing in a popu- 
 lous city, when no signal of the approach 
 of a car on that track has been given. 
 Smith v. Union Trunk Line, 18 Wash. 351, 
 51 Pac. 400, 45: 169 
 On wrong side of car. 
 
 509. It is not negligence as matter of law 
 to attempt to alight from a car at a pleas- 
 ure resort station established by a street 
 railway company, on the side opposite to 
 that prepared for the reception of passen- 
 gers, if those in charge of the car have in- 
 vited an alighting on such opposite side. 
 Poole v. Consolidated Street R. Co. 100 
 Mich. 379, 59 N. W. 390, 25: 744 
 At place other than station. 
 
 Question for Jury as to, see Trial, 329, 332, 
 
 334. 
 For Editorial Notes, see infra, IV. 27. 
 
 510. A female passenger required to alight 
 from a freight train, beyond the station, 
 was not negligent in not discovering gates 
 into a private inclosure through which the 
 station might be reached by an unmarked 
 route; and the company is liable for in- 
 juries suffered by her falling while attempt- 
 ing to cross a cattle pit. New York, C. & 
 St. L. R. Co. v. Doane, 115 Ind. 435, 17. N. 
 E. 913, 1: 157 
 
 511. That a car has not reached the usual 
 stopping-place when a stop is made and a 
 passenger attempts to alight will not render 
 him guilty of negligence, if there was no 
 warning not to alight, and from the sur- 
 roundings a passenger might well have un- 
 derstood that the stop was made for that 
 purpose. Poole v. Consolidated Street R. 
 Co. 100 Mich. 379, 59 N. W. 390, 25: 744 
 From moving train generally. 
 
 As Proximate Cause of Injury, see Proxi- 
 mate Cause, 68. 
 
 Question for Jury as to, see Trial, 326-328. 
 
 For Editorial Notes, see infra, IV. 27, 
 29. 
 
 512. The attempt on the part of a passen- 
 ger to get off from a moving train, in the 
 absence of any evidence of necessity, ap- 
 parent or real, is contributory negligence as 
 a matter of law; and it is the duty of the 
 court to instruct the jury that he cannot 
 recover in an action for damages received 
 in making such attempt; and this is so in 
 a greater degree where the attempt is made 
 in disregard of a brakeman's warning not 
 to leave. New York, L. E. & W. R. Co. v. 
 Enches, 127 Pa. 316, 17 Atl. 991, 4: 432 
 
 513.. Jumping from the steps of a car 
 while the train is leaving a station is not 
 necessarily negligent, where the train has 
 not stopped a reasonable time to allow the 
 passenger to get off, and an ordinarily cau- 
 tious, careful, and prudent person would not 
 apprehend danger from the act. Carr v. 
 Eel River & E. R. Co. 98 Cal. 366, 33 Pac. 
 213, 21:354
 
 374 
 
 CARRIERS, II. a. 8. 
 
 514. A woman with an infant in her arms 
 on the steps of a car in the act of getting 
 off is not guilty of contributory negligence 
 in alighting after the car is in motion, 
 where, by starting while she was on the 
 steps, it compelled her to choose between 
 the danger of stepping off and of being 
 thrown off while trying to re-enter the car. 
 Odom v. St. Louis S. W. R. Co. 45 La, Ann. 
 1201, 14 So. 734, 23: 152 
 
 515. A bright boy nearly thirteen years 
 of age who is expert in jumping on and off 
 moving trains is chargeable with contribu- 
 tory negligence in attempting to get off a 
 train running at the rate of 20 miles an 
 hour. Howell v. Illinois C. R. Co. 75 Miss. 
 242, 21 So. 746, 36: 545 
 
 51G. Running a train at high speed in vio- 
 lation of law and in breach of the promise 
 of the engineer to a boy who attempted to 
 jump off will not render the railroad com- 
 pany liable for injury to the boy in at- 
 tempting to get off when he knew the dan- 
 ger. Id. 
 Failure to stop at station. 
 For Editorial Notes, see infra, IV. 27. 
 
 517. While it is the duty of a railroad 
 company to stop its train at a station to 
 which it has contracted to carry a passen- 
 ger, and to land him safely and con- 
 veniently, yet the fact that the company 
 neglects its duty and the train passes the 
 station without stopping does not justify 
 a passenger in jumping from the moving 
 train, unless expressly or impliedly invited 
 to do so by the employees of the company. 
 Walker v. Yicksburg, S. & P. R. Co. 41 La. 
 Ann. 705, 6 So. 916. 7: 111 
 
 518. Negligence of a passenger is not 
 shown by the fact that he was thrown from 
 a car on the side opposite his station, just 
 after it had passed the station without af- 
 fording opportunity to alight, and after he 
 had crossed to the other side under a rea- 
 sonable expectation that the train would be 
 slowed at a mill just beyond. Brashear v. 
 Houston. C. A. & X. R. Co. 47 La. Ann. 735, 
 17 So. 260, 28: 811 
 Order or advice of employees. 
 
 For Editorial Notes, see infra, IV. 27. 
 
 510. The unlawful act of a person in at- 
 tempting to steal a ride on a freight train 
 contributes to his injury in jumping off, 
 while the train is in motion, under the or- 
 ders and threats of a brakeman, even if the 
 latter are wrongful, where the trespasser, 
 instead of jumping off, could keep away 
 from the brakoman for a considerable time 
 at least, by going forward to the other end 
 of the train. Planz v. Boston & A. R. Co. 
 157 Mas?. 377, 32 N. E. 356, 17:835 
 
 520. One who jumps from a locomotive on 
 a freight tr.iin while it is running at a dan- 
 gerous speed, because he is told by the fire- 
 man that he will be arrested if he is found 
 thereon when the train stops, and who is 
 not a pnssenirer, but is riding on agreement 
 with the fireman to shovel coal for the 
 privilege of riding, is chargeable with neg- 
 ligence which will prevent any recovery for 
 injuries received in jumping off. Woolsey v. 
 
 Chicago, B. & Q. R. Co. 39 Neb. 798, 58 N. 
 W. 444, 25: 79 
 
 521. A threat in violent and insulting lan- 
 guage of the conductor, who has force at 
 his command to execute such threat, to 
 eject a person from the train by force if he 
 does not jump off, is sufficient compulsion 
 or show of force to excuse the person from 
 the charge of contributory negligence in so 
 jumping from the train. Boggess v. Chesa- 
 peake & O. R. Co. 37 W. Va. 297, 16 S. E. 
 525, 23: 777 
 To avoid apprehended danger. 
 
 Evidence as to, see Evidence, 1562-1564, 
 
 1903. 
 In Jumping from Public Carriage, see 
 
 Hacks, 2. 
 Question for Jury as to, see Trial, 315, 331, 
 
 333. 
 
 Instructions as to, see Trial, 665. 
 See also supra, 457. 
 For Editorial Notes, see infra, IV. 25, 29. 
 
 522. A reasonable cause of alarm occa- 
 sioned by the negligence or misconduct of 
 the carrier must have existed to render it 
 liable for injuries received by a passenger 
 vphile leaving a train in an effort to escape 
 an apprehended danger. St. Louis & S. F. 
 R. Co. v. Murray, 55 Ark. 248, 18 S. W. 50, 
 
 16: 787 
 
 523. The prudence of a passenger's leav- 
 ing a railway train to escape an apparent 
 danger must be judged by the circumstances 
 as they appeared to him at the time, and 
 not by the result. Id. 
 
 524. The impulsive and unguarded act of 
 a lady passenger, by which she is hurt, 
 while trying to escape from a car because 
 of a reasonable fear due to mismanagement 
 of the carrier, is to be deemed a conse- 
 quence of such mismanagement, for which 
 the carrier is responsible. Gannon v. New 
 York, N. H. & H. R. Co. 173 Mass. 40, 52 
 N. E. 1075, 43: 833 
 
 525. That those in charge of a railroad 
 train used sufficient precaution to prevent 
 collision with a train standing on the track 
 ahead of it, and no collision in fact oc- 
 curred, will not relieve the company from 
 liability for injuries received by a passenger 
 in leaving the forward train to avoid being 
 injured by the collision, which appeared to 
 him to be imminent. St. Louis & S. F. R. 
 
 :o. v. Murray, 55 Ark. 248, 18 S. W. 50, 
 
 16: 787 
 
 526. A passenger is not guilty of contrib- 
 utory negligence in jumping from a mov- 
 ing car to avoid an impending collision, if 
 ie acts from a well-grounded fear of im- 
 minent danger. Palmer v. Warren Street 
 R. Co. 206 Pa. 574, 56 Atl. 49, 63: 507 
 
 527. That a passenger jumps from a 
 street car to avoid injury by an impending 
 collision with another car does not deprive 
 lim of the benefit of the presumption that 
 ;he collision was the result of the carrier's 
 negligence. Id. 
 
 528. A street car company is not liable 
 'or an injury to a passenger in jumping 
 'rom the car under a reasonable apprehen- 
 sion of danger, where there was no real
 
 CARRIERS, II. a, 9. 
 
 375 
 
 danger and the apparent danger was caused 
 by the negligence of the gateman at the 
 railway crossing and his confusing and con- 
 tradictory warnings and signals without 
 any negligence of the driver of the street 
 car. Kleiber v. People's R. Co. 107 Mo. 
 240, 17 S. W. 946, 14: 613 
 
 529. A passenger upon a street car ap- 
 proaching a railroad crossing, which has 
 stopped 75 feet away from the crossing and 
 again started, is under no duty to be on 
 the lookout to learn if the railroad track 
 can be safely crossed and if by so doing he 
 can see an approaching locomotive, to jump 
 off, especially where he is crippled. 
 O'Toole v. Pittsburgh & L. E. R. Co. 158 Pa. 
 99, 27 Atl. 737, 22: 606 
 
 530. To jump from a street car which is 
 about to cross a railroad track is not con- 
 tributory negligence, as matter of law, suffi- 
 cient to defeat an action for injuries there- 
 by received, although such action proved to 
 be wrong, where the view of the track was 
 entirely cut off until the crossing was 
 reached, when an engine was seen approach- 
 ing only a short distance away, and the 
 gate keeper, who appeared greatly confused, 
 was lowering the gates so as to stop the 
 street car directly on the track, while the 
 actions of passengers and bystanders in- 
 dicnted an apprehension of imminent peril. 
 Kleiber v. People's R. Co. 107 Mo. 240. 17 
 S. W. 946, 14: 613 
 
 9. Safety of Approaches and Platforms. 
 
 a. In General. 
 (1) Carrier's Duty or Negligence. 
 
 Governmental Regulations as to Depots, 
 
 see infra, III. d. 
 Injury by Things Thrown by Baggageman 
 
 from Train, see Master and Servant, 
 
 650, 651. 
 
 Question for Jury as to, see Trial, 291-293. 
 See also supra, 25, 26, 28, 29, 221-226. 
 For Editorial Notes, see infra, IV. 8. 
 
 531. A carrier cannot delegate to another 
 the duty of seeing that the means of egress 
 from its terminal grounds are reasonably 
 safe. Cotant v. Boone Suburban R. Co. 125 
 Iowa, 46, 99 N. W. 115, 69: 982 
 
 532. A less degree of care is required of 
 a railroad company in regard to the condi- 
 tion of the approaches to its cars such as 
 platforms, halls, stairways, etc., than that 
 of the roadbed, machinery, etc.; the rule 
 being that, in regard to the former, the 
 company is bound simply to exercise ordi- 
 nary care in view of the dangers to be ap- 
 prehended. Kelly v. Manhattan R. Co. 112 
 N. Y. 443, 20 N. E. 383, 3: 74 
 
 533. A railway carrier must provide safe 
 means of access to and from its stations for 
 the use of passengers, and passengers have 
 the right to assume that the means pro- 
 vided are reasonably safe. Delaware, L. & 
 W. R. Co. v. Trautwein (N. J. Err. & App.) 
 52 N. J. L. 169, 19 Atl. 178, 7: 435 
 
 534. Passenger carriers are bound to ex- 
 
 ercise the utmost degree of care, skill, and 
 diligence consistent with the nature of their 
 business, in providing safe and convenient 
 modes of access to their trains and of de- 
 parture from them. Philadelphia, W. & B. 
 R. Co. v. Anderson, 72 Md. 519, 20 Atl. 2, 
 
 8: 673 
 
 Pennsylvania Co. v. Marien, 123 Ind. 415, 
 23 N. E. 973, 7 : 687 
 
 535. A carrier of passengers is under a 
 duty to provide and maintain safe alight- 
 ing places, and must respond in damages to 
 a passenger who, without contributory fault 
 on his part, is injured by a negligent failure 
 to perform such duty. Louisville, N. A. & 
 C. R. Co. v. Lucas, 119 Ind. 583, 21 N. E. 
 968, 6: 193 
 
 536. Fatal injuries to a person at a rail- 
 road station awaiting the arrival of a rel- 
 ative, at the place provided by the company 
 for that purpose, and while in the exercise 
 of due care and caution, render the railroad 
 company liable if caused by negligence of 
 its employees. Denver & R. G. R. Co. v. 
 Spencer. 27 Colo. 313, 61 Pac. 606, 51 : 121 
 
 537. A railroad company is not relieved 
 from liability for injury to its passenger 
 by reason of the unsafe condition of the 
 depot premises which the passenger must 
 use to reach its trains, by the fact that the 
 premises are used by, and in possession of. 
 a union depot company or its receiver, with 
 whom the railroad company contracts for 
 terminal facilities. Herrman v. Great 
 Northern R. Co. 27 Wash. 472, 68 Pac. 82. 
 
 57: 390 
 As to mail bags. 
 
 538. A railroad company must not per- 
 mit the continuance of dangerous habits of 
 a mail agent in delivering heavy packages 
 from the car in such manner as to endanger 
 persons lawfully on its premises. Shaw v. 
 Chicago & G. T. R. Co. 123 Mich. 629, 82 
 N. W. 618, 49: 308 
 
 539. Continuance, for a considerable 
 length of time, of a practice by mail agents 
 to deliver mail bags from the car in such a 
 manner as to endanger persons on the prem- 
 ises, will charge the carrier with notice. Id. 
 
 540. The fact that mail bags are thrown 
 on a station platform by postal clerks un- 
 der the control of the United States does 
 not relieve the carrier from the duty to 
 guard against accidents to passengers from 
 them. Sargent v. St. Louis & S. F. R. Co. 
 114 Mo. 348, 21 S. W. 823, 19: 460 
 As to stile. 
 
 541. A railway company which expressly 
 or by implication invites its passengers to 
 use a stile over a wire fence in leaving its 
 grounds is bound to use at least ordinary 
 care in seeing that it is fit for the purpose 
 intended, although the stile was not erected 
 by it, and the defective part is not on its 
 property, but where it has no right to go 
 to make inspection or repairs. Cotant v. 
 Boone Suburban R. Co. 125 Iowa, 46, 99 N. 
 W. 115.. 69: 982 
 As to toilet room. 
 
 542. A dangerous hole in the floor of a 
 toilet room in a railroad depot is evidence 
 of negligence on the part of the carrier.
 
 376 
 
 CARRIERS, II. a, 9. 
 
 Jordan v. New York, N. H. & H. R. Co. 165 
 
 Mass. 346, 43 N. E. Ill, 32: 101 
 
 Passageway. 
 
 Question for Jury as to, see Trial, 292, 294. 
 
 543. A railway company is not absolved 
 from the duty to keep a passageway held 
 out by it for use to and from its depot 
 reasonably safe, by the fact that another 
 passageway is provided. Delaware, L. & W. 
 R. Co. v. Trautwein (N. J. Err. & App.) 
 52 N. J. L. 169, 19 Atl. 178, 7: 435 
 
 544. It is the duty of a railroad company 
 to furnish a reasonably safe passage to and 
 from its mail cars, for the purpose of mail- 
 ing letters, while stopping at its regular 
 stations, when such company carries the 
 mail under a contract with the government 
 of the United States, by whose regulations 
 postal clerks on mail trains are required to 
 receive at the cars stamped letters and sell 
 stamps; and a failure to provide such pas- 
 sa^e is actionable negligence. Hale v. Grand 
 Trunk R. Co. 60 Vt. 605, 15 Atl. 300, 1: 187 
 
 545. The fact that an elevated walk to a 
 boat landing is upon a public street does not 
 relieve the carrier which maintains it from 
 liability for injuries caused by its danger- 
 ous condition, where the street has never 
 been opened as such, or used except by the 
 carrier and those doing business with it. 
 Skottowe v. Oregon S. L. & U. N. R. Co. 22 
 Or. 430, 30 Pac. 222, 16: 593 
 Stairway. 
 
 546. Where an elevated railroad company 
 has provided a suitable covering for the 
 staircase leading to its station, a rubber tip 
 for each step, and a hand rail on each side 
 to aid passengers in going up and down, its 
 failure to throw ashes or sawdust upon the 
 steps during the continuance of a storm of 
 sleet and snow which lasts from midnight 
 to 4 o'clock in the morning, and which ren- 
 ders the sidewalks very slippery, or to clean 
 off the steps within two hours after the ter- 
 mination of the storm, is not such negli- 
 gence as to render it liable for injuries re- 
 sulting to a passenger from falling upon the 
 *teps while attempting to descend them, 
 ospecially when he knows of the storm and 
 its effects. Kelly v. Manhattan R. Co. 112 
 \ T . Y. 443, 20 N. E. 383, 3: 74 
 Towards whom duty owed. 
 
 Duty towards Person Assisting Passenger 
 
 on or off Train, see supra, 473477. 
 See also supra, 177, 536; infra, 574-576. 
 For Editorial Notes, see infra, IV. 8. 
 
 547. A woman who goes to a railroad de- 
 pot in the night to see her husband off on a 
 freight train which does not carry passen- 
 srers, but on which he is carried under a 
 contract by which he ships some horses and 
 other freight, is a mere licensee to whom 
 the company owes no duty to keep lights 
 and railings on the station platform. Dowd 
 v. Chicago. Af. & St. P. R. Co. 84 Wis. 105, 
 54 N. W. 24. 20: 527 
 
 548. One who goes to a railroad station 
 and on tho platform as a mere spectator for 
 his own pleasure and convenience is there 
 at his own risk and peril, and cannot re- 
 cover for injuries received in consequence of 
 a defective platform, unless there is gross 
 
 and wanton negligence on the company's 
 part equivalent to intentional mischief. 
 Burbank v. Illinois C. R. Co. 42 La. Ann. 
 1156, 8 So. 580, 11: 720 
 
 549. A passenger on a steamboat, who has 
 purchased a ticket not entitling him to 
 meals, can properly go on shore for a meal 
 at any intermediate stopping place before 
 reaching his destination, and has a passen- 
 ger's right to protection during his egress, 
 in the proper manner, from the steamer for 
 that purpose. Dodge v. Boston & B. S. S. 
 Co. 118 Mass. 207, 19 N. E. 373, 2: 83 
 
 (2) Contributory Negligence. 
 
 Question for Jury as to, see Trial, 321. 
 See also supra, 533. 
 
 549a. Opening a station for the sale of 
 tickets upon a train which is about to pass 
 is an invitation to persons to come there if 
 they wish to take the train. Jordan v. 
 New York, N. H. & H. R. Co. 165 Mass. 
 346, 43 N. E. Ill, 32: 101 
 
 550. Passengers have a right to assume 
 that means of egress from the carrier's ter- 
 minal grounds are reasonably safe. Cotant 
 v. Boone Suburban R. Co. 125 Iowa, 46, 99 
 N. W. 115, 69: 982 
 
 551. A passenger has the right to assume 
 that the usual passage leading from the 
 ticket office of a railroad station to the 
 baggage room is safe for use for the purpose 
 of obtaining baggage to be checked, and the 
 use of it cannot be contributory negligence 
 merely because there is another way which 
 might be used without injury, when the 
 dangers of the used passageway are not 
 perceivable or avoidable by the passenger in 
 the exercise of ordinary care in the use of 
 the depot and passageway for the purposes 
 of the journey to be undertaken. Exton 
 v. Central R. Co. (N. J. Err. & App.) 63 
 N. J. L. 356, 46 Atl. 1099, 56: 508 
 
 552. When a proper place of exit for pas- 
 sengers from a steamer is provided, a warn- 
 ing to a passenger not to leave at another 
 part of the boat is a reasonable regulation 
 which the passenger is bound to obey; and 
 his disobedience thereof will, in the absence 
 of a good reason for it, prevent his recovery 
 from the carrier for an injury growing out 
 of it. Dodge v. Boston &' B. S. S. Co. 148 
 Mass. 207, 19 N. E. 373, 2: 83 
 
 553. A passenger is justified in using a 
 passageway held out by the carrier as a 
 means of entrance to and exit from the pub- 
 lic street; and it is immaterial whether 
 the way is made and kept in repair by the 
 carrier or other parties. Delaware, L. & W. 
 R. Co. v. Trautwein (N. J. Err. & App.) 
 52 N. J. L. 169, 19 Atl. 178, 7: 435 
 In toilet room. 
 
 554. Due care on the part of a lady who 
 is injured by falling through a dangerous 
 hole in the floor of an unlighted toilet room 
 in a railroad depot, the door to which was 
 open from the waiting room, may be found 
 by the jury, where she fell while feeling 
 with her hand for the seat. Jordan v. New 
 York, N. H. & H. R. Co. 165 Mass. 346. 43 
 N. E. Ill, 32: 101
 
 CARRIERS, II. a, 9. 
 
 377 
 
 555. The maintenance of a toilet room 
 opening out of a waiting room in a railroad 
 depot, for a long period of time, and leav- 
 ing the door of it open when persons enter 
 the depot for the purchase of tickets, al- 
 though there is no light in either room ex- 
 cept what comes from the ticket office, is an 
 invitation to a passenger to enter the toilet 
 room in case of a wish to use it. Id. 
 
 6. Platforms Generally. 
 
 For Editorial Notes, see infra, IV. 8. 
 
 550. A man standing on a station plat- 
 form waiting for a train after purchasing 
 a ticket, when he is struck and injured by 
 the body of a person killed by a passing 
 train, has no greater right of action than 
 if he had been injured at any other place 
 where he had a right to be.*. Wood v. 
 Pennsylvania R. Co. 177 Pa. 306, 35 Atl. 
 699, 35: 199 
 
 V>7. A railroad company which leaves the 
 platform of its depot in an unsafe condition 
 will be held to have contemplated the gen- 
 eral nature of any injuries to a passenger, 
 and it is not necessary that precisely such 
 an accident as actually occurred might be 
 anticipated. Louisville, N. A. & C. R. Co. 
 v. Lucas, 119 Ind. 583, 21 N. E. 968, 6: 193. 
 
 558. The extraordinary care required of a 
 railroad company in respect to passengers 
 on trains is required in respect to a bridge 
 or elevated platform on the railroad proper- 
 ty, which is used for an approach to the 
 station and over which persons are invited 
 to enter the premises for the purpose of 
 taking passage on trains, where it joins 
 an open trestle on the same level into which 
 persons are liable to walk while crossing 
 the bridge. Johns v. Charlotte, C. & A. R. 
 Co. 39 S. C. 162, 17 S. E. 698, 20: 520 
 
 559. A railroad company is liable for an 
 injury to a passenger resulting from an un- 
 safe condition of a platform of its depot, 
 notwithstanding the negligence, in not re- 
 pairing the platform, of another company 
 which used it jointly with itself. Louisville, 
 N. A. & C. R. Co. v. Lucas, 119 Ind. 583, 21 
 N. E. 968, 6: 193 
 In street. 
 
 See also infra, 573. 
 
 560. There is no negligence on the part 
 of a street car company in building in a 
 public street, for the accommodation of its 
 passengers, a platform around the stump 
 of a pole which had been left by an electric 
 light company, and which the railroad com- 
 pany had no right to remove, which will 
 render it liable to one who stumbles over 
 it and is injured in attempting to board a 
 car. Lucas 'v. St. Louis & S. R. Co. 174 
 Mo. 270, 73 S. W. 589, 61 : 452 
 
 5(51. A street car company does not main- 
 tain the stump of an electric light pole in 
 its platform so as to render it liable for 
 injuries thereby caused to a person attempt- 
 ing to board its car, where, for the accom- 
 modation of its passengers, it merely builds 
 in a public street a platform around the 
 stump, which had been left there by an 
 
 electric light company, and which it had no 
 right to remove. Id. 
 
 562. A street railway company which, for 
 the facilitation of its own business, con- 
 structs a platform along a street tempora- 
 rily submerged during a freshet, for the ac- 
 commodation of its passengers, is required 
 to make such walk reasonably safe, but not 
 to make it "as reasonably safe as possible." 
 Finseth v. City & S. R. Co. 32 Or. 1, 51 
 Pac. 84, 39: 517 
 Contributory negligence. 
 
 563. A passenger is under obligation to 
 look where he steps on the depot platform 
 at a small station, on which baggage and 
 mail bags are handled. Sargent v. St. Louis 
 & S. F. R. Co. 114 Mo. 348, 21 S. W. 823, 
 
 19: 460 
 
 564. Ordinary care is required of a pas- 
 senger in alighting from a train and leav- 
 ing the platform; and in the absence of 
 such care no recovery can be had for in- 
 juries sustained by falling over a raised por- 
 tion of the platform. Graham v. Penn- 
 sylvania Co. 139 Pa. 149, 21 Atl. 151, 12: 293 
 
 565. The fact that a person may have 
 seen a station platform out of repair at one 
 time does not bind him to carry such de- 
 fect in mind upon all future occasions when 
 approaching or leaving a train at such place. 
 Pennsylvania Co. v. Marien, 123 Ind. 415. 23 
 N. E. 973, 7: 687 
 
 566. A passenger is not bound to abandon 
 the use of a station platform which is not 
 in good repair, and seek some other way of 
 entering and leaving the cars, if it is still 
 held out hy the company as safe, and used 
 by the public. Id. 
 
 567. Knowledge of the unsafe condition of 
 a platform provided by a carrier for load- 
 ing stock will not prevent recovery for in- 
 juries to a person on attempting to use it 
 for that purpose in the exercise of due 
 care. White V; Cincinnati, N. O. & T. P. 
 R. Co. 89 Ky. 478, 12 S. W. 936, 7: 44 
 
 568. A passenger has a right, within rea- 
 sonable limits and while using care and 
 caution, to rely upon the presumption that 
 a railroad company has done its duty, and 
 that the platform of its depot is safe. 
 Louisville, N. A. & C. R. Co. v. Lucas, 119 
 Ind. 583. 21 N. E. 968, 6: 193 
 
 569. The court cannot declare it to be 
 contributory negligence for persons to walk 
 off from an elevated walk in the dark at 
 a place where there is no railing, while 
 they are on their way to a boat landing. 
 Skottowe v. Oregon, S. L. & U. N. R. Co. 
 22 Or. 430, 30 Pac. 222, 16: 593 
 
 c. Duty to Keep Open and Light. 
 
 See also infra, 639, 640. 
 
 Keeping open. 
 
 Joinder of Causes of Action for Fine for 
 
 Failure, see Courts, 295. 
 See nlso infra. 574, 600, 601. 638-640. 
 For Editorial Notes, see infra, IV. 18. 
 
 570. The opening of ticket offices at de- 
 pots during intervals when they are not 
 regularly used as such is not required by
 
 378 
 
 CARRIERS, II. a, 10. 
 
 Ky. Slat. 784, requiring ticket offices and 
 waiting rooms to be kept open thirty min- 
 utes before the departure of a regular pas- 
 senger train "from every regular passenger 
 depot from which such trains start or at 
 which they regularly stop." Louisville & 
 N. R. Co/V. Com. 102 Ky. 300, 43 S. W. 
 458, 53: 149 
 
 Lights. 
 
 See also infra, 575, 576. 
 For Editorial Notes, see infra, IV. 7. 
 
 571. Where passengers are discharged 
 from the cars after dark, it is the duty of 
 a railroad company to light its stations and 
 platforms. Louisville, N. A. & C. R. Co. 
 v. Lucas, 119 Ind. 583, 21 N. E. 968, 6: 193 
 
 572. A railroad company need not have 
 gas or electric lights on its station platforms 
 at villages where such lights are not used. 
 Sargent v. St. Louis & S. F. R. Co. 114 Mo. 
 348, 21 S. W. 823, 19: 460 
 
 573. A street railway company which con- 
 structs a walk over a street temporarily 
 submerged by a freshet, for the use of pas- 
 sengers in going from one car to another, 
 is not, as matter of law, required to provide 
 a light for such walk at night. Finseth v. 
 City & S. R. Co. 32 Or. 1, 51 Pac. 84, 
 
 39: 517 
 
 Towards whom duty owed. 
 Duty towards Person Assisting Passenger 
 
 on or off Train, see supra, 473477. 
 See also supra, 87, 547-549. 
 For Editorial Notes, see infra, IV. 7. 
 
 574. The duty to keep ticket offices and 
 waiting rooms open at least thirty minutes 
 before the departure of a passenger train 
 from a "regular passenger depot" from 
 which such trains start or at which they 
 regularly stop, imposed by Ky. Stat. 784, 
 does not extend to the opening of such 
 rooms for night trains for the sale of tick- 
 ets for which the railroad company had 
 never kept such rooms open or charged 
 passengers getting on them more than tick- 
 et rates. Louisville & N. R. Co. v. Com. 
 102 Ky. 300, 43 S. W. 458, 53: 149 
 
 575. A mere licensee injured in the dark 
 by falling through an open trapdoor while 
 crossing the platform of a railroad station, 
 which the company allows people to use as 
 a short cut between public streets, cannot 
 recover damages from the company, al- 
 though no light or barrier was placed at 
 the opening. Redisran v. Boston & M. R. 
 Co. 155 Mass. 44, 28 N. E. 1133, 14: 276 
 
 576. A carrier's liability for the lack of 
 proper lights on a walk leading to its boat 
 landing, on account of which persons are 
 injured while on their way to the boat in 
 the evening, is 'not defeated by the fact that 
 the boat did not start until morning, where 
 passengers were provided with sleeping ac- 
 commodations on the boat at an extra 
 charge. Skottowe v. Oregon S. L. & U. N. 
 R, Co. 22 Or. 430, 30 Pac. 222, 16: 593 
 
 10. Tickets; Conditions; Fare. 
 a. In General. 
 
 Rules and Regulations as to Tickets, see 
 supra, 27-32. 
 
 Person with Ticket as Passenger, see supra, 
 82, 83, 87, 93. 
 
 Provisions for Stop Over, see supra, 407- 
 416. 
 
 Ejection for Nonpayment of Fare or De- 
 fective Ticket, see supra, II. a, 5, 6, 
 (2.) 
 
 Sale of Tickets beyond Line, see infra, II. 
 c, 1. 
 
 Confining Sale of Tickets to Agents, see 
 infra, 1019, 1020. 
 
 Redemption of Ticket, see infra, 1021. 
 
 Discrimination between Passengers, see in- 
 fra, 1121-1125. 
 
 Regulation of Rates, see infra, III. c. 
 
 Condition Precedent to Suit to Enjoin Sale 
 of Tickets by Ticket Brokers, see Ac- 
 tion or Suit, 25. 
 
 Delegation of Power as to Creation of Of- 
 fense in Sale of Tickets, see Constitu- 
 tional Law, 173. 
 
 Requiring Free Transportation of Shippers 
 of Stock, see Constitutional Law, 420. 
 
 Due Process in Prohibiting Transfer of, see 
 Constitutional Law, 751-753. 
 
 Judicial Notice of Conductor's Authority 
 as to, see Evidence, 91. 
 
 Judicial Notice as to Surrender of Sleeping 
 Car Ticket, see Evidence, 88. 
 
 Conclusiveness of Evidence of Berth Check, 
 see Evidence, 1105. 
 
 Opinion Evidence as to Opportunity to Ob- 
 tain Ticket, see Evidence, 1355. 
 
 Evidence of Declaration as to Reason for 
 Refusing Ticket, see Evidence, 1631. 
 
 Repeal of Statute as to, see Statutes, 564. 
 
 See also supra, 117, 404. 
 
 For Editorial Notes, see infra, IV. 18. 
 
 577. Railroad tickets in the hands of pas- 
 sengers are not property within the con- 
 stitutional meaning of that term. Jannin 
 v. State, 42 Tex. Grim. Rep. 631, 51 S. W. 
 1126, 62 S. W. 419, 53: 349 
 
 578. A passenger is not called upon to 
 question the right of a conductor in taking 
 up a ticket in order to preserve the right 
 to be carried to destination. Sloane v. 
 Southern Cal. R. Co. Ill Cal. 668, 44 Pac. 
 320, 32: 193 
 
 579. The constitutional declaration that 
 railways are public highways does not make 
 them such in the sense that persons are au- 
 thorized to ride on railway cars without 
 consent of the company or payment of fare. 
 Farber v. Missouri P. R. Co. 116 Mo. 81, 
 22 S. W. 631, 20: 350 
 
 580. A ticket for a voyage purporting to 
 be a contract, containing written and print- 
 ed folios which cover the greater part of 
 two quarto pages, bearing the signature of 
 the carrier's agent, with a blank space for 
 that of the passenger, charges him with no- 
 tice of the stipulations, and they are bind- 
 ing on him although he does not read them. 
 Fonseca v. Cunard S. S. Co. 153 Mass. 553, 
 27 N. E. 665, 12: 340 
 
 581. The illegibility of the date on a tick- 
 et which the passenger receives in that con- 
 dition does not impose on him the duty of 
 getting the indorsement of a ticket receiv- 
 er as to its validity because it is questioned
 
 CARRIERS, II, a, 10. 
 
 879 
 
 by the gateman; and a rule of the railroad 
 company making such a requirement is un- 
 reasonable because it would subject a 
 passenger to great inconvenience, and might 
 cause him to lose his train. Northern C. 
 R. Co. v. O'Conner, 76 Md. 207, 24 Atl. 449, 
 
 16: 449 
 
 582. The mere purchase by a husband of 
 an ordinary railway ticket for his wife, even 
 though he pays for it, does not constitute 
 a contract between the husband and the 
 company for the safe transportation of the 
 wife, but an implied contract for safe 
 carriage in favor of the wife only. Aiken 
 v. Southern Ry. Co. 118 Ga. 118, 44 S. E. 
 828, 62: 666 
 Passenger not signing ticket. 
 
 See also infra, 630, 877. 
 
 583. The fact that a passenger does not 
 sign a ticket which constitutes a contract 
 and has a blank space for his signature does 
 not relieve him from the effects of its 
 stipulations. Fonseca v. Cunard S. S. Co. 
 153 Mass. 553, 27 N. E. 665, 12: 340 
 Duty to pay fare of child. 
 
 See also supra, 367, 368. 
 
 584. The law implies a contract on the 
 part of a parent who enters a railroad 
 train with a child non sui juris and subject 
 to payment of fare, to pay the fare of such 
 child. Braun v. Northern P. R. Co. 79 
 Minn. 404, 82 N. W. 675, 49: 319 
 Limitations in ticket generally. 
 Prohibiting Enforcement of Injunction 
 
 against Dealing in Nontransferable 
 
 Tickets, see Prohibition, 9. 
 See also infra, 715, 716. 
 For Editorial Notes, see infra, IV. 30. 
 
 585. The mere stamping or printing of a 
 limitation upon a railroad ticket, and the 
 acceptance of such ticket by a passenger, 
 are not sufficient to bind him to such limi- 
 tation in the absence of actual notice of it, 
 and his assent thereto when he purchases 
 the ticket. Louisville & N. R. Co. v. Turn- 
 er, 100 Tenn. 213, 47 S. W. 223, 43: 140 
 Limitations as to time of using. 
 
 See also supra, 382, 385, 407; infra, 608- 
 
 615. 
 For Editorial Notes, see infra, IV. 18. 
 
 586. To limit a general ticket for passage 
 on a railroad, for which full price is paid, 
 to the date on which it is sold, there must 
 be an express contract based upon a con- 
 sideration, or the alternative must be given 
 the purchaser to have a full and unlimited 
 ticket. Louisville & N. R. Co. v. Turner, 
 100 Tenn. 213, 47 S. W. 223, 43: 140 
 
 587. Posting notices of intention to limit 
 the time for passage on railroad tickets in 
 the waiting rooms, ticket offices, and on the 
 cars, will not affect passengers with notice 
 so that they will be bound by limitation 
 by taking the ticket without agreeing to 
 the limitation. Id. 
 Conditions on back of ticket. 
 
 See also infra, 736, 737. 
 
 For Editorial Notes, see infra, IV. 18. 
 
 588. A contract on the back of a ticket 
 on which an employee of the carrier was 
 traveling as a passenger is invalid so far 
 as it purports to exonerate the carrier from 
 
 liability for its negligence or that of its 
 servants. Doyle v. Fitchburg R. Co. 166 
 Mass. 492, 44 N. E. 611, 33: 844 
 
 589. Conditions on the back of a ticket 
 cannot release the railroad from liability 
 for the penalty given by Mass. Pub. Stat. 
 chap. 112, 212, to the widow and children 
 and next of kin of a passenger injured by 
 the gross negligence or carelessness of the 
 servants of the company. Doyle v. Fitch- 
 burg R. Co. 162 Mass. 66, 37 N. E. 770, 
 
 25: 157 
 Right to rely on face of ticket. 
 
 590. The face of the ticket is conclusive 
 evidence to the conductor of the .terms of 
 the contract of carriage between a passen- 
 ger and the carrier. Poulin v. Canadian P. 
 R. Co. 6 U. S. App. 298, 3 C. C. A. 23, 52 
 Jc'ed. 197, 17: 800 
 
 591. The face of a passenger's ticket is 
 not the sole criterion of his right of passage, 
 but,, if he has made a valid contract for pas- 
 sage he is entitled thereto, though the face 
 of the ticket may not in any true sense ex- 
 press the contract. O'Rouke v. Citizens' 
 Street R. Co. 103 Tenn. 124, 52 S. W. 872, 
 
 46: 614 
 
 Misdated ticket. 
 See also supra, 383. 
 
 592. The clause "continuous passage with- 
 in one day of date of sale" on a railroad 
 ticket does not make the ticket invalid on 
 the day of sale because it bears a prior 
 date. Ellsworth v. Chicago, B. & Q. R. Co. 
 95 Iowa, 98, 63 N. W. 584, 29: 173 
 Ticket for wrong road. 
 
 Evidence of Declarations as to, see Evidence. 
 
 1632. 
 See also supra, 366. 
 
 593. A railroad company whose ticket was 
 given by mistake to a passenger in lieu of 
 a ticket of another company which was 
 called for, where it was bought in a union 
 depot of an agent who had authority to 
 sell tickets for both companies, is not liable 
 for the agent's mistake, since the breach of 
 duty is that of the company whose ticket 
 was desired. Scott v. Cleveland. C. C. & St. 
 L. R. Co. 144 Tnd. 125, 43 N. E. 133. 32: 154 
 Palace car ticket. 
 
 594. A ticket for a room in a palace car 
 of a company which does not own or oper- 
 ate the train of which, by contract with 
 the carrier, such car forms a part, marked 
 good for that date and car only, when ac- 
 companied by a first-class railroad ticket 
 from one designated station to another, is 
 not a contract of the palace-car company to 
 carry the passenger over the designated 
 route, but merely to accommodate him in 
 its car as long as the railroad company will 
 convey it. Duval v. Pullman's Palace Car 
 Co. 10 C. C. A. 331, 23 U. S. App. 527. 62 
 Fed. 265, 33: 715 
 Mutilation. 
 
 595. To "mutilate" a railroad ticket, with- 
 in the reasonable meaning of a stipulation 
 on its face that it shall not be good for 
 passage if mutilated in any way, it must 
 be deprived of some essential or material 
 part; and such a ticket is valid, although 
 torn in two pieces, when both pieces are
 
 880 
 
 CARRIERS, II. a, 10. 
 
 presented to the conductor at the same time 
 and it is apparent that they are parts of the 
 same ticket, that together they form the en- 
 tire ticket, and that no fraud has been 
 perpetrated upon the railroad company. 
 Young v. Central of Georgia R. Co. 120 Ga. 
 25, 47 S. E. 556, 65: 436 
 
 Mileage or commutation books. 
 Person Having, as Passenger, see supra, 82. 
 Limitation of Liability in, see infra, 661. 
 Statutory Provision as to, as Affecting Com- 
 merce, see Commerce, 42. 
 See also supra, 191. 
 
 596. A carrier is not obliged to honor a 
 coupon from a commutation book of tick- 
 ets intended for passage between designated 
 points and which provide that they are not 
 "good unless detached by the conductor" 
 when is has been detached by the commuter 
 and the book left with a member of his 
 family, so that it is not present when he 
 tenders the coupon in payment of fare. 
 United Railways & Electric Co. v. Hardesty, 
 94 Md. 661, 51 Atl. 406, 57: 275 
 
 6. Excursion or Round-Trip Tickets. 
 
 Limitation of Liability in, see infra, 660. 
 Liability of Connecting Carrier, see infra, 
 
 976. 
 Refusal of Connecting Line to Honor, see 
 
 infra, 980-984. 
 See also supra, 596. 
 
 597. An excursion ticket having the words 
 "Not good for passage," on the going part 
 of the ticket, and the words "If detached," 
 on the returning part, is valid when both 
 parts are presented together at the same 
 time, to the same conductor, on the going 
 trip, although the parts have become sepa- 
 rated by inadvertence. Wightman v. Chicago 
 & N. W. R. Co. 73 Wis. 169, 40 N. W. 689, 
 
 2: 185 
 
 508. A sale of round-trip excursion tick- 
 ets at reduced rates is itself sufficient to 
 put a purchaser upon inquiry and affect 
 him with notice of unusual terms and con- 
 ditions attached to the use of such ticket. 
 Watson v. Louisville & N. R. Co. 104 Tenn. 
 194, 56 S. W. 1024, 49: 454 
 
 599. For refusing to accept the remaining 
 part of a return ticket on the return trip, 
 where the return part has been taken 
 through mistake by the conductor on the 
 first trip, and ejecting the passenger for 
 refusing to furnish any other ticket or fare, 
 the carrier may be compelled to pay dam- 
 ages. Kansas City, M. & B. R. Co. v. Ri- 
 ley, 68 Miss. 765/9 So. 443, 13: 38 
 Right to reduced fare without procuring. 
 
 600. The mere fact that a railroad com- 
 pany has been accustomed to sell round- 
 trip tickets at reduced rates on Sundays 
 cannot be relied on to constitute a contract 
 of carriage at that reduced rate, when a 
 person finds the ticket office closed on Sun- 
 day, and is unable to get such a ticket. 
 Johnson v. Georgia R. & Bkg. Co. 108 Ga. 
 496. 34 S. E. 127, 46: 502 
 
 601. A right to ride at the reduced rate 
 of fare at which round-trip tickets had been 
 previously sold on Sundays cannot be 
 
 claimed by one who gets on the train on 
 Sunday without such ticket merely because 
 he was unable to procure such a ticket on 
 account of the ticket office being closed. Id. 
 Requirement as to stamping return part. 
 See also supra, 377-380. 
 
 602. A condition printed on the return 
 part of a round-trip excursion ticket, "Not 
 good for passage unless stamped by joint 
 agent at" the place of departure, is a 
 reasonable regulation by the carrier. Wat- 
 son v. Louisville & N. R. Co. 104 Tenn. 194, 
 56 S. W. 1024, 49: 454 
 
 603. That the purchaser of a round-trip 
 excursion ticket is unable to read or write, 
 and i? not specially notified of the require- 
 ments and conditions upon which the tick- 
 ets are sold, does not relieve him from the 
 .necessity of complying with a condition 
 printed on the return portion of the ticket, 
 requiring it to be stamped by the agent of 
 the company on the day of departure. Id. 
 
 604. The fact that other passengers are 
 allowed to travel upon round-trip excur- 
 sion tickets without having them stamped 
 as required by a rule of the company does 
 not abrogate the rule, or relieve a purchaser 
 of such a ticket from the duty to comply 
 with the condition, unless such violations 
 of the rule are so frequent as to amount to 
 a custom and to mislead the purchaser. Id. 
 On what trains good. 
 
 See also supra, 385. 
 
 605. A statement by the agent, when sell- 
 ing a round-trip railroad ticket good only 
 on the day of sale, that, in case the only 
 train returning that day is late, the pur- 
 chaser may have difficulty in getting it to 
 stop to let him off, has no effect upon his 
 rights under the contract. Illinois C. R. Co. 
 v. Harris, 81 Miss. 208, 32 So. 309, 59: 742 
 
 606. The right of the holder of a round- 
 trip railroad ticket good only on the day 
 of sale, to return upon the only train pass- 
 ing his station that day, is not affected by 
 the statement of a flagman, when he at- 
 tempts to board the train, that it does not 
 stop at his destination, and his agreement 
 to leave the train at the last stop before 
 his destination. Id. 
 
 607. A round-trip ticket via "Burlington 
 branch" from a point on the main line of a 
 railroad to a point on the branch line, with 
 the provision that it is "not good to stop off 
 en route" is subject to a regulation of the 
 company making it good on the main line 
 upon those trains only which connect with 
 trains on the branch, and does not entitle 
 a passonger, on reaching the junction upon 
 his return trip, to take an accommodation 
 on the main line which stops at his destina- 
 tion, but which he is enabled to catch only 
 because it is late and by leaving the branch 
 train while it stands on a Y track and walk- 
 ing to the depot, although he might have 
 ridden on the accommodation train without 
 paying any more for his ticket if he had 
 bought separate tickets for the round trip 
 on each line, and although by taking the ac- 
 commodation he could avoid waiting a half 
 
 j hour or more for the so-called connecting 
 train. Pennsylvania R. Co. v. Parry (N. J.
 
 CARRIERS. II. a. 10. 
 
 881 
 
 Err. & App.) 55 N. J. L. 551, 27 Atl. 914, 
 
 22: 251 
 
 Expiration of time for use. 
 See also supra, 586, 587. 
 For Editorial Notes, see infra, IV. 18. 
 
 608. The holder of a railroad ticket who 
 does not use it for a passage during its life 
 for such a purpose is not entitled, as matter 
 of law, to have the purchase price refunded. 
 Trezona v. Chicago G. W. R. Co. 107 Iowa, 
 22, 77 N. W. 486, 43: 136 
 
 609. Fraudulent concealment by a rail- 
 road company, at the time of selling a 
 round -trip ticket, of facts which will pre- 
 vent it from carrying the passenger on his 
 return trip within the time limited, does 
 not extend the time within which he may 
 use the return coupon. Elliott v. Southern 
 P. Co. 145 Cal. 441, 79 Pac. 420, 68: 393 
 
 610. The question, what is a reasonable 
 time, or the first opportunity, ftv one who 
 has purchased a round-trip ticket, the re- 
 turn portion of which he is prevented from 
 using because of a strike, to make use of it 
 after the cessation of the strike, cannot be 
 determined by when he was next at the in- 
 termediate terminal with intent to travel 
 to the point where he began his journey. Id. 
 
 611. Failure of a railroad company to 
 perform its contract to carry the passenger 
 of a round-trip ticket on his return journey 
 because of a strike, by reason of which he 
 is put to the trouble and expense of return- 
 ing without its aid, does not entitle him to 
 use the return coupon upon a subsequent 
 journey after the expiration of the time lim- 
 ited, although he attempts to make such use 
 within a reasonable time. Id. 
 
 612. The inability of a railroad company 
 to perform its contract to carry the purchas- 
 er of a return-trip, limited ticket on his re- 
 turn journey because of a strike does not 
 extend the time within which it is bound 
 to honor the ticket. Id. 
 
 613. A statement by a railroad employee 
 at a ticket office upon being shown a re- 
 turn-trip ticket and telling the holder that 
 trains are not running, in response to, a 
 question as to what would happen if trains 
 were not running within the time limited in 
 the contract, that the ticket would be good 
 when they did run, does not waive the limi- 
 tation as to time, contained in the ticket. 
 
 Id. 
 
 614. A ticket over connecting roads, limit- 
 ed as to time, but which is a joint contract 
 of the carriers, entitles a passenger who is 
 delayed by a wreck on one of the roads to 
 complete his journey, although the time ex- 
 pires before he reaches the last of the con- 
 necting roads. Gulf, C. & S. F. R. Co. v. 
 Looncy, 85 Tex. 158, 19 S. W. 1039. 16: 471 
 
 615. A coupon ticket over connecting roads, 
 limited as to time and expressly providing 
 that the currier selling it is not responsible 
 beyond its own line, but is only an agent 
 of the connecting roads, will not entitle a 
 passenger to be carried over the last road 
 in the series after the time has expired, al- 
 though his failure to complete the journey 
 on time *,vas due to a wreck on one of the 
 other connecting roads. Id. 
 
 Transferability. 
 
 For Editorial Notes, see infra, IV. 18. 
 
 616. Each portion of a "coupon ticket" 
 issued by a railroad company for itself and 
 also as agent for other lines to be passed 
 over is a separate contract so far as to be 
 transferable, although the ticket is sold at 
 a reduced rate, where there are no words 
 of limitation or restriction thereon as to 
 the person entitled to use it. Nichols v. 
 Southern P. Co. 23 Or. 123, 31 Pac. 296, 
 
 18: 55 
 
 617. A round-trip excursion ticket used by 
 the purchaser in going to the station named 
 therein, and then sold and transferred, no 
 restrictions appearing, is valid in the hands 
 of the holder, and entitles him to a return 
 passage subject to the prescribed limitations 
 a? to time, etc. Carsten v. Northern P. R. 
 Co. 44 Minn. 454, 47 N. W. 49, 9: 688 
 
 618. A railroad company may issue spe- 
 cial tickets at a reduced rate, which shall 
 be nontransferable, either limited or unlim- 
 ited as to time or occasion; and, in case 
 the contract of which the ticket is the evi- 
 dence is violated by a transfer of the tick- 
 to, it may invoke the jurisdiction of a court 
 of equity to cancel the contract because of 
 the fraud; or, if the ticket is used by 
 another, it may maintain an action for 
 damages for breach of the contract. Schu- 
 bach v. McDonald, 179 Mo. 163, 78 S. W. 
 1020, 65:136 
 
 *?19. A purchaser of a special railroad 
 ticket at a reduced rate, which on its face 
 recites that it is nontransferable, and that 
 it is supported by the consideration of a 
 reduced rate, has no right to transfer it, 
 a deprivation of which will give him a cause 
 of complaint. Id. 
 
 620. No assignee of a railroad ticket sold 
 at a reduced rate, and which recites that 
 fact on its face, and also that it is non- 
 transferable, can acquire any right in the 
 ticket as a contract for transportation, 
 which he can assign, or which will give him 
 a right to complain in case he is forbidden 
 to assign it. Id. 
 
 c. Passes. 
 
 Persons Riding Free as Passengers, see su- 
 pra, II. a, 2, b, (1). 
 Employee Riding on, as Passenger, see 
 
 supra, II. a, 2, 6, (1), (b). 
 Oral Agreement to Furnish, see Contracts, 
 
 155. 
 Construction of Contract for Free Pass, see 
 
 Contracts, 334. 
 Recovery for Injury where Contract for Free 
 
 Passage was Illegal, see Contracts, 629. 
 Prohibition against Officer Riding on, see 
 
 Officers, 171. 
 Prohibition against Free Transportation, see 
 
 Statutes, 475. 
 See also infra, 1123. 
 For Editorial Notes, see infra, IV. 20. 
 
 621. Conditions on the back of a void pass 
 are without effect upon the rights of the 
 person who is attempting to use it for 
 transportation. McNeill v. Durham & C. R. 
 Co. 135 N. C. 682, 47 S. E. 765, 67: 227
 
 382 
 
 CARRIERS, II. a, 10. 
 
 Limitation of liability in. 
 
 Limitation of Liability Generally, see infra, 
 
 II. a, 10, f. 
 
 See also supra, 588, 589. 
 For Editorial Notes, see infra, IV. 20. 
 
 622. One who accepts a free pass on a 
 street railway, with a printed condition 
 that the company shall not be liable under 
 any circumstances, whether by negligence 
 of agents or otherwise, for injuries, is 
 bound by that condition. Muldoon v. 
 Seattle City R. Co. 7 Wash. 528, 35 Pac. 
 422, 22: 794 
 
 623. A person traveling with a friend 
 by invitation, knowing that they are go- 
 ing on a pass held by the latter, although 
 not seeing the pass or knowing its con- 
 tents, is bound by a condition thereon that 
 passengers traveling upon it assume all 
 risks of injury. Rogers v. Kennebec Steam- 
 boat Co. 86 Me. 261, 29 Atl. 1069, 25: 491 
 
 624. A condition in a free pass, that the 
 passenger will assume all risks of personal 
 injury, is not against public policy. Id. 
 
 625. An agreement by one who accepts 
 a railroad pass purely as a gratuity, that 
 he will assume all risks of accident of every 
 name and nature, is not against public 
 policy, and will prevent a recovery by him 
 for injuries occasioned by the negligence 
 of the railroad company's servants. Quim- 
 by v. Boston & M. R. Co. 150 Mass. 365, 
 22 N. E. 205, 5: 846 
 
 626. A stipulation in a pass releasing 
 the carrier from liability for negligent in- 
 juries to one riding thereon is valid. Payne 
 v. Terre Haute & I. R. Co. 157 Ind. 616, 62 
 N. E. 472, 56: 472 
 
 627. In Wisconsin, stipulations in a drov- 
 er's pass exempting tne carrier from liabil- 
 ity for accidents are void. Davis v. Chi- 
 cago, M. & St. P. R. Co. 93 Wis. 470, 67 
 N. W. 16, 33: 654 
 
 628. A contract by a person in charge of 
 cattle on a railroad train, by which, in con- 
 sideration of a free pass, he agrees to be 
 regarded as an employee of the road, to 
 whom the company shall be liable only as 
 to its regular employees, is a pretense a 
 subterfuge which cannot change the true 
 relation of the parties. Missouri P. R. Co. 
 v. Ivey, 71 Tex. 409, 9 S. W. 346, 1: 500 
 
 629. Conditions indorsed on an em- 
 ployee's pass, to the effect that he assumes 
 all risks arising from the negligence of 
 agents of the carrier, or otherwise, while 
 using it, are invalid on grounds of pub- 
 lic policy, where he is riding, not in the 
 course of his employment or in going to 
 or from his work, but in making a trip 
 for his own convenience, and the pass is 
 given him, not as a gratuity, but in pur- 
 suance of an agreement in his contract of 
 employment that he shall have such free 
 transportation, and is therefore based on 
 a valuable consideration. Whitney v. New 
 York, N. H. & H. R. Co. 43 C. C. A. 19, 
 102 Fed. 850, 50: 615 
 Passenger not signing agreement in. 
 
 See also supra, 158. 
 
 630. The failure of a passenger to sign 
 an agreement on the back of a free rail- 
 
 road pass, which expressly declares that it 
 is given to him "provided he signs the 
 agreement," is immaterial where he accepts 
 and uses the pass. Quimby v. Boston & M. 
 R. Co. 150 Mass. 365, 23 N. E. 205, 5: 846 
 
 d. Extra Fare. 
 
 Effect of Purpose to Make Test Case on 
 Right of Action, see Action or Suit, 
 52. 
 
 See also supra, 77, 369-373, 386-390. 
 
 For Editorial Notes, see infra, IV. 18. 
 
 631. A regulation of a railroad com- 
 pany wnich is ancient and public, requir- 
 ing passengers without tickets to pay an 
 extra fare, is presumed to be the act of 
 the corporation; and a party ejected for 
 noncompliance has no right to question 
 the fact or the method of its adoption. 
 McGowen v. Morgan's ju. & T. R. & S. Co. 
 41 La. Ann. 732, 6 So. 606, 5: 817 
 
 632. Railroad companies have the right 
 to adopt reasonable regulations as to the 
 method of paying fares by passengers, and 
 may discriminate between fares paid for 
 tickets at stations and those paid in the 
 cars. Id. 
 
 Reese v. Pennsylvania R. Co. 131 Pa. 422, 
 19 Atl. 72. 6: 529 
 
 633. A regulation that a railroad pas- 
 senger who fails to purchase a ticket 
 must pay 10 cents more than the regular 
 fare, for which extra charge a check will 
 be given by the conductor, which will be 
 cashed at any ticket office, is not unrea- 
 sonable. Reese v. Pennsylvania R. Co. 131 
 Pa. 422, 19 Atl. 72, 6: 529 
 
 634. An extra demand of 10 cents from a 
 passenger without a ticket, which will be 
 refunded at any regular ticket office on 
 presenting a check given him by the con- 
 ductor, is not a part of the "fare or charge 
 for transportation," within the meaning of 
 a statute fixing the maximum rate of fare. 
 
 Id. 
 
 635. A regulation of a railroad company 
 requiring passengers without tickets to pay 
 25 cents extra is not unreasonable. Mc- 
 Gowen v. Morgan's L. & T. R. & S. Co. 
 41 La. Ann. 732, 6 So. 606, 5: 817 
 
 636. Exempting passengers who board 
 the train at stations where tickets are 
 not on sale, from a regulation requiring 
 passengers without tickets to pay. 25 cents 
 extra, is not an unjust discrimination 
 against other passengers. Id. 
 
 637. That a railroad company gives a 
 drawback coupon for the extra fare, on 
 which a passenger may collect it back from 
 any agent at a station, does not affect the 
 validity of a regulation requiring pas- 
 sengers without tickets to pay an extra 
 fare. Id. 
 What excuses failure to have ticket. 
 
 638. A higher rate of fare can be de- 
 manded of a passenger who has no ticket, 
 only when the failure to procure a ticket 
 is not due to the nonattendance of the 
 ticket agent, or some other fault or de- 
 fault of the carrier. Georgia Southern & F.
 
 CARRIER^. II. a, 10. 
 
 388 
 
 R. Co. v. Asmore, 88 Ga. 529, 15 S. E. 
 13, 16: 53 
 
 639. The insertion, in a section of a 
 statute giving a railroad company the 
 right to charge additional fare on the train, 
 of the clause, "provided railroads shall be 
 required to keep their ticket offices open," 
 a certain time before departure of trains, 
 does not limit its effect merely to the ques- 
 tion of the extra fare, but will preclude 
 the enforcement of a rule requiring the pos- 
 session of tickets as a condition to enter- 
 ing trains, unless the proviso is complied 
 with. Mills v. Missouri, K. & T. R. Co. 
 94 Tex. 242, 59 S. W. 874, 55: 497 
 
 640. One who boards a train without a 
 ticket because the ticket office is not open 
 for the sale of tickets as required by stat- 
 ute cannot refuse to pay the extra train 
 fare required of passengers without tickets, 
 and resist ejection on tender ofc the price 
 of the ticket, but must pay the additional 
 fare and resort to his legal remedy to re- 
 cover it and the statutory penalty for fail- 
 ure to have the office open. Monnier v. 
 New York C. & H. R. R. Co. 175 N. Y. 281, 
 67 N. E. 569, 62: 357 
 
 641. A passenger having a ticket to a 
 station where there is no ticket office 
 cannot be charged an extra fare imposed 
 upon passengers having no tickets, upon 
 his determining while on the train to go 
 to a station beyond that for which his 
 ticket calls, although provision is made 
 for its subsequent return to him; and his 
 failure to pay such additional charge is no 
 legal justification for expelling him from 
 the train. Phettiplace v. Northern P. R. 
 Co. 84 Wis. 412, 54 N. W. 1092, 20: 483 
 
 e. On Street Cars. 
 
 Governmental Regulation of Rates, see 
 
 infra, 1081-1091. 
 Requirement as to Keeping Tickets for 
 
 Sale, see Municipal Corporations, 243, 
 
 273. 
 Passenger's Right of Action on Contract 
 
 with Town as to Rate of Fare, see 
 
 Parties, 73. 
 
 Mode of Collecting Fare During Receiver- 
 ship, see Receivers, 55. 
 Special Legislation as to, see Statutes, 
 
 302, 303. 
 Rates of Fare of Leased Road, see Street 
 
 Railways, 54-57. 
 Question for Jury as to Reasonableness of 
 
 Tender, see Trial, 133. 
 See also supra, 622. 
 For Editorial Notes, see infra, IV. 5. 
 
 642. A person on a street car does not 
 acquire the right to be carried to his 
 destination by the fact that the conductor 
 rings up his fare on taking from him a 
 void coupon ticket. United Railways & 
 Electric Co. v. Hardesty, 94 Md. 661, 51 
 Atl. 406, 57:275 
 
 R43. The mere starting of a car upon 
 its journey, by the conductor, with knowl- 
 edge that a person has boarded the car 
 without the station, after paying fare with- 
 
 in the station, is not an acceptance of 
 such person as a passenger, or a waiver 
 of a rule of the street railway company 
 requiring passengers to pay fare and board 
 cars within the station, and compelling one 
 who has boarded a car without the station 
 to pay a fare, although he has already 
 paid his fare on entering the station. Nash- 
 ville Street R. Co. v. Griffin, 104 Tenn. 
 81, 57 S. W. 153, 49: 451 
 
 Change. 
 For Editorial Notes, see infra, IV. 18. 
 
 644. A passenger on a street car need 
 not tender the exact fare, but must tender 
 a reasonable sum, and the carrier must 
 furnish change to a reasonable amount. 
 Barrett v. Market Street Cable R. Co. 
 81 Cal. 296, 22 Pac. 859, 6:336- 
 
 645. A passenger on a street car is not 
 bound to tender tlje exact fare, but the 
 conductor is bound to furnish change for 
 a reasonable sum. Barker v. Central Park, 
 N. & E. R. R. Co. 151 N. Y. 237, 45 N. E. 
 550, 35: 489 
 
 646. Notice need not be brought home to 
 a street car passenger, of a rule reasonably 
 limiting the amount of change which a con- 
 ductor is required to furnish, in order to 
 make the rule operative. Id. 
 
 647. The duty to receive from a passen- 
 ger a coin or bill in excess of the fare due 
 and return the change in a respectful man- 
 ner is part of the contract obligation of 
 a street car company so long as the amount 
 tendered is not in excess of the reasonable 
 amount which may be tendered under the 
 rules and regulations of the company. Gil- 
 lespie v. Brooklyn Heights R. Co. 178 N. Y. 
 347, 70 N. E. 857, 66: 618 
 
 648. A rule requiring change to the 
 amount of $2 to be furnished by conduct- 
 ors on street cars to passengers is a rea- 
 sonable provision for the convenience of the 
 public; and the conductor cannot be re- 
 quired to furnish change for a five-dollar 
 bill. Barker v. Central Park, N. & E. R. 
 R. Co. 151 N. Y. 237, 45 N. E. 550, 35: 489 
 
 649. Five dollars is not an unreasonable 
 amount for a passenger in a street car to 
 tender in payment of his fare. Barrett v. 
 Market Street Cable R. Co. 81 Cal. 296, 22 
 Pac. 859, 6: 336 
 Transfers. 
 
 Conflict of Laws as to, see Conflict of 
 
 Laws, 93. 
 Conductor's Trip Report as Evidence, see 
 
 Evidence, 1006. 
 Ordinance as to Sale or Giving Away of,. 
 
 see Municipal Corporations, 244-246. 
 See also supra, 374-376. 
 
 650. A transfer ticket issued to a street 
 railway passenger, by which the route i 
 designated so generally as to be applica- 
 ble to several lines, entitles him to be 
 transported over either. Pine v. St. Paul 
 City R. Co. 50 Minn. 144, 52 N. W. 392, 
 
 16: 347 
 
 651. A restriction that a street railway 
 transfer ticket given without extra charge 
 must be used within fifteen minutes after 
 it is punched on the first line is not unrea- 
 sonable or invalid in the absence of any
 
 384 
 
 CAKRIERS, II. a, 10. 
 
 contract to carry a passenger on both lines 
 for a single fare, without exception or 
 conditions or any provision to that effect 
 in the charter or ordinance, or of any hold- 
 ing out to the public to this effect; al- 
 though this might be subject to exception 
 if no car came along within the time limit- 
 ed. Heffron v. Detroit City R. Co. 92 
 Mich. 406, 52 N. W. 802, 16: 345 
 
 652. The mistake of a street-car conduct- 
 or in punching a transfer ticket so as 
 wrongly to indicate the hour of its issu- 
 ance, making it appear that the passenger, 
 after he has diligently sought and promptly 
 entered the first passenger car, has no 
 right to ride thereon, will not defeat his 
 right of passage, when he has taken the 
 ticket, believing it is all that it should be, 
 and makes a fair and reasonable statement 
 of the facts. O'Rouke v. Citizens' Street 
 R. Co. 103 Tenn. 124, 52 S. W. 872, 46: 614 
 
 653. A condition printed on a street rail- 
 way transfer check, that the passenger 
 will examine date, time, and direction, and 
 see that they are correct, is void for un- 
 reasonableness, especially when these mat- 
 ters are so complex that an inexperi- 
 enced passenger could not examine them 
 and see that they are correct within the 
 time at disposal and without an explana- 
 tion. Id. 
 
 654. A condition on a transfer check, 
 that the passenger agrees to pay the regu- 
 lar fare charged, in case of controversy 
 with the conductor about the check and 
 its refusal, and then apply at the office of 
 the company for reimbursement, is void 
 because unreasonable. Id. 
 
 f. Limitation of Liability. 
 
 Limitation as to Time of Using Ticket, 
 
 see supra, 586, 587. 
 In Passes, see supra, 622-629. 
 As to Bag<;age, see infra, II. a, 12, e. 
 As to Freight, see infra, II. b, 7. 
 Validity of Contract Indemnifying Carrier, 
 
 see Contracts, 409. . 
 Insurance of Carrier against Liability, see 
 
 Insurance, 1355-1357. 
 Of Vessel Owner, see Shipping, 5. 
 See also supra, 588. 589. 
 For Editorial Notes, see infra, IV. 6, 
 
 18. 
 
 655. A carrier of passengers is not a com- 
 mon carrier within the meaning of Ga. Civ. 
 Code, S 2276, providing that common car- 
 riers cannot limit their legal liability by 
 notice, but may make an express con- 
 tract and be governed thereby. Central 
 of Georgia R. Co. v. Lippman, 110 Ga. 
 <5G5, 36 S. E. 202, 50: 673 
 
 656. A carrier cannot contract for relief 
 from liability for injuries to a passenger 
 paving fare, caused by its own negligence. 
 Illinois C. R. Co. v. Beebe, 174 111. 13, 50 
 N. E. 1019, 43: 210 
 
 657. A carrier of passengers cannot con- 
 tract against liability for negligence, or to 
 limit its obligation to use extraordinary 
 diligence for the protection of the pas- 
 
 senger. Central of Georgia R. Co. v. Lipp- 
 man, 110 Ga. 665, 36 S. E. 202, 50: 673 
 
 658. By the law of South Dakota, a com- 
 non carrier of property or passengers may 
 limit its liability by an express contract 
 signed by the parties, except as to gross 
 negligence, fraud, or wilful wrong of such 
 carrier or its servants. Meuer v. Chicago, 
 M. & St. P. R. Co. 5 S. D. 568, 59 X. W. 
 945, 25: 81 
 
 659. The one of several transportation 
 companies acting as a through line, which 
 sells a ticket upon condition that it shall 
 not be responsible beyond its own line, 
 will not be liable for injuries caused by 
 breach of the contract by another one of 
 the companies a steamboat company in 
 refusing to furnish the passenger with a 
 berth. McWethy v. Detroit, G. R. & W. 
 R. Co. 127 Mich. 333, 86 N. W. 827, 
 
 55: 306 
 Holder of excursion or mileage ticket. 
 
 660. To hold the carrier responsible for 
 an injury received by a" passenger while 
 using an excursion ticket, one of the condi- 
 tions on which is that the passenger as- 
 sumes all risk of accident, he must show 
 affirmatively that the carrier was guilty of 
 negligence which caused the injury. Crary 
 v. Lehigh Valley R. Co. 203 Pa. 525, 53 
 Atl. 363, 59: 815 
 
 661. An agreement by a passenger when 
 procuring a mileage ticket at a reduced 
 rate, not to hold the carrier liable for in- 
 juries received while riding on freight 
 trains, is unenforceable with respect to 
 such freight trains as are designated by 
 the carrier to carry passengers generally. 
 Richmond v. Southern Pacific Co. 41 Or. 
 54, 67 Pac. 947, 57: 616 
 Porter of sleeping car. 
 
 662. A railroad company hauling a sleep- 
 ing car may take advantage of a contract 
 by which the porter in charge of it con- 
 tracts with the sleeping-car company to 
 waive Ms right of action for injuries caused 
 by the negligence of the railroad com- 
 panies by which the car is hauled. Rus- 
 sell v. Pittsburgh, C. C. & St. L. R. Co. 
 157 Ind. 305, 61 N. E. 678, 55: 253 
 
 663. Public policy does not forbid a con- 
 tract by a porter placed in charge of a 
 sleeping car to waive his right of action 
 for injuries caused by the negligence of 
 any railroad company by which the car is 
 hauled, or its servants. Id. 
 Express messengers. 
 
 See also supra, 47, 49. 
 
 664. A railroad company cannot enforce 
 a contract between a messenger and an ex- 
 press company, that the railroad company 
 will not be held liable for accidental in- 
 juries to the messenger, of the making of 
 which the railroad company has no knowl- 
 edge. Louisville, N. A. & C. R. Co. v. 
 Keefer, 146 Ind. 21, 44 N. E. 796, 38: 93 
 
 665. A contract by an express company 
 authorized by a messenger in its employ, 
 that in consideration that the express com- 
 pany be permitted to do business on a 
 railroad, the railroad company will be ex-
 
 CARRIERS, II. a. 11, 120. 
 
 385 
 
 empted from all liability for injuries to the 
 messenger, is binding on the messenger, 
 since the railroad company in making it 
 acts not as a public, but as a private, car- 
 rier. Id. 
 Passenger on freight train. 
 
 666. A passenger on a freight train is 
 entitled to the protection of the rule which 
 
 Srohibits a carrier from contracting against 
 ability for failure to exercise extraor- 
 dinary diligence to protect the passenger, 
 although the passenger takes the risk of 
 the usual and necessary jolts and jars in- 
 cident" to the running of such train. Cen- 
 tral of Georgia R. Co. v. Lippman, 110 Ga. 
 665, 36 S. E. 202, 50: 673 
 
 Shipper of stock. 
 See also supra, 627, 628. 
 
 667. A shipper while unloading his stock 
 is within an exemption clause oV the con- 
 tract of transportation, by which he as- 
 sumes the risk of personal injury, though 
 the car has arrived at its destination, and 
 the shipper has left the car for a short 
 time, prior to the injury, and proceeded 
 to a hotel, to get lanterns and assistants to 
 aid him in unloading the car. Meuer v. 
 Chicago, M. & St. P. R. Co. 5 S. D. 563, 59 
 N. W. 945, 25: 81 
 
 668. A special contract for transporting 
 a car load of live stock and emigrant 
 movables, in which it is stipulated that 
 the shipper shall be entitled to passage 
 upon the same train to care for, feed, and 
 water his stock, and load and unload the 
 same, at his "own risk of personal injury 
 from whatever cause," exonerates the 
 railroad company from all liability for any 
 injury to him while a passenger, not caused 
 by the gross negligence, fraud, or wilful 
 wrong of the company or its servants. Id. 
 
 11. Blackboard Announcements as to 
 Trains. 
 
 Class Legislation as to, see Constitutional 
 Law, 419. 
 
 669. A statute providing that a "cor- 
 poration, company, or person," operating 
 a railroad, shall place in the passenger 
 deppt of such "company" a blackboard up- 
 on which such "company or person" shall 
 cause to be written the fact as to whether 
 trains are on time, is clearly intended to 
 apply to corporations, as well as natural 
 persons, although the word "corporation" 
 is not repeated in each clause. State v. In- 
 diana & I. S. R. Co. 133 Ind. 69, 32 N. E. 
 817, 18: 502 
 
 670. The words "each passenger depot 
 . . . located at any station ... at 
 which there is a telegraph office," at which 
 a railroad company is required by Ind. act 
 1889 to provide a blackboard on which shall 
 be stateJ whether a train is on time or 
 not, do not mean merely the station house 
 for passengers, but include every station 
 where a train stops, if there is a telegraph 
 office at such point at which information 
 is received as to the arrival of trains at 
 such stopping place. Id. 
 
 L.R.A. Dig. 25. 
 
 Penalty for violation of statute as to. 
 
 671. The penalty for failure to report 
 on a blackboard the time of the arrival of 
 trains, provided by Ind. act 1889, 2, can- 
 not be avoided by the failure to provide 
 a blackboard, which is expressly required 
 to be done by 1 of the act. State v. In- 
 diana & I. S. R. Co. 133 Ind. 69, 32 N. E. 
 817, 18: 502 
 
 672. More than one penalty can be in- 
 curred by violating the Indiana act of 1889 
 which requires a report at each railroad 
 station at which there is a telegraph of- 
 fice as to whether trains are on time, and 
 provides that "for each violation" in failing 
 to report or making a false report a penal- 
 ty may be recovered; hut there can be 
 only one forfeiture as to one train at any 
 particular station on the same trip. Id. 
 
 12. Baggage or Property of Passenger. 
 
 o. In General. 
 Rules and Regulations as to, see supra, 
 
 Grant of Exclusive Privilege as to Solicita- 
 
 tion of, see infra, 1045-1067. 
 What is an Act of God Releasing Carrier 
 
 from Liability for, see Act of God. 
 Action by Husband for Wife's Baggage, see 
 
 Husband and Wife, 197, 198. 
 Right of Traveling Salesman to Sue for 
 
 Injury to, see Parties, 103. 
 Instructions as to, see Trial, 784. 
 For Editorial Notes, see inlra, IV. 28, 
 
 30. 
 
 673. Carriers are the insurers of bag- 
 gage in the same manner and to the same 
 extent as of goods or freight. Oakes v. 
 Northern P. R. Co. 20 Or. 392, 26 Pac. 230, 
 
 12: 318 
 
 674. Carriers of passengers are responsi- 
 ble for the carriage and safe delivery of 
 such baggage as by custom and usage is 
 ordinarily carried by travelers; and the 
 payment of the usual fare includes, in 
 legal contemplation, a compensation for the 
 conveyance of such baggage. Id. 
 
 675. One who purchases a railroad ticket 
 for the sole purpose of checking his bag- 
 gage on it, with the intention of going 
 to his destination in his private convey- 
 ance, can hold the carrier liable only as 
 a gratuitous bailee of the baggage, and 
 cannot recover in case it is stolen from 
 the baggage room, unleos the carrier is 
 guilty of gross negligence. Marshall v. 
 Pontiac, O. & N. R. Co. 126 Mich. 45, 85 N. 
 W. 242, 55: 650 
 
 676. A passenger on a steamboat, -who 
 takes a stop-over check at an intermediate 
 point, permitting her baggage to remain on 
 board, on the porter's assurance that it will 
 be all right, and who follows it on another 
 steamer several days after, cannot recover 
 for its loss, in the mean time, by the burn- 
 ing, without fault, of a warehouse be- 
 longing to the local agents of the carrier, 
 in which the baggage was placed at the 
 point of destination, subject to delivery on
 
 CARRIERS, II. a, 12. 
 
 presentation of the check. Laffey v. Grum- 
 mond, 74 Mich. 186, 41 N. W. 894, 3: 287 
 
 677. A carrier is responsible where prop- 
 erty committed to it is brought by its neg- 
 ligence under the operation of natural 
 causes that work its destruction, or is 
 exposed to such cause of loss. Wald v. 
 Pittsburg, C. C. & St. L. R, Co. 162 111. 
 545, 44 N. E. 888, 35: 356 
 
 678. A common carrier is not exempt 
 from liability for a loss which takes place 
 because of an act of God if the carrier 
 has been guilty of any previous negligence 
 or misconduct which brings the property 
 in contact with the destructive force of 
 the actus Dei, or unnecessarily exposes it 
 thereto. Id. 
 Express companies. 
 
 679. An express company which under- 
 takes to execute a commission to go to 
 the baggage room of a hotel and obtain 
 and ship articles belonging to its patron 
 is liable for the loss in case articles be- 
 longing to a stranger are taken by mis- 
 take, and shipped so that they cannot be 
 recovered and restored to him. Edwards 
 v. American Express Co. 121 Iowa, 744, 96 
 N. W. 740, 63: 467 
 Baggage transfer company. 
 
 For Editorial Notes, see infra, IV. 33. 
 
 680. The contract of a baggage transfer 
 company to transport baggage from a resi- 
 dence to a railroad depot is fully performed 
 so that its responsibility ceases when the 
 baggage is delivered to the agent of the 
 railroad company at the depot. Anniston 
 Transfer Co. v. Gurley, 107 Ala. 600, 18 
 So. 209, 34: 137 
 In steamer stateroom. 
 
 681. Theft of money from the clothing 
 of a steamer passenger during the night 
 while he is occupying a stateroom with the 
 door locked and windows fastened renders 
 the carrier liable for the loss as an in- 
 surer and without any proof of negligence, 
 if the sum lost was reasonable and proper 
 for the passenger to carry on his person to 
 defray the expenses of his journey. Adams 
 v. New Jersey Steamboat Co. 151 N. Y. 163, 
 45 N. E. 369, 34: 682 
 Liability of connecting line. 
 
 682. The checking of baggage to destina- 
 tion upon a through ticket to transport 
 the passenger over roads of initial and 
 connecting carriers will render the initial 
 carrier liable for its loss on a connecting 
 line. Kansas City, Ft. S. & M. R. Co. v. 
 Washington, 74 Ark. 9, 85 S. W. 406, 
 
 69: 65 
 Dogs. 
 
 1 683. The loss of a dog by negligence of 
 a baggage master will render the carrier 
 liable, although a rule of the company 
 provided that it would not be responsible 
 for dogs, where the owner was not noti- 
 fied of such rule or f the company's re- 
 fusal to be responsible, but put the dog 
 in the baggage car under instructions of 
 the conductor. Kansas Citv, M. & B. R. 
 Co. v. Higdon, 94 Ala. 286, *10 So. 282, 
 
 14: 515 
 Trunks sent over wrong road. 
 
 684. A railroad company receiving from 
 
 another carrier and transporting trunks 
 under the mistaken supposition, induced 
 by checks on the trunks, that they be- 
 long to passengers who have bought tickets 
 over its road when in fact the owners of 
 the trunks traveled by another route and 
 supposed their trunks were properly 
 checked, is not liable, on the ground of 
 mere negligence, for the loss of the trunks 
 by the fall of a railroad bridge. Beers v. 
 Boston & A. R. Co. 67 Conn. 417, 34 Atl. 
 541, 32: 535 
 
 Requiring proof that articles in trunk are 
 baggage. 
 
 685. A carrier may require a passenger 
 who has been in the habit of carrying in 
 his trunk articles of merchandise contrary 
 to its regulations to furnish satisfactory 
 proof of its contents, and decline to check 
 the trunk upon his refusal. Norfolk & W. 
 R. Co. v. Irvine, 85 Va. 217, 7 S. E. 233. 
 
 1: 110 
 
 686. A regulation of a carrier requiring 
 a passenger whom it suspects of carrying 
 articles of merchandise in his trunk, 
 against its regulations, to sign a certifi- 
 cate that the trunk contains nothing but 
 wearing apparel, is a reasonable regulation. 
 
 Id. 
 Delay of baggage. 
 
 687. Unnecessary delay of ' a carrier, 
 which subjects the goods in its possession 
 to a loss by an act of God which they 
 would not otherwise have met with, is of 
 itself such negligence as will make the 
 carrier liable for the loss. Wald v. Pitts- 
 burg, C. C. & St. L. R. Co. 162 111. 545, 44 
 N. E. 888, 35: 356 
 
 688. A carrier which, without sufficient 
 reason, fails to ship the trunk of a pas- 
 senger upon a limited train, upon the same 
 train, because of its negligence in omit- 
 ting to place the proper tag upon such 
 trunk, but ships it upon a later train which 
 comes in contact with a flood in itself an 
 act of God, by reason of which the bag- 
 gage is destroyed, is liable for the loss. 
 
 Id. 
 
 689. There is an implied undertaking on 
 the part of a railway company when a 
 passenger buys his ticket for passage upon 
 a limited express train, and applies to have 
 his baggage checked, that the baggage shall 
 go upon the same train on which he takes 
 passage, unless he gives some direction, 
 does something, or omits to do something 
 which authorizes the carrier to send the 
 baggage by another train. Id. 
 Leaving baggage at station before time for 
 
 train. 
 
 690. A carrier may be charged as in- 
 surer for baggage delivered at the station 
 before the starting of a train, only when 
 it is delivered within the time reasonably 
 necessary for obtaining the ticket, check- 
 ing the baggage, etc. Goldberg v. Ahnapee 
 & W. R. Co. 105 Wis. 1, 80 N. W. 920. 
 
 47: 221 
 
 691. A rule that baggage will not be 
 checked more than thirty minutes before 
 train time cannot be held unreasonable as 
 matter of law, nor can it be thus held
 
 CAKHIERS, II. , 12. 
 
 387 
 
 to be reasonable to leave baggage in the 
 evening for a train at six in the morning. 
 
 Id. 
 
 When liability for ceases. 
 For Editorial Notes, see infra, IV. 28. 
 
 692. The responsibility of a railroad 
 company fop baggage as a carrier after it 
 reaches the destination of the passenger 
 continues only until he has had a reason- 
 able time and opportunity to take it away. 
 Kansas City, Ft. S. & M. R. Co. v. Mc- 
 Gahey, 63 Ark. 344, 38 S. W. 659, 36: 781 
 
 693. A passenger who leaves his bag,- 
 gage on a depot platform merely because 
 on his arrival, after 11 o'clock at night, 
 there are no conveyances running by which 
 he can take it away, cannot hold the rail- 
 road company liable as a common carrier, 
 but only as a warehouseman if the bag- 
 gage is burned in the depot during the 
 night. \ Id. 
 
 6. What is Baggage. 
 
 See also infra, 710, 726, 727. 
 
 For Editorial Notes, see infra, IV. 28. 
 
 694. Only what a passenger takes with 
 him for his own personal use and con- 
 venience is within the meaning of a stat- 
 ute requiring carriers to check baggage. 
 Illinois C. R. Co. v. Matthews, 114 Ky. 
 973, 72 S. W. 302, 60: 846 
 
 695. Articles which are not properly per- 
 sonal baggage, but which are taken by the 
 passenger as such with the carrier's knowl- 
 edge, either with or without payment of an 
 extra charge, will be regarded as such in 
 respect to the carrier's liability. Oakes 
 v. Northern P. R. Co. 20 Or. 392, 26 Pac. 
 230, . 12: 318 
 
 696. A carrier receiving as baggage 
 trunks and boxes which contain more than 
 ordinary baggage, of which fact it has no- 
 tice, is estopped from denying its responsi- 
 bility for them as baggage. Kansas City, 
 Ft. S. & M. R. Co. v. McGahey, 63 Ark. 344, 
 38 S. W. 659, 36: 781 
 
 697. Notice to the carrier that a package 
 delivered to it for transportation as bag- 
 gage contains articles which are not such 
 is not imputed by the fact that the pas- 
 senger pays a charge for excessive weight. 
 Illinois C. R. Co. v. Matthews, 114 Ky. 
 973, 72 S. W. 302, 60: 846 
 
 698. One engaged in the business of 
 transporting baggage is liable for the value 
 of articles necessary for use in travel, con- 
 tained in a valise which has been delivered 
 to his agent for transportation, and has 
 been lost solely through such agent's neg- 
 ligence, notwithstanding He had posted 
 notices that he would not be responsible 
 for valises, and had instructed his agents 
 not to receive them, where the owner of 
 the valise was ignorant of those facts. 
 Staub v. Kendnek, 121 Ind. 226, 23 N. E. 
 79, 6: 619 
 Merchandise. 
 
 For Editorial Notes, see infra, IV. 28. 
 
 699. A carrier may assume liability for 
 merchandise delivered to it by a passen- 
 ger, equal to that which is imposed upon 
 
 it in case of baggage, by accepting it for 
 transportation as baggage, with knowledge 
 of its character. Illinois C. R. Co. v. 
 Matthews, 114 Ky. 973, 72 S. W. 302, 
 
 60: 846 
 
 700. Samples of merchandise carried by a 
 traveling salesman do not constitute bag- 
 gage within the meaning of Ark. act of 
 April 19, 1895, regulating charges on excess 
 baggage, but may be charged for by the 
 railroad company as freight. Kansas City, 
 P. & G. R. Co. v. State, 65 Ark. 363, 46 S. 
 W. 421, 41:333 
 
 701. Baggage, within the rule of a car- 
 rier's liability, is confined to articles us- 
 ually carried as such for the personal use 
 of the passenger, or for his convenience, 
 instruction, or amusement on the journey, 
 and does not include that which is carried 
 for the purpose of business, such as mer- 
 chandise or the like. Oakes v. Northern 
 P. R. Co. 20 Or. 392, 26 Pac. 230, 12: 318 
 Papers of insurance agent. 
 
 702. Papers pertaining to the business 
 of an insurance agent and belonging to 
 his employer are not baggage, and there- 
 fore, in case they are placed in. a trunk 
 which is checked as baggage, an action can- 
 not be maintained for the benefit of the 
 employer for loss caused by delay in their 
 transportation. Yazoo & M. V. R. Co. v. 
 Blackmar, 85 Miss. 7, 37 So. 500, 67: 646 
 Salesman's catalogue. 
 
 703. A catalogue prepared by a travel- 
 ing salesman at his own expense, and which 
 was his own individual property, and car- 
 ried with him as an article convenient and 
 necessary for use in his business while 
 traveling, is an article of personal bag- 
 gage for which he may recover when lost, 
 with other articles in a valise, by a bag- 
 srage-transfer carrier. Staub v. KendrSck, 
 121 Ind. 226, 23 N. E. 79, 6: 619 
 Sample trunks. 
 
 704. A railroad company is liable for the 
 loss of a sample trunk on a contract for 
 its transportation as freight, where it was 
 checked without any misrepresentation, 
 and without any release of liability or any 
 request therefor, on payment of a charge 
 for excess baggage, which was the same 
 for sample trunks as for ordinary baggage, 
 and the baggageman had constructive no- 
 tice of the character of the trunk from its 
 appearance and from other circumstances, 
 although there was a rule of the company 
 prohibiting the cnecking of sample trunks 
 without a release of liability. Trimble v. 
 New York C. & H. R. R. Co. 162 N. Y. 84, 
 56 N. E. 532, 48: 115 
 Stage properties. 
 
 705. Stage properties, costumes, -para- 
 phernalia, advertising matter, etc., are not 
 "baggage" within the rule of a carrier's 
 liability, unless accepted as such. Oakes 
 v. Northern P. R. Co. 20 Or. 392, 26 Pac. 
 230, 12: 318 
 Jewelry. 
 
 706. Ladies' jewelry is not a proper ar- 
 ticle of baggage to be carried in the trunk 
 of a man traveling alone, so as to render 
 the carrier liable for its value in case of its
 
 3?8 
 
 CARRIERS, II. a, 12. 
 
 loss, at least when it is placed in the 
 trunk simply for the purpose of having it 
 transported. Metz v. California S. R. Co. 
 85 Cal. 329, 24 Pac. 610, 9: 431 
 
 Money. 
 
 707. A carrier is liable for the transpor- 
 tation as baggage of money in an amount 
 more than is needed for use on the journey, 
 where the passenger, in ignorance of the 
 carrier's rules and instructions to the con- 
 trary, delivers it to the baggage agent and 
 informs him of the amount, and he ac- 
 cepts it to ship as baggage. St. Louis S. 
 W. R, Co. v. Berry, 60 Ark. 433, 30 S. W. 
 764, 28: 501 
 
 708. Money sufficient for personal use on 
 the journey may be included in baggage 
 for which the carrier will be liable as an 
 insurer if no more is taken than is neces- 
 sary or usual for persons of like station, 
 habits, and condition in life on similar 
 journeys. Id. 
 
 c. Taking Parcels on Train. 
 
 709. Small packages of merchandise, the 
 use of which is not personal to the pas- 
 senger in accomplishing the purpose of his 
 journey, cannot be taken in a passenger 
 car as part of the baggage which he is 
 allowed to take at common law. Runyan 
 v. Central R. Co. (N. J. Err. & App.) 
 61 N. J. L. 537, 41 Atl. 367, 43: 284 
 
 710. The baggage which a passenger is 
 entitled to take at common law includes 
 not only wearing apparel, but other ar- 
 ticles, within reasonable limit, for per- 
 sonal use during his journey and in accom- 
 plishing its purposes. Id. 
 Effect of custom. 
 
 Sufficiency of Proof of Custom, see Evi- 
 dence, 2350. 
 
 711. A usage or practice of passengers 
 to carry small packages of merchandise 
 into a car in derogation of the common-law 
 contract of carriage must, in order to be- 
 come a part of a contract so that it may 
 be relied upon by the passengers, be so 
 general, certain, uniform, and notorious, 
 and must be so clearly proved, that it can 
 be concluded that the officers and agents of 
 the carrier possessed knowledge of such 
 usage and acquiesced therein as part of the 
 contract. Runyan v. Central R. Co. (N. J. 
 Sup.) 64 N. J. L. 67, 44 Atl. 985, 48: 744 
 
 712. The mere indulgence by servants 
 of a railroad company of the practice by 
 passengers to carry packages of merchan-, 
 dise, when it is not in obedience to duty or 
 contract, cannot bind the carrier or pre- 
 vent it from discontinuing the practice. 
 
 Id. 
 
 713. A habit of one particular passenger 
 to carry a package of merchandise into tlie 
 passenger cars, and with him on his jour- 
 ney, will not constitute a usage or prac- 
 tice which can be relied on by passengers 
 as a general regulation of the railroad 
 company. Id. 
 
 714. Long acquiescence by a common car- 
 rier in the carriage of small packages of 
 
 merchandise by its passengers, and its 
 provision therefor in passenger cars, will 
 establish a regulation which cannot be 
 rescinded without reasonable notice. Run- 
 yan v. Central R. Co. (N. J. Err "& App.) 61 
 N. J. L. 537, 41 Atl. 367, 43: 284 
 
 Provisions in ticket affecting right. 
 
 715. The common-law right of a pas- 
 senger to carry personal baggage with him 
 is not restricted by a clause on his ticket 
 stating: "Free transportation allowed for 
 150 Ibs. baggage (wearing apparel) only, 
 and company's liability expressly limited 
 to $1 per Ib." Runyan v. Central R. Co. 
 (N. J. Err. & App.) 61 N. J. L. 537, 41 Atl. 
 367, 43: 284 
 
 716. The right to carry packages of gro- 
 ceries for the use of one's family is not 
 included in the right of a passenger to 
 ride on a commutation ticket entitling 
 him to "personaJ passage only." Bullock 
 v. Delaware, L. & W. R. Co. (N. J. Sup.) 
 60 N. J. L. 24, 36 Atl. 773, 37:417 
 Carrier's right to remove. 
 
 717. The forcible removal of parcels from 
 a passenger whose ticket does not entitle 
 him to carry them, and the transfer of 
 them to an express car, with orders to 
 carry them onward, constitute a conver- 
 sion. Bullock v. Delaware, L. & W. R. 
 Co. (N. J. Sup.) 60 N. J. L. 24, 36 Atl. 773, 
 
 37: 417 
 
 718. The remedy .of a carrier, when -a 
 passenger, after notice to remove packages 
 which he has no right to carry, refuses to 
 give them up, is to remove the passenger 
 and his packages, using no unnecessary 
 force; but the carrier has no right to take 
 his packages away from him forcibly. Id. 
 
 d. Liability of Sleeping Car Company. 
 
 Measure of Damages, see Damages, 234. 
 Presumpton as to Negligence, see Evidence, 
 
 475. 
 Question for Jury as to, see Trial, 95, 
 
 304. 
 For Editorial Notes, see infra, IV. 15. 
 
 719. A sleeping-car company must exer- 
 cise reasonable diligence in looking after 
 the person and property of passengers 
 while they are asleep on the car. Pull- 
 man's Palace Car Co. v. Adams, 120 Ala. 
 581, 24 So. 921, 45: 767 
 
 720. The mere fact that the porter did 
 not go to sleep during his watch will not 
 relieve the sleeping-car company of liabil- 
 ity for loss of effects of a passenger, if 
 he was guilty of other negligence which 
 caused the loss. Id. 
 
 721. A sleeping car company may be 
 found liable for loss of a passenger's ef- 
 fects, where the porter went to sleep dur- 
 ing his watch, and also left the car at a 
 station, with no one on watch on the in- 
 side of the car. Id. 
 
 722. A sleeping-car company, so far as it 
 renders services similar in kind to an inn- 
 keeper, is subject to the same liabilities; 
 and where an article of wearing apparel 
 belonging to a passenger in one of such
 
 CARRIERS, II. a, 12. 
 
 380 
 
 cars has been placed in the care of a por- 
 ter, and is stolen from the car, the company 
 will be liable therefor. Pullman Palace- 
 Car Co. v. Lowe, 28 j>feb. 239, 44 N. W. 226, 
 
 6: 809 
 
 723. The reasonable exercise of care to 
 protect the baggage of a sleeping passenger 
 is not shown by a sleeping-car company 
 which allows a number of passengers to 
 leave the car at a station, with baggage 
 in their hands, without paying any atten- 
 tion as to whose it is, where an employee 
 is present who knows the baggage of the 
 Bleeping passenger, and by attention might 
 prevent its removal from the 'car by a 
 stranger. Cooney v. Pullman Palace-Car 
 Co. 121 Ala. 368, 25 So. 712, 53: 690 
 
 724. Theft of a passenger's valise from 
 the sleeping car by one who took it out of 
 the car window by catching on to the car 
 as it slackened speed while crossing another 
 railroad will not render the sleeping-rar 
 company liable, where it had locked the 
 back door of the car, and the conductor 
 and porter were guarding the open door in 
 front, while the passenger himself was in 
 the smoking car. Pullman's Palace-Car Co. 
 v. Hall, 106 Ga. 765, 32 S. E. 923, 44: 790 
 For what property liable. 
 
 For Editorial Notes, see infra, IV. 15. 
 
 725. For such a sum of money and such 
 articles as a passenger might for her per- 
 sonal convenience and adornment appropri- 
 ately carry with her in a sleeping car, if 
 stolen by an employee while the passenger 
 was under his protection, the sleeping-car 
 company is liable. Pullman's Palace-Car 
 Co. v. Martin, 95 Ga. 314, 22 S. E. 700, 
 
 29: 498 
 
 726. A passenger on a sleeping car can- 
 not recover from the sleeping-car company 
 the value of a ring carried in his pocket- 
 book, and which was not capable of being 
 used by him on the journey, although the 
 loss occurred through its negligence. Pull- 
 man's Palace Car Co. v. Adams, 120 Ala. 
 581, 24 So. 921. 45: 767 
 
 727. A sleeping-car company through 
 whose negligence a satchel of a passenger 
 is lost is liable for mileage tickets, which it 
 is usual for such persons to carry, for 
 opera glasses, compass, razor and accoutre- 
 ments, and nasal syringe, with accom- 
 paniments, which were in the satchel, but 
 not for a pistol. Coonev v. Pullmani Palace- 
 Car Co. 121 Ala. 368, 25 bo. 712, 53: 690 
 Property in passenger's possession. 
 Action by Passenger for Theft of Money 
 
 Intrusted to Him, see Parties, 104. 
 
 728. Money carried during the day in a 
 passenger's clothing, and placed under his 
 pillow at night, is not in the custody of 
 the carrier furnishing him a berth in a 
 sleeping coach, within the rule that a car- 
 rier is liable for the value of the effects 
 of travelers lost while in its custody for 
 transportation. Carpenter v. New York, 
 N. H. & H. R. Co. 124 N. Y. 53, 26 N. E. 
 277, 11: 759 
 
 729. A sleeping-car company is not lia- 
 ble to a passenger for the loss by theft of 
 personal effects taken into the car by a 
 
 passenger for his own use and retained 
 in his possession, either under the rules 
 governing innkeepers or those relating to 
 carriers' liability for baggage, but the car- 
 rier is liable only for failure to exercise 
 reasonable care to guard the property. 
 Pullman's Palace-Car Co. v. Hall, 106 Ga. 
 765, 32 S. E. 923, 44: 790 
 
 730. The theft of diamond rings from 
 the finger of a woman while she is asleep 
 in a sleeping car gives her a right of ac- 
 tion against the sleeping-car company, if 
 the theft results from the failure of the 
 agents and employees in charge of the 
 car to use ordinary care and watchfulness 
 to protect her and her property from 
 thieves. Pullman's Palace Car Co. v. Hun- 
 ter, 107 Ky. 519, 54 S. W. 845, 47: 286 
 Theft by porter. 
 
 731. The theft of the money of a pas- 
 senger on a sleeping car by a porter in 
 charge of the car renders the sleeping-car 
 company liable therefor to the passenger. 
 Pullman Palace-Car Co. v. Gavin, 93 Tenn. 
 53, 23 S. W. 70, 21: 298 
 Contributory negligence. 
 
 732. A passenger on a sleeping car is 
 not required to place his pocketbook in 
 the safest place in order to hold the sleep- 
 ing-car company liable for its loss. Pull- 
 man's Palace Car Co. v. Adams, 120 Ala. 
 581, 24 So. 921, 45: 767 
 
 733. That a passenger removes a ring 
 from his finger to his pocketoook upon re- 
 tiring for the night in a sleeping car will 
 not deprive him of the right to hold the 
 sleeping-car company liable for its loss by 
 theft through its negligence. Id. 
 Fellow traveler's negligence. 
 
 734. The negligence of a fellow traveler 
 will not deprive a passenger on a sleeping 
 car of the right to hold the sleeping car 
 company liable for loss of his effects by 
 theft while he is asleep in the car. Pull- 
 man's Palace Car Co. v. Adams, 120 Ala. 
 581, 24 So. 921, 45: 767 
 
 e. Limitation of Liability. 
 
 As to Passengers, see supra, II. a, 10, f. 
 As to Freight generally, see infra, II. b, 
 
 7. 
 
 See also supra, 715. 
 For Editorial Notes, see infra, IV. 28, 
 
 33. 
 
 735. A steamship company is not entitled 
 to a limitation of its liability for loss of 
 passengers and baggage through the sink- 
 ing of its vessel, where its crew could not 
 understand the language of its officers, 
 and were not drilled in the launching of 
 the boats, so that after the accident but one 
 boat was successfully launched, although 
 there was time enough to launch them all 
 had proper orders been given and obeyed, 
 and the statute provides that no steamer 
 carrying passengers shall depart from any 
 port unless she shall have in her service 
 a full complement of licensed officers, and 
 a full crew sufficient at all times to man- 
 age the vessel. Re Pacific Mail S. S. Co. 
 64 C. C. A. 410, 130 Fed. 76, 69: 71
 
 390 
 
 CARRIERS, II. b, 1, 
 
 736. A regulation limiting the amount of 
 liability for injuries to baggage of a pas- 
 senger may be made by notice on the back 
 of a steamship contract ticket, where at- 
 tention is directed thereto by the words 
 'See back," conspicuously printed on the 
 face of the ticket, since the carrier's liabil- 
 ity as to baggage, not being exactly de- 
 fined, may be made definite and certain 
 by reasonable restrictions. Potter v. The 
 Majestic, 20 U. S. App. 503, 9 C. C. A. 
 161, 60 Fed. 624, 23: 746 
 [Reversed by the Supreme Court of the 
 United States, in 166 U. S. 375, 41 L. ed. 
 1039, 17 Sup. Ct. Rep. 597.] 
 
 737. A condition restricting the liability 
 of a steamship company to a passenger 
 by exempting it from liability for injuries 
 to person or baggage by perils of the sea 
 and negligence in navigation, among other 
 things, is so material a restriction of a 
 carrier's liability that it cannot be made 
 by notice on the back of a steamship con- 
 tract ticket, although the words "See back" 
 are conspicuously placed on the face of the 
 ticket. Potter v. The Majestic, 20 U. S. 
 App. 503, 9 C. C. A. 161, 60 Fed. 624, 
 
 23: 746 
 
 [Reversed on other grounds by the Su- 
 preme Court of the United States in 166 
 U. S. 375, 41 L. ed. 1039, 17 Sup. Ct. Rep. 
 597.] 
 
 b. As to Freight. 
 1. In General; Powers of Agents. 
 
 Matters as to Connecting Carriers, see 
 
 infra, II. c, 2. 
 Dut^ as to Tracing Freight Shipped Over 
 
 Connecting Lines, see infra, 1002-1005. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 I. b, 4. 
 Act Making Specification of Weights in 
 
 Bills of Lading Conclusive, see Con- 
 stitutional Law, 925. 
 Measure of Damages .for Breach of Duty as 
 
 to, see Damages, III. d. 
 Judicial Notice as to Special Street Cars 
 
 Carrying, see Evidence, 97. 
 Presumption and Burden of Proof as to 
 
 Negligence, see Evidence, II. h, 1, 6, 
 
 (2). 
 Passing of Title on Delivery to Carrier, see 
 
 Sale, 18-26. 
 Conversion by Carrier, see Trover, 15, 31- 
 
 33. 
 
 See also supra, 4. 
 For Editorial Notes, see infra, IV. 31- 
 
 47. 
 
 738. A shipper who procures the estab- 
 lishment of a train for the accommodation 
 of his business by guaranteeing the carrier 
 against loss, with the understanding that 
 it shall not be at the service of rivals, 
 cannot, when the carrier is compelled to 
 serve such rivals, compel them to con- 
 tribute to the expense of establishing the 
 train, since it would be impossible to state 
 an equitable account. One is no more 
 bound to contribute than are all who have 
 utilized the advantages of that train, and 
 
 no shipper is bound, as a condition of the 
 right to have his property transported by 
 a particular train, to share a burden volun- 
 tarily assumed by another shipper for 
 the purpose of having the train established. 
 Memphis News Pub. Co. v. Southern R. Co. 
 110 Tenn. 684, 75 S. W. 941, 63: 150 
 
 739. A contract binding a carrier to 
 transport as many carloads of grain as the 
 shipper may desire transported is valid 
 as to acts done in performance of it, and 
 until revoked. Cleveland, C. C. & I. R. Co. 
 v. Closser, 126 Ind. 348, 26 N. E. 159, 
 
 9: 754 
 
 740. A shipper's contract with a carrier 
 cannot be changed by handing a receipt or 
 bill of lading to his clerk. Rudell v. 
 Ogdensburg Transit Co. 117 Mich. 568, 76 
 N. W. 380, 44: 415 
 
 741. A bill of lading issued by a station 
 or shipping agent of a common carrier 
 without receiving goods for transportation 
 imposes no liability upon the carrier, even 
 to an innocent consignee or indorsee for 
 value; and the carrier is not estopped by 
 the bill from showing that no goods were 
 in fact received. National Bank of Com- 
 merce v. Chicago, B. & N. R. Co. 44 Minn. 
 224, 46 N. W. 342, 560, 9: 263 
 Powers of agents. 
 
 Power of Agents as to Passengers, see 
 
 supra, 14, 15. 
 See also supra, 741. 
 For Editorial Notes, see infra, IV. 38. ' 
 
 742. A contract by a carrier to deliver 
 goods at destination at a certain time, 
 which allows the usual period for making 
 the trip, id within the general authorit}' 
 of the carrier's agent. Rudell v. Ogdens- 
 burg Transit Co. 117 Mich. 568, 76 N. W. 
 380, 44: 415 
 
 743. A carrier which knowingly permits 
 one to act as its agent in such manner 
 and for such length of time as to induce 
 a person of ordinary prudence to believe 
 that such assumed agent is in fact a gen- 
 eral agent will be bound by his acts with- 
 in the apparent scope of his authority. 
 Seasongood, S. K. & Co. v. Tennessee & 
 O. R. Transp. Co. 21 Ky. L. Rep. 1142, 
 54 S. W. 193, 49: 270 
 
 744. An agent employed to solicit traf- 
 fic for a foreign railroad company having 
 no line of road in Nebraska has implied 
 authority to bind his principal for the safe 
 delivery of goods at a point beyond its 
 own lines, and to contract over what road 
 beyond that line the property shall be 
 transported. Union State Bank v. Fre- 
 mont, E. & M. Valley R. Co. 66 Neb. 159, 
 92 N. W. 131, 59: 939 
 
 745. A shipper's knowledge of directions 
 to the carrier's agent not to receive cer- 
 tain articles for transportation will not re- 
 lieve the carrier from liability if their 
 transportation is actually undertaken. 
 Bennett v. American Exp. Co. 83 Me. 236, 
 22 Atl. 159, 13: 33 
 Duty to place cars on switch. 
 
 See also infra, 968, 969. 
 
 746. A railroad company will not be com-
 
 CARRIERS, IL b. 2. 
 
 391 
 
 pelled to place cars on a switch in a public 
 street in front of the property of a shipper 
 who desires to load and unload them at 
 that point, in the absence of express au- 
 thority from the municipality to do so, 
 and conclusive evidence that it would not 
 be prejudicial to other patrons of the road. 
 Louisville & N. R. Co. v. Pittsburgh & K. 
 Coal Co. Ill Ky. 960, 64 S. W. 969, 
 
 55: 601 
 Payment of duties. 
 
 747. A carrier which pays the duties on 
 imported goods at the place of entry, when 
 it has agreed to receive and transport 
 them in bond to another place, where there 
 may be a market for the goods in bond for 
 purposes of export or tor sale to the United 
 States government, is liable to the owner 
 for the damages which he sustains on ac- 
 count of such unauthorized payment of the 
 duties by the carrier. Smith Bros. & Co. 
 v. New Orleans & N. E. R. Co. 106 La. 11, 
 30 So. 265, 54: 923 
 Requirement of notice of value and char- 
 acter. 
 
 See also infra, 782, 837. 
 
 748. "Trinkets," within the meaning of 
 U. S. Rev. Stat. 4281, U. S. Comp. Stat. 
 1901, p. 2942, requiring shippers of certain 
 articles to give written notice to the car- 
 rier of the true character and value there- 
 of, include fans and parasols made of deli- 
 cate and expensive materials, ornamented 
 with carving, fragile in construction, and 
 intended more for ornament than use, al- 
 though possessing to some extent the qual- 
 ity of utility. Ocean feteamship Co. v. 
 Way, 90 Ga. 747, 17 S. E. 57, 20: 123 
 
 749. A lady's shawl made exclusively of 
 Chantilly lace is "lace" within the meaning 
 of U. S. Rev. Stat. 4281, U. S. Comp. 
 Stat. 1901, p. 2942, requiring notice to car- 
 riers of the true character and value of 
 certain articles shipped. Id. 
 Express limits. 
 
 750. An express company may lawfully 
 establish limits beyond which it will not 
 collect or deliver packages carried or to 
 be carried by it, as against one having 
 knowledge of such limits; and it is imma- 
 terial that the limits extend farther from 
 its office in one direction than in another. 
 Billiard v. American Exp. Co. 107 Mich. 
 695, 65 N. W. 551, 33: 66 
 Agreement for insurance. 
 
 Parties to Action for Breach of, see Par- 
 ties, 164. 
 See also Insurance, 304. 
 
 751. A condition in a bill of lading, that 
 the shipper shall insure the goods for the 
 carrier's benefit, cannot protect the carrier 
 against the consequences of its own negli- 
 gence. Willock v. Pennsylvania R, Co. ICG 
 Pa. 184, 30 Atl. 948, 27: 228 
 
 2. Duty to Receive and Transport. 
 
 Penalty for Refusal to Receive, see infra, 
 
 1024. 
 Contract or Duty to Furnish Cars, see 
 
 infra, II. b, 8. 
 
 Agent's Right to Sue for Breach of Con- 
 tract to Transport, see Parties, 43. 
 
 Question for Jury as to Failure to Forward 
 Corpse, see Trial, 307. 
 
 See also supra, 745; infra, 846. 
 
 For Editorial Notes, see infra, IV. 42. 
 
 752. A common carrier is under a legal 
 duty to accept and carry whatever is of- 
 fered to him, at a reasonable time and 
 place, of a kind that he undertakes or is 
 accustomed to carry subject to the full lia- 
 bility of a common carrier, unless such lia- 
 bility is restricted by a valid agreement be- 
 tween such carrier and his employer. Kir- 
 by v. Western U. Teleg. Co. 4 S. D. 105, 439, 
 7 S. D. 623, 55 N. W. 759, 57 N. W. 199. 65 
 N. W. 37, 30: 612 
 
 753. A shipper who tenders fruit for 
 transportation in excess of the capacity of 
 the refrigerator cars which he has notified 
 the carrier he will need may recover for 
 the carrier's refusal to accept the excess, 
 unless such refusal is excused by the cir- 
 cumstances of the case. Mathis v. South- 
 ern R. Co. 65 S. C. 271, 43 S. E. 684, 
 
 61 : 824 
 
 754. It is the duty of an express com- 
 pany, under N. C. Code, 1964, which re- 
 quires that agents shall receive articles for 
 transportation "whenever tendered at a 
 regular depot. . . . and shall forward 
 the same by the route selected by the per- 
 son tendering the freight, under existing 
 laws," to receive a package of money 
 "whenever tendered," except at times for 
 repose or for taking meals according to the 
 usages of the place; the words "under 
 existing laws" refer only to the time of 
 forwarding. Therefore a rule of the com- 
 pany prohibiting the receipt of money 
 packages except on the same day of, and 
 prior to, the arrival and departure of 
 trains going towards the destination , of 
 the package, is unreasonable and void. Al- 
 sop v. Southern Exp. Co. 104 N. C. 278, 10 
 S. E. 297, 6: 271 
 What justifies refusal. 
 
 For Editorial Notes, see infra, IV. 42. 
 
 755. A railroad company which refuses 
 to receive fruit for transportation because 
 it is not in a properly iced refrigerator 
 car cannot relieve itself from liability for 
 breach of its duty to transport the fruit 
 on the ground that it did not hold itself 
 out to the public as furnishing such cars 
 for that purpose. Mathis v. Southern R. 
 Co. 65 S. C. 271, 43 S. E. 684, 61: 824 
 
 756. A railroad company cannot refuse to 
 accept fruit for transportation because re- 
 frigerator cars are necessary therefor, 
 which are provided and furnished only by 
 another company. Id. 
 
 757. The liability of a railroad company 
 for refusal to accept fruit for transporta- 
 tion does not depend upon its having made 
 an agreement to furnish properly refriger- 
 ated cars. Id. 
 
 758. A common carrier has no right to de- 
 mand of a shipper a waiver of his rights 
 as a condition precedent to receiving 
 freight/ Missouri P. R. Co. v. Fagan, 72 
 Tex. 127, 9 S. W. 749, 2: 75
 
 392 
 
 CARRIERS, II. b, 8. 
 
 759. That freight is destined to a point 
 beyond its line will not authorize a car- 
 rier to refuse to accept it when tendered 
 to it for transportation. Seasongood, S. 
 K. & Co. v. Tennessee & O. R. Transp. Co. 
 21 Ky. L. Rep. 1142, 54 S. W. 193, 49: 270 
 
 760. An agreement between rival car- 
 riers, that each will accept only freight 
 destined to points within certain specified 
 limits, will not absolve one from liability 
 to shippers for refusal to accept freight 
 destined for points within another's terri- 
 tory. Id. 
 Liability for loss resulting from refusal. 
 Measure of Damages for Refusal, see Dam- 
 ages, 232. 
 
 Allegations as to, see Pleading, 362. 
 
 761. A carrier refusing to accept freight 
 tendered may be held liable for its loss by 
 theft before the owner has opportunity, 
 after notice of refusal, to make some safer 
 disposition of it than to leave it in the 
 warehouse at the wharf. Seasongood, S. 
 K. & Co. v. Tennessee & O. R. Transp. Co. 
 21 Ky. L. Rep. 1142, 54 S. W. 193, 49: 270 
 
 3. Loss of, or Injury to, Property. 
 
 Termination of Liability for, see infra, II. 
 b, 4, 6. 
 
 Loss of, or Injury to Live Stock, see infra, 
 II. b, 6. 
 
 Stipulations to Limit Liability, see infra, 
 II. b, 7. 
 
 Perils Excepted by Contract of Carriage, 
 see infra, II. b, 7, e. 
 
 By Connecting Carrier, see infra, 986. 
 
 Act of God Relieving, from Liability, see 
 Act of God, 6-11. 
 
 Evidence Admissible to Show That No 
 Goods Were Lost, see Appeal and 
 Error, 960. 
 
 Action on the Case for Injury, see Case, 
 7. 
 
 Estoppel of Consignee by Giving Clear Re- 
 ceipt, see Estoppel, 140. 
 
 Presumption and Burden of Proof as to 
 Negligence, see Evidence, 481^90. 
 
 Presumption and Burden of Proof as to 
 Condition of Property on its Receipt 
 by Carrier, see Evidence, 755, 766. 
 
 Evidence of, see Evidence, 972. 
 
 Sufficiency of Proof of Condition on De- 
 livery to Carrier, see Evidence, 2251. 
 
 Liability to Insurer Paying Loss, see In- 
 surance, 1254. 
 
 Liability for Loss of Mail, see Postoffice, 
 9-12. 
 
 Proximate Cause of Loss, see Proximate 
 Cause, 64. 
 
 Subrogation of Carrier, see Insurance, VI. 
 f; Subrogation, 3. 
 
 Question for Jury as to, see Trial, 581. 
 
 Trover for Injury, see Trover, 33. 
 
 See also supra, 751, 761; infra, 784, 827- 
 835. 
 
 For Editorial Notes, see infra, IV. 31, 
 39. 
 
 762. A carrier's duty is not limited to 
 the transportation of goods delivered for 
 carriage. He must exercise such difigence 
 
 as is required by law to protect the goods 
 from destruction and injury from any 
 source, which may be averted and which in 
 the exercise of care and ordinary intelli- 
 gence may be known or anticipated. Beard 
 v. Illinois C. R. Co. 79 Iowa, 518, 44 N. W. 
 800, 7 : 280 
 
 763. A carrier cannot absolve itself from 
 its duty to furnish safe cars by exact- 
 ing a contract requiring the shipper to in- 
 spect and select his car, where the shipper 
 is induced to take the risk by safe, but 
 false, appearances, while the carrier knows 
 that the car selected is unsafe. Lake Erie 
 & W. R. Co. v. Holland, 162 Ind. 406, 69 
 N. E. 138, 63: 948 
 
 764. The rate of charges as shown by 
 the waybill of butter, if it does not ex- 
 press a contract to excuse the carrier from 
 the exercise ofHhe care required by law, 
 although it is the rate for common cars, 
 will not limit the care to be exercised by 
 the carrier or restrict its liability. Beard 
 v. Illinois C. R. Co. 79 Iowa, 518, 44 N. W.' 
 800, 7 : 280 
 By fire. 
 
 Limitation of Liability as to, see infra, 
 941-946. 
 
 Proximate Cause of Loss by, see Proxi- 
 mate Cause, 31, 36. 
 
 See also infra, 778, 794, 795. 
 
 765. While common carriers are not con- 
 sidered, under the provision of the Civil 
 Code of Louisiana, as insurers against loss 
 or damage by fire, they are liable "un- 
 less they can prove that such loss or dam- 
 age has been occasioned by accidental and 
 uncontrollable events." Lehman, Stern, & 
 Co. v. Morgan's L. & T. R. & S. S. Co. 115 
 La. 1, 38 So. 873, 70: 562 
 
 766. Where cotton on a railroad plat- 
 form, in course of delivery, is damaged by 
 fire, the carrier, in order to escape liability, 
 must prove that the fire was purely ac- 
 cidental and impossible to prevent; and, 
 in the absence of proof of the origin of 
 the fire, the loss will be imputed to the 
 fault of the carrier. Id. 
 
 767. The jury may properly find that 
 the failure of a carrier to rescue goods 
 from a car which had been overturned by 
 the force of the wind, before they were 
 consumed by fire started by the stove fire 
 and lights within the car, was not negli- 
 gence, where ,the evidence shows that" the 
 wind was so strong as to render it almost 
 impossible for men to stand or walk, while 
 the air was so full of dust and flying 
 material that scarcely anything could be 
 seen, and the fire succeeded the overturn- 
 ing almost instantaneously, so that even 
 the messengers within the car escaped with 
 great difficulty. Blythe v. Denver & R. G. 
 R. Co. 15 Colo. 333, 25 Pac. 702, 11: 615 
 
 768. Under a contract for transportation 
 of property by a transportation agency by 
 means of which certain carriers contract 
 for the carriage of freight over their con- 
 necting lines, which provides that no car- 
 rier shall be liable after the property is 
 ready for delivery to the next carrier, a 
 railroad company is not liable if the prop-
 
 CARRIERS, II. b, 3. 
 
 393 
 
 erty is accidentally destroyed by fire in its 
 warehouse on a pier where it is awaiting 
 the arrival of a vessel of an ocean carrier 
 by which it is to be taken to its destina- 
 tion, and which has no place of storage 
 of its own. Courteen v. Kanawha Des- 
 patch, 111 Wis. 610, 86 N. W. 176, 55: 182 
 
 769. A carrier which, by contract or by 
 usage, selects a compress company as its 
 agent to receive cotton that is to be 
 shipped over its road, and issues bills of 
 lading therefor on presentation of the com- 
 press company's receipts, is in possession of 
 the cotton when the bill of lading has been 
 executed, so as to be liable for its loss by 
 fire. Deming v. Merchants' Cotton-Press & 
 S. Co. 90 Tenn. 306, 17 S. W. 89, 13: 518 
 
 770. No rights of a shipper, growing out 
 of a contract between the carrier and its 
 agent that the latter shall procure insur- 
 ance on the shipper's property wl*ile in its 
 possession as such agent, can be adjusted, 
 as between the shipper and agent, in case 
 of the loss of the property by fire, unless 
 the carrier has been sued and its liability 
 for the loss established. Id. 
 By freezing. 
 
 Limitation of Liability as to, see infra, 
 940. 
 
 771. A carrier which sends a carload of 
 orange trees early in March from New 
 Orleans, Louisiana, to Riverside, California, 
 by the way of Denver, Colorado, and Ogden, 
 Utah, without notifying the consignees or 
 consignor and taking directions from them, 
 is liable for the loss of the trees by freez- 
 ing, although its own route through Texas, 
 New Mexico, and Arizona was temporarily 
 interrupted by storms and washouts. Pierce 
 v. Southern P. Co. 120 Cal. 156, 47 Pac. 874, 
 52 Pac. 302, 40: 350 
 By lack of proper refrigeration. 
 Evidence of Custom as to, see Evidence, 
 
 2052. 
 
 772. The loss of perishable freight on ac- 
 count of lack of proper refrigeration, when 
 shipped in refrigerator cars, renders the 
 railroad company liable to the shipper, al- 
 though the cars were leased by the rail- 
 road company from a transportation com- 
 pany which agreed to keep them properly 
 refrigerated. New York, P. & N. R. Co. 
 v. Cromwell, 98 Va. 227, 35 S. E. 444, 
 
 49: 462 
 
 773. A railroad company which contracts 
 to furnish a refrigerator car for the trans- 
 portation of fruit cannot relieve itself from 
 liability because of failure to have the car 
 properly iced on the ground that it be- 
 longs to another company. Mathis v. 
 Southern R. Co. 65 S. C. 271, 43 S. E. 
 684, 61 : 824 
 
 774. A carrier which has accepted butter 
 for transportation cannot .escape liability 
 for damage to the butter from the heat 
 during transportation by the fact that it 
 did not have refrigerator cars which were 
 ready for use, at least when it could have 
 been carried safely by the use of ice in 
 the cars which were used. Beard v. Illi- 
 nois C. R, Co. 79 Iowa, 518, 44 N. W. 800, 
 
 7:280 
 
 775. The sealing of a car containing but- 
 ter when received from a connecting car- 
 rier is no excuse for failure to put ice in 
 the car if necessary to protect the butter 
 from the heat. Id. 
 By fermentation. 
 
 776. A carrier is not liable for the loss 
 due to the bursting of a hogshead of mo- 
 lasses by reason of fermentation, as this 
 results from the operation of natural laws 
 which a common carrier does not insure 
 against. Faucher v. Wilson, 68 N. H. 338, 
 38 Atl. 1002, 39: 431 
 By mob. 
 
 Limitation of Liability as to, see infra, 
 
 947. 
 
 See also infra, 830. 
 For Editorial Notes, see infra, IV. 42, 
 
 43. 
 
 777. A mob of rioters is not a public 
 enemy, within the exception to the rule 
 that makes a common carrier an insurer 
 of goods carried. Missouri P. R. Co. v. 
 Nevils, 60 Ark. 375, 30 S. W. 425, 28: 80 
 In warehouse. 
 
 778. Permitting a car labeled "Powder** 
 to stand in such close proximity to its 
 warehouse as to deter the city fire depart- 
 ment from attempting to extinguish a 
 fire in the warehouse will render a carrier 
 liable for the loss of goods in the ware- 
 house which would not have been destroyed 
 had the car not been there, although lia- 
 bility as carrier had ceased and there was 
 in fact no powder in the car. Hardman 
 v. Montana Union R. Co. 27 C. C. A. 407, 
 48 U. S. App. 570, 83 Fed. 88, 39: 300 
 Goods shipped C. 0. D. 
 
 779. A carrier which, having transport- 
 ed goods at consignor's risk C. O. D., pre- 
 sents a bill to the consignee before de- 
 livering them, knowing facts which indi- 
 cate that they have been damaged in tran- 
 sit, must disclose such facts, or it may be 
 compelled to return the money collected, in 
 case the consignment is rejected by the 
 consignee. Hardy v. American Exp. Co. 
 182 Mass. 328, 65 N. E. 375, 59: 731 
 
 780. That a carrier who collected the bill 
 for goods carried C. O. D., before deliver- 
 ing them, with knowledge of their prob- 
 able injury in transit, has delivered the 
 fund to the consignor, will not absolve him 
 from liability to return the amount to the 
 consignee, in case notice of refusal to re- 
 ceive the goods is given him within a rea- 
 sonable time. Id. 
 
 781. A notice by a consignee of goods C. 
 0. D. who, before delivery of the goods, 
 paid the bill to the carrier, who presented 
 it knowing of the probable injury of the 
 goods in transit, that he put in a claim 
 for the entire shipment, and held the goods 
 subject to the carrier's inspection, may 
 be found by the jury to be a sufficient in- 
 dication of readiness to rescind, although 
 no tender of the goods was actually made 
 and they were of some value, where the 
 circumstances indicate an absolute denial 
 of liability, and that a tender would have 
 been of no avail. Id.
 
 394 
 
 CARRIER 5 ', H. b, 4. 
 
 Effect of shipper's fraud. 
 
 782. A constructive, if not an actual, 
 fraud to obtain cheap rates of freight, 
 which relieves the carrier from liability for 
 loss of the goods, is shown where a man 
 of intelligence ships in a basket with a 
 rope around it, without making known its 
 contents, a quantity of silks, satins, laces, 
 curtains, silver spoons, and other valuable 
 articles, most of which are for sale by his 
 wife in her business as a dressmaker and 
 milliner, and remains silent when he hears 
 "the carrier's agent designating them as 
 household goods," the rate on which is 
 very much less than that on merchandise. 
 Shackt v. Illinois C. R. Co. 94 Tenn. 658, 30 
 S. W. 742, 28: 176 
 
 4. Delivery by Carrier; Delay, 
 o. In General; Refusal to Deliver. 
 
 Measure of Damages for Nondelivery, see 
 
 Damages, 235, 236. 
 See also infra, 967. 
 For Editorial Notes, see infra, IV. 44. 
 
 Place of delivery. 
 
 Burden of Proof as to, see Evidence, 237. 
 
 Enforcing by Quo Warranto, see Quo War- 
 
 ranto, 8. 
 See also infra, 798, 799. 
 
 783. A common carrier by water, who 
 receipts for goods marked for delivery at 
 a private landing, cannot, without ex- 
 cuse or justification, deliver them at an- 
 other landing without liability for the 
 damages so occasioned. Strieker v. Leath- 
 ers, 68 Miss. 803, 9 So. 821, 13: 600 
 
 784. Unloading goods during a storm on 
 an open platform and leaving them unpro- 
 tected from the weather is not a fault of 
 the carrier where there is no building at 
 that station or any agent of the carrier, 
 and the bill of lading provides that when 
 delivered on the platform they are at the 
 risk of the owner. Allam v. Pennsylvania 
 R. Co. 183 Pa. 174, 38 Atl. 709, 39: 535 
 
 785. A carrier must place freight carried 
 on platform cars to a station where it 
 maintains a freight house, but no agent, 
 in the house, to relieve itself from liabil- 
 ity for freight lost through theft, unless it 
 shows that it is not able to do so. Nor- 
 mile v. Northern P. R. Co. 36 Wash. 21, 
 77 Pac. 1087, 67: 271 
 Refusal to deliver. 
 
 Statutory Penalty for, as Interference with 
 
 Commerce, see Commerce, 49. 
 Relief in Equity in Case of, see Equity, 97. 
 See also supra, 785. 
 
 786. A carrier is not justified in refusing 
 to deliver consigned car loads of freight to 
 consignees because they have entered into 
 a combination to resist the enforcement of 
 rules providing demurrage for the unrea- 
 sonable detention of cars. Kentucky Wag- 
 on Mfjr. Co. v. Ohio & M. R. Co. 98 Ky. 
 152, 32^8. W. 595, 36: 850 
 
 787. A railroad company which refuses 
 to deliver freight because of refusal to pay 
 an excessive charge for carriage cannot es- 
 
 cape liability for the loss thereby caused 
 on the ground that the one making the 
 demand had not obtained possession of the 
 bill of lading, or an order for delivery from 
 the nominal consignee. Clegg v. Southern 
 R. Co. 135 N. C. 148, 47 S. E. 667, 65: 717 
 
 788. The penalty provided by the Texas 
 statute for the refusal of a railroad com- 
 pany to deliver freight on payment or ten- 
 der of the charges. due as shown by the bill 
 of lading applies only to a company which 
 has itself executed, authorized, or ratified 
 the execution of the bill of lading. Dwyer 
 v. Gulf, C. & S. F. R. Co. 75 Tex. 572, 12 
 
 5. W. 1001, 7: 478 
 
 789. The exhibition of the bill of lading 
 at the time of the tender of the charges 
 and demand of the goods is not a condi- 
 tion precedent to the recovery of a penal- 
 ty, under the Texas statute, for refusal to 
 deliver the goods, although such penalty 
 should be inflicted only for a wilful dis- 
 regard of the law. Id. 
 
 6. Notice of Arrival; Termination of Lia- 
 
 bility. 
 
 When Liability for Baggage Ceases, see 
 
 supra, 692, 693. 
 Termination of Initial Carrier's Liability, 
 
 see infra, 993-995. 
 
 Burden of Proof as to, see Evidence, 484. 
 For Editorial Notes, see infra, IV. 41. 
 
 790. It is not unlawful to stipulate, in a 
 bill of lading whiQh requires a ship to use 
 reasonable care in discharging goods at a 
 proper time and place, that no notice of 
 discharge need be given to the consignee. 
 Rolfe v. The Boskenna Bay, 40 Fed. 91, 
 
 6: 172 
 
 791. The liability of a carrier by rail 
 as such terminates upon the delivery of 
 the goods at a secure depot or warehouse 
 at the point of destination, though beyond 
 its own line, without notice to the con- 
 signee of the arrival or warehousing of the 
 goods. Illinois C. R. Co. v. Carter, lt>."> 111. 
 570, 46 N. E. 374, 36: 527 
 
 792. The liability of a railroad company 
 for goods in its possession for transporta- 
 tion as a common carrier does not cease, 
 and its liability as warehouseman begin, 
 until the goods are deposited in the depot 
 or warehouse. Pennsylvania R. ,Co. v. 
 Naive, 112 Tenn. 239, 79 S. W. 124, 64: 443 
 
 793. No new contract is created by the 
 fact that after goods have reached their 
 destination and been unloaded the carrier's 
 duty is by law reduced from that of car- 
 rier to that of warehouseman; but in 
 case of their nondelivery suit may be 
 brought on the original transportation 
 contract. Wilson v. California C. R. Co. 
 94 Cal. 166, 29 Pac. 861, 17: 685 
 Loss by fire. 
 
 794. A railroad company is not liable as 
 a common carrier for goods destroyed by 
 fire after they are unloaded and stored in 
 its depot, although the consignee had re- 
 peatedly called for them and been told that 
 they were not there. East Tennessee, V.
 
 CARRIERS, II. b, 4. 
 
 395 
 
 & G. R, Co. v. Kelly, 91 Tenn. 699, 20 S. 
 W. 312, 17: 691 
 
 795. A carrier is liable for the loss of 
 goods by fire while stored in a warehouse at 
 the place of destination, because not called 
 for by the owner, where the carrier, after 
 receiving the goods, had refused to ship 
 them without prepayment of freight, and 
 then promised to hold them during the de- 
 tention of the owner, but afterwards ship- 
 ped them without notice to the owner, 
 who did not know of the shipment until 
 after the fire. Campion v. Canadian P. R. 
 Co. 43 Fed. 775, 11: 128 
 Necessity of notice. 
 
 796. The rule that a carrier must give no- 
 tice to the consignee of the arrival of goods 
 at destination is subject to exceptions grow- 
 ing out of special circumstances an.i out of 
 customs that have grown up for the mutua! 
 advantage of shipper and carrier. 'Allam v. 
 Pennsylvania R. Co. 183 Pa. 174, 38 At!. 709, 
 
 39: 535 
 
 797. Ordinarily a carrier by water must 
 notify the consignee of the arrival of goods 
 before its liability as carrier terminates, but 
 such notice may be waived by a former 
 course of dealing with the consignee, or by 
 usage prevailing among carriers in the same 
 trade at that port. Illinois C. R. Co. v. Car- 
 ter, 165 111. 570, 46 N. E. 374, 36: 527 
 
 798. A condition in a bill of lading by 
 which the consignee agrees to be ready to 
 receive his goods when the ship is ready to 
 unload, that in default thereof the ship may 
 land, warehouse, or place them in a lighter 
 without notice, immediately, at his risk and 
 expense, after the goods leave the deck of 
 the ship, exempts the ship from the duty of 
 giving him any notice, but not from the 
 duty of exercising reasonable care to dis- 
 charge them at a suitable place. Rolfe v. 
 The Boskenna Bay, 40 *'ed. 91, 6: 172 
 
 799. Where a consignee stipulates that 
 goods may be discharged without notice to 
 him at his risk after they leave the deck of 
 the ship, there is no negligence on the part 
 of the master, which will render the ship 
 liable for injuries to the goods after their 
 discharge, if they are discharged at a place 
 and time, and in a manner, to which the 
 consignee, if present, could -not reasonably 
 object, and are placea in proper custody. 
 
 Id. 
 
 800. Notice must be given a consignee up- 
 on arrival and storage of goods, in order to 
 reduce the degree of care required of the 
 carrier to that of a warehouseman, under 
 Cal. Cir. Code, 2120, providing that if for 
 any reason a carrier does not deliver freight 
 to the consignee or his agent personally he 
 must give notice to the consignee of its ar- 
 rival, and keep the same in safety, on his 
 responsibility as a. warehouseman, until the 
 consignee has had a reasonable time to re- 
 move it. Wilson v. California C. R. Co. 94 
 Cal. 166, 29 Pac. 861, 17: 685 
 Delay in giving notice. 
 
 See also infra, 833. 
 
 801. The liability of a carrier for neg- 
 lect to give prompt notice of the arrival of 
 
 perishable goods is not destroyed by the 
 failure of the consignee to make inquiries 
 for them, although he has reason to believe 
 that they are overdue. Pennsylvania R. Co. 
 v. Naive, 112 Tenn. 239, 79 S. W. 124, 
 
 64: 44o 
 Sufficiency of notice. 
 
 802. Mailing notice of the arrival of the 
 consignment of freight to the consignee at 
 the place of its destination is sufficient. 
 Normile v. Northern P. R. Co. 36 Wash. 21, 
 77 Pac. 1087, 67:271 
 
 803. Written notice of the arrival of a 
 consignment of freight need not be given to 
 a consignee if he has actual notice thereof. 
 
 jid. 
 
 Delay by consignee in removal. 
 Question for Jury as to, see Trial, 154. 
 
 804. Reasonable time to accept and re- 
 move goods after their arrival is given before 
 the liability of a carrier is reduced to that 
 of a warehouseman. Missouri P. R. Co. v. 
 Nevils, 60 Ark. 375, 30 S. W. 425, 28: 80 
 
 805. A reasonable time within which to 
 remove from the depot household goods 
 shipped from Indiana to California is not, as 
 matter of law, limited to three months, 
 where the owner wrote the freight agent a 
 letter received two days after the arrival of 
 the goods, notifying him that she was sick 
 and asking him to store the goods in a fire- 
 proof warehouse, and the only attempt at 
 giving her notice of their arrival was a let- 
 ter so defectively addressed that it never 
 reached her, and possibly a postal card ad- 
 dressed to her at the point of destination. 
 Wilson v. California C. R. Co. 94 Cal. 166, 
 29 Pac. 861, 17:685 
 
 806. A consignee of freight loaded on a 
 flat car which is placed on a side track at 
 a station where no agent is maintained by 
 the company is not guilty of laches when, 
 after receiving notice of the arrival of the 
 property and communicating with the agent 
 having supervision of the station, insuffi- 
 cient time remains to effect a removal that 
 day, so that his vehicle does not reach the 
 car until the next morning. Normile v. 
 Northern P. R. Co. 36 Wash. 21, 77 Pac. 
 1087, 67: 271 
 
 o. Misdelivery; Wrongful Delivery. 
 
 Punitive Damages for Delivery at Wrong 
 
 Landing, see Damages, 85. 
 Allegations as to, see Pleading, 284. 
 For Editorial Notes, see infra, IV. 39, 44. 
 
 To impostor. 
 
 For Editorial Notes, see infra, IV. 44. 
 
 807. An express company is not relieved 
 from liability for the delivery of a package 
 of money to an impostor representing that 
 he is the consignee, by the fact that sucu 
 impostor telegraphed for such money in the 
 name of the consignee and a reply to the 
 latter was delivered to such impostor, and 
 that the sender of the money believed that 
 the telegram was from the person by whom 
 it purported to have been sent. Pacific Exp. 
 Co. v. Shearer, 160 111. 215, 43 N. E. 816, 
 
 37: 177
 
 CARRIERS, II. b, 4. 
 
 To officer. 
 
 For Editorial Notes, see infra, IV. 40. 
 
 808. Seizure of property in the course of 
 transportation, by an officer without any 
 warrant or other legal process, does not ex- 
 cuse the carrier for nondelivery. Bennett 
 v. American Exp. Co. 83 Me. 236, 22 Atl. 159, 
 
 13: 33 
 
 To one having title paramount. 
 Burden of Proving Ownership, see Evidence, 
 
 605. 
 For Editorial Notes, see infra, IV. 36. 
 
 809. The fact that goods were taken from 
 the possession of a carrier by one having 
 title paramount to that of the consignor is 
 a good defense to an action by the consignee 
 or the indorsee of the bill of lading for the 
 nondelivery of the property. Matioiial Bank 
 of Commerce v. Chicago, B. & N. R. Co. 44 
 Minn. 224, 46 N. W. 342, 560, 9: 263 
 To holder of bill of lading or consignee. 
 For Editorial Notes, see infra, IV. 44. 
 
 810. A carrier must deliver goods to the 
 true owner, claiming under the consienee, 
 when it has notice of the true owner's rights, 
 and the bill of lading has alrendy been sur- 
 rendered. National Newark Bkg. Co. v. Del- 
 aware, L. & W. R. Co. (N. J. Err. & App.) 
 70 N. J. L. 774, 58 Atl. 311, 66: 595 
 
 811. A carrier is an insurer of the safe de- 
 livery of the goods to the person to whom 
 they are consigned. Pacific Exp. Co. v. 
 Shearer, 160 111. 215, 43 N. E. 816, 37: 177 
 
 812. No fraud or imposition practised up- 
 on a carrier, and no mistake of the carrier or 
 its agent, however satisfactory the circum- 
 stances of identification may be, will relieve 
 the carrier from liability for delivery of the 
 goods to a person other than the one to 
 whom they are consigned. Id. 
 
 813. A railroad company is not liable for 
 delivery to the consignee, to whom goods are 
 billed, without notice to it that the bill of 
 lading has been forwarded to a bank with a 
 draft attached for collection, although the 
 bill of lading is not produced. Nebraska 
 Meal Mills v. St. Louis S. W. R. Co. 64 Ark. 
 169, 41 S. W. 810, 38: 353 
 
 814. The right of a carrier to deliver to the 
 consignee is not affected by the Arkansas 
 statute declaring bills of lading negotiable, 
 and that any person to whom the same are 
 transferred shall be held the owner so far 
 as to give validity to any pledge, lien, or 
 transfer upon the faith thereof, and that no 
 property specified therein shall be delivered 
 except on the surrender and cancelation of 
 the bill of lading, except in cases where the 
 bill of lading has been transferred. Id. 
 
 815. A local custom to deliver goods to 
 any person who holds the bill of lading, but 
 which is not a general custom, does not bind 
 a shipper who takes a bill of lading, naming 
 himself as consignee, at least if he has no 
 knowledge of it. Weyand v. Atchison, T. & 
 S. F. R. Co. 75 Iowa, 573, 39 N. VV. 809, 
 
 1: 650 
 
 816. Where a shipper takes a bill of lad- 
 ing for the delivery of goods to himself, the 
 carrier is liable for delivery to another per- 
 
 son on his mere presentation of the bin of 
 lading unindorsed. Id. 
 
 817. A written order signed by one of the 
 partners of a firm to which a bill of lading 
 has been indorsed, directing the carrier to 
 make delivery of the goods to another per- 
 son, is sufficient to justify the carrier in do- 
 ing so, although the signer privately intend- 
 ed it as his individual act, if this was not 
 known to the carrier and the circumstances 
 justified treating it as an act of the partner- 
 ship. Chicago Packing & P. Co. v. Savannah, 
 F. & 'W. R. Co. 103 Ga. 140, 29 S. E. 698, 
 
 40: 367 
 
 818. The delivery of goods by a carrier at 
 destination, without requiring the surrender 
 of a bill of lading, as required by a stipula- 
 tion therein, does not involve any breach of 
 duty to the consignor, if the delivery is made 
 to the consignee, or upon his order, or by 
 his authority. Id. 
 
 819. A railroad company via whose com- 
 press cotton is shipped on a through bill of 
 lading, a manifest of which accompanies the 
 property consigned to "order notify" con- 
 signor, is liable to the holder of the bill of 
 lading for the loss thereby inflicted on him 
 in case the cotton is delivered from the 
 compress to a third person unaer direction of 
 the consignor. Southern R. Co. v. Atlanta 
 Nat. Bank, 50 C. C. A. 558, 112 Fed. 861, 
 
 56: 546 
 
 820. A carrier which issues, in exchange 
 for bills of lading surrendered to it, orders 
 directing the delivery of grain en route to 
 certain purchasers, or the consignee or his 
 order, on presentation of the orders, and 
 stamps across the face of them a statement, 
 signed by its agent, that cars are to be de- 
 livered on them the same as on the bills of 
 lading taken up, is thereby charged with no- 
 tice of the rights of a bank to whom the 
 orders are transferred upon the indorsement 
 of the consignee, and is liable to it in an 
 action for the conversion of the grain by 
 delivering it to the purchasers from the con- 
 signee, upon the tatter's written instructions, 
 without a presentation of the orders. Na- 
 tional Newark Bkg. Co. v. Delaware, L. & 
 W. R. Co. (N. J. Err. & App.) 70 <N. J. L. 
 774, 58 Atl. 311, 66: 595 
 
 821. Where parties made a contract in 
 their own names with a carrier for the de- 
 livery of goods to themselves, any delivery 
 by the carrier to a purchaser, before the 
 shippers have parted with the right of pos- 
 session, is at the carrier's own risk; and it 
 does not devolve on the carrier to decide 
 whether by the contract of purchase the 
 purchaser was entitled to the delivery, or 
 not. Wolfe v. Missouri P. R. Co. 97 Mo. 473, 
 11 S. W. 49, 3: 539 
 To purchaser before payment. 
 
 822. Where a carrier by, whom goods sold 
 are shipped to be delivered to the vendee up- 
 on the payment of the purchase money neg- 
 ligently delivers the goods before such pay- 
 ment, neither the carrier nor the vendor can 
 recover the goods from a bona fide purchaser 
 from the vendee. Norfolk S. R. Co. v. 
 Barnes, 104 N. C. 25, 10 S. E. 83, 5: 611
 
 CARRIERS, II. b, 5. 
 
 397 
 
 d. Time; Delay. 
 
 Prejudicial Error in Admitting Opinion as to 
 
 Delay, see Appeal and Error, 925. 
 Presumption as to, see Evidence, 491, 492. 
 Delay by Strike, Evidence of Means to 
 
 Avoid Effects of, see Evidence, 2017. 
 Interest on Damages Allowed for Delay, see 
 
 Interest, 31. 
 
 Question for Jury as to, see Trial, 306. 
 See also supra, 799, 801, 804-806. 
 For Editorial Notes, see infra, IV. 39, 42, 
 
 43. 
 
 823. It is the duty of a common carrier to 
 whom goods are delivered for transporta- 
 tion, to forward them promptly, and with- 
 out unreasonable delay, to their destination. 
 Bibb Broom Corn Co. v. Atchison, T. & S. F. 
 R. Co. 91 Minn. 269, 102 N. W. 709, 69: 509 
 
 824. Accidents and obstructions, although 
 excusing a carrier's delay, do not ptit an end 
 to the contract, which must be completed as 
 soon as the impediment to transportation is 
 removed or can reasonably be overcome. 
 Baltimore & O. R. Co. v. O'Donnell, 47 Ohio 
 St. 489, 32 N. E. 476, 21:117 
 
 825. A carrier sued for failure to deliver 
 freight in proper time, according to con- 
 tract, may show, as a defense, an impossi- 
 bility to deliver the freight before it did so, 
 because of a strike on the road and a conse- 
 quent interference with its operation. In- 
 ternational & G. N. R. Co. v. Tisdale, 74 
 Tex. 8, 11 S. W. 900, 4: 545 
 
 826. The service of a garnishee summons 
 upon a carrier after goods have been received 
 and placed in a car for interstate transpor- 
 tation, although the car has not yet been 
 put into the train, does not excuse the car- 
 rier from its duties as such, or authorize un- 
 reasonable delay in forwarding the property 
 to its destination. Baldwin v. Great North- 
 ern R. Co. 81 Minn. 247, 83 N. W. 986, 
 
 51:640 
 
 Injuries due to delay. 
 
 Measure of Damages for, see Damages, 233. 
 Delay as Proximate Cause of Injury, see 
 Proximate Cause, 64. 
 
 827. A carrier who negligently and care- 
 lessly delays a shipment is liable for the 
 loss, where the goods are overtaken in tran- 
 sit and damaged by an act of God which 
 would not have caused the damage had 
 there been no delay, even though the act of 
 God could not reasombly be anticipated; 
 and this is true whether the goods are in 
 tbeir nnture perishable or nonperishable. 
 Bibb Broom Corn 'Co. v. Atchison, T. & S. F. 
 R. Co. 91 Minn. 269, 102 N. W. 709, 69: 509 
 
 828. A carrier who accepts for transporta- 
 tion an article liable to be innired bv freez- 
 ing unrler a special contract for delivery to 
 a connecting line by a fixed time, and who 
 negligently delays delivery to the connecting 
 line, will be liable for damasres occasioned 
 by freezing on the connecting line, in conse- 
 quence of such delay, wfiere such freezing 
 was reasonably to be anticipated and was 
 contemplated by the parties. Fox v. Boston 
 & M. R. Co. 148 Mass. 220, 19 N. E. 222, 
 
 1: 702 
 
 829. Delay by the initial carrier in the 
 
 transportation of goods at a season when 
 weather conditions would naturally produce 
 deterioration in their quality, which may 
 have aided in causing the damaged condition 
 in which they were delivered to the con^ign- 
 ee, will render it liable for the loss unless 
 it shows that its delay did not produce 
 the injury in whole or in part, although de- 
 lay by a connecting carrier is also shown, 
 which might have caused or contributed to 
 the injury. St. Louis, I. M. & S. R. Co. v. 
 Coolidge, 73 ATK. 112, 83 S. W. 333, 67: 555 
 
 830. Delay in the transportation of goods, 
 which is caused solely by a mob, will not 
 render the carrier liable at common law to 
 make good losses arising from a decline in 
 the market price, or from the deterioration 
 in their quality on account of their perish- 
 able nature, during time of transit. Gulf, 
 C. & S. F. R. Co. v. Levi, 76 Tex. 337, 13 S. 
 W. 191, 8: 323 
 Suspension of business during holiday. 
 
 831. A custom to suspend business on the 
 4th of July is not unreasonable even when 
 applied to the delivery, by a carrier, of per- 
 ishable freight on that, day; although the 
 weather in the locality is usually very warm 
 at that time of the year. Pennsylvania R. 
 Co. v. Naive, 112 Tenn. 239, 79 S. W. 124, 
 
 64: 443 
 
 832. A custom to suspend business on a 
 holiday does not violate the duty imposed 
 by contract, common law, or statute, upon a 
 carrier to transport goods delivered to it 
 to their destination, according to its regular 
 course of business, with all reasonable de- 
 spatch, and to give prompt notice to the con- 
 signee of their arrival. Id. 
 
 833. A carrier is not guilty of negligence 
 in failing to notify a consignee of the arrival 
 of perishable goods on a legal holiday, where, 
 by general custom of the locality, all busi- 
 ness is suspended on that aay. Id. 
 
 834. One consigning goods to his agents in 
 another city, for sale, is 'bound to take no- 
 tice of a certain, well-established, and gen- 
 eral custom in force there, that business will 
 be suspended on a certain holiday, so that 
 he cannot hold the carrier liable for failure 
 to make delivery of the consignment on that 
 day. Id. 
 
 835. When perishable freight in posses- 
 sion of a railway company for transporta- 
 tion reaches its destination in the evening 
 before a general holiday, when all business 
 will be suspended, too late for delivery that 
 night, at a time of year when, unless cared 
 for, it will be likely to spoil before it can 
 be delivered, the company is bound to use 
 the facilities at hand to prevent that re- 
 sult, and it will be liable for loss occasioned 
 by its failure to do so. li 
 
 5. Liability and Lien for Freight Charges; 
 Rates. 
 
 Regulation of Freight Rates, see infra, III. 
 c. 
 
 Recovery B^ck of Overcharge, see Assump- 
 rit, 31, 32. 
 
 Charges on Interstate Business, see Com- 
 merce, 53-61.
 
 398 
 
 CARRIERS, II. b, 6. 
 
 Evidence of Payment of Charges, see Evi- 
 dence, 970. 
 Parol Evidence as to Amount, see Evidence, 
 
 1072, 1095. 
 Effect of Garnishment on Right to Payment, 
 
 ^ee Garnishment, 16. 
 Limitation of Action to Recover Excess Paid, 
 
 see Limitation of Actions, 111-113. 
 Allegation of Over Charge, see Pleading, 34. 
 Quo Warranto as Remedy against Unlawful 
 
 Charges, see Quo Warranto, 9. 
 Receiver's Power to Contract for Rebate, see 
 
 Receivers, 63. 
 Necessity of Tendering Charges, see Trover, 
 
 32. 
 
 See also supra, 764, 787; Sale, 156. 
 For Editorial Notes, see infra, IV. 5, 40. 
 
 836. A statute requiring a railroad com- 
 pany to deliver freight carried by it upon 
 any 'track it owns or can use does not de- 
 prive it of the right to make a charge from 
 a "hold track" to a point designated after 
 the freight reaches the hold track. State 
 ex rel. Crow v. Atchison, T. & S. F. R. Co. 
 176 Mo. 687, 75 S. W. 776, 63: 761 
 Right to full rates. 
 
 In Matters Affecting Interstate Commerce, 
 see Commerce, 53, 54. 
 
 837. A consignee, though a factor only, is 
 liable for any balance of freight due, accord- 
 ing to the statements of the bill of lading, 
 on account of the excess of the real value of 
 the goods over that named in the bill of lad- 
 ing, which was known to him but concealed 
 from the carrier, although on deliverj' of the 
 goods he paid all the freight which the car- 
 rier then supposed to be due. North German 
 Lloyd v. Henle, 44 Fed. 100, 10: 814 
 
 838. An express company which has car- 
 ried a package of United States bonds of 
 much greater value than it was represented 
 to be, and at the rate chargeable for a pack- 
 age of the value represented, cannot recover 
 the additional compensation which would 
 have been charged for the package if its 
 true value had been stated, since its liability 
 cannot exceed the value represented, but is 
 entitled to compensation for the increase of 
 the risk of loss up to that amount by rea- 
 son of the greater value of the package. 
 United States Exp. Co. v. Koerner, 65 Minn. 
 540, 68 N. W. 181, 33: 600 
 Lien generally. 
 
 P^ffect of, on Rieht of Stoppage in Tran- 
 
 .si7;m, see Sale, 158-160. 
 For Editorial Notes, see infra, IV. 43, 47. 
 
 839. The lien of a common carrier for his 
 charges upon property carried is not de- 
 feated by an assignment made for the benefit 
 of creditors by the owner of the property 
 shipped. Cave v. Fabel, 108 Ky. 124, 55 S. 
 W. 887, 49: 251 
 
 840. A fund arising from the collection, by 
 an assignee for creditors, of money on a con- 
 tract, in the performance of which property 
 subject to a carrier's lien has been used, is 
 chargeable with such lien. Id. 
 
 841. A carrier which received goods from 
 another carrier, with the knowledge that 
 the shipper has directed shipment by the 
 first carrier over a different connecting route, 
 has r.o carrier's lien upon the goods, either 
 
 for its own charges or for charges advanced 
 to the first carrier; and proof of a contract 
 between the two carriers systematically to 
 disregard shipping directions obviates the 
 necessity of specific proof of different ship- 
 ping directions in the case in suit. Hiil v. 
 Denver & R. G. R. Co. 13 Colo. 35, 21 Pac. 
 914, 4: 376 
 
 842. A railroad company receiving horses 
 from a connecting line, with notice that the 
 shipper has attempted to prepay the freight 
 for the whole transportation but has not 
 paid it in full at the regular rates, and also 
 that he contemplates a continuous and 
 speedy passage, has the right to carry the 
 horses through to their destination, and 
 claim a lien on them for the balance of the 
 freight. Crossan v. New York & N. E. R. 
 Co. 149 Mass. 196, 21 N. E. 367, 3: 766 
 
 843. A common carrier waives hig right 
 to detain goods for the freight if he puts 
 his refusal to deliver them to the owner up- 
 on the ground that they are not in his 
 possession at the place where a demand is 
 duly made. Adams Exp. Co. v. Harris, 120 
 Ind. 73, 21 N. E. 340, 7: 214 
 Effect of delivery on lien. 
 
 See also infra, 967. 
 
 844. A delivery by a common carrier, to an 
 assignee for creaifcors, of property subject to 
 the carrier's lien, is for the benefit of all 
 creditors, including the carrier, according to 
 their respective interests, and does not de- 
 feat the carrier's right to be paid out of 
 the proceeds of the property. Caye v. Fabel. 
 108 Ky. 124, 55 S. W. 887, 49: 251 
 
 845. If a consignee of goods shipped by 
 rail obtains possession of them through the 
 negligence of the railroad company, without 
 paying the freight charges, and sells them 
 to a bona fide purchaser for value, the com- 
 pany cannot enforce its lien for freight 
 against the goods in the hands of such pur- 
 chaser. Norfolk S. R. Co. v. Barnes, 104 N. 
 C. 25, 10 S. E. 83, 5: 611 
 
 6. Carrying Live Stock. 
 
 Shipper of Stock as Passenger, see supra, 78, 
 79. 
 
 Pass to Shipper, see supra, 627, 628. 
 
 Limiting Liability for Injury to Shipper, see 
 supra, 667, 668. 
 
 Injury to Shipper, see supra, 277, 322. 
 
 State Requirement of Double-Decked Cars 
 for Sheep, see Commerce, 70. 
 
 Prohibition as to Transportation as Affect- 
 ing Commerce, see Commerce, 44. 
 
 Requiring Free Transportation of Shippers, 
 see Constitutional Law, 420. 
 
 Measure of Damages for Injury, see Dam- 
 ages, 238, 239. 
 
 Judicial Notice as to Shipper Accompanying 
 Stock, see Evidence, 80. 
 
 Burden of Proof as to, see Evidence, 485. 492. 
 
 Evidence of Custom as to, see Evidence. 
 1724, 1725. 
 
 Pleading in Action for Injury to, see Plead- 
 ing, 280. 332, 362. 
 
 Partial Invalidity of Statute as to, see 
 Statutes. 113. 
 
 Question for Jury as to, see Trial, 306, 308.
 
 CARRIERS, II. b, 6. 
 
 399 
 
 See also supra, 842; infra, 910, 917, 918, 922, 
 
 925, 931. 932, 950. 987, 992. 
 For Editorial Notes, see infra, IV. 30, 39. 
 
 846. A custom of railroads not to receive 
 for transportation any live stock unless un- 
 der certain conditions modifying their com- 
 mon-law liability would be contrary to law 
 and public policv. Missouri P. R. Co. v. 
 Fagan, 72 Tex. 1*27, 9 S. W. 749, 2: 75 
 
 847. A carrier is not an insurer of live 
 stock, but must provide suitable means for 
 its conveyance, and use all reasonable dili- 
 gence and forethought in the varying cir- 
 cumstances arising in the business. Coup- 
 land v. Housatonic R. Co. 61 Conn. 531, 23 
 Atl. 870, 15: 534 
 
 848. A shipper of cattle is entitled to re- 
 cover from the carrier for a loss in value of 
 the stock caused by the gross negligence and 
 carelessness of the agent of the carrier in 
 handling and transporting the cal^tle, con- 
 sisting of unnecessary delay in their trans- 
 portation, the needless confinement of the 
 cattle in the cars of the company at the 
 different stations on the road, and the bruis- 
 ing and bumping of the stock, to which they 
 are subjected by the improper transporta- 
 tion by the company. Good v. Galveston, H. 
 & S. A. R. Co. (Tex.) 11 S. W. 854, 4: 801 
 Salt water in shipping pens. 
 
 849. The knowledge of the sellers of live 
 stock to be delivered in the shipping pen of 
 :i railroad, of the existence of salt water 
 therein, does not charge the buyer, who has 
 contracted for their transportation, with 
 contributory negligence precluding recovery 
 for damages to stock from drinking such 
 water. Harman v. Norfolk & W. R. Co. 
 !U Va. 601, 22 S. E. 490, 44: 289 
 
 850. Permitting salt water to run through 
 pens provided by a carrier of live stock to 
 facilitate shipments, so that it is accessible 
 to animals placed in the pens, is negligence 
 which will render the carrier liable for inju- 
 ries caused to animals placed in the pens for 
 shipment, by drinking of the water. Id. 
 Safety of cars. 
 
 Opinion Evidence as to. see Evidence, 1388. 
 
 851. Injuries to live stock by the break- 
 ing of oars or slats of a car, although caused 
 by the crowding or kicking of the stock, if 
 this is not beyond the ordinary and normal 
 conduct of such stock, will render the car- 
 rier liable. Betts v. Chicago, R. I. & P. R. 
 Co. 92 Iowa, 343. 60 N. W. 623, 26: 248 
 
 852. A carrier is liable for injuries to live 
 stock carried by it, if it fails to provide cars 
 reasonably safe to transport it, in view of its 
 natural propensities; but not for those oc- 
 curring in a reasonably safe car, because of 
 such propensities. . Id. 
 
 853. The risk of shipping a horse in a com- 
 mon IA>X freight car, the roof of which is so 
 low that a horse on lifting its head is liable 
 to strike it and which has no stalls or par- 
 titions, is assumed by the shipper, if the car 
 is suitable for the ordinary business of 
 transporting horses of the value of that 
 shipped, where, with knowledge that special 
 cars could be had for a reasonable additional 
 price, he acquiesced in the use of the car and 
 attempted to remedy the defects by padding 
 
 the rafters of the car and placing a stuffed 
 hood upon the horses. Coupland v. Housa- 
 tonic R. Co. 61 Conn. 531, 23 Atl. 870, 
 
 15: 534 
 
 Caring for, during transit. 
 Right to Contract as to, see Commerce, 49a. 
 For Editorial Notes, see infra, IV. 39. 
 
 854. A carrier which, with knowledge that 
 a shipper of live stock has fai.ed to furnish 
 a care taker as agreed, proceeds under the 
 shipping contract, is liable for any loss re- 
 sulting from its failure to provide the stock 
 with proper care and protection. Chicago, 
 
 B. & Q. R. Co. v. Williams, 61 Neb. 608, 85 
 N. W- 832, 55:289 
 
 855. A carrier is liable for the loss of 
 stock which die or are injured for want of 
 proper care and protection while in tran- 
 sit, where the shipper has not agreed to fur- 
 nish a care taker. Id. 
 
 856. A carrier has the duty to feed and 
 water stock during transportation, and can- 
 not transfer it to the shipper by a custom 
 requiring him to go along on the same train 
 with the stock to feed and water them at 
 his own risk and expense. Missouri P. R. 
 Co. v. Fagan, 72 Tex. 127, 9 S. W. 749, 
 
 2: 75 
 
 857. Failure of a shipper to comply with 
 his agreement to furnish a man to feed, wa- 
 ter, and care for his live stock in transit 
 will not relieve the carrier from liability 
 for injury caused by their falling into a hole 
 in the car floor due to its decayed, weai<, 
 and unsafe condition. Lake Erie & W. R. 
 Co. v. Holland, 162 Ind. 406, 69 N. E. 138, 
 
 U3: 94S 
 
 858. Under Tex. Rev. Stat. art. 2S4, pre- 
 scribing a penalty to be recovere.l by the 
 owner against a carrier who shall fail suffi- 
 ciently to feed and water live stock during 
 transportation and until delivery, in order 
 to authorize a recovery of such penalty the 
 statutory grounds must be particularly set 
 forth and clearly estaHished by proof. 
 Good v. Galveston, H. & S. A. R. Co. (Tex.) 
 11 S. W. 854, 4: 801 
 Sidetracking car containing. 
 
 859. A car containing a horse should he 
 set on a side track at the request of the 
 owner of the horse or his agent, when the 
 persons in charge of the train are informed 
 that the horse is frightened by the transpor- 
 tation and is acting badly and in danger of 
 being killed or hurt, if it can reasonably be 
 done. Coupland y. Housatonic R. Co. 61 
 Conn. 531, 23 Atl. 870, 15: 534 
 
 869. There is no obligation on a railroad 
 company to lay out for reloading a car hired 
 at a certain price for the trip and partly 
 filled with horses, because one of them has 
 got down in the car, when the owner is 
 with them, and, under the contract, is 
 chargeable with their care, and can. if he 
 chooses, abandon the contract altogether or 
 make a new one for a longer time. Illinois 
 
 C. R. Co. v. Petersen, 68 Miss. 454, 10 So. 
 43, 14: 550 
 Necessity of unloading during transit. 
 Conflict of Laws as to, see Conflict of Laws. 
 
 201. 
 For Editorial Notes, see infra, IV. 39.
 
 400 
 
 CARRIERS, II. b, 7. 
 
 861. Failure of a railroad company to pro- 
 vide suitable and safe facilities for loading 
 and unloading stock, and also for water- 
 ing and feeding them, whiie being carried 
 over its line of road, is negligence against 
 which a common carrier is not permitted to 
 contract. Chesapeake & O. R. Co. v. Amer- 
 ican Exch. Bank, 92 Va. 495, 23 S. E. 935, 
 
 44: 449 
 
 862. Horses and mules, as well as ari- 
 mals intended for food are within the provi- 
 sions of U. S. Rev. Stat. 4386, U. S. Comp. 
 Stat. 1901, p. 2995, requiring "cattle, sheep, 
 swine, or other animals," when carried from 
 one state to another to be unloaded for rest, 
 water, and feeding, if confined for twenty- 
 eight hours. iu. 
 
 863. "Other accidental causes" within the 
 meaning of U. S. Rev. Stat. 4386, U. S. 
 Comp. Stat. 1901, p. 2996, making a rail- 
 road company liable for failure to unload 
 cattle when confined tor twenty-eight hours, 
 unless prevented by ."storm or other acci- 
 dental causes," must be taken to mean oth 
 er inevitable accidental causes. Id. 
 Unloading at destination. 
 
 864. A rule of a carrier, known to the 
 shipper, requiring the latter to unload live- 
 stock from the cars, will not override an ex- 
 press contract placing that duty on the car- 
 rier. Benson v. Gray, 154 Mass. 391, 28 N. E. 
 275, 13: 262 
 
 865. A contract by a railroad company for 
 the transportation of horses and their deliv- 
 ery at its depot, providing for their storage 
 unless called for, and containing stipulations 
 in relation to unloading which imply that 
 the company will unload them, requires the 
 company to unload the horses at the place 
 of destination, notwithstanding a usage of 
 its agent there, known to the shipper, of 
 requiring owners of animals to unload them. 
 
 Id. 
 
 Communication of disease to. 
 Liability for Communication from Diseased 
 Cattle, see Animals, 55, 56. 
 
 866. The communication of Texas fever by 
 infected cars to cattle transported in them 
 renders the railroad company liable for the 
 damages. Illinois C. R. Co. v. Harris, 184 
 111. 57, 56 N. E. 316, 48: 175 
 
 7. Stipulations to Limit Liability. 
 a. In General. 
 
 As to "Baggage, see supra, II. a, 12, e. 
 
 As to Passengers, see supra, II. a, 10, f. 
 
 As to Personal Injury to Shipper, see supra, 
 
 667, 668. 
 Prohibition against, as Interference -^ith 
 
 Commerce, see Commerce, 62-68. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 91-96. 
 
 Construction of Contract as to, see Con- 
 tracts, 327. 
 Validity of Stipulation against Liability for 
 
 Fires, see Contracts, 453-459. 
 Presumption of Shipper's Knowledge of 
 
 Terms of Receipt, see Evidence, 301. 
 Conclusiveness of Foreign Judgment as to 
 
 Validity of, see Judgment, 346. 
 
 Admission of Truth of Plea as to, see Plead- 
 ing, 610. 
 
 Limitation of Liability of Vessel Owner, see 
 Shipping, I. 
 
 By Telegraph Company, see Telegraphs, II. 
 c. 
 
 See also infra, 999, 1001. 
 
 For Editorial Notes, see infra, IV. 37, 39. 
 
 867. To be valid, a contract restricting a 
 carrier's liability must be fairly obtained, 
 just, and reasonable. Louisville & N. R. Co. 
 v. Gilbert, 88 Tenn. 430, 12 S. W. 1018, 
 
 7: 162 
 
 868. Contract limitations of a carrier's lia- 
 bility, being in derogation of the common 
 law, are strictly construed in favor of the 
 shipper, and are never enforced unless shown 
 to be reasonable. Parker v. Atlantic Coast 
 Line R. Co. 133 N. C. 335, 45 S. E. 658, 
 
 63: 827 
 
 869. A statute forbidding common carriers 
 within the state, on land or in boats or ves- 
 sels on waters entirely within the body of 
 the state, to limit or restrict their liability 
 as it exists at common law, applies to ship- 
 ments purely domestic, beginning and end- 
 ing in the state. Missouri P. R. Co. v. Sher- 
 wood, 84 Tex. 125, 19 S. W. 455, 17: 643 
 
 870. A shipper of goods who fills out one 
 of tne blank receipts contained in a book 
 previously furnished by an express company 
 for his use, and obtains the signature of the 
 company's agent thereto upon delivering to 
 him a package for transportation, will be 
 presumed to know the contents of the re- 
 ceipt; and, if he receives such receipt with- 
 out objection, his assent to its conditions 
 will, in the absence of fraud, be conclusively 
 presumed. Durgin v. American Exp. Co. 66 
 N. H. 277, 20 Atl. 328, 9: 453 
 Assent by shipper; reduced rates. 
 Evidence as to Choice of Modes of Shipment, 
 
 see Evidence, 2085. 
 Drayman's Authority to Assent for Shipper, 
 
 see Principal and Agent, 14. 
 See also infra, 887, 894, 899-906, 911-919, 
 
 923-930, 939, 941, 942. 
 For Editorial Notes, see infra, TV. 37. 
 
 871. A railroad company operating a line 
 of railroad in Nebraska is a common carrier, 
 and cannot, under the provisions of the Con- 
 stitution, limit its liability as such bv spe- 
 cial agreement with a shipper. Missouri P. 
 R. Co. v. Vandeventer, 26 Neb. 222, 41 N. W. 
 998, 3: 129 
 
 872. A railroad companv in the carriage 
 of goods is subject to the liability of a com- 
 mon carrier, and must answer for all losses 
 not occasioned by the act of God or the pub- 
 lic enemy, and cannot, in Nebraska, by spe- 
 cial contract limit or relieve itself from this 
 liabilitv. St. Joseph & G. I. R. Co. v. .Palm- 
 er, 38 Neb. 463. 5rf N. W. 957, 22: 335 
 
 873. A railroad company may, by special 
 contract, limit its liability to the owner of 
 stock or goods, so Ion? as the limitation does 
 not relate to its liability for negligence or 
 misconduct. Atchison, T. & S. F. R. Co. v. 
 Temple, 47 Kan. 7, 27 Pac. 98, 13: 362 
 
 874. It is lawful for a carrier to limit, by 
 special contract, his common-law liability, 
 and he may thereby exempt himself from
 
 CARRIERS, II. b, 7. 
 
 401 
 
 liability for any loss resulting otherwise 
 than by the negligence or misfeasance of 
 himself or his servants. Russell v. Erie R. 
 o. (N. J. Err. & App.) 70 N. J. L. 808, 59 
 Atl. 150, 67: 433 
 
 875. A stipulation in a contract to carry 
 perishable freight that it must be at owner's 
 risk is vodd where those are the only terms 
 upon which the carrier would undertake the 
 service. Parker v. Atlantic Coast Line R. 
 Co. 133 N. C. 335, 45 S. E. 658, 63: 827 
 
 876. A common carrier cannot legally ex- 
 act an agreement limiting its liability, as 
 a condition precedent to receiving or carry- 
 ing the offered freight or message. Kirby v. 
 Western U. Teleg. Co. 4 S. D. 105, 439, 7 S. 
 D. 623, 55 N. W. 759, 57 N. W. 199, 65 N. 
 W. 37, 30: 612 
 
 877. An agreement restricting the carrier's 
 liability except as "to the rate of hire, the 
 time, find place, and manner of delivery," 
 can only be manifested, under S.'' D. Com p. 
 Laws, 3888, by the signature of the pas- 
 senger, consignor, consignee, or person em- 
 ploying such carrier. Id. 
 
 878. A carrier cannot by special contract 
 limit its common-law liability for losses not 
 occasioned by negligence, where it does not 
 afford the shipper an opportunity to con- 
 tract for the service reouired without such 
 restriction, even if he makes the special con- 
 tract without objection or demand for a 
 different one. Little Rook & Ft. S. R. Co. v. 
 Cravens, 57 Ark. 112, 20 S. W. 803, 18: 527 
 
 879. The signing of a special contract lim- 
 iting a carrier's liability does not prevent 
 the Shipper from relying on the common- 
 law dutv of the carrier, where he receives no 
 consideration for a waiver of su^h liability, 
 and was given no choice of a contract im- 
 posing it. Lake Erie & W. R. Co. v. Holland, 
 162 Tnd. 406, 69 N. E. 138, 63: 948 
 
 880. A common carrier may, in co^sider- 
 atiion of a neci"l freight rate or other val- 
 uable consecration, secure entire exemption 
 from liahilitv as an insurer for loss of or 
 damage to property received from a sHnner 
 for transportation, not causd by ne^Ti^ence 
 or wilful misfeasnfe. Un^an v. C^a^o 
 & N. W. R. Co. 112 Wis. 150, 88 N. W. 41. 
 
 56: 246 
 
 881. As-sent by the shinier to a condition 
 in the carriage contract that the goods are 
 subject to delav is immaterial if it has no 
 leoral effp'-t. Parker v. Atlantic Coast Line 
 R. Co. 13.3 N. C. 335. 45 R. E. 658. 63: 827 
 Au+r-oritv of s^i^oer's agent +n Assent. 
 
 By TeleTaph Companv. se Tele" r ranhsr94. 
 
 829. The a^ent of a railroad c^mn^nv his 
 no ri^ht to assume that a r-nrtman has the 
 authority to aUer or modifv the terms of 
 the sMrnvn" 1 or^r. whp-rp the owner of goodvS 
 held ?n storage directed the s^riorp company 
 to send them to him bv railroad, a.nd an 
 officer of the storage companv sent the box 
 containing the goods by the cartman to tne 
 railroad station, accompanied by a complete 
 shipping order. Russell v. Erie R. Co. (N. 
 J. Err/& App.) 70 N. J. L. 808, 59 Atl. 150, 
 
 67 : 433 
 
 883. The presentation of a shipping order, 
 signed by a storage company, to a railroad 
 L.R.A. Dig. 26. 
 
 agent by a cartman sent to deliver goods 
 for shipment, was notice to the rai.road 
 company that the authority of the cartman 
 was in no sense discretionary, and there was 
 no authority on his part to enter into a con- 
 tract to exempt the railroad company from 
 liability. Id. 
 
 To own line. 
 
 884. An initial carrier may protect itself 
 by contract against liability for loss not 
 occurring on its own line, whether the ship- 
 ment be wholly within one state or be in- 
 terstate. McCarn v. International & U. N. 
 R. Co. 84 Tex. 352, 19 S. W. 547, 16: 39 
 
 885. Although a railroad company enters 
 into a joint contract with another company 
 for the transportation of goods to a point 
 beyond the end of its own line, it is compe- 
 tent for it to enter into an express contract 
 with the shipper, limiting its liability to the 
 transportation of the property over its own 
 line. Lnion State Bank v. Fremont, E. & 
 M. Valley R. Co. 66 Neb. 159, 92 N. W. 131, 
 
 59: 939 
 
 886. A clause limiting the liability of a 
 railway company to its own line, which is 
 wholly within the state, will not convert 
 into a domestic bill of lading an instrument 
 which purports on its face to be a through 
 bill of lading to a foreign port, providing 
 for the transportation of the goods to their 
 foreign destination, and fixing the through 
 rate of freight. Missouri P. R. Co. v. Sher- 
 wood, 84 Tex. 125, 19 S. W. 455, 17: 643 
 
 887. While a carrier may restrict its lia- 
 bility to its own line by contract with the 
 shipper, it cannot do so by a mere stipula- 
 tion in a bill of lading not signed by the 
 shipper, without proof that the shipper ac- 
 cepted the same, consenting to the restric- 
 tion. Illinois C. R. Co. v. Carter, 165 111. 570, 
 46 N. E. 374, 36: 527 
 
 888. A contract to exempt a carrier from 
 liability on account of the negligence of con- 
 necting carriers is illegal under Mo. Rev. 
 Stat. 944, when a carrier makes a con- 
 tract for a through shipment to a point be- 
 yond its own terminus. McCann v. Eddy, 
 133 Mo. 59. 33 S. W. 71, 35: 110 
 
 889. A stipulation in a through bill of lad- 
 ing, limiting liability for loss or damage to 
 that line on wliich it shall occur, will not re- 
 lieve the initial carrier from liability for de- 
 lay on another line, where this is caused by 
 a negligent misdirection in the waybill made 
 out by the initial carrier. Illinois C. R. Co. 
 v. Southern Seating & C. Co. 104 Tenn. 368, 
 58 S. W. 303, 50: 729 
 
 890. The liability of a carrier for a pas- 
 senger train service continues to destination, 
 under a contract to receive and forward fruit 
 by such service to a connecting station on 
 its road, and from there "to forward" the 
 property to destination, but providing that 
 "its responsibility as a common carrier is 
 to cease at the point where the freight leaves 
 its road." Colfax Mountain Fruit Co. v. 
 Southern Pac. Co. 118 Cal. 648, 50 Pac. 775, 
 
 40: 78 
 
 891. An indorsement on a bill of lading of 
 the final destination of freight tendered for 
 transportation, which is beyond the termina-
 
 402 
 
 CARRIERS, IL b, 7. 
 
 tion of the carrier's line, and the stipu- 
 lation that it shall go "on fastest passenger 
 train service," will not render the carrier 
 liable for carriage to destination, but only 
 to deliver it to the connecting carrier, 
 where the bill of lading expressly states that 
 the carrier will not be liable for losses be- 
 yond its own line, and the blank for destina- 
 tion in the body of the contract is left un- 
 filled in accordance with an express direc- 
 tion that it shall not be filled by a point 
 "not on the lines of this system." Taffe v. 
 Oregon R. & Nav. Co. 41 Or. 64, 67 Pac. 1015, 
 
 58: 187 
 Special train. 
 
 892. A railroad company hauling a special 
 train of cars as a private carrier may law- 
 fully contract for entire exemption from the 
 risk of accidents. Chicago, M. & St. P. R. 
 Co. v. Wallace, 24 U. S. App. 589, 14 C. C. A. 
 257, 66 Fed. 506, 30: 161 
 
 Dangerous articles. 
 For Editorial Notes, see infra, IV. 37. 
 
 803. A contract exempting a carrier from 
 liability for loss by fire from any cause 
 whatsoever, in transporting blasting powder, 
 is not void as unconscionable or unreason- 
 able. California Powder Works v. Atlantic 
 & P. R. Co. 113 Cal. 329, 45 Pac. 691, 
 
 36: 648 
 
 894. A carrier receiving blasting powder 
 for transportation can insist upon such 
 terms and limitation of common-law lia- 
 bility as it sees fit, since it is not obliged 
 to receive and transport such dangerous .ar- 
 ticles. Id. 
 After unloading. 
 
 895. A contract that goods shall be at the 
 risk of the consignors when unloaded on a 
 platform at a station where there is no 
 building or any agent of the carrier is not 
 against public policv. Allam v. Pennsyl- 
 vania R. Co. 183 Pa. 174, 38 Atl. 709,39: 535 
 
 6. As to Negligence. 
 
 Of Connecting Carrier, see infra, 987. 
 
 Burden of Proof as to, see Evidence, 483, 488, 
 490. 
 
 Stipulation by Telegraph Company, see Tel- 
 egraphs, II. c. 
 
 See also infra, 889, 920-928, 932. 
 
 For Editorial Notes, see infra, IV. 37. 
 
 896. A stipulation against liability except 
 for gross negligence will not relieve a car- 
 rier from liability for negligence, although 
 it may not be gross negligence. Pierce v. 
 Southern P. Co. 120 Cal. 156, 47 Pac. 874, 
 52 Pac. 302, 40: 350 
 
 897. A common carrier cannot limit its 
 liability by contract for the negligence of its 
 servants or its own negligence. Missouri P. 
 R. Co. v. Ivey, 71 Tex. 409, 9 S. W. 346, 
 
 1: 500 
 
 Durtrin v. American Exo. Co. 66 N. H. 
 277. 20 Atl. 328, 9: 453 
 
 898. Although goods are shipped at the 
 owner's risk, the carrier may be liable for 
 damasre caused by the weather or rust, if 
 occasioned by the carrier's negligence or by 
 unreasonable delay upon the road. Western 
 
 & A. R. Co. v. Exposition Cotton Mills, 81 
 Ga. 522, 7 S. E. 916, 2: 102 
 
 Assent by shipper; reduced rates. 
 See also supra, 873, 874, 880. 
 
 899. In Virginia a common carrier cannot 
 contract for exemption from liability for in- 
 jury or loss caused by its own neglect. Har- 
 man v. Norfolk & W. R. Co. 91 Va. 601, 22 
 S. E. 490, 44: 289 
 
 900. A carrier cannot contract for exemp- 
 tion from liability for injuries caused by 
 delays due to its OWK negligence. Parker 
 v. Atlantic Coast Line R. Co. 133 N. C. 335, 
 45 S. E. 658, 63: 827 
 
 901. A carrier cannot, by contract, exempt 
 itself from liability for damages to property 
 received for transportation which directly 
 result from its own negligence, whether it 
 occurs before or after the property is re- 
 ceived. Id. 
 
 902. A carrier may by special contract free 
 himself from many common-law liabilities, 
 although not from his own fraud or negli- 
 gence. Terre Haute & I. R. Co. v. Sherwood, 
 132 Tnd. 129, 31 N. E. 781, 17: 339 
 
 903. A common carrier cannot, eren by ex- 
 press contract, exempt itself from liability 
 for gross negligence or wilful misconduct. 
 Chicago & N. W. R. Co. v. Chapman, 133 111. 
 96, 24 N. E. 417, 8: 508 
 
 904. A common carrier of goods, whose lia- 
 bility is limited by special contract to loss 
 or injury through his negligence, must show 
 that a loss occurred from some cause other 
 than his negligence, in order to escape lia- 
 bility therefor. Hull v. Chicago, St. P. M. 
 
 6 O. R. Co. 41 Minn. 510, 43 N. W. 391, 
 
 5: 587 
 
 905. If a shipper of machinery agrees that 
 it may be transported upon open cars, the 
 carrier may still be liable for damage by rust 
 or by the weather during a detention on the 
 road, if ordinary diligence required the car- 
 rier to cover the cars during such detention, 
 and it failed to do so. Western & A. R. 
 Co. v. Exoosition Cotton Mills, 81 Ga. 522, 
 
 7 S. E. 916, 2: 102 
 
 906. A limitation of liability in the bill 
 of lading will not control where the damage 
 is an effect of the carrier's negligence, and 
 where it does not appear that the limitation 
 was in consideration of a lower rate of 
 freight. Adams Exp. Co. v. Harris, 120 Ind. 
 73, 21 N. E. 340, 7: 214 
 Chicago & N. W. R. Co. v. Chapman, 133 
 111. 96, 24 N. E. 417, 8: 508 
 
 c. As to Amount. 
 
 Stipulation by Telegraph Company, see Tel- 
 egraphs, 91-95. 
 For Editorial Notes, see infra, IV. 37, 46. 
 
 907. Absence of an invoice will not pre- 
 vent the operation of a stipulation in a 
 
 arriage contract, that the carrier's liability 
 for loss shall be limited to the invoice price 
 at the point of shipment, but the ralue of 
 the property at that point will be the meas- 
 ure of damage. Pierce v. Southern P. Co. 
 120 Cal. 156, 47 Pac. 874, 52 Pac. m 
 
 411: 350 
 
 908. A carrier's contract limiting liability 
 for loss to a specified amount has no appli-
 
 CARRIERS, II. b, 7. 
 
 403 
 
 cation to the damages to be recovered for 
 its failure to comply with a notice of stop- 
 page in transitu after it had agreed ta do so. 
 Rosentfcal v. Weir, 170 N. Y. 148, 63 N. E. 
 65, 57:52! 
 
 909. A contract limiting the liatiiHtj of a 
 common carrier for loss of or damage to 
 the subject of carriage, to an arbitrary sum 
 of money not fixed with reference to the 
 agreed actual or maximum value of the 
 property, is an unlawful limitation of lia- 
 bility. Ullman v. Chicago & N. W. R. Co. 
 112 Wis. 150, 88 N. W. 41, 56: 246 
 
 910. A statement of the value of a horse 
 shipped, made by the shipper in answer to 
 the carrier's inquiry, which value is inserted 
 in the bill of lading, is conclusive on him as 
 to the value of the horse, in an action- 
 against the carrier for its loss, although the 
 bill of lading is silent as to the effect of such 
 valuation upon the shipper's liaTjility, and 
 he has no actual information, and did not 
 suppose that his statement would affect the 
 amount of the company's liability. Coup- 
 land v. Housatonic R. Co. 61 Conn. 531, 23 
 Atl. 870, 15: 534 
 Assent of shipper; reduced rates. 
 Estoppel of Shipper, see Estoppel, 117. 
 
 See also infra, 923-928. 
 
 911. A custom requiring a shipper to 
 agree, as a condition of shipment, that his 
 measure of damages shall not be more than 
 the cash value of the stock shipped at the 
 place of shipment, is illegal. Missouri P. 
 R. Co. v. Fagan, 72 Tex. 127, 9 S. W. 749, 
 
 2: 75 
 
 912. If a bill of lading issued by a com- 
 mon carrier states the value of the prop- 
 erty received for shipment, or the maximum 
 value thereof, either as declared by the ship- 
 per or without specifying the same to be so 
 declared, and the latter, without objecting 
 to such stated value, delivers his property 
 to the carrier and receives the bill, he there- 
 by assents to the terms thereof as regards 
 such value. Ullman v. Chicago & N. W. R. 
 Co. 112 Wis. 150, 88 N. W. 41, 56: 246 
 
 913. A clause inserted without consider- 
 ation in a carriage contract, fixing the dam- 
 age, in case of loss of the goods, at their 
 value at the place of shipment rather than 
 of destination, is invalid. St. Louis, I. M. 
 & S. R. Co. v. Coolidge, 73 Ark. 112, 83 S. W. 
 333, 67:555 
 
 914. A contract fixing the measure of dam- 
 ages for the loss of goods at the actual in- 
 voice cost at point of shipment, if fairly 
 made in consideration of a lower freightage, 
 is not invalid. Pierce v. Southern P. Co. 
 120 Cal. 156, 47 Pac. 874, 52 Pac. 302, 
 
 40: 350 
 
 915. A stipulation in a bill of lading, that, 
 in consideration of rates inserted therein less 
 than the regular rates, it is aereed in case 
 of loss or damage to the property transferred 
 that the same shall be adjusted at an agreed 
 valuation, which is less than the actual val- 
 ue of such property, is binding upon the 
 shipper. J. J. Douglass Co. v. Minnesota 
 Transfer R. Co. 62 Minn. 288, 64 N. W. 899, 
 
 30: 860 
 
 916. A valid contract limiting the liability 
 of a carrier to a certain agreed valuation of 
 the property carried may be made where it 
 is just and reasonable in its terms, and a 
 reduced rate of freight is made the consid- 
 eration for it. Richmond & D. R. Co. v. 
 Payne, 86 Va. 481, 10 S. E. 749, 6: 849 
 Louisville & N. R. Co. v. Gilbert, 88 Menu. 
 430, 12 S. W. 1018, 7: 162 
 
 917. A regulation of a carrier with respect 
 to the transportation of live animals, fixing 
 the ordinary value of horses at $200, and re- 
 quiring an extra charge for transporting ani- 
 mals of a greater value, is reasonable, and 
 not in conflict with the general rule that a 
 carrier cannot discharge himself of legal 
 responsibility by general notice. Duntley v. 
 Boston & M. R. Co. 66 N. H. 263, 20 Atl. 327, 
 
 9: 449 
 
 918. One who ships a horse as an ordinary 
 horse, understanding that the carrier has a 
 regulation limiting its liability in case of in- 
 jury to a certain sum for an ordinary horse, 
 and if a higher value is given a higher rate 
 will be charged, cannot insist upon a higher 
 valuation in case of loss or injury. Id. 
 
 919. A stipulation placing an agreed val- 
 uation upon goods delivered to an express 
 company for transportation, which is insert- 
 ed in the shipping receipt and is designed to 
 fix the extent of the company's liability in 
 case the goods are lost, is binding on the 
 shipper if he understands its purpose and 
 knows that the freight charges are propor- 
 tioned to the nature and extent of the risk; 
 and the fact that neither the value of the 
 goods nor the rate of charges is asked in a 
 particular case is immaterial. Durgin v. 
 American Express Co. 66 N. H. 277, 20 Atl. 
 328, 9: 453 
 In case of negligence. 
 
 920. A contract limiting the amount of 
 liability of a common carrier for loss of 
 goods carried, even if the loss is due to neg- 
 ligence, is not contrary to public policy. 
 Ballou v. Earle, 17 R. I. 441, 22 Atl. 1113, 
 
 14: 433 
 
 921. A common carrier may limit its lia- 
 bility for loss or damage to property car- 
 ried, attributable to such carrier's negli- 
 gence, to actual loss, uoon a value basis es- 
 tablished by contract with the shipper; and 
 the agreed value may be the maximum or 
 actual value of the property. Ullman v. Chi- 
 cago & N. W. R. Co. 112 Wis. 150, 88 N. W. 
 41, 56: 246 
 
 922. A carrier of live stock cannot exempt 
 itself for liability for loss caused by delay 
 in transportation occasioned by the negli- 
 gence or misfeasance of itself or its serv- 
 ants, by a contract with the shipper pro- 
 viding that in case of any unusual detention 
 of such live stock caused by the negligence 
 of the carrier or its servants or connecting 
 carriers, the shipper shall accept as full com- 
 pensation the amount actually expended by 
 him in the purchase of food and water for 
 the stock while so detained. Posley v. Bal- 
 timore & O. R. Co. 54 W. Va. 563, 46 S. E. 
 613, 66: 871 
 
 923. A receipt or contract stipulating that 
 the carrier shall be liable only for a certain 
 sum on the loss of an article, unless its just
 
 404 
 
 CARRIERS, II. b. 7. 
 
 and true value is stated therein, will be up- 
 held where no _ value is stated, if it was 
 freely and voluntarily entered into, al- 
 though the loss results from slight or ordi- 
 nary negligence. Pacific Exp. Co. v. Foiey, 
 46 Kan. 457, 26 Pac. 665, 12: 799 
 
 924. The rule that a contract exempting a 
 common carrier from liability for loss of or 
 damage to property received for transporta- 
 tion, caused by negligence, is void because 
 contrary to public policy, does not militate 
 against the validity of an agreement, fairly 
 made, liquidating such loss or damage in, ad- 
 vance upon an actual or maximum value 
 basis agreed upon and stated in the con- 
 tract. Ullman v. Chicago & N. W. R. Co. 
 112 Wis. 115, 88 N. W. 41, 56: 246 
 
 925. A stipulation fixing the value of live 
 stock in a carrier's contract, if fairly maae 
 as the basis of the rate of compensation for 
 the carrier's services and risks, will consti- 
 tute the limit of recovery for loss of the 
 stock, although it is caused by the carrier's 
 negligence; but such limitation is invalid in 
 case of negligence, if its purpose was mere- 
 ly to limit the amount of the carrier's lia- 
 bility. Alair v. Northern P. R. Co. 53 Minn. 
 160, 54 N. W. 1072, 19: 764 
 
 926. A common carrier may, by special 
 agreement just and reasonable in itself, and 
 fairly made between itself and the consignor 
 of a horse at the time of the shipment, fix 
 the va'ue of such horse, upon consideration 
 that the rate of charges for transportation 
 shall be commensurate with the value of 
 the horse thus ascertained, and may also 
 limit its liaoility in case of loss to the 
 amount thus agreed upon, even though the 
 loss may be the result of negligence on the 
 part of the carrier, provided said negligence 
 be not gross, wanton, or wilful: but cannot 
 wh^Uv exempt itself from liability for loss 
 resisting from negligence. Zouch v. Chesa- 
 peake & O. R. Co. 36 W. Va. 524, 15 S. j. 
 185. IV : 116 
 
 927. A railway company in its capacity as 
 a common carrier mav. as the basis for fix- 
 ing its charges and limiting the amount of 
 its corresponding liability, lawfully make 
 with a shipper a contract of affreightment 
 embracing an actual and bona fide aarree- 
 ment as t^ the value of the property to be 
 transported; and in such case the latter, 
 when loss, damasre. or destruction occurs. 
 wi'l be bound bv the "agreed valuation." 
 But a more general limitation as to value, 
 expressed in a bill of ladinor. and amounting 
 to no more than an "arbitrary preadiust- 
 ment of the measure of damages." will not, 
 though the shinper assents in writing to the 
 terms of the document, serve to exemnt a 
 negligent carrier from liability for the true 
 value. C^tral of Oa. R. Co. v. Murphev fr 
 Hunt. 113 Oa. 514. 38 S. E. 970. 53: 720 
 
 928. Appropriate language being used in a 
 bill of ladin" 1 linuidatin^. on a v<ilue basis, 
 recoverable damages for the loss of or iniury 
 to the s'lbje^t of carriage happening through 
 events d>sr>ri^ed by sur*h 1an<ni*ge as to rea- 
 sonable include results of negli" p en"p on the 
 part of the carrier, and also appropriate lan- 
 guage exempting the carrier from all lia- 
 
 bility, in consideration of a special freight 
 rate or other va.uable consideration, for loss 
 of or damage to such subject by events not 
 necessarily attributable to the carrier's neg- 
 ligence, the reasonable and sensible con- 
 struction of the whole is that the limita- 
 tion of liability upon a value basis refers to 
 loss by negligence, that being the customary 
 way of liquidating damages in advance, 
 caused by fault of that nature, and that 
 the entire exemption from liability refers" 
 to damages caused by such mere accidents 
 as the carrier would be liable for, and that 
 neither refers to occurrences for which there 
 would be no liability whatever, nor to dam- 
 ages caused by wilful misfeasance. Ullman 
 v. Chicago & N. W. R. Co. 112 Wis. 150, 88 
 .N. W. 41, 56: 246 
 
 d. As to Time of Giving Notice of Commen- 
 cing Suit. 
 
 Stipulation by Telegraph Company, see Tel- 
 egraphs, 82-91. 
 
 929. A custom cannot require that a ship- 
 per should expressly agree, as a condition 
 precedent to his right to damages for in- 
 jury to stock during transportation, that he 
 would give notice before removing the stock. 
 Missouri P. R. Co. v. Fagan, 72 Tex. 127, 9 
 S. W. 749, 2: 75 
 
 930. Under Dak. Civ. Code, 1261, provid- 
 ing that the obligations of a common carrier 
 cannot be limited by general notice, and 
 1263, providing that, except as to the rate of 
 hire, time, place, and manner of delivery, the 
 acceptance of a ticket, bill of lading, or writ- 
 ten contract shall not constitute an accept- 
 ance of provisions modifying the carrier's 
 obligations, unless the person accepting it 
 manifests his assent by his signature, a 
 provision in an express company's contract 
 or receipt, exempting the company from lia- 
 bility unless a claim should be presented in 
 writing within ninety days from that date, 
 is of no effect, where such contract or re- 
 ceipt was signed only by the company's 
 agent. Hartwell v. Northern Pac. Exp. Co. 
 5 Dak. 463, 41 N. W. 732, 3:342 
 
 931. Provisions in a carrier's contract that 
 notice of injury to cattle must be given be- 
 fore they are unloaded or mixed with others, 
 and that no animal Shall be considered as 
 worth more than a specified sum, conflict 
 with a constitutional provision that common 
 carriers shall not contract for relief from 
 their common-law liability. Ohio & M. R. 
 Co. v. Taber, 98 Ky. 503, 32 S. W. 168. 36 
 S. W. 18, 34: 685 
 
 932. A railroad company is not -absolved 
 from liability for injuries to stock transport- 
 ed by it occasioned by the negligence of its 
 employees, by a clause in the shipping con- 
 tract providing that it shall not be liable 
 unless written notice is given before removal 
 of the property from the car, where it had a 
 good, fair, and reasonable opportunity to 
 inspect the stock before removal. Atchison, 
 T. & S. F. R. Co. v. Temple, 47 Kan. 7. 27 
 Pac. 98, 13: 362 
 
 933. A condition inserted in the contract 
 of a common carrier making its liability de-
 
 CARRIERS, II. b, 7. 
 
 405 
 
 pendent upon the giving of a written notice 
 to some officer of the carrier or the nearest 
 station agent, of any loss or injury to the 
 'property before removing it from the place 
 of delivery, or mingling it with other proper- 
 ty, is an unreasonable limitation upon the 
 liability of such carrier. Good v. Galveston, 
 H. & S. A. R. Co. (Tex.) 11 S. W. 854, 
 
 4: 801 
 
 934. If a carrier sets up a claim to notica 
 of a given fact as a condition on which its 
 liability to a shipper was. to depend, it is in- 
 cumbent upon it, when the notice was to be 
 given to one of its officers or agents, to show 
 that it had an officer or agent at or near the 
 place where the notice was to be given. Id. 
 Commencing suit. 
 
 For Editorial Notes, see infra, IV. 37. 
 
 935. An agreement in a bill of lading, that 
 in case of a breach of the shipping contract 
 a suit to recover the damages th^eby occa- 
 sioned will be barred unless brought within 
 forty days after the damage occurs, is valid 
 and binding on the shipner; and after the 
 lapse of forty days he cannot maintain an 
 action to recover for the losses sustained, 
 unless he shows some reasonable excuse for 
 the delay. Gulf, C. & S. F. R. Co. v. Gate- 
 wood, 79 Tex. 89, 14 S. W. 913, 10: 419 
 
 e. Excepted Perils. 
 
 Breakage, Presumption as to, see Evidence, 
 
 4flO. 
 For Editorial Notes, see infra, IV. 37. ' 
 
 936. Exemptions in favor of a common 
 carrier in bills of lading are to be strictly 
 construed against the carrier, and any doubt 
 or ambiguity therein is to be resolved in fa- 
 vor of the shipper. N. K. Fairbank & Co. v. 
 Cincinnati, N. O. & T. P. R. Co. 26 C. C. 
 A. 402, 47 U. S. App. 744, 81 Fed. 289, 
 
 38:271 
 
 937. General and comprehensive words of 
 exemption following an enumeration of par- 
 ticular dangers or risks in a bill of lading 
 are to be construed to embrace only particu- 
 lar occurrences ejusdem generis with those 
 enumerated, unless there is a clear intent to 
 the contrary. Id. 
 
 938. Those devices and parts of a car 
 which have no physical operation 'and con- 
 nection with the locomotive, except by 
 means of the cars of the train and the coup- 
 lers between them, such as the axles of the 
 car, are not within the term "machinery" in 
 the phrase "accidents to boilers and ma- 
 chinery," as used in the exemption clause in 
 a bill of lading, evidently intended to apply 
 either to water or rail transportation. Id. 
 Wet. 
 
 See also infra, 1001. 
 
 For Editorial Notes, gee infra, IV. 37. 
 
 939. A common carrier may, in consider- 
 ation of a reduced freight rate, stipulate for 
 exemption irom liability to the property by 
 wet. Mears v. New York, N. H. & H. R. Co. 
 75 Conn. 171, 52 Atl. 610, 56: 884 
 Freezing. 
 
 940. Loss of freight by freezing caused by 
 its being sent, by direction of the carrier, 
 
 over a route which subjected it to such peril, 
 is not within a clause in the shipning con- 
 tract exempting the carrier from liability 
 for loss from any "cause arising out of re- 
 sponsibility as master over its agents or 
 servants, incident to said .shipment." Pierce 
 v. Southern P. Co. 120 Cal. 156, 47 Pac. 874, 
 52 Pac. 302, 40: 350 
 
 Fire. 
 For Editorial Notes, see infra, IV. 37. 
 
 941. A "fire clause" in a bill of lading, ex- 
 empting the carrier from liability for loss 
 by fire, is not valid where transportation 
 under the rules of the common law is not 
 offered as an alternative, and no reduction of 
 rates is matle as a consideration for t'he ex- 
 emption. Louisville & N. R. Co. v. Gilbert, 
 88 Tenn. 430, 12 S. W. 1018, 7: 162 
 
 942. Mere acquiescence by shippers in the 
 use of bills of lading containing a clause ex- 
 empting from liability for fires will not 
 show the reasonableness of the exemption, 
 where the shippers have not had an oppor- 
 tunity of selecting: between bills of lading 
 with and those without this clause. Id. 
 
 943. The ordinary exemption clause in a 
 bill of lading, exempting the carrier from 
 liabilitv for loss of the sihipner's prorcertv by 
 fire, will not cover cotton while in the ware- 
 house of a compress company which has re- 
 ceived it as the agent of the carrier. Dem- 
 ing v. Merchants' Cotton-Press & S. Co. 90 
 Tenn. 306, 17 S. W. 89, 13: 518 
 
 944. A railroad company is liable for cot- 
 ton burned in its car while intrusted to it 
 for shipment, where the cotton would not 
 have been destroyed but for the breaking of 
 a drawbar in attempting to draw the train 
 out of danger, although its bill of lading 
 contains a valid clause exempting it from 
 liability for loss by fire. la. 
 
 945. Carriers making a through contract 
 for the shipment of merchandise, whether 
 through an initial line agreeing to ship be- 
 yond its own road, or through a transporta- 
 tion company having no line of its own, 
 but simply authorized to ship over connect- 
 ing lines, may insert therein a fire exemp- 
 tion clause, although no offer is made to as- 
 sume the risk for additional compensation, 
 since there is no common-law liability to 
 make the through shipment. Id. 
 
 946. The burning of cotton while awaiting 
 compression as provided by a bill of lading, 
 in a compress not owned or operated by the 
 carrier, is within a clause in the bill exempt- 
 ing the carrier from loss by fire while the 
 property is on deposit in place of tranship- 
 ment or depots or landings, or at points of 
 delivery. Missouri P. R. Co. v. Sherwood. 84 
 Tex. 125, 19 S. W. 455, 17: 643 
 Mob or strike. 
 
 947. A common carrier may lawfully stip- 
 ulate by special contract for exemption from 
 liability for loss occurring by reason of de- 
 lay in the transportation and delivery of 
 goods, occasioned by a mob, or strike, or 
 threatened violence to person or property. 
 Gulf, C. & S. F. R. Co. v. Gatewood, 89 Tex. 
 89, 14 b. W. 913, 10:419
 
 406 
 
 CARRIERS, II. b, 8 9. 
 
 8. Contract or Duty to Furnish Cars. 
 
 Duty to Receive and Transport Freight Of- 
 fered, see supra, II. b, 2. 
 
 Duty to Furnish Safe Cars, see supra, 763. 
 
 Penalty for Failure to Furnish Cars, see 
 infra, 1022-1024. 
 
 Measure of Damages for Failure to Furnish, 
 see Damages, 231. 
 
 Evidence of Animosity against Shipper, see 
 Evidence, 2176. 
 
 Evidence of Declarations as to, see Evidence, 
 1630. 
 
 Mandamus to Compel Furnishing of Cars, 
 see Mandamus, 109, 163, 164. 
 
 Pleading as to, see Pleading, 45. 
 
 See also supra, 773. 
 
 For Editorial Notes, see infra, IV. 34, 39. 
 
 948. The question whether or not the own- 
 er of refrigerator cars which are to be used 
 for shipping fruit is a common carrier does 
 not determine the liability of a railroad 
 company for breach of its contract to fur- 
 nish such cars for a particular shipment. 
 Mathis v. Southern R. Co. 65 S. C. 271, 43 
 S. E. 684, 61 : 824 
 
 949. A railroad company which contracts 
 to furnish a refrigerator car in which to 
 transport fruit cannot relieve itself from 
 liability for failure to do so on the ground 
 that such cars are only furnished by anoth- 
 er company, and that the railroad company 
 did not solicit the business, but an agree- 
 ment for the cars was made between the 
 shipper and the owner of the car. Id. 
 
 950. No excuse for the breach by a carrier 
 of its contract to furnish a car and transport 
 cattle to a certain place by a certain day is 
 furnished by the fact that the shipper's ob- 
 ject in naming that day was to enable him 
 to offer the cattle for sale on Sunday, con- 
 trary to law, unless that object entered into 
 the contract as part of the inducement or 
 consideration. Waters v. Richmond & D. R. 
 Co. 110 N. C. 338, 14 S. E. 802, 16: 834 
 
 951. A notification to a railroad company 
 by a person to whom shipments were being 
 made under a contract, not to receive any 
 more suc<h shipments, will not relieve the 
 carrier for failure to furnish cars to the 
 shipper when demanded. Houston, E. & W. 
 T. R. Co. v. Campbell, 91 Tex. 551, 45 S. W. 
 2, 43: 225 
 
 952. A carrier's knowledge of a shipper's 
 contract is not necessary in order to make it 
 liable for failing to furnish cars when de- 
 manded, in order to make shipments to fill 
 the contract. Id. 
 
 953. Failure of a railroad company to fur- 
 nish cars to a shipper who has property 
 ready to ship under a contract, and demands 
 cars, will render the carrier liable for his 
 damages on account of the failure, although 
 he does not continue to prepare and offer for 
 shipment the remainder of the property re- 
 quired to fill the contract. Id. 
 
 954. The duty of a railroad company to 
 furnish cars for transportation to a person 
 making a timelv demand therefor is imposed 
 by Tex. Rev. Stat. 1895, arts. 4494, 4496, 
 without the necessity of a contract for the 
 cars. Id. 
 
 955. j.ne proviso in Tex. Rev. Stat. art. 
 4498, that the place designated in an appli- 
 cation for cars "shall be at some station or 
 switch on the railroad," was not intended 
 to require cars to be furnished at such 
 switches as were not otherwise within the 
 terms of the statute. Id. 
 
 9. Demurrage on Cars. 
 
 Illegal Combinations to Fix Charges for, see 
 
 Conspiracy, 184-187. 
 See also supra, 786. 
 For Editorial Notes, see infra, IV. 43. 
 
 956. A carrier which has adopted a rea- 
 sonable regulation regarding demurrage up- 
 on its cars is not prevented from enforcing 
 it by the fact that it was promulgated by 
 a board or combination of carriers. Miller v. 
 Georgia R. & Bkg. Co. 88 Ga. 563, 15 S. E. 
 316, 18: 323 
 
 957. A reasonable charge for improper de- 
 lay in unloading cars is not one for trans- 
 portation, storage, or delivery of freight 
 within Va. Code 1887, 1202, 1203, which 
 provide that no charge other than that pro- 
 vided by law shall be made. Norfolk & W. 
 R. Co. v. Adams, 90 Va. 393, 18 S. E. 673, 
 
 22: 530 
 
 958. A carrier whose customers are al- 
 lowed the option of unloading for themselves 
 may make and enforce a reasonable regula- 
 tion as to the time in which the vehicles 
 may be unloaded free of demurrage, and 
 may fix a reasonable rate per day at which 
 demurrage will be charged for such vehicles 
 so long as they remain unloaued after the 
 expiration of such time. Miller v. Georgia 
 R. & Bkg. Co. 88 Ga. 563, 15 S. E. 316. 
 
 18: 323 
 
 959. Under a regulation of a carrier pro- 
 viding for demurrage upon cars to be placed 
 and remain accessible to the consignee for 
 the purpose of unloading, the cars are to be 
 considered accessible, where the carrier is al- 
 ways ready to place them in a position for 
 unloading within, at the longest, a few hours 
 after being notified that the consignee is 
 ready to unload. la. 
 
 960. A regulation of a carrier as to demur- 
 rage upon cars, known to its customer be- 
 fore its shipments are made, is binding upon 
 him, whether mentioned in tftie bills of lad- 
 ing or not, and whether the shipments are 
 made to the order of the consignor with in- 
 structions to notify the customer, or direct- 
 ly to the customer himself. Id. 
 Reasonableness of charge. 
 
 Question for Jury as to, see Trial, 153. 
 
 961. A charge to a consignee of $1 per day 
 after three days, for every car remaining 
 unloaded after notice of arrival, is not un- 
 reasonable. Norfolk & W. R. Co. v. Adnms, 
 90 Va.,393, 18 S. E. 673, 22: 530 
 
 962. A charge of $1 per day demurrage up- 
 on railroad cars which the consignee of 
 freight fails to unload within a reasonable 
 time allowed for that purpose is not, as mat- 
 ter of taw, unreasonable, although cars vary 
 in capacity, and the customary rate of stor- 
 age in warehouses and elevators is much
 
 CARRIERS, II. c, 1. 
 
 467 
 
 tower. Miller v. Georgia R. & Bkg. Co. 88 
 Ga. 563, 15 S. E. 316, 18: 323 
 
 What will relieve from payment of charge. 
 
 963. Ignorance of the existence of a rule 
 imposing a demurrage charge for dilatori- 
 ness in unloading cars does not relieve a 
 consignee from the effect of its operation, 
 where it appears upon the bill of lading. 
 Yazoo M. V. R. Co. v. Searles, 85 Miss. 
 520, 37 So. 939, 68: 715 
 
 964. liie existence of an unadjusted claim 
 for damage to a car load of freight is no 
 justification for the refusal of a consignee 
 to pay demurrage on cars subsequently 
 delivered to him. Id. 
 
 965. A rule of a car-service association 
 that payment of demurrage bills shall not 
 be unduly delayed, and that no claim of mis- 
 take or overcharge will be considered until 
 the bill has been first paid, does not subject 
 consignees to liability to imposition, since 
 the consignee would have an action for dam- 
 ages in case of any extortion. Id. 
 
 966. Payment of bills for demurrage fu/ 
 failure promptly to unload cars cannot be 
 refused because they were on letter heads 
 of a car-service association, rather than on 
 those of the railroad company. Id. 
 Loss of lien for charges. 
 
 967. Placing a car of lumber upon the 
 team track to be conveniently unloaded by 
 the consignee is not such an absolute de- 
 livery of the property into his possession as 
 to cut off the carrier's lien for subsequent 
 demurrage charges accruing while the lum- 
 ber remains upon its car. Southern R. Co. 
 v. Lockwood Mfg. Co. 142 Ala. 322, 37 So. 
 667, 68: 227 
 Effect of nonpayment of charjres. 
 
 968. Refusal by a carrier to place cars 
 on the switch tracks leading to the ware- 
 house of a consignee, because of his refusal 
 to recognize or be uound by its rule impos- 
 ing demurrage charges for dilatoriness in 
 unloading, is not a breach of its common- 
 law duty which will 'subject it to damages, 
 although it would have no risrht to take 
 such course merely because of dispute as to, 
 or refusal to pay, past-due charges. Yazoo 
 & M. V. R. Co. v. Searles, 85 Miss. 520, 37 
 So. 939, 68: 715 
 
 969. Compelling a consignee of goods to 
 receive them on the wagon track of the rail- 
 road company rather than hive them placed 
 upon the switch track leading to his ware- 
 house, because of his refusal to pav demur- 
 rage charges according to the rules of a 
 car-service association, which results in in- 
 creased expense of unloading, does not en- 
 title him to the penalty imposed by statute 
 when one has been compelled to pay more 
 for services rendered by a corporation exer- 
 cising a public franchise uy reason of an un- 
 lawful act or agreement of a trust than he 
 would have been compelled to pay but for 
 such act. Id. 
 Rules of car service association. 
 
 See also supra, 965, 966. 
 
 970. There may be a reasonable charge 
 for the detention of a carrier's cars by the 
 consignee or consignor beyond a reasonable 
 time within which to load and unload them, 
 
 which may be imposed and enforced by a 
 ri ar service association. Kentucky Wagon 
 Mfg. Co. v. Ohio & M. R. Co. 98 Ky. 152, 
 32 S. W. 595, 36: 850 
 
 971. That shippers are not consulted by a 
 car service association in framing rules for 
 the collection of demurrage for the deten- 
 tion of cars, and that the rules do not pro- 
 vide for reciprocity of indemnity or counter 
 penalties, do not render the rules void. Id. 
 
 972. Carriers do not surrender their au- 
 tonomy and functions by relegating the con- 
 trol and management of the prompt loading 
 and unloading of cars by patrons to the con- 
 trol of a car service association. Id. 
 
 973i A provision permitting the carrier 
 which delivers a car to a consignee to collect 
 the demurrage for its unreasonable deten- 
 tion does not render a rule of the car service 
 association invalid, although the car may in 
 fact belong to another carrier. Id. 
 
 974. A rare or exceptional circumstance 
 incident to a particular shipper at a particu- 
 lar time cannot be allowed to annul a rule 
 of a car service association providing for the 
 payment of a demurrage for the detention 
 of cars beyond a certain time. Id. 
 
 c. Connecting Carriers. 
 1. Of Passengers. 
 
 Liability as to Baggage, see supra, 682, 684. 
 See also supra, 614-616, 659. 
 
 975. A railroad company which sells a 
 ticket to a point beyond its line is liable for 
 injuries to the passenger caused by the neg- 
 ligence of those in charge of the train and 
 car at a point beyond its own line, to which 
 the passenger was carried without change 
 of cars. Cholk-tte v. Omaha & R. V. R. Co. 
 26 Neb. 159, 41 N. W. 1106, 4: 135 
 
 976. A railroad company contracting to 
 carry an excursion party by a special train 
 to a point beyond its own road becomes lia- 
 ble for the entire transportation; and anoth- 
 er company over whose road it passes, and 
 the agents of the latter company, become 
 pro hac vice its agents in such transporta- 
 tion, for whose negligence it is liable. 
 Washington v. Raleigh & G. R. Co. 101 N. C. 
 239, 7 S. E. 789, 1 : 830 
 
 977. Where two connecting railroad com- 
 panies use a station jointly, or 'hire one per- 
 son to discharge the duties of ticket agent 
 for both, and such person sells a ticket over 
 one of the roads, the other company is not 
 responsible for the negligence of the connect- 
 ing road. Atchison. T. & S. F. R. Co. v. 
 Cochran, 43 Kan. 225, 23 Pac. 151, 7: 414 
 
 978. A railroad company which sells as 
 first-class and for a full first-class fare a 
 ticket over its own and other lines, unon 
 \thich is printed a provision that in selling 
 the ticket the company acts only as agent, 
 and is not -responsible beyond its own line, 
 is not liable to the purchaser on account of 
 the latter's being ejected from a first-class, 
 and compelled to travel on a second-class, 
 car on another line. Harris v. Howe. 74 
 Tex. 534, 12 S. W. 224, 5: 777
 
 408 
 
 CARRIERS, II. c, 2. 
 
 979. An undertaking by a ticket agent, 
 upon receiving money to pay the passage of 
 a third person from a point on another road 
 to the point where the money is received, 
 that he will instruct the initial carrier to de- 
 liver a ticket to the intending passenger, 
 will not render his employer liable for delay 
 of the initial carrier in complying with the 
 instructions. Brezewitz v. St. Louis, I. M. 
 & S. R. Co. 75 Ark. 242, 87 S. W. 127, 
 
 70: 212 
 Refusal of connecting line to honor tickets. 
 
 980. A railroad company by selling tickets 
 .bearing coupons for transportation over con- 
 necting lines does not impliedly contract 
 that such tickets will be recognized and hon- 
 ored by such connecting lines, but merely 
 that it is the agent of such lines' and has au- 
 thority to issue such tickets. Chicago & A. 
 R. Co. v. Mulford, 162 111. 522, 44 N. E. 861, 
 
 35: 599 
 
 981. The fact that each of two connect- 
 ing railroads sells through tickets, taking its 
 own share of the price according to its 
 mileage, does not constitute them partners 
 so as to render the selling road liable for 
 failure of the connecting road to honor such 
 a ticket. Id. 
 
 982. The statements on tickets sold by one 
 railroad company bearing coupons good over 
 connecting roads, "Issued" by such company 
 and, "Good for one first-class passage," do 
 not constitute a contract by the selling com- 
 pany to transport the holder over the con- 
 necting roads, so as to make it liable for 
 failure of the latter roads to honor the 
 tickets. Id. 
 
 983. It is not necessary to relieve a rail- 
 road company selling tickets bearing cou- 
 pons for transportation over connecting 
 roads from liability for failure of such con- 
 connecting roads to honor such coupons, that 
 the tickets should contain anything to nega- 
 tive a contract by the selling company for 
 the entire journey, as there is no presump- 
 tion that it acts otherwise than as agent 
 for the connecting companies. Id. 
 
 984. A railroad company which sells a 
 quantity of coupon tickets over its own and 
 connecting roads, to brokers, under the rep- 
 resentation that they can make a through 
 rate less than the regular through rate by 
 adding the local rate beyond the termi- 
 nation of such tickets, is not liable to such 
 brokers because of the refusal of a connect- 
 ing company to honor such tickets, as, in 
 the absence of any contract other than the 
 mere sale of tickets, the coupons are to be 
 regarded as distinct tickets for each road, 
 sold by the first company as agent for the 
 others. Id. 
 
 2. Of Freight, 
 a. In General. 
 
 Liability as to Bn garage, see supra, 682,684. 
 Carrier LimitinT Liability to Its Own Line, 
 
 see sunra, 884-801. 
 Carrier's Duty to Accept Freight Destined 
 
 to P^int Beyond its Line, see supra, 
 
 759, 760. 
 
 Compulsory Connection and Interchange of 
 Business, see infra, III. b. 
 
 Provision against Liability for Acts of, 
 as Interference with Commerce, see 
 Commerce, 66, 67. 
 
 Provision as to Liability Beyond Line as 
 Interference with Commerce, see Com- 
 merce, 47. 
 
 Burden of Proof as to Negligence, see Evi- 
 dence, 487. 
 
 Oral Evidence as to Receipt of Goods, see 
 Evidence, 785. 
 
 Partnership between, see Partnership, 14. 
 
 Allegations as to Negligence, see Pleading, 
 333. 
 
 Admission of Partnership, see Pleading, 114. 
 
 See also supra, 744, 768, 775, 841. 945. 
 
 For Editorial Notes, see infra, IV. 38. 
 
 985. A carrier cannot be considered as 
 ratifying the original contract of shipment 
 for goods which it receives from another 
 company and transports, when it is bound 
 by statute to perform such service. Dwyer 
 v. Gulf, C. & S. F. R. Co. 75 Tex. 572, 12 S. 
 W. 1001, 7: 478 
 
 986. A custom to take cars from con- 
 necting carriers without changing the goods 
 cannot be invoked to protect from negli- 
 gence in failing to transport the goods with 
 care. Beard v. Illinois C. R. Co. 79 Iowa, 
 518. 44 NT. W. 800, 7: 280 
 
 987. A carrier of live stock cannot re- 
 lieve itself from liability for the death of 
 animals by showing that they died in pos- 
 session of a connecting carrier, if its own 
 negligence was the cause of their death. 
 TTarman v. Norfolk & W. R. Co. 91 Va. 601, 
 22 S. E. 490, 44: 289 
 
 988. The giving of a through bill of lading 
 by a carrier contracting to carry goods, the 
 making of through freight charges, the 
 furnishing of one car for the whole distance, 
 and the act of the agent at the end of the 
 route, being the agent of another company 
 than the receiving company, in receiving the 
 whole freight money, sufficiently show joint 
 liability on the part of the two carriers for 
 failure to deliver the goods according to 
 the contract made by the receiving carrier. 
 International & G. N. R. Co. v. Tisdale, 74 
 Tex. 8, 11 S. W. 900, 4: 545 
 
 989. On a shipment from Boston to At- 
 lanta, the Inst road named on the bill of 
 ladiner, which runs into Atlanta, cannot 
 avoid its liability under Ga. Code, 2084, as 
 the last of several connecting roads, by the 
 simple fact that it pushed the cars to the 
 track of another railroad in Atlanta, and 
 trot that road to haul them with its engine 
 2 ] 4 miles, and deliver them to the mills to 
 which they were shipped. Western & A. R. 
 Co. v. Exposition Cotton Mills, 81 Ga. 522. 
 7 S. E. 916, 2: 102 
 
 990. A carrier which has engaged space 
 with an ocean transportation company for 
 a quantity of merchandise is not relieved 
 from liability for breach of the contract, by 
 the fact that, for its benefit after the 
 breach, the bill was made out to a third 
 person, who had been expected to furnish 
 the goods to fill the contract. Baltimore
 
 CARRIERS, II. c, 2. 
 
 409 
 
 Steain Packet Co. v. Patterson, 45 C. C. A. 
 575, 106 Fed. 736, 66: 193 
 
 991. A contract by a carrier, reading, "We 
 have this day booked with you via Johns- 
 ton Line" certain merchandise for ocean 
 transportation, constitutes an absolute en- 
 gagement to fill the required space, for 
 breach of which the one signing the contract 
 will be liable, in the absence of anything to 
 show that the contract was merely part of 
 a joint-traffic arrangement under which, in 
 case the goods were not secured, each car- 
 rier should sustain its own loss. Id. 
 Duty to deliver to connecting carrier. 
 
 992. No common-law duty rests upon a 
 common carrier to deliver a shipper's live 
 stock to a connecting carrier in order that 
 it may reach a certain stock yard in the 
 city to which it is consigned, if the car- 
 rier has contracted for adequate facilities 
 for handling the stock in another yard in 
 the same city. Central Stock Ya*rds Co. v. 
 Louisville & N. R. Co. 55 C. C. A. 63, 118 
 Fed. 113, 63: 213 
 When initial carrier's liability ceases. 
 
 993. A carrier by accepting for ship- 
 ment goods marked to a point beyond its 
 termination impliedly agrees to carry them 
 to their destination, in the absence of re- 
 strictions limiting the contract of the car- 
 rier to its own line, consented to by the 
 shipper. Illinois C. R. Co. v. Carter, 165 
 111. 570, 46 N. E. 374, 36: 527 
 
 994. The liability of a forwarding carrier 
 ceases upon the safe delivery and ware- 
 housing of the goods at their destination, 
 and it is not liable for a subsequent mis- 
 delivery of the same by an agent of the 
 connecting line or warehouseman. Id. 
 
 995. The liability of a forwarding carrier 
 after safely delivering goods at the depot 
 or a warehouse of the connecting line at the 
 point of destination cannot be extended by 
 its agent, in the absence of authority, so 
 as to cover future safe delivery. Id. 
 Receipt to init'al, from other carrier. 
 
 996. S. C. Gen. Stat. 1513, providing 
 that an initial carrier may exempt itself 
 from liability for goods lost or injured in 
 transit by producing a receipt showing that 
 the goods were delivered to a connecting 
 carrier in due course of transportation, does 
 not require the receipt to be in any par- 
 ticular form ; such written evidence of the 
 receipt of the property by the connecting 
 carrier as will shift the liability to account 
 for the property to the latter is sufficient. 
 Miller v. South Carolina R. Co. 33 S. C. 
 359, 11 S. E. 1093. 9: 833 
 
 997. Delay of a railroad company in pro- 
 ducing upon reouest a receipt for lost goods 
 from a steamship company to which it was 
 the company's duty to deliver them, caused 
 bv mistnke in producing the receipt of the 
 first railroad company beyond it in the 
 line of transportation, is not such "wilful 
 failure and refusal" to deliver the receipt 
 as will deprive the company of the benefit 
 of a statutory provision permitting the 
 initial carrier to relieve itself from liability 
 for loss by the production of such receipt, 
 where from the terms of the act it was 
 
 very doubtful whether or not the receipt of 
 the steamship company would suffice and 
 the act had never been judicially construed. 
 
 Id. 
 
 998. S. C. Gen. Stat. 1513, requiring a 
 railroad 'company, in order to relieve itself 
 from liability for loss of goods delivered to 
 it for transportation over its own and con- 
 necting roads, to produce, a receipt therefor 
 from the corporation to whom it was its 
 duty to deliver the goods in the regular 
 course of transportation, includes a steam- 
 ship company among the corporations from 
 whom receipts must be produced when such 
 company happens to form one of the com- 
 mon carriers in a through line of transpor- 
 tation agreed on by the parties, although 
 the statute does not in terms mention 
 steamship lines. Id. 
 Right to benefit of shipper's contract with 
 
 other carrier. 
 
 999. A connecting carrier is not entitled 
 to the benefit of provisions in the bill of 
 lading taken by the initial carrier, if it 
 makes a new contract upon taking the 
 goods from the latter, and gives a new bill 
 of lading stating the extent of its liability. 
 Browning v. Goodrich Transp. Co. 78 Wis. 
 391, 47 N. W. 428, 10: 415 
 
 1000. An intermediate carrier can derive 
 no benefit from a contract between the first 
 carrier and the shipper, limiting the for- 
 mer's liability, which makes no provision 
 for an extension of its benefits to any other 
 than the first carrier. Adams Exp. Co. v. 
 Harris, 120 Ind. 73, 21 N. E. 340, 7: 214 
 
 1001. A connecting carrier is entitled to 
 the benefit of a stipulation in the bill of 
 lading exempting it from liability for in- 
 jury to the property by wet, although it is 
 not named in the bill and the property 
 might have been sent by another route. 
 Mears v. New York, N. H. & H. R. Co. 75 
 Conn. 171, 52 Atl. 610, 56: 884 
 Tracing property. 
 
 Provision for, as Impairment of Obligation 
 of Contract, see Constitutional Law, 
 1158. 
 
 Shipper's Right of Action for Failure to 
 Trace, see Parties. 6. 
 
 1002. A carrier failing to comply with 
 the requirements of Ga. Civ. Code, 2317, 
 as to tracing "freight" which has been 
 lost, damaged, or destroyed, and giving 
 information with respect thereto, becomes 
 liable under 2318 for the negligence of a 
 connecting carrier. Central of Ga. R. Co. 
 v. Murphey, 113 Ga. 514, 38 S. E. 9/0. 
 
 53: 720 
 
 1003. That the system employed by a 
 carrier in tracing goods delivered by it to 
 a connecting line, under a contract exempt- 
 ing it from responsibility on delivery of 
 such goods to a connecting line in good 
 order, was inadequate to enable it to trace 
 the goods and give information as to the 
 time, place and manner of loss or injury 
 thereto within thirtv days as required by 
 Ga. Civ. Code, 2317, 2318, does not re- 
 lieve it from liability for the loss or injury 
 to the goods if the tracing within siifh time 
 was not an impossibility. Central of Ga. R.
 
 410 
 
 CARRIERS, II. d, III. a. 
 
 Co. \. Murphey, 116 Ga. 863, 43 S. E. 265, 
 
 60: 817 
 
 1004. The provision of Ga. Civ. Code, 
 2317, 2318, requiring a carrier to trace and 
 give information within thirty days after 
 application as to the time, place, and man- 
 ner of injury to goods shipped, under a con- 
 tract relieving any of two or more connect- 
 ing carriers from .responsibility on delivery 
 to the next carrier in good order, is not 
 unreasonable or arbitrary as to the time 
 allowed for tracing the goods when applied 
 to a shipment from Georgia to Nebraska. 
 
 Id. 
 
 1005. The provisions of Ga. Civ. Code, 
 2317, 2318, that when freight which has 
 been shipped, to be conveyed by two or 
 more carriers to its destination, under a 
 contract by which the responsibility of one 
 carrier ceases on delivery to the next in 
 good order, has been lost, damaged, or de- 
 stroyed, it shall be the duty of the initial 
 or connecting carrier on application by the 
 shipper, consignee, or their assigns, within 
 thirty days after the application, to trace 
 such freight and inform the applicant in 
 writing as to the time, place, and manner of 
 the loss or injury, and the names of the 
 parties and their official position, if any, by 
 whom the truth of the facts can be estab- 
 lished; and making a carrier who fails to 
 trano the freight and give such information 
 within the prescribed time liable for the 
 freight lost, damaged, or destroyed, are 
 not unreasonable and arbitrary, nor an un- 
 lawful regulation by the state of interstate 
 commerce, nor an infringement of the cor- 
 relative liberty of silence, nor a compul- 
 sory private discovery by statutory terror. 
 
 Id. 
 
 6. Selection of Route. 
 
 Right of Carrier to Select Route of Pas- 
 senger, see supra, 16-18, 607. 
 See also supra, 744. 
 
 1006. The carrier's right to select the 
 route for through shipments does not ex- 
 tend to the selection of insolvent lines or 
 uncertain or unreliable agencies. Post v. 
 Southern R. Co. 103 Tenn. 184, 52 S. W. 301, 
 
 55: 481 
 
 1007. An illegal advantage to a shipper 
 over other shippers, by way of rebates 
 from a fast freight line, will not be ground 
 for giving him the right, as aerainst a car- 
 rier, to designate the route for a through 
 shipment at through rates. Id. 
 
 1008. The right to designate the route of 
 through shipments at through rates belongs 
 to the carrier, and not to the shipper, in the 
 absence of any sufficient or controlling 
 'reason to the contrary. Id. 
 
 1000. A railroad company which cannot, 
 because of a strike, obey the shipping 
 directions as to the route by which the 
 goods shall be sent forward, is liable to the 
 shipper in case it selects another route 
 without consulting him, on which the 
 freight charges are greatly increased, where 
 means of communication with the shipper 
 are easily available, and can be utilized 
 
 withoxit injury to the property, although 
 the bill of lading stipulates that it may, 
 in case of necessity, forward the goods to 
 destination by any route. Fisher v. Boston 
 & M. R. Co. 99 Me. 338, 59 Atl. 532, 68: 390 
 
 d. Criminal Transportation. 
 
 Liability for Violating Liquor Law, see In- 
 toxicating Liquors, 97-101, and also 
 infra, IV. 35. 
 
 For Editorial Notes, see infra, IV. 35. 
 
 10l6. Common carriers are not included in 
 the provision of Me. Rev. Stat. chap. 30, 
 12, imposing a penalty on "whoever . . . 
 has in possession" between October 1 and 
 January 1 more than the number therein 
 specified of the carcasses of certain wild 
 animals. 'Bennett v. American Exp. Co. 83 
 Me. 236, 22 Atl. 159, 13: 33 
 
 1011. A common carrier who does not 
 know, or have good reason to know, that 
 barrels received by him for shipment con- 
 tain short lobsters, is not liable for receiv- 
 ing them, under Me. Laws 1889, chap. 292, 
 2, making it unlawful to catch or "pos- 
 sess for any purpose" between specified 
 dates any lobster less than 10^ inches long. 
 State v. Swett, 87 Me. 99, 32 Atl. 806, 
 
 29: 714 
 
 III. Governmental Control; Rates; Dis- 
 crimination; Duty as to Stopping Places. 
 
 a. In General. 
 
 Requirement of Blackboard Announcement 
 as to Trains, see supra, II. a, 11. 
 
 Duty to Trace Freight Shipped Over Con- 
 necting Lines, see supra, 1002-1005. 
 
 Regulation of Interstate Business of, see 
 Commerce, II. 
 
 Vested Rights in Contract for Interstate 
 Transportation, see Constitutional Law, 
 1157. 
 
 Mode of Giving Notice of Violation of 
 Order, see Constitutional Law, 192. 
 
 Violation of Game Laws by, see Game Laws, 
 2. 
 
 Requiring Keeping of Street Car Tickets for 
 Sale, see Municipal Corporations, 243, 
 273. 
 
 See also supra, 869. 
 
 1012. Common carriers may, within the 
 limits of fairness and impartiality, consult 
 their own interests in making contracts for 
 the carriage of goods. Cleveland, C. C. & 
 I. R. Co. v. Closser, 126 Ind. 348, 26 N. E. 
 159, 9: 754 
 
 1013. A carrier may at any time change 
 its policy as to furnishing shippers of a 
 certain commodity privileges which, under 
 the law, it is not bound to extend to them. 
 Central of Ga. R. Co. v. Augusta Brokerage 
 Co. 122 Oa. 646, 50 S. E. 473, 69: 119 
 
 1014-1015. Land grants by Congress to 
 states in aid of railroads do not relieve a 
 railroad thus aided from the regulation and 
 control of the state in which it is incorpo- 
 rated. Illinois C. R. Co. v. People, 143 111. 
 434, 33 N. E. 173, 19: 119
 
 CARRIERS, III. b. 
 
 411 
 
 1016. A foreign corporation which comes 
 into the state to operate a railroad there- 
 by undertakes and becomes bound to do it 
 according to the terms and conditions im- 
 posed by the Constitution and laws of the 
 state upon domestic corporations, in respect 
 to regulation of its rates. St. Louis & S. 
 F. R. Co. v. Gill, 54 Ark. 101, 15 S. W. 18, 
 
 11: 452 
 
 1017. An express company doing business 
 outside of the state of its origin, though it 
 be not a corporation, but a partnership en- 
 titled to do business there without per- 
 mission, and as free from the control and 
 visitorial power of the state as any other 
 individual or partnership, is subject, as a 
 common carrier, to public control and regu- 
 lation, and therefore may be compelled to 
 give information to the state as to all its 
 property and business within the state, as 
 a basis for such public regulation of its 
 business, but not as to its property out of 
 the state, nor as to its interstate business, 
 except so far as necessary to enable the 
 state authorities to discharge their duties 
 as to its business and property within the 
 state. State ex rel. Railroad & W. Com. v. 
 United States Exp. Co. 81 Minn. 87, 83 "NT. 
 W. 465, 50: 667 
 
 1018. Overcharges by a common carrier 
 on interstate shipments made prior to the 
 taking effect of the Interstate Commerce 
 Act of Congress cannot be recovered by the 
 shipper by the application of common-law 
 doctrines. Gatton v. Chicago, R. I. & P. R. 
 Co. 95 Iowa, 112, 63 N. W. 589, 28: 556 
 Confining sale of tickets to agents. 
 
 In Matters Affecting Interstate Commerce, 
 see Commerce, 40, 43. 
 
 Delegation of Power as to, see Constitution- 
 al Law, 173. 
 
 Invasion by Courts of Legislative Preroga- 
 tive as to, see Constitutional Law, 248. 
 
 Equal Protection and Privileges as to, see 
 Constitutional Law, 422, 423. 
 
 Police Power as to, see Constitutional Law, 
 1079, 1080. 
 
 Impairing Obligation of Contract by, see 
 Constitutional Law, 1159. 
 
 Due Process in Regulatinsr Sale, see Consti- 
 tutional Law, 751-753. 
 
 Injunction against Ticket Brokers, see In- 
 junction, 71, 80, 501. 
 
 See also Prohibition, 9; Ticket Brokers. 
 
 For Editorial Notes, see infra, IV. 3, 18. 
 
 1019. The sale of passage tickets on rail- 
 roads may be confined by statute to agents 
 of the railroad company, and a penalty im- 
 rx>sed upon the sale by other persons. 
 .Tannin v. State. 42 Tex. Crim. Rep. 631, 
 51 S. W. 1126, 62 S. W. 419, 53: 349 
 
 1020. Confining the sale of railroad tickets 
 to the company's agents is not the grant of 
 a monopoly. Id. 
 Redemption of ticket. 
 
 1021. The word "owner," in the Minnesota 
 statute requiring the owner of a railroad 
 or steamboat to redeem unused tickets, in- 
 Hudf"* all those who operate a railroad or 
 steamboat in the transportation of pas- 
 sonrrors, n c^ f or example, lessees, receivers, 
 and the like. State v. Corbett, 57 Minn. 
 345, 59 N. W. 317, 24: 498 
 
 Penalty for failure to furnish cars. 
 
 As to Connecting Carriers Generally, see 
 
 supra, II. c. 
 Contract or Duty to Furnish Cars, see 
 
 supra, II. b, 8. 
 Compelling Interchangeable Mileage, see 
 
 Attorney General, 4. 
 See also supra, 9-13; infra, 1080. 
 
 1022. The act of 1887, imposing a penalty 
 on railroad companies for failure to furnish 
 cars to. shippers, is in no manner extended 
 or controlled by the laws then existing. 
 Houston, E. & W. T. R. Co. v. Campbell, 91 
 Tex 551, 45 S. W. 2, 43: 225 
 
 1023. A penalty for failure to furnish 
 cars to a shipper under Tex. Rev. Stat. arts. 
 4497-4502, cannot be imposed for failure to 
 furnish cars at a switch where the carrier 
 has no agent, as "the agent" to whom, 
 under art. 4500, a deposit must be made of 
 one fourth the freight charge for the car, 
 means the agent at or for the station where 
 the cars are desired. Id. 
 
 1024. Statutes imposing a penalty on car- 
 riers for refusal to accept freight offered 
 for transportation do not limit the com- 
 mon-law liability of the carrier. Parker v. 
 Atlantic Coast Line R. Co. 133 N. C. 335, 45 
 S. E. 658, 63: 827 
 
 b. Compulsory Connection and Interchange 
 of Business; Discrimination between 
 Carriers, Hackmen, etc.; through Rates. 
 
 For Editorial Notes, see infra, IV. 32. 
 
 Connecting switches; .interchange of traffic. 
 In Matters Affecting Interstate Commerce, 
 
 see Commerce, 50-52d. 
 As Impairment of Obligation of Contract, 
 
 see Constitutional Law, 1161. 
 Judicial Power of Courts as to, see Courts, 
 
 172. 
 
 1025-1026. A contract to give all the traf- 
 fic of certain mines and furnaces and of a 
 railroad therefrom at reasonable rates to 
 another and connecting railroad, which 
 furnishes aid to develop the business is not 
 ultra vires or in violation of Pa. Const, art. 
 17, 1, 3, 4, requiring railroads to carry 
 each other's traffic without discrimination, 
 and "prohibiting discrimination in trans- 
 portation for individuals, and prohibiting 
 the consolidation of parallel and competing 
 roads. Bald Eagle Valley R. Co. v. Nittany 
 Valley R. Co. 171 Pa. 284,, 33 Atl. 239, 
 
 29: 423 
 
 1027. A connecting switch may be or- 
 dered by the state railroad and warehouse 
 commission at the intersection of two rail- 
 roads, when this is a necessity, because of 
 the benefit which will accrue to state traffic. 
 Jacobson v. Wisconsin. M. & P. R. Co. 71 
 Minn. 519, 74 N. W. 893, 40: 389 
 
 1028. Power to require a connecting 
 switch -at the crossing of two railroads, to 
 facilitate the transfer of cars from one 
 road to the other, when this will benefit 
 both state and interstate traffic, is within 
 the concurrent jurisdiction of the state and 
 Federal authorities. Id. 
 
 in?l-inso. The transfer and interchange 
 of loaded cars as well as a connecting
 
 412 
 
 CARRIERS, III. b. 
 
 switch at the intersection of two railroads, 
 required by the railroad and warehouse 
 commission under Minn. Gen. Laws 1887, 
 chap. 10, as amended by Minn. Gen. Laws 
 18Jo, cuap. 91, does not violate the consti- 
 tutional rights of the railroad companies. 
 
 Id. 
 
 1031. Where the charter of a railroad 
 company provided "that any and all such 
 railroad or railroads hereafter constructed 
 may connect and join with the road here- 
 by contemplated," the connection thus 
 authorized is a physical, and not a business, 
 connection, and it does not require an inter- 
 change of traffic at the point of junction. 
 Kentucky & I. Bridge Co. v. Louisville & 
 N. R. Co. 37 Fed. 567, 2: 289 
 
 1032. Refusal of a carrier to interchange 
 traffic with a new road, at a point where 
 proper facilities therefor do not exist, does 
 not constitute any discrimination, or any 
 undue or unreasonable preference or ad- 
 vantage. Id. 
 
 1033. A carrier cannot be compelled by a 
 new connection formed with its road by 
 another railroad, at a point where there are 
 no facilities for handling freight, to concede 
 the use of its own track and terminal facili- 
 ties to the new company, and accomplish 
 the interchange of traffic at its own yards 
 and with its own employees. The use of 
 such advantages can be acquired only by 
 mutual agreement. Id. 
 Through rates. 
 
 As to Matters Affecting Interstate Com- 
 merce, see Commerce, 52a-52c. 
 
 Ilegal Contract to Establish, see Con- 
 spiracy, 183. 
 
 Power of Interstate Commerce Commission 
 as to. see Interstate Commerce Com- 
 mission, 2. 
 
 Carrier's Right to Injunction, see Injunction, 
 301, 392. 
 
 1034. A statute requiring freight in car- 
 load lots to be transferred without unload- 
 ing, unless the unloading is done without 
 charge, and that smaller quantities shall be 
 transferred into the cars of the connecting 
 carrier at cost, which shall be made a part 
 of the joint rate, does not interfere with the 
 constitutional guaranties for the protection 
 of the 'rights and property of the carriers. 
 Burlington. C. R. & N. R. Co. v. Dey, 82 
 Iowa. 312. 48 N. W. 98, 12: 436 
 
 1035. The power to establish joint 
 "through rptes" for connecting carriers is 
 included within the power of the state to 
 regulate rates of charges for transportation 
 of freiibt by railroads. Id. 
 
 lOPfi-imi. A railrond comnany is not 
 compelled to enter involuntarily into con- 
 tract relations with other companies, by a 
 statute requiring the adoption of joint 
 rates, or. in default thereof, the fixing of 
 pnch rntes by railrond commissioners, as in 
 the latter case the obligation of the com- 
 pany as to the rates is one imposed by 
 law. and not by contract. Id. 
 
 1040. An individual shipper or consignor 
 cannot legally require a railroad company 
 to send a shipment by a particular route 
 beyond the company's line, at the same or 
 
 equivalent through rates which such com- 
 pany may have established with other con- 
 necting lines; and what the individual 
 shipper of interstate commerce may not 
 lawfully demand, common carriers engaged 
 in transporting such traffic may not law- 
 fully require of connecting lines. Kentucky 
 & I. Bridge Co. v. Louisville & N. R. Co. 
 37 Fed. 567, 2:289 
 
 1041. The making of joint rates for 
 through shipments when part of the haul is 
 on one and part on the other of two con- 
 necting railroads for which power is given 
 by Minn. Laws 1895, p. 214, 3 (C), is not 
 unconstitutional as an attempt to make the 
 railroad companies partners for such ship- 
 ment or liable for each other's default, as 
 the statute merely provides that, if the 
 companies fail to fix a reasonable total sum 
 for the total haul, the commission shall do 
 so for them. Jacobson v. Wisconsin, M. & 
 P. R. Co. 71 Minn. 519, 74 N. W. 893, 
 
 40: 389 
 
 1042. Other connecting carriers are not 
 entitled to through billing and rating, and 
 to the use of tracks and terminals of a 
 carrier which has voluntarily made an ar- 
 rangement giving .these advantages to one 
 connecting carrier. Little Rock & M. R. 
 Co. v. St. Louis & S. W. R. Co. 27 U. S. App. 
 280, 11 C. C. A. 417, 63 Fed. 775, 26: 192 
 Discrimination between express companies. 
 
 1043. A railroad company is not under 
 obligation to furnish an express company 
 with facilities for doing an express business 
 upon its road, such as it provides for itself 
 or some other express company, unless it 
 holds itself out as a common carrier of ex- 
 press companies. Atlantic Exp. Co. v. 
 Wilmington & W. R. Co. Ill N. C. 463, 16 
 S. E. 394, 18: 313 
 
 1044. A statute making it unlawful for 
 any common carrier to give undue or un- 
 reasonable preference to any person, com- 
 pany, firm, corporation, or locality, does not 
 require equal facilities to be given to ex- 
 press companies for carrying on business 
 over a railroad, unless it holds itself out 
 as a common carrier of such companies. 
 
 Id. 
 
 Between hacks, carriages, etc. 
 Injunction against Hackmen Soliciting Busi- 
 ness, see Injunction, 171. 
 See also Parties, 5. 
 For Editorial Xotes, see infra, TV. 4, 7. 
 
 1045. A railroad company has no right 
 to give one hackman an exclusive privilege 
 of entering, with his hacks, its inclosed 
 station grounds to solicit passengers. Rt^te 
 v.,Roed, 76 Miss. 211, 24 So. 308, 43: 134 
 
 10-16 The exclusive right to use the plat- 
 form of a railway company for receiving 
 and discharging passengers cannot be grant- 
 ed by the company to one hack owner. 
 Montana Union R. Co. v. Langlois, 9 Mont. 
 410, 24 Pac. 209, 8: 753 
 
 1017. Neither can it give a mononoly of 
 grounds for a hack and bus stand. Kalama- 
 7.00 Track & B. Co. v. Sootsma, 84 Mi"h. 
 194. 47 X. W. 6fi7, 10: 819 
 
 1048. A <rrant by a railroad company of 
 the exclusive right to stand hacks on an-
 
 CARRIERS, III. b. 
 
 413 
 
 area owned by it adjacent to a passenger 
 station, for the purpose of soliciting busi- 
 ness, is unlawful, us the company, which 
 acquired its grounds through the sovereign 
 right of eminent domain, whether by pur- 
 chase or by condemnation, cannot grant 
 special privileges and immunities that the 
 state could not; and such action is also 
 against public policy as tending to restrict 
 competition and to enhance prices. Indian- 
 apolis U. R. Co. v. Dohn, 153 Ind. 10, 53 N. 
 E. 937, 45: 427 
 
 104!). The payment by passengers for 
 transportation includes payment for the 
 common use of the station facilities, and 
 entitles them to have the railroad company 
 refrain from coercing them into yielding 
 further tribute by giving an exclusive right 
 to a hackman to solicit their business as 
 they leave the station. Id. 
 
 1050. All hackmen and persons engaged 
 in the business of conveying passengers and 
 baggage for hire have the right of entry, 
 without discrimination, to the depots of a 
 common carrier, to deliver or receive pas- 
 sengers or baggage, in pursuance of a con- 
 tract or order, subject to proper rules and 
 regulations for the interest of the travel- 
 ing public. Godbout v. St. Paul Union 
 Depot Co. 79 Minn. 188, 81 N. W. 835, 
 
 47: 532 
 
 1051. Hackmen and private carriers, in 
 common with all others in that business, 
 have the right and privilege of soliciting 
 public patronage, without being discrimi- 
 nated against by a railroad company, at all 
 points without the railroad depot, when 
 such points or places have been properly 
 designated. Id. 
 
 1052. A railroad company which has 
 leased a hack stand on its own property 
 cannot grant the lessee special privileges 
 beyond the limits of its own land by pre- 
 venting others from occupying hack stands 
 in the street. Pennsylvania Co. v. Chicago. 
 181 111. 289, 54 N. E. 825, ' 53: 223 
 
 1053. A common carrier has, by virtue of 
 its right of ownership in its property, the 
 control of its depots, subject only to the 
 rights of the public having business re- 
 lations with it. Godbout v. St. Paul Union 
 Depot Co. 79 Minn. 188, 81 N. W. 835, 
 
 47: 532 
 
 1054. A railroad company may give the 
 exclusive right to solicit patrons within its 
 station to one hackman. Donovan v. 
 Pennsylvania Co. 57 C. C. A. 362, 120 Fed. 
 215, ' 61: 140 
 
 1055. A grant of the exclusive privilege 
 of entering station grounds to solicit pas- 
 sengers or baggage is not unlawful, if its 
 terms are not inconsistent with the reason- 
 able accommodation of the public. New 
 York, N. H. & H. R. Co. v. Scovill, 71 Conn. 
 136, 41 Atl. 246, 42: 157 
 
 1056. A common carrier, by rules and 
 regulations which it deems necessary for 
 the control of its business within its depot 
 building, may grant special and exclusive 
 privileges to hackmen to solicit business, 
 provided such rules and regulations are 
 reasonable and conduce to the comfort, con- 
 
 venience, and interest of its patrons. God- 
 bout v. St. Paul Union Depot Co. 79 Minn. 
 188, 81 N. W. 835, 47: 532 
 
 1057. The grant, by a railroad company, 
 to a single corporation or individual, of the 
 exclusive right to enter passenger trains 
 and the passenger stations to solicit bag- 
 gage, and of the use of an oflice in the 
 baggage room of the railroad company, and 
 also of the privilege of checking baggage of 
 prospective passengers at hotels and resi- 
 dences in advance of the delivery of the 
 baggage at the railroad station, does not 
 violate any public duty or deprive any 
 citizen of any lawful right. Kates v. 
 Atlanta Baggage & Cab Co. 107 Ga. 636, 34 
 S. E. 372, 40: 431 
 
 1058. A union depot company may grant 
 to a transfer company the exclusive right 
 to use a designated portion of its depot 
 grounds for the purpose of standing thereon 
 its hacks and vehicles, and of soliciting 
 thereon the patronage of incoming passen- 
 gers; and a rule excluding from the grounds 
 all others engaged in a like business, except 
 for the purpose of delivering passengers or 
 of receiving passengers who shall have 
 previously employed them, is a reasonable 
 rule, and may be enforced so long as said 
 transfer company provides and furnishes at 
 such depot adequate accommodations in the 
 way of vehicles to meet the reasonable re- 
 quirements of the traveling public, and 
 makes no greater charge for its services in 
 carrying passengers and baggage to and 
 from such station than is made or may be 
 permitted to be made by others for like 
 services. State ex rel. Sheets v. Union 
 Depot Co. 71 Ohio, 379, 73 N. E. 633, 
 
 68: 792 
 
 1059. An exclusive privilege given by a 
 railroad company to one baggage transfer 
 company, of entering the railroad depot to 
 solicit business, without interfering with the 
 right of a rival company to receive and de- 
 liver baggage at the station, is not in vio- 
 lation of Va. act March 3, 1892, prohibit- 
 ing any undue or unreasonable preference 
 by any common carrier to any person, since 
 this statute, which was adopted from Eng- 
 land, had been previously construed by the 
 English courts to apply only to preferences 
 by common carriers in respect to their 
 services as carriers. Norfolk & W. R. Co: v. 
 Old Dominion Baggage Transfer Co. 99 Va. 
 Ill, 37 S. E. 784, 50: 722 
 
 1060. Teamsters J.ave no right, either at 
 common law or under a statute renuiring 
 railroad companies to furnish facilities for 
 the accommodation of the public, and to 
 furnish to all persons equal terms, facili- 
 ties, and accommodations for the transpor- 
 tation of persons and property over their 
 roads, and for the use of buildincrs and 
 grounds in connection with such transpor- 
 tation, to enter upon the railroad property 
 to solicit the privilege of carrying the bag- 
 gage of passengers: but the railroad com- 
 pany may give such right to one of them, 
 and exclude others from its grounds, if 
 the reasonable reouirements of passengers 
 are thereby fully met. Hedding v.
 
 414 
 
 CARRIERS, III. c, 1. 
 
 Gallagher, 72 N. H. 377, 57 Atl. 225, 
 
 64: 811 
 
 1061. Each hackman may be assigned a 
 separate stand at the depot ground of a 
 railroad company, and may be ejected from 
 the stand assigned to another for refusing 
 to leave it, if no unnecessary force is used. 
 Cole v. Rowen, 88 Mich. 219, 50 N. W. 138, 
 
 13:848 
 
 1062. The owner of an omnibus line 
 which is given access to depot grounds and 
 allowed by the railroad company to occupy 
 a particular stand cannot complain because 
 the position is not as favorable as that 
 given to a competing line. Lucas v. Herbert, 
 148 Ind. 64, 47 N. E. 146, 37: 376 
 
 1063. A rule excluding unlicensed hack- 
 men from a wharf will not make one of 
 them a trespasser in going there for a pas- 
 senger whom he is specially ordered to 
 meet on the arrival of a steamboat. Gris- 
 wold v. Webb, 16 R. I. 649, 19 Atl. 143, 
 
 7:302 
 
 1064. The implied license of the owner 
 and driver of a carriage to enter railroad 
 grounds for a passenger who has ordered 
 the carriage, notwithstanding the exclusive 
 privilege, given by the railro'ad company to 
 another person, of entering such grounds to 
 solicit such business, is violated so as to 
 make him a trespasser if, while there, he so 
 places his carriage and conducts himself as 
 to indicate his willingness to receive and 
 transport any other passenger. Boston & 
 A. R. Co. v. Brown, 177 Mass. 65, 58 N. E. 
 189, 52: 418 
 
 1065. The fact that the driver of a pub- 
 lic carriage, who solicits business on depot 
 grounds, with knowledge that another has 
 the exclusive privilege therefor, is doing 
 the business under a contract with a hotel 
 keeper, does not relieve him from liability 
 for his trespass, since notice to him, so far 
 as he represents the hotel keeper, consti- 
 tutes notice to the latter. Id. 
 
 1066. A hackman or private carrier for 
 hire is not a party having such relations 
 with a common carrier as will permit him 
 to enter a depot to solicit business from 
 passengers. Godbout v. St. Paul Union 
 Depot Co. 79 Minn. 188, 81 N. W. 835, 
 
 47: 532 
 
 1067. An ordinance requiring hackmen to 
 keep outside a railroad depot while trains 
 are there, and leave a clear passageway at 
 the entrance, cannot be limited in operation 
 by a prior contract by which the railroad 
 company has, "so far as it is lawful," grant- 
 ed to a hackman the exclusive right to enter 
 the depot and trains for soliciting passen- 
 gers. Lindsey v. Anniston, 104 Ala. 257. 
 16 So. 545, 27:436 
 
 c. Rates; Discrimination between Passen- 
 gers or Shippers; Rebates. 
 
 1. In General. 
 
 Charging Extra Fare in Certain Cases, see 
 
 supra, II. a, 10, d. 
 Requiring Establishment of Through Rates 
 
 for Connecting Carriers, see supra, 1034- 
 
 1042. 
 
 Regulation of Rates in Interstate Business, 
 
 see Commerce, 53-61. 
 Allowing Attorney's Fees in Proceeding for 
 
 Violation, see Constitutional Law, 576. 
 Fixing Rates as Impairment of Ooligation 
 
 of Contract, see Constitutional Law, 
 
 1145-1148. 
 Schedule of Rates as Evidence, see Evidence, 
 
 851. 
 Injunction as to Rates, see Injunction, 314- 
 
 316, 468. 
 Mandamus to Prevent Over Charge, see 
 
 Mandamus, 165. 
 Passenger's Right of Action on Contract of 
 
 Carrier with Town, see Parties, 73. 
 Action to Enforce Order of Railroad Com- 
 missioners, see Pa'rties, 95. 
 Compelling Abolition of Reconsignment 
 
 Charge, see Quo Warranto, 26. 
 Extension of Time of Taking Effect of 
 
 Schedules, see Railroad Commissioners, 
 
 2. 
 Special Legislation as to, see Statutes, 302, 
 
 303. 
 
 Regulation of Telephone Rates, see Tele- 
 phones, 19-24. 
 
 See also supra, 992, 1007; Statutes, 423. 
 For Editorial Notes, see infra, IV. 5. 
 
 1068. W. Va. Code 1891, chap. 54, 82c, 
 subs. 7, 8, as to classification of freight and 
 rates of charges therefor, are repealed by 
 W.- Va. Acts 1895, chap. 17. Norfolk & W. 
 R. Co. v. Pinnacle Coal Co. 44 W. Va. 574, 
 30 S. E. 196, 41: 414 
 
 1069. The court will not presume that a 
 contract between a carrier and shipper 
 which is valid in itself violates the sched- 
 ule which had been prepared by the public 
 authorities, in the absence of anything in 
 the contract or pleadings to indicate that it 
 does so. Laurel Cotton Mills v. Gulf & S. I. 
 R. Co. 84 Miss. 339, 37 So. 134, 66: 45 
 Unauthorized overcharge by conductor. 
 
 1070. A railroad company is not liable for 
 the penalty of $500 for overcharge of freight 
 or passenger rates under W. Va. Code 1891, 
 chap. 54, p. 559, cl. v., for the mere charge 
 of it. by a conductor, unless the company 
 authorized or approved the act. Hall v. 
 Norfolk & W. R. Co. 44 W. Va. 36, 28 S. E. 
 754, 41 : 669 
 Posting or filing rates. 
 
 1071. A pamphlet hanging in a railroad 
 company's office, containing freight rules 
 and rates, although the law requires them 
 to be posted, is not of itself constructive 
 notice of its contents. Coupland v. Housa- 
 tonic R. Co. 61 Conn. 531, 23 Atl. 870, 15: 534 
 
 1072. To enforce a contract for freight 
 rates a shipper is not required to prove that 
 the carrier has complied with its statutory 
 duty to file the rates established thereby 
 with the proper authorities. Laurel Cotton 
 Mills v. Gulf & S. I. R. Co. 84 Miss. 339, 
 37 So. 134, 66:453 
 Penalty for overcharge. 
 
 Fine for Overcharge, see Fines, 1, 3. 
 See also supra, 1070. 
 
 1073. Voluntary payment of an over- 
 charge by a carrier will not preclude a re- 
 covery for a statutory penalty. St. Louis &
 
 CARRIERS, III. c, 2. 
 
 415 
 
 S. P. R. Co. T. Gill, 54 Ark. 101, 15 S. W 
 18, 11:452 
 
 1074. The fact that a person rode on 
 trains for the sole purpose of accumulatin 
 penalties against the carrier by payment oi 
 excessive fares which the carrier demanded 
 will not preclude a recovery for statutory 
 penalties imposed for such overcharges. Id 
 
 2. Power to Fix Rates ; Mileage Tickets. 
 
 Elegal Combinations of Carriers, see Con- 
 spiracy, II. d. 
 
 Delegation of Power as to, see Constitution- 
 al Law, 191, 220-222. 
 
 Equal Protection as to, see Constitutional 
 Law, 421. 
 
 Due Process as to, see Constitutional Law, 
 741-745. 
 
 For Editorial Notes, see infra, IV. 5. 
 
 1075. The legislature has the power to fix 
 the maximum passenger and freight rates 
 which railroad companies may charge. 
 Pingree v. Michigan C. R. Co. 118 Mich. 314, 
 76 N. W. 635, 53: 274 
 
 1076. The exclusive right to fix freight 
 and passenger rates within the maximum 
 limit, conferred upon the Michigan Central 
 Railroad Company by 15 of its charter, 
 has not been lost or surrendered by the 
 company's acceptance of additional privi- 
 leges under acts professedly or impliedly 
 amendatory of its charter, and under the 
 general railroad law, or by its absorption of 
 the property and franchises of other rail- 
 corporations. Id. 
 
 1077. The exclusive power to fix passen- 
 ger and freight rates, within the maximum 
 limit, which could not be impaired bv subse- 
 quent legislation attempting to fix such 
 rates, was conferred upon the Michigan Cen- 
 tral Railroad Company by 15 of its char- 
 ter, providing that it shall be lawful for the 
 company to fix the tolls and charges for the 
 transportation of property and persons, sub- 
 ject only to a limitation as to passengers of 
 3 cents a mile; and such power is not limit- 
 ed by 11, 30, authorizing the company to 
 charge such tolls as shall be lawfully estab- 
 lished by by-laws, and to pass such by-laws 
 as shall be necessary to carry into execution 
 the powers vested in it, provided they are 
 not contrary to the laws or Constitution of 
 the United States or of the state. Id. 
 
 1078. In order to exempt a common car- 
 rier from legislative control over its rates 
 of fare, the exemption must be made by 
 clear and unmistakable language inconsist- 
 ent with the exercise of such power by the 
 legislature. Indianapolis v. Xavin, 151 Ind. 
 139, 156, 47 N. E. 525, 51 N. E. 80, 41 : 337 
 
 1078a. A railroad is not exempt from state 
 regulations of its rates by the fact that it 
 has been declared a post and military route 
 and national highway by acts of Congress 
 which granted to it lands for a risrht of 
 way. St. Louis & S. F. R. Co. v. Gill, 54 
 Ark. 101, 15 S. W. 18, 11:452 
 
 Mileage tickets. 
 
 Statutory Requirement as Interference with 
 Interstate Commerce, see Commerce, 42. 
 
 Compelling Issuance of, see Attorney Gen- 
 eral, 4. 
 
 Due Process aa to, see Constitutional Law, 
 742. 
 
 1079. Mich. Pub. Acts 1891, act No. 90, 
 providing for the issuance of family mileage 
 tickets, cannot be aeemed an exercise of 
 the power of amendment reserved in the 
 charter of the Michigan Central Railroad 
 Company, as it does not purport to be an 
 amendment of the charter, and contains no 
 provision for compensating the company for 
 the loss of its exclusive right, under the 
 charter, to fix its fares. Pingree v. Michi- 
 gan C. R. Co. 118 Mich. 314, 76 N. W. 636, 
 
 53: 274 
 
 1080. A statute requiring railroad com- 
 panies to issue mileage tickets and to re- 
 ceive those of other roads in payment of 
 fare, without providing any fund for their 
 redemption, or making them a lien on any 
 tangible property, or putting any limit on 
 the number of them which may be issued, 
 or the time within which they must be used, 
 is unconstitutional as an appropriation of 
 individual property to public use without 
 the owner's consent and without legal pro- 
 vision for a reasonable compensation there- 
 for. Attorney General v. Old Colony R. Co. 
 160 Mass. 62, 35 N. E. 252, 22: 112 
 Rates on street cars generally. 
 
 Due Process as to, see Constitutional -Law, 
 
 741. 
 Rates of Fare of Leased Road, see Street 
 
 Railways, 54-57. 
 
 1081. A municipal corporation has no 
 power to make a contract with a street rail- 
 road company which will prevent the legis- 
 lature from regulating its rates of fare. 
 Tndianapoljs v. Navin, 151 Ind. 139, 156, 47 
 N. E. 525, 51 N. E. 80, 41 : 337 
 
 1082. An ordinance regulating the rate of 
 fare "to be charged" by street railway com- 
 panies, and providing for transfers between 
 lines which do "now or shall hereafter" 
 join, connect, etc., is not limited to roads in 
 existence at the time of its passage. Chi- 
 cago Un ; on Traction Co. v. Chicago, 199 111. 
 484, 65 N. E. 451, 59: 631 
 
 1083. An ordinance providing that the 
 fare to be charged by a company authorized 
 to construct street railways within certain 
 divisions of the municipality shall not ex- 
 
 ieed a certain rate "for any distance" does 
 not give a right to charge a full fare upon 
 every car, but entitles the passenger to 
 "ravel any distance within such divisions 
 "or one fare, although in so doing it is neces- 
 sary for him to change cars. Id. 
 
 1084. Power to -require the giving of 
 transfer tickets between street car lines 
 operated by one company is included in 
 charter authority "to prescribe the compen- 
 sation" of such companies. Id. 
 
 1085. Power to prescribe the compensa- 
 tion of horse car companies is conferred on 
 a municipality by charter authority to 
 regulate hackmen, omnibus drivers, cabmen, 
 "and all others pursuing like occupations, 
 and to prescribe their compensation." Id. 
 
 1086. The standard of measurement con- 
 templated by Ohio Rev. Stat. 3374, pro-
 
 416 
 
 CARRIERS, III. c. 3. 
 
 viding that railroad companies shall nol 
 charge for the transportation of passenger 
 a rate exceeding 3 cents a mile for a dis 
 tance of more than 8 miles, is the mile 
 'without regard to fractions thereof, and the 
 3-cent limit does not apply to any distance 
 less than 9 miles. Cleveland, C. C. & St. L 
 R. Co. v. Wells, 65 Ohio St. 313, 62 N. E 
 332, 58:651 
 
 1087. Any doubt as to the right of a 
 street railway company to fix its fares with- 
 in a specified limit will be resolved against 
 such right. Chicago Union Traction Co. v. 
 Chicago, 199 111. 484, 65 N. E. 451, 59: 631 
 Duty to sell tickets at reduced rates on 
 
 street cars. 
 
 1088. The duty of a street railway com- 
 pany to sell tickets in quantities at reduced 
 rates on each car, by virtue of the terms of 
 its franchise from a certain town from 
 which it runs to a neighboring city, extends 
 to a passenger on the line who gets on the 
 car and offers to buy such tickets at a point 
 outside the town. Rice v. Detroit, Y. & A. 
 A. Ry. 122 Mich. 677, 81 N. W. 927, 48: 84 
 
 1089. A street railway company which has 
 assumed to comply with the terms of its 
 franchise requiring sales of tickets at re- 
 duced prices for a certain trip, by providing 
 separate tickets for different parts of the 
 trip, without offering any through-trip 
 tickets for sale, and which has accepted 
 a ticket for one portion of the trip, cannot 
 escape liability for refusing to sell tickets 
 at the reduced price for the remaining part 
 of the trip, on the ground that its franchise 
 obliges it to sell through tickets only. Id. 
 
 1090. An ordinance requiring street rail- 
 road tickets to be kept for sale by the con- 
 ductor or driver of every car is not unrea- 
 sonable, and is within the statutory grant of 
 power to fix and determine the fare. Stern- 
 berg v. State, 36 Neb. 307, 54 N. W. 553. 
 
 19: 570 
 
 1091. An ordinance requiring tickets to be 
 kept for sale upon street cars is within a 
 reservation of power to maice such rules 
 and regulations from time to time as may 
 be deemed necessary to protect the interests, 
 welfare, or accommodation of the public. 
 Detroit v. Ft. Wayne & B. I. R. Co. 95 
 Mich. 456, 54 N. W. 958, 20: 79 
 
 3. Reasonableness of Rates. 
 
 Requirements as to Extra Fare, see supra. 
 
 IT. a, 10, d. 
 Making Commissioners' Schedule Prima 
 
 Facie Evidence of Reasonableness, see 
 
 Constitutional Law, 919. 
 Inquiry by Courts as to, see Courts, 179, 
 
 ISO. 
 
 Sufficiency of Proof of, see Evidence, 2308. 
 See also Jurv. 50. 
 For Editorial Notes, see infra, TV. 5. 
 
 1092. A common earner cannot lawfully 
 make unreasonable charges for his services. 
 or unjust discrimination between his cus- 
 tomers. Cook v. Chicago. R. I. & P. R. Co. 
 81 Iowa. 551, 46 N. W. 1080, 9: 764 
 
 1003. Where a schedule of rates for rail- 
 
 road charges, fixed by legislative authority, 
 will not pay the cost of necessary service, 
 appliances and the repair thereof, and in- 
 terest on bonds, and then leave something 
 for dividends, its enforcement will be en- 
 joined. Chicago & N. W. R. Co. v. Dey, 
 35 Fed. 8G6, 1 : 744 
 
 1094. In a suit to restrain the enforce- 
 ment o'f unreasonable rates, it is no defense 
 that plaintiff is a foreign corporation and 
 may retire when the business ceases to be 
 profitable, or that it operates through other 
 states, where no rates are fixed which will 
 enable it to make profit. Id. 
 
 1095. In a suit to restrain the enforce- 
 ment of unreasonable rates it is no defense 
 that the reduced rates may increase the 
 volume of business, and make it more re- 
 munerative in the future. Id. 
 
 1096. The fact that Iowa act April 5, 
 1888 (Laws 22 Gen. Assem. chap. 28), to 
 make and put in effect a schedule of rates 
 for railroad transportation within the state, 
 imposes a penalty to be enforced by crimi- 
 nal prosecution against any railroad com- 
 pany which shall charge "more than a fair 
 and reasonable rate of toll," does not render 
 the act invalid as beins a penal act which 
 fails to describe the offense covered there- 
 by with sufficient certainty, as, taken as 
 a whole, the act makes the commissioners' 
 schedule the test as to reasonableness of 
 rates. Id. 
 
 1097. The provision of a statute that rates 
 fixed by railroad commissioners shall be re- 
 garded as prima facie reasonable is within 
 the power of the state as to prescribing 
 rules of evidence in all proceedings under 
 the laws of the state. Burlington, C. R. & 
 N. R. Co. v. Dey, 82 Iowa, 312, 48 N. W. 
 98, 12:436 
 
 1098. A 1 statute giving railroad commis- 
 sioners authority to fix joint rates for a 
 railroad makes the rules thus fixed only 
 prima facie evidence, although not expressly 
 limiting them to that effect, where the only 
 penalties are for charging unjust ana un- 
 reasonable rates, and a former statute which 
 did not extend to joint rates, and of which 
 this was an amendment, expressly limited 
 the effect of the commissioners' order as to 
 rates to prima facie evidence. Id. 
 
 1099. There is no uncertainty in a statute 
 prescribing a penalty for unreasonable rail- 
 road charges, and declaring that rates fixed 
 by railroad commissioners as the maximum 
 shall be prima facie reasonable, on the 
 ground that it does not permit any charge 
 with certainty of its reasonableness, as the 
 state is precluded from denying that the 
 commissioners' rates are reasonable. Id. 
 
 1100. The enforcement of a tariff of 
 freight and passenger rates which will not 
 pay the expenses of operating a railroad, 
 [Tekl, upon the pleadings, to show an abuse 
 of the discretion given to railroad commis- 
 
 ioners by the statute authorizing them to 
 prescribe reasonable and just rates of freight 
 ind passenger transportation, and to 
 imount to a taking of the railroad com- 
 pany's property without just compensation.
 
 CARRIERS, III. c, 4. 
 
 417 
 
 Pensacola & A. R. Co. v. State, 25 Fla. 
 310,5So.833, 3:661 
 
 1101. Where a tariff of freight and passen- 
 ger rates has been established by the rail- 
 road commissioners, and the railroad com- 
 pany and the commissioners differ as to 
 whether such rates, considered as a whole, 
 will prove remunerative to the company, 
 and there is room for a difference of intelli- 
 gent opinion on the question, the courts 
 cannot interfere or substitute their judg- 
 ment for that of the commissioners, but the 
 tariffs as fixed by the commissioners must, 
 in so far as the courts are concerned, be left 
 to the test of experiment. Id. 
 
 1102. The courts have no power to make 
 freight or passenger tariffs. Id. 
 
 1103. The courts will not interfere or 
 grant any relief to a railroad company 
 against rates fixed by commissioners,, upon a 
 complaint made as to one or several rates 
 only, or where the freight and passenger 
 rates established by the commissioners are 
 not assailed as an entirety. Id. 
 
 1104. Part only of the line of a railroad 
 company cannot be taken separately in test- 
 ing the justice of a statute regulating rates 
 of transportation. St. Louis & S. F. R. Co. 
 T. Gill, 54 Ark. 101, 15 S. W. 18, 11: 452 
 
 1105. The justice of a statute limiting 
 rates of transportation must be determined 
 with reference to its effect on the whole of 
 a class of railroads, where they are classified 
 by the statute, and not with reference to 
 one particular road. Id. 
 
 4. Discrimination; Rebates. 
 
 Matters as to Interstate Business, see Com- 
 merce, 32, 56. 
 
 Measure of Damages for, see Damages, 238, 
 239. 
 
 Indictment for Discrimination, see Indict- 
 ment, etc., 48, 119-126. 
 
 Compelling Carrier to Furnish Equal Facil- 
 ities, see Injunction, 50. 
 
 Cross Bill in Action to Prevent Discrimina- 
 tion, see Pleading, 545. 
 
 Authority to Hear Complaints as to, see 
 Railroad Commissioners, 3. 
 
 Partial Invalidity of Statute as to, see Stat- 
 utes, 114. 
 
 Adopting Construction of Adopted Statute 
 as to, see Statutes, 527. 
 
 Discrimination in Telegraph Rates, see Tele- 
 graphs, 12-14. 
 
 Question for Jury as to, see Trial, 499. 
 
 See also supra, 1042; Parties, 163. 
 
 For Editorial Notes, see infra, IV. 4, 5. 
 
 1106. Competition in transportation does 
 not prevent "substantially similar circum- 
 stances and conditions," within the meaning 
 of Ky. Const. 218, and Ky. Stat. 820, 
 but those words relate to the actual cost of 
 transportation. Louisville & N. R. Co. v. 
 Com. 104 Ky. 226, 46 S. W. 707, 105 Ky. 179, 
 47 S. W. 598, 43: 541 
 
 1107. The purpose of a carrier to suppress 
 competition does not make it unlawful to 
 offer low rates when a rival vessel is loading 
 to those only who will not ship anything by 
 
 L.R.A. Dig. 27. 
 
 the latter. Lough v. Outerbridge, 143 N. Y. 
 271, 38 N. E. 292, 25:674 
 
 1108. Mere inequality between the rate 
 charged a shipper and the published tariff 
 rates does not constitute unjust discrimina- 
 tion, within the meaning of Colo. Const, art. 
 15, 6, prohibiting "undue or unreasonable 
 discrimination." Bayles v. Kansas P. R. Co. 
 13 Colo. 181, 22 Pac. 341, 5: 480 
 
 1109. Discrimination in the making of 
 contracts by a carrier for the carriage of 
 goods, without partiality, is inoffensive. 
 Partiality exists only in cases where ad- 
 vantages are equal and one party is unduly 
 favored at the expense of another who 
 stands upon an equal footing. Cleveland, 
 C. C. & I. R. Co. v. Closser, 126 Ind. 348, 26 
 N. E. 159, 9: 754 
 Kentucky & I. Bridge Co. v. Louisville & 
 N. R. Co. 37 Fed. 567, 2:289 
 
 1110. Mere discrimination in freight rates 
 by a common carrier against a shipper was 
 not a wrong for which the common law gave 
 a remedy, so as to come within the clause 
 in the United States statute (U. S. Rev. 
 Stat. 711, U. S. Comp. Stat. 1901, p. 577) 
 conferring jurisdiction over maritime cases 
 upon United States courts to the exclusion 
 of state courts, which saves to suitors in all 
 cases "the right of a common-law remedy 
 where the common law is competent to give 
 it." Cowden v. Pacific Coast S. S. Co. 94 
 Cal. 470, 29 Pac. 873, 18: 221 
 
 1111. A railroad company cannot discrim- 
 inate in favor of a shipper who is able to 
 furnish a large amount of freight, over 
 one engaged in the same business who is un- 
 able to furnish the same quantity, at least 
 where both ship in carload lots. Louisville, 
 E. & St. L. Consol. R. Co. v. Wilson, 132 
 Ind. 517, 32 N. E. 311, 18: 105 
 
 1112. A carrier cannot rightfully establish 
 rates in order to keep on its own line ma- 
 terial for which it has use, or to keep the 
 price low for its own advantage. Id. 
 
 1113. A contract with a shipper, of such 
 character as to destroy the business of his 
 rivals by giving him a monopoly, is unjust 
 without regard to the consideration upon 
 which it is based. Id. 
 
 1114. A corporaton created by the state of 
 Ohio, and engaged in carrying goods for hire 
 as a common carrier, has no franchise, privi- 
 lege, or right to discriminate in its freight 
 rates in favor of one shipper, even when it 
 is necessary to do so to secure hie custom, 
 if the discriminating rate will tend to cre- 
 ate a monopoly by excluding from their 
 proper markets the products of the com- 
 petitors of the favored shipper. State ex 
 rel. Kohler v. Cincinnati, W. & B. R. Co. 47 
 Ohio St. 130, 23 N. W. 928, 7: 319 
 
 1115. Where a corporation fixes a rate of 
 freight per hundred pounds, for carrying pe- 
 troleum oil in tank cars, substantially lower 
 than its rate for transporting it in barrels in 
 carload lots, it is exercising "a franchise, 
 privilege, or right in- contravention of law," 
 within the meaning of Ohio Rev. Stat. 
 6761, cl. 4. Id. 
 
 1116. Special freight rates for transporta- 
 tion by ship, which are too low to be profit-
 
 418 
 
 CARRIERS, III. c, 4. 
 
 able, and are offered by the carrier only at 
 particular periods when a rival vessel is 
 loading and on the single condition of the 
 shipper's stipulation not to ship by the rival 
 vessel, cannot be claimed by a shipper who 
 refuses to make such stipulation, but he 
 may be lawfully charged the ordinary 
 reasonable rates for shipment during the 
 same period in which the lower rates are 
 given to those who comply with the con- 
 dition. Lough v. Outerbridge, 143 N. Y. 271, 
 38 N. E. 292, 25: 674 
 
 1117. Notice by a carrier of special rates 
 to other shippers entitled thereto by dif- 
 ference of conditions need not be given to 
 regular shippers in order to protect the car- 
 rier from the charge of unreasonable dis- 
 crimination. Hoover v. Pennsylvania R. Co. 
 156 Pa. 220, 27 Atl. 282, 22:263 
 
 1118-1120. If directors of a railroad or- 
 ganized to transport stone from lime quar- 
 ries to the kilns act in good faith in refus- 
 ing to extend the right to serve other quar- 
 ries after the ownership of all those served 
 by the road becomes vested in one person, 
 their action is not subject to review by the 
 courts. Ulmer v. Lime Rock R. Co. 98 Me. 
 579, 57 Atl. 1001, 66: 387 
 
 Between passengers. 
 Discrimination against Colored Persons, see 
 
 Civil Rights, 10-18. 
 In Matters Affecting Interstate Commerce, 
 
 see Commerce, 23a. 
 Prohibition against Free Transportation, see 
 
 Statutes, 475. 
 For Editorial Notes, see infra, IV. 4. 
 
 1121. An intention to violate the law pro- 
 hibiting free transportation of favored pas- 
 sengers is not essential to constitute a viola- 
 tion of N. C. Acts 1891, chap. 320. State v. 
 Southern R. Co. 122 N. C. 1052, 30 S. E. 133, 
 
 41:246 
 
 1122. Circumstances and conditions which 
 surround two persons are not dissimilar so 
 as to relieve a railroad company from the 
 prohibition of N. C. Acts 1891, chap. 320, 
 4, against discriminating in rates between 
 persons under substantially similar circum- 
 stances and conditions, merely because one 
 is a high official, or a larger shipper, or a 
 politician of power, whose influence may be 
 of service to the company, and the other is 
 not. Id. 
 
 1 123. The giving of passes in consideration 
 of the publication of railroad time-tables 
 in a newspaper is within the prohibition of 
 a statute making it unjust discrimination 
 for a common carrier to receive from any 
 person a greater or less compensation for 
 transportation than is demanded or received 
 from any other person by means of any 
 special rate, rebate, drawback, or other de- 
 vice. McNeill v. Durham & C. R. Co. 135 
 N. C. 682, 47 S. E. 765, 67 : 227 
 
 1124. A railroad company renders itself 
 liable to the penalty, provided by a stat- 
 ute for making unjust discrimination in 
 rates for transportation over its road, not 
 by making a contract for free transporta- 
 tion, but by actually transporting a person 
 without charge or for an inadequate con- 
 sideration. Id. 
 
 1125. The mere fact that a train is run by 
 a railroad company at the solicitation of a 
 newspaper publisher, who agrees that the 
 daily revenue shall amount to a certain sum 
 in consideration that he have the exclusive 
 right to use it for the transportation of 
 papers, does not make it a chartered train, 
 so as to enable the carrier to exclude other 
 publishers from its use, where it is placed 
 on the regular schedule of the road, and 
 advertised to carry persons and property 
 generally the same as. other trains. Mem- 
 phis News Pub. Co. v. Southern R. Co. 110 
 Tenn. 684, 7o S. W. 941, 63:150 
 Between localities. 
 
 For Editorial Notes, see infra, IV. 5. 
 
 1126. Discrimination between localities in 
 facilities for transportation, such as a bet- 
 ter supply of cars at a terminus of the road 
 than at some other point on the road, when 
 there are not cars enough to supply all, 
 does not make the railroad company liable 
 to an action for a penalty under Ark. act 
 March 24, 1887, providing that "all in- 
 dividuals, associations, and corporations 
 shall have equal rights to have persons and 
 property transported, . . . and no un- 
 just or undue discrimination shall be made 
 . . . in facilities for transportation," and 
 that "no discrimination in ... facil- 
 ities for transportation shall be made be- 
 tween transportation companies and in- 
 dividuals, or ... any preferences in 
 furnishing cars." The act does not apply 
 to discrimination in facilities at different 
 localities. Little Rock & Ft. S. R. Co. v. 
 Oppenheimer, 64 Ark. 271, 43 S. W. 150, 
 
 44: 353 
 
 1127. A contract between a railroad com- 
 pany and a manufacturer to maintain the 
 same rates on goods shipped by him be- 
 tween competitive points as are maintained 
 from other shipping points where like fac- 
 tories are located is not a discrimination 
 forbidden by the interstate commerce act, 
 nor by state statutes enacted to prevent un- 
 just discrimination in transportation against 
 any person, locality, or corporation. Laurel 
 Cotton Mills v. Gulf & S. I. R. Co. 84 Miss. 
 339, 37 feo. 134 ? 66: 453 
 Long and short hauls. 
 
 Conclusiveness of Decision of Railroad Com- 
 mission, see Courts, 89. 
 
 Indictment for Violation of Statute as to, 
 see Indictment, etc., 48, 126. 
 
 1128. The omission from Ky. Stat. 820, 
 of the proviso found in Ky. Const. 218, 
 that the railroad commission may authorize 
 a less charge for longer than for shorter 
 distances, on application by the carrier, 
 does not make the statute Inconsistent with 
 the Constitution, as the proviso is self-exe- 
 cuting and the statute exoressly provides 
 that the commission may exonerate a car- 
 rier from its provisions even without previ- 
 ous application. Louisville & N. R. Co. v. 
 Com. 104 Ky. 226, 46 S. W. 707, 105 Ky. 179, 
 47 S. W. 598, 43:541 
 Between different occupations. 
 
 1129. Giving lower rates for transporta- 
 tion of coal to a manufacturing company 
 than to a coal dealer is not undue or wi-
 
 CARRIERS, III. d. 
 
 419 
 
 reasonable discrimination, in violation of Pa. 
 Const. 1874, art. 17, 3, or of the act of 
 1883, which further specifies that the 
 equality of rates required shall be for "a 
 like service for the same place, upon like 
 conditions, and under similar circum- 
 stances," where the manufacturing company 
 consumes the coal in creating products 
 which furnish a large amount of additional 
 transportation to the carrier, and es- 
 pecially where the carrier was bound to 
 give such company the lower rate by a con- 
 tract made years before the coal dealer be- 
 gan business. Hoover v. Pennsylvania R. 
 Co. 156 Pa. 220, 27 Atl. 282, 22: 263 
 
 1130. A manufacturing company violates 
 its right to accept lower rates for the trans- 
 portation of coal than are given to a coal 
 dealer, if it sells coal, even to its own em- 
 ployees; and the carrier on notice of such 
 sales must charge such company tire same 
 rates that are charged to coal dealers. Id. 
 Against commodities. 
 
 1131. That a discrimination by a carrier 
 against a particular commodity is dictated 
 by the business interests of the carrier, and 
 really affects but a single shipper, does not 
 make it unlawful. Central of Ga. R. Co. v. 
 Augusta Brokerage Co. 122 Ga. 646, 50 S. 
 E. 473, 69: 119 
 
 1132. Discrimination against shippers 
 only, and not against commodities, is forbid- 
 den by the rule promulgated by the railroad 
 commission of Georgia that carriers, "in the 
 conduct of their intrastate business, shall 
 afford to all persons equal facilities in the 
 transportation and delivery of freight." Id. 
 
 1133. A discrimination by a carrier 
 against cotton seed, by refusing to issue 
 through bills of lading or to furnish its cars 
 to connecting carriers' in order that ship- 
 ments may be carried to ultimate destina- 
 tion without reloading at terminal points, 
 is not unlawful, provided all shippers of 
 that commodity are treated alike. Id. 
 Rebates. 
 
 Receiver as Party to Action for, see Parties, 
 
 162. 
 For Editorial Notes, see infra, IV. 5. 
 
 1134. An agreement by a common carrier 
 to give one shipper a favor and advantage 
 over others by a rebate is illegal at common 
 law. Fitzgerald v. Grand Trunk R. Co. 63 
 Vt. 169, 22 Atl. 76,, 13: 70 
 
 1135. Existing contracts for special 
 freight rates, or rebates from regular tariff 
 rates, which had been made with railroad 
 companies subject to the Interstate Com- 
 merce Act, became illegal when the act took 
 effect, and were after that time incapable of 
 enforcement. Bullard v. Northern P. R. Co. 
 10 Mont. 168, 25 Pac. 120, 11: 246 
 
 1136. Where a carrier agrees that he will 
 carry goods at a certain rate, and that after 
 the shipment he will repay the shipper a re- 
 bate of part of such rate, this is only an 
 agreement to carry the goods at a compensa- 
 tion ultimately agreed upon, and is not il- 
 legal. Cleveland, C. C. & I. R. Co. v. Closser, 
 126 Ind. 348, 26 N. E. 159, 9: 754 
 
 1137. The allowance of a rebate by a com- 
 mon carrier to certain of his customers from 
 
 the tariff rates charged other customers for 
 precisely similar services is sufficient of 
 itself to show that the rates charged the 
 latter were unreasonable, and that there 
 was unjust discrimination against them, il- 
 legal by the common law, which will give 
 the latter a right to recover the amounts 
 paid by them in excess of the rates charged 
 the former after deducting the rebates. 
 Cook v. Chicago, R. I. & P. R. Co. 81 Iowa, 
 551, 46 M. W. 1080, 9: 764 
 
 1138. An agreement by a railroad com- 
 pany to transport coal at a specified rebate 
 from regular tariff rates, in consideration of 
 the coal dealer's erecting a dock on the com- 
 pany's land for use by both parties, is not, 
 as a matter of law, void because of unjust 
 discrimination against other shippers. It is 
 a question of fact. Root v. Long Island R. 
 Co. 114 N. Y. 300, 21 N. E. 403, 4: 331 
 
 1139. A milling in transit agreement be- 
 tween a manufacturer and carrier, by which 
 the former is to be credited on its freight 
 bills for manufactured goods shipped the 
 freight paid on raw materials shipped to the 
 mill, is not prohibited by statutes forbid- 
 ding the granting of any rebate to shippers. 
 Laurel Cotton Mills v. Gulf & S. I. R. Co. 
 84 Miss. 339, 37 So. 134, 66: 453 
 
 1140. A railroad company chartered to 
 transact the general business of a common 
 carrier cannot by special contract make 
 itself a special carrier as to a particular 
 commodity, such as newspapers, so as to be 
 able to make discriminating contracts in 
 favor of one publishing house against oth- 
 ers. Memphis News Pub. Co. v. Southern 
 R. Co. 110 Tenn. 684, 75 S. W. 941, 63: 150 
 
 d. Duty as to Depots; Stopping Trains; 
 Duty to Run Trains. 
 
 Requiring Blackboard Announcement in, as 
 to Trains, see supra, II. a, 11. 
 
 As to Safety of Approaches and Platforms, 
 see supra, II. a, 9. 
 
 Grant of Exclusive Privileges to Hacks, Car- 
 riages, etc., see supra, 1045-1067. 
 
 Punitive Damages for Failure to Stop for 
 P'assenger, see Damages, 82. 
 
 Mandamus to Compel Stopping at Station, 
 see Mandamus, 108. 
 
 Question for Jury as to Depots, see Trial, 
 174. 
 
 See also supra, 15, 25, 26. 
 
 For Editorial Notes, see infra, IV. 7. 
 
 Maintenance of depot. 
 
 Contract to Establish Depot, see Contracts, 
 
 322. 
 Mandamus to Compel Location of Depot, 
 
 see Mandamus, 104. 
 Covenant as to, see Covenant, 109. 
 
 1141. Authority of railroad commission- 
 ers to order a railroad company to build and 
 maintain a depot or station house for which 
 there is a clear and pressing public neces- 
 sity, at a certain station, is conferred by 
 S. D. Laws 1897, chap. 110, 2, giving them 
 "general supervision of all railroads," and 
 providing that they shall inform a railroad 
 corporation of "the improvements and
 
 420 
 
 CARRIERS, IV. 
 
 changes which they adjudge to be proper" 
 whenever in their judgment "any addition 
 to or change of its stations or station 
 houses ... is reasonable and expedi- 
 ent in order to promote the security, con- 
 venience, and accommodation of the public." 
 State ex rel. Tompkins v. Chicago, St. P. M. 
 & 0. R. Co. 12 S. D. 305. 81 N. W. 503, 
 
 47: 569 
 
 1142. The fact that a railroad runs 
 through the territorial limits of a town or 
 village does not absolutely require it to es- 
 tablish a station and depot therein, es- 
 pecially where reasonable provision for the 
 accommodation of the inhabitants is made 
 by a station near its limits. Chicago & A. 
 R. Co. v. People ex rel. Hunt, 152 111. 230, 38 
 N. E. 562, 26: 224 
 
 1143. The location of railroad stations at 
 /points where the cost of maintaining them 
 
 will exceed the profits resulting therefrom 
 cannot be compelled. Id. 
 
 Stopping at terminal station. 
 
 1144. A statute authorizing a railroad to 
 connect with rails of a railroad bridge where 
 it terminates on any line of continuous rail- 
 road thoroughfare of which the bridge is a 
 part does not exempt such road from a re- 
 quirement that trains must stop at its ter- 
 minal station, where the connection has been 
 made several miles from such station. Illi- 
 nois C. R. Co. v. People, 143 111. 434, 33 N. 
 E. 173, 19: 119 
 At county seats. 
 
 In Matters Affecting Commerce, see Com- 
 merce, 71, 72. 
 
 1145. It is not an unreasonable regulation 
 for the legislature to require all regular pas- 
 senger trains to stop at county seats. State 
 v. Gladson, 57 Minn. 385, 59 N. W. 487, 
 
 24: 502 
 
 [Aff'd by the Supreme Court of the United 
 States in 166 U. S. 427, 41 L. ed. 1064, 17 
 Sup. Ct. Rep. 627.] 
 
 1146. The fact that a passenger train car- 
 ries United States mail does not relieve it 
 from the operation of a state statute requir- 
 ing all passenger trains to stop at county 
 seats. Id. 
 
 1147. A state statute requiring a fast mail 
 train, like other passenger trains, to stop 
 at a county seat, instead of running through 
 the place at a distance from the station on 
 another track, does not constitute an un- 
 constitutional interference with the Federal 
 government. Illinois C. R. Co. v. People, 143 
 111. 434, 33 N. E. 173, 19: 119 
 
 1148. A fast mail train running daily on 
 schedule time, carrying passengers, and ad- 
 vertised as a passenger train, with through 
 coach and sleeping car, is a "regular passen- 
 ger train" within the meaning of a statute 
 requiring such trains to stop at the county 
 seats, although the main object of the train 
 as originally organized may have been the 
 expeditious transportation of the United 
 States mail. Id. 
 
 1149. A through fast train which crosses 
 a bridge over a river at a county seat 
 through which it passes is not exempt from 
 duty under the Illinois general railroad law, 
 88, to stop for passengers at its station 
 
 at such county seat, by reason of the fact 
 that it leaves the main line and starts on 
 the approach to the bridge 3 miles from the 
 city limits, at which point it is met by a 
 short train from the county seat to ex- 
 change passengers. Id. 
 
 1150. The use of short trains for transfer 
 purposes, which meet a through train at a 
 distance from the station at a county seat, 
 does not constitute a compliance with a 
 statute which requires all passenger trains 
 to stop at such station to receive and let off 
 passengers. Id. 
 Duty to run trains. 
 
 Considering Preferred Stock as a Debt in 
 Determining Dutv, see Corporations, 
 367. 
 
 Covenant to Run Trains, see Covenant, 96. 
 
 Duty to Operate Ferry, see Ferry, 22-26. 
 
 Mandamus to Compel, see Mandamus, 105- 
 107. 
 
 1151. The sufficiency of the earnings of a 
 railroad to justify the expense of running a 
 separate passenger train over a certain 
 branch line constituting a part of an entire 
 system is not to be determined by consider- 
 ing the profits of that branch alone, but of 
 the whole business of the various parts ope- 
 rated as one line. People ex rel. Cantrell v. 
 St. Louis, A. & T. H. R. Co. 176 111. 512, 45 
 N. E. 824, 52 N. E. 292, 35: 656 
 
 1152. The duty of furnishing a separate 
 passenger train for passengers only, and not 
 for freight and passengers together, is im- 
 plied in the duty of a railroad company to 
 furnish necessary rolling stock and equip- 
 ment for the suitable and proper operation 
 of a railroad. Id. 
 
 1153. A railroad company owning two 
 lines between the same points will not be 
 compelled to operate local trains on both, if 
 this would entail great loss and expense 
 without any return, and the convenience of 
 the greater number of people will be secured 
 by operating one of them exclusively for 
 through trains. Chicago & A. R. Co. v. 
 People ex rel. Hunt, 152 HI. 230, 38 N. E. 
 562, 26: 224 
 
 IV. Editorial Notes. 
 a. In General. 
 
 i. Generally. 
 
 Conflict of laws as to contracts of. 63: 
 513. 
 
 Authority of agent or representative of rail- 
 road company to employ 
 medical services for em- 
 ployee or other third per- 
 son. 20: 695. 
 
 Locality of crime committed through the 
 agency of carriers. 19: 
 775. 
 
 Liability of receiver as common carrier for 
 torts or negligence of 
 servants. 63:231. 
 
 Taxation on passenger traffic. 57: 59. 
 
 State taxation of passenger travel as af- 
 fected by commerce clause. 
 60: 666.
 
 CARRIERS. IV. (Ed. Notes.) 
 
 421 
 
 Liability of carrier to garnishment. 28: 
 600. 
 
 Mandatory injunctions to. 20: 166. 
 
 Sufficiency of general allegations of negli- 
 gence of. 59 : 239. 
 
 Liability to servants of other persons. 46: 
 56. 
 
 Claim against state for services by. 42: 
 55. 
 
 2. Who are common carriers. 
 
 Generally. 10: 415.* 
 
 Ferryman as a common carrier. 68: 153. 
 
 Is an interurban railroad company con- 
 trolled by general railroad 
 law in regard to the oper- 
 ation of railroads as car- 
 riers of passengers? 67: 
 637. 
 
 Railroad companies as private carriers in 
 drawing special ,trains or 
 special cars. 30:161. 
 
 b. Governmental control; rates; discrimin- 
 ation. 
 
 3. Generally. 
 
 Statutes against ticket brokerage or "scalp- 
 ing."' 24: 152. 
 
 Constitutional and statutory provisions af- 
 fecting combinations be- 
 tween railroads to prevent 
 competition. 1: 849.* 
 
 Compulsory service of carriers. 15: 321. 
 
 4. Discrimination. 
 
 As to Rates, see infra, IV. 5. 
 
 Right of company to discriminate as to pas- 
 sengers. 5: 818;* 18: 105. 
 
 Against colored persons. 18: 639. 
 
 Right of carrier at common law to discrimi- 
 nate between shippers. 
 18: 105. 
 
 Duty to give equal facilities to express com- 
 panies. 18 : 393. 
 
 Discrimination as to hackmen and other 
 solicitors of patronage at 
 depots, wharves, etc. 13: 
 848. 
 
 5. Rates. 
 
 Rates as Affected by Interstate Commerce 
 Act, see Commerce, V. 
 
 State regulation of fares and freights. 3: 
 661;* 9:754;* 11: 452.* 
 
 Regulation of, by railroad commission. 3: 
 661;* 9: 75.* 
 
 Legislative power to regulate. 33: 179. 
 
 When rates fixed by penal statute are suffi- 
 ciently definite and cer- 
 tain. 33:209. 
 
 Discrimination in rates, when justified. 4: 
 331.* 
 
 What are unlawful discriminations as to 
 rates. 3 : 662.* 
 
 Remedy against discriminating charges. 3: 
 662.* 
 
 Necessity that rates fixed be reasonable. 9: 
 759;* 12:436.* 
 
 Right of carrier to make special rates. 9: 
 758* 
 
 Different rates for delivery to different ware- 
 houses in same city. 9: 
 758.* 
 
 Discrimination between local and through 
 
 transportation. 9: 758.* 
 Recovery back of excess freight paid. 9: 
 
 759.* 
 
 Agreement for rebates. 9: 758.* 
 Under interstate commerce act. 2: 444.* 
 Classification. 2 : 445.* 
 Preferences as to localities. 2: 445.* 
 Through traffic arrangements. 12: 437.* 
 Municipal regulation of fares charged by 
 street railways. 19: 570. 
 
 c. Right; duties and liabilities, 
 i. As to passengers and other persons. 
 
 6. Generally. 
 
 Restriction of liability. 12: 340.* 
 
 Care and diligence required. 2 : 83 ; * 6 : 241 ; * 
 11: 720;* 13:95.* 
 
 Not liable as insurers. 2: 252.* 
 
 Liability of carrier for acts of independent 
 contractor. 66: 150. 
 
 Liability of railroad company for accidents 
 caused by wrongful act of 
 stranger. 22: 306. 
 
 Distinction as to liability between carriers 
 of goods and carriers of 
 passengers. 2: 252.* 
 
 Usage or custom as affecting carrier's lia- 
 bility. 2:76.* 
 
 Liability for injuries arising from inevi- 
 table accident. 2: 252.* 
 
 Duty to keep lookout for passenger on track. 
 25:290. 
 
 Right of street railway company to carry 
 passengers on platforms. 
 12: 129.* 
 
 Liability for personal injury by collision be- 
 tween carriers. 1: 681.* 
 
 7. Depots and grounds. 
 
 Use of, by hackmen, etc. 13: 848. 
 
 As to admission of passenger to train house. 
 16: 449. 
 
 Duty to light stations. 6: 193.* 
 
 Duty as to lights and guards. 3: 75;* 7: 
 688.* 
 
 Regulations as to use of depot and grounds. 
 8: 754.* 
 
 Duty owed to strangers and licensees. 11: 
 720.* 
 
 Taking lana for. 9: 295.* 
 
 Formation of union depot. 13: 415.* 
 
 8. Approaches and platforms. 
 
 Duty as to platforms and approaches, gen- 
 erally. 6:193;* 7:111,* 
 687.* 
 
 Duty of carrier with respect to means of ap- 
 proach and departure. 7: 
 688." 
 
 Liability of railroad for injuries caused by 
 defective platforms. 3 : 
 76;* 11: 720.* 
 
 Duty to maintain safe approaches beyond 
 its own premises. 16: 593. 
 
 To whom railroads owe the duty of keep- 
 ing station platform safe. 
 20: 527. 
 
 Measure of care which a carrier must exer- 
 cise to keep its 'platforms 
 and approaches safe. 20: 
 520.
 
 422 
 
 CARRIERS, IV. (Ed. Notes.) 
 
 9. Condition of cars. 
 
 Liability for defects in cars and appliances. 
 
 2: 86.* 
 
 Responsibility for defects attributable to 
 the fault of the manufac- 
 turer. 2: 86.* 
 
 Duty of railroad carrier in respect to fur- 
 nishing proper cars for 
 passengers. 31: 313. 
 Duty to adopt improvements. 31: 315. 
 Rule as affected by character of train. 
 
 31:315. 
 Duty of railroad companies to heat cars. 
 
 42: 110. 
 
 In general. 42: 110. 
 State legislation. 42: 110. 
 10. Duty of carrier permitting cars to be- 
 come overcrowded. 
 Injuries received on crowded railroad trains. 
 
 24: 710. 
 
 Riding on the platform. 24: 710. 
 Riding in other dangerous places. 24: 
 
 710. 
 
 Getting on or off the cars. 24: 711. 
 Injuries caused by fellow passengers on 
 
 crowded trains. 24: 711. 
 Failure to provide train for crowd. 24: 711. 
 Street railroads. 24: 712. 
 Elevated railroads. 24: 713. 
 ii. Default or delay in running train. 
 Liability to passenger. 32: 543. 
 
 Duty of railroads as to punctuality. 
 
 32: 543. 
 
 Effect of limitation of liability in time- 
 tables. 32:544. 
 Passenger's rights. 32: 545. 
 What damages are recoverable. 32: 545. 
 12. Who are passengers; when relation 
 
 begins. 
 
 Generally. 2:66;* 7: 688.* 
 Necessity of payment of fare to constitute 
 one a passenger. 11 : 720.* 
 Railroad employees or officers as passen- 
 gers. 31:321. 
 
 Riding in course of, or as part of, em- 
 ployment. 31: 321. 
 
 Rule in case of one being transported 
 
 to or from work. 31 : 321. 
 
 Person riding for purposes of his own. 
 
 31 : 324. 
 
 Riding on pass. 31: 321; 50: 462. 
 Tramps as passengers. 2: 166.* 
 Express messengers as passengers. 22: 796. 
 Person riding free entitled to protection as 
 
 passenger. 2: 167.* 
 
 Freight owner as free passenger. 2: 166.* 
 Mail agents and clerks as passengers. 2: 
 
 166.* 
 
 When a person who has started for a train 
 becomes a passenger. 24: 
 521. 
 When passenger becomes a trespasser. 3: 
 
 733.* 
 
 13. Liability for injuries to postal clerk. 
 Generally. 19: 339. 
 
 Relief from liability by statute. 19: 340. 
 14. Passenger on freight train. 
 What risk is assumed by a passenger on a 
 
 freight train. 19: 310. 
 As to jerking the cars in stopping or 
 starting a train. 19: 310. 
 As to risk in stock car. 19: 311. 
 
 As to what degree of care is required in 
 
 other cases. 19: 311. 
 Regulation as to passage on freight trains. 
 
 5: 817.* 
 
 Freight owner as free passenger. 2: 166.* 
 15. Liability to passengers on sleeping 
 
 cars. 
 
 Liability of sleeping car company. 21: 289. 
 For money stolen from passenger. 11: 
 
 762. 
 For baggage. 21: 289. 
 
 As innkeepers. 21: 289. 
 As common carriers. 21: 291. 
 For negligence. 21: 292. 
 Extent of liability. 21: 295. 
 Effect of notice. 21 : 295. 
 Continuous passage. 21: 295. 
 Ejection and refusal of accommodation. 
 
 21: 295. 
 
 Personal injuries. 21: 296. 
 Liability of railroad company. 21 : 297. 
 16. Protection of passenger; mistreat- 
 ment; assaults. 
 Liability for torts to passengers. 12: 113,* 
 
 337.* 
 
 Passenger's right to proper treatment from 
 carrier's employees. 1 : 
 682;* 3: 133.* 
 Duty to protect from violence and insult. 
 
 3: 634,* 733.* 
 
 Duty as to passenger taken ill during jour- 
 ney. 31:261. 
 
 Liability of carrier for assaults by employ- 
 ees upon passengers. 14: 
 738. 
 
 During transportation. 14: 738. 
 Generally. 14: 738. 
 Effect of passenger's misbehavior. 
 
 14: 738. 
 Insults, threats, obscene language. 
 
 14: 739. 
 
 At station; before and after transporta- 
 tion. 14: 739. 
 By servants of sleeping and palace car 
 
 company. 14: 740. 
 
 When assault results in death. 14: 740. 
 Remedy in rem. 14: 740. 
 Liability for assault upon passenger by 
 strikers, mob, or third per- 
 sons. 55: 713. 
 
 Assault by fellow passenger. 16: 627. 
 False arrest of passenger. 14: 791. 
 Measure of damages for misconduct of em- 
 ployee toward passenger. 
 3: 735.* 
 
 17. Rules and regulations of carrier. 
 Reasonable rules for carriage of passengers. 
 
 5: 817;* 7: 111.* 
 
 Regulations respecting tickets. 2: 185.* 
 Regulations as to passage on freight trains. 
 
 5: 817.* 
 
 18. Tickets; fare. 
 As to Privilege of Stop-over, see infra, IV. f 
 
 22. 
 
 Duty of passenger to pay fare wrongfully 
 demanded in order to 
 avoid expulsion and lessen 
 damages. 43: 706. 
 
 Where the failure to have a proper 
 ticket is the fault of the 
 ticket agent. 43: 707.
 
 CARRIERS, IV. (Ed. Notes.) 
 
 423 
 
 Where another conductor is in fault. 
 
 43: 710. 
 Where the conductor demanding fare is 
 
 in fault. 43: 712. 
 
 Where the passenger loses his ticket. 
 43: 715. 
 
 Right to charge additional fare for neglect 
 to procure ticket. 5: 817.* 
 
 Duty to keep ticket office open a reasonable 
 time. 5: 818.* 
 
 Validity of extra charge for passenger fare 
 when paid upon train. 
 20: 483. 
 
 How far purchaser bound by terms and con- 
 ditions on ticket. 5: 819.* 
 
 Ticket as a mere receipt for passage. 5: 
 818.* 
 
 Notice to passenger of conditions on ticket. 
 
 23: 746. 
 
 Steamship tickets. 23: 746. 
 Railroad tickets. 23 : 746. - 
 
 Burden of proof as to knowledge by pas- 
 senger of memorandum on 
 ticket limiting company's 
 liability. 12:340.* 
 
 Stipulation in ticket. 12: 340.* 
 
 Assignability of railroad ticket. 18: 55. 
 
 How far ticket may be used for passage 
 after expiration of time 
 limited. 16:471. 
 
 Round-trip tickets. 2: 185.* 
 
 Through tickets. 2: 186.* 
 
 Lost ticket. 5: 819.* 
 
 Duty of passengers to exhibit and surrender 
 tickets when requested. 
 5:818.* 
 
 Regulations respecting tickets. 2: 185.* 
 
 What is a reasonable sum out of which 
 carrier may be required 
 to take passenger's fare 
 and return change. 35: 
 489. 
 
 19. Ejection. 
 
 Ejection of trespasser from train. 11: 
 432;* 12: 338.* 
 
 From sleeping car. 21 : 295. 
 
 Right of carrier to remove disorderly pas- 
 senger. 1: 513.* 
 
 What constitutes ejection. 3: 733,* 734.* 
 
 For refusal to pay fare. 1:513;* 5:819, 
 820;* 12: 338,* 823.* 
 
 Place where one refusing to pay fare may 
 
 be ejected. 26: 129. 
 Expulsion in absence of statutory pro- 
 visions. 26: 129. 
 Expulsion in states having statutory 
 
 provisions. 26: 130. 
 At station. 26: 130. 
 Between stations. 26: 131. 
 Amount of damages. 26: 132. 
 "Stopping place," or "near dwell- 
 ing," defined. 26: 132. 
 "Passengers" denned. 26: 132. 
 Statutory provisions. 26: 133. 
 
 Ejection of custodian for nonpayment of 
 child's fare. 38: 140. 
 
 Right of passenger to pay fare after train 
 begins to stop for pur- 
 pose of ejecting him. 16: 
 53. 
 
 Payment of back fare for distance already 
 ridden as condition of be- 
 ing carried further. 16:55. 
 
 Exposure of drunken passenger to danger 
 by ejection from car. 19: 
 327. 
 
 Duty of conductor in expelling passenger. 
 3: 733,* 734.* 
 
 Use of excessive or unnecessary force. 12: 
 338.* 
 
 Measure of damages for. 1 : ti67.* 
 
 Duty of passenger to pay fare wrongfully 
 demanded in order to 
 avoid. 43: 706. 
 
 20. Passes. 
 
 Employee riding on, as passenger. 31: 321; 
 50: 462. 
 
 Rights of person riding on pass or contract 
 
 for free passage. 22: 794. 
 
 Stock drover. 22: 794. 
 
 Drover's pass; assuming risk. 22: 794. 
 
 Express agents, newsboys, and the like. 
 
 22: 796. 
 Complimentary or gratuitous pass. 22: 
 
 796. 
 
 Right of a party to the use of a pass. 
 22:' 797. 
 
 When person riding free entitled to protec- 
 tion as passenger. 2: 
 167.* 
 
 Exemption from liability for negligence by 
 stipulation in pass. 1: 
 501.* 
 
 21. Right of passenger to seat. 
 
 Generally. 22: 259. 
 
 Rights of passenger when seat is refused. 
 22: 260. 
 
 22. Passenger's right to stop over. 
 
 Generally. 28: 773. 
 
 Rule in case of coupon tickets. 28: 774. 
 
 Effect of particular stipulations. 28: 775. 
 
 Agreements or representations as to right to 
 stop over. 28: 775. 
 
 Statutory permission. 28: 775. 
 
 Limited tickets. 28: 775. 
 
 Special rates or contracts. 28: 776. 
 
 Rules and custom of carrier. 28: 776. 
 
 Effect of delay of train. 28: 776. 
 
 Through train must be taken. 28: 776. 
 
 No stop-over without ticket. 28: 776. 
 
 Time within which stop-over must be used. 
 28: 776. 
 
 Right to take up ticket. 28: 776. 
 
 23. Announcement of stations. 
 
 Duty to make. 15 : 347. 
 
 Effect of. 15: 348. 
 
 As to change of cars. 15: 349. 
 
 24. Carrying beyond station. 
 
 Liability of carrier for. 7: 111.* 
 
 Duty of carrier to use care and caution in 
 stopping trains at sta- 
 tions. 3: 684.* 
 
 25. Liability to passenger temporarily 
 leaving vehicle. 
 
 At regular stations. 15: 399. 
 
 At sidings and coaling stations. 15: 399. 
 
 Leaving to avoid anticipated danger. 15: 
 400. 
 
 Leaving to rectify mistake in taking train, 
 etc. 15:400.
 
 424 
 
 CARRIERS, IV. (Ed. Notes.) 
 
 26. Starting and stopping. 
 
 Duty in stopping and starting trains. 13: 
 
 95.* 
 
 Length of stoppage. 13: 95.* 
 Signal; starting of train. 13: 95.* 
 Starting car before passenger is seated. 
 
 42: 293. 
 
 Ordinary railway cars. 42:293. 
 Elevated railway cars. 42: 294. 
 Street cars. 42 : 294. 
 Stage coaches. 42 : 296. 
 Negligence in starting train while passenger 
 
 alighting. 1 : 542. 
 
 Duty of carrier to give opportunity to pas- 
 senger to alight. 7 : 689.* 
 27. Getting on or off. 
 
 As to Contributory Negligence of Passen- 
 ger, see also infra, IV. 29. 
 Passing at high speed, train discharging 
 passengers, as gross negli- 
 gence. 3 : 684.* 
 Duty to assist passenger in landing safely. 
 
 11: 367.* 
 Duty to person entering vehicle to assist 
 
 passenger. 15: 434. 
 Injuries in getting on and off railroad 
 
 trains. 21 : 354. 
 
 Injuries received by persons assisting 
 passengers on board the 
 cars. 21:354. 
 Rights of persons assisting passengers 
 
 on board. 21: 354. 
 Parties compelled to alight. 21 : 364. 
 Boarding a moving train. 21 : 356. 
 Alighting from moving train. 21: 358; 
 
 24: 711. 
 Children jumping on and off trains 
 
 in motion. 21: 355. 
 Alighting after being warned. 21: 
 
 358. 
 Getting off before the train stops. 
 
 21: 359. 
 
 Getting off where train makes a 
 
 preliminary stop. 21: 359. 
 
 W'here the train does not stop. 21: 
 
 360. 
 
 Where party is directed by the con- 
 ductor or employee to 
 alight. 21:361. 
 
 Alighting from a train in motion, 
 where it had stopped a 
 sufficient time at the sta- 
 tion. 21 : 363. 
 
 Where time is not given the pas- 
 senger to alight. 21: 363. 
 28. Baggage and property of passenger. 
 Ae to Baggage of Passenger on Sleeping Car, 
 
 see supra, IV. 15. 
 Liability for loss of baggage. 3:342;* 11: 
 
 759.* 
 
 What is baggage. 3:346;* 11:759.* 
 Articles of baggage worn or car- 
 ried by hand. 11: 760.* 
 Bicycle as. 47: 306. 
 Responsibility for loss of merchandise 
 carried as baggage. 11: 
 761.* 
 Regulation for protection of carrier. 
 
 11: 761.* 
 
 Notice to passengers of nonliabil- 
 itv. 11:762.* 
 
 Liability for money stolen bv employee. 
 11:762.* 
 
 Effect of contributory negligence to de- 
 feat action. 11: 762.* 
 
 Liability for baggage after reaching desti- 
 nation of passenger. 36: 
 781. 
 
 General statements as to liability. 36: 
 782. 
 
 When carrier's liability terminates. 
 36: 782. 
 
 Baggage retained for carrier's benefit. 
 36: 784. 
 
 Effect of agreement to care for bag- 
 gage. 36: 785. 
 
 Duty when baggage not called for. 36: 
 785. 
 
 Liability as warehouseman. ' 36 : 786. 
 
 How liability limited. 36: 787. 
 
 Liability at junctions. 36: 787. 
 
 Baggage in custody of carrier's serv- 
 ant. 36: 788. 
 
 Sickness of passenger. 36: 788. 
 
 Negligence of passenger. 36: 788. 
 
 Burden of proof. 36: 788. 
 Liability for baggage not accompanied by a 
 
 passenger. 55: 650. 
 
 Implied exceptions in statute as to free 
 
 transportation of. 25:569. 
 
 Liability of passenger carrier transporting 
 
 merchandise intrusted to 
 
 it by passenger. 14: 515. 
 
 29. Contributory negligence. 
 
 In Getting on or off Railroad Cars, see also 
 
 supra, IV. 27. 
 
 Intoxication as affecting negligence of pas- 
 sengers. 40: 134. 
 
 Negligence in getting on or off a moving 
 street car. 38: 786. 
 
 Carrier must have been negligent in 
 order to raise question of 
 contributory negligence. 
 38: 786. 
 
 Passenger takes the risk. 38: 786. 
 
 How far negligence a question of law. 
 38: 786. 
 
 How far act is due care, as matter of 
 law. 38: 787. 
 
 Question for jury. 38: 788. 
 
 Negligence dependent on circumstances. 
 38: 788. 
 
 Particular classes of cases. 38: 788. 
 
 To avoid danger. 38: 790. 
 
 Negligence after knowing peril. 38: 790. 
 
 Summary. 38: 790. 
 In riding on platform or footboard. 11: 
 
 130;* 12: 129.* 
 
 Passenger's negligent exposure of person at 
 car window. 16: 91. 
 
 Question of law or fact. 16: 92. 
 'Passengers on street cars. 16: 93. 
 Contributory negligence in passing between 
 
 or under cars. 13: 634.* 
 Negligence of passenger in passing from 
 one car to another. 34: 
 720. 
 
 The general rule. 34: 720. 
 
 Passenger assumes incidental risks. 34: 
 720. 
 
 Obi'(l'"H"c of instructions. 34: 721. 
 
 Vestibuled trains. 34: 721. 
 
 Negligence in fact. 34: 721.
 
 CARRIERS, IV. (Ed. Notes.) 
 
 425 
 
 Passenger's riding in baggage or express car 
 as contributory negli- 
 gence. 16: 631. 
 Violation of rules. 16: 631. 
 Where riding in such car did not con- 
 tribute to accident. 16: 
 631. 
 
 Power of conductor to waive rule. 16- 
 631. 
 
 Alighting from train while in motion as 
 contributory negligence. 8: 
 674;* 11: 395,* 721.* 
 
 30. Presumption and burden of proof. 
 
 Generally. 13:33.* 
 
 On question of carrier's negligence when 
 passenger in the exercise 
 of due care is injured by 
 collision with vehicle un- 
 der control of third per- 
 son. 68: 799. 
 
 Presumption of negligence from, occurrence 
 of accident to passenger. 
 15:35. 
 
 Burden of proof as to liability of common 
 carrier for baggage. 36: 
 781. 
 
 Burden of proof as to passenger's knowledge 
 of memorandum on ticket 
 limiting company's liabil- 
 ity. 12: 340.* 
 
 Burden of proof as to injury to live stock 
 during transportation. 17: 
 339. 
 
 2. As to freight. 
 
 31. Generally. 
 
 See also Shipping, III. 5-7. 
 
 Conflict of laws as to carriers' contracts. 
 63: 513. 
 
 Distinction as to liability between carriers 
 of goods and passengers. 
 2: 252.* 
 
 When liability of carrier, as such, com- 
 mences. 13: 33.* 
 
 Rights, duties, and obligations in general. 
 2: 102;* 3: 342,* 424;* 5: 
 587;* 6: 849;* 10:415.* 
 
 Carriers as bailees. 6: 619,* 853.* 
 
 Carriers as insurers. 1: 702;* 3: 424.* 
 
 Responsibilities of carrier by water. 2: 173.* 
 
 Impossibilities of performance as affecting 
 liability under carrier's 
 contract. 14:216. 
 
 Whether shipments between points in same 
 state lose their character 
 of domestic commerce by 
 passing out of the state 
 during transportation. 17: 
 443. 
 
 Shipment within a state, as part of inter- 
 state or foreign transpor- 
 tation. 17 : 643. 
 
 Inquiry and representations as to value of 
 goods. 13: 33.* 
 
 Transportation contract made by agent. 9: 
 833.* 
 
 Liability of consignee to servants of car- 
 rier. 46: 97. 
 
 Act of God as excuse; exception in con- 
 tract; inevitable accident. 
 11: 615.* 
 
 Who is real party in interest by whom ac- 
 tion against carrier of 
 goods must be brought. 
 64: 617. 
 
 Estoppel to plead defense of limitation to 
 action on carrier's con- 
 tract. 63:206. 
 
 Passing of title to property by delivery to 
 carrier for transportation. 
 22: 415. 
 
 State taxation of freight carried by inter- 
 state carriers. 60: 657. 
 32. Express companies. 
 Duty of railroad- company to give equal 
 facilities to express com- 
 panies. 18: 393. 
 
 Duty as to delivery and collection of pack- 
 ages by express company. 
 33:66. 
 
 Express messengers as passengers. 22: 796. 
 33. Liability of baggage transfer com- 
 panies. 
 
 As common carriers. 34: 137. 
 When liable. 34: 138. 
 Limitation of liability. 34: 138. 
 When not liable. 34: 139. 
 The effect of a custom. 34: 140. 
 34. Duty to furnish cars. 
 Duty of a railroad company to furnish cara 
 
 to shippers. 43 : 225. 
 General or statutory duty. 43: 225. 
 Contract duty. 43 : 227. 
 Interstate Commerce Act. 43: 230. 
 As affected by strike. 35: 623. 
 35. Transporting intoxicating liquor. 
 Liability of carrier for. 46: 417. 
 In general. 46: 417. 
 What is a transportation or convey- 
 ance. 46: 419. 
 
 The question of knowledge. 46: 419. 
 Evidence to support conviction. 46: 
 
 420. 
 Sufficiency of indictment or complaint. 
 
 46: 422. 
 
 36. Bill of lading. 
 To whom may delivery be made under bill 
 
 of lading. 38: 358. 
 Character and effect of bill of lading. 10: 
 
 416.* 
 
 A receipt and contract. 4: 244;* 10: 416.* 
 Right to contradict. 9:263.* 
 Restriction in. 6: 849;* 10: 415.* 
 Rule as to valuation fixed in bill of lading. 
 
 12: 799.* 
 37. Limiting liability. 
 Conflict of laws as to. 63: 525. 
 Right of carrier to restrict common-law li- 
 ability, generally. 1:500;* 
 3: 343,* 425;* 6: 849;* 7: 
 214;* 10: 419;* 13: 518.* 
 Of baggage transfer company. 34: 138. 
 Restriction of liability by valuation. 6: 
 
 851.*' 
 Contracts for reasonable exemptions. 13: 
 
 362.* 
 Power to limit amount of liability in cases 
 
 of negligence. 14: 433. 
 Right to limit common-law liability by con,- 
 tract in the absence of 
 negligence. 18: 527. 
 Exemption from liability by fire or flood. 
 10: 417.*
 
 426 
 
 CARRIERS, IV. (Ed. Notes.) 
 
 Validity of contracts limiting time for 
 
 bringing suit. 3: 344.* 
 
 Limitation of common carrier's duty and 
 liability in case of danger- 
 ous articles. 36: 648. 
 Duty to give notice of dangerous char- 
 acter of article. 36: 648. 
 Statutory provisions. 36: 649. 
 Right to refuse shipment. 36: 649. 
 Carrier may take dangerous substances. 
 
 36: 649. 
 What constitutes damage by the elements 
 
 in contracts of. 53: 676. 
 38. Connecting carriers; liability beyond 
 
 own line. 
 
 Conflict of laws as to. 63 : 530. 
 Authority of freight agent to contract for 
 transportation beyond line. 
 9:833.* 
 
 Rights and liabilities of connecting carrier. 
 4: 376,* 545;* 6: 849;* 7: 
 214;* 9: 833;* 10: 415.* 
 Joint liability. 4: 545;* 9: 834.* 
 Liability beyond own line. 1: 705;* 4: 
 545;* 6:853;* 9:835;* 
 13: 34.* 
 Liability for loss on connecting line. 1: 
 
 705.* 
 
 39. Live stock. 
 Duties and liabilities, generally. 2: 75;* 4: 
 
 545.* 
 
 Contract limiting liability. 9: 452.* 
 Duties of carriers of live stock as to pens 
 or yards at stations. 44: 
 289' 
 
 The general rule. 44: 289. 
 Application generally. 44: 290. 
 Commencement and termination of risk. 
 
 44: 292. 
 Effect of contributory negligence. 44: 
 
 294. 
 Relief from liability by contract. 44: 
 
 295. 
 
 Compensation. 44: 295. 
 Discrimination. 44 : 296. 
 Matters of procedure. 44: 296. 
 Statutory duties of carriers of live stock 
 with reference to care of 
 stock during transporta- 
 tion. 44: 449. 
 
 The United States statute. 44: 449. 
 The South Carolina statute. 44: 452. 
 The Texas statute. 44: 453. 
 Miscellaneous statutory provisions. 44: 
 
 456. 
 
 Duty as to shipment of stock. 9: 449.* 
 Duty to feed and water. 9: 449.* 
 Forwarding by connecting line. 9 : 450.* 
 Damages for failure to transport. 9: 
 
 450.* 
 
 Liability for delay in shipment and de- 
 livery. 9: 451.* 
 Liability for miscarriage and wrongful 
 
 delivery. 9: 451.* 
 Damages for negligent loss or injury. 
 
 9: 451.* 
 
 Notice of claim for damages. 9: 452.* 
 Contract limiting liability. 9: 452.* 
 Extraordinary unloading of live stock in 
 
 tran&itu. 14: 550. 
 Duty as to loading live stock. 13: 262.* 
 
 Duty to furnish cars for transportation of 
 live stock. 9: 449.* 
 
 Burden of proof of cause of injury to live 
 stock during transporta- 
 tion. 17 : 339. 
 
 40. Conversion; seizure under process. 
 
 Conversion by carrier. 2: 80.* 
 
 Payment or tender of freight charges as 
 a condition precedent to 
 an action of trover against 
 carrier. 21: 117. 
 
 Effect of seizure of goods by judicial pro- 
 cess to relieve carrier from 
 liability. 9: 263;* 13: 35.* 
 
 41. When liability of carrier, as such, 
 ceases. 
 
 Conflict of laws as to. 63: 531. 
 
 Generally. 10: 417.* 
 
 The two rules. 17: 691. 
 
 The Massachusetts rule. 17: 691. 
 The New Hampshire rule. 17: 693. 
 
 Reasonable time. 17 : 696. 
 
 42. Effect of strikes upon carrier's liabil- 
 ity. 
 
 Duty to accept freight or furnish cars. 35: 
 623. 
 
 Destruction of property. 35: 623. 
 
 Delay in transportation. 35: 624. 
 In general. 36: 624. 
 Mere refusal of employees to work. 
 
 36:625. 
 Effect of violence and intimidation. 35 : 
 
 627. 
 
 Strike on connecting line. 35: 629. 
 Sale of perishable property. 35: 630. 
 
 Delay in unloading vessel. 35: 630. 
 
 43. Unloading; delay; demurrage. 
 
 What will excuse delay in transportation. 
 9: 836.* 
 
 Delay in unloading caused by strike. 35: 
 630. 
 
 Demurrage; charge for detention of its cars 
 by consignees. 22: 530. 
 
 Liability for delay caused by mobs or un- 
 lawful conduct of employ- 
 ees. 4: 545.* 
 
 Maritime lien for demurrage. 70: 374. 
 
 44. Delivery. 
 
 Effect of Delivery of Goods to Carrier as 
 Delivery to Purchaser, 
 see Sale, IV. 3. 
 
 Who may maintain action against carrier 
 for nondelivery of goods 
 delivered to carrier by 
 vendor for transportation 
 to purchaser. 22: 42". 
 
 Custom or usage at port of delivery as part 
 of contract. 1 : 651.* 
 
 Failure to deliver to consignee as prima 
 facie evidence of negli- 
 gence and liability. 13: 
 33.* 
 
 Liability for wrong delivery of goods. 6: 
 853.* 
 
 Effect of misdelivery. 6 : 849.* 
 
 Contract to deliver at a designated point. 
 10: 416.* 
 
 To whom may delivery be made under bill 
 
 of lading. 38: 358. 
 Goods deliverable to order. 38: 358. 
 Must deliver to holder of bill of lading. 
 38: 359.
 
 CARRYING ON BUSINESS CARS. 
 
 427 
 
 Necessity of production of bill of lad- 
 ing. 38:359. 
 Shipper's rights. 38:361. 
 Duplicate bills. 38: 362. 
 Shipping receipts. 38: 362. 
 Indorsement required. 38: 363. 
 Wrongful holder. 38: 363. 
 Effect of order to notify certain person. 
 
 38: 363. 
 
 Rights of true owner. 38 : 364. 
 Delivery on carrier's copy. 38: 364. 
 Incidents of delivery. 38: 364. 
 Exceptions in bills of lading. 38: 365. 
 Instructions for collections. 38: 365. 
 Conflicting claims. 38: 365. 
 Acts of third persons. 38: 365. " 
 Consignment to consignor's agent. 38: 
 
 366. 
 
 Delivery to impostor by carrier. 37: 177. 
 General rule as to delivery. 37: 177. 
 Imposition on carrier. 37 : 179. 
 Imposition on consignor. 37: 180. 
 Liability of, for misdelivery of goods. 1 : 
 
 650.* 
 
 45. Insurance. 
 Subrogation of insurer to rights of insured 
 
 against carrier. 3: 426.* 
 Subrogation of carrier to rights of insured. 
 
 3: 426.* 
 
 46. Extent of liability. 
 Conflict of laws as to. 63: 529. 
 Conclusiveness of shipper's valuation. 4: 
 
 545.* 
 Restriction of liability by valuation. 6: 
 
 851.* 
 Rule as to valuation fixed in bill of lading. 
 
 12: 799.* 
 
 Allowance of interest on damages to prop- 
 erty injured, delayed, or 
 lost in transportation. 18: 
 451. 
 
 Loss of profits as element of damages for 
 breach of contract for 
 carriage. 53: 83. 
 47. Liens. 
 For freight. 4: 376.* 
 Maritime lien for freight. 70: 368. 
 Waiver of lien of, by attachment or execu- 
 tion. 50: 721. 
 
 CARRYING ON BUSINESS. 
 
 What Constitutes, see Corporations, VII. b; 
 License, 81. 
 
 Editorial Notes. 
 What constitutes. 14: 529. 
 
 CARRYING WEAPONS. 
 
 Liability to Arrest for, Without Warrant, 
 see Arrest, 28. 
 
 Constitutional Right as to, see Constitu- 
 tional Law, 350, 613. 
 
 Ordinance Against, see Criminal Law, 184. 
 
 Evidence of Deceased's Habits as to, see 
 Evidence, 1727. 
 
 Prohibition against Imposing Fine for, see 
 Prohibition, 30. 
 
 1. The constitutional right of citizens to 
 bear arms is not violated by a law which 
 makes it unlawful for tramps to carry fire- 
 arms or other dangerous weapons. State 
 v. Hogan, 63 Ohio St. 202, 58 N. E. 572, 
 
 52: 863 
 
 2. The carrying of arms in a quiet, peace- 
 able, and ordinary manner, but concealed on 
 or about the person, is not either a breach 
 of the peace nor malum in se. Neither does 
 it, of itself, tend to a breach of the peace, 
 but it becomes a misdemeanor only because 
 it is prohibited by statute. The statute 
 does not declare it to be a breach of the 
 peace, nor does the statute authorize an 
 arrest without warrant for its infraction. 
 Roberson v. State, 43 Fla. 156, 29 So. 535, 
 
 52: 751 
 
 3. The constitutional right to keep and 
 bear arms for the common defense is not 
 violated by Mass. Stat. 1893, chap. 367, 
 124, prohibiting unauthorized bodies of men 
 to associate together as a military organiza- 
 tion or drill and parade with arms in cities 
 and towns. Com. v. Murphy, 166 Mass. 171, 
 44 N. E. 138, 32: 606 
 What weapons may be carried. 
 
 4. The constitutional right to keep and 
 bear arms does not extend to such weapons 
 as pistols, bowie-knives, etc., but that pro- 
 vision must be construed in reference to pre- 
 existing laws, which prohibited the carry- 
 ing of certain weapons, and must be held to 
 refer to weapons of warfare to be used by 
 the militia. State v. Workman, 35 W. Va. 
 367, 14 S. E. 9, 14: 600 
 
 5. Ordinary breech- loading Springfield 
 rifles which have been altered so that they 
 cannot discharge a missile by means of gun- 
 powder or any other explosive, which fact is 
 not obvious to the ordinary observer, are 
 "firearms" within the meaning of Mass. 
 Stat. 1893, chap. 367, 124, prohibiting un- 
 authorized bodies of men to parade with 
 firearms. Com. v. Murphy, 166 Mass. 171, 
 44 N. E. 138, 32: 606 
 What will justify carrying. 
 
 6. A mere indefinite threat of violence, 
 the nature and extent of which is not shown, 
 unaccompanied by any act or conduct evin- 
 cing a design to do violence, will not justify 
 the carrying of a pistol, under W. Va. Code, 
 chap. 148, 7. State v. Workman, 35 W. 
 Va. 367, 14 S. E. 9, 14: 600 
 
 Editorial Notes. 
 
 Constitutionality of laws restricting right. 
 
 14:600. 
 Cruel and unusual punishment for. 35:571. 
 
 CARS. 
 
 arrier's Duty' to Place on Switch, see 
 
 Carriers, 746. 
 
 Duty to Furnish Safe Cars, see Carriers, 763. 
 For Shipment of Live Stock, Safety of. see 
 
 Carriers, 851-853.
 
 428 
 
 CAR SERVICE ASSOCIATION CASE, I. 
 
 Carrier's Contract or Duty to Furnish, see 
 Carriers, II. b, 8. 
 
 Illegal Agreement for Use of Sleeping Car, 
 see Conspiracy, 1. 
 
 Damages for Failure to Furnish, see Dam- 
 ages, 231. 
 
 Judicial Notice as to, see Evidence, 85, 
 86, 88. 
 
 Levy on, see Levy and Seizure, 30-34. 
 
 Duty to Inspect, see Master and Servant, 
 '226-229. 
 
 Assumption of Risk as to, see Master and 
 Servant, 298-302. 
 
 Contributory Negligence of Employee as to, 
 see Master and Servant, 405-416. 
 
 Injury to Employee by, see ^uaster and 
 Servant, II. a, 4, d, (3). 
 
 Liability for Negligently Loading, see Negli- 
 gence, 62. 
 
 As Dangerous Attraction to Children, see 
 Railroads, 97. 
 
 Taxation of, see Taxes, 160, 161, 167, 168, 
 227-229. 
 
 CAR SERVICE ASSOCIATION. 
 
 Illegal Combination of, see Conspiracy, 185, 
 
 186. 
 See also Carriers, 965, 966, 970, 974. 
 
 CAR STARTER. 
 
 As Fellow Servant, see Master and Serv- 
 ant, 597. 
 
 CARTRIDGES. 
 
 Negligence in Sale of, see Negligence, 55, 
 445. 
 
 CASE. 
 
 I. In General. 
 
 II. Inducing Breach of Contract. 
 III. Editorial Notes. 
 
 Effect of Novelty on Right to Maintain Suit, 
 
 see Action or Suit, 13, 14. 
 Joinder with Trover, see Action or Suit, 89. 
 Acts Pursuant to Judgment Subsequently 
 
 Reversed as Basis of Action, see Appeal 
 
 and Error, 1244. 
 For Conspiracy, see Conspiracy. 
 Right of Action for Performing Autopsy, see 
 
 Corpse, 8. 
 Right of Action for Mutilating Corpse, see 
 
 Corpse, 10-12. 
 Liability for Interference with Right of 
 
 Burial, see Corpse, 13, 14. 
 Liability to Punitive Damages for Con- 
 spiracy, see Damages, 28, 29. 
 P.ight of Action for Causing Death, see 
 
 Death. 
 Injuries by Fright, see Fright. 
 
 Liability of Seller or Manufacturer for In- 
 jury Due to Defects, see Negligence, I. 
 b, 2. 
 
 Right of Action by Person in Possession for 
 Injury to Property, see Parties, 19-21. 
 
 For Negligence of Physician, see Physicians 
 and Surgeons, 58. 
 
 Liability for Seduction, see Seduction. 
 
 Against Sheriff, see Sheriff, !. 
 
 Venue of Action, see Venue, 3. 
 
 See also Action or Suit, 2; Boycott; Torts. 
 
 I. In General. 
 
 1. A direct precedent for the action is not 
 necessary to give a right of action for a 
 wrong. Kujek v. Goldman, 150 N. Y. 176, 
 44 N. E. 773, 34: 15ft 
 
 2. An action lies for every injury, suffered 
 by reason of a violent or malicious act, to 
 a man's occupation, profession, or way of 
 
 fitting a livelihood. Hundley v. Louisville 
 N. R. Co. 105 Ky. 162, 48 S. W. 429, 
 
 63: 289 
 
 3. If a person, by the fraud of another, 
 or of someone for whose conduct he is re- 
 sponsible, becomes a party to a written in-' 
 strument without reading it or personally 
 knowing the contents thereof, he is not pre- 
 cluded thereby from obtaining judicial re- 
 dress, in some form of action, for any in- 
 jury which may be thereby caused to him 
 through such instrument not being what he 
 supposed it to be. Bostwick v. Mutual* L. 
 Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 
 246, 67:705 
 Wrong motive. 
 
 For Editorial Notes, see infra, III. 
 
 4. The motive of a person in the exercise 
 of a legal right is immaterial. Raycroft v. 
 Tayntor, 68 Vt. 219, 35 Atl. 53, - 33: 225 
 
 5. The legality of an act cannot be 
 changed or affected by the motive with 
 which it is done. State v. Van Pelt. 136 
 N. C. 633, 49 S. E. 177, 68: 760 
 
 6. An act which does not of itself amount 
 to a legal wrong cannot be made so by a bad 
 motive. Chambers v. Baldwin, 91 Ky. 121, 
 15 S. W. 57, 11: 545 
 Against carrier. 
 
 When Proper Form of Remedy, see Election 
 of Remedies, 25. 
 
 7. A shipper of goods may maintain an 
 action on the case against the carrier for 
 their negligent injury, where they were sold 
 and shipped subject to the payment of a 
 draft against the bill of lading, the shipper 
 guaranteeing payment of freight, although 
 when notified of the injury he refused to 
 give directions as to their disposition on the 
 ground that he no longer had title, if the 
 carrier did not act upon such claim to his 
 prejudice. Spence v. Norfolk & W. R. Co. 
 92 Va. 102, 22 S. E. 815, 29: 578 
 Against servant or agent. 
 
 Conspiracy to Prevent Increase in Wages, 
 see Conspiracy, 57-59. 
 
 Conspiracy to Induce Discharge of, see Con- 
 spiracy, 62, 63. 71. 72. 
 
 8. The failure of a servant or agent to
 
 CASE. I. 
 
 429 
 
 pay over on demand money which he has 
 collected for his principal will not sustain 
 an action of trespass on the case, but the 
 only remedy is by assumpsit or debt. Royce 
 v. Oakes, 20 R. I. 418, 39 Atl. 758, 39: 845 
 Inducing marriage. 
 
 9. A man who induces another to marry 
 a girl by false representations that she is 
 virtuous when in fact she has been seduced 
 by himself and has become pregnant is liable 
 for damages in an action by the husband 
 for fraud. Kujek v. Goldman, 150 N. Y. 
 176, 44 N. E. 773, 34: 156 
 
 10. Loss of the comfort founded upon af- 
 fection and respect derived from conjugal so- 
 ciety is sufficient, irrespective of any pecu- 
 niary damages, to sustain an action by a 
 husband against one who has fraudulently 
 induced him to marry a woman who is 
 pregnant by another. Id. 
 Ordering from public resort. 
 
 Damages for Unlawful Ejection from Public 
 Resort, see Damages, 578. 
 
 11. One not belonging to the proscribed 
 class has a right of action for the actual 
 damages suffered in case he is ordered from 
 the grounds when visiting a place of public 
 resort and behaving in a proper manner, 
 by the manager or his representative, in a 
 way to subject him to humiliation or dis- 
 grace, although the act is done through mis- 
 take. Davis v. Tacoma R. & P. Co. 35 
 Wash. 203. 77 Pac. 209, 66: 802 
 Polluting stream. 
 
 12. Case, and not trespass, is the proper 
 form of action for applying a running 
 stream to such uses as to render it impure 
 and fill it with a sediment which is deposited 
 on the land of a lower proprietor, thereby 
 preventing him from putting the water to 
 the ordinary uses, and damaging his land. 
 Drake v. Lady Ensley Coal. I. & R. Co. 102 
 Ala. 501, 14 So. 749. 24: 64 
 Wrongful sale of land. 
 
 13. Interference with ownership of land 
 by advertising and selling it under a fraudu- 
 lent mortgage, and notifying tenants not to 
 pay rent to the owner, constitutes an action- 
 able wron. Gore v. Condon r 87 Md. 368, 
 39 Atl. 1042, 40: 382 
 
 14. The disgrace and disrepute into which 
 the owner of property is brought on account 
 of the advertising and sale thereof under a 
 fraudulent mortgage does not constitute a 
 cause of action. Id. 
 Wrongful disposition of debtor's property. 
 
 l.j. A general creditor cannot maintain an 
 action on the case for conspiracy of the 
 debtor and other persons to dispose of the 
 debtor's property fraudulently and defeat 
 his claim, if there was no fraud in the crea- 
 tion of the debt. Field v. Siegel, 99 \Yis. 
 605, 75 ^. W. 397, 47:433 
 
 Injury to business. 
 
 Conspiracy to Injure Business, see Con- 
 spiracy, I. c. 
 For Editorial Notes, see infra, III. 
 
 16. To represent to customers of a rival, 
 maliciously and for the purpose of injuring 
 his business, that his machinery and appli- 
 ances are dangerous and unsafe for the pur- 
 poses for which they are designed, is an ac- 
 
 tionable wrong. West Virginia Transp. Co. 
 v. Standard Oil Co. 50 W. Va. 611, 40 S. E. 
 591, 56: 804 
 
 17. A policy calculated to destroy or in- 
 jure the business of another by threats or 
 intimidation is unlawful, and creates a lia- 
 bility for damages to the person injured. 
 Jackson v. Stanneld, 137 Ind. 592, 36 N. E. 
 345, 37 N. E. 14, 23: 588 
 
 18. Statements that loan agents are inat- 
 tentive and neglectful, and have been guilty 
 of fraudulent conduct, for which their prin- 
 cipal has taken the business from them, and 
 that they are insolvent, made for the pur- 
 pose of breaking them up in business and 
 securing their custom, give them a right of 
 action for the injuries thereby inflicted upon 
 them. Brown v. American F. L. M. Co. 97 
 Tex. 599, 80 S. W. 985, 67: 195 
 
 19. A merchant does not subject himself 
 to liability to an action for damages in 
 favor of a manufacturer by sending circulars 
 to the retail trade offering a small quantity 
 of such manufacturer's product, which he 
 owns, at a cut price lor the purpose of in- 
 juring and destroying such manufacturer's 
 trade and depressing the price of his goods 
 on the market. Passaic Print Works v. Ely 
 & W. Dry Goods Co. 44 C. C. A. 426, 105 
 Fed. 163, 62: 673 
 
 20-21. A man who hires lodging rooms in 
 a dwelling house is liable to the owner for 
 injuries to the good name of the house and 
 the damage to the owner's custom and 
 business, if he brings dissolute and immoral 
 persons to such rooms and applies the rooms 
 to the purpose of assignation or to create a 
 nuisance therein. Sullivan v. Waterman, 20 
 R. 1. 372, 39 Atl. 243, 39: 773 
 
 Injury to property. 
 
 22. Injury to another's property in the 
 exercise of a legal right especially one con- 
 ferred by statute does not render one lia- 
 ble for damages, unless they were caused by 
 want of care and skill ordinarily exercised 
 in like cases. Coyne v. Mississippi & R. R. 
 Boom Co. 72 Minn. 533, 75 N. W. 748*, 
 
 41 : 494 
 
 23. The owner of land occupied by a ten- 
 ant may sue in trespass on the case for the 
 damage to his reversionary interest. Rus- 
 sell v. Meyer, 7 N. D. 335, 75 N. W. 262, 
 
 47: 637 
 
 24. One who causes noxious vapors to rise 
 upon the land of an adjoining proprietor by 
 wrongfully obstructing the natural drain of 
 surface water therefrom is liable for the 
 damage the same as if such vapors had 
 been wrongfully caused to rise on and from 
 his own land. Garland v. Aurin, 103 Tenn. 
 555, 53 S. W. 940, 48: 862 
 
 25. One who wrongfully enters a black- 
 smith shop and kindles a fire in the forge 
 is liable in case for consequential injuries 
 caused by the fire spreading and destroying 
 the building and personal property therein. 
 Wyant v. Grouse, 127 Mich. 158, 86 N. W. 
 527, 53: 626 
 For penalty. 
 
 26. A penalty prescribed by statute for 
 the benefit of a party injured, no part of 
 which goes to the state, may be recovered
 
 430 
 
 CASE, II., III. 
 
 by him in an action of trespass on the case 
 where no specific mode of recovery is pro- 
 vided. Mapel v. John, 42 W. Va. 30, 24 
 S. E. 608, 32: 800 
 
 II. Inducing Breach of Contract. 
 
 For Editorial Xotes, see infra, III. 
 
 27. Maliciously inducing another to break 
 a contract with a third person will not cre- 
 ate a liability to the latter, when it is done 
 without threats, violence, fraud, falsehood, 
 deception, or benefit to the person inducing 
 the breach. Boysen v. Thorn, 98 Cal. 578, 
 33 Pac. 492, 21 : 233 
 
 28. Inducing another to break his contract 
 will not render one liable to the other party 
 to the contract, although it is done mali- 
 ciously and for the sake of profit, if without 
 force or fraud. Chambers v. Baldwin, 91 
 Ky. 121, 15 S. W. 57, 11:545 
 
 29. A party to a contract, who is injured 
 by reason of the failure of the other party 
 to comply with its terms, cannot recover 
 damages for the negligent act of a third 
 person, by which the performance of the 
 contract was rendered impossible. Byrd v. 
 English, 117 Ga. 191, 43 S. E. 419, 64: 94 
 
 30. Notifying a railroad company not to 
 haul any more sand or gravel from certain 
 premises, for the reason that the premises 
 are the property of the one giving the 
 notice, which causes the company to refuse 
 to comply with its contract to haul such 
 sand and gravel, will not render the one 
 giving the notice liable for the damages 
 caused by the breach of contract. Glencoe 
 Sand & G. Co. v. Hudson Brothers' Commis- 
 sion Co. 138 Mo. 439, 40 S. W. 93, .36: 804 
 
 31. Inducing one of two parties to a con- 
 tract to break it, intending thereby to injure 
 the other, or to obtain a benefit for one's 
 self, constitutes an actionable wrong. Gore 
 v. Condon. 87 Md. 368, 39 Atl. 1042, 40: 382 
 
 32. Wantonly and maliciously inducing a 
 person to violate his contract with another, 
 to the latter's injury, whether for one's own 
 benefit or not, is an actionable wrong. 
 West Virginia Transp. Co. v. Standard Oil 
 Co. 50 W. Va. 611, 40 S. E. 591, 56: 804 
 
 33. Maliciously to persuade another to 
 break his contract with a third person for 
 the purpose of injuring the latter is an ac- 
 tionable wrong if the injury results as in- 
 tended. Doremus v. Hennessy, 176 111. 608, 
 52 \. E. 924. 43: 797 
 
 34. One who is responsible for another's 
 engaging in business in breach of his con- 
 tract not to do so is liable for the damages 
 thereby caused to the other contracting 
 party, whether he induces the breach of 
 the fon tract or not. Raymond v. Yarring- 
 ton. 90 Tex. 443, 73 S. W! 800, 62: 902 
 Inducing servant to leave employment. 
 
 For Editorial Xotes, see infra, III. 
 
 35. One who employs a person in igno- 
 rance of the fact that he was under a time 
 contract to work for another, in violation of 
 which he had left the latter's service, is 
 
 not liable in damages to the former em- 
 ployer because, when informed of the serv- 
 ant's breach of contract, he fails to dis- 
 charge him, wheie the servant, though of- 
 fering to release his new employer, expresses 
 his determination not to return to the one 
 whose service he has abandoned. Wolf v. 
 New Orleans Tailor-Made Pants Co. 113 
 La. 388, 37 So. 2, 67: 65 
 
 Not to join labor union. 
 
 36. Statutory authority to workmen to 
 form associations for mutual aid, and to 
 refuse to work for any employer under cer- 
 tain conditions without being subject . to 
 prosecution for conspiracy will not justify 
 members of a labor union in enticing em- 
 ployees to break their contracts not to be- 
 come members of such unions to the injury 
 of their employer's business. Flaccus v. 
 Smith, 199 Pa. 128, 48 Atl. 894, 54: 640 
 Inducing discharge of servant. 
 
 Master's Liability for Wrongful Discharge, 
 
 see Master and Servant, 42, 43. 
 Allegation as to, see Pleading, 386. 
 For Editorial Notes, see infra, III. 
 
 37. A patron of a street railway company 
 incurs no liability to a conductor by re- 
 porting to the superintendent of the com- 
 pany such conductor's misconduct while on 
 duty toward a passenger, though in mak- 
 ing the report he is prompted by ill will and 
 a desire to secure the conductor's discharge 
 from the service of the company. Lancaster 
 v. Hamburger, 70 Ohio St. 156, 71 N. E. 
 289, 65: 856 
 
 38. One who procures the discharge of an 
 employee not engaged for any definite time, 
 by threatening to terminate a contract be- 
 tween himself and the employer, which he 
 had a right to terminate at any time, is 
 not subject to an action by the employee 
 for damages, whatever may have been his 
 motive in procuring the discharge. Ray- 
 croft v. Tayntor, 68 Vt. 219, 35 Atl. 53, 
 
 33:225 
 
 39. That an employment is at will, and 
 the employer is free from liability for dis- 
 charging a servant, does not exempt from 
 liability one who has controlled the employ- 
 er's action and maliciously procured the dis- 
 charge. Moran v. Dunphy, 177 Mass. 485, 
 59 N. E. 125, 52: 115 
 
 40. The malicious procurement of a 
 breach of contract of employment, resulting 
 in damage, where the procurement was dur- 
 ing the subsistence of the contract, is an 
 actionable wrong. Employing Printers' Club 
 v. Dr. Blosser Co. 122 Ga. 509, 50 S. E. 353, 
 
 69:90 
 
 41. Maliciously and without cause procur- 
 ing the discharge of an employee is an ac- 
 tionable tort, whether this is accomplished 
 by intimidation, slander, or malevolent ad- 
 vice. Moran v. Dnnphy, 177 Mass. 485, 59 
 N. E. 125, 52: lib 
 
 III. Editorial Notes. 
 
 At common law; what action founded upon. 
 11:547.*
 
 CASE MADE; CASES CERTIFIED. 
 
 431 
 
 Action by general creditor for damages 
 against third person for 
 fraud in preventing plain- 
 tiff from collecting his 
 claim. 47:433. 
 
 Action on, for injury to business or occu- 
 pation; enect of malice on 
 liability. 62:694. 
 
 Liability of a person in damages for induc- 
 ing a third party to break 
 his contract. 21:233. 
 
 The fundamental principles of the ac- 
 tion. 21:234. 
 
 Malice the gist of the action. 21 : 235. 
 
 Contracts generally. 21:236. 
 
 Between master and servant. 21:238. 
 
 CASE MADE. 
 On Appeal, see Appeal and Error, IV. n. 
 
 CASES CERTIFIED. 
 
 Presumption as to, see Appeal and Error, 
 
 454. 
 See also Agreed Case. 
 
 1. A judge has sat in a case so as to be 
 entitled to dissent from the decision and 
 cause the case to be certified to another 
 court on the ground of a conflict of deci- 
 sions, notwithstanding the fact that he has 
 not had any consultation with the other 
 judges on the merits of the case, where he 
 was on the bench when the case was argued 
 and submitted, and afterwards agreed with 
 the other judges that the decision should be 
 withheld for a time, and, on learning of a 
 decision rendered by them in his absence, 
 promptly sent to the judge who wrote the 
 opinion a memorandum stating that it was 
 in conflict with another decision, and that a 
 motion for a rehearing ought therefore to 
 be granted, in addition to which he filed a 
 dissenting opinion pending the motion for 
 rehearing, and was on the bench, but not 
 consulted, when his associates overruled that 
 motion in accordance with an agreement 
 they had previously made, and of which 
 they had notified him. State ex rel. Hezel 
 v. Bland, 148 Mo. 625, 50 S. W. 293, 43 : 845 
 
 2. A judgment that the respondent cor- 
 poration is probably guilty, whereupon the 
 case is certified to the supreme court upon 
 the question of the constitutionality of a 
 statute under which the corporation is 
 charged, is a sufficient rendering of judg- 
 ment under R. I. Pub. Stat. chap. 220, 2, 
 providing that the case may be certified 
 when judgment is rendered in the cause 
 against the party raising the constitutional 
 question. State v. Brown & S. Mfg. Co. 18 
 R. I. 16, 25 Atl. 246, 17: 856 
 
 3. The United States circuit court of ap- 
 peals will not, upon denying a motion for 
 rehearing, certify the questions involved to 
 the United States Supreme Court under the 
 
 authority given it to certify any questions 
 or propositions of law concerning which it 
 desires the instruction of that court for its 
 proper decision, but such certification will 
 be made only before decision as upon the 
 court's own motion. Andrews v. National 
 Foundry & P. Works, 22 C. C. A. 110, 46 
 U. S. App. 281, 76 Fed. 166, 36: 139 
 
 Questions to be certified. 
 See also infra, Editorial Notes. 
 
 4. The very question of law is not certi- 
 fied, within the meaning of Tex. act May 2, 
 1893, by presenting a petition of plaintiff 
 covering a number of pages, with exceptions 
 thereto. Union C. L. Ins. Co. v. Chowning, 
 86 Tex. 654, 26 S. W. 982, 24: 504 
 
 5. The very question to be decided, which 
 the court of civil appeals is by statute au- 
 thorized to certify to t*he supreme court, is 
 not an abstract question which may deter- 
 mine the issue as presented to that court, 
 but the issue itself. Galveston, EL & S. A. 
 R. Co. v. Zantzinger, 92 Tex. 365, 48 S. W. 
 563, 44: 553 
 
 6. The question of the right of a boy to 
 recover from a railroad company whose en- 
 gineer turns hot water and steam on him to 
 drive him from the engine, for the loss of 
 his leg in attempting to get off, in the event 
 that his action succeeding the assault was 
 negligent, does not arise upon an instruction 
 to find for plaintiff if the engineer's act was 
 negligent, without specifying whether the 
 recovery was to be for loss of leg or for the 
 assault, so that it can be certified by the 
 court of civil appeals to the supreme court; 
 but the right of his mother to recover does 
 so arise, since her recovery, if any, must be 
 based on the loss of the leg. Id. 
 
 7. The "very question to be decided," 
 which is required to be certified by the court 
 of .civil appeals, under the Texas statutes, 
 is not presented by a certificate of the ques- 
 tion whether or not a demurrer should be 
 sustained . to plaintiff's petition. Waco 
 Water & L. Co. v. Waco, 86 Tex. 661, 26 
 S. W. 943, 31 : 392 
 
 8. The question, "What judgment should 
 be rendered in this action ?" is not a proper 
 one for reservation under the Wyoming 
 statute which authorizes questions, not 
 cases, to be certified by the supreme court. 
 Rasmussen v. Baker, 7 Wyo. 117, 50 Pac. 
 819, 38: 773 
 Answer to question; matters considered. 
 
 9. A question arising upon the pleadings 
 which is certified to the supreme court for 
 decision cannot be answered if the facts do 
 not sufficiently appear in the pleadings to 
 authorize a complete determination of it. 
 Grand Island & N. W. R. Co. v. Baker, 6 
 Wyo. 369, 45 Pac. 494, 34: 835 
 
 10. The validity of a defense demurred to 
 may be considered notwithstanding defects 
 in the complaint, when the question is cer- 
 tified for review to the court of appeals un- 
 der N. Y. Code Civ. Proc. 190, subd. 2, 
 and the defendant has waived the defects in 
 the complaint by omitting to call attention 
 to them or to have any questions with ref- 
 erence thereto certified. Baxter v. McDon- 
 nell, 155 N. Y. 83, 49 N. E. 667, 40: 670
 
 432 
 
 CASES SUBMITTED CAUSE. 
 
 Editorial Notes. 
 
 Definiteness of question to be certified. 31: 
 392. 
 
 The whole case must not be sent up. 
 31:392. 
 
 The case cannot be split up into dis- 
 tinct points to take up 
 whole case. 31 : 392. 
 
 The importance of the question is im- 
 material. 31:393. 
 
 The point of difference must be certified. 
 31:393. 
 
 The question must not be general. 31: 
 393. 
 
 The question must not be abstract. 31 : 
 393. 
 
 The question must be perfectly stated. 
 31:393. 
 
 It must not involve a question of fact. 
 31:394. 
 
 Necessary facts must be stated. 31:394: 
 
 Question whether evidence or indict- 
 ment sufficient. 31:394. 
 
 Question whether demurrer should be 
 sustained. 31:395. 
 
 What will be considered. 31:395. 
 
 Questions which have been held proper. 
 31:395. 
 
 CASES SUBMITTED. 
 
 Editorial Notes. 
 Under New York Code. 4:685.* 
 
 CASH DIVIDENDS. 
 Relative Rights of Life Tenant and Re- 
 
 maindermen 
 29-36. 
 
 to, see Life Tenants, 
 
 CASHIER. 
 
 Authority of, see Banks, 35-51, 60-62, 274. 
 
 Mortgage Taken by, see Banks, 275. 
 
 Liability for Theft by, see Banks, 76. 
 
 Bond for Fidelity of, see Bonds, 34-39; 
 Principal and Surety, 22-24, 46. 
 
 Election of Remedy for Wrong of, see Elec- 
 tion of Remedies, 55, 
 
 Libel by, see Libel and Slander, 103. 
 
 Notice to, see Notice, 65-68. 
 
 As Interested Witness, see Witnesses, 203. 
 
 CASHIER'S CHECKS. 
 
 Imputing to Principal Agent's Knowledge aa 
 
 to, see Notice, 45. 
 See also Banks, 114, 115, 131, 165, 238, 258, 
 
 309; Checks, 5, 39, 42. 
 
 CASTING VOTE. 
 
 By Mayor, see Parliamentary Law, 18, 
 31-35. 
 
 Editorial Notes. 
 
 By presiding officer in deciding tie on. elec- 
 tion. 47:561. 
 
 CASUS OMISSUS. 
 
 In Statute, Power of Court to Supply, see 
 Courts, 493. 
 
 CATALOGUE. 
 
 As Baggage, see Carriers, 703. 
 Receiver of, see Receivers, 19. 
 Property in Secrets in, see Secrets, 1, 2. 
 
 CATTLE. 
 
 Transportation of, see Carriers, n. b, 6; IV 
 
 39. 
 Claim for Unnecessary Destruction of, see 
 
 Claims, 22. 
 See also Animals. 
 
 Editorial Notes. 
 
 Liability of vendor of unwholesome food for. 
 21 : 140. 
 
 CATTLE GUARDS. 
 
 Due Process in Requiring Construction of, 
 
 see Constitutional Law, 842. 
 Evidence as to Removal from, see Evidence, 
 
 2080. 
 Duty of Railroads as to, see Master and 
 
 Servant, 171, 172; Railroads, 240-242. 
 
 CATTLE PASS. 
 Easement of, see Easements, 87. 
 
 CATTLE PEN. 
 
 Negligence as to, see Master and Servant, 
 167. 
 
 4 
 
 CAUCUS. 
 See Elections, HE. 
 
 CAUSA MORTIS. 
 Gift, see Gift, II. 
 
 CAUSE. 
 
 Meaning of Term, see Clerks, 8.
 
 CAVEAT EMPTOK CEMETERIES. 
 
 433 
 
 Presumption and Burden of Proof as to, see 
 
 Evidence, 425-440. 
 
 Opinion Evidence as to, see Evidence, VII. c. 
 Sufficiency of Proof of, see Evidence, XII. b. 
 Of Loss, Death, or Injury, see Insurance, 
 
 yj. i>. 
 
 Proximate Cause, see Proximate Cause. 
 Question for Jury as to, see Trial, IT. c, 2. 
 
 CAVEAT EMPTOR. 
 
 Editorial Notes. 
 
 Rule of. 6:73.* 
 
 Application of doctrine of, to judicial sale. 
 
 3:441.* 
 To execution sales. 13:304.* 
 
 CELEBRATIONS. 
 
 Editorial Notes. 
 Appropriations of public money for. 14:475. 
 
 CEMETERIES. 
 
 Adverse Possession of Burial Lot, see Ad- 
 verse Possession, 24, 29, 66. 
 Issue of Stock by Cemetery Company, see 
 
 Corporations, 147. 
 Directing Removal of Corpse from, see 
 
 Corpse, 2-5. 
 
 Damages for Trespass on, see Damages, 415. 
 Dedication of Land for, see Dedication, 20. 
 Prescriptive Right in, see Easements, 41; 
 
 and also infra, Editorial Notes. 
 Ejectment for Burial Lot, see Ejectment, 
 
 26, 27. 
 
 Condemnation of, see Eminent Domain, 43. 
 Condemnation of Land for, see Eminent 
 
 Domain, 92. 
 Right to Compensation on Condemnation of, 
 
 see Eminent Domain, 297. 
 Exemption of, from Levy, see Exemptions, 
 
 13, 14. 
 Enjoining Municipal Interference with, see 
 
 Injunction, 82. 
 Regulation of Burial within City Limits, see 
 
 Municipal Corporations, 203-210. 
 Interment in, as Nuisance, see Nuisances, 38. 
 Provision for Erection of Fence Around, see 
 
 Real Property, 4. 
 
 Condition in Conveyance for, see Real Prop- 
 erty, 17. 
 Assessments on, see Public Improvements, 
 
 97, 98. 
 Exemption of, from Taxation, see Taxes, 
 
 200. 318, and also infra, Editorial 
 
 Notes. 
 Executor Setting Apart Separate Fund for 
 
 Burial Lot, see Trusts. 134. 
 Burial Lot Passing under Residuary Clause, 
 
 see Wills, 244. 
 
 1. Municipal authorities cannot grant to 
 
 a private, corporation land granted by the 
 
 United States to the city in trust for "public 
 
 uses" and which has been set apart by or- 
 
 L.R.A. Dig. 28. 
 
 dinance ratified by the legislature, as a 
 cemetery, to be "absolutely dedicated as 
 such," although the grantee intends to use 
 it as such and to bury there at its expense 
 bodies of its members who, if not members 
 of it, would be buried at the expense of the 
 city. La Societa Italiana Di Mutua Benefi- 
 cienza v. San Francisco, 131 Cal. 169, 63 Pac. 
 174, 53: 382 
 
 2. The purchase of cemetery lands al- 
 ready improved for that purpose is not 
 within the provision of N. Y. act 1853, limit- 
 ing payments for the land out of the cor- 
 poration receipts to one half thereof. Sey- 
 mour v. Spring Forest Cemetery Asso. 144 
 N. Y. 333, 39 N. E. 365, 26: 859 
 Vesting control of, in city. 
 
 3. The control of a cemetery which has 
 been acquired by a town solely for public 
 use and in which it has no beneficial in- 
 terest may lawfully be taken from it by the 
 legislature, and vested in a city which has 
 been organized within its limits, and which 
 embraces the cemetery within its bounda- 
 ries, if the rights and beneficial interests in 
 the property of the inhabitants of both city 
 and town are saved to them. Columbus v. 
 Columbus, 82 Wis. 374, 52 N. W. 425, 
 
 16: 695 
 
 Rights as to burial lots. 
 See also infra, Editorial Notes. 
 
 4. A coping around a cemetery lot cannot 
 be lawfully erecte"d by the widow of the 
 man buried there, against the objection of 
 the owner of the lot, who is a daughter by 
 a former marriage. Thompson v. Deeds, 93 
 Iowa, 228, 61 N. W. 842. 35:56 
 
 5. The right \a decorate a grave with 
 flowers belongs to the widow and all the kin 
 to the person buried therein, although the 
 cemetery lot is owned by his daughter; and 
 in so doing they must not interfere with 
 each other. Id. 
 
 6. A widow is entitled to erect a suitable 
 monument for her deceased husband even on 
 a cemetery lot belonging to his daughter by 
 a former marriage, where he was buried 
 by his wish and the consent of all parties, 
 b\it she cannot place on the monument the 
 daughter's name or that of her former hus- 
 band, who is buried on the same lot. Id. 
 
 7. The right of. sepulture in a given ceme- 
 tery lot exists as to a decedent whose de- 
 ceased parent was, while in life, the owner 
 thereof, and wjio, as heir at law of that 
 parent, inherited an undivided interest in 
 the lot. Wright v. Hollywood Cemetery 
 Corp. 112 Ga. 884, 38 S. E. 94, 52: 621 
 Cessation of use as; effect. 
 
 8. As long as rights of sepulture in land 
 donated lor a graveyard are outstanding in 
 the public, the original owners have no right 
 to recover the use of the land for any enjoy- 
 ment or purpose of their own. Campbell v. 
 Kansas City, 102 Mo. 326, 13 S. W. 897, 
 
 10:593 
 
 9. The original use of land dedicated for a 
 graveyard terminates, and the fee vests in 
 the original owners or their legal represent- 
 atives free from it, when the public cease to 
 bury in the ground, and refuse or neglect to 
 erect or preserve monuments to indicate the
 
 434 
 
 CENSUS CERTIFICATE. 
 
 identity of those already buried, or to give 
 and continue to the place the character and 
 name of a graveyard. Id. 
 
 10. Reinterments in an abandoned grave- 
 yard for the sole purpose of preventing a 
 reverter of the land, which had been dedi- 
 cated for that purpose, made by city authori- 
 ties on the final grading of the land for a 
 public park, after all the remains which 
 could be identified had been removed by the 
 city undertaker, or by the friends of the 
 parties buried there, will not prevent a 
 reversion of the land to the donors, where 
 no visible grave or monument is left to per- 
 petuate the memory of the dead, but the 
 place is named and recognized by the city 
 as a park. Id. 
 
 11. The donor of land for a graveyard is 
 not estopped from claiming a return of it, 
 after an abandonment of it by the public for 
 graveyard purposes, by the fact that he had 
 sold other parcels on the showing of a map 
 or plat which dedicated the graveyard to 
 the public. Id. 
 
 12. The title of a municipal corporation 
 to lands granted solely for burial purposes 
 reverts when by statute and ordinance the 
 use of the lands for such purposes is pro- 
 hibited. Xewark v. Watson (X. J. Err. & 
 App.) 56 X. J. L. 667, 29 Atl. 487, 24: 843 
 Judicial sale of. 
 
 13. A cemetery company organized under 
 Tex. Rev. Stat. 'art. 642, subd. 5, authoriz- 
 ing the creation of a corporation "for the 
 maintenance of a public or private ceme- 
 tery," wliieh purchases land and dedicates 
 it as a public burying ground, has no power, 
 under Tex. Rev. Stat. arts. 715-717, author- 
 izing the sale of lots for burial purposes and 
 defining the rights and duties of such cor- 
 porations and the lot owners, to create debts 
 on the faith of the land so dedicated; and a 
 sale of a portion of such land for a debt of 
 the company is void as in violation of the 
 rights of the lot owners. Oakland Cemetery 
 Co. v. People's Cemetery Asso. 93 Tex. 569, 
 57 S. W. 27, 55: 503 
 Police regulations. 
 
 14. The legislature in the exercise of its 
 police power can lawfully prohibit the use 
 of lands for the purpose of burial, when 
 such lands are held by a municipal corpoia- 
 tion. Xewark v. Watson (N. J. Err. & 
 App.) 56 X. J. L. 667, 29 Atl. 487, 24: 843 
 
 Editorial Notes. 
 
 Prescriptive right to maintain. 53:895. 
 Injunctions by municipality against. 41: 
 
 323. 
 Injunction against municipality maintaining 
 
 nuisance by. 23:303. 
 Exemption of, from general taxation. 10: 
 
 365.* 
 
 Liability to assessment for local improve- 
 ments. 35:36. 
 Character of estate or property of owner 
 
 in burial lot. 67:118. 
 Introductory 07:118. 
 Easement. '67:119. 
 License. 67 : 120. 
 Devise. 67:121. 
 
 Cemetery dedicated to a class. 67:122. 
 
 W'hen held in common. 67:122. 
 
 Right to mortgage. 67 : 122. 
 
 Power of cemetery authorities. 67 : 123. 
 
 Trespass on lot owner's possession. 67: 
 124. 
 
 Ejectment. 67 : 125. 
 
 Effect upon, of legislative act or mu- 
 nicipal ordinance closing 
 cemetery. 67 : 125. 
 
 Effect of language in grant specifying or re- 
 stricting property for use 
 of cemeteries. 19:266. 
 
 CENSUS. 
 
 As Basis of Apportionment, see Election 
 
 Districts, 2-4, 23. 
 Judicial Notice of. see Evidence, 33, 34, 160. 
 
 CENTENNIAL EXPOSITION. 
 
 See Exhibition. 
 
 CERTIFICATE. 
 
 Of Acknowledgment, see Acknowledgment. 
 
 Necessity of, for Review of Will Contest, 
 see Appeal and Error, 113. 
 
 On Appeal, see Appeal and Error, IV. 1. 
 
 Estoppel of Municipality by, see Bonds, 150, 
 155, 159. 
 
 Of Investment Association, see Contracts, 
 324-326, 406, 407; Lottery, 25; Receiv- 
 ers, 21. 
 
 Of Performance of Contract, see Contracts, 
 TV. d. 
 
 As to Right of Corporation to Name, see 
 Corporations, 35. 
 
 Of Stock Generally, see Corporations, V. 
 
 Of Stock, Nature of, see Corporations, 
 355-357. 
 
 Of Stock, Duplicates of, see Corporations, 
 369-371. 
 
 Necessity of, to Transfer of Stock, see Cor- 
 porations, 393-396. 
 
 Of Stock, Implied Warranty on Sale of, 
 see Sale, 91. 
 
 Of Officer Taking Deposition, see Deposi- 
 tions, 7. 
 
 Of Deposit, see Banks, TV. a, 4. 
 
 Of Canvassers, see Elections, 264-267. 
 
 Of Election, see Elections, 271-273. 
 
 Of Nominations, see Elections, 294, 309-315. 
 
 Evidence of, see Evidence, 2093. 
 
 Of Naturalization, see Evidence, 2280. 
 
 As Evidence, see Evidence, IV. c. 
 
 Of Engineer, Weight of, see Evidence, 2305. 
 
 Of Health by Medical Examiner, Estoppel 
 by, see Insurance, 808. 
 
 Of Loss, see Insurance, 920. 
 
 Of Indebtedness, Interest on, see Interest, 2, 
 68, 69, 94. 
 
 For Sale of Liquor, see Intoxicating Liquors, 
 II.
 
 CERTIFICATE OF DEPOSIT CERTIORARI, I. a. 
 
 435 
 
 Of City as Part of Indebtedness, see Munici- 
 pal Corporation, 362, 363. 
 
 Of Presiding Officer of Senate, see Parlia- 
 mentary Law, 13. 
 
 Of Settler on Public Lands, see Public 
 Lands, 10-12. 
 
 Of Proper Record of Deed, see Real Prop- 
 erty, 66. 
 
 Of Receivers, see Receivers, III. 
 
 Of School Teacher, see Schools, 38, 39, 58. 
 
 By Secretary of State, see Secretary of 
 State, 1. 
 
 As to Passage of Act, see Statutes, 130, 137. 
 
 As to Unpaid Taxes, see Taxes, 506. 
 
 Rights of Holder of Tax Certificate, see 
 Taxes, 508. 
 
 Of Trust, see Trusts, VI. 
 
 Of Weight of Grain Delivered from Elevator, 
 see Weights. 
 
 CERTIFICATE OF DEPOSIT. 
 
 See Banks, IV. a, 4. 
 
 CERTIFICATION. 
 
 Of Check, see Checks, III. 
 
 Of Service of Process, see Writ and Process, 
 
 83. 
 See also Cases Certified. 
 
 Editorial Notes. 
 
 Parol certification of check. 7:428.* 
 Effect of certification of check. 12:492.* 
 On liability of drawer. 16:510. 
 
 CERTIFIED CHECK. 
 
 Acceptance of, as Notification, see Nova- 
 tion, 2. 
 
 As Payment, see Payment, 18. 
 Tender of, see Tender, 6. 
 See also Checks, HI. 
 
 CERTIFIED COPY. 
 
 Fee of Clerk for, see Clerks, 16. 
 As Evidence, see Evidence, 794-799. 
 
 CERTIFIED QUESTIONS. 
 
 See Cases Certified. 
 
 CERTIORARI. 
 
 I. Jurisdiction; Use of Writ Generally. 
 
 a. In General. 
 
 b. Existence of Other Remedy. 
 
 II. Procedure; Hearing; Determination. 
 III. Editorial Notes. 
 
 To Complete Record on Appeal, see Appeal 
 
 and Error, 169, 177. 
 Who Entitled to Costs on, see Appeal and 
 
 Error, 1222. 
 
 In Contempt Case, see Contempt, 72. 
 Original Jurisdiction of Appellate Court, see 
 
 Courts, II. a, 2; VI. 9. 
 Conclusiveness of Judgment on Demurrer to 
 
 Petition for, see Judgment, 103. 
 Setting Aside Order on, see Motions and 
 
 Orders, 8. 
 Notice in, by Telegram, see Telegraphs, 42. 
 
 I. Jurisdiction; Use of Writ Generally, 
 a. In General. 
 
 For Editorial Notes, see infra, HI. 
 
 1-2. A writ of certiorari does not lie to 
 review a decision of a question of fact upon 
 evidence heard. Devlin v. Dalton, 171 Mass. 
 338, 50 N. E. 632, 41 : 379 
 
 3. "Sufficient cause" for a writ of cer- 
 tiorari, as provided by Tenn. Const, art. 6, 
 10, must be defined, either by statute or 
 judicial decision, and does not exist for the 
 purpose of reviewing a decision on the mer- 
 its, except where the writ lies as a substi- 
 tute for an appeal or writ of error, or, possi- 
 bly, instead of audita querela. Tomlinson 
 v. Board of Equalization, 88 Tenn. 1, 12 
 S. W. 414, 417, 6: 207 
 
 4. The determination of the board of state 
 canvassers and the proclamation of the 
 governor that proposed amendments to the 
 Constitution had been adopted, made in pur- 
 suance of the duty with which they were 
 charged by the legislature, are subject to 
 review by the supreme court by certiorari 
 at the instance of a citizen of the state. 
 State, Bott, Prosecutor, v. Wurts (N. J. 
 Err. & App.) 63 N. J. L. 289, 43 Atl. 744, 
 881, 45: 251 
 
 5-6. Certiorari will not be granted to re- 
 view the action of a municipal corporation 
 in fixing water rates merely because the 
 schedule did not originate with the execu- 
 tive board as required by charter, where it 
 is not inequitable, and has received the 
 approval of the legislative department, 
 whose approval would have been necessary 
 had it originated in the manner pointed 
 out by statute, and the irregularity may be 
 cured by ordinary means. State ex rel. 
 Hallauer v. Gosnell. 116 Wis. 606, 93 N. W. 
 542, 61 : 33 
 
 To review judicial decisions generally. 
 Original Jurisdiction of Appellate Court, see 
 
 Courts, 277, 278. 
 See also infra, 24, 40. 
 
 7. A writ of certiorari may be issued to 
 compel the sending to the supreme court of 
 the record of proceedings in a trial court, 
 which is necessary for the information of 
 the supreme court upon the question of the 
 issuance of a writ of mandamus to compel 
 the trial court to accord suitors a statutory 
 right which it has denied them. State ex 
 rel. Fourth Nat. Bank v. Johnson, 103 Wis. 
 591, 79 N. W. 1081, 51: 33
 
 436 
 
 CEliTiOHAUI, I. b. 
 
 In criminal case. 
 
 >;ae also infra, 27, 41. 
 
 8. Certiorari is the proper remedy where 
 a person is denied a public trial in a crim- 
 inal case by exclusion of citizens while seats 
 for spectators were vacant, as those facts 
 could not be presented by a bill of excep- 
 tions. People v. Murray, 89 Mich. 276, 50 
 X. W. 995, 14: 809 
 To review decision of military tribunals. . 
 
 9. Certiorari will not lie to review the de- 
 cision of a board of military examiners re- 
 specting the competency of a person to be 
 a militia officer, as the proceedings of the 
 board are not judicial. Devlin v. Dalton, 
 171 Mass. 338, 50 N. E. 632, 41:379 
 
 10. No implied exception from the pro- 
 visions of a statute authorizing the use of 
 the common-law writ of Certiorari when 
 not expressly forbidden by statute can be 
 made in case of the decisions of state mili- 
 tary tribunals in proceedings for the disci- 
 pline of militia officers in time of peace, on 
 the ground that if civil courts were per- 
 mitted to interfere with the judgment of 
 military courts the discipline of the militia 
 might be injured. People ex rel. Smith v. 
 Hoffman, 166 N. Y. 462, 60 N. E. 187, 
 
 54:597 
 
 11. A military examining board provided 
 by the Constitution and statutes to deter- 
 mine the moral character, capacity, or gen- 
 eral fitness for office of officers of the mili- 
 tia, and having within its jurisdiction the 
 powers of a court-martial, and upon whose 
 findings the governor may dismiss an officer 
 from the service, is a judicial body whose 
 determination may be reviewed by a com- 
 mon-law writ of certiorari. Id. 
 Decision of board of health. 
 
 12. The decision of a board of health 
 condemning an alleged nuisance is not re- 
 viewable by certiorari, where the board is 
 not obliged to hear any party, but may act 
 upon its own inspection and knowledge. 
 People ex rel. Copcutt v. Yonkers Bd. of 
 Health, 140 N. Y. 1, 35 N. E. 320, 23: 481 
 In highway matters. 
 
 See also infra, 19. 
 
 13. One who is injured by an order dis- 
 continuinsr a portion of a 'highway only in 
 the same manner as the rest of the com- 
 munity, although in greater degree, has no 
 standing to be heard individually on a writ 
 of certiorari to review the order. Davis v. 
 Hampshire County, 153 Mass. 218, 26 N. E. 
 848, 11:750 
 
 14. The owners of the fee simple of land 
 in a street may prosecute a certiorari to test 
 the legality of a municipal ordinance pur- 
 porting to authorize a railway company to 
 place rails, poles, and wires on their land 
 in the street. State ex rel. Kennelly v. 
 Jersey City (N. J. Sup.) 57 N. J. L. 293, 
 30 Atl. 531, 26: 281 
 Tax or assessment matters; public improve- 
 ments. 
 
 See also infra, 39. 
 
 lo. Writs of certiorari to quash proceed- 
 ings of county commissioners acting as 
 boards of appeal from decisions of tax as- 
 sessor-; nre not usually issued for mere mis- 
 
 takes in the admission of evidence, when 
 substantial justice appears to have been 
 done. Lowell v. Middlesex County, 152 
 Mass. 372, 25 N. E. 469, 9: 356 
 
 16. A writ of certiorari cannot be de- 
 manded by a complaining taxpayer to re- 
 view on the merits the action of a board 
 of equalization, under Tenn. act March 25, 
 1887, which declares that the action of the 
 board shall be final. Tomlinson v. Board 
 of Equalization, 88 Tenn. 1, 12 S. W. 414, 
 417, 6: 207 
 
 17. The proceedings of a public improve- 
 ment commission in awarding a contract 
 for street improvement are not reviewable 
 by certiorari. People ex rel. North v. 
 Featherstonhaugh, 172 N. Y. 112, 64 N. E. 
 802, 60: 768 
 
 18. Certiorari is a proper remedy to try 
 the question whether an assessment for 
 local improvements is invalid for any rea- 
 son disclosed by the record, or because of 
 the unconstitutionality of the statute under 
 which it is made. Weed v. Boston, 172 
 Mass. 28, 51 N. E. 204, 42: 642 
 
 b. Existence of Other Remedy. 
 
 See also infra, 43. 
 
 19. An action for damages, and not a re- 
 view by certiorari, is the appropriate remedy 
 of an owner of property abutting on a high- 
 way which is validly closed by the munici- 
 pal authorities. Borghart v. Cedar Rapids, 
 126 Iowa, 313, 101 N. W. 1120, 68: 306 
 
 20. A writ of certiorari is properly issued 
 upon the affidavit of the attorney general, 
 to review the acts of the county commis- 
 sioners of an organized county in establish- 
 ing voting precincts and appointing judges 
 and places for holding elections in unor- 
 ganized counties attached for judicial pur- 
 poses, alleged to have been in violation of 
 the election laws, thereby causing an injury 
 to the rights and elective franchises of all 
 the citizens of the state, as there is no other 
 plain, speedy, and adequate remedy. State 
 ex rel. Dollard v. Hughes County, 1 S. D. 
 292, 46 N. W. 1127, 10: 588 
 Appeal or error. 
 
 For Editorial Notes, see infra, IIL 
 
 21. A remedy by appeal or writ of error 
 is not sufficient to bar certiorari, unless it is 
 adequate to meet the necessities of the case. 
 State ex rel. Hamilton v. Guinotte, 156 
 Mo. 513, 57 S. W. 281, 50: 787 
 
 22. An adequate remedy by appeal which 
 will bar certiorari is a remedy which is 
 equally beneficial, speedy, and sufficient; 
 not merely a remedy which at some time in 
 the future will bring about a reversal of 
 the judgment complained of, but a remedy 
 which will promptly relieve the petitioner 
 from the injurious effects of that judgment 
 and the acts of the inferior court or 
 tribunal. Id. 
 
 23. The appeal which, under Code Civ. 
 Proc. 2122, will preclude review by writ 
 of certioiari, means one that can be 
 brought, argued, and heard as matter of 
 right, and not a secret review of a judg
 
 CERTIORARI, II. 
 
 487 
 
 ment, as of that of a military examining 
 board, the existence of which cannot be 
 known to the defeated party until after the 
 review has been made and tne judgment ex- 
 ecuted. People ex rel. Smith v. Hoffman, 
 166 N. Y. 462, 60 N. E. 187, 54: 597 
 
 24. Certiorari lies to review the action of 
 a justice of the peace without jurisdiction 
 in issuing a search warrant not authorized 
 by statute, even if there is also a remedy 
 by appeal. White v. Wagar, 185 111. 195, 
 57 N. E. 26, 50: 60 
 
 25. The other remedy which will prevent 
 certiorari, under Dak. Lomp. Laws, 5507, 
 must be one which, like appeal or writ of 
 error, will enable the relator to annul the 
 proceeding complained of as void, and does 
 not include the mere right to sue an officer 
 for acting under a void order. Re Enderlin 
 State Bank, 4 N. D. 319, 58 N. W. 514, 
 
 26: 593 
 
 26. Certiorari will not lie tb quash a 
 judgment denying the right to condemn 
 property in eminent domain proceedings, for 
 errors which may be corrected by appeal or 
 writ of error, although the latter remedies 
 are inadequate because too slow. State ex 
 rel. Kansas & T. Coal Ry. v. Shelton, 154 
 Mo. 670, 55 S. W. 1008, 50: 798 
 In criminal case. 
 
 27. The quashing of the proceedings on 
 appeal from a conviction may be reviewed 
 by certiorari as well as by mandamus. Grand 
 Rapids v. Braudy, 105 Mich. 670, 64 N. W. 
 29, 32: 116 
 
 II. Procedure; Hearing; Determination. 
 
 28. A writ of restitution will issue from 
 the supreme court of North Dakota on en- 
 tering judgment on certiorari holding an 
 order for the surrender of property by the 
 sheriff to be void, as no mandate for judg- 
 ment is sent down in such a case and the 
 lower court is without jurisdiction to act. 
 Re Enderlin State Bank, 4 N. D. 319, 58 
 N. W. 514, 26: 593 
 Time. 
 
 29. Application for certiorari is not pre- 
 mature, where a sheriff is ordered to sur- 
 render property to an assignee, merely 
 because the assignee is directed by the order 
 to hold the property until the validity of 
 the assignment is de* Trained or until fur- 
 ther order of the court. Re Enderlin State 
 Bank, 4 N. D. 319, 58 N. W. 514, 26: 593 
 Parties. 
 
 See also supra, 4, 13, 14, 20; infra, 34-36. 
 
 30. The governor is not a proper party to 
 a writ of certiorari to review a determina- 
 tion of a military examining board as to 
 the fitness of a militia officer for his office. 
 People ex rel. Smith v. Hoffman, 166 N. Y. 
 462, 60 N. E. 187, 54: 597 
 
 31. The plaintiff in an attachment suit is 
 the person beneficially interested, within 
 Dak. Comp. Laws, 5508, for the purpose of 
 a certiorari to set aside an order directing 
 the sheriff to surrender the attached prop- 
 
 erty. Re Enderlin State Bank, 4 N. D. 319, 
 58 N. W. 514, 26: 593 
 
 Petition. 
 
 32. Points made in a petition for cer- 
 tiorari, not verified by the answer of the 
 trial judge, present nothing for determina- 
 tion either by the superior or the supreme 
 court. Fitts v. Atlanta, 121 Ga. 567, 49 S. E. 
 793, 67:803 
 Notice. 
 
 33. A message containing a proper notice, 
 and signed by plaintiff in certiorari, or by 
 another as his attorney, sent by telegraph 
 and properly delivered in writing, is a suf- 
 ficient notice, within the meaning of a law 
 requiring plaintiff in certiorari to cause 
 written notice of the sanction of the writ, 
 and of the time and place of hearing, to be 
 given the defendant therein. Western U. 
 Teleg. Co. v. Bailey, 115 Ga. 725, 42 S. E. 
 89, 61:933 
 Affidavit. 
 
 See also supra, 20; infra, 38. 
 
 34. An affidavit for a writ of certiorari 
 to determine judicial questions affecting the 
 sovereignty of the state, its franchises or 
 prerogatives, or the liberties of its people, 
 made by the attorney general in behalf of 
 the state, is made by a party "beneficially 
 interested." State ex rel. Dollard v. Hughes 
 County, 1 S. D. 292, 46 N. W. 1127, 10: 588 
 
 35. The power and authority to make an 
 affidavit for a writ of certiorari to deter- 
 mine judicial questions affecting the sov- 
 ereignty, franchises, or prerogatives of the 
 state, or the liberties of its people, and to 
 apply for and prosecute such writ for the 
 review of questions involved, are inherent in 
 the office of the attorney general upon prin- 
 ciples of general law, and do not depend 
 upon express statute. Id. 
 Assignment of error. 
 
 36. An assignment of error on petition 
 for certiorari, that the trial court erred in 
 overruling objections to the testimony of 
 certain witnesses upon designated subjects, 
 without setting forth, either literally or in 
 substance, the testimony to which the ob- 
 jections were made, is not well taken. Fitts 
 v. Atlanta, 121 Ga. 567, 49 S. E. 793, 
 
 67: 803 
 Bill of exceptions. 
 
 37. On certiorari to a district court by 
 statute, where the amount in controversy 
 exceeds $200, there should be a bill of ex- 
 ceptions sealed by the judge. Larkin v. 
 Hecksher (N. J. Sup.) 51 N. J. L. 133, 16 
 Atl. 703, 3: 137 
 Nature and extent of review. 
 
 38. Neither affidavit nor proofs of any 
 kind contradicting the return can be con- 
 sidered in determining a common-law cer- 
 tiorari proceeding, but this must be deter- 
 mined upon the record made by the petition 
 for the writ and the return thereto. State 
 ex rel. Ellis v. Thome, 112 Wis. 81, 87 N. W. 
 797, 55:956 
 
 39. The court cannot, on certiorari to re- 
 view an assessment upon property benefited 
 for the cost of a street improvement, go 
 behind a finding that the property assessed 
 was all that was benefited beyond the gen-
 
 438 
 
 CERTIORARI, III. CHAMPERTY AND MAINTENANCE, L 
 
 eral advantage to the real estate in the city. 
 Sears v. Boston Street Comrs. 180 Mass. 
 274, 62 N. E. 397, 62: 144 
 
 40. Certiorari lies only to ascertain the 
 validity of judicial proceedings on their face, 
 and, when questioned, the jurisdiction of 
 the court entertaining them; it cannot serve 
 to review a judgment. State ex rel. Ma- 
 tranga v. Marr, 42 La. Ann. 1089, 8 So. 277, 
 
 10: 248 
 
 41. On a -writ of certiorari allowed with 
 the writ of habeas corpus to bring up a 
 warrant for the execution of a prisoner, pur- 
 porting to be issued by the executive de- 
 partment of the state government under 
 authority of N. J. act April 16, 1846, the 
 court will adjudge whether such warrant is 
 valid. State, Clifford, Prosecutor, v. Heller, 
 <N. J. Sup.) 63 N. J. L. 105, 42 Atl. 155, 
 
 57: 312 
 
 42. An examination of the evidence may 
 be made on certiorari for the purpose of de- 
 termining the claim that the court exceeded 
 its power. McClatchy v. Sacramento Coun- 
 ty Super. Ct. 119 Cal. 413, 51 Pac. 696, 
 
 39: 691 
 
 43. A writ of certiorari issued under Dak. 
 Comp. Laws, 5507, will bring before the 
 court for review the proceedings of county 
 commissioners in respect to acts complained 
 of as in excess of the jurisdiction of such 
 board, where there is, in the judgment of 
 the court, no other, plain, speedy, and ade- 
 quate remedy. State ex rel. Dollard v. 
 Hughes County. 1 S. D. 292, 46 N. W. 
 1127, 10: 588 
 
 III. Editorial Notes. 
 
 In exercise of superintending control over 
 
 inferior courts. 51 : 33. 
 To review excessive sentence. 45:158. 
 Use of writ; to review habeas corpus. 10: 
 
 248.* 
 Form of judgment on certiorari bond. 62: 
 
 446. 
 Penalty as limit of liability on bond. 55: 
 
 388. 
 
 Exceptions to the rule that certiorari will 
 not lie where there is an 
 appeal. 50:787. 
 Generally. 50:787. 
 When exigency of the case calls for the 
 
 remedy. * 50: 789. 
 
 When remedy by appeal is un- 
 doubted. 50:789. 
 
 Where the remedies are cumulat- 
 ive. 50:793. 
 
 .Want of jurisdiction. 50:794. 
 Where appeal is a trial de novo. 
 
 50:795. 
 
 Constitutional grants and legislative en- 
 croachments. 50 : 798. 
 From United States Supreme Court to 
 circuit court of appeals. 
 50:801. 
 
 CESS POOLS. 
 Editorial Notes. 
 
 Liability of landlord to third persons as to. 
 26:201. 
 
 CHAIN GANG. 
 See Criminal Law, 192, 225, 228. 
 
 CHALLENGE. 
 
 Of Voter, see Elections, 78-83. 
 To Jurors, see Jury, n. 
 
 CHAMBER OF COMMERCE. 
 
 Editorial Notes. 
 
 Review of decisions of, against members. 
 49:358, 361,364. 
 
 CHAMPERTY AND MAINTENANCE. 
 
 I. In General. 
 II. Agreements between Attorney and 
 
 Client. 
 UL Purchase of Realty in Third Person's 
 
 Possession. 
 IV. Editorial Notes. 
 
 Assignment of Bare Right to File Bill in 
 
 Equity as, see Assignment, 3. 
 Necessity of Pleading, see Pleading, 489. 
 
 I. In General. 
 
 1. A champertous contract being void, the 
 right of recovery on an existing indebted- 
 ness in relation to, or as security for, which 
 the contract was entered into, cannot be af- 
 fected thereby. Boone v. Clark, 129 111. 466, 
 21 N. E. 850, 5:276 
 
 2. Champerty is illegal, independent of 
 statute, and the English statutes of Edw. I. 
 and in. and 32 Hen. Vlll. on this subject 
 were merely declaratory of the common law. 
 Johnson v. Van Wyck, 4 App. D. C. 294, 
 
 41 : 520 
 
 3. The fact that a champertous trust is in 
 part for the benefit of the heirs of one who 
 conveyed land in consideration of a share 
 of the prospective recovery in champertous 
 litigation will not make the trustee's title 
 valid for any part of the property. Id. 
 
 4. A fair bona fide agreement by a layman 
 to supply funds to carry on a pending suit 
 in consideration of a share in the property 
 if recovered is not per se void, either on the 
 ground of champerty or of public policy. 
 Brown v. Bigne, 21 Or. 260, 28 Pac. 11, 
 
 14: 745 
 
 5. While it is permissible for a near kins- 
 man of a poor suitor, out of charity, to 
 assist him in the maintenance of his suit, 
 such kinsman cannot do so as a speculative 
 venture based upon a contract to share in 
 the proceeds in case the suitor should re- 
 cover. Re Evans, 22 Utah, 366, 62 Pac. 913, 
 
 53: 952
 
 CHAMPERTY AND MAINTENANCE, II. 
 
 439 
 
 6. It is not maintenance for several per- 
 ons who have been induced to purchase 
 stock from defendants by the same alleged 
 false and fraudulent representations and 
 conduct, to contribute to defray the ex- 
 penses of a test case to determine defend- 
 ants' liability to refund the money j>aid for 
 the stock, since they have a common interest 
 in that question. Davies v. Stowell, 78 Wis. 
 334, 47 N. W. 370, 10: 190 
 
 7. The purchase of railroad bonds from 
 litigant bondholders, pending a suit involv- 
 ing the fate of the railroad, in pursuance of 
 a plan to obtain a lease of the road to the 
 purchaser and his associates, who needed it 
 to form a connection with a road already 
 owned by them; and an agreement by the 
 purchaser to pay all expenses of the pending 
 litigation, although the bonds were not to 
 be delivered until its termination, are not 
 void for champerty because of bhe purchas- 
 er's interest in the result of the suit. Oil- 
 man v. Jones, 87 Ala. 691, 7 So. 48, 5 So. 
 785, 4: 113 
 
 n. Agreements between Attorney and Client. 
 
 As Ground for Disbarment, see Attorneys, 
 
 19. 
 Validity of Contract with Attorney as to 
 
 Compensation, see also Contracts, 413- 
 
 418. 
 Right to Recover on Champertous Contract, 
 
 see Contracts, 632. 
 For Editorial Notes, see infra, IV. 
 
 8. The purchase by an attorney from his 
 client of the subject-matter of litigation, or 
 any speculative bargain in relation thereto, 
 is presumptively invalid; and, to uphold the 
 transaction as against the client, the attor- 
 ney must prove affirmatively by evidence 
 its perfect fairness, adequacy, and equity. 
 No presumption of innocence or improba- 
 bility of wrongdoing can be considered in 
 his favor. Burnham v. Heselton, 82 Me. 
 495, 20 Atl. 80, 9: 90 
 
 9. The rule that Champerty in an inci- 
 dental contract will not defeat title does not 
 apply so as to allow a recovery of land by 
 a trustee whose title is derived through 
 champertous conveyances which have a 
 merely nominal consideration aside from 
 champertous agreements to prosecute suits 
 for the property at the expense of the vari- 
 ous grantees. Johnson v. Van Wyck, 4 App. 
 D. C. 294, 41 : 520 
 
 10. An agreement between attorney and 
 client about to begin suit upon a sheriff's 
 bond for his failure to pay over money as 
 directed by a judgment, that the attorney 
 shall have the statutory penalty for the 
 default as his compensation after the client 
 receives his claim in full, is not void for 
 champerty, and will not be set aside merely 
 because it did not bring the client the antici- 
 pated results. Davis v. Webber, 66 Ark. 
 190, 49 S. W. 822, 45: 196 
 For contingent fee. 
 
 Contract for, Generally, see Attorneys, 
 65-69. 
 
 11. An agreement by an attorney to 
 prosecute a suit entirely at his own ex- 
 pense, in consideration of one half of the 
 recovery, is champertous. Johnson v. Van 
 Wyck, 4 App. D. C. 294, 41:520 
 
 12. The law of champerty does not apply 
 to a contract by an attorney at law for the 
 prosecution of a claim before the Court of 
 Commissioners of Alabama Claims, for a 
 contingent fee payable out of the award. 
 Manning v. Sprague, 148 Mass. 18, 18 N. E. 
 673, 1 : 516 
 
 13. The common-law rule as to champer- 
 tous agreements between attorneys and cli- 
 ents is modified by Utah Comp. Laws 1888, 
 3683, providing that the measure and 
 mode of compensation of attorneys and 
 counselors at law shall be left to the agree- 
 ment, express or implied, of the parties; 
 and under that section it is competent for 
 the attorney and client to agree that the 
 former's compensation shall be contingent 
 upon success, and payable, by percentage or 
 otherwise, out of the proceeds of the litiga- 
 tion; but it is not competent to agree that 
 the attorney shall pay the advance fees and 
 costs of the suit thereafter to be com- 
 menced. Croco v. Oregon Short-Line R. Co. 
 18 Utah, 311, 54 Pac. 985, 44: 285 
 For payment of costs and expenses by at- 
 torney. 
 
 14. A stipulation, in a contract between 
 attorneys and client, for the payment by 
 the attorneys of the costs of the litigation, 
 is against public policy, champertous, il- 
 legal, and void. Re Evans, 22 Utah, 366, 
 62 Pac. 913, 53: 952 
 
 15. An agreement by which an attorney is 
 to bear the costs and expenses of litigation, 
 in consideration of an interest in the re- 
 covery, is champertous and void. Geer v. 
 Frank, 179 HI. 570, 53 N. E. 965. 45: 110 
 
 16. An agreement by an attorney to ad- 
 vance the costs and expenses of collecting a 
 judgment which he has obtained for a client, 
 of which one half only shall be repaid in 
 case of failure to make the collection, in 
 consideration of which he is to have one half 
 the net proceeds of the judgment in case of 
 success, is not unlawful on the ground of 
 champerty. Reece v. Kyle, 49 Ohio St. 
 476, 31 N. E. 747, 16: 723 
 
 17. A contract giving each of two attor- 
 neys an interest in the subject-matter of 
 litigation, in consideration of the legal serv- 
 ices to be performed by each of them, and 
 also of the payment of the cost and ex- 
 penses of litigation by one of them, is void 
 as to both because of the illegal provision 
 as to the payment of costs and expenses by 
 one of them. Geer v. Frank, 179 111. 570, 
 53 N. E. 965, 45: 110 
 Champerty as defense. 
 
 For Editorial Notes, see infra, IV. 
 
 18. Defendant cannot avail himself, as a 
 defense, of the champertous character of a 
 contract between the plaintiff and his at- 
 torney with reference to the prosecution of 
 the suit. Croco v. Oregon Short-Line R. Co. 
 18 Utah, 311, 54 Pac. 985, 44: 285 
 
 19. The champertous agreement between 
 a plaintiff and his attorney for the prosecu-
 
 440 
 
 CHAMPERTY AND MAINTENANCE, III CHARITIES. 
 
 tion of a suit constitutes no defense to the 
 suit. Pennsylvania Co. v. Lombardo, 49 
 Ohio St. 1, 29 N. E. 573, 14: 785 
 
 III. Purchase of Realty in Third Person's 
 Possession. 
 
 Champertous Deed as Cloud on Title, see 
 
 Cloud on Title, 8. 
 For Editorial Notes, see infra, IV. 
 
 20. A conveyance by the administrator of 
 land, of which one holding a bond for title 
 from his intestate is in possession, is void 
 as being a conveyance of land held ad- 
 versely. Heard v. Phillips, 101 Ga. 691, 
 31 S. E. 216, 44: 369 
 
 21. A deed of a tract of land by one in 
 possession of only a part of it, at a time 
 when third persons were in possession of 
 the greater portion claiming under a supe- 
 rior title, is not absolutely void under the 
 champerty statute, but only voidable at the 
 instance of the parties in adverse possession. 
 Fort Jefferson Improv. Co. v. Dupoyster, 108 
 Ky. 792, 51 S. W. 810, 48: 537 
 
 22. A deed to one who purchases when a 
 portion of the tract is in adverse possession 
 of third persons cannot be attacked by his 
 vendee after the former has purchased in 
 the outstanding title, to avoid taking the 
 title tendered under the contract. Id. 
 
 I\ 7 . Editorial Notes. 
 
 Modification of common-law doctrine. 4: 
 113.* 
 
 Collateral champerty as a defense. 14:785. 
 
 Contract between attorney and client. 1: 
 516* 
 
 Prohibition of purchase of choses in action 
 by attorney. 9:91.* 
 
 Assignment of claim to attorney. 9:92.* 
 
 Right of attorney to purchase adverse title. 
 9:92.* 
 
 Champertous contracts of laymen. 14:745. 
 For prosecution of suits. 14:745. 
 For defense of suits. 14: 746. 
 Contemplated litigation as an element. 
 14:746. 
 
 Effect of interest; relationship. 14:747. 
 
 Maintenance defined; assisting litigant, con- 
 tract for, void. 10 : 190.* 
 
 CHANGE. 
 
 On Payment of Street Car Fare, see Car- 
 riers, 644-649. 
 
 Of Grade, see Eminent Domain, 378-389; 
 Highways, 198-203: Injunction, 383- 
 385. 
 
 Of Venue, see Venue. II. 
 
 CHARACTER. 
 
 Good Character as Justification for Carrying 
 Weapon, see Constitutional Law, 613. 
 
 Burden of Proof as to, see Evidence, 761. 
 
 Presumption from Failure to put in Issue, 
 see Evidence, 399. 
 
 Proof of, see Evidence, XI. c. 
 
 Libelous Charges Affecting, see Libel and 
 Slander, II. b. 
 
 Instruction as to, see Trial, 867. 
 
 Editorial Notes. 
 
 Presumption of good character of accused. 
 20:609. 
 
 CHARGES. 
 
 For Freight, see Carriers, II. b, 6. 
 On Realty, see Wills, ILL' k. 
 
 CHAPEL. 
 
 Charitable Gift for Erection of, see Chari- 
 ties. 127. 
 
 CHARITABLE INSTITUTIONS. 
 
 Forgery of Registered Securities by Treas- 
 urer of, see Corporations, 238. 
 Commitment of Infants to, see Infants, 42. 
 See also Charities. 
 
 1. The grant of power to a public corpora- 
 tion created by Congress to administer a 
 public charity, to sue and be sued at law 
 and in equity, applies to such matters only 
 as are within the scope of its other corporate 
 powers, and does not authorize such cor- 
 poration to be sued for tort. Overholser 
 v. National Home for Disabled Volunteer 
 Soldiers, 68 Ohio St. 236, 67 N. E. 487, 
 
 62: 936 
 
 2. The National Home for Disabled Volun- 
 teer Soldiers is a corporation created by 
 Congress for the purpose of performing an 
 appropriate and constitutional function of 
 the Federal government, and for national 
 purposes only; and as such it is a part of 
 the government of the United States, and 
 cannot be sued in an action sounding in tort. 
 
 Id. 
 
 CHARITIES. 
 
 1. Nature and Validity. 
 
 a. In General. 
 
 b. What are Charities. 
 
 c. Conditions; Capacity of Trustees 
 
 or Beneficiaries. 
 
 d. Definiteness; Discretion of Trustee, 
 n. Enforcement; Control; Forfeiture. 
 
 a. In General. 
 
 b. Cy Pres Doctrine. 
 
 c. Liability for Damages, 
 m. Editorial Notes. 
 
 Charitable Institutions, see Charitable In- 
 stitutions. 
 
 Impairment of Contract in Gift to. see Con- 
 stitutional Law, 1133, 1134.
 
 CHARITIES, I, a, b. 
 
 441 
 
 Implied Contract in Gift to, see Contracts, 
 5, 6. 
 
 Deed for, eee Deeds, 50. 
 
 Right to Take Money under Power of Emi- 
 nent Domain, see Eminent Domain, 66. 
 
 Judicial Notice of, see Evidence, 151. 
 
 Parol Proof of Charitable Trust, see Evi- 
 dence, 1208. 
 
 Guardian's Right to Minor's Share in Fire- 
 men's Fund, see Guardian and Ward, 9. 
 
 As to Gifts for Masses, see Masses. 
 
 Parties in Action as to, see Parties, 133. 
 
 Rule of Perpetuities as to, see Perpetuities, 
 IV.; V. 
 
 Liability to Assessments for Public Im- 
 provements, see Public Improvements, 
 9/-101. 
 
 Use of Public Funds for, see Public Moneys, 
 29-33, 48. 
 
 As to State University, see State Universi- 
 ties. 
 
 Works of, on Sunday, see Sunday,* m. b. 
 
 Tax on Gifts to, see Taxes, 610-613. 
 
 Exemption of, from Taxation, see Taxes, I. 
 f, 3; VI. 8. 
 
 Creation of Trust in Favor of Religious So- 
 ciety, see Trusts, 11-14. 
 
 Liability of Trust Funds for Torts of Trus- 
 tees, see Trusts, 200. 
 
 Effect of Termination of Corporate Exist- 
 ence after Execution of Will, see Wills, 
 146. 
 
 Lapse of Charitable Bequest, see Wills, 441. 
 
 Limitation on Amount of Charitable Be- 
 quests, see Wills, HI. d. 
 
 I. Nature and Validity, 
 a. In General. 
 
 Validating Indefinite Trust, see Constitu- 
 tional Law, 136. 
 
 1-2. The common-law system of trusts 
 for charitable uses did not originate with, 
 nor is it dependent upon, the statute of 
 43 Eliz. chap. 4. Harrington v. Pier, 105 
 Wis. 485, 82 N. W. 345, 50: 307 
 
 3. The statute of charitable uses (43 
 Eliz.), while not in force as a statute in 
 Pennsylvania, is embodied, as to its prin- 
 ciples, in the common law of that state. 
 Philadelphia Fire Ins. Patrol v. Boyd, 120 
 Pa. 624, 15 Atl. 553, 1:417 
 
 4. The statute of 43 Elizabeth, whether it 
 was ever in force in Virginia, or not, is of 
 no effect in determining the validity of a 
 gift for charitable uses. Presbyterian Gen- 
 eral Assembly v. Guthrie, 86 Va. 125, 10 S. 
 E. 318, . 6: 321 
 
 5. A trust for a particular and valdd 
 charitable purpose, as distinguished from a 
 bequest in trust for charity generally, was 
 sustained in chancery, before the statute of 
 Elizabeth, solely by the judicial power of 
 the court, and to that extent such statute 
 was merely confirmatory of the common 
 law; and to the same extent such statute 
 was adopted as a part of the common law of 
 this country, and prevails in Wisconsin. 
 
 Harrington v. Pier, 105 Wis. 485, 82 N. W. 
 345, 50: 307 
 
 6. Charitable uses are not exempt from 
 the provisions of 1 N. Y. Rev. Stat. p. 727, 
 45, abolishing uses and trusts except such 
 as are authorized thereby. People v. Pow- 
 ers, 147 N. Y. 104, 41 N. E. 432, 35: 502 
 
 7. The statute of charitable uses of 43 
 Eliz. is not abrogated in Illinois by 111. Rev. 
 Stat. chap. 23, providing for state charitable 
 institutions. Crerar v. Williams, 145 111. 
 625, 34 N. E. 467, 21 : 454 
 
 8. The English law of charitable uses 
 never became a part of the law of New 
 York, and the validity of trusts for objects 
 which were denominated "charitable" under 
 the English law are in that state governed 
 by the same rules by which the validity of 
 trusts for other purposes is determined. 
 Cottman v. Grace, 112 N. Y. 299, 19 N. E. 
 839, 3: 145 
 
 9. Charities for religious purposes are not 
 against the policy of the law in Virginia. 
 Presbyterian General Assembly v. Guthrie, 
 86 Va. 125, 10 S. E. 318, 6: 321 
 Partial invalidity. 
 
 10. The whole trust fails where an un- 
 ascertainable portion thereof is given on a 
 void trust, although the remainder is given 
 on a trust that is valid. Kelly v. Nichols, 
 18 R. I. 62, 25 Atl. 840, 19: 413 
 
 11. A direction in a will "to use a part" 
 of the estate for reprinting and circulating 
 certain religious books, as the means in the 
 hands of the trustees "shall increase and 
 allow it," must fail where the other trusts 
 created by the will are invalid. The whole 
 estate cannot be applied to this purpose, 
 and the amount applicable thereto is un- 
 ascertainable. Id. 
 
 b. What are Charities. 
 
 As to Bequest for Masses, see Masses. 
 
 See also infra, 131, 133, 138. 
 
 For Editorial Notes, see infra, III. 1. 
 
 12. Any work within the spirit, in its 
 broadest sense, of the statute of 43 Eliz. 
 chap. 4, including whatever promotes in a 
 legitimate way the comfort, improvement, 
 or happiness of an indefinite number of per- 
 sons from among the people as a whole, or 
 a designated class thereof, is the proper 
 subject for a trust for a charitable use. 
 Harrington v. Pier, 105 Wis. 485, 82 N. W. 
 345, 50: 307 
 
 13. The test of a legal public charity is, 
 by right, to be obtained in the motives of 
 the donors of the funds. Philadelphia Fire 
 Ins. Patrol v. Boyd, 120 Pa. 624, 15 Atl. 
 553, 1 : 417 
 
 14. A charitable trust in the legal sense 
 is one which originates from a gift, and 
 which limits its property to any public use 
 to which it is lawful to devote property for- 
 ever. Webster v. Wiggin, 19 R. I. 73, 31 
 Atl. 824, 28: 510 
 
 15. The immediate and unconditional de- 
 votion of a fund to charity, and not the 
 time or manner of the administration or dis-
 
 442 
 
 CHARITIES; i. b. 
 
 tribution of the fund, is the test of the 
 validity of its creation. Id. 
 
 16. A charitable trust is one of which the 
 courts will take cognizance and assume con- 
 trol for the purpose of preventing its abuse, 
 perversion, or destruction. Mannix v. Pur- 
 cell, 46 Ohio St. 102, 19 N. E. 572, 2: 753 
 Gifts for temperance work. 
 
 17. The beauest of three fourths of the 
 net estate to trustees to expend in temper- 
 ance work in a certain city is a valid be- 
 quest for a charitable use. Harrington v. 
 Pier, 105 Wis. 485, 82 N. W. 345, 50: 307 
 For tenements. 
 
 18. A trust for the erection of convenient 
 and healthful tenements for the laboring 
 classes, and their maintenance in proper re- 
 pair and in a clean and tidy condition, pro- 
 viding that no intemperate, disorderly, or 
 filthy person shall be allowed to occupy 
 them, although they are to be let to labor- 
 ers for rent, and not gratuitously furnished 
 to them, creates a charity. Webster v. 
 Wiggin, 19 R. I. 73, 31 Atl. 824, 28: 510 
 For insurance patrol. 
 
 19. The fire insurance patrol of Philadel- 
 phia a corporation supported by the volun- 
 tary contributions of insurance companies, 
 whose object is the saving of life and prop- 
 erty in or near burning buildings, and which 
 has no capital and makes no dividends is. a 
 public charity. Philadelphia Fire Ins. Pa- 
 trol v. Boyd, 120 Pa. 624, 15 Atl. 553, 1 : 417 
 For hospitality. 
 
 20. A trust to keep testator's house open 
 for the entertainment of ministers and oth- 
 ers of his faith "traveling in the service of 
 truth," being merely for hospitality, al- 
 though the purpose may have been to aid 
 in spreading the truth, is not charitable. 
 Kelly v. Nichols, 18 R. I. 62, 25 Atl. 840, 
 
 19: 413 
 
 21. The custom of a society of Friends to 
 pay from its treasury for the traveling ex- 
 penses and entertainment of members does 
 not make a gift by will, by a member of 
 the society, in trust to keep his house open 
 for the reception and entertainment of all 
 of his faith "traveling to meetings or other- 
 wise in the service of truth," a religious or 
 charitable trust, or anything more than a, 
 gift for hospitality, which cannot be sus- 
 tained as a charitable trust. Id. 
 For art. 
 
 22. A bequest is a lawful charity in every 
 respect, where it is given for an art insti- 
 tute when established, and the income is to 
 be given, in the mean time, in annual 
 prizes for works of art. Almy v. Jones, 17 
 R. I. 265, 21 Atl. 616, 12: 414 
 For library. 
 
 See also Towns, 13. 
 
 23. A gift for a free public library in a 
 great city is charitable. Crerar v. Wil- 
 liams, 145 111. 625, 34 N. E. 467, 21 : 454 
 For education or publications. 
 
 For Editorial Notes, see infra, III. 1. 
 
 24. The education and preferment of or- 
 phans, being one of the subjects mentioned 
 by Stat. 43 Eliz. chap. 4, is to be regarded 
 as a public charity in jurisdictions where 
 
 that statute is in force. Clayton v. Hallett, 
 30 Colo. 231, 70 Pac. 429, 59:407 
 
 25. A bequest to a school township for 
 the support of common schools is a public 
 and charitable use. Skinner v. Harrison 
 Twp. 116 Ind. 139, 18 N. E. 529, 2: 137 
 
 26. A trust for the purpose of educating 
 boys and girls, but not confined to poor ones, 
 is not invalid under a constitutional provi- 
 sion limiting the creation of perpetuities to 
 eleemosynary purposes. People ex rel. El- 
 lert v. Cogswell, 113 Cal. 129, 45 Pac. 270. 
 
 35: 269 
 
 27. A gift to promote the efficiency of 
 public schools, or, in the alternative, to es- 
 tablish schools for the education of children 
 residing in tenements, is charitable. Web- 
 ster v. Wiggin, 19 R. I. 73, 31 Atl. 824, 
 
 28': 510 
 
 28. A bequest for the maintenance of free 
 public scnools is not pi-evented from being 
 a public charity by the fact that the state 
 has, for all practical purposes, provided for 
 the maintenance of free public schools for 
 all children of school age within the same 
 territory. Re John's Estate, 30 Or. 494, 
 47 Pac. 341, 36: 242 
 
 29. An institution which is educational to 
 some extent may be also a charitable insti- 
 tution within the meaning and intent of the 
 Constitution and statutes respecting chari- 
 table institutions. People ex rel. New York 
 Inst. for Blind v. Fitch, 154 N. Y. 14, 47 
 N. E. 983, 38: 591 
 
 30. The fact that an institution is subject 
 to the visitation of the superintendent of 
 public instruction is not conclusive against 
 regarding it as a charitable institution sub- 
 ject to the visitation of a board of char- 
 ities. Id. 
 
 31. An incorporated institution for the 
 blind, which has been supported and its 
 property purchased and maintained mainly 
 by appropriations from the state, although 
 it may be only an educational institution 
 so far as it educates paying pupils, is to be 
 regarded, so far as it clothes, educates, and 
 maintains indigent pupils at public expense 
 or by donations from individuals, as a char- 
 itable institution subject to the visitation 
 and the rules of the board of charities, under 
 N. Y. Laws 1895, chap. 771, and also to the 
 restriction under N. Y. Const, art. 8, 14, 
 against payments by municipalities for any 
 inmate not received and retained pursuant 
 to rules established by the state board of 
 charities. Id. 
 
 32. A bequest or devise to educate the 
 public in any branch of science by the dis- 
 semination of the works of a given author 
 is a good charitable use, provided such 
 works contain nothing hostile to religion or 
 law. George v. Braddock (N. J. Err. & 
 App.) 45 N. J. Eq. 757, 18 Atl. 881, 6: 511 
 
 33. A testamentary disposition for the 
 purpose of circulating the works of Henry 
 George upon the land question, etc., is a 
 valid charitable use. Id. 
 
 34. A trust for the publication of religious 
 books of a specified character is charitable. 
 Kelly v. Nichols, 18 R. I. 62, 25 Atl. 840, 
 
 19:413
 
 CHARITIES, I. c. 
 
 443 
 
 For care of children or old persons. 
 
 35. A legacy to the commune of Carouge, 
 canton of Geneva, Switzerland, which is 
 directed to be placed at interest, and with 
 the interest to endow annually two poor 
 girls and to give a pension to ten old per- 
 sons of the two sexes, is sustainable as a 
 legacy to pious and charitable uses. Suc- 
 cession of Meunier, 52 La. Ann. 79, 26 So. 
 776, 48: 77 
 For poor. 
 
 See also infra, 92. 
 
 36. A gift is charitable where a fund is to 
 be permanently maintained and its income 
 devoted to the relief of the poor and un- 
 fortunate, although its distribution is 
 private and to private persons. Bullard v. 
 Chandler, 149 Mass. 532, 21 N. E. 951, 5: 104 
 
 37. The word "others," in a will direct- 
 ing charitable gifts to the "poor and un- 
 fortunate whom we have aided in past 
 years, and also to others," mean's others 
 than those aided, and not others than poor 
 and unfortunate. Id. 
 For church. 
 
 38. A bequest in trust for the erection of 
 a church and of a parsonage is a charitable 
 gift. School Land Comrs. v. Wadhams, 20 
 Or. 274, 25 Pac. 720, 11:210 
 
 39. A gift for the benefit of poor churches 
 of a city and vicinity is charitable within 
 the exception to the rule of law against per- 
 petuities. McAlister v. Burgess, 161 Mass. 
 269, 37 N. E. 173, 24: 158 
 
 40. A gift to the rector, 'church wardens, 
 and vestrymen of an unincorporated reli- 
 gious society, in trust to pay the salary of 
 the rectors of the parish forever, or for 
 church purposes only, is for a charitable use. 
 Alden v. St. Peter's Parish, 158 111. 631, 42 
 N. E. 392, 30: 232 
 
 41. A bequest in trust to purchase a lot 
 and build a chapel to be used forever for 
 public worship under the auspices of the Ro- 
 man Catholic church is for a public charit- 
 able use. Teele v. Bishop of Derry, 168 
 Mass. 341, 47 N. E. 422, 38: 629 
 For graves. 
 
 42. A trust to keep in repair the graves of 
 a testator and his sisters does not constitute 
 a charitable use. Kelly v. Nichols, 18 R. I. 
 62, 25 Atl. 840, 19:413 
 
 43. A bequest, the income of which is to 
 be used to ornament and keep in repair the 
 burial lot of the testator, is void because it 
 is a gift in perpetuity for a private trust, 
 and not for a charitable trust. Sherman 
 v. Baker, 20 R. I. 446, 40 Atl. 11, 40: 717 
 
 c. Conditions; Capacity of Trustees or 
 Beneficiaries. 
 
 For Editorial Notes, see infra, III. 3. 
 
 Conditions. 
 
 See also infra, 54, 63. 
 
 44. A direction that a school or schools 
 should never be used to inculcate the doc- 
 trines of any religious sect or denomina- 
 tion, one more than another, may be proper- 
 ly made in a will creating a charitable trust 
 to maintain such school. Re John's Estate, 
 30 Or. 494, 47 Pac. 341, 36: 242 
 
 Capacity generally. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 
 318. 
 Of State University, see State Universities, 
 
 4. 
 Fee Passing to Trustee, see Trusts, 125. 
 
 45. A school district in Indiana is capable 
 of taking a devise in trust for the support 
 of common schools therein. Skinner v. Har- 
 rison Twp. 116 Ind. 139, 18 N. E. 529, 2: 137 
 
 46. The board of water commissioners of 
 a city are competent to receive a gift by 
 will of a fund, the income of which is to be 
 used for ornamenting the grounds where the 
 waterworks are established, and for main- 
 taining there a reference library chiefly of 
 books of practical utility relating to the 
 progress of science, the arts, and of events 
 and discoveries. Penny v. Croul, 76 Mich. 
 471, 43 N. W. 649, 5: 858 
 
 47. Permission given to trustees to re- 
 ceive donations and bequests for education- 
 al, charitable, or literary purposes, or for 
 the benefit of institutions to promote those 
 purposes, is restricted by La. act 1882, No. 
 124, to objects and institutions within the 
 state. Succession of Meunier, 52 La. Ann. 
 79, 26 So. 776, 48: 77 
 City or town as trustee. 
 
 See also Towns, 13, 16. 
 
 For Editorial Notes, see infra, III. 3. 
 
 48. A city cannot be restrained by injunc- 
 tion from declining a trust for charitable 
 purposes which it is not required by its 
 charter or ordinances to accept and adminis- 
 ter. Dailey v. New Haven, 60 Conn. 314, 
 22 Atl. 945, 14: 69 
 
 49. The refusal or inability of a city to 
 accept a trust "for deserving persons not 
 paupers" will not defeat the gift under a 
 will making other gifts to various trustees, 
 one of whom at least is also the beneficiary, 
 and providing that in case any trust is not 
 accepted a proportionate distribution shall 
 be made among the others of the amount 
 intended for it. Id. 
 
 50. The capacity of a municipality to 
 take property in trust is to be determined, 
 not at the testator's death, but when the 
 devise is, by the terms of the will, to take 
 effect. Clayton v. Hallett, 30 Colo. 231, 70 
 Pac. 429, 59:407 
 
 51. A municipality may take property in 
 trust for the education of poor white male 
 orphans under statutory authority to take 
 gifts by devise, and providing for the as- 
 sistance of charitable organizations, and for 
 the good order, health, good government, and 
 general welfare of the city. Id. 
 
 52. A city has no implied power to accept 
 a trust "for deserving persons not paupers" 
 whom it has no legal power to support or 
 aid. Dailey v. New Haven, 60 Conn. 314, 
 22 Atl. 945, 14: 69 
 Holding title to church lots. 
 
 53. A municipal corporation cannot hold 
 the title as trustee on a dedication of land 
 for a church lot or for religious purposes. 
 Maysville v. Wood, 102 Ky. 263, 43 S. W. 
 403, 39 : 93 
 
 54. The legal incapacity of a town to sup- 
 port a clergyman entirely defeats a bequest 
 to it made "strictly on this condition," that
 
 444 
 
 CHARITIES, I. d. 
 
 it shall support him. Bullard v. Shirley, 
 153 Mass. 559, 27 N. E. 766, 12: 110 
 
 Foreign city. 
 
 55. The capacity of a foreign city to ac- 
 cept a legacy is not wanting so as to de- 
 feat the gift merely because the capacity 
 for a time is suspended until a permit is 
 obtained from the council of state. Succes- 
 sion of Meunier, 52 La. Ann. 79, 26 So. 
 776, 48: 77 
 Unincorporated association. 
 
 For Editorial Notes, see infra, III. 3. 
 
 56. A bequest made without limitation as 
 to its use, directly to an unincorporated but 
 regularly organized and well-established 
 charitable association, is valid. Hadden v. 
 Methodist Society (N. J. Err. & App.) 51 
 N. J. Eq. 154, 330, 26 Atl. 464, 32: 625 
 
 57. A valid bequest may be made by 
 name to an unincorporated educational so- 
 ciety, which has an existing organization 
 composed of certain known members, gov- 
 erned by a constitution and by-laws, and 
 having officers chosen to conduct its busi- 
 ness affairs and carry out its objects. Re 
 Winchester, 131 Cal. 271, 65 Pac. 475, 54: 281 
 
 58. An unincorporated, voluntary associa- 
 tion constituting a branch of the Salvation 
 Army cannot be the beneficiary of a trust 
 under Minn. Gen. Stat. 1894, chap. 43, re- 
 quiring the beneficiary to be certain, or ca- 
 pable of being rendered certain. Lane v. 
 Eaton, TO Minn. 141, 71 N. W. 1031, 38: 669 
 Effect of subsequent incorporation. 
 
 For Editorial Notes, see infra, III. 3. 
 
 59. A bequest to an unincorporated edu- 
 cational society may be received by a cor- 
 poration subsequently formed by its mem- 
 bers to carry out the objects of the former 
 society. Re' Winchester, 133 Cal. 271, 65 
 Pac. 475, 54: 281 
 
 60. Incorporation within a reasonable 
 time may make a local branch of the Salva- 
 tion Army competent to become the benefi- 
 ciary of a charitable trust by virtue of 
 Minn. Gen. Stat. 3048, providing that on 
 the incorporation of a religious society any 
 estate devised in trust for it shall vest in 
 the corporation as fully as if it had been 
 legaly incorporated from the date of its 
 religious organization. Lane v. Eaton, 69 
 Minn. 141, 71 N. W. 1031, 38: 669 
 
 61. An unincorporated church to which 
 "at the death" of testator's wife, to whom a 
 life estate is given, property is devised for 
 use as a parsonage only, to revert to tes- 
 tator's heirs if such use ceases, may take 
 the property if it becomes incorporated be- 
 fore her death, as the devise does not vest 
 until that time. Lougheed v. Dikeman's 
 Bapt. Church & Soc. 129 N. Y. 211, 29 N. E. 
 249, 14: 410 
 
 62. A gift in trust for the erection and 
 furnishing of a church and parsonage for 
 the use of a society of a certain Christian 
 denomination is not invalid because no such 
 society is then in existence. School Land 
 Comrs. v. Wadhams, 20 Or. 274, 25 Pac. 
 720. 11:210 
 Corporation to be created. 
 
 See also Perpetuities, 37. 
 
 63. A gift to executors in trust for the 
 
 creation of a free public library is not made 
 conditional by a provision for the organiza- 
 tion of a corporation to administer the char- 
 ity; and such gift will not fail because the 
 provision for the organization of the corpo- 
 ration may violate the rule against perpetu- 
 ities, or even because the corporation cannot 
 be legally organized for that purpose. 
 Crerar v. Williams, 145 HI. 625, 34 N. E. 
 467, 21 : 454 
 
 Who may question capacity. 
 
 64. The legal capacity of a corporation to 
 take a devise oi property in excess of the 
 amount prescribed by its charter cannot be 
 raised collaterally by private persons, such 
 as the testator's heirs or next of kin, or in 
 any other way except in a direct proceeding 
 by the state. Hanson v. Little Sisters of 
 the Poor, 79 Md. 434, 32 Atl. 1052, 32: 293 
 
 65. A bequest to an incorporated chari- 
 table institution, of property in excess of the 
 amount which such corporations are :illowed 
 by general statute to take and hold, if it is 
 not prohibited by the statute of wills or by 
 the charter of the corporation or by the law 
 which authorized its organization, and there 
 is no penalty for taking in excess of the 
 limitation, is not void, but merely voidable, 
 and can be avoided by the state alone. 
 Farrington v. Putnam, 90 Me. 405, 37 Atl. 
 652. 38: 339 
 
 66. Where a charity is definite, only the 
 state, and not heirs and devisees, can ques- 
 tion the legal capacity of the trustee to 
 hold and administer the trust. Heiskell v. 
 Chickasaw Lodge, No. 8, 87 Tenn. 668, 11 S. 
 W. 825, 4: 699 
 
 67. The legal incapacity of a corporation 
 to take property by devise or bequest in ex- 
 cess of the amount prescribed by its charter 
 cannot be taken advantage of by heirs at 
 law or next of kin. Congregational Church 
 Bldg. Soc. v. Everitt, 85 Md. 79, 36 Atl. 654, 
 
 35: 693 
 
 68. A devise or bequest to a corporation 
 of property which will exceed the amount 
 or value which the corporation is by law 
 permitted to take will be void for the ex- 
 cess; and as to that excess no title will vest 
 for a single moment in the corporation, but 
 will vest instantly in the heir or next of 
 kin. The power to raise the question of the 
 right of the corporation to take the prop- 
 erty is not confined to the state, but the 
 question may be raised by the heirs or next 
 of kin. Re McGraw's Estate, 111 N. Y. 66, 
 19 N. E. 233, , 2: 387 
 
 d. Definiteness ; Discretion of Trustees. 
 
 As to Definiteness of Trust Generally, see 
 
 Trusts, 31-35. 
 For Editorial Notes, see infra, m. 2. 
 
 69. The statute of uses and trusts fur- 
 nishes no standard by which to test the suf- 
 ficiency as to certainty of a public trust. It 
 refers solely to private trusts. Farrington 
 v. Pier, 105 Wis. 485, 82 N. W. 345, 50: 307 
 Certainty as to purposes of gift. 
 
 See also infra, 90-93, 97. 
 
 For Editorial Notes, see infra, HI. 2. 
 
 70. The doctrine that the scheme of a
 
 CHARITIES, I, d. 
 
 445 
 
 trust for charitable uses must be sufficiently 
 indicated, or the method of ascertaining it 
 pointed out and its object made sufficiently 
 certain, to enable the court to enforce fohe 
 execution of the trust accordingly, does not 
 refer to the essentials of a private trust, 
 indicated in the statute of uses and trusts, 
 but to the common-law essentials of a trust 
 for charitable uses, in order to be enforce- 
 able by a court of equity through its judicial 
 power. Harrington v. Pier, 105 Wis. 485, 
 82 N. W. 345, 50: 307 
 
 71. A trust to provide education in the 
 mechanical arts for the boys and girls of 
 California is not void for uncertainty. Peo- 
 ple ex rel. Ellert v. Cogswell, 113 Cal. 129, 
 45 Pac. 270, 35:269 
 
 72. A gift in trust for the maintenance of 
 a parish school, to the vestry of a Protes- 
 tant Episcopal church which is a corpo- 
 ration, is not void for indefiniteness and un- 
 certainty. Hanson v. Little Sisters of the 
 Poor, 79 Md. 434, 32 Atl. 1052, 32: 293 
 
 73. A trust for the maintenance of a par- 
 ish school is germane to the object for 
 which a Protestant Episcopal church is in- 
 corporated. Id. 
 
 73a. A devise of a fund to be distributed 
 by the executor "to the poor," in his dis- 
 cretion, is valid, under a statute making 
 valid gifts to charity "which shall have 
 pointed out with reasonable certainty" the 
 purpose of the charity and the beneficiaries 
 thereof. Thompson v. Brown, 24 Ky. L. 
 Rep. 1066, 70 S. W. 674, 62: 398 
 
 74. There is no uncertainty which will de- 
 feat a gift for the benefit of poor churches 
 of a city and vicinity. McAlister v. Bur- 
 gess, 161 Mass. 269, 37 N. E. 173, _ 24: 158 
 
 75. A legacy to a missionary society, "to 
 be 'held in trust" to educate six girls in 
 India, who shall be given certain names, and 
 to purchase a building, which shall be 
 called a certain name and be used for the 
 education of girls there, the location of 
 which shall be left to the decision of a 
 certain bishop and his successors, does not 
 create a trust void because vague, indefinite, 
 and uncertain, where the society is engaged 
 in that work, but is merely a bequest to the 
 society for the prosecution of its work upon 
 conditions annexed to the gift. Woman's 
 Foreign Missionary Soc. of M. E. Church v. 
 Mitchell, 93 Md. 199, 48 Atl. 737, 53: 711 
 
 76. A trust for the promotion of temper- 
 ance work in a certain city is not fatally 
 indefinite, where the term "temperance 
 work" is obviously intended to mean work 
 to prevent, as far as practicable, the use of 
 intoxicating liquors. Harrington v. Pier, 
 105 Wis. 485, 82 N. W. 345, 50: 307 
 
 77. The promotion of the cause of tem- 
 perance is too vague and uncertain as a 
 description of the objects for which a cor- 
 poration was formed to enable a court to 
 say that funds contributed for the use of 
 the corporation constitute a public charity 
 which can be administered by a court of 
 equity. Hence a division of the fund by 
 the corporation among its own members is 
 not such a perversion thereof as amounts to 
 an injury to the public so as to demand a 
 
 forfeiture of the corporate charter. People 
 ex rel. Attorney General v. Dashaway Asso. 
 84 Cal. 114, 24 Pac. 277, 12: 117 
 
 78. A bequest for an "art institute" is not 
 void for indefiniteness, especially when a 
 codicil refers to its distribution of prizes for 
 works "of the fine arts." Almy v. Jones, 17 
 R. I. 265, 21 Atl. 616, 12: 414 
 
 79. A bequest is not void for remoteness 
 where it gives a fund for an art institute, to 
 take effect when the necessary funds to 
 found one are contributed, and in the mean- 
 while the income is to be distributed annu- 
 ally in prizes for the best works of art by 
 artists belonging to, or residing in, the 
 state. Id. 
 As to trustee or beneficiaries. 
 
 Discretion as to Beneficiaries, see infra, 94- 
 
 101. 
 
 See also supra, 56-58, 73a; Trusts, 31. 
 For Editorial Note, see infra, III. 2. 
 
 80. Necessary certainty as to beneficiaries 
 in a public trust goes no further than rea 
 sonable certainty as to the class which 
 may be great or small, particular or general, 
 from which the trustee may be authorized 
 to select the immediate persons or objects 
 to receive the special benefits. Harrington 
 v. Pier, 105 Wis. 485, 82 N. W. 345, 50: 307 
 
 81. Indefiniteness of beneficiaries is one of 
 the characteristics of a trust for charitable 
 uses. Without it the trust is private. 
 Neither such indefiniteness, nor indefinite 
 ness as to the precise nature of the work to 
 be done, or the mode of execution in carry- 
 ing out a particular purpose which may be 
 indicated in general language, militates 
 against the validity of the trust. Id. 
 
 82. The idea that there must be certainty 
 of beneficiaries holding the equitable title, 
 who can come into court and enforce the 
 trust, applies to private, but not to public, 
 trusts, and has no place in a system of 
 charities where common-law trusts therefor, 
 sustainable without the aid of cy prcs au- 
 thority, are valid. Such a system, as to 
 personal property, at least, exists in Wis- 
 consin. Id. 
 
 83. A residuary bequest to certain 
 churches according to the number of mem- 
 bers, to buy coal for the poor of the 
 churches, is a direct gift to the churches, 
 and does not create a trust for unascer- 
 tained or indefinite beneficiaries. Bird v. 
 Merklee, 144 N. Y. 544, 39 N. E. G45, 27:423 
 
 84. A bequest of property to be used by 
 the Roman Catholic bishop of the diocese 
 of Green Bay "for the benefit and behoof of 
 the Roman Catholic Church," there being 
 several churches in the diocese, is void for 
 uncertainty. McHugh v. McCole, 97 Wis. 
 166, 72 N. W. 631, 40: 724 
 
 85. A bequest to the bishop of Fond du 
 Lac, to be used by him for the benefit and 
 behoof of the Protestant Episcopal Church 
 of Fond du Lac, which is not shown to be a 
 body corporate or legal entity capable in 
 law of taking or asserting any right in court 
 to the fund, but which consists of several 
 organizations, is void for uncertainty. Id. 
 
 85a. A will giving property "to the board 
 of trustees for the Protestant Episcopal
 
 416 
 
 CHARITIES, I. d. 
 
 Church in the diocese of North Carolina" 
 constitutes a gift to the diocese as it ex- 
 isted at the execution of the will, although, 
 prior to the death of the testatrix, a portion 
 of the territory was detached, and a new 
 diocese, designated as the "diocese of East 
 Carolina," created therefrom. East Carolina 
 Diocese v. North Carolina Diocese, 102 N. C. 
 442, 9 S. E. 310, 3: 626 
 
 85b. A legacy to the "Board of Man- 
 agers of the Foreign Missionary Society of 
 the Methodist Episcopal Church," for the 
 education of girls in India, no body of that 
 name being in existence, will go to the 
 Woman's Foreign Missionary Society of said 
 church, that being the only foreign mis- 
 sionary society in the Methodist Church that 
 is engaged in the particular work to which 
 the legacy is devoted. Woman's Foreign 
 Missionary Soc. of M. E. Church v. Mitchell, 
 93 Md. 199, 48 Atl. 737, 53: 711 
 
 86. A devise of property to be used in 
 aiding the cause of home and foreign mis- 
 sions, made to an incorporated church which 
 is authorized to acquire property for such 
 purposes, is not a devise in trust for which 
 there must be an ascertained beneficiary, 
 but is an absolute gift to the church. Lane 
 v. Eaton, 69 Minn. 141, 71 N. W. 103, 38: 669 
 
 87. A devise to Chickasaw Lodge of Odd 
 Fellows, "for the benefit of the widows and 
 orphans," is sufficiently definite as a char- 
 ity, being a devise for the widows and or- 
 phans of deceased members of the lodge. 
 Heiskill v. Chickasaw Lodge, No. 8, 87 Tenn. 
 668, 11 S. W. 825, 4: 699 
 
 88. A bequest to a town in trust in perpe- 
 tuity for the benefit of the poor of the 
 town, not confined to those for whose sup- 
 port the town is under a statutory liability, 
 is invalid for want of an ascertained bene- 
 ficiary. Fosdick v. Hempstead, 125 N. Y. 
 581, 26 JN. E. 801, 11:715 
 
 88a. A bequest or devise to a township in 
 Indiana, although primarily to the civil 
 township, will be held to be to the school 
 township when the intention appears to 
 create a fund for the support of common 
 schools. Skinner v. Harrison Twp. 116 Ind. 
 139. 18 N. E. 529, 2: 137 
 
 89. The phrase "worthy of the city," in a 
 will giving a fund for an art institute when 
 citizens have contributed funds necessary to 
 found one worthy of the city, does not make 
 the gift void for indefiniteness. Almy v. 
 Jones, 17 R. I. 265, 21 Atl. 616, 12: 414 
 Discretion as to purposes of gift. 
 
 See also infra, 97. 
 
 90. Authorizing trustees, in a gift for a 
 charity, to set aside a proper amount to 
 raise an income to pay certain charges or 
 expenses, all of which are either fixed by 
 law, or, by the terms of the will, must be 
 reasonable, does not give them arbitrary 
 powers which will make the gift invalid, or 
 authorize them to expend any part of the 
 estate for purposes "noncharitable." Crerar 
 v. Williams. 145 111. 625, 34 N. E. 467, 
 
 21: 454 
 
 91. A devise to trustees "for some chari- 
 table purpose, preference always to be given 
 to something of an educational nature, al- 
 
 though permissible to appropriate the in- 
 come in any way it may seem to the trus- 
 tees to be necessary and most desirable, as- 
 they may elect," is too indefinite to be en- 
 forced in equity. Johnson v. Johnson, 92 
 Tenn. 559, 23 S. W. 114, 22: 179 
 
 92. The fact that a gift of money by will 
 is declared to be "strictly for private char- 
 ities," and to be expended according to the 
 judgment of testator's sisters, will not pre- 
 vent it from being a public charity where 
 it is for the relief of the "poor and unfortu- 
 nate." Bullard v. Chandler, 149 Mass. 532,. 
 21 N. E. 951, 5: 104 
 
 93. The benefit of the poor is a merely 
 subordinate purpose which does not make 
 valid a trust created explicitly for hospital- 
 ity to ministers and others "traveling in 
 the service of truth," where in the preamble 
 the will says the estate shall be applied 
 strictly "according to the directions" there- 
 in given, although, in an instrument append- 
 ed to the will, testator leaves it to the judg- 
 ment of his executors to apply funds in 
 their hands "to the personal relief of the 
 poor, or otherwise in the service of the 
 truth." Kelly v. Nichols, 18 R. I. 62, 25 
 Atl. 840, 19: 413 
 Discretion as to beneficiaries. 
 
 94. A bequest cannot be upheld as an- 
 executory devise to a designated institution 
 where the property is given to trustees 
 with complete discretionary power to con- 
 vey or not to convey it to the suggested 
 beneficiary. Tilden v. Green, 130 N. Y. 29, 
 28 N. E. 880, 14: 33 
 
 96. A bequest of money "to be divided 
 among the Sisters of Charity," without any 
 limitation as to locality, state, or nation, 
 and without any provision for the exercise 
 of discretion by the trustees, is void for un- 
 certainty. Moran v. Moran, 104 Iowa, 216, 
 73 N. W. 617. 39:204 
 
 96. A trust under a will to dispose of 
 property among the charitable and benevo- 
 lent institutions or corporations in a city as 
 the trustee shall choose and in such sums 
 and proportion as he shall deem proper, 
 which is unaffected by N. Y. Laws 1893, 
 chap. 701, is .unenforceable because of the 
 failure to designate or describe a class or 
 kind of beneficiaries to whom distribution 
 is practicable or that can with reasonable 
 certainty be identified. People v. Powers, 
 147 N. Y. 104, 41 N. E. 432, 36: 502 
 
 97. A bequest to trustees to pay over "to 
 some Presbyterian institution in Baltimore 
 as they may determine, for charitable or re- 
 ligious purposes," is void for indefiniteness 
 both as to the donee and the purposes to 
 which the gift is to be applied. Gambel v. 
 Trippe, 75 Md. 252, 23 Atl. 461, 15: 236 
 
 98. A devise for the establishment of a 
 college for the education "of as many poor 
 white male orphans born of reputable par- 
 ents as the income shall be adequate to 
 maintain" is not void for indefiniteness, 
 where the executors of the will are given au- 
 thority to "devise and promulgate such rules 
 and regulations as they shall deem proper 
 for the government of the institution."
 
 CHARITIES, II. 
 
 447 
 
 Clayton v. Hallett, 30 Colo. 231, 70 Pac. 
 429, 59:407 
 
 99. The invalidity of a charitable trust 
 because of uncertainty as to the beneficia- 
 ries cannot be cured by anything done by 
 the trustees to execute it. Tilden v. Green, 
 130 N. Y. 29, 28 N. E. 880, 14: 33 
 
 100. The death of trustees who are given 
 by will power to select the beneficiary of a 
 charitable bequest, without making such 
 selection, will defeat the bequest if it can 
 be considered valid in the first instance. 
 Gambel v. Trippe, 75 Md. 252, 23 Atl. 461, 
 
 15: 235 
 
 101. Lack of a designated beneficiary, and 
 the unlawful delegation of the selection 
 thereof, render void a testamentary gift of 
 the residue of an estate to trustees to be 
 given by them to a corporation to be created 
 for the maintenance of a free library and 
 reading room in New York city, and for the 
 promotion of such scientific and educational 
 objects as they may designate; but in case 
 the institution is not incorporated within 
 two specified lives in being, or if "for any 
 cause or reason" the trustees "deem it in- 
 expedient" to give to it all or any part of 
 the property, then it is to be given by them 
 "to such charitable, educational, and scien- 
 tific purposes as in their judgment will ren- 
 der the gift most widely and substantially 
 beneficial to the interests of mankind." The 
 provision as to the proposed corporation is 
 not a primary gift followed by an ulterior 
 or alternative disposition, but there is only 
 a single scheme, which gives the trustees un- 
 limited discretion as to the selection of 
 beneficiaries so long as the gift goes to 
 charitable objects. Tilden v. Green, 130 N. 
 Y. 29, 28 N. E. 880, 14: 33 
 
 II. Enforcement; Control; Forfeiture. 
 a. In General. 
 
 Right of State's Attorney to Bring Suit to 
 
 Enforce, see District and Prosecuting 
 
 Attorneys, 2. 
 Interference by Court with Division of 
 
 Fireman's Fund, see Courts, 221. 
 Donor's Right of Action to Protect Fund, 
 
 see Parties, 13. 
 For Editorial Notes, see infra, III. 4. 
 
 102. Charitable uses will be enforced in 
 accordance with the principles of the com- 
 mon law, in the absence of statutory pro- 
 hibition. Clayton v. Hallett, 30 Colo. 231, 
 70 Pac. 429, . 59 : 407 
 
 103. It is not essential to the existence or 
 enjoyment of a trust for charitable uses 
 that the individual beneficiaries are able to 
 show that they contributed to, or have a 
 personal, pecuniary interest in, the trust 
 property; their interest is measured by, and 
 limited to, the uses for which the property 
 is held. Mannix v. Purcell, 46 Ohio St. 102, 
 19 N. E. 572, 2: 753 
 
 104. A charitable trust will not fail by 
 reason of the fact that judges who are au- 
 thorized to appoint a board of trustees to 
 
 succeed executors in the management of the 
 property fail to make such appointment, or 
 because the board may not be a body of per- 
 petual succession recognized by the law. 
 Re John's Estate, 30 Or. 494, 47 Pac. 341, 
 
 36: 242 
 
 105. Any change of the boundaries of a 
 school district in which a free school is to be 
 established and maintained by a charitable 
 gift will not affect the validity of the char- 
 ity which is described as for "children of 
 the school district, which shall embrace" a 
 certain town. Id. 
 
 106. Power to formulate rules for the gov- 
 ernment of the board of trustees of a char- 
 ity, given by will to judges who are au- 
 thorized to appoint such trustees, can in no 
 way impinge upon, change, or modify the 
 nature of the charity which the testator has 
 sought to establish, or modify the manner 
 of administration wherein he has particular- 
 ized or given the judges supervisory control 
 over the board of trustees in the direction of 
 the trust. Id. 
 
 107. Failure to provide for conveyance by 
 executors to a board of trustees provided 
 for in a will creating a charity, even if it is 
 an oversight, will not prevent the execution 
 of the trust, as the property, even if it de- 
 scends to heirs of the executor or testator, 
 will *" be held charged with the trust, and 
 equity will place it in the proper channel of 
 administration. Id. 
 
 108. One to whom the public contributes 
 a fund for the benefit of the families of 
 firemen killed in the discharge of their 
 duties may resign his trust; and in case he 
 does so, and the court accepts his appointees, 
 they must be made parties to the proceed- 
 ings before a binding judgment can be ren- 
 dered as to the disposition of the fund. 
 Hallinan v. Hearst, 133 Cal. 645, 66 Pac. 
 17, 55:216 
 
 109. Where property is held by an arch- 
 bishop of the Roman Catholic Church in 
 trust to be devoted to the uses of public 
 religious worship, cemeteries, orphan asy- 
 lums, and schools, each church, cemetery, 
 asylum, and school is held upon a separate 
 trust and for its own separate uses ; and one 
 piece of property so held is not chargeable 
 with any part of the expense of improving 
 another, or of improving church property 
 generally in the diocese. Mannix v. Purcell, 
 46 Ohio St. 102, 19 N. E. 572, 2: 753 
 
 110. Though the several congregations of 
 the churches so held in trust, and the per- 
 sons respectively possessing and having 
 charge of such schools, cemeteries, and asy- 
 lums, are severally unincorporated and oth- 
 erwise incapable of holding the legal title to 
 the property so used, they nevertheless have 
 such an interest in the trust property as 
 permits them to be represented in court by 
 a number less than the whole, having a 
 common interest with them, for the purpose 
 of protecting the property from seizure and 
 sale for the satisfaction of the private debts 
 of the trustee. Id. 
 
 111. Changes in the membership of such 
 congregations and bodies do not affect their 
 legal identity; and, for the purpose of con-
 
 448 
 
 CHARITIES, II. b. 
 
 tinuing and enjoying the uses to which the 
 propei-ties respectively possessed by them 
 are devoted, they respectively remain, in 
 legal contemplation, the same congregations 
 and bodies. Id. 
 
 112. Such a trustee has power, by con- 
 tract, to charge the trust property with the 
 reasonable expense of its necessary preser- 
 vation, improvement, anu repair, in favor of 
 one who expends money, labor, or materials 
 for that purpose. Id. 
 
 113. -A nuisance is subject to injunction 
 and abatement in a suit for that purpose 
 although the defendant is a corporation 
 maintaining a lunatic asylum at the expense 
 of the state, especially when the statute 
 creating it has provided that it may sue 
 and be sued. Herr v. Central Ky. Lunatic 
 Asylum, 97 Ky. 458, 30 S. W. 971, 28: 394 
 Power to designate beneficiaries. 
 
 114. The appointment of trustees for a 
 college for the education of orphans, with 
 power to control and supervise the college, 
 carries with it, by necessary implication, the 
 authority to designate the beneficiaries. 
 Clayton v. Hallett, 30 Colo. 231, 70 Pac. 429, 
 
 59 : 407 
 Power to change beneficiaries. 
 
 115. A fund contributed for the relief of 
 sufferers from a fire, by persons whose 
 identity is lost so that a surplus cannot be 
 returned to them, must be expended for 
 the benefit of such sufferers, and cannot be 
 capitalized for the support of the town 
 
 . poor generally. Doyle v. Whalen, 87 Me. 
 414. 32 Atl. 1022, 31: 118 
 
 110. The unexpended share of a bene- 
 ficiary of a fund contributed by the public 
 to aid the families of members of the fire 
 depart ment killed in the discharge of their 
 duty cannot at his deatn be given over to 
 the Fire Department Charitable Fund As- 
 sociation, so long as any dependent relative 
 of one of the firemen remains. Hallinan v. 
 Hearst. 133 Cal. 645, 66 Pac. 17, 55: 216 
 
 Right of beneficiaries to compel enforce- 
 ment. 
 
 117. Sufferers from a fire for whose bene- 
 fit a fund has been donated by individuals 
 unknown may maintain a bill to compel the 
 trustees to expend the fund for their bene- 
 fit, if the trustees have undertaken to capi- 
 talize the fund for the general benefit of the 
 poor of the town. Doyle v. Whalen, 87 Me. 
 414. 32 Atl. 1022, 31: 118 
 
 118. A minor beneficiary of a fund con- 
 tributed by the public to aid the families of 
 members of the fire department who were 
 killed in the discharge of their duty cannot 
 compel payment of his share faster than 
 it is required to relieve his necessities and 
 contribute to his support. Hallinan v. 
 Hearst, 133 Cal. 645, 66 Pac. 17, 55: 216 
 
 b. Cy Prds Doctrine. 
 
 See also Wills. 441. 
 
 For Editorial Notes, see infra, III. 4. 
 
 119. The doctrine of cy pres is not in force 
 in Wisconsin. McHu^h v. McCole, 97 Wis. 
 166, 72 X. W. 631, 40: 724 
 
 120. The cy pres doctrine, as indicative of 
 prerogative authority, does not prevail in 
 Wisconsin; but as regards liberal rules of 
 construction of charitable trusts, applied in 
 chancery in England independent of the 
 statute of Elizabeth, it does prevail. Har- 
 rington v. Pier, 105 Wis. 485, 82 N. W. 345, 
 
 50: 307 
 
 121. Cy pres power, as commonly under- 
 stood, has two features: One, the right to 
 exercise prerogative authority, enabling a 
 court to deal with a bequest to a charitable 
 use having no designated particular purpose, 
 as a bequest to charity generally, treating 
 the purpose as the legatee, or a bequest for 
 an illegal purpose, or some purpose impossi- 
 ble of execution for some reason; and the 
 other, the right, by liberal rules of construc- 
 tion, to deal with a trust having a designat- 
 ed particular purpose though in general 
 terms, and enforce it within the limits of 
 such purpose, supplying the trustee if nec- 
 essary. The former is not exercised in Wis- 
 consin, but the latter is, Id. 
 
 122. In sustaining a charitable trust for 
 a particular purpose, courts of equity resort 
 to liberal rules of construction to determine 
 the intent of the donor, enabling them to 
 go to the limit of the general purpose indi- 
 cated by the donor, and do everything neces- 
 sary to enforce such purpose, but not to go 
 outside of it into the realms of preroga- 
 tive authority governed by the cy pr&s doc- 
 trine strictly so called. Id. 
 
 123. .Whether the doctrine of cy pr&s can 
 be properly applied in Illinois to give effect 
 to conveyances for charitable uses, or not, 
 a court of chancery will, if the mode point- 
 ed out in the conveyance or will for carry- 
 ing it into effect fails, provide another mode 
 by which the charity may take effect. 
 Crerar v. Williams, 145 HI. 625, 34 1ST. E. 
 467, 21 : 454 
 
 124. If the main object of a legacy is to 
 support a particular institution for the 
 promotion of a particular art, the gift will 
 fail upon failure of the donee, although the 
 bequest is to a public charity. Stratton v. 
 Physio-Medical Inst. 149 Mass. 505, 21 N. 
 E. 874, 5: 33 
 
 125. A fund given by will to trustees "to 
 establish a female academy," etc., may be 
 used for the support of a public school in 
 connection with the town, when it has be- 
 come impracticable to maintain a female 
 academy with it. Adams Female Academy 
 v. Adams, 65 N. H. 225, 18 Atl. 777, 23 Atl. 
 430, 6: 785 
 
 126. Land deeded to a town for the pur- 
 pose of establishing a public school therein, 
 upon the condition that it shall remain for- 
 ever appropriated to such use, and shall 
 never become private property, cannot be 
 granted by the town to a board of regents 
 for the purpose of establishing a normal 
 school in such town for the training and 
 education of school teachers. Normal School 
 Dist. No. 3 v. Painter, 102 Mo. 464, 14 S. 
 W. 938, 10: 493 
 
 127. The failure of the purpose of the 
 testatrix in a benuest for the building of a 
 chapel in her native place, which results be-
 
 CHARITIES, II. c. 
 
 449 
 
 cause the people there are diminishing in 
 number and are too poor to support the 
 chapel, will not justify a diversion of the 
 fund by the cy pres doctrine to the repair 
 of a neighboring parish church, or for a 
 parish house, or the enlargement of a parish 
 graveyard or otherwise for the general bene- 
 fit of the parish, but the bequest must be 
 held to have failed. Teele v. Bishop of 
 Derry, 168 Mass. 341, 47 N. E. 422. 38: 629 
 
 128. The doctrine of cy pres does not 
 justify appropriating an invalid gift in trust 
 for the entertainment of traveling members 
 of the Society of Friends, of the same faith 
 as that of the testator, to the printing of 
 religious books for the use of the poor of 
 that society, where he had devoted to these 
 purposes only the surplus which might re- 
 main after meeting the demands of the 
 main trust. Kelly v. Nichols, 18 R. I. 62, 25 
 Atl. 840, 19:413 
 
 129. Land devised as the site of a city 
 hospital may be sold by order of court and 
 the proceeds invested to provide for the 
 current expenses of the hospital> by the 
 application of the doctrine of cy pres, where 
 the will, which gives a sum of money also 
 for such hospital, does not indicate any in- 
 tent to make the gift depend on the occu- 
 pation of that particular site, and it, by rea- 
 son of its location and other causes, is not 
 a suitable site for a hospital, and the hos- 
 pital has in the meantime received by gift 
 from other parties all the real estate need- 
 ed. Weeks v. Hobson, 150 Mass. 377, 23 
 N. E. 215, 6: 147 
 
 130. The doctrine of cy pres does not ap- 
 ply to a bequest which is not made to a 
 definite charitable use. Kelly v. Nichols, 18 
 R. I. 62, 25 Atl. 840, 19:413 
 
 131. A legacy to a medical institute al- 
 ready in existence, but a private pecuniary 
 enterprise, is not a bequest to a public char- 
 ity; and, in case the beneficiary ceases to 
 exist before the will takes effect, the court 
 will not apply the gift cy pres. Stratton v. 
 Physio -Medical Inst. 149 Mass. 505, 21 N. 
 E. 874, 5: 33 
 
 c. Liability for Damages. 
 
 Liability for Negligence in Ultra Vires Man- 
 agement of Ferry, see Corporations, 206. 
 For Editorial Notes, see infra, III. 5. 
 
 132. A personal injury caused by the 
 negligence of an agent or servant of a pub- 
 lic charitable corporation does not give a 
 right of action for damages against it, 
 when the only funds from which payment 
 could be made are such as have been volun- 
 tarily contributed for charitable objects. 
 Philadelphia Fire Ins. Patrol v. Boyd, 120 
 Pa. 624, 15 Atl. 553, 1 : 417 
 
 133. A corporation, the membership in 
 which is limited to officers and agents of 
 fire insurance companies doing business in 
 a certain city, having power to provide for 
 and assist in the saving of life and property 
 at fires, the funds of which are raised by 
 assessments upon the companies doing busi- 
 ness in such city, is a private, and not a 
 
 L.R.A. Dig. 29. 
 
 public corporation; nor is it a public char- 
 ity; and it is liable in damages for injuries 
 resulting from the negligence of its serv- 
 ants in driving through the public streets; 
 notwithstanding the facts that the saving 
 of life and property are referred to in its 
 charter in general terms, and that it in fact 
 makes no distinction in its efforts to save 
 property between insured and uninsured. 
 Newcomb v. Boston Protective Dept. 151 
 Mass. 215, 24 N. E. 39, 6: 778 
 
 Reform school. 
 
 134. A reform school under the control 
 and oversight of the legislature, which is 
 an agency of the state maintained by taxa- 
 tion and state aid, is not liable to an action 
 for damages for negligent or malicious in- 
 juries to an inmate by its servants or em- 
 ployees. Williamson v. Louisville Indus- 
 trial School of Reform, 95 Ky. 251, 24 S. 
 W. 1065, 23: 200 
 Hospitals. 
 
 See also Hospitals, 7; State Institutions, 8. 
 
 135. A charitable corporation maintaining 
 a hospital is not liable for injuries caused by 
 personal wrongful neglect of servants who 
 have been selected with due care. Hearns 
 v. Waterbury Hospital, 66 Conn. 98, 33 Atl. 
 595, 31:224 
 
 136. A hospital organized exclusively for 
 charity is not liable for injury to a patient 
 caused by the negligence of its carefully 
 selected nurse, even though a charge is made 
 and paid for the services rendered to the 
 patient injured, at least if the amount paid 
 does not make full pecuniary compensation 
 for the services rendered; since an agree- 
 ment to hold the hospital harmless for the 
 acts of its servants arises, by necessary im- 
 plication, from the relation of the parties. 
 Powers v. Massachusetts Homeopathic Hos- 
 pital, 47 C. C. A. 122, 129 Fed. 294, 65: 372 
 
 137. An injury to an inmate of a hospital 
 for the insane which is a purely eleemosy- 
 nary institution, caused by the tortious or 
 negligent acts of its managers or employees, 
 will not create a liability against the insti- 
 tution for damages. Downs v. Harper Hos- 
 pital, 101 Mich. 555, 60 N. W. 42, 25: 602 
 
 138. The fact that patients who are able 
 to do so are required to pay for the privi- 
 leges of a hospital will not of itself destroy 
 its character as a charitable institution, or 
 make it liable to such a patient for negli- 
 gence or torts of its employees. Id. 
 
 139. A railroad company is not liable to 
 employees for negligence of physicians and 
 surgeons in a hospital which it voluntarily 
 maintains for the gratuitous accommodation 
 of injured employees to whom the company 
 owes no statutory or contractual obligation 
 in the matter. Eighmy v. Union P. R. Co. 
 93 Iowa, 538, 61 N. W. 1056, 27: 296 
 
 140. A corporation which voluntarily pro- 
 vides a physician for injured or sick employ- 
 ees, whose services they are free to reject or 
 accept, is liable only, if at all, for negligence 
 in the selection of the physician, and not for 
 his negligent or tortious acts in the treat- 
 ment of those who accept his services. 
 Pittsburgh, C. C. & St. L. R. Co. v. Sullivan. 
 141 Ind. 83, 40 N. E. 138, 27: 840
 
 450 
 
 CHARITIES, III. CHASTITY. 
 
 141. A railroad company is not liable for 
 the malpractice of physicians or the care- 
 lessness of attendants at a hospital main- 
 tained as a charitable enterprise by contri- 
 butions of the company and small sums de- 
 ducted monthly from the wages of its em- 
 ployees. Union P. R. Co. v. Artist, 19 U. 
 S. App. 612, 9 C. C. A. 14, 60 Fed. 365, 
 
 23: 581 
 
 III. Editorial Notes. 
 
 Taxes on, see Taxes, VI. 8. 
 
 Rule of Perpetuities as to, see Perpetuities, 
 
 V. 
 
 i. Generally. 
 What are public charities. 1 : 418 ; * 3 : 147 ; * 
 
 5: 37,* 106;* 6: 84;* 12: 
 
 414.* 
 
 What are charitable gifts. 5: 36.* 
 Gift of fund to be maintained. 4: 699.* 
 Gifts designed to promote public good. 5: 
 
 106.* 
 
 Gifts to promote public good. 5: 33,* 104.* 
 Gift for educational purposes. 5: 106,* 858.* 
 Gift for religious purposes. 3: 148;* 5: 
 
 107.* 
 
 Chancery jurisdiction. 1:418;* 5:37.* 
 Statute of Elizabeth. 1: 417;* 5: 33* 
 Charitable trusts under the statute. 3: 146.* 
 Distinction between charitable and other 
 
 trusts. 5:34.* 
 
 Doctrine of charitable uses; where recog- 
 nized. 3: 145.* 
 
 When charitable trusts void. 5: 35.* 
 Gift to public charity favored in law. 3: 
 
 148;* 4: 699;* 6: 511.* 
 
 Purposes of trust; when separable. 5: 108.* 
 Secret trusts for. 20: 465. 
 Validity of bequests for masses. 25: 360; 
 
 40: 717. 
 When trust results to testator's legatees or 
 
 next of kin. 5: 36.* 
 Right of legislature to transfer title to ces- 
 
 tui que trust. 5: 36.* 
 Presumption as to charitable use when none 
 
 declared. 5: 37.* 
 2. Uncertainty; indefiniteness. 
 As to object of charity. 1:419;* 5:35,* 
 
 42;* 12: 414.* 
 Of bequests. 3: 149.* 
 Uncertainty as to beneficiaries. 3: 145;* 
 
 4: 700;* 5: 40.* 
 Where beneficiary ascertainable. 5: 
 
 41.* 
 
 Selection of beneficiary. 5: 41.* 
 Beneficiary not in being. 5: 41.* 
 3. Trustee; gift to unincorporated society. 
 Municipal corporation as trustee of char- 
 ity. 7:765;* 13:217;* 
 
 14: 69. 
 Validity of gift to unincorporated charitv. 
 
 32: 625. 
 
 Early decisions. 32: 625. 
 Right to take real estate or permanent 
 
 fund. 32: 625. 
 Personal property. 32: 628. 
 Association as trustee. 32: 630. 
 Statutes. 32:630. 
 Effect of want of trustee. 5: 39.* 
 Effect of subsequent incorporation. 14: 410. 
 
 4. Administering; cy pres doctrine. 
 
 Power of court to require trustee to execute 
 trust. 5: 39.* 
 
 Doctrine of cy pres stated. 5: 33;"* 6: 147.* 
 Applicability of, in construction of wills. 
 
 5: 34.* 
 Exercise of cy pres power by courts of 
 
 equity. 5: 38. 
 
 Giving effect to general intention of tes- 
 tator. 5:39.* 
 
 Devising scheme to carry out trust. 5: 40.* 
 
 5. Liability of charitable institution. 
 
 For negligence. 23: 200. 
 
 Liability to assessment of property of^ for 
 local improvements. 35 : 
 37. 
 
 CHARIVARI. 
 
 Right to Drive Away Charivari Party, see 
 
 Assault and Battery, 33. 
 Instructions as to, see Trial, 787. 
 
 One participating in a charivari of a 
 wedding party cannot recover for injuries 
 inflicted by the negligent discharge of a pis- 
 tol by a coparticipant, where the statute 
 imposes a fine upon whoever disturbs the 
 peace of a family or neighborhood by loud 
 and unusual noises, or disturbs any assem- 
 bly of people met for a lawful purpose. Gril- 
 more v. Fuller, 198 111. 130, 65 K E. 84, 
 
 60: 286 
 
 CHARTERS. 
 
 Of Corporation, see Corporations, ni. 
 Of Municipality, see Municipal Corporations, 
 I. d. 
 
 *--* 
 
 CHARTERED TRAIN. 
 What is, see Carriers, 1125. 
 
 CHARTS. 
 
 For Schools, see Schools, 115. 
 ' * 
 
 CHASTISEMENT. 
 Editorial Notes. 
 
 Homicide by, excessive or improper. 63: 
 393. 
 
 CHASTITY. 
 
 Evidence of Reputation as to, see Evidence, 
 
 1753-1757. 
 Remarks or Publications Affecting, see Libel 
 
 and Slander, II. b.
 
 CHATTEL MORTGAGE, I. II. b. 
 
 451 
 
 CHATTEL MORTGAGE. 
 
 I. In General. 
 II. Validity; Consideration. 
 
 a. Generally. 
 
 b. Description of Property. 
 
 c. Property Subject to Mortgage; Af- 
 
 ter-Acquired Property. 
 
 d. Possession; Power to Sell. 
 
 III. Filing; Recording; Renewing. 
 
 IV. Effect; Rights of Parties; Priorities. 
 
 a. In General. 
 
 b. Priorities. 
 
 V. Assignment; Satisfaction; Abandon- 
 ment. 
 
 VI. Enforcement. 
 VII. Editorial Notes. 
 
 Note Secured by, for Part of Debt, as Accord 
 and Satisfaction, see Accord and Satis- 
 faction, 11. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 I. i. 
 
 On Crops as a Severance, see Crops, 4. 
 
 Copy of, as Evidence, see Evidence, 797. 
 
 Selection by Husband of Exempt Property 
 in Giving, see Husband and Wife, 126. 
 
 Effect of, on Insured Propertj, see Insur- 
 ance, 385. 
 
 Collusiveness on Chattel Mortgagee of 
 Judgment on Attachment, see Judg- 
 ment, 299. 
 
 Libelous Charge of Giving, see Libel and 
 Slander, 52, 53. 
 
 Distinguished from Assignment for Credi- 
 tors, see Assignments for Creditors, 5- 
 12. 
 
 Distinguished from Pledge, see Pledge and 
 Collateral Security, 2. 
 
 Pledgee's Liability for Permitting Lien to 
 Expire, see Pledge and Collateral Se- 
 curity, 25. 
 
 Combined with Sale, see Sale, 42. 
 
 Conversion of Mortgaged Property, see Tro- 
 ver, 11-13, 27. 
 
 I. In General. 
 
 1. A statute requiring a mortgagee to war- 
 rant that he will not require the mortgagor 
 to pay the tax imposed by statute upon the 
 interest payable under the mortgage is not 
 applicable to a mortgage under which no in- 
 terest is payable, either directly or indi- 
 rectly. Salabes v. Castelberg, 98 Md. 645, 
 57 Atl. 20, 64: 800 
 Witnesses to. 
 
 See also infra, 51. 
 
 2. A mortgagee is disqualified from being 
 one of the two witnesses to a chattel mort- 
 gage required by N. D. Rev. Codes, 4738, 
 by reason of being an immediate party to 
 the instrument. Donovan v. St. Anthony & 
 D. Elevator Co. 8 N. D. 585, 80 N. W. 
 772. 46: 721 
 
 II. Validity; Consideration. 
 a. Generally. 
 
 Right of Assignee for Creditors to Attack, 
 see Assignments for Creditors, 25. 
 
 Giving Preference, see Assignments for Cred- 
 itors, 73-79. 
 
 By Insolvent Corporation to Directors, see 
 Corporations, 786. 
 
 Power 01 Vice President to Make, see Cor- 
 porations, 236. 
 
 Following State Decision as to, see Courts, 
 551, 552. 
 
 Sufficiency of Proof of, see Evidence, 2229. 
 
 Right of Administrator to Disaffirm Mort- 
 gage, see Executors and Administrators, 
 60. 
 
 Invalidity under Insolvent. Laws, see Insol- 
 vency, 9. 
 
 Validity as to Receiver, see Receivers, 53. 
 
 See also infra, 75. 
 
 For Editorial Notes, see infra, VII. 2. 
 
 3. A chattel mortgage to be valid must 
 be executed, acknowledged, and recorded ac- 
 cording to the law of the place where the 
 property is located at the time. McFadden 
 v. Blocker, 2 Ind. Terr. 260, 48 S. W. 1043, 
 
 58: 878 
 
 4. A mere general creditor without any 
 specific lien, although made a party defend- 
 ant in a suit to foreclose a mortgage on the 
 debtor's chattels, for the determination of 
 a lien claimed by him, cannot question the 
 validity of the mortgage. Wolcott v. Ash- 
 enfelter, 5 N. M. 442. 23 Pac. 780, 8: 691 
 
 5. A relationship between a mortgagor 
 and a mortgagee in a chattel mortgage will 
 not invalidate it as against other creditors, 
 if the mortgage is given for a debt that is 
 honestlv due. Noyes v. Ross, 23 Mont. 425, 
 59 Pac/ 367, 47: 400 
 
 6. The security of a mortgage is not af- 
 fected by statements made in good faith by 
 the mortgagee to creditors of the mortgag- 
 or, that the latter is doing a good business 
 and will be able to meet his obligations, al- 
 though the statements prove to be untrue. 
 Chafey v. Mathews, 104 Mich. 103, 62 N. 
 W. 141, 21: 558 
 Mortgagee's name blank. 
 
 7. A chattel mortgage in which the name 
 of the mortgagee is left blank is of no effect 
 as against a subsequent purchaser of the 
 property, where the same formalities are re- 
 quired as in case of real-estate mortgages. 
 Ferr v. Denver Mill. & M. Co. 13 Colo. 406. 
 22 Pac. 770, 6: 641 
 Consideration. 
 
 For Editorial Notes, see infra, VII. 3. 
 
 8. The release of an indorser or surety of 
 a promissory note on a pre-existing debt, 
 in consideration of a chattel mortgage on 
 the goods of the maker, is a valuable con- 
 sideration for the mortgage. Henry v. 
 Vliet, 36 Neb. 138, 54 N. W. 122, 19: 590 
 
 b. Description of Property. 
 
 9. A sufficient description of a diamond 
 ring for the purpose of a chattel mortgage 
 is effected by specifying the weight of the 
 stone, the style of setting, and the house 
 where the owner resides and the ring is to 
 be kept. Salabes v. Castelberg, 98 Md. 645, 
 57 Atl. 20, 64: 80C 
 
 10. The description of the property in a
 
 452 
 
 CHATTEL MORTGAGE, II. c. 
 
 chattel mortgage as "all my crop of com, 
 cotton, or other produce that I may raise, 
 or in which I may in any manner have an 
 interest for the year 1884, in Faulkner coun- 
 ty, Ark.," is not so indefinite and uncertain 
 that it cannot be made certain by extrinsic 
 evidence, or that it will prevent the record 
 of the mortgage from constituting construc- 
 tive notice. Johnson v. Grisard, 51 Ark. 
 410, 11 S. W. 585, 3: 795 
 
 11. A change of the color of a horse which 
 was correctly described in a mortgage when 
 it was given as a bay horse, but which, 
 from natural or unnatural causes, became 
 a white and sorrel spotted horse, without 
 any appearance of bay whatever, does not 
 defeat the rights of the mortgagee as 
 against a person who purchased the horse 
 after his change of color, without any no- 
 tice of the mortgage. Turpin v. Cunning- 
 ham, 127 N. C. 508, 37 S. E. 453, 51: 800 
 
 12. Under a mortgage on brick described 
 as being on certain lots at the mortgagor's 
 kiln, the latter being a manufacturer of 
 brick, but not designating the particular 
 brick mortgaged, the mortgagee has no me- 
 chanics' lien on a building in the erection of 
 which brick are taken from the kiln, where 
 the mortgagor testifies that he was contin- 
 ually making and selling brick, and does not 
 know whether the brick used in the building 
 were made before or after the execution of 
 the mortgage, as in such case the mortgage 
 is invalid as against other claims or lien- 
 holders. Meredith v. Kunze, 78 Iowa, 111, 
 42 !S T . W. 619, 4: 455 
 
 c. Property Subject to Mortgage; After- Ac- 
 quired Property. 
 
 Fixtures, see Fixtures. 
 
 By De Facto Corporation, see Corporations, 
 
 156. 
 Effect of Mortgage on Right of Stoppage in 
 
 Transit u, see Sale, 144. 
 See also infra. 80. 
 For Editorial Notes, see infra, VII. 4, 6. 
 
 13. A ring for the finger, although an ar- 
 ticle of personal adornment, is a proper sub- 
 ject for a chattel mortgage. Salabes v. 
 Castelberg. 98 Md. 645, 57 Atl. 20. 64: 800 
 
 14. A valid chattel mortgage may be made 
 by the owner of property in possession of 
 another under an execution. Gardner v. 
 Bunn, 132 111. 403, 23 N. E. 1072, 7: 729 
 After-acquired property or things not in 
 
 esse generally. 
 
 15. A mortgage of after-acquired property 
 is good and valid; and the lien of the mort- 
 gage attaches as soon as the property is 
 acquired by the mortgagor. Akers v. Row- 
 an. 33 S. C. 451, 12 S. E. 165, 10: 705 
 
 16. A mortgage of chattels to be acquired 
 is not valid against one who takes actual 
 possession of them under another mortgage 
 executed by the mortgagor after they are 
 acquired by him. New England Nat. Bank 
 v. Northwestern Nat. Bank, 171 Mo. 307. 
 71 S. W. 191, 60: 256 
 
 17. A deed of trust on a stock of goods, 
 executed in good faith to secure a bona fide 
 
 debt, and extending to cover after-acquired 
 property, duly recorded, is not fraudulent 
 per se, or prima facie fraudulent, as to sub- 
 sequent creditors with notice, in equity. 
 Horner-Gaylord Co. v. Fawcett, 50 W. Va. 
 487, 40 S. E. 564, 57: 869 
 
 18. A mortgage executed in the name of 
 a third person, on chattels not yet acquired 
 by the mortgagor, which does not purport to 
 cover after-acquired property, does not bind 
 such property as against a mortgage to an- 
 other person, executed by the mortgagor in 
 his own name, after the property has come 
 into his possession. New England Nat. 
 Bank v. Northwestern Nat. Bank, 171 Mo. 
 307, 71 S. W. 191, 60: 256 
 
 19. An instrument which assumes to con- 
 vey or encumber a thing not in esse is a 
 mere executory contract which does not, 
 "without a new intervening act," create any 
 legal right to, or interest in, the thing to 
 which it relates. Battle Creek Valley Bank 
 v. First Nat. Bank, 62 Neb. 825, 88 N. W. 
 145, 56: 124 
 Future earnings. 
 
 For Editorial Notes, see infra, VII. 4. 
 
 20. Claims for money not yet earned may 
 be the subject of a valid chattel mortgage. 
 Sandwich Mfg. Co. v. Robinson, 83 Iowa, 
 567, 49 N. W. 1031, 14: 126 
 
 21. A mortgage on threshing-machine ac- 
 counts not yet earned is void as to them for 
 lack of definite description, where they are 
 described only as all such accounts which 
 shall be earned up to the time the mortgage 
 debt is fully paid by a threshing-machine 
 which is also included in the mortgage. Id. 
 Future crops. 
 
 Contract for Interest in Future Crops of 
 
 Peaches, see Contracts, 373. 
 Effect of Mortgagor's Death, see Contracts, 
 
 770. 
 For Editorial Notes, see infra, VII. 2, 
 
 4, 10. 
 
 22. A mortgage of future crops for suc- 
 cessive years is invalid to pass any interest 
 in a crop planted after the current year 
 in which the mortgage was executed. Loftiir 
 v. Hines, 107 N. C. 360, 12 S. E. 197, 10: 490 
 Increase of animals. 
 
 For Editorial Notes, see infra, VII. 1. 
 
 23. A provision in a mortgage of domestic 
 animals, assuming to give the mortgagee a 
 lien upon the increase to be thereafter be- 
 gotten, is nothing more than an agreement 
 for a lien, which, without possession, vests 
 no legal right to, or interest in, such in- 
 crease. Battle Creek Valley Bank v. First 
 Nat, Bank, 62 Neb. 825, 88 N. W. 145, 
 
 56: 124 
 
 Articles not yet manufactured. 
 For Editorial Notes, see infra, VII. 4. 
 
 24. A mortgage on chattels afterwards 
 manufactured does not give the mortgagee 
 a sufficient title to sustain an action for con- 
 version. Deeley v. Dwight, 132 N. Y. 59, 
 30 N. E. 258, 18:298 
 
 25. A mortgage, in a lease of a brickyard, 
 upon clay and materials for brick, as well as 
 manufactured brick, Avill not create a lien 
 on the clay that has not been manufactured 
 or in any way set apart for that purpose.
 
 CHATTEL MORTGAGE, II. d. 
 
 458 
 
 T. B. Townsend Brick & C. Co. v. Allen, 
 62 Kan. 311, 62 Pac. 1008, 52: 323 
 
 d. Possession; Power to Sell. 
 
 Permitting Mortgagee to Take Possession, 
 as Act of Bankruptcy, see Bankruptcy, 
 6. 
 
 Parol Evidence as to, see Evidence, 1009. 
 
 See also supra, 14. 
 
 Permitting mortgagor to retain possession 
 
 or sell generally. 
 Change of Possession of Pledge, see Pledge 
 
 and Collateral Security, 3-12. 
 Change of Possession of Personalty Sold, 
 
 see Sale, I. b. 
 Conclusiveness on Mortgagee of Warranty 
 
 by Mortgagor, see Sale, 59. 
 See also infra, 42, 49. 
 For Editorial Notes, see infra, VII. 2, 5. 
 
 26. At common law no valid mortgage 
 could be made unless the custody and pos- 
 session of the property were delivered to and 
 retained bv the mortgagee. McFadden v. 
 Blocker, 2 Ind. Terr. 260. 48 S. W. 1043, 
 
 58: 878 
 
 27. Permitting a mortgagor to remain in 
 possession of chattels until forfeiture does 
 not give him such a badge of ownership that 
 an innocent purchaser from him will have 
 an equity superior to that of the mortgagee. 
 National Bank of Commerce v. Morris, 114 
 Mo. 255, 21 S. W. 511, 19: 463 
 
 28. An agreement that the mortgagor of 
 chattels may remain in possession, and sell 
 or dispose of the mortgaged property for 
 his own use, renders the mortgage fraudu- 
 lent as to creditors, whether the agreement 
 is contained in the instrument, or is inde- 
 pendent of it. Hangen v. Hachemeister, 114 
 N. Y. 566. 21 N. E. 1046, 5: 137 
 
 29 The presumption of fraud created by 
 the mortgagor's retention of possession of 
 mortgaged property where the mortgage is 
 not recorded is not conclusive in Oregon, 
 where the statutes have not materially 
 changed the common law on that subject. 
 Marks v. Miller, 21 Or. 317, 28 Pac. 14, 
 
 14: 100 
 
 30. A mortgage on a stock of merchandise 
 under which the mortgagor remains in pos- 
 session and is allowed to sell the goods 'or 
 his own benefit, is void as against his credi- 
 tors; and it is immaterial whether he sells 
 any of the goods or not, as the tacit agree- 
 ment or understanding that he may sell, and 
 not the sale itself, is what vitiates the en- 
 cumbrance. Hangen v. Hachemeister, 114 N. 
 Y. 566, 21 N. E. 1046. 5: 137 
 
 31. An indemnity chattel mortgage upon 
 a stock of goods is not void, as matter ol 
 law, in favor of creditors of the mortgagor, 
 because of an extraneous agreement that he 
 may continue to sell the goods in the usual 
 course of trade, and use the proceeds to re- 
 plenish the stock and defray the expenses 
 of the business, applying the balance in dis- 
 charge of the mortgage indebtedness, under 
 a statute giving him the right to possession 
 until foreclosure and sale; its invalidity de- 
 
 pends upon the finding of fraud as a matter 
 of fact. Ephraim v. Kelleher, 4 Wash. 243, 
 29 Pac. 985, 18: 604 
 
 32. A chattel mortgage covering a stock 
 of goods and store fixtures is valid as to the 
 fixtures, in the absence of actual fraudulent 
 intent on the part of the mortgagee, though 
 void as to the goods by reason of a pro- 
 vision allowing the mortgagor to retain and 
 sell them. Hayes v. Westcott, 91 Ala. 143, 
 SSo.337. 11:488 
 
 33. A provision for the retention of pos- 
 session by a mortgagor of a stock of goods, 
 with the right to sell them in the ordinary 
 and usual course of trade, does not make the 
 instrument invalid, provided it appears that 
 the sales are to be for the benefit of the 
 mortgagee, and the mortgagor is to account 
 to him for the proceeds of the sales. Noyes 
 v. Ross, 23 Mont. 425, 59 Pac. 367, 47: 400 
 Credit sales by mortgagor. 
 
 34. Credit sales should, under a chattel 
 mortgage of a stock of goods permitting the 
 mortgagor to retain possession and seil for 
 cash or credit, all be deemed cash payments 
 paid over to apply on the debt, in favor of 
 other creditors of the mortgagor, although 
 they are in fact uncollected at the time of 
 the accounting. Noyes v. Ross, 23 Mont. 
 425, 59 Pac. 367, 47 : 400 
 
 35. A provision that a mortgagor may 
 give credit for thirty days on sales from a 
 mortgaged stock of goods, for which he is 
 to account to the mortgagee, does not show 
 bad faith, or make the mortgage invalid. 
 
 Id. 
 Mortgagor's retention of part of proceeds. 
 
 36. A reasonable monthly allowance to a 
 mortgagor, provided for in a chattel mort- 
 gage as compensation for his servic.es to the 
 mortgagee after the latter takes possession, 
 will not make the mortgage fraudulent. 
 Noyes v. Ross, 23 Mont. 425, 59 Pac. 367, 
 
 47: 400 
 
 37. A provision that a mortgagor of a 
 stock of goods may retain his necessary liv- 
 ing expenses out of the proceeds of sales for 
 which he is to account to the mortgagee 
 does not make the mortgage invalid. Id. 
 Effect of mortgagee's taking possession. 
 For Editorial Notes, see infra, VII. 5, 8. 
 
 38. Delivery of chattels to a mortgagee 
 cures all defects in the mortgage. Garner 
 v. Wright, 52 Ark. 385, 12 S. W. 785, 
 
 6: 715 
 
 39. A chattel mortgage by a man to his 
 wife, which is fair on its face and given to 
 secure an honest claim, will be valid if she 
 takes possession of the property two days 
 after it is given, and retains control until 
 after an attachment is levied on the stock, 
 retaining the proceeds of sales upon her 
 claim, and not receiving them for the bene- 
 fit of the mortgagor. Sabin v. Wilkins, 31 
 Or. 450, 48 Pac. 425, 37: 465 
 
 40. A mortgagee of chattels who has them 
 in possession does not lose his security by 
 lending them to the mortgagor, although the 
 mortgage is not filed or recorded. Garner v. 
 Wright, 52 Ark. 385, 12 S. W. 785, 6: 715
 
 454 
 
 CHATTEL MORTGAGE, III. 
 
 III. Filing; Recording; Renewing. 
 
 For Editorial Notes, see infra, VII. 2, 5. 
 10. 
 
 41. An adjudication in voluntary insolven- 
 cy, pursuant to the debtor's allegation of his 
 inability to pay all his debts in full, is suffi- 
 cient to show that fact, if any such showing 
 is necessary, for the purpose of asserting the 
 invalidity of a chattel mortgage because not 
 promptly recorded. Ruggles v. Cannedy, 127 
 Cal. 290, 53 Pac. 911, 46: 371 
 Necessity of filing or recording. 
 Recording of Pledge, see Pledge and Collat- 
 eral Security, 11, 12. 
 
 Receiver's Power to Set Aside Unrecorded 
 Mortgage, see Receivers, 53. 
 
 Necessity of Recording Contract of Condi- 
 tional Sale, see Sale, 43-46. 
 
 See also supra, 28, 40. 
 
 For Editorial Notes, see infra. VII. 10. 
 
 42. The interest given general creditors of 
 an insolvent estate by statutes providing for 
 its distribution is sufficient to entitle them, 
 through the administrator, to attack a chat- 
 tel mortgage thereon not recorded before the 
 death of the mortgagor, under a statute pro- 
 viding that no mortgage of personal proper- 
 ty, where the mortgagor retains actual pos- 
 session thereof, is valid as against existing 
 creditors, unless recorded. Blackman v. 
 Baxter, 125 Iowa. 118, 100 N. W. 75, 70: 250 
 
 43. Actual notice of the existence of an 
 unrecorded mortgage creates no lien as to 
 strangers, under a statute providing that 
 the mortgage shall be a lien from the time 
 it is filed for record, and not before. Mc- 
 Fadden v. Blocker, 3 Ind. Terr. 224, 54 S. W. 
 873, 58: 894 
 
 44. A warehouse receipt is subject to a 
 statute respecting the acknowledgment and 
 recording of an assignment of goods by way 
 of mortgage, when the receipt is issued by 
 a debtor upon his own property in his own 
 possession, as a pledge to secure his debt. 
 Franklin Nat. Bank v. Whitehead, 149 Ind. 
 560, 49 N. E. 592, 39: 725 
 Sufficiency. 
 
 See also supra, 3. 
 
 45. The failure to record with a chattel 
 mortgage a receipt agreeing to surrender it 
 in case of failure to procure the discharge 
 of a prior mortgage does not prevent the 
 record of the mortgage from operating as 
 notice to third persons to whom the mort- 
 gagor sells the property. National Bank of 
 Commerce v. Morris, 114 Mo. 255, 21 S. W. 
 511, 19: 463 
 Time. 
 
 See also infra, 76. 
 
 46. A chattel mortgage filed as soon as 
 possible takes effect from delivery as against 
 an intermediate attachment, where the stat- 
 ute makes it void as against creditors and 
 subsequent purchasers or lien holders, unless 
 it shall be "forthwith" filed. Baker v. Smel- 
 eer, 88 Tex. 26, 29 S. W. 377, 33: 163 
 
 47. A chattel mortgage is filed "forth- 
 with" as required by statute when filed as 
 soon as the proper office opens in the morn- 
 ing after its delivery, which was at night. 
 
 Id. 
 
 48. A chattel mortgage withheld from rec- 
 ord beyond a time reasonably necessary for 
 its prompt recordation is void against cred- 
 itors whose claims have arisen between the 
 date of its execution and the date of its re- 
 cordation, even if they have acquired no lien, 
 under Cal. Civ. Code, 2957, making the rec- 
 ord a condition of the validity of such a 
 mortgage as against creditors. Ruggles v. 
 Cannedy, 127 Cal. 290, 53 Pac. 911, 46: 371 
 
 49. One who sells another goods on credit 
 during the interval between the making and 
 recording of a mortgage on the latter^ stock 
 in favor of a third person, under which no 
 possession was taken, and who, after the 
 recording of such mortgage, takes another 
 mortgage on the stock to secure his claim, 
 under which he takes possession, has a right 
 to the stock which is superior to that of the 
 first mortgage, under How. Stat. 6193. 
 Dempsey v. Pforzheimer, 86 Mich. 652, 49 
 N. W. 465, 13:388 
 Place. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 
 295-299. 
 
 See also infra, 55. 
 For Editorial Notes, see infra, VII. 10. 
 
 50. The recordation of a mortgage upon 
 personal property which is removed from one 
 county to another before the mortgage is re- 
 corded must, to be valid against creditors, 
 be in the latter county, under Cal. Civ. Code, 
 2959, which provides for its record in the 
 county in which the mortgagor resides, "and 
 also in the county in which the property is 
 situated or to which it may be removed," 
 and 2965, which provides that in case mort- 
 gaged property shall thereafter be removed 
 to another county it must be recorded with- 
 in thirty days after removal, the latter sec- 
 tion not applying to property removed be- 
 fore the mortgage is recorded. Fassett v. 
 Wise, 115 Cal. 316, 47 Pac. 47, 36: 505 
 Effect. 
 
 See also infra, 59, 75, 76. 
 
 For Editorial Notes, see infra, VII. 10. 
 
 51. The filing of a chattel mortgage which 
 is witnessed only by the mortgagee and one 
 other person, while the statute requires two 
 witnesses, does not operate to give construc- 
 tive notice of its existence. Donovan v. St. 
 Anthony & D. Elevator Co. 8 N. D. 585, 80 
 N. W. 772, 46: 721 
 
 52. The filing of a chattel mortgage for 
 record does not impart constructive notice 
 to a commissiion merchant to whom the 
 mortgaged property is sent for sale, and who 
 sells it and pays the proceeds, less his com- 
 mission, to his consignor. Greer v. Newland. 
 70 Kan. 310 ; 77 Pac. 98, 70: 554 
 Mortgage by nonresident. 
 
 53. No valid record can be made of chattel 
 mortgages where the mortgagor resides out 
 of. and the property is within, the state, 
 under a statute providing for the recording 
 of mortgages, but omitting to provide for 
 eases where the mortgagor resides out of the 
 state. ' McFadden v. Blocker, 2 Ind. Terr. 
 200, 48 S. W. 1043, 58: 878 
 
 54. An amendment of the law providing 
 for the recording of mortgages, so as to per- 
 mit the record of a chattel mortgage execut-
 
 CHATTEL MORTGAGE, IV. a. 
 
 455 
 
 ed by a nonresident, which could not then be 
 done, will not perfect the lien of an existing 
 mortgage as against the lien of a pending 
 attachment suit, although the amendment 
 provides that all mortgages theretofore ex- 
 ecuted and recorded shall be valid, and the 
 mortgage was actually recorded before the 
 suit was begun. Id. 
 
 55. The recording of a chattel mortgage is 
 of no effect under a statute requiring its 
 record at the mortgagor's place of .residence, 
 where the property is situated within, but 
 the mortgagor resides out of, the state. Id. 
 
 56. Failing to provide for the recording of 
 chattel mortgages executed by nonresidents 
 on property within the state, when providing 
 for recording those executed by residents, 
 does not require the treatment of the former 
 class as at common law, so that the trans- 
 action can be upheld, as against persons 
 with notice, by showing its fairness. Mc- 
 Fadden v. Blocker, 3 Ind. Terr. ,224, 54 S. W. 
 873. " 58: 894 
 Renewal. 
 
 Validity of, as Unlawful Preference, see As- 
 signments for Creditors, 73. 
 For Editorial Notes, see infra, VII. 10. 
 
 57. Affidavits for renewal of a perpetual 
 mortgage need not state the amount of ma- 
 tured indebtedness if the obligations, ma- 
 tured and unmatured, exceed the amount of 
 the mortgage. Chafev v. Mathews, 104 
 Mich. 103. 62 N. W. 141, 27: 558 
 
 58. An affidavit of a renewal of a chattel 
 mortgage in favor of a corporation after it 
 is received and filed by the register of deeds 
 of the county is not void, so as not to impart 
 constructive notice of the lien of the mort- 
 gage, by reason of the fact that the affidavit 
 is sworn to before a notary public who is 
 an officer and stockholder in said corpora- 
 tion. Fair v. Citizens' State Bank, 70 Kan. 
 612. 79 Pac. 144, 67:851 
 
 59. A chattel mortgage regular upon its 
 face, duly filed for record, and accompanied 
 by an affidavit of renewal, filed in proper 
 time, and regular upon its face, and regular 
 in fact, except for the latent defect that 
 the notary public who administered the 
 oath was a stockholder in the mortgagee 
 corporation, imparts notice as fully as if 
 such defect did not exist. Id. 
 
 60. Where a firm consisting of two part- 
 ners being the owners of horses, executed a 
 chattel mortgage on them to plaintiff, which 
 was duly filed, arid afterwards one of the 
 partners sold his interest in the horses to 
 the other, and received from him a. chattel 
 mortgage on them to secure the purchase 
 money, and died before the time for renew- 
 ing the first mortgage, and, after the time 
 for renewing it, his administrator took the 
 horses under the latter mortgage, the plain- 
 tiff, although he neglected to renew his 
 mortgage by filing the affidavit to renew 
 the same, required by Wis. Rev. Stat. 2315, 
 may recover the horses of defendant after 
 a demand and refusal, although creditors 
 had filed claims with him against the estate 
 of his intestate; such recovery being sub- 
 ject to the right of the surviving partner, 
 or of the defendant, as administrator, to re- 
 
 deem them from plaintiffs mortgage, by pay- 
 ing the debt it was given to secure. Ullman 
 v. Duncan, 78 Wis. 213, 47 N. W. 266, 9: 683 
 
 01. Under Wis. Rev. Stat. 2315, which 
 provides for renewing chattel mortgages, the 
 only effect, as to creditors, of a failure to re- 
 new a chattel mortgage, is to render it in- 
 valid as against such creditors of the mort- 
 gagor as obtain liens upon the property aft- 
 er the time expires to renew the mortgage. 
 
 Id. 
 
 62. A subsequent mortgagee with notice of 
 prior mortgage is not a subsequent mortga- 
 gee in good faith as to whom the refiling of 
 a chattel mortgage is necessary, under Kan. 
 Gen. Stat. 1889, ^ 3905, the words "subse- 
 quent purchasers" and "subsequent mort- 
 gagees in good faith," in If 3905, mean only 
 purchasers and mortgagees who purchased 
 or took their mortgages after the expiration 
 of the year from the filing of the mortgage. 
 Howard v. First Nat. Bak, 44 Kan. 549, 24 
 Pac. 983, 10: 537 
 
 IV. Effect; Rights of Parties; Priorities, 
 a. In General. 
 
 Fonn of Action against Commission Mer- 
 chant Selling Mortgaged Property, see 
 Election of Remedies, 20. 
 
 What Constitutes Fixtures as Between 
 Mortgagor and Mortgagee, see Fixtures. 
 
 Mortgagee's Rights in Proceeds of Insurance 
 Procured by Donee, see Insurance, 1164. 
 
 Mortgagee's Right to Maintain Trover, see 
 Trover, 4, 5. 
 
 Rights of Mortgagee against Warehouseman, 
 see Warehousemen, 15. 
 
 See also infra, 92. 
 
 63. That a mortgage of railroad stock was 
 given by the state, which owned a majority 
 of the stock, does not bind the state to use 
 its controlling interest in the road exclusive- 
 ly in the interest of its mortgagees of the 
 stock, or to impress the earnings received 
 by the lessor of the road with a trust for 
 the benefit of such mortgagees. Gibson v. 
 Richmond & D. R. Co. 37 Fed. 743, 2: 467 
 
 64. Railroad bondholders to whom stock of 
 the corporation has been mortgaged as col- 
 lateral security cannot maintain a suit in 
 equity to charge the lessor of the mortgaged 
 road with the earnings derived under the 
 lease, when such lease is not alleged to be 
 void or voidable as between the parties to 
 it. Id. 
 
 65. A chattel mortgage on real estate cre- 
 ates no lien thereon, as Idaho Rev. Stat. 
 3385, as amended, limits chattel mortgages 
 to property other tnan real estate. Beeler 
 v. C. C. Mercantile Co. 8 Idaho, 644, 70 Pac. 
 943, 60: 283 
 
 66. The title to mortgaged chattels re- 
 mains in the mortgagor under the Nebraska 
 statute until foreclosure of the mortgage. 
 Brummond Carriage Co. v. Mills, 54 Neb. 
 417, 74 N. W. 966, 40: 761 
 
 67. After condition broken, the mortgagee 
 under a chattel mortgage is the owner of the
 
 456 
 
 CHATTEL MORTGAGE, IV. b; V. 
 
 property covered by the mortgage, and the 
 mortgagor has only a right of redemption. 
 St. Marys Machine Co. v. National Supply 
 Co. 1 Ohio St. 535, 67 N. E. 1055, 64: 845 
 
 68. Where a receiver is appointed and 
 takes possession of chattels covered by a 
 chattel mortgage, after condition broken, as 
 provided in Ohio Rev. Stat. 1892, 3206a, 
 such chattels, to the extent that the same 
 may be required to satisfy the mortgage, 
 are the property of the mortgagee, and not 
 of the mortgagor. Id. 
 
 69. A mortgagee of personal property in 
 possession after condition broken is the le- 
 gal owner entitled to retain the possession, 
 subject to a liability to account for the sur- 
 plus of its value after the satisfaction of his 
 own claim. Root & McB. Bros. v. Davis, 51 
 Ohio St. 29, 36 N. E. 669, 23: 445 
 
 70. The possession ef a trustee in a deed 
 of trust which has been accepted by the 
 beneficiaries will authorize him to maintain 
 a suit to protect the property from attach- 
 ing creditors without joining all the bene- 
 ficiaries. Tittle v. Vanleer, 89 Tex. 174, 34 
 S. W. 715, 37:337 
 
 71. The fact that one of the debts secured 
 by chattel mortgage was due at the time the 
 mortgage was given does not nullify the de- 
 feasance clause so as to make the instru- 
 ment absolute before demand and refusal to 
 pay. Brown v. Grand Rapids Parlor Fur- 
 niture Co. 7 C. C. A. 225, 58 Fed. 286, 16 U. 
 S. App. 221, 22: 817 
 
 71a. The interest of a vendee of goods by 
 conditional sale will pass under a mortgage 
 of all his stock, so that the mortgagee may 
 maintain replevin for them against an in- 
 solvency receiver claiming them for the bene- 
 fit of all creditors. Chafey v. Mathews, 104 
 Mich. 103, 62 N. W. 141, 27: 558 
 
 Mortgage of vessel. 
 
 72. A mortgagee of a vessel, who after de- 
 fault takes possession, and thereupon con- 
 sents that the mortgagor may make two 
 trips with the vessel in consideration of the 
 assignment to him of the entire freight or 
 earnings of the vessel upon the trips, exclu- 
 sive of charges for towage, is entitled to the 
 net earnings of the vessel after payment of 
 claims and expenses for a trip, where, be- 
 fore it was completed, the vessel was seized 
 and a subsequent mortgagee paid off the 
 claims upon it and brought the vessel to 
 port. Kimball v. Farmers & M. Bank, 138 
 N. Y. 500, 34 N. E. 337, 20: 497 
 
 73. The rights of a first mortgagee of a 
 vessel who has not taken possession do not 
 affect the rights of the second and third 
 mortgagees, as between themselves, to the 
 profits from the use of the vessel, where 
 the second mortgagee has taken possession 
 and there has been a default on all the 
 mortgages. Id. 
 
 b. Priorities. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 292-204. 
 
 Over Lien for Rent, see Landlord and Ten- 
 ant, 221. 
 
 Over Agister's Lien, see Liens, 17-22- 
 
 Over Lien for Labor or Repairs, see Liens, 
 
 23-25. 
 
 See also supra, 12, 18, 46, 49, 54. 
 For Editorial Notes, see infra, VII. 10. 
 
 74. A chattel mortgage to secure a pre- 
 existing debt is a mortgage in good faith 
 within the meaning of N. J. act 1889, so as 
 to be entitled to priority over an unrecord- 
 ed contract of sale of which the mortgagee 
 had no notice. Knowles Loom Works v. 
 Vacher (N. J. Sup.) 57 N. J. L. 490, 31 Atl. 
 306, 33: 305 
 
 75. The recital of a chattel mortgage in a 
 subsequent mortgage upon the same prop- 
 erty, which is duly recorded, is not notice 
 to third parties of the lien of the former 
 mortgage, especially where the first mort- 
 gage is ineffectual by reason of the omis- 
 sion therefrom of the mortgagee's name. 
 Herr v. Denver Milling & M. Co. 13 Colo. 406, 
 22 Pac. 770, 6: 641 
 
 76. A chattel mortgage delivered uncon- 
 ditionally by the mortgagor to an unauthor- 
 ized third person, by whom under the mort- 
 gagor's directions it is filed for record, takes 
 effect, as between the mortgagor and mort- 
 gagee, from the time of the first delivery; 
 but it takes effect as to a second mortgagee, 
 who receives his mortgage before such ac- 
 ceptance, only from the time of its accept- 
 ance by the mortgagee. Rogers v. Head's 
 Iron Foundry, 51 Neb. 39, 70 N. W. 527, 
 
 37 : 429 
 
 77. A lessor's mortgage of his interest in 
 crops raised by a tenant on leased land and 
 still in the possession of the tenant and un- 
 divided gives the mortgagee a right para- 
 mount to that of the creditors of the mort- 
 gagor under garnishment proceedings subse- 
 quent to the mortgage. Riddle v. Dow, 98 
 Iowa, 7, 66 N. W. 1066, 32: 811 
 
 78. Necessary expenses incurred in culti- 
 vating and completing a crop by one who 
 has a deed of trust upon it may give a prior 
 right of payment out of the crop, even if 
 any of such expenses are incurred outside 
 of the contract. Cox v. Martin, 75 Miss. 
 229. 21 So. 611, 36: 800 
 
 79. A bona fide purchaser for value and 
 without notice of a mortgage given without 
 any consideration and which is not accom- 
 panied by any negotiable obligation holds 
 it as a valid encumbrance as against cred- 
 itors of the mortgagor, since his equities are 
 at least equal to theirs, and in such case the 
 legal title prevails. Economy Savings Bank 
 v. Gordon, 90 Md. 486, 45 Atl. 176, 48: 63 
 
 80. A mortgage by the holder of a bill of 
 sale of chattels which the seller did not at 
 the time possess is not notice to one who 
 takes a mortgage from the seller upon chat- 
 tels which he has purchased to fill the re- 
 quirements of the bill of sale, since it is 
 outside of the chain of the latter's title. 
 New England Nat. Bank v. Northwestern 
 Nat. Bank, 171 Mo. 307, 71 S. W. 191, 
 
 60: 256 
 
 V. Assignment; Satisfaction; Abandonment. 
 
 Effect of Mortgagors Death, see Contracts, 
 770.
 
 CHATTEL MORTGAGE, VI. 
 
 457 
 
 Assignment. 
 
 Assignee's Bight of Action on Indemnify- 
 ing Bond to Sheriff, see Parties, 87. 
 
 81. An assignment of a chattel mortgage 
 may be made by an indorsement on the mar- 
 gin thereof. Hodges v. Wilkinson, 111 N. C. 
 56, 15 S. E. 941, 17:545 
 
 82. One who pays for the maker a note se- 
 cured oy a chattel mortgage, and receives 
 a new note and mortgage therefor, cannot 
 claim as assignee of the former mortgage 
 when his own proves defective, if the orig- 
 inal intention was to cancel the former note 
 and mortgage. Herr v. Denver Milling & M. 
 Co. 13 Colo. 406, 22 Pac. 770, 6: 641 
 Satisfaction; discharge. 
 
 Payment of Indebtedness by Taking Notes, 
 see Payment, 10. 
 
 Agreement to Cancel, Inuring to Third Per- 
 son, see Pledge and Collateral Security, 
 31. 
 
 Keeping Tender Good, se Tender, 10. 
 
 83. The taking of a second mortgage to 
 secure the same debt secured by a first mort- 
 gage, and upon the same property, does not 
 operate as a satisfaction and release in law 
 of the first mortgage. Howard v. First Nat. 
 Bank, 44 Kan. 549, 24 Pac. 983, 10: 537 
 
 84. To extinguish the lien of a chattel 
 mortgage by a tender, the proof should be 
 clear that the tender was fairly made and 
 deliberately and intentionally refused by tli 
 mortgagee, that sufficient opportunity was 
 afforded for the latter to ascertain the 
 amount due, and that a sum sufficient to 
 cover the whole amount due was absolutely 
 and unconditionally tendered. Moore v. 
 Norman, 43 Minn. 428, 45 N. W. 857, 9: 55 
 
 85. Tender of the amount due upon a 
 promissory note secured by a chattel mort- 
 gage, though made after the note has ma- 
 tured, extinguishes and discharges the lien 
 of the mortgage. Id. 
 
 86. A demand for the surrender of notes 
 will prevent a tender from being effectual 
 so as to discharge a chattel mortgage secur- 
 ing the notes, where the creditor in good 
 faith claims that a larger sum is due. 
 Moore v. Norman. 52 Minn. 83, 53 N. W. 
 809, 18: 359 
 Abandonment; waiver. 
 
 For Editorial Notes, see infra, VII. 7. 
 
 87. The delivery of mortgaged property by 
 the mortgagee to a stranger is not an aban- 
 donment of the lien of the mortgage. Rog- 
 ers v. Heads Iron Foundry, 51 Neb. 39, 70 
 N. W. 527, . 37: 429 
 
 88. The lien of a chattel mortgage upon 
 property exempt from execution is not 
 waived by obtaining judgment upon the 
 notes secured by the mortgage and levying 
 upon the mortgaged property under execu- 
 tion thereon, although the exempt property 
 is set off to the debtor as such; but sucn 
 lien may be enforced under the terms or the 
 mortgage in a jurisdiction where the mort- 
 gage creates only a lien and does not trans- 
 fer the legal title, as there is no such incon- 
 sistency between remedies as there would 
 be where the levy asserted title in the mort- 
 gagor while the enforcement of the mortgage 
 
 claimed title in the mortgagee. Barchard v. 
 Kohn, 157 111. 579, 41 N. E. 902, 29: 803 
 89. The levy of an attachment upon prop- 
 erty covered by a chattel mortgage, although 
 the plaintiff knows of the mortgage and has 
 bought it for the purpose of enabling him 
 to attach the property, will constitute a 
 waiver of the lien of the mortgage, since 
 the liens under the mortgage and the attach- 
 ment are so different and inconsistent that 
 they cannot exist at the same time, partic- 
 ularly in favor of the same person. Dix v. 
 Smith, 9 Okla. 124, 60 Pac. 303, 50: 714 
 
 VI. Enforcement. 
 
 Statutory Limitations on Right of, see Con- 
 stitutional Law, 696, 697. 
 
 Exclusiveness of Jurisdiction, see Courts, 
 421, 422. 
 
 Presumption as to, see Evidence, 668. 
 
 Intervention by Attachment Creditors in Ac- 
 tion for, see Parties, 218. 
 
 See also supra, 68. 
 
 For Editorial Notes, see infra, VII. 9. 
 
 90. Taking possession of mortgaged chat- 
 tels and selling them at once is authorized 
 by a chattel mortgage which provides that 
 the mortgagee may take possession and sell 
 whenever he "shall choose to do so," espe- 
 cially when the statute provides that the 
 mortgagee is entitled to possession in the ab- 
 sence of stipulation to the contrary, not- 
 withstanding the fact that the mortgage is 
 given to secure notes which are payable at 
 different times in the future. Robison v. 
 Gray, 90 Iowa, 699, 57 N. W. 614, 23: 780 
 
 91. A stipulation in a chattel mortgage 
 authorizing the mortgagee to take posses- 
 sion of the mortgaged property upon failure 
 of the mortgagor to make payments secured 
 thereby is not contrary to public policy, and 
 will authorize the mortgagee to take peace- 
 able possession of the property, even against 
 the will of the mortgagor. Singer Mfg. Co. 
 v. Rios, 96 Tex. 174, 71 S. W. 275, 60: 143 
 
 92. Creditors who have no title or right 
 of possession to mortgaged property cannot 
 complain that the mortgagee takes posses- 
 sion thereof and sells at auction before the 
 maturity of his debt, and without any au- 
 thority contained in his mortgage to sell at 
 that time. Noyes v. Ross. 23 Mont. 425, 59 
 Pac. 367, 47: 400 
 
 93. Under a mortgage securing several 
 notes, which provides that in case of default 
 in payment of one and sale of the mortgaged 
 property the mortgagee may appropriate 
 the fund to the payment of the amount of 
 principal and interest hereby secured, where 
 some of the notes have been defaulted, an 
 attachment of property not included in the 
 mortgage has been made to collect the 
 amount due on them, and a sale made un- 
 der the mortgage, the mortgagee may ap- 
 propriate the fund realized from such sale 
 to notes not due, in order to rean the bene- 
 fit of the attachment by applying its pro- 
 ceeds upon the matured notes. Hutchings v. 
 Reinhalter, 23 R. I. 518, 51 Atl. 429, 58: 680
 
 458 
 
 CHATTEL MORTGAGE, VII. (Ed. Notes.) 
 
 VII. Editorial Notes. 
 
 i. In general; what constitutes. 
 
 Conflict of laws as to chattel mortgages. 
 64: 353. 
 
 On buildings on leased premises. 21: 348. 
 
 What constitutes. 6: 641.* 
 
 Sale; when not construed a mortgage. 1: 
 240.* 
 
 When transaction deemed a chattel mort- 
 gage rather than a condi- 
 tional sale. 6: 643.* 
 
 Sale of chattels absolute on its face shown 
 by parol to be intended as 
 a mortgage. 6: 643.* 
 
 Title in mortgagee. 6: 641.* 
 
 Mortgaging or pledging property as a 
 ground of attachment. 
 30: 479. 
 
 Personal liability of purchaser of property 
 subject to. 59: 737. 
 
 Title to increase of animals as between 
 mortgagee of dam and 
 other claimants. 17: 82. 
 
 Garnishment of claim to surplus on chattel 
 mortgage. 59: 370. 
 
 2. Execution, validity, construction. 
 
 Delivery and acceptance. 6: 642.* 
 
 Registration and filing as equivalent to de- 
 livery. 13: 388* 
 
 Description of goods. 3: 795.* 
 
 Retaining possession of chattels by mort- 
 gagor. 5: 137.* 
 
 Assumption of individual debts of partner 
 by mortgage of partner- 
 ship property. 29: 692. 
 
 When fraudulent. 5: 137.* 
 
 Retention of possession by mortgagor. 
 
 6: 138.* 
 
 Retention of possession with power of 
 sale. 5: 139.* 
 
 Right of creditors at large to assail mort- 
 gage. 5: 140.* 
 
 On crops generally. 10: 490.* 
 
 3. Pre-existing debt as consideration for. 
 
 As against other creditors or equities. 33: 
 
 305. 
 
 As against prior claims. 33: 305. 
 As against subsequent claims. 33: 308. 
 Of purchasers and mortgagees. 33: 
 
 308. 
 Judgments and attachments. 33: 
 
 309. 
 
 Where there was an extension of time 
 or a new consideration. 
 33: 309. 
 
 To give rights as a bona fide purchaser or 
 mortgagee. 19: 590. 
 
 4. On what property. 
 
 Future crops. 23: 450. 
 
 Future accounts or earnings. 14: 126. 
 
 Efficacy of mortgage on chattels to be manu- 
 factured or acquired, as 
 independent articles, and 
 not as the increase or 
 fruits of existing proper- 
 ty. 18: 298. 
 
 The general rule. 18: 298. 
 Effect as between the parties. 18: 298. 
 Effect of further act to perfect title in 
 mortgagee. 18: 298. 
 
 Property contemplated as additions to 
 
 other property. 18: 299. 
 The exception established by equity. 
 
 18: 300. 
 Application of the equitable exceptions. 
 
 18: 301. 
 Where the equitable exception is not 
 
 recognized. 18: 302. 
 The attitude of courts of law towards 
 the equitable doctrine. 
 18: 302. 
 
 Sufficiency of record notice. 18: 303. 
 The effect of Holroyd v. Marshall in 
 
 England. 18: 303. 
 
 On buildings upon leased premises. 21: 347. 
 5. On stock of merchandise. 
 Property covered. 13: 390.* 
 Effect of a provision or agreement giving 
 the mortgagor possession 
 with power of sale. 18: 
 604. 
 
 Mortgage showing possession with pow- 
 er of sale. 18: 605. 
 Stipulation that mortgagor may 
 dispose of proceeds. 18: 
 605. 
 
 Possession with power of sale sim- 
 ply. 18: 606. 
 
 Attempting to cover future-ac- 
 quired property. 18: 606. 
 Provisions as to keeping up stock. 
 
 18: 607. 
 Provisions for paying business and 
 
 living expenses. 18: 607. 
 Construction of particular mort- 
 gages. 18 : 608. 
 Effect of extraneous agreement. 18: 
 
 608. 
 Kind of agreement necessary. 18: 
 
 609. 
 Effect of evidence of good faith. 
 
 18: 609. 
 
 Sales by mortgagor as agent for mort- 
 gagee. 18: 609. 
 
 Requirement to account for pro- 
 ceeds. 18: 609. 
 
 Construction of particular mort- 
 gages. 18: 610. 
 
 Application of proceeds. 18: 610. 
 How far the instrument is void in toto. 
 
 18: 610. 
 
 Effect of recording acts. 18: 610. 
 Effect of statutes making fraud a ques- 
 tion for the jury. 18: 611. 
 Effect of mortgagee's taking possession. 
 
 18: 611. 
 
 Analysis of t'he law in different juris- 
 dictions. 18: 611. 
 
 6. Efficacy of chattel mortgage on fix- 
 tures. 
 
 Generally. 15: 56. 
 
 As against mortgagor and persons consent- 
 ing to or recognizing them 
 as valid. 15: 56. 
 As against landlord. 15: 56. 
 As against real-estate mortgage. 15: 57. 
 Effect of execution of chattel mortgage be- 
 fore annexation. 15: 57. 
 Effect of agreement that articles shall re- 
 main chattels. 1-5: 58. 
 Execution of mortgage as evidence of agree- 
 ment. 15: 59.
 
 CHATTELS-CHECKS. 
 
 459 
 
 Effect of chattel mortgage as against sub- 
 sequent purchaser or en- 
 cumbrancer. 15: 61. 
 
 Filing mortgage as constructive notice. 15: 
 61. 
 
 Prior New Hampshire decisions. 15 : 63. 
 
 7. Loss or waiver of lien. 
 
 Waiver of lien of, by attachment or execu- 
 tion. 50: 714. 
 
 Effect of unaccepted tender on lien of. 33: 
 
 231. 
 
 Generally. 33: 235. 
 Before and at maturity. 33: 235. 
 After maturity. 33: 235. 
 By whom made. 33: 236. 
 Sufficiency. 33 : 236. 
 
 In amount. 33: 236. 
 Made on condition. 33: 236. 
 Other instances. 33: 237. 
 Equivalent of tender. 33: 237. 
 Remedy of the mortgagor. 33: 237. 
 
 8. Effect of "danger," "safety," or "in- 
 security" clause. 
 
 Generally. 23: 780. 
 
 Right to interfere with third persons. 23: 
 780. 
 
 Effect of taking possession. 23: 781. 
 
 How far right is without control. 23: 781. 
 
 The effect of malice. 23: 783. 
 
 Facts which justify taking possession. 23: 
 7*83 
 
 Selling. 23: 784. 
 
 Construction of different provisions and cir- 
 cumstances. 23: 784. 
 
 Other rights conferred. 23: 784. 
 
 9. Enforcement; remedies. 
 
 Chattel mortgagee as real party in interest 
 by whom action relating 
 to property must be 
 brought. 64: 618. 
 
 Effect of provision authorizing mortgagee 
 to take possession when he 
 deems himself insecure. 
 17: 209. 
 
 Amount in dispute in case of injunction to 
 restrain enforcement of, 
 against specific property. 
 61 : 785. 
 
 Injunction against execution sale of mort- 
 gaged chattels. 30:125. 
 
 On vessel; jurisdiction of admiralty as to. 
 66: 200, 234. 
 
 10. Priority; filing; recording; renewal. 
 
 Priority as between agister's lien, and chat- 
 tel mortgage. 17: 792. 
 
 Priority of mortgages on buildings upon 
 leased premises. 21 : 348. 
 
 Necessity of filing or recording as between 
 parties. 13: 388.* 
 
 Validity and effect of unrecorded chattel 
 mortgage. 13: 388. 
 
 Effect of actual notice of unrecorded mort- 
 gage. 13: 389.* 
 
 Necessity and effect of recording mortgage 
 of future crops. 23: 463. 
 
 Retroactive effect of filing chattel mortgages 
 for record in regard to 
 liens acquired on the same 
 property after the execu 
 tion of the mortgage. 33: 
 163. 
 
 Failure to record as fraud on other credi- 
 tors. 31 : 638. 
 
 Necessity of filing or recording in state 
 where property located. 
 64: 361. 
 
 Necessity of refiling or re-recording in state 
 to which property re- 
 moved after execution of 
 mortgage. 64: 356. 
 
 Renewal of mortgage; rules in different 
 states. 13: 389.* 
 
 CHATTELS. 
 
 Mortgage on, see Chattel Mortgage. 
 Liens on, see Lierjs. 
 Sale of, see Sale. 
 
 Editorial Notes. 
 
 Liability to servants of other persons for 
 injuries caused by con- 
 dition of. 46: 104. 
 
 CHEATING. 
 
 Conspiracy for, see Conspiracy, 16, 17; 
 
 Contracts, 600. 
 By Means of False Pretenses, see False 
 
 Pretenses. 
 Indictment for, see Indictment, etc., 103. 
 
 CHECKS. 
 
 I. In General; Nature of. 
 II. Presentation. 
 
 III. Certification. 
 
 IV. Bona Fide Holders. 
 V. Forged Paper. 
 
 VI. Editorial Notes. 
 
 As Accord and Satisfaction, see Accord and 
 
 Satisfaction, 15, and also infra, VI. 3. 
 For Individual Debt of Corporate Officer, 
 
 see Assumpsit, 44. 
 Given by Bailee for Goods, see Bailment, 37, 
 
 38. 
 Liability of Payee Indorsing Duplicate 
 
 Check Given for One Lost, see Banks, 
 
 67. 
 Indorsing "for Deposit," see Banks, 308, and 
 
 also infra, VI. 1. 
 Right of Holders of, on Bank's Insolvency, 
 
 see Banks, 329-332. 
 On Savings Bank, Payment of, see Banks. 
 
 369-378. 
 As Equitable Assignment, see Banks, 90 and 
 
 also infra, VI. 3. 
 As to Duties and Liability of Bank With 
 
 Respect to, see Banks, IV. a, 3, VIII. 
 
 10, 11, 14, 15. 
 Collection of, see Banks, IV. b, VIII. 14, 
 
 15. 
 Payable on ' "juent Day, see Bills and 
 
 Notes, 1
 
 460 
 
 CHECKS, L, II. 
 
 Depositor Giving Check to Bank for Ne- 
 gotiable Paper Purchased, as Bona Fide 
 Purchaser, see Bills and Notes, 254. 
 
 Indorsements by Secretary of Loan As- 
 sociation, see Building and Loan As- 
 sociations, 3. 
 
 For Draw Back to Passenger, see Carriers, 
 633. 634, 637. 
 
 Of Cashier, see Cashier's Checks. 
 
 Law Governing Collection of, see Conflict 
 of Laws, 43. 
 
 Effect of Principal's Indorsement of, see 
 Contracts, 214. 
 
 Tender of, as Compliance with Contract to 
 Transmit Money, see Contracts, 318. 
 
 For Subscription on Condition, see Con- 
 tracts, 836. 
 
 Punitive Damages for Refusal to Honor, see 
 Damages, 54. 
 
 Measure of Damages for Nonpayment, see 
 Damages, 164-167, 572. 
 
 Presumption as to Bank Drawn on, see Evi- 
 dence, 678. 
 
 Presumption as to Payment of, see Evi- 
 dence, 734. 
 
 Parol Evidence of Agreement to Surrender, 
 see Evidence, 1180. 
 
 Evidence as to Deposit of, see Evidence, 
 2181. 
 
 Proof of Drawer's Ignorance of Bank's In- 
 solvency, see Evidence, 2286. 
 
 Obtaining Property by Giving of, see False 
 Pretenses, 6; Indictment, etc., 23, 24. 
 
 Effect of, to Prevent Garnishment, see 
 Garnishment, 30, and also infra, "VT. 
 3. 
 
 Gift of, see Gift, 10, 19, 38. 
 
 Interest on, see Interest, 16, 78. 
 
 Limitation of Action on, see Limitation of 
 Actions, 89, 184, 185. 
 
 Limitation of Action for Wrongful Refusal 
 to Pay, see Limitation of Actions, 202. 
 
 Imputing to Principal, Agent's Knowledge 
 as to Cashier's Checks, see Notice, 45. 
 
 For Special Partner's Contribution, see 
 Partnership, 155. 
 
 Bank's Right to Recover Amount Paid to 
 Payee, see Parties, 9. 
 
 Payment by, see Payment, 13-20, and also 
 infra. VI. 5. 
 
 Agent's Authority to Indorse, see Principal 
 and Agent, 32-39, 64, and also infra, 
 VI. 1. 
 
 In Payment of Wages, see Statutes, 460. 
 
 Subrogation of Bank Paying, see Subro- 
 gation, 26. 
 
 Delivery by Telegraph Company to Wrong 
 Party, see Telegraphs, 44. 
 
 I. In General; Nature of. 
 
 For Editorial Notes, see infra, VT. 1. 
 
 1. It is an essential characteristic of a 
 check that it be payable on demand. Har- 
 rison v. Xioollet Nat. Bank, 41 Minn. 488, 
 43 N. W. 336, 5: 746 
 
 2. An instrument must be treated as a 
 check, which is headed by the name of a 
 bank and a date, and over the signature of 
 the cashier directs the payment to the 
 
 order of a third person of a certain amount 
 
 of cash, while at the bottom of the paper 
 
 it is directed to a banking firm. Exchange 
 
 Bank v. Sutton Bank, 78 Md. 577, 28 Atl. 
 
 563, 23: 173 
 
 Negotiability. 
 
 Negotiability of Bills or Notes, see Bills 
 
 and Notes, I. d. 
 For Editorial Notes, see infra, VI. 2. 
 
 3. A bank check is a negotiable instru- 
 ment although it does not recite any con- 
 sideration. Famous {Shoe & C. Co. v. Cross- 
 white, 124 Mo. 34, 27 S. W. 397, 26: 568 
 
 4. A statute declaring that a promissory 
 note shall be negotiable as an inland bill 
 of exchange, when expressed to be for value 
 received, does not prevent a check from 
 being negotiable without those words. Id. 
 
 5. A cashier's check drawn by a banker 
 upon himself "to the order of" another per- 
 son is a negotiable instrument. Henry v. 
 Allen, 151 N. Y. 1, 45 N. E. 355, 36: 658 
 
 II. Presentation. 
 
 For Editorial Notes, see infra, VI. 6. 
 
 What is a reasonable time for. 
 
 For Editorial Notes, see infra, VI. 6. 
 
 6. The holder of a check is under obli- 
 gation to an indorser thereon to present it 
 for payment not later than the next day 
 after its date. Carroll v. Sweet, 128 N. Y. 
 19, 27 N. E. 763, 13:43 
 
 7. It is the duty of the holder of a check, 
 if he receives it after banking hours, to 
 present it during banking hours of the next 
 day, if the bank is located in the same 
 town; if not, then to forward it by mail 
 the next day. Edminsten v. Herpolsheim- 
 er. 66 Neb. 94, 92 N. W. 138, 59: 934 
 
 8. A check must be presented not later 
 than the day following its receipt, in order 
 to hold the drawer liable, in the absence of 
 special circumstances, where the payee re- 
 ceives it in the place in which the bank on 
 which it is drawn is located. Id. 
 
 9. That a check is drawn on a bank in a 
 city where the collection of such paper is 
 made through a clearing house, and the 
 check is received after banking hours, does 
 not relieve the payee of the necessity of 
 presenting it the following day. Id. 
 Necessity of. 
 
 For Editorial Notes, see infra, VI. 6. 
 
 10. A check given by an insolvent to a 
 creditor cannot be collected after the insolv- 
 ent's death, without previous presentment 
 of certification. Bernard v. Whitney Nat. 
 Bank, 43 La. Ann. 50, 8 So. 702, *12: 302 
 Mode of. 
 
 For Editorial Notes, see infra, VI. 6. 
 
 11. A check is properly presented to a 
 bank for payment where the notary public 
 takes it to the bank during banking hours 
 for the purpose, and upon finding the doors 
 closed makes a demand upon the bank 
 president, although the Comptroller of the 
 Currency has taken charge of the bank. 
 Niblack v. Park Nat. Bank, 169 111. 517, 48 
 X. E. 438, 39: 159
 
 CHECKS, II. 
 
 461 
 
 12. It is negligence in the holder of a 
 check to send it directly to the drawee re- 
 siding in a distant place for payment; and 
 the holder is responsible for any loss oc- 
 casioned by adopting such course. Ander- 
 son v. Rodgers, 53 Kan. 542, 36 Pac. 1067, 
 
 27; 248 
 
 13. Sending a check by an indirect route 
 will not constitute negligence in presenting 
 it, if it reaches its destination as soon as 
 if sent direct, taking the full time allowed 
 by law for mailing it. First Nat. Bank v. 
 Buckhannon Bank, 80 Md. 475, 31 Atl. 302, 
 
 27: 332 
 
 Effect of delay. 
 Burden of Proving Harmlessness of, see 
 
 Evidence, 679, 680. 
 See also Payment, 20. 
 For Editorial Notes, see infra, VI. 6. 
 
 14. Delay in presenting a check for pay- 
 ment does not release the drawer unless 
 some loss has resulted to him frofa the de- 
 lay. Merritt v. Gate City Nat. Bank, 100 
 Ga. 147, 27 S. E. 979, 38: 749 
 
 15. The indorser of a check is released by 
 failure to present it for several days, dur- 
 ing which the bank fails and the collection 
 of the check is rendered impossible, when 
 there was a deposit out of which it would 
 have been paid if promptly presented. 
 Kirkpatrick v. Puryear, 93 Tenn. 409, 24 
 S. W. 1130, 22: 785 
 
 16. The maker of a check which the 
 payee fails to present for some time and 
 until after the bank has failed is damaged 
 thereby so as to be discharged from lia- 
 bility on the check where at the time of the 
 failure he had general and special deposits 
 in the bank for which he holds collateral 
 security which would be insufficient to pay 
 the amount which would remain in the bank 
 if the check were paid. Hamlin v. Simpson, 
 105 Iowa, 125, 74 N. W. 906, 44: 397 
 
 17. Failure of the payee of a check to 
 promptly present the same to the bank for 
 payment will release the maker from lia- 
 bility if he is injured thereby where the 
 bank subsequently fails, although his gen- 
 eral deposit in the bank was overdrawn at 
 the time where he had a special deposit in 
 the bank and had reasonable grounds to be- 
 lieve that the check would be paid because 
 of a promise by the cashier to allow him 
 to check against such special deposit. Id. 
 
 18. The payee of a check who fails to 
 make presentment within a reasonable time 
 assumes the risk of loss occasioned by the 
 insolvency of the drawee occurring in the 
 meantime. Anderson v. Rodgers, 53 Kan. 
 542, 36 Pac. 1067, 27: 248 
 
 19. Mere failure of an indorsee to pre- 
 sent a check for payment for eleven months, 
 during which time the maker pays the 
 amount to the payee on his assurance that 
 the check is mislaid and that he will return 
 it when found, will not estop him from en- 
 forcing payment, Avhere the maker "relied 
 wholly on the word of the payee in making 
 his payment. Bradley v. Andrus, 46 C. C. 
 A. 238, 107 Fed. 196, 53: 432 
 
 20. Delay in presenting a check at the 
 drawer's request, whereby its collection be- 
 
 comes impossible because of his insolvency, 
 operates as payment up to the amount of 
 the check in favor of an indorser who has 
 transferred it to the holder on account of 
 an antecedent debt. Carroll v. Sweet, 128 
 N. Y. 19, 27 N. E. 763, 13: 43 
 
 21. A check on an open bank account does 
 not constitute an assignment of the fund, 
 or take precedence of a subsequent at- 
 tachment levied on the fund before the 
 check is presented for payment or brought 
 to the notice of the bank, if such present- 
 ment is not made, or notice given, within 
 a ' reasonable time. Love v. Ardmore 
 Stock Exchange, 5 Ind. Terr. 202, 82 S. W. 
 721, 67:617 
 Delay in presenting check taken in payment 
 
 of other check. 
 
 22. Taking a substituted check from the 
 drawee of a worthless check who cannot 
 cash it, and then failing to use due dili- 
 gence in presenting the new check, on which 
 no amount of diligence could have obtained 
 payment, will not create any liability to the 
 drawer of the original check. First Nat. 
 Bank v. Buckhannon Bank, 80 Md. 475, 31 
 Atl. 302, 27 : 332 
 
 23. To hold the drawer of a check liable 
 after a collecting bank has surrendered it 
 to the drawee bank and taken for it the 
 latter's check on a third bank, the utmost 
 diligence to present the substituted check 
 for payment must be exercised by the col- 
 lecting bank. Anderson v. Gill, 79 Md. 312. 
 29 Atl. 527, 25: 200 
 
 24. The fact that the loss would have 
 fallen on the depositor if a check held for 
 collection had not been presented sooner 
 than was necessary, where the bank failed 
 before the time for collecting it expired, 
 does not relieve the collecting bank ot lia- 
 bility for the loss, if, having presented the 
 check before such failure and accepted the 
 drawee's check on another bank in pay- 
 ment, it delays presenting the latter until 
 it is worthless because of the failure of its 
 drawer. Id. 
 
 25. A bank which cashes a check, and 
 duly sends it for collection to its corre- 
 spondent, whose runner duly presents it, 
 with other checks, to the drawee, receiving 
 in payment the latter's check drawn on an- 
 other bank in the same city, which check 
 is dishonored because not presented for 
 two or more hours, during, which time the 
 drawee fails, cannot recover from an ac- 
 commodation indorser of the original check, 
 even though it is subsequently reclaimed 
 and duly protested. Comer v. Dufour, 95 
 Ga. 376,*22 S. E. 543, 30: 300 
 What will excuse failure to present. 
 
 26. Presentation of a check for payment, 
 and notice to the drawer of nonpayment, 
 are unnecessary when the drawer has or 
 leaves no funds on deposit for its payment 
 at the time when it should be presented, or 
 if he consents or agrees that the same shall 
 not be presented for payment. Under such 
 circumstances the drawer's liability becomes 
 fixed at that time without presentation and 
 notice, and whatever takes place afterwards 
 in the state of his account at the bank will
 
 462 
 
 CHECKS, III., IV. 
 
 not change the rights of the parties. Culver 
 v. Marks, 122 Ind. 554, 23 N. E. 1086, 
 
 7:489 
 
 27. Willingness on the part of the bank 
 officials to pay a check for the payment of 
 which there are no funds on deposit will not 
 render the presentation of the cheek for 
 payment necessary in order to charge the 
 drawer. Id. 
 
 28. Lack of money of the drawer in a 
 bank to meet a check, where he would have 
 provided for it or paid it if payment had 
 been insisted upon, does not relieve the 
 holder, who has taken it from an indorser 
 on an antecedent debt, from his obligation 
 to present it, or prevent his failure to do so 
 until collection becomes impossible from 
 operating as payment to the amount of the 
 check. Carroll v. Sweet, 128 N. Y. 19, 27 N. 
 E. 763, 13: 43 
 Necessity of notice of nonpayment. 
 
 29. A bank which has accepted a check 
 on deposit, with the depositor's indorse- 
 ment, discharges the indorser from liability 
 thereon by failing to notify him of its non- 
 payment for nearly a month, notwithstand- 
 ing it was lost in the mail when forward- 
 ed for collection, and the bank waited in 
 the hope that it would reach its destination. 
 Aebi v. Bank of Evansville, 124 Wis. 73, 
 102 N. W. 329, 68: 964 
 
 III. Certification. 
 
 Acceptance of Certified Check as Novation, 
 
 see Novation, 2. 
 Certified Check as Pavment, see Payment, 
 
 18. 
 
 Tender of Certified Check, see Tender, 6. 
 For Editorial Notes, see infra, VI. 4. 
 
 Rights and liability of drawee. 
 
 30. By the certification of a check, the 
 drawee undertakes absolutely to pay it 
 when presented at any time within that 
 fixed by the statute of limitations, and is 
 estopped to deny the possession of funds. 
 Jackson Paper Mfg. Co. v. Commercial Nat. 
 Bank, 199 111. 151, 65 N. E. 136, 59: 657 
 
 31. A bank is not estopped to deny its 
 liability on a check which it has certified, 
 even as against a bona fide holder for value 
 who purchased upon the faith of the certifi- 
 cation, where it has never been indorsed by 
 the payee. Goshen Nat. Bank v. Bingham, 
 118 N. Y. 349, 23 N. E. 180, 7: 595 
 
 32. A bank whose certification of a check 
 has been procured by fraud cannot maintain 
 an action to recover possession thereof 
 against one who has purchased bona fide 
 and for value from the payee, but who took 
 it without the latter's indorsement. Id. 
 
 33. The purchaser of a check made pay- 
 able to the drawer's own order, the certifi- 
 cation of which has been procured by fraud, 
 who by mistake of both himself and the 
 payee takes it without the latter's indorse- 
 ment, holds it subject to all defenses which 
 the bank would have against it in the hands 
 of the payee, even although he pays full 
 value for it without notice of the fraud; 
 
 and a subsequent indorsement made after 
 the purchaser has received such notice will 
 not render the check valid in his hands, 
 at least in the absence of an express agree- 
 ment to indorse, made at the time of the 
 transfer. Id. 
 
 Effect of, on drawer's liaoility. 
 For Editorial Notes, see infra, VI. 4. 
 
 34. One who accepts a certified check in 
 the usual course of business does not as- 
 sume the risk of insolvency of the bank 
 upon which it is drawn; but, in case it 
 proves insolvent, he may look to the drawer 
 for payment. Born v. First Nat. Bank, 123 
 Ind. 78, 24 N. E. 173, 7: 442 
 
 35. The drawer of a check, who gets it 
 certified in his own behalf or for his own 
 benefit, and then delivers it to the payee, 
 is not discharged, but continues liable, 
 where the bank fails before payment of 
 the check. Minot v. Russ, 156 Mass. 458, 31 
 N. E. 489, 16: 510 
 
 36. If the payee or holder of a check gets 
 it certified in his own behalf or for his own 
 benefit, instead of getting it paid, the 
 drawer is discharged, especially where the 
 certification amounts to an extension of the 
 time of payment. Id. 
 
 37. Certification of a check by a bank on 
 the drawee's application releases the drawer. 
 Metropolitan Nat. Bank v. Jones, 137 111. 
 634, 27 N. E. 533, 12: 492 
 
 38. Even if a guaranty by one bank to 
 another for clearing house purposes is 
 ultra vires, this fact will not avail the 
 drawers of a certified check who are not 
 parties to the guaranty, when charged with 
 liability to the bank, which in compliance 
 with its guaranty had paid the check and 
 become an assignee thereof after the drawee 
 became insolvent. Voltz v. National Bank, 
 158 111. 532, 42 N. E. 69, 30: 155 
 
 IV. Bona Fide Holders. 
 
 See also supra, 31-33. 
 
 Who are. 
 
 Of Bills or Notes, see Bills and Notes, V. b. 
 
 Parol Evidence as to, see Evidence, 1092. 
 
 39. One may be a bona fide holder of a 
 cashier's check received from an agent by 
 mail in return for checks and drafts mailed 
 to the agent for deposit in a bank under 
 an agreement to return checks therefor, al- 
 though he parted with the paper deposited 
 before he received anything in exchange and 
 before the cashier's check, which he subse- 
 quently received, had come into existence. 
 Henry v. Allen, 151 N. Y. 1, 45 N. E. 355, 
 
 36: 658 
 
 40. One who receives a check from the 
 maker, and whom the maker designates as 
 navee, is r>rima fflHe the pavee intended; 
 and a purchaser who takes the check from 
 him in good faith upon his indorsement is 
 not required to inquire any further than 
 may be necessary to establish the identity 
 of the indorser and the party to whom the 
 check is delivered as payee, though such 
 party is in fact an imposter. Burrows v.
 
 CHECKS, V., VL 
 
 46:5 
 
 Western U. Teleg. Co. 86 Minn. 499, 90 N. 
 W. 1111, 58: 433 
 
 41. If mortgaged property is sold and is 
 paid for by check payable to the mortgagor, 
 who thereupon indorses and delivers it to 
 the mortgagee for the purpose of having 
 the proceeds applied upon the debt, the lat- 
 ter is not a bona fide holder for value and 
 without notice of the equities which may 
 have grown out of the falsity of representa- 
 tions or failure of a warranty of the qual- 
 ity or condition of the property sold. Na- 
 tional Citizens' Bank v. Ertz, 83 Minn. 12, 
 85 N. W. 821, 53: 174 
 
 42. The indorsement and delivery of a 
 cashier's check by the payee to a gambler 
 in payment for chips to be used in gambling 
 does not make such gambler a holder in 
 due course; and his title so acquired is 
 defective, where the statutes of the state 
 expressly prohibit gambling. Drinkall v. 
 Movius State Bank, 11 N. D. 1Q, 88 N. W. 
 724, ' 57 : 341 
 Rights of. 
 
 Of Bills or Notes, see Bills and Notes, V. 
 a, 2. 
 
 43. A bona fide purchaser of a check re- 
 ceived in the regular course of business 
 from one who fraudulently obtained and in- 
 dorsed it in an assumed name can recover 
 thereon against the maker where the bank 
 has refused payment under the directions of 
 the maker after he discovered the fraud. 
 Famous Shoe & C. Co. v. Crosswhite, 124 
 Mo. 34, 27 S. W. 397, 26: 568 
 
 44. The custom of a bank to require 
 identification of one who presents a check, 
 which is relied upon by a depositor in giv- 
 ing a check to one not personally known to 
 him, and who in fact is dealing fraudulent- 
 ly in an assumed name, constitutes no de- 
 fense in favor of the maker against a bona 
 fide holder of the check, where payment is 
 stopped by the maker's direction. ' Id. 
 
 V. Forged Paper. 
 
 Payment by Bank, of Forged Checks, see 
 
 Banks, IV. a, 3, 6. 
 
 Estoppel as to, see Estoppel, 229-231. 
 Burden of Showing Negligence of Drawer, 
 
 see Evidence, 597a. 
 What Constitutes a Forgery, see Forgery. 9. 
 
 10, 15. 
 For Editorial Notes, see infra, VI. 1. 
 
 45. A payer of a forged check is not ex- 
 empted from the consequences of his act 
 by Pa. act 1849, 10, providing for the re- 
 covery of money paid on forged signatures, 
 if the result of a recovery would be that his 
 own negligence would occasion loss to the 
 payee. That act only applies in case of due 
 care on his part, and where his recovery 
 will not cause loss to the payee. Iron City 
 Nat. Bank v. Fort Pitt Nat. Bank, 159 Pa. 
 46, 28 Atl. 195. 23 V : 615 
 
 Payment on forged indorsements. 
 Bank's Liability as to, see Banks, IV. a, 
 3, 6, (3). 
 
 Estoppel to Set up Forgery, see Estoppel, 
 
 164. 
 See also supra, 40, 43. 
 
 46. The fact that checks are taken in ab- 
 solute extinguishment of debts does not re- 
 lieve the drawer from his legal obligations 
 to the payee as drawer, when the checks 
 have been stolen from the payee and col- 
 lected upon a forged indorsement. Shepard 
 & M. Lumber Co. v. Eldridge, 171 Mass 
 516, 51 N. E. 9, 41: 617 
 
 47. Negligence of the holder of an unin- 
 dorsed check payable to his own order, in in- 
 trusting it to a clerk who he might have 
 known, by the exercise of due care, was dis- 
 honest, and who puts it in circulation by 
 forging an indorsement thereon, does not 
 deprive the holder of his remedy against 
 the drawer. Id. 
 
 48. Notice of the loss of a check which 
 has been stolen and collected upon a forged 
 indorsement is not required to be given by 
 the payee to the drawer and drawee or to 
 the public, if he is honestly ignorant of the 
 facts, and incorrectly, but honestly, as- 
 sumes that the check has been collected in 
 the regular course of business. Id. 
 Warranty of genuineness of prior indorse- 
 ments. 
 
 49. The indorser of checks warrants the 
 genuineness of all preceding indorsements 
 including that of the payee. First Nat. 
 Bank v. Northwestern Nat. Bank, 152 111. 
 296, 38 N. E. 739, . 26: 289 
 
 VI. Editorial Notes. 
 
 i. Generally. 
 
 As to Matters between Depositor and Bank, 
 see Banks, VIII. 10, 11. 
 
 As to Collection of, see Banks, VIII. 14, 
 15. 
 
 Nature of. 7: 595. 
 
 What are. 7: 489.* 
 
 Drafts on bank as. 23: 173. 
 
 Duty of drawee to know signature upon. 
 27: 635. 
 
 Power of agents to indorse. 27: 401. 
 
 Liability of person whose name is forged 
 to. 36: 539. 
 
 Limitation of actions on. 22: 110. 
 
 Powers of president of corporation as to 
 drawing or paying. 14: 
 357. 
 
 Who must bear loss when check issued or 
 indorsed to impostor. 50: 
 75. 
 
 Defense against check transferred after ma- 
 turity. 46: 808. 
 
 Gift of. 18: 855. 
 
 Indorsement of, "for deposit." 23: 164. 
 
 Right of bank as against holder of check to 
 set off unmatured claim 
 against insolvent deposit- 
 or, 15: 711. 
 
 Banking customs as to. 21: 443. 
 
 2. Negotiability. 
 
 Definitions. 26: 568. 
 
 Date of check. 26: 568. 
 
 Notice. 26: 569.
 
 464 
 
 CHEMICAL ANALYSTS CHLOROFORM. 
 
 Payee. 26: 570. 
 
 Fictitious. 26: 570. 
 Bearer. 26: 570. 
 Indorsement. 26: 570. 
 
 Proof. 26: 571. 
 
 Lost or stolen checks. 26: 571. 
 
 Statutes. 26: 571. 
 
 Payable in money. 26: 571. 
 
 Possession. 26: 571. 
 
 3. Effect of. 
 
 As accord and satisfaction. 20: 791. 
 
 Check drawn on fund as an appropriation 
 thereof. 11:528.* 
 
 As an equitable assignment. 7: 596;* 9: 
 109.* 
 
 Garnishment of debt after delivery of 
 check in payment. 19: 
 475. 
 
 4. Acceptance; certification. 
 
 Effect of certification. 12: 492.* 
 On liability of drawer. 16: 510. 
 
 Parol certification. 7 : 428. 
 
 5. Payment. 
 
 As to Collection of, see Banks, VIII. 14, 
 15. 
 
 Payment by check. 7: 442.* 
 
 Effect of acceptance of check as payment. 
 9: 263.* 
 
 Liability of bank for refusing, when it has 
 funds. 15: 134. 
 
 Accepting something besides money as pay- 
 ment. 25: 200. 
 
 Right to stop payment of. 30: 845. 
 
 Liability of drawee for accepting check 
 from agent or fiduciary in 
 payment of his debt. 52: 
 790. 
 
 6. Presentation. 
 
 Necessity of demand. 7: 490.* 
 
 Time for presenting. 13:43.* 
 
 When check considered stale or over- 
 due. 13: 44.* 
 What is reasonable time. 13: 44.* 
 
 What is an ordinary mode of presentment. 
 13: 43.* 
 
 Effect on drawer's liability of delay in pre- 
 senting check where 
 drawee remains solvent. 
 53: 432. 
 Necessity of loss to drawer's discharge. 
 
 53: 432. 
 
 What loss sufficient to work discharge. 
 53: 433. 
 
 Release of indorser of check by delay in 
 
 presenting it. 22: 785. 
 Unreasonable delay. 22: 785. 
 Reasonable delay. 22: 786. 
 
 CHEMICAL ANALYSIS. 
 
 By City of Water of Public Well, see Wa- 
 ters, 553. 
 
 CHICKEN HOUSE. 
 As Nuisance, see Nuisances, 9, 
 
 CHILDREN. 
 
 ruelty to, see Cruelty. 
 
 Jse of Word, in Deed, see Deeds, 56, 57. ' 
 
 Deed to, see Deeds, 82. 
 
 Rights of, in Life Insurance, see Insurance, 
 VI. d, 2, 6. 
 
 Relation between Parent and Children Gen- 
 erally, see Parent and Child. 
 
 Meaning of Term as Used in Will, see Wills, 
 180, 191-194. 
 
 Disinheriting, see Wills, III. c. 
 
 In General, see Infants. 
 
 Editorial Notes. 
 
 See also Infants, IV.; Parent and Child, TV. 
 
 Criminal Liability of Children, see Crimi* 
 nal Law, VI. 2. 
 
 Negligence Of, or in Respect To, see Negli- 
 gence, III. 8, 10, 13; 
 Railroads, III. 18; Street 
 Railways, IV. 5. 
 
 Sale of intoxicating liquor to minor. 10: 
 
 80.* 
 'Children" as a word of limitation. 2:457.* 
 
 CHIMNEY. 
 
 Liability for Injury by Fall of, see Negli- 
 gence, 79. 
 
 Editorial Notes. 
 
 Liability of landlord to third persons as to 
 
 condition of. 26: 200. 
 Liability of landlord to third persons for 
 
 fall of. 26: 200. 
 Liability of landlord to third person for 
 
 smoking chimney. 26: 
 
 201. 
 
 CHINA. 
 
 Editorial Notes. 
 
 Jurisdiction and powers of consul in China 
 in civil cases. 45: 486. 
 
 CHINESE. 
 
 Immigration of, see Aliens, 2, 3. 
 Unconstitutional Discrimination against, see 
 
 Constitutional Law, 462. 
 Illegality of Contract Not to Rent to, see 
 
 Contracts, 382. 
 
 CHISEL. 
 
 Presumption of Negligence from Fall of, 
 see Evidence, 544. 
 
 CHLOROFORM. 
 
 Sale of, to Intoxicated Person, see Drugs 
 and Druggists, 4, 5.
 
 CHOICE CIGAHS. 
 
 465 
 
 Proximate Cause of Death from Taking, 
 see Proximate Cause, 146. 
 
 CHOICE. 
 
 Of Remedies, see Election of Remedies. 
 
 CHOKING. 
 Death of Insured by, see Insurance, lOli. 
 
 CHOSE IN ACTION. 
 
 Rights of Assignee of, see Assignment, 41- 
 
 44; IV. 
 
 Gift of, see Gift, 55. 
 Insurance Policy as, see Insurance, 179. 
 
 Editorial Notes. 
 
 Assignment of, see Assignment, IV. 
 What included in term. 2: 747.* 
 Equitable remedy to subject to judgment 
 after return of no property 
 found. 63: 673. 
 
 CHRISTIAN SCIENCE. 
 
 Discrimination against, see Constitutional 
 Law, 508a. 
 
 Practice of, as Ground for Divorce, see 
 Divorce and Separation, 28. % 
 
 Right to Practise, see Physicians and Sur- 
 geons, I. b, 4. 
 
 Question for Jury in Action for Failure to 
 Cure, see Trial, 81. 
 
 A statute making the giving of Christian 
 Science treatment tor a fee a misdemeanoi 
 is not an interference with the rights of 
 conscience and of worship, conserved by 
 Ohio Bill of Rights, 7, and is not, on that 
 ground, unconstitutional. State v. Marble, 
 72 Ohio St. 21, 73 N. E. 1063, 70: 835 
 
 CHRISTMAS. 
 
 Prohibition of Business on, see Municipal 
 Corporations, 272. 
 
 CHURCH. 
 
 Gift for Erection of, see Charities, 38, 41, 
 62; III. 
 
 Sale of Liquor Near, see Intoxicating Liq- 
 uors, 150. 
 
 In General, see Religious Societies. 
 
 Editorial Notes. 
 
 See also Charities, III.; Religious Societies, 
 
 X. 
 L.R.A. Dig. 30. 
 
 Review of decisions of ecclesiastical tri- 
 bunals. 49: 384. 
 
 Mandatory injunction to require opening of 
 church. 20: 167. 
 
 CHURCH DEACONS. 
 
 Rights of, in Church Property, see Religious 
 Societies, 18, 26. 
 
 CHURCH PAPER. 
 
 Libelous Publication in, see Libel and Slan- 
 der, 87, 107. 
 
 CHURCH PEWS. 
 
 See Pews. 
 
 CIDER. 
 
 Police Power as to Sale of, see Constitution- 
 al Law, 756. 
 
 Question for Jury as to Intoxicating Na- 
 ture of, see Trial, 170-172. 
 
 Editorial Notes. 
 
 As a fermented liquor. 10: 520.* 
 As intoxicating liquor. 20: 648. 
 
 CIGARETTES. 
 
 Interstate Commerce in, see Commerce, 93, 
 94, 120-122. 
 
 Judicial Notice as to, see Evidence. 124. 
 
 Municipal Regulation of Sale of, see Mu- 
 nicipal Corporations, 224. 
 
 CIGAR MAKERS' UNION. 
 
 Trademark of, see Trademark, 7, 65, 66, 70. 
 Editorial Notes. 
 
 Protection of trade union labels or trade- 
 marks. 29: 300. 
 
 CIGARS. 
 
 Due Process in Regulating Sales of, see 
 
 Constitutional Law, 749. 
 License to sell, see License, 89. 
 
 Editorial Notes. 
 
 Misrepresentation as to, as affecting valid- 
 ity of trademark. 19: 55.
 
 466 CIPHER MESSAGE CITY ATTORNEY. 
 
 CIPHER MESSAGE. CITIZENS. 
 
 Law Governing Liability for Mistake in 
 Transmitting, see Conflict of Laws, 103. 
 
 Damages for Delay in Transmitting, see 
 Damages, 206-209. 
 
 Parol Evidence of Meaning of, see Evi- 
 dence, 1135. 
 
 See also Telegraphs, 65. 
 
 CIRCUIT COURTS OF APPEALS. 
 
 Appellate Jurisdiction of, see Appeal and 
 
 Error, II. b. 
 Issuance of Mandamus in Aid of Appellate 
 
 Jurisdiction, see Mandamus, 29-31. 
 
 CIRCULAR LETTER. 
 
 Libel by, see Libel and Slander, 99, 148. 
 
 CIRCULARS. 
 
 Distributing on Streets, see Municipal Cor- 
 
 porations, 148, 149, 265-267. 
 As Records, see Records, 2. 
 
 CIRCULAR SAW. 
 
 Failure to Guard, see Master and Servant, 
 141. 
 
 CIRCUMSTANCES. 
 Evidence of, see Evidence, VI. k; XI. j. 
 
 CIRCUMSTANTIAL EVIDENCE. 
 
 Admissibility of, see Evidence, VI. k; XI. j. 
 
 Sufficiency of, see Evidence. 2209, 2219, 
 2223-2225, 2232, 2261, 2340. 
 
 Necessity of Instructions as to, see Tri- 
 al, 709. 
 
 CIRCUS. 
 Special Train for, see Carriers, 6. 
 
 CISTERN. 
 
 Negligence as to, see Negligence, 95. 
 
 CITATION. 
 
 On Appeal, see Appeal and Error, III. e. 
 
 Admission without Examination of Attor- 
 ney from Other State, see Attorneys, 3. 
 
 Corporation as, see Constitutional Law, 
 390-392. 
 
 Abridging Privileges and Immunities of, see 
 Constitutional Law, II. a. 
 
 Right to Inspect Books and Records of 
 Municipality, see Municipal Corpora- 
 tions, II. i. 
 
 See also Aliens. 
 
 CITIZENSHIP. 
 
 As Affecting Jurisdiction, see Courts, III- 
 d. 
 
 As Qualification for Office, see Officers, 14, 
 15. 
 
 As Affecting Right to Removal, see Re- 
 moval of Causes, I. b; III. 2. 
 
 Editorial Notes. 
 
 Removal of Cause to Federal Court on 
 Ground of Diverse Citi- 
 zenship, see Removal of 
 Causes, III. 2. 
 
 State citizenship. 12: 364.* 
 
 Privileges of citizens of states. 1 : 56.* 
 
 Of women. 1: 113.* 
 
 Political rights of citizens. 8: 337.* 
 
 Indians in tribal relations as citizens. 7r 
 126.* 
 
 As a qualification of grand juror. 28: 196. 
 
 Corporations as citizens for purposes of 
 Federal jurisdiction. 11: 
 216.* 
 
 Corporation as citizen within Federal 
 Constitution. 14: 580; 60: 
 330. 
 
 Citizenship of corporation, for purposes of 
 Federal jurisdiction, in 
 state other than that 
 where created 14: 184. 
 As to Status of Corporations, General- 
 ly, see Corporations, 2. 
 
 Question relating to citizenship as FederaT 
 question. 62: 537. 
 
 Of party in District of Columbia as affect- 
 ing jurisdiction of Feder- 
 al court on ground of di- 
 verse citizenship. 1 : 108.* 
 
 Necessity of diversity in, at time suit 
 brought, as condition of 
 Federal jurisdiction. 1: 
 108.* 
 
 CITY. 
 
 Meaning of Word, see Contracts, 328a. 
 See also Municipal Corporations. 
 
 CITY ATTORNEY. 
 
 Presumption on Appeal as to Authority of,, 
 see Appeal and Error, 410.
 
 CITY" ENGINEER CIVILITER MORTUUS. 
 
 467 
 
 Validity of Contract as to Compensation 
 of, see Contracts, 501. 
 
 Liability of, for False Imprisonment, see 
 False Imprisonment, 38. 
 
 Authority of, see Municipal Corporations, 
 603. 
 
 Removal of, see Officers, 123, 124. 
 
 Prohibition against Removal of, see Pro- 
 hibition, 31. 
 
 CITY ENGINEER. 
 
 Conclusiveness of Decision of, see Contracts, 
 728, 731. 
 
 CITY HALL. 
 
 Exemption of, from Levy, see Exemptions, 
 12. 
 
 Exemption of Insurance on, from Levy, see 
 Exemptions, 26, 27. 
 
 Liability for Injuries in, see Municipal Cor- 
 porations, 555. 
 
 On Public Square, see Parks and Squares, 5. 
 
 CITY TREASURER. 
 
 Bond of, see Bonds, 58-60. 
 Right to Inspect Books in Office of, see Mu- 
 nicipal Corporations, 595, 596. 
 
 CIVIL AUTHORITIES. 
 
 Stipulation against Liability for Loss by 
 Order of, see Insurance, 329. 
 
 Nonliability for Loss of Property by Order 
 of, see Insurance, 957. 
 
 Power over Militia, see Militia, 8-11. 
 
 CIVIL DAMAGES. 
 See Intoxicating Liquors, IV. b. 
 
 CIVIL DEATH. 
 
 Of Corporation, see Corporations, 732, and 
 also infra, Editorial Notes. 
 
 1. Civil death, under 2 N. Y. Rev. Stat. p. 
 701, 20 (Penal Code, 708), which pre- 
 scribes that "a person sentenced to impris- 
 onment in a state prison for life shall there- 
 after be deemed civilly dead," does not de- 
 vest the criminal of his property. Avery 
 v. Everett, 110 N. Y. 317, 18 N. E. 148, 
 
 1: 264 
 
 2. A statute prohibiting a convict from 
 making any conveyance of his property or 
 any part thereof during imprisonment does 
 not prevent him from incurring a liability 
 
 by executing a bail bond. Kenyon v. Saun- 
 ders, 18 R. I. 590, 30 Atl. 470, 26: 232 
 
 Effect of, on descent of property. 
 
 3. A devise of property to a nephew, lim- 
 ited upon the death of testator's son with- 
 out children, does not vest on the son's im- 
 prisonment for life, under 2 N. Y. Rev. Stat. 
 p. 701, 20, providing that one sentenced to 
 imprisonment for life shall thereafter be 
 deemed civilly dead. Avery v. Everett, 110 
 N. Y. 317, 18 N. E. 148, 1:264 
 
 4. Sentencing a person to imprisonment 
 for life does not cast the .descent to his es- 
 tate, under statutes fixing the time at which 
 descent shall be cast at a person's death. 
 Davis v. Laning, 85 Tex. 39, 19 S. W. 846, 
 
 18: 82 
 
 5. Descent of property upon heirs is not 
 cast by the fact of such sentence and im- 
 prisonment under Kan. Gen. Stat. 1899, 
 5583, which provides that, when a person 
 shall be imprisoned under a sentence of 
 imprisonment for life, his estate, property, 
 and effects shall be administered and dis- 
 posed of in all respects as if he were nat- 
 urally dead. Smith v. Becker, 62 Kan. 541, 
 64 Pac. 70, 53: 141 
 Right of one civilly dead to sue. 
 
 6. One convicted of a capital offense and 
 sentenced to death in one state is not there- 
 by prevented from maintaining a civil ac- 
 tion in another state. Wilson v. King, 59 
 Ark. 32, 26 S. W. 18, 23: 802 
 
 7. A convict may maintain an action to 
 enforce his property rights, when the stat- 
 utes provide that no conviction shall work 
 a forfeiture of estate. Kenyon v. Saunders, 
 18 R. I. 590, 30 Atl. 470, 26: 232 
 
 Editorial Notes. 
 
 Law as to, in United States. 18: 82. 
 
 Effect of civil death of debtor after judg- 
 ment upon the remedy by 
 execution. 61 : 386. 
 
 Dissolution of corporation as affecting lia- 
 bility for running con- 
 tract for services. 69: 
 137. 
 
 CIVIL DIVISIONS. 
 
 Editorial Notes. 
 Judicial notice with respect to. 4: 37.* 
 
 CIVIL ENGINEER. 
 
 Opinion Evidence by, see Evidence, 1387. 
 Corroboration of Opinion of, see Evidence, 
 
 1241. 
 Assumption of Risk by, see Master and 
 
 Servant, 328, 359. 
 
 CIVILITER MORTUUS. 
 See Civil Death.
 
 463 
 
 CIVIL LAW ; CIVIL RIGHTS. 
 
 CIVIL LAW. 
 
 Doctrine ot, as to Prior Appropriation, see 
 Waters, 303. 
 
 CIVIL RIGHTS. 
 
 Exclusion of Negroes from Jury, see Appeal 
 and. Error, 1122, and also infra, Edi- 
 torial Notes. 
 
 Colored Persons as Affecting Apportionment, 
 see Election Districts, 5. 
 
 Intimidating Negroes at Election, see Elec- 
 tions, 281-285. 
 
 Indictment for Denial of, see Indictment, 
 etc., 59. 
 
 In places of amusement. 
 
 Variance in Proof as to, see Evidence, 2421. 
 
 See also infra, 6. 
 
 1. The general expression in the Illinois 
 civil rights act of June 10, 1885, "all other 
 places of public accommodation and amuse- 
 ment," embraces only places of the same 
 general character or kind as inns, restau- 
 rants, eating houses, barber shops, public 
 conveyances, and theaters, specifically enu- 
 merated. Cecil v. Green, 161 111. 265, 43 N. 
 E. M05, 32: 566 
 
 2. A discrimination against colored per- 
 sons by permitting them to sit only in the 
 balcony of a theater is not unlawful, in 
 the absence of anv statute to the contrary. 
 Younger v. Judah, 111 Mo. 303, 19 S. W. 
 1109, 16: 558 
 
 3. Colored persons to whom tickets for 
 the orchestra of a theater are sold at the 
 "box office may be prevented from using 
 them and required to give them up for 
 balcony tickets or for the return of their 
 money, where the tickets were sold without 
 knowledge that the persons who were to 
 use them were colored, and the rule of the 
 theater, as well as a custom and usage pre- 
 vailing in the state, permit colored persons 
 in the balcony only. Id. 
 
 4. The rule of a theater, that colored peo- 
 ple can sit in the balcony only, does not vio- 
 late U. S. Const. 14th Amend, which de- 
 clares that "no state shall make or enforce 
 any law which shall abridge the privileges 
 and immunities of the citizens of the United 
 States." Id. 
 
 5. The provision of N. Y. Pen. Code. 383, 
 prohibiting the exclusion from the equal en- 
 joyment of any place of amusement of any 
 person, by reason of race, color, or previous 
 condition of servitude, is a valid exercise of 
 the police power of the state, and is not 
 unconstitutional. People v. King, 110 N. Y. 
 418. 18 N. E. 245, 1:293 
 Drug store. 
 
 0. A drug store in which soda water is 
 sold is not a place of public accommodation 
 and amusement within the Illinois civil 
 rights act of June 10, 1885, but is to be 
 classed with other mercantile stores. Cecil 
 v. Green, 161 111. 265, 43 N. E. 1105, 32: 5GH 
 In restaurants. 
 
 7. The refusal of a waiter in an eating 
 
 house to wait upon a colored patron because 
 of his color renders the eating-house keeper 
 liable, although he did not aid or abet the 
 waiter in such action, to at least the mini- 
 mum penalty provided by Wis. Laws 1895, 
 chap. 223, 1, providing that all persons 
 shall be entitled to the equal enjoyment of 
 the privileges of eating houses, and 2, 
 providing that any person who violates the 
 foregoing section by denying any person, 
 except for reasons applicable alike to all 
 persons, the full enjoyment of all such privi- 
 leges, shall be liable to the person aggrieved 
 for not less than $5 and costs. Bryan v. 
 Adler, 97 Wis. 124. 72 N. W. 368, 41 : 658 
 
 8. No discrimination between persons can 
 be made by a restaurant keeper in serving 
 customers, on account of color alone, under 
 a statute which -declares that all persons 
 shall he entitled to the full and equal ac- 
 commodations, advantages, facilities, and 
 privileges of restaurants, etc. The terms 
 "full and equal" require identical accommo- 
 dations for all; offering colored people sub- 
 stantially the same accommodation as that 
 offered white people is not sufficient if the 
 former in fact differs from the latter. Fer- 
 guson v. Gies, 82 Mich. 358, 46 N. W. 718, 
 
 9: 589 
 
 9. One who viola'tes the law making it a 
 misdemeanor for a restaurant keeper to dis- 
 criminate against colored persons in serving 
 customers becomes liable to an action for 
 civil damages at the suit of a person in- 
 jured by the discrimination; and it is not 
 necessary in such action to declare upon or 
 in any way refer to the penal statute. Id. 
 In cars and waiting rooms. 
 Regulations as to Colored Passengers, see 
 
 Carriers, 38. 
 
 Rights of Negroes to Protection, as Pas- 
 sengers, see Carriers. 156. 
 
 Evidence as to, see Evidence, 2077. 
 
 Question for Jury as to Reasonableness of 
 Carrier's Rules, see Trial, 146, 147. 
 
 See also infra, Editorial Notes. 
 
 10. A carrier may exclude a colored wo- 
 man from a car set apart for ladies, where 
 she is given an opportunity to ride with 
 people of her own color in a car which is 
 equal in accommodations to the other. Chil- 
 ton v. St. Louis & I. M. R. Co. 114 Mo. 88, 
 21 S. W. 458, 19: 269 
 
 1!. A state statute providing for sepa- 
 rate but equal accommodations for the 
 white and colored races on railroads is a 
 valid police regulation, and applies both to 
 intra- and inter-state travel. Smith v. 
 State, 100 Tenn. 494, 46 S. W. 566. 41 : 432 
 
 12. The Mississippi statute of 1888, re- 
 quiring steam railroads to provide eoual 
 but separate accommodations for the differ- 
 ent races, by providing two or more cars 
 for each train, or by dividing the cars by 
 partition, is not invalid as a regulation of 
 interstate commerce, as it refers only to the 
 carriage of passengers to points within the 
 state. Louisville, N. O. & T. R. Co. v. State, 
 66 Miss. 602, 6 So. 203, 5: 132 
 
 13. Under the Louisiana statute author- 
 izing a railroad conductor to assign white 
 and colored passengers to separate coaches,
 
 CIVIL SERVICE. 
 
 469 
 
 a conductor is not authorized to assign a 
 passenger to a coach to which his race does 
 not belong; nor is the passenger bound to 
 accept such wrongful assignment, or the 
 carrier exempt from liability for refusal to 
 carry him when he disobeys such assign- 
 ment. Ex parte Plessy, 45 La. Ann. 80, 11 
 So. 94S, 18: 639 
 
 14. The mere circumstance that there has 
 been at some time chewing and smoking in 
 a room set apart for colored passengers, and 
 not in the one set apart for white passen- 
 gers, does not conclusively show that the ac- 
 commodations of the two rooms are not 
 substantially equal at a time when there is 
 no chewing or smoking in the room. Smith 
 v. Chamberlain, 38 S. C. 529, 17 S. E. 371, 
 
 19: 710 
 
 15. A statute requiring equal, but sepa- 
 rate, accommodations for the white and 
 colored races by providing separate coaches 
 or compartments does not deny or abridge 
 the equal privileges or immunities of citi- 
 zens. Ex parte Plessy, 45 La. Ann. 80, 11 
 So. 948, 18: 639 
 
 16. No badge of slavery or involuntary 
 servitude contrary to the 13th Amendment 
 of the United States Constitution is im- 
 posed by requiring equal, but separate, ac- 
 commodations for the white and colored 
 races in railroad cars by providing separate 
 coaches or compartments. Id. 
 
 17. Miss, act March 2, 1888, requiring 
 steam railroads to have separate, accommo- 
 dations for the two races, was not re- 
 pealed by Miss, act March 14, 1888, 3. 
 Louisville, N. O. & T. R. Co. v. State, 66 
 Miss. 662, 6 So. 203, 5: 132 
 
 18. Separate waiting rooms for white and 
 colored passengers may be set apart in a 
 railway depot, provided the accommodations- 
 are equal. Smith v. Chamberlain, 38 S. C. 
 529, 17 S. E. 371, 19: 710 
 In schools. 
 
 Question for Jury as to, see Trial, 507. 
 Special Interrogatories as to, see Trial, 591. 
 See also Schools, 7, 8. 
 
 19. Municipal authorities have no right to 
 establish different schools for white and col- 
 ored children of the city, and exclude col- 
 ored children from schools established for 
 white children, and send them out of their 
 district to reach a colored school, although 
 the schools established for the colored chil- 
 dren furnish educational facilities equal or 
 superior to those of the schools established 
 for white children. People ex rel. Bibb v. 
 Alton, 193 111. 309, 61 N'. E. 1077, 56: 95 
 
 20. A board of education cannot, in the 
 face of direct statutory prohibition, compel 
 a school committee to admit negroes into 
 an Indian school. McMillan v. Croatan 
 School Dist. No. 4, 107 N. C. 609, 12 S. E. 
 330, 10: 823 
 
 21. In the absence of a constitutional pro- 
 hibition the legislature of a state may law- 
 fully provide separate schools for friendly 
 Indians situated within its jurisdiction, and 
 exclude negroes from the privilege of 
 attending them. Id. 
 
 22. The rights of colored children under 
 U. S. Const. 14th Amend. 1, are not vio- 
 lated by Mo. Const, art. 11, 3, requiring 
 separate schools for children of African de- 
 scent, and Mo. act 1887, p. 264, providing 
 for such a school in every district where 
 there are fifteen or more such children, and 
 that if there are less than that number in 
 the district they may attend in any dis- 
 trict in the county in which such a school is 
 maintained, although the effect may be to 
 compel them to go farther to reach schood 
 than white children have to go. Lehew v. 
 Brummell, 103 Mo. 546, 15 S. W. 765, 
 
 11: 828 
 
 23. Until the legislature clearly confers 
 power upon the boards of education of cit- 
 ies of the second class in Kansas to establish 
 separate schools for the education of white 
 and colored children, no such power exists. 
 Knox v. Independence Bd. of Edu. 45 Kan. 
 152, 25 Pac. 616, 11: 830 
 
 24. The right of colored children to at- 
 tend any school they or their parents may 
 choose, instead of being restricted to the 
 separate schools established for colored 
 children, is not conferred by N. Y. Pen. 
 Code, 383, which makes it a misdemeanor 
 for teachers or officers of schools to ex- 
 clude any citizen from the equal enjoyment 
 of any accommodation or privilege, if the 
 schools for colored children furnish facili- 
 ties and accommodations equal to those 
 which are furnished by the other schools. 
 People ex rel. Cisco v. School Board, 161 N. 
 Y. 598, 56 N. E. 81, 48: 113 
 
 25. A person cannot be admitted to a 
 school from which negroes to the fourth 
 generation have been excluded by the leg- 
 islature, if by tracing back through his 
 father or mother four successive genera- 
 tions a negro ancestor is reached. The word 
 "generation" cannot be given the same 
 meaning as "degree." McMillan v. Cront^'i 
 School Dist. ?!d. 4, 107 N. C. 609. 12 S. E. 
 330, 10: 823 
 
 Editorial Notes. 
 
 Protection of. 9: 589;* 14: 579. 
 
 Effect of first section of Fifteenth Amend- 
 ment on elective fran- 
 chise. 8: 337. 
 
 Elective franchise as affected by Fourteenth 
 Amendment. " 8: 337. 
 
 Of colored persons, protection of, by Four- 
 teenth Amendment. 1 : 
 293.* 
 
 Rights of colored passengers. 18: 630. 
 Statutory regulations. 18: 641. 
 
 Negroes as grand jurors. 28: 204. 
 
 Removal of cause from state to Federal 
 court because of discrimi- 
 nation against negroes as 
 jurors. 53: 574. 
 
 CIVIL SERVICE. 
 
 Effect of New Constitution on Law as to, 
 see Constitutional Law, 53.
 
 470 
 
 CIVIL SERVICE. 
 
 Grant of Judicial Power to Civil Service 
 Commissioners, see Constitutional Law, 
 227. 
 
 Disqualification from Holding Office as 
 Punishment for Crime, see Criminal 
 Law, 215. 
 
 Promotion of Police Officer, see Police, 1. 
 
 Partial Invalidity of Statute as to, see Stat- 
 utes, 83. 
 
 Re-enactment of Law after Adoption of, see 
 Statutes, 619. 
 
 1. A statute which requires the mayor of 
 a city to prepare rules for the selection of 
 the city officers whose appointment has been 
 delegated by the Constitution to the munic- 
 ipal authorities, which must be approved 
 by the state civil service commission before 
 they can go into effect, does not subordinate 
 the power of the local authorities to that of 
 the state authorities in violation of the 
 constitutional provision delegating the ap- 
 pointing power to the municipal authorities. 
 Rogers v. Buffalo, 123 N. Y. 173, 25 N. E. 
 274, 9: 579 
 
 2. The constitutional provisions respect- 
 ing powers and duties of the superintendent 
 of public works, which the New York Con- 
 stitution of 1894 adopted from the former 
 Constitution, must be read and understood 
 in connection with the new section of the 
 Constitution requiring civil service appoint- 
 ments to be made according to merit, ascer- 
 tained so far as practicable by competitive 
 examinations. People ex rel. McClelland v. 
 Roberts, 148 N. Y. 360, 42 N. E. 1082, 
 
 31: 399 
 
 3. The provisions of the civil service stat- 
 utes in force at the time of the adoption of 
 the Constitution, with the exception of the 
 clause exempting discharged soldiers and 
 sailors from examination in certain cases, 
 are, so far as they provide machinery for 
 determining the fitness of applicants, con- 
 tinued in force by that instrument. Chit- 
 tenden v. Wurster, 152 N. Y. 345, 46 N. E. 
 857, 37:809 
 What positions within civil service law gen- 
 erally. 
 
 4. An officer whose appointment is sub- 
 ject to confirmation by the city council, even 
 though he be a subordinate in one of the 
 principal departments of the city, is exclud- 
 ed from the classified service by 11 of the 
 Illinois civil service act of 1895, if the of- 
 fice had been created and was in existence 
 when the act was passed. People ex rel. 
 Akin v. Kipley, 171 111. 44, 49 N. E. 229, 
 
 41: 775 
 
 5. The words "heads of any principal 
 department of the city," in 11 of the Illi- 
 nois civil service act of 1895, excluding such 
 heads of departments from the classified 
 service, refer to heads of the departments as 
 they existed at the time when the act was 
 passed, and do not extend to subordinates, 
 even where the department has but one 
 head. Id. 
 Confidential positions. 
 
 6. Positions in the confidential class of 
 the civil service, applicants for which are 
 not required to submit to a competitive ex- 
 
 amination, are not limited to those which 
 are strictly secret. Chittenden v. Wurster, 
 152 N. Y. 345, 46 N. E. 857, 37 : 809 
 
 7. The Constitution does not require com- 
 petitive examination for the appointment to 
 office of a person who is to receive, open, 
 read, and answer the letters of his chief, 
 counsel and advise him with reference to 
 the conduct of his office, sign his name to 
 checks and warrants, collect and pay out 
 the money, and have the combination of his 
 safe and the custody and control of its con- 
 tents. Id. 
 Examinations; examiners. 
 
 As to Exemptions, see Constitutional Law, 
 80, 81. 
 
 Delegation of Power as to, see Constitu- 
 tional Law, 210. 
 
 8. A law providing that appointments to 
 municipal offices or positions shall be made 
 according to merit and fitness, and that such 
 merit and fitness must be ascertained by 
 competitive examination, is within the 
 power of the legislature. People ex rel. 
 Akin v. Kipley, 171 111. 44, 49 N. E. 229, 
 
 41: 775 
 
 9. An ordinance which purports to change 
 certain subordinate officers into heads of 
 principal departments, and require their ap- 
 pointments to be confirmed by the city coun- 
 cil, in order to remove them from the class- 
 ified service for which appointments must 
 be made by examination under the Illinois 
 civil service act of 1895, and place them in 
 the list of ^ those exempt from examination, 
 which includes heads of principal depart' 
 ments and officers whose nominations must 
 be confirmed by the city council, is invalid 
 as an attempt to nullify the statute. Id. 
 
 10. A medical staff comprising the board 
 of visiting physicians of a city hospital are 
 "professional experts," and not "officers, 
 clerks, and employees," within the meaning 
 of a statute requiring competitive examina- 
 tions for appointment of the latter, but ex- 
 empting professional experts therefrom. 
 Com. ex rel. Hensel v. Fitler, 147 Pa. 288, 23 
 Atl. 568, 15: 205 
 
 11. The provision against establishing ad- 
 ditional executive or administrative depart- 
 ments, in Ind. Rev. Stat. 1894, 3819, is not 
 violated by the creation of a board of exam- 
 iners, to ascertain the fitness of applicants 
 for office in city departments, which it is 
 made the duty of the mayor and heads of 
 departments, under 3816, to provide for 
 by rules and regulations prescribing a sys- 
 tematic method. Newcomb v. Indianapolis, 
 141 Ind. 451, 40 N. E. 919, 28: 732 
 
 12. The creation of a board of examiners 
 is a proper means for the exercise of the 
 duty imposed upon the mayor and heads of 
 departments of a city by Ind. Rev. Stat. 
 1894, 3816, requiring them to make rules 
 and regulations for prescribing a systematic 
 method of ascertaining the fitness of appli- 
 cants for appointments and promotion in 
 city departments without regard to political 
 opinions or services. Id. 
 Preference of veterans. 
 
 As to License Tax for Peddling, see Consti- 
 tutional Law, 484, 485.
 
 CLAIM BOND; CLAIMS, I. 
 
 471 
 
 13. A statute providing that those who 
 have served in the Army and Navy of the 
 United States in the War of the Rebellion, 
 and have been honorably discharged there- 
 from, shall be preferred for appointment to 
 office in every public department, and upon 
 all public works of the state and of the 
 cities and towns thereof, is constitutional. 
 Goodrich v. Mitchell, 68 Kan. 765, 75 Pac. 
 1034, 64:945 
 
 14. The exemption from competitive ex- 
 aminations of honorably discharged soldiers 
 and sailors, given by N. Y. act 1895, chap. 
 344, is in conflict with the Constitution of 
 the state. Re Keymer, 148 N. Y. 219, 42 N. 
 E. 667, 35:447 
 
 15. The compulsory appointment of vet- 
 erans, if they desire to be appointed, when- 
 ever they make a sworn statement of quali- 
 fications with the certificate of three citi- 
 zens of good repute in the community, which 
 Mass. Stat. 1895, chap. 501, 2,' ,6, attempt 
 to provide for, is inconsistent with the Con- 
 stitution, especially article 7, declaring that 
 government is for the common good, "and 
 not for the profit, honor, or private interest 
 of any one man, family, or class of men," 
 and article 6, declaring that no man, corpo- 
 ration, or association shall have any other 
 title to exclusive privileges than what arises 
 from the consideration of services rendered 
 to the public. Brown v. Russell, 166 Mass. 
 14, 43 N. E. 1005, 32: 253 
 
 16. The preference of honorably dis- 
 charged soldiers and sailors "in appointment 
 and promotion without regard to their 
 standing on any list," which is given by the 
 proviso of N. Y. Const, art. 5, 9, does not 
 exempt them from examinations, but oper- 
 ates when, as a result of examinations, they 
 are placed upon a list from which appoint- 
 ment? and promotions can be made. Re 
 Keymer, 148 N. Y. 219, 42 N. E. 667, 35: 447 
 
 17. The discretion to appoint veterans to 
 certain offices and employment without an 
 examination, which is given by Mass. Stat. 
 1896, 3, if in the opinion of the appointing 
 power the public service requires this to be 
 done, is not unconstitutional. Opinion of 
 the Justices, 166 Mass. 589, 44 N. E. 625, 
 
 34: 58 
 
 18. A preference of veterans over all other 
 persons except women, given by Mass. Stat. 
 1896, 2, when they have passed the civil 
 service examination, is not unconstitutional. 
 
 Id. 
 
 19. The provision that civil service com- 
 missioners shall establish rules to secure the 
 employment of veterans in the labor service 
 of the commonwealth and its cities and 
 towns in preference to all other persons ex- 
 cept women which is made by Mass. Stat. 
 1896, 6, if construed to mean that only 
 those found competent shall be preferred, is 
 within the constitutional power of the 
 legislature. Id. 
 Classifications. 
 
 Presumption as to, see Evidence, 608. 
 See also supra, 6, 7, infra, 16-20. 
 
 20. Payment of officers appointed without 
 examination under a classification made by 
 the proper officer will not be enjoined or 
 
 the offices declared vacant until it has been 
 judicially determined that the classification 
 is erroneous. Chittenden v. Wurster, 152 N. 
 Y. 345, 46 N. E. 857, 37 : 809 
 
 21. A classification of positions in the 
 civil service, made by the proper officer, who 
 is not shown to have acted corruptly or dis- 
 honestly in making it, is valid, and a pro- 
 tection to heads of departments and em- 
 ployees acting under it until it is judicially 
 determined that it is erroneous. Id. 
 
 CLAIM BOND. 
 
 Delivery on Sunday, see Sunday, 4. 
 
 CLAIMS. 
 
 I. Against United States. 
 II. Against State. 
 III. Editorial Notes. 
 
 Against Bankrupt Estate, see Bankruptcy, 
 
 Against Insolvent Estate, Release of, see 
 Assignments for Creditors, VIII. b. 
 
 Employment of Agent to Prosecute, see Con- 
 tracts, 480. 
 
 By Uverseer of Poor, Evidence as to, see 
 Evidence, 1013, 1029. 
 
 Against Decedent's Estate, see Executors 
 and Administrators, IV. 
 
 Against Insolvent Estate, see Insolvency, 
 IV. 
 
 License Fee for Buying, see License, 64. 
 
 Against City, Presentation of, see Municipal 
 Corporations, II. g, 6. 
 
 Who may Maintain Injunction Suit for Il- 
 legal Combination of Dealers in, see 
 Parties, 105. 
 
 For Patent, see Patents, 16. 
 
 See also Alabama Claims. 
 
 I. Against United States. 
 
 Attorney's Interest in, see Attorneys, 80- 
 83. 
 
 Jurisdiction of Suit on, see Courts, 325. 
 
 As Assets for Administration, see Executors 
 and Administrators, 16. 
 
 Limitation of Action on, see Limitation of 
 Actions, 35, 217. 
 
 Set-Off Against, see Set-Off and Counter- 
 claim, 20. 
 
 See also, infra, 23. 
 
 For Editorial Notes, see infra, III. 1. 
 
 1. Public officers cannot open and re-ex- 
 amine claims against the government which 
 were rejected by their predecessors in office, 
 in the absence of fraud, mistake in matters 
 of fact arising from errors in calculations, 
 or of newly discovered material evidence. 
 Waddell v. United States, 25 Ct. Cl. 323. 
 
 7: 861 
 
 2. The act of Congress of February 22, 
 1875 (18 Stat. at L. 333), which requires
 
 472 
 
 CLAIMS, II. 
 
 that the accounts of district attorneys, 
 clerks, marshals, etc., shall be forwarded, 
 "when approved," to the proper accounting 
 officers of the Treasury, does not make pre- 
 sentation to such officers a condition prece- 
 dent to a right of action, nor is rejection of 
 a claim by the accounting officers of the 
 Treasury such a determination of a "com- 
 mission or department authorized to hear 
 and determine," within the meaning of the 
 act of Congress of March 3, 1887 (24 Stat. 
 at L. 505), as will bar an action in the 
 proper courts. Erwin v. United States, 37 
 Fed. 470, 2: 229 
 
 3. Where, in an action against a debtor, in 
 a state court, a receiver of a claim of the 
 debtor against the United States was ap- 
 pointed, and the state court by its decree 
 subrogated the receiver to the rights of the 
 debtor in said claim, and authorized him to 
 sue the United States in the court of claims 
 therefor, for the benefit of a single creditor, 
 such decree of the state court has no force 
 in the court of claims, and a suit by the re- 
 ceiver therefor will be dismissed. Howes v. 
 United States, 24 Ct. Cl. 170, 5: 66 
 
 4. It is the duty of the Treasury Depart- 
 ment, through the accounting officers, to 
 settle all claims and demands by and 
 against the United States, and in proper 
 cases to set off one against the other, when 
 the government is both debtor and creditor 
 of the same party. Id. 
 
 5. Where two partners recovered a joint 
 judgment against the United States, and it 
 paid one half thereof to one partner, and 
 applied the other half to a judgment in its 
 favor against the other partner, who execut- 
 ed a release therefor, such partners, having 
 ratified such settlement and payments, can- 
 not compel the United States to pay the 
 money over again to them jointly. Id. 
 Effect of assignment. 
 
 6. Assignments of claims against the 
 United States, made before the issuing of a 
 warrant for payment, except when made in 
 a general transfer of the claimant's property 
 by operation of law. or by voluntary trans- 
 fer of all his property for the benefit of his 
 creditors, are void. U. S. Rev. Stat. 3477, 
 U. S. Comp. Stat. 1901, p. 2320; Howes v. 
 United States, 24 Ct. Cl. 170, 5: 66 
 
 7. While the accounting officers of the 
 Treasury may state and certify accounts in 
 favor of purchasers, assignees, or transferees 
 of claims against the United States for wit- 
 ness fees, whose assignments are not contro- 
 verted, they may exercise their own dis- 
 cretion in the matter, with due regard to 
 the convenience of parties and the govern- 
 ment. Such assignees have no rights which 
 make it obligatory upon the accounting of- 
 ficers to so state accounts in their favor. 
 Lopez v. United States, 24 Ct. Cl. 84, 2: 571 
 
 8. Urn-evoked and undisputed orders, as- 
 signments, and transfers of claims against 
 the United States are so far valid under the 
 law that, if payment be made thereon, the 
 assignors will be estopped from setting up 
 any other claim on their behalf, and such 
 payment will be a valid discharge of the in- 
 debtedness. Id. 
 
 9. A marshal may pay witness fees to 
 persons other than those in whose favor 
 such fees are taxed by the court, upon the 
 unrevoked and undisputed orders, assign- 
 ments, or transfers thereof by the wit- 
 nesses. Id. 
 
 10. While assignments and transfers of, 
 and powers of attorney to collect, money 
 due from the United otates, before the issu- 
 ance of a warrant therefor, are, by force 
 of U. S. Rev. Stat. 3477, void if the as- 
 signors or principals revoke and repudiate 
 them before payment is made upon them, 
 still the accounting officers of the Treasury 
 may recognize them and may state accounts 
 in favor of the assignees or attorneys in 
 fact, and payment may be made at any 
 time before revocation; and such payments 
 are binding and conclusive upon the parties, 
 and are a complete discharge of the in- 
 debtedness as against the assignors. Id. 
 
 n. Against State. 
 
 Action against State Institution to Fix 
 Amount of, see Action or Suit, 12. 
 
 For Sugar Bounty, see Bounties, 3. 
 
 Waiver of, see Contracts, 713. 
 
 Promise not to Pay, as Defense against, see 
 Contracts, 655. 
 
 Proper Party to Present Claim, see Parties, 
 24. 
 
 For Editorial Notes, see infra, III. 2. 
 
 11. The word "claim," in a statute pro- 
 viding that any person having a claim 
 against the state may begin an action, is 
 equivalent to "cause of action," when tho 
 statute is passed for the purpose of giving 
 effect to a constitutional provision that the 
 legislature shall direct by law in what man- 
 ner and in what courts suits may be brought 
 against the state. Northwestern & P. IT. 
 Bank v. State, 18 Wash. 73, 50 Pac. 58(5, 
 
 42: 33 
 
 12. The claims which the state auditors 
 are authorized to adjust under Mich. Const, 
 art. 8, 4, do not include requests, petitions, 
 or claims for appropriations which are mere- 
 ly gratuitous, or which may be based upon 
 sentimental or moral grounds which have 
 not the semblance of any legal claim. Allen 
 v. Board of State Auditors, 122 Mich. 324, 
 81 N. W. 113, 47:117 
 
 13. An action to recover damages for in- 
 juries resulting from the negligence of a 
 servant of the commonwealth in the per- 
 formance of his duties is not a claim, within 
 the meaning of Mass. Acts 1887, chap. 24(i. 
 which authorizes the maintenance of a suit 
 against the commonwealth to recover "all 
 claims" against it, whether at law or in 
 equity. Murdock Parlor Grate Co. v. Com. 
 152 Mass. 28, 24 N. E. 854, 8: 3!)9 
 
 14. A state treasurer properly refuses to 
 pay a warrant drawn on him by the auditor 
 for an illegal claim, under N. C. Code, 
 3356, subs. 3, requiring him to pay all war- 
 rants legally drawn on him by the auditor.
 
 CLAIMS, III. 
 
 473 
 
 Commercial & F. Bank v. Worth, 117 N. C. 
 140, 23 S. E. 160, 30: 261 
 
 15. An act authorizing the board of claims 
 to rehear, audit, and determine, and allow 
 reasonable compensation for, meritorious 
 services, etc., rendered to the state, on a 
 claim which had been previously rejected 
 by the board of audit because of the lack of 
 legal authority for employing such services, 
 does not violate N. Y. Const, art. 3, 19, 
 which declares that "the legislature shall 
 neither audit nor allow any private claim or 
 account against the state," etc. O'Hara v. 
 State, 112 N. Y. 146, 19 N. E. 659, 2: 603 
 
 16. The proviso in the amendment to N. 
 Y. Const, art. 7, 14, exempting existing 
 claims from the prohibition against allow- 
 ing claims after they are barred, cannot ap- 
 ply to any claim accruing after the adoption 
 of that amendment. Id. 
 
 17. The value of the materials furnished 
 by the claimant in the performance of the 
 services referred to in the New York act of 
 1886, authorizing the board of claims to 
 rehear and audit the claims of O'Hara & 
 Company for work and services performed 
 by them for the state under the directions 
 of the quarantine officials, constitutes a part 
 of the claim. Id. 
 
 18. \Vhen individuals voluntarily furnish 
 property or render valuable services to the 
 state at the request of state officers, with 
 the expectation of payment, the legislature 
 may ratify the acts of such officers, al- 
 though previously unauthorized, and make 
 the state liable for the payment. Id. 
 
 19. Legislative ratification of an un- 
 authorized contract by officers on the part of 
 the state gives a claim therefor a legal 
 existence for the first time; and the fact 
 that a claim against the state on the im- 
 perfect obligation previously existing would 
 have been barred by lapse of time does not 
 make such legislative ratification and au- 
 thority to allow such claim invalid, under N. 
 Y. Const, art. 7, 14, providing that no 
 claim shall be audited, or allowed, or paid 
 which, as between citizens of the state, 
 would be barred by lapse of time. Id. 
 
 20. Under an act submitting to a commis- 
 sion or court the "legal rights" of the par- 
 ties, claims alleged to rest upon "equity and 
 good conscience," but not shown to be recog- 
 nized by any established doctrine of equity 
 jurisprudence, cannot be considered. West- 
 ern & A. R. Co. v. State (Ga. Special Judi- 
 cial Commission), 14: 438 
 
 21. An action to have a judgment award- 
 ing a lien on lands in favor of the state de- 
 creed to be subject to a prior mortgage held 
 by the plaintiff is within the jurisdiction 
 conferred by Wash, act March 20, 1895, of 
 actions against the state by any person 
 "having any claim against the state." 
 Northwestern & P. H. Bank v. State, 18 
 Wash. 73, 50 Pac. 586, 42:33 
 
 22. The unnecessary destruction of 
 healthy and valuable cows by state of- 
 ficials who suppose them to be diseased, 
 after applying the so-called tuberculin test, 
 does not give the owner "any just claim 
 against the state," within the meaning of 
 
 Wis. Rev. Stat. 3200, as that relates only 
 to claims which, if allowed, would render 
 the state a debtor to the claimant, and does 
 not include a demand based upon unlawful 
 and tortious acts of the officers or agents of 
 the state. Houston v. State, 98 Wis. 481, 
 74 N. W. Ill, 42: 39 
 
 23. The trust imposed upon the states by 
 the act of Congress refunding the direct tax 
 levied in 1861, to hold the same for the ben- 
 efit of the persons from whom it was col- 
 lected, is not binding upon states which paid 
 the tax out of their treasuries, and did not 
 collect it by a levy upon their inhabitants. 
 Davis v. Com. 164 Mass. 241, 41 N. E. 292, 
 
 30: 743 
 Necessity of presenting. 
 
 24. The presentation to the board of ex- 
 aminers, which, by Cal. Pol. Code, 672, is 
 required before the comptroller can draw 
 his warrant for a claim, is not excused by 
 Cal. act March 31, 1891, in case of a claim 
 for a bounty for killing coyotes, although 
 that act provides .for proving the claim and 
 obtaining a certificate thereof from the 
 board of supervisors. Ingram v. Colgan, 106 
 Cal. 113, 39 Pac. 437, 28: 187 
 
 HI. Editorial Notes. 
 
 See also Alabama Claims. 
 
 i. Generally. 
 
 Act creating court of claims. 2: 572.* 
 
 Court of claims; jurisdiction, practice, and 
 
 procedure. 3: 463.* 
 Against United States; assignment; 2: 
 
 571.* 
 
 Limitation of time to present. 7: 861.* 
 2. What claims are valid demands against 
 
 state. 
 
 Generally. 42: 33. 
 Summary of cases in regard to claims. 42: 
 
 37. 
 As affected by the state Constitution. 
 
 42: 37. 
 
 As affected by the construction of stat- 
 utes. 42: 37. 
 Allowing. 42: 37. 
 Creating a special fund for. 42: 
 
 37. 
 
 Limiting. 42 : 38. 
 Prohibiting. 42 : 38. 
 Repealing or altering prior stat- 
 utes allowing. 42: 38. 
 Where there is no statute. 42: 38. 
 As to priority. 42: 38. 
 Arising on contracts. 42: 38. 
 Contrary to public policy. 42: 39. 
 Where the claimant was estopped. 42: 
 
 39. 
 
 Affected by the evidence. 42: 39. 
 Affected by the remedy. 42: 39. 
 Where there was an injunction. 42: 
 
 39. 
 
 As to the auditing. 42: 39. 
 A condition precedent not being com 
 
 plied with. 42: 39. 
 As to party. 42 : 39. 
 Affected by the statute of limitations. 
 42: 39.
 
 474 
 
 CLAIRVOYANCE CLERKS. 
 
 For per diem. 42: 40. 
 For costs. 42: 41. 
 For fees. 42 : 44. 
 For services. 42: 47. 
 For expenses. 42: 49. 
 
 For attorneys' fees. 42: 51. 
 For salary. 42: 53. 
 
 As to the performance of condition pre- 
 cedent. 42 : 53. 
 As to priority. 42: 54. 
 To be paid out of a special fund. 42: 
 
 54. 
 
 On contracts. 42: 54. 
 Generally. 42: 54. 
 As common carrier or wharfinger. 42: 
 
 . 55. 
 Of sale. 42: 55. 
 
 On public buildings and improvements. 
 
 42: 56. 
 
 For prison labor. 42: 59. 
 For printing. 42: 59. 
 For supplies. 42: 61. 
 For interest. 42: 62. 
 By public institutions. 42: 63. 
 For bounty and reward. 42: 63. 
 For damages from negligence and torts. 
 
 42: 64. 
 
 Under public health laws. 42:65. 
 For injuries arising on canals and water- 
 courses. 42: 65. 
 Generally. 42: 65. 
 
 Claims on account of revocation of 
 grant, or for abandonment. 
 42:67. 
 As affected by statute of limitations. 
 
 42: 67. 
 
 For personal injuries. 42: 69. 
 For refunding money paid to the state. 
 42: 69. 
 
 CLAIRVOYANCE. 
 
 See Physicians and Surgeons, 42. 
 
 CLAMS. 
 
 See Fisheries, III. 
 
 CLASSIFICATION. 
 
 Under Civil Service Laws, see Civil Service, 
 20, 21. 
 
 Of City, Change in, see Constitutional Law, 
 197. 
 
 As Affecting the Law of the Land, see Con- 
 stitutional Law, 782. 
 
 Of Railroads for Privilege Taxation, see 
 Constitutional Law, 662. 
 
 By Statute, see Constitutional Law, II. a; 
 Statutes, I. g. 
 
 In Taxation, see Taxes, 30-32, 578, 579. 
 
 CLASS LEGISLATION. 
 
 See Constitutional Law, II. a. 
 
 CLEARANCE CARD. 
 
 Duty to Give to Discharged Employee, see 
 Master and Servant 4446. 
 
 Editorial Notes. 
 
 Duty to give to discharged employee. 62: 
 922. 
 
 CLEARING HOUSE. 
 
 Business of, see Banks, IV. d; VIII. 17%. 
 Time for Presenting Checks in City Con- 
 taining, see Checks, 9. 
 
 CLEAR RECEIPT. 
 
 Estoppel by Giving, see Estoppel, 140. 
 
 CLEPTOMANIA. 
 
 See Kleptomania. 
 
 CLERGYMEN. 
 
 Liability for Libel or Slander, see Libel and 
 Slander, 33, 106. 
 
 Editorial Notes. 
 
 As public officers. 17: 245. 
 Expression of opinion of, as libel or slander. 
 28: 674. 
 
 LERKS. 
 
 I. Of United States Court. 
 II. Of State Court. 
 III. Editorial Notes. 
 
 Liability for Taking Defective Abstract, see 
 
 Abstracts, and also infra, III. 
 Liability for Loss Through Bank Failure, 
 
 see Bonds, 79, 80. 
 Acknowledgment of Instrument Adopting 
 
 Child, see Acknowledgment, 7. 
 Time to Object to Claim as Custodian of 
 
 Note, see Appeal and Error, 588. 
 Claims of, see Claims, 2. 
 Election to Fill Vacancy, see Elections, 65. 
 Refusal of County Clerk to Certify Return 
 
 of Canvassers, see Elections, 266, 267. 
 Embezzlement by, see Embezzlement, 2, 3. 
 Garnishment of, see Garnishment, 11, 12, 
 
 oO-52. 
 Appointment by, of Commissioners to Set 
 
 Off Homestead, see Homestead, 71. 
 Indictment of, for Illegal Registration, see 
 
 Indictment, etc., 32.
 
 CLERKS, I. 
 
 475 
 
 Entry of Judgment by Confession in Vaca- 
 tion, see Judgment, 9. 
 
 Attachment of Fund in Custody of, see 
 Levy and Seizure, 43. 
 
 Of House of Representatives, Mandamus to, 
 see Mandamus, 55. 
 
 Compelling Acceptance of Office of, see Man- 
 damus, 66. 
 
 Eligibility of Women to Office of, see Of- 
 ncers, 17, 18, and also infra, III. 
 
 Nature of Office, see Officers, 117. 
 
 Salary of, see Officers, 178, 189. 
 
 Special Legislation as to, see Statutes, 404. 
 
 Forgery by, see Banks, 135, 147, 155. 
 
 Termination of Contract with, by Destruc- 
 tion of Property, see Contracts, 674. 
 
 Preference of, see Corporations, 809, 810. 
 
 Priority of Claim of, for Wages, see Exec- 
 utors and Administrators, 152. 
 
 Sale of Liquor by, see Intoxicating Liquors, 
 III. c. 
 
 Ground for Discharge of, see Master and 
 Servant, 40. 
 
 Imputing Knowledge of, to Employer, see 
 Notice, 46-50. 
 
 Of Postmaster, Liability for Embezzlement 
 by, see Bonds, 87. 
 
 Of Corporation, who are, see Corporations, 
 559. 
 
 Of Insurance Agent, see Insurance, 110, 113, 
 119-122, and also infra, III. 
 
 Of Legislature, see Statutes, 8. 
 
 I. Of United States Court. 
 
 1. In determining the number of folios in 
 a final record, each separate and distinct 
 order, notice, or other paper is to be counted 
 separately according to the rule prescribed 
 in U. S. Rev. Stat. 854, U. S. Comp. Stat. 
 1901, p. 657; and the aggregate of the folios 
 so found is the number of folios in the rec- 
 ord. Erwin v. United States, 37 Fed. 470, 
 
 2: 229 
 
 2. Where the clerk makes the copy sub- 
 poenas or subpoena tickets, and furnishes 
 them to the marshal for service, at the re- 
 quest or by the acquiscence of the district 
 attorney, the clerk is entitled to charge the 
 government for making such copies. Id. 
 
 3. When the clerk states the accounts of 
 jurors and witnesses, taking their affidavits 
 as to travel and attendance, and presents 
 the accounts stated in a report to the court 
 for its approval, he is entitled to the fee pre- 
 scribed by the statute "for making any re- 
 port." The original orders signed by the 
 judge should be entered of record and placed 
 upon file by the clerk; ana he is entitled to 
 a. fee of 10 cents for filing each. Id. 
 
 4. Where, by order of the court, the clerk 
 enters upon the minutes, as memorial serv- 
 ices in respect to the late Vice President, a 
 proceeding in court of official character, the 
 fee for entering is properly chargeable to the 
 government. Id. 
 
 5. The fees of the clerk for entering or- 
 ders approving accounts of marshals, clerks. 
 attorneys, commissioners, etc., as required 
 
 by the act of Congress February 22, 1875 
 (18 Stat. at L. 333), and for certified copies 
 of such orders for the department, are prop- 
 erly chargeable against the United States. 
 
 Id. 
 
 6. The clerk is entitled to charge for filing 
 each separate paper sent up by commission- 
 ers after hearing in criminal cases, and for 
 filing each separate account of deputy mar- 
 shals, being the vouchers to accounts cur- 
 rent of the marshal. Id. 
 
 7. The clerk is entitled to a docket fee for 
 a hearing by the court on application for a 
 warrant for the transportation of a defend- 
 ant to another district, under the provisions 
 of U. S. Rev. Stat. 1014, U. S. Comp. Stat. 
 1901, p. 716. Id. 
 
 8. An attachment against a defaulting 
 witness or juror for contempt of court is an 
 independent suit, and a "cause" for which a 
 docket fee is chargeable, under the fee bill. 
 The clerk is required to make a final record 
 of the proceedings in such a case. Id. 
 
 9. The offices of clerk and commissioner 
 are compatible. A person who holds two 
 distinct compatible offices may receive the 
 compensation of each. A clerk is given a 
 per diem fee "for his attendance" at a ses- 
 sion of the court; a commissioner is given a 
 per diem fee "for hearing and deciding," 
 services clearly distinct. Id. 
 
 10. Since the passage of the act of Con- 
 gress of March 3, 1887 (24 Stat. at L. 541), 
 it is not necessary that business be trans- 
 acted in court to entitle the clerk to his 
 per diem; it is sufficient if the court be 
 opened for business by the judge. Id. 
 
 11. Where his deputy attends a session of 
 the court, the clerk is entitled to a per diem 
 compensation for such attendance, even 
 though the clerk has received a per diem for 
 his personal attendance at a session of the 
 court at another place. Id. 
 
 12. A clerk of a circuit or district court of 
 the United States is entitled to compensa- 
 tion for revising the jury box, at the rate 
 of $5 per day, for a period not exceeding 
 three days for a term of the court; also to 
 charge 15 cents per folio for recording the 
 names, residences, etc., of jurors, on a record 
 which he is required to make by a rule of 
 court. Id. 
 
 13. WTiile the general rule is otherwise, 
 when a statute is silent as to compensation, 
 if additional labor is imposed on a clerk, not 
 in the line of the duties ordinarily apper- 
 taining to such an office, and if contempo- 
 raneous construction of the statute by the 
 Attorney General, and analogous provisions 
 of other statutes subsequently passed, indi- 
 cate an intention to pay for such services, 
 the officer is entitled to compensation. Id. 
 
 14. The affidavit and other papers to show 
 proper proceedings before a committing mag- 
 istrate, in compliance with the constitu- 
 tional provisions in respect to criminal in- 
 formation, in a court of the United States, 
 should be entered on the record; and the 
 clerk is entitled to fees for making such 
 entries. Id. 
 
 15. The fee for attaching a seal to certi-
 
 476 
 
 fied copies of commitments furnished for 
 service on a jailer by a clerk is properly 
 allowed. Id. 
 
 16. A clerk of a court of the United 
 States is entitled to fees for making certi- 
 fied copies of writs of commitment to be 
 served on the jailer, where prisoners are 
 committed to the local jails of the state. Id. 
 
 CLERKS, II CLOUD ON TITLE, I. a. 
 
 CLOTHING. 
 
 II. Of State Court. 
 
 Authority to Receive Payment of Judgment, 
 see Judgment, 381. 
 
 17. The clerk of a court may refuse to 
 furnish to a newspaper a copy of the pro- 
 ceedings in a divorce case for publication, in 
 the absence of any statutory provision on 
 the subject. Re Caswell, 18 R. I. 835, 29 Atl. 
 259, 27:82 
 
 18. The power given by statute to a clerk 
 of court to issue injunction orders cannot be 
 exercised by his deputy under a statute pro- 
 viding that any duty enjoined upon a 
 ministerial officer and any act permitted to 
 be done by him may be performed by his 
 lawful deputy. Payton v. McQuown, 97 Ky. 
 757, 31 S. W. 874, 31:33 
 
 19. A legislative act repealing in toto a 
 former statutory provision for the salary of 
 an assistant clerk of a separate orphans' 
 court, appointed by the clerk of such court 
 pursuant to authority conferred upon him 
 by the state Constitution, without making 
 any other provision for his salary, is un- 
 constitutional and void, its effect being to 
 abolish the office of assistant clerk. Reid 
 v. Smoulter, 128 Pa. 324, 18 Atl. 445, 5: 517 
 
 HI. Editorial Notes. 
 
 Right of women to be. 38: 213. 
 Women as deputy clerks. 13: 721. 
 Liability of, for defective abstract. 22: 99. 
 Liability on official bond for loss by bank 
 
 failure. 22 : 449. 
 Employment of, by insurance agent. 10: 
 
 609.* 
 Improper influence or interference with 
 
 grand jury by. 28: 371. 
 Maritime lien for services of. 70: 387. 
 
 CLOSE SEASON. 
 
 For Fishing, see Fisheries, I. b. 
 For Game, see Game Laws. 
 
 CLOSING STORES. 
 
 Ordinance for, see Municipal Corporations, 
 231. 
 
 Police Power to Regulate Manufacture of r 
 see Constitutional Law, 1022, 105C. 
 
 Made in Sweat Shop, Judicial Notice of 
 Danger to Health from, see Evidence, 
 114. 
 
 CLOUD ON TITLE. 
 
 I. When Action Lies. 
 
 a. In General. 
 
 b. What are Clouds. 
 
 c. Who May Sue; Title or Posses- 
 
 sion of Complainant. 
 II. Defenses; Counterclaims. 
 
 III. Conditions. 
 
 IV. Cross Bill. 
 
 V. Editorial Notes. 
 
 Action at Law to Determine Adverse Claim, 
 
 see Adverse Claim. 
 Dismissal of Appeal, see Appeal and Error,. 
 
 369. 
 Jurisdiction of Suit to Prevent, see Courts, 
 
 298, and also infra, V. 
 
 Federal Jurisdiction of Suit, see Courts, 349- 
 Evidence in Action to Remove, see Evidence, 
 
 y78. 
 
 Sufficiency of Evidence as to Real Plaintiff, 
 
 see Evidence, 2337. 
 Injunction to Prevent, see Injunction, 180, 
 
 and also infra, V. 
 Right to Jury Trial, see Jury, 19. 
 Parties to Action to Remove, see Parties, 
 
 186. 
 Pleading in Action to Remove, see Pleading, 
 
 193. 
 Specific Enforcement of Contract Notwith- 
 
 standing, see Specific Performance, 65. 
 
 I. When Action Lies, 
 a. In General. 
 
 As to Bill Quia Timet Generally, see Quia 
 
 Timet. 
 In Case of Breach of Contract to Support 
 
 Minor, see Real Property, 6. 
 
 1. A cloud on title may be removed in 
 equity, although the defendants have not 
 done or threatened to do anything in oppo- 
 sition to the title of the plaintiffs. Loring 
 v. Hildreth, 170 Mass. 328, 49 N. E. 652, 
 
 40: 127 
 
 2. Title may be quieted as against a 
 claim asserted under a grant of the right to 
 produce petroleum and natural gas, when 
 this did not constitute a lease and the right 
 has terminated by its own limitation. Detlor 
 v. Holland, 57 Ohio St. 492, 49 N. E. 690, 
 
 40: 266 
 
 3. The power of a court of equity to com- 
 pel a vendor to execute another deed where 
 one has been lost, so as to clothe the pur- 
 chaser with the record title, has its sanction 
 in the general jurisdiction of a court of 
 equity. Kent v. St. Michael's Church, 136 
 N. Y. 10, 32 N. E. 704, 18: 331
 
 CLOUD ON TITLE, I. b, c. 
 
 477 
 
 4. A judgment creditor may maintain a 
 uit in equity to have the lien of his judg- 
 ment declared paramount to the title of the 
 purchaser at a sale by the administrator 
 of the judgment debtor, where such sale was 
 made without mention of the judgment, 
 since a motion would not remove the ob- 
 struction to the enforcement of the judg- 
 ment, and a sale upon execution would 
 leave such purchaser's claim undetermined. 
 McAfee v. Reynolds, 130 Ind. 33, 28 N. E. 
 423, 18: 211 
 
 5. An execution purchaser of land included 
 in an assignment for creditors which is void 
 on its face may have his title quieted 
 against such assignment, where the statute 
 at the time of the purchase authorized a 
 levy on lands fraudulently conveyed. It is 
 not necessary for the judgment creditor to 
 seek aid in equity before the sale. Wolf v. 
 O'Connor, 88 Mich. 124, 50 N. W. 118. 
 
 13: 693 
 
 b. What are Clouds. 
 See also Vendor and Purchaser, 41. 
 
 6. The legal owners in the actual posses- 
 sion of land can maintain a suit to quiet 
 title against adverse claims which becloud 
 the title and injure the market value of the 
 land. Kincaid v. McGowan, 88 Ky. 91, 4 S. 
 W. 802, 13: 289 
 
 7. A suit to declare a deed null and void 
 on the ground that it created a determin- 
 able fee which has now ceased and deter- 
 mined, but that rights are still asserted un- 
 der it adversely to the plaintiff, presents a 
 proper case for the removal of a cloud upon 
 title, although it involves the construction 
 of the deed. Slegel v. Herbine, 148 Pa. 236, 
 23 Atl. 996, 15: 547 
 
 8. A deed of other instrument purport- 
 ing to convey land, that shows upon its face 
 that the grantors therein were out of pos- 
 session of the land granted at the time of its 
 execution, and that such land at the time 
 was adversely held by another, is void upon 
 its face, as to such adverse occupant, and, 
 as to him, does not create such a cloud upon 
 his title as will authorize the interposition 
 of a court of equitv on his behalf for its re- 
 moval. Reyes v. Middleton, 36 Fla. 99, 1 
 So. 937, 29: 66 
 
 9. An action to quiet title to real prop- 
 erty and remove a cloud therefrom, directed 
 against an apparent lien by way of tax or 
 special assessment, is only maintainable in 
 case such tax or assessment itself is abso- 
 lutely void, under Neb. Comp. Stat. 1901, 
 chap. 77, art. 1, 144, providing that no in- 
 junction shall be granted to restrain the 
 collection of any tax, unless the tax be lev- 
 ied for an illegal or unauthorized purpose. 
 Philadelphia Mortg. & T. Co. v. Omaha, 63 
 Neb. 280, 88 N. W. 523, 57: 150 
 
 10. Equity has jurisdiction of a suit by 
 a reversioner to remove, as a cloud on his 
 title, a tax deed acquired by a lessee for 
 years, who has covenanted to pay the tax6s, 
 under the power to relieve from fraud and 
 enforce trusts. Oppenheimer v. Levi, 96 Md. 
 296, 54 Atl. 74, 60: 729 
 
 11. A claim of the right to inspect beer 
 under a statute cannot constitute a cloud 
 upon title which equity may prevent, even 
 if a cloud upon title can arise with refer- 
 ence to personal property, when the inspec- 
 tion law makes no charge against property, 
 and provides for no remedy except by in- 
 dictment or criminal information against in- 
 dividuals. State ex rel. Kenamore v. Wood, 
 155 Mo. 425, 56 S. W. 474, 48:596 
 
 c. Who May Sue; Title or Possession of 
 Complainant. 
 
 For Editorial Notes, see infra, V. 
 
 12. A suit to set aside a tax sale and to 
 have the tax deed declared void may be 
 maintained by a mortgagee of the land, or 
 by any person who can show such an in- 
 terest in it as will entitle him to redeem 
 from the tax sale. Miller v. Cook, 135 111. 
 190, 25 N. E. 756, 10: 292 
 
 13. An action to quiet title may be main- 
 tained although founded simply on a title by 
 prescription arising from ten years' adverse 
 possession of the land. Cramer v. Clow, 81 
 Iowa, 255, 47 N. W. 59, 9: 772 
 
 14. When possession has been taken of 
 vacant land, after payment of taxes for 
 seven years under color of title, another per- 
 son, having notice of such reduction to 
 possession, has no right, although claiming 
 title, to take possession except by due legal 
 procedure; and, if he takes possession by 
 any other means, he ir; a mere trespasser, 
 and has no standing to maintain a suit to 
 quiet title. Gage v. Hampton, 127 111. 87, 20 
 N. E. 12, 2: 512 
 Necessity of possession. 
 
 For Editorial Notes, see infra. V. 
 
 15. Possession of land by the plaintiff is 
 not necessary, under the Washington stat- 
 utes, in order to maintain an action to quiet 
 title. Wagner v. Law, 3 Wash. 500, 28 Pac. 
 1109, 15: 784 
 
 16. Possession is not necessary to enable 
 a reversioner to maintain a suit in equity 
 to remove the cloud from his title, where 
 the term lessee, after having covenanted to 
 pay the taxes, neglects to do so, and ac- 
 quires title to the property at a tax sale. 
 Oppenheimer v. Levi, 96 Md. 296, 54 Atl. 74, 
 
 60: 729 
 
 17. Federal courts in equity have cogni- 
 zance of bills quia timet, although complain- 
 ant is not in possession, if the local legisla- 
 ture gives the remedy in such case, unless 
 defendant would be entitled to a jury trial 
 according to the course of common law. 
 Grand Rapias & I. R. Co. v. Sparrow, 36 Fed. 
 210, 1:480 
 What constitutes possession. 
 
 For Editorial Notes, see infra, V. 
 
 18. Heirs at law are not in possession of 
 their ancestor's real estate within the mean- 
 ing of a statute permitting persons in pos- 
 session to maintain a suit to determine ad- 
 verse claims to real estate if there exists a 
 valid probate of thn ancestor's will which 
 places other persons in possession of the 
 property, although the object of the action
 
 478 
 
 CLOUD ON TITLE, II CLUBS. 
 
 is to have the will declared void and a cloud 
 on plaintiff's title. Chilcott v. Hart, 23 
 Colo. 40, 45 Pac. 391, 35: 41 
 
 II. Defenses; Counterclaims. 
 
 19. Defects in the title of a person in pos- 
 session of land will not defeat his action for 
 quieting the title as against a stranger who 
 claims the land, but has no right or title 
 thereto. Detlor v. Holland, 57 Ohio St. 492, 
 49 X. E. 690, 40: 266 
 
 20. A purchaser of land on execution sale 
 can maintain a suit to set aside a prior con- 
 veyance by the execution debtor which is 
 fraudulent as to creditors; and the judg- 
 ment creditor, by becoming a purchaser at 
 the sale, does not waive his right to relief 
 in equity. Wagner v. Law, 3 Wash. 500, 28 
 Pac. 1109, 15: 784 
 
 21. In an action to quiet title, where the 
 validity of the plaintiff's claim depends on 
 the question of notice of the rights of the 
 defendants, being a perfect title if he had 
 no notice, but not valid if he had notice, the 
 question whether defendants are barred by 
 statute from setting up their claim to the 
 property is immaterial. Randall v. Duff, 79 
 Cal. 115, 21 Pac. 610, 3: 754 
 
 22. A claim of title in himself, with a de- 
 mand that it be quieted, may be set up by 
 defendant as a counterclaim in an action to 
 determine adverse estates and interest in 
 real estate, under 1ST. D. Comp. Laws, 
 5449. Power v. Bowdle, 3 X. D. 107, 54 N. 
 W. 404, 21 : 328 
 
 III. Conditions. 
 
 23. Reimbursement of the amount paid by 
 a third person for a tax title void because 
 the assessment was against a deceased per- 
 son is not a condition of equitable relief 
 against the tax sale as a cloud on title. Mor- 
 rill v. Lovett, 95 Me. 165, 49 Atl. 666, 
 
 56: 634 
 
 24. One who comes into a court of equity 
 asking to have a tax deed set aside as a 
 cloud upon his title must tender or offer to 
 pay to the holder of the certificate of pur- 
 chase the amount of the lawful and valid 
 taxes due upon the land, together with the 
 interest thereon. Miller v. Cook, 135 111. 190. 
 25 X. E. 756, 10: 292 
 
 25. It is error for the court to fail to 
 have an account taken of the taxes actually 
 due on the land and to decree their pay- 
 ment, in an action brought to have a tax 
 deed sot aside as a cloud upon the title, in 
 which the complainant offers to pay the 
 sum equitably due. Id. 
 
 26. The sum paid as a consideration for 
 a grant of the right to produce oil and gas 
 from land need not be returned in order to 
 maintain an action to quiet title after the 
 frrant has expired by its own limitation. 
 Detlor v. Holland, 57 'Ohio St. 492. 49 X. E. 
 690, 40: 266 
 
 27. Expenses incurred in drilling wells 
 after the expiration of a grant of the right 
 to produce oil and gas and after notice not 
 to drill such wells cannot be recovered from 
 the grantor on his enforcement of his right 
 by quieting title. Id. 
 
 IV. Cross Bill. 
 
 28. A cross bill in a suit to remove a cloud 
 from title will not be dismissed because de- 
 fendant denies the title to have been in the 
 person under whom both parties claim, at 
 the time of the levy of a writ of attach- 
 ment under which plaintiff claims, where 
 this denial is qualified and explained by al- 
 legations showing that a conveyance can- 
 celed at suit of defendant was the founda- 
 tion of the denial. West v. People's Bank, 
 67 Miss. 729, 7 So. 513, 8: 727 
 
 29. Relief will not be denied on a crosa 
 bill in a suit to remove a cloud on title, be- 
 cause defendant shows a perfect title on 
 which he might maintain ejectment. Id. 
 
 V. Editorial Xotes. 
 
 Jurisdiction of court of equity to remove, 
 
 generally. 8: 727.* 
 Jurisdiction founded on inadequacy of 
 
 legal remedy. 8: 727.* 
 Possession as essential to right of ac- 
 tion. 8: 728.* 
 
 Remedy of party out of possession. 
 8: 728.* 
 
 Jurisdiction of equity to avert. 10: 293.* 
 
 jurisdiction of court of equity to quiet 
 title. 10:297.* 
 
 Jurisdiction of equity of suit to remove 
 cloud on title to land in 
 other state or country. 
 69: 682. 
 
 Injunction to prevent. 8: 729.* 
 
 Injunction against tax as a cloud. 22: 705. 
 
 When sale for taxes will be restrained. 
 10: 294.* 
 
 Right of purchaser on execution to set 
 aside fraudulent convey- 
 ance. 15: 784. 
 
 Bill to quiet title on invalid sale of prop- 
 erty for sewer assessment. 
 60:'243. 
 
 Who may maintain bill to quiet title or 
 remove cloud. 10: 295.* 
 
 Xecessity and sufficiency of possession as- 
 condition of bill to remove. 
 10: 295.* 
 
 CLUBS. 
 
 Expulsion of Members, see Associations, 27 
 33. 
 
 Underwriters Social Club as Unlawful Com- 
 bination, see Conspiracy, 198. 
 
 Loan by Member of, for Gambling in, see 
 Contracts, 522.
 
 COAL COCAINE. 
 
 479 
 
 Right of Member to Inspect Membership 
 Roll, see Corporations, 515, 516. 
 
 Review of Expulsion of Member, see Courts, 
 228, and also infra, Editorial Notes. 
 
 Political, Nominations by, see Elections, 286. 
 
 Sale of Liquor by, see Injunction, 156; In- 
 toxicating Liquors, III. b, and also infra, 
 Editorial Notes. 
 
 Levy on Stock in, see Levy and Seizure, 16. 
 
 Management of, as Lottery, see Lottery, 31. 
 
 Manadmus to Compel Reinstatement of 
 Member, see Mandamus, 194, and also 
 infra, Editorial Notes. 
 
 Exemption of, from Taxation, see Taxes, 
 275. 
 
 1. An incorporated social club is not en- 
 gaged in trade or carrying on business with- 
 in the meaning of statutes concerning li- 
 censes. State v. Boston Club, 45 La. Ann. 
 585, 12 So. 895, 20: 185 
 
 2. The violation by an incorporated social 
 cub, of a law forbidding the sale of intoxi- 
 cating liquors, is such an abuse and misuse 
 of its cnarter powers and franchises as to 
 furnish legal cause for the annulment of its 
 charter. State v. Easton Social, L. & M. 
 Club, 73 Md. 97, 20 Atl. 783, 10: 64 
 
 3. Stockholders of an incorporated club in 
 which gambling is carried on, from the win- 
 nings of which they receive some interest, 
 however small, must be regarded in such 
 matter as individuals. White v. Wilson, 
 100 Ky. 367, 38 S. W. 495, 37: 197 
 
 Editorial Notes. 
 
 Mandamus to compel reinstatement in. 8: 
 
 195.* 
 Power of courts to review decisions of, 
 
 against members. 49: 359, 
 
 362, 365. 
 Taxation of social clubs engaged in sale of 
 
 liquor. 10: 82.* 
 Sale of intoxicating liquor by social club. 
 
 2:494;* 6: 128;* 12: 412.* 
 
 COAL. 
 
 Conspiracy against Retail Dealer in, see 
 Action or Suit, 104. 
 
 Adverse Possession of, see Adverse Posses- 
 sion, 69, 71. 
 
 Combination of Producers of, or Dealers in, 
 see Conspiracy, 136-141. 
 
 Class Legislation as to Employees in Mine, 
 see Constitutional Law, 553. 
 
 Due Process in Determining Wages of Min- 
 ers, see Constitutional Law, 720-723. 
 
 Police Regulation of Wages of Miners, see 
 Constitutional Law, 1041, 1042. 
 
 Requiring Inspection of Mines, see Constitu- 
 tional Law, 1051, 1052. 
 
 Validity of Option Contract for Purchase of, 
 see Contracts, 539-541. 
 
 Measure of Damages for Mining, see Dam- 
 ages, 412, 413. 
 
 Presumption as to Partition of, see Evi- 
 dence, 711. 
 
 Limitation of Action for Injury to Surface 
 by Mining, see Limitation of Actions, 
 139. 
 
 Drilling for Oil or Gas Wells through, see 
 
 Mines 61, and also infra, Editorial 
 
 Notes. 
 
 As o Mines Generally, see Mines, II. a. 
 Unloading of, as Nuisance, see Nuisances, 29. 
 Action for Removal of, from Bed of Street, 
 
 see Parties, 22. 
 
 Partition of, see Partition, 18. 
 Taxation of, see Taxes, 105, 106, and also 
 
 infra, Editorial Notes. 
 Pollution of Water in Mining of, see Waters, 
 
 288. 
 
 Editorial Notes. 
 
 As real estate for purposes of taxation. 
 
 15:297. 
 
 Right to drill through coal of another own- 
 er. 25:225. 
 
 COAL CARS. 
 Lien for, see Mechanics' Liens, 45. 
 
 COAL DEALERS. 
 
 Conspiracy against, see Action or Suit, 104. 
 Combination of, see Conspiracy, 136-141. 
 
 COAL HOLE. 
 
 In Sidewalk, see Highways, 317, 318, 320, 
 321, 330, 331; Indemnity, 4. 
 
 Editorial Notes. 
 
 Liability of landlord to third person as to. 
 26: 199. 
 
 COAL MINES. 
 
 As an Improvement, see Mechanics' Liens, 
 75. 
 
 In General, see Coal; Mines, II. a. 
 
 COAL SHEDS. 
 As Nuisance, see Nuisances, 86. 
 
 COASTING. 
 
 Liability of City for Injury by, see Munic- 
 ipal Corporations, 482, 483. 
 
 Editorial Notes. 
 
 In street, as a nuisance: municipal power 
 over. 39: 679. 
 
 COCAINE. 
 
 Transportation by Carrier of Person under 
 Influence of, see Carriers, 442, 443
 
 480 
 
 C. O. D. COLD STORAGE. 
 
 Use of, as Affecting Criminal Responsibility, 
 see Criminal Law, 20. 
 
 C. 0. D. 
 
 Liability of Carrier for Money Collected C. 
 
 0. D., see Carriers, 779-781. 
 Liability for Delivering Liquor Consigned C. 
 
 O. D., see Intoxicating Liquors, 101. 
 Delivery of Liquor to Carrier Marked C. O. 
 
 D., see Intoxicating Liquors, 147, 148. 
 Passing of Title to Goods Shipped C. 0. D., 
 
 see Sale, 19. 
 Diligence in Examining Package Sent C. O. 
 
 D. before Paying for, see Trial. 160. 
 
 Editorial Notes. 
 
 Transfer of title on delivery to carrier of 
 goods sent C. 0. D. 22: 
 426. 
 
 CODE. 
 
 Bid for Printing of, see Contracts, 862. 
 
 Receiver of, see Receivers, 19. 
 
 Property in Secrets in, see Secrets, 1, 2. 
 
 Incorporation of, into Statute, see Statutes, 
 17. 
 
 Incorporation of Defective Statute into, see 
 Statutes, 156. 
 
 Amendment or Revision of, see Statutes, 
 250, 254, 255, 258. 
 
 Effect of Adoption or Revision of, see Stat- 
 utes, 573-576, 591. 
 
 Special Code of Procedure in Road Cases, 
 see Statutes, 370. 
 
 Construction of Section of, see Statutes, 416, 
 530. 
 
 Editorial Notes. 
 
 Power of legislature to enact or amend by 
 single statute. 55: 833. 
 
 CODICIL. 
 
 Contract against Obtaining, see Contracts, 
 432. 
 
 Parol Evidence as to, see Evidence, 1144. 
 
 Sufficiencv of Proof as to, see Evidence, 
 2333." 
 
 Validity of, as Regards Rule against Per- 
 petuities, see Perpetuities, 6, 34. 
 
 See also Wills, I. f. 
 
 COERCION. 
 
 Of Jury, see Appeal and Error, 1130, 1131 
 New Trial, 34-39; Trial, 891. 
 
 Editorial Notes. 
 Of disagreeing jury. 16: 643. 
 
 COERCIVE DISTRIBUTION. 
 Bill for. see Pleading, 424, 425. 
 
 COEXECUTORS. 
 
 Powers of, see Executors and Administra- 
 tors, 41. 
 
 Liability for Acts of, see Executors and Ad- 
 ministrators, 88-90. 
 
 COFFEE GRINDER. 
 Negligence in Use of, see Negligence, 44. 
 
 COG WHEELS. 
 
 Failure to Guard, see Master and Servant, 
 139, 289-293. 
 
 COHABITATION. 
 
 Presumption of Marriage from, see Evidence, 
 
 262, 265. 
 As Evidence of Marriage, see Evidence, 1478, 
 
 1479, 1917, and also infra, V. 
 Effect of, see Marriage, 16, 17, 23-26, 40-45, 
 
 64. 
 
 Editorial Notes. 
 
 As Evidence of Marriage, see Marriage, V. 
 
 4. 
 As consideration for subsequent promise to 
 
 pay. 53: 357. 
 
 COINS. 
 
 Loan of, see Bailment, 2. 
 Opinion Evidence as to Value of, see Evi- 
 dence, 1326. 
 As Money, see Money. 
 
 Editorial Notes. 
 
 Contracts to pay in. 29: 512. 
 Judgments for. 29: 593. 
 
 COKE OVEN. 
 As Nuisance, see Nuisances, 25. 
 
 COLD STORAGE. 
 
 Charges for, see Bailment, 13, 14. 
 
 Liability for Injury to Goods While in, see 
 
 Bailment, 34-36. 
 
 Limitation of Liability, see Bailment, 18. 
 Illegal Contract for, see Contracts, 379.' 
 
 Editorial Notes. 
 
 Liability of bailee for damage to goods re- 
 ceived for cold storage. 
 52: 106.
 
 COLLATERAL ATTACK COLLEGES. 
 COLLATERAL ATTACK. COLLECTOR. 
 
 481 
 
 On Decisions and Assessments of Comptrol- 
 ler of Currency, see Banks, 20. 
 
 On Corporate Existence, see Corporations 
 676. 
 
 On Pardon, see Criminal Law, 253. 
 
 On Appointment of Administrator, see Exec- 
 utors and Administrators, 21-25. 
 
 On Appointment of Guardian, see Guardian 
 and Ward, 4. 
 
 On Order Vacating Highway, see Highways, 
 386. 
 
 On Judgment, see Judgment, II. c. 
 
 On Validity of Judicial Sale, see Judicial 
 Sale, 16, 17. 
 
 On Annexation to City, see Municipal Cor- 
 porations, 26, 27. 
 
 On Acts of Public Officer, see Officers, 167 
 223. 
 
 On Vote by Aldermen, see Parliamentary 
 Law, 27. 
 
 On Partition Sale, see Partition's. 
 
 On Local Improvement Assessment, see Pub- 
 lic Improvements, 155, 199. 
 
 On Appointment of Receiver, see Receivers, 
 17, 112. 
 
 On Title to Land in Replevin Suit, see Re- 
 plevin, 28. 
 
 On Assessments, see Taxes, 457. 
 
 On Trustee's Appointment, see Trusts, 113. 
 
 On Service of Summons, see Writ and Pro- 
 cess, 84. 
 
 COLLATERAL CONTRACTS. 
 
 Statute of Frauds as to, see Contracts, I. 
 e, 2. 
 
 * 
 
 COLLATERAL-INHERITANCE TAX. 
 See Taxes, V. 
 
 4 
 
 COLLATERAL SECURITY. 
 
 Effect of, on Claim in Insolvency, &eo In- 
 solvency, 16-22. 
 See also Pledge and Collateral Security. 
 
 COLLECTION AGENCY. 
 
 Measure of Damages for Libel by, see Dam- 
 ages, 291. 
 
 Libel by, see Libel and Slander, 1, 2, 47, 48, 
 122. 
 
 See also Commercial Agencies. 
 
 COLLECTIONS. 
 
 By Bank, see Banks, IV. b. 
 Of Costs, see Costs and Fees, II. 
 Of Tax, see Taxes, III. a; V. d. 
 L.R.A. Dig. 31. 
 
 Tax for Reimbursement of, see Taxes, 89. 
 Liability of, see Taxes, 512. 
 
 Editorial Notes. 
 
 Penalty as limit of liability on bond. 55: 
 
 393. 
 Execution of collector's bond on condition 
 
 that others shall sign. 
 
 45: 338. 
 
 COLLEGE CAMPUS. 
 Covenant as to, see Covenant, 57; Deeds, 43. 
 
 COLLEGES. 
 
 Definiteness of Devise for, see, Charities, 98. 
 
 Authority to Designate Beneficiaries of 
 Trust, see Charities, 114. 
 
 Protection of Property of, see Constitutional 
 Law, 635. 
 
 Gift or Subscription to, see Bills and Notes, 
 19, 40, 41; Contracts, 88, 795, 796; Par- 
 ties, 64. 
 
 Contract to Establish, see Contracts, 320, 
 321. 
 
 Liability of Promoters of, see Corporations, 
 333. 
 
 Covenant as to Campus, see Covenant, 67; 
 Deeds, 43. 
 
 Estoppel to Deny Liability on Agreement of 
 Subscribers, see Estoppel, 294. 
 
 Infant's Liability for Rooms Leased While 
 Attending, see Infants, 71. 
 
 Insurable Interest in Life, see Insurance, 
 147. 
 
 Levy on Scholarship in, see Levy and Seiz- 
 ure, 18. 
 
 Mandamus to Compel Recognition of Diplo- 
 ma from, see Mandamus, 178. 
 
 Lien on, see Mechanics' Liens, 66. 
 
 Medical Colleges, see Medical Colleges. 
 
 Parties in Action as to, see Parties, 133. 
 
 Aid to Sectarian College, see Public Moneys, 
 62-64. 
 
 Quo Warranto to, see Quo Warranto, 13, 14. 
 
 Belonging to State, see State Institutions; 
 State Universities. 
 
 Partial Invalidity of Statute as to Trust- 
 ees, see Statutes, 87. 
 
 Exemption of, from Taxation, see Taxes, 
 242, 289, 293, 295, 296, 299, 300, 309, 314, 
 316, 341, 611, and also infra, Editorial 
 Notes. 
 
 Liberal Construction of Statute Exempting 
 Property of, see Statutes, 520. 
 
 1. The provisions of the New York Re- 
 vised Statutes as to the incorporation of col- 
 
 eges are not restricted to colleges incorpor- 
 ated by the Regents of the University of the 
 state, but apply also, except as otherwise 
 jrovided, to colleges created by special char- 
 ;ers. Re McGraw's Estate, 111 N. Y. 66, 19 
 N. E. 233, 2:387 
 
 2. A contract by the board of education
 
 482 
 
 COLLISION. 
 
 of Dakota territory, in 1887, for the instruc- 
 tion in methods of teaching of a class of 
 students in a sectarian institution, was 
 not authorized by IAW for any definite 
 term, and was therefore abrogated by a re- 
 peal of the law under which the contract 
 was made. Synod of Dakota v. State, 2 S. 
 D. 366, 50 N. W. 632, 14: 418 
 
 Property. 
 
 3. An agreement made August 4, 1866, 
 between the state of New York, through the 
 commissioners of the land office acting un- 
 der and by virtue of N. Y. Laws 1866, chap. 
 481, and Ezra Cornell, for the sale to the 
 latter of the agricultural land scrip held by 
 the state, must be construed to make such 
 sale at 30 cents per acre, with an additional 
 30 cents if so much should be thereafter re- 
 alized on the sale by the vendee; and the 
 fact that he agreed to pay his profits, if any 
 were realized, into the treasury of the state 
 as the property of Cornell University, does 
 not make such profits any portion of the 
 purchase price of the scrip. These profits 
 which he hoped to realize, and which were 
 entirely speculative, were paid over, not as a- 
 debt to the state, but as a gift of his own to 
 the university. Re McGraw's Estate, 111 N. 
 Y. 66, 19 N. E. 233, 2: 387 
 
 4. Section 5 of the charter of Cornell Uni- 
 versity, which provides that "the corpora- 
 tion hereby created may hold real and per- 
 sonal property not exceeding $3,000,000 in 
 the aggregate," gives the measure of the 
 power of the university to take, as well as 
 to hold, real property. It cannot be held that, 
 while the power of a college, given by 1 N. 
 Y. Rev. Stat. 460, "to take and hold by gift, 
 grant, or devise any real or personal prop- 
 erty the income or revenue of which shall 
 not exceed the value of $25,000," is enlarged 
 in respect to the power to hold property, the 
 power to take is thereby left unlimited. Id. 
 
 5. A statute giving absolute control and 
 management of the affairs and property of 
 a college to the directors of another similar 
 institution is a donation of the property of 
 the former to the latter, and violates the 
 constitutional provision which declares that 
 private property shall be held inviolate. 
 State ex rel. White v. Neff, 25 Ohio St. 375, 
 40 N. E. 720, 28: 409 
 Tuition. 
 
 6. Admission into the Kansas State Uni- 
 versity is made free by statute, and the 
 board of regents has no power to collect a 
 fee of $5 or any other fee for the use of the 
 library, or to exclude students from the use 
 of the' library for the nonpayment of such 
 fee. State ex rel. Little v. Regents of Uni- 
 versity, 55 Kan. 389, 40 Pac. 656, 29: 378 
 Dismissal of student. 
 
 Compelling Reinstatement of Expelled Stu- 
 dent, see Mandamus, 148, 149. 
 
 7. A law school cannot dismiss a student, 
 or refuse to permit him to graduate, for ir- 
 regularity in attendance, where its custom, 
 as understood at the time of his matricula- 
 tion, was that all that was necessary for 
 graduation was payment of the required 
 fees and completion of the work, to accom- 
 plish which the student might take such 
 
 time as was needed. Baltimore University 
 v. Colton, 98 Md. 623, 57 Atl. 14, 64: 108 
 Conferring of degrees. 
 
 8. No power to confer the degree of M. D. 
 or any other degree, is given by a general 
 law authorizing incorporation for the pur- 
 pose of maintaining a literary and scien- 
 tific institution. Townshend v. Gray, 62 Vt. 
 373, 19 Atl. 635, 8: 112 
 
 9. An educational corporation which con- 
 fers degrees without regard to merit, and 
 the trustees of which sign diplomas in 
 blank, leaving them in the control of one of 
 its officers, who sells them, is guilty of such 
 misuse of the powers conferred upon it as 
 requires its dissolution and a judgment oust- 
 ing it of its right to be a corporation, but so 
 executed as not to interfere with any legiti- 
 mate educational work which it may be do- 
 ing. State ex rel. Sheets v. Mt. Hope Col- 
 lege Co. 63 Ohio St. 341, 58 N. E. 799, 
 
 52: 365 
 Editorial Notes. 
 
 Exemption of from taxation. 10: 376.* 
 
 Property used for profit. 19: 291. 
 Collateral-inheritance tax on bequest to. 
 
 3: 206;* 12: 405.* 
 Liability of property of private educational 
 
 institutions to assessment 
 
 for local improvements. 
 
 35: 37. 
 
 COLLISION. 
 
 Admiralty Jurisdiction of, see Admiralty, 3, 
 4, 8. 
 
 Jurisdiction on Appeal from Award, see Ap- 
 peal and Error, 514. 
 
 Jumping from Train or Car to Avoid Im- 
 pending Collision, see Carriers, 522-530. 
 
 Presumption and Burden of Proof in Case of, 
 see Evidence, 468-471, 556. 
 
 Question for Jury as to, see Trial, 290. 
 
 Injury to Vessel at Wharf, see Wharves, 
 6, 7. 
 
 1. Failure of a schooner to exhibit a 
 torchlight will not render her responsible for 
 collision with a vessel which sees her lights, 
 where her position and course are distinctly 
 apparent. Bigelow v. Nickerson, 34 U. S. 
 App. 261, 17 C. C. A. 1, 70 Fed. 113, 30: 336 
 
 2. The luffing of a vessel in the presence 
 of imminent danger of collision is not such 
 a fault as will preclude recovery for dam- 
 ages from such collision. Id. 
 
 3. A tug employed by a ship to move her 
 from her anchorage in the Wallamet river to 
 a dock in East Portland, under the direc- 
 tion and control of the pilot in charge of the 
 ship, is not liable for injury caused by a col- 
 lision of such vessel with another. In such 
 case the tug and tow are but one vessel, and 
 that one is the tow. The Imperial, 13 Sawy. 
 639, 38 Fed. 614, 3:234 
 
 4. A shipowner who, to exonerate himself, 
 has, as bailee of the cargo, recovered and re- 
 ceived from the owner of another vessel, in a 
 suit in admiralty for damages for a collision, 
 the value of the cargo, as well as damages
 
 COLLUSION COMMERCE. 
 
 483 
 
 for injury to his ship, is answerable to 
 the owner of the cargo, or to the insurer 
 subrogated to such owner's right, for the 
 whole value thereof so received, without de- 
 duction for the expenses of the litigation in 
 which it was obtained. Hardman v. Brett, 
 37 Fed. 803, 2: 173 
 
 Editorial Notes. 
 
 Liability of tug and tow. 3: 234.* 
 Duty of navigator to avoid injury by pro- 
 pelling vessel against 
 property of others. 64: 
 979. 
 
 Limitation of liability for. 7: 56.* 
 Allowance of interest on value of property 
 destroyed in collision, 18: 453 
 
 COLLUSION. 
 
 * 
 
 When Contract is Void for, see Contracts, 
 369. 
 
 Dismissal of Action for, see .Dismissal or 
 Continuance, 7, 11. 
 
 In Divorce Suit, see Divorce and Separation, 
 IV. and also infra, Editorial Notes. 
 
 Between Life Tenants, Evidence of, see Evi- 
 dence, 1793. 
 
 In Judgment, see Judgment, 83, 158. 
 
 Editorial Notes. 
 
 What is; effect on suit. 12: 815.* 
 Connivance as defense to suit for divorce. 
 12: 524* 
 
 COLONIAL ORDINANCE. 
 
 Rights in Waters of Great Pond under, see 
 
 Waters, 70-73, 105. 
 See also Ordinance of 1787. 
 
 
 
 COLOR BOOKS. 
 
 Damages for Detention of, see Damages, 389. 
 Recipes for, see Recipes. 
 
 COLORED PERSONS. 
 
 See Negroes. 
 
 COLOR MIXERS. 
 Usages of, see Custom, 21. 
 
 COLOR OF TITLE. 
 See Adverse Possession, L L 
 
 COLT. 
 
 Ownership of, see Animals, 1; Judgment, 
 
 177. 
 
 When Running at Large, see Animals, 49. 
 Insurance of, see Insurance, 472. 
 Assumption of Risk of Riding, see Master 
 
 and Servant, 365. 
 
 
 
 COLUMBIAN EXPOSITION. 
 
 Judicial Notice of, see Evidence, 13. 
 Liability of Board of Managers to Suit, see 
 
 State Institutions, 10. 
 Use of Public Funds for, see Counties, 70; 
 
 Public Moneys, 18-20. 
 
 COMBINATIONS. 
 
 Patent on, see Patents, I. b. 
 In General, see Conspiracy. 
 
 COMITY. 
 
 International, see Courts, 539; Extradition, 
 
 2. 
 Recognition of Decree of Other State, see 
 
 Judgment, IV. b. 
 See also Conflict of Laws; Courts. 
 
 * 
 
 COMMENCEMENT. 
 
 Of Action, see Limitation of Actions, 222, 
 234-236. 
 
 COMMENTATOR. 
 
 Editorial Notes. 
 
 Common-law rights of commentator upon 
 literary work. 51 : 358. 
 
 COMMERCE. 
 
 I. State and Federal Power Generally. 
 II. Regulating Carriers and Transporta- 
 tion. 
 
 a. In General. 
 
 b. Vessels. 
 
 c. Railroad Companies. 
 
 III. Limiting Exports from State. 
 
 IV. Sales of Goods; License Laws. 
 
 a. In General. 
 
 b. In Original Packages. 
 
 c. Sales by Peddlers and Agents; 
 
 by Sample. 
 V. Editorial 'Notes. 
 
 Conspiracy in Restraint of, see Conspiracy, 
 IL
 
 484 
 
 COMMERCE, I. 
 
 Federal Jurisdiction of Action Affecting, see 
 Courts, 331, 332, 334. 
 
 Exclusiveness of Jurisdiction as to, see 
 Courts, 434-437. 
 
 Burden of Proof as to, see Evidence, 749. 
 
 Injunction against Interference with, see 
 Injunction, 322. 
 
 As to Powers of Interstate Commerce Com- 
 mission, see Interstate Commerce Com- 
 mission. 
 
 Tax as Affecting, see Taxes, I. e, 4; VI. 
 9, 14; and also infra, V. 6. 
 
 I. State and Federal Power Generally 
 For Editorial Notes, see infra, V. 1-4. 
 
 1. The nonexercise by Congress of its 
 power to regulate commerce among the 
 states is equivalent to a declaration that 
 such commerce shall be free from any re- 
 strictions. State v. Duckworth, 5 Idaho, 
 642, 51 Pac. 456, 39: 365 
 
 2. The purpose of an act of Congress re- 
 lating to commerce being legitimate and 
 warranted by the Constitution, it is wholly 
 immaterial to the consideration of the va- 
 lidity of its action that somewhere it has a 
 casual or contingent effect upon the domain 
 of state legislation. Lawton v. Comer, 40 
 Fed. 480, 7: 55 
 
 3. Commerce between an Indian reserva- 
 tion and other places in the same state does 
 not constitute interstate commerce. Sel- 
 kirk v. Stevens, 72 Minn. 335, 75 N. W. 386, 
 
 40: 759 
 
 4. Freedom of commerce between the 
 states is not interfered with by Ky. Stat. 
 4228, requiring every building and loan as- 
 sociation to pay into the treasury annually 
 2 per cent of its annual gross receipts. 
 Southern Bldg. & L. Asso. v. Norman, 98 Ky. 
 294, 32 S. W. 952, 31 : 41 
 Navigable waters. 
 
 See also Waters, 159, 160. 
 
 For Editorial Xotes, see infra, V. 2. 
 
 4a. The provision in the act of Congress 
 of March 3, 1899, forbidding obstructions in 
 navigable rivers which are not authorized 
 by Congress, does not apply to an obstruc- 
 tion placed in the bed of a river for the pur- 
 pose of repairing a bridge which had been 
 placed across the river under state authority 
 prior to the passage of that act. Kansas 
 City, M. & B. R. Co. v. J. T. Wiygul & Son, 
 82 Miss. 223, 33 So. 965, 61 : 578 
 
 4b. A state may, in the absence of con- 
 gressional legislation, authorize an obstruc- 
 tion in the bed of a navigable river of the 
 United States, where it is entirely within 
 its limits, which is necessary to repair a 
 bridge which has been placed across the 
 stream under its authority, although the 
 stream extends into another state. Id. 
 
 5. The improvement, under state author- 
 ity, of a river constituting a navigable wa- 
 ter of the 'United States, but lying entirely 
 within a state, is not an improper inter- 
 ference with interstate or foreign commerce, 
 so long as the free navigation of the river 
 is not impaired, or any system provided for 
 
 its improvement by the United States is 
 not interfered with. Stockton v. Powell, 29 
 Fla. 1, 10 So. 688, 15: 42 
 
 6. The power to regulate commerce among 
 the several states comprehends the power to 
 regulate the navigable waters of the United 
 States on which such commerce may be or 
 is carried; and to this end Congress may 
 make any regulation concerning such navi- 
 gation, including the vessels engaged there- 
 in, as may be necessary and proper to se- 
 cure and maintain the safety and conven- 
 ience of the waterway; which regulations 
 are as applicable to vessels engaged only in 
 intrastate commerce thereon as to those 
 engaged in interstate commerce. The City 
 of Salem, 13 Sawy. 607, 37 Fed. 846, 2: 380 
 
 6a. A state legislature may authorize the 
 building of a bridge or other structure tend- 
 ing to obstruct the navigation of a naviga- 
 ble river which is altogether within its own 
 boundary; and it is only when Congress, 
 by virtue of the constitutional provision, 
 acts as to such obstructions, that its will 
 must be obeyed so far as may be necessary 
 to insure free navigation. Green & B. R. 
 Nav. Co. v. Chesapeake, 0. & S. W. R. Co. 
 88 Ky. 1, 10 S. W. 6, 2: 540 
 
 6b. A bridge across navigable water will 
 continue to be lawful until the Secretary of 
 War orders its modification, under an act 
 of Congress declaring it to be so, with the 
 proviso "that such modifications are made 
 in their present position, condition, and 
 elevation as the Secretary of War may or- 
 der in the interests of navigation." Frost 
 v. Washington County R. Co. 96 Me. 76, 51 
 Atl. 806, 59: 168 
 
 6c. The power of a state to require fish 
 ways in dams across streams extends to a 
 navigable stream tb.at flows beyond the 
 bounds of the state, so long as inter- 
 communication between the states is not 
 thereby affected. State ex rel. Remley v. 
 Meek, 112 Iowa, 338, 84 N. W. 3, 51: 414 
 Insurance business. 
 
 7. The business of insurance as ordinarily 
 conducted by insurance companies organ- 
 ized under the legislation of other states 
 is not interstate commerce so as to be ex- 
 empt from state legislation as to combina- 
 tion by insurance companies to control rates. 
 State v. Phipps, 50 Kan. 609, 31 Pac. 1097, 
 
 18: 657 
 Betting on race in other state. 
 
 8. A statute making it unlawful to make 
 or record a bet upon any race of animals in 
 another state is a proper exercise of the po- 
 lice power of the state, and not an unlaw- 
 ful interference with interstate commerce. 
 Ex parte Lacy, 93 Va. 159, 24 S. E. 930, 
 
 31: 822 
 
 9. The prohibition of wagers or the sale 
 of pools or tickets or other chances on any 
 horse race, prize fight, or other contest out- 
 side the state, does not render Ala. act Feb- 
 ruary 26, 1889, an unconstitutional interfer- 
 ence with interstate commerce. State v. 
 Stripling, 113 Ala. 120, 21 So. 409, 36: 81 
 
 10. A state statute making it unlawful to 
 keep a place in which the business of trans- 
 mitting money to be placed or bet on any
 
 COMMERCE, II. a. 
 
 485 
 
 horse race, etc., whether within or without 
 the state, is permitted or carried on, or to 
 be concerned in such business, is not an un- 
 constitutional regulation of interstate com- 
 merce as applied to an agent of a telegraph 
 company, who keeps such place or is en- 
 gaged in such business, and transmits the 
 money to another state by telegraph. 
 State v. Harbourne, 70 Conn. 484, 40 Atl. 
 179 } 40: 607 
 
 Quarantine or inspection laws. 
 
 11. A quarantine law enacted, in the ex- 
 ercise of the police power of the state, for 
 the protection and preservation of the pub- 
 lic health, is not an unconstitutional regula- 
 tion of commerce. Compagnie Franchise v. 
 State Board of Health, 51 La. Ann. 645, 25 
 So. 501, 56: 795 
 
 12. The Idaho law establishing quarantine 
 against diseased sheep, passed March ^ 13, 
 1899, which prohibits the introduction into 
 the state of sheep from a knpwn infected 
 district, except upon compliance with the 
 laws of the state regarding the inspection 
 and dipping of sheep, is not void as an in- 
 terference with interstate commerce, or as 
 an abridgment of the rights of citizens of 
 other states. State v. Rasmussen, 7 Idaho, 
 1, 59 Pac. 933, 52: 78 
 
 13. Restrictions on bringing sheep into the 
 state by Id. Sess. Laws 1895, p. 125, and 
 Id. Sess. Laws 1897, p. 115, appointing a 
 sheep inspector, and making it unlawful to 
 bring sheep into the state without his in- 
 spection and having the sheep dipped as 
 provided in the statute, constitute an un- 
 necessary and unconstitutional burden upon 
 interstate commerce. State v. Duckworth, 
 5 Idaho, 642, 51 Pac. 456, 39: 365 
 Inducing seamen to desert. 
 
 14. A penal statute against aiding or in- 
 ducing an articled seaman or apprentice to 
 desert from or leave a foreign vessel while 
 in the waters of the state, such as Ga. Pen. 
 Code, 655, is not an unconstitutional regu- 
 lation or interference with commerce, in the 
 absence of any legislation of Congress on 
 the subject, but is an aid to commerce and 
 is within the right and power of the state. 
 Fandel v. Chaplin, 111 Ga. 800, 36 S. E. 
 979, 51 : 720 
 
 15. A state statute making it an offense 
 to solicit a seaman to desert from any ves- 
 sel within the jurisdiction of the state is 
 not in violation of U. S. Const, art. 1, 8, 
 subd. 3, as a regulation of foreign or in- 
 terstate commerce, in the absence of any 
 act of Congress repugnant thereto. Re 
 Young, 36 Or. 247, 59 Pac. 707, 48: 153 
 
 II. Regulating Carriers and Transportation. 
 a. In General. 
 
 Combination Interfering with, see Conspir- 
 acy, 160-166. 
 
 Power of Interstate Commerce Commission 
 as to, see Interstate Commerce Com- 
 mission, 2-5. 
 
 Construction of Statute as to, see Statutes, 
 498. 
 
 See also Common Law, 5. 
 
 For Editorial Notes, see infra, V. 2. 
 
 Of oil or gas. 
 
 For Editorial Notes, see infra, V. 3. 
 
 16. Natural gas is as much an article of 
 commerce as any other product of the earth. 
 State ex rel. Corwin v. Indiana & O. 0. G. 
 & Min. Co. 120 Ind. 575, 22 N. E. 778, 
 
 6:579 
 
 17. State regulation of the pressure of 
 natural gas transported in pipes within the 
 state which operates upon all alike, is not 
 an unlawful regulation of interstate com- 
 merce. Jamieson v. Indiana Natural Gas & 
 0. Co. 128 Ind. 555, 28 N. E. 76, 12: 652 
 
 18. Limiting the right of eminent domain 
 in case of oil and gas companies to those en- 
 gaged in supplying customers within the 
 state is not an interference with interstate 
 commerce. Consumers Gas Trust Co. v. 
 Harless, 131 Ind. 446, 29 N. E. 1062, 15: 505 
 
 19. Ind. act March 9, 1889, providing that 
 it shall be unlawful for any person, natural 
 or artificial, to conduct natural gas out of 
 the state, violates the provision of the Fed- 
 eral Constitution against the regulation by 
 states of interstate commerce. State ex 
 rel. Corwin v. Indiana & O. O. G. & Min. Co. 
 120 Ind. 575, 22 N. E. 778, 6: 579 
 
 20. The prohibition of the transportation 
 of natural gas out of the state, by Ind. 
 act March 9, 1889, is unconstitutional be- 
 cause natural gas, when reduced to posses- 
 sion, is a commercial commodity, so that 
 its transportation out of the state is a mat- 
 ter of interstate commerce. Manufacturers' 
 Gas &' O. Co. v. Indiana Natural Gas & O. 
 Co. 155 Ind. 545, 58 N. E. 706, 53: 134 
 Telegraph business. 
 
 For Editorial Notes, see infra, V. 3, 5. 
 
 21. Telegraph messages between points in 
 the same state do not constitute interstate 
 commerce because of the fact that they 
 traverse another state on the route. State 
 ex rel. Railroad Commission v. Western U. 
 Teleg. Co. 113 N. C. 213, 18 S. E. 389, 
 
 22: 570 
 
 22. A telegraph company which has a con- 
 tinuous line between points in the same 
 state over which it might transmit a mes- 
 sage received for that purpose, but which 
 passes through another state on the route, 
 cannot claim that the message is interstate 
 commerce and therefore exempt from state 
 authority limiting the charge for trans- 
 mission, although the company does not in 
 fact transmit the message the whole 
 distance, but delivers it at an intermediate 
 point in another state to another company 
 because its own line for the remainder of 
 the distance is fully occupied by other busi- 
 ness. Leavell v. Western U. Teleg. Co. 116 
 N. C. 211, 21 S. E. 391, 27: 843 
 
 23. The provision of the United States 
 Constitution, conferring upon Congress the 
 power to regulate commerce among the sev- 
 eral stntes, does not prohibit the legislature 
 of a state from enacting a law subjecting 
 telesrnph companies to penalties for acts of 
 negligence occurring entirely within the lim- 
 its of the state, although such acts are com- 
 mitted in dealing with messages to be trans-
 
 486 
 
 COMMERCE, II. b, c. 
 
 mitted to points in other states. Western 
 U. Teleg. Co. v. Howell, 95 Ga. 194, 22 S. E 
 286, 30: 158 
 
 Street railroad companies. 
 
 23a. A discrimination in rates in favor of 
 the residents of the city, made by an ordi- 
 nance as one of the considerations for ex- 
 tending the franchise of a street railway en- 
 gaged in interstate commerce, renders the 
 ordinance invalid as in violation of the 
 interstate commerce clause of the Federal 
 Constitution. State ex rel. Bump v. Omaha 
 & C. B. R. & B. Co. 113 Iowa, 30, 84 N. W. 
 983, 52: 315 
 
 b. Vessels. 
 
 Vested Rights in Contract for Interstate 
 Transportation, see Constitutional Law, 
 1157. 
 
 See also supra, 6. 
 
 For Editorial Notes, see infra, V. 3% 
 
 Requiring fire screens. 
 
 24. A state statute requiring all vessels 
 using wood for fuel while navigating waters 
 of the state, to be provided with suitable 
 fire screens, does not conflict with acts of 
 Congress or regulations of supervising in- 
 spectors, and is not an interference with 
 interstate commerce. Burrows v. Delta 
 Transp. Co. 106 Mich. 582, 64 N. W. 501, 
 
 29: 468 
 License. 
 
 25. The operation of towboats on naviga- 
 ble waters between different states under a 
 Federal license cannot be subjected to a 
 state license tax. Frere v. Von Schoeler, 47 
 La. Ann. 324, 16 So. 808, 27: 414 
 
 26. A license to run a steamboat on 
 waters of a river which can be used only for 
 transportation between places in the same 
 state may be required by a state law mak- 
 ing it an indictable offense to run such 
 steamboat without a license. Com. v. King, 
 150 Mass. 221, 22 N. E. 905, 5: 536 
 
 26a. A city ordinance exacting from ves- 
 sels having a coasting license under U. S. 
 Rev. Stat. 4321, U. S. Comp. Stat. 1901, p. 
 2963, a license fee for the privilege of tow- 
 ing boats or other water craft into or out 
 of the harbor or from one place to another 
 within the harbor, although this fee is de- 
 clared to be in lieu of all wharfage provid- 
 ed the boat or barge does not engage in any 
 other than towing or transfer business, is 
 in violation of U. S. Const, art. 1, 8, giv- 
 ing Congress power to regulate commerce 
 with foreign nations and among the several 
 states, and art. 1, 10, prohibiting states 
 from laying any duties of tonnage without 
 the consent of Congress. St. Louis v. Con- 
 solidated Coal Co. 158 Mo. 342, 59 S. W. 103, 
 
 51 : 850 
 
 Limited liability legislation. 
 See also Carriers, 869. 
 
 26b. The act of Congress of June 19, 1886, 
 extending the benefits of limited liability 
 legislation to vessels engaged in inland 
 navigation, is not unconstitutional, In view 
 of the power of Congress to regulate com- 
 merce. Lawton v. Comer, 40 Fed. 480, 
 
 7: 55 
 
 26c. Even though the subjects of the ex- 
 tended limitation of liability, or the terri- 
 tory in which it is effective, are partially 
 within the region of state control, yet where 
 the subjects are separable, and are partly 
 under the national control, the act of Con- 
 gress will be sustained by the courts wher- 
 ever the power of Congress extends, and as 
 to all those objects to which it attaches; 
 and this rule is easily applicable in this 
 case. Id. 
 
 Limitation of capacity. 
 
 26d. The regulation contained in U. S. 
 Rev. Stat. 4465, U. S. Comp. Stat. 1901, 
 p. 3046, forbidding a steamboat to carry 
 more passengers than allowed in her certifi- 
 cate of inspection, applies to such boats 
 engaged in carrying passengers on a navi- 
 gable water of the United States between 
 ports of the same state only. The City of 
 Salem, 37 Fed. 846, 38 Fed. '762, 
 
 2: 380, 4: 125 
 
 c. Railroad Companies. 
 
 As to Governmental Regulation of Carriers 
 in Matters not Affecting Interstate 
 Commerce, see Carriers, III. 
 
 Provision as to Carrier's Liability as Regu- 
 lation, see Carriers, 1005. 
 
 What Law Governs Contract of Interstate 
 Transportation, see Conflict of Laws, I. 
 b, 4. 
 
 State Jurisdiction of Action in Case of 
 Violation, see Courts, 434, 435. 
 
 Right to Take Game During Interstate 
 Transportation, see Game Laws, 2. 
 
 See also Carriers, 1017, 1018. 
 
 For Editorial Notes, see infra, IV. 2, 4. 
 
 27. Where a railroad company, incorporat- 
 ed under the laws of Ohio, misuses a fran- 
 chise, privilege, or right conferred upon it, 
 or claims the right to exercise, or has exer- 
 cised, "a franchise, privilege, or right in 
 contravention of law," the supreme court 
 has jurisdiction to inquire into and correct 
 the mischief, though the corporation may 
 be engaged in interstate commerce, and the 
 misuser or usurpation to be corrected re- 
 lates to and concerns that traffic. State ex 
 rel. Kohler v. Cincinnati, W. & B. R. Co. 47 
 Ohio St. 130, 23 N. W. 928, 7: 319 
 
 28. When a carrier ceases to be a carrier 
 and becomes a warehouseman, he cannot be 
 protected as a carrier by the constitutional 
 provisions as to regulations of commerce. 
 State v. Creeden, 78 Iowa, 556, 43 N. W. 
 673, 7: 295 
 
 29. Compelling a foreign railroad corpora- 
 tion, operating a portion of its road within 
 the state to become domesticated is not an 
 unlawful interference with interstate com- 
 merce. Com. v. Mobile & O. R. Co. 23 Ky. 
 L. Rep. 784, 64 S. W. 451, 54: 916 
 
 30. When an agent of a railroad is prose- 
 uted under the Interstate Commerce Act, it 
 
 is not necessary either to allege or prove 
 hat the particular unlawful act complained 
 of was done under authority conferred by 
 ts principal or by its direction; it is suf- 
 ficient to show that the accused was in fact
 
 COMMERCE, II. c. 
 
 487 
 
 an agent of a railroad subject to the act, 
 and that the wrong was committed under 
 color of his office or agency. United States 
 v. Tozor, 37 Fed. 635, 2 : 444 
 
 31. Railroad companies engaged in inter- 
 state commerce are subject to a state 
 statute making railroad companies liable for 
 injuries to employees on account of the 
 negligence of others having control or direc- 
 tion of them, so long as Congress does not 
 deal with that subject. Peirce v . Van 
 Dusen, 24 C. C. A. 280, 47 U. S. App. 339, 
 78 Fed. 693, 69: 705 
 
 32. Unjust discrimination against ship- 
 pers engaged in interstate commerce, as to 
 the matter of issuing through bills of lading 
 or furnishing reshipping facilities at termi- 
 nal points within the state of Georgia, d^>es 
 not constitute a violation of rule 36 of the 
 Georgia railroad commission that carriers 
 in their intrastate business sh#ll afford to 
 all persons equal facilities in 'the trans- 
 portation and delivery of freight. Central 
 of Ga. R. Co. v. Augusta Brokerage Co. 
 122 Ga. 646, 50 S. E. 473, 69: 119 
 When transportation is interstate. 
 
 For Editorial Notes, see infra, V. 3. 
 
 33. Only transportation within the state 
 or that which is not a part of any con- 
 tinuous transportation without the state, 
 is within the provisions of 111. act May 2, 
 1873, 1, 7, S, 11; and these do not, there- 
 fore, affect interstate commerce. Chicago, 
 B. & Q. R. Co. v. Jones, 149 111. 361, 37 N. 
 E. 247, 24: 141 
 
 34. Shipments between points within the 
 same state do not constitute interstate com- 
 merce because made on a railroad which 
 runs for part of the trip in another state. 
 Campbell v. Chicago, M. & St. P. R. Co. 86 
 Iowa, 587, 53 N. W. 351, 17: 443 
 
 35. A shipment from one point to another 
 within the same state is interstate com- 
 merce, although a bill of lading is given and 
 charges are collected to the latter point only 
 where the destination of the property is in 
 a foreign state, to which a continuous 
 voyage is contemplated, with only a stop 
 to change carriers at the terminal point 
 mentioned in the bill of lading. Houston 
 Direct Nav. Co. v. Insurance Co. of N. A. 
 89 Tex. 1, 32 S. W. 889, 30: 713 
 
 36. Where transportation of goods des- 
 tined for a point without the state has 
 been actually begun, temporary stoppage 
 within the state, without the intention of 
 abandoning the original movement (which 
 movement is ultimately completed), will not 
 deprive the transportation of the character 
 of interstate commerce. Delaware & H. 
 Canal Co. v. Com. 1 Monaghan (Pa.) 36 
 (Not to be Rep.). 17 Atl. 175, 1: 232 
 
 37. The interstate character of the trans- 
 portation of a car load of material by rail 
 from one state to another is not terminated 
 when the car reaches the town of its desti- 
 nation, if it has not been placed where it is 
 to be unloaded. Chicago. M. & St. P. R. Co. 
 T. Voelker, 65 C. C. A. 226, 129 Fed. 522, 
 
 70:264 
 
 Of passengers generally. 
 Discrimination against Colored Persons, see 
 Civil Rights, 11, 12. 
 
 38. Transportation of persons is as much 
 commerce as transportation of property. 
 Louisville, N. 0. & T. R. Co. v. State, 66 
 Miss. 662, 6 So. 203, 5: 132 
 
 39. A state statute requiring a carrier 
 who brings into the state a person not hav- 
 ing a settlement therein, to remove him 
 from the state, upon request of the proper 
 officers, if he falls into distress within a 
 year, or to be liable for his support, is an 
 unconstitutional regulation of commerce. 
 Bangor v. Smith, 83 Me. 422, 22 Atl. 379, 
 
 13: 686 
 
 As to tickets. 
 See also infra, 53-61. 
 
 40. The regulation of the sale of tickets 
 on railroads and steamboats, which makes 
 such sale unlawful without a certificate of 
 authority from the carrier, is not a regula- 
 tion of commerce beyond the power of a 
 state legislature, but is a mere police regu- 
 lation of a public employment. Burdick v. 
 People, 149 111. 600, 36 N. E. 948, 24: 152 
 State v. Corbett, 57 Minn. 345, 59 N. W. 
 317, 24: 498 
 
 41. A state statute making railroad 
 tickets good for six years, and giving the 
 holder of one the right to stop off at as 
 many stopping places as he pleases before 
 reaching his destination, cannot, in view of 
 the power of Congress over commerce, be ap- 
 plied, contrary to their terms, to tickets 
 sold beyond the limits of the state, and en- 
 titling their holders to passage from a 
 point in a foreign state or country to one 
 in the state which enacted the statute. 
 Lafarier v. Grand Trunk R. Co. 84 Me. 286, 
 24 Atl. 848, 17: 111 
 
 42. A state statute requiring the issuance 
 of mileage books at reduced rates for trans- 
 portation wholly within the state is not 
 invalid as an attempt to regulate interstate 
 commerce, although a railroad affected 
 thereby extends into other states. Purdy 
 v. Erie R. Co. 162 N. Y. 42, 56 N. E. 508, 
 
 48: 669 
 
 43. A contract between a railroad com- 
 pany and a ticket broker, whereby the 
 latter is enabled to sell tickets to indi- 
 viduals over the company's lines for inter- 
 state transportation at less than the estab- 
 lished rate for the sale of tickets by its 
 regular agents, between the same points and 
 for the same accommodation, is in violation 
 of the act of Congress of Feb. 4, 1887, to 
 regulate commerce. Raleigh & G. R. Co. v. 
 Swanson, 102 Ga. 754, 28 S. E. 601, 39: 275 
 Of freight generally. 
 
 Subsequent Illegality of Contracts Existing 
 When Interstate Commerce Act Took 
 Effect, see Carriers, 1135. 
 
 For Editorial Notes, see infra, V. 2. 
 
 44. The prohibition of the transportation 
 of Texas, Mexican, Cherokee, and Indian 
 cattle through a state by railroads and 
 steamboats, is an unconstitutional regu- 
 lation of commerce. Grimes v. Eddy, 126 
 Mo. 168, 28 S. W. 756, 26: 638 
 
 45. A provision in a carrier's charter,
 
 488 
 
 COMMERCE, II. c. 
 
 that it shall be subject in the transportation 
 of freight to the laws applicable to common 
 carriers, does not make it subject to state 
 control when engaged in interstate com- 
 merce. Houston Direct Nav. Co. v. Insur- 
 ance Co. of N. A. 89 Tex. 1, 32 S. W. 889, 
 
 30: 713 
 
 46. A state statute compelling the ship- 
 ment of freight within a certain time after 
 delivery, under a penalty for default, is not 
 an unconstitutional regulation of interstate 
 commerce as to freight for shipment out of 
 the state, as it does not tend to trammel or 
 obstruct, but to expedite, such commerce. 
 Bagg v. Wilmington, C. & A. R. Co. 109 N. 
 C. 279, 14 S. E. 79, 14: 596 
 
 47. A state statute making a carrier 
 which accepts* anything for transportation 
 to a point beyond its own route liable for 
 its safe carriage to such point of desti- 
 nation, in the absence of a written con- 
 tract to the contrary, and imposing upon 
 the carrier the burden of proving even in 
 case of such contract, that the loss or in- 
 jury did not occur while the thing was In 
 its charge, is not an unconstitutional inter- 
 ference with interstate commerce. Rich- 
 mond & A. R. Co. v. R. A. Patterson To- 
 bacco Co. 92 Va. 670, 24 S. E. 261, 41: 511 
 
 48. The interstate commerce clause of the 
 Federal Constitution is not violated by Kan. 
 Laws 1893, chap. 100, requiring railroad 
 companies to provide track scales for weigh- 
 ing car-load lots of hay, grain, etc., and to 
 issue duplicate bills of lading for -a ship- 
 ment, and making the company responsible 
 for the full amount of such shipment, less 
 14 of 1 per cent of its weight, since the 
 statute is an exercise of the police power, 
 and does not impose restrictions of any 
 kind on commerce between the states. Mis- 
 souri, K. & T. R. Co. v. Simonson, 64 Kan. 
 802, 68 Pac. 653, 57: 765 
 
 49. A state statute providing a penalty 
 for the refusal of a railroad company to de- 
 liver freight on payment or tender of the 
 charges due as shown by the bill of lading 
 is not invalid as a regulation of commerce. 
 Dwyer v. Gulf, C. & S. F. R. Co. 75 Tex. 
 572, 12 S. W. 1001, 7: 478 
 
 49a. A railroad company is not prevented 
 from making an exclusive contract for the 
 care of live stock shipped over its road with 
 one stock yard by 3 of the Interstate Com- 
 merce Act, which makes it unlawful for a 
 carrier to give unreasonable preference to 
 any person or corporation. Central Stock 
 Yards Co. v. Louisville & N. R. Co. 55 C. C. 
 A. 63, 118 Fed. 113, 63: 213 
 
 Interchange of business. 
 Regulation of Other Matters Than Inter- 
 state Commerce, see Carriers, III. b. 
 See also Carriers, 1028. 
 
 50. A bridge company which is not a com- 
 mon carrier of interstate traffic cannot, 
 under the Act to Regulate Commerce, com- 
 pel railway companies to do business with 
 or through it. Kentucky & T. Bridge Co. v. 
 Louisville & K. R. Co. 37 Fed. 5G7. 2: 28!) 
 
 51. A state cannot require the delivery of 
 interstate freight by one carrier to another 
 within its borders in order that the freight 
 
 may reach a particular depot within a 
 certain municipality. Central Stock Yards 
 Co. v. Louisville & N. R. Co. 55 C. C. A. 63, 
 118 Fed. 113, 63:213 
 
 52. The provisions of the Interstate Com- 
 merce Law requiring connecting railroads 
 to receive and deliver passengers and 
 freight from other roads, and afford equal 
 facilities for the interchange of traffic, ap- 
 ply with equal force to their officers and 
 employees. Toledo, A. A. & N. M. R. Co. v. 
 Pennsylvania Co. 54 Fed. 746, 19: 395 
 
 52a. Neither at cpmrnon law nor under 
 the act of Congress of June 15, 1866 (U. S. 
 Rev. Stat. 5258, U. S. Comp. Stat. 1901, 
 p. 3565), or the Interstate Commerce Act of 
 February 4, 1887, can a common carrier be 
 compelled to make through traffic arrange- 
 ments with connecting lines. Kentucky & 
 I. Bridge Co. v. Louisville & N. R. Co. 37 
 Fed. 567, 2: 289 
 
 52b. No authority to issue through 
 tickets or through bills of lading for prop- 
 erty, at through rates, over connecting lines, 
 is conferred by the Act to Regulate Com- 
 merce upon common carriers of interstate 
 commerce, in the absence of arrangements 
 between the companies. Id. 
 
 52c. The Interstate Commerce Law does 
 not require a common carrier subject to its 
 provisions to establish through routes and 
 through rates with all connecting lines, 
 merely because it may have done so with 
 one of them. Id. 
 
 52d. The requirement of the Act to Regu- 
 late Commerce, that every common carrier 
 shall afford reasonable, proper, and equal 
 facilities to connecting lines, imposes upon 
 a carrier no duty either to form new con- 
 nections, or to establish new stations, yards, 
 or depots, or to pay any part of the expense 
 of providing such new facilities, either for 
 the convenience of the public or of other 
 carriers; and a carrier cannot be compelled 
 to receive or deliver traffic at a point where 
 another company has made a new con- 
 nection with its roads, but has not provided 
 proper facilities. Id. 
 
 Charges of carriers. 
 See also supra, 42, 43. 
 
 53. A mistake in a bill of lading, by stat- 
 ing interstate rates less than those sched- 
 uled in accordance with the act of Congress, 
 does not preclude the carrier from recover- 
 ing the full schedule rate as a condition of 
 delivering the goods. Southern R. Co. v. 
 Harrison, 119 Ala. 539, 24 So. 552, 43: 385 
 
 54. A contract with a carrier for rates 
 less than those on its schedule, and which 
 is therefore unlawful as to the carrier be- 
 cause in violation of the Interstate Com- 
 merce Law, may nevertheless be enforced 
 by the shipper if he had no knowledge that 
 the schedule rate was higher than that 
 given him. Mobile & 0. R. Co. v. Dismukes, 
 94 Ala. 131, 10 So. 289, 17: 113 
 
 55. The Railroad and Warehouse Com- 
 mission of Minnesota has no authority to 
 prescribe rates for transportation by com- 
 mon carriers in another state. It cannot fix 
 the rates for carriage between two points 
 within Minnesota, over a route extending
 
 COMMERCE, II. c. 
 
 489 
 
 across a neighboring state. Such power is 
 vested exclusively in Congress. State Rail- 
 road & W. Commission v. Chicago, St. P. M. 
 &' 0. R. Co. 40 Minn. 267, 41 N. W. 1047, 
 
 3: 238 
 
 56. Interstate commerce is not subject to 
 common-law regulations as to descriminat- 
 ing charges of common carriers, in the ab- 
 sence of congressional action. Gatton v. 
 Chicago, R. 1. & P. R. Co. 95 Iowa, 112, 63 
 N. W. 589, 28: 556 
 
 57. A state statute regulating the rights 
 of carriers, and declaring what rates shall 
 be regarded as extortionate, does not apply 
 to the case of interstate shipments. Mobile 
 & O. R. Co. v. Dismukes, 94 Ala. 131, 10 So. 
 289, . 17: 113 
 
 58. A state cannot fix the rates to foe 
 charged by an interstate carrier for the car- 
 riage within the state of a shipment which 
 is delivered to the carrier at a point in an- 
 other state. Southern Express Co. v. Gold- 
 berg, 101 Va. 619, 44 S. E. 893," 62: 669 
 
 59. The South Carolina Railroad Com- 
 mission has no jurisdiction of a complaint 
 for charges unlawfully made by a railroad 
 partly in North Carolina, for transportation 
 which was partly in the latter state, al- 
 though it was for part of the original trans- 
 portation by connecting lines between points 
 both in South Carolina, such, transportation 
 being interstate commerce. Sternberger v. 
 Cape Fear & Y. V. R. Co. 29 S. C. 510, 7 
 S. E. 836, f 2: 105 
 
 60. No state has any right to forfeit the 
 franchises of a railroad company for making 
 unlawful charges upon traffic which is with- 
 in the provisions of the Interstate Com- 
 merce Law. State ex rel. Crow v. Atchison, 
 T. & S. F. R. Co. 176 Mo. 687, 75 S. W. 776, 
 
 63: 761 
 
 60a. Requiring prepayment of freight 
 charges by a connecting carrier, without re- 
 quiring it of other shippers or carriers at 
 the same place, does not constitute an un- 
 reasonable or undue disadvantage within 
 the meaning of the Interstate Commerce 
 Act. Little Rock & M. R. Co. v. St. Louis & 
 S. W. R. Co. 27 U. S. App. 280, 11 C. C. A. 
 417, 63 Fed. 775, 26: 192 
 
 61. The state of Texas has the right to 
 prohibit and interfere with a contract in 
 restraint of competition, some of the parties 
 to which are corporations created by the 
 state, although it regulates charges upon 
 freight carried to and fro between Texas 
 and other states. The agreement, being 
 illegal as to some, is illegal as to all. Gulf, 
 C. & S. F. R. Co. v. State, 72 Tex. 404, 10 
 S. W. 81, 1 : 849 
 Contracts limiting liability. 
 
 See also Carriers, 869. 
 
 62. Prohibiting common carriers from con- 
 tracting to limit their common-law liability 
 does not interfere with the power of Con- 
 gress to regulate interstate commerce. Ohio 
 & M. R. Co. v. Taber, 98 Ky. 503, 32 S. W. 
 168. 36 S. W. 18, 34: 685 
 
 63. Neither the common-law rule nor a 
 state statute denying validity to a contract 
 exempting a common carrier from liability 
 can be regarded as a regulation of com- 
 
 merce, although applied to an interstate 
 shipment. Solan v. Chicago, M. & St. P. 
 R. Co. 95 Iowa, 260, 63 N. W. 692, 28: 718 
 [Affirmed by the Supreme Court of the 
 United States in 169 U. S. 133, 42 L. ed. 
 688, 18 Sup. Ct. Rep. 289.] 
 
 64. A provision of a state Constitution 
 that a common carrier shall not be permit- 
 ted to contract for relief from its common- 
 law liability is not in conflict with the 
 interstate commerce clause of the Federal 
 Constitution. Western U. Teleg. Co. v. 
 Eubank, 100 Ky. 591, 38 S. W. 1068, 36: 711 
 
 65. The fact that a contract was for the 
 carriage of goods from one state to another 
 does not relieve a corporation of the state in 
 which the contract was made from the rule 
 of law existing in that state, rhich pro- 
 hibits special contracts limiting liability. 
 St. Joseph & G. I. R. Co. v. Palmer, 38 Neb. 
 463, 56 N. W. 957, 22: 335 
 
 66. A state statute prohibiting a carrier 
 from contracting for an exemption from 
 the negligence of a connecting carrier when 
 the first carrier undertakes to transport 
 property to a point beyond its own route, 
 is not an unconstitutional regulation of 
 commerce among the states. McCann v. 
 Eddy, 133 Mo. 59, 33 S. W. 71, 35: 110 
 
 67. A shipment is not within the pro- 
 visions of a statute forbidding carriers 
 within the state to limit their common-law 
 liability, where the contract provides for 
 the carrying of the goods to a foreign port 
 by means of the carrier's own line, its con- 
 necting lines in another state, and an ocean 
 steamship company. Missouri P. R. Co. v. 
 Sherwood, 84 Tex. 125, 19 S. W. 455, 
 
 17:643 
 
 68. The refusal of a state court to en- 
 force a stipulation in a carriage contract 
 made in another state fixing a value on 
 property to be transported into the state, 
 after its negligent injury by the carrier 
 within the state, does not conflict with the 
 Interstate Commerce Act of Congress. 
 Hughes v. Pennsylvania R. Co. 202 Pa. 222, 
 51 Atl. 990, 63: 513 
 Cars; running of trains. 
 
 For Editorial Notes, see infra, V. 2. 
 
 69. A train composed of empty coal cars, 
 although destined for a point in another 
 state to procure a load, is not engaged in 
 transporting articles of interstate com- 
 merce so as to be beyond the control of 
 state laws. Norfolk & W. R. Co. v. Com. 93 
 Va. 749, 24 S. E. 837, 34: 105 
 
 70. A state statute compelling railroad 
 companies to furnish double-decked cars for 
 sheep, under a penalty for failure to do so. 
 and limiting the price per car load, is void 
 as an attempted regulation of commerce, 
 when applied to interstate shipments. 
 Stanley v. Wabash, St. L. & P. R. Co. 100 
 Mo. 435, 13 S. W. 709, 8: 549 
 
 71. A law requiring all regular passenger 
 trains to stop at county seats does not 
 constitute a regulation of interstate com- 
 merce, even as to a train which runs to an- 
 other state and carries United States mail. 
 Illinois C. R. Co. v. People, 143 HI. 434, 33 
 N. E. 173, 19: 119
 
 490 
 
 COMMERCE, HI., IV. a. 
 
 72. A statute compelling railroad com- 
 panies to stop all regular passenger trains 
 at county seats is not an interference with 
 interstate commerce. State v. Gladson, 57 
 Minn. 385, 59 N. W. 487, 24: 502 
 [Affirmed by the Supreme Court of the 
 United States in 166 U. S. 427, 41 L. ed. 
 1064, 17 Sup. Ct. Rep. 627.] 
 
 73. A state statute prohibiting freight 
 trains running on Sunday between sunrise 
 and sunset, except with live stock or perish- 
 able freight, or to complete a trip which 
 can be finished before 9 A. M., is invalid as 
 a regulation of commerce, so far as it ap- 
 plies to interstate freight trains. Norfolk 
 & W. R. Co. v. Com. 88 Va. 95, 13 S. E. 
 340, 13: 107 
 
 74. State Jaws prohibiting the running of 
 railway trains on Sunday, if enacted in 
 good faith for the preservation and pro- 
 tection, of the health and morals of the 
 people, and without discrimination against 
 interstate or foreign commerce, are not in 
 conflict with the Constitution of the United 
 States. Norfolk & W. R. Co. v. Com. 93 
 Va. 749, 24 S. E. 837, 34: 105 
 
 75. An ordinance limiting the speed of 
 trains on an interstate railway which carries 
 United States mail to 10 miles an hour with- 
 in the corporate limits of the municipality, 
 which is passed for the safety of the pub- 
 lic and the protection of life and property, 
 is not void as imposing an unreasonable re- 
 striction upon interstate commerce and the 
 speedy transportation of the mail. Chicago 
 & A. R. Co. v. Carlinville, 200 111. 314, 65 
 N. E. 730, 60: 391 
 
 76. A state statute requiring railroad 
 companies to report, at each station at 
 which there is a telegraph office, whether 
 trains are on time or not, is not a regu- 
 lation of interstate commerce, although the 
 information to be noted must be received 
 from an agent in another state, through the 
 agency of a telegraph company engaged in 
 interstate commerce. State v. Indiana & 
 I. S. R. Co. 133 Ind. 69, 32 N. E. 817, 
 
 18: 502 
 
 77. Making a railroad company liable for 
 fires set by its engines or on its right of 
 way is not a regulation of commerce among 
 the states. McCandless v. Richmond & D. 
 R. Co. 38 S. C. 103, 16 S. E. 429, 18: 440 
 
 III. Limiting Exports from State. 
 
 See also supra, 19, 20. 
 
 78. A statute prohibiting the exportation 
 of fish from a territory is unconstitution- 
 al as a regulation of commerce. Territory 
 v. Evans, 2 Id. 658, 23 Pac. 115, 7: 288 
 
 79. A statute prohibiting the shipment 
 out of the state of oysters taken in the 
 waters of the state, while they are in shells, 
 and also prohibiting the taking of such 
 oysters by any person who is not a resident 
 of the state, is not unconstitutional as a 
 regulation of interstate commerce. State v. 
 Harrub, 95 Ala. 176, 10 So. 752, 15: 7fll 
 
 80. A license tax on all those engaged in 
 packing or canning oysters for sale or 
 transportation, whose places of business are 
 in the state, is not an unconstitutional 
 interference with interstate commerce as 
 applied to those who may sell or transport 
 their oysters beyond the state. State v. 
 Applegarth, 81 Md. 293, 31 Atl. 961, 28: 812 
 
 81. A state statute prohibiting game birds 
 to be killed for the purpose of conveying 
 them out of the state is not an unlawful 
 interference with interstate commerce. 
 State v. Geer, 61 Conn. 144, 22 Atl. 1012, 
 
 13: 804 
 
 IV. Sales of Goods; License Laws, 
 a. In General. 
 
 Licensing of Vessels, see supra, 25-26a. 
 
 82. An ordinance imposing a license tax 
 on transient persons other than citizens of 
 the municipality for selling goods is un- 
 constitutional and void. McGraw v. Marion, 
 98 Ky. 673, 34 S. W. 18, 47: 593 
 
 83. The determination of what Is a 
 legitimate article of interstate or foreign 
 commerce rests primarily with Congress, 
 but a state legislature may act according 
 to its deliberate view of the matter, until 
 Congress shall have given some adverse ex- 
 pression on the subject. Austin v. State, 
 101 Tenn. 563, 48 S. W, 305, 50: 478 
 
 84. Every state has the right, under its 
 reserved police power, to prohibit the Im- 
 portation and sale of all articles inherently 
 unworthy of commerce, and unfit for the use 
 of its people. Id. 
 
 85. It is an act of interstate commerce 
 for a foreign corporation to sell and set up 
 machinery in a state where it has no agency 
 or office. Milan Mill. & Mfg. Co. v. Gorton, 
 93 Tenn. 590, 27 S. W. 971, 26: 135 
 
 86. A specific tax levied under a statute 
 of a state on persons engaged in conducting 
 a particular business does not violate U. S. 
 Const, art. 1, 8, f 3, as an interference by 
 the state with interstate commerce, where 
 the property employed in such business has 
 been brought into the state and has itself 
 become subject to taxation therein. Singer 
 Mfg. Co. v. Wright, 97 Ga, 114, 25 S. E. 249, 
 
 35:497 
 
 87. An article brought from another state 
 under a contract of purchase ceases to be an 
 article of interstate commerce so far as the 
 contract makes an unlawful trust by giving 
 the purchaser an exclusive control of its 
 sale in that vicinity, and binding him not 
 to deal in any other article of the kind. 
 Fuqua v. Pabst Brewing Co. 90 Tex. 298, 
 38 S. W. 29, 750, 35:241 
 Emigrant agents. 
 
 88. A tax upon emigrant agents engaged 
 in hiring laborers in the state to be em- 
 ployed beyond the limits of the state Is not 
 a regulation of interstate commerce. Wil- 
 liams v. Fears, 110 Ga. 584, 35 S. E. 699, 
 
 50: 685
 
 COMMERCE, IV. a. 
 
 491 
 
 Food. 
 
 89. The requirement that oleomargarine 
 and artificial or adulterated butter shall be 
 colored pink, which is made by W. Va. Acts 
 1891, chap. 8, prescribing a penalty for its 
 violation, is not unconstitutional, although 
 it applies to products manufactured within 
 or without the state. State v. Myers, 42 
 W. Va. 822, 26 S. E. 539, . 35: 844 
 
 90. A license tax of $500 per annum, im- 
 posed on every person selling in a city any 
 meat which is not from animals of his own 
 raising, unless he rents a stall in a public 
 market, while the rent of such stall is $150 
 per year and the market regulations are so 
 restricted and burdensome as to preclude 
 the reasonable conduct of a wholesale busi- 
 ness there, is unconstitutional in respect 
 to wholesale dealers in meat brought from 
 other states, by reason of the necessarily re- 
 sulting discrimination against them, al- 
 though the ordinances on the ^subject on 
 their face purport to apply to Vendors ir- 
 respective of the places from which it 
 comes, especially where neither sales nor 
 inspection of meat are restricted to the 
 market, and the regulations are clearly 
 made for the purpose of revenue, and not 
 merely to prevent the sale of uninspected 
 meat. Georgia Packing Co. v. Macon, 60 
 Fed. 774, 22: 775 
 
 91. The prohibition of having in pos- 
 session, thereby forbidding the sale of, 
 certain fish during the close season, con- 
 tained in the New York fisheries, game, and 
 forest law, 110, 112, renders the act void 
 as a regulation of foreign commerce, as ap- 
 plied to fish purchased in Canada and Im- 
 ported, under the United States Revenue 
 laws on payment of the prescribed duties, 
 for sale in the state as an article of food 
 and commerce. (Per Parker, Ch. J., Landon 
 & O'Brien, JJ.) People v. Buffalo Fish Co. 
 164 N. Y. 93, 58 N. E. 34, 52: 803 
 
 92. A statute prohibiting the sale of game 
 or fish during the closed season is not an 
 unlawful restriction of interstate com- 
 merce as applied to game or fish imported 
 from other states as articles of food. 
 People v. O'Neil, 110 Mich. 324, 68 N. W. 
 227, 33: 696 
 Cigarettes. 
 
 93. Cigarettes are not legitimate articles 
 of commerce within the protection of the 
 United States Constitution, because they 
 possess no virtue, but are inherently bad, 
 and only bad. Austin v. State, 101 Tenn. 
 563, 48 S. W. 305, 50: 478 
 
 94. The internal revenue tax on cigarettes 
 by U. S. Rev. Stat. 3392, U. S. Comp. 
 Stat. 1901, p. 2219, is not a recognition of 
 them as proper commercial commodities. Id. 
 Lightning rods. 
 
 95. The sale of lightning rods, constitut- 
 ing only a part of the original package in 
 which they were brought from another 
 state, is not interstate commerce. State v. 
 Gorham, 115 N. C. 721, 20 S. E. 179, 25: 810 
 
 96. A license tax on the business of put- 
 ting up lightning rods is not a tax on inter- 
 state commerce, in case of a person who 
 puts up no rods except those which he sells 
 
 and which 'are brought from another state, 
 although he puts them up without extra 
 charge. Id. 
 
 Intoxicating liquors. 
 For Editorial Notes, see infra, V. 7. 
 
 97. The sale, as well as the conditions 
 upon which intoxicating liquors shall be 
 transported after entering the territorial 
 limits of a state, is left to state legislation 
 by the act of Congress of 1890 known as the 
 Wilson act. State ex rel. George v. Aiken, 
 
 42 S. C. 222, 20 S. E. 221, 26: 345 
 
 98. The police power of the state to 
 regulate the sale of liquors transported 
 from another state does not infringe on the 
 power delegated to Congress to regulate 
 interstate commerce. State v. Fulker, 43 
 Kan. 237, 22 Pac. 1020, 7: 183 
 
 99. Intoxicating liquors transported from 
 one state cannot be sold within a state for 
 uses forbidden by its laws, although the 
 transportation itself cannot be prevented by 
 such state. State v. Creeden, 78 Iowa, 556, 
 
 43 N. W. 673, 7:295 
 [Overruled by Leisy v. Hardin, 135 U. S. 
 100, 34 L. ed. 128, 10 Sup. Ct. Rep. 681, but 
 made a correct statement of the law by the 
 act of Congress of August 8, 1890, known 
 as the Wilson bill.] 
 
 100. A statute making it unlawful for 
 private persons to sell intoxicating liquors 
 is not an unconstitutional regulation of 
 interstate commerce because a person may 
 have on hand some liquors imported from 
 other states. Plumb v. Christie, 103 Ga. 686, 
 30 S. E. 759, 42: 181 
 
 101. Beer brought from another state un- 
 der an invalid trust agreement becomes 
 upon its arrival in the state immediately 
 subject to an anti-trust law of the state, 
 by virtue of the act of Congress of August 
 8, 1890. Fuqua v. Pabst Brewing Co. 90 
 Tex. 298, 38 S. W. 29, 750, 35: 241 
 
 102. The commerce clause of the Federal 
 Constitution is not violated by a provision 
 of a state statute forbidding the bringing of 
 an action for the price of liquors sold in an- 
 other state, to be resold in violation of the 
 laws of the state where the statute was 
 passed. Corbin v. Houlehan, 100 Me. 246, 
 61 Atl. 131, 70: 568 
 
 103. Intoxicating liquors purchased in 
 another state, at a distillery, for the use of 
 the purchaser himself, and transported by 
 him in his own private conveyance across 
 the state line toward his home, have not 
 arrived within the state, within the mean- 
 ing of the Wilson act, so as to become 
 contraband under the South Carolina 
 statutes, while in course of transportation 
 between the state boundary and the home 
 of the purchaser. State v. Holleyman, 55 
 S. C. 207. 31 S. E. 362, 33 S. E. 366, 45: 567 
 
 104. Discrimination in favor of intoxi- 
 cating liquors bought from a dispensary, as 
 against liquors purchased beyond the limits 
 of the state for the personal use of the 
 purchaser, with respect to the necessity of 
 having certificates as to the purity of the 
 liquors, or the fact that they are kept for 
 personal use, would constitute a burden on 
 interstate commerce. Id.
 
 492 
 
 COMMERCE, IV. b. 
 
 105. The New Hampshire statute making 
 it an offense for a person to solicit or take 
 orders for spirituous liquors in the state, to 
 be delivered at a place without the state, 
 knowing, or having reasonable cause to be- 
 lieve, that if so delivered the same will be 
 transported into the state and sold in vio- 
 lation of law, is not void as a state regu- 
 lation of commerce. Lang v. Lynch, 38 Fed. 
 489, 4: 831 
 Convict made goods. 
 
 106. A statute forbidding the sale of 
 goods made by convicts without being 
 marked "Convict made" is unconstitutional 
 as applied to goods made in other states. 
 People v. Hawkins, 157 N. Y. 1, 51 N. E. 
 257, 42: 490 
 Purchase of goods to be shipped from state. 
 See also supra, 105; infra, 164-166. 
 
 107. Even if a statute imposing a license 
 fee for the privilege of buying certain prod- 
 uce in a particular county to be shipped 
 out of it might be held void as an inter- 
 ference with interstate commerce so far as 
 it applies to produce purchased to be 
 shipped out of the state, it is valid in its 
 application to produce intended for ship- 
 ment to places within the state. Rothermel 
 v. Meyerle, 136 Pa. 250, 20 Atl. 583, 9: 366 
 
 108. The exaction of a license fee for the 
 privilege of purchasing goods to be shipped 
 to another state is not unconstitutional as a 
 tax upon interstate commerce, since at most 
 it is simply a tax on the goods at the time 
 of their purchase, at which time they are 
 subject to state taxation, and so remain 
 until the business of transportation has 
 actually commenced. Id. 
 
 b. In Original Packages. 
 
 See also supra, 95; infra, 142-144, 160-162. 
 
 109. An original package is that package 
 which is delivered by the importer to the 
 carrier at the initial point of shipment, in 
 the exact condition in which it was shipped. 
 McGregor v. Cone, 104 Iowa, 465, 73 N. W. 
 1041, 39: 484 
 
 110. An original package, trade in which 
 is protected by the Federal Constitution, is 
 such form and size of package as is used 
 by producers or shippers for the purpose of 
 securing both convenience in handling and 
 security in transportation of merchandise 
 between dealers in the ordinary course of 
 actual commerce. Com. use of Philadelphia 
 County v. Schollenberger, 156 Pa. 201, 27 
 Atl. 30, 22: 155 
 [Reversed by the Supreme Court of the 
 United States in 171 U. S. 1, 43 L. ed. 49, 18 
 Sup. Ct. Rep. 757.] 
 
 111. The determination of the internal 
 revenue department that a package is a 
 proper and original package for purposes of 
 taxation does not show that it is an original 
 package of commerce. McGregor v. Cone, 
 104 Iowa, 465, 73 N. W. 1041, 39: 484 
 
 112. The sale of a package of goods entire 
 and unbroken, as imported from another 
 Btate, will be protected as interstate com- 
 merce only when the form and size of the 
 
 package is that usually adopted in the 
 trade for purpose of transportation, and not 
 when adopted with a view to unlawful 
 interstate retail trade. Com. use of Phila- 
 delphia County v. Schollenberger, 156 Pa. 
 201, 27 Atl. 30, 22: 155 
 
 [Reversed by the Supreme Court of the 
 United States in 171 U. S. 1, 43 L. ed. 49, 
 18 Sup. Ct. Rep. 757.] 
 
 113. A statute prohibiting the sale of seed 
 unless the year in which it is grown is plain- 
 ly marked on each package, except on a sale 
 of seed in open bulk by farmers to other 
 farmers or gardeners, is void as to seed 
 brought from another state and sold in 
 original packages. .Re Sanders, 52 Fed. 802, 
 
 18: 549 
 
 114. A territorial statute which imposes a 
 license fee as a condition upon which coal 
 oil may be sold in the territory is uncon- 
 stitutional and void, in so far as it applies 
 to sales in original packages by the importer 
 of coal oil produced and refined without the 
 territory. Re Wilson, 10 N. M. 32, 60 Pac. 
 73, 48: 417 
 Food; oleomargarine. 
 
 115. Showing that a package of material 
 to be used as food was made, stamped, and 
 branded in another state, is not sufficient to 
 show that it is an original package, trade In 
 which is protected by the Federal Constitu- 
 tion, without showing further that it was 
 in the form usually adopted in the trade 
 for purposes of transportation. Com. use of 
 Philadelphia County v. Schollenberger, 156 
 Pa. 201, 27 Atl. 30, 22: 155 
 
 116. A statute prohibiting the coloring, 
 coating, or polishing of an article intended 
 for food, whereby damage or inferiority is 
 concealed, is not in conflict with the power 
 of Congress to regulate commerce, although 
 applied to articles sold in original packages 
 imported from other states. Arbuckle v. 
 Blackburn, 51 C. C. A. 122, 113 Fed. 616, 
 
 65.^864 
 
 117. The sale of oleomargarine in original 
 packages as imported from another state 
 cannot be prohibited or interfered with by 
 state statute. Re Gooch, 44 Fed. 276, 
 
 10: 830 
 
 118. A statute prohibiting the manu- 
 facture, sale, or offer for sale, of any article 
 in imitation of yellow butter, but providing 
 that it shall not prohibit the sale of oleo- 
 margarine in its real character, free from 
 anything that looks like butter, is not void 
 as a regulation of commerce, even as applied 
 to the sale of oleomargarine in the original 
 packages in which it was brought from an- 
 other state. Com. v. Huntley, 156 Mass. 
 236, 30 N. E. 1127, 15: 839 
 
 119. A 10-pound package of oleomargarine 
 put up by a nonresident manufacturer, and 
 sent into the state for sale at retail to an 
 individual customer, and thus sold by an 
 agent for use as food, is not an original 
 package the sale of which is protected 
 against state laws by the Constitution of 
 the United States. Com. v. Paul, 170 Pa. 
 284, 33 Atl. 82, 30: 396 
 [Reversed by the Supreme Court of the
 
 COMMERCE, IV. b. 
 
 493 
 
 United States in 171 U. S. 1, 43 L. ed. 49, 
 
 18 Sup. Ct. Rep. 757.] 
 
 Cigarettes. 
 
 120. One claiming the right to import and 
 sell cigarettes in original packages con- 
 trary to the law of the state, under pro- 
 tection of the United States Constitution, 
 must prove every fact essential to show 
 that his sale was of such package. Austin 
 v. State, 101 Tenn. 563, 48 S. W. 305, 
 
 50: 478 
 
 121. Pasteboard boxes of cigarettes, each 
 containing ten cigarettes, and separately 
 stamped and labeled, as prescribed by the 
 United States revenue statute, are not 
 original packages of commerce, when they 
 are transported in an open basket which be- 
 longs to an express company, and which is 
 filled and emptied by its agent; but the 
 basket is the original package. Id. 
 
 122. A pine box in which are packed for 
 convenience in shipment packages of ciga- 
 rettes, each of which contains tein cigarettes 
 and is sealed with an internal revenue 
 stamp, without any other packing or in- 
 closure around or about them except the 
 box itself, is. the original package of com- 
 merce, and when that is opened the pack- 
 ages of cigarettes are subject to the police 
 power of the state as a part of the common 
 mass of property therein. McGregor v. 
 Cone, 104 Iowa, 465, 73 N. W. 1041, 39: 484 
 Intoxicating liquors. 
 
 Partial Invalidity of Statute as to, see 
 
 Statutes, 104. 
 For Editorial Notes, see infra, V. 7. 
 
 123. Intoxicating liquors transported 
 from another state to a point in Kansas are 
 subject to the laws of Kansas relating to 
 the sale and disposition of such property, 
 and they cannot be sold at the place of 
 destination in the original packages or other 
 form, except as the laws of the state pre- 
 scribe. State v. Fulker, 43 Kan. 237, 22 
 Pac. 1020, 7: 183 
 
 124. Intoxicating liquors purchased in 
 another state, when delivered to the pur- 
 chaser, though remaining in the original 
 packages, become at once subject to the 
 laws of the state where they are delivered; 
 and the owner has no right to use or dispose 
 of them in a manner different from that 
 prescribed by the laws of the state for the 
 sale or use of such property generally. 
 Collins v. Hills, 77 Iowa, 181, 41 N. W. 571, 
 
 3: 110 
 
 [The decisions "contained in the two preced- 
 ing paragraphs are overruled by the case of 
 Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 
 128, 10 Sup. Ct. Rep. 681, but nevertheless 
 state the law as it is now, by virtue of the 
 subsequent act of Congress of August 8, 
 1890, known as the Wilson bill.] 
 
 125. Where intoxicating liquors are im- 
 ported in small bottles, each bottle being 
 wrapped in a separate paper, in which con- 
 dition they are delivered to the carrier, who, 
 for the purpose of facilitating transpor- 
 tation, places the bottles in boxes furnished 
 by himself, the bottles will constitute the 
 
 original package. Keith v. State, 91 Ala. 
 2, 8 So. 353, 10: 430 
 
 126. Where intoxicating liquors are im- 
 ported in small bottles, each of which is 
 wrapped in paper, and labeled "Original 
 package," the bottles being packed by tne 
 shipper, for the purpose of facilitating the 
 shipment, in an open box, marked with the 
 number and size of the bottles contained 
 therein, the box, and not the bottle, is the 
 original package. Id. 
 
 127. When bottles of whisky or beer are 
 each sealed up in a paper wrapper, ana 
 closely packed together in uncovered wooden 
 boxes furnished by the importer, and these 
 wooded boxes are marked to the address ot 
 the agents, and shipped from one state to 
 another, the wooden boxes, and not the bot- 
 tles, constitute the original package, within 
 the meaning of the decision of the Supreme 
 Court of the United States. State v. Chap- 
 man, 1 S. D. 414. 47 N. W. 411, 10: 432 
 
 128. The drawing of a bung in a barrel 
 in which intoxicating liquors were shipped 
 from another state, in order to obtain a 
 small quantity for testing the article to de- 
 termine an option to reject the purchase, 
 does not destroy the nature of the original 
 package. Wind v. Her, 93 Iowa, 316, 61 N". 
 W. 1001, 27: 219 
 
 129. A sale of the contents merely of the 
 packages in which liquor was imported into 
 the state, the purchaser being required to 
 open them and empty the liquor into glasses 
 furnished by the seller, is not a sale by 
 original packages, exempt as interstate com- 
 merce from the operation of state laws 
 regulating the sale of intoxicating liquors. 
 Hopkins v. Lewis, 84 Iowa, 690, 51 N. W. 
 255, 15: 397 
 
 130. An importer of liquors into any state 
 cannot be restrained by the courts of that 
 state from selling them, so long as they are 
 sold in the unbroken packages in which 
 they existed during their transportation; 
 and such sale can, under the authority of 
 the decision of the Supreme Court of the 
 United States in Leisy v. Hardin, 135 U. S. 
 100, 34 L. ed. 128, 10 Sup. Ct. Rep. 681, be 
 made without regard to the size of the 
 packages or of the laws of the state into 
 which such liquors are imported. State ex 
 rel. Cochran v. Winters, 44 Kan. 723, 25 
 Pac. 237, 10: 616 
 
 131. A state prohibitory law, under the 
 decision in Leisy v. Hardin, remains in full 
 force except so far as it was declared in- 
 applicable as to imported intoxicating 
 liquors while remaining in the original 
 packages, and therefore, under the Wilson 
 bill, making such liquors subject to the 
 laws of the state upon their arrival, no re- 
 enactment of the statute is necessary in 
 order to give it effect as to such imported 
 liquors. Re Van Vliet, 43 Fed. 761, 10: 451 
 Re Spickler, 43 Fed. 653, 10: 446 
 Contra, Re Rahrer, 43 Fed. 556, 10: 444 
 
 132. A state law may make a sale of 
 liquors to a person of known intemperate 
 habits a criminal offense, although the 
 liq\iors are sold in the original packages in
 
 494 
 
 COMMERCE, IV. c. 
 
 which they are imported from another state. 
 Com. v. Zelt, 138 Pa. 615, 21 AtL 7, 11: 602 
 
 133. Sales of intoxicating liquors shipped 
 to another state in the original packages be- 
 fore the passage of the Wilson bill are not 
 subject to the laws of that state respecting 
 the recovery of money paid on such sales. 
 Wind v. Her, 93 Iowa, 316, 61 N. W. 1001, 
 
 27: 219 
 
 134. A consignment of intoxicating 
 liquors "arrives" in the state within the 
 meaning of the Wilson bill, which makes 
 such liquors subject "upon arrival in such 
 state" to the laws of the state, as soon as 
 it crosses the state boundary and enters the 
 state, although the contract of carriage is 
 not then completed. State v. Rhodes, 90 
 Iowa, 496, 58 N. W. 887, 24: 245 
 [Reversed by the Supreme Court of the 
 United States in 170 IL S. 412, 42 L. ed. 
 1089, 18 Sup. Ct. Rep. 664.] 
 
 c. Sales by Peddlers and Agents; by Sample. 
 
 See also supra, 119. 
 
 For Editorial Notes, see infra, V. 4. 
 
 135. That one having goods for sale is a 
 nonresident manufacturer, and sells his 
 goods within the state through an agent, 
 does not, under the Federal Constitution, re- 
 lieve him from the operation of the local po- 
 lice laws, if he keeps in the state a store 
 containing a stock of goods for the' inspec- 
 tion of customers, from which he makes 
 sales to actual customers. Com. use of 
 Philadelphia County v. Sehollenberger, 156 
 Pa. 201, 27 AtL 30, 22: 155 
 [Reversed on other grounds by the Supreme 
 Court of the United States in 171 U. S. 1, 
 43 L. ed. 49, 18 Sup. Ct. Rep. 757.] 
 
 136. A tax on the privilege of selling fer- 
 tilizers is a tax on the fertilizers and there- 
 fore invalid, so far as it relates to ferti- 
 lizers brought from other states, being a tax 
 on interstate commerce; and it is im- 
 material that no discrimination is made in 
 favor of or against the products of other 
 states. American Fertilizing Co. v. North 
 Carolina Bd. of Agri. 43 Fed. 609, 11: 179 
 
 137. That clause of W. Va. Code, chap. 32, 
 2, as amended by W. Va. Acts 1885, chap. 
 17, which reads, "Nor shall any agent 
 traveling with one or more horses sell any 
 lightning rod, sewing machine, or organ, or 
 other musical instrument, without a state 
 license therefor," is not unconstitutional as 
 applied to such agents selling Singer sewing 
 machines manufactured outside of that 
 state. State v. Richards, 32 W. Va. 348. 9 
 S. E. 245, 3: 705 
 
 138. An ordinance prohibiting the busi- 
 ness of itinerant merchants to be carried on 
 without a license is not invalid as a regu- 
 lation of interstate commerce, as applied to 
 one who purchases bankrupt stocks wher- 
 ever he can obtain them to the best ad- 
 vantage and sometimes buys them in other 
 states, when it makes no discrimination be- 
 tween merchants whose goods are imported 
 into the state and those whose goods are 
 manufactured or purchased in the state, and 
 does not impose any burden on sales in 
 
 original packages brought into the state. 
 Carrollton v. Bazzette, 159 111. 284, 42 N. E. 
 837, 31: 522 
 
 By peddlers generally. 
 For Editorial Notes, see infra, V. 4. 
 
 139. A state statute prohibiting the sale 
 of goods by hawkers or peddlers is not void 
 as a regulation of commerce, where there is 
 no discrimination against nonresidents or 
 goods from out of the state. Com. v. 
 Gardner, 133 Pa. 284, 19 Atl. 550, 7: 666 
 
 140. Requiring a license tax of peddlers is 
 not a regulation of interstate commerce be- 
 cause the goods sold belonged to a citizen 
 of another state, if they are carried by the 
 peddler and delivered as they are sold. State 
 v. Ernert, 103 Mo. 241, 15 S. W. 81, 11: 219; 
 Re Wilson, 8 Mackey, 341, 12: 624 
 , 141. An ordinance imposing a license on 
 hawkers and peddlers does not interfere 
 with interstate commerce in the case of a 
 peddler of chairs imported into the state be- 
 fore his employment begins, even though 
 the sale by him is conditional and the title 
 remains in the foreign owner. South Bend 
 v. Martin, 142 Ind. 31, 41 N. E. 315. 29: 531 
 
 142. The peddling of the separate articles 
 after the package in which they were ship- 
 ped from other states has been broken may 
 lawfully be regulated under the police power 
 of a state. Com. v. Harmel, 166 Pa. 89, 30 
 Atl. 1036, 27: 388 
 
 143. A reasonable license fee charged upon 
 itinerant vendors of drugs or articles in- 
 tended for the treatment of diseases, who 
 publicly profess to cure or treat diseases, is 
 not an unconstitutional interference with 
 interstate commerce, although the medicines 
 sold were in original packages brought from 
 another state. State v. Wheelock, 95 Iowa, 
 577, 64 N. W. 620, 30: 429 
 
 144. Small packages of goods sold from 
 house to house have lost their distinctive 
 character of imports, where wholesale pack- 
 ages have been sold by an agent, for each 
 of which he credits the purchaser with the 
 retail price of one of the small packages 
 therein contained, and then sells these as 
 an advertisement for the purchasers, if 
 these small packages are either taken from 
 the packages sold at wholesale, or are 
 shipped in a larger package directly to the 
 agent. Re Wilson, 8 Mackey, 341, 12: 624 
 By factors. 
 
 145. A statute which does not in terms 
 apply to interstate business, but constitutes 
 a police regulation of the business of cer- 
 tain classes of commission men, is not in- 
 valid as to local or domestic business be- 
 cause it may incidentally or indirectly af- 
 fect interstate commerce. State ex rel. 
 Beek v. Wagener, 77 Minn. 483, 80 N. W. 
 633, 46: 442 
 
 146. A statute requiring merchants 
 licensed to sell grain on commission to 
 render a true statement to the consignor 
 within twenty-four hours of making a sale, 
 showing the grain sold, price received, name 
 and address of purchaser, and the date, 
 hour, and minute when sold, with vouchers 
 for charges and expenses, is not unconsti- 
 tutional as an interference with interstate
 
 COMMERCE, IV. c. 
 
 495 
 
 commerce, though applying to shipments 
 from beyond as well as from within the 
 state. State v. Edwards, 94 Minn. 225, 102 
 N. W. 697. 69: 667 
 
 Merchandise brokers. 
 
 Constitutional Question Shown for Purpose 
 of Appeal, see Appeal and Error, 82. 
 
 147. A license tax on merchandise brokers 
 is invalid as a regulation of interstate 
 commerce, when applied to a citizen and res- 
 ident of a city whose occupation is solely 
 the solicitation of orders in the city by 
 personal application and by exhibition of 
 samples, for nonresident merchants, who are 
 his principals, for the negotiation of sales 
 of goods which are not in the state. Ad- 
 kins v. Richmond, 98 Va. 91, 34 S. E. 967, 
 
 47: 583 
 
 Agents of foreign corporation. 
 See also infra, 164. 
 
 148. A statute expressly providing that 
 all contracts of a corporation which has not 
 paid the franchise tax shall be void cannot 
 apply to sales of foreign corporations, 
 through itinerant agents, of commodities 
 manufactured outside the state. Coit & Co. 
 V. Sutton, 102 Mich. 324, 6D N. W. 690, 
 
 25: 819 
 
 149. A contract by which a resident of a 
 state agrees with a foreign corporation to 
 canvass certain territory for the sale of its 
 sewing machines, which the corporation 
 thereby agrees to sell to him on credit, and 
 a bond given to secure payment to the cor- 
 poration of any sum that may become due 
 under such contract, constitute a part of the 
 interstate commerce carried on by the sale 
 of such sewing machines in accordance with 
 said contract, and therefore cannot be af- 
 fected by a state statute prohibiting busi- 
 ness within the state by a foreign corpora- 
 tion which has not complied with certain 
 requirements, such as filing a certificate to 
 designate an agent on whom process may 
 be served. Gunn v. White Sewing-Mach. Co. 
 57 Ark. 24, 20 S. W. 591, 18: 206 
 
 150. An agent of a nonresident organ 
 company, who travels by wagon, carrying 
 an organ with him which he sells whenever 
 he can do so, or, in lieu thereof, takes an 
 order for a different organ which, when 
 shipped to him, he delivers to the purchaser, 
 is engaged in interstate commerce so as to 
 be exempt from an occupation tax on ped- 
 dlers under state law. French v. State, 42 
 Tex. Grim. Rep. 222, 58 S. W. 1015, 52: 160 
 
 151. An exemption of manufacturers who 
 have paid taxes on capital employed, from 
 the provisions of a statute imposing a li- 
 cense tax upon peddlers, renders the stat- 
 ute unconstitutional as a regulation of com- 
 merce when applied to a nonresident acting 
 as an agent or employed in the sale of goods 
 owned and manufactured by a nonresident 
 corporation. Com. v. Myers, 92 Va. 809, 23 
 S. E. 915, 31 : 379 
 Solicitors or drummers; by sample. 
 
 See also infra, 165. 
 
 For Editorial Notes, see infra. V. 4. 
 
 152. One soliciting orders for goods from 
 house to house cannot refuse to comply with 
 the terms of a police ordinance regulating 
 
 such business, which applies to all alike, 
 on the ground that he is engaged in inter- 
 state commerce, because he is working for 
 a person domiciled in another state, and 
 simply exhibits samples and takes orders 
 which are filled by another agent or by ex- 
 press. Titusville v. Brennan, 143 Pa. 642, 22 
 Atl. 893, 14: 100 
 
 153. Persons engaged in showing samples 
 of goods manufactured by their principal at 
 his residence in another state, and in taking 
 orders for such goods, which are transmitted 
 to the principal to be filled, cannot be com- 
 pelled to pay a license tax by the state in 
 which they are operating, whether they are 
 within its statutory definition of peddlers 
 or not. Re Spain, 47 Fed. 208, 14: 97 
 
 154. The solicitation of orders for books 
 within a city by an agent who is, like his 
 principal, a citizen of another state to which 
 all orders are sent to be filled, such agent 
 neither delivering the books nor collecting 
 any money, constitutes interstate com- 
 merce; and an ordinance requiring a license 
 for doing such business is void. Re White 
 43 Fed. 913, 11:284 
 
 155. A municipal ordinance prohibiting 
 traveling merchants and peddlers from sell- 
 ing, or offering for sale, any merchandise 
 without having first obtained a license can- 
 not be enforced against a person who makes 
 negotiations for the sale of property owned 
 and situated in another state, because of 
 the United States constitutional provision 
 giving Congress the power to regulate com- 
 merce between the states. McLaughlin v. 
 South Bend, 126 Tnd. 471, 26 N. E. 185; 
 
 10: 357 
 
 156. A state tax on the business of buying 
 and selling "futures" is not a tax on inter- 
 state commerce, although the business is 
 carried on by the agent of a citizen of 
 another state who solicits orders within the 
 state imposing the tax, to be executed out 
 of it. Alexander v. State, 86 Ga. 246, 12 S. 
 E. 408, 10: 859 
 
 157. An ordinance imposing a license tax 
 on occupations is invalid as against a per- 
 son selling picture frames, when he sells 
 them only on pictures made in another 
 state pursuant to orders theretofore given. 
 Laurens v. Elmore, 55 S. C. 477. 33 S. E. 
 560, 45: 249 
 
 158. The sale of a frame for a portrait 
 made in another state to fill an order taken 
 by a solicitor in the state where it was de- 
 livered is a mere incident to the taking of 
 the order for the portrait, and is not with- 
 in the provisions of a state statute against 
 peddling without a license, where the order 
 for the portrait contained a provision that 
 it should be delivered in a frame which the 
 purchaser of the portrait should have the 
 option of buying at wholesale price. State 
 v. Coop, 52 S. C. 508, 30 S. E. 609, 41 : 501 
 
 159. Portraits and frames manufactured 
 in another state in compliance with orders 
 taken by n traveling salesman, and .shipped 
 into the state consigned to the maker, 
 whereupon they are delivered by the agent 
 to the persons ordering them, and the price 
 agreed upon at the time the orders were
 
 496 
 
 COMMERCE, V. (Ed. Notes.) 
 
 given collected, are the subject of interstate 
 commerce;, and such agent cannot be sub- 
 jected to a licnse tax by state authority, 
 since the sale is made in the state in which 
 the home company is located, and not at 
 the place of delivery. State v. Willingham, 
 9 Wyo. 290, 62 Pac. 797, 52: 198 
 
 160. One who takes orders in his own 
 name from house to house, for articles man- 
 ufactured in another state, and who in his 
 own name sends a single order to the manu- 
 facturer, without stating the names of his 
 customers, and, on receiving the package 
 containing the articles, delivers therefrom 
 the separate articles to his customers, is 
 not engaged in interstate commerce so as 
 to be exempt from a tax on the privilege of 
 selling articles of that kind within the 
 county. Croy v. Epperson, 104 Tenn. 525, 
 58 S. W. 235, 51: 254 
 
 161. A traveling agent for a nonresident 
 principal, who makes executory contracts 
 for the sale of goods, and who, when the 
 goods are shipped into the state to him, 
 receives them in bulk, breaks the original 
 package and distributes the contents among 
 his customers, is not exempt from a state 
 license tax on the ground that he is en- 
 gaged in interstate commerce. Racine Iron 
 Co. v. McCommons, 111 Ga. 536, 36 S. E. 
 866, 51: 134 
 
 162. Filling orders taken from house to 
 house by an agent in another state, by send- 
 ing the articles in bulk to the agent to be 
 distributed by him, does not subject the 
 latter to the payment of a license tax as a 
 peddler, when he breaks the bulk and be- 
 gins the distribution. Re Spain, 47 Fed. 
 208, 14: 97 
 
 163. A state statute requiring a license 
 from every peddler or itinerant trader by 
 sample or otherwise, unless he is a disabled 
 soldier of the state, is unconstitutional as 
 a regulation of commerce. Wrought Iron 
 Range Co. v. Johnson, 84 Ga. 754, 11 S. E. 
 233, 8: 273 
 Soliciting goods to be shipped from state. 
 See also supra, 105, 107, 108. 
 
 164. The purchase and solicitation of wool 
 by an agent of a foreign corporation, for 
 shipment to other states wherein the prin- 
 cipal business of the corporation is done, is 
 a business directly pertaining to interstate 
 commerce, which the foreign corporation is 
 entitled to engage in without complying 
 with the state statute imposing conditions 
 upon its right to do business in the state. 
 Macnaughtan v. McGirl, 20 Mont. 124, 49 
 Pac. 651, 38: 367 
 
 165. Soliciting pictures to be enlarged out- 
 side of the state constitutes interstate com- 
 merce, and therefore the privilege tax im- 
 posed by Tenn. Acts 1895 (2d Sess.), chap. 
 4, 3, pp. 579. 5SS. on all persons other than 
 photographers of the state, who do such so- 
 liciting, is unconstitutional. State v. Scott, 
 98 Tenn. 254, 39 S. W. 1, 36: 461 
 
 166. An agent of a laundry in another 
 state, who collects garments and sends them 
 out of the state to be washed and laundered, 
 and afterwards redelivers them to their own- 
 ers, is not engaged in commerce so as to be 
 
 protected against the privilege tax imposed 
 on his occupation by Tenn. Acts 1899, chap. 
 432, 4. Smith v. Jackson, 103 Tenn. 673, 
 54 S. W. 981; 47:416 
 
 V. Editorial Notes. 
 
 a. Domestic. 
 
 i. Generally. 
 
 State sovereignty over. 12. 673.* 
 Right of states to regulate their internal 
 commerce. 5: 559.* 
 
 b. Interstate. 
 
 2. Generally. 
 
 As to Regulation of Freight Rates, Gen- 
 erally, see Carriers, IV. 
 5. 
 
 Supreme power of Congress to regulate. 
 
 12: 624.* 
 
 How far power of Congress exclusive. 
 6: 580.* 
 
 Interstate Commerce Act construed. 2: 
 444.* 
 
 Rates must be reasonable and fairly ad- 
 justed. 2:444.* 
 
 Difference in rates; when justified. 2: 444.* 
 
 Classification. 2: 445.* 
 
 Preference as to localities. 2: 445.* 
 
 Right of distributing trade centers to pref- 
 erence. 2: 446.* 
 
 Long and short hauls. 12: 436.* 
 
 Power of Congress over navigable waters 
 under common law. 2: 
 540.* 
 
 Duty of carrier under Interstate Commerce 
 Act to furnish cars to 
 shippers. 43 : 230. 
 
 Effect and construction of Federal anti- 
 trust law. 64: 698. 
 
 Restraint on, in violation of anti -trust act. 
 64: 689. 
 
 As to Contracts in Restraint of Trade, Gen- 
 erally, see Contracts, VIII. 
 36. 
 
 Injunction against strikes affecting. 28: 
 467. 
 
 Jurisdiction under commerce clause to pun- 
 ish crimes committed by 
 or against Indians. 21: 
 169. 
 
 3. What is; subjects of commerce. 
 
 Whether shipments between points in the 
 same state lose their char- 
 acter of domestic com- 
 merce by passing out of 
 the state during transpor- 
 tation. 17:443. 
 
 Shipments within a state as part of inter- 
 state or foreign transpor- 
 tation. 17: 643. 
 
 Includes transportation and intercourse. 
 6: 579;* 13: 107. 
 
 Natural gas as a subject of interstate com- 
 merce. 12: 652. 
 
 Interstate telegrams as interstate commerce. 
 24: 161. 
 
 When vessel engaged in. 2: 380.*
 
 COMMERCIAL AGENCIES. 
 
 497 
 
 4. Intenerence with; state power. 
 
 Right of states to regulate matters inci- 
 dentally affecting com- 
 merce. 5: 559.* 
 
 Jurisdiction of United States court when 
 person illegally held in 
 custody for violation of 
 state law. 10: 617.* 
 
 Game laws as affecting. 13: 804.* 
 
 Peddlers and drummers as related to inter- 
 state commerce. 14: 97. 
 
 Exclusion of foreign corporations as a re- 
 striction upon. 24: 311. 
 
 Right of state to regulate occupation. 6: 
 581.* 
 
 Police power of state. 5: 559;* 6: 580.* 
 
 State inspection laws. 11: 180.* 
 
 State power to regulate freights and fares. 
 9: 754;* 11: 452.* 
 
 As to State Regulation of Freights and 
 Fares, Generally, see Car- 
 riers, IV. ,3-5. 
 
 5. Telegraphs and telephones. 
 
 Interstate telegrams as interstate commerce. 
 24: 161. 
 
 Power of state to control or impose burdens 
 upon interstate telegraph 
 and telephone companies. 
 24: 161. 
 
 State statutes imposing license fees on 
 telegraph companies. 31 : 
 808. 
 
 Statutes regulating telephone prices and re- 
 quiring service on equal 
 terms to all. 31 : 807. 
 
 State statutes imposing penalties upon tele- 
 graph companies for fail- 
 ure to transmit or deliver 
 messages properly. 31 : 
 807. 
 
 6. Taxation. 
 
 Whether state tax violates commerce clause, 
 as a Federal question. 
 62: 530. 
 
 State taxation as interference with inter- 
 state commerce. 9: 366* 
 11: 179.* 
 
 State taxes or penalties as affecting; what 
 includes; right of car- 
 riers to land passengers. 
 13: 686.* 
 
 Corporate taxation as interference with 
 interstate commerce. 60: 
 641. 
 
 Liability of domestic corporation engaged 
 in interstate commerce to 
 franchise tax. 57: 79. 
 
 Taxation of bridge over a navigable river 
 as regulation of inter- 
 state commerce. 29: 71. 
 
 Taxation of receipts of corporations en- 
 gaged in interstate or for- 
 eign commerce. 57: 59. 
 
 State license tax as interference with. 9: 
 366.* 
 
 7. Intoxicating liquor. 
 
 State power to regulate the sale of imported 
 liquor. 7: 183,* 296;* 9: 
 366,* 780;* 10: 616.* 
 
 State tax on liquors or persons engaged in 
 
 selling liquor. 9: 782.* 
 L.R.A. Dig. 32, 
 
 Subjection of liquor imported in original 
 package to police laws of 
 state. 10: 616;* 12: 624.* 
 
 Validity of state license tax imposed on im- 
 porter. 11: 180.* 
 
 COMMERCIAL AGENCIES. 
 
 Interstate Business of, see Commerce, 152- 
 163. 
 
 Publication Defeating Common Law Copy- 
 right, see Copyright, 15. 
 
 Damages Against, for False Publication by, 
 see Damages, 290. 
 
 Estoppel by Representations to, see Estop- 
 pel, 210. 
 
 Opinion Evidence as to Meaning of Report 
 of, see Evidence, 1372. 
 
 Sales on Credit in Reliance on Statements 
 by, see Fraud and Deceit, 50, 51. 
 
 Libel by, see Libel and Slander, 1, 2, 5, 53, 
 118-122, 185. 
 
 Notice to, of Partnership Dissolution, see 
 Partnership, 117. 
 
 Creation of, see Principal and Agent, 6. 
 
 Question for Jury as to Libel by, see Trial, 
 262. 
 
 1. A mercantile agency is not liable for 
 damages for a false report made by a sub- 
 agent whose employment is contemplated by 
 the contract of subscription, under which the 
 agency merely agrees to transmit the infor- 
 mation obtained by such subagent, where it 
 has exercised due care in the selection of 
 such subagent, since the latter is the agent 
 of the subscriber. Dun v. City Nat. Bank, 
 14 U. S. App. 695, 7 C. C. A. 152, 58 Fed. 
 174, 23: 687 
 
 2. A mercantile agency which agrees to 
 transmit information to subscribers who 
 may wish to contract with outside parties, 
 under a condition that it is not to be re- 
 sponsible for loss by the negligence of sub- 
 agents and in no manner guarantees the ac- 
 tual verity or correctness of the information 
 given, is not liable to a subscribing bank for 
 loss upon commercial paper bought by it in 
 reliance upon information furnished by one 
 of its subagents as to a party to such paper, 
 although such agent, being connected in 
 business with such party, knowingly gave 
 false information, and such bank purchased 
 the paper in reliance thereon. Id. 
 
 3. A commercial agency is not exempted 
 from liability for gross negligence in errone- 
 ously giving the financial standing of a per- 
 son in consequence of a typographical error, 
 by a provision in the contract that the com- 
 pany shall not be liable for any loss or in- 
 jury caused by the neglect or other act of 
 any officer or agent of the company in pro- 
 curing, collecting, and communicating said 
 information, and that such company does 
 not guarantee the correctness of said infor- 
 mation. Crew v. Bradstreet Co. 134 Pa. 161. 
 19 Atl. 500, 7: 661 
 
 Editorial Notes. 
 
 Statements of, as privileged communica- 
 tions. 2: 405,
 
 493 
 
 COMMERCIAL LAW- COMMITTEE. 
 
 Reliance on fraudulent statements to, 37: 
 
 613. 
 
 Misrepresentations to, as a fraud upon 
 
 seller. 14: 264. 
 
 COMMERCIAL LAW. 
 
 Effect of Decisions on, see Courts, 474, 475, 
 
 517, 518, 546-550. 
 See also Common Law, 2. 
 
 COMMERCIAL TRAVELERS. 
 
 Editorial Notes. 
 
 Liability to license tax. 3: 706.* 
 Drummers as related to interstate com- 
 merce. 14: 97 
 
 Sale of liquor by drummer in non-li- 
 cense county. 4: 835.* 
 Extent of authority conferred upon. 
 18: 663. 
 
 COMMISSION. 
 
 Drain Commission for County, see Drains 
 
 and Sewers, 1. 
 See also Municipal Corporation, 558, 559. 
 
 COMMISSIONERS. 
 
 Abatement of Suit by Board of Phosphate 
 Commissioners, see Abatement and Re- 
 vival, 30. 
 
 Of Alabama Claims, see Alabama Claims, 2. 
 
 Affidavit for Appeal from Decision of, see 
 Appeal and Error, 128. 
 
 For Determining Truth of Allegations in 
 Bill of Exceptions, Duty of, see Appeal 
 and Error, 221. 
 
 Time to Object to Report of, see Appeal and 
 Error, 589. 
 
 Review of Findings of, see Appeal and Er- 
 ror, 812. 
 
 Delegation to, of Hearing in Disbarment 
 Proceeding, see Attorneys, 28. 
 
 Certiorari to, see Certiorari, 15, 43. 
 
 Per Diem Fees of, see Clerks, 9. 
 
 Constitutional Provision as to Term of, see 
 Constitutional Law, 51. 
 
 Usurpation of Judicial Functions by, see 
 Constitutional Law, 260. 
 
 Appointment of Police Commissioners as 
 Violation of Right of Local Self Gov- 
 ernment, see Constitutional Law, 286- 
 296. 
 
 Delegation of Power to, see Constitutional 
 Law, I. d, 4. 
 
 Of Court, Legislative Power to Appoint, see 
 Courts, 249-251. 
 
 Of County, Deed to, see Deeds, 52. 
 
 To Assign Dower, see Dower. 61. 
 
 Drainage Commissioners, see Statutes. 216. 
 
 Of Roads, see Highways, 233, 413, 414. 
 
 To Set Off Homestead, see Homestead, 71, 
 72. 
 
 Board of Medical Commissioners, see Medi- 
 cal College. 
 
 Of Patents, Mandamus to, see Mandamus, 
 57, 162. 
 
 Character of Office of Park Commissioners, 
 see Officers, 4. 
 
 Of Police, see Officers, 40, 42, 88, 90; Stat- 
 utes, 108-111, 214, 215, 224. 
 
 For Public Improvement, see Public Im- 
 provements, 133. 
 
 Deposit of Public Funds by, see Public 
 Moneys, 10. 
 
 For Erection of Soldiers' Monument, see 
 Public Moneys, 70. 
 
 Exception to Report of, see Reference, 9. 
 
 For Town, in Issuing Railroad Aid Bonds, 
 see Towns, 25. 
 
 See also Railroad Commissioners. 
 
 The supreme court of Indiana cannot per- 
 form its judicial duties through the medium 
 of masters in chancery, or master commis- 
 sioners, or persons charged with duties like 
 those performed by such masters and com- 
 missioners. State ex rel. Hovey v. Noble, 
 118 Ind. 350, 21 N. E. 244, 4: 101 
 
 Editorial Notes. 
 Of sewers, right of woman to be. 38: 211. 
 
 COMMISSION MERCHANT. 
 
 See Factors. 
 
 COMMISSIONS. 
 
 Of Brokers, see Brokers, II. b. 
 
 Delegation of Power as to, see Constitution- 
 al Law, 170. 
 
 When Constitutionality of, will be Consid- 
 ered, see Courts, 503. 
 
 Of Personal Representatives, see Executors 
 and Administrators, IV. c. 2. 
 
 Injunction against, see Injunction, 312, 313. 
 
 Of Officers, see Congress, 2; Officers, 57, 58. 
 
 COMMITMENT. 
 
 Fee of Clerk for, see Clerks, 16. 
 For Contempt, see Contempt, 60. 
 Change of, as to Place of Imprisonment, 
 
 see Criminal Law, 237. 
 To Reform School, see House of Correction. 
 To Asylum, Collusiveness of Order, see 
 
 Incompetent Persons, 8. 
 As to Imprisonment Generally, see Criminal 
 
 Law, IV. 
 
 COMMITTEE. 
 
 Delegation of Power to, see Constitutional 
 
 Law, I. d, 4. 
 Ratification of Act of, see Corporations, 
 
 245.
 
 COMMODITIES COMMON LAW. 
 
 Act by Majority of, see Corporations, 248. 
 
 Of Political Party, see Courts, 93, 94; Elec- 
 tions, III. 
 
 Of Incompetent Persons, see Incompetent 
 Persons, VI. 
 
 Of Legislature, see Contempt, 43; Corpo- 
 rations, 85; Legislature, 13-15. 
 
 Of Aldermen, see Libel and Slander, 133- 
 135; Municipal Corporations, 71. 
 
 COMMODITIES. 
 What are, see Taxes, 562. 
 
 COMMON. 
 
 1. A speech on a common addressed to aH 
 persons who choose to draw near and listen, 
 whether it is a lecture, political discourse, 
 or sermon, is a "public address" within the 
 prohibition of an ordinance against such an 
 address on public grounds. Com. v. Davis, 
 162 Mass. 510, 39 N. E. 113, 26: 712 
 
 2. A bond securing to the inhabitants of a 
 town the right to take sand, gravel, sea- 
 weed, drift stuff, etc., from a certain beach, 
 does not give them the right to take it for 
 use or sale in any other town. Middletown 
 v. Newport Hospital, 16 R. I. 319, 15 Atl. 
 800, 1: 191 
 
 COMMON CARRIER. 
 
 See Carriers. 
 
 COMMON ERROR. 
 
 Question for Jury as to Existence of, see 
 
 Trial, 494. 
 
 A common error having the force of law 
 is not shown by the fact that 33 per cent 
 of the mining locations of one county in a 
 vast territory during about two years used 
 a form of verification for location notice, 
 which was fatally defective under a law of 
 Congress by reason of omitting to state the 
 date of the location, where it does not show 
 that any considerable number of person*, 
 have relied upon or sought to fix their rights 
 upon, the alleged common error, or that 
 large property interests depend upon up- 
 holding such notice. O'Donnell v. Glenn, 9 
 Mont. 452, 23 Pac. 1018, 8: 629 
 
 Editorial Notes. 
 May pass for right. 8: 629.* 
 
 COMMON LAW. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 6, 24, 25. 
 
 As to Oral Contract for Land, see Con- 
 tracts, 164, 
 
 As to Parol Modification of Sealed Instru- 
 ment, see Contracts, 756. 
 
 As to Right to Inspect Corporate Books, 
 see Corporations, 507, 513. 
 
 Rules Followed in Determining What is, see 
 Courts, 525. 
 
 As to Default on Indictment, see Criminal 
 Law, 188. 
 
 As to Cumulative Sentences, see Criminal 
 Law, 227. 
 
 As to Inheritance through Alien, see De- 
 scent and Distribution, 23, 24. 
 
 As to Inheritance by Illegitimates, see De- 
 scent and Distribution, 31. 
 
 Authority to Order Physical Inspection as, 
 see Discovery and Inspection, 18, 19. 
 
 Remedy by, as Affected by Statute, see 
 Election of Remedies, 8, 14. 
 
 Equity as Part of, see Equity, 1. 
 
 Presumption as to, see Evidence, 178-185, 
 189, 190. 
 
 Right to Common Law Jury, see Jury, 1, 2. 
 
 As to Estovers, see Landlord and Tenant, 
 129. 
 
 Common Law Lien, see Liens, 2-4. 
 
 Common Law Marriage, see Marriage, n. b. 
 
 As to Bequest for Masses, see Masses, 3. 
 
 As to Parent's Right of Action for Daugh- 
 ter's Seduction, see Seduction, 4. 
 
 As to Sunday Labor, see Sunday, 8. 
 
 As to Riparian Rights, see Waters, 220-224, 
 230, 302, 306, 307, 323, 454-456. 
 
 As to Surface Waters, see Waters, 392. 
 
 As to Revocation of Will by Marriage, see 
 Wills, 71, 72. 
 
 As to Exemption from Arrest, see Writ and 
 Process, 59. 
 
 1. The common law is simply the "right 
 reason of the thing" in matters as to which 
 there is no statutory enactment. Wilson v. 
 Leary, 120 N. C. 90/26 S. E. 630, 38: 240 
 
 2. There is no such thing as a general 
 commercial or a general common law sep- 
 arate from, and irrespective of, the particu- 
 lar state or government whose authority 
 makes it law. Forepaugh v. Delaware, L. 
 & W. R. Co. 128 Pa. 217, 18 Atl. 503, 5: 508 
 Of nation. 
 
 See also infra, Editorial Notes. 
 
 3. There is no national common law. Gat- 
 ton v. Chicago, R. I. & P. R. Co. 95 Iowa, 
 112, 63 N. W. 589, 28: 556 
 
 4. There is no common law of the United 
 States except, possibly, as the common law 
 of England has been adopted with refer- 
 ence to the construction of powers granted 
 to the Federal Union. Hudson Furniture 
 Co. v. Harding, 34 U. S. App. 148, 17 C. C. 
 A. 203, 70 Fed. 468, 30: 513 
 
 5. Resort may be had to the common law 
 to determine the validity of a contract for 
 interstate carriage, in the absence of any 
 contrary legislation by Congress. Davia v. 
 Chicago, M. & St. P. R. Co. 93 Wis. 470, 
 67 N. W. 16, 33: 654 
 Of state.' 
 
 Rule in Shelley's Case as Part of, see Real 
 
 rroperty, 37, 38. 
 See also infra, Editorial Notes. 
 
 6. The common law of one of the United 
 States includes the long recognized judicial
 
 500 
 
 COMMON LAW. 
 
 practice of that state, whether it was ever 
 known in England or not. Com. v. Lehigh 
 Valley R. Co. 165 Pa. 162, 30 Atl. 836, 
 
 27: 231 
 
 7. The practice of rendering judgment by 
 default on defendant's failure to appear, 
 which apparently originated in usage, has 
 been sanctioned by frequent statutory rec- 
 ognition, and has been extended in its op- 
 eration from time to time by judicial appli- 
 cation, must be recognized as part of the 
 common law of Pennsylvania. Id 
 
 8. The fundamental principles of right 
 and justice on which the common law is 
 founded, and which its administration is 
 intended to promote, require that a dif- 
 ferent rule should be adopted whenever it 
 is found that, owing to the physical features 
 and character of a state, and the peculiar- 
 ities of its climate, soil, and products, the 
 application of a given common-law rule 
 tends constantly to cause injustice and 
 wrong, rather than the administration of 
 justice and right. Katz v. Walkinshaw, 141 
 Cal. 116, 70 Pac. 663, 74 Pac. 766, 64: 236 
 Adoption from England. 
 
 See also infra, Editorial Notes. 
 
 9. The common law of England, though 
 adopted and accepted as the law of the 
 state and though unchanged by statute, is 
 not under all circumstances and conditions 
 to be applied as the local common law. 
 Kansas City, M. & B. R. Co. v. Smith, 72 
 Miss. 677, 17 So. 78, 27: 762 
 
 10. The term "common law of England," 
 as used in Neb. Comp. Stat. 1901, chap. 15a, 
 which makes the common law of England 
 the rule of decision in all cases not gov- 
 erned by constitution or statutes, so far as 
 applicable, refers to that general system of 
 law which prevails in England, and in most 
 of the United States by derivation from 
 England, as distinguished from the Roman 
 or civil-law system, and hence, the statute 
 does not require adherence to the decisions 
 of the English common-law courts prior to 
 the Revolution in case the court considers 
 subsequent decisions, either in England or 
 America, better expositions of the general 
 principles of that system. Williams v. 
 Miles, 68 Neb. 463, 94 N. W. 705. 62: 383 
 
 11. Nev. Gen. Stat. 3021, adopting "the 
 common law of England so far as it ia not 
 repugnant to or in conflict with the Consti- 
 tution and laws of the United States, or 
 the Constitution and laws" or that , state, 
 adopts only so much of the common law as 
 is applicable to the condition of that state. 
 Reno Smelting, M. & R. Works v. Steven- 
 son, 20 Nev. 269, 21 Pac. 317, 4: 60 
 
 12. The power of the courts to declare 
 established doctrines of the common law 
 inapplicable to the state of Nebraska should 
 be used sparingly, and its exercise is not 
 justified unless the inapplicability of a rule 
 is general, extending to the whole or a 
 greater part of the state, or at least to an 
 area capable of definite judicial ascertain- 
 ment. Meng v. Coffey, 67 Neb. 500, 93 N. 
 W. 713, 60:910 
 
 13. The common law of England at the 
 time of its adoption by Wyoming had no 
 
 relation to the master's liability for injuries 
 to his servants and decisions by the English 
 courts subsequently rendered are not bind- 
 ing in determining the question of the liabil- 
 ity of the master for injuries occurring 
 within that state. Johnson v. Union P. Coal 
 Co. 28 Utah, 506, 76 Pac. 1089, 67: 506 
 
 14. The term "common law of England," 
 as used in a statute adopting such law as a 
 rule of decision in a state, does not include 
 judicial decisions of English courts rendered 
 subsequently to the independence of Amer- 
 ica. Id. 
 
 15. In ascertaining the rules of the com- 
 mon law the court may look to the de- 
 cisions of other states of the Union as well 
 as to those of the English courts. Seymour 
 v. McAvoy, 121 Cal. 438, 53 Pac. 946, 41 : 544 
 
 16. A statutory adoption of the common 
 law of England, so far as applicable and of 
 a general nature and not in conflict with 
 special enactments, does not preclude the 
 consideration of the expositions of the com- 
 mon law by judicial authorities of our own 
 country in determining what the common 
 law is. Leyson v. Davis, 17 Mont. 220, 42 
 Pac. 775, 31:429 
 [Writ of Error Dismissed by the Supreme 
 Court of the United States in 170 U. S. 36, 
 42 L. ed. 939, 18 Sup. Ct. Rep. 500.] 
 
 17. The adoption by statute of the com- 
 mon law of England as it existed prior to 
 the 4th year of James I. does not prevent 
 the consideration of decisions rendered sub- 
 sequently to that time for the purpose of 
 determining what the common law was. 
 Chilcott v. Hart, 23 Colo. 40, 45 Pac. 391, 
 
 35: 41 
 
 18. The common law was brought into 
 Oklahoma by the settlers on April 22, 1889, 
 unless it had already been established there 
 by the act of Congress of March 1, 1889, es- 
 tablishing a district court of the United 
 States in the Indian territory. McKennon 
 v. Winn, 1 Okla. 327, 33 Pac. 582, 22: 501 
 
 19. The legislative adoption of so much of 
 the common law as is applicable to the con- 
 dition of the state of Washington does not 
 include vendor's liens. Smith v. Allen, 18 
 Wash. 1, 50 Pac. 783, 39: 82 
 
 20. The Hilary rules of pleading are not 
 in force in Mississippi. Alliance Trust Co. 
 v. Nettleton Hardwood Co. 74 Miss. 584, 21 
 &>. 396, 36: 155 
 Revival. 
 
 21. The repeal of a statute which abro- 
 gated a common-la-w rule revives that rule. 
 Beavan v. Went, 155 111. 592, 41 N. E. 91, 
 
 31 : 85 
 Editorial Notes. 
 
 Of United States. 5: 508. 
 Incorporation of common-law principles in 
 constitutional law ; 2 : 
 655.* 
 Adoption of the common law in the United 
 
 States. 22:601. 
 
 Effect of English decisions. 22: 502. 
 Constitutional and statutory adoption 
 of common law. 22: 503. 
 What constitutes the common law 
 adopted. 22: 503.
 
 COMMON PLEAS COMPETITION. 
 
 501 
 
 Adoption in particular matters. 22: 
 504. 
 
 As to remedies. 22: 504. 
 
 Limitation of the adoption. 22: 505. 
 
 In United States courts and territories. 
 22: 506. 
 
 In criminal matters. 22: 507. 
 
 Adoption of British statutes. 22: 508. 
 
 Particular illustrations. 22: 509. 
 
 Repeal of English statutes. 22: 511. 
 When rules of common law differently 
 interpreted in different 
 states. 56:219. 
 Presumption as to common law of other 
 
 state. 21:472. 
 
 Jurisdictions with respect to which pre- 
 sumption in favor of com- 
 mon law may be indulged. 
 67 : 40. 
 
 Conflict between presumption in favor of 
 common law and presump- 
 tion that law *f other ju- 
 risdiction is the same as 
 that of the forum. 67:41. 
 Common-law right of action of parent for 
 loss of services of child 
 killed. 41:807. 
 
 COMMON PLEAS. 
 Jurisdiction of, see Courts, 259. 
 
 COMMON SCHOOLS. 
 
 See Schools. 
 
 COMMON SCOLD. 
 
 Editorial Notes. 
 Cruel and unusual punishment of. 35: 571. 
 
 COMMUNE. 
 Charitable Legacy to, see .Charities, 35. 
 
 COMMUNITY. 
 
 Property Rights of, see Associations, 16, 17. 
 Withdrawal or Expulsion of Member from, 
 see Associations, 22, 23. 
 
 COMMUNITY PROPERTY. 
 
 See Husband and Wife, II. c. 
 
 4 > 
 
 COMMUTATION. 
 Of Tax, see Taxes, 62. 
 
 COMMUTATION BOOK. 
 See Carriers, 596. 
 
 COMMUTATION MONEY. 
 Tax for payment of, see Taxes, 86. 
 
 COMPARATIVE NEGLIGENCE. 
 
 Negligence, see Negligence, 189-191. 
 
 COMPARISON. 
 
 Of Hand Writing Generally, see Evidence, 
 
 825-827, 2128; Jury, 70, 71. 
 By Experts, see Evidence, VII. m. 
 Admissibility of Writings for the Purpose 
 
 of, see Evidence, IV. p. 
 
 COMPENSATION. 
 
 Of Arbitrators, see Arbitration, 17, 22. 
 
 Of Attorney, see Attorneys, II. c. 
 
 Of Corporate Officers, see Corporations, IV. 
 g- 3. 
 
 Of District Attorney, see District and Prose- 
 cuting Attorneys, 5, 6. 
 
 Of Executor or Administrator, see Executors 
 and Administrators, IV. c. 2. 
 
 Of Guardian Ad Litem, see Infants, 55, 69, 
 104. 
 
 Of Judge, see Judges, V. 
 
 Of Employee, see Master and Servant, I. c. 
 
 Of Officer Generally, see Officers, II. b. 
 
 Of De Facto Officer, see Officers, 226-228. 
 
 Of Teacher, see Schools, II. b. 
 
 Of Trustee, see Trusts, 172, 173. 
 
 For Taking of Property, see Eminent Do- 
 main, III. c. 
 
 For Property Destroyed to Protect Health, 
 see Health, IV. 
 
 For Driving Logs, see Logs and Logging, 
 2-4. 
 
 COMPETING RAILROADS. 
 
 Illegal Consolidation of, see Conspiracy, 174- 
 
 177. 
 Judicial Notice as to, see Evidence, 81. 
 
 COMPETITION. 
 
 Contract to Restrain, see Conspiracy, II.; 
 
 Contracts, III. e. 
 Lawfulness of, see Conspiracy, 20, 32. 
 Contract by Corporation to Buy Off, see 
 
 Corporations, 142-144. 
 Injunction against Combination to Prevent, 
 
 see Injunction, 131-152.
 
 502 
 
 COMPILATION COMPROMISE AND SETTLEMENT. 
 
 For Street Paving Contract, see Public Im- 
 provements, 17-18b. 
 
 Editorial Notes. 
 
 Injunction against unfair competition in 
 business. 3: 771.* 
 
 COMPILATION. 
 
 Editorial Notes. 
 
 Of laws, power of legislature to enact or 
 amend by single statute. 
 55: 833. 
 
 COMPILER. 
 
 Editorial Notes. 
 
 Common-law right of compiler of literary 
 materials. 51 : 358. 
 
 COMPLAINT. 
 
 Necessity of, in Contempt Proceedings, see 
 
 Contempt, 66. 
 Necessity of, in Extradition Proceedings, see 
 
 Extradition, 5. 
 
 In Criminal Prosecution, see Indictment, etc. 
 Of Plaintiff, see Pleading, II. 
 
 COMPOSITION WITH CREDITORS. 
 
 Right to Money Received in Accordance 
 with, see Assumpsit, 21. 
 
 A composition for creditors is not made 
 entirely void so as to defeat a recovery on 
 notes given in furtherance thereof, merely 
 because of a secret agreement giving to the 
 holder of them a preference by way of se- 
 curity for other notes given him under the 
 composition. Hanover Nat. Bank v. Blake, 
 142 N. Y. 404, 32 N. E. 519, 27: 33 
 
 Editorial Notes. 
 
 Validity of, generally. 20: 802. 
 New promise after discharge by. 53: 363. 
 Effect of giving one creditor a secret ad- 
 vantage in a composition. 
 27: 33. 
 
 Effect on the composition. 27: 33. 
 
 Action on original claims. 27: 35. 
 
 Contracts to induce assent to a com- 
 position. 27: 36. 
 
 Action for balance. 27: 38. 
 
 Reservation of part of the original 
 claim from the composi- 
 tion. 27 : 38. 
 
 Liability of creditor on obtaining a 
 fraudulent preference. 27: 
 39. 
 
 Composition not general. 27: 39. 
 
 COMPOUNDING CRIME. 
 
 Validity of Note Given for, see Bills and 
 
 Notes, 23, 210. 
 Illegality of Contract for, see Contracts, 
 
 448-451, 641, 642. 
 Evidence of Agreement for, see Evidence, 
 
 2026. 
 Privilege as Witness of One Charged with, 
 
 see Witnesses, 136. 
 
 Editorial Notes. 
 
 As ground of injunction against judgments 
 by confession. 30:' 240. 
 
 Injunction against enforcing contracts for. 
 48: 848. 
 
 Effect of award founded upon. 58: 182. 
 
 COMPOUNDING MEDICINES. 
 
 Partial Invalidity of Statute as to, see Stat- 
 utes, 106. 
 
 COMPOUND INTEREST. 
 See Interest, III. 
 
 COMPRESS COMPANY. 
 
 Breach of Agreement by, to Procure Insur- 
 ance, see Contracts, 732, 748-750. 
 
 COMPRESSED AIR. 
 
 Injury to Employee by Use of, see Master 
 and Servant, 133. 
 
 COMPROMISE AND SETTLEMENT. 
 
 Of Suit, see Attorneys, 54-57; Bills and 
 Notes, 277; Evidence, 1227; Insurance, 
 1267, 1268. 
 
 By Assignee for Creditors, see Assignments 
 for Creditors, 29, and also infra, Edi- 
 torial Notes. 
 
 As Affecting Assignment for Creditors, see 
 Assignments for Creditors, 76. 
 
 Illegality of Contract to Prevent, see Con- 
 tracts, 403. 
 
 By Common Council, Court's Power to Re- 
 view, see Courts, 182. 
 
 Authority to Compromise Claim for Death, 
 see Death, V. and also infra, Editorial 
 Notes. 
 
 Attempt to Make, as Admission of Liability, 
 see Evidence, 1458. 
 
 Privilege as to Evidence of, see Evidence, 
 1484, 1500. 
 
 By Executor, see Executors and Administra- 
 tors, 48, and also infra, Editorial Notes. 
 
 By Guardian, see Guardian and Ward, 5, 
 and also infra, Editorial Notes.
 
 COMPROMISE AND SETTLEMENT. 
 
 503 
 
 Of Claim for Insurance where Insured has 
 Disappeared, see Insurance, 1235. 
 
 Settlement between Partners, see Partner- 
 ship, 102-115, 132-135. 
 
 See also Accord and Satisfaction; Compo- 
 sition with Creditors. 
 
 1. The mere fact that there was a settle- 
 ment between a debtor and creditor which 
 included the amount of a secured claim will 
 not justify a finding that the settlement 
 was in discharge of such claim, where there 
 is nothing to show that the settlement was 
 accepted in satisfaction thereof. Coleman 
 v. Whitney, 62 Vt. 123, 20 Atl. 322, 9: 517 
 What is a proper subject of. 
 
 See also infra, Editorial Notes. 
 
 2. An honest belief of both parties that 
 a claim is doubtful makes it a proper sub- 
 ject of compromise, even if there is a certain 
 defense to it. Smith v. Farra, 21 Or. 395, 
 28 Pac. 241, v 20: 115 
 
 3. A controversy between two persons, 
 actually and in good faith existing, is a 
 proper subject for a binding contract of 
 settlement, no matter what may be the 
 real merits of the claim on either side. 
 Galusha v. Sherman, 105 Wis. 263, 81 N. 
 W. 495, 47:417 
 Consideration for. 
 
 4. Abandonment of legal proceedings 
 which are without merit is no consideration 
 for the revocation of a valid and binding 
 contract. Lukens's Appeal, 143 Pa. 386, 22 
 Atl. 892, 13:581 
 
 5. The settlement of a dispute between 
 the owners of cross veins, who are ignorant 
 of their legal rights, if entered into in good 
 faith, is a sufficient consideration to support 
 a voluntary agreement for the amicable 
 adjustment of the controversy. Coffey v. 
 Emigh, 15 Colo. 184, 25 Pac. 83. 10: 125 
 
 6. In case of a dispute as to whether a 
 partnership has previously existed between 
 the parties, an agreement by the one claim- 
 ing that it did exist, and that he is entitled 
 to share in the profits, that, in consideration 
 of being credited with a given sum and of 
 his being a partner in future, he will waive 
 the claim of previous partnership, is sup- 
 ported by a valid consideration. Wahl v. 
 Barnum, 116 N. Y. 87, 22 N. E. 280, 5: 623 
 
 7. There is sufficient consideration for a 
 contract to settle litigation between corpora- 
 tions, under a patent which both parties 
 suppose to be. but which is not in fact, 
 valid, especially where the contract in- 
 cludes mutual covenants as to -the conduct 
 of their business, and is partly executed 
 before the invalidity of the patent is dis- 
 covered. Gloucester Isinglass & G. Co. v. 
 Russia Cement Co. 154 Mass. 92, 27 N. E. 
 1005, 12: 563 
 
 8. An agreement to reduce the rent, made 
 with a tenant holding over after expiration 
 of a lease for one year payable monthly, and 
 after payment and acceptance of one ad- 
 ditional month's rent, is without consider- 
 ation, and will not prevent recovery of the 
 balance of the monthly rent specified in the 
 lease, even after several years' further 
 
 occupancy with payment at the reduced 
 rate. Goldsbrough v. Gable, 140 111. 269, 29 
 N. E. 722, 15:294 
 
 9. An agreement between all the next of 
 kin of one who died a member of a benefit 
 society, before anyone knew in whose favor 
 the certificate was made payable, that the 
 fund should be collected by the adminis- 
 trator and divided equally among them, is 
 sufficiently supported by consideration in 
 the mutual surrender by each of the chance 
 to receive a larger share, and will be binding 
 on the one who proves to be the beneficiary 
 named. Supreme Assembly R. S. of G. F. 
 v. Campbell, 17 R. I. 402, 22 Atl. 307, 13 : 601 
 
 10. An agreement of the owner of stolen 
 property to permit a bona fide purchaser to 
 retain a part of it if he will surrender the 
 remainder is without consideration, and will 
 not defeat his right to recover the other 
 part after the first portion has been surren- 
 dered. Morgan v. Hodges, 89 Mich. 404, 50 
 N. W. 876, 15: 438 
 
 11. An allegation that a corporation 
 "merely protested" against the use of a cer- 
 tain name by another corporation, where the 
 latter, upon being remonstrated with for 
 using that name, promised not to manufac- 
 ture certain articles, shows no consideration 
 for such promise. Converse v. Hood, 149 
 Mass. 471, 21 N. E. 878, 4: 521 
 As consideration for promise. 
 
 12. A settlement of a disputed claim pre- 
 ferred in good faith by a promisee against a 
 promisor is, in the absence of fraud or 
 duress, a legal consideration for the prom- 
 ise; and the fact that the promisor had a 
 legal defense to the claim settled is no de- 
 fense to an action on the new promise. 
 Wahl v. Barnum, 116 N. Y. 87, 22 N. E. 
 280, 5:623 
 Validity; when binding. 
 
 Of Attorney with Client, see Attorneys, 47. 
 Fraud Avoiding, see Fraud and Deceit, 14. 
 Between Husband and Wife, see Husband 
 and Wife, 112. 
 
 13. A settlement of a real controversy, 
 when free from mutual mistake of fact or 
 mistake upon one side and fraud upon the 
 other, is binding upon the parties thereto, 
 without regard to which gets the best of the 
 bargain, or whether all the gain be in fact 
 on one side and all the sacrifice on the 
 other. Galusha v. Sherman, 105 Wis. 263, 
 81 N. W. 495, 47:417 
 
 14. Where a party competent to act makes 
 a settlement by which he allows his surety 
 50 cents on the dollar for what he has paid 
 for him in checks and deposits on a bank, he 
 cannot afterwards repudiate the agreement 
 merely because such checks and deposits 
 were not actually worth the sum allowed. 
 Southall v. Farish, 85 Va. 403, 7 S. E. 534, 
 
 1: 641 
 
 15. Settlement out of court after an ac- 
 tion is brought, if made without the knowl- 
 edge or consent of the attorney for the 
 plaintiff, is to be viewed with suspicion, 
 especially if the defendant knew of a con- 
 tract giving the attorney supervisory control
 
 504 
 
 COMPROMISE VERDICT COMPULSORY SERVICE. 
 
 over the distribution of the collection. 
 Falconio v. Larsen, 31 Or. 137, 48 Pac. 703, 
 
 37:254 
 
 16. A final settlement by a county with 
 its treasurer for moneys due, for which he is 
 in default, after the expiration of his term 
 of office, without any payment of interest 
 thereon, will preclude the county from 
 thereafter recovering such interest as a mere 
 incident of the debt, without any agreement 
 therefor, although he has received interest 
 on the money from a bank in which he 
 deposited the funds while in office, without 
 any agreement for interest. Maloy v. 
 Bernalillo County Comrs. 10 N. M. 638, 62 
 Pac. 1106, 52: 126 
 
 17. The failure to cancel and surrender a 
 note on receiving another in settlement 
 therefor does not prevent the new note from 
 taking effect when delivered. French v. 
 French, 84 Iowa, 655, 51 N. W. 145, 15: 300 
 Relief from. 
 
 Avoiding Payment of Check, see Banks, 130. 
 
 18. Relief from a settlement and compro- 
 mise of a claim for insurance will be grant- 
 ed where the insured acted without any real 
 consideration, in ignorance of the rights and 
 obligations of the parties, while the insurer 
 had full knowledge thereof and of his igno- 
 rance, and induced him to act by false and 
 fraudulent misrepresentations, although his 
 mistake was in respect to his legal rights 
 Titus v. Rochester German Ins. Co. 97 Ky. 
 567, 31 S. W. 127, 28:478 
 
 Editorial Notes. 
 
 Favored by courts. 13: 601.* 
 
 Must a claim be doubtful to sustain a 
 
 compromise. 15: 438. 
 Claims not in litigation. 15: 438. 
 When legal rights of parties are clear. 
 
 15:438. 
 
 Existence of controversy only. 15: 438. 
 Good faith of parties. 15: 439. 
 Suits threatened and pending. 15: 440. 
 Power of guardian to compromise or settle 
 
 claims of ward. 1: 305.* 
 By personal representative of claim due 
 
 estate. 14: 414. 
 
 Power of president and vice president of 
 
 corporation to compromise 
 
 or settle claims. 14: 359. 
 
 Of action for death, who may make. 21: 
 
 158. 
 
 By assignee for creditors. 23: 578. 
 Effect of mistake of party. 50: 204. 
 Validity of contract between husband and 
 wife to compromise pend- 
 ing or contemplated di- 
 vorce suit. 60: 406. 
 
 COMPROMISE VERDICT. 
 
 As Ground for New Trial, see New Trial, 36, 
 49, 81, 82. 
 
 COMPTROLLER. 
 
 Of Currency, see Banks, 19; 20. 307, 332; | 
 Corporations, 723, 766. 
 
 COMPULSORY ARBITRATION. 
 
 Provision for, in Street Railway Franchise, 
 see Municipal Corporations, 249. 
 
 COMPULSORY EDUCATION. 
 
 As Infringing Parental Rights, see Parent 
 
 and Child, 1. 
 Title of Statute as to, see Statutes. 166. 
 
 247. 
 See also Courts, 124; Schools, 9, 10. 
 
 COMPULSORY REFERENCE. 
 
 See Reference, 4, 5. 
 
 Editorial Notes. 
 
 As a denial of constitutional right to trial 
 by jury. 25: 68. 
 
 COMPULSORY SERVICE. 
 
 By Carrier, see Carriers, III. b. 
 
 By Electric Light Company, see Electric 
 
 Lights, 7, 8. 
 
 By Exchange or Board of Trade, see Ex- 
 changes, 2-5. 
 
 By Gas Company, see Gas, II. 
 By Press Association, see Newspaper, 4; 
 
 Press Associations, 3. 
 By Street Railway Company, see Street 
 
 Railways, 80-84. 
 By Telegraph Company, see Telegraphs, II. 
 
 a. 1. 
 By Telephone Company, see Telephones, 6, 
 
 8-16. 
 
 By Warehousemen, see Warehousemen. 
 Of Ferry, see Ferry, 22-26. 
 Of Water Supply, see Waters, III. b. 2. 
 Due Process as to, see Constitutional Law, 
 
 628. 
 Punitive Damages for Refusal of Telephone 
 
 Service, see Damages, 50. 
 Mandamus to Compel, see Mandamus, 93-98, 
 
 105-114. 
 
 1. Persons or corporations enjoying pub- 
 lic franchises and engaged in public employ- 
 ment owe a duty to the public, as well as 
 to all individuals of the public who in com- 
 pliance with established customs or rules 
 make demands for the beneficial use of the 
 privileges and advantages due to the public 
 by reason of the aid so given by public au- 
 thority. Coy v. Indianapolis Gas Co. 146 
 Ind. 655, 46 N. E. 17, 20, 36: 535 
 
 2. An action for damages cannot be main- 
 tained against members of an undertakers' 
 association for refusal to furnish materials 
 or render services at a funeral for one who 
 has refused or failed to pay for such services 
 previously rendered by some member of the 
 association. Brewster v. C. Miller's Sons, 
 101 Ky. 368, 41 S. W. 301, 38: 505 
 
 3. One has the right to decline to enter
 
 COMPULSORY VACCINATION CONDITION. 
 
 CONCURRENT NEGLIGENCE. 
 
 505 
 
 into a business undertaking with another 
 person, and any number of persons can en- 
 ter into an agreement by which they can de- 
 cline to assume business relations with or 
 enter into any contract with one or more 
 persons. Id. 
 
 Editorial Notes. 
 
 By party whose business it is to serve the 
 
 public. 15:321. 
 Common carriers. 15: 321. 
 Innkeepers. 15: 321. 
 Telephone companies. 15: 321. 
 Telegraph companies. 15: 322. 
 Board of trade. 15: 322. 
 Gas companies. 15: 322. 
 Water companies. 15: 322. 
 Log driving company. 15: 322. 
 
 COMPULSORY VACCINATION. 
 See Health, 19-27; Schools, 14-27. 
 
 COMPUTATION. 
 
 Admissibility in Evidence, see Evidence, 
 
 1009. 
 Of Time, see Time, 10-19. 
 
 CONCEALED WEAPONS. 
 
 Search for, see Search and Seizure, 6. 
 
 CONCEALMENT. 
 
 As a Fraud, see Fraud and Deceit, II. 
 Effect of, on Running of Limitations, see 
 Limitation of Actions, II. e. 
 
 Editorial Notes. 
 
 Of other crime, as motive for crime charged. 
 62: 211. 
 
 CONCILIATION. 
 
 Court of, see Arbitration, 12-14. 
 
 CONCLUSION. 
 
 Opinion as to, see Evidence, VII. 
 Averment of, see Appeal and Error, 104; 
 Pleading, I. f. 
 
 CONCURRENT JURISDICTION. 
 
 Over Waters of Boundary River, see Courts, 
 
 30-37. 
 Over Criminal Offenses, see Criminal Law, 
 
 ILL 
 
 Of Master and Fellow Servant, see Mas- 
 ter and Servant, II. e, 3. 
 
 CONCURRENT PROCEEDINGS. 
 
 Against Accused, see Criminal Law, II. e. 
 
 CONCURRENT REMEDIES. 
 
 See Election of Remedies. 
 
 CONCURRENT RESOLUTION. 
 
 Necessity of Signature of President of Sen 
 ate to, see Parliamentary Law, 14. 
 
 CONDEMNATION. 
 
 Of Property, see Eminent Domain, 196. 
 
 CONDITION. 
 
 Precedent to Suit, see Action or Suit, I. b; 
 
 Insurance, 921-925. 
 To Taking of Appeal, see Appeal and Error. 
 
 III. d. 
 As to Delivery of Note, see Bills and Notes, 
 
 29. 
 To Delivery of Bond, see Evidence, 306; 
 
 Principal and Surety, 14-17. 
 Of Issuance of Municipal Bonds, see Bonds, 
 
 III. b, 4. 
 
 In Railroad Tickets, see Carriers, II. a, 10. 
 In Pass, see Carriers, II. a, 10, c. 
 In Creating Charitable Trust, see Charities. 
 
 44, 54, 63. 
 
 In Contract, see Contracts, IV. d. 
 For Rescission of Contract, see Contracts. 
 
 V. c, 2. 
 To Subscription for Corporate Stock, see 
 
 Corporations, 378, 379. 
 As to Foreign Corporation Doing Business 
 
 within State, see Corporations, 848-855. 
 Right of Entry for Condition Broken, see 
 
 Covenant, 48; Ejectment, 18. 
 In Pardon, see Criminal Law, IV. h. 2. 
 In Deed, see Perpetuities, 2. 
 Distinction Between Covenant and Condi- 
 tion, see Deeds, 40-43. 
 Creation of, by Habendum Clause of Deed, 
 
 see Deeds, 44. 
 
 Parol Evidence of, see Evidence, VI. i. 
 Of Gift, see Gift, 7, 8. 
 Of Guaranty, see Guaranty, II. 
 On Right of Railroad to Use Street, see 
 
 Highways, 148. 
 As to Right to Paid Up Policy, see Insur- 
 ance, 275. 
 In Insurance Contract, see Insurance, III. e. 
 
 IX. 32.
 
 506 
 
 CONDITIONAL FEE CONFESSION OF FAITH. 
 
 To Taking Effect of Lease, see Landlord and 
 Tenant, 8-12. 
 
 In Oil annd Gas Lease, see Mines, 73, 74. 
 
 To Right in Party Wall, see Party Wall, 6. 
 
 Violation of Rule against Perpetuities by, 
 see Perpetuities, 22. 
 
 Allegations as to, see Pleading, 235, 271, 274. 
 
 To Relief from Local Improvement Assess- 
 ment, see Public Improvements, 150, 
 151. 
 
 Relating to Real Property, see Real Prop- 
 erty, I. a, 2; HI. 5. 
 
 To Action for Replevin, see Replevin, 1-6. 
 
 Of Sale, see Sale, I. c. 
 
 For Specific Performance, see Specific Per- 
 formance, 76. 
 
 To Use of Street Car Tracks, see Street 
 Railways, 24-26. 
 
 Tn Telegram, see Telegraphs, II. c. 
 
 For Use of Streets by Telephone Company, 
 see Telephones, 10, 11. 
 
 To Right to Cut Timber, see Timber, 5. 
 
 Imposition of, on Canceling Usurious Con- 
 tract, see Usury, 48. 
 
 To Right to Enforce Land Contract, see Ven- 
 dor and Purchaser, 51. 
 
 In Will, see Perpetuities, 1 ; Wills, III. g. 4. 
 
 Editorial Notes. 
 
 Liability of grantee upon conditions in deed 
 poll. 23: 396. 
 
 Execution of contract on condition that oth- 
 ers shall sign. 45:321. 
 
 CONDITIONAL FEE. 
 See Real Property, I. a, 3; Wills, 272, 273. 
 
 CONDITIONAL LIMITATION. 
 See Wills, HI. g, 6. 
 
 CONDITIONAL PARDON. 
 
 Partial Invalidity of Statute as to, see 
 
 Statutes, 91. 
 See also Criminal Law, IV. h, 2. 
 
 CONDITIONAL SALES. 
 
 Question for Jury as to, see Trial, 233. 
 See also Sale, 1, 34-46, 122-131. 
 
 --* 
 
 CONDONATION. 
 
 In Divorce Case, see Divorce and Separation, 
 44. 
 
 CONDUCT. 
 
 Estoppel by, see Estoppel, III. e. 
 
 CONDUCTION. 
 
 See Electricity, 8. 
 
 CONDUCTOR. 
 
 Authority to Hire Brakeman, see Master and 
 
 Servant, 4. 
 Duty to Furnish on Local Train, see Master 
 
 and Servant, 214. 
 As Fellow Servant, see Master and Servant, 
 
 520-522, 581-587. 
 
 CONDUITS. 
 
 For Telephone Wires, see Constitutional 
 
 Law, 965; Telephones, 5. 
 See also Subway. 
 
 *-- 
 
 CONFEDERATE CERTIFICATE. 
 
 For Public Land, see Public Lands, 24. 
 
 + 
 
 CONFEDERATE MONEY. 
 
 Presumption of Agent's Authority to Re- 
 ceive, see Evidence, 284. 
 Payment in, see Payment, 7. 
 
 Editorial Notes. 
 
 Injunction against enforcing contracts for. 
 
 48: 843. 
 Award on contract for. 58: 183. 
 
 CONFERENCE. 
 
 Of Church, see Religious Societies. 
 
 + 
 
 CONFESSION. 
 
 Evidence of, see Evidence, VIII. 
 Weight of, see Evidence, 2360. 
 Judgment by, see Judgment, I. b; VIII. 6. 
 Jury Trial on, see Jury, 59, 60. 
 Editorial Notes. 
 
 By infants. 36: 208. 
 
 Proof of corpus delicti for purpose of cor- 
 roborating. 68: 50, 64, 68, 
 71, 73. 
 
 Competency and sufficiency of, as evidence 
 before grand jury. 28: 
 318. 
 
 Admissibility of evidence obtained by aid of 
 an involuntary or inadmis- 
 sible confession. 53: 402. 
 
 CONFESSION OF FAITH. 
 
 Change in, see Religious Societies, 11-16, 22.
 
 CONFIDENCE-CONFLICT OF LAWS. 
 
 507 
 
 CONFIDENCE. 
 
 Violation of, see Photographs, 2. 
 
 CONFIDENCE GAME. 
 
 Locality of Prosecution for, see Courts, 46. 
 Attempt to Obtain Money by, see Criminal 
 
 Law, 33. 
 Indictment for Obtaining Money by, see In- 
 
 dictment etc., 50, 107. 
 
 CONFIDENTIAL COMMUNICATIONS. 
 
 See Privileged Communications. 
 
 CONFIDENTIAL POSITIONS. 
 
 Appointment to, see Civil Service, 6, 7. 
 
 CONFIDENTIAL RELATIONS. 
 
 Between Corporation and Its Officers, see 
 
 Corporations, IV. g, 4. 
 Presumption as to, see Evidence, 367-369. 
 
 CONFINEMENT. 
 
 Damages for Delay in Telegram Summoning 
 Physician During, see jJamages, 189. 
 
 Damages for Death of Child During, see 
 Damages, 254. 
 
 Expert Evidence as to Duration of, see Evi- 
 dence, 1283. 
 
 Of Convicted Criminal, see Criminal Law, IV. 
 
 Of Lunatic, see Incompetent Persons, IV. 
 
 CONFIRMATION. 
 
 Of Judicial Sale, see Judicial Sale, IV. 
 
 CONFISCATION. 
 
 In Regulating Street Car Fares, see Consti- 
 tutional Law, 741. 
 
 Assessing Entire Cost of Land Taken for 
 Alley to Owner as, see Eminent Do- 
 main. 209. 
 
 1. The legislature cannot confiscate all 
 property rights of one who has undertaken 
 to make a public improvement xmder his 
 contract, because of his breach of his un- 
 dertaking to obey the provisions of a stat- 
 ute as to the rate of wages to be paid. Peo- 
 ple ex rel. Rodgers v. Coler, 166 N. Y. 1 
 59 N. E. 716, 52:814 
 
 2. An ordinance prohibiting the owner of 
 a dead carcass from removing it, but requir- 
 
 ing him to pay a public contractor for its 
 removal a fee greater than the value of the 
 carcass, is unconstitutional as an indirect 
 confiscation of the property. Knauer v. 
 Louisville, 20 Ky. L. Rep. 193, 45 S. W. 510, 
 46 S. W. 701, 41:219 
 
 3. A statute attempting to prevent a rail- 
 road company extending into the state from 
 another state, in which one of the citizens 
 of the former is injured while in the employ 
 of the railroad company, from setting up the 
 decisions of the latter state in defense of an 
 action brought in the former state to en- 
 force its liability for the injury, is void as 
 an unconstitutional confiscation of its prop- 
 erty rights. Baltimore & O. 8. W. R. Co. v. 
 Read, 158 Ind. 25, 62 N. E. 488, 56: 468 
 
 4 
 
 CONFLICT OF LAWS. 
 
 I. As to Rights. 
 
 a. In General. 
 
 b. As to Contracts; Insurance. 
 
 1. In General. 
 
 2. Negotiable Instruments; 
 
 Bonds ; Mortgages ; Loans ; 
 Interest. 
 
 3. Insurance Matters. 
 
 4. Carriers' Contracts. 
 
 5. As to Telegrams. 
 
 6. Of Married Man or Woman. 
 
 a. Of Married Man. 
 &. Of Married Woman. 
 
 c. Status; Marriage; Domestic Rela- 
 
 tions ; Legitimation. 
 
 d. Corporate Matters. 
 
 1. In General. 
 
 2. Liability of Officers and Stock- 
 
 holders. 
 a. Officers. 
 6. Stockholders. 
 
 e. Torts and Crimes Generally. 
 
 1. Torts Generally; Personal In- 
 
 juries. 
 
 2. Death. 
 
 3. Crimes. 
 
 f. Insolvency; Assignments for Cred- 
 
 itors. 
 
 g. Rights in Property Generally; 
 
 Transfers. 
 
 h. Transfers of Property Generally, 
 i. Chattel Mortgages; Conditional 
 
 Sales. 
 
 j. Descent and Distribution; Wills. 
 II. Remedies. 
 III. Editorial Notes. 
 
 Consideration of, on Appeal, see Appeal and 
 Error, 395. 
 
 As to Jurisdiction over Nonresidents Gener- 
 ally, see Courts, I. b. 
 
 As to Conflict of Authority between Courts, 
 see Courts, IV. 
 
 Judicial Notice of Foreign Laws, see Evi- 
 dence, 15-20. 
 
 Presumption as to Law of Other State, see 
 Evidence, 173-193. 
 
 Admissibility of Judgment of Other State, 
 or County, see Evidence, 872-875. 
 
 Action by Foreign Administrator, see Execu- 
 tors and Administrators, 114-118.
 
 508 
 
 CONFLICT OP LAWS, L a, b, 1. 
 
 Action against Foreign Executors, see Ex- 
 ecutors and Administrators, 124-129. 
 
 Situs of Debt for Purpose of Garnishment, 
 see Garnishment, I. d. 
 
 As to Validity and Effect of Foreign Judg- 
 ments, see Judgment, IV. 
 
 Powers and Rights of Foreign or Ancillary 
 Receivers, see Receivers, VI. 
 
 Extraterritorial Effect of Tax Law, see 
 Taxes, 138. 
 
 As to Venue of Action, see Venue. 
 
 I. As to Rights, 
 a. In General. 
 
 1. A state law which contravenes a valid 
 law of the United States is void. In legal 
 contemplation there can no more be two 
 valid conflicting laws operating upon the 
 same subject-matter at the same time, than 
 in physics two bodies can occupy the same 
 space at the same time. Re N eagle, 14 
 Sawy. 232, 39 Fed. 833, 5: 78 
 
 2. Though the laws of a state do not have 
 extraterritorial force as mere laws, neverthe- 
 less the general rule is that things done in 
 one state in pursuance of the laws thereof 
 are valid and binding in other states. Amer- 
 ican Waterworks Co. v. Farmers' Loan & T. 
 Co. 20 Colo. 203, 37 Pac. 269, 25 : 338 
 Public policy. 
 
 See also infra, 19-23, 26-28, 35-40, 92, 93, 
 108, 114, 122, 169, 242, 260, 323, 224. 
 
 3. A cause of action arising in one state, 
 although it is given by statute, instead of 
 the common law, may be asserted in another 
 state, if the statute is not contrary to the 
 known policy or prejudicial to the interests 
 of the state in which the suit is brought. 
 Nelson v. Chesapeake & O. R. Co. 88 Va. 
 971, 14 S. E. 838, 15: 583 
 
 4. Comity will enforce rights not in their 
 nature local and not contrary to the policy 
 of the government of the tribunal, no mat- 
 ter where arising, and without regard to 
 whether they are of common-law or statu- 
 tory origin. Usher v. West Jersey R. Co. 
 126 Pa. 206, 17 Atl. 597, 4: 261 
 
 5. Comity between different states does 
 not require a law of one state to be executed 
 in another, where it would be against the 
 public policy of the latter state. Pope v. 
 Hanke, 155 111. 617, 40 N. E. fc39, 28: 568 
 Common-law right of action. 
 
 See also infra, 24, 25. 
 
 6. The mere existence of a slight variance 
 of view, not amounting to a fundamental 
 difference of policy, between the state in 
 which a cause of action under the common 
 law arose and that in which it is sought to 
 be enforced, does not deprive the court of 
 the latter state of jurisdiction of the subject 
 matter. Eingartner v. Illinois Steel Co. 94 
 Wis. 70, 68 N. W. 664, 34: 503 
 Statutory cause of action generally. 
 
 As to Liability of Stockholder, see infra, I. 
 
 d, 2, b. 
 See also supra, 3; Statutes. 445. 
 
 7. A cause of action to enforce a liability 
 created solely by statute is local, and can be 
 
 enforced only in that state. Crippen v. 
 La.ighton, 69 N. H. 540, 44 Atl. 538, 46: 467 
 
 8. In all cases where a court is called 
 upon to give effect to a right dependent up- 
 on a foreign statute, it involves the enforce- 
 ment of foreign law, and its action in that 
 regard depends upon the rule of comity. 
 Finney v. Guy, 106 Wis. 256, 82 N. W. 595, 
 
 49: 486 
 
 9. A statute providing that an associa- 
 tion or partnership can be sued in its com- 
 pany name has no extraterritorial force or 
 effect. - Edwards v. Warren Linoline & G. 
 Works, 168 Mass. 564, 47 N. E. 502, 38: 791 
 
 10. A court will not undertake to adjudi- 
 cate rights which originated in any other 
 state or country under statutes materially 
 different from the law of the forum in re- 
 lation to the same subject. Mexican Nat. 
 R. Co. v. Jackson, 89 Tex. 107, 33 S. W, 857, 
 
 31 : 276 
 
 11. It is for the court whose jurisdiction 
 is invoked to determine whether or not the 
 law of a foreign country by which the right 
 claimed must be determined is such that it 
 can properly and intelligently be adminis- 
 tered by that court, with due regard to the 
 rights of the parties. Id. 
 Award. 
 
 12. The doctrine of comity of states can- 
 not be invoked in aid of an award founded 
 upon a claim arising out of an illegal trans- 
 action. Singleton v. Benton, 114 Ga. 548, 40 
 S. E. 811, 58: 181 
 
 b. As to Contracts; Insurance. 
 1. In General. 
 
 As to Statute of Frauds, see infra, 331-335. 
 As to Transfers of Property Generally, see 
 
 infra, I. h. 
 Conclusiveness of Finding as to, see Appeal 
 
 and Error, 835. 
 Place of Making Contract by Telephone, see 
 
 Venue, 7. 
 
 See also infra, 157, 162, 166, 320. 
 For Editorial Notes, see infra, III. 6-8. 
 
 13. A contract made and to be performed 
 in a certain state is to be tested by the law 
 of that state. Crumlish v. Central Improv. 
 Co. 38 W. Va. 390, 18 S. E. 456, 23: 120 
 
 14. Contracts receive their sanction from 
 the law of tne place where they are executed 
 and to be performed, and their interpreta- 
 tion is controlled by that law. Heaton v. 
 Eldridge, 56 Ohio St. 87, 46 N. E. 638, 
 
 36: 817 
 
 15. The place of making the contract is 
 presumably that of its performance, in the 
 absence of anything indicating the contrary. 
 Tillinghast v. Boston & P. R. Lumber Co. 
 39 S. C. 484, 18 S. E. 120, 22 :49 
 
 16. The law declared by state courts to 
 govern contracts made within their jurisdic- 
 tion is conclusive everywhere; and the valid- 
 ity or binding effect of such contracts cannot 
 be affected by any so-called commercial law. 
 Forepaugh v. Delaware, L. & W. R. Co. 128 
 Pa. 217, 18 Atl. 503, 5: 508 
 
 17. An express provision in a contract,
 
 CONFLICT OP LAWS, I. b. 2. 
 
 509 
 
 that it shall be construed to have been made 
 in a certain state, makes it subject to the 
 laws of that state. Union C. L. Ins. Co. v. 
 Pollard, 94 Va. 146, 26 S. E. 421, 36: 271 
 
 18. Courts will not enforce the penal stat- 
 utes or criminal laws of a foreign state; but, 
 by the comity existing between states or 
 sovereigns, contracts and liabilities recog- 
 nized by the laws of the state or country 
 where made or established may be enforced 
 in the courts of the state or country where 
 the action is brought, unless contrary to the 
 policy or laws of the latter. Midland Co. v. 
 Broat, 50 Minn. 562, 52 N. W. 972, 17: 312 
 Public policy. 
 
 See also supra, 3-5, 35-40, 92, 93, 108, 114, 
 122, 242, 260, 334. 
 
 19. A contract of another state, valid 
 where it was made, will not be enforced in a 
 state in which it is forbidden by public pol- 
 icy. Gooch v. Faucette, 122 N. <}. 270, 29 
 S. E. 362, 39: 835 
 
 20. A contract which violates the positive 
 legislation, or the established public policy, 
 of the state of the forum will not be en- 
 forced in that state, although perfectly valid 
 and legal according to the laws of the state 
 or country where it is made. Corbin v. 
 Houlchan/100 Me. 246, 61 Atl. 131, 70: 568 
 
 21. The doctrine of state comity will not 
 be applied in behalf of a corporation seeking 
 to recover upon a claim on a contract ex- 
 pressly prohibited by law, or which is clearly 
 at variance with the settled policy of the 
 state. Seamans v. Temple Co. 105 Mich. 
 400, 63 N. W. 408, 28: 430 
 
 22. A clause in a contract for a tour to 
 conduct entertainments, the performance of 
 which will extend into several countries, 
 that suits upon it shall be brought in the 
 country where the contracting parties are 
 domiciled, is valid, and will be enforced by 
 the courts of other countries. Mittenthal 
 v. Mascagni, 183 Mass. 19, 66 N. E. 425, 
 
 60: 812 
 
 23. One who, in addition to selling liquors 
 in one state to a resident of another one who 
 intends to resell them there in violation of 
 law, does some act in furtherance of the il- 
 legal purpose, cannot resort to the courts 
 of the latter state to enforce payment there- 
 for. Corbin v. Houlehan, 100 Me. 246, 61 
 Atl. 131, 70: 568 
 Common law. 
 
 See also supra, C. 
 
 24. In the absence of proof as to the law 
 of another state by which a contract is to 
 be enforced, the common law, and not the 
 statute law, of the state where the suit is 
 brought will be applied. Cherry v. Sprague, 
 187 Mass. 113, 72 N. E. 456, 67: 33 
 
 25. The courts of New York will construe 
 the common law as applicable to a contract 
 made and to be performed in another state, 
 according to their own precedents, although 
 they will follow the courts of such other 
 state in the construction of its statute law. 
 St. Nicholas Bank v. State Nat. Bank, 128 
 N. Y. 26, 27 N. E. 849, 13: 241 
 
 2. Negotiable Instruments; Bonds; Mort- 
 gages; Loans; Interest. 
 
 See also infra, 51, 108, 109, 250, 330. 
 For Editorial Notes, see infra, III. 3. 
 
 26. A stipulation in a contract that it 
 is to be regarded as one made in a foreign 
 state will not prevent its being treated as 
 a domestic one where it is based on a loan, 
 the application for which is made in the 
 state, to a corporation domiciled and doing 
 business there through a resident agent, and 
 the loan is secured by mortgage upon laud 
 in the state, executed annd acknowledged 
 there, and the money is used there. Wash- 
 ington National Bldg. L. & I. Asso. v. Stan- 
 ley, 38 Or. 319, 63 Pac. 489, 58: 816 
 
 27. The borrowing of money from the lo- 
 cal agent of a foreign loan association which 
 maintains a place of business within the 
 state, and giving the association a mortgage 
 as security through him, is a local contract, 
 although the papers are to be approved, and 
 the money paid at the domicil of the asso- 
 ciation, and the papers expressly state that 
 th^ contract is to be governed by the law of 
 the domicil. Falls v. United States Sav. L. 
 & B. Co. 97 Ala. 417, 13 So. 25, 24: 174 
 
 28. A contract to pay money to a loan 
 association situated in another state at its 
 place of business, made by a resident of one 
 state, who applied to become a member of 
 the association as resident in the foreign 
 state, is to be governed by the laws of its 
 residence, although it had an agency at the 
 place where the borrower resided through 
 which the contract was made. Bennett v. 
 Eastern Bldg. & L. Asso. 177 Pa. 233, 35 Atl. 
 684, 34: 595 
 Bills and notes generally. 
 
 For Editorial Notes, see infra, III. 3. 
 
 29. A note is a contract of the state where 
 it is delivered and payable, although it was 
 sismed in another state by a person resident 
 there. First Nat. Bank v. Shaw, 109 Tenn. 
 237, 70 S. W. 807, 59: 498 
 
 30. A promissory note payable in the state 
 where the payee receives it through the mail 
 is a contract of that state, and not of the 
 one where the maker resides, and where the 
 instrument was executed. Cherry v. 
 Sprague, 187 Mass. 113, 72 N. E. 456, 67: 33 
 
 31. A bill of exchange drawn in Indiana 
 and accepted in Michigan, to be discounted 
 in Indiana and to be paid in Michigan, is an 
 Indiana contract, the liability on which is to 
 be determined by Indiana law. Farmers 
 Nat. Bank v. Sutton Mfg. Co. 6 U. S. App. 
 312, 3 C. C. A. 1, 52 Fed. 191, 17: 595 
 
 32. Delivery of notes into the mail, to be 
 forwarded to another state in accordance 
 with the understanding between maker and 
 payee, completes the delivery so as to make 
 the contract one to be governed by the laws 
 of the state where the postoffice is located. 
 Garrigue v. Keller, 164 Ind. 676, 74 N. E. 
 523, 69: 870 
 
 33. The fact that in using a blank form a 
 note is on its face dated at a certain place 
 and made payable there does not prevent it 
 from being considered a contract of another
 
 510 
 
 CONFLICT OF LAWS, I. b, 2. 
 
 state in which it was delivered, when such 
 was the intention. First Nat. Bank v. 
 Mann, 94 Tenn. 17, 27 S. W. 1015, 27 : 565 
 
 34. The liability of joint makers of a note 
 is controlled by the law of the place where 
 the contract is payable. Hudson Furniture 
 Co. v. Harding, 34 U. S. App. 148, 17 C. C. A. 
 203, 70 Fed. 468, 30: 513 
 Validity. 
 
 35. A note, valid where made, cannot be 
 enforced in another state to whose public 
 policy the transactions which form its con- 
 sideration are contrary. Winward v. Lin- 
 coln, 23 R. I. 476, 51 Atl. 106, 64: 160 
 
 36. Transactions of a broker which be- 
 come the basis of a note given by Ms prin 
 cipal, and which are performed in one state 
 where the note is delivered under directions 
 of the principal by telephone or letter from 
 another state, are, for the purpose of deter- 
 mining the validity of the consideration for 
 the note, to be judged by the law of the 
 place where the broker performed them. Id. 
 
 37. The validity of a note executed and 
 made payable in the state of New York by 
 one of the members of a partnership in In- 
 diana, to pay or secure losses or margins on 
 gambling- or wagering speculations in New 
 York, is to be determined primarily by the 
 law of the state of New York. Sondheim 
 v. Gilbert, 117 Ind. 71, 18 N. E. 687, 5: 432 
 
 38. The validity of a negotiable note in 
 the hands of a bona fide holder in the state 
 where the contract was made, although the 
 consideration of the note was the settle- 
 ment of differences under an illegal option 
 contract, does not require its enforcement 
 by the courts in another state in which the 
 statutes make sueh notes void even in the 
 hands of a bona fide holder, and make the 
 transactions out of which the consideration 
 arose criminal. Pope v. Hanke, 155 ill. 617, 
 40 N. E. 839, 28: 568 
 
 39. Whether or not Ind. Rev. Stat. 1881, 
 4950, making void notes, etc., any part of 
 the consideration of which is money or other 
 valuable thing won on the result of any 
 wager, or to repay money loaned at the 
 time of such wager, etc., applies to a note in 
 the hands of an innocent holder, given and 
 payable in that state for speculation in fu- 
 tures, it will not be construed to invalidate 
 a note in the hands of such a 'holder if exe- 
 cuted and made payable in New York, to be 
 used in purchasing options, or to be put up 
 as a margin in cotton speculations in that 
 state. Sondheim v. Gilbert, 117 Ind. 71, 18 
 N. E. 687, 5: 432 
 
 40. A note to pay a bet on a horse race 
 run in Virginia where such notes are pre- 
 sumed valid, and where the original note of 
 which this is a renewal was given, will not 
 be enforced in North Carolina, even if it is 
 deemed a Virginia contract, since it is 
 contrary to the public policy of the state. 
 Gooch v. Faucette, 122 N. C. 270, 29 S. E. 
 362, _ 39: 835 
 Suretyship on note. 
 
 See also infra, 116-118. 
 
 41. The contract of a surety on a note is 
 complete when his signature is affixed and 
 
 the instrument delivered to the payee, and 
 is therefore governed by the law of the place 
 where those transactions occur, although the 
 note is payable in another state, and as 
 against the makers has no valid inception 
 until its negotiation in the latter State, if 
 the surety has no knowledge that it is to 
 be negotiated there, or intention that his 
 contract shall be governed by the laws of 
 that state. Union National Bank v. Chap- 
 man, 169 N. Y. 538, 62 N. E. 672, 57: 513 
 Indorsement of note. 
 For Editorial Notes, see infra, III. 3. 
 
 42. A contract of indorsement of a prom- 
 issory note is governed by the law of the 
 state where it is made, although the note 
 itself is executed and payable in another 
 state, unless the intention is to negotiate 
 the instrument elsewhere. Spies v. National 
 City Bank, 174 N. Y. 222, 66 N. E. 736, 
 
 61: 193 
 
 43. The right to show that the obligation 
 growing out of an indorsement of a promis- 
 sory note is not absolute, but depends upon 
 a collateral oral agreement, relates to the 
 nature and validity of the contract, and not 
 to the remedy, and is governed by the lex 
 loci contractus. Baxter Nat. Bank v. Tal- 
 bot, 154 Mass. 213, 28 N. E. 163, 13: 52 
 Collection of check. 
 
 44. The sending of a check by a New York 
 bank to a Tennessee bank for collection in 
 Texas does not constitute the contract for 
 collection a Tennessee contract. St. Nicho- 
 las Bank v. State Nat. Bank, 128 N. Y. 26, 
 27 N. E. 849, 13: 241 
 Bonds. 
 
 45. It seems that the validity of a con- 
 tract made in New York for bonds then in 
 litigation in Alabama, and for the payment 
 of the expenses of such litigation, while the 
 bonds were not to be delivered until its ter- 
 mination, is to be determined by the laws 
 of Alabama. Oilman v. Jones, 87 Ala. 691, 
 7 So. 48, 5 So.. 785, 4: Ii3 
 
 46. Railroad-aid bonds issued by a county 
 under a statute authorizing them to bear in- 
 terest at the legal rate at the place where 
 they are made payable are not defeated by 
 the fact that the rate at which they are 
 fixed they being payable in another state 
 is larger than the maximum rate in the 
 state where they are issued. Nelson v. Hay- 
 wood County, 87 Tenn. 781, 11 S. W. 885, 
 
 4: 648 
 
 47. A bond given by the plaintiff in a suit 
 in another state, in conformity with the 
 laws of such state, upon the issuance of a 
 writ of ne exeat, to secure the defendant 
 therein for his costs and damages, gives a 
 right of action under the lex loci, in case 
 of a breach of the bond, which may be en- 
 forced in a foreign jurisdiction; and such 
 jond may be the subject of counterclaim in 
 favor of the obligee, under the laws of Min- 
 nesota, in an action upon contract, brought 
 against him there by the obligor in such 
 bond. Midland Co. v. Broat, 50 Minn. 562, 
 52 N. W. 972, 17: 312
 
 CONFLICT OF LAWS, I. b, 2. 
 
 511 
 
 Mortgages. 
 
 As to Chattel Mortgages, see infra, I. i. 
 
 Law Governing Execution, Acknowledgment 
 
 and Recording of Chattel Mortgage, see 
 
 Chattel Mortgage, 3. 
 See also infra, 54-57, 59, 158, 159, 343. 
 
 48. A loan is an Alabama contract, when 
 the application is made, the money paid over 
 to the borrower, and the notes and mort- 
 gage executed,' in that state, although the 
 debt is made payable in New York and the 
 money was sent from that state to the 
 mortgagee's agent in Alabama, to be paid 
 over on the execution of the papers. Ameri- 
 can Freehold Land Mortg. Co. v. Sewell, 92 
 Ala. 163, 9 So. 143, 13:299 
 
 49. The attempt to enforce a mortgage on 
 land in one state to secure a building asso- 
 ciation loan and contract made in another 
 state does not require the validity of the 
 contract and the amount due under it to 
 be determined by the law of the state where 
 the land is situated. Mcllwaine v. Elling- 
 ton, 49 C. C. A. 446, 111 Fed. 578, 55: 933 
 
 50. A real-estate mortgage made by a for- 
 eign corporation to nonresident creditors to 
 secure a bona fide antecedent debt may be 
 held valid in the. state where the land Is, 
 when it is not prohibited by the statutes of 
 the state in which the corporation and the 
 creditors reside, although the judicial deci- 
 sions in that state hold such a mortgage to 
 be an unlawful preference. Nathan v. Lee, 
 152 Ind. 232, 52 N. E. 987, 43:820 
 
 51. A note and mortgage are contracts of 
 the state where the mortgagee resides, when 
 they are executed in favor of a building 
 and loan association upon an application ad- 
 dressed to it at its home office, where it 
 was to be examined and passed upon by the 
 company's officers, and, if approved, the nec- 
 essary papers were to be filled out and for- 
 warded for execution, after which they were 
 to be returned to the home office for accept- 
 ance, while they expi v essly state that the 
 contract shall be governed by the laws of 
 the residence of the mortgagee, although the 
 land by which the note is secured is located 
 in another state, where the application is 
 signed and delivered to the agent of the 
 mortgagee for transmission to the home 
 office. United States Sav. & L. Co. v. Beck- 
 ley, 137 Ala. 119, 33 So. 934, 62: 33 
 Interest generally. 
 
 52. The date from which a legacy carries 
 interest is to be determined by the law of 
 testator's domicil. Welch v. Adams, 152 
 Mass. 74, 25 N. E. 34, 9:244 
 Rate of interest; usury. 
 
 See also supra. 46. 
 
 For Editorial Notes, see infra, III. 9, 11, 
 26. 
 
 53. The rate of interest on a contract be- 
 tween citizens of different states may be 
 made according to the law of either state. 
 Dtigan v. Lewis. 79 Tex. 246, 14 S. W. 1024, 
 
 12: 93 
 
 54. The law of the state in which a note 
 for money loaned is given, governs on the 
 question of usury, where it is secured by a 
 deed of land located in the state, and part 
 of the money, representing the usury, was 
 
 deducted from the loan, and never paid over 
 to the borrower, although the note is ex- 
 pressly made payable in another state. 
 Martin v. Johnson, 84 Ga. 481, 10 S. E. 
 1092, 8: 170 
 
 55. The law of Texas governs the rate of 
 interest on notes secured by a trust deed 
 given for money borrowed in New York, 
 where the bargain was made and the money 
 and papers delivered by an agent in behalf 
 of a citizen of Texas who signed and dated 
 the papers in the latter state, where the 
 stipulated rate of interest would have been 
 usurious in New York, but not in Texas, and 
 the deed of trust provides that the contract 
 "shall be construed according to the law of 
 the state of Texas, where the same is made." 
 Dugan v. Lewis, 79 Tex. 246, 14 S. W. 1024, 
 
 12: 93 
 
 56. Whether or not a loan by a foreign 
 building and loan association to a resident 
 of the state, secured by mortgage on land 
 within the state, is usurious, will be deter- 
 mined by the local laws, notwithstanding 
 the notes are payable at the domicil of the 
 corporation, if it has localized its business 
 by establishing boards throughout the state 
 to which payments on loans are to be made. 
 National Mutual Bldg. & L. Asso. v. Brahan, 
 80 Miss. 407, 31 So. 840, 57: 793 
 
 57. Whether or not a loan by a foreign 
 building and loan association to a resident 
 of the state, secured by mortgage on land 
 within the state, is usurious, will be deter- 
 mined by the local laws, notwithstanding 
 the notes are payable at the domicil of the 
 corporation, if it has localized its business 
 by establishing boards throughout the state 
 to which payments on loans are to be made. 
 vShannon v. Georgia State Bldg. & L. Asso. 
 78 Miss. 955, 30 So. 51, 57: 800 
 
 58. Courts of a state where a foreign 
 building and loan association is doing bus- 
 iness will not enforce a usurious contract 
 loaning money to one of its citizens, al- 
 though the loan is payable at the domicil 
 of the association, where the contract is 
 valid, if the stipulation for payment there 
 was introduced merely to avoid the local 
 usury laws. Pacific States Savings L. & 
 Bldg. Co. v. Hill, 40 Or. 280. 67 Pac. 103, 
 
 56: 163 
 
 59. The contract of a foreign building as- 
 sociation, made with a citizen of West Vir- 
 ginia, secured by a deed of trust upon real 
 estate situated in this state, and by its 
 terms to be performed in the domiciliary 
 state, must conform to the requirement of 
 the local law with respect to premiums, and, 
 if it does not, such contract is not within 
 the exemption from the operation of the 
 usury laws given by the statute to domestic 
 building and loan associations. Floyd v. Na- 
 tional Loan & Invest. Co. 49 W. Va. 327. 
 38 S. E. 653, 54: 536 
 
 60. Charter privileges as to the rate of 
 interest a corporation may receive on its 
 loans are not available to it in a foreign 
 state, in contravention of the usurv laws. 
 Falls v. United States Sav. L. & B. Co. 97 
 Ala. 417, 13 So. 25, 24: 174
 
 512 
 
 CONFLICT OF LAWS, I. b, 8. 
 
 3. Insurance Matters. 
 
 See also infra, 330. 
 
 For Editorial Notes, see infra, HI. 4. 
 
 61. The local law governs a policy of in- 
 surance on real property delivered to the 
 owner in the state where the property is 
 situated, although the policy was issued by 
 a foreign corporation. Daggs v. Orient Ins. 
 Co. 136 Mo. 382, 38 8. W. 85, 35: 227 
 
 62. A contract with a foreign insurance 
 company, made in another state in which it 
 is valid, but in direct violation of the laws 
 of the state in which the property is situ- 
 ated and in which the insured resides, will 
 not be enforced in the latter state. Swing 
 v. Munson, 191 Pa. 582, 43 Atl. 342, 58: 223 
 
 63. An insurance policy which is not to 
 take effect until it is delivered, after pay- 
 ment of the first premium, is a contract of 
 the state where delivery takes place, and to 
 be governed by its laws; and it is immate- 
 rial that premiums are to be paid and the 
 policy liquidated at the office of the insurer 
 in another state. Metropolitan L. Ins. Co. 
 v. Bradby, 98 Tex. 230, 82 S. W. 1031, 
 
 68: 509 
 
 64. The office of the insurer is the place of 
 contract, where it, in response to the re- 
 quest of a broker not its agent, mails a 
 policy, blank application, and premium note 
 to the property owner in another state, for 
 him to fill the blanks and return 'the ap- 
 plication and note for the approval of the 
 insurer. Seamans v. Knar>r> S. & Co. Com- 
 pany, 89 Wis. 171, 61 N. W. 757, 27: 362 
 
 65. Where a policy of insurance is issued 
 on property in one state by a company in 
 another state, and it does not appear where 
 it was delivered or payable, or where the 
 contract was made or the premium paid, it 
 may be inferred that the contract was made 
 in either state, as readily as in the other. 
 Pennypacker v. Capital Ins. Co. 80 Iowa, 56, 
 45 N. W. 408, 8: 236 
 
 66. An insurance policy is governed oy the 
 law of the state in which it is actually de- 
 livered to the insured and the premium 
 paid by him to the insurer's agent, although 
 it was issued by a foreign corporation in 
 another state, and expressly provides that 
 it shall be construed according to the laws 
 of that state, where it also provides that 
 it shall not be in force until actual payment 
 of the premium. Cravens v. New York L. 
 Ins. Co. 148 Mo. 583, 50 S. W. 519, 53: 305 
 
 67. The contract contained in a mutual 
 benefit certificate, which requires the ben- 
 eficiary to sign an acceptance of its prov*- 
 sions, is made where the contract is con- 
 summated by such acceptance, and subject 
 to the laws there in force. Meyer v. Su- 
 preme Lodge K. of P. 178 N. Y. 63, 70 N. E. 
 Ill, 64: 830 
 
 68. Executing in one state a reinstate- 
 ment of a policy made in another state will 
 not destroy the character of the policy as a 
 contract of the state where it was origi- 
 nally executed. Goodwin v. Provident Sav. 
 L. Assur. Soc. 97 Iowa, 226, 66 N. W. 157. 
 
 32: 473 
 
 Application. 
 
 For Editorial Notes, see infra, III. 4. 
 
 69. A proviso that every life insurance 
 policy containing a reference to the appli- 
 cation must have a correct copy thereof at- 
 tached to it must be limited by the provi- 
 sions of the statute in which it is incorpo- 
 rated; and, if that deals with policies issued 
 in the state, the proviso can have no bearing 
 on policies issued by foreign companies in 
 other states, although they were upon lives 
 of persons domiciled in the state where the 
 statute was passed. Johnson v. Mutual L. 
 Ins. Co. 180 Mass. 407, 62 N. E. 733, 
 
 63: 833 
 
 70. A statute for the regulation of insur- 
 ance contracts, providing that no answer in 
 an application shall bar a recovery unless 
 wilfully false, fraudulently made, material, 
 and one which induced the company to issue 
 the policy, will govern a policy issued by a 
 corporation of that state on property in an- 
 other state when it is expressly made sub- 
 ject to the laws of the former state. Union 
 C. L. Ins. Co. v. Pollard, 94 Va. '146, 26 S. E. 
 421, 36: 271 
 
 71. Applications for insurance sent by 
 mail to another state, where they are passed 
 upon and accepted, and in which policies are 
 dated and signed and then mailed to the in- 
 sured, are governed by the laws of that 
 state, so as to be unaffected by statutes at 
 the residence of the insured prohibiting in- 
 surance by unauthorized foreign companies. 
 State Mut. F. Ins. Co. v. Brinkley Stave & 
 H. Co. 61 Ark. 1, 31 S. W. 157, 29: 712 
 Assignments. 
 
 For Editorial Notes, see infra, III. 4. 
 
 72. The laws of Maryland govern the 
 rights of parties in that state under an as- 
 signment of a life policy issued by a New 
 York corporation to a citizen of Maryland 
 on an application made to an agent of the 
 company in Baltimore. Mutual Reserve 
 Fund L. Asso. v. Hurst, 78 Md. 59, 26 Atl. 
 956, 20: 761 
 Notice before forfeiture. 
 
 For Editorial Notes, see infra, III. 4. 
 
 73. Policies issued and delivered by a New 
 York company in another state are subject 
 to the terms of N. Y. Laws 1892, chap. 690, 
 92, providing that "no life insurance com- 
 pany doin? business in this state" shall de- 
 clare a policy forfeited without having given 
 prescribed notice. Mutual L. Ins. Co. v. 
 Dingley, 40 C. C. A. 459, 100 Fed. 408, 
 
 49: 132 
 
 74. A provision of an insurance policy 
 issued by a corporation of one state to a 
 resident of another state, that notice as to 
 payment of premiums, as stated in the pol- 
 icy, is given and accepted by its delivery, 
 and "any further notice required by any 
 statute is waived," expressly makes inap- 
 plicable a statute of the state where the in- 
 surer is domiciled, requiring certain notices 
 to be given before policies can be forfeited 
 for nonpayment of premiums. Metropoli- 
 tan L. Ins. Co. v. Bradley, 98 Tex. 230. 
 82 S. W. 1031. 68: 509 
 
 75. A statute forbidding the forfeiture by 
 local corporations of insurance policies for
 
 CONFLICT OF LAWS, I. b, 4. 
 
 513 
 
 nonpayment of premiums, until a certain 
 time after notice of the amount and date of 
 payment has been mailed to the insured at 
 his last known postoffice address "in thi 
 state," does not apply to policies issued in 
 other states, unless expressly made appli- 
 able by the terms of the policy. Id. 
 
 76. Policies of insurance made and execut- 
 ed in New York, reciting that they are pay 
 able there, and that premiums are to be 
 paid there, and containing a waiver of the 
 service of notices required by statute, which 
 reference is to a New York statute, are to be 
 governed by the laws of that state, where 
 the applications therefor recite that they 
 are subject to the laws of New York, al- 
 though they are made in another state where 
 the applicant resides and where the policies 
 are delivered to him by an agent of the in- 
 surer upon payment of premiums. Mutual 
 L. Ins. Co. v. Dingley, 40 C. C. A. 459, 100 
 Fed. 408, \ 49: 132 
 Extensions after forfeiture. 
 
 77. Life policies issued by foreign com- 
 panies, which do not take effect until they 
 are delivered to the insured and premium 
 collected from him in the state, are subject 
 to Mo. Rev. Stat. 1879, 5983, 5985, pro- 
 viding for extensions of the policy for the 
 full sum for such time as three fourths of 
 the net revenue will pay for, in case of de- 
 fault after two full annual premiums have 
 been paid, notwithstanding provisions lor 
 forfeiture in the policies. Cravens v. New 
 York L. Ins. Co. 148 Mo. 583, 50 S. W. 519, 
 
 53: 305 
 Adjustment of claims. 
 
 78. The right to contract for the adjust- 
 ment of a claim on an insurance policy for- 
 feited for nonpayment of premiums, accord- 
 ing to the laws of the insurer's domicil, al- 
 though the insurance is upon the life of a 
 person residing in another state where the 
 contract is made, is accorded by a statute of 
 the latter state providing for such adjust- 
 ment, but making its provisions inapplicable 
 to policies issued by foreign companies au- 
 thorized to do business in the state where 
 the laws of their domicil provide for con- 
 tinued insurance upon such forfeiture. 
 Nichols v. Mutual Life Ins. Co. 176 Mo. 355, 
 75 S. W. 664.. 62: 657 
 
 79. Leaving it optional with insured as to 
 the kind of policy he will take in the ad- 
 justment of a claim upon a policy forfeited 
 for nonpayment of premium does not pre- 
 vent the application of a proviso of the local 
 statute making inapplicable its provisions as 
 to such adjustment, where the laws of the 
 state of the insurer's domicil, with respect 
 to which the parties have agreed the con- 
 tract shall be construed, provide for the 
 methods of adjustment which the local stat- 
 ute requires to make its provisions inappli- 
 cable. Id. 
 Extent of recovery. 
 
 For Editorial Notes, see infra, III. 4. 
 
 80. The provision of Wis. Rev. Stat. 
 1943, conclusively establishing the value of 
 insured real property when wholly de- 
 stroyed, at the amount of insurance written 
 in the policy, applies to contracts made in 
 
 L.R.A. Dig. 33. 
 
 other states as well as in Wisconsin, where 
 the real property is situated in that state. 
 Seyk v. Millers Nat. Ins. Co. 74 Wis. 67. 
 41 N. W. 443, 3: 523 
 
 Rights of claimants under policy. 
 For Editorial Notes, see infra, III. 4. 
 
 81. The law of the state in which a con- 
 tract of life insurance is made by a resident 
 thereof will control as to the rights of his 
 creditors and beneficiaries instead of the law 
 of another state in which the beneficiaries 
 reside, or of another state in which tin- 
 insurance company is located and the policy 
 payable. Roberts v. Winton, 100 Tenn. 484. 
 45 S. W. 673, 41 : 275 
 
 82. The rights of claimants of life insur- 
 ance are to be determined by the law of the 
 state in which the applicant resided, made 
 his application, and received the policy, al- 
 though the application was sent by an agent 
 to the home office of the company in another 
 state, where it was accepted and the policy 
 returned to the agent, and there was a 
 stipulation that the premiums and the sum 
 insured were to be" paid in that state. Mil- 
 lard v. Brayton, 177 Mass. 533, 59 N. E. 436, 
 
 52: 117 
 
 83. The words "heirs at law," in a benefit 
 certificate made in Massachusetts by inhabi- 
 tants of that state, must be construed in an- 
 other state as they would be in Massachu- 
 setts. Mullen v. Reed, 64 Conn. 240, 29 Atl. 
 478, 24: 664 
 
 4. Carriers' Contracts. 
 
 For Editorial Notes, see infra, III. 2. 
 
 84. The interpretation and validity of a 
 contract for carriage over a railroad are to 
 be governed by the law of the state where 
 the contract is made. Davis v. Chicago, M. 
 & St. P. R. Co. 93 Wis. 470, 67 N. W. 16, 
 
 33: 654 
 
 85. The law of a state in which a contract 
 for carriage is made controls as to its na- 
 ture, interpretation, and effect if it is en- 
 tire and indivisible, although it is to be per- 
 formed partly in that state and partly in 
 another. Illinois C. R. Co. v. Beebe, 174 111. 
 13, 50 N. E. 1019, 43: 210 
 
 86. A contract in a bill of lading for a 
 shipment from Boston to Atlanta, although 
 it would not have been a good contract if 
 made in Georgia, not being intended to take 
 effect wholly in Georgia, can be enforced in 
 that state if it is a good contract in Massa- 
 chusetts. Western & A. R. Co. v. Exposi- 
 tion Cotton Mills, 81 Ga. 522, 7 S. E. 916. 
 
 2: 102 
 
 87. A contract for transportation from 
 Liverpool to New York, made in England be- 
 tween a citizen of the United States and a 
 British shipowner, is an English contract 
 governed by the laws of England, in the ab- 
 sence of anything to show an intent that it 
 is to be controlled by the laws of the United 
 States. Potter v. The Majestic, 20 U. S. 
 App. 503, 9 C. C. A. 161, 60 Fed. 624, 23: 74G 
 [Rev'd by the Supreme Court of the Unit- 
 ed States in 166 U. S. 375, 41 L. ed. 1039, 
 17 Sup. Ct. Rep. 597.]
 
 514 
 
 CONFLICT OP LAWS, I. b, 5. 
 
 88. The law of the state in which a con- 
 tract of interstate transportation was made, 
 and in which the performance begins, can- 
 not govern the contract so far as it con- 
 flicts with the Act of Congress to Regulate 
 Commerce. Southern R. Co. v. Harrison, 119 
 Ala, 539, 24 So. 552, 43: 385 
 
 89. A contract safely to carry property 
 from one state to another, and deliver it at 
 a point in the latter, is broken in the former 
 state when a fire consumes the property 
 there so as to prevent the further perform- 
 ance of the contract. Cleveland, C. C. & St. 
 L. R. Co. v. Druien, 118 Ky. 237, 80 S. W. 
 778, 66:275 
 
 90. A special contract between a railroad 
 company and a shipper, for transporting a 
 car load of live stock and emigrant movables 
 to a point in another state is to be inter- 
 preted according to the law of the state in 
 which the contract was made. Meuer v. 
 Chicago, M. & St. P. R. Co. 5 S. D. 568, 59 
 N. W. 945, 25: 81 
 Limiting liability. 
 
 Conclusiveness of Judgment of Other State 
 
 as to, see Judgment, 346. 
 See also Commerce, 65, 68. 
 For Editorial Notes, see infra, III. 2. 
 
 91. In case of a breach of a carriage con- 
 tract in a state whose Constitution prohib- 
 its the carrier from contracting to limit its 
 common-law liability, the carrier cannot, in 
 the courts of that state, have the benefit of a 
 contract valid where made in another state 
 limiting such liability. Adams Exp. Co. v. 
 Walker, 26 Ky. L. Rep. 1025, 83 S. W. 106. 
 
 67: 412 
 
 92. The courts of a state whose public pol- 
 icy forbids the limitation of a carrier's lia- 
 bility by contract will not enforce a con- 
 tract for such limitation as to property neg- 
 ligently injured within the state while being 
 shipped on through bill of lading into the 
 state from another, where the contract was 
 made and where it is valid, at least where 
 the contract is not entire, but the portion to 
 be performed within the state is a separate 
 contract upon a separate consideration. 
 Hughes v. Pennsylvania R. Co. 202 Pa. 222, 
 51 Atl. 990, 63: 513 
 
 93. A contract to cajry a passenger, ex- 
 empting the carrier from liability even for ! 
 negligence, if it was valid where it was 
 made, will be upheld by the courts of a state 
 in which such contracts are held void as 
 against public policy. Fonseca v. Cunard S. 
 S. Co. 153 Mass. 553, 27 N. E. 665. 12: 340 
 
 94. A contract of carriage exempting the 
 carrier from liability for negligence, which 
 is valid under the laws of the state where it 
 is made and is to be wholly performed, the 
 alleged breach occurring in that state, ia 
 enforceable in Pennsylvania courts, although 
 such a contract would be invalid under the 
 law of Pennsylvania. Forepaugh v. Dela- 
 ware, L. & W. R. Co. 128 Pa. 217, 18 Atl. 503. 
 
 5: 508 
 
 95. The courts of one state will uphold 
 a contract made in another where it was 
 valid, limiting the liability of a carrier for 
 loss of property in its possession for trans- 
 portation, by fire not caused by its negli- 
 
 gence, where the loss occurred in the state 
 where the contract was made, although the 
 shipment was to extend into the state 
 where the action is brought, by the Consti- 
 tution of which the contract would have 
 been invalid. Cleveland, C. C. & St. L. R. 
 Co. v. Druien, 118 Ky. 237, 80 S. W. 778, 
 
 66:275 
 
 96. The prohibition against contracts by 
 common carriers for relief against their 
 common-law liability, which is contained in 
 Ky. Const. 196, does not make it unlaw- 
 ful for a railroad corporation created by the 
 authorities of that state to make a contract 
 in another state limiting its liability for 
 a transportation of goods between points 
 in other states, and which is to be per- 
 formed entirely outside of the state of Ken- 
 tucky. Tecumseh Mills v. Louisville & N. 
 R. Co. 108 Ky. 572, 57 S. W. 9, 49: 557 
 
 6. As to Telegrams. 
 
 97. The place from which a telegram is 
 sent to another state is the place of the con- 
 tract made by the message, in the absence 
 of anything therein to the contrary. Til- 
 linghast v. Boston & P. R. Lumber Co. 39 
 S. C. 484, 18 S. E. 120, 22: 49 
 
 98. A contract relating to what is to be 
 done in Massachusetts, dated and signed 
 there and sent to a foreign country for 
 acceptance, which is to be signed by tele- 
 gram sent to the signers there, is a Mas- 
 sachusetts contract, governed by its laws. 
 Meyer v. Estes, 164 Mass. 457, 41 N. E. 683, 
 
 32: 283 
 
 99. A contract made in Iowa for the 
 transmission of a telegram from a place in 
 that state to a place in Missouri is governed 
 by the laws of Iowa making the proprie- 
 tor of the telegraph liable for all mistakes 
 in transmission. Reed v. Western U. Teleg. 
 Co. 135 Mo. 661. 37 S. W. 904, 34: 492 
 
 100. The validity and interpretation of 
 the contract, as well as the rule measuring 
 the damages arising upon its breach and 
 the company's liability therefor, are to be 
 determined by the laws of the state where 
 a telegram is filed for transmission in case 
 the points of inception and termination are 
 in different states. Hancock v. Western U. 
 Teleg. Co. 137 N. C. 497, 49 S. E. 952, 
 
 69: 403 
 
 101. That a contract for transmission of 
 a telegram is made in a state .the laws of 
 which do not allow damages for mental an- 
 guish for its breach will not prevent a re- 
 covery of such damages for neglect to 
 promptly deliver it in a state whose stat- 
 utes make such neglect a public offense, 
 subjecting the offender to liability for the 
 injuries thereby caused, and whose courts 
 permit the consideration of mental anguish 
 in fixing the damages. Gray v. Western U. 
 Teleg. Co. 108 Tenn. 39, 64 S. W. 1063, 
 
 56: 301 
 
 102. The interpretation by the courts of 
 the state where it is passed, of a statute 
 requiring the transmission of telegran.s 
 upon payment of the usual charges accord- 
 ing to the regulations of the company,
 
 CONFLICT OF LAWS, I. b, 6. 
 
 515 
 
 as authorizing a provision in the contract 
 exempting the company from liability for 
 mistakes in the absence of payment of a 
 small additional fee to insure accuracy, as 
 binding in other states, so that recovery 
 cannot be had there, in the absence of such 
 payment, for a mistake in transmitting a 
 telegram sent under a contract containing 
 such provision made in the former state, 
 although the courts in which the action is 
 brought would not so have interpreted the 
 statute. Shaw v. Postal Teleg. Cable Co. 
 79 Miss. 670, 31 So. 222, 56: 486 
 
 103. If, under the statutes of a state 
 where a contract for transmission of a ci- 
 pher telegram is made, a provision in the 
 contract is valid which exempts the com- 
 pany from liability for mistakes unless a 
 small additional fee is paid to insure accu- 
 racy, liability for mistakes cannot be en- 
 forced in another state in the absence of 
 such payment, although by its'hvws the pro- 
 vision would be invalid. Id. 
 
 6. Of Married Man or Woman. 
 
 a. Married Man. 
 
 104. The validity of a sale by a husband 
 to his wife, of land situated in Louisiana, is 
 to be determined by the law of Louisiana. 
 Rush v. Landers, 107 La. 549, 32 So. 95, 
 
 57: 353 
 
 105. A covenant by a married man, valid 
 in the state in which it was made, to sur- 
 render all his marital rights in land of his 
 wife situated in Massachusetts, will be en- 
 forced in the latter state. Poison v. 
 Stewart, 167 Mass. 211, 45 N. E. 737. 
 
 36: 771 
 
 106. The validity of a covenant made in 
 North Carolina, in which state the parties 
 are domiciled, by a married man to surren- 
 der all his marital rights in certain land of 
 his wife located in Massachusetts, in con- 
 sideration of his wife's releasing her dower 
 interest in the husband's lands, after she 
 has been made a free trader, is governed by 
 the law of North Carolina. Id. 
 
 6. Married Woman. 
 
 As to Release of Right of Action for In- 
 juries, see Release, 4. 
 See also infra, 326-. 
 For Editorial Notes, see infra, III. 5. 
 
 107. Engagements which coverture pre- 
 vents a woman from making herself she 
 rannot make through the interposition of an 
 agent whom she assumes to constitute as 
 such in the state of her domicil. Freeman's 
 Appeal, 68 Conn. 533, 37 Atl. 420, 37: 4f>2 
 
 108. A married woman sued in the state 
 of her domicil may avail herself of the pro- 
 tection of its statute allowing her to plead 
 coverture as a defense to her contracts, 
 when sued there on a note delivered and 
 payable in another state where such de- 
 fense would not be recognized. First Nat. 
 
 Bank v. Shaw, 109 Tenn. 237, 70 S. W. 807, 
 
 59: 498 
 
 109. The validity of an order drawn by a 
 married woman upon the executor of her 
 father's estate must be determined by the 
 laws of her domicil, when she signs the in- 
 strument and it is accepted by the executor 
 in that state, although it is dated in an- 
 other state and after its execution it is 
 mailed by an agent of the payee of the order 
 to such payee in another state. Freeman's 
 Appeal, 68 Conn. 533, 37 Atl. 420, 37: 452 
 Sale of real property. 
 
 For Editorial Notes, see infra, III. 5. 
 
 110. The law of the place where the land 
 is located, respecting the privy examination 
 of a married woman, and not that of her 
 residence, will govern in determining the 
 validity of her deed of real estate. Smith 
 v. Ingram, 130 N. C. 100, 40 S. E. 984, 
 
 61 : 878 
 
 111. A married woman authorized by de- 
 cree of court to buy, sell, and convey both 
 real and personal property as a feme sole, 
 has no power to convey real property in 
 another state, to which she subsequently re- 
 moves, without the joinder of her husband, 
 when, by the laws of that state, a married 
 woman cannot lawfully convey property 
 without the joinder of her husband. Wall- 
 ing v. Christian & C. Grocery Co. 41 Fla. 
 479, 27 So. 46, 4V : 608 
 
 112. The status of a married woman in 
 one state where she is emancipated from the 
 disabilities of coverture cannot dispense 
 with or in any manner affect the laws of 
 another state in which her real estate is 
 situated, with reference to a conveyance 
 thereof, or the prerequisites for registration 
 of deeds, as against creditors. Robinson v. 
 Queen, 87 Tenn. 445, 11 S. W. 38, 3: 214 
 Sale of goods. 
 
 113. A contract for the sale of goods, 
 made by an order given by a married wom- 
 an in North Carolina to a firm in Maryland, 
 and its shipment of the goods in Maryland, 
 is a Maryland, and not a North Carolina, 
 contract. Armstrong v. Best, 112 N. C. 59, 
 17 S. E. 14, 25: 188 
 Contracts of suretyship. 
 
 113a. A contract for the purchase of 
 goods, made in another state where it is 
 valid, by a married woman resident in 
 North Carcjina, where the common-law dis- 
 ability of married women still obtains, and 
 their promises under the policy of the state 
 are void, and no power exists to proceed to 
 judgment against them in personam, will 
 not be enforced in the latter state. Arm- 
 strong v. Best, 112 N. C. 59, 17 S. E. 14, 
 
 25: 188 
 
 114. The statute of New Jersey that 
 regulates the right of married women to 
 make contracts of suretyship is not a 
 declaration of a public policy that closes 
 the courts of that state to rights of action 
 arising in other jurisdictions where the law 
 is different. Thompson v. Taylor (N. J. Err. 
 & App.) 66 N..J. L. 253, 49 Atl. 544. 
 
 54: 585 
 
 115. A contract of suretyship against a 
 married woman, which is valid in the statr-
 
 516 
 
 CONFLICT OF LAWS, I. c. 
 
 where made, is not unenforceable in another 
 state, as violative of its public policy, mere- 
 ly because its statutes forbid her to bind 
 herself bv such a contract. Garrigue v. 
 Keller, 164 Ind. 676, 74 N. E. 523, 69: 870 
 
 116. That a note for the payment of 
 which a married woman becomes surety is 
 made payable in a state where such contract 
 is invalid will not, although the suit is 
 brought in that state, defeat her liability if 
 the contract was valid at her domicil, where 
 it was executed. Id. 
 
 117. The written promise of a married 
 woman domiciled in New Jersey, to pay a 
 sum of money to the order of her husband, 
 signed by her at her domicil, and carried by 
 him, with her acquiescence, to New York, 
 and there indorsed, and delivered in ex- 
 change for other notes of like import, is a 
 contract made in the state of New York; 
 and the capacity of the wife to bind herself 
 by a contract of suretyship is to be de- 
 termined by the law of that state, so that 
 if valid in the state of New \ork it may 
 be enforced against her in New Jersey, al- 
 though the contract, if made there, would 
 be void. Thompson v. Taylor (N. J. Err. & 
 App.) 66 N. J. L. 253, 49 Atl. 544, 54: 585 
 
 118. A note executed by a married woman 
 as surety for a firm of which her husband 
 is a member, in a state where the makers 
 reside and where the note is payable, if 
 valid in" that state, may be enforced against 
 her in the courts of another state, although 
 
 . if made in the latter state it would have 
 been void. Robinson v. Queen, 87 Tenn. 
 445, 11 S. W. 38, 3: 214 
 
 Guaranty. 
 
 119. A guaranty executed by a married 
 woman in the state of her residence, where 
 the law does not give her capacity to exe- 
 cute it, does not become valid on its delivery 
 in another state by her agent whose agency 
 is created in the state of her residence. 
 Freeman's Appeal, 68 Conn. 533, 37 Atl. 420. 
 
 37:452 
 
 c. Status; Marriage; Domestic Relations; 
 Legitimation. 
 
 As to Contracts of Married Man or Woman, 
 
 see supra, I. b, 6. 
 Effect of Married Woman's Removal to 
 
 Other State on Rights of Trustee, see 
 
 Trusts, 124. 
 
 See also infra, 167, 282, 283, 304-308. 
 For Editorial Notes, see infra, HI. 20. 
 
 120. The status given a man by the laws 
 of his domicil will not be recognized in 
 other jurisdictions when it is constructed on 
 principles contrary to those generally recog- 
 nized, or to those which can be admitted by 
 the laws of the forum. Adams v. Adams. 
 154 Mass. 290, 28 N. E. 260, 13: 275 
 Marriage. 
 
 Presumption as to Evasion of Law against 
 Remarriage of Divorced Person, see 
 Evidence, 349. 
 
 See also infra. 245-247. 
 
 For Editorial Notes, see infra, III. 18. 
 121. The validity of a marriage is to be 
 
 determined by the law of the place where 
 the marriage is solemnized; and a marriage 
 legal where solemnized is valid everywhere. 
 Hills v. State, 61 Neb. 589, 85 N. W. 836, 
 
 57: 155 
 
 122. A marriage valid in the state in 
 which it is contracted will be recognized as 
 valid in another state if it does not contra- 
 vene the declared policy of the positive law 
 of the latter, although it may have been 
 made without the form or ceremony re- 
 quired in the latter state. Jackson v. Jack- 
 son, 82 Md. 17, 33 Atl. 317, 34: 773 
 
 123. A minor's marriage valid in the state 
 where it is made is not invalid in the state 
 of his residence because of the fact that he 
 went out of the state to be married, for the 
 sole purpose of evading a statutory pro- 
 vision requiring his father's consent. Com. 
 v. Graham, 157 Mass. 73, 31 N. E. 706, 
 
 16: 578 
 
 124. All marriages solemnized in another 
 state, by parties intending at the time to re- 
 side in Georgia, have the same legal effect 
 as if solemnized in the latter state; and 
 parties residing in Georgia cannot evade the 
 provisions of its laws as to marriage by 
 going into another state for the solemniza- 
 tion of the ceremony. State v. Tutty, 41 
 Fed. 753, 7: 50 
 
 125. Where the statutory law is silent as 
 to the effect of marriage between persons 
 domiciled in the state, and who leave it 
 with the purpose of solemnizing the mar- 
 riage elsewhere, to evade such laws, but in- 
 tending to return and live therein, the mar- 
 riage may be upheld where the inhibition 
 relates to form, ceremony, or qualifications 
 depending on age or like condition. Id. 
 
 126. Where the state has enacted legis- 
 lation declaratory of the effect of mar- 
 riages extraterritorial, of its citizens who 
 seek to evade its positive policy and penal 
 laws, the statute affords the rule of de- 
 cision. Id. 
 
 127. The marriage of a ward, solemnized 
 in a sister state where it is valid, is not void 
 because no license was procured with the 
 consent of the guardian, as required by the 
 laws of his domicil, nor because such laws 
 render void all his contracts. Ex parte 
 Chace, 26 R. I. 351, 58 Atl. 978, 69: 493 
 
 128. The marriage of a ward, valid where 
 made in a sister state, must be regarded as 
 valid at his domicil, although it would not 
 have been so had it been solemnized there 
 because of statutory limitation of his right 
 to contract. Id. 
 
 129. The law of one state declaring that 
 cohabitation for a period of years is proof 
 of marriage is not effective in another state 
 to dissolve a former marriage of one of the 
 parties to a person residing there. Re 
 Newman's Estate, 124 Cal. 688, 57 Pac. 686, 
 
 45: 780 
 
 130. A marriage on the high seas, where 
 there is no law regulating the manner of 
 perform insr the same, entered into by the 
 parties with the avowed purpose of evading 
 the laws of the state of their residence, is 
 not within Cal. Civ. Code, 63, validating 
 all marriages without the state which would
 
 CONFLICT OF LAWS, I. c. 
 
 517 
 
 'be valid if by the laws of the country in 
 which the same were contracted." Norman 
 v. Norman, 121 Cal. 620, 54 Pac. 143, 
 
 42: 343 
 
 131. The claim that marriage is a natural 
 right, of which no government will allow its 
 subjects, wherever abiding, to be deprived, 
 if they are sojourning in a place where there 
 is no way under the local law by which they 
 can enter into a valid marriage, will* not 
 avail at the residence of the parties to sus- 
 tain a marriage on the high seas, where 
 there is no law regulating the subject, if 
 the parties went there to evade the laws of 
 their residence. Id. 
 
 132. The marriage in another state where 
 it is valid, of a divorced person incapable of 
 remarrying by the law of his domicil, will 
 not be held void under the law of his domi- 
 cil unless the statute expressly so provides, 
 although he went outside the state for the 
 express purpose of evading the law, and im- 
 mediately returned. State v. Shattuck, 69 
 Vt. 403, 38 Atl. 81, 40: 428 
 
 133. The marriage in another state, where 
 it is lawful, of a divorced man and his para- 
 mour, who go there to evade the law of 
 their domicil, which prohibits their marriage 
 during the life of the former wife, is not 
 valid in the latter state. Re Stull, 183 Pa. 
 625, 39 Atl. 16, 39: 539 
 
 134. Statutory prohibition to remarry 
 within a certain time after divorce has no 
 force out of the state in which the decree is 
 granted. Phillips v. Madrid, 83 Me. 205, 22 
 Atl. 114, 12: 862 
 
 135. The Maine statute prohibiting the 
 guilty party in a divorce suit to remarry 
 applies only to divorces granted by the 
 courts in that state. Id. 
 
 136. A marriage contracted in another 
 state by a resident of Oregon, who has been 
 divorced in that state by a decree from 
 which there is yet time to take an appeal, 
 is absolutely void under 1 Hill's (Or.) Ann. 
 Laws, 503, providing that a divorce de- 
 cree shall terminate the marriage "except 
 that neither party shall be capable of. con- 
 tracting marriage with a third person" until 
 the expiration of the period allowed for an 
 appeal. McLennan v. McLennan, 31 Or. 480. 
 50 Pac. 802, 38: 863 
 
 137. A marriage valid where contracted, 
 in another state, between a man and one for 
 adultery with whom he was divorced in a 
 state tr> which he returns immediately after 
 the marriage nnd while his former wife is 
 still living, will not be recognized by the 
 courts of the latter state to the extent of 
 permitting him to sue for her property, 
 where the statutes prohibit marriage be- 
 tween a divorced person and his paramour, 
 although in contracting the marriage there 
 was no intent to evade the laws of the state 
 where the divorce was granted. State vise 
 of Newman v. Kimbrough (Tenn. Ch.) 59 S. 
 W. 1061, . 5z: 668 
 
 138. Disobedience of a provision in a de- 
 cree of divorce prohibiting the offender 
 under penalty from marrying again during 
 the life of the former wife will not make 
 his subsequent marriage in another state 
 
 with a woman who was igno.-ant of such 
 prohibition void; but the marriage will be 
 recognized for the protection of the innocent 
 wife and her children. Crawford v. State, 
 73 Miss. 172, 18 So. 848, 35: 224 
 
 139. The prohibition of the statute of 
 New York to the effect that no second or 
 other subsequent marriage shall be con- 
 tracted by any person during the lifetime of 
 any former husband or wife of such person, 
 in case the former marriage be annulled or 
 dissolved on the ground of adultery, has no 
 extraterritorial effect, being a penal statute; 
 and it cannot be given the effect of annul- 
 ling a contract of marriage between per- 
 sons at the time residing abroad, from one 
 of whom a divorce had been obtained in an- 
 other state for adultery, notwithstanding it 
 was solemnized in the city and state of 
 New York, the contracting parties an- 
 nouncing their intention to be to thereafter 
 reside in Louisiana, and afterwards actual- 
 ly residing there. Re Hernandez's Succes- 
 sion, 46 La. 962, 15 So. 461, 24: 831 
 Relations between husband and wife gen- 
 erally. 
 
 See also infra, 199, 210. 
 
 For Editorial Notes, see infra, III. 13. 
 
 140. A wife is authorized to acquire a 
 separate domicil, where the conduct of the 
 husband justifies her in leaving him, and 
 furnishes grounds for a divorce; a n d the 
 law of the domicil so acquired will de- 
 termine her marital status. Benton's Suc- 
 cession, 106 La. 494, 31 So. 123, 59: 135 
 
 141. Whether a husband becomes the 
 debtor of his wife by receiving and using 
 money which she has received from her first 
 husband must be determined by the law of 
 their domicil. Rush v. Landers, 107 La. 
 549, 32 So. 95, 57: 353 
 
 142. A foreign citizen marrying a Mis- 
 souri woman in that state does not, in 
 view of the Missouri statutes, acquire an 
 absolute title to her personal property 
 located there, which will be enforced by the 
 Missouri courts, although he might have 
 acquired such title, under the laws of his 
 domicil, to property located there, had the 
 marriage been solemnized there. Re Mc- 
 Pherson, 163 Mo. 493, 63 S. W. 726, 52: 420 
 
 143. The effect of a divorce granted in an- 
 other state, upon the divorced wife's right 
 of dower, must be determined by the laws 
 of the state where the lands are situated. 
 Van Cleaf v. Burns, 133 N. Y. 540, 30 N. E. 
 661, 15: 542 
 Separation or divorce. 
 
 As to Remarriage of Divorced Person, see 
 supra, 132-135. 
 
 Conclusiveness and Effect of Decree Ren- 
 dered in Other State, see Judgment, IV. 
 b, 2. 
 
 Divorce granted in Foreign Country, see 
 Judgment, 336, 33 1, 
 
 See also supra, 143; infra, 329. 
 
 For Editorial Notes, see infra, III. 19. 
 
 144. A contract for a final separation of 
 husband and wife, and procurement of a 
 divorce, will not be enforced by the courts 
 of a state under whose laws it is invalid, al-
 
 518 
 
 CONFLICT OF LAWS, L d, 1. 
 
 though it was valid where made. Palmer v. 
 Palmer, 26 Utah, 31, 72 Pac. 3, 61 : 641 
 
 145. An agreement for separation, entered 
 into by a husband and wife in a state where 
 they are temporarily abiding, for causes 
 arising there, and where it is partly per- 
 formed, will be interpreted by the law of 
 such state when before its courts, and not 
 by that of the state of their domieil, if by 
 the latter it would be invalid; and it may 
 be legally enforced, at least if no attempt 
 was made to evade the laws of the latter 
 state, and the contract would not have been 
 criminal there. Carey v. Mackey, 82 Me. 
 516, 20 Atl. 84, 9: 113 
 
 146. A judgment of divorce in favor of a 
 wife, rendered by a court of a state in 
 which she has acquired a separate domieil, 
 and valid where rendered, is valid in other 
 jurisdictions without regard to the place of 
 marriage, the offense, or the domieil of the 
 husband. Benton's Succession, 106 La. 494, 
 31 So. 123, 59: 135 
 
 147. A divorce granted in a foreign state, 
 which recites that all the facts necessary to 
 the jurisdiction of the court have been 
 established, and presents upon its face no 
 intrinsic nullity, cap only be attacked on 
 proof of extrinsic facts undermining the 
 jurisdiction, and will therefore serve as a 
 basis for a presumption of good faith with 
 respect to a subsequent marriage. Id. 
 
 148. Although in Louisiana a marriage 
 will not be dissolved on grounds antedating 
 the establishment of the marital domieil in 
 the state, it does not follow that its courts 
 will not recognize the validity of a divorce 
 granted upon such grounds in another state. 
 
 Id. 
 
 Legitimation. 
 For Editorial Notes, see infra, III. 20. 
 
 149. The law of the domieil of the father, 
 and not that of the mother or of the child, 
 governs the question of the legitimation of 
 a bastard child by the father's acknowledg- 
 ment and other acts, the same as in case 
 of subsequent marriage. Blythe v. Ayres, 
 96 Cal. 532, 31 Pac. 915, 19: 40 
 
 150. Legitimation of a bastard by the 
 laws of his parents' domieil through their 
 marriage during his minority fixes his 
 status so that he is legitimate evervwhere. 
 Fowler v. Fowler, 131 N. C. 169, 42 S. E. 
 563. 59: 317 
 
 151. Under the Pennsylvania statutes, a 
 child born out of wedlock is rendered 
 legitimate by the subsequent marriage, and 
 cohabitation of its parents, and, being legiti- 
 mate there, is legitimate in New Jersey, 
 and may inherit land in the latter state. 
 Dnvton V. Adkisson (N. J. Ch.) 45 N. J. Eq. 
 603. 17 Atl. 964. 4: 488 
 
 152. The status as a legitimate heir of an 
 alien born before the marriage of his 
 parents is to be determined by the law of 
 their domieil. De Wolf v. Middleton, 18 R. 
 I. 810, 31 Atl. 271, 31: 146 
 
 153. Legitimation in a foreign country 
 does not make lawful heirs to real estate 
 in other countries where the common law 
 or stntute of Merton prevails, of those who 
 were born out of lawful marriage. Wil- 
 
 liams use of Wallace v. Kimball, 35 Fla. 49. 
 16 So. 783, 26: 746 
 
 154. A statute legitimating all children 
 of slaves which have been recognized by the 
 man as his, although the father and mother 
 have ceased to cohabit prior to the passage 
 of the act, is not binding on a man who has 
 become domiciled in another state. Irving 
 v. Ford, 183 Mass. 448, 67 N. E. 366, 65: 177 
 Guardian's right to custody of ward. 
 
 155. A guardian appointed for an infant 
 by a court in one state will not, on the 
 ground of comity, be given custody of the 
 child, against its best interests by the 
 courts of another state into which the child 
 has been taken, although the child was re- 
 moved from the state where the guardian 
 was appointed contemporaneously with, and 
 possibly for the purpose of escaping the ef- 
 fect of proceedings for, the guardian's ap- 
 pointment. Jones v. Bowman, 13 Wyo. 79, 
 77 Pac. 439, 67: 860 
 
 d. Corporate Matters. 
 
 1. In General. 
 See also infra, 344. 
 
 Foreign corporation or association. 
 
 Insolvency of, see infra, I. f. 
 
 Matters as to Foreign Corporations, General- 
 ly, see Corporations, VII. 
 
 As to Insurance by Foreign Companies, see 
 supra, I. b, 3; Insurance, I. b. 
 
 Effect of Appointment of Receiver, see 
 infra, 269-275; Attachment, 55. 
 
 Exercise of Charter Powers in Violation of 
 Local Laws, see Corporations, 852. 
 
 Jurisdiction of Action by or against, see 
 Courts, I. b, 4. 
 
 Right to Exercise Power of Eminent Do- 
 main, see Eminent Domain, 12-15. 
 
 Presumption as to Validity of Assignment 
 for Creditors, see Evidence, 413. 
 
 See also supra, 26-28, 49, 50, 56-60; infra, 
 312, 330. 
 
 For Editorial Notes, see infra, m. 4, 10. 
 
 156. On failure to show the law of an- 
 other state which governs the rights of a 
 foreign corporation that are in controversy, 
 the case will be determined by the law of 
 the forum as established, or, in the absence 
 of any controlling authority, as justice, hav- 
 ing regard to all interests, may seem to the 
 court to require. Bath Gaslight Co. v. 
 Claffy, 151 N. Y. 24, 45 N. E. 390, 36: 664 
 
 157. A foreign corporation which has 
 complied with the statutory requirements 
 to entitle it to do business in the state will 
 not be permitted to make its contracts pay- 
 able elsewhere for the purpose of securing 
 a construction or advantage not authorized 
 by the law of the state in which it is at- 
 tempting to do business. Washington 
 National Bldg. L. & I. Asso. v. Stanley, 38 
 Or. 319, 63 Pac. 489, 58: 816 
 
 158. A deed of trust to secure debts exe- 
 cuted by a corporation at its domieil in one 
 state will, as to its nature, character, and 
 interpretation, be governed by the laws of 
 that state, although it involves choses in 
 action in another state where the corpora-
 
 CONFLICT OF LAWS, I. d, 2. 
 
 519 
 
 tion is doing business, and in whose courts 
 the interpretation of the instrument is 
 called in question. Smead v. Chandler, 71 
 Ark. 505, 76 S. W. 1066, 65: 353 
 
 159. Whether or not a valid lien has been 
 created by an execution of a mortgage by a 
 corporation at its domicil upon a chose in 
 action located in another state, where the 
 action is brought to enforce it, depends 
 upon the law of the latter. Id. 
 
 160. A corporation has, under the law of 
 comity, the legal capacity to sue in states 
 other than that from which its charter was 
 obtained. Cone Export & C. Co. v. Poole, 
 
 41 S. C. 70, 19 S. E. 203, 24: 289 
 
 161. Courts of equity are not open to a 
 foreign corporation as a matter of strict 
 right, but as matter of comity. National 
 Teleph. Mfg. Co. v. DuBois, 165 Mass. 117, 
 
 42 N. E. 510, 30: 628 
 
 162. The rule of comity does not require 
 that a foreign corporation should be al- 
 lowed to enforce a contract in conflict with 
 the laws of the forum, when it would work 
 against the citizens of that state, and give 
 the citizens of another state an advantage 
 which the resident has not. Rhodes v. Mis- 
 souri Sav. & L. Co. 173 111. 621, 50 X. E. 998, 
 
 42: 93 
 Membership in loan association. 
 
 163. The steps taken to become a member 
 of a building and loan association must be 
 regulated by the law of its domicil, and the 
 fees allowed 'by that law will be held valid 
 everywhere. Falls v. United States Sav. 
 L. & B. Co. 97 Ala. 417, 13 So. 25, 24: 174 
 Shares of stock. 
 
 164. Shares of stock of a corporation are 
 personal property only, and governed by the 
 law of the owner's domicil. Lowndes v. 
 Cooch, 87 Md. 478, 39 Atl. 1045, 40: 380 
 
 165. Provisions of a statute as to impli- 
 cations to be drawn from acts in connection 
 with dealing in stocks have no application 
 in the courts of another state, where the 
 validity of a stock transaction is drawn in 
 question, any further than they may tend 
 to throw light upon the validity of such 
 transactions under the statute. Winward v. 
 Lincoln, 23 R. I. 476, 51 Atl. 106, 64: 160 
 
 166. A contract to subscribe to the stock 
 of a corporation located in a foreign state, 
 and which is to be performed there, will be 
 governed by the laws of that state. Fear 
 v. Bartlett, 81 Md. 435, 32 Atl. 322, 33: 721 
 
 167. A transfer of stock in a national 
 bank of another state, made in Maryland to 
 a married woman, who is competent by the 
 law of that state to be a stockholder, is 
 valid irrespective of the law of the state in 
 which the bank is situated. Kerr v. Urie. 86 
 Md. 72, 37 Atl. 789, 38: 119 
 
 2. Liability of Officers and Stockholders, 
 cr. Officers. 
 
 168. The liability imposed on the officers 
 of a corporation by N. Y. act 1875, chap. 
 611, 21, for debts of the corporation in- 
 curred while they were officers, if any 
 certificate, report, or notice by them shall 
 
 be false in any material representation, is in 
 the nature of a penalty, and cannot be en- 
 forced by the courts of another state. At- 
 trill v. Huntington, 70 Md. 191, 16 Atl. 651, 
 
 2:779 
 
 6. Stockholders. 
 
 As to Assessments on Stockholders, see 
 
 Corporations, 599. ' 
 See also infra, 346-353; Courts, 39. 
 For Editorial Notes, see infra, III. 10. 
 
 169. The enforcement of individual lia- 
 bility of a stockholder to a creditor of a 
 foreign corporation which is imposed by the 
 statutes of the state in which the corpora- 
 tion exists is not against the judicial policy 
 of Illinois. Bell v. Farwell, 176 111. 489, 52 
 N. E. 346, 42: 804 
 
 170. One who becomes a member of a for- 
 eign corporation subjects himself to such 
 laws of the government of its situs as af- 
 fect its powers and obligations. Warner v. 
 Delbridge & C. Co. 110 Mich. 590, 68 N. W f 
 283, 34: 701 
 
 171. The statutory liability of stock- 
 holders in foreign corporations cannot be 
 enforced except at the domicil of the 
 corporation when the law of the domicil pro- 
 vides the remedy. Marshall v. Sherman, 148 
 N. Y. 9, 42 N. E. 419, 34: 757 
 
 172. The Illinois statute providing that 
 foreign corporations doing business in the 
 state shall be subject to the liabilities, re- 
 strictions, and duties imposed upon domestic 
 corporations, and have no other or greater 
 powers, does not relieve a citizen becoming 
 a stockholder in a foreign corporation from 
 a liability for calls made upon stock 
 forfeited for nonpayment of such calls, im- 
 posed by the statute under which such 
 corporation was organized, as the term 
 "doing business" has no relation to the by- 
 laws of the company, or its relations to its 
 own members, or its resort to the Illinois 
 courts to enforce such liability. Mandel v. 
 Swan Land & C. Co. 154 111. 177, 40 X. E. 
 462, 27:313 
 
 173. The liability of a stockholder in a 
 Kansas corporation, under the Constitution 
 and statute of that state, to pay an ad- 
 ditional amount equal to the par value of 
 the stock owned by him, being several, and 
 not joint, can be enforced in a Federal 
 court, or any court of general jurisdiction, 
 where personal service may be made upon 
 the stockholder, in an action at law brought 
 by a judgment creditor, to which the 
 corporation is not a party. Fidelity Ins. 
 T. & S. D. Co. v. Mechanics Sav. Bank, 38 
 C. C. A. 193, 97 Fed. 297, 56: 228 
 
 174. Comity does not require the enforce- 
 ment of a liability of a stockholder in a 
 foreign corporation to its creditors, in an 
 amount equal to the amount of his stock, 
 especially where the laws of the forum in 
 respect to a stockholders liability are es- 
 sentially different, since there is no way in 
 which the obligation can be so enforced as 
 to secure substantial justice. Orippen v. 
 Laighton, 69 N. H. 540, 44 Atl. 538, 46: 46"
 
 520 
 
 CONFLICT OP LAWS, I. d, 2. 
 
 175. Particular provisions of a statute 
 providing for the individual liability of 
 stockholders in a foreign corporation will 
 not be detached and given effect outside of 
 the domicil of the corporation, if it would 
 be impossible to enforce all the provisions 
 of the statute there, and its whole scope 
 indicates that it was intended t<" be enforced 
 only where passed. Marshall v. Sherman, 
 148 N. Y. 9, 42 N. E. 419, 34: 757 
 What law governs. 
 
 176. The liability of stockholders must 
 be determined according to the law of the 
 state in which the corporation is organized. 
 Bell v. Farwell, 176 111. 489, 52 N. E. 346, 
 
 42: 804 
 
 177. The liability of stockholders in 
 foreign corporations must be determined by 
 the law of the state under which such 
 corporations were created. Mandel v. Swan 
 Land & C. Co. 154 111. 177, 40 N. E. 462, 
 
 27: 313 
 
 178. A stockholder in a corporation organ- 
 ized under the laws of a foreign state con- 
 tracts with reference to the laws of that 
 state; and the extent of his individual lia- 
 bility for corporate debts must be de- 
 termined by the laws of that state. First 
 Nat. Bank v. Gustin-Minerva Consol. Min. 
 Co. 42 Minn. 327, 44 N. W. 198, 6: 676 
 
 179. The legal rights of a creditor against 
 a stockholder of a corporation of one state, 
 when action thereon is brought in another 
 state, are to be determined by the law of 
 the state of incorporation, while the form 
 of action and the method of conducting it 
 depend upon the law of the forum. Blair v. 
 Newbcgin, 65 Ohio St. 425, 62 N. E. 1040, 
 
 58: 644 
 
 Nature of liability. 
 See also infra, 193, 197, 352, 353. 
 
 180. The statutory liability of a stock-, 
 holder in an insolvent bank is not primary 
 and contractual so as to be enforceable in 
 any jurisdiction where the stockholder may 
 be found. Marshall v. Sherman, 148 N. Y. 
 9, 42 N. E. 419, 34: 757 
 
 181. The statutory liability of a stock- 
 holder in a foreign corporation for an un- 
 paid deficiency of assets, which he assumes 
 by the act of becoming a member of the 
 corporation through the purchase of stock, 
 is in fact a contractual liability springing 
 from an implied promise ; and, if the statute 
 does not prescribe any remedy, it may be 
 enforced in the state where he resides. 
 Howarth v. Angle, 162 N. Y. 179, 56 N. E. 
 489, 47:725 
 
 182. The liability imposed by statute 
 upon stockholders for debts of the corpora- 
 tion is contractual as well as statutory, and 
 may be enforced in foreign jurisdictions, if 
 the statute requires no preliminary local 
 proceedings to adjust equities. Howarth v. 
 Lombard, 175 Mass. 570, 56 N. E. 888, 
 
 49: 301 
 
 183. The liability of a stockholder to 
 creditors of a Kansas corporation to an ex- 
 tent equal to the amount of his stock is not 
 contractual, but statutory, and not en- 
 forceable in another state. Crippen v. 
 Laighton, 69 X. H. 540, 44 Atl. 538. 46: 467 
 
 184. The liability of each stockholder to 
 each individual creditor of the corporation, 
 under the Kansas statutes, is not penal, but 
 contractual, and may be enforced by courts 
 of other states. Bell v. Farwell, 176 111. 489, 
 52 N. E. 346, 42: 804 
 
 185. The liability of stockholders under 
 the Kansas statutes, to the amount of their 
 stock, for payment of dues from the corpo- 
 ration, is a contractual, and not a penal, lia- 
 bility. Ferguson v. Sherman, 116 Cal. 169. 
 47 Pac. 1023, 37: 622 
 
 186. The right of a corporation to re- 
 cover in another jurisdiction the amount of 
 calls made upon its stock does not depend 
 upon any principle of comity, but upon the 
 right to enforce a contract validly entered 
 into. Mandel v. Swan Land & C. Co. 154 
 111. 177, 40 N. E. 462, 27: 313 
 
 187. The liability of a stockholder to the 
 corporation for calls made, though depend- 
 ent upon the phraseology of the statute 
 creating it, is contractual, and will ordina- 
 rily be enforced by the courts of another 
 jurisdiction, unless a wrong or injury will be 
 done to the citizens of such jurisdiction, or 
 the policy of its laws will be contravened 
 or impaired. Id. 
 
 188. An action against all the domestic 
 shareholders of an Illinois corporation, to 
 recover the unpaid balance of their sub- 
 scriptions to the stock, or such pro rata 
 share thereof as is necessary to pay the 
 debts of the company, may be brought in 
 New York by the Illinois assignee for 
 creditors, since the cause of action is a 
 contract liability which has for its foun- 
 dation the principles of the common law, 
 and does not depend upon 111. Rev. Stat. 
 chap. 32, 25, which provides for such a 
 suit in equity against all delinquent stock- 
 holders. Stoddard v. Lum, 159 N. Y. 265, 53 
 N. E. 1108, 45: 551 
 
 189. The Kansas statute providing reme- 
 dies by execution or action to enforce the 
 personal liability of stockholders which the 
 state Constitution declares shall be secured, 
 being construed by the state courts to cre- 
 ate a personal liability against the stock- 
 holders severally in the nature of a contract 
 obligation, the enforcement of such lia- 
 bility by action at law is not confined to 
 the courts of that state, but may be had in 
 a Federal court sitting in another state 
 wherein a stockholder resides, when it has 
 jurisdiction of the parties. Rhodes v. 
 United States Nat. Bank, 24 U. S. App. 607, 
 66 Fed. 512, 13 C. C. A. 612, 34: 742 
 Prerequisites to action. 
 
 See also Corporations, 638. 
 
 190. The courts of a state of the domicil 
 of an insolvent corporation must, by an 
 appropriate proceeding, determine the re- 
 lation of the corporation and its creditors 
 and stockholders and the proportionate 
 share of the corporate indebtedness to be 
 borne by each solvent stockholder before re- 
 lief can be had against a stockholder in the 
 courts of another state. Tuttle v. National 
 Bank of the Republic, 161 111. 497, 44 N. E. 
 984, 34: 750 
 
 191. Judgment against the corporation ob-
 
 CONFLICT OF LAWS, I. e, 1. 
 
 521 
 
 tained in a Federal court in a district of 
 Kansas is sufficient to entitle a creditor to 
 bring an action in a California court against 
 a stockholder who is found in the latter 
 state, without having obtained a judgment 
 against the corporation in California. 
 Ferguson v. Sherman, 116 Cal. 1G9, 47 Pac. 
 1023, 37: 622 
 
 192. Collection may be made from stock- 
 holders wherever they may be found, after 
 the preliminary proceedings required by 
 statute, and the adjustment of the rights 
 and liabilities of the corporation, creditors, 
 and stockholders, under a statute imposing 
 liability for corporate debts upon stock- 
 holders after proceedings showing the in- 
 solvency of the corporation and the need of 
 payment by stockholders to satisfy the 
 claims of creditors. Howarth v. Lombard, 
 175 Mass. 570, 56 N. E. 888, 49: 301 
 
 193. The contractual liability of a stock- 
 holder domiciled in a foreign jurisdiction, 
 for debts of the corporation beyond the 
 amount of stock subscription, may be en- 
 forced by courts of that jurisdiction, where 
 the proofs show an assessment in the state 
 of the creation of the corporation upon do- 
 mestic stockholders to the full amount of 
 the stockholders' liability, and the testi- 
 mony discloses the insolvency of the corpo- 
 ration, and indebtedness in excess of the 
 stockholders' liability, and an assessment 
 is sought of exactly the same character as 
 was enforced in the action brought in the 
 domicil of the corporation. Kirtley v. 
 Holmes, 46 C. C. A. 102, 107 Fed. 1, 52: 738 
 
 194. The courts of the state of a stock- 
 holder's residence will not take jurisdiction 
 of a suit by one creditor of the corporation 
 on behalf of all to enforce his statutory 
 liability to contribute towards the payment 
 of the corporate debts in advance of any 
 judicial determination of his proportionate 
 liability, where the corporation was created 
 in another state, the laws of which contem- 
 plate only a pro rala contribution to debts, 
 to be enforced in an equitable proceeding 
 against all stockholders, in which the rights 
 and liabilities of all parties can be adjusted 
 at once. Miller v. Smith, 26 R. I. 146, 58 
 Atl. 634, 66: 473 
 Parties to action. 
 
 195. The statutory liability of a stock- 
 holder of a dissolved Kansas corporation 
 may be enforced in Ohio by a judgment 
 creditor of the corporation, against a citizen 
 of the state, without making the corpora- 
 tion a party. Blair v. Xewbegin, 65 Ohio 
 St. 425, 62 N. E. 1040, 58: 644 
 
 190. The joinder of stockholders to en- 
 force a several liability created by the 
 statutes of another state is authorized by a 
 statute permitting the joinder of persons 
 severally liable on the same instrument, 
 since the stockholders, though not technical- 
 ly liable on the same promise, are liable 
 upon promises which are identical. Id. 
 
 197. The right to join, in Ohio, stock- 
 holders of a dissolved Kansas corporation to 
 enforce their liability under Kansas statutes 
 to be separately sued by a creditor of the 
 corporation, is to be determined by the law 
 
 of Ohio, although in Kansas such joinder is 
 not permitted, since the nature of the lia- 
 bility is contractual. Id. 
 Right of set-off. 
 
 198. The right of a stockholder to set off 
 the indebtedness of the corporation to him 
 against his double or additional liability to 
 creditors under the Kansas laws, being a 
 purely legal defense arising under the state 
 statute, is available to such stockholder in 
 an action against him by a creditor of the 
 company, brought in a Federal court in an- 
 other state. Fidelity Ins. T. & S. D. Co. v. 
 Mechanics' Sav. Bank, 38 C. C. A. 193, 97 
 Fed. 297, 56: 228 
 
 e. Torts and Crimes Generally. 
 1. Torts Generally; Personal Injuries. 
 
 See also infra, 336. 
 
 For Editorial Notes, see infra, III. 25. 
 
 199. A nonresident married woman sui 
 juris under the law of her domicil may 
 maintain in Louisiana an action in her own 
 name for a personal tort in that state, al- 
 though the laws of the state require an 
 action in favor of a married woman to be 
 brought by her husband, and provide that 
 all property acquired in the state by non- 
 resident married persons shall be subject to 
 the same provisions of law which regulate 
 the community of acquits and gains be- 
 tween citizens of the state, since the right 
 of action for such tort is personal, and is 
 not property acquired in the state. Wil- 
 liams v. Pope Mfg. Co. 52 La. Ann. 1417, 
 27 So. 851, 50: 816 
 
 200. One who takes a lease of land in the 
 Indian territory, in violation of law can- 
 not maintain an action in Kansas, where he 
 resides, for conversion of crops grown upon 
 land and lawfully taken therefrom by the 
 defendant, since there are grave doubts 
 whether he could recover for such conversion 
 in the territory where the tort was com- 
 mitted. Holderman v. Pond, 45 Kan. 410, 25 
 Pac. 872, 11: 542 
 
 201. A civil action against a railroad 
 company by the owner of injured cattle to 
 recover damages for violation of U. S. Rev. 
 Stat. 4386, U. S. Comp. Stat. 1901, p. 2995, 
 requiring cattle to be unloaded for rest, 
 water, and feeding when confined for 
 twenty-eight consecutive hours, can be 
 maintained in a state court, and is not with- 
 in the rule which prohibits one state from 
 enforcing the penal laws of another state or 
 country, although there is a penalty pro- 
 vided for violating the statute, which is 
 payable to the United States. Chesapeake & 
 0. R. Co. v. American Exch. Bank, 92 Va. 
 495, 23 S. E. 935, 44: 449 
 Personal injuries generally. 
 
 See also Courts, 40, 41; Executors and 
 
 Administrators, 115. 
 For Editorial Notes, see infra, III. 25. 
 
 202. The effect of contributory negligence 
 to defeat or limit a right of action for an 
 injury received in another state is to be 
 determined by the law of the place of the
 
 CONFLICT OF LAWS, I. e, 1. 
 
 injury, and not by the law of the forum. 
 Louisville & N. R. Co. v. Whitlow, 105 Ky. 
 1, 43 S. W. 711. 41: 614 
 
 203. The laws of Mexico denning negli- 
 gence, and the civil rights resulting there- 
 from, are not too vague and indefinite to be 
 administered by courts in this country. 
 Evey v. Mexican C. R. Co. 26 C. C. A. 407, 
 52 U. S. App. 118, 81 Fed. 294, 38: 387 
 
 204. Dissimilarity between the law of 
 Mexico, where the cause of action for negli- 
 gence arose, and the law of Texas, in which 
 an action is brought therefor, will not pre- 
 clude the maintenance of the action, where 
 the dissimilarity relates chiefly to matters 
 of procedure, and does not involve any 
 conflict with the settled public policy of J 
 Texas. Id. \ 
 
 205. The provision of the law of Mexico 
 giving extraordinary indemnity for negli- 
 gence considering the social position of the 
 party injured does not constitute any 
 reason why a court in this country should 
 not entertain an action for negligence oc- 
 curring in Mexico, when it is not asked to J 
 give such extraordinary indemnity. Id. j 
 
 206. The fact that negligence may consti- ; 
 tute a crime in Mexico does not make a 
 civil action in this country for the n'egli- 
 gence amount to the enforcement of a penal 
 law of Mexico, when the civil liability does 
 not depend, under Mexican law, upon the 
 criminal prosecution. Id. 
 
 207. The requirement of an endeavor to 
 procure an agreement and a compromise, 
 which is found in the Mexican Code, art. 
 313, relates merely to procedure, and failure 
 to comply therewith does not prevent an 
 action in this country for negligence occur- 
 ring in Mexico. Id. 
 
 208. The right, under the law of Mexico, 
 to recover additional damages in a new suit, 
 when they accrue after the first judgment 
 for injuries caused by negligence, is a mat- 
 ter of remedy only, and does not prevent a 
 court in the United States from enforcing 
 a liability for negligence occurring in Mexi- 
 co. Id. 
 
 209. Jurisdiction of an action for personal 
 injuries sustained in any other country, by j 
 a railroad employee will not be entertained j 
 by a Texas court, where the foreign law ] 
 which governs the case permits what is 
 termed "extraordinary indemnity" in a sum 
 which the judge might deem proper con- 
 sidering the plaintiff's social position, and 
 also provides for subsequent judgments for 
 additional damages afterwards arising out 
 of the same injury, as well as for a re- 
 duction of the judgment in case of an in- 
 creased earning capacity of the injured 
 person. Mexican Nat. R. Co. v. Jackson. 89 
 Tex. 107, 33 S. W. 857, 31 : 276 
 To married woman. 
 
 210. A married woman's right of action 
 for a personal injury is not property, with- 
 in the international law of domicil, so that 
 the statutory right of action in such cases 
 in the state where she resides will give her 
 a right of action in the District of Columbia 
 for an injury there sustained: and it is im- 
 material whether the statute of her domicil 
 
 treats such right of action as property, or 
 not. Snashall v. Metropolitan R. Co. 8 
 Mackey, 399, 10: 746 
 
 To employee. 
 For Editorial Notes, see infra, III. 25. 
 
 211. The law of Mexico must be applied 
 to the rights of the parties in an action 
 against a railroad company by an employee 
 for a personal injury sustained in that coun- 
 try, in which the contract of service was 
 made. Mexican Nat. R. Co. v. Jackson, 89 
 Tex. 107, 33 S. W. 857, 31 : 276 
 
 212. A statute of a state in which a rail- 
 road employee is injured, providing that 
 proof of a defect in an appliance shall be 
 presumptive evidence of knowledge thereof 
 on the part of a railroad company, does not 
 govern in an action brought for the injury 
 in another state. Jones v. Chicago, St. P. 
 M. & O. R. Co. 80 Minn. 488, 83 N. W. 446, 
 
 49: 640 
 
 213. The law of Canada governs the lia- 
 bility for injury to an employee sent from 
 the Michigan side to the Canada end of the 
 tunnel to work in compressed air, when the 
 action is based on alleged wrong in allow- 
 ing him to enter upon a dangerous work in 
 ignorance of dangers known, or which 
 should have been known, to the master. 
 Turner v. St. Clair Tunnel Co. Ill Mich. 578, 
 70 N. W. 146, 36: 134 
 
 214. A Federal court in Tennessee will en- 
 force the Mississippi Constitution preclud- 
 ing the defense to an action for an employ- 
 ee's injury that he knew of the defective or 
 unsafe character of the machinery or ap- 
 pliances by which he was injured, when the 
 injury was received in Mississippi, since this 
 provision is simply a variation from, and 
 not repugnant to, the law of Tennessee. 
 Illinois C. R. Co. v. Ihlenberg, 43 U. S. App. 
 726. 75 Fed. 873, 21 C. C. A. 546, 34: 393 
 
 215. The responsibility of the master for 
 the act of a fellow servant is governed by 
 the law of the place where the cause of ac- 
 tion arose. Chicago & E. I. R. Co. v. 
 Rouse, 178 111. 132, 52 N. E. 951, 44: 410 
 
 216. The liability of an employer for in- 
 jury to an employee by a fellow servant in 
 a state which has by statute abolished the 
 common-law rule can be enforced in another 
 state in which the common-law rule still 
 prevails. Id. 
 
 217. A railroad employee injured by the 
 negligen.ce of a fellow servant in a state 
 where the laws give him no remedy cannot 
 recover for the injury by bringing a suit in 
 another state where the laws recognize his 
 claim. Baltimore & Ohio S. W. R. Co. v. 
 Read, 158 Ind. 25, 62 N. E. 488, 56: 468 
 
 218. In a suit by a railroad employee to 
 receiver damages for injuries occurring in 
 another state and caused by the negligence 
 of a t-oemployee, the common-law rule ex- 
 empting the employer from liability for in- 
 juries caused by negligence of a fellow serv- 
 ant will be presumed to be in force, in the 
 absence of any showing to the contrary. 
 
 Id. 
 
 219. The law of a state in which a rail- 
 road brakcman is injured by negligence of a
 
 CONFLICT OF LAWS, I. e, 2. 
 
 523 
 
 coemployee determines his right to recover, 
 although such law is contrary to that of 
 another state in which the negligence oc- 
 curred, and which is also the domicil of the 
 parties and the place of the contract of em- 
 ployment. Alabama G. S. R. Co. v. Carroll, 
 97 Ala. 126, 11 So. 803, 18: 433 
 
 220. The assumption of risks by a rail- 
 road employee on account of the acts or 
 omissions of other employees is subject to 
 the laws of the state in which an injury is 
 sustained, although the contract of employ- 
 ment was made and the service entered into 
 in another state. Kansas City, Ft. S. & M. 
 R. Co. v. Becker, 67 Ark. 1, 53 S. W. 406, 
 
 46: 814 
 
 2. Death. 
 
 Effect of Judgment in Other State, see 
 
 Judgment, 347. 
 For Editorial Notes, see infra, III. 25. 
 
 221. The distribution of money recovered 
 in Nebraska on a cause of action, under the 
 Kansas statute, for causing the death of a 
 person in Kansas, may be enforced in the 
 former state in the manner prescribed by 
 the statute of Kansas. Missouri P. R. Co. 
 v. Lewis, 24 Neb. 848, 40 N. W. 401, 2: 67 
 
 222. The plaintiff in an action to recover 
 damages for the benefit of those injured by 
 the negligent killing of a person, which is 
 brought outside of the state where the ac- 
 cident occurred, in the courts of a state 
 which enforce the liability because of the 
 similarity of its statutes to those of the 
 former state, must be the person designated 
 by the statutes of the state where the 
 injury occurred. Wooden v. Western N. Y. 
 & P. R. Co. 126 N. Y. 10, 26 N. E. 1050, 
 
 13: 458 
 
 223. The mere fact of a difference as to 
 the one designated to bring the action, in 
 the provisions of the statutes of two states 
 providing for the recovery of damages for 
 the benefit of those injured by the negligent 
 killing of a person, is not sufficient to pre- 
 vent the maintenance of the action in the 
 state where the accident did not occur, if 
 the statutes are otherwise substantially the 
 same. Id. 
 
 224. No such dissimilarity between the 
 local statute and one of another state under 
 which suit is brought for death exists as 
 to deprive the court of jurisdiction, by the 
 fact that the local law requires damages to 
 be based on actual loss proved, while the 
 statute under which the suit is brought re- 
 quires them to be fixed by the culpability 
 disclosed by a comparison of the facts with 
 the defendant's duty. Whitlow v. Nash- 
 ville. C. & St. L. R.* Co. 114 Tenn. 344, 84 
 S. W. 618. 68: 503 
 
 225. The Massachusetts statute relating 
 to personal injuries received from railroad 
 trains at grade crossings, and providing that 
 the railroad company may be punished by 
 fine or indictment or sued for damages, is 
 penal in its nature; and it is no authority 
 for an action in Rhode Island for injuries 
 causing death, occurring in Massachusetts, 
 
 the Rhode Island statutes having none of 
 the penal features contained in the Massa- 
 chusetts statute. O'Reilly v. New York & 
 N. E. R. Co. 16 R. I. 388, "17 Atl. 906, 5: 364 
 
 226. The fact that the amount of recovery 
 for the negligent killing of a person is lim- 
 ited in the lex fori and unlimited in the lex 
 loci does not make the statutes of the two 
 states so dissimilar that the remedy will 
 not be enforced in the former state; but 
 the amount that can be recovered will be 
 governed by the lex fori, at least where 
 the killing was done by one of its corpora- 
 tions. Wooden v. Western N. Y. & P. R. 
 Co. 126 N. Y. 10, 26 N. E. 1050, 13: 458 
 
 227. A widow residing in one state, of a 
 man who also resided there, but who was 
 negligently killed in another state, is en- 
 titled to the benefit of a statute of the lat- 
 ter state, making the one guilty of the neg- 
 ligence liable therefor, and requiring the 
 amount recovered to be paid over to the 
 widow of decedent. Robertson v. Chicago 
 St. P. M. & O. R. Co. 122 Wis. 66, 99 N. 
 W. 433. 66: 911) 
 
 228. Mass. Pub. Stat. 1882, chap. 112, 
 212, fixing a maximum and minimum fine 
 to be recovered by indictment, as a penalty 
 against a railroad company for negligently 
 killing a passenger, which shall be paid to 
 the executor for use of the widow and chili 1 
 or next of kin, is not so strictly penal that 
 it cannot be enforced in other jurisdictions 
 although impliedly operative when the do 
 ceased is not using due diligence, since h 
 also permits a civil remedy, and it is appar 
 ent that its main purpose is compensation 
 Boston & M. R. v. Kurd, 47 C. C. A. 615, 108 
 Fed. 116, 56: 193 
 
 229. To make the law of a flag under 
 which a ship was sailing applicable to an 
 action for death of a passenger by drown 
 ing while upon the high seas, the drowning 
 must be shown to have been upon the ves 
 sel. Rundell v. Compagnie Generale Trans- 
 atlantique. 40 C. C. A. 625, 100 Fed. 655. 
 
 49: 92 
 
 Action by widow. 
 See also supra, 227, infra, 234. 
 For Editorial Notes, see infra, HI. 25. 
 
 230. A widow cannot maintain an action 
 in her own name for the death of her hus- 
 band in another state, under a statute of 
 the foreign state which expressly directs the 
 action to be brought by the administrator, 
 though for the ultimate benefit of the wid- 
 ow and next of kin, although a closely sim- 
 ilar statute in the state where the action is 
 brought gives the right to sue in such a 
 case expressly and exclusively to the widow, 
 if there be one. for the benefit of herself 
 and children. Usher v. West Jersey R. Co. 
 126 Pa. 206, 17 Atl. 597, ' 4: 261 
 
 231. An action by a widow for the death 
 of her husband, occasioned in Arkansas, in 
 which state, in the absence of administra- 
 tion, she can sue as the sole heir of the 
 husband, and where exemplary damages are 
 not allowed, cannot be maintained in Texas, 
 where such damages are allowed, and where 
 the widow of a man killed is the direct and 
 immediate beneficiary under the statute, su
 
 524 
 
 . CONFLICT OF LAWS, I. e. 3. 
 
 ing in her own right, and where the period 
 of limitation is different; especially when 
 an administrator has been appointed in 
 Arkansas pending the action, but was dis- 
 charged and the administration closed to 
 avoid a plea in abatement on that ground. 
 Although a cause of action is given by the 
 statutes of both states for wrongfully 
 causing death, they are not sufficiently 
 similar to warrant the courts of one state 
 to enforce the statute of the other. St. 
 Louis, I. M. & S. R. Co. v. McCormick, 71 
 Tex. 660, 9 S. W. 540, 1: 804 
 
 Action by personal representative. 
 See also supra, 230. 
 For Editorial Notes, see infra, III. 25. 
 
 232. An administrator appointed in one 
 state is not prevented from suing in another 
 state for the negligent killing of his intes- 
 tate there, by the fact that the statutes of 
 the two states providing for the recovery 
 and distribution of damages in such cases 
 are dissimilar and in substantial conflict. 
 Florida C. & P. R. Co. v. Sullivan, 57 C. C. 
 A. 167, 120 Fed. 799, 61: 410 
 
 233. A statute giving the personal repre- 
 sentative of a person negligently killed a 
 right of action for the death, the proceeds 
 of which are to be distributed among his le- 
 gal representatives, is not a penal statute, 
 which cannot be enforced by the courts of 
 other states. Whitlow v. Nashville. C. & 
 St. L. R. Co. 114 Tenn. 344, 84 S. W. 618, 
 
 68: 503 
 
 234. A widow appointed administratrix of 
 her husband in Nebraska may sue a rail- 
 road company in Kansas for causing her 
 husband's death in that state, to enforce a 
 ;-ause of action given by the Kansas statute 
 to the administratrix, as the statute does 
 not limit the right to an administratrix ap- 
 pointed in the state of Kansas. Missouri 
 P. R. Co. v. Lewis, 24 Neb. 848, 40 N. W. 
 401, 2: 67 
 
 235. A cause of action for death, given by 
 the statute of another state, may be en- 
 forced in a state having a statute which is 
 different in some particulars, where both 
 statutes require the action to be brought by 
 the personal representative, and limit the 
 recovery to the same amount, and give the 
 benefit to the same person. Nelson v. 
 Chesapeake & 0. R. Co. 88 Va. 971, 14 S. E. 
 838, 15: 583 
 
 236. An action may be maintained in one 
 state by the personal representative of one 
 killed by the negligent act of a common car- 
 rier in another state, to recover from the 
 carrier damages resulting from such negli- 
 gence, where the cause of action survives to 
 the personal representative by the statutes 
 of the state where the suit is brought. 
 O'Reilly v. New York & N. E. R. Co. 16 R. 
 T. 305, 19 Atl 244, 6: 719 
 
 237. An administratrix appointed at the 
 place where decedent resided in another 
 state may, in her representative capacity, 
 maintain an action for his negligent killing 
 in the courts of the state where the acci- 
 dent occurred which resulted in his death, 
 where its statutes provide that "every such 
 action shall be brought bv and in the name 
 
 of the personal representative of the de- 
 ceased person," and the recovery shall be 
 for the benefit of his widow. Robertson v. 
 Chicago, St. P. M. & O. R. Co. 122 Wis. 66, 
 99 N. W. 433, 66: 919 
 
 What law governs. 
 See also supra, 229. 
 For Editorial Notes, see infra, III. 25. 
 
 238. The law of the place where the death 
 occurred,' and not where the accident hap- 
 pened, governs in an action for death by 
 wrongful actt Rundell v. Compagnie Gen- 
 erale Transatlantique, 40 C. C. A. 625, 100 
 Fed. 655, 49:92 
 
 239. An action in Pennsylvania for the 
 death of a person in New Jersey must be 
 governed by the laws of the latter state. 
 Usher v. West Jersey R. Co. 126 Pa. 206, 17 
 Atl. 597, 4: 261 
 
 240. The recovery and disposition of a 
 fund for the negligent killing of a person 
 are governed by the laws which give the 
 right of action. Florida C. & P. R. Co. v. 
 Sullivan, 57 C. C. A. 167, 120 Fed* 799, 
 
 61:410 
 
 241. A United States admiralty court will 
 not enforce the local law of another country, 
 in an action for negligent homicide occur- 
 ring on the high seas, but such action must 
 be governed by the general admiralty law, 
 although the negligence occurred upon a 
 vessel under the flag of such country. Run- 
 dell v. Compagnie Generale Tnnsatlantique, 
 40 C. C. A. 625, 100 Fed. 655, 49:92 
 
 3. Crimes. 
 
 Territorial Limits of Jurisdiction Over 
 Crimes, see Courts, I. b, 2. 
 
 Law of What Date Governs, see Criminal 
 Law, 6. 
 
 Construction of Penal Statute against Com- 
 binations, see Statutes, 428. 
 
 Extraterritorial Effect of Statute against 
 Combinations, see Statutes, 483. 
 
 See also supra, 18. 
 
 For Editorial Notes, see infra, III. 27. 
 
 242. One who receives orders for the pur- 
 chase or sale of cotton futures, and tele- 
 graphs them for execution to another city 
 in another state, to which the margins are 
 sent, and from which the profits are trans-' 
 mitted fcr delivery to the customer, does 
 not transact the business of buying or sell- 
 ing futures at the place where his office is 
 located, so as to be subject to punishment 
 under a statute forbidding the transaction 
 of such business. Scales v. State, 46 Tex. 
 Crim. Rep. 296, 81 S. W. 947, 66: 730 
 
 243. What constitutes felonious stealing 
 in another state, within the meaning of the 
 Montana statute providing that one who 
 shall "feloniously steal property of another 
 in any other state, territory, or country," 
 and bring it into Montana, may be punished 
 in Montana as if the larceny had been com- 
 mitted there, is to be determined by the 
 laws of Montana, and not by the laws of 
 the place whore the property is stolen. 
 State v. Kief, 12 Mont. 92, 29~Pac. 654, 
 
 15: 722
 
 CONFLICT OF LAWS, I. f. 
 
 525 
 
 244. Forwarding money by telegraph to 
 another state to be wagered on a horse race 
 to take place in a third state may be made 
 a criminal offense in the state from which 
 the money is sent, although it is lawful to 
 make such wagers in the state in which the 
 wager is made. Ex parte Lacy, 93 Va. 159, 
 24 ;$. E. 930, 31: 822 
 Bigamous marriage. 
 
 245. Contracting a bigamous marriage in 
 one state cannot be made a crime in anoth- 
 er state which can be punished in the lat- 
 ter, in the absence of any illegal cohabita- 
 tion there, although the persons come within 
 the state. State v. Cutshall, 110 N. C. 538, 
 15 S. E. 261, 16: 130 
 
 246. Cohabitation within the state under 
 a bigamous marriage contracted in another 
 state is not punishable under N. C. Code, 
 988, which attempts to make it a crime 
 to cor tract a bigamous marriage in another 
 state. ^ Id. 
 Lewdness. 
 
 247. Citizens of Tennessee prohibited by 
 its laws from marrying because of their 
 adultery while one of them was married to 
 another person are not protected from a 
 prosecution in that state for lewdness in 
 living together as man and wife, by leav- 
 ing the state temporarily for the manifest 
 purpose of evading its laws and contracting 
 a marriage in Alabama where such mar- 
 riages are not prohibited. Pennegar v State, 
 87 Tcnn. 244, 10 S. W. 305, 2:703 
 Conflict between law of state and of Unit- 
 ed States. 
 
 As to Exclusiveness of Jurisdiction, see 
 
 Courts, IV. d, 2. 
 See also supra, 1. 
 
 248. Homicide, when necessarily commit- 
 ted by a deputy marshal in the performance 
 of his duty in protecting the life and per- 
 son of a justice of the United States Su- 
 preme Court from assault and violence be- 
 cause of his judicial decisions, is an "act 
 done in pursuance of a law of the United 
 States," and is not and cannot, therefore, 
 be an offense against the laws of the state, 
 no matter what the statute of the state 
 may be, the laws of the United States be- 
 ing the supreme law of the land. Re Neagle, 
 14 Sawy. 232, 39 Fed. 833,. 5: 78 
 
 f. Insolvency; Assignments for Creditors. 
 
 See also infra, 327, 328, 330; Insolvency, 10. 
 For Editorial Notes, see infra, III. 16. 
 
 249. The situs of a debt follows the cred- 
 itor; and where the debtor and creditor re- 
 side in different states the law of the domi- 
 cil of the creditor prevails. Birdseye v. 
 Baker, 82 fia. 142, 7 S. E. 863, 2:99 
 
 250. A sale to a resident by a nonresi- 
 dent of notes against another nonresident, 
 at a discount and with a guaranty against 
 loss of expense in collection, which is made 
 to avoid the insolvent law of the state 
 where the other parties reside, will not give 
 the transferee as an attaching creditor a 
 position superior to that of his nonresident 
 assignor, but his rights will be subject to 
 
 such insolvent law. Crippen v. Rogers, 67 
 X. H. 207, 30 Atl. 346, 25: 821 
 
 251. The law of comity does not require 
 the courts of one state, which are admin- 
 istering the assets of an insolvent foreign 
 corporation, to give effect to a statute of 
 its domicil imposing a license tax upon it, 
 and making the tax a preferred debt in case 
 of insolvency. J. A. Holshouser Co. v. 
 Gold Hill Copper Co. 138 N. C. 248, 50 S. 
 E. 650, 70: 183 
 Validity of assignment. 
 
 Presumption as to, see Evidence, 413. 
 For Editorial Notes, see infra, III. 16. 
 
 252. A transfer of a chose in action due 
 to a foreign corporation from a resident 
 of the state is not void because it does not 
 comply with Cal. Civ. Code, div. 4, tit. 3, 
 relating to assignments of property situat- 
 ed in that state. Fenton v. Edwards, 126 
 Cal. 43, 58 Pac. 320, 46: 832 
 
 253. The question of the validity of the 
 attempted transfer of title to an assignee 
 for creditors by a corporation organized in 
 one state and doing business in another is 
 for the state in which the property is situ- 
 ated. Vanderpoel V. Gorman, 140 N. Y. 563, 
 35 N, E, 932, 24: 548 
 
 254. The rule that a voluntary assign- 
 ment for creditors is valid in other states 
 when upheld by the law of the domicil of 
 the owner, does not apply to an assignment 
 which, though voluntarily made, is made 
 under a statute which provides for a dis- 
 charge of the debts of all creditors who ac- 
 cept any dividends under the assignment or 
 otherwise participate therein; but such an 
 assignment is to be treated as a transfer 
 in invitum under insolvency or bankruptcy 
 laws. Earth v. Backus, 140 N. Y. 230, 35 
 N. E. 425, 23: 47 
 
 255. Assignments of personal property 
 valid by the law of the domicil of the as- 
 signor are generally recognized as valid by 
 the law of the state where the property is 
 situated, unless they violate its statutory 
 law or its known and settled public policy. 
 Vanderpoel v. Gorman, 140 N. Y. 563, 35 N. 
 E. 932, 24: 548 
 
 256. A voluntary assignment in ore state, 
 where it is valid, will be upheld, as against 
 the citizens of that state, by the courts of 
 another state. Woodward v. Brooks, 128 
 111. 222, 20 N. E. 685, 3: 702 
 
 257. Although, as a general rule, an as- 
 signment of personal property valid by the 
 laws of the state or country where made is 
 valid everywhere, a transfer giving pref- 
 erences to certain creditors, made in anoth- 
 er state, will not be upheld in the state 
 where the property is situated, if in contra- 
 vention of its policy and laws. Re Dalpay, 
 41 Minn. '532, 43 N. W. 564, 6: 108 
 
 258. A conveyance of property situate in 
 Minnesota by an insolvent debtor to a cred- 
 itor, which amounts to a preference unlaw- 
 ful under the state insolvent laws, may be 
 avoided, although the creditor so preferred 
 resides without the state. Macdonald v. 
 First Nat. Bank, 47 Minn. 67, 49 N. W. 395. 
 
 13: 462 
 
 259. Under the statute of South Carolina
 
 526 
 
 CONFLICT OF LAWS. I. f. 
 
 declaring that an assignment for creditors 
 shall be absolutely null and void if any 
 preference or priority is given thereby, an 
 assignment preferring employees, executed 
 in New York by a citizen of that state, con- 
 veying property in South Carolina, will 
 be held altogether void in the latter state, 
 although the assignment conforms strictly 
 to the laws of New York. Sheldon v. 
 Blanvelt, 29 S. C. 463, 7 S. E. 593, 1 : 685 
 
 260. The rule that contracts made out of 
 the state, which contravene the policy of 
 the state, will be held void, does not make 
 void an assignment for creditors merely be- 
 cause it does not have annexed to it the 
 schedule required in such cases by the laws 
 of the state, as such schedules are not parts 
 of the contract. Birdseye v. Baker, 82 Ga. 
 142, 7 S. E. 863, 2: 99 
 
 261. An assignment made in the state of 
 New York, which is legal there, will not be 
 held void in Georgia for failure to attach 
 such a schedule and inventory as the law 
 of that state requires in such cases of as- 
 signment, under the provision of Ga. Code, 
 8, that a writing intended to have effect 
 in that state must be in conformity to the 
 laws of that state, where there is nothing 
 to show that it was intended to have ef- 
 fect in Georgia, merely because debts were 
 due by citizens of that state to the assign- 
 ors, and were assigned in the instrument. Id. 
 Effect of assignment or commencement of 
 
 insolvency proceedings. 
 For Editorial Notes, see infra, III. 16. 
 
 262. An assignment for creditors, made in 
 New York in conformity with the laws of 
 that state, passes the title to property in 
 Pennsylvania, as between residents of New 
 York, although the assignment has never 
 been recorded in Pennsylvania in accordance 
 with the Pennsylvania act of May 3, 1855 
 (P. L. 415). Bacon v. Home, 123 Pa. 452, 
 16 Atl. 794, 2: 355 
 
 263. Under a statutory assignment for 
 creditors, money on deposit in a bank of 
 another state may be applied to notes of 
 the assignor held by the bank, after they 
 become due, since the assignment conveys 
 to the assignee title to such assets only as 
 are within the state; and the subsequent 
 filing by the bank in the assignment pro- 
 ceedings, of a claim for the balance due on 
 the notes after exhausting the deposit, does 
 not estop it from denying the extraterri- 
 torial effect of the assignment. Segnitz v. 
 Garden City Banking & T. Co. 107 Wis. 
 171, 83 N. 'W. 327, 50: 327 
 
 264. An assignment for creditors under 
 Sand. & B. (Wis.) Ann. Stat. chaps. 80, 
 80a, providing that the assignor, upon com- 
 pliance with the provisions of the act, may 
 be discharged from his debts, and that every 
 creditor residing within or without the 
 state, who shall accept a dividend out of the 
 assigned estate, or participate in any way 
 in the proceedings, shall be bound by the 
 order of discharge, will not carry title to 
 personal property of the assignor in anoth- 
 er state, since this provision is, in its es- 
 sential features, a bankrupt law, and can 
 be given no extraterritorial effect. Id. 
 
 265. Garnishment of a debt due to a 
 foreign corporation is precluded by a pre- 
 vious voluntary assignment for creditors 
 made by the corporation in another state, 
 as the right to the chose in action is there- 
 bv vested in the assignee. Fenton v. Ed- 
 wards, 126 Cal. 43, 58 Pac. 320, 46: 832 
 
 26C. An attachment will be upheld as 
 against a prior assignment for the benefit 
 of creditors in another state, which is in 
 fact a transfer in invitum under insolvent 
 laws. Barth v. Backus, 140 N. Y. 230, 35 
 N. E. 425, 23: 47 
 
 267. The dissolution of an attachment 
 made within four months previously, by the 
 commencement of insolvency proceedings, 
 under Me. Rev. Stat. chap. 70, 33, applies 
 to a foreign creditor as well as to those re- 
 siding in the state, if his debt was contract- 
 ed while that statute was in force. Owen 
 v. Koberts, 81 Me. 439, 17 Atl. 403, 4: 229 
 Effect of discharge. 
 
 See also supra. 264; Insolvency, 26-30. 
 
 268. A discharge under state insolvency 
 laws will not release existing debts due to 
 nonresident creditors who do not come in 
 and prove their claims in the insolvency 
 proceedings. Phoenix Nat. Bank. v. Bat- 
 cheller, 151 Mass. 589, 24 N. E. 917, 8: 644 
 Effect of appointment of receiver for cor- 
 poration. 
 
 Effect of. on Pending Attachment, see At- 
 tachment, 55, 56. 
 For Editorial Notes, see infra, III. 16. 
 
 269. A conveyance of the property of a 
 corporation to a receiver, under a decree 
 which three quarters of its shareholders 
 had sought and none opposed, is to be 
 deemed voluntary for the purpose of de- 
 termining its effect on the title of per- 
 sonal property in another state. Ward v 
 Connecticut Pipe Mfg. Co. 71 Conn. 345, 41 
 Atl. 1057, 42: 706 
 
 270. Nonresident creditors of a corpora- 
 tion in the hands of a receiver, when they 
 are not residents of the state in which the 
 receiver is appointed, have the same right 
 to contest the receiver's title to property 
 that domestic creditors have. Linville v. 
 Hadden, 88 Md. 594, 41 Atl. 1097, 43: 222 
 
 271. Legal proceedings in other states are 
 not affected by Conn. Pub. Acts 1895, p. 
 491, dissolving attachments made within 
 sixty days before the appointment of a re- 
 ceiver of a corporation. Ward v. Connecti- 
 cut Pipe Mfg. Co. 71 Conn. 345, 41 Atl. 1057, 
 
 42: 706 
 
 272. A statute making a judgment con- 
 fessed by a corporation, after a petition has 
 been filed for its dissolution, void as against 
 the receiver and creditors, is not effective to 
 control the disposition of property attached 
 according to the laws of another state under 
 such judgment. Commercial Nat. Bank v. 
 Matherwell Iron & S. Co. 95 Tenn. 172, 31 
 S. W. 1002, 29: 164 
 
 273. A receiver of a foreign corporation, 
 appointed in another state in proceedings 
 to dissolve the corporation, has a right to 
 a debt due the corporation, as against an 
 attempt at garnishment of the debt by a 
 nonresident creditor of the corporation, who
 
 CONFLICT OF LAWS, I. g, h. 
 
 527 
 
 is a citizen of the state in which the cor- 
 poration existed and in which the receiver 
 was appointed. Oilman v. Hudson River 
 Boot & S. Mfg. Co. 84 Wis. 60, 54 X. W. 
 395, 23: 52 
 
 274. Attaching the lines and property of 
 a telegraph company in other states, after 
 a receiver has been appointed in the state 
 of which the attachment creditor is a citi- 
 zen and the creditor served with a copy of 
 an injunction against interfering with the 
 receivership, is a violation of the injunction, 
 and can give the creditor no lien which can 
 be asserted in an equitable administration 
 of the assets in the state where the receiv- 
 er was appointed. Farmers' Loan & T. Co. 
 v. Hankers' & M. Teleg. Co. 148 N. Y. 315. 
 42 N. E. 707, 31: 403 
 
 275. Debts established in a proceeding for 
 the receivership of an insolvent foreign cor- 
 poration will be paid out of the assets in 
 the receiver's hands before sending the re- 
 mainder of the assets to a receiver at the 
 domicil of the corporation. Failey v. Fee, 
 83 Md. 83, 34 Atl. 839, 32: 311 
 
 g. Rights in Property Generally; Transfers. 
 
 As to Jurisdiction Over Land in Other 
 
 Country, see Courts, 57. 
 As to Jurisdiction Over Land in Other 
 
 State, see Courts, I. b, 3, 6. 
 As to Jurisdiction Over Land in Other 
 
 County, see Courts, 54-56. 
 See also supra, 142. 
 For Editorial Notes, see infra, III. 12, 
 
 13. 
 
 276. A state has the power to change the 
 rule that the validity of a transfer of per- 
 sonal property is to be determined by the 
 law of the owner's domicil, so far as it re- 
 lates to property within its borders, and to 
 make the transfer thereof subject to its 
 own laws. Farmers & M. Xat. Bank v. 
 Loftus, 133 Pa. 97, 19 Atl. 347, 7: 313 
 Ownership of land under water. 
 
 276a. The law of the state in which the 
 lands lie determine the question whether 
 the bed of waters belongs to the state or 
 to the owners of riparian lands, where these 
 have been granted by the United States 
 without reservation or restriction. Lamprey 
 v. State, 52 Minn. 181, 53 N. W. 1139, 
 
 18: 670 
 
 Interest in trust property. 
 See also infra, 280. 
 
 277. The laws of the state in which a 
 trust was created and the trustee appoint- 
 ed and in which the parties interested re- 
 side will govern questions relating to the 
 interests of a beneficiary. First Nat. Bank, 
 v. National Broadway Bank, 156 N. Y. 459, 
 51 N. E. 308, 42: 139 
 Lien for materials. 
 
 278. That a contract for materials to be 
 delivered "at and for" a building iri New 
 York was made and payable in another 
 state does not prevent the materialman 
 from obtaining a lien therefor, under N. Y. 
 Laws 1885, chap. 342, providing that "any 
 person" may have a lien who has furnished 
 
 any materials which have been used in the 
 erection of any building within the state. 
 Campbell v. Coon, 149 N. Y. 556, 44 N. E. 
 300, 38:410 
 
 h. Transfers of Property Generally. 
 
 Tax on Transfers, see Taxes, 616-625, 627- 
 
 629. 
 See also supra, 110, 111, 113, 114, 166, infra, 
 
 335. 
 
 Power of appointment. 
 See also infra, 316, 317. 
 
 279. Questions as to the execution of a 
 power of appointment of personal proper- 
 ty are to be decided by the law of the domi- 
 cil of the donor of the power, and not by 
 the law of the domicil of the donee. Lane 
 v. Lane, 4 Penn. (Del.) 368, 55 Atl. 184, 
 
 64: 849 
 
 Conveyance of trust property. 
 See also supra, 277. 
 
 280. A disposition or pledge by a cestui 
 que trust, of an interest in a trust created 
 in and governed by the laws of another 
 state, is not subject to the provisions of 1 
 N. Y. Rev. Stat. 729, 63, prohibiting the 
 alienation of their interests by cestuis que 
 trusts. First Nat. Bank v. National Broad- 
 way Bank, .156 N. Y. 459, 51 N. E. 398, 
 
 42: 139 
 Conveyance by committee of lunatic. 
 
 281. A conveyance by a committee of the 
 land of a lunatic is not valid when author- 
 ized only by judgment of a court of another 
 state, in which the lunatic and the commit- 
 tee reside. Hotchkiss v. Middlekauf, 96 Va. 
 649, 32 S. E. 36, 43: 806 
 Effect of antenuptial contract to prevent. 
 
 282. An antenuptial contract made in a 
 foreign country, by which children of a for- 
 mer marriage of the wife were adopted as 
 heirs of the husband, will not prevent dis- 
 position of real property subsequently ac- 
 quired in Illinois after his emigration there- 
 to, although such children are infants at 
 the time of such emigration, incapable of 
 consenting to a change of domicil, or waiv- 
 ing any rights, as. if they acquire the status 
 of heirs, their inheritance must be in ac- 
 cordance with the laws of Illinois, by which 
 the husband has an absolute right* to dis- 
 pose of his property by will to the exclu- 
 sion of natural or adopted children. Long 
 v. Hess. 154 III. 482, 40 N. E. 335, 27: 791 
 
 283. An antenuptial contract made in a 
 foreign country, by which the children of a 
 former marriage of the wife are adopted by 
 the husband and the property settled upon 
 them and the children of the marriage, ap- 
 proved by the courts, is not applicable to 
 real property acquired by the husband in 
 Illinois after his emigration to this country, 
 so as to prevent his disposition thereof by 
 deed or will. Id. 
 Sale of personal property. 
 
 Sale of Liquor for Resale in Other State 
 as Interference with Commerce, see 
 . Commerce. 97-105. 
 
 Illegality of Contract for Sale of Liquor in 
 Other State, see Contracts, 397-399.
 
 528 
 
 CONFLICT OF LAWS, I. i. 
 
 See also supra, 113a. 
 
 For Editorial Notes, see infra, III. 15. 
 
 284. A contract by a Chicago company, 
 made by its traveling salesman with a pur- 
 chaser in Iowa, to sell coal delivered on the 
 cars at Chicago, is an Illinois contract. Os- 
 good v. Bauder, 75 Iowa, 550, 39 N. W. 
 887, 1 : 655 
 
 285. A sale of goods by a drummer, the 
 order for which is taken subject to the ap- 
 proval of his principal in another state, but 
 which is consummated by the segregation of 
 the goods sold from a stock of goods with- 
 in the state, is a contract of the latter 
 state, and subject to its laws. Succession 
 of Welsh, 111 La. 801, 35 So. 913, 64: 823 
 
 286. Where an order for goods is taken by 
 a drummer in one state subject to the ap- 
 proval of his principal, and is transmitted to 
 the principal in another state, and is there 
 approved and there filled by the segregation 
 and shipment of the goods, the sale is a 
 contract of the domicil of the vendor, and 
 does not give rise to a vendor's privilege 
 on the goods, unless such privilege exists 
 under the laws of such other state. Id. 
 
 287. The sale of beer shipped from Illi- 
 nois to Iowa is an Iowa contract, where the 
 agreement fixing the terms of sale is for- 
 warded from Illinois to Des Moines and 
 there signed, making in effect a continuing 
 offer to sell on terms stated, which offer is 
 accepted by letter or telegram. Gipps Brew. 
 Co. v. De France, 91 Iowa, 108, 58 X. W. 
 1087, 28: 386 
 
 288. A sale of liquors is subject to the 
 laws of the state of the purchaser's res- 
 idence, where, although the order is sent 
 to another state, and they are there de- 
 livered to a carrier for transportation to 
 the purchaser, the seller makes delivery to 
 him conditional on his complying with the 
 terms of the contract and obtaining the 
 bill of lading, which the seller takes in his 
 own name and transmits to a bank for de- 
 livery when the contract is complied with, 
 the shipper retaining full control until that 
 time. Brown v. Wieland, 116 Iowa, 711, 
 89 X. W. 17, 61 : 417 
 
 28!). A statute making void all sales of 
 intoxicating liquors, and providing for a 
 return of the price paid, does not apply to 
 sales consummated in another state, al- 
 though they were made in response to an 
 order procured by a local agent, and were 
 delivered by the carrier to the purchaser in 
 the state where the statute exists. Id. 
 
 i. Chattel Mortgages; Conditional Sales. 
 
 Chattel mortgages. 
 
 Law Governing Execution, Acknowledgment 
 and Recording of, see Chattel Mort- 
 gage, 3. 
 For Editorial Notes, see infra, III. 14. 
 
 290. The law of Arkansas will be applied 
 in an attachment suit in that state on an 
 interplea by a person claiming chattels un- 
 der a mortgage given in the Indian terri- 
 tory, where there is no proof of the laws 
 of the territory. Garner v. Wright, 52 Ark. 
 385, 12 S. W.' 785, 6: 715 
 
 291. The validity of a chattel mortgage 
 executed by an insolvent foreign corpora- 
 tion in the state which created it, to secure 
 a creditor residing in that state, must be de- 
 termined by the laws of the state in which 
 the property is situated. Fowler v. Bell, 90 
 Tex. 150, 37 S. W. 1058, . 39: 254 
 
 292. A chattel mortgage duly recorded in 
 one state will not, under the doctrine of 
 comity, be given priority by the courts of 
 another state, to which the chattels are re- 
 moved, over local attaching creditors who 
 had no actual notice of it. Snider v. 
 Yatcs, 112 Tenn. 309, 79 S. W. 796, 64: 353 
 
 293. The lien of a chattel mortgage duly 
 recorded in the state where the mortgagor 
 resides is not superior, in another state,^to 
 which the property was carried and 'in 
 which the mortgage is not filed, to subse- 
 quent attachments in the latter state. Cor- 
 bett v. Littlefield, 84 Mich. 30, 47 N. W. 
 581, 11:95 
 
 294. A mortgagor's removal of personal 
 property to another state, where it is 
 seized and sold by his creditors on attach- 
 ment, cannot affect the rights of the mort- 
 gagee, whose mortgage was duly recorded in 
 the state where the parties resided. Horn- 
 thall v. Burwell. 109 N. C. 10, 13 S. E. 721, 
 
 13: 740 
 
 295. A mortgagor bringing into the state 
 property encumbered by a valid mortgage 
 duly recorded under the laws of another 
 state does not invalidate the recording, or 
 nece?sitate recording it again in the county 
 to which he has removed with the property. 
 Handley v. Harris, 48 Kan. 606, 29 Pac. 
 1145. 17: 703 
 
 296. The lien of a mortgage on chattels, 
 duly recorded as required by the law of the 
 state where they are located, follows the 
 property when it is taken into another 
 state, either with or without the consent of 
 the mortgagee, and is not destroyed by a 
 local statute merely prescribing how such 
 mortgages shall be executed and recorded. 
 Shapard v. Hynes, 45 C. C. A. 271, 104 Fed. 
 449, 52: 675 
 
 297. The constructive notice imparted by 
 the registration' of a chattel mortgage in 
 the county and state where executed is not 
 confined to that county and state, but pro- 
 tects the interests of the mortgagee when 
 the property is removed by the mortgagor 
 to another state, by the law of comity be- 
 tween states. Ord Nat. Bank v. Massey, 48 
 Kan. 762, 30 Pac. 124, 17: 127 
 
 298. A chattel mortgage duly recorded so 
 as to constitute notice in one state is by 
 comity good in another state to which the 
 property is taken in violation of the agree- 
 ment and sold, even as against an innocent 
 purchaser of the property for value, unless 
 this rule is against the policy of the laws 
 of the latter state. National Bank of Com- 
 merce v. Morris, 114 Mo. 255, 21 S. W. 511, 
 
 19: 463 
 
 299. A chattel mortgage on horses, given 
 in Canada by the owner of a half interest 
 in them and filed by the mortgagee, who 
 takes possession of the horses and puts 
 them in the care of a keeper of a hotel
 
 CONFLICT OF LAWS, I. j. 
 
 529 
 
 at a race track to bold possession for him, 
 gives such mortgagee a better right to such 
 interest in the horses after they have been 
 taken Avithout his consent from the custo- 
 dian and shipped to Michigan by the owners 
 of the other half interest in the horses, who 
 did not know of his mortgage, than the lat- 
 ter can assert under another chattel mort- 
 gage from the same mortgagor, which they 
 took in Michigan before the horses went to 
 Canada and recorded after their return. 
 Vinning v. Miller, 109 Mich. 205, 67 N. W. 
 126, 32:442 
 
 Conditional sales. 
 For Editorial Notes, see infra, III. 15. 
 
 300. A state statute requiring conditional 
 sales of personal property to be recorded ap- 
 plies to a contract of sale, made in another 
 state, of property to be delivered and held 
 within the former state. Knowles Loom 
 Works v. Vacher (N. J. Sup.)* ,57 N. J. L. 
 490, 31 Atl. 306, 33: 305 
 
 301. A conditional sale valid where it is 
 made, by which the title is retained until 
 the purchase money is paid, may be upheld 
 against an innocent purchaser from the 
 original vendee in another state to which 
 the property is taken without payment, in 
 accordance with the law of that state, al- 
 though by the laws of the former state the 
 conditional sale would be held invalid as to 
 a bona fide purchaser, because not recorded. 
 Weinslem v. Freyer, 93 Ala. 257, 9 So. 285, 
 
 12: 700 
 
 j. Descent and Distribution; Wills. 
 
 Descent and distribution. . 
 See also supra, 143, 151-153, 221, 282; Exec- 
 utors and Administrators, 101. 
 For Editorial Notes, see infra, III. 17.' 
 
 301 a. The different states of this Union 
 are foreign countries to each other so far 
 as the law of descents is concerned. Wil- 
 liams use of Wallace v. Kimball, 35 Fla. 
 49, 16 So. 783, 26: 746 
 
 302. The law in the state in which real 
 estate is situated furnishes the rule as to 
 its descent, alienation, and transfer, the 
 construction and validity of conveyances, 
 thereof, and the capacity of the parties to 
 such conveyances, as well as their rights 
 under the same. Walling v. Christian & C. 
 Grocery Co. 41 Fla. 479. 27 So. 46, 47: 608 
 
 303. The descent and heirship of real es- 
 tate are exclusively governed by the law of 
 the country within which it is actually sit- 
 uated. Williams use of Wallace v. Kimball, 
 35 Fla. 49, 16 So. 783, 26: 746 
 
 304. Upon the law of the domicil of a 
 minor child at the time of its death depend 
 the inheritance rights of its heirs. Fox v. 
 Hicks, 81 Minn. 197, 83 N. W. 538, 50: 663 
 
 305. A child adopted in a sister state in 
 substantial compliance with her statutes 
 will inherit lands of the deceased adopting 
 parent on equal terms with a child of such 
 parent born in wedlock. Gray v. Holmes, 
 57 Kan. 217, 45 Pac. 596, 33: 207 
 
 306. Real property may descend to a child 
 who, by adoption in another state, has be- 
 come there the lawful heir of the owner of 
 
 L.R.A. Dig. 34. 
 
 the property. Van Matre v. Sankey, 148 
 111. 536, 36 N. E. 628, 23: 665 
 
 307. The offspring of a bigamous marri- 
 age contracted in Illinois, where it is void, 
 may, as legitimate heirs, inherit lands in 
 Kentucky, where the parents lived, by vir- 
 tue of the Kentucky statute declaring that 
 the issue of an illegal or void marriage 
 shall be legitimate. Leonard v. Braswell, 
 99 Ky. 528, 36 S. W. 684, 36: 707 
 
 308. The right of a surviving husband to 
 the personal estate of his wife, being pro- 
 vided for by the New York statutes only 
 when she leaves descendants, and being in 
 other cases referable to his common-law 
 marital rights, cannot be upheld in Missouri 
 with respect to the personal property in 
 that state of a married woman without de- 
 scendants, who was domiciled in New York, 
 under Mo. Rev. Stat. 1899, 254, providing 
 that the personal property in that state of 
 the inhabitant of another state will be dis- 
 tributed according to the law of the lat- 
 ter state, since this section is intended to 
 recognize and give effect to foreign statutes 
 of distribution in such cases, but not to 
 adopt foreign laws governing marital rights. 
 Re McPherson, 163 Mo. 493, 63 S. W. 726, 
 
 52: 420 
 Wills. 
 Conclusiveness of Probate in Other State, 
 
 see Judgment, 356. 
 Probate of Foreign Will, see Judgment, 338. 
 
 339. 
 
 See also supra, 52, infra, 334; Wills, 157. 
 For Editorial Notes, see infra, HI. 17. 
 
 309. A state statute concerning wills, for- 
 bidding a testator to give more than half 
 of his estate to religious corporations, etc., 
 does r.ot apply to a gift to such a corpora- 
 tion of that state by a will executed by a 
 nonresident in his own state. American Bi- 
 ble Soc. v. Healy, 153 Mass. 197, 26 N. E. 
 404, 10: 766 
 
 310. A bequest of personalty to a "com- 
 munity" in a foreign country is valid if it 
 has capacity to take by the laws of that 
 country. Re Huss, 126 N. Y. 537, 27 N. E. 
 784, 12: 620 
 
 311. That promissory notes bequeathed by 
 will are secured by mortgage on real estate 
 does not deprive them of the character of 
 personal property so as to prevent their 
 passing by a foreign will duly probated at 
 testator's domicil, and recorded in the state 
 where the land is situated, as provided by 
 the laws of the latter state. Martin v. 
 Stovall, 103 Tenn. 1, 52 S. W. 296. 48: 130 
 
 312. The law of the forum as to the valid- 
 ity of a bequest will be applied to a gift by 
 will to a foreign corporation, especially 
 when this gratifies, and does not frustrate, 
 the testator's wishes, although the law of 
 the state which created the corporation may 
 be different. Congregational Church Bldg. 
 Soc. v. Everitt. 85 Md. 79, 36 Atl. 654, 
 
 35: 693 
 
 313. The law of a legatee's domicil gov- 
 erns the lapsing of a legacy of bank stock 
 made by a will in another state in which 
 the bank is situated, although a statute of 
 the latter state, if applicable, would pre-
 
 5BO 
 
 CONFLICT OF LAWS, II. 
 
 vent the lapsing. Lowndes v. Cooch, 87 Md. 
 478, 39 Atl. 1045, 40: 380 
 
 314. The residue personalty as well as 
 real estate will go to those who would be 
 entitled to succeed to the real estate of the 
 life tenant in case of intestacy, under a 
 will which gives a portion of testator's prop- 
 erty, consisting of both real estate and per- 
 sonalty, to one for life and after his decease 
 to his heirs at law; and such persons must 
 be determined by the law of testator's dom- 
 icil, by. which he must be presumed to have 
 intended that his beneficiaries should be 
 ascertained; and this is so although all the 
 land given by the will is situated in the 
 state where the life tenant resided, which is 
 foreign to the testator's domicil. Lincoln v. 
 Perry, 149 Mass. 368, 21 N. E. 671, 4: 215 
 
 315. The question who are the heirs at 
 law of a person, within the meaning of a 
 Massachusetts will which gives them an es- 
 tate in a certain event if he is not then 
 living, is to be determined by the law of 
 Massachusetts, although the person named 
 is domiciled in another state. Proctor v. 
 Clark, 154 Mass. 45, 27 N. E. 673, 12: 721 
 
 316. The law of the domicil of the donor 
 of a power given by will must govern, as 
 against the law of the domicil of the donee, 
 in determining whether or not the will of 
 the latter is an execution of the power. 
 Cotting v. De Sartiges, 17 R. I.' 668, 24 Atl. 
 530, 16: 367 
 
 317. The establishment by express stat- 
 ute, both in England where a will was made, 
 and in New York where the testator was 
 domiciled, of the rule that a general devise 
 is sufficient to execute a power of appoint- 
 ment, cannot prevail in respect to a trust 
 fund held under the will of the donor, 
 whose domicil was in Rhode Island, as 
 against the contrary rule, which, in the ab- 
 sence of a statute, prevails in the latter 
 state. Id. 
 
 318. A gift in trust to a charity in a for- 
 eign country in which the trustees are com- 
 petent to take and hold and the trust is 
 capable of being executed and enforced is 
 not invalid because such a trust would con- 
 travene the law of the testator's domicil in 
 respect to the creation of trusts and per- 
 petuities. Hope v. Brewer, 136 N. Y. 126. 
 32 N. E 558, 18: 458 
 
 319. The New York law against perpetui- 
 ties will not defeat a bequest of personal 
 property in trust which was valid under the 
 law of the testator's domicil. although the 
 property and the trustee and most of the 
 beneficiaries are in the state of New York. 
 Cross v. United States Trust Co. 131 N. Y. 
 330, 30 N. E. 125, 15: 606 
 
 II. Remedies. 
 
 Effect of Death Sentence in Other State, see 
 Civil Death. 6. 
 
 Law of What Date Governs, see Criminal 
 Law, 6; Dower, 2; Taxes, 564. 
 
 Powers and Rights of Receivers, see Re- 
 ceivers. 54, 79, 80. 
 
 See also supra, 43. 
 
 For Editorial Notes, see infra, HI. 21, 
 24. 
 
 320. The remedy upon a contract will be 
 administered according to the law of the 
 place where the remedy is sought. Heaton 
 v. Eldridge, 56 Ohio St. 87, 46 N. E. 638, 
 
 36: 817 
 
 321. Where a statutory right is created, 
 coupled with a specific remedy to enforce it, 
 such remedy is exclusive, and cannot be 
 pursued in foreign jurisdictions. Finney v. 
 Guy, 106 Wis. 256, 82 N. W. 595, 49:486 
 
 322. Whether the determination of a 
 matter is for the court or for the jury is a 
 matter affecting the remedy, and is con- 
 trolled by the lex fori, and not by the lex 
 loci contractus. Massachusetts Ben. L. 
 Asso. v. Robinson, 104 Ga. 256, 30 S. E. 918, 
 
 42: 261 
 
 323. The spirit of comity does not require 
 that a nonresident shall be allowed a rem- 
 edy which is by the policy of the state law 
 denied to its own citizens. Ruhe v. Buck, 
 124 Mo. 178, 27 S. W. 412, 25: 178 
 
 324. The law of the forum prevails as to 
 the form of the remedy, the conduct of the 
 trial, and the rules of evidence in an action 
 upon a transitory cause of action arising 
 in another jurisdiction. Eingartner v. Il- 
 linois Steel Co. 94 Wis. 70, 68 N. W. 664, 
 
 34: 503 
 
 Attachment and garnishment. 
 Of Resident's Wages in Other State, Equal 
 
 Protection as to, see Constitutional' 
 
 Law, 564. 
 See also supra, 250, 265-267, 271, 284, 290, 
 
 292-294, infra, 352; Garnishment, 79- 
 
 81, 91-94. 
 For Editorial Notes, see infra, III. 22. 
 
 325. Mill. & V. (Tenn.) Code, 5040, pro- 
 viding that residents of other states, having 
 exhausted their remedies there against debt- 
 ors residing in such states, may subject to 
 the satisfaction of ' their claims property 
 situated in Tennessee, gives such creditors 
 a remedy to the same extent and in the 
 same manner and with the same priority as 
 a citizen of Tennessee. Commercial Nat. 
 "Rank v. Matherwell Iron & S. Co. 95 Tenn. 
 172. 31 S. W. 1002, 29: 164 
 
 326. An attachment of the property of a 
 married woman, which is not allowed by 
 state law in. the case of its own citizens, 
 will not be allowed to a nonresident credi- 
 tor, although the debt was created in anoth- 
 er state where the married woman resided 
 and where the contract creating it was val- 
 id. Ruhe v. Buck, 124 Mo. 178, 27 S. W. 
 412, 25: 178 
 
 327. Attaching creditors, although non- 
 residents, who seek to question a prefer- 
 ence in a prior assignment under an insol- 
 vent law of their own state, are entitled to 
 the same protection and preference under 
 attachment laws as if they were residents. 
 T.arth v. Backus, 140 N. Y. 230, 35 N. E. 
 425, 23:47 
 
 328. Citizens of a foreign state will not 
 be aided by the courts to obtain by garnish- 
 ment preference of their claims against a
 
 CONFLICT OF LAWS, II. 
 
 531 
 
 foreign debtor in disregard of proceedings in 
 his own country for the sequestration of 
 his estate and the appointment of a trustee 
 thereof in bankruptcy. Long v. Forrest, 
 150 Pa. 413, 24 Atl. 711, 23: 33 
 
 Action on judgment. , 
 See also infra, 338. 
 
 320. An action at law may be maintained 
 to enforce payment of sums due under a 
 decree in equity for payment of alimony 
 rendered in another state, although the de- 
 cree is not for a specific sum, but for a 
 periodic allowance, and the remedy in the 
 state where the decree was rendered would 
 be by contempt proceedings in the equity 
 court. Wagener v. Latham, 26 R. I. 27, 57 
 Atl. 1058, 65: 816 
 
 330. The principles of comity do not ap- 
 ply to an action by. a foreign receiver of 
 a foreign mutual insurance company acting 
 under a decree in the foreign jurisdiction 
 making an assessment on premium notes, 
 even if otherwise applicable where the notes 
 were taken for insurance on property in 
 the state while the company was doing busi- 
 ness within the state in violation of Mc- 
 Clain's (Iowa) Code, 1144, prohibiting for- 
 eign insurance companies from doing bus- 
 iness without compliance with the condi- 
 tions therein mentioned. Parker v. C. 
 Lamb & Sons, 99 Iowa, 265, 68 N. W. 686, 
 
 34: 704 
 
 Statute of frauds. 
 For Editorial Notes, see infra, III. 8. 
 
 331. The defense of the statute of frauds 
 depends on the law of the state in which 
 an action is brought. Obear v. First Nat. 
 Bank. 97 Ga. 587, 25 S. E. 335, 33: 384 
 
 332. The law of the forum that "no action 
 shall be brought" upon any contract which 
 is not to be performed within one year, un- 
 less it is in writing, will govern in an ac- 
 tion upon such a contract, although the con- 
 tract was made in another state in which it 
 could be proved by oral evidence. Heaton 
 v. Eldridge, 56 Ohio, 87, 46 N. E. 638, 
 
 36: 817 
 
 333. A court will not entertain a suit to 
 charge a person on an unsigned representa- 
 tion as to the credit of another person, al- 
 though it is valid where made, if the stat- 
 ute of the place where the suit is brought 
 provides that no action shall be brought to 
 charge one on such a representation, un- 
 less it is in writing, signed, by the party to 
 be charged thereon. Third Nat. Bank v. 
 Steel, 129 Mich. 434, 88 N. W. 1050, 64: 119 
 
 334. An oral contract to make a will, al- 
 though valid in the state where it is made, 
 cannot be enforced in Massachusetts against 
 inhabitants of that state, since an action 
 must be controlled by the policy of Mass. 
 Stat. 1888, chap. 372, which requires such 
 agreements to be in writing. Emery v. 
 Burbank, 163 Mass. 326, 39 N. E. 1026, 
 
 28: 57 
 
 335. An oral contract for real property, if 
 valid at the place where it is made and 
 where the property is situated, may be en- 
 forced in another state notwithstanding a 
 statute of the latter declaring that such 
 
 contract shall be void if not in writing. 
 
 Wolf v. Burke, 18 Colo. 264, 32 Pac. 427, 
 
 19: 792 
 
 Statute of limitations. 
 
 Limitation of Action to Enforce Judgment 
 of Other State, see Limitation of Ac- 
 tions, 209, 210. 
 
 For Editorial Notes, see infra, III. 23. 
 
 336. Where a right of action for a tort is 
 given by a statute of another state, and no 
 period of limitation is prescribed otherwise 
 than by the general law of limitation pre- 
 vailing in that state, the lex fori, not the 
 lex loci, applies on the subject of limitation. 
 O'Shields v. Georgia P. R. Co. 83 Ga. 621, 
 10 S. E. 268, 6: 152 
 
 337. The bar of an action by the statute 
 of limitations must be determined by the 
 laws of the state in which the remedy is 
 sought, although the action is brought on 
 a written contract executed and to be per- 
 formed in another state. Obear v. First Nat. 
 Bank, 97 Ga. 587, 25 N. E. 335, 33: 384 
 
 338. A plea of the statute of limitations, 
 in an action on a judgment obtained in 
 another state, is a plea to the remedy, and 
 subject to the lex fori. Arrington v. Ar- 
 rington, 127 N. C. 190, 37 S. E. 212, 52: 201 
 
 339. The courts of one state will not en- 
 force the provisions of a contract made in 
 another state as to the time in which ac- 
 tions shall be brought on it, which are con- 
 trary to the provisions of the local stat- 
 ute of limitations. Adams Exp. Co. v. 
 Walker, 26 Ky. L. Rep. 1025, 83 S. W. 106. 
 
 67: 412 
 
 340. A judgment of the courts of a state 
 where a note is sent for collection holding 
 it barred by the statute of limitations will 
 not bar a suit upon the note in another 
 state where the action is not barred, if, by 
 the laws of the state where the judgment 
 was rendered, the cause of action was not 
 extinguished by the judgment, which oper- 
 ates exclusively upon the remedy. Brand 
 v. Brand, 116 Ky. 785, 76 S. W. 868, 63: 206 
 
 341. A statute of a foreign country, pro- 
 viding that a cause of action for personal 
 injuries shall be absolutely extinguished in 
 one year, will not operate as a defense to a 
 suit in the United States, where the injured 
 person left such country before such statute 
 became operative by the expiration of the 
 year. Canadian P. R. Co. v. Johnston, 26 
 U. S. App. 85, 9 C. C. A. 587, 61 Fed. 738, 
 
 25: 470 
 
 342. Suit in another state to collect from 
 an intestate estate a claim barred by the 
 statute of limitations of the decedent's 
 domicil, but not of the state where the suit 
 is brought, is not inequitable; and an in- 
 junction against it will not be granted by a 
 court of his domicil. Thorndike v. Thorn- 
 dike, 142 111. 450, 32 N. E. 510, 21:71 
 
 343. The right to redeem land from a 
 mortgage or absolute deed given as security 
 is governed by the law of the place where 
 the land lies; and the rule there prevail- 
 ing, that such a right is barred when an 
 action on the debt is barred, must control, 
 although in another state, where the par- 
 ties reside and the contract was made, the
 
 532 
 
 CONFLICT OP LAWS. IL 
 
 bar of the debt would not defeat the right 
 to redeem. Allen v. Allen, 95 Cal. 184, 30 
 Pac. 213, 16: 646 
 
 344. A special statute of limitations ap- 
 plicable to liabilities arising under statutes, 
 acts of incorporation, or by operation of 
 the law, such as Ga. Code 1882, 2916 
 (Code 1895, 3766), is to be considered as 
 forming a part of and as read into a sub- 
 sequent act of incorporation as much as 
 if it were formally incorporated therein, 
 and therefore it will govern in an action 
 in another state to enforce the liability of 
 a stockholder in such corporation. Bruns- 
 wick Terminal Co. v. National Bank of Bal- 
 timore, 40 C. C. A. 22, 99 Fed. 635, 48: 625 
 
 345. The effect of partial payments upon 
 a contract, to interrupt the statute of lim- 
 itations, must be determined by the law 
 of the state in which the action is brought, 
 although the contract was made and to be 
 performed in another state. Obear v. First 
 Nat. Bank, 97 Ga. 587, 25 S. E. 335, 33: 384 
 To enforce stockholder's liability. 
 
 Right of Assignee for Creditors to Sue Out- 
 side of State, see Assignments for Cred- 
 itors, 26. 
 
 See also supra, 344. 
 For Editorial Notes, see infra, III. 10. 
 
 340. Although the liability of a stockhold- 
 er in a foreign corporation may be enforced 
 by creditors wherever they can obtain ju- 
 risdiction of the necessary parties, yet the 
 remedy is governed by the law of the fo- 
 rum. ' First Nat. Bank v. Gustin-Minerva 
 Consol. Min. Co. 42 Minn. 327, 44 N. W. 198, 
 
 6: 676 
 
 347. A special remedy against stockhold- 
 ers of a corporation provided by the laws of 
 the state where the corporation is domi- 
 ciled will not, on the ground of comity, be 
 enforced in the courts of another state which 
 has a different and inconsistent method of 
 procedure, where it will result in injustice 
 to the citizens of the latter state. Tuttle 
 v. National Bank of the Republic. 161 111. 
 497, 44 N. E. 984, 34: 750 
 
 348. No action will lie in courts out of 
 the state to enforce liability of stockholders 
 for corporate debts, where the statutes im- 
 posing such liability provide a single meth- 
 od of enforcing it by one suit in the state 
 courts in favor of all creditors and against 
 the corporation, if it nas assets, and all 
 stockholders. Finney v. Guy, 106 Wis. 25<i, 
 82 N. W. 595, 49: 486 
 
 349. If, under any circumstances, an ac- 
 tion to enforce a statutory liability against 
 a stockholder of a foreign corporation could 
 be enforced outside of'the state of its crea- 
 tion, it must be by such modes of procedure 
 as like liabilities created by the state where 
 the suit is brought are enforced against its 
 citizens. Marshall v. Sherman, 148 N. Y. 9, 
 42 N. E. 419, 34: 757 
 
 350. An action to charge stockholder? 
 with the amount of a judgment against a 
 corporation. Avhich is one of the remedies 
 authorized by Kan. Stat. chap. 23, art. 4. 
 1192, is transitory, and may be brought 
 in a court of general jurisdiction in another 
 state, where personal service can be made 
 
 upon the stockholder. Ferguson v. Sherman, 
 116 Cal. 169, 47 Pac. 1023, 37:622 
 
 351. An. action by a creditor to enforce 
 the liability of a stockholder under Kan. 
 Gen. Stat. 1889, ft 1192, is transitory, and 
 may be brought in any court of general 
 jurisdiction over similar actions in any state 
 or country where service can be made ac- 
 cording to the laws of that place. Hancock 
 Nat, Bank v. Ellis, 172 Mass. 39, 61 N. E. 
 207, 42: 396 
 
 352. The courts of another state cannot 
 enforce the stockholders' liability for unpaid 
 subscriptions provided by the Illinois act of 
 1871-72, p. 299, 8, as that is not a general- 
 contract liability, but is to be enforced by 
 the remedy corresponding to garnishment 
 provided in that section. Russell v. Pa- 
 cific R. Co. 113 Cal. 258, 45 Pac. 323, 
 
 34: 747 
 
 353. A suit equitable in form, to enforce 
 in Ohio the statutory liability of those 
 stockholders of a Kansas corporation who 
 are within the jurisdiction to a creditor who 
 had obtained judgment against the corpo- 
 ration in Kansas, is not objectionable on 
 the ground that it is an attempt to base a 
 creditors' bill on a judgment of another 
 state, since the liability is not to the cor- 
 poration, but directly to the creditor, and 
 the right to maintain the suit does not de- 
 pend at all upon the form of the action, but 
 on the substance of the allegations. Blair 
 v. Newbegin, 65 Ohio St. 425, 62 N. E. 1040, 
 
 58:644 
 Exemption laws. 
 
 354. Exemption laws of another state 
 have no extraterritorial force, and will not 
 be enforced by the courts of this state. 
 Pennsylvania R. Co. v. Rogers, 52 W. Va. 
 450, 44 S. E. 300, 62: 178 
 
 355. An exemption law of one state has 
 no effect in an action brought in another 
 state. Carson v. Memphis & C. R. Co. 88 
 Tenn. 646, 13 S. W. 588, 8: 412 
 
 356. The right to exemption from execu- 
 tion is subject to the law of the forum. 
 Goodwin v. Claytor, 137 N. C. 224, 49 S. E. 
 173, 67:209 
 
 357. Property exempt from levy and sale 
 on execution cannot be subjected to the pay- 
 ment of a judgment for a debt incurred in 
 a sister state where the exemption laws are 
 different, La Selle v. Woolery, 11 Wash. 
 337, 39 Pac. 663, 32: 73 
 
 358. A debtor cannot claim the benefit of 
 the exemption law of the state of his dom- 
 icil, even against his creditor residing there, 
 with respect to a debt due him by a corpora- 
 tion, located and doing business in another 
 state, which is also the situs of the debt, 
 and which debt has been attached by the 
 creditor at the domicil of the corporation. 
 Goodwin v. Claytor, 137 N. C. 224, 49 S. E. 
 173, 67:209 
 Rules of evidence. 
 
 See also supra, 324; Evidence, 822, 823. 
 
 359. A statutory provision regulating 
 the use of an application for a policy of in- 
 surance as evidence is not effective in an- 
 other state, although action is brought on a 
 policy which is expressly made with refer-
 
 CONFLICT OF LAWS, III. (Ed. Notes.) 
 
 533 
 
 ence to the laws of the former state. Union 
 C. L. Ins. Co. v. Pollard, 94 Va. 146, 26 S. 
 E. 421, 36: 271 
 
 360. The admissibility or competency of 
 evidence in a legal proceeding pertains to 
 the remedy and is governed by the lex fort; 
 and therefore a clause in the British ship- 
 ping act of 1854, making certain entries in 
 the official log book competent evidence in 
 all courts, does not make them so in the 
 courts of any other country. The City of 
 Carlisle, 39 Fed. 807, 5: 52 
 
 III. Editorial Notes. 
 
 As to Jurisdiction of Action with Respect 
 to Land in Another State, 
 see Courts, VI. 6. 
 
 As to Foreign Judgment, see * Judgment, 
 VIII. 26-29. 
 
 Situs of Property for Purposes of Taxation, 
 see Taxes, VI. 18-22. 
 
 a. In general; contracts. 
 
 i. In general. 
 
 Law of comity in enforcement of rights. 
 
 6: 110.* 
 Recognition of foreign laws; comity. 10: 
 
 767.* 
 When lex loci contractus governs. 3: 523,* 
 
 702.* 
 W T hen law of place of performance governs. 
 
 3: 524.* 
 
 Validity. 1: 656;* 2: 355;* 6: 108.* 
 Interpretation and effect. 1: 655;"' 6: 108.* 
 2. Carriers' contracts. 
 General principles. 63: 513. 
 
 Intention of the parties generally; 
 
 when expressed. 63: 513. 
 Presumed intention; subsidiary rules. 
 
 63:515. 
 
 When transportation wholly with- 
 in one state. 63: 515. 
 When transportation within two 
 or more states or coun- 
 tries. 63:516. 
 
 Local law as opposed to general prin- 
 ciples of commercial law. 
 63: 523. 
 
 Public policy. 63: 525. 
 Application of general principles to partic- 
 ular matters. 63: 525. 
 Prima facie character of subsidiary 
 
 rules. 63: 525. 
 
 As to limitation of carrier's common- 
 law liability. 63:525. 
 Exemption from liability for loss 
 or injury not due to neg- 
 ligence. 63: 525. 
 
 Exemption from liability for neg- 
 ligent loss or injury. 
 63: 526. 
 Limitation of amount of carrier's 
 
 liability. 63: 529. 
 
 As to liability of carrier beyond own 
 line; liability of connect- 
 ing carrier. 63: 530. 
 As to continuance of carrier's liability 
 after arrival of goods at 
 destination. 63: 531. 
 
 Vis major: act of God. 63: 631. 
 Telegraph cases. 63: 532. 
 Miscellaneous. 63 : 533. 
 3. Negotiable paper. 
 General commercial principles as opposed 
 
 to local law. 61: 193. 
 Time of payment. 61: 195. 
 Mode of acceptance of bill. 61 : 196. 
 Collateral effect of instrument. 61: 199. 
 Character and liability of irregular indors- 
 
 er. 61:200. 
 
 Character of holder. 61 : 202. 
 Negotiability in general; bill or note 
 fraudulently transferred. 
 61 : 205. 
 
 Liability of, and defenses available to, 
 maker, or acceptor. 61: 
 206. 
 
 In general. 61: 206. 
 As between the law of the substantive 
 contract and the law of 
 the remedy. 61 : 207. 
 As between the law of the original con- 
 tract and the law of the 
 contract of indorsement. 
 61: 208. 
 
 As between the law of the place where 
 the contract is made and 
 that of the place where 
 it is payable. 61: 209. 
 
 Liability of, and defenses available to, 
 drawer or indorser. 61: 
 212. 
 The nature of the drawer's or indors- 
 
 er's contract. 61:212. 
 Substantive liability. 61 : 213. 
 Conditions precedent to liability of the 
 drawer or indorser. 61: 
 215. 
 
 In general. 61: 215. 
 Demand and protest. 61:216. 
 Notice. 61: 217. 
 
 Necessity of suing primary obligor 
 as condition of holding 
 drawer or indorser. 61: 
 220. 
 
 Who may bring action; sufficiency of the 
 indorsement or assign- 
 ment. 61 : 222. 
 
 Right to join primary and secondary obli- 
 gors. 61 : 226. 
 4. Insurance. 
 Where contract of insurance deemed to have 
 
 been made. 63: 834. 
 In general. 63: 834. 
 When proposition, embodying terms, 
 emanates from the insur- 
 er. 63 : 835. 
 When concluded in first instance by lo- 
 
 "cal agent. 63: 835. 
 When local agent has no authority to 
 accept application. 63 : 
 836. 
 
 When policy mailed directly to in- 
 sured. 63: 837. 
 
 When policy mailed to agent of in- 
 sured. 63 : 839. 
 
 When policy delivered to insured 
 by local agent of insurer. 
 63:840.
 
 534 
 
 CONFLICT OF LAWS, III. (Ed, Notes.) 
 
 When local agent required to 
 countersign policy. 63 : 
 840. 
 
 Stipulation that contract is 
 not to take effect until 
 delivery or payment of 
 premium. 63: 841. 
 When no conditions prece- 
 dent expressly imposed. 
 63: 843. 
 
 Revival; open policy. 63: 846. 
 Choice of laws. 63: 847. 
 
 General principles; intention; express 
 stipulations as to govern- 
 ing law; public policy. 
 63: 847. 
 
 Local statutes relating to foreign in- 
 surance companies and 
 their agents. 63: 850. 
 Laws of state of incorporation as limi- 
 tation upon powers of in- 
 surance company. 63: 853. 
 Law of place of performance. 63: 854. 
 Law of place where insured property 
 
 is situated. 63: 855. 
 Law of place where loss occurs, 63:855. 
 Construction and interpretation of tne 
 language of the policy. 
 63: 856. 
 
 In general. 63: 856. 
 As to the designation of benefi- 
 ciaries. 63: 856. 
 Assignment of policy. 63: 858. 
 Right of insured to dispose of proceeds; 
 validity of change of ben- 
 eficiary. 63: 862. 
 
 Rights of creditors in proceeds. 63: 862. 
 As to notice; forfeiture; commutation; 
 extended insurance ; sur- 
 render value. 63:862. 
 As to effect of misrepresentation in the 
 
 application. 63: 864. 
 As to valued policy. 63: 866. 
 Suicide. 63: 867. 
 
 As to necessity of attaching applica- 
 tion, or copy thereof, to 
 policy. 63: 867. 
 
 Transitory character of action. 63: 868. 
 As to damages and interest ex mora. 
 
 63: 868. 
 
 As to contractual limitation. 63: 868. 
 Miscellaneous. 63: 869. 
 Law governing notes given for insurance 
 
 premiums. 20: 409. 
 5. Contracts of married women. 
 Capacity of married woman to contract. 
 
 57: 513. 
 As between lex loci contractus and lex 
 
 domicilii. 57: 513. 
 General rule. 57: 513. 
 Exceptions; when domicil is at 
 
 forum. 57: 517. 
 As between lex loci contractus and lex 
 
 fori ; remedy. 57 : 520. 
 As between lex loci contractus, or lex 
 domicilii, and lex rei sitce. 
 57 : 523. 
 
 Personal property. 57: 523. 
 Real property. 57 : 524. 
 
 Enforceability of contracts of married 
 women outside of state in 
 which they are legally 
 made. 25: 178. 
 
 Contracts in relation to real estate 
 situated where the suit is 
 brought. 25: 179. 
 Contract outside of state of domicil. 
 
 25: 180. 
 The remedy applicable. 25: 180. 
 
 6. Gambling and lottery contracts. 
 
 Gambling contracts. 64: 160. 
 
 Public policy of forum; transitory 
 character of action. 
 64: 160. 
 
 Governing law when public policy of 
 forum does not interfere. 
 64: 165. 
 
 Lottery contracts. 64: 169. 
 
 7. Contracts of sale of intoxicating liquor. 
 
 General principles. 61: 418. 
 
 Where executed contract consummated; de- 
 livery to carrier general- 
 ly. 61 : 419. 
 
 When executory contract consummated in 
 one state and executed 
 contract in another. 
 61: 424. 
 
 Effect of soliciting order within state hav- 
 ing prohibitory law. 
 61:427. 
 
 Public policy of forum; intention to violate 
 prohibitory statute of 
 forum. 61 : 429. 
 
 New or substituted contract. 61: 433. 
 
 When sale invalid by law of place where 
 made, but valid by law of 
 forum. 61 : 434. 
 
 8. Statute of frauds. 
 
 Generally. 19: 792; 64: 119. 
 
 As between law of forum and substantive 
 law of contract. 64: 119. 
 
 As between law of place where contract is 
 made and that of place 
 where it is- performable. 
 64: 122. 
 
 As between law of place where contract is 
 made and that of place 
 where property is situat- 
 ed. 64: 123. 
 
 9. Interest and usury. 
 
 Interest as Damages, see infra, III. 11. 
 
 General principles; intention of parties. 
 62: 33. 
 
 Contractual interest. 62: 35. 
 
 Usury. 62: 42. 
 
 Effect of penal or remedial character 
 
 of foreign statute. 62: 42. 
 
 General principles governing choice of 
 
 law; intention. 62: 44. 
 Rule that law upholding: the contract 
 
 will be applied. 62: 49. 
 In general. 62: 49. 
 When contract usurious by lex 
 loci contractus, but valid 
 by lex loci solutionis. 
 62: 51. 
 
 When contract usurious by lex 
 loci solutionis, but valid 
 by lex loci contractus. 
 62: 55.
 
 CONFLICT OF LAWS, III. (Ed. Notes.) 
 
 535 
 
 When claim of usury based on 
 transaction with drawer, 
 or indorser. 62: 59. 
 When usurious by both lex loci con- 
 tractus and lex loci sulu- 
 tionis. 62: 60. 
 
 Effect of mortgage security. 62: 61. 
 Place where money is to be used. 
 
 62: 62. 
 
 Lex loci consider at ionis. 62: 63. 
 Contracts of foreign building and loan 
 
 associations. 62: 64. 
 Which contract to be regarded; con- 
 tract of principal and 
 surety. 62 : 73. 
 
 Effect of restriction as to rate of in- 
 terest in charter of cor- 
 poration. 62: 76. 
 
 Applicability of lex fori. 62: 76. . 
 Statute forbidding corporation to plead 
 
 usury. 62: 79. v 
 
 Does lex rei sites with respect to interest 
 and usury necessarily 
 control in an action to 
 foreclose a mortgage on 
 real property ? 55 : 933. 
 10. Stockholder's liability. 
 As to liability of stockholder of foreign cor- 
 poration. 6:676;* 13:56.* 
 As to enforcement of stockholders' liability 
 outside of the state of in- 
 corporation. 34: 737. 
 ii. Measure of damages. 
 For Tort, see infra, III. 25. 
 For breach of contract, generally. 56: 301; 
 
 62: 37. 
 Interest by. way of damages. 56: 303. 
 
 For breach of contract, or detention of 
 money or other property. 
 56: 303; 62: 37. 
 On foreign judgments. 56: 309. 
 
 b. Rights in and title to property. 
 
 12. Generally. 
 
 Mechanic's lien under contract made in 
 
 other state. 38: 410. 
 13. Matrimonial property. 
 When lex domicilii is opposed to the lex 
 rei sitcB or lex fori. 57: 
 353. 
 
 Real estate, or immovables. 57: 353. 
 Personal property, or movables. 57: 
 
 354. 
 
 What law determines character of 
 property as real or per- 
 sonal. '57 : 359. 
 
 When law of matrimonial domicil is op- 
 posed to that of place 
 where marriage celebrat- 
 ed. 57:359. 
 
 How original matrimonial domicil ascer- 
 tained. 57 : 360. 
 
 Change of matrimonial domicil. 57 : 363. 
 Property acquired prior to change. 57: 
 
 363. 
 Property acquired after the change. 
 
 57: 366. 
 
 Tacit mortgages or liens. 57 : 367. 
 Marriage settlements. 57: 368. 
 
 14. Chattel mortgage. 
 
 As contract inter partes. 64: 353. 
 
 As a lien or right prior to claims of third 
 
 persons. 64: 355. 
 
 Effect of removal of property to an- 
 other jurisdiction after 
 execution of mortgage. 
 64: 355. 
 Necessity of change of possession. 
 
 64: 355. 
 
 Necessity of refiling or re-record- 
 ing in state to which prop- 
 erty removed. 64: 356. 
 When property located in another state 
 at time of execution of 
 mortgage. 64: 361. 
 Necessity of filing, or recording, or 
 change of possession in 
 state where located. 64: 
 361. 
 
 Oath as to consideration. 64: 363. 
 
 Necessity of complying with law of 
 
 domicil, and of place 
 
 where mortgage executed. 
 
 64: 363. 
 
 Judgment in attachment as res judica- 
 ta against mortgagee. 64: 
 366. 
 As between lex loci contractus and lex 
 
 domicilii. 64: 366. 
 15. Sales of personal property. 
 As to Statute of Frauds, see supra, III. 8. 
 Distinction between personal rights and 
 obligations and rights in 
 property. 64: 823. 
 
 Place of contract; distinction between ex- 
 ecutory and executed con- 
 tract. 64: 824. 
 Personal rights and obligations under the 
 
 contract. 64: 825. 
 In general: construction of contract; 
 
 warranty. 64: 825. 
 Laws prohibiting or regulating the sale 
 
 of property. 64: 826. 
 As to rescission of sale for fraud; 
 resolutory condition. 64 : 
 827. 
 
 As to right to maintain action for pur- 
 chase price before expira- 
 tion of credit. 64: 828. 
 The contract as affecting the title^to, or in- 
 terest in, property. 64: 
 828. 
 
 In general. 64: 828. 
 
 Validity of sale depending upon trans- 
 fer of possession gen- 
 erally. 64: 829. 
 Vendor's lien. 64: 831. 
 Conditional sale. 64: 833. 
 1 6. Assignment for creditors; insolvency 
 
 proceedings; receivers. 
 Law governing validity of assignment. 17: 
 
 84. 
 
 Priority of foreign assignment over subse- 
 quent domestic attach- 
 ment. 17: 85. 
 
 Protection of domestic creditors. 17: 86. 
 Transfer of property out of the state by 
 bankruptcy or insolvency 
 proceedings or assienment 
 for creditors. 23 : 33. [Ses 
 infra for later note.]
 
 5S6 
 
 CONFLICT OF LAWS, III. (Ed. Notes.) 
 
 Personal property. 23: 33. 
 
 Voluntary assignments. 23: 33. 
 Place of assignment. 23: 33. 
 Extraterritorial effect general- 
 ly. 23: 33. 
 As against attachments in 
 
 general. 23 : 35. 
 Discrimination in favor of res- 
 idents. 23: 37. 
 
 As to nonresident attachment 
 creditors generally. 23 : 
 37. 
 
 As to attachment creditors 
 
 residing in the state where 
 
 the assignment was made. 
 
 23: 38. 
 
 Effect of assignee's possession. 
 
 23: 39. 
 
 Assignments under insolvency stat- 
 utes. 23:40. 
 In general. 23 : 40. 
 As to resident creditors. 23 : 
 
 40. 
 
 As to residents of state where 
 insolvency transfer was 
 made. 23:41. 
 As to other nonresidents. 23: 
 
 41. 
 Effect of assignee's possession. 
 
 23: 42. 
 Right of assignee to sue in 
 
 other state. 23:42. 
 Bankruptcy transfers. 23: 42. 
 English decisions. 23: 42. 
 American decisions. 23: 43. 
 Real property. 23: 44. 
 Ships on high seas. 23: 46. 
 As to transfer of property out of the state 
 by bankruptcy or insol- 
 vency proceedings or as- 
 signment for creditors. 65 : 
 353. 
 Voluntary assignments. 65: 353. 
 
 When assignment regarded as vol- 
 untary. 65: 353. 
 
 Discrimination between residents 
 and nonresidents, gener- 
 ally. 65: 354. 
 
 When foreign assignment not op- 
 posed to lex rei sites et 
 fori. 65: 355. 
 
 Law determining validity of as- 
 signments. 65: 358. 
 Personal property. 65: 358. 
 General rule. 65: 358. 
 Formal validity. 65: 358. 
 Notice ; record ; taking 
 
 possession, 65: 359. 
 Preferences. 65: 360. 
 Exemptions. 65: 362. 
 Assignment by corpora- 
 tion. 65: 362. 
 Real property. 65: 362. 
 Law determining assignee's right 
 to avoid fraudulent trans- 
 fers and conveyances. 65: 
 365. 
 
 As to effect of assignment to avoid 
 previous attachment or 
 transfer. 65: 365. 
 
 As between law of assignor's dom- 
 icil and that of place 
 where assignment made. 
 65: 365. 
 
 Assignments under insolvency or bank- 
 ruptcy statutes. 65: 366. 
 General rule. 65: 366. 
 Choses in action. 65: 367. 
 Discrimination between residents 
 and nonresidents. 65: 368. 
 Right of assignee to sue in other 
 
 state. 65: 369. 
 Rights of receiver as to property in other 
 
 jurisdiction. 23: 52. 
 17. Devolution of property; wills. 
 As to descent of real property. 13: 282.* 
 Supremacy of state or nation over devolu- 
 tion of property; law of 
 comity. 17: 84. 
 As to will. 8:822;* 10: 766.* 
 As to validity of attempt to exercise power 
 of appointment by will. 
 64: 892. 
 
 In ascertaining donee's intent to exercise 
 power of appointment. 
 64: 892. 
 
 c. Personal status and relations. 
 
 1 8. Validity of marriage. 
 Manner or form of solemnization; prelimi- 
 naries. 57: 155. 
 Polygamous marriages; temporary marital 
 
 unions. 57: 159. 
 Matrimonial capacity of the parties. 57: 
 
 161. 
 In general; lex loci or leas domicilii; 
 
 public policy. "57: 161. 
 Incestuous marriages. 57: 166. 
 Marriages between members of differ- 
 ent races. 57: 167. 
 Remarriage of divorced person. 24: 
 
 831; 57: 169. 
 Former husband or wife living. 57: 
 
 171. 
 
 Nonage; consent of parents or guard- 
 ian. 57: 172. 
 19. Divorce. 
 In general. 59: 136. 
 What law determines right to divorce. 59: 
 
 141. 
 
 Jurisdiction of subject-matter. 59: 142. 
 Domicil. 59: 142. 
 
 General rule. 59: 142. 
 When neither party domiciled or 
 permanently residing at 
 forum. 59: 143. 
 Domicil of wife for purpose of 
 
 bringing suit. 59: 146. 
 Domicil or residence of defendant 
 as condition of relief on 
 cross bill. 59: 149. 
 
 Place of marriage and of original mat- 
 rimonial domicil. 59: 151. 
 Place of marital offense. 59: 154. 
 Time of marital offense relatively to 
 acquisition of domicil at 
 forum. 59: 155. 
 
 Jurisdiction of the person or of the res; 
 foreign decrees upon con- 
 structive service. 59: 162. 
 In general. 59: 162.
 
 CONFLICT OF LAWS, III. (Ed. Notes.) 
 
 537 
 
 Decrees rendered upon constructive 
 
 service, 19: 814; 59: 162. 
 
 When defendant a resident of 
 
 state where rendered. 59: 
 
 162. 
 
 When defendant a nonresident. 
 
 59: 165. 
 
 Custody of children when international 
 elements involved. 59: 
 177. 
 
 Effect upon property rights of divorce in- 
 volving international ele- 
 ments. 59: 178. 
 Alimony. 59: 178. 
 
 Award of, upon constructive serv- 
 ice. 59: 178. 
 Enforcing award of, in another 
 
 state. 59: 178. 
 
 Effect of divorce in one state or 
 country upon Bright of ac- 
 tion for alimony in an- 
 other. 59: 180. 
 Dower. 59: 181. 
 
 When divorce obtained by hus- 
 band. 59: 181. 
 When divorce obtained by wife. 
 
 59: 182. 
 
 Other property rights. 59: 183. 
 Impeaching decree granted in other state. 
 
 59: 183. 
 
 On jurisdictional facts. 59: 183. 
 On the merits ; fraud. 59 : 186. 
 Suits for same cause in different jurisdic- 
 tions. 59: 187. 
 20. Legitimacy; adoption. 
 Legitimacy. 65: 177. 
 
 In general. 65: 177. 
 Applicability of lex rei sitce, or 
 lex . domicilii decedentis. 
 65: 177. 
 
 Legitimacy dependent upon va- 
 lidity of marriage. 65: 
 177. 
 
 Legitimacy dependent upon acts 
 subsequent to birth. 65: 
 178. 
 
 What is proper law after eliminating 
 lex domicilii decedentis. 
 and lex rei sitce, as such. 
 65: 182. 
 
 Adoption. 65: 186. 
 
 Extraterritorial effect of adoption of chil- 
 dren. 17:439. 
 
 d. Remedies. 
 
 21. Generally. 
 
 Injunction against suit in foreign jurisdic- 
 tion. 21:71. 
 
 Oral proof of foreign laws. 25: 449. 
 
 22. Attachment; garnishment. 
 
 Garnishment of nonresident creditor. 19: 
 577. 
 
 Where debt garnishable. 67 : 209. 
 
 Priority of foreign attachment over foreign 
 assignment. 17: 88. 
 
 Attachment or garnishment of foreign rail- 
 road cars. 64: 501. 
 
 Law governing exemption of wages from 
 garnishment. 67 : 222. 
 
 Evasion of exemption laws by garnishment 
 in other state. 19: 577. 
 
 Action for loss of exemption by garnish- 
 ment in another state. 19: 
 580; 36: 582. 
 
 Effect in state where debt is garnished of 
 statutory exemption at 
 domicil of principal de-' 
 fendant. 19: 578. 
 23. Limitation of action. 
 When statute of limitations will govern 
 action in another state or 
 country. 48: 625. 
 General rule. 48: 625. 
 Exceptions. 48: 625. 
 Where there is no statutory provision 
 in forum as to effect of 
 bar of other state. 48: 
 625. 
 Contracts. 48: 625. 
 
 In general. 48: 625. 
 Cases in which the doctrine 
 that the law of the forum 
 governs, questioned or do 
 nied. 48: 629. 
 
 When right of action extin 
 guished, as well as the 
 remedy affected. 48: 630. 
 Judgments. 48: 632. 
 
 In general. 48 : 632. 
 Where right of action extin 
 guished as well as tli 
 remedy affected. 48: 634. 
 Decedent's estates. 48: 634. 
 Adverse possession. 48: 635. 
 Usury. 48: 637. 
 
 Liability of stockholders. 48:(i.T. 
 Personal injuries. 48: 638. 
 Death. 48: 639. 
 Miscellaneous cases. 48: 639. 
 Where statutes of forum provide as ti> 
 effect of bar of other 
 state. 48: 639. 
 
 24. When proper foreign law not proved. 
 How case determined when proper foreign 
 
 law not proved. 67: 33. 
 Judicial cognizance of foreign law. 67 : 
 
 33. 
 Specific rules of law of other juris 
 
 diction. 67:33. 
 Law of foreign country. 67 : 
 
 33. 
 
 Law of other state. 67 : 34. 
 General system of law upon which 
 foreign jurisprudence 
 based. 67 : 37. 
 Different theories as to proper practice. 
 
 67 : 38. 
 
 In general. 67 : 38. 
 Jurisdictions with respect to which 
 the presumption in favor 
 of common law may be 
 indulged. 67 : 40. 
 
 Conflict between presumption in 
 favor of common law and 
 presumption that law of 
 other jurisdiction is same 
 as that of forum. 67: 41. 
 Application of lex fort without 
 indulging any presump- 
 tion. 67 : 56. 
 
 Refusal to apply any substantive 
 law. 67: 59.
 
 538 
 
 CONFUSION; CONGRESS. 
 
 e. Torts; penal laws; crimes. 
 
 25. Tort. 
 
 Damages for, generally. 56: 312. 
 
 Penalty as part of recovery. 56: 315. 
 As to action for death or bodily injury. 56: 
 
 193. 
 
 What law determines the right of ac- 
 tion. 56: 193. 
 
 Taking jurisdiction of cause of action 
 arising outside of state. 
 56: J95. 
 
 Generally. 56: 195. 
 Comity; public policy; similar 
 statute at forum as a con- 
 dition. 56: 202. 
 
 Degree of similarity or dissimi- 
 larity. 56 : 204. 
 In general. 56: 204. 
 Differences affecting amount of 
 
 recovery. 56: 205. 
 Differences affecting parties 
 and beneficiaries. 56: 206. 
 Different limitations as to 
 
 time. 56: 208. 
 Other conditions of jurisdiction. 
 
 56:208. 
 
 Penal statutes. 56: 209. 
 Law applicable in action upon foreign 
 cause of action. 56: 210. 
 Generally. 56:210. 
 Who may sue. 56: 211. 
 Place of contract. 56: 215. 
 Place of negligence or of accident. 
 
 56: 216. 
 Place of accident or of death. 56: 
 
 218. 
 As affected by place of residence or 
 
 citizenship. 56: 218. 
 When rules of common law dif- 
 ferently interpreted. 56: 
 219. 
 
 Fellow-servant rule. 56: 219. 
 Contributory negligence. 56: 221. 
 Assumption of risk. 56: 221. 
 Delegation of duty. 56: 222. 
 Duty to warn. 56: 222. 
 Criminal prosecution or attempt to 
 compromise as condition. 
 56: 222. 
 
 Survival of cause of action; re- 
 
 vivor of action. 56: 222. 
 
 Distribution and beneficiaries. 56: 
 
 222. 
 
 Presumption and burden of proof 
 
 as to negligence. 56: 223. 
 
 Assignment or release of claim. 
 
 56: 223. 
 
 Measure of damages. 56: 312. 
 26. Penal laws. 
 Enforcement of penal laws of another state. 
 
 2: 779;* 13: 56.* 
 
 Enforcement of foreign laws requiring 
 affixing of stamp to in- 
 struments. 48: 319. 
 
 Effect of penal or remedial character of for- 
 eign usurv statutes. 62: 
 42. 
 
 Penalty as part of recovery for tort. 56: 
 315. 
 
 27. Crimes. 
 
 What law defines larceny for purposes of 
 a statute against bringing 
 stolen property into the 
 state. 15: ?z2. 
 
 Locality of crime committed through the 
 agency of the mails or of 
 carriers. 19: 775. 
 
 Effect of prior conviction in other state or 
 country to enhance pen- 
 alty. 34:403. 
 
 Locality of crime committed by shooting 
 or striking across state 
 boundary. 28: 59. 
 
 What constitutes the offense. 28: 59. 
 The question of locality. 28: 59. 
 Statutory provisions regarding. 28: 63. 
 Constitutionality of such statutes. 28: 
 64. 
 
 CONFUSION. 
 
 See Accession and Confusion. 
 
 CONGRESS. 
 
 Power as to Naturalization, see Aliens, 
 5, 12. 
 
 Liability to Suit, of Public Corporation Cre- 
 ated by, see Charitable Institutions. 
 
 Power of, Over Interstate Commerce, see 
 Commerce. 
 
 Delegation of Power by, see Constitutional 
 Law, 166-168. 
 
 Inapplicability to, of Provision against Im- 
 pairment of Contracts, see Constitution- 
 al Law, 1110. 
 
 Conclusiveness of Decision of on State 
 Courts, see Courts, 137. 
 
 Power to Enact Regulations as to Health, 
 etc., see District of Columbia. 
 
 Power of, to Punish for Intimidation of Ne- 
 gro Voters at Polls, see Elections, 283, 
 285. 
 
 Judicial Notice of Acts of, see Evidence, 
 12, 13. 
 
 Injunction against Certifying Result of Vote 
 for Members of, see Injunction, 251. 
 
 Power to Allow Local Option, see Intoxicat- 
 ing Liquors, 50. 
 
 Power of as to Revenue Stamps, see Inter- 
 nal Revenue, 2. 
 
 Power to Create Commission, see Interstate 
 Commerce Commission, 1. 
 
 Libel of Candidate for, see Libel and Slan- 
 der, 151. 
 
 Commission to United States Senator, see 
 Mandamus, 35. 
 
 Compelling Apportionment of Representa- 
 tives in, see Mandamus, 48. 
 
 Power over Marriage, see Marriage, 4. 
 
 Construction of Act of, see Statutes, 449. 
 
 Presumption of Intent to Deprive Govern- 
 ment of Right to Sue, see United 
 States, 3. 
 
 Privilege of Member of, from Arrest, see 
 Writ and Process, 63, 64.
 
 CONNECTING CARRIERS CONSEQUENTIAL INJURIES. 
 
 689 
 
 1. Neither the secretary of state nor the 
 supreme court of Florida has power to pass 
 upon the legality of an election of a United 
 States senator by the legislature, or of an 
 appointment of a sena'tor by the executive 
 of the state. The power is in the United 
 States Senate alone. State ex rel. Fleming 
 v. Crawford, 28 Fla. 441, 10 So. 118, 14: 253 
 
 2. The commission of a United States 
 senator appointed by the governor should 
 be signed by the governor, and sealed with 
 the great seal of the state, and counter- 
 signed by the secretary of state, in accord- 
 ance with Fla. Const, art. 4, 14. Id. 
 
 3. A state which is entitled to increased 
 representation in Congress according to the 
 latest census cannot have such representa- 
 tion until Congress has made provision 
 therefor; and when the congressional ap- 
 portionment act is made to tak,e effect in 
 the future the state has no remedy for the 
 denial of the increased representation dur- 
 ing the meantime. State ex rel. Cromelien 
 v. Boyd, 36 Neb. 181, 54 N. W. 252, 19: 227 
 
 Editorial Notes. 
 
 Power of, to regulate commerce. 11: 246.* 
 
 See also Commerce, V. 
 Privilege of members of, as to service of 
 
 process. 23: 632. 
 
 Judicial notice of congressional acts. 4: 39.* 
 Members of, as public officers. 17: 247. 
 
 CONNECTING CARRIERS. 
 See Carriers, II. c. 
 
 CONNIVANCE. 
 
 In Divorce Suit, see Divorce and Separa- 
 tion, IV. 
 
 Editorial Notes. 
 
 As defense to suit for divofce. 12: 524.* 
 What is collusion; effect on suit. 12: 815.* 
 
 CONSCIENCE. 
 
 Prohibition against Giving Christian Science 
 Treatment as Interference with Rights 
 of, see Christian Science. 
 
 Liberty of, see Constitutional Law, II. d. 
 
 CONSENT. 
 
 To Abortion, as Affecting Right of Action, 
 
 see Abortion, 2. 
 Of Turnpike Company to Use of Bicycle on 
 
 Sidewalk, see Bicycles, 7. 
 To Jurisdiction of Court, see Courts, 19-21. 
 As Defense to Crime, see Criminal Law, I. 
 
 f; and also infra, Editorial Notes. 
 Estoppel by, see Estoppel, III. f. 
 
 Presumption and Burden of Proof as to, 
 see Evidence, II. e, 4. 
 
 To Insurance on Life of Wife, see Husband 
 and Wife, 90. 
 
 To Wife's Conveyance of Separate Prop- 
 erty, see Husband and Wife, 131, 132. 
 
 To Change of Minor's Domicil, see Infants, 
 52. 
 
 To Encumbrance on Insured Property, see 
 Insurance, 390. 
 
 To Assignment of Insurance Policy, see In- 
 surance, 689, 701. 
 
 To Change of Beneficiary, see Insurance, 
 728. 
 
 To Sale of Liquor to Minor, see Intoxicat- 
 ing Liquors, 134, 135. 
 
 Judgment by, see Judgment, 4, 410, 424. 
 
 To Revival of Judgment against Partner- 
 ship, see Judgment, 401. 
 
 By Vendor, to Construction of Building, see 
 Mechanics' Liens, 14, 15. 
 
 To Annexation of Land to City, see Munic- 
 ipal Corporations, 24. 
 
 Of City to Placing Heating Apparatus un- 
 der Sidewalk, see Municipal Corpora- 
 tions, 545. 
 
 To Levy of Tax for Library, see Municipal 
 Corporations, 567. 
 
 To Adoption of Child, see Parent and Child, 
 32-37, 40. 
 
 Of Husband to Operation on Wife, see 
 Physicians and Surgeons, 31. 
 
 To Treatment by Christian Science Healer, 
 see Physicians and Surgeons, 49. 
 
 Rape of Female Under Age of, see Rape, 
 6, 7. 
 
 To Daughter's Marriage to Married Man, see 
 Seduction, 5, 6. 
 
 To Construction or Operation of Street 
 Railway, see Contracts, 473^476; Emi- 
 nent Domain, 44; Judgment, 297; Mu- 
 nicipal Corporations, 310; Street Rail- 
 ways, 14-16, 25, 27, 30, 43. 
 
 To Surrender of Street Railway Franchise, 
 see Street Railways, 49. 
 
 To Use of One's Name as Trade name, see 
 Trade name, 7. 
 
 Question for Jury as to, see Trial, 229. 
 
 To Pay Water Rates Charged, see Waters, 
 593. 
 
 Editorial Notes. 
 
 As justification for assault. 15: 853. 
 
 To crime for purpose of detection, as de- 
 fense to prosecution. 
 25: 341. 
 
 CONSEQUENTIAL INJURIES. 
 
 Liability for, see Case, 25. 
 From Condemnation of Property, see Dam- 
 ages, III. 1, 3; Eminent Domain, III. e. 
 
 Editorial Notes. 
 
 See also Eminent Domain, V. 16. 
 Extent of trespasser's liability for conse- 
 quential injuries. 53: 626.
 
 540 
 
 CONSIDERATION CONSPIRACY, I. a. 
 
 CONSIDERATION. 
 
 For Collection of Check, see Banks, 198. 
 Of Bills and Notes, see Bills and Notes, 
 
 I. c. 
 
 Of Chattel Mortgage, see Chattel Mortgage, 
 II. 
 
 For Compromise and Settlement, see Com- 
 promise and Settlement, 4-11. 
 
 Of Contract, see Contracts, I. c. 
 
 For Deed, see Deeds, 31. 
 
 Parol Evidence as to, see Evidence, VI. g. 
 
 Of Conveyance Attacked for Fraud, see 
 Fraudulent Conveyances, II. 
 
 For Guaranty, see Guaranty, 5. 
 
 For Antenuptial Contract, see Husband and 
 Wife, 161. 
 
 For Mortgage, see Mortgage, 25, 26. 
 
 For Purchase of Mortgage, see Mortgage, 97. 
 
 For Contract to Deliver Telegram, see Tele- 
 graphs, 43. 
 
 For Purchase of Land, see Vendor and Pur- 
 chaser, 103, 104. 
 
 Failure of, see Contracts, 816, 818; Deeds, 
 
 II. f. 
 
 CONSIGNOR. 
 
 Estoppel of, see Estoppel, 120, 121. 
 
 Levy on Consignment, see Levy and Seiz- 
 ure, 3. 
 
 Trust in Proceeds of Sale by Consignee, see 
 Trusts, 216. 
 
 CONSOLIDATION. 
 
 Of Actions, see Action or Suit, II. b. 
 
 As Ground for Reversal, see Appeal and Er- 
 ror, 855. 
 
 Of Corporation, see Corporations, II.; Plead- 
 ing, 526b. 
 
 Of Creditors' Bills, see Appeal and Error, 
 391 ; Creditors' Bill, 19, 32. 
 
 Of Indictment, see Appeal and Error, 501; 
 Criminal Law, 187. 228; Habeas Cor- 
 pus, 55. 
 
 Of Insurance Companies, see Insurance, 
 1336. 
 
 Of Religious Societies, see Courts, 233, 233a; 
 Religious Societies, 25; Wills, 440, 441. 
 
 Of Railroads, see Bonds, 126; Statutes, 574. 
 
 Of Street Railway, Injunction against, see 
 Injunction, 224; Street Railways, 62-65. 
 
 Effect of. on Tax Exemption, see Taxes, 
 263-266. 
 
 CONSPIRACY. 
 
 I. In General. 
 
 a. General Rules; Miscellaneous. 
 
 b. To Cheat, Rob, or Steal. 
 
 c. To Injure the Business of Another. 
 
 1. In General. 
 
 2. Boycott. 
 
 d. Of Laborers; Strikes. 
 
 II. In Restraint of Trade, Commerce, or 
 Competition; Monopolies. 
 
 a. In General. 
 
 b. Of Manufacturers of, or Dealers 
 
 in, Different Products. 
 
 c. To control Prices for Services Gen- 
 
 erally. 
 
 d. Of Railroad Companies or Carriers. 
 
 e. Of Insurers. 
 in. Editorial Notes. 
 
 Notice as Condition of Action for Damages 
 for, see Action or buit, 32. 
 
 Assignability of Claim of Damages Grow- 
 ing Out of, see Assignment, 12; Cor- 
 porations, 130. 
 
 Liability for Torts Done in Pursuance of, 
 see Corporations, 204. 
 
 Criminal Liability of Co-conspirators, see 
 Criminal Law, 46-52. 
 
 Punishment for, see Criminal Law, 204. 
 
 Punitive Damages for, see Damages, 28, 29. 
 
 Proof of Connection with, see Evidence, 
 2340. 
 
 Necessity of Corroborating Accomplice's 
 Testimony, see Evidence, 2372-2376. 
 
 Proof of Acts or Declarations of Co-con- 
 spirators, see Evidence, X. g, and also 
 infra, III. 1. 
 
 Indictment for, see Indictment, etc., 36, 
 42-44, 64, 97-104. 
 
 Injunction against, see Injunction, 129-152; 
 IV. 3. 
 
 Limitation of Action for Injury by, see Lim- 
 itation of Actions, 177, 178. 
 
 Municipal Liability for rarticipation of Of- 
 ficers in, see Municipal Corporations, 
 512. 
 
 Allegations as to, see Pleading, 106, 391-394, 
 406. 
 
 Extraterritorial Effect of Statute as to, see 
 Statutes, 424, 483. 
 
 Construction of Statute as to, see Statutes, 
 510. 
 
 Effect of Re-enacting Statute as to, see 
 Statutes, 614. 
 
 Instruction as to, see Trial, 679, 680, 739, 
 768, 862. 
 
 Accomplice as Witness, see Witnesses, 17-20. 
 
 I. In General. 
 a. General Rules; Miscellaneous. 
 
 To Commit Abortion, see Abortion, 1. 
 
 To Resist Arrest, see Assault and Battery, 
 
 14. 
 
 To Murder, see Courts, 372 ; Trial, 162. 
 For Editorial Notes, see infra, III. 1. 
 
 1. The term "conspiracy" cannot be predi- 
 cated of the deliberate vote of a governing 
 body. Lawson v. Hewell. 118 Cal. 613, 50 
 Pac* 763, 49: 400 
 
 la. A conspiracy is an unlawful confed- 
 eracy or combination of two or more per- 
 sons to do an unlawful act or to accomplish 
 an unlawful purpose. The offense is com- 
 plete when the unlawful conspiracy, com- 
 bination, or agreement is made; and a crim-
 
 CONSPIRACY, I. b. 
 
 541 
 
 inal act done in pursuance of the conspiracy 
 is not necessary to justify a conviction for 
 the crime of conspiracy itself. United 
 States v. Lancaster, 44 Fed. 896, 10: 333 
 
 2. A mere declaration of the common law 
 is made by Wis. Rev. Stat. 1898, 44G6a, 
 declaring what shall constitute an indicta- 
 ble conspiracy, its only effect being to re- 
 move the necessity for an overt act, which 
 was required by the change in the com- 
 mon law by 4568. State ex rel. Burner 
 v. Huegin, 110 Wis. 189, 85 N. W. 1046, 
 
 02: 700 
 
 3. The doctrine that an act which is not 
 actionable if done by one, is not, when done 
 by many, is not the law of Wisconsin. Id. 
 
 4. A charge of conspiracy will lie against 
 those concerting together to perpetrate a 
 criminal act where concert is not a mere 
 part of it, but is in aid of it and is itself 
 criminal, though only one of the parties, 
 or neither one alone, could effect such pur- 
 pose. Id. 
 
 5. The doctrine that, where concert of ac- 
 tion is necessary to an offense, a charge of 
 criminal conspiracy does not lie, does not 
 apply where the unlawful agreement is of 
 itself an offense, but applies only where the 
 agreement and the consummation thereof 
 are so closely connected that the two con- 
 stitute really but one offense. Id. 
 
 6. The consummation of an agreement to 
 commit acts which result in the perversion 
 and obstruction of justice will not warrant 
 a conviction under a statute making a con- 
 spiracy to commit acts for that purpose a 
 misdemeanor, unless it appears that the 
 acts were designed to have that effect. Peo- 
 ple v. Flack, 125 N. Y. 324, 26 N. E. 267, 
 
 11: 807 
 
 7. A criminal intent is a material element 
 in the crime of conspiracy. Hence on the 
 trial of an indictment for such crime the 
 criminal intent may be denied and the de- 
 nial supported by evidence. Id. 
 
 8. Civil liabilities may ensue by reason of 
 a conspiracy to commit that which is not 
 made unlawful by statute. Longshore 
 Printing & Pub. Co. v. Howell, 26 Or. 527, 
 38 Pac. 547, 28: 464 
 
 9. It requires more than proof of mere 
 passive cognizance, on the part of a prison- 
 er, of a crime, to sustain a charge of con- 
 spiracy; the jury must find that such pris- 
 oner did some act or made some agreement 
 showing an intention to participate in some 
 way in such conspiracy. United States v. 
 Lancaster, 44 Fed. 896, 10: 333 
 
 10. An unlawful combination to injure, 
 oppress, threaten, and intimidate a citizen 
 of the United States in the free exercise of 
 a right and privilege secured to him by the 
 Constitution and laws of the United States, 
 and because of his having so exercised the 
 same, is a conspiracy indictable and punish- 
 able under U. S. Rev. Stat. 5503, U. S. 
 Comp. Stat. 1901, p. 3712. Id. 
 
 11. Where a citizen of the United States 
 is interested in a decree of a circuit court 
 of the United States, and where it has be- 
 come necessary for him to sue out attach- 
 ments for contempt to enforce respect for 
 
 said decree and obedience to the same, and 
 to punish violations thereof, a conspiracy 
 to injure, oppress, threaten, and intimidate 
 him because of the exercise of his right to 
 apply for such relief is a violation of the 
 statutes of the United States. Id. 
 
 12. If, in pursuance of an unlawful con- 
 spiracy to prevent enforcement of a decree 
 of a Federal court, the conspirators mur- 
 dered the agent of the party against whom 
 the conspiracy is directed, it is indictable 
 and punishable under U. S. Rev. Stat. 
 5509, U. S. Comp. Stat. 1901, p. 3712, as 
 such crimes are punished by the laws of the 
 state in which the murder was committed. 
 
 Id. 
 
 13. Where a city officer corruptly agrees 
 with another person that the latter shall 
 buy certain property selected by a board of 
 which the officer is a member as suitable 
 for a certain public purpose, and that the 
 officer will use his influence to induce tne 
 board to purchase it from the other at an 
 advanced price, the profits to be divided 
 between them; and the fraud is consum- 
 mated by means of the officer's information 
 and influence, they are alike liable to the 
 city for the injury sustained. Boston v. 
 Simmons, 150 Mass. 461, 23 N. E. ^10, 
 
 6: 629 
 
 14. Persons who conspire to make infants 
 parties plaintiff to an action without lawful 
 authority are liable to the infants for the 
 damages sustained by them. Hackett v. Mc- 
 Millan, 112 N. C. 513, 17 S. E. 433, 21: 862 
 To engage in prize fight. 
 
 15. An agreement to engage in a prize 
 fight is a conspiracy to commit a crime. Se- 
 ville v. State. 49 Ohio St. 117. 30 N. E. 
 621, 15: 516 
 
 b. To Cheat, Rob, or Steal. 
 
 Review of Verdict as to, see Appeal and 
 Error, 738. 
 
 To Dispose of Debtors Property Fraudu- 
 lently, see Case, 15. 
 
 Compelling Accounting for Profits on Con- 
 spiracy to Defraud, see Contracts, 619. 
 
 16. The fact that a person from whom 
 money was obtained by a conspiracy to 
 cheat knew that the representations were 
 false, and was in fact a detective, does not 
 relieve the conspirators from criminal re- 
 sponsibility, as the conspiracy was complete 
 when formed, and their guilt or innocence 
 did not depend upon the success of the en- 
 terprise. People v. Oilman, 121 Mich. 187, 
 80 N. W. 4, 46: 218 
 
 17. Criminal responsibility for a con- 
 spiracy to cheat by materializing seances of 
 a professed medium cannot De avoided on 
 the ground that no crime was committed 
 because it was an obvious humbug which, in 
 the nature of things, could not deceive any 
 national being. Id. 
 
 18. A conspiracy to rob may be proved 
 ny facts and circumstances sufficient to sat- 
 isfy the jury of its existence, and it is not 
 necessary to show that the accused persons
 
 542 
 
 CONSPIRACY, I. c, 1. 
 
 met and actually agreed jointly to under- 
 take the perpetration of the robbery. Peo- 
 ple v. Lawrence. 143 Cal. 148, 76 Pac. 893, 
 
 68: 193 
 
 19. Persons cannot be convicted of con- 
 spiracy to commit larceny, if they merely 
 adopt a scheme which is suggested to them 
 by a detective and which lias received the 
 approval of the owner of the property. Con- 
 nor v. People, 18 Colo. 373, 33 Pac. 159, 
 
 25: 341 
 
 c. To Injure the Business of Another. 
 1. In General. 
 
 Injury to Business in Absence of Conspiracy, 
 
 see Case, 16-20. 
 
 Allegation as to, sec Pleading, 393. 
 See also infra, 141. 
 For Editorial Notes, see infra, III. 1. 
 
 20. Competition, though malicious, if car- 
 ried on to get customers away from a rival 
 and obtain business for one's self, is not un- 
 lawful if the customers are not induced to 
 violate any contract. West Virginia Transp. 
 Co. v. Standard Oil C6. 50 W. Va. 611, 40 
 S. E. 591, 56: 804 
 
 21. A combination of several persons to 
 do a lawful act, violative of no duty to an- 
 other due from them, is not an unlawful 
 conspiracy subjecting them to an action by 
 him, though the act injures him, and was 
 so intended. Id. 
 
 22. A conspiracy to wrongfully injure an- 
 other is 'actionable at the common law if 
 executed to the damage of another, whether 
 that other would have a remedy if the act 
 were committed by a single person or not, 
 or whether one person could commit such 
 injury alone. State ex rel. Burner v. Hue- 
 gin, 110 Wis. 189, 85 N. W. 1046, 62: 700 
 
 23. The term "malicious iniury" as used 
 in Wis. Rev. Stat. 1898, 4466a, is synony- 
 mous with that term in the law of conspir- 
 acy independent of the statute. Id. 
 
 24. The doctrine that an act lawful with- 
 out malice does not become unlawful by 
 adding such element, as applied to a com- 
 bination of persons to wrongfully injure 
 another, is not the law of Wisconsin. Id. 
 
 25. All agreements to maliciously injure 
 another in any way are contrary to the 
 policy of the law, and legislative authority 
 is ample to outlaw such agreements to the 
 extent of making the participants therein 
 liable civilly and criminally. Id. 
 
 26. A combination of individuals for the 
 purpose of inflicting a malicious injury up- 
 on another is in effect an agreement to in- 
 jure by violence, and it was the policy of 
 the common law, as it is of Wis. Rev. Stat. 
 1898, 4466a, to prevent such a wrong by 
 civil and criminal liabilities. Id. 
 
 27. A combination of persons to injure 
 another without any just cause, such as an 
 injury that is not an incidental effect of the 
 promotion of the legitimate interests of the 
 members of the combine, is a conspiracy to 
 inflict a malicious injury upon another at 
 common law, and is such an injury under 
 
 the statute (Wis. Rev. Stat. 1898, 4466a) 
 if it relates to such other's reputation, busi- 
 ness, trade, or profession. Id. 
 
 28. An action will lie for a combination 
 or conspiracy, by fraudulent and malicious 
 acts, to drive a trader out of business, re- 
 sulting in damages. Van Horn v. Van Horn 
 (N. J. Sup.) 52 N. J. L. 284, 20 Atl. 485, 
 
 10: 184 
 
 29. The gravamen in a civil action for a 
 combination or conspiracy, by fraudulent 
 and malicious acts, to drive a trader out of 
 business, is not the conspiracy, but the 
 malice; and the conspiracy is matter of ag- 
 gravation or inducement only, in pleading 
 and evidence, of which one or all of the de- 
 fendants may be found guilty. Id. 
 
 30. Several persons, conducting independ- 
 ent business enterprises, may, in the ab- 
 sence of a statute, combine to control prices 
 for the purpose of promoting their indi- 
 vidual interests, and in their operations to 
 that end impoverish a rival and drive him 
 out of business, there being no malicious in- 
 tent in their conduct, using the term in the 
 sense of malice in law. State ex rel. Dur- 
 ner v. Huegin, 110 Wis. 189, 85 N. W. 1046, 
 
 62: 700 
 
 31. An agreement between several inde- 
 pendent concerns, each publishing a news- 
 paper and furnishing thereby means for ad- 
 vertising, to compel a fourth person en- 
 gaged in like business to reduce his rates 
 for advertising or lose customers indicates 
 a malicious purpose to injure the business 
 of the latter within the meaning of Wis. 
 Rev. Stat. 1898, 4466a. Id. 
 
 32. A conspiracy to get all its customers 
 away from a pipe-line company, when en- 
 tered into by other companies having a com- 
 mon interest and owned by the same men, 
 which are engaged in producing, refining, 
 and selling oil, is not unlawful, although it 
 is carried out with the malicious intent to 
 ruin the pipe-line company by establishing 
 a rival pipe line and by refusing to purchase 
 any oil shipped through the line of the for- 
 mer, or to allow any leases to be held in 
 the territory under their control by pro- 
 ducers who ship oil through that line. West 
 Virginia Transportation Co. v. Standard Oil 
 Co. 50 W. Va. 611, 40 S. E. 591, 56: 804 
 
 33. An action lies against parties who, 
 through conspiracy, induce another to break 
 his contract to the injury of the one by 
 whom the action is brought. Raymond v. 
 Yarrington, 96 Tex. 443, 73 S. W. 800, 
 
 62 : 962 
 
 34. Merchants cannot be held liable for 
 conspiracy by offering goods of a certain 
 manufacturer, which they own, at a cut 
 price for the purpose of injuring his trade 
 and depressing the market value of his prod- 
 uct. Passaic Print Works v. Ely & W. Dry 
 Goods Co. 44 C. C. A. 426, 105 Fed. 163, 
 
 62: 673 
 
 35. The private rights or interests of a 
 dealer in plumbers' supplies are injured or 
 put in hazard by proceedings of an incor- 
 porated plumbers' supply association which 
 is not engaged in the trade and with which
 
 CONSPIRACY, I. c, 2. 
 
 543 
 
 he has no dealings nor any relation by 
 which its legitimate interests are affected 
 by the question whether he shall have cred- 
 it in the market, when it officiously and 
 without right assumes to notify sellers of 
 such goods that he has not paid his ac- 
 counts, and to debar a considerable number 
 of dealers from selling to him upon credit. 
 Hartnett v. Plumbers' Supply Asso. 169 
 Mass. 229, 47 N. E. 1002, 38: 194 
 
 36. A conspiracy to injure one's business 
 is not per se indictable. State v. Van Pelt, 
 136 N. C. 633, 49 S. E. 177, 68: 760 
 
 2. Boycott. 
 
 As to Boycott Instigated by Single Indi- 
 vidual, see Boycott. 
 
 Injunction against, see Injunction, 129-152. 
 Allegation as to Blacklisting, see Pleading, 
 49. *" 
 
 For Editorial Notes, see infra, III. 1. 
 
 37. A boycott is an illegal conspiracy in 
 restraint of trade. Casey v. Cincinnati 
 Typographical Union No. 3, 45 Fed. 135, 
 
 12: 193 
 
 38. Any man, unless under contract obli- 
 gation, or unless his employment charges 
 him with some public duty, has a right to 
 refuse to work for or deal with any man or 
 class of men, as he sees fit; and this right, 
 which one man may exercise singly, any 
 number may agree to exercise jointly. Bohn 
 Mfg. Co. v. Northwestern Lumberman's 
 Asso. 54 Minn. 223, 55 N. W. 1119, 
 
 21: 337 
 
 39. A boycott is a combination of several 
 persons to cause loss or injury to a third 
 person by causing others, against their will, 
 to withdraw from him their beneficial busi- 
 ness intercourse, through threats that, un- 
 less a compliance with their demands be 
 made, the persons forming the combination 
 will cause loss or injury to him; or an 
 organization formed to exclude a person 
 from business relations with others by per- 
 suasion, intimidation, or other acts which 
 tend to violence, and thereby cause him, 
 through fear of resulting injury, to submit 
 to dictation in the management of his af- 
 fairs. Gray v. Building Trades Council, 91 
 Minn. 171, 97 N. W. 663, 63: 753 
 
 40. Actual violence or threat of violence 
 is not needed to make a boycott unlawful, 
 when intimidation and coercion are em- 
 ployed to prevent persons from dealing with 
 the person boycotted. Beck v. Railway 
 Teamsters' Protective Union, 118 Mich. 497. 
 77 N. W. 13, 42: 407 
 
 41. Intimidation, coercion, or threats of 
 injury are essential elements of a boycott; 
 but what would constitute acts of that char- 
 acter must depend upon the facts of each 
 particular case. Gray v. Building Trades 
 Council, 91 Minn. 171, 97 N. W. 663, 
 
 63: 753 
 
 42. A malicious conspiracy to injure a 
 dealer by refusing to deal with him and 
 by inducing others to do likewise, when not 
 made with the purpose of serving any legiti- 
 mate interest of the conspirators, renders 
 them liable for the damages caused if his 
 
 business is ruined in consequence. Ertz v. 
 Produce Exchange, 79 Minn. 140, 81 N. W. 
 737, 48: 90 
 
 43. A combination of two or more per- 
 sons to injure one in his trade by inducing 
 his employees to break their contract with 
 him, or to decline to continue longer in his 
 employment, is, if it results in damage, ac- 
 tionable. Employing Printers' Club v. Dr. 
 Blosser Co. 122 Ga. 509. 50 S. E. 353, 
 
 69: 90 
 
 44. A conspiracy to injure one's business 
 is not made indictable because of the means 
 employed to effectuate it, where they con- 
 sist in notifying him, by a committee of 
 three, that he will not be considered in sym- 
 pathy with organized labor unless he em- 
 ploys only union men, which would involve 
 his breaking contracts with others, and, up- 
 on his refusal to do so, publishing in a news- 
 paper the fact that he is unfair, together 
 with a statement that Union men will there- 
 after refuse to work material from his shop. 
 State v. Van Pelt, 136 N. C. 633, 49 S. E. 
 177, 68:760 
 
 45. A voluntary association of a large 
 number of retail lumber dealers, by which 
 they mutually agreed that they would not 
 deal with any manufacturer or wholesale 
 dealer who should sell lumber directly to 
 consumers not dealers, at any point where a 
 member of the association was carrying on 
 a retail yard, providing in the by-laws that, 
 whenever any wholesale dealer or manu- 
 facturer made any such sale, their secretary 
 should notify all the members of the fact, 
 without providing for any coercion to pre- 
 vent them from dealing with him, is not 
 unlawful. Bohn Mfg. Co. v. Northwestern 
 Lumbermen's Asso. 54 Minn. 223, 55 N. W. 
 1119, 21: 337 
 
 46. A combination of retail lumber deal- 
 ers to destroy the business of brokers and 
 commission dealers who do not keep a lum- 
 ber-yard with an assorted stock of lumber, 
 by coercing wholesalers to refuse to make 
 sales to such brokers or lose the business of 
 the members of such combination, is un- 
 lawful and renders a member who procures 
 action by the association to the injury of 
 brokers liable to the latter for damages. 
 Jackson v. Stanfield, 137 Ind. 592, 36 N. E. 
 345, 37 N. E. 14, 23: 588 
 Against merchant. 
 
 See also infra, 151. 
 
 47. No boycott against a merchant is ef- 
 fected by the refusal by the manufacturers 
 of a proprietary medicine, at the instance of 
 a voluntary association of merchants en- 
 gaged in the same line of business, to give 
 him a rebate from the selling price of the 
 medicines unless he will maintain the price 
 to consumers. John D. Park & Sons Co. v. 
 National Wholesale Druggists' ASSO. 175 N. 
 Y. 1, 67 N. E. 136. 62:632 
 
 48. A merchant of large means, who is in 
 position, by reason of large orders, to ob- 
 tain more advantageous prices from manu- 
 facturers than others, so that he can under- 
 sell them in the market, has no cause of 
 complaint if they combine, and, by repre- 
 sentation and persuasion, induce the manu-
 
 544 
 
 CONSPIRACY, I. c, 2. 
 
 facturers to refuse to sell to him unless he 
 will agree to maintain prices to consumers. 
 
 Id. 
 
 49. The adoption of a plan for the sale 
 of their product, by manufacturers of pro- 
 prietary medicines, as proposed by an as- 
 sociation of wholesale dealers, which results 
 in a refusal to sell to complainant, is not 
 shown to have been compelled by threats or 
 intimidation by allegations that the manu- 
 facturers were prevented from selling to 
 complainant for the reason that they wished 
 to protect themselves "with the wholesale 
 and jobbing druggists," and that the com- 
 mittee of the association recommended "that 
 continuing and untiring opposition be shown 
 to the sale of those articles of those pro- 
 prietors who do not adopt" the plan. Id. 
 
 50. A combination of mercantile dealers 
 to compel another dealing in similar goods 
 to sell at prices fixed by it, or, upon his 
 refusal so to do, to prevent those of whom 
 its members are purchasing customers from 
 selling goods to him. is, upon general legal 
 principles contrary to public policy and 
 void, and the members of such a combina- 
 tion may be restrained collectively or indi- 
 vidually, by appropriate injunction, from 
 carrying into effect such purpose. Brown v. 
 Jacobs Pharmacy Co. 115 Ga. 429, 41 S. E. 
 553, 57:547 
 
 51. The restriction by a manufacturer, a 
 corporation, and its employee, of the sales 
 of its products to those who refrain from 
 dealing in the commodities of its compet- 
 itors, by fixing the prices of its goods to 
 those who do not thus refrain so high that 
 their purchase is unprofitable, while it re- 
 duces the prices to those who decline to 
 deal in the wares of its competitors, so that 
 the purchase of the goods is profitable to 
 them, is not violative of the anti-trust act 
 of July 2, 1890. Whitwell v. Continental 
 Tobacco Co. 60 C. C. A. 290, 125 Fed. 454. 
 
 64: 689 
 
 52. Communicating with customers of a 
 merchant in furtherance of a conspiracy to 
 ruin his business, for the purpose of indu- 
 cing, persuading, or compelling them by 
 threats or intimidation to withhold their 
 custom from him, is wrongful and illegal. 
 My Maryland Lodge, No. 186 v. Adt, 100 
 Md. 238, 59 Atl. 721. 68: 752 
 By associations generally. 
 
 Punitive Damages for, see Damages, 28. 
 See also supra, 45. 
 
 53. The fact that members of an associa- 
 tion voluntarily assumed its obligations in 
 the first instance does not make legal a by- 
 law which, by fine or penalty, compels them 
 to act in concert in withdrawing their pat- 
 ronage from another person. Boutwell v. 
 Marr, 71 Vt. 1, 42 Atl. 607, 43: 803 
 
 54. Withdrawal of patronage from a per- 
 son by members of an association by con- 
 certed action becomes illegal when the con- 
 cert of action is procured by the coercion of 
 a by-law which imposes a fine or penalty 
 upon any member who violates it. Id. 
 
 55. Members of a trade association who 
 combine to induce or compel other persons 
 not to deal or enter into contracts with one 
 
 who will not join the association or conform 
 his prices to those, fixed by the association 
 will be liable for the injuries caused to him 
 by loss of business resulting from such com- 
 bination. Doremus v. Hennessy, 176 111. 
 608, 52 N. E. 924, 43: 797 
 
 56. An action will lie on behalf of a quar- 
 ry owner against members of a voluntary 
 association of dealers in stone of which he 
 is ' not a member who enforce a by-law of 
 the association imposing a fine upon mem- 
 bers who deal with those who are not mem- 
 bers, so that members who desire to deal 
 with nonmembers are coerced from doing 
 so, to the ruination of the business of the 
 quarry owner. Martell v. White, 185 Mass. 
 255, 69 N. E. 1085, 64: 260 
 By employers' association. 
 
 Validity of Statute Prohibiting Combina- 
 tions to Prevent Employment, see 
 Blacklisting, 1. 
 
 Liability Where Agreement is not Carried 
 Out, see Blacklisting, 4. 
 
 57. Sending notices to wholesalers that 
 members of an employers' organization 
 formed to resist a demand by workmen for 
 an increase in wages will withdraw their 
 patronage if sales are made to persons ac- 
 quiescing in the workmen's demand is not 
 such coercion or threat as will render the 
 combination unlawful. Cote v. Murphy, 159 
 Pa. 420, 28 Atl. 190, 23:135 
 
 58. A combination of employers to resist 
 an advance in wages determined upon by an 
 association of employees, by refusing to sell 
 to any persons who concede such advance, 
 is not an unlawful conspiracy since the pas- 
 sage of the Pennsylvania statute making it 
 lawful for employees to combine to raise 
 wages, and to persuade by all lawful means 
 others from working for a less sum, since 
 such combination is not to lower the price 
 of wages as regulated by supply and de- 
 mand, but to resist an artificial price made 
 by a combination, which by statute is law- 
 ful. Id. 
 
 59. That one whose business is injured by 
 a combination of employers to resist a de- 
 mand of workmen for an increase of wages 
 is not a workman nor a member of a work- 
 men's union will not entitle him to recover 
 his damages from the members of the com- 
 bine, if the combination was lawful as to 
 the workmen and he had undertaken to aid 
 their cause. Id. 
 By labor union. 
 
 Conspiracy by Labor Unions Generally, see 
 
 infra, I. d. 
 
 Injunction against, see Injunction, 133-142. 
 See also infra, 76, 81. 
 
 60. It is not criminal for a labor union 
 to publish a statement that a merchant is 
 unfair, and that its members will not work 
 material sold by him, for the purpose of in- 
 ducing the public to refrain from purchasing 
 material from him for fear of incurring the 
 ill-will of the union. State v. Van Pelt. 
 136 N. C. 633, 49 S. E. 177, 68:760 
 
 61. A boycott by a combination of labor 
 unions against firms which they have placed 
 on the "unfair" list because of their em- 
 ployment of nonunion men, which consists
 
 CONSPIRACY, I. d. 
 
 545 
 
 in threatening customers or prospective cus- 
 tomers that, it they attempt to deal with 
 the boycotted firms, the unions will make it 
 impossible to transact business with them, 
 and will see that they shall be unable to get 
 men to carry on their work, will be en- 
 joined as an unlawful conspiracy. Gray v. 
 Building Trades Council, 91 Minn. 171, 97 
 N. W. 663, 63: 753 
 
 62. An incorporated labor union is liable 
 for the damages sustained by a nonunion 
 man whose discharge from service was 
 caused by the threats of the union to pro- 
 claim that the employer's house was a non- 
 union one, giving him to understand that 
 his business would suffer great loss in con- 
 sequence. Lucke v. Clothing Cutters & T. 
 Assembly, No.' 7507, K. of L. 77 Md. 396, 
 26 Atl. 505, 19: 408 
 
 63. A notice by a labor union to an em- 
 ployer that all labor organizations of the 
 city will be notified that his house is a 
 nonunion one if he retains a certain non- 
 union man in his employ is a sufficient threat 
 of loss or injury to the employer in case he 
 retains the nonunion man, to make the 
 union responsible for the discharge of such 
 employee. Id. 
 
 63a. Embarrassment in business result- 
 ing to a person by reason of nonmember- 
 ship in a protective union, and arising from 
 the refusal of those engaged in, or connect- 
 ed with, a similar business to deal with or 
 work for him, although influenced by obliga- 
 tions voluntarily assumed by such persons in 
 becoming members of the union, or by rep- 
 resentations made to them by inuividual 
 members thereof, gives no right of action to 
 the person embarrassed against either the 
 union or the individuals so influenced. 
 Thomas v. Musical Mut. Prot. Union, 121 
 N. Y. 45, 24 *v. E. 24, 8: 175 
 
 By undertakers. 
 Right to Kefuse to Deal with a Person, see 
 
 Compulsory Service, 2, 3. 
 Damages for, see Damages, 29, 569. 
 
 64. It is not unlawful for the undertakers 
 of a community to associate themselves to- 
 gether, and agree to refuse to render serv- 
 ice in their business to one who has refused 
 or failed to pay a bill due to some member 
 of the association for similar services previ- 
 ously rendered. Brewster v. C. Miller's Sons, 
 101 Ky. 368, 41 S. W. 301, 38: 505 
 By plumbers. 
 
 65. An agreement among the members of 
 an association of plumbers not to deal with 
 wholesale dealers who sell to any who are 
 not members of the association, and the 
 sending of notices to that end, do not con- 
 stitute an unlawful conspiracy, since the 
 object of the combination and the means 
 adopted for its accomplishment are lawful. 
 Macauley v. Tierney, 19 R. I. 255, 33 Atl. 1, 
 
 37 : 455 
 
 66. Notice by a plumbers' association that 
 it will withdraw its patronage from whole- 
 sale dealers who sell to any who are not 
 members of the association is not unlawful, 
 although the cause and excuse for the notice 
 are the selfish purpose of the association to 
 
 L.R.A. Dig. 35. 
 
 rid its members of the competition of those 
 who are not members. Id. 
 
 Picketing premises. 
 As to Patrol by Strikers, see infra, 85-87. 
 
 67. To picket the premises of a person 
 boycotted, in order to intercept his team- 
 sters or prevent persons going there to 
 trade, is unlawful, being an act of intimida- 
 tion and an unwarrantable interference with 
 the right of free trade. Beck v. Railway 
 Teamsters' Protective Union, 118 Mich. 497, 
 77 N. W. 13, 42: 407 
 
 d. Of Laborers; Strikes. 
 
 Boycott by Labor Union, see supra, 60- 
 63a. 
 
 Boycott by Employer's Association, see su- 
 pra, 67; infra, 68, 69. 
 
 See also infra, 160-166. 
 
 For Editorial Notes, see infra, HI. 1. 
 
 68. Trades unions are not within and of 
 themselves unlawful combinations. Long- 
 shore Printing & Pub. Co. v. Howell, 26 Or. 
 527, 38 Pac. 547, 28: 464 
 
 69. Illegal combinations are not sanc- 
 tioned in any degree by the act of Congress 
 of June 29, 1886, legalizing the incorporation 
 of national trades unions. Arthur v. Oakes, 
 63 Fed. 310, 24 U. S. App. 239, 11 C. C. A. 
 209, 25:414 
 
 70. A combination of laborers to maintain 
 wages or limit the number of apprentices is 
 not contrary to public policy. Longshore 
 Printing & Pub. Co. v. Howell, 26 Or. 527, 
 38 Pac. 547, 28:464 
 To compel discharge of employee. 
 
 See also supra, 62, 63; Master and Servant, 
 36. 
 
 71. An agreement between a labor asso- 
 ciation and an employer's association, that 
 all employees of the members of the latter 
 association shall be members of the former 
 association, and that no employee shall 
 work for a longer period than four weeks 
 without becoming a member, is illegal and 
 constitutes no defense to an action for con- 
 spiracy by an employee who is discharged 
 in pursuance of such agreement, because of 
 his refusal to become a member of the labor 
 association. Curran v. Galen, 152 N. \. 33, 
 46 N. E. 297, 37: 802 
 
 72. A man has, under the constitutional 
 right of acquiring property, the unrestricted 
 right to work for such employer as he 
 chooses for such wages as he chooses to ac- 
 cept, and other persons cannot interfere 
 with this right by intimidating either him 
 or his employers. Erdman v. Mitchell, 207 
 Pa. 79, 56 Atl. 327, 63: 534 
 Strikes. 
 
 Injunction against, see Injunction, 129-152. 
 
 Joint Action by Strikers against Black 
 Listing, see Parties, 121. 
 
 See also infra, 162-166. 
 
 For Editorial Notes, see infra, HI. 1, In- 
 junction, IV. 3. 
 
 73. Employees have a right, both as in- 
 dividuals and in combination, to refuse to 
 work for their employers unless satisfactory
 
 546 
 
 CONSPIRACY, II. a. 
 
 wages are paid. My Maryland Lodge No. 
 186 v. Adt, 100 Md. 238, 59 Atl. 721, 
 
 68: 752 
 
 74. An agreement of employees between 
 themselves to quit their employer is not un- 
 lawful. Longshore Printing & Pub. Co. v. 
 Ho well, 26 Or. 527, 38 Pac. 547, 28: 464 
 
 75. Communicating to their employer the 
 reasons for the design of employees to quit 
 the service and signifying their intention is 
 not unlawful. Id. 
 
 76. Labor organizations or unions are not 
 unlawful, but are legitimate and proper for 
 the advancement of their members and 
 those dependent upon them; and the mem- 
 bers thereof may, singly or in a body, quit 
 the service of their employer for the pur- 
 pose of bettering their condition, and may 
 by peaceful means persuade others to join 
 them, and, as a means to that end, may re- 
 fuse to allow their members to work in 
 places where nonunion labor is employed. 
 Gray v. Building Trades Council, 91 Minn. 
 171, 97 N. W. 663, 63: 753 
 
 77. A strike is not unlawful if it is mere- 
 ly a combination among employees having 
 for its object their orderly withdrawal in 
 large numbers or in a body from their em- 
 ployer's service, to accomplish some lawful 
 purpose. Arthur v. Oakes, 24 U. S. App. 
 239, 11 C. C. A. 209, 60 Fed. 310, 25: 414 
 
 78. Employees of the receiver of a rail- 
 road may lawfully confer together upon the 
 subject of a proposed reduction of wages, 
 and, if not restrained by their contract, may 
 withdraw in a body from the receiver's serv- 
 ice because of such reduction, although they 
 expect that such action will inconvenience 
 the receiver and the public. Id. 
 
 79. Ordering a strike on a building which 
 has reached a stage of construction where 
 work cannot be stopped without disaster. 
 in accordance with an intent to pursue such 
 course in respect to all buildings upon which 
 nonunion men are employed for the pur- 
 pose of forcing all men into unions, is un- 
 lawful, although under existing legislation 
 the responsible persons may not be guilty 
 of criminal conspiracy. Erdman v. Mitchell, 
 207 Pa. 79, 56 Atl. 327, 63:534 
 
 80. The display of force by strikers, 
 though none is actually used, is intimida- 
 tion and as much unlawful as violence it- 
 self. O'Neil v. Behanna, 182 Pa. 236, 37 
 Atl. 843, 38: 382 
 
 81. A combination of railroad employees to 
 act concertedly in quitting their employ- 
 ment, in a way to injure their employer, aid 
 in enforcing a boycott, injure the public, 
 and oppress other employees, is criminal. 
 Toledo, A. A. & N. M. R. Co. v. Pennsyl- 
 vania Co. 54 Fed. 746, 19: 395 
 
 82. While an employee may bestow or 
 withhold his labor as he will, if he uses the 
 benefit which his labor is or will be to an- 
 other by threatening to withhold or agree- 
 ing to bestow it, or by actually withhold- 
 ing it or bestowing it, for the purpose of 
 inducing, procuring, or compelling that oth- 
 er to commit an unlawful and criminal act, 
 such withholding or bestowing his labor is 
 itself an unlawful and criminal act. To- 
 
 ledo, A. A. & N. M. R. Co. v. Pennsylvania 
 Co. 54 Fed. 730, 'l9: 387 
 
 83. Strikers who induce newly employed 
 men to break their contracts by meeting 
 them and following them in considerable 
 numbers as the new men enter the town, 
 and calling them "scabs" and '"blacklegs," 
 sometimes surrounding them and endeavor- 
 ing to pull them away, are liable to the 
 employer for any damages he may suffer in 
 consequence. O'Neil v. Behanna, 182 Pa. 
 236, 37 Atl. 843, 38: 382 
 
 84. All who participate personally in the 
 unlawful conduct of strikers, or in such 
 combination as makes them liable for the 
 acts of the others done in pursuance of the 
 common purpose, are liable for the damages 
 done in the execution of such purpose. Id. 
 Patrol. 
 
 As to Picketing Premises, see supra, 67. 
 
 85. A conspiracy of strikers to prevent 
 persons from entering employment or con- 
 tinuing therein, even if they are not under 
 any binding contract, by maintaining a pa- 
 trol in front of the employer's premises and 
 by means of threats and intimidation, 13 un- 
 lawful. Vegelahn v. Guntner, 167 Mass. 92, 
 44 N. E. 1077, 35: 722 
 
 86. A patrol by strikers in front of a fac- 
 tory, used in combination with social pres- 
 sure, threats of personal injury, or unlawful 
 harm and persuasion to break existing con- 
 tracts, is an unlawful interference with the 
 rights of both employer and employee, since 
 it is a means of intimidation indirectly to 
 the employer and directly to persons actual- 
 ly employed or seeking to be employed by 
 him. Id. 
 
 87. The motive or purpose of strikers to 
 secure better wages for themselves by com- 
 pelling the acceptance of their schedule of 
 wages does not justify maintaining a pa- 
 trol in front of a factory as a means of 
 carrying out their conspiracy. Id. 
 
 II. In Restraint of Trade, Commerce, or 
 Competition ; Monopolies. 
 
 a. In General. 
 
 As to Letting Hearse for Funeral, see Asso- 
 ciations, 2. 
 
 Anti- Trust Act as Denial of Equal Protec- 
 tion, see Constitutional Law, 361. 
 
 Contracts between Two Persons in Restraint 
 of Trade, see Contracts, III. e. 
 
 Enforcing Claim to Interest in Profits, see 
 Contracts, 620. 
 
 Contract by Corporation to Buy Off Com- 
 petition, see Corporations, 142-144. 
 
 Power of Corporations to Purchase Stock of 
 Other Companies, see Corporations, IV. 
 b. 
 
 Void Provision in Corporate Charter for 
 Creation of Monoply, see Corporations, 
 18. 
 
 Punishment for Entering into, see corpora- 
 tions, 687, 701-703. 
 
 Forfeiture of Charter for, see Corporations, 
 687.
 
 CONSPIRACY, II. a. 
 
 547 
 
 Declaring Forfeiture in Equity Suit, see 
 
 Forfeiture, 3. 
 Foreign Corporation Entering into Trust in 
 
 Violation of Local Laws, see Corpora- 
 tions, 852. 
 Federal Jurisdiction of Suit to Enjoin, see 
 
 Courts, 332. 
 Exclusiveness of Federal Jurisdiction, see 
 
 Courts, 436. 
 Purchase of Other Plant as Evidence of 
 
 Monopoly, see Evidence, 1950. 
 Injunction against, see Corporations, 489; 
 
 Injunction, 131-152. 
 Right to Jury Trial, see Jury, 24. 
 Who may Maintain Action for Injury by 
 
 Conspiracy, see Parties, 4, 23, 105. 
 Right of Owners of Patents to Combine, 
 
 see Patents, 1. 
 Partial Invalidity of Anti-Trust Law, see 
 
 Statutes, 78. 
 
 See also supra, 30. *, 
 
 For Editorial Notes, see infra, III. 2, 3. 
 
 88. The true test of the illegality of a 
 combination to restrict business is its ef- 
 fect upon the public interests. Nester v. 
 Continental Brew. Co. 161 Pa. 473, 29 Atl. 
 104, 24: 247 
 
 89. The Federal anti-trust act should have 
 a reasonable construction, one which tends 
 to advance the remedy it provides, and to 
 abnte the mischief at which it was leveled. 
 Whitwell v. Continental Tobacco Co. 60 C. 
 ('. A. 290, 125 Fed. 454, 64: 689 
 
 90. Greed of profit or malice toward 
 others is an essential element of an unlawful 
 conspiracy at common law to restrain trade. 
 Cote v. Murphy, 159 Pa. 420, 28 Atl. 190, 
 
 23: 135 
 
 91. Efforts to prevent competition to re- 
 strict individual effort and freedom of action 
 in trade and commerce are restrictions hos- 
 tile to the public welfare, not consonant 
 with the spirit of our institutions and in 
 violation of law. People ex rel. Mcllhany 
 v. Chicago Live-Stock Exch. 170 111. 556, 48 
 X. E. 1062, 39: 373 
 
 92. If the object of a contract is to pre- 
 vent or impede free and fair competition in 
 trade, and it may in fact have that ten- 
 dency, it is void as being against public 
 policy. Anderson v. Jett, 89 Ky. 375, 12 
 S. W. 670. 6: 390 
 
 93. A contract, the sole object of which is 
 to restrain competition, and enhance or 
 maintain prices, is void as a restraint of 
 trade. United States v. Addyston Pipe & 
 S. Co. 29 C. C. A. 141, 54 U. S. App. 723, 
 85 Fed. 271, 46: 122 
 
 94. A combination of manufacturers to 
 limit competition and control trade and 
 prices in a large number of states is not 
 legal because the restraint is only partial 
 and limited in territory, and does not make 
 a complete monopoly, but is tempered by 
 fear of competition, and affects only a part 
 of the price. Id. 
 
 95. No conventional restraint of trade can 
 be enforced unless the covenant embodying 
 it is merely ancillary to the main purpose 
 of a lawful contract, and necessary to pro- 
 tect the covenantee in the enjoyment of the 
 
 legitimate fruits of the contract, or to pro- 
 tect him from the dangers of an unjust use 
 of those fruits by the other party. Id. 
 
 96. A formal written agreement is not 
 necessary to constitute an illegal trust; it is 
 sufficient that concerted action showing an 
 understanding or scheme is shown by the 
 acts of the parties. Harding v. American 
 Glucose Co. 182 111. 551, 55 N. E. 577, 
 
 64: 738 
 
 97. An agreement intended to aid in the 
 formation and organization of an illegal cor- 
 poration designed to secure a monopoly of 
 a certain business, by which and in consider- 
 ation of indorsements and other financial aid 
 to a shareholder to enable him to raise funds 
 necessary to join the enterprise the indors- 
 ers are to have a share of the net earnings 
 of his stock, is void on grounds of public 
 policy. Richardson v. Buhl, 77 Mich. 632, 
 43 N. W. 1102, 6: 457 
 
 98. Acts, contracts, and combinations 
 which promote, or only incidentally or in- 
 directly restrict, competition in commerce 
 among the states, while their main purpose 
 and chief effect are to foster the trade and 
 increase the business of those who make and 
 operate them, are not in restraint of inter- 
 state commerce, or violative of the anti- 
 trust act of July 2, 1890, (26 Stat. at L. 209, 
 chap. 647, U. S. Comp. Stat. 1901, p. 3200), 
 1. Whitwell v. Continental Tobacco Co. 
 60 C. C. A. 290, 125 Fed. 454, 64: 689 
 
 99. Attempts to monopolize a part of 
 commerce among the states, which promote, 
 or only incidentally or indirectly restrict, 
 competition in interstate commerce, while 
 their main purpose and chief effect are to 
 increase the trade and foster the business 
 of those who make them, were not intended 
 to be, and were not, made illegal or punish- 
 able by the anti-trust act of July 2, 1890, 
 (26 Stat. at L. 209, chap. 647, U. S. Comp. 
 Stat. 1901, p. 3200), 2, because such at- 
 tempts are indispensable to the existence 
 of any competition in commerce among the 
 states. Id. 
 
 100. Every attempt to monopolize a part 
 of interstate commerce, the necessary ef- 
 fect of which is to stifle, or directly and sub- 
 stantially to restrict, competition in com- 
 merce among the states, violates the anti- 
 trust act of July 2, 1890, (26 Stat. at L. 209, 
 chap. 647, U. S. Comp. Stat. 1901, p. 3200), 
 2. Id. 
 
 101. Every contract, combination, or con- 
 spiracy, the necessary effect of which is to 
 stifle, or directly and substantially to re- 
 strict, competition in commerce among the 
 states, is in restraint of interstate com- 
 merce, and violates the anti-trust act of 
 July 2, 1890 (26 Stat. at L. 209, chap. 647, 
 U. S. Comp. Stat. 1901, p. 3200), 1. Id. 
 
 102. "Control" of business of a corporation 
 which the anti-trust legislation forbids the 
 corporation to grant to others than the cor- 
 poration's officers or agents moans pow- 
 er to dictate the corporate action of the cor- 
 poration, not the mere management of some 
 ^TMM'ial limited ('apartment of its operations. 
 Ya/oo & M. V. R. Co. v. Searles, 85 Miss. 
 
 1 .V20. 37 So. 939. 68: 715
 
 548 
 
 CONSPIRACY, II. b 
 
 103. A trust agreement between all or a 
 majority of the stockholders of several cor- 
 porations and of the members of limited 
 partnerships engaged in the same business, 
 by which they are to transfer their stock 
 to the trustees, who are empowered, as ap- 
 parent owners thereof, to elect the directors 
 and control the affairs of the several com- 
 panies in the interests of the trust, and re- 
 ceive all dividends made by such companies, 
 which they are to divide as a common fund 
 among such stockholders as dividends on 
 trust certificates which the latter receive 
 in lieu 01 their stock at tne same par value, 
 is void as against public policy and tend- 
 ing to the creation of a monopoly. State ex 
 rel. Watson v. Standard Oil Co. 49 Ohio St. 
 137, 30 X. E. 279, 15: 145 
 
 104. The facts that a corporation as one 
 of the contracting parties may constitute 
 an unjust monopoly, and that its general 
 business is illegal, cannot serve ipso facto 
 to create default or liability on its contracts 
 generally; nor can such fact be invoked col- 
 laterally to affect in any manner its inde- 
 pendent contract obligations or rights. Den- 
 nchy v. McXulta, 30 C. C. A. 422, 59 U. S. 
 App. 264, 86 Fed. 825, 41 : 609 
 
 105. That a person who has given work, 
 labor, and services to another upon the lat- 
 ter's employment, has been, during the time 
 of the rendition of such services, engaged 
 with other persons in like employment in a 
 combination to charge for such services as 
 any of them may render according to a scale 
 agreed upon by them, will not prevent re- 
 covery of the reasonable value of the serv- 
 ices rendered. Scott v. Wiswell, 30 C. C.. A. 
 339. 57 U. S. App. 179, 86 Fed. 671, 42: 85 
 
 106. A secret combination to prevent com- 
 petition and deceive the public by a pre- 
 tended competition in bidding for contracts 
 is a conspiracy in restraint of trade, with- 
 in the meaning of the act of Congress of 
 1890. United States v. Addyston Pipe & 
 S. Co. 29 C. C. A. 141, 54 II S. App. 723, 
 85 Fed. 271, 46: 122 
 
 107. Contracts unenforceable at common 
 law because in restraint of trade are, if 
 the trade restrained is interstate, made un- 
 lawful in an affirmative or positive sense 
 by the act of Congress of July 2, 1890, so 
 as to be punishable as a misdemeanor and 
 create a right of civil action for damages 
 in favor of those injured thereby, and a civil 
 remedy by injunction in favor of private 
 persons and the public. Id. 
 
 108. Proceedings under X. Y. Laws 1899, 
 chap. 600, relating to the suppression of 
 monopolies, are not limited to combinations 
 in process of formation, but reach those al- 
 ready formed which are still maintained 
 and in process of consummation. Re Davies. 
 168 X. Y. 89, 61 X. E. 118, 56: 855 
 
 109. A former member of an illegal com- 
 bination, whose connection with it was sev- 
 ered before the filing of the suit, will not 
 be denied the protection of a court of equity 
 against an illegal act of such combination 
 because of his previous connection there- 
 with. Employing Printers' Club. v. Dr. Blos- 
 ser Co. 122 Ga. 509, 50 S. E. 353, G9: 90 
 
 As to hour of closing places of business. 
 
 110. The slight restraint of trade result- 
 ing from a contract between merchants to 
 close their places of business at a certain 
 hour each day is not illegal. Stovall v. 
 McCutchen, 107 Ky. 577, 54 S. W. 969, 
 
 47: 287 
 
 b. Of Manufacturers of, or Dealers in, Dif- 
 ferent Products. 
 
 See also supra, 51. 
 
 111. When persons knowingly promote 
 and participate in an unlawful scheme to 
 advance the price of a commodity, they are 
 all principals, although one of them acts in 
 some respects in subordination to the others, 
 and is to profit less than the others, or not 
 at all. Leonard v. Poole, 144 X. Y. 371, 21 
 X. E. 707, 4: 728 
 
 112. A combination to prevent competition 
 and create fictitious prices independent of 
 the law of demand and supply, and to such 
 an extent as injuriously to affect the inter- 
 ests of the public or any particular class o'f 
 citizens who may be especially interested, 
 either as producers or consumers in the ar- 
 ticles or staples affected by the contracts, is 
 void as in restraint of trade. Texas Stand- 
 ard Cotton Oil Co. v. Adoue, 83- Tex. 650, 19 
 S. W. 274, 15: 598 
 
 113. The possibility that other business 
 enterprises in the same pursuit may be set 
 on foot to counteract the effect of a combi- 
 nation to control the market in a commod- 
 ity will not relieve such combination of il- 
 legality. Re Sugar Trust Case, 54 Hun, 354, 
 7 X. Y. Supp. 406, 5: 386 
 
 114. The language of a written agreement 
 between corporations is not alone to be con- 
 sulted in determining whether the agree- 
 ment is or is not an illegal attempt to pre- 
 vent competition and control the market; 
 but it is to be considered in view of the cir- 
 cumstances and of the conduct and probable 
 motives of the individuals engaged in bring- 
 ing it about. Id. 
 
 115. A combination to fix prices in re- 
 traint of trade may be shown by acts on the 
 part of several competing dealers in the 
 same line of trade, such as selling at a fixed 
 price from which rebates are given in goods 
 or weights, giving notice of coming advances 
 in price, which always follow as announced,- 
 securing concessions from competitors of the 
 right to sell shop-worn goods, gathering evi- 
 dence of sales under price, and abandoning 
 such conduct as soon as legal proceedings 
 are instituted to punish them. State ex 
 rel. Crow v. Armour Packing Co. 173 Mo. 
 356, 73 S. W. 645, 61 : 464 
 
 116. A contract to create a monopoly in 
 any commodity of common utility or of com- 
 mon consumption or use among the people, 
 or even of considerable utility or consump- 
 tion, is against public policy, whether such 
 commodity be one of the common nroessa- 
 ries of life or not. Tusoaloosa Ice Mfg. Co. 
 v. Williams, 127 Ala. 110, 28 So. 669, 
 
 50: 175 
 
 117. An illegal trust is created by the con-
 
 CONSPIRACY, II. b. 
 
 549 
 
 veyance, by the stockholders of several com- 
 peting companies engaged in the manufac- 
 turing business, to one company organized 
 for the purpose of taking their property 
 and consolidating their interests. Harding 
 v. American Glucose Co. 182 111. 551, 55 N. E. 
 677, 64: 738 
 
 118. The words "restrictions in trade," in 
 an anti-trust law making such restrictions 
 a felony punishable with heavy penalties, 
 by fine or imprisonment, cannot be con- 
 strued to include all contracts which in any 
 sense restrict trade, but are limited to com- 
 binations such as those between producers 
 or dealers to limit production or supply of 
 an article and thus acquire a monopoly of 
 it, and then unreasonably to enhance prices, 
 or those of quasi public corporations which 
 might be disabled by the combination from 
 performing duty to the public. Queen Ins. 
 Co. v. State, 86 Tex. 250, 24 S. W. 397, 
 
 22: 483 
 
 119. Members of a combination to en- 
 hance the price of a commodity, which is 
 void under the antitrust act, who share in 
 the profits secured by the combination, can- 
 not claim exemption from suit on the part 
 of a consumer under the provisions of the 
 statute, on the ground that no direct pur- 
 chase was made from them, nor complain 
 that all the members of the combination 
 were not made parties to the action. At- 
 lanta v. Chattanooga Foundry & Pipeworks, 
 61 C. C. A. 387, 127 Fed. 23, 64: 721 
 
 120. A combination prohibited by the act 
 of Congress of July 2, 1890, is constituted 
 by an association to unite all "acceptable 
 dealers" engaged in a certain business in a 
 certain city and within 200 miles therefrom 
 and all American manufacturers of their 
 supplies, the rules of which exclude unac- 
 ceptable persons from membership, and pro- 
 hibit their purchasing supplies at less than 
 list prices, which are more than double what 
 members of the association pay. W. W. 
 Montague & Co. v. Lowry, 52 C C. A. 621, 
 115 Fed. 27, 63:58 
 
 121. The making of anti-competitive trade 
 agreements as to products and merchandise 
 bought or sold on the general market is 
 contrary to public policy, and it is compe- 
 tent for the legislature to enact penal meas- 
 ures to prevent the making and carrying out 
 of such agreements. State v. Smiley, 65 
 Kan. 240, 69 Pac. 199, 67: 903 
 
 122. The absence of intention to restrain 
 interstate commerce will not save from con- 
 demnation a scheme of manufacturers to 
 control the whole commerce in their com- 
 modity within a large number of states. 
 United States v. Addyston Pipe & S. Co. 
 29 C. C. A. 141, 54 U. S. App. 723, 85 Fed. 
 271, 46: 122 
 
 123. A combination of manufacturers in 
 different states, to regulate sales and prices 
 of their commodities in a large number of 
 states in which it was their invariable cus- 
 tom to bid for the contracts and deliver the 
 goods at the home of the buyer, is a com- 
 bination in restraint of interstate trade, 
 within the condemnation of the antitrust 
 act of Congress of 1890. Id. 
 
 124. A combination of the manufacturers 
 of a product of a state, the market for four 
 fifths of which is found in other states, to 
 limit production and raise the price, is a 
 violation of the antitrust act of July 2, 
 1890. Gibbs v. McNeeley, 55 C. C. A. 70/118 
 Fed. 120, 60: 152 
 
 125. Contemporaneous but distinct pur- 
 chases of manufacturing businesses and 
 their good will, protected by covenants 
 against competition, are not invalidated be- 
 cause they co-operate to put five of the 
 principal plants for producing a certain com- 
 modity into the hands of one person, and 
 together create a restraint or limit upon 
 competition, which is contrary to public 
 policy. Trenton Potteries Co. v. Oliphant, 
 (N. J. Err. & App.) 58 N. J. Eq. 507, 43 
 Atl. 723, 46: 255 
 
 126. A purchase of a manufacturing busi- 
 ness and its good will, which is protected by 
 the seller's covenant not to engage in a com- 
 petitive business, is not rendered unlawful 
 by the fact that it, in connection with 
 other contemporaneous purchases, enables 
 the purchaser to control an association rep- 
 resenting nearly all the manufacturers of 
 a certain commodity, and thus control 
 prices, as the public interest will be pro- 
 tected by invalidating the agreement for 
 the control of prices, if that is unlawful. 
 
 Id. 
 
 127. A corporation and its members in 
 their control over it may constitute a trust 
 or combination to fix the price of merchan- 
 dise or limit the amount sold, within the 
 meaning of a statute prohibiting such trust 
 or combination and relieving third persons 
 from liability to pay for goods purchased 
 from such combination. Ford v. Chicago 
 Milk Shippers' Asso. 155 111. 166, 39 N. E. 
 651, 27: 298 
 
 128. An agreement with a manufacturer 
 not to resell the goods furnished by him at 
 less than a specified price is not within Ky. 
 Stat. 3915, for the suppression of con- 
 spiracies and trusts. Commonwealth v. 
 Grinstead, 111 Ky. 203, 63 S. W. 427, 
 
 56: 709 
 
 129. Proceedings against jobbers for the 
 punishment of a combination in restraint 
 of trade cannot be defeated by showing em- 
 ployment of many persons, payment of large 
 amounts in wages, improvement in the busi- 
 ness of furnishing the raw material, regula- 
 tion of prices by the cost of raw material, 
 and that the retailers had a combination 
 among themselves which was more effective 
 in fixing the prices to consumers than that 
 of the jobbers because the combination 
 among the latter could not be made effec- 
 tive. State ex rel. Crow v. Armour Packing 
 Co. 173 Mo. 356, 73 S. W. 645, 61: 464 
 
 130. A produce exchange the constitution 
 and by-laws of which regulate the credit to 
 be allowed its members, discriminate in the 
 price to be paid for produce against persons 
 not members, control the delivery of goods, 
 and provide a penalty by fine and suspen- 
 sion for offending and defaulting members, 
 is a combination in restraint of trade in vio- 
 lation of Minn. Gen. Laws 1899, chap. 359,
 
 550 
 
 CONSPIRACY, IL b. 
 
 prohibiting trusts and combinations, since 
 it tends to limit and control the market 
 price of produce, and limits and interferes 
 with the free and open purchase and sale 
 of commodities. Ertz v. Produce Ex- 
 change, 82 Minn. 173, 84 N. W. 743, 
 
 51: 825 
 Food products. 
 
 131. A combination between a corporation 
 and its members to control the price of food 
 products may be made illegal by subsequent 
 legislation. Ford v. Chicago Milk Shippers' 
 Asso. 155 HI. 166, 39 N. E. 651, 27: 298 
 
 132. The centralization of corporate fran- 
 chises in a single irresponsible power fur- 
 nished with every delegated facility for reg- 
 ulating and controlling at will, throughout 
 the country, the production and price of a 
 particular and necessary article of com- 
 merce, viz., refined sugar, creates a mo- 
 nopoly in a legal sense, is detrimental to the 
 public, ar.d is consequently unlawful. People 
 v. North River Sugar Refin. Co. 54 Hun, 
 355 (note) 3 N. Y. Supp. 401, 2: 33, Aff'd 
 in 54 Hun, 354, 7 N. Y. Supp. 406, 5: 386, 
 Aff'd in 121 N. Y. 582, 24 N. E. 834, 9: 33 
 
 133. Control of the business of refining 
 and selling sugar in the United States does 
 not involve a monopoly or restraint of for- 
 eign or interstate commerce, under the act 
 of Congress of July 2, 1890, as this act does 
 not include the regulation of manufactures 
 or productive industries of any sort, even if 
 their product is a subject of commerce. 
 United States v. E. C. Knight Co. 17 U. S. 
 App. 466, 9 C. C. A. 297, 60 Fed. Rep. 934, 
 
 24: 428 
 
 [Aff'd by the Supreme Court of the Unit- 
 ed States in 156 U. S. 1, 39 L. ed. 325, 15 
 Sup. Ct. 249.] 
 
 134. An incorporated milk exchange which 
 constitutes a combination of milk dealers 
 and creamery men to fix and control the 
 price of milk to be paid by them, thus put- 
 ting them in position to control the market, 
 is illegal and may be dissolved at the suit 
 of the attorney general. People v. Milk Ex- 
 change, 145 N. Y. 267, 39 N. E. 1062, 27: 437 
 
 135. Where an unlawful plot to advance 
 the price of lard is made, one of the parties 
 thereto cannot be aided by the court to an 
 accounting against another party to the con- 
 tract, even if the latter is only an agent of 
 the former, where there has been no ac- 
 counting or admission of indebtedness or 
 promise to pay since the completion of the 
 illegal scheme. Leonard v. Poole, 114 N. Y. 
 371, 21 N. E. 707, 4: 728 
 
 136. The agreement is void as tending to 
 create a monopoly, where all the grocers in 
 a town agree to give up dealing in butter 
 if a new firm shall establish a butter store 
 in the place and pay as much as dealers in 
 neighboring towns. Chaplin v. Brown, 83 
 Iowa, 156, 48 N. W. 1074, 12: 428 
 Coal. 
 
 Multifariousness of Action by Retail Dealer, 
 see Action or Suit 104. 
 
 137. An organization of coal dealers, in- 
 tended to prevent competition in prices, in 
 pursuance of which the price of coal is 
 raised, is a conspiracy condemned by N. Y. 
 
 Pen. Code, 168, making it a misdemeanor 
 to conspire to commit any act injurious to 
 trade or commerce. People v. Sheldon, 139 
 N. Y. 251, 34 N. E. 785, 23: 221 
 
 138. A combination between coal produc- 
 ers in one state and coal dealers in another 
 to regulate prices of coal in a certain city, 
 and to divide any advances in price in ex- 
 cess of the advances in freights, and tend- 
 ing to monopolize the coal trade of the city 
 among members of the combination, is in 
 violation of act of Congress July 2, 1890, 
 prohibiting conspiracies in restraint of trade 
 and commerce. United States v. Jellico 
 Mountain Coke & C. Co. 46 Fed. 432, 
 
 12: 753 
 
 139. The overt act necessary to make a 
 conspiracy unlawful, under N. Y. Penal 
 Code, 171, is committed in the case of a 
 conspiracy to prevent competition in prices 
 for coal, by raising the price of coal. Peo- 
 ple v. Sheldon, 139 N. Y. 251, 34 N. E. 785, 
 
 23: 221 
 
 140. Where three coal-mining companies 
 operating in the same vein or seam in close 
 proximity to one another, and just having 
 commenced the development of that partic- 
 ular kind of coal, organize indirectly and 
 nominally in the names of individuals an- 
 other corporation to act as their general 
 sales agent; and each gives it, by contract, 
 the exclusive right to sell its entire output 
 of coal at prices uniform as to all three com- 
 panies, and not to be departed from without 
 the consent of all the companies; and the 
 agent company is to advertise and intro- 
 duce the coal in the markets, establish and 
 control all agencies and subagencies, and 
 make all sales and collections, and deduct 
 for its compensation 10 cents per ton out of 
 the proceeds of sales, the contract is illegal 
 and void as tending to suppress competition 
 and restrain trade, contrary to public pol- 
 icy. Slaughter v. Thacker Coal & Coke Co. 
 55 W. Va. 642, 47 S. E. 247, 65: 342 
 
 141. A retail coal dealer injured by a com- 
 bination between wholesalers and favored re- 
 tailers to monopolize the business, enhance 
 prices, and drive other retailers out of the 
 business, may maintain an action against 
 the conspirators for the damages caused 
 thereby. Hawarden v. Youghiogheny & L. 
 Coal Co. Ill Wis. 545, 87 N. W. 472, 55: 828 
 Proprietary medicines. 
 
 142. A plan by a voluntary association of 
 merchants engaged in selling proprietary 
 medicines, adopted by manufacturers of 
 them, looking to the maintenance of prices, 
 by which the manufacturers should sell at 
 fixed prices, with a rebate only to concerns 
 who could be relied on to maintain the sell- 
 ing price, is not void as creating a monop- 
 oly or in restraint of trade, nor as against 
 public policy. John D. Park & Sons Co. v. 
 National Wholesale Druggists' Asso. 175 N. 
 Y. 1, 67 N. E. 136, 62: 632 
 Beer. 
 
 143. A combination of brewers to silence 
 and stifle competition among them within 
 the city and county of Philadelphia and the 
 county of Camden, New Jersey, fixing a 
 minimum price at which any of them shall
 
 CONSPIRACY, II. c. 
 
 551 
 
 sell beer to the customer of another or to 
 new trade, is void as against public pol- 
 icy. Nester v. Continental Brew. Co. 161 
 Pa. 473, 29 Atl. 104, 24: 247 
 
 144. A contract not to sell or be inter- 
 ested in the sale of any beer except that of 
 one company, which in turn agrees not to 
 sell or consign beer to any other party in 
 the vicinity, is a combination of the capital 
 and acts of the parties which constitutes a 
 trust in violation of tne Texas statute. Fu- 
 qua v. Pabst Brewing Co. 90 Tex. 298, 38 S. 
 W. 29, 750, 35: 241 
 Other products. 
 
 145. An agreement to sell no harrow for 
 less than the schedule price is invalid when 
 made by the owner of the patent with a 
 corporation organized by rival manufactur- 
 ers of harrows to take title to tlje patents 
 and license the former owners to operate 
 under them and sell only at schedule prices 
 to be fixed by the corporation. National 
 Harrow Co. v. Bench, 27 C. C. A. 349, 55 U. 
 S. App. 53, 83 Fed. 36, 39: 299 
 
 146. The exposure of holders of patents 
 covering similar articles to litigation will 
 not justify them in making a combination in 
 restraint of competition. Id. 
 
 147. A contract not to compete in the 
 manufacture of machinery under patterns, 
 the right to use which is sold to the other 
 contracting party, is not invalidated by the 
 act of Congress of July 2, 1890, prohibiting 
 restraint of trade and commerce among the 
 several states and with foreign nations. Ban- 
 croft v. Union Embossing Co. 72 N. H. 402, 
 57 Atl. 97, 64: 298 
 
 148. A useful commodity of a nature to 
 be needful for many purposes, such as blue- 
 stone, though it may not be an article of 
 prime necessity, is within the rule that 
 makes contracts to prevent competition un- 
 lawful. Cummings v. Union Blue Stone Co. 
 164 N. Y. 401, 58 X. E. 525. 52: 262 
 
 149. A contract between persons control- 
 ling :JO per cent of the sales of bluestone 
 at the New York market, whereby they 
 agree to sell only through a common sales 
 agent, and to maintain the agreed prices, is 
 an unlawful combination to control the mar- 
 ket. Id. 
 
 150. The organization of a corporation for 
 the purpose of controlling the manufacture 
 and trade in matches in the United States 
 and Canada, by getting all manufacturers 
 of matches to enter into a combination giv- 
 ing such corporation the whole control of 
 the business, or by buying out those who 
 would not enter, and buying off any others 
 who might propose to engage in the business, 
 is an unlawful enterprise, being an attempt 
 to create a monopoly. Richardson v. Buhl, 
 77 Mich. 632, 43 N. W. 1102, 6: 457 
 
 151. An agreement between publishers of 
 and dealers in books, whereby they agree 
 not to sell books of any kind to dealers 
 who shall be suspected of selling copyrighted 
 books at less than the net price fixed by 
 the miblishers, or who shall supply books to 
 dealers who are suspected of making such 
 sales, violates a statutory provision that 
 every contract whereby a monopoly in the 
 
 sale of any commodity of common use is or 
 may be created, or whereby competition in 
 the supply or price of any such article is 
 restrained or prevented, or whereby, for 
 the purpose of establishing or maintaining 
 a monopoly, the free prosecution of any law- 
 ful business is or may be restricted, is 
 against public policy and void. Straus v. 
 American Publishers' Asso. 177 N. Y. 473, 
 69 N. E. 1107, 64: 701 
 
 152. A combination between cotton-oil 
 mills by which the prices to be paid for 
 cotton seed and seed cotton are arbitrarily 
 fixed, subject to change only by agreement 
 of certain parties, and fixing the minimum 
 price for meal cake and lint, which one par- 
 ty is given the first right to purchase, while 
 it is also given the exclusive right to pur- 
 chase seed at the most important stations 
 in the state, with the right to purchase two 
 thirds of that shipped from the stations 
 where three of the four mills are sit- 
 uated, and, in addition, agrees to take the 
 entire make or yield of those mills at prices 
 which shall yield a specified profit to 
 them, is an unreasonable restriction upon 
 trade for the purpose of preventing compe- 
 tition, and is consequently void as against 
 public policy. Texas Standard Cotton Oil 
 Co. v. Adoue, 83 Tex. 650, 19 S. W. 274, 
 
 15: 598 
 
 153. An agreement entered into by all the 
 dealers on a certain market, limiting their 
 right, severally, under stipulated forfeit- 
 ures or penalties to buy all the grain they 
 otherwise might on such market, is an 
 agreement in restraint of trade, and falls 
 within the penal terms of the Kansas anti- 
 trust act of 1897. State v. Smiley, 65 Kan. 
 240, 69 Pac. 199, 67 : 903 
 
 c. To Control Prices for Services Generally. 
 
 To Enhance Price by Fictitious Bid at Auc- 
 tion, see Auction, 4. 
 
 Recovery Back of Money Paid by One Deal- 
 ing with Monopolistic Combination, see 
 Assumpsit, 33. 
 
 Forfeiture of Franchise in Case of, see Cor- 
 porations, 701, 702. 
 
 Dissolution of Corporation for, see Corpora- 
 tions, 747. 
 
 Evidence of Declarations to Show Combina- 
 tion, see Evidence, 1625. 
 
 For Editorial Notes, see infra, III. 2. 
 
 Of stenographers. 
 
 154. An association of stenographers, of 
 which one, if not its leading, object, is to 
 control the prices to be charged by its mem- 
 bers for stenographic work by restraining all 
 competition between them, is an illegal com- 
 bination, the rules of which will not be en- 
 forced to give one member a right of action 
 against another for under-bidding, although 
 only a small portion of the stenographers of 
 the city belong to it. More v. Bennett, 140 
 111. 69/29 N. E. 888, 15: 361 
 Of masons and builders. 
 
 155. The by-laws or rules of a masons and 
 builders' association which require all mem- 
 bers who wish to compete for any contract
 
 552 
 
 CONSPIRACY, II. c. 
 
 or job to bring their bids in advance to the 
 rooms of the association for examination by 
 a committee, and that 6 per cent at least 
 shall be added to the amount of the lowest 
 bid before it can be submitted in the com- 
 petition, with the result that owners are 
 compelled to pay for the erection of build- 
 ings by members of the association 6 per 
 cent in excess of what they would otherwise 
 be obliged to pay if the bidding was unin- 
 fluenced by such combination, are contrary 
 to public policy and void. Milwaukee 
 Masons & B. Asso. v. Niezerowski, 95 Wis. 
 129, 70 N. W. 166, 37: 127 
 
 Of plumbers. 
 
 156. The restraint of trade and enhance- 
 ment of prices by a by-law of a plumbers' 
 association may render it invalid, though 
 the association does not include all the 
 plumbers in the city in which the associa- 
 tion is formed. Bailey v. Master Plumbers' 
 Asso. 103 Tenn. 99, 52 S. W. 853, 46: 561 
 Of press associations. 
 
 157. The furnishing of news by a press 
 association to newspapers is not within the 
 scope of Mo. Rev. Stat. 1899, 8965, pro- 
 hibiting trusts or combinations to regulate 
 or fix the price of manufactures, commodi- 
 ties, "or any article or thing whatsoever." 
 State ex rel. Star Pub. Co. v. Associated 
 Press, 159 Mo. 410, 60 S. W. 91, 51: 151 
 Of stevedores. 
 
 158. The law against contracts in unlaw- 
 ful restraint of trade is not violated by an 
 agreement for an association of master 
 stevedores of a city, establishing a schedule 
 of minimum prices or charges and forbid- 
 ding any discount therefrom except as may 
 be authorized by the association in the ab- 
 sence of anything to show that the associa- 
 tion has substantially the control of the 
 business in the city, or that the schedule 
 of prices fixed is unreasonable, or the re- 
 striction such as to preclude a fair competi- 
 tion with others engaged in the business. 
 Herriman v. Menzies, 115 Cal. 16, 46 Pac. 
 730, 35: 318 
 Of tug owners. 
 
 159. That the owners of tugs have entered 
 into an illegal combination to monopolize 
 and restrain trade will not invalidate con- 
 tracts made with such tugs severally for 
 towage. Scott v. Wiswall, 30 C. C. A. 339, 
 57 U. S. App. 179, 86 Fed. 671, 42:85 
 Of labor organizations. 
 
 160. An unlawful combination in restraint 
 of interstate or foreign commerce may ex- 
 ist among labor organizations, although 
 their original purpose and general character 
 are lawful. United States v. Workingmen's 
 Amalgamated Council, 54 Fed. 994, 26: 158 
 
 161. The interdiction by act of Congress, 
 of contracts or combinations in restraint of 
 trade or commerce among the several states 
 or with foreign nations, applies to combina- 
 tions of labor as well as of capital, which 
 are in restraint of such, trade or commerce. 
 
 Id. 
 
 162. The stopping of transportation of 
 goods and merchandise in transit from state 
 vo state and to and from foreign countries, 
 
 which is caused by a strike of all the mem- 
 bers of labor organizations in a certain day, 
 in all kinds of business, in an attempt to- 
 compel the employment of none but union 
 men in a certain business, is an unlawful 
 restraint of commerce in violation of the act 
 of Congress. Id. 
 
 163. Members of a labor organization who 
 procure railroad companies to refuse to han- 
 dle interstate freight from a company with 
 which such organization is in conflict violate 
 the provisions of the Interstate Commerce 
 Law declaring any carrier or any director, 
 officer, receiver, agent, or person acting for 
 or employed by an incorporated carrier, who, 
 alone or with any other corporation, person, 
 or party, shall wilfully fail or omit to do 
 any act, or cause, or willingly suffer or per- 
 mit, any act, required by such act to be 
 done or not to be done, or aid or abet such 
 omission or failure, to be guilty of a misde- 
 meanor. Toledo, A. A. & N. M. R. Co. v. 
 Pennsylvania Co. 64 Fed. 730, 19: 387 
 
 164. Members of a labor organization, em- 
 ployees of a railroad company, and the of- 
 ficers of such organization though not such 
 employees, who, by threatening to withhold 
 their labor from such company unless it 
 violates the Interstate Commerce Act by re- 
 fusing to accept cars containing interstate 
 freights from another road with which such 
 organization is in conflict, cause it to refuse 
 to accept such freights, are civilly liable 
 to the latter road for any loss inflicted in 
 pursuance of their conspiracy. Id. 
 
 165. Rule 12 of an association of locomo- 
 tive engineers styled "The Brotherhood of 
 Locomotive Engineers," which provides: 
 "That hereafter when an issue has been sus- 
 tained by the grand chief, and carried into 
 effect by the Brotherhood of Locomotive 
 Engineers, it shall be recognized as a viola- 
 tion of obligations if a member of the 
 Brotherhood of Locomotive Engineers, who 
 may be employed on a railroad run in con- 
 nection with or adjacent to said road, handle 
 the property belonging to said railroad or 
 system in any way that may benefit said 
 company with which the Brotherhood of Lo- 
 comotive Engineers are at issue, until the 
 grievances or issues or differences of any 
 nature or kind have been amicably settled," 
 ia plainly a rule or agreement in restraint 
 of trade or commerce and violative of the 
 act of Congress of July 2, 1890, 1. Water- 
 house v. Comer, 55 Fed. 149, 19: 403 
 
 166. All persons combining to carry out 
 the rule of the Brotherhood of Locomotive 
 Engineers which requires employees on one 
 road to refuse to handle property belong- 
 ing to a connecting road on which a strike 
 of engineers is pending are, in case such 
 roads are subject to the Interstate Com- 
 merce Law, punishable under U. S. Rev. 
 Stat. 5440, U. S. Comp. Stat. 1901, p. 
 3676, relating to conspiracies to commit of- 
 fenses against the United States, if any 
 one of them, does an act in furtherance of 
 the combination. Toledo, A. A. & N. M. E. 
 Co. v. Pennsylvania Co. 54* Fed. 730, 19: 387
 
 CONSPIRACY, II. d. 
 
 553 
 
 d. Of Railroad Companies or Carriers. 
 
 Evidence as to, see Evidence, 2032. 
 Combination of Street Railways, see Street 
 
 Railways, 52, 59, 60. 
 Question for Jury as to, see Trial, 246. 
 For Editorial Notes, see infra, III. 2. 
 
 167. Contracts between carriers are not 
 necessarily invalid because they incidentally 
 restrict competition, but this depends upon 
 their reasonableness. United States v. 
 Trans-Missouri Freight Asso. 19 U. S. App. 
 36, 7 C. C. A. 15, 58 Fed. 58, 24: 73 
 [Reversed on Other Grounds by the Supreme 
 Court of the United States in 166 U S. 290, 
 41 L. ed. 1007, 17 Sup. Ct. Rep. 540.] 
 
 168. A combination of railroads is not m 
 violation of Ga. Const, art. 4, % fl 4 (Civ. 
 Code, 5800), prohibiting a corporation to 
 buy shares or stock in or make contracts 
 with any other corporation which shall have 
 the effect of creating a monopoly or lessen- 
 ing competition, if, as a general result of the 
 combination, the public at large, as distin- 
 guished frotm the people of special or par- 
 ticular communities, are in consequence ben- 
 efited. State v. Central of Georgia R. Co. 
 109 Ga. 716, 35 S. E. 37, 48: 351 
 
 169. A contract between competing rail- 
 road companies is not necessarily "in re- 
 straint of trade" and illegal, within the 
 meaning of the anti-trust act of Congress, 
 because it in some manner imposes a re- 
 striction upon competition. United States v. 
 Trans-Missouri Freight Asso. 19 U. S. App. 
 36, 7 C. C. A. 15, 58 Fed. 58, 24: 73 
 [Reversed on Other Grounds by the Supreme 
 Court of the United States in 166 U. S. 290, 
 41 L. ed. 1007, 17 Sup. Ct. Rep. 540.] 
 
 170. An association of railroad companies 
 cannot be held to create a monopoly, within 
 the meaning of the anti-trust act of Con- 
 gress, where it is not intended to have any 
 trade of its own, but to be a mere adviser 
 of its members, who are competitors of each 
 other. United States v. Trans-Missoiiri 
 Freight Asso. 19 U. S. App. 36, 7 C. C. A. 15, 
 58 Fed. 58, 24 : 73 
 
 171. A contract between corporations 
 charged with a public duty, such as is that 
 of common carriers, providing for the forma- 
 tion of a combination having no other pur- 
 pose than that of stifling competition and 
 providing means to accomplish that object, 
 is illegal and against public policy. Cleve- 
 land, C. C. & I. R. Co. v. Closser, 126 Ind. 
 348, 26 N. E. 159, 9: 754 
 
 172. A combination of persons, without 
 regard to their occupation, which will have 
 the effect to defeat the provisions of the 
 Interstate Commerce Law inhibiting dis- 
 criminations in the transportation of freight 
 and passengers ; and, further, to restrain the 
 trade or commerce of the country, will be 
 obnoxious to the penalties therein pre- 
 scribed. Waterhouse v. Comer, 55 Fed. 149, 
 
 19: 403 
 By lease of road. 
 
 173. A railroad company's lease of its 
 franchises and roads to a railway corpora- 
 tion of another state, which was not only 
 unauthorized but was expressly forbidden 
 
 by law, and the effect of which was to 
 combine coal producers and carriers and to 
 partially destroy competition in the produc- 
 tion and sale of anthracite coal, a staple 
 commodity of the state, is an excess of 
 corporate power which tends to monopoly 
 and the public injury. Stockton v. Central 
 R. Co. (N. J. Ch.) 50 N. J. Eq. 52, 24 Atl. 
 964, 17:97 
 
 By consolidation. 
 Consolidation of Street Railway Lines, see 
 
 Street Railways, 62-65. 
 For Editorial Notes, see infra, III. 2. 
 
 174. A lease of a railroad, fair in its 
 terms, for ten years, does not involve an 
 abandonment of the railroad enterprise, or 
 come within the prohibition of Mont. Const, 
 art. 15, 6, against consolidation of parallel 
 or competing railroads or the uniting of 
 their business or earnings. State ex rel. 
 Nolan v. Montana R. Co. 21 Mont. 221, 53 
 Pac. 623, 45: 271 
 
 175. Parallel railroads are those which run 
 in one general direction, traversing the same 
 section of country, and running within a 
 few miles of one another throughout their 
 respective routes. Id. 
 
 176. Competing railroads within the 
 meaning of Mont. Const, art. 15, 6, compre- 
 hend not only railroads which run between 
 the same two principal points on their own 
 lines, but those which, having one common 
 terminus, are yet actually connected with 
 other railroads, and which by arrangements 
 with them are so related to one another in 
 fact as to give them the opportunity, by 
 geographical situation, directly to cut rates 
 to principal or terminal points. Id. 
 
 177. The language of the provision of the 
 Constitution of Texas, that "no railroad 
 . . . or managers of any railroad corpor- 
 ation shall consolidate the stock, property, 
 or franchises of such corporation with, 
 
 . . . or in any way control any rail- 
 road corporation owning or having under its 
 control a parallel or competing line," 
 evinces that control in any manner and to 
 any extent was intended to be prohibited, 
 provided it was such as is calculated to 
 enable one railroad, by means of a contract 
 or agreement for interference with the oth- 
 er's affairs, to keep down competition be- 
 tween them. Gulf, C. & S. F. R. Co. v. 
 State, 72 Tex. 404, 10 S. W. 81, 1 : 849 
 
 To regulate rates. 
 See also Commerce. 61. 
 
 178. Contracts between rival and compet- 
 ing railroad companies, which prevent un- 
 healthy competition, but do not raise rates 
 of transportation above the standard of fair 
 compensation, or violate any duty that is 
 owing to the public from noncompeting 
 roads, are not void as against public policy. \ 
 Manchester & L. R. Co. v. Concord R. Co. 
 66 N, H. 100, 20 Atl. 383, 9: 689 
 
 179. A declaration of policy made by each 
 of several carriers, at a meeting, which is 
 simply an expression of a right which the 
 carriers have without such declaration, and 
 is not made for an illegal purpose, and does 
 not operate prejudicially to shippers, al- 
 though it declares that rates are not to be
 
 554 
 
 CONSPIRACY, II. d. 
 
 reduced, does not constitute an unlawful 
 combination, where the rates referred to are 
 reasonable rates which have resulted from 
 competition. Post v. Southern R. Co. 103 
 Tenn. 184, 52 S. W. 301, 55: 481 
 
 180. An association of railroad companies 
 for mutual protection by establishing and 
 maintaining reasonable rates, rules, and reg- 
 ulations, is not illegal as a restraint of 
 trade, under the anti-trust act of Congress, 
 merely because it incidentally tends to re- 
 strict competition in some degree, where 
 each member of the association must still 
 compete with other members for business, 
 and, while regular monthly meetings are 
 provided for, at which action may be taken, 
 five days' notice of any proposed reduction 
 of rates or change of rules must be given, 
 and members are bound by the decision of 
 the association unless they give written 
 notice in ten days thereafter to the con- 
 trary, and any member may withdraw on 
 thirty days' notice. United States v. Trans- 
 Missouri Freight Asso. 19 U. S. App. 30, 7 
 C. C. A. 15, 58 Fed. 58, 24: 73 
 
 181. An agreement between several rail- 
 road companies, some of which own and 
 control competing lines, for the appoint- 
 ment of a common governing committee, 
 or an association (composed of one member 
 from each company), to fix the rates for 
 which freights should be carried to and 
 from points within the state of Texas, is 
 illegal because contrary to Tex. Const, art. 
 10, 5. Gulf. C. & S. F. R. Co. v. State. 
 72 Tex. 404, 10 S. W. 81, 1:849 
 
 182. Such agreement is not relieved from 
 illegality by the fact that any company, 
 party to the agreement, has the right of 
 withdrawal, or that it cannot be punished 
 for a failure to obey the regulations, or 
 that it has not been shown that the com- 
 panies have made charges in excess of the 
 limits allowed by law. Id. 
 
 183. Contracts by a railroad company with 
 other companies for the establishment of 
 through routes and through rates for the 
 continuous carriage of interstate traffic do 
 not violate 7 of the Act to Regulate Com- 
 merce, prohibiting a combination to pre- 
 vent the carriage of freights from being con- 
 tinuous. Kentucky & I. Bridge Co. v. Louis- 
 ville & X. R. Co. '37 Fed. 567, 2: 289 
 To fix demurrage charges. 
 
 Effect of. on Right to Enforce Claim for 
 Demurrage, see Carriers, 956. 
 
 184. An agreement among carriers to 
 make the charges for the detention of cars 
 uniform is not a violation of the law pre- 
 venting agreements among rival carriers not 
 to compete with each other. Kentucky 
 Wagon Mfsr. Co. v. Ohio & M. R. Co. 9S Ky. 
 152. 32 S. W. 595. 36: 850 
 
 185. A car-service association organized by 
 railroad companies to insure the prompt, ac- 
 curate, and impartial assessing of demur- 
 rage for detention of cars, according to rules 
 approved by the state railroad commission, 
 is not illegal under the clause of a statute 
 forbidding the formation of trusts or com- 
 bines to place the control, to any extent, 
 of business, or th(> products or earnings 
 
 thereof, in the power of trustees, or by 
 which any other persons than the members 
 of the combine, their proper officers, agents, 
 and employees, shall the power to dictate 
 or control the management of business. 
 Yazoo & M. V. R. Co. v. Searles, 85 Miss. 
 520, 37 So. 939, 68: 715 
 
 186. The refusal to switch cars for a con- 
 signee who refuses to pay the demurrage 
 for delay in unloading, authorized by state 
 officials, is not such an unreasonable or op- 
 pressive act as to bring the car-service as- 
 sociation which instigates it within the leg- 
 islation against trusts and combines. Id. 
 
 187. An agreement between railroad com- 
 panies by which a plan is devised for the 
 accurate assessing and convenient and inex- 
 pensive collection of demurrage charges will 
 not be pronounced unlawful by the courts 
 except in exceptional cases of oppression and 
 wrongdoing. Id. 
 Sleeping car companies. 
 
 188. A contract between a railroad and 
 a sleeping car company for the use of the 
 cars upon the road, which requires the for- 
 mer to pay a certain mileage per car in case 
 the revenue of each car should be below a 
 specified amount per year, does not affect or 
 tend to affect transportation or charges 
 therefor within the meaning of anti-trust 
 law, where the railroad has no control over 
 the cars, and any increase of charges by the 
 sleeping car company would tend to deprive 
 it of the mileage provided in the contract. 
 Ft. Worth & D. C. R; Co. v. State (Tex.) 
 87 S. W. 336, 70: 950 
 
 189. A contract by which a railroad com- 
 pany gives a sleeping car company the ex- 
 clusive right to run its cars upon the rail- 
 road for a term of years does not create any 
 restrictions in the free pursuit of a business 
 authorized by law, within the meaning of 
 an anti-trust act, since sleeping car compan- 
 ies in general have no right to demand that 
 their cars shall be run upon the railroad. Id. 
 
 190. A contract between a railroad and a 
 sleeping car company by which the latter 
 is given the exclusive right to have its cars 
 run over the railroad does not create a mo- 
 nopoly within the meaning of a statute de- 
 fining a monopoly as a combination cf cor- 
 porations effected when the direction of 
 their affairs is brought under the same man- 
 agement for the purpose of producing, or 
 where the conrmon management tends to 
 produce, a trust, or where one company ac- 
 quires the franchises of another for the pur- 
 pose of preventing or lessening competition. 
 
 Id. 
 Steamship companies. 
 
 191. An agreement by a steamship corpor- 
 ation to buy out a competing line which, in 
 consideration of a monthly payment, agrees 
 to discontinue running vessels between ports 
 mentioned, and not to charter or sell its ves- 
 sels for use on that route, and not to be- 
 come in any way interested in the running 
 of steamships between those places, is not 
 void as in restraint of trade. Leslie v. 
 Lorillard, 110 N. Y. 519, 15 Atl. 525, 
 
 1: 456 
 
 192. An agreement between owners of
 
 CONSPIRACY, II. e; III. 
 
 555 
 
 rival steamboats to divide the profits of the 
 business in a certain proportion, without 
 creating any partnership or any other duty 
 or obligation towards each other; and that 
 in case either party sells his boat for the 
 purpose of going out of business he shall 
 not engage in it again for one year, is void 
 on grounds of public policy as an attempt 
 to prevent competition in business. Ander- 
 son v. Jett, 89 Ky. 375, 12 S. W. 670, 
 
 6: 390 
 
 e. Of Insurers. 
 
 Insurance Business as Interstate Commerce, 
 see Commerce, 7. 
 
 Constitutional Right to Combine for Main- 
 tenance of Rates, see Constitutional 
 Law, 739, 740. 
 
 Title of Statute as to, see Statutes, 184. 
 
 193. A combination for the purpose of 
 maintaining rates of insurance, although it 
 may be a void contract, Is not an indictable 
 offense at common law. ^Etna Ins. Co. 
 v. Com. 106 Ky. 864, 51 S. W. 624, 45: 355 
 
 194. Contracts regulating insurance rates 
 are not within Ky. Stat. 3915, prohibiting 
 combinations to regulate, control, or fix the 
 price of "any merchandise, manufactured 
 articles, or property of any kind." Id. 
 
 195. It is not illegal at common law for 
 insurance companies to make a combination 
 to establish uniform rates of insurance and 
 of commissions to agents. Queen Ins. Co. v. 
 State, 86 Tex. 250, 24 S. W. 397, 22 : 483 
 
 196. A combination of insurance compan- 
 ies to establish uniform rates of insurance 
 and of agents' commissions is not illegal 
 under the Texas anti-trust law of March 
 30, 1889, prohibiting trusts for restrictions 
 in trade or the production, price, or rates of 
 transportation for commodities or articles of 
 commerce, since a contract of insurance is 
 not "trade," nor is it an "article of com- 
 merce" or a "commodity." Id. 
 
 197. A combination by foreign insurance 
 companies to increase the rates of insur- 
 ance is in violation of Kan. Laws 1889, chap. 
 25", as an unlawful trust and combination 
 "in restraint of trade and products;" and 
 such companies and their local agents, who 
 attempt to and do enforce such combined 
 rates, are subject to prosecution under that 
 statute. State v. Phipps, 50 Kan. 609, 31 
 Pac. 1097, 18: 657 
 
 198. An unlawful combination of insur- 
 ers in violation of Mo. act 1897 prohibiting 
 any pool or combination to regulate prices 
 or the premium to be paid for insurance is 
 made by insurance companies, each of which 
 buys and furnishes to its agent the rate 
 book and correction slips prepared by a cer- 
 tain person, while the agents form what is 
 called an ''Underwriters' Social Club," to 
 the secretary of which, who is an inexpe- 
 rienced young man. and not an insurance ex- 
 pert, each local agent submits his daily re- 
 ports in an unsealed envelope, addressed to 
 his company, that he may see that the agent 
 does not write policies at less than the rates 
 agreed. State ex rel. Crow v. Firemen's 
 
 Fund Ins. Co. 152 Mo. 1, 52 S. W. 595, 
 
 45 : 363 
 
 199. Insurance companies charged with 
 violating the statutes against illegal combi- 
 nations, which make common cause with 
 other companies similarly charged which are 
 found guilty, will be treated in the same 
 way as the other defendants, and ousted 
 of all rights, privileges, and franchises un- 
 der the law, although the evidence does not 
 show that they are guilty. Id. 
 
 200. A foreign insurance company doing 
 business in Arkansas which enters into an 
 agreement with other insurance compan- 
 ies formed outside the state, for the purpose 
 of fixing the rates of insurance in foreign 
 countries, not intended to affect, and which 
 does not affect, persons, property, or prices 
 of insurance in the state, does not there- 
 by subject itself to the penalty imposed by 
 Ark. act May 6, 1899, upon any corpoi;a- 
 tion transacting any kind of business in the 
 state, which becomes a party to any pool or 
 combination to fix or/ limit rates of insur- 
 ance. State v. Lancashire F. Ins. Co. 66 
 Ark. 466, 51 S. W. 633, 45: 348 
 
 HI. Editorial Notes. 
 
 i. Generally. 
 
 Defined. 12: 193.* 
 
 Actionable quality of. 11: 546; 12:196.* 
 
 To commit tort. 6: 629.* 
 
 To injure trade. 2: 33.* 
 
 Combinations of workmen. 12: 193.* 
 
 Dictation to and coercion of employers and 
 employees. 12: 195.* 
 
 Enjoining use of threats and intimidation 
 to prevent one entering 
 another's employment. 12: 
 195.* 
 
 Boycotting. 12: 194.* 
 
 Coercing choice of employment. 12: 193.* 
 
 Injunction against strikes. 28: 464. 
 
 Strike as affecting carrier's liabilitv. 35: 
 623. 
 
 Instigation to. 25: 345. 
 
 Cruel and unusual punishment for. 35: 571. 
 
 Liability for collateral crimes by confeder- 
 ates. 1:211.* 
 
 Admissibility of acts and declarations of 
 coconspirators. 1 : 273.* 
 
 Evidence of; acts and declarations. 12: 
 197.* 
 
 Admissibility of declarations of coconspira- 
 tors as res gestce. 19: 
 745. 
 
 Homicide in carrying out. 68: 193. 
 
 2. Monopoly in general. 
 
 As to Contracts in Restraint of Trade, Gen- 
 erally, see Contracts, VIII. 
 36! 
 
 Combination of Railroads, see Railroads, III. 
 2. 
 
 Distinction between franchise and mere mo- 
 nopoly. 4: 616. 
 
 Contracts to stifle competition in trade; con- 
 spiracies to injure trade. 
 2: 33;* 6: 457;* 8: 500.* 
 
 Nature of; illegal combination to fix price. 
 13: 770.*
 
 556 
 
 CONSTABLE CONSTITUTIONAL LAW. 
 
 In contract for removal of garbage. 27: 
 
 540. 
 Illegality of combination by corporations to 
 
 create. 9:37.* 
 Unlawful combinations between railroads. 
 
 1: 849;* 9: 690.* 
 
 Creation of, by municipality. 13: 383.* 
 Municipal contracts for work or articles 
 which embody a patented 
 invention. 18: 45. 
 As public nuisance; remedy by injunction. 
 
 12: 753.* 
 
 Constitutionality of grant of. 53 : 763. 
 Leal restrictions on department stores. 
 
 48: 261. 
 3. Illegal trusts under modern anti-trust 
 
 laws. 
 
 Generally. 64:689. 
 Constitutionality of statute. 64: 689. 
 
 Under Federal Constitution. 64: 689. 
 Under state Constitution. 64: 694. 
 Effect and construction of Federal anti- 
 trust law. 64: 698. 
 General purpose. 64: 698. 
 What is interstate commerce under this 
 
 statute. 64: 700. 
 
 What are unlawful restraints and mo- 
 nopolies under this stat- 
 ute. 64: 705. 
 Agreement not to engage in business. 
 
 64: 711. 
 
 Effect on collateral contracts. 64: 712. 
 Effect on pre-existing contracts. 64: 
 
 713. 
 
 Effect in regard to patents. 64: 713. 
 Remedies. 64: 714. 
 
 Criminal prosecution 64: 714. 
 Injunction. 64: 715. 
 Action for triple damages. 64: 716. 
 Case of the Northern Securities Com- 
 pany. 64: 717. 
 
 Effect and construction of state anti-trust 
 laws. 64: 719. 
 
 CONSTABLE. 
 
 Liability of, see Bonds, 71; False Imprison- 
 ment, 24; Garnishment, 97; Officers, 
 209. 
 
 Garnishment of, see Garnishment, 98. 
 
 Conclusiveness of Judgment Against, see 
 Judgment, 277. 
 
 Levy by. on Railroad Property, see Levy 
 and Seizure, 29. 
 
 Libel of, see Libel and Slander, 74. 
 
 Right to Reward, see Reward, 4. 
 
 Editorial Notes. 
 
 As public officers. 17:247. 
 
 Place at which official acts- of, may be per- 
 formed. 33: 92. 
 
 Execution of bond of, on condition that 
 others shall sign. 45: 330. 
 
 Penalty as limit <>f liability on bond. 
 55: 393. 
 
 CONSTITUTION. 
 
 Of Benefit Society, see Benevolent Societies, 
 
 III.; Insurance, 189-199. 
 Of Religious Society, see Religious Societies. 
 
 II. a. 
 
 CONSTITUTIONAL CONVENTION. 
 Debates of, see Constitutional Law, 52, 
 
 CONSTITUTIONAL LAW. 
 
 I. In General; Governmental Matters. 
 
 a. Adoption; Amendment; Construc- 
 
 tion. 
 
 1. Adoption. 
 
 2. Amendments. 
 
 3. Construction. 
 
 a. In General. 
 
 6. Application of Federal 
 
 Construction. 
 c. Self-Executing Provisions. 
 
 b. Ex Post Facto and Retrospective 
 
 Laws. 
 
 1. Ex Post Facto Laws. 
 
 2. Retrospective Laws. 
 
 a. In General. 
 6. Curative Acts. 
 
 c. Vested Rights. 
 
 d. Delegation of Powers. 
 
 1. In General. 
 
 2. To People. 
 
 3. To Judiciary. 
 
 4. To Local Authorities and 
 
 Boards and Commissioners. 
 
 5. Of Judicial Power. 
 
 e. Separation of Powers. 
 
 1. In General. 
 
 2. Encroachment on Judicial 
 
 Power. 
 
 3. As to Appointment of Of- 
 
 ficers. 
 
 f. Local Self-Government. 
 
 g. Functions and Powers of State. 
 h. Abandonment of Power. 
 
 II. Rights of Persons and Property. 
 
 a. Equal Protection and Privileges; 
 Abridging Immunities and 
 Privileges. 
 
 1. In General. 
 
 2. As to Nonresidents or Aliens. 
 
 a. Nonresidents. 
 6. Aliens. 
 
 3. As to Corporations, Associa- 
 
 tions, and Carriers. 
 
 a. In General. 
 
 6. Railroad Companies; Car- 
 riers. 
 
 4. As to Taxes and Assessments. 
 
 5. As to Regulation of Business; 
 
 License. 
 
 a. In General. 
 
 b. Sunday Laws. 
 
 c. As to Employees. 
 
 6. Attorneys' Fees; Costs. 
 
 7. Matters of Practice. 
 
 8. Criminal blatters.
 
 CONSTITUTIONAL LAW. 
 
 557 
 
 EL. continued. 
 
 b. Due Process of Law or Law of the 
 
 Land; Guaranty of Right to 
 Life, Liberty, and Property. 
 
 1. In General. 
 
 2. As to Property Rights Gen- 
 
 erally. 
 
 a. In General. 
 6. Eminent Domain. 
 
 3. Taxation and Public Improve- 
 
 ments. 
 
 4. As to Regulation of Business; 
 
 Inspection; License; Re- 
 strictions on Right of 
 Contract. 
 
 a. In General. 
 
 6. Restricting Right of Con- 
 tract. , 
 
 (1) In General. 
 
 (2) With Employees. 
 
 c. Regulation of Rates. 
 
 d. Regulation of Sales. 
 
 5. As to Use or Enjoyment of 
 
 Property. 
 
 6. As to Rights in Office. 
 
 7. Remedies and Procedure. 
 
 a. In General. 
 
 b. As to Right of Action or 
 
 Defense. 
 
 (1) Of Action. 
 
 (a) In General. 
 
 (b) Against Rail- 
 
 road C o m- 
 panies or Car- 
 riers. 
 
 (2) Of Defense. 
 
 c. Notice and Hearing. 
 
 d. As to Evidence. 
 
 8. Criminal Matters. 
 
 c. Police Power. 
 
 1. In General. 
 
 2. State Engaging in Business. 
 
 3. As to Use, Enjoyment, and De- 
 
 struction of Property. 
 
 4. Restrictions on Contracts, 
 
 Business, and Occupa- 
 tions ; Health. 
 
 a. In General. 
 
 6. Particular Occupations. 
 
 c. Matters between Master 
 
 and Servant. 
 
 d. Regulation of Manufac- 
 
 ture and Sales. 
 
 5. As to Vices; Crimes. 
 
 d. Freedom of Speech and of the 
 
 Press; Religious Freedom. 
 
 e. Natural Rights; Implied Guaran- 
 
 ties. 
 
 f. Guaranties of Justice. 
 
 g. Impairing Obligation of Contracts. 
 
 1. As to Subject-Matter. 
 
 a. In General ; By Statutes. 
 
 (1) Generally. 
 
 (2) As to Corporate 
 
 Rights, Property, 
 and Liabilities. 
 6. By Change of Decisions. 
 
 2. As to Remedies. 
 CTT. Editorial Notes. 
 
 Who may Question Constitutionality of 
 Statute, see Action or Suit, 57-63; In- 
 surance, 37; Mandamus, 208-210; Par- 
 ties, 11, 12; Physicians and Surgeons, 
 9. 
 
 As to Appellate Jurisdiction, see Appeal and 
 Error, 762, 821. 
 
 Jurisdiction of the United States Supreme 
 Court over Constitutional Questions, see 
 Appeal and Error, I. a, 2. 
 
 Jurisdiction of State Courts over Constitu- 
 tional Questions, see Appeal and Error, 
 II. c, 2. 
 
 As to Bill of Attainder, see Attainder. 
 
 Statute Over-Riding Court Rules as to 
 Admission of Attorney, see Attorneys, 
 2. 
 
 Restricting Banking Business, see Banks, 1. 
 
 As to Location of State Capital, see Capital. 
 
 As to Regulation of Carriers, see Carriers, 
 III. 
 
 Right to Bear Arms, see Carrying Weapons. 
 
 As to Civil Rights, see Civil Rights. 
 
 As to Civil Service Laws, see Civil Service. 
 
 As to Abolishing Office of Clerk of Court, 
 see Clerks, 19. 
 
 As to Regulations of Interstate Commerce, 
 see Commerce. 
 
 As to Confiscation, see Confiscation. 
 
 In Abolishing Existing County, see Coun- 
 ties, 10. 
 
 Rules of Decision in Determining Consti- 
 tutionality of Statutes, see Courts, V. c. 
 
 As to Slavery and Involuntary Servitude, 
 see Criminal Law, 193. 
 
 In Arrangement of Election Districts, see 
 Election Districts. 
 
 As to Voters and Elections, see Elections. 
 
 As to Choosing Presidential Electors, see 
 Presidential Electors. 
 
 As to Taking Property for Public Use, see 
 Eminent Domain. 
 
 Prohibition against Excessive Fines, see 
 Fines, 1. 
 
 As to Number of Grand Jury, see Grand 
 Jury, 7. 
 
 Considering Constitutionality of Act on 
 Habeas Corpus, see Habeas Corpus, 20, 
 21. 
 
 Exemption of Municipality from Liability 
 for Defective Condition of Footways, 
 see Highways, 228. 
 
 As to Imprisonment for Debt, see Contempt 
 of Court, 95-98; Imprisonment. 
 
 Provision for Estoppel of Insurer as to 
 Value of Property Insured, see Insur- 
 ance, 1093. 
 
 As to Involuntary Servitude, see Involun- 
 tary Servitude. 
 
 Right to Trial by Jury, see Jury, I. 
 
 In Reducing Jurisdiction of Justices, see 
 Justice of the Peace, 4. 
 
 Refusal to Perform Duties on Ground of 
 Conflict with Constitution, see Officers, 
 172. 
 
 As to Appointment and Election of Officers, 
 see Officers, I. b. 
 
 Legislative Power to Define Practise of 
 Medicine, see Physicians and Surgeons, 
 1. 
 
 Regulation of Press Association Business, 
 see Press Association, 1.
 
 558 
 
 CONSTITUTIONAL LAW, I. a, 1, 2. 
 
 As to Use of Public Funds, see Public 
 Moneys. 
 
 Constitution of Church, see Religious So- 
 cieties, II. a. 
 
 Sheriff's Right to Take Photograph, etc., of 
 Prisoner, see Sheriff, 3. 
 
 As to Search and Seizure, see Search and 
 Seizure. 
 
 As to Enactment of Statute, see Statutes, 
 La. 
 
 Effect on Balance of Statute of Unconsti- 
 tutional Provision, see Statutes, I. c. 2. 
 
 As to Title of Statutes, see Statutes, I. e. 
 
 Matters as to Amendment, Repeal, or Re- 
 enactment of Statute, see Statutes, III. 
 
 Question for Court as to Constitutionality 
 of Statute, see Trial, 109, 110. 
 
 As to Right to Local Jury, see Venue, 23, 24. 
 
 As to Privilege of Witness, see Witnesses, 
 II. c. 
 
 I. In General; Governmental Matters. 
 
 a. Adoption; Amendment; Construction. 
 
 1. Adoption. 
 
 For Editorial Notes, see infra, III. 2. 
 
 1. Ihe recommendation of a constitu- 
 tional convention, and the submission of a 
 proposal therefor to popular vote, are prop- 
 erly made by the legislature in the form of 
 a joint resolution, and not in that of an or- 
 dinary law. State ex rel. Wineman v. Dahl, 
 6 N. D. 81, 68 N. W. 418, 34: 97 
 
 2. If a constitution has been recognized as 
 valid in its entirety by both the executive 
 and legislative branches of the government 
 after being formed and promulgated ac- 
 cording to the forms of law, the judicial de- 
 partment will not declare it or any part of 
 it invalid, although after it was submitted 
 to and voted upon by the people the con- 
 vention elected to draft it, made several 
 changes in it, and promulgated it as changed. 
 Miller v. Johnson, 92 Ky. 589, 18 S. W. 
 622, 15 : 524 
 
 2. Amendments. 
 
 Review of Determination as to, see Certi- 
 
 orari, 4. 
 Review of Legislative Action as to, see 
 
 Courts, 119-121. 
 Governor's Power to Employ Attorneys to 
 
 Assist in Drafting, see Governor, 2. 
 Injunction against Submission to Vote, see 
 
 Injunction, 250. 
 See also infra, 50-52. 
 For Editorial Notes, see infra, III. 2. 
 
 Proper subjects of amendment. 
 
 3. The declaration in a state Constitu- 
 tion, that a certain city is the seat of gov- 
 ernment and shall so remain "until changed 
 by law," does not withdraw this provision 
 from the possibility of amendment, although 
 the section itself provides for change by 
 statute approved by the people. Livermore 
 v. Waite, 102 Cal. 113, 36 Pac. 424, 25: 312 
 
 4. The establishment of the seat of gov- 
 ernment of a state is a proper subject of 
 constitutional control, and therefore of 
 constitutional amendment. Edwards v. Le- 
 sueur, 132 Mo. 410, 33 S. W. 1130, 31: 815 
 
 5. Conditions imposed and powers dele- 
 gated by a proposed constitutional amend- 
 ment to change the location of the seat of 
 state government, whereby, in addition to 
 the vote of the people which the existing 
 Constitution requires for an amendment, do- 
 nations of property and the erection of state 
 buildings, to be approved and accepted by a 
 commission, are made a condition of the 
 change of location, will not make the pro- 
 posed amendment inoperative, since upon 
 the vote of the people adopting the amend- 
 ment the conditions will be imposed and the 
 powers delegated by the Constitution itself. 
 
 Id. 
 
 6. An amendment of the state Constitu- 
 tion by changing the seat of government to 
 another city on condition of a certain dona- 
 tion of land and money and an approval by 
 certain officers of the site donated is not 
 such an amendment as the legislature is 
 authorized to submit to the vote of the peo- 
 ple, since it would not, upon adoption by the 
 people, become an effective part of the 
 Constitution without subsequent acts and 
 the approval thereof by certain officers and 
 the exercise of discretion by the commission. 
 Livermore v. Waite, 102 Cal. 113, 36 Pac. 
 424, 25: 312 
 Publication of proposed amendments. 
 Mandamus to Compel, see Mandamus, 217. 
 
 7. The publication of proposed constitu- 
 tional amendments, with the statutes of the 
 year, after they have been concurred in by 
 both houses of the legislature, sufficiently 
 complies with the requirement of publica- 
 tion for three months before election, al- 
 though their publication was from sixteen 
 to eighteen months prior thereto, at least 
 where this mode of publication of the pro- 
 posed amendments has been uniformly fol- 
 lowed in numerous instances. State ex rel 
 Torryson v. Grey, 21 Nev. 378, 32 Pac. 190, 
 
 19: 134 
 
 8. Publication of a proposed amendment 
 two weeks only before election, instead of 
 three months as required by Mont. Const, 
 art. 19, 9, is fatal to the amendment, as 
 the provision is that the secretary of state 
 "shall" cause the publishing for three 
 months, and it is also declared in another 
 section that the provisions of the Constitu- 
 tion are mandatory and prohibitory, unless 
 by express words declared to be otherwise. 
 State ex rel. Woods v. Tooker, 15 Mont. 8, 
 37 Pac. 840, 25: 560 
 
 9. The publication of a proposed consti- 
 tutional amendment under Pa. Const, art. 
 18, 1, providing that the secretary of 
 the commonwealth shall cause the amend- 
 ment to be published three months before 
 the next general election, and that the next 
 general assembly chosen must pass upon 
 the amendment before it is submitted to the 
 vote of the people, is sufficient if made three 
 months before the next general election at 
 which members of assembly are chosen, al-
 
 CONSTITUTIONAL LAW, I. a, 2. 
 
 559 
 
 though that is not the next after the pro- 
 posal of the amendment, since the provision 
 as to the time of publication is directory 
 merely, and the object of the Constitution 
 is equally well served by the later publica- 
 tion. Com. ex rel. Elkin v. Griest, 196 Pa. 
 396, 46 Atl. 505, 50: 568 
 
 Sufficiency of bill proposing. 
 
 10. An act proposing a constitutional 
 amendment need not be set out verbatim in 
 the legislative journals, where the bill is 
 fully and clearly identified by its title, and 
 the houses each have the bill in possession 
 when it is passed. Worman v. Hagan, 78 
 Md. 152, 27 Atl. 616, 21: 716 
 Governor's approval of proposed amend- 
 ment. 
 
 11. Approval by the governor of a pro- 
 posed amendment to the Constitution is not 
 required by Pa. Const, art. 3, 26, entitled 
 "Of Legislation," and providing that every 
 order, resolution, or vote shall be submitted 
 to the governor before it takes effect, but 
 making no reference to amendments, since 
 the procedure governing the adoption of 
 amendments is provided by art. 18. 1, 
 which requires a proposal of an amendment 
 in either house, an agreement to the same 
 by both houses, a publication thereof by the 
 secretary of the commonwealth, a second 
 agreement by the two houses, a second pub- 
 lication by the secretary, and finally a vote 
 of the people, which, if a majority vote 
 favorably, causes the amendment to become 
 a part of the Constitution, but nowhere 
 gives any warrant for interference by the 
 governor; and, as this is a complete system 
 in itself, no part of art. 3, 26, can be read 
 into it bv implication. Com. ex rel. Elkin 
 v. Griest* 196 Pa. 396, 46 Atl. 505, 50: 568 
 Submission of proposed amendment to vote. 
 
 12. The submission to popular vote of a 
 proposal to hold a constitutional convention 
 is properly made by the legislature, al- 
 though the legislature has the power to take 
 the initiative with respect to the calling of 
 such convention. State ex rel. Winemnn v. 
 Dahl, 6 N. D. 81, 68 N. W. 418, 34: 97 
 Form of submitting amendments. 
 
 Review of Legislative Action as to, see 
 Courts, 120, 121. 
 
 13. A proposed constitutional amendment 
 providing in one proposition for the election 
 of all judges, and fixing their terms of of- 
 fice, as well as for the division of the state 
 into circuit and chancery court districts, 
 with party nominations by districts, while it 
 proposes to repeal Miss. Const. 145, 149, 
 151-153, one of which provides for the ap- 
 pointment of supreme court judges, another 
 fixes their term of office, another provides 
 for appointments to fill vacancies, another 
 for the division of the state into circuit 
 and chancery court districts, while the other 
 provides for the appointment of circuit and 
 chancery court judges, is void for lack of 
 conformity to Miss. Const. 1890, 273, re- 
 quiring amendments, if more than one shall 
 be submitted at one time, to be submitted 
 in such manner and form that the people 
 may vote for or against each amendment 
 
 separately. State ex rel. McClurg v. Powell, 
 77 Miss. 543, 27 So. 927, 48: 652 
 
 14. It is too late to question an election 
 on proposed constitutional amendments be- 
 cause of ambiguity in the submitting stat- 
 ute, as to their separate submission, when 
 the election has proceeded throughout the 
 state without objection on the part of any 
 person, and every qualified elector who 
 desired to exercise his franchise has done 
 so without seeking to vote on some of the 
 amendments while refraining from voting on 
 the rest. State, Bott, Prosecutor, v. Wurts 
 (N. J. Err. & App.), 63 N. J. L. 289, 43 Atl. 
 744, 881. 45: 251 
 Vote on question of adopting. 
 
 Who Entitled to Vote, see Elections, 10, 49. 
 Judicial Notice of Votes Cast, see Evidence, 
 39, 40. 
 
 15. A vote in favor of a proposed consti- 
 tutional amendment, taken by yeas and 
 nays and entered in full on the legislative 
 journals in full compliance with the consti- 
 tutional provisions on this subject, is suffi- 
 cient without having the resolution read on 
 different days or in other respects taking 
 the course required for ordinary legislation. 
 Edwards v Lesueur, 132 Mo. 410, 33 S. W. 
 1130, 31:815 
 Majority required for adoption of. 
 
 16. An amendment to the Ohio Constitu- 
 tion, submitted by the legislature under the 
 provisions of 1, art. 16 of that instru- 
 ment, requires for its adoption a majority of 
 all the votes cast at the election for sen- 
 ators and representatives at which it is sub- 
 mitted to the electors of the state for their 
 approval or rejection. State ex rel. Cope v. 
 Foraker, 46 Ohio St. 677, 23 N. E. 491, 
 
 6: 422 
 
 17. A majority of all the electors voting 
 at the election for any purpose, and not 
 simply all who vote on the adoption or re- 
 jection of the constitutional amendment sub- 
 mitted at a general election, is necessary for 
 the adoption of a constitutional amend- 
 ment under Miss. Const. 1890, 273, requir- 
 ing "a majority of the qualified electors 
 voting." State ex rel. McClurg v. Powell, 77 
 Miss. 543, 27 So. 927, 48:652 
 
 18. A constitutional amendment is not 
 ratified by a majority of "the electors of the 
 state," within the meaning of Ind. Const, 
 art. 16, 1, requiring a majority of said 
 electors to ratify an amendment, where the 
 persons voting in favor of it at a general 
 election, though more than those who vote 
 against it, are less than half of those who 
 vote for governor or for President, or even 
 for another constitutional amendment on the 
 same ballot, notwithstanding the provision 
 of art. 16, 2, that where two or more 
 amendments are submitted at the same 
 time they shall be submitted in such man- 
 ner that the electors shall vote for or 
 against each of them separately. Re Denny, 
 156 Ind. 104, 59 N. E. 359, 51 : 722 
 
 19. Ballots properly rejected are to be ex- 
 cluded from the computation of votes cast 
 for or against proposed constitutional 
 amendments, under N. J. Const, art. 9, re- 
 quiring their approval or ratification by a
 
 560 
 
 CONSTITUTIONAL LAW, I. a, 3. 
 
 majority of the qualified electors voting 
 thereon. State, Bott, Prosecutor, v Wurts 
 (N. J. Err. & App.) 63 N. J. L. 289, 43 Atl. 
 744, 881, 45: 251 
 
 20. A constitutional requirement that 
 amendments shall be submitted so that the 
 electors shall vote for or against each 
 separately does not limit the consideration 
 to the votes cast for or against the amend- 
 ment alone in determining whether or not 
 it has been ratified by a majority of the 
 electors of the state. Re Denny, 156 Ind. 
 104, 59 N. E. 359, 51: 722 
 Proclamation of adoption. 
 
 21. The governor's proclamation of the 
 adoption of a constitutional amendment is 
 conclusive of that fact, under the Maryland 
 Constitution; and the amendment thereby 
 becomes eo instanti a part of the Constitu- 
 tion, and no other officer, nor any other de- 
 partment of the government, can review his 
 decision. Worman v. Hagan, 78 Md. 152, 27 
 Atl. 616, 21:716 
 Time of taking effect. 
 
 22. A proposed amendment to the Con- 
 stitution goes into operation upon the can- 
 vass of the vote, and not at the time it 
 is cast, under a statute providing that if, 
 upon the returns, it is found that there is a 
 majority in favor of it, "the same shall be 
 deemed and taken to have been ratified," 
 and the result certified to the governor, who 
 shall proclaim its adoption, although the 
 statute authorizing its submission provides 
 that if a majority vote for the amendment 
 the same shall be deemed and taken to have 
 been ratified, and shall be valid and binding. 
 State v. Kyle, 166 Mo. 287, 65 S. W. 7f3, 
 
 56: 115 
 
 23. Under Mich. Const, art. 20, 1, pro- 
 viding for constitutional amendments, 
 which, after providing' for a submission of a 
 proposed amendment to popular vote, con- 
 cludes by stating that, if ratified by the re- 
 quisite majority, "the amendment shall be- 
 come part of the Constitution," amendments 
 take effect from the time of their ratifica- 
 tion, notwithstanding the fact that the next 
 section relating to constitutional revision 
 concludes by stating that all "amendments 
 shall take effect at the commencement of 
 the year after their adoption." Seneca Min. 
 Co. v. Secretary of State, 82 Mich. 573, 47 
 N. W. 25. 9: 770 
 
 24. Mich. Pub. Acts 1889, No. 129, author- 
 izing the extension of the corporate exist- 
 ence of a mining corporation which was 
 originally organized for a period of thirty 
 years, having been passed after the ratifica- 
 tion of the constitutional amendment 
 authorizing it, is valid although passed be- 
 fore the beginning of the year after the 
 adoption of such amendment. Id. 
 Effect of; repeal of existing law. 
 
 As to Self-Executing Provisions Generally, 
 see infra, I, a, 3, c. 
 
 See also infra, 93; Criminal Law, 141; Stat- 
 utes, 330, 577, 619. 
 
 25. If the lawmaking power goes through 
 the form of enacting a law which it is pro- 
 hibited by the Constitution from enacting, 
 its action is wholly void, and cannot be 
 
 validated by the subsequent amendment of 
 the Constitution so as to confer authority 
 upon the legislature to pass such a law. 
 Seneca Min. Co. v. Secretary of State, 82 
 Mich. 573, 47 N. W. 25, 9: 770 
 
 26. Appeals pending in the Louisiana 
 court of appeals when the Constitution of 
 1898 went into effect were entitled to con- 
 sideration thereafter under the provisions 
 of the new Constitution. Cassard v. Tracy, 
 52 La. Ann. 835, 27 So. 368, 49: 272 
 
 27. A constitutional amendment repeals 
 existing legislative enactments which are in- 
 consistent with it. Fesler v. Brayton, 145 
 Ind. 71, 44 N. E. 37, 32: 578 
 
 28. Prior laws and decisions not directly 
 or by necessary implication dpnied in a new 
 Constitution survive with full force and ef- 
 fect. Mauldin v. Greenville, 42 S. C. 293, 
 20 S. E. 842, 27: 284 
 
 29. A statute providing for condemnation 
 of land is not entirely repealed,- so as to be 
 incapable of amendment, by a constitutional 
 provision which renders inoperative the 
 clauses of the statute relating to the jury. 
 Jacksonville, T. & K. W. R. Co. v. Adams, 33 
 Fla. 608, 15 So. 257, 24: 272 
 
 30. A statute requiring a county and city 
 to pay a percentage of liquor license fees 
 to a certain home is repealed, but not retro- 
 spectively repealed, by a constitutional pro- 
 vision prohibiting municipalities from mak- 
 ing donations to a private 'corporation. 
 Washingtonian Home v. Chicago, 157 111. 414, 
 41 N. E. 893, 29: 798 
 
 31. A statute imposing liability upon em- 
 ployers for injuries caused by negligence of 
 fellow servants, which is applicable to do- 
 mestic, but not to foreign, railroad compan- 
 ies, is abrogated by the adoption of a Con- 
 stitution providing that foreign corporations 
 shall not enjoy greater privileges than those 
 enjoyed by domestic corporations. Criswell 
 v. Montana C. R. Co. 18 Mont. 167, 44 Pac. 
 525, 33: 554 
 
 3. Construction, 
 a. In General. 
 
 Meaning of "Ascertain," see Corporations, 
 550. 
 
 By Federal Court, State Court Following, 
 see Courts, 511, 514. 
 
 Following State Decision as to, see Courts, 
 531-533. 
 
 Adopting Construction of Court of Other 
 State, see Courts, 497. 
 
 Liberal Construction as to Compensation 
 for Taking of Land, see Eminent Do- 
 main, 203. 
 
 Provision as to Setting Apart Fines for 
 Literary Fund, see Fines, 2, 3. 
 
 As to Wife's Power to Dispose of Property, 
 see Husband and Wife, 132. 
 
 Construction of Adopted Provision, see Stat- 
 utes, 525. 
 
 Mandatory Provision as to Passage of Stat- 
 ute, see Statutes, 2, 3, 14, 129, 142- 
 144. 
 
 For Editorial Notes, see infra, III. 2. 
 
 32. The Bill of Rights of the Nebraska
 
 CONSTITUTIONAL LAW, I. a, 3. 
 
 561 
 
 Constitution is not an enumeration of all 
 the powers reserved to the people of the 
 state. State ex rel. Smyth v. Moores, 55 
 Neb. 480, 76 N. W. 175, " 41 : 624 
 
 33. A law may be within the inhibitions 
 of the Constitution as well by implication 
 as by expression. Evansville v. State ex rel. 
 Blend, 118 Ind. 426, 21 N. E. 267, 4: 93 
 
 34. A direction of the Constitution pre- 
 vails over a direction of a statute, not only 
 when the statute on its face is in conflict 
 with the constitutional provision, but also 
 where no such conflict appears on the face 
 ox the statute, but an attempt to apply the 
 statute to a given state of facts gives rise 
 to a violation of such provision. 'Cook 
 Countv v. Chicago Industrial School for 
 Girls, *125 111. 540, 18 N. E. 183, 197, 1 : 437 
 
 35. Every constitution is to be interpreted 
 in the light of its own history. Maynard v. 
 Board of District Canvassers, 84 Mich. 228, 
 47 N. W. 756, 11:332 
 
 36. Constitutional provisions are to be ex- 
 pounded in the light of conditions existing 
 at the time of their adoption, with former 
 conditions and historical facts relating to 
 the origin of the political institutions of the 
 state and the practice under them. Fox v. 
 McDonald, 101 Ala. 51, 13 So. 416, 21 : 529 
 
 37. Constitutional provisions are to be 
 construed with reference to prior well- 
 known practices and usages. Johnston v. 
 State ex rel. Sefton, 128 Ind. 16, 27 N. E. 
 422, 12: 235 
 
 38. Long usage and practical interpreta- 
 tion cannot control in the interpretation of 
 the Constitution unless the language is ob- 
 scure and doubtful. State ex rel. Morris v. 
 Wrightson (N. J. Sup.) 56 N. J. L. 126, 28 
 Atl. 56, 22: 548 
 
 39. Continued and repeated practice of the 
 legislature, unquestioned for more than 
 forty years, will control the construction of 
 a constitutional provision applicable thereto 
 when the court is in doubt. State v. Ger- 
 hardt, 145 Ind. 439, 44 N. E. 469, 33: 313 
 
 40. The rule of construction by long and 
 continued usage should be applied to a con- 
 stitutional provision only in cases of doubt. 
 Pingree v. Dix, 120 Mich. 95, 78 N. W. 1025, 
 
 44: 679 
 
 41. The rule of practical construction is of 
 no value in construing a constitution when 
 it is plain that the practice has been in open 
 violation of that instrument. Parker v. 
 State ex rel. Powell, 133 Ind. 178, 32 N. E. 
 836, 18:567 
 
 42. The contemporaneous interpretation 
 of a constitution by those who had oppor- 
 tunity to understand the intention of the 
 instrument has a strong presumption in its 
 favor. State ex rel. Guerguin v. McAllister, 
 88 Tex. 284, 31 S. W. 187, 28: 52.3 
 
 43. A practical construction of a state 
 Constitution for nearly forty years will be 
 conclusive of its meaning when that would 
 otherwise be doubtful. French v. State ex 
 rel. Harley, 141 Ind. 618, 41 N. E. 2, 29: 113 
 
 44. A legislative interpretation of the 
 Constitution, long established and acquiesced 
 in. is of great force in determining the true 
 
 L.R.A. Dig. 36. 
 
 construction. People ex rel. Mooney v. 
 Hutchinson, 172 111. 486, 50 N. E. 599, 
 
 40: 770 
 
 45. The passage of more than fifty acts 
 amending special charters since the adop- 
 tion of Ind. Const. 1851, and the continued 
 acquiescence of the people and other depart- 
 ments of the state government therein, has 
 but little, if any, force as to the construc- 
 tion of the Constitution respecting the pow- 
 er to extend t'he term of corporate existence, 
 when only four statutes have purported to 
 do that, and no case of that kind has been 
 passed upon by the courts. Bank of Com- 
 merce v. Wiltsie, 153 Ind. 460, 53 N. E. 950, 
 
 47: 489 
 
 46. A long-continued legislative construc- 
 tion of R. I. Const, art. 4. 17, requiring a 
 bill for the creation of a corporation, except 
 for certain purposes, to be continued until 
 another election of members of the general 
 assembly, with public notice of its pendency, 
 having regarded the section as not extending 
 to public corporations, and the section hav- 
 ing originated in fears relating to private 
 corporations, the court regards it sufficiently 
 doubtful whether such section relates to pub- 
 lic corporations so that it will not declare a 
 statute creating a public corporation uncon- 
 stitutional because it was enacted without 
 continuance and notice under that section. 
 State v. Narragansett, 16 R. I. 424, 16 Atl. 
 901, 3: 295 
 
 47. The exercise by the legislature for for- 
 ty-five years, with the acquiescence by the 
 people, of the power to regulate corporations 
 by special acts, is influential in determining 
 the construction of a constitutional provi- 
 sion against creating corporations by special 
 acts. Indianapolis v. Navin, 151 Ind. 139, 
 156, 47 N. E. 525, 51 N. E. 80, 41 : 337 
 
 48. There is no room for construction of a 
 constitution outside of the words them- 
 selves, if they are unambiguous; and the 
 rules as to the authority of surrounding cir- 
 cumstances and contemporaneous exposition 
 are unimportant in such cases. State ex rel. 
 Weiss v. Edgerton School Board, 76 Wis. 
 177, 44 N. W. 967, 7: 330 
 
 49. Where the language of a constitution- 
 al provision is plain and free from ambigui- 
 ty, the ordinary signification of the words 
 employed as used in common parlance, must 
 be considered, and the intent of the provi- 
 sion gathered from the words themselves, 
 giving to them their usual meaning and sig- 
 nification. Powell v. Spackman, 7 Idaho. 
 692, 65 Pac. 503, 54: 378 
 
 50. A prior construction of a state consti- 
 tution will be regarded, in the absence of 
 any evidence of a different intent, as adopted 
 by a re-enactment of the same language in 
 a revision of the constitution. Sanders v. 
 St. Louis & N. 0. Anchor Line, 97 Mo. 26. 
 10 S. W. 595, 3: 390 
 
 51. The amendment to Md. Const, art. 7, 
 1, adopted in November, 1891, providing 
 for the election of county commissioners, 
 commencing in that year, and prescribing 
 their term of office, must be construed to be 
 applicable to the term of office of the com- 
 missioners chosen at that election, although
 
 562 
 
 CONSTITUTIONAL LAW, I. a, 8. 
 
 the amendment did not apply to their elec- 
 tion. Wornian v. Hagan, 78 Md. 152, 27 
 Atl. 610, 21: 716 
 
 52. Debates of a constitutional convention 
 although they may, for some purposes, but 
 in a limited degree, be consulted in interpret- 
 ing a doubtful phrase or provision of the 
 Constitution, are as a rule deemed an unsafe 
 guide. Rasmussen v. Baker, 7 Wyo. 117, 50 
 Pac. 819, 38: 773 
 
 53. Tbe re-enactment of the New York 
 civil service law after t)he adoption of the 
 Constitution of 1894 is not necessary in or- 
 der to make it applicable to the department 
 of public works, to which it could not apply 
 under the Constitution in force when the act 
 was passed, as the new Constitution not 
 only adopts the principle of the law, but de- 
 clares "such acts of the legislature . . . 
 as are now in force shall be and continue 
 the law of this state subject to such altera- 
 tions as the legislature snail make." People 
 ex rel. McClelland v. Roberts, 148 N. Y. 3t>0, 
 42 N. E. 1082, 31: 399 
 
 54. The New York Constitution of 1777, 
 being adopted before the Constitution of the 
 United States had been adopted, is a result 
 of all the legislative power that the people 
 of the state could exert untrammeled by 
 any higher law. Sage v. New York, 154 N. 
 Y. 61, 47 N. E. 1096, 38: 606 
 
 55. When, at the time of the adoption of a 
 constitutional provision in one state, a simi- 
 lar provision exists in several other states, 
 the courts of the former state cannot assume 
 that it was taken from any particular one 
 of other states, so as to make the decisions 
 of the courts of that state as to its meaning 
 binding upon them. Voss v. Waterloo Wat- 
 er Co. 163 Ind. 69, 71 N. E. 208, 66: 95 
 
 56. A constitutional provision on the sub- 
 ject of usury must be presumed to have been 
 adopted with reference to an existing cus- 
 tom which permitted interest to be taken in 
 advance. Bank of Newport v. Cook, 60 Ark. 
 288, 30 S. W. 35, 29: 761 
 
 57. A constitutional provision fixing the 
 time and mode of exercising a particular 
 power contains a necessary implication 
 against anything contrary to it. People ex 
 rel. Mooney v. Hutchinson, 172 111. 486, 
 50 N. E. 599, 40: 770 
 
 58. An unwritten theory of local self-gov- 
 ernment did not so enter into the provisions 
 of the Constitution of Rhode Island as to 
 make it controlling in construing those pro- 
 visions, although Rhode Island had its ori- 
 gin in a confederation of independent towns. 
 Newport v. Morton, 22 R. I. 196, 47 Atl. 312, 
 
 50: 330 
 
 59. A declaration in the Constitution of 
 political privileges, rights, or powers to be 
 exercised by the people of the state places 
 them beyond legislative control or interfer- 
 ence as effectually as if the instrument in 
 terms declared that the people should not 
 be deprived of them by an act of the general 
 assembly. Gemmer v. State ex rel. Steph- 
 ens. 163* Ind. 69, 71 N. E. 478, 66: 82 
 
 60. A constitutional provision prohibiting 
 the appropriation of private property for a 
 right of way by private corporations until 
 
 compensation has been made or ascertained 
 and paid into court will, if necessary to 
 avoid conflict with the 14th Amendment to 
 the Federal Constitution, be held to be equal- 
 ly applicable to all other persons. Steinhart 
 v. Mendocino County Super. Ct. 137 Cal. 575, 
 70 Pac. 029, 59: 404 
 
 61. The written Constitution will be con- 
 strued in the light of the right of municipal 
 self-government. State ex rel. White v. 
 Barker, 116 Iowa, 96, 89 N. W. 2Q4, 57: 244 
 
 6. Application of Federal Constitution. 
 
 As to Right to Jury Trial, see Jury, 3. 
 See also Internal Revenue, 2. 
 
 62. Section 3 of article 3, and Amendment 
 VI. of the Constitution of the United States, 
 do not apply to proceedings in state courts 
 for eff enses against the state. Ex parte Mc- 
 Neely, 36 W. Va. 84, 14 S. E. 436, 15: 226 
 
 63. U. S. Const. 5th Amend, does not ap- 
 ply to state legislation. State, Curtis v. 
 Brown & S. Mfg. Co. 18 R. I. 16, 25 Atl. 246, 
 
 17: 856 
 
 64. The 5th Amendment to the Constitu- 
 tion of the United States is a restriction 
 upon the legislative functions of the Federal 
 government and not of a state government. 
 Kimball v. Grantsville City, 19 Utah, 368, 
 57 Pac. 1, 45: 628 
 
 65. Articles 5 and 8 of the Amendments to 
 the United States Constitution have no ap- 
 plication to the states. People ex rel. Brad- 
 ley v. Illinois State Reformatory, 148 111. 
 413, 36 N. E. 76, 23: 139 
 
 66. The 8th Amendment to the Federal 
 Constitution does not apply to the states. 
 Southern Express Co. v. Com. ex rel. Walker, 
 92 Va. 59, 22 S. E. 809, 41: 436 
 
 67. The provision as to cruel and unusual 
 punishment in U. S. Const. 8th Amend, has 
 no application to crimes against the laws of 
 a state. Com. v. Murphy, 165 Mass. 66, 42 
 N. E. 504, 30: 734 
 
 68. No restraints on the police power by 
 the states is imposed by U. S. Const. 14th 
 Amend. State v. Schlenker, 112 Iowa, 642, 
 84 N. W. 698, 51: 347 
 
 69. The provision of the 14th Amendment 
 to the Federal Constitution, that no state 
 shall make or enforce any law which shall 
 abridge the privileges or immunities of citi- 
 zens, does not undertake to confer any new 
 rights or regulate individual rights, but 
 simply prohibits state legislation. Chilton 
 v. St. Louis & I. M. R. Co. 114 Mo. 88, 21 
 S. W. 458, 19: 269 
 
 70. The privileges and immunities of citi- 
 zens protected by the 14th Amendment of 
 the Federal Constitution are those of citizens 
 of the United States merely, and not those 
 of the citizens of a state. [Case affirmed by 
 equal division.] Peel Splint Coal Co. v. 
 State, 36 W. Va. 802, 15 S. E. 1000, 17: 385 
 
 71. The guaranty of equal privileges and 
 immunities to citizens of the United States 
 by the 14th Amendment of the Federal Con- 
 stitution does not limit the power of the 
 state government over the rights of its own 
 citizens. Holden v. Hardy, 14 Utah, 71, 46 
 Pac. 756, 37: 103
 
 CONSTITUTIONAL LAW, I. a, 3. 
 
 563 
 
 [AfF'd by the Supreme Court of the United 
 States in 169 U. S. 366, 42 L. ed. 780, 18 
 Sup. Ct. Rep. 383.] 
 
 72. The provision of the United States 
 Constitution for a jury trial in suits at com- 
 mon law does not apply to state courts. 
 Hall v. Armstrong, 65 Vt. 421, 26 Atl. 592, 
 
 20: 366 
 
 c. Self-Executing Provisions. 
 
 As to Carrier's Rates, see Carriers, 1128. 
 Self-Executing Provisions of City Charter, 
 
 see Municipal Corporations, 39. 
 See also supra, 25-31. 
 For Editorial Notes, see infra, III. 3. 
 
 73. A legislative adoption of the exact 
 language of a constitutional provision, omit- 
 ting only a clause as to the right of the 
 legislature to make an extension of the pro- 
 vision, does not make a legislative construc- 
 tion of the article to the effect that it is not 
 self-executing. Illinois C. R. Co. v. Ihlen- 
 berg, 75 Fed. 873, 43 U. S. App. 726, 21 C. 
 C_. A. 546, 34: 393 
 
 74. Whether or not a constitutional pro- 
 vision is self-executing is a question always 
 of intention, to be determined by the lan- 
 guage used and the surrounding circum- 
 stances. Id. 
 
 75. Legislation is not necessary to enable 
 the courts to enforce the constitutional pro- 
 vision guaranteeing the right to enjoy and 
 defend life and liberty, and to acquire, pos- 
 sess, and protect property. Erdman v. Mit- 
 chell, 207 Pa. 79, 56 Atl. 327, 63: 534 
 As to injuries to employees. 
 
 See also supra, 31. 
 
 76. A self-executing mandate is made by 
 Miss. Const. 193, providing that "knowl- 
 edge by any employee injured of the defect- 
 ive or unsafe character or condition of any 
 machinery, ways, or appliances, shall be no 
 defense to an action for injury caused there- 
 by," with an exception as to conductors or 
 engineers. Illinois C. R. Co. v. Ihlenberg, 75 
 Fed. 873, 43 U. S. App. 726, 21 C. C. A. 546, 
 
 34: 393 
 
 As to matters of eminent domain. 
 For Editorial Notes, see infra, III. 3. 
 
 77. The constitutional provision that pri- 
 vate property shall not be taken or damaged 
 for public use without compensation must 
 be held to be self -enforcing; and a court of 
 equity may enjoin one who proposes contin- 
 uously to damage private property for a 
 public use without first making compensa- 
 tion, although no statute has been enacted 
 prescribing the manner in which the amount 
 of compensation shall be ascertained and 
 paid in such cases. Kansas City, St. J. & 
 C. B. R. Co. v. St. Joseph Terminal R. Co. 
 97 Mo. 457, 10 S. W. 826, 3: 240 
 
 78. A constitutional provision against tak- 
 ing or damaging property for public use 
 without just compensation is self-executing. 
 Searle v. Lead, 10 S. D. 312, 73 N. W. 101, 
 
 39: 345 
 
 Fickman v. Kansas City, 120 Mo. 110, 25 S. 
 W. 225, 23:658 
 
 As to officers; civil service. 
 
 79. A self-executing constitutional provi- 
 sion which does not require legislation to 
 give ir. effect is made in Wash. Const, art. 4, 
 10, providing that justices of the peace 
 shall receive a salary, instead of fees, in in- 
 
 1 corporated cities or towns having more than 
 5,000 inhabitants. Anderson v. Whatcom 
 County, 15 Wash. 47, 45 Pac. 665, 33: 137 
 
 80. The self-executing mandate of N. Y. 
 Const. 1894, art. 5, 9, declaring that civil 
 service appointments "shall be made accord- 
 ing to merit and fitness, to be ascertained so 
 far as practicable by examinations, which, so 
 far as practicable, shall be competitive," re- 
 quires the courts in a proper case to pro- 
 nounce appointments made without compli- 
 ance with its requirements illegal. People 
 ex rel. McClelland v. Roberts, 148 N. Y. 360, 
 42 N. E. 1082, 31 : 399 
 
 81. The provision of the Constitution, that 
 the fitness of persons to be appointed to 
 official positions shall oe ascertained, so far 
 as practicable, by examinations which, so 
 far as practicable, shall be competitive, is 
 not self-executing, but requires legislation 
 for its enforcement. Chittenden v. Wurster, 
 152 N. Y. 345, 46 N. E. 857, 37: 809 
 As to use of public money. 
 
 Provision for Appropriation, see Appropria- 
 tions, 10. 
 
 1 See also Public Moneys, 60. 
 For Editorial Notes, see infra, III. 3. 
 
 82. A constitutional prohibition against 
 appropriating money or property of the state 
 for the benefit of sectarian or religious so- 
 cieties, institutions, or schools, is self-exe- 
 cuting, and makes inoperative an existing 
 statute which is repugnant thereto. Synod 
 of Dakota v. State, 2 S. D. 366, 50 N. W. 
 632, 14: 418 
 
 83. The provision of the Illinois Constitu- 
 tion preventing municipalities from making 
 donations to private corporations is self-exe- 
 cuting, and operated as paramount law from 
 
 | the adoption of the Constitution. Wash- 
 ; ingtonian Home v. Chicago, 157 111. 414, 41 
 
 N. E. 893, 29: 798 
 
 As to municipal indebtedness. 
 
 84. No formal assignment of a city to the 
 class to which it belongs is necessary to 
 make operative a constitutional provision 
 limiting the amount of indebtedness of the 
 city according to its classification on popu- 
 lation. Beard v. Hopkinsville, 95 Ky. 239, 
 24 S. W. 872, 23: 402 
 As to corporations. 
 
 For Editorial Notes, see infra, ITI. 3. 
 
 85. The provision of the Kansas Constitu- 
 tion, that dues from corporations shall be se- 
 cured by individual liability of stockhold- 
 ers to an amount equal to the stock owned, 
 and such other means as shall be provided by 
 law, is not self-executing. Bell v. Farwell, 
 176 111. 489, 52 N. E. 346, 42:804 
 
 86. The provision of Minn. Const, art. 10, 
 3, that "each stockholder in any corpora- 
 tion (excepting those organized for the pur- 
 pose of carrying on any kind of manufactur- 
 ing or mechanical business) shall be liable 
 to the amount of stock held or owned by 
 him," is self-executing, and creates an indi-
 
 564 
 
 CONSTITUTIONAL LAW, b,. I. 
 
 vidual liability on the part of the stockhold- 
 er for corporate debts to an amount equal to 
 the amount of stock held or owned by him. 
 Willis v. St. Paul Sanitation Co. 48 Minn. 
 140, 50 N. W. 1110, 16:281 
 
 87. The provision of Kan. Const, art. 12. 
 2, that dues from corporations shall be se- 
 cured by individual liability of stockholders 
 to an additional amount equal to the stock 
 owned by each stockholder, and such "other 
 means as shall be provided by law,'' is not 
 self -executing. Tuttle v. National Bank of 
 the Republic, 161 111. 497, 44 N. E. 984, 
 
 34: 750 
 
 Marshall v. Sherman, 148 N. Y. 9, 44 X. E. 
 419, 34: 757 
 
 88. No legislation is necessary to the oper- 
 ation of Ga. Const, art. 4, 2, If 4 (Civ. Code, 
 5800) , prohibiting the legislature from au- 
 thorizing a corporation to buy stock or 
 shares in another company or inaKe any con- 
 tracts with it, when the effect will be to 
 create a monopoly or lessen competition, 
 since this provision is simply the embodi- 
 ment of a principle of the common law. 
 Trust Company of Georgia v. State, 109 Ga. 
 736, 35 S. E. 323, 48: 520 
 
 89. A constitutional provision that no for- 
 eign corporation shall do business except 
 while it has a known place of business and 
 an authorized agent in the state is not self- 
 executing without any provision as to how 
 the agent shall be designated or the place of 
 business made known. St. Louis, A. & T. 
 R. Co. v. Philadelphia Fire Asso. 60 Ark. 
 325, 30 S. W. 350, 28: 83 
 As to taxes. 
 
 For Editorial Notes, see infra, III. 3. 
 
 90. The provision that all property not 
 exempt shall be "taxed in proportion to its 
 value, to be ascertained as provided by law," 
 which appears in Cal. Const, art. 13, 1, is 
 not self-executing. McHenry v. Downer, 1 16 
 Cal. 20, 47 Pac. 779, 45 \ 737 
 
 91. A constitutional provision that the 
 legislature "shall provide by law for a uni- 
 form and equal rate of assessment and tax- 
 ation, and shall prescribe such regulations 
 as shall secure a just valuation" is not self- 
 executing, but requires appropriate legisla- 
 tion to carry it into effect. State Bd. of Tax 
 Comrs. v. Holliday. 150 Ind. 216. 49 N. E. 14, 
 
 42: 826 
 
 92. The constitutional requirement as to 
 taxation of property is not self-executing, 
 and a tax cannot be laid unless the legisla- 
 ture selects the particular species of proper- 
 ty to bear the burden of it. Hart v. Smith, v 
 159 Ind. 182. 64 N. E. 661, 58: 949 
 
 93. The constitutional provision that the 
 general assembly shall levy a capitation tax 
 equal to the tax on property valued at $300 
 does not by its own force overrule a different 
 'ratio fixed by statute, and adjust the equa- 
 tion of the taxes so as to correct the uncon- 
 stitutional statute. Russoll v. Aver, 120 N. 
 C. 180, 27 S. E. 133, 37: 246 
 As to criminal matters. 
 
 94. A constitutional amendment that no 
 person shall be prosecuted criminally for 
 felony or misdemeanor otherwise than by 
 indictment or information is self-operating 
 
 from the time it takes effect. State v. Kyle, 
 166 Mo. 287, 65 S. W. 763, 56: 115 
 
 b. Ex Post Facto and Retrospective Laws. 
 1. Ex Post Facto Laws. 
 
 For Editorial Notes, see infra, III. 15. 
 
 95. An ex post facto law is one which will 
 increase the penalty or deprive a party of 
 substantial rights or privileges to which he 
 was entitled as the law stood when the of- 
 fense was committed. Murphy v. Com. 172 
 Mass. 264, 52 N. E. 505, 43: 154 
 
 96. A statute which alters or may alter in 
 a substantial manner the positions of those 
 committing offenses prior to its passage is 
 unconstitutional as to such an offense, even 
 if it is possible that in that particular case 
 it might operate more beneficially than the 
 prior law would have operated. Id. 
 
 97. An act is not ex post facto as to prior 
 crimes, merely because it continues in force 
 laws existing when sucn crimes were com- 
 mitted, and which would cease to be opera- 
 tive if not kept alive by that act. Ex parte 
 Larkins, 1 Okla. 53, 25 Pac. 745, 11: 418 
 
 98. The adoption of a law authorizing the 
 prosecution of crimes already committed, by- 
 information, is not forbidden by the consti- 
 tutional provisions against ex post facto 
 laws. State v. Kyle, 166 Mo. 287, 65 S. W. 
 763, 56: 115 
 Procedure generally. 
 
 99. A mere change in the mode of trial, 
 without changing the nature of the offense 
 or its constituent elements, or the nature or 
 amount of evidence necessary to prove the 
 charge, or altering the punishment, is not an 
 ex post facto law. Anderson v. O'Donnell, 29 
 S. C. 355, 7 S. E. 523, 1 : 632 
 
 100. A statute changing the mode of pro- 
 cedure in criminal cases from indictment to 
 information is not ex post facto as applied 
 to offenses committed before its passage, 
 and takes away no substantial right of an 
 accused. Re Wright, 3 Wyo. 478, 27 Pac. 
 748, 13: 748 
 
 101. A statute is not an ex post facto law 
 because it abrogates the provision existing 
 when an offense was committed, that the 
 accused may secure a change of magistrate 
 or place of preliminary examination upon 
 his affidavit of belief of the prejudice of the 
 magistrate before whom he is brought for 
 examination. People ex rel. Chandler v. Mc- 
 Donald, 5 Wyo. 526, 42 Pac. 15, 29: 834 
 
 102. A statute transferring jurisdiction 
 from one court to another is not such an 
 ex post facto law as will forbid the new 
 tribunal from taking jurisdiction of an of- 
 fense committed prior to the statute. State 
 v. Cooler,* 30 S. C. 105, 8 S. E. 692, 
 
 3: 181 
 Number of jurors. 
 
 103. Changes in constitutional provisions 
 by which a grand jury maj r consist of twelve 
 instead of sixteen, and a petit jury of twelve 
 need not all agree to find a verdict, relate 
 to methods of procedure only, and are in no 
 sense ex post facto in character, as applied
 
 CONSTITUTIONAL LAW, I. b, 2. 
 
 565 
 
 to crimes previously committed. State v. 
 Caldwell, 50 La. Ann. 666, 23 So. 869, 
 
 41: 718 
 
 104. The provision of Utah Const, art. 1, 
 10, that in courts of general jurisdiction, 
 except in capital cases/ a jury shall consist 
 of eight jurors, applies to a prosecution for 
 an offense committed before the adoption 
 of the Constitution, as it affects the proced- 
 ure merely, and in that view is not ex post 
 facto when applied to past offenses. State 
 v. Bates, 14 Utah, 293, 47 Pac. 78, 43: 33 
 Extent or severity of punishment. 
 
 See also supra, 95; infra, 116. 
 
 For Editorial Notes, see infra, III. 15. 
 
 105. A change in a statute by leaving out 
 the minimum limitation of the term of im- 
 prisonment for a crime, so that 'the punish- 
 ment may be for a lessj but cannot be for a 
 greater, term than before, cannot be regard- 
 ed as an ex post facto law. People v. Hayes, 
 140 N. Y. 484, 35 N. E. 951 3 23: 830 
 
 106. The duration of a sentence is not un- 
 certain, and the determination of the term 
 of imprisonment is not taken from the 
 courts, so as to make the act ex post facto 
 as applied to an offense previously commit- 
 ted, merely because it provides for a sen- 
 tence that is indeterminate between a maxi- 
 mum and minimum, and gives the prison 
 commissioners, after the minimum term, 
 power to release the prisoner on a permit 
 approved by the governor and council. Mur- 
 phy v. Com. 172 Mass. 264, 52 N. E. 505, 
 
 43: 154 
 
 107. A statute denying to convicts under 
 sentence for a second offense the same re- 
 ductions from their sentence for good behav- 
 ior that are allowed to other convicts is not 
 ex post facto as applied to the punishment 
 of an offense subsequently committed, al- 
 though the offender had been convicted of 
 his first offense before the passage of the 
 act. Re Miller, 110 Mich. 676, 68 N. W. 990. 
 
 34: 398 
 
 108. Deductions for good conduct and per- 
 mits to be at liberty, to which prisoners who 
 were convicted of offenses committed when 
 Mass. Stat. 1880, chap. 218, and Mass. Pub. 
 Stat. chap. 222, 20, were in force, are en- 
 titled as of right rather than by favor, for 
 faithfuj observance of the rules and for not 
 having been subjected to punishment, con- 
 stitute rights which cannot be taken away 
 or interfered with to their disadvantage by 
 subsequent legislation. Murphy v. Com. 172 
 Mass. 264, 52 N. E. 505, 43: 154 
 
 109. A statute requiring the approval of 
 the governor and council to a permit for 
 the release of a convict after the expiration 
 of the minimum term of his sentence is not 
 an ex post facto law, but relates merely to a 
 matter of procedure. Id. 
 
 110. A statute designating one who is con- 
 victed of a felony after having been convict- 
 ed of two others, an habitual criminal, and 
 subjecting him to long imprisonment as 
 such, is not ex post facto, although by its 
 terms it may be enforced against one whose 
 former convictions occurred before its pass- 
 age. Com. v. Graves, 155 Mass. 163, 29 N. 
 E. 579, 16: 256 
 
 111. A law substituting the state peniten- 
 tiary for the county jail as the place of con- 
 finement and execution of persons sentenced 
 to be hanged is not invalid as an ex post 
 facto law in respect to crimes already com- 
 mitted. The fact that the confinement is 
 designated as solitary is unimportant where 
 the statute in fact gives the prisoner as 
 many liberties as the former one. Re Tyson, 
 13 Colo. 482, 20 Pac. 810, 6: 472 
 
 112. A law shortening the time between 
 sentence and execution of a person con- 
 demned to death is void as to previous of- 
 fenses as an ex post facto law. Id. 
 Disfranchisement. 
 
 113. The disfranchisement of certain 
 classes of persons by a constitutional pro- 
 vision is not a punishment for crime, and 
 therefore does not make such provision an 
 ex post facto law. Boyd v. Mills, 53 Kan. 
 594, 37 Pac. 16, 25:486 
 
 2. Retrospective Laws. 
 a. In General. 
 
 As to Survival of Pending Action, see Abate- 
 ment and Revival, 23. 
 
 As to When Statutes are Retrospective, see 
 Statutes, II. d. 
 
 Change in Statute of Limitation, see Limi- 
 tation of Actions, I. a. 
 
 Making City Liable for Debts of Previous 
 Corporation, see Municipal Corporations, 
 36. 
 
 See also supra, 30. 
 
 114-115. A statute excluding nonresidents 
 of the state from the benefit of a statute of 
 limitations, when the cause of action arose 
 in the state and the defendant subsequently 
 ceased to be a resident thereof, is not uncon- 
 stitutional as applied to pre-existing obliga- 
 tions. Bates v. Cullum, 177 Pa. 633, 35 Atl. 
 861, 34: 440 
 
 116. A statute allowing punitive or exem- 
 plary damages in a case in which the right 
 thereto did not previously exist is, so far as 
 it applies to existing causes of action, a vio- 
 lation of constitutional prohibitions of ex 
 post facto laws and retrospective legislation. 
 French v. Dane, 19 Colo. 504, 36 Pao. 60!). 
 
 24: 387 
 
 117. New York act May 12, 1871, amend- 
 ing the 4th section of the town bonding act 
 of 1869 so as to permit the issuance of bonds 
 payable at any time the commissioners may 
 elect less than thirty years, which was the 
 period prescribed by the original section, is 
 not unconstitutional as applied to bonds is- 
 sued and delivered after its passage, but 
 based upon the consent of the taxpayers of 
 the town given before its passage. Brownell 
 v. Greenwich, 114 N. Y. 518, 22 N. E. 24, 
 
 4: 685 
 
 118. The provisions of the South Dakota 
 state Constitution, prescribing the form and 
 method of passing appropriation bills, refer 
 only to future legislation, or legislation un- 
 der the Constitution. Cutting v. Taylor, 3 
 S. D. 11, 51 N. W. 949, 15: 691
 
 566 
 
 CONSTITUTIONAL LAW, I. b, 2. 
 
 119. An attachment lien at least until a 
 final judgment is entered in the case may 
 be impaired, displaced, or destroyed by legis- 
 lative enactments, in the absence of any 
 prohibition of retroactive or retrospective 
 laws. Evans-Snider-Buel Co. v. McFadden, 
 44 C. C. A. 494, 105 Fed. 293, 58: 900 
 
 120. An act providing that improvements 
 made by a purchaser of property or his gran- 
 tor, in good faith, may be set off against the 
 rents and profits in an action by the holder 
 of the legal title to recover the land (Ga. 
 acts 1897, pp. 79-81), although applying to 
 improvements erected prior to its passage, 
 is not in violation of Ga. Const, art. 1, fl 2, 
 3, prohibiting the passage of retroactive 
 laws, since this provision is aimed only at 
 such retrospective legislation as injuriously 
 affects the rights of citizens, and does not 
 forbid retroactive legislation which is reme- 
 dial simply in its nature. Mills v. Geer, 111 
 r,a. 275, 36 S. E. 673, 52: 934 
 
 121. A statute declaring that taxes which 
 were not lawfully due shall be deemed to 
 have been involuntarily paid when the pay- 
 ments were made on returns made on blanks 
 and under instructions received from the tax 
 officers is in conflict with a constitutional 
 provision against retroactive laws, where the 
 latter, at the time the payments were made, 
 regarded them as voluntary, and did not give 
 any right to recover them back. Hamiton 
 County v. Rasche, 50 Ohio St. 103, 33 N. E. 
 408, ' 19:584 
 
 &. Curative Acts. 
 
 Curing Defective Acknowledgment, see infra, 
 1137, 1191; Acknowledgment, IV. 
 
 Validating County Warrants, see Counties, 
 58. 
 
 Curing: Defect in Foreclosure, see Mortgage, 
 173. 
 
 Special Legislation by, see Statutes, 331. 
 
 Sufficiency of Title, see Statutes, 185, 191. 
 
 Amendment of Statute to Cure Unconstitu- 
 tionally, see Statutes, 606-608. 
 
 See also infra, 137, 871; Legislature, 20. 
 
 For Editorial Notes, see infra, III. 2, 14. 
 
 122. An unconstitutional act can under no 
 circumstances be validated by the legisla- 
 ture. State ex rel. Charleston, C. & C. R. 
 Co. v. Whitesides, 30 S. C. 579, 9 S. E. 661, 
 
 3: 777 
 
 122a. It is immaterial whether Ballinger's 
 (Wash.) Anno. Codes & Stat. 5433 (2 Hill's 
 Anno. Stat. & Codes, 268), providing for an 
 injunction against the malicious erection or 
 maintenance of any structure intended to 
 spite a neighbor, was or was not invalid for 
 defect in its title, since Wash, act 1883, of 
 which it is a part, was expressly ratified 
 and confirmed by act of Congress of July, 
 1884 (23 Stat. at L. 122, chap. 226). Kar- 
 asek v. Peier, 22 Wash. 419, 61 Pac. 33, 
 
 50: 345 
 
 123. An amendment to a statute prohibit- 
 ing a person from practising medicine with- 
 out a license, which provides that it shall 
 not apply to physicians who have a diploma 
 from a regular medical college, cannot make 
 
 valid a contract made before the passing of 
 the amendment to pay for the services of 
 an unlicensed physician who had such a 
 diploma, which contract was void in its in- 
 ception. Puckett v. Alexander, 102 JN. C. 95, 
 8 S. E. 767, 3:43 
 
 124. A receipt which was void for uncer- 
 tainty as a contract for land cannot be 
 made valid by a subsequent statute allowing 
 parol testimony to identify the land. Lowe 
 v. Harris, 112 N. C. 472, 11 S. E. 539, 
 
 22: 379 
 
 As to corporations. 
 For Editorial Notes, see infra, III. 14. 
 
 125. A special act recognizing a corpora- 
 tion as a valid, existing one, and authorizing 
 it to exercise corporate rights, cures all char- 
 ter defects in its original certificate of or- 
 ganization. Koch v. North Ave. R. Co. 75 
 Md. 222, 23 Atl. 463, 15: 377 
 
 126. The illegality of corporate acts be- 
 cause of the invalidity of the act of incor- 
 poration is cured by a statute which recog- 
 nizes the corporate existence of the company 
 by amending its charter, and also recognizes 
 its right to substitute stone or gravel for 
 plank upon a road already constructed. 
 Snell v. Chicago, 133 111. 413, 24 N. E. 532, 
 
 8: 858 
 As to marriage. 
 
 127. A marriage void in toto at the time 
 it is made cannot be made valid by a sub- 
 sequent statute, so as to impose upon the 
 husband the burden of alimony. Stewart v. 
 Vandervort, 34 W. Va. 524, 12 S. E. 706, 
 
 12: 50 
 
 Acknowledgments. 
 For Editorial Notes, see infra, III. 14. 
 
 128. A legislature has power, in the ab- 
 sence of any inhibiting constitutional limita- 
 tion, and except as against prior vested 
 rights, to cure by retroactive legislation de- 
 fective acknowledgments of deeds, in all 
 cases where the purpose of the acknowledg- 
 ment is the admission of the instrument ac- 
 knowledged to record, or its use in evidence. 
 Summer v. Mitchell, 29 Fla. 179, 10 So. 562, 
 
 14: 815 
 Judgments. 
 
 129. The lawmaking power cannot vali- 
 date void judgments. Re Christensen's Es- 
 tate. 17 Utah, 412, 53 Pac. 1003. 41: 504 
 
 130. A judgment may be validated by the 
 legislature if rendered by a court with juris- 
 diction of the subject-matter and the person, 
 and its invalidity is due to the omission of 
 some essential step which the legislature has 
 a right to dispense with. Id. 
 Judicial sale. 
 
 131. The legislature has no power to vali- 
 date, by retroactive legislation, a judicial 
 sale of real estate which was void for want 
 of jurisdiction in the court to make it; at 
 least, not without making provision for 
 compensating the owners of the property. 
 Roche v. Waters, 72 Md. 264, 19 Atl. 535, 
 
 7: 533 
 
 Taxes and assessments. 
 
 Effect of Curative Act to Prevent Bar of 
 Prior Judgment, see Judgment, 206. 
 
 132. A retroactive amendment curing a de- 
 fect in a collateral inheritance tax law, by
 
 CONSTITUTIONAL LAW, I. c. 
 
 567 
 
 making necessary provision for notice of the 
 proceedings for ascertaining the amount of 
 the tax, is valid and operative as to the es- 
 tate of a person who died before the amend- 
 ment, at least so far as it applies to such 
 personal property as may not yet be distrib- 
 uted. Ferry v. Campbell, 110 Iowa, 290, 81 
 N. W. 604, * 50: 92 
 
 132a. Where local improvements to pay 
 for which the legislature had power to au- 
 thorize an assessment upon adjoining prop- 
 erty owners are made by a city under au- 
 thority of an act which is subsequently de- 
 clared unconstitutional, it is competent for 
 the legislature to pass an act authorizing a 
 reassessment to meet the cost of such im- 
 provements. Chester v. Black, 132 Pa. 568, 
 19 Atl. 276, \ 6: 802 
 
 132b. Where the act of a county board of 
 supervisors in estabishing a levee has been 
 declared void for want of jurisdiction be- 
 cause there was no petition signed by a ma- 
 jority of residents owning lands adjoining 
 the improvement, setting forth the same, 
 and the starting point, route, and termini, a 
 curative act rendering the proceedings valid, 
 and authorizing an assessment therefor, 
 after prescribed notice, is valid and enforce- 
 able, as the requisite petition, the thing 
 wanting, could have been dispensed with by 
 the legislature in the first instance, and 
 therefore can be subsequently dispensed 
 with. Richman v. Muscatine County, 77 
 Iowa, 513, 42 N. W. 422, 4: 445 
 
 Usury. 
 For Editorial Notes, see infra, III. 14. 
 
 133. A statute relieving from the imputa- 
 tion of usury all contracts made by a build- 
 ing and loan association under a charter of 
 doubtful validity is not unconstitutional as 
 to those contracts because it is retroactive. 
 Smoot v. People's Perpetual Loan & B. Asso. 
 95 Va. 686, 29 S. E. 746, 41 : 589 
 
 134. An expository statute which declares 
 that premiums, fines, or stock taken to rep- 
 resent premiums for loans made by any 
 building and loan association, shall not be 
 treated as interest, but shall be collected as 
 debts, is invalid as applied to past transac- 
 tions which, under the construction given by 
 the courts to the previous laws, were usur- 
 ious. Lindsay v. United States Sav. & L. 
 Co. 120 Ala. 156, 24 So. 171, 42: 783 
 
 135. A curative act which merely takes 
 away the privilege of pleading usury does 
 not change the agreement, but only removes 
 a bar 10 its enforcement, and is not an un- 
 constitutional impairment of a vested right. 
 Iowa Sav. & L. Asso. v. Heidt. 107 Iowa. 207, 
 77 X. W. 1050, 43: 689 
 Trusts. 
 
 136. An indefinite unenforceable trust un- 
 der the will of a person who died before N. 
 V. Laws 1803, chap. 701, took effect, is not 
 made valid by that statute, since the legis- 
 lature could not change vested rights in the 
 property. People v. Powers. 147 N. Y. 104, 
 41 N. E. 432, 35: 502 
 
 c. Vested Rights. 
 
 As to Impairing Obligation of Contracts, see 
 infra, II. g. 
 
 Of Foreign Insurance Company, see Insur- 
 ance, 47. 
 
 By License to Sell Liquor, see Intoxicating 
 Liquors, 86. 
 
 In Authority of Officers, see Municipal Cor- 
 porations, 60. 
 
 In Right to Acquire Tide Lands, see Waters, 
 97. 
 
 In Future Accretions, see Waters, 167. 
 
 In Waters, see Waters, 309, 320, 324, 349. 
 
 Power of Legislature to Abolish Vested Ri- 
 parian Rights, see Waters, 179. 
 
 See also supra, 53, 61, 135, 136; infra, 677, 
 812, 827, 920. 
 
 For Editorial Notes, see infra, III. 11, 14. 
 
 137. A law which facilitates the intention 
 of the parties to a contract by removing its 
 invalidity does not impair any vested right. 
 Shields v. Clifton Hill Land Co. 94 Tenn. 123, 
 28 S. W. 668, 26: 509 
 
 138. A majority of the stockholders of a 
 corporation have no vested right to elect the 
 directors, which will be infringed by How. 
 (Mich.) Anno. Stat. 4885o, giving the mi- 
 nority of the stockholders the power, by cu- 
 mulative voting, to elect a representative 
 membership in the board of directors. May- 
 nard ex rel. Dusenbury v. Looker, 111 Mich. 
 498, 69 N. W. 929, 56: 947 
 
 139. The charter reservation of power to 
 amend it does not destroy the constitutional 
 protection of the vested rights of the cor- 
 poration against legislative interference. 
 State ex rel. White v. Neff, 52 Ohio St. 375, 
 40 N. E. 720, . 28: 409 
 
 140. The reopening of the decision of tax 
 officers, by which the valuation of taxable 
 property has been fixed and taxes thereon 
 collected, under a subsequent statute au- 
 thorizing a state revenue agent to assess 
 and collect additional taxes, where, in his 
 opinion, the tax assessment had been too 
 small, is an unconstitutional interference 
 with vested rights. Adams v. Tonella, 70 
 Miss. 701, 14 S. W. 17, 22: 346 
 To enjoy wife's real estate. 
 
 For Editorial Notes, see infra, III. 11. 
 
 141. The right of a husband to the use of 
 his wife's real estate, with power to rent it 
 for not more than three years at a time 
 and receive the rent, under Ky. Gen. Stat. 
 p. 720, chap. 52, art. 2, 1, which was in 
 force when the parties were married and the 
 property was acquired, is a vested right of 
 which the legislature cannot deprive him. 
 Rose v. Rose, 104 Ky. 48. 46 S. W. 524, 
 
 41 : 353 
 In curtesy. 
 For Editorial Notes, see infra, III. 11. 
 
 142. The inchoate right of a husband to 
 curtesy and to reduce into possession his 
 wife's choses in action, not being vested, 
 may be interrupted by legislative enactment. 
 Alexander v. Alexander, 85 Va. 353, 7 S. E. 
 335, 1 : 125 
 
 143. The common-law estate of tenancy by 
 the curtesy initiate is a vested estate which 
 cannot be destroyed by legislation which 
 takes effect after the estate comes into ex- 
 istence. McNeer v. McNeer, 142 111. 388, 32 
 N. E. 681, 19: 256
 
 568 
 
 CONSTITUTIONAL LAW, I. c. 
 
 144. The modified estate of tenancy by 
 the curtesy initiate under the Illinois act of 
 1861, which left it similar to an inchoate 
 right of dower, except in attaching to the 
 whole, instead of one third, of the land af- 
 fected, was not a vested right, but was one 
 that could be destroyed by legislation. Id. 
 To convey homestead. 
 
 145. The right of a man to convey or en- 
 cumber his homestead without co-operation 
 of his wife, as allowed by law, is a vested 
 one, notwithstanding it may be defeated by 
 the filing by the wife of a claim as pre- 
 scribed by statute; and the legislature can- 
 not destroy the right as to existing home- 
 steads. Gladney v. Sydnor, 172 Mo. 318, 
 72 S. W. 554, 60: 880 
 
 146. A vested right of a man to convey his 
 homestead without the co-operation of his 
 wife is impaired by a statute making him 
 incapable of conveying it unless his wife 
 joins in the conveyance. Id. 
 
 147. A deprivation of right, and not mere- 
 ly a change in remedy or procedure, is ef- 
 fected by a statute which forbids a man to 
 sell his homestead without the co-operation 
 of his wife, where, theretofore, he might 
 do so unless the wife filed a claim as pre- 
 scribed by statute. Id. 
 From dismissal of appeal. 
 
 148. The dismissal of an appeal for fail- 
 ure to comply with a mandatory statute as 
 to payment of the register's fee for his 
 return confers a vested right which cannot 
 be impaired by a subsequent statute permit- 
 ting the reinstatement of appeals within a 
 specified time upon proof that the fee has 
 been paid in the interim. Lohrstorfer v. 
 Lohrstorfer, 140 Mich. 551, 104 IS. W. 142, 
 
 70: 621 
 In decedent's estate. 
 
 149. A statute taxing the right already 
 vested to take shares ot an estate of a per- 
 son who died before the act was passed, but 
 which is yet subject to the control of the 
 probate court and not yet distributed, is not 
 an unconstitutional impairment of vested 
 rights. State ex rel. Gelsthorpe v. Furnell, 
 20 Mont. 299, 51 Pac. 267, 39: 170 
 
 150. The estate of a deceased person can- 
 not be subjected to a collateral inheritance 
 tax by statute passed after the death of 
 the owner, where the Constitution prohibits 
 retrospective legislation. State ex rel. Garth 
 v. Switzler, 14,3 Mo. 287, 45 S. W. 245, 
 
 40: 280 
 In reversion. 
 
 151. A contingent claim to a reversion in 
 respect to the real estate of a corporation 
 in case of its dissolution, which is dependent 
 on the action of the sovereign in insisting 
 upon a forfeiture of the charter, is a mere 
 expectancy which can be defeated by legisla- 
 tion authorizing a sale of the property under 
 judicial decree, or granting the privileges 
 of the old corporation, or even additional 
 privileges to a new corporation which be- 
 comes its successor. Bass v. Roanoke Nav. 
 & W. P. Co. Ill N. C. 439, 16 S. E. 402, 
 
 19: 247 
 In insurance policy. 
 
 152. A statute exempting the proceeds of 
 
 life-insurance policies from liability for 
 debts of the insured cannot be given a ret- 
 roactive operation without unconstitution- 
 ally impairing vested rights. Re Heilbron's 
 Estate, 14 Wash. 536, 45 Pac. 153, 35: 602 
 In alimony. 
 
 153. A provision for alimony in a judg- 
 ment granting a divorce, which cannot be 
 
 hanged under existing laws, is a vested 
 right which cannot be impaired by a subse- 
 quent statute conferring power upon the 
 courts to modify it. Livingston v. Living- 
 ston, 173 N. Y. 377, 66 N. E. 123, 61 : 800 
 In license. 
 
 154. A vested right cannot be acquired in 
 a license granted under an ordinance that 
 gives or reserves the power to revoke it. 
 Child v. Bemus, 17 R. I. 230, 21 Atl. 539, 
 
 12 : 57 
 In office. 
 
 155. One appointed for a definite time to a 
 legislative office has no vested property in- 
 terest or contract right thereto of which the 
 legislature cannot deprive him during the 
 existence of the term. State ex rel. Mial v. 
 Ellington, 134 N. C. 131, 46 S. E. 961, 
 
 65: 697 
 In judgment. 
 
 156. Property rights are created by the 
 rendition of a judgment, which the legisla- 
 ture has no power to reach and destroy. 
 Gilman v. Tucker, 128 N. Y. 190, 28 N. E. 
 1040, 13: 304 
 
 157. Judgments rendered before the pas- 
 sage of the act, directing the sale of lands 
 or interests therein, cannot be affected by a 
 statute extending the time for redemption 
 from such sale, although the sale has not 
 yet taken place. Greenwood v. Butler, 52 
 Kan. 424, 34 Pac. 967, 22: 465 
 
 158. Where a town has fully perfected its 
 right, under the law, to contribution for the 
 expense of a bridge from another town, by 
 obtaining a judgment therefor, a subsequent 
 statute cannot deprive it of this adjudicated 
 right and require a new proceeding to again 
 establish the same right against another 
 party. Strafford v. Sharon, 61 Vt. 126, 17 
 Atl. '793, 4:499 
 In attachment lien. 
 
 Impairment of Obligation as to Attachment, 
 see infra, 1199. 
 
 159. The lien of an attachment duly lev- 
 ied and perfected by judgment is a vested 
 right in favor of the attachment creditor, as 
 against the property of the attachment 
 debtor upon which the writ was levied, 
 which cannot be impaired by subsequent leg- 
 islation. especially where the lien of an at- 
 tachment after judgment is of as high an 
 order as that of an execution. McFadden 
 v. Blocker, 2 Ind. Terr. 260, 48 S. W. 1043, 
 
 58: 878 
 
 In statute of limitations. 
 Impairing Obligation of Contracts as to, see 
 
 infra. 1106, 1197, 1204. 
 See also infra, 329. 
 For Editorial Notes, see infra, III. 14. 
 
 100. A right, fully matured under existing 
 law, to defeat a debt by a plea of the stat- 
 ute of limitations, is neither a vested right 
 nor a property right, and may be taken
 
 CONSTITUTIONAL LAW, I. d, 1. 
 
 569 
 
 away at will by the legislature. Orman v. 
 Van Arsdell, 12 N. M. 344, 78 Pac. 48. 
 
 67 : 438 
 
 161. The vested right to a defense under 
 the statute of limitations after bar of a 
 cause of action is complete is protected 
 against subsequent changes in the law by 
 the constitutional provision that all "rights" 
 shall continue valid. Lawrence v. Louisville, 
 96 Ky. 595, 29 S. W. 450, 27:560 
 
 162. There is no vested right to a defense 
 under the statute of limitations, such that 
 the legislature may not, by repeal of the 
 statute or otherwise, revive the action and 
 deprive one of such defense, where the stat- 
 ute merely gives a defense, and does not vest 
 property. McEldowney v. Wvatt, 44 W. Va. 
 711, 30 S. E. 239, , 45: 609 
 In penalties. 
 
 163. A plaintiff in a pending action for 
 penalties allowed by a statute has no such 
 vested right in such penalties before the 
 recovery of a judgment in the action as will 
 render unconstitutional as to him the repeal 
 and amendment of the statute when it is 
 provided in the amended statute that it 
 shall appiy to all actions pending. Cleve- 
 land, C. C. & St. L. R. Co. v. Wells, 65 Ohio 
 St. 313, 62 N. E. 332, 58: 651 
 
 d. Delegation of Powers. 
 1. In General. 
 
 Abandonment of Power Delegated, see infra, 
 304. 
 
 By Supreme Lodge of Benefit Society, see 
 Benevolent Societies, 22. 
 
 To Create Corporation, see Benevolent So- 
 cieties, 8. 
 
 By Directors of Corporation, see Corpora- 
 tions, 230. 
 
 By County, see Counties, 42. 
 
 Delegation of Power of Eminent Domain, 
 see Courts,' 491. 
 
 Relation of Courts to Other Departments of 
 Government, see Courts, I. c. 
 
 Power of Legislature Generally, see Legis- 
 lature, II. 
 
 As to Appointment of Medical Examiners, 
 see Medical Examiners, 2. 
 
 Delegation of Legislative Power over 
 Streets, see Municipal Corporations, 63. 
 
 As to Impeachment, see Officers, 159. 
 
 See also infra, 226. 
 
 For Editorial Notes, see infra, III. 5. 
 
 164. The legislature cannot delegate its 
 power to make a law, but it can make a law 
 to delegate a power to determine some fact 
 or state of things upon which the law 
 makes, or intends to make, its own action 
 depend. Port Royal Min. Co. v. Hagood, 30 
 S. C. 519, 9 S. E. 686, 3: 841 
 
 165. The legislature may delegate to an 
 officer or corporation the right to determine 
 the necessity of the exercise of the power 
 of eminent domain. State ex rel. Baltzell v. 
 Stewart, 74 Wis. 620, 43 N. W. 947, 6: 394 
 By Congress. 
 
 166. The act of Congress Tcnown as the 
 Wilson bill, making intoxicating liquors im- 
 ported in original packages subject to the 
 laws of any state into which they are car- 
 
 j ried, is not an unconstitutional delegation 
 of power, as it simply declares when such 
 property shall become subject to state laws, 
 and does not give, any power to the states 
 to legislate upon that subject. Re Van 
 VlieC43 Fed. 761, 10: 451 
 
 Re Spickler, 43 Fed. 653, 10: 446 
 
 167. The act of Congress admitting Utan 
 as a state by accepting and ratifying the 
 state Constitution invested all its provisions 
 with all authority conferred by any act of 
 Congress, even if the power given to provide 
 for the transfer of causes pending in the ter- 
 ritorial courts to the state and Federal 
 courts was an invalid delegation of the pow- 
 er of Congress. McCornick v. Western U. 
 Teleg. Co. 25 C. C. A. 35, 49 U. S. App. 116, 
 79 Fed. 449, 38: 684 
 
 168. The power given by the act of Con- 
 gress to the constitutional convention of 
 Utah to provide for the transfer of actions 
 pending in the territorial courts to the state 
 or Federal courts is not an invalid delega- 
 tion of the power of Congress, as Congress 
 has power to create local legislative bodies 
 and invest them with legislative powers. Id. 
 To governor. 
 
 169. Authorizing the governor to issue a 
 proclamation against bringing sheep into the 
 state from districts in which he has reason 
 to believe infectious disease of sheep has be- 
 come epidemic does not delegate to him 
 legislative power. State v. Rasmussen, 7 
 Idaho, 1, 59 Pac. 933, 52: 78 
 
 170. Legislative power is not conferred up- 
 on a commission and the executive by a 
 statute which authorizes the commission to 
 select school books, make contracts with the 
 lowest bidder for obtaining them for all the 
 schools of the state from one publisher, and 
 perfect the details of the general plan of 
 providing all schools with such books, and 
 gives to the commission and the governor, 
 as an incident to this the authority to an- 
 nounce when the details have been arranged. 
 so that the law may be put into operation. 
 Leeper v. State. 103 Tenn. 500, 53 S. W. 962. 
 
 48: 167 
 To state auditor. 
 
 171. An unconstitutional delegation of 
 legislative power is not effected by confer- 
 ring upon the state auditor the right to is- 
 sue licenses for bookmaking on horse races 
 to persons of good character, to be exercised 
 on grounds of good repute. State v. Thomp- 
 son, 160 Mo. 333, 60 S. W. 1077, 54: 950 
 To humane society. 
 
 172. The authority given to a humane so- 
 ciety by N. Y. Laws 1896, chap. 448, to de- 
 stroy or appropriate unlicensed dogs, is not 
 an unconstitutional delegation of govern- 
 mental power to a private corporation, since 
 unlicensed dogs have long been regarded as 
 subject to destruction by any person. Fox 
 v. Mohawk & H. R. Humane Soc. 165 N. Y. 
 517, 59 N. E. 353, 51:681 
 To railroad company. 
 
 173. A statute making the sale of a rail- 
 road ticket by other than an agent of the 
 company a penal offense when it bears upon 
 its face a statement that such sale is penal 
 is invalid under a constitutional provision
 
 570 
 
 CONSTITUTIONAL LAW, I. d, 2, 8. 
 
 forbidding the legislature to suspend laws, 
 as giving the railroad company an option as 
 to the creation of the offense; and it is im- 
 material that the statute requires the com- 
 pany to place such words on the ticket, if 
 there is no penalty for refusal. Jannin v. 
 State, 42 Tex. Crim. Rep. 631, 51 S. W. 1126, 
 62 S. W. 419, 53: 349 
 
 To private person. 
 See also infra, 842. 
 
 174. A statute enabling the owner of ad- 
 joining land, where a right of way has been 
 given to a railroad company, to require the 
 company to build a fence on each side of 
 the right of way, at its own cost, thus leav- 
 ing it with him, not only to enforce the 
 requirement of a fence, but to determine its 
 necessity, is unconstitutional. Owensboro & 
 N. R. Co. v. Todd, 91 Ky. 175, 15 S. W. 56, 
 
 11: 285 
 
 175. A statute providing that, whenever 
 persons desiring to remove any tract of land 
 from the corporate limits of a city shall pe- 
 tition for such removal, it shall be made, 
 provided that after published notice the dis- 
 trict court shall find that no public or pri- 
 vate right will be injured or endangered, all 
 considerations as to any right of the city 
 or its creditors to look to the property for 
 taxes being excluded, is unconstitutional in 
 that it attempts to confer a legislative pow- 
 er upon such petitioners. Hutchinson v. 
 Leimbach, 68 Kan. 37, 74 Pac. 598, 63: 630 
 As to selection of officers. 
 
 Usurpation of Power as to, see infra, I. e, 3. 
 Appointment as Interference with Local 
 
 Self-Government, see infra, 283-298. 
 See also infra, 189, 190, 201, 210; Officers, 
 
 54-56. 
 
 176. The rule of law against delegation of 
 power by the legislature refers to the law- 
 making power, and does not prohibit the 
 legislature from delegating the selection of 
 mere municipal agents. State ex rel. Sher- 
 man v. George, 22 Or. 142, 29 Pac. 356, 
 
 16: 737 
 
 177. The power to appoint a state super- 
 visor of oil inspection may be conferred upon 
 state geologists by the legislature, under 
 Ind. Const, art. 15, 1, authorizing appoint- 
 ments to offices not otherwise provided for 
 in that Constitution to be made as "pre- 
 scribed by law." State ex rel. Yancey v. 
 Hyde, 129 Ind. 296, 28 N. E. 186, 13: 79 
 
 2. To People. 
 
 As to Local Option, see Intoxicating Li- 
 quors, I. c. 
 
 Special Legislation as to, see Statutes, 333, 
 334, 402. 
 
 For Editorial Notes, see infra, III. 2. 
 
 178. Ihe power to enact laws cannot be 
 delegated by the legislature to the people 
 themselves, except in respect to certain 
 questions of local concern. Bradshaw v. 
 Lankford, 73 Md. 428, 21 Atl. 66, 11 : 582 
 
 179. A statute providing that it shall take 
 effect upon its acceptance by a majority vote 
 of the people of the state cannot be upheld 
 under the Constitution of Massachusetts, 
 which makes the senate and house of repre- 
 
 sentatives the legislative department of the 
 government, and does not reserve to the peo- 
 ple any direct power of supervision. Re Mu- 
 nicipal Suffrage to Women, 160 Mass. 586, 
 36 N. E. 488, 23: 113 
 
 180. A statute allowing women to vote in 
 town and city elections cannot be made to 
 take effect in any city or town upon its ac- 
 ceptance by majority vote of the voters of 
 such city or town, since it is a matter of 
 general, and not local, concern, to which 
 the principle of local option cannot properly 
 apply. Id. 
 
 181. The question whether oysters may be 
 taken by scoop or dredge within the waters 
 of Somerset county, Maryland, cannot be 
 submitted to the voters of certain election 
 districts in that county, as the oyster beds 
 do not belong to the people of that county, 
 but to the state. Bradshaw v. Lankford, 73 
 Md. 428, 21 Atl. 66, 11: 582 
 As to creation of municipal corporation. 
 
 182. It is not an unconstitutional delega- 
 tion of legislative power to create a munici- 
 pal corporation, to provide that such a cor- 
 poration shall not be created under a gen- 
 eral law without an affirmative vote of those 
 who are to be affected by its creation. Re 
 Madera Irrig. Dist. Bonds, 92 Cal. 296, 341, 
 28 Pac. 272, 14: 755 
 
 3. To Judiciary. 
 
 Relation of Court to Other Departments of 
 Government, see Courts, I. c. 
 
 Power of Legislature as to Courts, see 
 Courts, I. e. 
 
 To Suspend Sentence, see Criminal Law, 243. 
 
 As to Issuance of Liquor License, see In- 
 toxicating Liquors, 66. 
 
 183. Legislative powers are not delegated 
 to the judiciary by Minn. Gen. Stat. 1894, 
 5979, providing that the court or judge al- 
 lowing a writ of mandamus shall direct the 
 manner of serving the same. State ex rel. 
 Railroad & W. Commission v. Adams Exp. 
 Co. 66 Minn. 271, 68 N. W. 1085, 38: 225 
 
 184. Nonjudicial duties are not imposed 
 upon a judge by a statute providing that, 
 when the attorney general has determined 
 to commence an action under the statute for 
 the prevention of monopolies, "it shall be 
 the duty" of the judge to grant his appli- 
 cation for an order for examination of wit- 
 nesses, since he must first decide whether or 
 not a case has been made out pursuant to 
 the statute, so that the duty is judicial in 
 form, and the purpose of the statute is to 
 enable the attorney general to prepare his 
 complaint, or to prepare for trial, which is 
 judicial in nature. Re Davies, 168 N. Y. 
 89, 61 N. E. 118, 56:855 
 
 185. Tenn. act 1887. chap. 158, attempting 
 to change the practice in criminal trials 
 when the minimum degree of punishment is 
 not above one year in the penitentiary, so as 
 to give the judge discretion to allow the 
 jury to disperse and not be placed in charge 
 of an officer, is unconstitutional because it 
 attempts to confer upon each judge the pow- 
 er to suspend the general law, making his
 
 CONSTITUTIONAL LAW, I. d, 8. 
 
 571 
 
 discretion the only rule for his conduct. 
 King v. State, 87 Tenn. 304, 10 S. W. 500, 
 
 3: 210 
 
 186. A county court in West Virginia, 
 which has superintendence and administra- 
 tion of the internal and fiscal affairs of the 
 county, though shorn of general judicial 
 power, may be given by the legislature au- 
 thority, upon petition of a certain number 
 of voters, to adopt a certain statute respect- 
 ing the running at large of hocfs. Haigh v. 
 Bell, 41 W. Va. 19, 23 S. E. 666, 31: 131 
 
 187. The power to make an order for a 
 telephone line, in a highway, as provided in 
 Ohio Rev. Stat. 3461, giving the probate 
 court complete jurisdiction of the proceed- 
 ing, is not distinctively legislative or ad- 
 ministrative, but is constitutionally con- 
 ferred on the court. Zanesville v. Zanes- 
 ville Teleg. & Teleph. Co. 64 Ohio St. 67, 
 59 N. E. 781, 52: 150 
 
 188. The authority to establish maximum 
 water rates, conferred upon judges of the 
 supreme judicial court by Mass. Stat. 1897, 
 chap. 336, 1, authorizing the judges, on pe- 
 tition of the selectmen of a town, or any 
 persons deeming themselves aggrieved by the 
 price charged for water, to fix maximum 
 rates once in five years, which shall be bind- 
 ing upon the water company until revised 
 or altered by the court, does not make of 
 the court a legislative commission to deter- 
 mine what rules shall govern people who 
 are not yet in relation to each other, but 
 requires the court to fix the extent of actual 
 existing rights primarily for the party ag- 
 grieved, although secondarily it fixes a gen- 
 eral rate for all parties and for the future 
 as well as the past. Re Janvrin, 174 Mass. 
 514, 55 M. E. 381, 47: 319 
 Selection of officers. 
 
 Usurpation of Power as to, see infra, I. e, 3. 
 Appointment as Interference with Local Self 
 
 Government, see infra, 283-298. 
 See also supra, 176, 177. 
 
 189. The power to appoint examiners of 
 titles, given to the district courts by Minn. 
 Laws 1901, chap. 237, providing for the Tor- 
 rens system of registering land titles, is not 
 in violation of Minn. Const, art. 3, vesting 
 the powers of government in three distinct 
 departments. State ex rel. Douglas v. West- 
 fall, 85 Minn. 437, 89 N. W. 175, 57: 297 
 
 190. The power of choosing the managers 
 of a municipal water-supply system cannot 
 be vested by the legislature in the judges 
 of a court created by the Constitution. 
 State ex rel. White v. Barker, 116 Iowa, 96, 
 89 N. W. 204, 57 : 244 
 As to carriers. 
 
 191. An act creating a court of visitation, 
 and giving it jurisdiction to try and deter- 
 mine all questions as to what are reasonable 
 freight rates, switching charges, etc., with 
 power to establish rates for the future, ap- 
 portion charges between connecting car- 
 riers, require the construction and mainte- 
 nance of depots, and make other regulations 
 for the operation of railroads, is unconsti- 
 tutional and void as an attempt to confer 
 legislative and administrative power upon 
 
 a judicial tribunal. State ex rel. Godard v. 
 Johnson. 61 Kan. 803, 60 Pac. 1068, 49: 662 
 
 192. The provision of the Minnesota Con- 
 stitution forbidding the delegation of the 
 legislative powers to the judiciary is not 
 violated by the provision of Minn. Gen. Stat. 
 1894, 399, that the courts may direct the 
 manner in which notice may be given to a 
 common carrier of a hearing of an accusa- 
 tion that it refuses or neglects to obey any 
 lawful order of the railroad and warehouse 
 commission. State ex rel. Railroad & W. 
 Commission v. Adams Exp. Co. 66 Minn. 271. 
 68 N. W. 1085, 38: 225 
 As to municipalities. 
 
 193. A statute authorizing the creation of 
 a municipal corporation by a judicial court, 
 upon petition of a majority of the inhabi- 
 tants of the territory to be incorporated, is 
 unconstitutional as delegating legislative 
 funcions to the court. Territory ex rel. Kel- 
 ly v. Stewart, 1 Wash. 98, 23 Pac. 405, 
 
 8: 106 
 
 194. A reference to a court of legislative 
 or political questions as to the incorporation 
 of villages, in violation of the constitutional 
 provision requiring the legislature to pro- 
 vide by general laws for the organization of 
 cities and incorporated villages, is attempt- 
 ed by Sanb. & B. (Wis.) Ann. Stat. 861, 
 requiring the court to determine not only 
 questions of fact as to the survey, census, 
 and other statutory requirements, but also 
 the questions whether or not the interest of 
 the inhabitants will be promoted by such 
 incorporation and the lands ought justly to 
 be included in the village, and further au- 
 thorizing the court to enlarge or diminish 
 the boundaries of a village as justice may 
 require. Re North Milwaukee, 93 Wis. 616, 
 67 N. W. 1033, 33: 638 
 
 195. No unlawful delegation of legislative 
 power to a judicial officer is made by a stat- 
 ute requiring the approval of a court to an 
 ordinance extending the limits of a city 
 under a general law of ttie state. The de- 
 termination of the question whether the 
 statutory conditions have been complied 
 with is judicial. Callen v. Junction City, 43 
 Kan. 627, 23 Pac. 652, 7: 736 
 
 196. A statute providing for commission- 
 ers appointed by a court to make a report as 
 to a proposed annexation of municipal corpo- 
 rations, which annexation becomes complete 
 on the approval of the report by the court, 
 is not unconstitutional as vesting a court 
 with powers not judicial so as to defeat the 
 operation of the statute, at least where 
 the courts and judges make no objection. 
 State ex rel. Richards v. Cincinnati, 52 Ohio 
 St. 419, 40 N. E. 508, 27: 737 
 
 197. The assignment or transfer by a 
 court of a town or city from one class to 
 another, which Ky. Stat. 3661, 3662, at- 
 tempt to authorize, is in violation of Ky. 
 Const. 156. requiring the general assembly 
 to make such assignments and transfers, and 
 making no provision for delegating thi,t 
 power, dernigan v. Madisonville, 102 Ky. 
 313, 43 S. W. 448, 39: 214
 
 572 
 
 CONSTITUTIONAL LAW, I. d, 4. 
 
 4. To Local Authorities and Boards and 
 Commissioners. 
 
 To Commissioners for Public Improvements, 
 
 see Public Improvements, 133. 
 See also supra, 170; infra, 228. 229, 232-234. 
 
 198. A law which invests any board or 
 body of officials with a discretion purely 
 arbitrary, and which may be exercised in the 
 interests of a favored few is invalid. Noel 
 v. People, 187 111. 587, 58 N. E. 616, 52: 287 
 
 199. vesting in township committees the 
 power to divide the townships into districts 
 for street lighting and road purposes is not 
 an unconstitutional delegation of legislative 
 power. State, Allison, Prosecutor, v. Cork- 
 er (X. .T. Err. & App.) 67 X. J. L. 596. 52 
 Atl. 362, 60: 564 
 
 200. Discretion cannot be delegated by the 
 legislature to the commissioner of the bu- 
 reau of labor statistics to determine that the 
 liability to inhalation of dust or injurious 
 gases in particular factories can to a great 
 extent be prevented by some mechanical de- 
 vice the provision of which he shall recom- 
 mend, and the failure to comply with the 
 recommendation made a misdemeanor. 
 Schaezlein v. Cabaniss, 135 Cal. 466, 67 Pac. 
 755, 56: 733 
 
 201. An act to license steam engineers, 
 which furnishes no standard as to qualifi- 
 cations, and makes the various district ex- 
 aminers provided for in the act the exclu- 
 sive judges as to whether an applicant is 
 competent, thus allowing the examiner of a 
 district in effect to make the law for his 
 district, is a grant of legislative power in 
 violation of Ohio Const, art. 2, 1, vesting 
 all legislative power in the general assembly. 
 Harmon v. State ex rel. Card, 66 Ohio St. 
 249, 64 X. E. 117, 58: 618 
 To municipality. 
 
 Prohibiting Keeping of Disorderly Houses, 
 see Disorderly Houses, 9. 
 
 To Condemn Land for Park and Boulevard 
 Purposes, see Eminent Domain. SO. 
 
 To Impose Tax on Vehicles. SPP License. 96. 
 
 Authority of City to Delegate Its Power, see 
 Municipal Corporations, 11. 1>. '2. 
 
 What is a Delegation of Power to or by 
 Municipality, see Municipal Corpora- 
 tions, II. b, 1. 
 
 Special Legislation as to, see Statutes. 333, 
 334, 373, 379, 402. 
 
 Power to Fix Water Rates, see Waters. 582. 
 
 See also Public Moneys. 15. 
 
 For Editorial Notes, see infra. III. 5. 
 
 202. The police power may be delegated 
 by the legislature to municipal corporations. 
 Chicago, B. & Q. R. Co. v. State ex rel. Oma- 
 ha, 47 Neb. 549, 66 N. W. 624. 41: 481 
 
 203. The legislature may confer upon the 
 common council of the city of Detroit the 
 authority to pass ordinances for the sup- 
 pression of disorderly houses and houses of 
 ill fame. People v. Hanrahan, 75 Mich. 611, 
 42 N. W. 1124, 4: 751 
 
 204. It is not an unconstitutional delega- 
 tion of power for the legislature to authorize 
 a city council to empower the city board of 
 police to make rules and regulations in ref- 
 
 erence to itinerant musicians. Com. v. 
 Plaisted, 148 Mass. 375, 19 N. E. 224, 2: 142 
 
 205. The legislature may constitutionally 
 delegate to a municipality the power to pun- 
 ish by ordinance an act made punishable un- 
 der state laws. Theisen v. McDavid, 34 Fla. 
 440, 16 So. 321, 26: 234 
 
 206. The New Jersey "Act to Establish an 
 Excise Department in Cities in this State" 
 (N. J. Supp. Rev. 693, 696) is a grant of 
 original power to a municipal department 
 the creation of which is intrusted to the mu- 
 nicipality itself; it is not a delegation of 
 power to the municipality, to be by it passed 
 over to a body of its own creation. State, 
 Riley. Prosecutor, v. Trenton (N. J. Sup.) 
 51 N. J. L. 498, 18 Atl. 116, 5: 352 
 
 207. A delegation of the power to impose 
 license taxes on occupations may be made 
 by the legislature to municipal corporations. 
 Banta v. Chicago, 172 111. 204, 50 N. E. 233, 
 
 40: 611 
 
 208. The legislature cannot delegate the 
 power to fix and determine the amount of a 
 tax for a public library, which must be lev- 
 ied by the common council to a board which 
 is not chosen by, and directly responsible 
 to, the taxpayers, unless the people assent 
 thereto. State ex rel. Howe v. Des Moines, 
 103 Iowa, 76, 72 N. W. 639, 39: 285 
 To levee district. 
 
 209. The legislature cannot delegate to a 
 levee district the legislative power to levy a 
 tax under Tenn. Const, art. 2, authorizing it 
 to delegate such power to counties and in- 
 corporated towns, since this impliedly ex- 
 cludes delegation to any other agency. Reel- 
 foot Lake Levee Dist. v. i)awson, 97 Tenn. 
 151, 36 S. W. 1041, 34: 725 
 To civil service commissioners. 
 
 See also supra, 227. 
 
 210. Authorizing civil service commission- 
 ers to make rules for the examination of 
 persons applying for appointments to public 
 office does not delegate to them legislative 
 power. People ex rel. Akin v. Kipley, 171 
 111. 44, 49 N. E. 229, 41: 775 
 To county board. 
 
 See also Public Moneys, 15. 
 
 211. Where the Constitution authorizes a 
 delegation of legislative power for local pur- 
 poses to boards of supervisors, the legisla- 
 ture may suspend, or authorize legislation 
 which will necessarily operate to suspend, 
 the general law in particular localities. 
 Feek v. Bloomingdale Twp. Bd. 82 Mich. 393, 
 47 N. W. 37, 10: 69 
 
 212. An unconstitutional delegation of leg- 
 islative power to county commissioners is 
 not made by a statute authorizing them, 
 whenever they have in any county a pre- 
 cinct of more than 20,000 inhabitants, to ap- 
 point additional justices of the peace if the 
 needs of the precinct require it. Pueblo 
 County v. Smith, 22 Colo. 534, 45 Pac. 357, 
 
 33: 465 
 
 213. The legislature cannot delegate to the 
 board of supervisors power to change or sus- 
 pend a provision of a general law requiring 
 a county clerk to pay his own deputies, by 
 allowing him the expense of necessary depu- 
 ties if in their opinion his salary is insuffi-
 
 CONSTITUTIONAL LAW, I. d, 5. 
 
 573 
 
 cient to pay for such services, where the 
 Constitution provides that the legislature, by 
 general and uniform laws, shall regulate 
 the compensation of all such officers. 
 Dougherty v. Austin, 94 Cal. 601, 16: 161 
 To board of health. 
 
 214. The power granted to administrative 
 boards of the nature of boards of health, 
 etc., to adopt rules, by-laws, and regulations 
 reasonably adapted to carry out the purpose 
 or object for which they are created, is not 
 an improper delegation of legislative au- 
 thority in violation of Ind. Const, art. 4, 1. 
 Blue v. Beach, 155 Ind. 121, 56 N. E. 89, 
 
 50: 64 
 
 215. A statute exthorizmg the state board 
 of health to establish a system of quaran- 
 tine, with inspection of persons and baggage 
 from places where a communicable danger- 
 ous disease is shown to the satisfaction of 
 the board to exist, ia not an unconstitution- 
 al delegation of power. Jlurst v. Warner, 
 102 Mich. 238, 60 N. W. 440, 26: 484 
 
 216. Legislative power cannot be delegated 
 to the state board of health so as to enable 
 it, without the enactment of any statute 
 upon the subject, to pass any rule excluding 
 children who are authorized by statute to 
 attend the public schools from such attend- 
 ance unless they have been vaccinated. 
 State ex rel. Adams v. Burdge, 05 Wis. 390, 
 70 N. W. 347, 37: 157 
 To insurance commissioner. 
 
 217. A statute providing for the prepara- 
 tion of a standard policy of insurance and 
 its adoption by an insurance commissioner, 
 after which no other form of policy can be 
 lawfully issued, is an unconstitutional at- 
 tempt to delegate to him legislative power. 
 Anderson v. Manchester F. Assur. Co. 59 
 Minn. 182, 60 N. W. 1095, 63 N. W. 241, 
 
 28: 609 
 
 218. Pa. act April 16, 1891, providing for 
 a policy of fire insurance, is unconstitutional 
 in delegating to the insurance commissioner 
 the preparation of the form of policy, with- 
 out fixing its terms or conditions requiring 
 a report to the legislature of the commis- 
 sioner's action. O'Neil v. American F. Ins. 
 Co. 166 Pa. 72, 30 Atl. 943, 26: 715 
 
 219. A statute providing that the insur- 
 ance commissioner shall prepare, approve, 
 and adopt a printed form of a policy of fire 
 insurance, to conform as near as can be made 
 applicable to that used in a certain other 
 state, ia an unconstitutional attempt to de- 
 egate to him legislative power. Dowling v. 
 Lancashire Ins. Co. 92 Wis. 63, 65 N. W. 
 738, 31:112 
 To railroad commissioner. 
 
 220. A statute conferring on a commis- 
 sion authority to regulate the charges of 
 railroads for transportation of passengers 
 and freights is not an unconstitutional del- 
 egation of legislative power. McWhorter v. 
 Pensacola & A. R. Co. 24 Fla. 417, 5 So. 129, 
 
 2: 504 
 
 Chicago & N. W. R. Co. v. Dey, 35 Fed. 
 866, 1 : 744 
 
 221. At least where the reasonableness 
 and legality of such regulation is reviewable 
 
 by the courts. Atlantic Exp. Co. v. Wil- 
 mington & W. R. Co. Ill N. C. 463, 16 S. E. 
 393, 18: 393 
 
 222. There is no unconstitutional delega- 
 tion of power to railroad commissioners by a 
 statute authorizing them to fix reasonable 
 maximum rates of charges for freight and 
 passenger traffic, where their schedule is not 
 final, but is made merely prima facie evi- 
 dence of the reasonableness of the rates es- 
 tablished. Chicago, B. & Q. R. Co. v. Jones, 
 149 111. 361, 37 N. E. 247, 24: 141 
 
 223. A statute authorizing the amount of 
 bonds to be given by commission merchants 
 to be fixed by a railroad and warehouse com- 
 mission is not a delegation of legislative 
 authority. State ex rel. Beek v. Wagener. 
 77 Minn. 483, 80 N. W. 633, 46: 442 
 To drainage commissioners. 
 
 224. Granting power to drainage commi? 
 sioners to determine what land will be bene- 
 fited by the proposed drainage and shall be 
 assessed therefor, where the locality is speci- 
 fied and the nature and extent of the pro- 
 posed drainage is clearly indicated by the 
 statute, is not an unlawful delegation of 
 power. State ex rel. Baltzell v. Stewart, 74 
 Wis. 620, 43 N. W. 947, 6: 394 
 
 5. Of Judicial Power. 
 
 For Encroachment on Judicial Power, see 
 
 infra, I. e, 2. 
 To Board of State Auditors to Determine 
 
 Innocence of Pardoned Convict, see 
 
 Courts, 239. 
 
 By Judge, see Judges, 2. 
 Power to Fix Water Rates, see Waters, 582. 
 
 225. To constitute a delegation to a min- 
 isterial officer of judicial power, it is not 
 necessary that the adjudication be conclu- 
 sive of the rights of the parties put in issue ; 
 but if the officer is clothed with the power 
 of adjudicating upon and protecting the 
 rights and interests of contesting parties, 
 and the adjudication involves the construc- 
 tion and application of the law, and affects 
 the rights and interests of the parties, al- 
 though not finally determining the rights, it 
 is a judicial proceeding, or the exercise of a 
 judicial function. People ex rel. Kern v. 
 Chase, 165 111. 527, 46 N. E. 454, 36: 105 
 
 226. No grant of judicial power, in viola- 
 tion of Wyo. Const, art. 2, 1, providing for 
 three departments of government and that 
 one department shall exercise no powers 
 properly belonging to another, or of art. 
 5, 1, vesting the judicial power of 
 the state in certain courts, is made 
 by an act creating a board of con- 
 trol of the waters of the state, endowing it 
 with power to adjudicate and determine pri- 
 orities of rights to the use of water, and 
 providing for an appeal from its decision to 
 the courts, since the power exercised is pri- 
 marily administrative, the proceeding is a 
 purely statutory one, inaugurated in each 
 instance by the board, and no attempt is 
 made to devest the courts of any jurisdic- 
 tion granted by the Constitution. Farm In- 
 vestment Co. v. Carpenter, 9 Wyo. 110, 61 
 Pac. 258, 50: V47
 
 574 
 
 CONSTITUTIONAL LAW, I. d, 5. 
 
 227. Judicial power is not delegated to 
 civil service commissioners by giving them 
 authority to investigate complaints against 
 officers and matters as to the enforcement 
 of the civil service law, with the right to ad- 
 minister oacns and secure the attendance of 
 witnesses by subpoena, and providing that a 
 court may compel obedience to such sub- 
 poena. People ex rel. Akin v. Kipley, 171 111. 
 44, 49 N. E. 229, 41 : 775 
 
 228. Judicial powers are not delegated to a 
 special jury commissioner by providing that 
 he shall eliminate from the jury list persons 
 declared by law to be unfit or disqualified to 
 sit in criminal cases, and thus prepare a 
 list from which a panel of fit and impartial 
 jurors may be chosen. People v. Dunn, 157 
 N. Y. 528, 52 N. E. 572, 43: 247 
 
 229. No grant of judicial power in viola- 
 tion of Wis. Const. 2, art. 7, providing 
 that the judicial power of the state, both as 
 to matters of law and equity, shall be vested 
 in certain specified courts, is made by Wis. 
 Rev. Stat. 1898, 1077a, providing for the 
 appointment of commissioners by tne circuit 
 judge of any county, on petition, to review 
 tlio armortionment for the year of county 
 and state taxes and correct it if justice so 
 r 'mures. ;'n ! making their decision final, the 
 enactment of such a law being a legitimate 
 exercise of the power possessed by the leg- 
 islature over the whole subject of taxation. 
 State ex rel. Ellis v. Thorne, 112 Wis. 81, 
 87 N. W. 797, 55: 956 
 In contempt proceeding. 
 
 230. To try a question of contempt and 
 adjudge punishment is an exercise of judi- 
 cial power, which the legislature cannot vest 
 in a notary public. Re Huron, 58 Kan. 152, 
 48 Pac. 574, 36: 822 
 
 231. A statute attempting to confer on 
 county attorneys fhe power to commit wit- 
 nesses for contempt on account of a refusal 
 to be sworn or testify on an examination as 
 to an alleged offense is unconstitutional, as 
 the power is judicial in its nature. Re Sims, 
 54 Kan. 1, 37 Pac. 135, 25: 110 
 
 232. The power to fine and imprison for 
 contempt is essentially a judicial one, and 
 an attempt to confer it on a state board of 
 tax commissioners who have power to take 
 testimony is in violation of a constitutional 
 provision that no person charged with official 
 duties under either the legislative, executive, 
 or judicial department of the government, 
 shall exercise any of the functions of anoth- 
 er, since such board belongs to the executive 
 or administrative department. Langenberg 
 v. Decker, 131 Ind. 471, 31 X. E. 190. 16: 108 
 To board of irrigation. 
 
 233. The sections of the Nebraska irriga- 
 tion act of 1895, chap. 69, creating a state 
 board of irrigation, are not unconstitution- 
 al, as conferring judicial powers on execu- 
 tive officers, as the primary object of such 
 board is for the purpose of supervising the 
 appropriation, distribution, and diversion of 
 water, which is an administrative, rather 
 than a judicial, function. Crawford Co. v. 
 Hall, 67 Neb. 325, 93 N. W. 781, 60: 889 
 To prison board. 
 
 234. Judicial power is not given to a 
 
 board of managers of a reformatory by an- 
 tlhorizing them to shorten the term of serv- 
 ice of a convict in case of his reformation, 
 where his sentence is indeterminate between 
 the maximum and minimum prescribed by 
 statute. Miller v. State, 149 Ind. 607, 49 N. 
 E. 894, 40: 109 
 
 To county recorder or registrar. 
 
 235. An attempt to confer judicial author- 
 ity on the county recorder in violation of 
 Ohio Const, art. 4, 1, is made by Ohio act 
 April 27, 1896, for the registration of land 
 titles, by giving him authority to determine 
 the fact fhat a mortgage 'has been dis- 
 charged or that a lien has become inopera- 
 tive, and to enter those facts on the records, 
 and also to correct memorials made or issued 
 by mistake if the rights of bona fide pur- 
 chasers or lien holders have not intervened. 
 State ex rel. Monnett v. Guilbert, 56 Ohio 
 St. 575, 47 N. E. 551, 38: 519 
 
 236. The provisions of the "Illinois Tor- 
 rens law" (111. Laws 1895, p. 82) for an ex- 
 amination by the recorder of deeds or reg- 
 istrar of titles, of the facts in relation to the 
 title to land and the issuing of a certificate 
 of ownership, constitute an unconstitutional 
 delegation of judicial power, even if the ef- 
 fect of such certificate is only to start the 
 running of a statute of limitations, as the 
 decision that the property shall be brought 
 under the provisions of the act, so that an 
 adverse claimant must assert his rights in 
 the courts within five years, is a judicial 
 decision. People ex rel. Kern v. Chase, 165 
 111. 527, 46 N. E. 454, 36: 105 
 
 237. Judicial duties are not conferred on 
 registrars of land titles, in violation of 
 Minn. Const, art. 3, by Minn. Laws 1901, 
 chap. 237, providing for the Torrens system 
 of registering land titles, since the act ex- 
 pressly provides that all acts performed by 
 registrars shall be performed under rules and 
 instructions established and given by the 
 district court having jurisdiction of the 
 county in which they act. State ex rel. 
 Douglas v. Westfall, 85 Minn. 437, 89 N. W. 
 175, 57:297 
 
 238. Judicial power is not conferred upon 
 a registrar of deeds, within the prohibition 
 of a constitutional provision separating the 
 departments of government by a statute 
 requiring him to make certain entries when 
 it appears to him that the person intending 
 to create a charge on property "has the title 
 and ri<jht to create such charge, and that 
 the person in whose favor it is to be made 
 "is entitled by the terms of the act to have 
 t'he same registered," especially where a 
 party aggrieved is given the right to apply 
 to a court of equity for relief. People ex 
 rel. Deneen v. Simon, 176 111. 165, 52 N. E. 
 910, 44: 801 
 
 239. A statute permitting a registrar of 
 deeds to record a transfer of land held in 
 trust, upon the written opinion of two ex- 
 aminers that the transfer is in accordance 
 with t ] he true intent and meaning of the 
 trust, which registration shall be conclusive 
 in favor of the grantee, merely abrogates 
 the rule which requires the purchaser of 
 trust property to see to the application of
 
 CONSTITUTIONAL LAW, I. e, 1, 2. 
 
 575 
 
 the purchase money, and does not confer ju- 
 dicial power upon the registrar. Id. 
 
 240. The power of the assistant recorder 
 to register titles given by Mass. Stat. 1898, 
 chap. 562, as amended by Stat. 1899, chap. 
 131, 8, under which he makes the registra- 
 tion "in accordance with the rules and in- 
 structions of the court," is not a judicial 
 power conferred upon a nonjudicial officer, 
 but is merely ministerial, and the registra- 
 tion is the act of the court. Tyler v. Judges 
 of Court of Registration, 175 Mass. 71, 55 
 N. E. 812, 51 : 433 
 To factory inspector. 
 
 241. Judicial power is not delegated to a 
 factory inspector by permitting him to ex- 
 ercise judgment in determining the number, 
 location, material, and construction of the 
 fire escapes to be placed on buildings. Arms 
 v. Ayer, 192 111. 601, 61 N. E. 851, 58: 277 
 
 242. Legislative power is not unlawfully 
 delegated to a factory inspector by giving 
 him discretion as to the number, location, 
 material, and construction of fire escapes to 
 be placed on buildings, where the statute 
 itself provides for the escapes, designates the 
 buildings to which they are to be attached, 
 and requires that they afford an effective 
 means of escape to all occupants who for 
 any reason are unable to use the ladders or 
 stairs. Id. 
 
 e. Separation of Powers. 
 1. In General. 
 
 Judicial Power to Decide as to Legislative 
 Acts, see Courts, I. c, 2. 
 
 Rules of Decision in Determining Constitu- 
 tionality of Statutes, see Courts, V. c. 
 
 As to Pardoning Power, see Criminal Law, 
 IV. h. 
 
 As to Power of Legislature Generally, see 
 Legislature, II. 
 
 See also Municipal Corporations, 391. 
 
 For Editorial Notes, see infra, III. 4. 
 
 243. The distribution of the powers of the 
 state, by the Constitution, to the legislative, 
 executive, and judicial departments, operates 
 by implication as an inhibition against the 
 imposition, upon either, of those powers 
 which distinctively belong to one of the 
 other departments. Zanesville v. Zanesville 
 Teleg. & Teleph. Co. 64 Ohio St. 67, 59 N. E. 
 781, 52: 150 
 
 244. The constitutional provision in regard 
 to the distribution of the powers of govern- 
 ment into three departments, and forbid- 
 ding the exercise 1 - an officer of one depart- 
 ment of any act - operly belonging to an- 
 other, was not intended to declare that every 
 act pertaining to the government and the 
 regulation of the social and property rights 
 of the citizen should be exercised exclusively 
 by the legislative, executive, or judicial de- 
 partment, or some member of it, according 
 as the, act possessed a legislative, executive, 
 or judicial character. Fox v. McDonald, 101 
 Ala. 51, 13 So. 416, 21: 529 
 
 245. The incapacity of the legislature to 
 execute a power which is essentially and 
 merely a judicial power, and of the judiciary 
 to execute a power which is essentially and 
 
 merely a legislative power, as well as the 
 limitation of the meaning of legislative pow- 
 er by force of certain primary principles of 
 government fairly embodied in the Constitu- 
 tion, and by the necessities involved in the 
 separation and independence of distinct de- 
 partments of government, is fundamental to 
 the very existence of constitutional govern- 
 ment as established in the Linited States. 
 Norwalk Street R. Co.'s Appeal, 69 Conn. 
 576, 37 Atl. 1080, 38 Atl. 708, 39: 794 
 
 246. A superior court or judge thereof can- 
 not validly exercise a power which is not 
 "a judicial power" within the meaning of 
 the Constitution. Id. 
 
 247. An original application to a superior 
 court or judge thereof for the approval and 
 adoption or modification of a plan for the 
 location and construction of a street rail- 
 way, including the determination of the 
 streets to be occupied and the location as to 
 grade and center line of the street, as well 
 as changes to be made in the street or kind 
 and quality of track to be used, the motive 
 power and method of applying it, does not 
 call for the exercise of a judicial power with- 
 in the meaning of the Constitution, although 
 the application is called an appeal and is 
 made after the refusal or neglect of local au- 
 thorities to give notice of their decision on 
 the plan within sixty days after it is pre- 
 sented to them; and this is by statute 
 deemed to be a refusal on their part to ap- 
 prove and accept the plan. Id. 
 
 248. In granting an injunction to pro- 
 hibit ticket brokers from violating the 
 rights of railroad companies in contracts 
 represented by special nontransferable tick- 
 ets to be issued by them, the court does not 
 prescribe a rule of civil conduct, nor invade 
 the prerogative of the legislature, nor es- 
 tablish government by injunction. Schubach 
 v. McDonald, 179 Mo. 163, 78 S. W. 1020, 
 
 65: 136 
 
 2. Encroachment on Judicial Power. 
 
 Delegation of Judicial Power, see supra, I. 
 
 d, 5. 
 Abridging Power of Court as to Contempt, 
 
 see Contempt, 83-87. 
 Relation of Court to Other Departments of 
 
 Government, see Courts, I. c. 
 By Governor Ordering Transfer of Convict, 
 
 see Criminal Law, 238. 
 Legislative Power as to Courts, see Courts, 
 
 I. e. 
 
 See also supra, 232, 245, 247 ; infra, 925, 949. 
 For Editorial Notes, see infra, III. 4, 12. 
 
 249. The fact that a power is conferred by 
 statute on a court of justice, to be exercised 
 by it in the first instance in a proceeding in- 
 stituted therein, is, itself, of controlling im- 
 portance as fixing the judicial character of 
 the power, and is decisive in that respect, 
 unless it is reasonably certain that the pow- 
 er belongs exclusively to the legislative or 
 the executive department. Zanesville v. 
 Zanesville Teleg. & Teleph. Co. 64 Ohio St. 
 67, 59 N. E. 781, 52: 150 
 
 250. Where the law confers a right and 
 authorizes an application to a court of jus-
 
 576 
 
 CONSTITUTIONAL LAW, I. e, 3. 
 
 tice for the enforcement of that right, the 
 proceeding upon such application is the ex- 
 ercise of a judicial function, though the or- 
 der or judgment authorized be of such a na- 
 ture that it can only be performed, or its 
 execution enforced, progressively during a 
 future period. Id. 
 
 251. The enactment of a statute is a usur- 
 pation of a judicial power where it adjudi- 
 cates an act unlawful and presumptively in- 
 jurious and dangerous which 'is not and can- 
 not be made to be so without a violation of 
 constitutional rights, and where it impera- 
 tively commands the court to enjoin such ac- 
 tion without proof that any injury or danger 
 has been, or will be, caused by it. Janesville 
 v. Carpenter. 77 Wis. 288, 46 N. W. 128, 
 
 8: 808 
 
 252. A statute declaring or reciting a fact 
 which the legislature has ascertained by in- 
 vestigation in order to apply the proper rem- 
 edy by legislation is not a usurpation of ju- 
 dicial power. Townsend v. State, 147 Ind. 
 624, 47 N. E. 19, 37: 294 
 
 253. The constitutional separation of the 
 departments of government is not violated 
 by a statute authorizing circuit courts to 
 repair their court rooms. White County 
 Comrs. v. Gwin. 136 Ind. 562. 36 X. E. 237, 
 
 22: 402 
 
 254. A provision in an appropriation act, 
 that the salary for a certain office shall be 
 paid to a certain person named, and none 
 other, and a statute providing a penalty for 
 paying it to any other person than the one 
 named, are absolutely void as attempts to 
 exercise judicial powers by declaring who is 
 the legal officer entitled to the salary. State 
 ex rel. Worrell v. Carr, 129 Ind. 44/28 X. E. 
 88, 13: 177 
 
 255. Legislative authority to a general 
 guardian of an infant to agree with a rail- 
 road company as to the amount of damages 
 for a right of way across the infant's lands, 
 or to release the claim or right to such dam- 
 ages, is not unconstitutional as a legisla- 
 tive usurpation of judicial power. Louis- 
 ville, N. 0. & T. E. Co. v. Jordan, 69 Miss. 
 939, 11 So. 111. 16: 251 
 
 256. A definition in a statute of terms 
 therein used is not an invasion of the prov- 
 ince of the courts to construe statutes. 
 State v. Schlenker, 112 Iowa, 642. 84 X. W. 
 698. 51:347 
 
 257. The declaration, oy the legislature, 
 that the drainage of the water from agricul- 
 tural lands shall be considered a public bene- 
 fit, for which the power of eminent domain 
 ,may be exercised, in a statute providing a 
 general plan or scheme for the reclamation 
 of the wet or marsh lands of the state, does 
 not infringe the power of the judiciary. Sis- 
 son v. Buena Vista County. 128 Iowa, 442, 
 104 X. W. 454. 7<>: -440 
 
 258. The judicial province is not invaded 
 by a legislative declaration that the emission 
 of dense smoke into the open air in cities 
 having a population ot 100,000 inhabitants 
 is a nuisance. State v. Tower. 185 Mo. 79, 
 84 S. W. 10, 68: 402 
 
 259. The legislature cannot assume the 
 right to pass upon tbe question of the re- 
 
 lease of one committed to a hospital for 
 criminal insane, and. thereby deprive the 
 courts of their jurisdiction to inquire into 
 the legality of his restraint. Re Boyett, 136 
 X. C. 415, 48 S. E. 789, 67: 972 
 
 259a. There is no exercise of judicial pow- 
 er by the legislature in a statute providing 
 for the recovery of a penalty against a 
 county for the death of a person caused by 
 ! lynching. Champaign County v. Church, 62 
 I Ohio St. 318, 57 N. jfl. 50, 48: 738 
 
 '. Appointment of commissioners. 
 
 260. Commissioners "to assist" a court do 
 I not usurp judicial functions, or exercise any 
 : judicial power, by taking such transcripts 
 I and briefs as a court shall assign to them, 
 
 and reporting the result of their examina- 
 tion thereof, with opinions and suggestions 
 merely for the consideration of the court 
 as to the proper disposition of the cases. 
 People ex rel. Morgan v. Hayne, 83 Cal. Ill, 
 23 Pac. 1, 7: 348 
 
 As to mechanics' liens. 
 
 261. Pa. act June 17, 1887, declaring that 
 the acts of 1836 and 1845 concerning me- 
 chanics' liens shall be construed to include 
 claims for labor done by mechanics and 
 others on buildings, no matter at whose in- 
 stance or upon whose credit it was done, is 
 a violation of Pa. Const, art. 5, 1, as an 
 exercise of judicial powers by the legisla- 
 ture. Titusville Iron Works v. Keystone 
 Oil Co. 122 Pa. 627, 15 Atl. 917, 1: 361 
 
 262. A statute regarding mechanics' liens, 
 ; which provides that when any doubt exists 
 ! as to the construction it shall be the duty of 
 
 the court to construe it so as to give the per- 
 | son performing any labor the full amount 
 , of his claim over and above costs and attor- 
 neys' fees, is unconstitutional as invading 
 ! the functions of the judiciary. Meyer v. 
 Berlandi, 39 Minn. 438, 40 X. W. 513, 
 
 1: 777 
 
 As to local option. 
 
 I 263. The Xew Jersey act "To Regulate the 
 Sale of Intoxicating Liquors," providing that 
 the circuit judge shall determine whether 
 the circumstances have arisen which require 
 an election for the purpose of adopting the 
 local option part of the act, and appoint the 
 day for the election, does not violate the con- 
 stitutional provision defining the powers 
 of the departments of government. State, 
 Paul. Prosecutor, v. Gloucester County Cir- 
 cuit Ct. Judge (N. J. Err. & App.) 50 X. J. 
 i L. 585. 15 Atl. 272, 287, 1: 86 
 
 3. As to Appointment of Officers. 
 
 Delegation of Power as to. see supra, 170, 
 
 177, 189, 190. 
 Local Self-Government as to, see infra, 282- 
 
 298. 
 
 I Appointment of Officers Generally, see Offi- 
 cers. I. b. 
 I For Editorial Notes, see infra, III. 4. 
 
 264. The power to provide by \w the 
 
 manner or mode of making an appointment 
 
 | does not include the power to make the ap- 
 
 i pointment itself. State ex rel. Jameson v. 
 
 Denny. 118 Ind. 382, 21 X. E. 252, 4: 79 
 
 265" A statute providing for the appoint-
 
 CONSTITUTIONAL LAW, L f. 
 
 577 
 
 ment, by the judges of a court, of the mem- 
 bers of a bridge committee to have charge of 
 the city's bridges, does not violate a consti- 
 tutional provision that persons charged with 
 official duties under one of the three de- 
 partments of government shall not exercise 
 powers confided to either of the other de- 
 partments, on the ground that the appoint- 
 ment belongs to the executive department, 
 even if this were true as to the appointment 
 of officers generally, since such committee- 
 men are mere agents of the city, and not 
 officers within the meaning of the Constitu- 
 tion. State ex rel. Sherman v. George, 22 
 Or. 142, 29 Pac. 356, 16: 737 
 
 266. Under Ind. Const, art. 15, 1, pro- 
 viding that "all officers whose appointments 
 are not otherwise provided for in this Con- 
 stitution shall be chosen in sucfr^nanner as 
 now is or hereafter may be prescribed by 
 law," the legislature may provide by law for 
 the appointment of all officers not provid- 
 ed for in the Constitution; but the appoint- 
 ing power must be lodged somewhere within 
 the executive department of the government. 
 Evansville v. State ex rel. Blend, 118 Ind. 
 426, 21 N. E. 267, 4: 93 
 State ex rel. Jameson v. ^Denny, 118 Ind. 
 382, 21 N. E. 252, 4: 79 
 
 267. The appointment to office of a board 
 of public works for a city involves the exer- 
 cise of executive functions, within the mean- 
 ing of Ind. Const, art. 3, 1, which prohibits 
 a person charged with official duties in either 
 the legislative, executive, or judicial depart- 
 ment from exercising any of the functions 
 of another department. State ex rel. Jame- 
 son v. Denny, 118 Ind. 382, 21 N. E. 252, 
 
 4: 79 
 
 268. The power to appoint city commis- 
 sioners, given to circuit judges by Ind. Rev. 
 Stat. 1894, 3629, although it is not strictly 
 judicial, does not belong either to the execu- 
 tive or the legislative department of the 
 state government, and therefore is not with- 
 in the inhibition of article 3 of the Constitu- 
 tion, which makes those departments inde- 
 pendent. Terre Haute v. Evansville & T. H. 
 R. Co. 149 Ind. 174, 46 N. E. 77, 37:189 
 
 269. The legislature of Indiana has no 
 power to fill a vacancy occurring in an office, 
 whether of its own creation or otherwise, 
 except express provision therefor can be 
 found in the Constitution. Evansville v. 
 State ex rel. Blend, 118 Ind. 426, 21 N. E. 267, 
 
 4: 93 
 
 270. Associating with the governor the au- 
 ditor, treasurer, secretary of state, and at- 
 torney general, as a board for the purpose 
 of electing prison directors, is not an uncon- 
 stitutional commingling of executive with 
 administrative officers in violation of the 
 provision separating the powers of govern- 
 ment into three departments, the legislative, 
 executive, and judicial, but including the ad- 
 ministrative in the executive department. 
 French v. State ex rel. Harley, 141 Ind. 618, 
 41 N. E. 2, 29: 113 
 
 271. The power to appoint public officers 
 is not purely an executive function, but this 
 power may be exercised by the general as- 
 sembly, when not otherwise provided in the 
 
 L.R.A. Dig. 37. 
 
 Constitution, either by naming a given per- 
 son for the office, or providing the manner 
 in which the officer shall be chosen; and the 
 general assembly also has authority to pro- 
 vide for the appointment of a number of offi- 
 cers to discharge a given duty, and to pro- 
 vide that vacancies in such number may be 
 filled by those remaining in office, thus creat- 
 ing a self-perpetuating body. Americus v. 
 Perry, 114 Ga. 871, 40 S. E. 1004, 57: 230 
 
 f. Local Self-Government. 
 
 Vested Right to Maintain Fire Department, 
 
 see Fire Department, 3. 
 In Selection of Uniform Text Books, see 
 
 Schools, 101-105. 
 
 Right of Town as to, see Towns, 10, 11, 21. 
 See also supra, 58; Municipal Corporations, 
 
 51. 
 For Editorial Notes, see infra, III. 1. 
 
 272. An act of the legislature will not be 
 declared invalid by the courts because it 
 abridges the exercise of the privilege of lo- 
 cal self-government in a particular in regard 
 to which such privilege is not guaranteed 
 by the Constitution. Com. v. Plaisted, 148 
 Mass. 375, 19 N. E. 224, 2: 142 
 
 273. There is no inherent right of local 
 self-government in municipal corporations, 
 and how far they shall be given this right 
 is a matter addressed solely to legislative 
 discretion. Americus v. Perry, 114 Ga. 871, 
 40 S. E. 1004, 57:230 
 
 274. The right of local self-government 
 in cities and towns was not surrendered 
 upon the adoption of the Constitution of 
 Nebraska, and cannot be taken away by 
 the legislature. State ex rel. Smvth v. 
 Moores, 55 Neb. 480, 76 N. W. 175, 41 : 624 
 
 275. The right of local self-government 
 which existed prior to the adoption of the 
 Constitution of Indiana, not being express- 
 ly yielded up and granted to any of the de- 
 partments of the state government by that 
 Constitution, which, on the contrary, is 
 framed with reference to the then existing 
 local governments, still belongs to the people 
 of the municipalities of the state. State 
 ex rel. Jameson v. Denny, 118 Ind. 382, 21 
 N. E. 252, 4: 79 
 Evansville v. State ex rel. Blend, 118 Ind. 
 426, 21 N. E. 267, 4: 93 
 State ex rel. Holt v. Denny, 118 Ind. 449, 
 21 N. E. 274, 4: 65 
 
 276. The legislature may select any 
 means for the administration of a munici- 
 pal government which it thinks best adapted 
 to that end, and may provide for the elec- 
 tion of municipal officers by the people, or 
 authorize any officers or persons to fill the 
 offices by appointment. People ex rel. Akin 
 v. KSpley, 171 111. 44, 49 N. E. 229, 41: 775 
 
 277. A statute providing a system of 
 government for cities cannot be held un- 
 constitutional for violating the spirit of 
 the Constitution, or that general intent 
 which preserves to the people the right of 
 local self-government. Com. ex rel. Elkiri 
 v. Moir, 199 Pa. 534, 49 Atl. 351, 53: 837 
 
 278. No guaranty of the right of munici-
 
 578 
 
 CONSTITUTIONAL LAW, L f. 
 
 pal corporations to local self-government is 
 made by those sections of the Georgia Bill 
 of Rights which declare that all govern- 
 ment originates, of right, with the people; 
 that public officers are the servants of the 
 people and at all times amenable to them; 
 that the people of the state have the in- 
 herent, sole, and exclusive right of regulat- 
 ing their internal government and the police 
 thereof; and that the enumeration of rights 
 in the Constitution shall not be construed 
 to deny to the people any inherent rights 
 which they may have hitherto enjoyed, 
 although prior to the adoption of the Con- 
 stitution municipal corporations had been 
 given and were exercising the right to con- 
 trol their own affairs through officers 
 chosen 'by them. Americus v. Perry, 114 
 Ga. 871, 40 S. E. 1004, 57: 230 
 
 279. An act of the legislature (Kan. Laws 
 1899, chap. 189) arbitrarily establishing a 
 high school and requiring the people of the 
 county to build and maintain it, without 
 their consent, is not an unconstitutional in- 
 terference with the right of local self-gov- 
 ernment. State ex rel. McCausland v. Free- 
 man, 61 Kan. 90, 58 Pac. 959, 47: 67 
 
 280. The recognition, for the purpose of 
 taxation, of distinct property in special 
 franchises conferred upon corporations and 
 imposing the duty of assessing the tax 
 upon state officers does not violate the 
 right of local self-government, although 
 some of the franchises are granted by mu- 
 nicipal corporations and the local assessors 
 are forbidden longer to assess the tangible 
 property located in the public highways 
 which is used in the exercise of the fran- 
 chise; but such property is in the future to 
 be assessed by the state officials in connec- 
 tion with the franchise. People ex rel. 
 Metropolitan Street R. Co. v. State Bd. of 
 Tax Comrs. 174 N. Y. 417, 67 N. E. 69, 
 
 63: 884 
 
 281. A statute which undertakes to place 
 in the hands of a board of public works ap- 
 pointed by the legislature the exclusive 
 control of all the streets, alleys, lanes, 
 thoroughfares, etc., of each city of a certain 
 size, without the consent of those to be 
 affected thereby, and with full power to 
 improve, alter, or change them in any man- 
 ner they may choose, without any accounta- 
 bility to anyone, is an unconstitutional in- 
 terference with local self-government. 
 State ex rel. Jameson v. Denny, 118 Ind. 
 382, 21 N. E. 252, 4: 79 
 
 282. An act creating a metropolitan board 
 to be appointed by the legislature, with su- 
 preme control of the police and fire depart- 
 ments of each city of a certain size, with 
 exclusive authority to purchase whatever is 
 necessary for those departmehts, and charge 
 the expense thereof on the city, is in vio- 
 lation of the Constitution of Indiana, as 
 being an unlawful attempt to deprive the 
 cities of local self-government. Evansville 
 v. State ex rel. Blend, 118 Ind. 426, 21 N. E. 
 267, 4: 93 
 
 State ex rel. Holt v. Denny, 118 Ind. 
 449, 21 N. E. 274, 4: 65 
 
 As to appointment of officers. 
 
 As to Appointment of Officers Generally, 
 
 see supra, I. e, 3; Officers, I. b. 
 Delegation of Power as to, see supra, 176, 
 
 177, 189, 190. 
 See also supra, 276, 282; Civil Service, 1. 
 
 283. The general assembly of Indiana has 
 no right to appoint officers to manage and 
 administer municipal affairs. State ex rel. 
 Holt v. Denny, 118 Ind. 449, 21 N. E. 274, 
 
 4: 65 
 
 284. An act providing a system of govern- 
 ment for a city is not rendered unconsti- 
 tutional by the fact that, as a temporary 
 expedient to prevent a gap in the govern- 
 ment, the governor is given power to ap- 
 point a temporary executive, the time of 
 his appointment, and therefore that of the 
 taking effect of the act, being left to his 
 discretion. Com. ex rel. Elkin v. Moir, 199 
 Pa. 534, 49 Atl. 351, 53: 837 
 
 285. An act attempting to confer upon the 
 general assembly the duty of appointing 
 or electing persons as members of a board 
 of public works, which has exclusive charge 
 of the streets, improvements, etc., of a 
 municipal corporation, is unconstitutional 
 and void, and is not authorized by article 15, 
 1, of the Indiana Constitution, which pro- 
 vides that "all officers whose appointment is 
 not otherwise provided for in this Consti- 
 tution shall be chosen in such manner as 
 now is or hereafter may be prescribed by 
 law." State ex rel. Jameson v. Denny, 118 
 Ind. 382, 21 N. E. 252, 4: 79 
 
 286. The power to designate the local 
 authority who shall appoint local officers, 
 conferred on the legislature by N. Y. 
 Const, art. 10, 2, if the election or ap- 
 pointment of such officers is not provided 
 for by that Constitution, does not author- 
 ize the enactment of N. Y. Laws 1896, chap. 
 427, providing that the police board of the 
 city of Albany shall consist of four com- 
 missioners of whom two shall belong to the 
 political party having the highest represen- 
 tation in the common council, and the other 
 two to the party having the next highest 
 representation therein, and that each mem- 
 ber of the council shall be entitled to vote 
 for only two of such officers, since the mi- 
 nority which is thus given power to ap- 
 point two of the commissioners is not a 
 city authority within the meaning of the 
 Constitution. Rathbone v. Wirth, 150 N. Y. 
 459, 45 N. E. 15, 34: 408 
 
 287. The right of local self-government 
 is violated by N. Y. Laws 1896, chap. 427, 
 which prevents majority rule in the selec- 
 tion of local officers by providing that each 
 member of the common council shall vote 
 for but two of the four police commissioners 
 to be chosen, and that no person shall be 
 eligible to the office who does not belong to 
 the political party having the highest or 
 next highest representation in the council, 
 and that in case the board cannot agree in 
 continuing in office the present force before 
 a certain date the police force shall cease to 
 exist, except a certain person who was 
 senior captain on a specified day, who shall
 
 CONSTITUTIONAL LAW, I. g. 
 
 579' 
 
 be chief of police until the board shall 
 agree. [Per Gray and O'Brien, JJ.] Id. 
 
 288. There is no invasion of the right of 
 local self-government by a statute provid- 
 ing for appointment of police commission- 
 ers by state officers. State ex rel. Terre 
 Haute v. Kolsem, 130 Ind. 434, 29 N. E. 
 595, 14: 566 
 
 289. A probate judge may be constitution- 
 ally authorized to appoint police commis- 
 sioners for a city. Fox v. McDonald, 101 
 Ala. 51, 13 So. 416, 21: 529 
 
 290. The establishment of a board of po- 
 lice commissioners for the city of Newport 
 by R. I. Pub. Laws 1900, chap. 804, is not 
 unconstitutional on the ground of interfer- 
 ence with the right of that city to local 
 self-government, so far as the appoint- 
 ment of a chief of police by said commis- 
 sioners is concerned, since a police officer 
 does not perform a purely municipal, but a 
 state, duty. Newport, v. Horton, 22 R. I. 
 196, 47 Atl. 312, 50: 330 
 
 291. An act creating a board of police 
 commissioners which shall have exclusive 
 control of the police officers of a city (Ga. 
 Acts 1889, p. 961), naming the first mem- 
 bers of the board, prescribing the manner 
 in which their successors shall be chosen, 
 and setting forth their powers and duties, is 
 not an unconstitutional deprivation of local 
 self-government, but is a proper exercise of 
 legislative power. Americus v. Perry, 114 
 Ga. 871, 40 S. E. 1004, 57: 230 
 
 292. The creation of a board of police 
 commissioners by Wis. Laws 1897, chap. 247, 
 with exclusive authority to appoint all 
 members of the police force, is in violation 
 of Wis. Const, art. 13, 9, which requires 
 all municipal officers not specifically, pro- 
 vided for by the Constitution to be elected 
 by the voters or appointed by such munici- 
 pal authorities as the legislature may pro- 
 vide. O'Connor v. Fond du Lac, 109 Wis. 
 253, 85 N. W. 327, 53:831 
 
 293. All offices pertaining to the police 
 department, whether now named or not by 
 the names they bore prior to the adoption 
 of Wis. Const, art. 13, 9, providing for the 
 election of city officers by the voters or 
 their appointment by such city authorities 
 as the legislature shall prescribe, are in- 
 cluded within the scope of that provision; 
 and the legislature is thereby prohibited 
 from interfering with such appointments. 
 
 Id. 
 
 294. An act of the legislature, so far as it 
 expressly or by its effect extends the term 
 of office of a member of the police force of 
 a city beyond that for which he was spe- 
 cifically elected or appointed by legitimate 
 municipal authority, so as to keep such of- 
 ficer in place for any period of time regard- 
 less of such authority, is in violation of 
 Wis. Const, art. 13, 9, providing that 
 such officers, when not specifically provided 
 for by the Constitution, shall be elected by 
 the voters or appointed by such city author- 
 ities as the legislature may designate. Id. 
 
 295. The attempt to confer authority up- 
 on the governor to appoint fire and police 
 
 commissioners in cities of the metropolitan 
 class which is made by Neb. Laws 1897, 
 chap. 10 (Neb. Comp. Stat. chap. 12o), is 
 void as an unlawful attempt to deprive the 
 people of such cities of the right of local 
 self-government. State ex rel. Smyth v. 
 Moores, 55 Neb. 480, 76 N. W. 175, 41: 624 
 
 296. No unconstitutional deprivation of 
 local self-government is made by Neb. 
 Comp. Stat. chap. 12a, 169, creating a 
 board of fire and police commissioners for 
 cities of the metropolitan class, and placing 
 the power of appointment thereto in the 
 governor, since the power to create munici- 
 pal corporations, which is vested in the 
 legislature, implies the power to impose 
 upon them such limitations as the legisla- 
 ture may see fit. Redell v. Moores, 63 Neb. 
 219, 88 N. W. 243, 55: 740 
 
 297. The fundamental rights of a munici- 
 pality are infringed by a statute authoriz- 
 ing the governor to appoint a board which 
 shall have control of its fire department 
 and matters relating to fire alarm, tele- 
 graph, fire escapes, inspection of buildings, 
 boilers, market places, and food, and power 
 to purchase supplies and apparatus, appoint 
 officers and employees, and fix their com- 
 pensation. State ex rel. Geake v. Fox, 158 
 Ind. 126, 63 N. E. 19, 56: 893 
 
 298. The establishment and control of a 
 water-supply system is a matter that per- 
 tains to the municipality, and the legis- 
 lature cannot take the management of the 
 system away from the appointees of the 
 municipality, and vest it in persons for 
 whose selection it provides. State ex rel. 
 White v. Barker, 116 Iowa, 96, 89 N. W. 
 204, 57:244 
 As to salary of officers. 
 
 299. The legislature cannot fix the salaries 
 of firemen employed by municipalities, al- 
 though there is no limitation on such power 
 in the Constitution, since that is a matter 
 of local government never delegated to the 
 legislature. Lexington v. Thompson, 113 
 Ky. 540, 68 S. W. 477, 57: 775 
 
 g. Functions and Powers of State. 
 
 See also infra, II. c, 2. 
 
 300. Powers of a state government em- 
 brace all that are not forbidden, while those 
 of the national government consist of those 
 delegated. Holden v. Hardy, 14 Utah, 71, 
 46 Pac. 756, 37: 103 
 [Aff'd by the Supreme Court of the United 
 States in 169 U. S. 366, 42 L. ed. 780, 
 18 Sup. Ct. Rep. 383.] 
 
 301. The constitutional provision that 
 "the state shall never contract any debts 
 for works of internal improvement or be 
 a party in carrying on such works" prevents 
 a state from owning and operating an ele- 
 vator or warehouse for the public storage 
 of grain, or any other kind of public works 
 excepting those used by and for the state 
 in the performance of its governmental 
 functions. Rippe v. Becker, 56 Minn. 100, 
 57 N. W. 331, 22: 857 
 
 302. The state cannot embark in any 
 trade which involves the purchase and sale
 
 580 
 
 CONSTITUTIONAL LAW, I. b, II. a, 1. 
 
 of any article of commerce for profit, even 
 in the absence of express provision in the 
 Constitution against it. McCullough v. 
 Brown, 41 S. C. 220, 19 S. E. 458, 23: 410 
 
 303. The power of the executive and ju- 
 dicial departments in a state government 
 is a grant, not a limitation, while the pow- 
 ers of the legislative department are abso- 
 lute except as restricted and limited by 
 the Constitution. People ex rel. Richard- 
 son v. Henderson, 4 Wyo. 535, 35 Pac. 517, 
 
 22: 751 
 
 h. Abandonment of Power. 
 
 304. Nonuser will not defeat a power to 
 exercise rights expressly delegated in a 
 written constitution. McPherson v. Black- 
 er, 92 Mich. 377, 52 N. W. 469, 16: 475 
 
 \ 
 
 II. Rights of Persons and Property. 
 
 a. Equal Protection and Privileges; Abridg- 
 ing Immunities and Privileges. 
 
 1. In General. 
 
 Preference of Veterans under Civil Service 
 Laws, see Civil Service, 13-19. 
 
 County Organization as Special Privilege, 
 see Counties, 1. 
 
 Discrimination as to Distribution of Circu- 
 lars and Advertisements, see Municipal 
 Corporations, 265. 
 
 Special and Local Legislation, see Statutes, 
 I. g. 
 
 Discrimination in Water Rates, see Waters, 
 605-610. 
 
 See aiso supra, 69-71, 320; infra, 617, 629, 
 793, 937, 938; Civil Rights. 
 
 For Editorial Notes, see infra, III. 7. 
 
 304a. A city ordinance which applies 
 alike to all citizens under like circum- 
 stances is not open to the objection that 
 it discriminates between citizens. Rich- 
 mond v. Dudley (Ind.) No Off. Rep. 26 N. E. 
 184, 10: 187 
 
 304b. An ordinance which applies alike 
 to all persons, firms, or corporations en- 
 gaged in the business legislated against is 
 not discriminatory. Crowley v. Ellsworth, 
 114 La. 308, 38 So. 199, 69: 276 
 
 305. A law which applies alike to all per- 
 sons under like circumstances and condi- 
 tions does not deny to any the equal pro- 
 tection of the law. Cleveland, C. C. & St. 
 L. R. Co. v. Backus, 133 Ind. 513, 33 N. E. 
 421, 18: 729 
 
 306. A law is not general because it oper- 
 ates upon all within a class unless there 
 is a substantial reason why it is made to 
 operate upon that class only, and not gen- 
 erally upon all. Ex parte Jentzsch, 112 
 Cal. 468, 44 Pac. 803, 32: 664 
 
 307. Classification of persons by a stat- 
 ute which restricts one class only must not 
 be arbitrary or unreasonable, but must 
 rest upon some difference which bears a 
 reasonable and just relation to the act in 
 respect to which the classification is pro- 
 posed. Luman v. Hitchina Bros. Co. 90 Md. 
 14, 44 AtL 1051, 46: 393 
 
 308. A statute that operates equally up- 
 on all who come within the class to be af- 
 fected, embracing all persons who are or 
 may be in like situation and circumstances, 
 and making a classification which is rea- 
 sonable and based upon a real distinction, 
 and not unjust, capricious, or arbitrary, 
 does not violate the constitutional require- 
 ment of uniform operation of laws. State 
 v. Hogan, 63 Ohio St. 202, 58 N. E. 572, 
 
 52: 863 
 
 309. Legislation intended to affect a par- 
 ticular class, and not the public at large, 
 must extend to and embrace equally all 
 persons who are or may be in the like 
 situation and circumstances; and the clas- 
 sification must be natural and reasonable, 
 not arbitrary and capricious. Sutton v. 
 State, 96 Tenn. 696, 36 S. W. 697, 33: 589 
 
 310. Legislation which affects alike all 
 persons pursuing the same business, under 
 the same conditions, is not such class legis- 
 lation as is prohibited by the Constitution 
 of the United States or of Louisiana. State 
 v. Schlemmer, 42 La. Ann. 1166, 8 So. 307, 
 
 10: 135 
 
 311. A statute which may constitution- 
 ally operate upon certain persons or in cer- 
 tain cases, is not to be held unconstitution- 
 al merely because there may "be persons to 
 whom or cases in which it cannot consti- 
 tutionally apply; but it is to be construed 
 not to apply to such persons or cases. State 
 v. Smiley, 65 Kan. 240, 69 Pac. 199, 67: 903 
 
 312. The right of a citizen to the equal 
 protection of the law cannot be trampled 
 under foot under the disguise of a police 
 regulation. State v. Walsh, 136 Mo. 400, 
 37 S. W. 1112, 35: 231 
 
 313. The provision of Ohio Const, art. 2, 
 26, that all laws of a general nature shall 
 have a uniform operation throughout the 
 state, does not guarantee the general pro- 
 tection of all the inhabitants of the state, 
 but only that such laws shall be in force 
 in all parts of the state. State ex rel. 
 Schwartz v. Ferris, 53 Ohio St. 314, 42 N. E. 
 427, 30: 218 
 
 314. The consideration of services ren- 
 dered to the public, within the meaning of 
 article 6 of the Massachusetts Declaration 
 of Rights, denying any other title than 
 such services to exclusive privileges, has 
 reference to services to be rendered to the 
 public thereafter, and not to past services. 
 Brown v. Russell, 166 Mass. 14, 43 N. E. 
 1005, 32: 253 
 
 315. An ordinance does not violate the 
 constitutional law of "equality" because it 
 applies to one village of the state only. 
 Summerville v. Pressley, 33 S. C. 56, US. 
 E. 545, 8: 854 
 As to women. 
 
 As to Right of Women to Vote Generally, 
 
 see Elections, 21-25. 
 Who May Object to Exclusion of Women 
 
 from Jury, see Jury, 75. 
 See also infra, 491, 551. 
 For Editorial Notes, see infra, III. 7. 
 
 316. The prohibition against employing 
 women for more than ten hours a day in 
 any manufacturing, mechanical, or mereaa-
 
 CONSTITUTIONAL LAW, II. a, 1. 
 
 tile establishment, hotel, or restaurant, 
 made by Neb. Comp. Stat. 11)01, 245, is 
 not unconstitutional as special or class legis- 
 lation, since the law applies alike to all 
 women who shall engage in labor in any 
 of the establishments mentioned. Wenham 
 v. State, 65 Neb. 394, 91 N. W. 421, 
 
 58: 825 
 
 317. No unconstitutional discrimination 
 against women is made by a statute which 
 forbids their entering wine rooms there to 
 be supplied with liquor. Adams v. Cronin, 
 29 Colo. 488, 69 Pac. 590, 03: 61 
 
 318. The constitutional provision that 
 no person shall, on account of sex, be dis- 
 qualified from entering upon or pursuing 
 any lawful business, vocation, or profes- 
 sion, is not violated by an ordinance pro- 
 hibiting the sale of intoxicating liquors in 
 dance cellars or other places where musical 
 and theatrical entertainments are given, 
 and where females attend as waitresses. 
 Ex parte Hayes, 98 Cal. 555, 33 Pac. 337, 
 
 20: 701 
 
 319. Restricting the right to obtain licen- 
 ses for the sale of intoxicating liquors to 
 the male inhabitants of the state does not 
 render a law obnoxious to U. S. Const, art. 
 4, 2, which provides that the citizens of 
 each state shall be entitled to all the privi- 
 leges and immunities of the citizens of the 
 several states. Welsh v. State, 126 Ind. 71, 
 25 N. E. 883, 9: 664 
 
 320. The exclusion of women from a jury 
 on the trial of a man for crime, even if 
 wrongful, does not deprive him of any 
 rights or privileges under a constitutional 
 provision giving women the right to vote 
 and hold office, and declaring that both 
 male and female citizens shall equally en- 
 joy all civil, political, and religious rights 
 and privileges. McKinney v. State, 3 Wyo. 
 719, 30 Pac. 293, 16: 710 
 Indians. 
 
 321. A citizen of Indian blood is not de- 
 prived of any constitutional privileges and 
 immunities by a statute prohibiting the 
 sale or giving of intoxicating liquors to any 
 Indian. People v. Bray, 105 Cal. 344, 38 
 Pac. 731, 27: 158 
 Highways. 
 
 Due Process of Law as to, see infra, 763- 
 
 766. 
 
 Police Power as to, see infra, 960-966. 
 Prohibiting Public Meetings in, without 
 
 Consent of Municipal Authorities, see 
 
 infra, 966. 
 Special Legislation as to, see Statutes, 367- 
 
 375 
 See also infra, 351, 379, 380, 414, 452, 966. 
 
 322. The limitation of the use of a street 
 to the purposes of a pleasure driveway is in 
 no sense class legislation. Cicero Lumber 
 Co. v. Cicero, 176 111. 9, 51 N. E. 758, 
 
 42: 696 
 
 323. Compelling abutting owners to keep 
 sidewalks free from snow is the imposition 
 of a burden which does not bear upon all 
 citizens alike, and which denies them the 
 equal protection of the laws. State v. Jack- 
 man, 69 N. H. 318, 41 Atl. 347, 42: 438 
 
 324. To uphold a statute imposing the 
 
 duty upon the owners or occupants of abut- 
 ting land to keep the sidewalks free from 
 ice and snow, there must be no inequality 
 in the burden imposed upon the respective 
 classes of persons upon whom the duty is 
 imposed, nor unjust discrimination in favor 
 of some and against others. McGuire v. 
 District of Columbia, 24 D. C. App. 22, 
 
 65: 430 
 
 325. A statute which makes any person 
 who drives a herd of horses, asses, cattle, 
 sheep, goats, or swine over a public high- 
 way constructed on a hillside, liable for 
 all damages done by such animals in de- 
 stroying the banks or rolling rocks into 
 or upon such highway, is not unconstitu- 
 tional as a denial of eqiial privileges, im- 
 munities, or protection of the laws, or as 
 depriving any person of property without 
 due process of law. Brim v. Jones, 11 Utah, 
 200, 39 Pac. 825, 29: 97 
 [AfT'd by the Supreme Court of the 
 United States in 165 U. S. 180, 41 L. ed. 
 677, 17 Sup. Ct. Rep. 282.] 
 Municipalities; school districts. 
 
 See also infra, 569. 
 
 326. A statute (Kan. Ocn. Stat. 1897, 
 15, chap. 32) which provides for the exten- 
 sion of city boundaries over certain classes 
 of adjoining lands is not violative of the 
 14th Amendment to the Constitution of the 
 United States because it exempts agricul- 
 tural lands from its provisions. Kansas 
 City v. Clark, 59 Kan. 427, 53 Pac. 468, 
 
 52: 321 
 
 327. A right to the equal protection of 
 the laws is not secured to a municipal cor- 
 poration as against the state by the 14th 
 Amendment to the Federal Constitution, so 
 as to limit in any way the power of the 
 state legislature to charge the municipality 
 with public obligations; nor have the in- 
 habitants in their capacity of members of 
 such corporation any greater rights or im- 
 munities. State ex rel. Bulkeley v. Wil- 
 liams, 68 Conn. 131, 35 Atl. 24, 421, 
 
 48: 465 
 
 328. A statute providing that children 
 living within a half mile of the recently en- 
 larged limits of a municipality may attend 
 its schools free of charge is not vicious 
 class legislation. Edmondson v. Board of 
 Education of Memphis, 108 Tenn. 557, 69 
 S. W. 274, 58: 170 
 
 329. A school district or municipal cor- 
 poration has the same constitutional pro- 
 tection that an individual would have 
 against the abrogation by statute of its 
 already complete defense under the statute 
 of limitations. Normal School Dist. Bd. of 
 Edu. v. Blodgett, 155 111. 441, 40 N. E. 
 1025, 31:70 
 Offices and elections. 
 
 Due Process of Law as to, see infra, II. 
 b, 6. 
 
 Discrimination in Registration, see Elec- 
 tions, 53-59. 
 
 Discrimination between Nominees, see Elec- 
 tions, 171. 
 
 Special Legislation as to, see Statutes, 384, 
 387-390, 400-405. 
 
 See also infra, 788; Elections, 6.
 
 582 
 
 CONSTITUTIONAL LAW, II. a, 1. 
 
 For Editorial Notes, see infra, III. 7. 
 
 330. A provision that officers and patrol- 
 men of a fire department shall be selected 
 equally from the two leading political par- 
 ties of a city is in violation of a constitu- 
 tional provision against granting privileges 
 or immunities to any citizen or class of 
 citizens which shall not, upon the same 
 terms, belong to all citizens. Evansville v. 
 State ex rel. Blend, 118 Ind. 426, 21 N. E. 
 267, 4: 93 
 State ex rel. Holt v. Denny, 118 Ind. 449, 
 21 N. E. 274, 4: 65 
 
 331. A residence of five years cannot be 
 made by the legislature a valid qualifica- 
 tion for office, under a constitutional pro- 
 vision against granting privileges or im- 
 munities to any citizen or class of citizens 
 which shall not belong to all citizens upon 
 the same terms. Id. 
 
 332. The privileges and immunities of 
 citizens, or the equal protection of the laws, 
 guaranteed by the Federal Constitution, is 
 not denied to a citizen removing from the 
 District of Columbia to a state by requir- 
 ing him, as a condition to the exercise of 
 the elective franchise, to record in a public 
 record his intention of becoming a citizen 
 a certain time before he can qualify as a 
 voter. Pope v. Williams, 98 Md. 59, '56 
 Atl. 543, 66: 398 
 
 333. An act to provide for the purity of 
 elections, which does not prevent an elector 
 from casting his vote fairly, does not in- 
 terfere with the privileges and immunities 
 of the citizens so as to conflict with U. S. 
 Const. 14th Amend. Cook v. State, 90 Tenn. 
 407, 16 S. W. 471, 13: 183 
 
 334. Restricting persons to remedies at 
 law, to the exclusion of equitable remedies, 
 for contesting title to office or the vindica- 
 tion of political rights, is not a denial of 
 due process of law or of the equal protec- 
 tion of the laws. State ex rel. McCaffery 
 v. Aloe, 152 Mo. 466, 54 S. W. 494, 47: 393 
 Public printing; publishing statutes. 
 
 335. A statute prohibiting the letting of 
 public printing to papers which have been 
 established less than a year violates the 
 constitutional provisions that all laws of 
 a general nature shall have a uniform oper- 
 ation, and that no citizen shall be grant- 
 ed privileges which upon the same terms 
 shall not be granted to all citizens. Van 
 Harlingen v. Doyle, 134 Cal. 53, 66 Pac. 44, 
 
 54: 771 
 
 336. The legislature is not prohibited by 
 any provision of the Nebraska Constitution 
 from granting to a person the right to 
 publish the statutes of the state, and mak- 
 ing such statute prima facie evidence of 
 the law. nor from purchasing such number 
 of copies thereof as the legislature may 
 deem necessary for the use of its officers. 
 Marsh v. Stonebraker (Neb.) 98 N. W. 699, 
 
 65: 607 
 Trademark. 
 Due Process of Law as to, see infra, 768. 
 
 337. A statute authorizing associations 
 or unions of workingmen to adopt labels 
 or devices to distinguish the products of 
 their labor does not make an unjust dis- 
 
 crimination against nonunion workingmen. 
 Perkins v. Heert, 158 N. Y. 306, 53 N. E. 
 18, 43: 858 
 
 338. A statute providing for labels and 
 trademarks of associations or unions of 
 workingmen does not violate a constitu- 
 tional provision against special laws grant- 
 ing exclusive privileges, although it gives 
 to the associations or unions privileges de- 
 nied to single individuals. Schmalz v. 
 Woolley (N. J. Err. & App.) 57 N. J. Eq. 
 303, 41 Atl. 939, 43: 86 
 
 339. A statute providing for the protec- 
 tion of trademarks adopted by associations 
 or unions of workingmen is not void as 
 class legislation or as granting special 
 privileges or immunities. State v. Bishop, 
 128 Mo. 373, 31 S. W. 9, 29: 200 
 
 340. A statute giving the right to a trade- 
 mark in a label adopted by "any person, 
 association, or union of workingmen," is 
 not a local or special law granting special 
 privileges, immunities, or franchises, since 
 it is not limited to associations of any par- 
 ticular class of persons. Cohn v. People, 
 149 111. 486, 37 N. E. 60, 23: 821 
 Mine boundaries. 
 
 341. A statute prohibiting the owner of 
 coal land to open or work any mine or 
 shaft within 5 feet of his division line with- 
 out the consent of the adjoining owner, un- 
 der a penalty of $500, is within the consti- 
 tutional power of the legislature as impos- 
 ing an impartial, just, and reasonable com- 
 mon burden for the benefit of all mine own- 
 ers and the protection of the surface. 
 Mapel v. John, 42 W. Va. 30, 24 S. E. 608, 
 
 32: 800 
 Burning gas. 
 
 Due Process of Law as to, see infra, 783- 
 785. 
 
 342. The equal privileges or immunities 
 of citizens are not violated by prohibiting 
 the wasteful use ot gas by burning flam- 
 beau lights. Townsend v. State, 147 Ind. 
 624, 47 N. E. 19, 37: 294 
 Divorce. 
 
 343. An act permitting a limited divorce 
 for adultery or desertion, attended by spe- 
 cial consequences with regard to property 
 rights, on the application of a person hold- 
 ing conscientious scruples against absolute 
 divorce, and not otherwise, is unconstitu- 
 tional, since a classification defined only 
 by inquiry into the private opinions of an 
 offended party is not such as the principles 
 of constitutional construction will sustain. 
 Middleton v. Middleton (N. J. Err. & App.) 
 54 N. J. Eq. 692, 35 Atl. 1065, 36: 221 
 Libel. 
 
 344. A statute defining rights and obli- 
 gations in respect to actions for libel is not 
 unconstitutional as partial or class legisla- 
 tion because its provisions are limited to 
 publishers of newspapers. Allen v. Pioneer 
 Press Co. 40 Minn. 117, 41 N. W. 936, 
 
 3: 532 
 
 345. The Michigan statutes relieving pub- 
 lishers of newspapers from all but actual 
 damages to property and business, in ac- 
 tions for libel, if the publication was by 
 mistake and in good faith, and did not in-
 
 CONSTUTITIONAL LAW, II. a, 1. 
 
 583 
 
 volve a criminal charge, and was followed 
 by a correction, are unconstitutional, be- 
 cause they deprive the party injured of the 
 right to damages for injury to his private 
 reputation, and exempt a special class of 
 citizens from liability for wrongs, not 
 granted to others, and permit the doing of 
 a wrong without liability to answer there- 
 for. Park v. Detroit Free Press Co. 72 
 Mich. 560, 40 N. W. 731, 1 : 599 
 
 346. Limiting the right to escape puni- 
 tive damages for the publication of a libel 
 by a retraction to the publishers of news- 
 papers and periodicals is not an unconsti- 
 tutional discrimination against other per- 
 sons who may be guilty of publishing a 
 libel. Osborn v. Leach, 135 N. C. 628, 47 
 S. E. 811, 66: 648 
 Smoke. . * 
 
 Equal Protection and Privileges of Railroad 
 
 Companies as to, see infra, 424. 
 As to Criminal Matters, see infra, 607, 608. 
 
 347. Exempting - chimneys of buildings 
 used exclusively for private residences from 
 a statute declaring the emission of dense 
 or thick black or gray smoke or cinders 
 from smokestacks or chimneys to be a 
 public nuisance, and limiting the statute 
 to any smokestack or chimney used in con- 
 nection with any stationary engine, steam 
 boiler, or furnace, does not make the stat- 
 ute unconstitutional because of inequality 
 or unjust discrimination in violation of the 
 
 E revision as to equal protection of the 
 iws, since it is not apparent that the clas- 
 sification made is without reasonable basis. 
 Moses v. United States, 16 App. D. C. 428, 
 
 50: 532 
 Bicycles. 
 Special Legislation as to, see Statutes, 375. 
 
 348. An ordinance requiring bicycle rid- 
 ers to carry lamps is not unconstitutional 
 because not applying to other silently run- 
 ning vehicles. Des Moines v. Keller, 116 
 Iowa, 648, 88 N. W. 827, 57 : 243 
 
 349. The equal privileges and immuni- 
 ties of a bicycle rider are not infringed by 
 requiring him to carry a light after dark. 
 
 Id. 
 Parades. 
 
 350. A statute exempting certain inde- 
 pendent military bodies or organizations 
 from the operation of a provision, against 
 parading with firearms is not unconsti- 
 tutional class legislation, as it grants a 
 special privilege only, which does not inter- 
 fere with any constitutional rights of oth- 
 ers. Com. v. Murphy, 166 Mass. 171, 44 N. 
 E. 138, 32: 606 
 
 351. An ordinance prohibiting street pa- 
 rades with shouting, singing, or music, 
 without obtaining permission from a city 
 officer, but excepting from its provisions 
 funerals, fire companies, state militia, and 
 political parties having a state organiza- 
 tion, is unconstitutional by reason of its 
 unreasonable and unjust discrimination 
 denying equal privileges and protection of 
 the laws. R Garrabad, 84 Wis. 585, 54 
 N. W. 1104, 19: 858 
 
 Driving piles in river. 
 
 352. A statute making it unlawful for 
 the owner of ground having the right to 
 use it, to drive piles into it anywhere 
 within a river, for any purpose, prevents 
 the lawful use of his property, and takes 
 it away from him without compensation 
 or due process of law, and denies him the 
 equal protection of the law. Janesville v. 
 Carpenter, 77 Wis. 288, 46 N. W. 128, 
 
 8: 808 
 
 353. A statute violates the essential 
 spirit, purpose, and intent of the Consti- 
 tution, and is contrary to public justice, 
 where it declares that it shall be unlaw- 
 ful within the limits of a single county 
 to drive piles, etc., in a river which flows 
 through other counties also, and gives only 
 to resident taxpayers and owners or lessees 
 of the right to use water of said river for 
 a mill or factory within said county the 
 right to an injunction against the pro- 
 hibited acts, without proof that any injury 
 or danger has been or will be caused there- 
 by. Id. 
 Eminent domain. 
 
 Due Process of Law as to, see infra, II. b, 
 
 2, 6. 
 
 Special Legislation as to, see Statutes, 310. 
 See also supra, 60; infra, 578-580, 657. 
 
 354. A constitutional provision for equal 
 privileges- and immunities of citizens is not 
 violated by a statute which grants the 
 right of eminent domain only to such com- 
 panies, corporations, etc., as are engaged 
 in supplying patrons within the state. Con- 
 sumers Gas Trust Co. v. Harless, 131 Ind. 
 446, 29 N. E. 1062, 15: 505 
 
 355. A rule of compensation for the tak- 
 ing of private property for public use by 
 an individual cannot be provided by the 
 legislature which is less favorable to the 
 property owner than the rule provided by 
 the constitution in case of a taking by a 
 private corporation for a similar purpose, 
 where the constitution prohibits discrimi- 
 nation not justified by intrinsic differences, 
 and requires a uniform operation of gen- 
 eral laws. Beveridge v. Lewis, 137 Gal. 619, 
 70 Pac. 1040, 59: 581 
 
 356. A statute authorizing the condemna- 
 tion of a site for public warehouses or ele- 
 vators on a railroad right of way, without 
 subjecting the land of a private owner to 
 a like burden, is not invalid as class legis- 
 lation or discrimination against railway 
 companies. Re Stewart's Application, 65 
 Minn. 515, 68 N. W. 208, 33: 427 
 
 357. A discrimination by statute between 
 the owners of lots similarly situated and 
 subject to substantially the same condi- 
 tions, in respect to the right to compensa- 
 tion for injury thereto by a change of the 
 grade of a street, is unconstitutional as a 
 denial of the equal protection of the laws. 
 Anderton v. Milwaukee, 82 Wis. 279, 52 N. 
 W. 95, 15: 830 
 Exemption from arrest. 
 
 358. A statute exempting an officer or 
 seaman of a seagoing vessel or ship from 
 arrest or imprisonment for debt is not in 
 conflict with the constitutional provision
 
 584 
 
 CONSTITUTIONAL LAW, II. a, 2. 
 
 against the grant, to any citizen or class of 
 citizens, of any privilege or immunity 
 which shall not upon the same terms be- 
 long equally to all citizens. Re Oberg, 21 
 Or. 406, 28 Pac. 130, 14: 577 
 
 Miscellaneous. 
 
 As to Application of Tuberculine Test, see 
 Animals, 61, 62. 
 
 359. An ordinance is not "unequal and 
 unjust" on the ground that it permits the 
 owner of a small parcel of ground to culti- 
 vate a larger proportion of his ground 
 than the owner of a larger tract can do, 
 where the same maximum limit is fixed for 
 all persons. Summerville v. Pressley, 33 S. 
 C. 56, 11 S. E. 545, 8: 854 
 
 360. The equal protection of the laws is 
 not denied by a statute requiring the sub- 
 stitution of water-closets for school sinks 
 in tenement houses only, and then only 
 when they are located in cities of the first 
 class. Tenement House Department v. 
 Moeschen, 179 N. Y. 325, 72 N. E. 231, 
 
 70: 704 
 
 361. The exemption of agricultural prod- 
 ucts and live stock from the provisions 
 of the Georgia anti-trust act (Ga. Acts 
 1896, p. 68) renders the act void because in 
 violation of U. S. Const. 14th Amend., de- 
 claring that no state shall deny to any per- 
 son the equal protection of the laws. Brown 
 v. Jacobs Pharmacy Co. 115 Ga. 429, 41 S. 
 E. 553, 57: 547 
 
 362. A law permitting the use of docked 
 horses registered within a certain time 
 after its passage, and forbidding the use of 
 all other docked horses, is not void as ob- 
 jectionable class legislation. Bland v. Peo- 
 ple. 32 Colo. 319, 76 Pac. 359, 65: 424 
 
 363. A statute requiring notes given for 
 patent rights so to state on their faces is 
 not obnoxious to constitutional prohibitions 
 of class legislation. State v. Cook, 107 
 Tenn. 499, 64 S. \V. 720, 62: 174 
 
 2. As to Nonresidents or Aliens. 
 a. Nonresidents. 
 
 Forbidding Assignment to, for Purpose of 
 Evading Exemption Laws, see Exemp- 
 tions, 6. 
 
 As to Digging Clams, see Fisheries, 37. 
 
 See also supra, 354, infra, 394, 3D8, 404, 444, 
 468, 516, 525, 599, 697, 775. 
 
 364. Nonresidents of unorganized terri- 
 tories are not given the rights of residents 
 therein by the section of the Federal Con- 
 stitution providing that citizens of each 
 state shall be entitled to all privileges and 
 immunities of citizens in the different 
 states. McFadden v. Blocker, 3 Ind. Ter. 
 224, 54 S. W. 873, 58: 894 
 
 365. No unconstitutional discrimination 
 between resident and nonresident owners of 
 land along the line of a ditch is made by a 
 statute permitting any resident owner, 
 when the ditch needs cleaning, to petition 
 therefor under a section which simply re- 
 quires a sworn statement of such necessity 
 to be made to the county auditor, while 
 
 nonresident owners can only petition for 
 such improvement under a section which 
 requires application to be made to the 
 county commissioners, and the giving of a 
 bond for the payment of costs if the appli- 
 cation is not granted. Taylor v. Craw- 
 ford. 72 Ohio St. 560, 74 N. E. 1065, 69: 805 
 Foreign partnerships. 
 
 366. The mere organization of a partner- 
 ship under the laws of another state is not 
 sufficient to justify the imposition of con- 
 ditions upon its doing business within the 
 state not required of local partnerships. 
 State v. Cadigan, 73 Vt. 245, 50 Atl. 1079, 
 
 57: 666 
 
 367. A statute imposing a penalty on 
 agents transacting business within the 
 state for foreign partnerships which have 
 not complied with conditions not required 
 of local partnerships discriminates against 
 such agents in favor of those of local firms 
 so as to be void under the Federal Consti- 
 tution and those provisions of a state Con- 
 stitution protecting equal rights and privi- 
 leges. Id. 
 Foreign railroad company. 
 
 368. The equal protection of the laws is 
 not denied to a foreign railroad corporation 
 operating a portion of its road within 
 the state, by compelling it to become do- 
 mesticated as a condition to its continu- 
 ing such operation. Com. v. Mobile & 0. 
 R. Co. 23 Ky. L. Rep. 784, 64 S. W. 451, 
 
 ' 54: 916 
 
 Regulation of business generally; licenses. 
 See also infra, 498-501. 
 
 369. The exclusion of citizens of other 
 states from the right to dig clams for sale 
 on certain flats, by a regulation restricting 
 the right to residents of the town, does not 
 violate the constitutional privileges or im- 
 munities of citizens. Com. v. Hilton, 174 
 Mass. 29, 54 N. E. 362, 45: 475 
 
 370. A statute fixing the price of licenses 
 for the sale of lightning rods at $100 to 
 citizens of the state, and $500 to citizens 
 of other states, is a discrimination pro- 
 hibited by U. S. Const, art. 4, 2. State 
 v. Wiggin, 64 N. H. 508, 15 Atl. 128, 
 
 1:56 
 
 371. An ordinance providing for the li- 
 censing of all persons selling or offering 
 to sell on the streets, or soliciting orders 
 from house to house, when it makes no dis- 
 crimination on any ground, is not invalid 
 as to residents of the state on the ground 
 that it works a discrimination against them 
 and in favor of nonresidents, as to whom 
 it may be invalid. Brownback v. North 
 Wales, 194 Pa. 609, 45 Atl. 660, 49: 446 
 
 372. A statute requiring the payment of 
 a license fee for the privilege of purchasing 
 certain kinds of produce in a certain coun- 
 ty to be shipped out of it, which fee is 
 greater in the case of nonresidents of the 
 county than of residents, is not obnoxious 
 to U. S. Const, art. 4, 2, entitling citi- 
 zens of each state to all the privileges and 
 immunities of the citizens of the several 
 states. Rothermel v. Meyerle, 136 Pa. 250, 
 20 Atl. 583, 9: 366 
 
 373. A borough ordinance which discrimi-
 
 CONSTITUTIONAL LAW, II. a, 2. 
 
 585 
 
 nates against nonresidents by prohibiting 
 all persons from peddling or selling goods 
 from house to house without a license, 
 which is fixed at so high a figure that it 
 amounts to prohibition, but which excepts 
 residents of the borough from its provi- 
 sions, is void. The borough can have no 
 better right to adopt discriminating trade 
 regulations than the state has. Sayre v. 
 Phillips, 148 Pa. 482, 24 Atl. 76, 16: 49 
 
 Insurance. 
 As to Attorney's Fees, see infra, 581-584. 
 
 374. Confining the right to act as agent 
 for foreign insurance companies to resi- 
 dents of the state is not an unconstitu- 
 tional impairment of the privileges and 
 immunities of citizens of other states, since 
 corporations are not within the protection 
 of the provisions relating theretq, and per- 
 sons seeking to act for them can acquire 
 no greater rights than the corporations 
 have. Cook v. Howland, 74 Vt. 393, 52 Atl. 
 973, 59: 338 
 
 375. There is no unwarranted discrimina- 
 tion against citizens of other states in 
 Mich. Sess. Laws 1893, act No. 74, de- 
 claring it to be unlawful for any person to 
 
 ' solicit insurance within the state on prop- 
 erty within the state for any nonresident 
 persons without procuring from the com- 
 missioner of insurance the certificate of in- 
 surance provided for by the statute. Peo- 
 ple v. Qay, 107 Mich. 422, 65 N. W. 292, 
 
 30: 464 
 
 376. The discrimination between resident 
 and nonresident citizens in the provision 
 of Fla. Acts 1895, chap. 4380, 3, that no 
 foreign insurance company, association, 
 firm, or individual shall transact any in- 
 surance business in the state unless pos- 
 sessed of at least $150,000 invested in a 
 specified manner, without requiring any 
 such property condition in the case of do- 
 mestic, unincorporated associations, firms, 
 or individuals, violates U. S. Const, art. 
 4, 2, insuring to citizens of each state 
 all the privileges and immunities of citi- 
 zens in the several states. State ex rel. 
 Hoadley v. Board of Ins. Comrs. 37 Fla. 
 564, 20 So. 772, 33: 288 
 As to taxes. 
 
 377. A state tax law allowing to resi- 
 dents a deduction of debts without allow- 
 ing such deduction to nonresidents is a de- 
 nial of the equal privileges and immunities 
 of citizens guaranteed by U. S. Const, art. 
 
 4, 2. Sprague v. Fletcher, 69 Vt. 69, 37 
 Atl. 239, 37: 840 
 
 378. The privileges and immunities of 
 citizens of other states, guaranteed by U. 
 
 5. Const, art. 4, 2, and U. S. Const. 14th 
 Amend., are not violated by Conn. Gen. 
 Stat. 3836, 3916, taxing the resident 
 stockholders of certain corporations in the 
 town in which they reside, deducting from 
 the market value o"f the stock the value of 
 the capital invested in real estate on which 
 the company pays taxes, but imposing a 
 state tax on nonresident shareholders of 
 \V-y per cent on the market value of their 
 shares, without any provision for deduc- 
 tion of capital invested in real estate, since 
 
 this law is not a hostile discrimination 
 against citizens of other states in the en- 
 joyment of property rights common to all, 
 but provides for the state taxation of non- 
 resident stockholders because it is imprac- 
 ticable to subject them to the municipal 
 taxation that is imposed on the resident 
 stockholders. State v. Travelers' Ins. Co. 
 73 Conn. 255, 47 Atl. 299, 57: 481 
 
 Highways. 
 
 379. The fact that the owners of unim- 
 proved property may be nonresidents is no 
 excuse for making different provisions with 
 respect to the removal of snow from the 
 walks in front of such property from those 
 relating to improved property. McGuire v. 
 District of Columbia, 24 D. C. App. 22, 
 
 65: 430 
 
 380. Discrimination in favor of nonresi- 
 dents of a town or city, by a statute grant- 
 ing them partial or entire exemption from 
 penalties for allowing stock to run at large 
 in the streets, is not unconstitutional as a 
 grant of any "exclusive or separate emolu- 
 ments or privileges," or as a denial to any 
 person of the equal protection of the laws. 
 Boardfoot v. Fayetteville, 121 N. C. 418, 28 
 S. E. 515, 39: 245 
 As to trusts. 
 
 381. A statute prohibiting any person 
 who is not a bona hde resident of the state 
 to act or be appointed as a trustee in any 
 deed, mortgage, or other instrument in 
 writing, except wilts, is in violation of the 
 constitutional right of citizens of each state 
 to all the privileges and immunities of citi- 
 zens in the several states. Roby v. Smith. 
 131 Ind. 342, 30 N. E. 1093, 15: 792 
 As to dower. 
 
 382. There is no unconstitutional dis- 
 crimination against a nonresident widow, 
 under U. S. Const. 14th Amend., by making 
 a conveyance by her husband of his prop- 
 erty sufficient .to cut off her interest if she 
 was not then and never had been a resident 
 of the state. Buffington v. Grosvenor, 46 
 Kan. 730, 27 Pac. 137, 13: 282 
 Sheep from other state. 
 
 383. Discrimination between sheep 
 brought into the state and those which are 
 already therein, made by Id. Sess. Laws 
 1895, p. 125, and id. Sess. Laws 1897, p. 
 115, requiring all sheep, whether healthy 
 or not, to be dipped before they are brought 
 into the state at any time of year, while 
 sheep within the state are exempt from 
 dipping between December 1 ahd the time 
 when they are sheared in the following 
 spring, and also exempting ewes with lambs 
 between March 15 and May 15, consti- 
 tutes a violation of the equal privileges and 
 immunities of citizens in the several states. 
 State v. Duckworth, 5 Idaho, 642, 51 Pac. 
 456, 39: 365 
 Right to sue. 
 
 384. The right of a nonresident to sue 
 in the courts of a state is not one of the 
 privileges and immunities granted to citi- 
 zens of the several states by Fed. Const, 
 art. <, 2. Robinson v. Ocean Steam Nav. 
 Co. 112 N. Y. 315, 19 N. E. 625, 2: 636 
 
 385. The right of citizens of other states
 
 586 
 
 CONSTITUTIONAL LAW, II. a, 3. 
 
 to bring suit in a state court, where a 
 citizen of that state may, is guaranteed 
 and protected by U. S. Const, art. 4, 
 
 2. Cofrode v. Gartner, 79 Mich. 332, 44 N. 
 W. 623, 7: 511 
 
 6. Aliens. 
 
 Contract Not to Rent to Chinese, see Con- 
 tracts, 382. 
 
 Special Legislation as to, see Statutes, 
 294. 
 
 See also infra, 462, 562. 
 
 For Editorial Notes, see infra, III. 7. 
 
 386. A state's denial to persons not citi- 
 zens of the United States of the right to 
 obtain licenses .to sell spirituous liquors 
 within its borders is not a discrimination 
 against them, or an abridgment of their 
 rights within the prohibition of the 14th 
 Amendment of the Constitution of the 
 United States. Tragesser v. Gray, 73 Md. 
 250, 20 Atl. 905, . 9: 780 
 
 387. A statute providing that the estates 
 of insane persons who have no heirs with- 
 in the United States dependent upon their 
 estates for support shall be chargeable 
 with the expense incurred by any county 
 for the treatment and maintenance of such 
 insane persons in a hospital for the insane, 
 but not imposing such liability upon the 
 estates of those who have heirs in the Unit- 
 ed States dependent an such estates for 
 support, does not violate constitutional 
 provisions against private or special laws, 
 or laws granting to any citizen or class of 
 citizens privileges or immunities which, 
 upon the same terms, shall not equally be- 
 long to all citizens. Bon Homme County 
 v. Berndt, 13 S. D. 309, 83 N. W. 333, 
 
 50: 351 
 
 3. As to Corporations, Associations, and 
 
 Carriers. 
 
 a. In General. 
 
 Inviolability of Corporate Property, see Col- 
 leges, 5. 
 
 Special Legislation as to, see Statutes, 302- 
 314. 
 
 See also supra, 60, 354, 355; infra, 547, 563, 
 572, 573. 
 
 For Editorial Notes, see infra, III. 7. 
 
 388. Corporations as well as individuals 
 are entitled to equal protection of the laws 
 under U. S. Const. 14th Amend. Luman v. 
 Hitchins Bros. Co. 90 Md. 14, 44 Atl. 1051, 
 
 46: 393 
 
 389. A constitutional guaranty of equal 
 rights and privileges to all free men does 
 not apply to corporations. Union C. L. Ins. 
 Co. v. Chowning, 86 Tex. 654, 26 S. W. 982, 
 
 24: 504 
 
 390. Corporations are not citizens within 
 the meaning of the provisions of U. S. 
 Const, art. 4, 2, and U. S. Const. 14th 
 Amend. 1, respecting equal privileges 
 and immunities of citizens. Hawlev v. 
 "Hurd, 72 Vt. 122, 47 Atl. 401, 52*: 195 
 
 391. Corporations are not citizens within 
 the meaning of the 14th Amendment of the 
 Federal Constitution respecting the privi- 
 leges and immunities of citizens. Daggs v. 
 Orient Ins. Co. 136 Mo. 382, 38 S. W. 85, 
 
 35: 227 
 
 392. A corporation is neither a citizen 
 of the United States nor a person within 
 the protection of U. S. Const. 14th Amend. 
 1. State, Curtis v. Brown & S. Mfg. Co. 
 18 R. I. 16, 25 Atl. 246, 17: 856 
 
 393. To justify the treatment of corpora- 
 tions as a class for the purpose of legisla- 
 tion the classification must be founded up- 
 on differences either defined by the Consti- 
 tution, or natural, or which will suggest a 
 reason which might naturally be held to 
 justify the diversity of legislation. John- 
 son v. Goodyear Min. Co. 127 Cal. 4, 59 
 Pac. 304, 47 : 338 
 
 394. A corporation not created by a state, 
 or doing business there under conditions 
 that subject it to process issuing from the 
 courts of that state, is not within its juris- 
 diction so as to be entitled to the equal 
 protection of the laws, guaranteed by U. 
 S. Const. 14th Amend. 1. Hawley v. 
 Kurd, 72 Vt. 122. 47 Atl. 401, 52: 195 
 
 395. Renewing the special privileges and 
 immunities contained in an old special 
 charter of a corporation is a violation of 
 Ind. Const, art. 1, 23, prohibiting the 
 grant to any citizen or class of citizens of 
 privileges or immunities which, upon the 
 same terms, shall not belong to all citi- 
 zens. Bank of Commerce v. Wiltsie, 153 
 Ind. 460, 53 N. E. 950, 47: 489 
 
 396. A statute imposing certain duties 
 and liabilities upon one class of corpora- 
 tions only does not deny them the equal 
 protection of the laws if the peculiar char- 
 acter of the business of those corporations 
 is sufficient to justify the discrimination. 
 St. Louis, I. M. & S. R. Co. v. Paul, 64 
 Ark. 83, 40 S. W. 705, 37: 504 
 
 397. A constitutional provision against 
 granting to any corporation any special 
 or exclusive privilege is not infringed by 
 an act allowing trustees, etc., to charge 
 the estate a reasonable sum which they 
 may have paid "to a company" authorized 
 by law to do so, for becoming surety on 
 their bonds. Re Clark, 195 Pa. 520, 46 Atl. 
 127, 48: 587 
 
 398. A denial of the right of a corpora- 
 tion incorporated in another state . to re- 
 move a cause into a Federal court, on the 
 ground of diverse citizenship, from a court 
 of North Carolina in which it has been sued 
 by a citizen of the latter state, on the 
 ground that the corporation has become a 
 domestic corporation under Pub. Laws 1899, 
 chap. 62, as it was compelled to do in or- 
 der to obtain the privilege of doing busi- 
 ness in that state, does not deprive the cor- 
 poration of any rights under the Federal 
 Constitution as a citizen of the United 
 States, or deny it due process of law or 
 the equal protection of the laws. Debnam 
 v. Southern Bell Teleph. & Teleg. Co. 126 
 N. C. 831, 36 S. E. 269, 65: 915 
 
 399. That a corporation is engaged in a
 
 CONSTITUTIONAL LAW, II. a, 3. 
 
 587 
 
 business which an individual might carry 
 on without payment of any tax or license 
 fee does not render the imposition of a tax 
 upon its franchises an unlawful discrimi- 
 nation prohibited by U. S. Const., Amend. 
 14. Bank of California v. San Francisco, 
 142 Cal. 276, 75 Pac. 832, 64: 918 
 
 As to building and loan associations. 
 Special Legislation as to, see Statutes, 
 296. 
 
 400. Statutes exempting building and 
 loan associations from the operation of the 
 usury law are not unconstitutional as class 
 legislation. Iowa Sav. & L. Asso. v. Heidt, 
 107 Iowa, 297, 77 N. W. 1050, 43: 689 
 
 401. A statute incorporating a building 
 and loan association, providing that "no 
 dues, premiums, interest, or fines, that may 
 accrue to the association in accordance with 
 its charter shall be deemed usurious," is in 
 violation of the fundamental law, as an at- 
 tempt to confer special privileges on such 
 association. Henderson Bldg. & L. Asso. v. 
 Johnson, 88 Ky. 191, 10 S. W. 787, 3: 289 
 
 402. A statute which confers power on 
 building and loan associations "to assess 
 and collect from members and depositors 
 such dues, fines, interest, and premium on 
 loans made, or other assessments, as may 
 be provided for in the constitution and by- 
 laws;" and which further provides that 
 "such dues, fines, premiums, or other as- 
 sessments shall not be deemed usury, al- 
 though in excess of the legal rate of inter- 
 est," is not in conflict with Ohio Const, 
 art. 2, 26, requiring all laws to have a 
 uniform operation, or art. 1, 2, forbidding 
 the grant of special privileges or immuni- 
 ties. Cramer v. Southern Ohio L. & T. Co. 
 72 Ohio St. 395, 74 N. E. 200, 69: 415 
 
 403. A statute giving mortgages to build- 
 ing and loan associations priority over other 
 liens upon the mortgaged property filed sub- 
 sequent to the recording of the mortgage 
 is not void as depriving anyone of the 
 equal protection of the laws. Julien v. 
 Model Building, L. & I. Asso. 116 Wis. 79, 
 92 N. W. 561, 61: 668 
 
 404. The equal protecton of the laws is 
 not denied to foreign building and loan 
 associations doing business within the 
 state, by Ky. Stat. 4228, requiring such 
 associations to pay into the treasury an- 
 nually 2 per cent of their annual gross re- 
 ceipts. Southern Bldg. & L. Asso. v. Nor- 
 man, 98 Ky. 294; 32 S. W. 952, . 31 : 41 
 Insurance companies. 
 
 Allowance of 'Attorney's Fees against, see 
 infra, 581-584. 
 
 Discrimination against as Defense to Ac- 
 tion against, see Action or Suit, 59. 
 
 Due Process of Law as to, see infra. 698, 
 699, 739, 740. 
 
 Police Power as to, see infra, 1009. 
 
 See also supra, 374-376, 378. 
 
 405. The constitutional rights of citizens 
 to engage in business are not violated by 
 restricting insurance business to corpora- 
 tions. Com. v. Vrooman, 164 Pa. 306, 30 
 Atl. 217, 25: 250 
 
 406. A statute is not void for granting 
 
 special rights, privileges, immunities, or ex- 
 emptions, which, by not being applicable 
 to companies doing business on the assess- 
 ment plan, thereby exempts them from a 
 provision that false representations in ap- 
 plications for life or casualty insurance 
 shall not avoid the policy unless made with 
 actual intent to deceive or unless they in- 
 crease the risk. Fidelity & C. Co. v. Free- 
 man, 48 C. C. A. 692, 109 Fed. 847, 54: 680 
 
 407. The exemption of the proceeds of a 
 certificate of a fraternal beneficiary asso- 
 ciation from liability for the debts of the 
 holder or beneficiary, made by Ohio act 
 April 27, 1896 (92 Ohio Laws, 360), is 
 invalid because it confers upon such so- 
 cieties and their members a special privilege 
 not given to other insurance companies and 
 benefit societies, and is in violation of Ohio 
 Const, art. 2, 1, as a denial of the equal 
 protection of the laws. Williams v. Don- 
 ough, 65 Ohio St. 499, 63 N. E. 84, 56: 766 
 
 408. Excepting insurance upon cotton in 
 bales from the provision in Tenn. Acts Gen. 
 Assem. 1893, chap. 107, 1, making void all 
 stipulations limiting liability to less than 
 the full amount of loss, if this does not ex- 
 ceed the amount of insurance, does not make 
 an arbitrary, unreasonable, and unnatural 
 classification in violation of Tenn. Const, 
 art. 11, 8. Dugger use of Second Nat. 
 Bank v. Mechanics' & T. Ins. Co. 95 Tenn. 
 245, 32 S. W. 5, 28: 796 
 
 409. An insurance company is not denied 
 the equal protection of the laws by a stat- 
 ute which in effect limits the liability of a 
 railroad company for fires to the difference 
 between the amount of loss and the amount 
 of insurance on the property destroyed, 
 thus depriving the insurer of the benefit of 
 subrogation. Leavitt v. Canadian P. R. Co. 
 90 Me. 153, 37 Atl. 886, 38: 152 
 
 410. The equal protection of the laws is 
 not denied by Tenn. Acts Gen. Assem. 1893, 
 chap. 107, 1, making void all stipulations 
 in insurance policies limiting liability to 
 less than the full amount of loss if this 
 does not exceed the amount of insurance. 
 Dugger use of Second Nat. Bank v. Me- 
 chanics' & T. Ins. Co. 95 Tenn. 245, 32 S. 
 W. 5, 28: 796 
 
 411. A statute imposing a penalty upon 
 a fire insurance company for refusal, in 
 bad faith, to pay the amount due upon a 
 policy, and also a like penalty upon an 
 insured who institutes an action in bad 
 faith, is not void as a special regulation of 
 the business of insurance, which no dif- 
 ferences between that and other kinds of 
 business justify. Continental Fire Ins. Co. 
 v. Whitaker, 112 Tenn. 151, 79 S. W. 119, 
 
 64: 451 
 Telegraph companies. 
 
 412. A statute rendering telegraph com- 
 panies liable for mental anguish caused 
 by failure to promptly transmit and de 
 liver messages does not deprive them of 
 property without due process of law, or 
 deny them the equal protection of the 
 laws. Simmons v. Western U. Teleg. Co. 
 63 S. C. 425, 41 S. E. 521, 57: 607
 
 588 
 
 CONSTITUTIONAL LAW, It a, 3. 
 
 Street railways. 
 
 Special Legislation as to, see Statutes, 302, 
 
 303, 308. 
 
 See also infra, 566-568. 
 For Editorial Notes, see infra, III. 17. 
 
 413. A street railway company is not de- 
 nied the equal protection of the laws, or 
 due process of law, by giving it the privi- 
 lege of using tne streets only upon condi- 
 tions different from those which have been 
 imposed on other companies. Chicago Gen- 
 eral R. Co. v. Chicago, 176 111. 253, 52 N. E. 
 880, 66: 959 
 
 414. Requiring street car companies to 
 keep the surface of the streets between 
 their outer rails clean does not illegally 
 discriminate against, or cast the public 
 burden upon, them, where their tracks tend 
 to accumulate dirt, and make the crown of 
 the street flat, so as to render the cleaning 
 of the street much more difficult than it 
 otherwise would be. Chicago v. Chicago 
 Union Traction Co. 199 111. 259, 65 N. E. 
 243, 59: 666 
 
 b. Railroad Companies; Carriers. 
 
 Due Process of Law as to Right of Action 
 or Defense against, see infra, II. b, 7, 
 b, (1), (b). 
 
 Police Power as to, see infra, 1014, 1015. 
 
 Unconstitutionally as to Third Person as 
 Defense, see Action or Suit, 58. 
 
 Special Legislation as to, see Statutes, SOS- 
 SIS. 
 
 See also supra, 356, 368; infra, 561, 571, 
 575-580. 
 
 For Editorial Notes, see infra, III. 7. 
 
 415. Railway companies are persons with- 
 in the provisions of U. S. Const. 14th 
 Amend. 1, r^'ating to due process of law 
 and the equal protection of the laws. Cleve- 
 land, C. C. & St. L. R. Co. v. Backus, 133 
 Ind. 513, 33 N. E. 421, 18: 729 
 
 416. Railroad corporations are persons 
 within the constitutional provisions as to 
 equal privileges and immunities of citizens 
 and the equal protection of persons. Pitts- 
 burgh, C. C. & St. L. R. Co. v. Montgomery, 
 152 Ind. 1, 49 N. E. 582, 69: 876 
 
 417. A statute forbidding any officer of 
 a railroad or mining corporation to con- 
 duct or be interested in any mercantile 
 business in a certain county, without mak- 
 ing such a restriction on the officers of 
 other corporations, is in violation of the 
 constitutional guaranty of the equal pro- 
 tection of the laws. Luman v. Ilitchins 
 Bros. Co. 90 Md. 14, 44 Atl. 1051, 46: 393 
 
 418. An exception of all railroads char- 
 tered before a certain date, from the provi- 
 sions of a statute of limitations, does not 
 deny them the equal protection of the laws. 
 Narron v. Wilmington & W. R. Co. 122 N. 
 C. 856, 29 S.'E. 356, 40: 415 
 
 419. A statute requiring a report on a 
 blackboard as to whether trains are on 
 time, at every station where there is a 
 telegraph office, is not unconstitutional as 
 lass legislation, where it applies uniform- 
 ly to all persons operating railroads and to 
 
 the same class of stations. State v. Indi- 
 ana & I. S. R. Co. 133 Ind. 69, 32 N. E. 
 817, 18: 502 
 
 420. The free transportation of shippers 
 of stock to and from the destination of the 
 stock, which is required of railroad com- 
 panies by Kan. Laws 1897, chap. 167, is in 
 violation of the constitutional guaranties 
 of due process of law and of the equal pro- 
 tection of the laws. Atchison, T. & S. F. 
 R. Co. v. Campbell, 61 Kan. 439, 59 Pac. 
 1051, 48: 251 
 Rates. 
 
 Due Process of Law as to, see infra, 741- 
 
 745. 
 Special Legislation as to, see Statutes, 302, 
 
 303. 
 For Editorial Notes, see infra, III. 17. 
 
 421. Only when rates of fare are so 
 unreasonable as to make the enforcement 
 of the law establishing them equivalent to 
 taking property without compensation, will 
 the corporation be held to have been de- 
 prived of its property without due pro- 
 cess of law, or denied the equal protection 
 of the laws. Chicago Union Traction Co. v. 
 Chicago, 199 111. 484, 65 N. E. 451, 59: 631 
 Sale of tickets. 
 
 Due Process of Law as to, see infra, 751- 
 
 753. 
 
 Police Power as to, see infra, 1016. 
 See also Carriers, 1019, 1020. 
 
 422. A statute allowing the sale of car- 
 riers' tickets only by agents appointed in a 
 particular manner, and providing for the 
 redemption of unused tickets, is not uncon- 
 stitutional as class legislation granting 
 special privileges to carriers. State v. Cor- 
 bett, 57 Minn. 345, 59 N. W. 317, 24: 498 
 
 423. The privileges or immunities of citi- 
 zens under the Federal Constitution, or un- 
 der the Constitution of Illinois, which pro- 
 vides that the general assembly shall not 
 pass special laws granting any special or ex- 
 clusive privilege, immunity, or franchise, are 
 not infringed by a statute prohibiting the 
 sale of railroad or steamboat tickets with- 
 out a certificate of authority from the car- 
 rier, except when one who has bought a 
 ticket from such agent with the bona fide 
 intention of traveling upon it makes the 
 sale. Burdick v. People, 149 111. 600, 36 
 N. E. 948, 24: 152 
 Smoke. 
 
 As to Smoke Generally, see supra, 347. 
 
 424. The exclusion of locomotive engines 
 and steamboats from the provisions of a 
 statute making the emission of dense smoke 
 into the air a penal offense Is not void as 
 denying the persons to whom it applies 
 the equal protection of the law. State 
 v. Tower, 185 Mo. 79, 84 S. W. 10, 68: 402 
 Causing death or injury. 
 
 425. A statute giving a right of action 
 against railroad companies only, for negli- 
 gence causing death, is not unconstitution- 
 al as denying to such corporations the equal 
 protection of the law. Louisville Safety 
 Vault & T. Co. v. Louisville & N. R. Co. 
 92 Ky. 233, 17 8. W. 567, 14: 579 
 
 420. A statute making a railroad com- 
 pany liable for injuries to servants through
 
 CONSTITUTIONAL LAW, II. a. 4. 
 
 589 
 
 the negligence of fellow servants does not 
 violate the equality clause of the Federal 
 Constitution, although it does not confine 
 such liability to acts performed in the 
 operation of trains, but extends it to risks 
 similar to those incurred by the employees 
 of persons or corporations engaged in other 
 lines of work. Call, ban v. St. Louis Mer- 
 chants' Bridge T. R. Co. 170 Mo. 473, 71 S. 
 W. 208, 60: 249 
 
 427. A statute making railway companies 
 liable to employees for negligence of fellow 
 servants must, to avoid the imputation of 
 class legislation, be construed to apply only 
 to the peculiar hazards incident to the use 
 and occupation of railroads, and injuries 
 resulting from such dangers. Johnson v. 
 St. Paul & D. R. Co. 43 Minn. 2,22, 45 N. 
 W. 156, < 8: 419 
 Killing stock. 
 
 Due Process of Law as to, see infra, 847- 
 851. 
 
 428. A railroad company is denied the 
 equal protection of the laws by a statute 
 attempting to create an absolute liability 
 for stock killed or injured by trains, and al- 
 lowing .the amount of recovery to be de- 
 termined without proof of the actual value 
 of the animals. Wadsworth v. Union P. 
 R. Co. 18 Colo. 600, 33 Pac. 515, 23: 812 
 Fires. 
 
 Due Process of Law as to, see infra, 843- 
 
 846. 
 Police Power as to, see infra, 952. 
 
 429. There is no constitutional objection 
 against making a railroad company abso- 
 lutely liable for the injury caused by fire 
 set out by its locomotives along the line of 
 its road. Campbell v. Missouri P. R. Co. 
 121 Mo. 340, 25 S. W. 936, 25: 175 
 
 430. The privileges or immunities of citi- 
 zens are not abridged by a statute making 
 railroad corporations liable for fires on its 
 right of way or set by its engines. Mc- 
 Candless v. Richmond & D. R. Co. 38 S. C. 
 103, 16 S. E. 429, 18: 440 
 
 431. The equal protection of laws is not 
 denied to railroad companies by a statute 
 making them liable for fires set by en- 
 gines without regard to negligence. Mat- 
 thews v. St. Louis & S. F. R. Co. 121 Mo. 
 298, 24 S. W. 591, 25: 161 
 
 [Aff'd by the Supreme Court of the 
 United States in 165 U. S. 1, 41 L. ed. 
 611, 17 Sup. Ct. Rep. 243.] 
 
 432. The equal protection of the law is 
 not denied to railroad corporations by stat- 
 utes making them liable for fires set by 
 their engines or upon their right of way 
 by the act of their agents or servants, and 
 giving them an insurable interest in the 
 property exposed to such loss. McCandless 
 v. Richmond & D. R. Co. 38 S. C. 103, 16 
 S. E. 429, 18: 440 
 
 433. No restraints, disqualifications, or 
 burdens are placed upon, or discriminations 
 made against, railroad corporations, within 
 the prohibition of S. C. Const, art. 1, 12, 
 by a statute applicable only to the ope- 
 rators of railroads, making them liable for 
 all fires set out by their engines or on 
 
 their rights of way, if it applies equally 
 and uniformly to them. Id. 
 
 434. A statute making every railroad 
 corporation liable for all damages by fire 
 caused by operating its road is, in view 
 of the fact that all railroads are run by 
 corporations, properly construed to apply to 
 all persons operating a railroad, whether 
 technically incorporated or not, and there- 
 fore does not unjustly discriminate against 
 corporations. Union P. R. Co. v. DeBusk, 
 12 Colo. 294, 20 Pac. 752, 3: 350 
 Taxes. 
 
 435. A railroad company is not denied 
 the equal protection of the laws in the as- 
 sessment of its property because original 
 jurisdiction of the assessment and valu- 
 ation is given to a state board of tax com- 
 missioners which has power to hear griev- 
 ances and make corrections, instead of be- 
 ing given in the first instance to a county 
 board, as in the case of other property, 
 with the right of appeal to the state board. 
 Cleveland, C. C. & St. L. R. Co. v. Backus, 
 133 Ind. 513, 33 N. E. 421, 18: 729 
 
 436. The fire tax imposed by Kan. Laws 
 1895, chap. 263, is in violation of the con- 
 stitutional provision for equal protection 
 of the laws, because railroad companies are 
 excluded by the provisions of the law from 
 its benefits, although their property is sub- 
 ject to the tax. Atchison, T. & S. F. R. 
 Co. v. Clark, 60 Kan. 826, 58 Pac. 477, 
 
 47: 77 
 
 437. The exemption from road duty of 
 the employees of a certain railroad corpora- 
 tion will not be held unconstitutional as 
 the grant of a special privilege to particular 
 persons, where it does not appear that the 
 purpose of the legislature was not to pro- 
 vide for the safety and security of the 
 persons and property carried by such com- 
 pany. State v. Womble, 112 N. C. 862, 17 
 S. E. 491, 19: 827 
 
 4. As to Taxes and Assessments. 
 
 Against Railroad Companies, see supra, 435- 
 437. 
 
 As to License Taxes, see infra, II. a, 5. 
 
 Due Process of Law as to, see infra, II. b, 
 3, 881-889. 
 
 Right of Appeal on Ground that Constitu- 
 tional Question Involved, see Appeal 
 and Error, 67. 
 
 As to Uniformity of Assessments General- 
 ly, see Public Improvements, 54-62. 
 
 As to Equality and Uniformity of Taxation, 
 see Taxes, I. c; V. b. 
 
 Special Legislation as to, see Statutes, 281, 
 361-366, 375. 
 
 As to Taxes Generally, see Taxes. 
 
 See also supra, 377, 378, 404, infra, 562, 657, 
 662, 671. 
 
 For Editorial Notes, see infra, III. 7. 
 
 438. The equal protection of the laws is 
 not denied by a statute permitting the 
 deduction of mortgage indebtedness to the 
 extent of $700 from the assessed value of 
 real estate. State ex rel. Lewis v. Smith, 
 158 Ind. 543, 63 N. E. 25, 63: 116 
 
 439. The taxation by a state of debts due
 
 590 
 
 CONSTITUTIONAL LAW, II. a. 5. 
 
 by solvent debtors is not forbidden by the 
 clause of the amendment to the Federal 
 Constitution forbidding any state to deny 
 to any person the equal protection of the 
 laws, although no tax is laid on debts 
 due by insolvents. Kingsley v. Merrill, 
 122 Wis. 185, 99 N. W. 1044, 67: 200 
 
 Succession tax. 
 Due Process of Law as to, see infra, 665- 
 
 667. 
 Uniformity of Succession Tax Generally, 
 
 see Taxes, V. b. 
 
 440. The right to transmit property at 
 death free from a succession tax is not 
 within the constitutional right of acquir- 
 ing, possessing, and protecting property. 
 State v. Hamlin, 86 Me. 495, 30 Atl. 76, 
 
 25: 632 
 
 441. An inheritance tax does not deny to 
 anyone the equal protection of the laws 
 because it exempts estates less than $7,500 
 each. State ex rel. Gelsthorpe v. Furnell, 
 20 Mont. 299, 51 Pac. 267, 39: 170 
 
 442. The provision of U. S. Const. 14th 
 Amend. 1, that no state shall deny to 
 any person within its jurisdiction the 
 equal protection of the laws, is not broader 
 than the provision of the Ohio Bill of 
 Rights, 2, that government is instituted 
 for the equal protection and benefit of the 
 people; and a statute imposing an inheri- 
 tance tax authorized by the latter provision 
 will not conflict with the former. State 
 ex rel. Schwartz v. Ferris, 53 Ohio St. 314, 
 41 N. E. 579, 30: 218 
 
 443. A tax on gifts, legacies, and collater- 
 al inheritances, which operates alike on all 
 property and persons similarly situated, 
 and which is made by a judicial officer, 
 after notice and opportunity to be heard, 
 does not conflict with the provisions of U. 
 S. Const. 14th Amend. Wallace v. Meyers, 
 38 Fed. 184, 4: 171 
 
 444. A collateral-inheritance tax statute 
 which exempts from its provisions domes- 
 tic institutions organized for purely char- 
 itable purposes, but does not exempt such 
 Institutions when incorporated in other 
 states, even though some of their charitable 
 work is carried on within the state, is not 
 obnoxious to the Ohio Bill of Rights, . 
 2, forbidding the grant of special privi- 
 leges or immunities, or to the provision of 
 U. S. Const. 14th Amend., against the 
 abridgment of privileges or immunities of 
 citizens and the denial of the equal protec- 
 tion of the law. Humphreys v. State 
 (Ohio) 70 N. E. 957, 65: 776 
 
 445. The exemption by the Ohio inherit- 
 ance tax law of April 20, 1894, of estates 
 of $20,000 and under from all taxation, 
 while no exemption is allowed estates ex- 
 ceeding such amount, and the taxation of 
 larger estates at a higher rate than smaller 
 ones, renders the act unconstitutional as 
 violating the Ohio Bill of Rights, & 2, de- 
 claring that all political power is inherent 
 in the people, i:nd that government is in- 
 stituted for their equal protection and bene- 
 fit. State ex rel. Schwartz v. Ferris, 53 
 Ohio St. 314, 42 N. E. 427, 30: 218 
 
 Assessments for local improvements. 
 
 Due Process of Law as to, see infra. 668- 
 
 673, 890-894. 
 Police Power as to, see infra, 951. 
 
 446. The extension of the time for pay- 
 ing an assessment for a local improvement, 
 in favor of those who waive objections to 
 its validity, does not deprive those who 
 fail to make the waiver, and who are there- 
 fore required to pay when the assessment 
 is due, of the equal protection of the laws. 
 Sisson v. Buena Vista County, 128 Iowa, 
 442, 104 N. W. 454, 70: 440 
 
 5. As to Regulation of Business; License. 
 a. In General. 
 
 As to Nonresidents or Aliens, see supra, 
 
 369-373. 
 Due Process of Law as to, see infra, II. 
 
 b, 4. 
 
 As to Fishing, see Fisheries, 7. 
 Uniformity and Equality as to License, 
 
 see License, II. d. 
 Special Legislation as to, see Statutes, 281, 
 
 349. 
 
 See also supra, 399; infra, 1025. 
 For Editorial Notes, see infra, III. 6, 7. 
 
 447. A statute avoiding a sale in bulk of 
 a stock of goods unless certain steps are 
 taken in favor of persons who have sold 
 good or loaned money for continuance of 
 the business, and rendering the vendee lia- 
 ble to pay their claims, is void as denying 
 other creditors the equal protection of the 
 laws. McKinster v. Sager, 163 Ind. 671, 
 72 N. E. 854, 68: 273 
 
 448. The legislature cannot confine the 
 use of low- test petroleum products for il- 
 luminating purposes to apparatus of one 
 maker, where there is other apparatus on 
 the market designed for the same use, 
 which is equally safe and secures the same 
 results, and where the Constitution pro- 
 hibits the grant to any citizen of privileges 
 or immunities which upon the same terms 
 shall not equally belong to all citizens. 
 State v. Santee, 111 Iowa, 1, 82 N. W. 445, 
 
 53: 763 
 
 449. An ordinance requiring a license 
 for the business of contracting for public 
 work is unconstitutional because it tends 
 to create a monopoly and increase the bur- 
 den of property owners, where the statutes 
 require the cost of improvements to be 
 assessed upon abutting owners by the 
 front foot. Figg v. Thompson, 105 Ky. 509, 
 49 S. W. 202, 44: 135 
 As to use of flag. 
 
 Due Process of Law as to, see infra, 767. 
 Police Power as to, see infra, 1007. 
 
 450. An unconstitutional discrimination 
 is made by the law which permits the use 
 of the national flag for public or private 
 exhibitions of art, but forbids its use, under 
 penalty, for advertising purposes generally. 
 Ruhstrat v. People, 185 111. 133, 57 N. E. 
 41, 49: 181 
 
 451. A state's forbidding the use of the 
 national flag for advertising purposes is an
 
 CONSTITUTIONAL LAW, II. a, 5, 
 
 591 
 
 \ interference with constitutional privileges 
 and immunities of citizens of the United 
 States. Id 
 
 Use of streets. 
 Special Legislation as to, see Statutes, 375. 
 
 452. A tax upon the privilege of using 
 city streets is not invalid because limited 
 to residents of the city. Ft. Smith v. 
 Scruggs, 70 Ark. 549, 69 S. W. 679, 58: 921 
 Cutting ice. 
 
 453. A statute which forbids the cutting 
 of ice on meandered lakes for shipment out 
 of the state, except upon procurement of 
 a license to do so and payment therefor, 
 but which permits the taking of ice with- 
 out compensation, for domestic consump- 
 tion, violates U. S. Const. 14th Amend., 
 guaranteeing to all people the equal pro- 
 tection of the laws. Rossmiller <v. State, 
 114 \Vis. 169, 89 N. W. 839, 58: 93 
 Mining rock. 
 
 454. A statute giving discretion to grant 
 or refuse a license to mine phosphate rock 
 in the beds of the navigable streams which 
 are held by the state in trust for the pub- 
 lic does not violate the 14th Amendment 
 of the United States Constitution by dis- 
 criminating against those to whom a li- 
 cense is refused, as the license is in the 
 nature of a special privilege, and not -a 
 right common to all. Port Royal Min. Co. 
 v. Hagood, 30 S. C. 519, 9 S. E. 686, 3: 841 
 Race courses. 
 
 Special Legislation as to, see Statutes, 328. 
 
 455. A statute allowing licenses for race 
 courses in the counties, towns, and cities in 
 which such race courses already exist, in the 
 discretion of the local authorities, but re- 
 quiring a three-fourths vote for a declara- 
 tion that it is a public necessity, in order 
 to license any new race course, is unconsti- 
 tutional as granting exclusive "privileges, 
 immunities, and franchises." State, Alex- 
 ander, Prosecutor, v. Elizabeth (N. J. Sup.) 
 56 N. J. L. 71, 28 Atl. 51, 23: 525 
 Garbage. 
 
 Police Power as to, see infra, 1006. 
 
 456. An exclusive privilege to one per- 
 son to collect and remove those noxious 
 and unwholesome substances which are 
 nuisances per se and a menace to public 
 health may be granted by a city as an ex- 
 ercise of the police power, and is not an 
 invasion of personal rights or an unlaw- 
 ful creation of a monopoly. Her v. Ross, 
 04 Neb. 710, 90 N. W. 869, 57: 895 
 
 457. A city cannot grant a monopoly to 
 one individual, by contract, to enter upon 
 the private premises of the inhabitants of 
 the city, and at their expense collect and 
 remove those innoxious substances, such 
 as ashes, cinders, stable manure, or other 
 substances not in themselves nuisances, 
 though, if allowed to accumulate in unrea- 
 sonable quantities, they would become such, 
 or which may be utilized for some benefi- 
 cial purpose, since such an attempted exer- 
 cise of power is an invasion of the personal 
 and property rights of the citizens, in re- 
 straint of trade, and unnecessarily creates 
 a monopoly. Id. 
 
 458. An ordinance making it unlawful to 
 
 engage in the business of a scavenger with- 
 out having a license, and giving to licensed 
 scavengers, two or more of whom shall be 
 appointed by the mayor, the exclusive priv- 
 ilege of cleaning privy vaults and cesspools 
 and removing garbage . from private prem 
 ises as well as from streets, is unconstitu- 
 tional as an attempt to create a monopoly 
 of a lawful calling, especially where the 
 Constitution provides that special privi- 
 leges or immunities shall not be granted by 
 any tribunal or agency except the legisla- 
 ture. Re Lowe, 54 Kan. 757, 39 Pac. 710, 
 
 27: 545 
 
 459. The exclusive privilege of removing 
 garbage, given by a municipal contract, is 
 not an exclusive franchise within Neb. 
 Const, art. 3, 15, prohibiting local or spe- 
 cial laws granting any special or exclusive 
 privilege, immunity, or franchise, but is 
 a mere sanitary arrangement within the 
 police power. Smiley v. MacDonald, 42 
 Neb. 5, 60 N. W. 355, 27: 540 
 
 460. A municipal contract for the removal 
 of garbage, giving the contractor an ex- 
 clusive right to remove it at a certain price 
 per pound, payable by the persons who pro- 
 duce the garbage, is simply a sanitary regu- 
 lation, which cannot be considered as in 
 the nature of a confiscation or an attempt to 
 create a monopoly. Walker v. Jameson, 140 
 Ind. 591, 37 N. E. 402, 39 N. E. 869, 28: 679 
 
 461. An ordinance requiring a license for 
 the doing of scavenger work in the city and 
 providing that all persons proposing to do 
 such work must submit bids, and that the 
 board of health shall decide who are compe- 
 tent bidders, and fixing the times at which 
 closets shall be cleaned, is void as in dero- 
 gation of common right, where no necessity 
 is shown therefor, and the effect would be 
 to prohibit property owners themselves from 
 removing the refuse from their own prem- 
 ises. State v. Hill, 126 N. C. 1139, 36 S. E. 
 326, 50: 473 
 Laundrymen. 
 
 462. The fact that Chinamen are engaged 
 in the hand laundry business does not make 
 invalid a statute imposing a license fee of 
 $25 on a male laundryman employing one 
 or more other persons in such business, while 
 the fee for a steam laundry is $15, where 
 the law in its terms applies to all male 
 laundrymen of every condition and national- 
 ity. State ex rel. Toi v. French, 17 Mont. 
 54, 41 Pac. 1078, 30: 415 
 Insurance agents. 
 
 463. The imposition of a license tax upon 
 insurance agents and solicitors representing 
 any insurance company not located within 
 the city is invalid because unequal, unjust, 
 and partial. Simrall v. Covington, 90 Ky. 
 444, 14 S. W. 369, 9: 556 
 Real estate dealers. 
 
 464. The exemption of real-estate dealers 
 and contractors, vhose business does not 
 amount to $1,000 per annum, from the op- 
 ration of an ordinance imposing a license 
 
 bax for the privilege of transacting business 
 is unconstitutional and void as class legis- 
 lation, where such contractors and dealers 
 are classified with other persons effecting
 
 592 
 
 CONSTITUTIONAL LAW, II. a, 5. 
 
 sales, to whom a similar exemption is not 
 allowed. Com. use of Titusville v. Clark, 
 195 Fa. 634, 46 Atl. 286, 57:348 
 
 Milk dealers; dairies. 
 See also infra, 682. 
 
 465. The equal protection of the laws is 
 not denied to persons who supply milk to 
 cities, towns, and villages for consumption, 
 by a statute compelling them to register 
 their herds or cattle with the live-stock 
 sanitary board, where it applies to all per- 
 sons of that class, though it does not apply 
 to every person who may occasionally sell 
 milk in the country, btate v. Broadbelt, 
 89 Md. 565, 43 Atl. 771, 45: 433 
 
 466. Equal protection of the laws is not 
 denied to milk dealers by requiring them to 
 furnish samples for analysis. State v. Du- 
 paquier, 46 La. Ann. 577, 15 So. 502, 
 
 26: 162 
 
 467. An ordinance of a municipality hav- 
 ing power to prohibit and regulate dairies 
 within the city limits, forbidding a dairy 
 within such limits unless permission for 
 their maintenance is obtained from the 
 city council, is not void as providing for spe- 
 cial privileges. St. Louis v. Fischer, 167 
 Mo. 654, 67 S. W. 872, 64: 679 
 Hiring persons to be employed outside of 
 
 state. 
 
 468. A discrimination in favor of per- 
 sons hiring laborers to be employed within 
 the state, by exempting them from a license 
 tax imposed upon those who are engaged in 
 hiring persons to be employed outside the 
 state, does not amount to a denial to the 
 latter of the equal protection of the laws. 
 Williams v. Fears, 110 Ga. 584, 35 S. E. 
 699, 50: 685 
 
 469. The right of a citizen to move from 
 one state to another is not so restricted as 
 to abridge his privileges or immunities as 
 a citizen of the United States, by a law 
 imposing a tax upon emigrant agents who 
 hire persons in the state for employment 
 outside the state. Id. 
 Humane society. 
 
 470. The privilege of a humane society to 
 keep dogs without paying any license fee, 
 which is conferred by N. Y. Laws 1896, 
 chap. 448, while every other citizen is 
 obliged to pay such fee, is the grant of an 
 exclusive privilege and immunity forbid- 
 den by N. Y. Const, art. 3, 18. Fox v. 
 Mohawk & H. R. Humane Soc. 165 N. Y. 
 517, 59 N. E. 353, 51: 681 
 Manufacturers or merchants. 
 
 Due Process of Law as to, see infra, 756- 
 
 761. 
 See also infra, 761. 
 
 471. A law requiring manufacturers of 
 baking powder to affix a label to every box 
 or can containing the name and residence of 
 the manufacturer and a statement of the 
 ingredients of which the powder is com- 
 posed (Minn. Gen. Laws 1899, chap. 245), 
 is not class legislation, or an infringement 
 upon private rights, but is a valid exercise 
 <>f the police power. State v. Sherod, 80 
 Minn. 446, 83 N. W. 417, 50: 660 
 
 472. A regulation of temporary or tran- 
 sient dealers is not invalid as class legisla- 
 tion. State v. Foster, 22 R. I. 163, 46 Atl. 
 833, 50: 339 
 
 473. An ordinance applying to all tran- 
 sient merchants, requiring a license fee, is 
 not unconstitutional as class legislation. 
 Ottumwa v. Zekind, 95 Iowa, 622, 64 N. W. 
 1646, 29: 734 
 
 474. The provision of U. S. Const. 14th 
 Amend., that no state shall deny to any 
 person "the equal protection of the law," 
 is not violated by a state statute imposing 
 a specific tax on persons engaged in the 
 conduct of, a particular business, where all 
 persons of a particular class designated and 
 described by the special occupation in 
 which they engage are subjected to the 
 same specific tax. Singer Mfg. Co. v. 
 Wright, 97 Ga. 114, 25 S. E. 249, 35: 497 
 
 475. A statute authorizing the mayor and 
 certain other officers to issue a license "to 
 such persons as they find proper persons to 
 engage in a temporary or transient busi- 
 ness," for a fee not less than $1 nor more 
 than $100 as the authority issuing such 
 license may direct, and making such busi- 
 ness a misdemeanor except in the sale of 
 products of a farm or the sea, is, so far as 
 it applies to ordinary and lawful business, a 
 violation of the Connecticut Bill of Rights, 
 declaring that all men "are equal in rights, 
 and that no man or set of men is entitled 
 to exclusive public emoluments or privileges 
 from the community." State v. Conlon, 65 
 Conn. 478, 33 Atl. 519, 31: 55 
 
 476. The provision in an ordinance re- 
 quiring a license tax from all dealers or 
 vendors of merchandise, that no manufac- 
 turer who is a citizen of the municipality 
 shall be considered a dealer or vendor unless 
 he sells goods not of his own manufacture, 
 is a proper classification and a valid exer- 
 cise of legislative power. Com. use of Titus- 
 ville v. Clark, 195 Pa. 634, 46 Atl. 286, 
 
 57: 348 
 
 477. An ordinance imposing a license tax 
 on all merchants who use any stamps, 
 coupons, tickets, cards, or other devices for 
 the sale of goods, which entitle the pur- 
 chaser to procure any goods free of charge 
 from any other firm or corporation, does not 
 impose a burden upon a portion, and not the 
 whole of a class of merchants in violation 
 of the constitutional provision against 
 granting to any citizen or class of citizens 
 privileges or immunities which shall not 
 equally belong to all citizens, since the or- 
 dinance applies to all who see fit to use 
 tickets of that kind. Fleetwood v. Read, 
 21 Wash. 547, 58 Pac. 665, 47: 205 
 Peddlers, commission merchants, etc. 
 Police Power as to, see infra, 1023, 1024. 
 See also supra, 371, 373. 
 
 478. An act requiring all merchants who 
 sell farm produce on commission to execute 
 a bond in the penal sum of $5,000, condi- 
 tioned for the faithful performance of their 
 contracts, is unconstitutional as class legis- 
 lation and as an unjustifiable interference 
 with the right of citizens to carry on legiti-
 
 CONSTITUTIONAL LAW, II. a, 5. 
 
 mate business. People ex rel. Valentine v. 
 Coolidge, 124 Mich. 664, 83 N. W. 594, 
 
 50: 493 
 
 479. An exception of dealers in grain, live 
 stock, and dressed meats fro.m the provi- 
 sions of Hi. act April 24, 1899, requiring 
 commission merchants in cities of more than 
 50,000 population to be licensed, is not un- 
 constitutional as an arbitrary discrimina- 
 tion, since the classification in this case is 
 a natural one, as the commission merchants 
 subject to the act deal in the small products 
 of the farm, while other laws provide for the 
 inspection of grain, live stock, and dressed 
 meats. Lasher v. People, 183 111. 226, 55 
 N. E. 663, 47 : 802 
 
 480. The peculiar characteristics of agri- 
 cultural products and farm produce, and the 
 liability to peculiar abuses resulting from a 
 sale thereof on commission, are such as to 
 suggest the practical necessity for distinc- 
 tive legislation on the subject, different 
 from what would be expedient or necessary 
 in the case of other property sold on com- 
 mission, and to justify the legislature, in 
 its discretion, in putting those who sell 
 them on commission in a class by them- 
 selves. State ex rel. Beek v. Wagener, 77 
 Minn. 483, 80 N. W. 633, 46: 442 
 
 481. The exemption from a statute to li- 
 cense and regulate hawkers and peddlers, 
 manufacturers, mechanics, nurserymen, 
 farmers, and butchers, who sell their own 
 manufactures, or the products of their own 
 nurseries or farms, makes an arbitrary dis- 
 tinction between the peddling by those per- 
 sons and by a 'purchaser from them, and is 
 therefore in violation of Minn. Const, art. 
 4, 33, 34, prohibiting partial class legis- 
 lation. State ex rel. Luria v. Wagener, 69 
 Minn. 206, 72 N. W. 67, 38: 677 
 
 482. A statute requiring itinerant vend- 
 ors who go from place to place and tempo- 
 rarily occupy rooms for the exhibition and 
 sale of goods, to pay a state license of $25 
 and deposit $500 with the state treasurer as 
 security, and then to pay in addition a local 
 license fee in each place in which they sell 
 goods, amounting to a tax on the value of 
 their stock of goods according to the rate 
 of the last preceding assessment of taxes in 
 that place, is not unconstitutional, al- 
 though it is oppressive. State v. Harring- 
 ton. 68 Vt. 622, 35 Atl. 515, 34: 100 
 
 483. The provision of the charter of the 
 village of Allegan, Michigan, that the board 
 of trustees shall have full power to license 
 and regulate hawkers, hucksters, and ped- 
 dlers, will not validate the by-law requiring 
 a license fee from persons selling fresh meat 
 in the streets in less than specified quanti- 
 ties, where the sale of no other food what- 
 ever is licensed. Such a by-law is an exer- 
 cise of arbitrary class legislation for the 
 benefit of shopkeepers, and is not an exer- 
 cise of police power in the interest of the 
 public health. Chaddock v. Day, 75 Mich. 
 527, 42 N. W. 977, 4: 809 
 
 484. The exemption of honorably dis- 
 charged soldiers of the Rebellion, citizens of 
 the state, from the provisions of a statute 
 requiring peddlers to pay a license tax, 
 
 L.R.A. Dig. 38. 
 
 is a denial of the equal protection of the 
 laws, within the prohibition of U. S. Const. 
 Amend. 14. State v. Shedroi, 75 Vt. 277, 54 
 Atl. 1081, 63: 179 
 
 485. The exemption of persons who have 
 served in the Union Army or Navy from the 
 operation of Iowa Code, 1347, requiring 
 all persons peddling goods outside of a city 
 or town to pay a license tax, renders the 
 statute void as in violation of Iowa Const, 
 art. 1, 6,. providing that all laws of a gen- 
 eral nature shall have a uniform operation, 
 and that no privileges or immunities shall 
 be granted to any citizen or class of citizens 
 which shall not equally belong, upon the 
 same terms, to all citizens, as the classifi- 
 cation attempted is based on no apparent 
 necessity, or difference in conditions or cir- 
 cumstances, and is opposed to the spirit of 
 free government. State v. Garbroski, 111 
 Iowa, 496, 82 N. W. 959, 56: 570 
 Intoxicating liquors. 
 
 Due Process of Law as to, see infra, 754-757. 
 Police Power as to, see infra, 1076-1078. 
 Special Legislation as to, see Statutes, 376- 
 
 380. 
 
 See also supra, 317-319, 321, 386. 
 For Editorial Notes, see infra, III, 7. 
 
 486. A person who is denied a remedy in 
 the courts for the purchase price of liquors 
 sold to enable the vendee to resell them in 
 violation of law is not, for that reason, de- 
 nied the equal protection of the laws. Cor- 
 bin v. Houlehan, 100 Me. 246, 61 Atl. 131, 
 
 70: 568 
 
 487. The inalienable rights of citizens to 
 life, liberty, and property do not include the 
 right to sell intoxicating liquors; nor is this 
 one of the privileges or immunities of a citi- 
 zen of the United States. State ex rel. 
 George v. Aiken, 42 S. C. 222, 20 S. E. 221, 
 
 26: 345 
 
 488. The validity of an exercise by a state 
 of its police power in regulating the sale of 
 spirituous liquors does not in the least de- 
 gree depend on any question as to the pres- 
 ence or absence of discrimination for or 
 against particular persons or classes of per- 
 sons. The legislature may lawfully grant 
 the right to sell to a certain class or classes 
 of persons, and withhold it from all others. 
 Tragesser v. Gray, 73 Md. 250, 20 Atl. 905, 
 
 9: 780 
 
 489. The police power does not warrant 
 an arbitrary discrimination between indi- 
 viduals in regulating the sale of intoxicat- 
 ing liquors, although as between liquor sell- 
 ing and other callings less harmful to the 
 public the former may be discriminated 
 against. State ex rel. Galle v. New Orleans. 
 113 La. 371, 36 So. 999, 67: 70 
 
 490. No citizen of the United States can 
 complain because a state police regulation 
 denies him the privilege of selling spirituous 
 liquors, even if the privilege is granted to 
 other citizens. Tragesser v. Gray, 73 Md. 
 250, 20 Atl. 905, 9: 780 
 Welsh v. State, 126 Ind. 71, 25 N. E. 883. 
 
 9: 664 
 
 491. A statute forbidding keepers of sa- 
 loons to permit women to enter them for 
 the purpose of being supplied with liquor
 
 594 
 
 CONSTITUTIONAL LAW, II. a, 5. 
 
 does not deprive them of their property 
 without due process of law, destroy their 
 right to pursue a lawful calling, or deny 
 them equal rights and privileges under the 
 law, where liquor cannot be sold without a 
 license. Adams v. Cronin, 29 Colo. 488, 69 
 Pac. 590, 63: 61 
 
 Medicine, dentistry, etc. 
 Due Process of Law as to, see infra, 677. 
 Police Power as to, see infra, 1031-1037. 
 See also Physicians and Surgeons, 27. 
 
 492. The attempt to confer the exclusive 
 right to treat all diseases, physical or men- 
 tal, real or imaginary, upon licensed doc- 
 tors, is unconstitutional. State v. Biggs, 
 133 N. C. 729, 46 S. E. 401, 64: 139 
 
 493. A statute denning the practice of 
 medicine so as to include every method of 
 treating disease when done .for gain, and 
 requiring practitioners to obtain a license 
 from a board composed exclusively of doc- 
 tors of medicine, is not unconstitutional as 
 class legislation. Territory v. Newman 
 (N. M.) 79 Pac. 813, 68: 783 
 
 494. The equal privileges or immunities of 
 citizens are not infringed by a statute 
 which exempts those who are practitioners 
 of medicine or surgery at the time of its 
 passage from its provisions requiring a di- 
 ploma, or certificate of a state board of ex- 
 aminers to entitle a person to practise such 
 a profession. State v. Randolph, 23 Or. 74, 
 31 Pac. 201, 17: 470 
 
 495. A provision in a statute regulating 
 the practice of dentistry, that allows stu- 
 dents under the direct supervision of a pre- 
 ceptor or a licensed dentist to practise on 
 the teeth and jaws during the period of their 
 enrolment in a dental college and attend- 
 ance upon a regular uninterrupted course 
 therein, does not unlawfully discriminate 
 between dental students. State v. Vander- 
 sluis, 42 Minn. 129, 43 N. W. 789, 6: 119 
 
 496. A statute requiring that a person, 
 in order to be eligible for examination for 
 license as a dentist, shall have a diploma 
 from some dental college in good standing, 
 but giving the board discretion to dispense 
 with this in case of one who has practised 
 dentistry for ten years before the passage 
 of the act, is not unconstitutional as dis- 
 criminating between persons or classes, al- 
 though some may not be pecuniarily able to 
 attend a dental college. Id. 
 
 497. The discrimination with respect to 
 the right to practise medicine made by Iowa 
 Code, 2579 allowing persons to practise 
 medicine only when they have passed an 
 examination before the state board of med- 
 ical examiners or have received a certificate 
 from a medical school that is found by the 
 board to be of good standing, or have prac- 
 tised medicine in the state for five years, 
 three of which shall have been in one lo- 
 cality, is not in violation of Jowa Const. 
 art. 1, 6, or U. S. Const. 14th Amend., 
 since the classification made is not arbi- 
 trary, and the distinction upon which it is 
 based is reasonable and apparent. State v. 
 P>air, 112 Iowa, 466, 84 N. W. 532, 51: 776 
 
 498. A statute requiring a license of all 
 who announce to the public their readiness 
 
 to heal, cure, or relieve those suffering 'from 
 disease is not void on the ground that the 
 classification is unjust and arbitrary be- 
 cause it exempts duly licensed physicians of 
 other states whose practice extends into the 
 state, opticians, and nurses. Parks v. 
 State, 159 Ind. 211, 64 N. E. 862, 59: 190 
 
 499. N. H. Gen. Laws, chap. 132, to se- 
 cure the possession of requisite skill and 
 learning by practitioners of medicine, sur- 
 gery, and dentistry, which excepts from its 
 provisions persons who have practised their 
 professions in the place of their present 
 residence for a certain time, and also physi- 
 cians residing out of the state and called 
 into the state for consultation, or to attend 
 patients in the regular course of business, 
 is unconstitutional in discriminating be- 
 tween persons engaged in the same business 
 or profession, and also in discriminating 
 against citizens of other states. State v. 
 Pennoyer, 65 N. H. 113, 18 Atl. 878, 
 
 5: 709 
 
 500. A graduate of a foreign medical col- 
 lege is not deprived of liberty or property 
 without due process of law, or denied the 
 equal protection of the laws, by being re- 
 quired to pass an examination before re- 
 ceiving a license to practise, which gradu- 
 ates of local colleges having a specified 
 course of study, who were matriculated at 
 the time of the passage of the act, are not 
 required to do. State ex rel. Kellogg v. Cur- 
 rans, 111 Wis. 431, 87 N. W. 561, 56: 252 
 
 501. A statute requiring the passing of 
 an examination by a graduate of a foreign 
 medical college as a prerequisite to obtain- 
 ing a license to practise medicine, which is 
 not required of graduates of colleges in the 
 state, does not violate the provisions of the 
 Federal Constitution protecting the privi- 
 leges and immunities of the citizens of the 
 several states and of the United States. Id. 
 
 502. Requiring an applicant for a license 
 to practise medicine to produce a diploma 
 from a medical school the requirements of 
 which shall have been "in no particular less 
 than those prescribed" by a specified asso- 
 ciation of medical colleges does not, al- 
 though such association is composed of 
 schools teaching only one system of medi- 
 cine, unjustly discriminate against other 
 schools. Ex parte Gerino, 143 Cal. 412, 77 
 Pac. 166, 66: 249 
 
 503. The authority to refuse certificates 
 to graduates of medical schools not in good 
 standing does not extend special privileges 
 or immunities to other schools that are de- 
 termined to be in good standing. Iowa Ec- 
 lectic Medical College Asso. v. Schrader, 87 
 Iowa, 659, 55 N. W- 2 *> 20: 355 
 
 504. Discrimination in favor of the gradu- 
 ates of a regular college of dentistry, in a 
 statute requiring graduates of other uni- 
 versities or colleges authorized to grant di- 
 plomas in dental surgery to be examined 
 with reference to qualifications, is not an 
 arbitrary and unconstitutional discrimina- 
 tion in violation of U. S. Const. 14th Amend, 
 and Md. Declaration of Rights, art. 23. 
 State v. Knowles, 90 Md. 646, 45 Atl. 877, 
 
 49: 695
 
 CONSTITUTIONAL LAW, II. a, 5. 
 
 595 
 
 505. Constitutional provisions forbidding 
 the granting of special privileges and im- 
 munities, and requiring laws to have a uni- 
 form operation, do not prevent the legisla- 
 ture, when establishing a board of medical 
 examiners to be appointed by the several 
 medical associations within the state, from 
 permitting one society to name more mem- 
 bers than others are permitted to name. Ex 
 parte Gerino, 143 Cal. 412, 77 Pac. 166, 
 
 66: 249 
 
 506. An e>emption from a statute re- 
 quiring a license to practise medicine, of 
 commissioned surgeons of the United States 
 Army, Navy, or marine hospital service, 
 physicians or surgeons in actual consulta- 
 tion from other states, and persons tempo- 
 rarily practising under supervision of an 
 actual medical preceptor, does n*ot create an 
 arbitrary, unreasonable, or unjust discrimi- 
 nation in violation of U. S. Const. 14th 
 Amend., since the reasons for these exemp- 
 tions are apparent and are entirely of a 
 public character. Scholle v. State, 90 Md. 
 729, 46 Atl. 326, 50: 411 
 
 507. Requiring a magnetic healer to pro- 
 cure a license before engaging in the healing 
 art does not deprive him of his liberty or 
 property without due process of law, or 
 deny him the equal protection of the laws. 
 Parks v. State, 159 Ind. 211, 64 N. E. 
 862, 59: 190 
 
 508. Permitting the licensing of osteo- 
 paths, while excluding mental healing, is not 
 an unlawful discrimination which will ren- 
 der the statute void. Id. 
 
 508a. An act regulating the practice of 
 medicine is not void as discriminating 
 against Christian Scientists in that it pre- 
 scribes that anyone possessing certain quali- 
 fications may practise osteopathy, and does 
 not make especial provision for those who 
 wish to practise Christian Science. State v. 
 Marble, 72 Ohio St. 21, 73 N. E. 1063, 
 
 70: 835 
 
 509. A legislative enactment which dis- 
 criminates against osteopathists by requir- 
 ing them to hold diplomas from a college 
 which requires four years of study as a con- 
 dition to their obtaining limited certifi- 
 cates which will not permit them to pre- 
 scribe drugs or perform surgery, while not 
 requiring such time of study from those con- 
 templating the regular practice as a condi- 
 tion to their obtaining unlimited certifi- 
 cates for the practice of medicine and sur- 
 gery, is, as to such discrimination, void, and 
 compliance therewith cannot be exacted of 
 those who practise osteopathy. State v. 
 Gravett, 65 Ohio St. 289, 62 N. E. 325, 
 
 55: 791 
 Banking. 
 
 Due Process of Law as to, see infra, 680, 
 681. 
 
 510. The right to carry on the business of 
 banking other than that of issuing bills or 
 paper credit to circulate as money is a 
 common right of citizens generally, which 
 cannot be taken away by a statute pro- 
 hibiting the exercise of such right except 
 by corporations. State v. Scougal, 3 S. D. 
 55, 51 N. W. 858, 15: 477 
 
 1 511. N. D. Laws 1890, chap. 23, 27, to 
 provide for the organization and govern- 
 ment of state banks, prohibiting all persons 
 from doing a banking business in the state 
 except persons organized under the Laws of 
 1890, is a proper exercise by the legislature 
 of that branch of the internal police power 
 of the state which relates to the public 
 safety. State ex rel. Goodsill r. Wood- 
 manse, 1 N. D. 246, 46 N. W. 970, 11: 420 
 
 512. N. D. Laws 1890, chap. 23, 27, to 
 provide for the organization and government 
 of state banks, prohibiting all persons from 
 doing a banking business in the state ex- 
 cept persons organized under the laws of 
 1890, does not contravene either N. D. Const, 
 art. 1, 1, or U. S. Const. 14th Amend. 
 1. Id. 
 
 513. The equal privileges and immunities 
 of citizens under the South Dakota Consti- 
 tution include the right of transacting 
 banking business, except so far as it relates 
 to the issuing of bills to circulate as money. 
 State v. Scougal, 3 S. D. 55, 51 N. W. 858,' 
 
 15: 477 
 
 514. A statute making it a misdemeanor 
 for any banker to discount commercial paper 
 at more than a certain rate per cent is not 
 unconstitutional legislation because it ap- 
 plies to bankers only. Youngblood v. Bir- 
 mingham Trust & S. Co. 95 Ala. 521, 12 
 So. 579, 20: 58 
 
 515,. The license tax on banks created by 
 the state, which is imposed by Mont. Pol. 
 Code, 4061, although it is not imposed 
 upon national banks, is not for that rea- 
 son in conflict with Mont. Const, art. 15, 
 11, providing that no corporation formed 
 under the laws of any other country, state, 
 or territory shall have any greater rights or 
 privileges than corporations of the "same 
 or similar character" created under the laws 
 of the state, since national banks, being 
 governmental agencies, are not of the same 
 or similar character as banks created under 
 the laws of the state. State v. Thomas 
 Cruse Sav. Bank, 21 Mont. 50, 52 Pac. 733, 
 
 45: 760 
 
 516. The discrimination in favor of banks 
 within the state, as compared with national 
 banks outside the state, made by Vt. Stat. 
 1306, providing that negotiable paper may 
 be attached by trustee process before notice 
 of transfer, but that negotiable paper actu- 
 ally transferred to a bank in the state be- 
 fore due shall be exempt from attachment, 
 does not make the statute invalid on the 
 ground that it tends to impair the utility 
 of a national bank outside the state as an 
 instrumentality of the Federal government. 
 Hawley v. Kurd, 72 Vt. 122, 47 Atl. 401, 
 
 52: 195 
 Plumbers. 
 
 Due Process of Law as to, see infra, 678. 
 Police Power as to, see infra, 1029, 1030. 
 
 517. The permission to all members of a 
 firm to pursue the business of plumbing 
 where one only has procured a license, and 
 to all members of a corporation to pursue 
 it where the manager only has procured a 
 license, renders Ohio act April 21, 1896, for 
 the licensing of plumbers, unconstitutional
 
 596 
 
 CONSTITUTIONAL LAW, IT. a, 5. 
 
 on the ground that it does not operate 
 equally upon all of a class pursuing the call- 
 ing under like circumstances. State v. Gard- 
 ner, 58 Ohio St. 599, 51 N. E. 136, 41: 683 
 
 518. Unfair or oppressive action of the 
 board of examiners authorized to grant the 
 required certificates of competency to mas- 
 ter plumbers will not render unconstitu- 
 tional a statute which, as framed, provides 
 for an impartial board. People ex rel. 
 Nechamcus v. Warden of City Prison, 144 
 N. Y. 529, 39 N. E. 682, 27: 718 
 Steam engineers. 
 
 519. Exempting from the provisions of an 
 act requiring steam engineers to be exam- 
 ined as to fitness and to procure a license, 
 all persons who have been continuously em- 
 ployed as steam engineers in the state for 
 a period of three years next prior to the 
 passage of the act, and all those who hold 
 licenses issued under any ordinance of a 
 municipal corporation, renders the act un- 
 constitutional as a denial of the equal pro- 
 tection of the laws guaranteed by the Ohio 
 Bill of Rights, 2. Harmon v. State ex rel. 
 Gard, 66 Ohio St. 249, 64 N. E. 117, 
 
 58: 618 
 Pharmacists. 
 
 520. The grant to registered pharmacists 
 by Kurd's (111.) Rev. Stat. 1897, pp. 1075, 
 1076, of the right to sell patent and pro- 
 prietary medicines, without requiring them 
 to make any inspection or examinatiqn of 
 the same, but denying such right of sale 
 to all other persons, firms, or corporations, 
 is the grant of a special and exclusive privi- 
 lege in violation of 111. Const, art. 4, 22. 
 Xoel v. People, 187 111. 587, 58 N. E. 616, 
 
 52: 287 
 
 521. The attempt to vest an arbitrary 
 power in the board of pharmacy by the 111- 
 nois pharmacy act, 8 (Hurd's Rev. Stat. 
 1897, pp. 1075, 1076), to say who shall and 
 who shall not sell the usual domestic and 
 proprietary remedies in villages and other 
 localities, and just exactly what they are 
 allowed to sell, without in any way regu- 
 lating or controlling the discretion thereby 
 vested in the board, is an unjust and un- 
 constitutional discrimination between per- 
 sons coming within the same class. Id. 
 Fishing. 
 
 Special Legislation as to, see Statutes, 
 
 381-383. 
 See also supra, 369. 
 
 522. A statute as to fisheries, making dif- 
 ferent regulations for certain localities or 
 waters, is not void as class legislation, in 
 the absence of a constitutional provision 
 against it. Bittenhaus v. Johnston, 92 Wis. 
 588, 66 N. W. 805, 32: 380 
 
 523. The exclusion of residents of the 
 state who are not taxpayers, but who are 
 willing to pay the license tax, from fishing 
 in the public waters of the state as tax- 
 payers are allowed to do is in violation of 
 Tex. Const, art. 1, 3, which guarantees 
 equal rights, and prohibits exclusive sep- 
 arate public emoluments or privileges, ex- 
 cept in consideration of public services. 
 (Justafson v. State, 40 Tex. Crim. Rep. 67, 
 48 S. W. 518, 43: 615 
 
 524. A statute discriminating between dif- 
 ferent kinds of fish and between different 
 localities and waters in regulating fisheries 
 does not deny to any person the equal pro- 
 tection of the laws. Bittenhaus v. Johnston, 
 92 Wis. 588; 66 N. W. 805, 32: 380 
 
 525. A statute forbidding the citizens of 
 any other county from fishing in the waters 
 of two specified counties without a license, 
 without anything to forbid the citizens of 
 those counties from fishing in other coun- 
 ties without a license, violates the constitu- 
 tional guaranty of the equal protection of 
 the laws. State v. Higgins, 51 S. C. 51, 28 
 S. E. 15, 38: 561 
 Ferry. 
 
 Special Legislation as to, see Statutes, 366, 
 368. 
 
 526. A ferry lease granted under a statute 
 which allows to all who choose the privi- 
 lege of bidding therefor is not within the 
 prohibition of the organic act of Dakota 
 territory as to "granting private charters 
 or especial privileges," or the constitutional 
 provision against "private or special laws," 
 authorizing ferries. Nixon v. Reid, 8 S. D. 
 507, 67 N. W. 57, 32:315 
 
 527. A statute authorizing exclusive ferry 
 franchises to be granted for a period of 
 years by county commissioners to the high- 
 est bidder is not repugnant to N. D. Const. 
 20, which declares that no privileges or 
 immunities shall be granted to any citizen 
 or class of citizens which shall not be grant- 
 ed to all citizens on the same terms. Pat- 
 terson v. Wollmann, 5 N. D. 608, 67 N. W. 
 1040, 33: 536 
 Livery stables. 
 
 528. The discrimination which might be 
 made against persons desiring to keep a 
 livery stable makes void an ordinance which 
 requires the consent of half the owners on 
 a block in order to permit a livery stable 
 thereon. St. Louis v. Russell, 116 Mo. 248, 
 22 S. W. 470, 20: 721 
 
 529. A municipality cannot give a monop- 
 oly of the business of keeping livery sta- 
 bles within the business portion of a city, 
 by an ordinance which prohibits the main- 
 tenance therein of any such stables that 
 are not already in existence and under op- 
 eration. Crowley v. West, 52 La. Ann. 526, 
 27 So. 53, 47: 652 
 Private asylum. 
 
 530. The business of maintaining a pri- 
 vate asylum for the treatment of mild forms 
 of insanity, inebriety, and other nervous and 
 mental diseases, is a lawful one which can- 
 not be prohibited, either directly or indi- 
 rectly, by unreasonable and oppressive regu- 
 lations. Ex parte Whitwell, 98 Cal. 73, 
 32 Pac. 870, 19: 727 
 
 6. Sunday Laws. 
 
 Due Process of Law as to, see infra, 683. 
 Police Power as to, see infra, 1017-1021. 
 As to Sunday Laws Generally, see Sunday. 
 
 531. The exemption from an ordinance 
 against mercantile business on Sunday, of 
 stores for drugs, meats, bread, and various 
 other things, does not make an unreasona-
 
 CONSTITUTIONAL LAW, II. a, 5. 
 
 597 
 
 We discrimination, where all persons en- 
 gaged in the same business are on an equal 
 footing. Theisen v. McDavid, 34 Fla. 440, 
 16 So. 321, 26: 234 
 
 532. An ordinance prohibiting the sale of 
 clothing on Sunday, when it singles out 
 that class of merchants and certain others 
 without any substantial reason for the dis- 
 crimination, leaving olher merchants ex- 
 empt therefrom, is unconstitutional as spe- 
 cial or class legislation. Denver v. Bach, 26 
 Colo. 530, 58 Pac. 1089, 46: 848 
 
 533. A statute which prohibits the keep- 
 ing open of butcher shops for the sale of 
 meats, and other business places, on any 
 portion of Sunday, while it authorizes con- 
 fectionery and tobacco to be sold in an or- 
 derly manner on that day, is nt such an 
 unreasonable discrimination between these 
 several occupations as to make the law in- 
 valid as special or class legislation. State 
 ex rel. Hoffman v. Justus, 91 Minn. 447, 
 98 N. W. 325, 64: 510 
 Barbers. 
 
 Due Process of Law as to, see infra, 683. 
 Keeping Shop Open as Work of Necessity, 
 
 see Sunday, 17-19. 
 See aiso infra, 1018. 
 
 534. Forbidding the keeping open of a 
 barber shop on Sunday, while permitting 
 hotels, boarding houses, baths, restaurants, 
 taverns, livery stables, and retail drug 
 stores to be open, is not unconstitutional as 
 depriving barbers of the equal protection of 
 the laws, since tne classification is not arbi- 
 trary. State v. Sopher, 25 Utah, 318, 71 
 Pac. 482, 60: 468 
 
 535. A statute permitting barbers in two 
 localities of the state, only, to pursue their 
 business during certain hours on Sunday, 
 does not deny to barbers in other places the 
 equal protection of the laws, since it affects 
 all within the same localities alike. People 
 v. Havnor, 149 N. Y. 195, 43 N. E. 541, 
 
 31: 689 
 
 [Writ of Error Dismissed in 170 U. S. 408, 
 42 L. ed. 1087, 18 Sup. Ct. Rep. 631.] 
 
 536. The equal privileges or immunities of 
 citizens are not violated by prohibiting the 
 business of a barber on Sunday under great- 
 er penalties than those imposed upon other 
 business, or because an exception is made as 
 to those who conscientiously observe the 
 seventh day of the week as the Sabbath, 
 nor is such a statute invalid as cla is legisla- 
 tion. People v. Bellet, 99 Mich. 151, 57 N. 
 W. 1094, 22: 696 
 
 536a. A city ordinance making it unlawful 
 for barbers to pursue their calling on Sun- 
 day, without applying to other kinds of em- 
 ployment, is unconstitutional as class legis- 
 lation. Tacoma v. Krech, 15 Wash. 296, 46 
 Pac. 255, 34: 68 
 
 537. A statute prohibiting barbers to 
 carry on business after 12 o'clock on Sunday 
 or on a legal holiday, and applying to no 
 other class of labor, is unconstitutional as 
 special, unjust, and unreasonable, working 
 an invasion of individual liberty, since it is 
 based upon no distinction to justify singling 
 out that class of laborers. Ex parte 
 Jentzsch, 112 Cal. 468, 44 Pac. 803, 32: 664 
 
 Playing ball. 
 
 Playing Ball as Sporting, see Sunday, 7. 
 
 538. The constitutional prohibition against 
 class legislation is not violated by a statute 
 prohibiting the playing of baseball on Sun- 
 day where a fee is charged, under a penalty 
 of a fine upon the players. State v. Hogrie- 
 ver, 152 Ind. 652, 53 N. E. 921, 45: 504 
 
 539. Imposing a larger penalty on persons 
 who play baseball on Sunday in violation 
 of a statute than upon those who are en- 
 gaged in hunting, fishing, rioting, quarreling, 
 and in acts of common labor, does not vio- 
 late the constitutional right of citizens to 
 equal privileges and immunities. Id. 
 
 c. As to Employees. 
 
 Due Process of Law as to, see infra, II. b, 
 
 4, 6, (2). 
 
 Police Power as to, see infra, II. c. 4, c. 
 Special Legislation as to, see Statutes., 312. 
 See also supra, 31, 468; infra, 685. 
 For Editorial Notes, see infra, III. 16. 
 
 540. A statute permitting certain uses of 
 a dry emery wheel without a blower, while 
 requiring a blower for other uses, is not 
 class legislation as between operatives, when 
 the rules apply to all persons equally. Peo- 
 ple v. Smith, 108 Mich. 527, 66 N. W. 382, 
 
 32: 853 
 
 541. A statute which singles out owners 
 and proprietors of mines and manufacturers 
 of every kind, and provides that they shall 
 bear burdens not imposed on other owners 
 of property or employers of labor, and pro- 
 hibits them from making contracts which it 
 is competent for other owners of property 
 or employers of labor to make, is uncon- 
 stitutional, and cannot be sustained as an 
 exercise of the police power. State v. Good- 
 will, 33 W. Va. 179, 10 S. E. 285, 6: 621 
 
 542. A -statute establishing free employ- 
 ment agencies to be maintained at public 
 expense, which forbids those in charge of 
 them to furnish help to persons whose em- 
 ployees are on strike or locked out, or to 
 permit them to have access to the names of 
 applicants for service, while expressly en- 
 titling other employers to their services, is 
 void as discriminating between two classes 
 of employers, and depriving applicants of 
 the privilege of working for such employers, 
 and as interfering with the freedom of con- 
 tract. Mathews v. People, 202 111. 389, 67 
 N. E. 28, 63: 73 
 
 543. A statute prohibiting persons and 
 corporations engaged in mining and manu- 
 facturing, and interested in selling mer- 
 chandise and supplies, from selling any mer- 
 chandise to their employees at a greater per 
 cent profit than they sell to others not em- 
 ployed by them, is unconstitutional and 
 void because it is class legislation and an 
 unjust interference with private contract 
 and business. State v. Fire Creek Coal & 
 C. Co. 33 W. Va. 188, 10 S. E. 288, 6: 3J9 
 Favoring union workmen. 
 
 See also Contracts, 840. 
 
 544. An unconstitutional discrimination in 
 favor of union workmen is made in violation
 
 598 
 
 CONSTITUTIONAL LAW, II. a, 5. 
 
 of 111. Const, art. 4, 22, prohibiting the 
 passage of any local or special law granting 
 to any corporation, association, or individual 
 any special or exclusive privilege, immunity, 
 or franchise, by Kurd's (111.) Rev. Stat. 
 1899, chap. 48. * 32, making it a misde- 
 meanor to discharge an employee because of 
 his connection with any lawful labor or- 
 ganization. Gillespie v. People, 188 111. 176, 
 58 N. E. 1007, 52: 283 
 
 545. An ordinance giving fc monopoly to 
 union labor on city contracts by providing 
 that all such contracts shall contain a stipu- 
 lation that none but union labor will be 
 employed is void as making an unconstitu- 
 tional discrimination between different 
 classes of citizens, and because it lays down 
 a rule which restricts competition and in- 
 creases the cost of work. Fiske v. People 
 ex rel. Raymond. 188 111. 206, 58 N. E. 985, 
 
 52: 291 
 
 546. An ordinance providing that all mu- 
 nicipa.1 printing should be given to union 
 printers is void as tending to encourage 
 monopoly and defeat competition, though 
 there may be no charter requirement for 
 letting such contracts to the lowest bidders. 
 Atlanta v. Stein, 111 Ga. 789, 36 S. E. 932, 
 
 51: 335 
 
 Hours of labor. 
 
 Due Process of Law as to, see infra, 710-717. 
 Police Power as to, see infra, 1043-1050. 
 See also supra, 316. 
 For Editorial Xotes, see infra, III. 7, 16. 
 
 547. The exemption of existing written 
 contracts from the operation of a statute 
 limiting the hours of labor of employees of a 
 public-service corporation is not on its face 
 so arbitrary, partial, or oppressive as to 
 render it unconstitutional. Re Ten-Hour 
 Law for Street Ry. Corps. 24 R. I. 603, 54 
 Atl. 602, 61 : 612 
 
 548. An exception of farm and domestic 
 labor from a statute limiting a legal day's 
 work to eight hours, and making the pay 
 for every additional hour double that of the 
 hour preceding, is unconstitutional as class 
 legislation. Low v. Rees Printing Co., 41 
 Neb. 127, 59 N. W. 362. 24: 702 
 
 549. An act providing an eight -hour 
 day for all workingmen in mines, smelters, 
 and mills for the reduction of ores is not 
 unconstitutional as class legislation, or as 
 a deprivation of property without due proc- 
 ess of law, or an abridgement of the privi- 
 leges or immunities of citizens, but is a 
 legitimate exercise of the police power in the 
 interest of the health of workingmen. Re 
 Boyce, 27 Xev. 299, 75 Pac. 1, 65: 47 
 
 550. The equal protection of the laws is 
 not denied to persons within the scope of a 
 statute prohibiting labor in underground 
 mines for more than eight hours per day. j 
 Holden v. Hardy, 14 Utah, 71, 46 Pac. 756/ 
 
 37 : 103 ' 
 
 [Affirmed by the Supreme Court of the 
 United States' in 169 U. S. 366. 42 L. ed. 
 780, 18 Sup. Ct. Rep. 383.1 
 
 551. A statute prohibiting the employ- 
 ment of females in any factory or workshop 
 for more than eight hours a day is uncon- 
 stitutional as partial and discriminating in 
 
 its character, whether applying only to 
 
 manufacturers of wearing apparel and like 
 
 articles, or as applying to manufacturers of 
 
 all kinds of products. Ritchie v. People, 155 
 
 111. 98, 40 X. E. 454, 29: 79 
 
 Wages. 
 
 Allowing Attorneys' Fees in Action for, see 
 
 infra, 587, 588. 
 
 Due Process of Law as to, see infra, 718-735. 
 Police Power as to, see infra, 1038-1042. 
 Title of Statute as to, see Statutes, 199, 
 
 201. 
 
 See also supra. 543, infra, 721, 734. 
 For Editorial Xotes, see infra, III. 16. 
 
 552. The exception of religious, literary, 
 or charitable corporations from a statute 
 requiring corporations to make weekly pay- 
 ments of wages, does not create any in- 
 vidious distinction against other corpora- 
 tions. State v. Brown & S. Mfg. Co. 18 R. I. 
 16, 25 Atl. 246, 17: 856 
 
 553. A statute regulating the payment of 
 coal-mine employees is not unconstitutional 
 as class legislation becavise it applies only to 
 persons, companies, or corporations operat- 
 ing a coal mine in which more than ten 
 miners are employed. [Case affirmed by 
 equal division.] Peel Splint Coal Co. v. 
 State, 36 W. Va. 802, 15 S. E. 1000, 17: 385 
 
 554. The classification of mining and man- 
 ufacturing enterprises for legislation regu- 
 lating the mode of payment of employees is 
 unreasonable, arbitrary, and cannot be up- 
 held. State v. Loomis, 115 Mo. 307, 22 
 S. W. 350, 21 : 789 
 
 555. A statute prohibiting employees 
 from making any contracts in advance to 
 accept anything else than lawful money of 
 the United States is not unconstitutional. 
 Hancock v. Yaden, 121 Ind. 366, 23 X. E. 
 253, 6:576 
 
 556. A statute requiring weekly payment 
 of wages "by every manufacturing, mining, 
 quarrying, lumbering, mercantile, street, 
 electric, and elevated railway, steamboat, 
 telegraph, telephone, and municipal corpora- 
 tion, and every incorporated express com- 
 pany and water company," makes an un- 
 constitutional discrimination between those 
 corporations and others which are organized 
 for pecuniary profit and employ labor. 
 P.raceville Coal Co. v. People, 147 111. 66, 35 
 X. E. 62, 22: 340 
 
 557. No special privileges are conferred, 
 nor any unjust discrimination made, by a 
 statute requiring all persons, firms, corpora- 
 tions, etc.. engaged in mining or manufac- 
 turing, to pay their employees at least once 
 every two weeks, and prohibiting all con- 
 tracts by such employees to accept any- 
 thing but lawful money of the United States 
 in payment. The statute operates alike up- 
 on all who enter the classes 'named, and 
 leaves all citizens free to enter them. Han- 
 cock v. Yaden, 121 Ind. 366. 23 N. E. 253, 
 
 6: 576 
 
 558. The restriction on the freedom of 
 contract of laborers employed by a trust or 
 corporation employing ten or more per- 
 sons, imposed by Kan. Laws 1897, chap. 145, 
 prohibiting payment otherwise than in law- 
 ful money or by check or draft on a deposit
 
 CONSTITUTIONAL LAW, II. a, 5. 
 
 599 
 
 of money, is in violation of U. S. Const. 14th 
 Amend., prohibiting a state to deprive per- 
 sons of life, liberty, or property without 
 due process of law, or to deny any person 
 within its jurisdiction the equal protection 
 of the laws. State v. Haun. 61 Kan. 146, 59 
 Pac. 340, 47 : 369 
 
 559. A statute which prohibits persons en- 
 gaged in mining and manufacturing from is- 
 suing for the payment of labor any order or 
 paper which is not redeemable within thirty 
 days in lawful money, with interest, is un- 
 constitutional and void. State v. Goodwill, 
 33 W. Va. 179, 10 S. E. 285, 6: 621 
 
 560. An act requiring the redemption in 
 money of checks issued in payment of as- 
 signed wages, which is applicable only to 
 merchants on the one hand and Coal miners 
 on the other, is void as class legislation. 
 Dixon v. Poe, 159 Ind. 492, 65 N. E. 518, 
 
 60: 308 
 
 561. A railroad company is not deprived 
 of the equal protection of the laws by the 
 Arkansas act of March 25, 1889, providing 
 that as to contracts thereafter made such a 
 company on the discharge of an employee 
 must pay all wages then earned at the con- 
 tract rate without any abatement or deduc- 
 tion for payment before the time agreed up- 
 on, and that in default thereof the wages 
 shall continue at the same rate until paid, 
 but not more than sixty days, unless an ac- 
 tion therefor is commenced within that time. 
 St. Louis I. M. & S. R. Co. v. Paul, 64 Ark. 
 83, 40 S. W. 705, 37: 504 
 
 562. The provision of Pa. act June 15, 
 1897, P. L. 166, regulating the employment 
 of foreign-born, unnaturalized male persons, 
 and permitting employers to deduct from 
 their daily wages an amount levied as a tax, 
 violates the equal protection of the laws 
 guaranteed by U. S. Const. 14th Amend. 
 Juniata Limestone Co. v. Fagley, 187 Pa. 
 193, 40 Atl. 977, 42: 442 
 
 563. A lien for wages on all the property 
 of a corporation in preference to all other 
 liens, except duly recorded mortgages and 
 deeds of trust, which is imposed by Cal. 
 Laws 1897, p. 231, in case of the failure 
 of a corporation to pay its employees 
 monthly, without even requiring any de- 
 scription of tne property, or notice in any 
 manner in order to make the lien valid; and 
 an attorney's fee imposed by the statute in 
 case of an action to enforce the employee's 
 right, while such provisions do not apply to 
 any other class of laborers, constitute an 
 unconstitutional discrimination against cor- 
 porations and their employees. Johnson v. 
 Goodyear Min. Co. 127 Cal. 4, 59 Pac. 304, 
 
 47: 338 
 
 564. A statute making it a crime to send 
 any chose in action out of the state for the 
 purpose of suit thereon and of having gar- 
 nishment or other process issued against the 
 wages of a resident of the state, and served 
 upon any person indebted to him for wages 
 who is subject to the processes of the courts 
 of the state, is in violation of the provisions 
 of U. S. Const. 14th Amend., for equal pro- 
 tection of the laws and the equal privileges 
 
 and immunities of citizens of the United 
 States, and also of a provision of Mo. Const, 
 art. 2, 30, against granting special or ex- 
 clusive privileges or immunities, since the 
 statute discriminates between employees 
 whose employers are subject to the processes 
 of the courts of the state, and others, and 
 also discriminates among creditors by grant- 
 ing greater exemptions of wages in suits 
 out of the state than can be had in suits 
 within the state, while it denies the credit- 
 or of a wage-earner the same right that 
 other creditors have to bring suits in other 
 states, and permits a creditor of a wage- 
 earner who obtains judgment in the state to 
 enforce it out of the state by processes de- 
 nied to creditors who bring suit out of the 
 state in the first instance. Re Flukes, 157 
 Mo. 125, 57 S. W. 545, 51: 176 
 
 Discharge. 
 See also supra, 544, 561. 
 
 565. A statute restricting the right to dis- 
 charge laborers because of membership in 
 labor unions is within a constitutional pro- 
 vision against special laws. State v. Julow, 
 129 Mo. 163, 31 S. W. 781, 29: 257 
 Protection of street railway employees. 
 
 566. Confining a statute for the protec- 
 tion of employees to street cars propelled by 
 cable, steam, or electricity does not make 
 the act unconstitutional as an attempt at 
 purely arbitrary classification. State v. 
 Hoskins, 58 Minn. 25, 59 N. W. 545, 25: 759 
 
 567. The first clause of the 14th Amend- 
 ment of the United States Constitution is 
 not violated by a statute requiring screens 
 for motormen on electric cars, but not ap- 
 plying to other kinds of street cars. State 
 v. Nelson, 52 Ohio St. 88, 39 N. E. 22, 
 
 26: 317 
 
 568. A statute requiring screens of glass 
 or other material to protect motormen on 
 electric cars is not unconstitutional because 
 it does not apply to cable cars or other 
 kinds of street cars, under a constitutional 
 provision that laws of a general nature 
 should have a uniform operation. Id. 
 Liability for negligent injury. 
 
 569. The exemption of municipal corpora- 
 tions from a statute making other corpora- 
 tions liable to a servant for negligence of a 
 fellow servant does not make the statute in- 
 valid. Pittsburgh, C. C. & St. L. R. Co. v. 
 Montgomery, 152 Ind. 1, 49 N. E. 582, 
 
 69: 875 
 
 570. A statute making employees having 
 charge of others superior servants, not only 
 as to them, but as to subordinate employees 
 in other departments of the service, but per- 
 mitting the doctrine of fellow servants to 
 be applied as between superior servants gen- 
 erally, is based on a reasonable classification, 
 and does not deny to any employee the 
 equal protection of the laws. Kane v. Erie 
 R. Co. 67 C. C. A. 653, 133 Fed. 681, 
 
 68: 788 
 
 571. A constitutional provision requiring 
 all laws of a general nature to have a uni- 
 form operation throughout the state is not 
 violated by Ohio act April 2, 1890, relating 
 to the liability of railroad companies for 
 injuries to employees, since it applies to all
 
 600 
 
 CONSTITUTIONAL LAW, II. a, 6. 
 
 railroad corporations operating railroads 
 within the state, and to all of a common 
 class of railroad employees. Peirce v. Van 
 Dusen, 24 C. C. A. 280, 47 U. S. App. 339, 78 
 Fed. 693, 69: 705 
 
 572. A statute rendering all corporations 
 liable for injuries to employees from de- 
 fective appliances, whether the employees 
 knew of the defect or not, cannot be saved 
 from unconstitutionally because of discrim- 
 ination in favor of individual employers by 
 the courts determining in each particular 
 case whether or not the corporation is en- 
 gaged in a business so dangerous that such 
 a .rule might properly be applied to it. 
 Ballard v. Mississippi Cotton Oil Co. 81 Miss. 
 507, 34 So. 533, 62: 407 
 
 573. Making all corporations liable for in- 
 juries to employees through defective ma- 
 chinery, notwithstanding the employees had 
 knowledge of the defect, when the same lia- 
 bility is not placed on private individuals, 
 and there is no distinctive difference in the 
 business which will warrant the classifica- 
 tion, denies the corporations the equal pro- 
 tection of the laws. Id. 
 
 6. Attorneys' Fees; Costs. 
 
 Due Process of Law as to, see infra, 623, 
 
 624. 
 Special Legislation as to, see Statutes, 392, 
 
 393. 
 
 See also supra, 563. 
 For Editorial Notes, see infra, HI. 7. 
 
 Attorneys' fees against railroad company. 
 
 574. A statute providing for the collection 
 of claims against railway corporations alone, 
 and authorizing the allowance of attorney's 
 fees in such cases, will not be set aside be- 
 cause discriminatory in its character, nor 
 because it is opposed to the principles of re- 
 publican government. Gulf, C. & S. F. E. 
 Co. v. Ellis (Tex.) 18 S. W. 723, 17: 286 
 
 575. The provision for an attorneys' fee 
 for the successful prosecution of an action 
 under Kan. Laws 1893, chap. 100, for failure 
 of a carrier to safely transport and deliver 
 goods committed to its charge, is constitu- 
 tional. Missouri, K. & T. R. Co. v. Simon- 
 son, 64 Kan. 802, 68 Pac. 653, 57: 765 
 
 576. Permitting the recovery of attorneys' 
 fees on recovery against a railroad company 
 for violation of a statute regulating rates 
 does not violate the constitutional provision 
 as to equality. Burlington, C. R. & N. R. 
 Co. v. Dey, 82 Iowa, 312, 48 N. W. 98, 
 
 12: 436 
 
 577. A statute authorizing the allowance 
 of an attorney's fee to plaintiff on recovery 
 under a statute making a railroad company 
 liable for injury to live stock because of a 
 defective railway fence is not unconstitu- 
 tional as special legislation, as the attorney's 
 fee may be lawfully imposed as a penalty 
 for violation of the law. Perkins v. St. 
 Louis, I. M. & S. R. Co. 103 Mo. 52, 15 
 S. W. 320, 11: 426 
 
 578. A statute allowing reasonable attor- 
 neys' fees in an action to recover posses- 
 sion of land taken by a railroad company, 
 
 without compensation, for its right of way, 
 is not unconstitutional on the ground of 
 class discrimination. Cameron v. Chicago, 
 M. & St. P. R. Co. 63 Minn. 384, 65 N. W. 
 6M, 31: 553 
 
 579. That the duty of paying attorneys' 
 fees to the landowner in eminent domain 
 proceedings is imposed only on railroad 
 companies does not make an unconstitution- 
 al discrimination against such companies, 
 since, because of the special privileges 
 granted to them, they form a special class 
 upon which peculiar burdens may be im- 
 posed as a condition of exercising the 
 powers granted. Gano v. Minneapolis & St. 
 L. R. Co. 114 Iowa, 713, 87 N. W. 714, 
 
 55: 263 
 
 580. Requiring a railroad company seek- 
 ing to condemn a right of way to pay an 
 attorney's fee to the landowner's attorney 
 in case of his successful appeal from the 
 award of the sheriff's jury is not an uncon- 
 stitutional discrimination against the com- 
 pany, a denial to it of the equal protection 
 of the law, or the conferring of an illegal 
 special privilege on the landowner. Id. 
 Against insurance company. 
 
 Special Legislation as to, see Statutes, 392. 
 
 581. An act authorizing the recovery of 
 attorneys' fees in certain cases against in- 
 surance companies is constitutional. Hart- 
 ford F. Ins. Co. v. Redding, 47 Fla. 228, 
 37 So. 62, 67: 518 
 
 582. The provision for the recovery of at- 
 torneys' fees in certain cases against fire 
 and life insurance companies, made by Fla. 
 act approved June 2, 1893, chap. 4173, p. 
 101, is not repugnant to any provision of 
 the state or Federal Constitution. L'Engle 
 v. Scottish Union & N. Ins. Co. 48 Fla. 
 82, 37 So. 462, C7: 581 
 
 583. A statute making an insurance com- 
 pany liable for damages and attorneys' fees 
 in case of failure to pay a loss within the 
 timft specified in the policy does not deny 
 such companies the equal protection of the 
 laws. Union C. L. Ins. Co. v. Chowning, 86 
 Tex. 654, 26 S. W. 982, 24: 504 
 
 584. The allowance of damages and at- 
 torneys' fees to plaintiff in an action upon 
 an insurance policy, provided for by Ga. Civ. 
 Code, 2140, in case of the refusal of an in- 
 surance company to pay a loss within sixty 
 days after demand has been made, where it 
 shall appear to the jury that the refusal to 
 pay was in bad faith, is in violation of IT. S. 
 Const. 14th Amend., as a denial of the ^qual 
 protection of the laws. Phoenix Irs. Co. v. 
 Schwartz, 115 Ga. 112, 41 S. E. J40, 
 
 57: 752 
 In mechanics' lien case. 
 
 585. A statutory provision allowing attor- 
 neys' fees on a judgment in favor of the 
 plaintiff in a mechanic's lien case, without 
 making any such allowance to a successful 
 defendant, does not violate the constitution- 
 al provision for equal protection of the laws. 
 Dell v. Marvin, 41 Fla. 221, 26 So. 188, 
 
 45: 201 
 
 586. The provision for the recovery of a 
 reasonable attorney's fee. to be fixed by the 
 court and taxed as costs in the action when
 
 CONSTITUTIONAL LAW, II. a, 7. 
 
 801 
 
 judgment is rendered for plaintiff in any 
 action by a laborer or artisan to enforce a 
 lien under the Kansas mechanic's lien law, 
 is unconstitutional and void as a denial 6f 
 the equal protection of the laws. Atkinson 
 v. Woodmansee, 68 Kan. 71, 74 Pac. 640, 
 
 64: 325 
 In action for wages. 
 
 587. A penalty for the benefit of an indi- 
 vidual is not imposed by a provision in a 
 statute to protect wages of laborers, giving 
 a right to the recovery of the debt, costs, 
 expenses, and an attorney's fee, in case the 
 act is violated. Singer Mfg. Co. v. Fleming, 
 39 Neb. 679, 58 N. W. 226, 23: 210 
 
 588. The provision for an attorney's fee in 
 an action for wages, made by Ohio Rev. 
 Stat. 6563a, in case the wagfis have not 
 been paid within three days after a demand 
 in writing, is an unconstitutional denial of 
 the equal protection of the laws, since the 
 statute imposes the restriction upon one 
 class of citizens only. Hocking Valley Coal 
 Co. v. Rosser, 53 Ohio St. 12, 41 N. E. 263, 
 
 29: 386 
 Costs. 
 See also infra, 594. 
 
 589. A statute providing that the state or 
 county will pay costs of criminal prosecu- 
 tions only in certain classes of cases is not 
 partial or class legislation. State v. Hen- 
 ley, 98 Tenn. 665, 41 S. W. 352, 1104, 
 
 39: 126 
 
 590. A statute denying fees and costs or 
 mileage to witnesses who reside within 5 
 miles of the place at which attendance is re- 
 quired while allowing them in other cases, 
 is not so unreasonable and capricious a 
 classification of witnesses as to make the 
 statute partial and unconstitutional. Id. 
 
 7. Matters of Practice. 
 
 Due Process of Law as to, see infra, II. b, 7. 
 
 591. A statute providing for a short-cause 
 calendar on which plaintiff may have a cause 
 placed under certain circumstances, but 
 denying the same right to the defendant, 
 is not unconstitutional as being unequal, 
 partial, or special legislation. Louisville, 
 N. A. & C. R. Co. v. Wallace, 136 111. 87, 
 26 N. E. 493, 11: 787 
 
 592. An act providing for service of sum- 
 mons in a personal action against a natural 
 person who is a citizen of another state, 
 but carries on business in this state, on his 
 agent in charge of the business, without a 
 seizure of his property by the process of the 
 court, is unconstitutional. Cabanne v. Graf, 
 87 Minn. 510, 92 N. W. 461, 59: 735 
 
 593. The equal protection of the laws is 
 not denied by Or. Sess. Laws 1899, p. 99, 
 authorizing prosecutions to be commenced 
 by informations filed by the district attor- 
 ney except when the court deems it ad- 
 visable to convene a grand jury, thereby 
 leaving it to the district attorney and the 
 court to determine which method the prose- 
 cution should follow. State v. Tucker, 36 
 Or. 291, 61 Pac. 894, 51 : 246 
 
 As to jury. 
 
 Due Process of Law as to, see infra, 805- 
 
 810. 
 
 See also supra, 320. 
 For Editorial Notes, see infra, III, 7. 
 
 594. The requirement that a party de- 
 manding a struck jury shall pay the fees 
 for striking the same and the mileage and 
 per diem of the jurors, without any allow- 
 ance therefor in the taxation of costs, does 
 not constitute class legislation, although 
 some litigants may not be financially able to 
 avail themselves of the right. Lommen v. 
 Minneapolis Gaslight Co. 65 Minn. 196, 68 
 N. W. 53, 33: 437 
 
 595. It is not an unconstitutional discrim- 
 ination against persons who are to be tried 
 in a criminal branch of the court to require 
 them to be tried by jurors taken from the 
 body of the county whose general qualifi- 
 cations have been more particularly ascer- 
 tained by a special jury commissioner, but 
 who are still subject to judicial inquiry as 
 to their qualifications and impartiality as in 
 the case of an ordinary panel. People v. 
 Dunn, 157 N. Y. 528, 52 N. E. 572, 43: 247 
 
 596. Jury trial by a jury of less than 
 twelve under state laws, in a state court 
 does not violate U. S. Const. 14th Amend. 
 1, making all persons born or naturalized 
 in the United States and subject to its juris- 
 diction citizens of the United States and of 
 the state wherein they reside, and declaring 
 that no state shall make or enforce any law 
 abridging the privileges or immunities of the 
 citizens in the United States. State v. 
 Bates, 14 Utah, 293, 47 Pac. 78, 43: 33 
 
 597. Neither due process of law, nor the 
 equal protection of the law, is denied by the 
 granting of a nonsuit, instead of submitting 
 the case to the jury, where the facts are 
 practically admitted. Apex Transportation 
 Co. v. Garbade, 32 Or. 582, 52 Pac. 573, 54 
 Pac. 367, 882, 62: 513 
 Appeal. 
 
 598. A statute treating all owners of land 
 in territory to be annexed to a city alike 
 under like circumstances and conditions does 
 not deprive anyone of the equal protection 
 of the laws, although it permits an appeal 
 only by residents of the territory to be an- 
 nexed. Taggart v. Claypole, 145 Ind. 590, 
 44 N. E. 18, 32: 586 
 
 599. The grant of the right of appeal in 
 annexation proceedings to resident freehold- 
 ers only does not deny to nonresident own- 
 ers equal privileges or immunities. Id. 
 
 600. The failure to provide for an appeal 
 from the decision of commissioners placing 
 a valuation upon railroad property for pur- 
 poses of taxation will not render a revenue 
 act void as violating the constitutional pro- 
 vision securing the equal protection of the 
 laws, although the right to appeal in such 
 cases is accorded to the owners of other 
 property. St. Louis I. M. & S. R. Co. v. 
 Worthen, 52 Ark. 529, 13 S. W. 254, 
 
 7: 374 
 
 601. A statute denying the right of appeal 
 to persons convicted of certain offenses with- 
 in the territorial jurisdiction of a city police 
 court, under the same circumstances and
 
 602 
 
 CONSTITUTIONAL LAW, II. a, 8. 
 
 conditions as such right is possessed in 
 other portions of the state by persons con- 
 victed of similar offenses, does not violate 
 U. S. Const. 14th Amend. 1, as depriving 
 citizens of that city of the equal protection 
 of the laws guaranteed to all citizens of the 
 United States, where the act operates equal- 
 ly on all persons within the jurisdiction to 
 which it applies. Sullivan v. Haug, 82 
 Mich. 548, 46 N. W. 795, 10: 263 
 
 8. Criminal Matters. 
 
 As to Sunday Laws, see supra, II. a, 5, b. 
 Due Process as to, see infra, II. b, 8. 
 Police Power as to, see infra, II. c, 5. 
 As to Costs in Criminal Prosecution, see 
 
 supra, 589-590. 
 
 Special Legislation as to, see Statutes, 299. 
 See also supra, 564, 593, 595, 601; infra. 704, 
 
 825. 
 For Editorial Notes, see infra, III. 7. 
 
 602. A statute which makes it a misde- 
 meanor for persons in one branch of indus- 
 try to do what is lawful for those in an- 
 other branch of industry, in like relation and 
 under like conditions, is unconstitutional. 
 Frorer v. People, 141 111. 171, 31 N. E. 395, 
 
 16: 492 
 
 603. The Michigan Constitution contains 
 no provision that all laws shall be equal and 
 uniform throughout the state, and conse- 
 quently the legislature is not prohibited 
 from legislating for particular localities; 
 and it has power to declare that certain acts 
 committed in a particular locality may be 
 punished as a crime, while if committed in 
 other localities they are not punishable. 
 People v. Hanrahan, 75 Mich. 611, 42 N. W. 
 1124, 4: 751 
 
 604. Exemption f minors and persons un- 
 der guardianship from the penalty imposed 
 by a statute foi^ refusal to be vaccinated 
 does not render the statute unconstitutional 
 as working an inequality. Com. v. Pear, 183 
 Mass. 242, 66 N. E. 719, 67:935 
 
 605. A statute exempting police officers 
 from the presumption that possession- of 
 papers used in playing policy was with 
 knowledge and in violation of law is not 
 unconstitutional as class legislation upon 
 the ground that officers whose duty did not 
 require possession of such papers might 
 thereby be exempted from the operation of 
 the statute, since the statute will be con- 
 strued to further its objects. People v. 
 Adams, 176 N. Y. 351, 68 N. E. 636, 63: 406 
 
 606. The constitutional guaranty of the 
 equal protection of the laws is not violated 
 by a statute which makes it unlawful to 
 make options for the sale of certain com- 
 modities, but not of other commodities, 
 where it applies to all commodities which 
 have been, up to that time, made the sub- 
 ject of gambling operations. Booth v. Peo- 
 ple, 186 111. 43, 57 X. E. 798. 50: 762 
 Smoke. 
 
 607. Doubt as to the existence of devices 
 to prevent the emission into the air of dense 
 smoke, as indicated by a proviso in a 
 statute making such emission a penal of- 
 
 fense which exempts from punishment per- 
 sons who can show that no such device ex- 
 ists, is not sufficient to render the act un- 
 constitutional. State v. Tower, 185 Mo. 79, 
 84 S. W. 10, 68: 402 
 
 608. An exception in favor of those who 
 can show that no practicable device exists 
 which will prevent the nuisance when ap- 
 plied to their buildings does not render un- 
 constitutional, as obnoxious class legisla- 
 tion, a statute making the emission of dense 
 smoke into the air a penal offense. Id. 
 Tramps. 
 
 Due Process of Law as to, see infra, 931. 
 
 609. The tramp law of Ohio (Rev. Stat. 
 6995), prescribing punishment for tramps 
 who threaten to do injury to the person of 
 another while they are out of the county 
 of their residence, does not violate Ohio 
 Const, art. 2, 26, requiring uniform opera- 
 tion of laws, merely because the law does 
 not apply to females and blind persons, or 
 because it does not apply to persons who 
 make such threats in the counties where 
 they reside. State v. Hogan, 63 Ohio St. 
 202, 58 N. E. 572, 52: 863 
 Pool selling. 
 
 Special Legislation as to, see Statutes, 300, 
 301. 
 
 610. A statute prohibiting bookmaking or 
 pool selling at all places except upon 
 grounds where the races are to be run, and 
 by all except licensed persons, is not an un- 
 constitutional special law on the ground 
 that it grants special and exclusive rights 
 and immunities. State v. Thompson, 160 
 Mo. 333, 60 S. W. 1077, 54: 950 
 
 611. One engaged in selling pools or mak- 
 ing books on events to occur beyond the lim- 
 its of the state is not deprived of the equal 
 protection of the laws by a statute which 
 prohibits making books or selling pools on 
 such events, but does not prohibit it on 
 events within the state. Such act is uni- 
 form in its operation upon all coming with- 
 in its provisions; all are alike prohibited 
 from engaging in one class of transactions 
 and have equal rights as to the other class. 
 State v. Burgdoerfer, 107 Mo. 1, 17 S. W. 
 646, 14: 846 
 Associating with prostitutes. 
 
 Due Process of Law as to, see infra, 933. 
 
 612. An ordinance making it unlawful for 
 any person to associate, escort, converse, or 
 loiter with any female known as a common 
 prostitute, either by day or by night, upon 
 any of the streets or alleys of the city, 
 except her husband, father, brother, or 
 other male relative, is invalid, as there can 
 be no good reason in exempting any other 
 male relative than the husband, father, or 
 brother from its provisions, or for failing 
 to give her mother and sister the same 
 privilege allowed to the father or brother, 
 while any person should be allowed to con- 
 verse with her long enough to transact any 
 necessary and legitimate business. Hech- 
 inger v. Maysville. 22 Ky. L. Rep. 486, 58 
 S. W. 619, " 49: 114 
 Effect of good character. 
 
 613. A statute allowing persons proved 
 to be of good character to show reasonable
 
 CONSTITUTIONAL LAW. II. b, 1. 
 
 603 
 
 fear of danger as a justification for carry- 
 ing concealed weapons which the law pro- 
 hibits carrying is not in conflict with con- 
 stitutional provisions as to equal privileges 
 and immunities of citizens, as discriminat- 
 ing against those who are not of good 
 character. State v. Workman, 35 W. Va. 
 367, 14 S. E. 9, 14: 600 
 
 b. Due Process of Law or Law of the 
 Land; Guaranty of Right to Life, Liberty, 
 and Property. 
 
 1. In General. 
 
 Requiring Automobile to Carry Number, 
 
 see Automobiles, 2. 
 
 Limiting Height of Fence, see fences, 28. 
 Effect of Expert Testimony as to Danger 
 
 from Vaccination, see Health, 27. 
 Validity of Curfew Law, see Municipal 
 
 Corporations, 269. 
 
 See also supra, 75; infra, 939-945, 1000. 
 For Editorial Notes, see infra, Hi. 8. 
 
 614. The meaning of the phrase "due 
 process of law" is not strictly limited to 
 judicial process or proceedings. Lovell v. 
 Seeback, 45 Minn. 465, 48 N. W. 23, 
 
 11: 667 
 
 615. What was due process of law before 
 the adoption of the Federal Constitution 
 continues such. State v. Sponaugle, 45 W. 
 Va. 415, 32 S. E. 283, 43: 727 
 
 616. The law of the land, within the 
 meaning of a constitutional restriction up- 
 on interference with private rights, means 
 the common law and the previously exist- 
 ing statute law. Mauldin v. Greenville, 42 
 S. C. 293, 20 S. E. 842, 27: 284 
 
 617. Due process of law is denied when 
 any particular person of a class or of a 
 community is singled out for the imposi- 
 tion of restraints or burdens not imposed 
 upon, or to be borne by, all of the class 
 or of the community at large, unless the im- 
 position or restraint be based upon existing 
 distinctions that differentiate the particu- 
 lar individuals of the class to be affected 
 from the body of the community. State 
 ex rel. Wyatt v. Ashbrook, 154 Mo. 375, 
 55 S. W. 627, 48: 265 
 
 618. Personal liberty includes not only 
 freedom from physical restraint, but also 
 the right "to be let alone;" to determine 
 one's mode of life, whether it shall be a 
 life of publicity or of privacy; and to order 
 one's life and manage one's affairs in a 
 manner that may be most agreeable to 
 him, so long as he does not violate the 
 rights of others or of the public. Pavesich 
 v. New England L. Ins. Co. 122 Ga. 190, 50 
 S. E. 68, 69: 101 
 
 619. Personal security includes the right 
 to exist, and the right to the enjoyment of 
 life while existing, and is invaded not only 
 by a deprivation of life, but also by a dep- 
 rivation of those things which are neces- 
 sary to the enjoyment of life according to 
 the nature, temperament, and lawful de- 
 sires of the individual. Id. 
 
 620. Every man's liberty and property 
 
 are to some extent subject to the general 
 welfare, as each person's interest is pre- 
 sumed to be promoted by that which pro- 
 motes the interest of all. People v. Hav- 
 nor, 149 N. Y. 195, 43 N. E. 541, 31: 689 
 [Writ of Error Dismissed in 170 U. S. 408, 
 42 L. ed. 1087, 18 Sup. Ct. Rep. 631.] 
 
 621. A statute does not deprive a citizen 
 of his liberty or property in the constitu- 
 tional sense simply because it imposes bur- 
 dens, or abridges freedom of action, or 
 regulates occupations, or subjects individ- 
 uals or property to restraints in matters 
 indifferent except as they affect public in- 
 terests or the rights of others. People v. 
 Budd, 117 N. Y. 1, 22 N. E. 670, ' 5: 559 
 
 622. The liberty guaranteed by the Con- 
 stitution includes the right of a citizen to 
 use his God-given powers, employ his facul- 
 ties, exercise his judgment in the affairs of 
 life, and be free in the enjoyment and dis- 
 posal of his acquisitions, subject, only, to 
 such restrictions as are imposed by the law 
 of the land for the public welfare. Block 
 v. Schwartz, 27 Utah, 387, 76 Pac. 22, 
 
 65: 308 
 
 As to attorneys' fees. 
 
 Equal Protection and Privileges, as to, see 
 supra, II. a, 6. 
 
 623. A railway corporation is* not de- 
 prived of its property without due course of 
 law by a statute authorizing the incorpora- 
 tion into the judgment against it of a 
 reasonable attorney's fee, in case an at- 
 torney is actually employed to collect a 
 claim against it which was duly presented 
 to its proper agent and remained unpaid 
 for thirty days. Gulf, C. & S. F. R. Co. v. 
 Ellis (Tex.) 18 S. W. 723, 17:286 
 
 624. A statutory duty of a railway com- 
 pany to fence its tracks may be enforced 
 by a penalty in the form of an attorney's 
 fee to be allowed in suits brought to re- 
 cover the value of stock killed because of 
 the neglect of such duty. Id. 
 As to penalty. 
 
 625. "Due process of law" with respect to 
 the imposition of legal penalties requires 
 that the legislative body should prescribe 
 the amount of the penalty, or some definite 
 standard for fixing the amount, or else that 
 the amount should be determined in a ju- 
 dicial proceeding instituted against the of- 
 fender. Cigar Makers' International Un- 
 ion v. Goldberg (N. J. Err. & App.) 72 
 N. J. L. 214, 61 Atl. 457, 70: 156 
 
 626. Giving a prosecuting attorney an 
 interest in a penalty does not prevent 
 due process of law. State v. Indiana & 
 L S. R. Co. 133 Ind. 69, 32 N. E. 817, 
 
 18: 502 
 Quarantining vessel. 
 
 627. The constitutional provision for due 
 process of law is not violated by the exer- 
 cise of the police power to quarantine ves- 
 sels at an infected port. Compagnie Fran- 
 caise v. State Board of Health, 51 La. Ann. 
 645, 25 So. 591, 56: 795 
 Compulsory service. 
 
 628. Ordinary services such as may be 
 be required of all citizens or officials by 
 general or valid special laws are not par-
 
 604 
 
 CONSTITUTIONAL LAW, II. b, 2. 
 
 ticular services within the provision of 
 Tenn'. Const, art. 1, 21, providing that no 
 man's particular services shall be demanded 
 without the consent of his representatives 
 or just compensation. State v. Henlev, 98 
 Tenn. 665, 41 S. W. 352, 1104, 39: 126 
 
 Vaccination of pupils. 
 Police Power as to, see infra, 1010-1012. 
 See also infra, 1012. 
 
 629. A statute authorizing school authori- 
 ties to make vaccination a condition of the 
 privilege of attending public schools is es- 
 sentially a police regulation, and does not 
 violate the constitutional guaranties of due 
 process of law or equal protection of the 
 law. Bissell v. Davison, 65 Conn. 183, 32 
 Atl. 348, 29: 251 
 
 2. As to Property Rights Generally. 
 a. In General. 
 
 As to Confiscation of Property, see Confis- 
 cation. 
 
 See also supra, 412, 413, 491; infra, 794, 796, 
 940-943, 988, 1004. 
 
 For Editorial Notes, see infra, HI. 14. 
 
 630. Compelling expense to improve prop- 
 erty by the exercise of police power does 
 not deprive the owner of his property with- 
 out due process of law, if the exaction is 
 not unreasonable either with reference to 
 the nature or cost. New York Health 
 Dept. v. Trinity Church, 145 N. Y. 32, 39 
 N. E. 833, 27:710 
 
 631. The transfer of money from one 
 fund of a city to another to pay a debt 
 does not deprive the city of its property 
 within the constitutional provision as to 
 due process of law. Davock v. Moore, 105 
 Mich. 120, 63 N. W. 424, 28: 783 
 
 632. A landowner is not deprived of his 
 property without due process of law by a 
 statute which provides that, after the title 
 has been judicially determined and regis- 
 t<-ied, tlie tenure of the owner, the right 
 of transfer and encumbrance, and all rights 
 subsequently accruing shall be determined 
 in accordance with the rules prescribed by 
 that statute. People ex rel. Deneen v. Si- 
 mon, 176 111. 165, 52 N. E. 910, 44: 801 
 
 632a. A statute authorizing the destruc- 
 tion of a privy vault which has been or- 
 dered by municipal authorities to be de- 
 stroyed notwithstanding an appeal from 
 the order is not unconstitutional. Harring- 
 ton v. Providence, 20 R. I. 233, 38 Atl. 1, 
 
 38: 305 
 
 What is property. 
 Dog as, see Animals, 8. 
 Railroad Ticket as, see Carriers, 577. 
 See also infra, 856. \ 
 
 633. A person's business, occupation, or 
 calling is, aside from the chattels or money 
 employed therein, property, within the 
 meaning of the Constitution guaranteeing 
 to every citizen a certain remedy in the 
 law for any injury he may receive in his 
 person, property, or character. Gray v. 
 Building Trades Council, 91 Minn. 171, 97 
 N. W. 663, 63: 753 
 
 634. The next of kin of a person are not 
 deprived of any "property" by a statute 
 which provides that on the death of the 
 person the personal property shall go to 
 ither persons; and therefore the constitu- 
 tional provision as to depriving persons of 
 "property" does not apply to the statute 
 so far as it relates to them. Dibrell v. 
 Lanier, 89 Tenn. 497, 15 S. W. 87, 12: 70 
 
 635. The property of a private eleemosy- 
 nary corporation, although charged with 
 the maintenance of a college or other "pub- 
 lic charity," is private property, within 
 the meaning and protection of that clause 
 of Ohio Const, art. 1, 19, which declares 
 that "private property shall ever be held 
 inviolate." State ex rel. White v. Neff, 52 
 Ohio St. 375, 40 N. E. 720, 28: 409 
 
 636. A public office, or the prospective 
 fees of an office, are not the property of 
 the incumbent within the constitutional 
 provision against depriving a man of prop- 
 erty. People ex rel. Akin v. Kipley, 171 
 111. 44, 49 N. E. 229. 41 : 775 
 
 636a. A public office is not property, 
 within the meaning of the constitutional 
 provision that "no person shall be deprived 
 of life, lAerty, or property without due 
 process of law and the judgment of his 
 peers." It is a mere public agency, re- 
 vocable according to the will and appoint- 
 ment of the people, as expressed in the Con- 
 stitution and the laws enacted in conform- 
 ity therewith. Moore v. Strickling, 46 W. 
 Va. 515, 33 S. E. 274, 50: 279 
 
 637. A public office is not property with- 
 in the provision of the Federal Constitution 
 against deprivation of property without 
 due process of law, and therefore that pro- 
 vision is not violated by a clause in a state 
 constitution giving the governor power to 
 remove officers for gross neglect or mis- 
 feasance. Atty. Gen. ex rel. Rich v. Jochim, 
 99 Mich. 358, 58 N. W. 611, 23: 699 
 Corporation as person. 
 
 For Editorial Notes, see infra, HI. 8. 
 
 638. A corporation is a "person" within 
 the meaning of the provision against tak- 
 ing property without due process of law; 
 and it is a "man" within the provision 
 against taking property otherwise than by 
 "the law of the land." Knoxville & O. R. 
 Co. v. Harris, 99 Tenn. 684, 43 S. W. 115, 
 
 53: 921 
 
 639. A foreign corporation is a person 
 within the meaning of U. S. Const. 14th 
 Amend, and other constitutional clauses, 
 and is therefore protected against the dis- 
 charge of its debtor by state insolvency 
 proceedings. Hammond Beef & P. Co. v. 
 Best, 91 Me. 431, 40 Atl. 338, 42: 528 
 Dissolution of corporation. 
 
 640. N. Y. Laws 1886, chap. 271, attempt- 
 ing to take away from a street railroad 
 company which is dissolved by legislative 
 action, the franchise which has been grant- 
 ed to it in perpetuity to construct and 
 maintain a street railroad in a certain 
 street, and to direct the sale and transfer 
 of such franchise, and the payment of the 
 purchase price to the city, is unconstitu- 
 tional as an effort to change the ownership
 
 CONSTITUTIONAL LAW, II. b, 2. 
 
 605 
 
 of the franchise without due process o 
 law. People v. O'Brien, 111 N. Y. 1, 18 N 
 E. 692, 2: 255 
 
 641. The appointment of a receiver o: 
 property of a dissolved corporation, anc 
 the transfer of its assets to him by force 
 of a statute, after the title to the prop 
 erty had become vested by dissolution ol 
 the corporation, in its directors as trustee 
 for the stockholders and creditors, in an 
 action to which such directors were not 
 parties, is a violation of the constitutiona 
 provisions in relation to the taking oi 
 property without due process of law. Id 
 Extension of city. 
 
 For Editorial Notes, see infra, III. 8. 
 
 642. Changing the status of a tract oJ 
 land from a farm to city lots, by the exer- 
 cise of a power granted cities to extend 
 their limits, is not a deprivation of prop- 
 erty without due process of law. Callen 
 v. Junction City, 43 Kan. 627, 23 Pac. 652, 
 
 7: 736 
 
 643. The annexation of territory to a city 
 is not a taking of the property therein 
 situated, nor does it deprive any person of 
 property within the constitutional provi- 
 sion as to due process. Taggart v. Clay- 
 pole, 145 Ind. 590, 44 N. E. 18, 32: 586 
 Destroying riparian rights. 
 
 644. The state cannot take away or de- 
 stroy the rights of a riparian owner with 
 out his consent and without compensation 
 and without due process of law, for the 
 sole purpose of benefiting some other ri- 
 parian owner, or for any other mere private 
 purpose. Priewe v. Wisconsin State Land 
 & I. Co. 93 Wis. 534, 67 N. W. 918, 33: 645 
 Administration of living person's estate. 
 
 645. A statute authorizing administra- 
 tion upon the estate of a person who has 
 left home and not been heard from for 
 seven years is unconstitutional, since the 
 administration upon the estate of a living 
 person deprives him of property contrary 
 to the law of the land or without due 
 process of law. Carr v. Brown, 20 R. I. 215, 
 38 Atl. 9, 38: 294 
 
 646. A statute providing for the appoint- 
 ment of a special administrator in cases 
 where "the death of tne person whose es- 
 tate is in question is not satisfactorily 
 proved, but he is shown to have disap- 
 peared under circumstances which afford 
 reasonable grounds to believe, either that 
 he is dead, or has been secreted, confined, or 
 otherwise unlawfully done away with," is 
 invalid as depriving the person of his prop- 
 erty and its possession without notice or 
 due process of law, when applied to the 
 property of a person living, although such 
 special administrator has no power to ad- 
 minister such estate generally. Clapp v. 
 Houg, 12 N. D. 600, 98 N. W. 710, 65: 757 
 Fixing limits of houses of prostitution. 
 
 647. An ordinance changing the limits 
 outside of which houses of prostitution are 
 prohibited does not unconstitutionally de- 
 prive a citizen of his property because it is 
 depreciated in value in consequence of be- 
 ing included within such limits, as the or- 
 
 dinance is an exercise of the police power. 
 L'Hote v. New Orleans, 51 La. Ann. 93, 24 
 So. 608, 44: 90 
 
 Effect of judgment. 
 
 648. A statute denying effect to a judg- 
 ment against 'the validity of a title pur- 
 chased at execution sale, unless plaintiff 
 reimburses the purchaser, on failure of 
 which the latter's title shall be valid, is 
 unconstitutional as depriving the debtor of 
 his property without due process of law. 
 Oilman v. Tucker, 128 N. Y. 190, 28 N. E. 
 1040, 13: 304 
 
 649. A statute reducing the power of a 
 city to levy taxes to pay a judgment does 
 not deprive the owner of the judgment of 
 his property therein without due process of 
 law. Sherman v. Langham, 92 Tex. 13, 40 
 S. W. 140, 42 S. W. 961, 39: 258 
 Of persons unborn. 
 
 650. Persons yet unascertained and un- 
 born are not deprived of their rights with- 
 out due process of law by making them 
 defendants in a bill to remove a cloud 
 upon title, and having them represented 
 by a guardian ad litein as provided by 
 Mass. Stat. 1897, chap. 522. Loring v. Hil- 
 dreth, 170 Mass. 328, 49 N. E. 652, 40: 127 
 Compulsory testimony. 
 
 651. The property of an expert witness 
 is not taken without just compensation, by 
 requiring him to give his opinion as an ex- 
 pert without other compensation than ordi- 
 nary fees. Dixon v. People, 168 111. 179, 
 48 X. E. 108, 39: 116 
 
 6. Eminent Domain. 
 
 Equal Protection and Privileges as to, see 
 supra, 354-357. 
 
 As to Notice and Hearing in, see infra, 870. 
 
 As to Measure of Damages in Eminent Do- 
 main, see Damages, III. 1. 
 
 Requiring Persons to Become Members of 
 Drainage District, see Drainage Dis- 
 tricts, 2. 
 
 See also supra, 643, 644, 651, infra, 669, 970. 
 
 652. Compensation for private property 
 taken for public uses constitutes an essen- 
 tial element in "due process of law;" and 
 without such compensation the appropria- 
 
 ion of private property to public uses, no 
 matter under what form of procedure it is 
 :aken, will violate provisions of the 14th 
 Amendment of the Constitution of the 
 United States. Scott v. Toledo, 36 Fed. 385, 
 
 1 : 688 
 
 653. The right to take ice from public 
 waters being vested in the people of the 
 state, Wis. Laws 1901, chap. 470, which re- 
 quires as a condition to the enjoyment of 
 such right the procurement of a license and 
 
 he payment of a sum of money therefor, 
 s void as a violation of U. S. Const. 14th 
 Amend, prohibiting the taking of property 
 vithout due process of law, and of Wis. 
 'onst. art. 1, 13, forbidding the taking of 
 >rivate property for public use without 
 ompensation. Rossmiller v. State, 114 Wis. 
 69, 89 N. W. 839, 58: 93 
 
 654. The drainage of agricultural lands
 
 606 
 
 CONSTITU'l IONAL LAW, II. b, 3. 
 
 by "necessary drains, ditches, and dykes 
 upon the lands of others, under proper re- 
 strictions and upon just compensation," for 
 which provision may be made by general 
 laws under the amendment of X. Y. Const, 
 art. 1, 7, adopted in 1894, is a taking of 
 private property for a private use, in viola- 
 tion of U. S. Const. 14th Amend, prohibiting 
 a state from depriving any person of his 
 property without due process of law. Re 
 Tuthill, 163 N. Y. 133, 57 N. E. 303, 49: 781 
 
 655. A statute which makes it unlawful 
 to build structures on one's own land, which 
 are primarily or solely intended to injure 
 or annoy an adjoining owner, and which 
 serve no really useful and reasonable pur- 
 pose, is not unconstitutional although, if it 
 prohibited the erection of useful and valu- 
 able structures, it would deprive the owner 
 of property without due process of law and 
 compensation. Karasek v. Peier, 2% Wash. 
 419, 61 Pac. 33, 50: 345 
 
 655a. Wharves built by riparian owners 
 under the permission and license of the 
 state are property which cannot be taken 
 on a repeal of such permission, without due 
 process of law and due compensation there- 
 for. Lewis v. Portland, 25 Or. 133, 35 Pac. 
 256, 22:736 
 
 Free tuition of outside children in city 
 school. 
 
 656. A statute requiring a board of edu- 
 cation vested with title to all school prop- 
 erty within the limits of a city, and which 
 receives state aid in the maintenance of its 
 schools, to admit thereto, free of chai-ge, all 
 children living within a half mile of the city 
 limits, does not deprive it of its property 
 contrary to the law of the land, nor does it 
 require its particular services or take its 
 property without just compensation. Ed- 
 mondson v. Board of Education of Memphis, 
 108 Term. 557, 69 S. W. 274, 58: 170 
 Deduction from salaries of teachers. 
 
 657. A statute providing for the deduction 
 of a percentage from the salaries of public- 
 school teachers to provide a pension fund for 
 their benefit violates either the constitution- 
 al requirement of uniform taxation, or the 
 constitutional protection of property rights 
 as being the taking of private property from 
 one citizen for the benefit of another. Hub- 
 bard v. State ex rel. Ward. 65 Ohio St. 574, 
 64 N. E. 100, 58: 654 
 
 3. Taxation and Public Improvements. 
 
 Equal Protection and Privileges as to, see 
 supra, II. a, 4. 
 
 Notice and Hearing as to. see infra, 881- 
 889. 
 
 Right of Appeal on Oround that Constitu- 
 tional Question is Involved, see Appeal 
 and Error. 67. 
 
 Municipal Taxation of Farm Lands, see Mu- 
 nicipal Corporations, 583-586. 
 
 As to Taxation Generally, see Taxes. 
 
 See also supra, 649. 
 
 For Editorial Notes, see infra, III. 8. 
 
 658. Property of taxpayers is not taken 
 without due process of law by a statute im- 
 
 posing a penalty upon a county for lynch- 
 ing and authorizing its collection in the tax 
 levy. Champaign County v. Church, 62 
 Ohio St. 318, 57 N. E. 50, 48: 738 
 
 659. A street car company cannot be made 
 responsible for the payment of a privilege 
 tax imposed upon persons leasing the right 
 to use the cars for advertising purposes, 
 under a constitutional provision that no one 
 shall be deprived of his property without 
 due process of law. Knoxville Traction Co. 
 v. McMillan, 111 Tenn. 521, 77 S. W. 665, 
 
 65: 296 
 Assessment of railroad property. 
 
 660. Property is not taken without due 
 process of law by Neb. Comp. Stat. 1901, 
 chap. 77, art. 1, 39, 40, requiring railroad 
 property to be valued and assessed by one 
 assessing body, and the aggregate value dis- 
 tributed, on a mileage basis, to the various 
 counties, cities, towns, etc., through which 
 the road runs. State ex rel. Morton v. Back 
 (Neb.) 100 N. W. 952, 69: 447 
 
 661. Due process. of law in the assessment 
 of railroad property is not denied to railway 
 companies by a law making the assessment 
 of a state board of tax commissioners final, 
 where it allows after assessment a correc- 
 tion in assessments and valuation, on the 
 showing of a railroad company or on motion 
 of the board itself. Cleveland, C. C. & St. 
 L. R. Co. v. Backus, 133 Ind. 513, 33 N. E. 
 421, 18: 729 
 
 662. Classification of railroads for privi- 
 lege taxation by imposing the tax on those 
 which do not pay ad valorem taxes is not 
 an unnatural and unreasonable classification 
 which makes the tax a deprivation of prop- 
 erty without due process of law, although 
 there are but two railroads in the class. 
 Knoxville & O. R. Co. v. Harris, 99 Tenn. 
 684, 43 S. W. 115, 53: 921 
 Forfeiture for failure to enter for taxation. 
 
 663. The forfeiture of land under W. Va. 
 Const, art. 13, 6, for the failure of the 
 owner to enter it for taxation during five 
 successive years, does not violate the pro- 
 vision as to due process of law in the Fed- 
 eral Constitution, as such forfeitures were 
 a part of the law of the land before the 
 provision of the Federal Constitution was 
 adopted. State v. Sponaugle, 45 W. Va. 
 415, 32 S. E. 283, 43: 727 
 Reviving lost lien for taxes. 
 
 664. The legislature cannot restore and 
 revive a lost lien of the state for taxes, 
 when a tax judgment therefor has become 
 outlawed. Kipp v. Elwell, 65 Minn. 525, 
 68 N. W. 105, 33: 435 
 Succession tax. 
 
 Equal Protection and Privileges as to, see 
 
 supra, 440-445. 
 See also infra, 888. 
 
 665. A succession tax does not take prop- 
 erty without due process of law when it is 
 imposed on all property which passes by 
 will or intestate laws except when the es- 
 tate is less than $7,500. State ex rel. 
 Gelsthorpe v. Furnell, 20 Mont. 299, 51 Pac. 
 267, 39: 170 
 
 666. A statute to regulate by taxation or 
 otherwise the privilege or right to receive
 
 CONSTITUTIONAL LAW, II. b, 4. 
 
 607 
 
 property is not in conflict with the Ohio 
 Bill of Rights, which recognizes the inalien- 
 able right of acquiring or possessing and 
 protecting property. State ex rel. Schwartz 
 v. Ferris, 53 Ohio St. 314, 41 N. E. 579, 
 
 30: 218 
 
 667. The right of succession to the prop- 
 erty of a deceased person, whether by law 
 or inheritance, is a creature of statute law, 
 and not a natural right beyond legislative 
 control. State v. Alston, 94 Tenn. 674, 30 
 S. W. 750, 28: 178 
 Public improvements. 
 
 Notice and Hearing as to, see infra, 890- 
 
 894. 
 
 Equal Protection as to, see supra, 446. 
 Police Power as to, see infra, 951. 
 Requiring Railroad Company to*. Pay for 
 
 Drain, see Eminent Domain, 248. 
 See also infra, 890-894; Drains and Sewera, 
 
 1-4; Public Improvements, 46, 47, 139. 
 
 668. The enforcement of an assessment 
 for local improvements upon property not at 
 all benefited thereby is the taking of prop- 
 ertv without due process of law. Oregon & 
 C. R. Co. v. Portland, 25 Or. 229, 35 Pac. 
 452, 22: 713 
 
 669. A statute authorizing assessments on 
 abutting property for the cost of a public 
 improvement, in a sum materially exceeding 
 the special benefits which that property de- 
 rives from the work, is in violation of the 
 constitutional provision against taking 
 property without due process of law, or tak- 
 ing it for public use without just compensa- 
 tion. Hutcheson v. Storrie, 92 Tex. 685, 51 
 S. W. 848, 45: 289 
 
 670. Assessments for paving, made ac- 
 cording to the provisions of a city charter, 
 by apportioning the total cost of the work 
 to the abutting lands according to frontage, 
 do not constitute a taking of property for 
 public use, or a violation of U. S. Const. 14th 
 Amend, as a taking of property without due 
 process of law. Barber Asphalt Paving Co. 
 v. French, 158 Mo. 534, 58 S. W. 934, 54: 492 
 
 670a. A statute which charges the entire 
 cost of paving the streets of a city against 
 the property abutting the paving, and in 
 proportion to frontage, is not in contraven- 
 tion of the 14th Amendment to the Federal 
 Constitution. Webster v. Fargo, 9 N. D. 
 208, 82 N. W. 732, 56: 156 
 
 670b. An assessment, on every lot in the 
 city of St. Paul, of an annual frontage tax, 
 under Special Laws 1885, chap. 10, 26, 27 
 (St. Paul city charter), where water pipes 
 are laid in front of said lot, for the use of 
 the water commissioners, is not unconstitu- 
 tional, as in violation of the 14th Amend- 
 ment of the Federal Constitution, as a tak- 
 ing of property without due process of law. 
 Ramsey County v. Robert P. Lewis Co. 82 
 Minn. 390, 85 N. W. 207, 86 X. W. 611, 
 
 53 : 421 
 
 670c. Property is not taken without due 
 process of law by an assessment for a local 
 improvement under Ind. Acts 1889, p. 237, 
 authorizing by 3 an estimate of the assess- 
 ments on the basis of frontage, but provid- 
 ing in 7 for a hearing of persons aggrieved 
 before the assessment is made, as this pro- 
 
 vision impliedly authorizes and requires an 
 adjustment of the assessments in conform- 
 ity with the actual benefits. Adams v. 
 Shelbyville, 154 Ind. 467, 57 N. E. 114, 
 
 49: 797 
 
 671. An assessment for construction of a 
 sewer upon a strip of property fronting on 
 the street, which is only 8 feet deep, at the 
 same front-foot rate as is applied to full- 
 sized lots, is so manifestly unequal and un- 
 just that it violates the constitutional pro- 
 visions against taking property without due 
 process of law. Iowa Pipe & Tile Co. v. 
 Callanan, 125 Iowa, 358, 101 N. W. 141, 
 
 67 : 408 
 
 672. An ordinance which provides that a 
 city shall do the work and furnish the ma- 
 terials for making a sewer connection up 
 to within 3 feet of the building to be con- 
 nected is void as an unreasonable invasion 
 of the rights of property owners, although 
 the city may properly specify the materials 
 to be usea and provide that the work shall 
 be done only by some person licensed by the 
 city to make such connections, and that the 
 work shall be done under the supervision of 
 the city inspector. Slaughter v. O'Berry, 
 126 N. C. 181, 35 S. E. 241, 48: 442 
 
 673. A town is not deprived of property 
 without due process of law by a statute 
 making it a part of an incorporated high- 
 way or bridge district under the control of 
 commissioners who may draw upon the 
 town for a fixed portion of the expenses of 
 the district. State ex rel. Bulkeley v. Wil- 
 liams, 68 Conn. 131, 35 Atl. 24, 421, 48.: 465 
 
 4. As to Regulation of Business; Inspection; 
 License; Restrictions on Right of Con- 
 tract. 
 
 a. In General. 
 
 Equal Protection and Privileges as to, see 
 supra, II. a, 5. 
 
 Regulation of Fishing, see Fisheries, I. b. 
 
 See also infra, 865, 989, 1025, 1070; Phy- 
 sicians and Surgeons, 1, 6. 
 
 674. Sending a street car back to the 
 stables for failure to comply with an ordi- 
 nance requiring it to have both a driver and 
 a conductor is not an enforcement of the 
 ordinance and the infliction of punishment 
 therefor without a trial, but merely re- 
 moves a nuisance from the street; and the 
 ordinance may properly provide for such 
 return. South Covington & C. Street R. Co. 
 v. Berry, 93 Ky. 43, 18 S. W. 1026, 15: 604 
 
 675. To compel persons to accept the de- 
 cision of a statutory umpire as to the 
 weight of grain, and preclude them from 
 showing error in his weight, whether it is 
 the result of bad faith or- not, would be a 
 deprivation of property without due proc- 
 ess of law. Vega S. S. Co. v. Consolidated 
 Elevator Co. 75 Minn. 308. 77 N. W. 973, 
 
 43: 843 
 
 67G. Though an ordinance prohibiting the 
 storage of explosive oils hi large quantities 
 within the corporate limits happens to have 
 the effect of putting an end to a business,
 
 608 
 
 CONSTITUTIONAL LAW, II. b, 4 
 
 and of rendering valueless certain structures 
 used in connection with the business, its 
 enforcement will not constitute a depriving 
 of property without due process of law, 
 when the circumstances justify its adoption 
 as a police regulation. Crowley v. Ells- 
 worth, 114 La. 308, 38 So. 199, ' 69: 276 
 Regulating practice of medicine. 
 Equal Protection and Privileges, as to, see 
 
 sunra, 492-509. 
 
 Police Power as to, see infra, 1031a-1033. 
 See also supra, 500, 507. 
 
 677. A statute regulating the practice of 
 medicine, including osteopathy, is not void, 
 as a deprivation of property without due 
 process of law, because it requires one hav- 
 ing an established practice to conform to 
 the same standard of qualification as one 
 who contemplates practising, on the ground 
 that the former has a vested right in the 
 practice which he has already established, of 
 which he cannot be deprived. State v. 
 Gravett, 65 Ohio St. 289, 62 N. E. 325, 
 
 55: 791 
 Plumbing. 
 Equal Protection and Privileges as to, see 
 
 supra, 517, 518. 
 Police Power as to, see infra, 1029, 1030. 
 
 678. A statute requiring every member of 
 a firm engaged in the plumbing business to 
 be a registered plumber, whether his duties 
 require him to have a knowledge of that 
 trade or not, is an unconstitutional inter- 
 ference with liberty and property. Schnaier 
 v. Navarre Hotel & I. Co. 182 N. Y. 83, 74 
 N. E. 561, 70: 722 
 Guiding. 
 
 679. A statute providing that no person 
 shall engage in the business of guiding in 
 inland fishing or forest hunting without 
 having registered his name, age, and resi- 
 dence, paid a fee of $1, and received a cer- 
 tificate from the commissioners of inland 
 fisheries and game, and imposing a .penalty 
 for a violation thereof, is not unconstitu- 
 tional as a deprivation of the right to en- 
 gage in a lawful vocation, since the fish in 
 the waters of the state and the game in its 
 forests belong to the people, who, through 
 their representatives, have sole control 
 thereof, and may permit or prohibit their 
 taking. State v. Snowman, 94 Me. 99, 46 
 Atl. S15. 50: 544 
 Banking. 
 
 Equal Protection and Privileges as to, see 
 supra. -510-517. 
 
 680. The right to pursue a banking busi- 
 ness is a property rijrht which cannot be 
 taken away from a citizen by statute with- 
 out due process of law, especially where he 
 has property actually employed in the busi- 
 ness. State v. Scougal, 3 S. D. 55, 51 N. W. 
 858, 15: 477 
 
 681. Making it a crime for an insolvent 
 banker to receive deposits does not deprive 
 him of liberty or property without due proc- 
 ess of law. Meadowcroft v. People, 103 111. 
 56. 45 X. E. 303. 35: 176 
 Maintenance of dairy. 
 
 See also infra. lOOfi. 
 
 682. A municipal ordinance prohibiting 
 the maintenance of a dairv within the citv 
 
 limits neither deprives citizens of property 
 without due process of law nor abridges 
 their privileges or immunities. St. Louis v. 
 Fischer, 167 Mo. 654, 67 S. W. 872, 64: 679 
 Sunday law. 
 
 Police Power as to, see infra, 1017-1021. 
 As to Sunday Laws Generally, see Sunday. 
 For Editorial Notes, see infra, III. 6. 
 
 683. A barber is deprived of property 
 without due process of law by a statute 
 making it unlawful for him to "do business 
 on Sunday, while it does not apply to any 
 other class of business. Eden v. People, 161 
 111. 296, 43 N. E. 1108, 32: 659 
 Prohibiting private markets. 
 
 684. A person is not deprived of his prop 
 erty without due process of law by an ordi- 
 nance forbidding private markets within cer- 
 tain limits in which he has established a 
 market and expended money thereon. New- 
 son v. Galveston, 76 Tex. 559, 13 S. W. 368, 
 
 7:797 
 Inspection of mines. 
 
 685. The inspection of coal mines, under 
 Kurd's (111.) Stat. 1897, p. 1088, providing 
 for the inspection of mines at least four 
 times a year and as often as the inspector 
 may deem necessary, for fees of not less 
 than $6 nor more than $10 for each inspec- 
 tion, fixed by the inspector according to the 
 length of time consumed and the expense in- 
 curred does not deprive the mine owners of 
 their property without due process of law, 
 or deny them the equal protection of the 
 laws, on the ground that the statute does 
 not lay down proper rules for its impartial 
 execution by fixing the fees according to 
 some definite circumstance or condition, and 
 by fixing a reasonable number of inspec- 
 tions, whereby the exercise of an arbitrary 
 discretion might be avoided; since an at- 
 tempt to lay down a rule by statute fixing 
 the number of inspections would prevent a 
 proper protection of operative miners, as 
 required by 111. Const, art. 4, 29, and de- 
 stroy the purposes of the act. Consolidat- 
 ed Coal Co. v. People, 186 111. 134, 57 N. E. 
 880, ' 56: 266 
 Payment for examining employees. 
 
 686. The state, under its police power, 
 may require railroad employees to be ex- 
 amined by a competent board constituted by 
 state authority, as to their fitness for their 
 service, and impose upon the railroad com- 
 panies the reasonable expense of such ex- 
 amination; and such imposition will not de- 
 prive the companies of property without due 
 process of law; but the expense imposed 
 on any company must be restricted to the 
 examination of persons who are about to be, 
 or are at any time, actually employed by it, 
 and as to whom examinations are compul- 
 sory. Baldwin v. Louisville & N. R. Co. 80 
 Ala. 619, 5 So. 311, 7: 266 
 Restricting transportation of game. 
 
 687. Tho transportation of game which 
 has been killed within the limits of a state, 
 and which has been sold, or which is intend- 
 ed for sale, within the same state, may law- 
 fully be prohibited by the state legislature. 
 The killing of game vests no such absolute 
 title to it in the killer that a prohibition to
 
 CONSTITUTIONAL LAW, II. b, 4. 
 
 609 
 
 sell it deprives him of his property without 
 due process of law. American Express Co. 
 v. People, 133 111. 649, 24 N. E. 758, 9: 138 
 
 6. Restricting Right of Contract. 
 (1) In General. 
 
 As to Sunday Contracts, see Sunday, IV. 
 See also infra, 816. 
 
 For Editorial Notes, see infra, III. 13, 
 14. 
 
 688. The "liberty" guaranteed by the 
 Constitution includes the right to freely buy 
 and sell, make contracts, and have them 
 enforced as others may. State v. Loom is, 
 115 Mo. 307, 22 S. W. 350, . 21: 789 
 
 689 The privilege of contracting 1 is both 
 a liberty and a property right, of which one 
 cannot be deprived without due process of 
 law. Ritchie v. People, 155 111. 98, 40 N. E. 
 454, 29: 79 
 
 690. While the right to contract may be 
 subject to limitations growing out of the 
 duties which the individual owes to society, 
 the public, or the government, the power of 
 the legislature to limit such right must rest 
 upon some reasonable basis, and cannot be 
 arbitrarily exercised. Id. 
 
 691. The right to make contracts is inher- 
 ent and inalienable under 111. Const, art. 2, 
 1, declaring that all men are by nature 
 free and independent and have certain in- 
 herent and inalienable rights, among which 
 are life, liberty, and the pursuit of happi- 
 ness; and any attempt to unreasonably 
 abridge it is unconstitutional. Id. 
 
 692. A statute limiting the rights of a 
 citi/en to contract with reference to his 
 property must tend to promote the public 
 good in some way or it is an unwarranted 
 interference therewith. Dennis v. Moses, 18 
 Wash. 537, 52 Pac. 333, 40: 302 
 
 693. The power of a corporation to con- 
 tract is not property such that it cannot be 
 limited by the legislature, where there is 
 general rxwer to amend or repeal charters. 
 
 /State, Curtis v. Brown & S. Mfg. Co. 18 R. 
 I. 16, 25 Atl. 246, 17: 856 
 
 694. The state has no right to interfere 
 and control by compulsory legislation the 
 action of municipal corporations with re- 
 spect to property and contract rights of ex- 
 clusively local concern. People ex rel. 
 Rodgers v. Coler, 166 N. Y. 1, 59 N. E. 716, 
 
 52: 814 
 
 695. A statute requiring that all bonds 
 for the faithful performance of official or 
 fiduciary duties, or the faithful keeping, 
 applying, or accounting for funds or prop- 
 erty, with certain exceptions, must be exe- 
 cuted by a surety company or companies, 
 is invalid as an invasion of the liberty to 
 contract guaranteed by the Constitution. 
 State ex rel. McKell v. Robins, 71 Ohio St. 
 273, 73 N. E. 470, 69:427 
 Mortgages. 
 
 696. A statute limiting the right to en- 
 force a debt secured by mortgage to the 
 property mortgaged, whether realty or chat- 
 tels, is an undue restraint upon the liberty 
 
 L.R.A. Dig. 39. 
 
 of a citizen to contract with respect to his 
 property rights. Dennis v. Moses, 18 Wash. 
 537, 52 Pac. 333, 40: 302 
 
 697. No constitutional right of contract, 
 ing in relation to personal property is in- 
 fringed by permitting residents of the state 
 to retain possession of their chattels while 
 giving a lien on them by filing a mortgage 
 where they reside, and making no provision 
 for such mortgage in case of nonresidents. 
 McFadden v. Blocker, 3 Ind. Terr. 224, 54 
 S. W. 873, 58: 894 
 Insurance contracts. 
 
 Equal Protection and Privileges as to, see 
 
 supra, 405-411. 
 
 Police Power as to, see infra, 1009. 
 see also infra, 739, 740. 
 
 698. A statute requiring payment of the 
 full amount of a policy on a total loss is 
 not unconstitutional as a violation of the 
 fundamental idea of insurance, or because of 
 its supposed bad policy. Daggs v. Orient 
 Ins. Co. 136 Mo. 382, 38 S. W. 85, 35: 227 
 
 699. Disseisin of privileges or deprivation 
 of property otherwise than by the law of 
 the land or due process of law contrary to 
 Tenn. Const, art. 1, 8, or U. S. Const. 14th 
 Amend. 1, is not made by Tenn. Acts 
 Gen. Assem. 1893, chap. 107, 1, making 
 void all stipulations in insurance policies 
 which limit liability to less than the full 
 amount of loss, if this does not exceed the 
 amount of insurance. D.ugger use of Second 
 Nat. Bank v. Mechanics' & T. Ins. Co. 95 
 Tenn. 245, 32 S. W. 5, 28: 796 
 
 (2) With Employees. 
 
 Validity of Statute against Employers Com- 
 bining to Prevent Procuring of Employ- 
 ment, see Blacklisting, 1. 
 
 See also supra, 541-543, 685, 686. 
 
 For Editorial Notes, see infra, III. 13, 16. 
 
 700. The right to labor or employ labor 
 and make contracts in respect thereto, upon 
 such terms as may be agreed upon, is in- 
 cluded in the guaranty of 111. Const, art. 2, 
 2, that no person shall be deprived of life, 
 liberty, or property without due process of 
 law. Ritchie v. People, 155 111. 98, 40 N. E. 
 454, 29: 79 
 
 701. The liberty to enter into contracts by 
 which labor may be employed in such way 
 as the laborer may deem most beneficial, and 
 to others to employ such labor, is neces- 
 sarily included in the constitutional guar- 
 anty of the right to property. Braceville 
 Coal Co. v. People, 147 111. 66, 35 N. E. 62, 
 
 22: 340 
 
 702. Statutes regulating contracts be- 
 tween corporations and their employees may 
 be enacted under the reserved power to 
 amend corporate charters. Leep v. St. 
 T.ouis, I. M. & S. R. Co, 58 Ark. 407, 25 S. 
 W. 75, 23: 264 
 
 703. The restriction by statute of con- 
 tracts between corporations and employees 
 is not unconstitutional because- interfering 
 with the right of the employees to contract. 
 
 Id. 
 
 704. A statute making it a misdemeanor
 
 610 
 
 CONSTITUTIONAL LAW, II. b, 4 
 
 for one under contract to labor or work 
 land to break his contract and enter into 
 another with a different person, without the 
 consent of his employer, and sufficient ex- 
 cuse, to be adjudged by the court, and with- 
 out giving notice of his contract to the per- 
 son with whom he makes the new one, vio- 
 lates the constitutional guaranties of life, 
 liberty, and property, and abridges the 
 privileges and immunities of citizens of the 
 United States. Toney v. State, 141 Ala. 
 120, 37 So. 332, 67: 286 
 
 705. A statute making void a contract by 
 a corporation for the release or relief from 
 liability to an employee for negligence of a 
 fellow servant is not unconstitutional. 
 Pittsburgh, C. C. & St. L. R. Co. v. Mont- 
 gomery, 152 Ind. 1, 49 N. E. 582, 69: 875 
 As to membership in labor organization. 
 
 706. A statute forbidding, under penalty, 
 an employer from discharging an employee 
 because he is a member of a labor organiza- 
 tion, violates the constitutional guaranty of 
 liberty. State ex rel. Zillmer v. Kreutzberg, 
 114 Wis. 530, 90 N. W. 1098, 58: 748 
 
 707. A statute which makes it unlawful 
 to discharge an employee because he belongs 
 to a lawful labor organization, and which 
 provides for the recovery of damages for 
 such discharge, is void, since the right to 
 terminate a contract is within the protec- 
 tion of the state and Federal Constitutions, 
 which guarantee to every citizen the pro- 
 tection of life, liberty, and property. Coffey- 
 ville Vitrified Brick & T. Co. v. Perry, 69 
 Kan. 297, 76 Pac. 848, 66: 185 
 
 708. A right to insist that employees shall 
 withdraw from or refrain from joining any 
 trade union or labor union, as a condition of 
 employment, or continued employment, is 
 within the constitutional rights of an em- 
 ployer, and protected by the constitutional 
 guaranty of due process of law against a 
 statute which attempts to make it an of- 
 fense for an employer to impose such con- 
 ditions. State v. Julow, 129 Mo. 163, 31 S. 
 W. 781, 29: 257 
 
 709. A statute making it unlawful to pre- 
 vent, or attempt to prevent, an employee 
 from joining any lawful labor organization, 
 or to discharge an employee because of his 
 connection with such an organization, and 
 providing a penalty therefor (Hurd's Rev. 
 Stat. 1899, chap. 48, 32), is void, since the 
 right to terminate a contract, subject to 
 liability to respond in a civil action for an 
 unwarranted termination, is within the pro- 
 tection of the provisions of the. state and 
 Federal Constitutions, which guarantee that 
 no person shall be deprived of life, liberty, 
 or property without due process of law. 
 Oillespie v. People, 188 111. 176, 58 N. E. 
 1007, 52:283 
 As to hours of labor. 
 
 Equal Protection and Privileges as to, see 
 
 supra, 547-551. 
 
 Police Power as to, see infra, 1043-1050. 
 See also infra, 718, 1049. 
 For Editorial Notes, see infra, III. 13. 
 
 16. 
 
 710. A statute making it unlawful to 
 work more than eight hours per day in 
 
 mines or smelters is in violation of Colo. 
 Const, art. 2, 3, guaranteeing liberty and 
 the right to acquire, possess, and protect 
 property. Re Morgan, 26 Colo. 415, 58 Pac. 
 1071, 47:52 
 
 711. An act limiting to eight hours per 
 day the work of laborers, mechanics, etc., 
 employed on behalf of the state or any of 
 the political subdivisions thereof except in 
 certain stipulated cases; and requiring that 
 every contract for public work shall con- 
 tain a stipulation that no laborer, work- 
 man, or mechanic shall be permitted to 
 work more than eight hours under penalty 
 of a forfeiture by the contractor of a cer- 
 tain sum for each day any person shall 
 work more than such time; and providing 
 that noncompliance with the terms of the 
 statute shall be deemed a misdemeanor, 
 punishable by fine or imprisonment or both, 
 is an unconstitutional abridgment of the 
 right to contract, and an invasion of the 
 right of liberty and property. Cleveland v. 
 Clements Bros. Constr. Co. 67 Ohio St. 197, 
 65 N. E. 885, 59: 775 
 
 712. The eight-hour law enacted by Kan. 
 Laws 1891, chap. 114, limiting a day's work 
 by persons employed by or on behalf of the 
 state or of any county, city, township or 
 other municipality of the state, is a valid 
 and constitutional direction of the state to 
 its asrents. Re Dalton, 61 Kan. 257, 59 
 Pac. 336, 47: 380 
 
 713. A restriction of the hours of labor on 
 city contracts to eight hours per day by a 
 contract providing, in accordance with Chi- 
 cago Rev. Code, 1687, for the forfeiture of 
 the contract in case laborers work more than 
 eight hours in one day, is unconstitutional 
 as an infringement upon the freedom of 
 contract. Fiske v. People ex rel. Raymond, 
 188 111. 206, 58 N. E. 985, 52: 291 
 
 714. A municipal ordinance fixing the 
 hours of labor and the minimum rate of 
 wages to be paid laborers upon a public con- 
 tract does not interfere with the constitu- 
 tional guaranty of liberty and property; 
 since the public has the right to do its work 
 in any manner it sees fit, and to compel 
 those with whom it contracts to perform 
 the work in the same manner. Re Broad, 36 
 Wash. 449, 78 Pac. 1004, 70: 1011 
 
 715. A city ordinance providing that eight 
 hours labor constitutes a legal day's work, 
 where performed under a contract of the 
 city, and that anyone who under such con- 
 tract demands, receives, or contracts for 
 more than eight hours' labor in one day 
 from any person, or who employs Chinese 
 labor, shall be guilty of misdemeanor and 
 punished by fine, is an attempt to prevent 
 certain parties from employing others in a 
 lawful business, and is therefore unconsti- 
 tutional and void. Re Kubach, 85 Cal. 274, 
 24 Pac. 737, 9: 482 
 
 716. Forbidding the employment of fe- 
 males in certain establishments more than 
 ten hours a day does not unconstitutionally 
 deprive them of life, liberty, or property. 
 State v. Buchanan, 29 Wash. 602, 70 Pac. 
 52, 59:342 
 
 717. A statute prohibiting the employ-
 
 CONSTITUTIONAL LAW, II. b, 4. 
 
 611 
 
 ment of females in any factory or work- 
 shop more than eight hours a day is un- 
 constitutional as a purely arbitrary restric- 
 tion upon the fundamental right of the citi- 
 zen to control his or her own time and 
 faculties, and a substitution of the legis- 
 lative judgment for that of the employer 
 and the employee in a matter about which 
 they are competent to agree with each other. 
 Ritchie v. People, ,155 111. 98, 40 N. E. 454, 
 
 29: 79 
 
 As to wages. 
 Equal Protection and Privileges as to, see 
 
 supra, 552-^564. 
 
 Police Power as to, see infra, 1038-1042. 
 See also supra, 558, infra, 834, 1042. 
 For Editorial Notes, see infra, III. 13, 16. 
 
 718. The constitutional right to^ contract 
 with reference to compensation for services 
 is violated by a statute limiting a legal 
 day's work to eight hours, and requiring for 
 every hour's work in excess of that number 
 double the pay of the preceding hour. Low 
 v. Rees Printing Co. 41 Neb. 127, 59 N. W. 
 362, 24: 702 
 
 719. The right of an individual to contract 
 to labor, with a period of credit for payment 
 of his wages, is included in the constitution- 
 al right to acquire and possess property. 
 Leep v. St. Louis, I. M. & S. R. Co. 58 Ark. 
 407, 25 S. W. 75, 23 : 264 
 
 720. A law which deprives men engaged 
 in the business of mining of the privilege of 
 contracting with each other for the pur- 
 pose of ascertaining the weight of the coal 
 mined or the amount due them>in any man- 
 ner mutually satisfactory cannot be sus- 
 tained. Harding v. People, 160 111. 459, 43 
 N. E. 624, 32: 445 
 
 721. A statute requiring the weighing of 
 coal hoisted from mines, which is made ap- 
 plicable to those mines only whose product 
 shall be shipped by rail or water, violates a 
 constitutional prohibition against depriving 
 persons of liberty or property without due 
 process of law. Id. 
 
 722. The rights of miners and operators to 
 make contracts by which the former shall 
 be entitled to receive and the latter obliged 
 to make compensation according to the 
 value of the services rendered and received 
 are unwarrantably invaded by Ohio act 
 March 9, 1898 (93 Ohio Laws, p. 33), en- 
 titled "An Act to Provide for the Weighing 
 of Coal before Screening," by which it is 
 made unlawful to pass the output of coal 
 mined over any screen or other device which 
 shall take any part from the value thereof, 
 before it has been weighed and duly credited 
 to the employee sending it to the surface, 
 and, accounted for at the legal rate of 
 \voislits fixed by statute. Re Preston, 63 
 Ohio St. 428, 59 'N. E. 101, 52: 523 
 
 723. A statute requiring the wages of coal 
 miners, if based on the quantity of coal 
 mined, to be computed on the whole quan- 
 tity mined before it is reduced by screen- 
 in? or any other device, and that all coal 
 shall be weighed in the cars before being 
 dumped into screens or chutes, is unconsti- 
 tutional as an attempt to take away with- 
 
 out due process of law the property right of 
 contracting in respect to such wages. 
 Ramsey v. People, 142 111. 380, 32 X. E. 364, 
 
 17: 853 
 
 724. A statute forbidding, under penalty, 
 persons or corporations engaged in private 
 enterprises from paying employees in store 
 orders not redeemable in cash is unconstitu- 
 tional as interfering with the right to con- 
 tract. State v. Missouri Tie & Timber Co. 
 181 Mo. 536, 80 S. W. 933, 65: 588 
 
 725. A statute prohibiting mining or 
 manufacturing concerns from issuing for the 
 payment of wages any order or other evi- 
 dence of indebtedness payable otherwise 
 than in lawful money of the United States, 
 unless the same is negotiable and redeem- 
 able without discount in cash or in supplies 
 at the option of the holder, is void as de : 
 priving persons of liberty without due pro- 
 cess of law. State v. Loomis, 115 Mo. 307. 
 22 S. W. 350, 21 : 789 
 
 726. A statute providing that every per- 
 son, firm, corporation, or company using 
 coupons, scrip, punchouts, store orders, or 
 other evidences of indebtedness to pay its 
 laborers and employees shall, if demanded, 
 redeem the same in the hands of such labor- 
 ers, employees, or bona fide holders in good 
 and lawful money of the United States, at 
 their face value, if presented on any regular 
 pay day, does not deprive persons of liberty 
 or property without due process by restrict- 
 ing the right of contract. Harbison v. 
 Knoxville Iron Co. 103 Tenn. 421, 53 S. W. 
 955, 56: 316 
 
 727. A statute making it unlawful for a 
 person or corporation engaged in mining or 
 manufacturing to engage or be interested in 
 keeping or controlling any truck, store, shop, 
 or scheme, for furnishing supplies, tools, 
 clothing, provisions, or groceries, to employ- 
 ees; but which does not apply to those em- 
 ploying laborers in other branches of busi- 
 ness, violates the constitutional guaranty 
 that no person shall be deprived of life, lib- 
 erty, or property without due process of 
 law. Frorer v. People, 141 111. 171, 31 N. E. 
 395, 16: 492 
 
 728. A restriction of the right of corpo- 
 rations to contract with employees as to 
 payment of wages requiring weekly pay- 
 ments denies the constitutional rights of the 
 employees, and does not affect the corpo- 
 ration merely. Braceville Coal Co. v. Peo- 
 ple, 147 111. 66, 35 N. E. 62, 22: 340 
 
 729. A statute requiring the weekly pay- 
 ment of wages, by interfering with the 
 liberty of contract, deprives citizens of their 
 liberty and property without due process of 
 law. Republic Iron & S. Co. v. State, 160 
 Ind. 379, 66 N. E. 1005, 62: 136 
 
 730. A statute requiring manufacturers to 
 pay wages of their employees weekly, al- 
 though applying to individuals as well as to 
 corporations, is within the power of the leg- 
 islature under the Massachusetts Constitu- 
 tion, which extends such power to "all man- 
 ner of wholesome and reasonable orders, 
 laws, statutes, and ordinances," and does not 
 in terms make any provisions as to free-
 
 612 
 
 CONSTITUTIONAL LAW, II. b, 4. 
 
 dom or liberty of contract. Re House Bill 
 No. 1,230, 163 Mass. 589, 40 N. E. 713, 
 
 28:344 
 
 731. A statute forbidding an employer to 
 impose a fine upon, or to withhold wages 
 from, an employee engaged in weaving, for 
 any imperfections in the weaving, is in 
 violation of a constitutional provision which 
 enumerates among the natural and inalien- 
 able rights of men the rights of acquiring, 
 possessing, and protecting property, as this 
 right includes the right to make reasonable 
 contracts which shall be under the protec- 
 tion of the law. Com. v. Perry, 155 Mass. 
 117, 28 N. E. 1126, 14: 325 
 
 732. Corporations may, by statute, be 
 compelled on the discharge of an employee 
 to pay the wages then earned, and without 
 discount for prepayment, although by the 
 terms of his contract the wages would not 
 have been yet payable, if power to amend 
 their charter has been reserved. Leep v. St. 
 Louis I. M. & S. R. Co. 58 Ark. 407, 25 S. 
 W. 75, 23 : 264 
 
 733. A statute depriving a city and one 
 contracting with it to perform work on pub- 
 lic improvements, of the power to contract 
 for the necessary labor at the best rates ob- 
 tainable, violates the principles of civil 
 liberty and the constitutional provisions pro- 
 tecting private property. People ex rel. 
 Rodgers v. Coler, 166 N. Y. 1, 59 N. E. 716, 
 
 52: 814 
 
 734. Municipal corporations cannot be re- 
 quired by the legislature to pay more for 
 common labor employed on public improve- 
 ments than it is worth in the market. Such 
 legislation unconstitutionally deprives the 
 taxpayers of their privileges and immuni- 
 ties, and of their property without due 
 process of law, interferes with their right 
 of contract, and is invalid as class legisla- 
 tion. Street v. Vamey Electrical Supply 
 Co. 160 Ind. 338, 66 N. E. 895, 61: 154 
 
 735. A statute prohibiting the assignment 
 of future wages by employees is not void 
 as an unreasonable restraint upon the lib- 
 erty of the citizen, or as depriving him of 
 his property without due process of law. 
 International Text-Book Co. v. Weissinger, 
 160 Ind. 349, 65 N. E. 521, 65: 599 
 
 c. Regulation of Rates. 
 
 For Editorial Notes, see infra. III. 17. 
 
 736. A statute limiting the amount of toll 
 which may be taken by a water mill which 
 does grinding for the public is not unconsti- 
 tutional. State v. Edwards, 86 Me. 102. 29 
 Atl. 047, 25:504 
 
 737. A reduction of the rates of a turn- 
 pike company will not constitute a depri- 
 vation of its property without due process 
 of law, where it does not appear that the 
 dividends will be thereby reduced, or. if so, 
 to what extent. Winchester & L. Turn p. 
 Road Co. T. Croxton, 98 Ky. 739, 34 S. \V. 
 518. 33: 177 
 
 738. N. Y. act 1888, chap. 581, which fixes 
 a maximum charge for elevating grain, is 
 not unconstitutional as depriving elevator 
 
 owners of their property without due proc- 
 ess of law, as the legislature has power to 
 control and regulate elevator charges in the 
 cases where that act applies, which rests on 
 the nature and extent of the business, the 
 existence of a virtual monopoly, the benefit 
 derived from the canal, creating the business 
 and making it possible, the interest to trade 
 and commerce, the relation of the business 
 to the prosperity and welfare of the state, 
 and the practice of legislation in analogous 
 cases. People v. Budd, 117 N. Y. 1, 22 N. 
 E. 670, 5: 559 
 
 For insurance. 
 
 739. The constitutional guaranty of the 
 right to life, liberty, and property does not 
 include the right of insurers to contract 
 among themselves for the maintenance of 
 rates. State ex rel. Crow v. Firemen's 
 Fund Ins. Co. 152 Mo. 1, 52 S. W. 595, 
 
 45: 363 
 
 740. The Kansas anti-trust law of 1897 
 making unlawful any combination to create 
 or carry out restrictions on trade or com- 
 merce, to control the prices of any article 
 or commodity or the rates of insurance, or 
 to prevent competition in the manufacture, 
 transportation, sale, or purchase of mer- 
 chandise, produce, or commodities does not 
 conflict with the guaranty of the Federal 
 Constitution of the right to acquire prop- 
 erty by lawful contract, and is a valid exer- 
 cise of legislative power. State v. Smiley, 
 65 Kan. 240, 69 Pac. 199, 67:903 
 Of carrier. 
 
 Equal Protection and Privileges as to, see 
 
 supra, 420, 421. 
 See also infra, 919. 
 For Editorial Notes, see infra, III. 17. 
 
 741. The right to regulate fares on street 
 railroads does not include the power to re- 
 quire passengers to be carried without re- 
 ward, or for such sum as will amount to 
 confiscation or the taking of property with- 
 out compensation or due process of law. 
 Indianapolis v. Navin, 151 Ind. 139, 156, 47 
 N. E. 525, 51 N. E. 80, 41:337 
 
 742. A railroad company which was in- 
 corporated and acquired its property rights 
 and franchises after the enactment of N. Y. 
 Laws 1895, chap. 1027, requiring such com- 
 panies to issue 1,000-mile tickets at reduced 
 prices, is not deprived of property without 
 due process of law by the enforcement of 
 such statute. Purdy v. Erie R. Co. 162 N. 
 Y. 42, 56 N. E. 508," 48: 669 
 
 743. A statute prohibiting more than fair 
 and reasonable rates by a railroad corpora- 
 tion, being merely declaratory of a com- 
 mon-law rule, although penal, does not de- 
 prive the company of its property without 
 due process of law because the statute does 
 not fix any limit to the rates, especially 
 where a provision is made in the same stat- 
 ute for the fixing of rates by commission- 
 ers. Chicago, B. & Q. R. Co. v. Jones, 149 
 111. 361, 37 N. E. 247, 24: 141 
 
 744. A statute absolutely requiring a rail- 
 road com pan y to carry freight for the same 
 rates that any other company may accept 
 for hauling the same freight between the 
 same points, although by a shorter line,
 
 CONSTITUTIONAL LAW, II. b, 4. 
 
 613 
 
 without giving the right of judicial investi- 
 gation by due process of law, and no matter 
 how great disparity in the length of such 
 hauls may be, is unconstitutional as a dep- 
 rivation of -pioperty without due process of 
 law. State ex rel. Board of Transp. v. 
 Sioux City, 0. & W. R. Co. 46 Neb. 682, 65 
 N. W. 766, 31 : 47 
 
 745. A statute imposing a penalty for 
 charging more than just and reasonable 
 compensation for the services of a carrier, 
 without fixing any standard to determine 
 what is just and reasonable, thus leaving 
 the criminality of the carrier's act to de- 
 pend on the jury's view of the reasonable- 
 ness of a rate charged, is in violation of the 
 constitutional provision against taking prop- 
 erty without due process of law.* Louisville 
 & N. R. Co. v. Com. 99 Ky. 132," 35 S. W. 
 129, 33:209 
 
 d. Regulation of sales. 
 
 Equal Protection and Privileges ag to, see 
 
 supra, II. a, 5 a. 
 
 Police Power as to, see infra, 1076-1078. 
 See also supra, 727; infra, 778-782, 1073, 
 
 1075. 
 
 746. The mixing or mingling of articles of 
 food which are wholesome and nutritious, 
 and the sale thereof, cannot be made crimi- 
 nal by the legislature. Dorsey v. State, 
 38 Tex. Crim. Rep. 527, 44 S. W. 514, 40: ?,01 
 
 747. A statute which makes it unlawful 
 to maKe options for the sale of commodities 
 of those kinds which have been the sub- 
 ject of gambling operations does not violate 
 the constitutional provisions against depri- 
 vation of property without due process of 
 law. Booth v. People, 186 111. 43, 57 N. E. 
 798, 50: 762 
 
 748. An act which merely makes a regu- 
 lation tor the sale of lard, by which the pub- 
 lic may know by inspection of the package 
 the ingredients used in its preparation if it 
 is not the pure fat of healthy swine, is not 
 an unwarranted interference with trade, and 
 does not violate the constitutional provisions 
 as to due process of law. State v. Snow, 81 
 Iowa, 642, 47 N. W. 777, 11:355 
 Cigarettes. 
 
 749. An ordinance prohibiting the sale of 
 cigarettes without a license does not violate 
 the constitutional provisions as to due pro- 
 cess of law or any constitutional rights, 
 (bundling v. Chicago, 176 111. 340, 52 N. E. 
 44, 48:230 
 Fish. 
 
 See also infra, 982-984. 
 
 750. The wholesomeness of trout as food 
 does not make a statute prohibiting them 
 to be sold or kept in possession for the pur- 
 pose of sale operate to deprive the owner 
 of property without due process of law, 
 where the statute permits him to have 
 them in possession for the purpose of eat- 
 ing them or giving them away. State v. 
 Schuman, 36 Or. 16, 58 Pac. 661, 47: 153 
 Tickets. 
 
 Equal Protection and Privileges as to, see 
 
 supra, 422, 423. 
 See also infra, 1080. 
 
 ^51. A person is not deprived of his prop- 
 
 erty in a carrier's ticket without due proc- 
 ess of law by prohibiting the sale thereof, 
 at least where he purchased the ticket 
 while the act was in force. State v. Cor- 
 bett, 57 Minn. 345, 59 N. W. 317, 24: 498 
 
 752. A statute making it unlawful for any 
 person to sell a railroad or steamboat tick- 
 et, or any part thereof, without a certificate 
 from the carrier, except in case of the sale 
 of part of a ticket by a person who has 
 bought it with the bona fide intention of 
 traveling upon it, does not violate the con- 
 stitutional provision against deprivation of 
 life, liberty, or property, without due proc- 
 ess of law. Burdick v. People, 149 111. 600, 
 36 N. E. 948, 24: 152 
 
 753. An ordinance making it a penal of- 
 fense for any person, except a duly author- 
 ized conductor or agent of a street rail- 
 way company, to issue, deliver, give, or 
 sell any transfer, transfer check, or ticket 
 issued, or purporting to be issued, by such 
 company, is not unconstitutional as an un- 
 lawful deprivation of property, since it in- 
 terferes with no rights enjoyed by the pas- 
 senger under his contract with the railway 
 company, as the transfer is given to him 
 for the purpose of enabling him to continue 
 his journey, and is not transferable or as- 
 signable to another; nor is it a depriva- 
 tion of the personal liberty guaranteed by 
 U. S. Const. 14th Amend. 1, and Cal. Const, 
 art. 1, 1. Ex parte lorenzen, 128 Cal. 431, 
 61 Pac. 68, 50: 55 
 Intoxicating liquors. 
 
 Equal Protection and Privileges as to, see 
 supra, 486-491. 
 
 Provision for licensing Liquor Sellers, see 
 Intoxicating Liquors, 68. 
 
 Regulation of Liquors Generally, see Intox- 
 icating Liquors, I. 
 
 See also infra, 825, 927, 928. 
 
 754. A statute providing for the prohibi- 
 tion of the sale of intoxicating liquors in 
 any county by vote of the electors does 
 not violate the constitutional provision as to 
 due process of law. Territory ex rel. Me 
 Mahon v. O'Connor, 5 Dak. 397, 41 N. W. 
 746, 3: 355 
 
 755. A statute prohibiting the sale of in- 
 toxicating liquors by any private individual, 
 and vesting in the state the exclusive right 
 to manufacture and sell such liquors, vio- 
 lates the provisions of S. C. Const, art. 1, 
 1, 14, guaranteeing all men the right of 
 "acquiring, possessing, and protecting prop- 
 erty," and providing that no person shall 
 be "despoiled or dispossessed of his proper- 
 ty, immunities, or privileges ... or de- 
 prived of his life, liberty, or estate, but by 
 the judgment of his peers or the law of the 
 land." McCullough v. Brown, 41 S. C. 220, 
 19 S. E. 458, 23: 410 
 
 756. A municipal regulation that cider 
 shall not be sold in less quantities than one 
 gallon, and shall not be drunk at the place 
 of sale, violates no private right, and does 
 not unreasonably or improperly restrain 
 trade, although it is not limited to the sale 
 of cider which is intoxicating. Lawrence v. 
 Monroe. 44 Kan. 607, 24 Pac. 1113, 
 
 10: 520
 
 614 
 
 CONSTITUTIONAL LAW, II. b, 5. 
 
 757. Conferring power upon a municipal 
 corporation to require licenses for the sale 
 of intoxicating liquors, within 4 miles of 
 its corporate limits, does not deprive citi- 
 zens of their constitutional property rights, 
 or of the privileges and immunities protect- 
 ed by the Federal Constitution. Jourdan 
 v. Evansville, 163 Ind. 512, 72 N. E. 544, 
 
 67: 613 
 
 Itinerant venders; merchants. 
 Equal Protection and Privileges as to, see 
 
 supra, 471-485. 
 Police Power as to, see infra, 1023, 1024. 
 
 758. The individual liberty of the citizen 
 is not invaded, in violation of his constitu- 
 tional rights, by a statute taxing venders of 
 merchandise according to the amount of 
 their annual sales. Knisely v. Cotterel, 196 
 Pa. 614, 46 Atl. 861, 50: 86 
 
 759. Requiring itinerant venders to de- 
 posit $500 with the state treasurer to be 
 returned on the surrender of the license, less 
 the amount of any fines and costs that may 
 have been imposed, does not deprive the li- 
 censee of property without due process of 
 law. State v. Harrington, 68 Vt. 622, 35 
 Atl. 515, 34: 100 
 
 760. A statute forbidding the purchase 
 of a stock of goods in bulk without ascer- 
 taining the seller's creditors, and having 
 their claims settled, does not deprive the 
 seller of his property without due process 
 of law, and is not void as class legislation; 
 nor is it in restraint of trade. McDaniels 
 v. J. J. Connelly Shoe Co. 30 Wash. 549, 71 
 Pac. 37, 60: 947 
 
 761. A statute prohibiting, under penal- 
 ty, a solvent merchant from disposing of 
 his stock of goods in bulk without notify- 
 ing his creditors, and which is applicable, 
 also, to persons acting in a fiduciary capac- 
 ity and under judicial process, when mer- 
 chants who are not indebted have that priv- 
 ilege, unconstitutionally deprives him of his 
 liberty and property. Block v. Schwartz, 
 27 Utah, 387, 76 Pac. 22, 65: 308 
 Trading stamps. 
 
 See also License, 87, 88. 
 
 762. A statute which prohibits a person 
 who sells an article from giving to the pur- 
 chaser as part of the same transaction a 
 stamp, coupon, or other device which will 
 entitle him to receive from a third person 
 some other well defined article in addition 
 to the one sold, is an unwarrantable inter- 
 ference with individual liberty guaranteed 
 by R. I. Const, art. 1, 10, and U. S. Const. 
 14th Amend. 1. State v. Dalton, 22 R. I. 
 77, 46 Atl. 234, 48: 775 
 
 5. As to Use or Enjoyment of Property. 
 
 See also supra, 352, 634; infra, 929, 930, 
 1063, 1141. 
 
 As to highway. 
 
 Equal Protection and Privileges as to, see 
 
 supra, 322-325. 
 
 Police Power as to, see infra, 960-966. 
 See also supra, 325. 
 
 763. An ordinance declaring a portion of 
 an avenue to be a boulevard, on which the 
 bouses shall be used only for rosidences, is 
 
 an unconstitutional invasion of the right of 
 private ownership of property. [Per Gantt, 
 C. J., and Robinson & Brace, JJ.] St. Louis 
 v. Dorr, 145 Mo. 466, 46 S. W. 976, 42: 686 
 
 764. The conversion of a public highway 
 into a pleasure driveway from which loaded 
 vehicles are excluded does not deprive citi- 
 zens desiring to transport loads over it of 
 their property without due process of law, 
 or take their private property for public use 
 without compensation. Cicero Lumber Co. 
 v. Cicero, 176 111. 9, 51 N. E. 758, 42: 696 
 
 765. An ordinance making it unlawful to 
 beat a drum upon any traveled street with- 
 out special permit from the president of the 
 board of trustees, which he may grant when- 
 ever in his judgment it shall not conflict 
 with the purposes of the ordinance, is not 
 an unconstitutional denial of individual 
 rights. Re Flaherty, 105 Cal. 558, 38 Pac. 
 981, 27:529 
 
 766. Requiring a railroad company to 
 change the grade of its tracks so as to con- 
 form to that of streets crossing it, for the 
 purpose of correcting a situation dangerous 
 to the life of persons attempting to use the 
 street, is not a taking or damaging of its 
 property without due process of law; nor 
 is it an injury for which compensation must 
 be made. Houston & T. C. R. Co. v. Dallas, 
 98 Tex. 396, 84 S. W. 648, 70: 850 
 Flags. 
 
 Equal Privileges as to, see supra, 451. 
 Police Power as to, see infra, 1007. 
 
 767. A statute providing for punishment 
 of persons placing words, figures, or designs 
 on the national or state flag for advertising 
 or other purposes, or using or displaying a 
 flag so decorated, which intends to prevent 
 the use of flags already decorated as well as 
 those to be decorated in the future, is void 
 as depriving persons owning flags so deco- 
 rated of their property without due process 
 of law. People ex rel. McPike v. Van De 
 Carr, 178 N. Y. 425, 70 N. E. 965, 66: 189 
 Trademarks. 
 
 Equal Protection as to, see supra, 337-340. 
 
 768. A statute providing for the registra- 
 tion and protection of trademarks, which at- 
 tempts to empower the party injured by a 
 violation of the statute to fix, within limits 
 prescribed, the amount of the penalty 
 which, in addition to full compensation for 
 the injury suffered, shall be exacted from 
 the offender for the use and benefit of the 
 injured party, is unconstitutional, since this 
 would deprive the offender of his property 
 without due process of law. Cigar Makers' 
 International Union v. Goldberg (N. J. Err. 
 & App.), 70 N. J. L. 214, 61 Atl. 457, 70: 156 
 Animals; fish; game. 
 
 Police Power as to, see infra, 973-985. 
 See also supra, 687, 750; infra, 907-914. 
 
 769. The owner of hogs is not deprived of 
 his property without due process of law by 
 making it unlawful to permit them to run 
 at large. Haigh v. Bell, 41 W. Va. 19, 23 vS. 
 E. 666, 31: 131 
 
 770. A classification of counties according 
 to the Federal census of 1890, in a statute 
 prohibiting live stock to run at large in 
 counties having a specified population ac-
 
 CONSTITUTIONAL LAW, II. b, 5. 
 
 615 
 
 cording to that census, without any pro- 
 vision as to their present or actual popula- 
 tion, is in violation of Term. Const, art. 1, 
 8, respecting deprivation of property with- 
 out "the law of the land,"' and art. 11, 
 8, prohibiting laws granting to any individ- 
 uals rights, privileges, immunities, or ex- 
 emptions other than the same law extends 
 to anyone who may be able to bring him- 
 self within its provisions. Sutton v. State, 
 96 Tenn. 696, 36 S. W. 697, 33: 589 
 
 771. The owner of land is not deprived of 
 the inherent right to "the means of acquir- 
 ing and possessing property," or of the 
 constitutional guaranty against taking his 
 property for public uses without just com- 
 pensation, by a statute denying him any 
 recovery for trespass on his lands by ani- 
 mals, unless he has enclosed the\ premises 
 by a lawful fence. May v. Poindexter, 98 
 Va. 143, 34 S. E. 971, 47:588 
 
 772. The private rights of property of the 
 owners of animals are not infringed by an 
 ordinance requiring that the animals shall 
 not be cruelly treated in the public places 
 of a city. State v. Karstendiek, 49 La. Ann. 
 1621,22 So. 845, 39: 520 
 
 773. A statute making it unlawful to con- 
 sign any elk, moose, caribou, or deer, or 
 any part thereof except the head or skin by 
 a common carrier to any commission mer- 
 chant or sale market at any time, is not an 
 unconstitutional deprivation of property 
 without due process of law, since wild game 
 before it is reduced to possession belongs 
 to the state in trust for the whole public, 
 and any right of property acquired therein 
 is from its inception subject to all limita- 
 tions imposed by police laws. State ex rel. 
 Corcoran v. Chapel, 64 Minn. 130, 66 N. W. 
 205, 32: 131 
 
 774. The prohibition of the possession of 
 quail during the closed season, made by 
 Burns's (Ind.) Rev. Stat. 1894, 2209 (Hor- 
 ner's Rev. Stat. 2106), which declares it 
 unlawful to shoot, destroy, or have in pos- 
 session any quail between January 1 and 
 November 10 of any year, is not in viola- 
 tion of U. S. Const. 14th Amend., forbidding 
 the taking of property without due process 
 of law, or of Ind. Const, art. 1, 21, pro- 
 viding that no man's property shall be tak- 
 en without just compensation, even as to 
 persons in possession of quail in the closed 
 season which were acquired during the open 
 season, but is a legitimate exercise of the 
 power of the legislature to protect game. 
 Smith v. State, 155 Ind. 611, 58 N. E. 1044, 
 
 51 : 404 
 
 775. A state cannot forbid a nonresident 
 landowner to take fish and game upon his 
 property within the state while according 
 such privilege to resident landowners, in 
 view of the provisions of the Federal Con- 
 stitution forbidding denial of the equal pro- 
 tection of laws, and the deprivation of prop- 
 erty without due process of law. State v. 
 Mallory, 73 Ark. 236, 83 S. W. 955, 67: 773 
 
 776. No unconstitutional deprivation of 
 property is effected by a statute forbidding 
 the use of horses whose tails are docked 
 
 after its passage. Bland v. People, 32 Colo. 
 319, 76 Pac. 359, 65: 424 
 
 777. The owner of a dead animal before 
 it has become a nuisance has property rights 
 in it of which he cannot be deprived with- 
 out compensation, although the authorities 
 may require its removal within a reasonable 
 time before -it actually becomes a nuisance. 
 Schoen v. Atlanta, 97 Ga. 697, 25 S. E. 380, 
 
 33:804 
 
 Transfer of property. 
 As to Regulation of Sales, see supra, II. fc, 
 
 4, d. 
 
 As to Mortgages, see supra, 696, 697. 
 See also infra, 897-900. 
 
 778. The right to transfer property in 
 payment of a debt when solvent is within 
 the constitutional protection of property 
 rights, and is valid by Tennessee Acts 1895, 
 chap. 128, declaring that every transfer of 
 property to prefer creditors or which "would 
 have that effect" shall be void without lim- 
 iting it to cases of insolvency. Third Nat. 
 Bank v. Divine Grocery Co. 97 Tenn. 603, 
 37 S. W. 390, 34: 445 
 
 779. The legislature cannot empower the 
 court, in its discretion, to authorize a mar- 
 ried woma-n to convey her real estate by 
 separate deed, in jurisdictions where the 
 common law, giving the husband a free- 
 hold right in the property, is in force, since 
 it would deprive him of his property with- 
 out due process of law. Hubbard v. Hub- 
 bard, 77 Vt. 73, 58 Atl. 969, 67 : 969 
 
 780. The limitation on the right of a hus- 
 band to make gifts of community property 
 or convey it without consideration, made by 
 Cal. act March 31, 1891, amending Cal. Civ. 
 Code, 172, by requiring the wife's written 
 consent in such cases, cannot apply to com- 
 munity property acquired before the passage 
 of the act, as the husband's right in that 
 property cannot be devested by statute. 
 Spreckels v. Spreckels, 116 Cal. 339, 48 Pac. 
 228, 36: 497 
 
 781. The right to transmit property by 
 inheritance to one's descendants or next of 
 kin is "property," within the meaning of 
 the constitutional provision that a person 
 shall not be deprived of property except by 
 judgment of his peers or of the law of the 
 land. Dibrell v. Lanier, 89 Tenn. 497, 15 S. 
 W. 87, 12: 70 
 
 782. A statute providing that the personal 
 estate of an intestate lunatic, if derived 
 from an intestate husband or wife, shall go 
 to the latter's next of kin, is unconstitution- 
 al because the classification of persons there- 
 by made is unnatural, arbitrary, and capri- 
 cious, in consequence of which the statute 
 is not a "law of the land" within the mean- 
 ing of the Constitution. Id. 
 Preventing waste of natural gas. 
 
 Equal Protection and Privileges as to, see 
 supra, 342. 
 
 783. A statute making it unlawful to per- 
 mit the escape of natural gas into the open 
 air from a well for longer than two days 
 after it is constructed is not unconstitution- 
 al. State v. Ohio Oil Co. 150 Ind. 21, 49 N. 
 E. 809, 47 : 627 
 
 784. Constitutional guaranties of life, lib-
 
 616 
 
 CONSTITUTIONAL LAW, II. b, 6, 7. 
 
 erty, and the pursuit of happiness are not 
 infringed by a statute which prohibits the 
 burning of natural gas for illuminating 
 purposes in flambeau lights. Townsend v. 
 State, 147 Ind. 624, 47 N. E. 19, 37: 294 
 
 785. A person is not deprived of the full 
 and free use of his property by a statute 
 exercising the police power of the state, 
 which restrains him from using natural gas 
 to the injury of others or to the injury of 
 the public by burning flambeau lights. Id. 
 
 6. As to Rights in Office. 
 
 Equal Protection as to, see supra, 330-334. 
 See also supra, 636-637. 
 
 786. A determination against the claim 
 of a right to an office is not a deprivation 
 of life, liberty, or property within the pro- 
 vision of U. S. Const. 14th Amend., as to 
 due process of law. Taylor V. Beckham, 108 
 Ky. 278, 56 S. W. 177, 49: 258 
 
 787. A provision in a statute which es- 
 tablishes an appointive state board of com- 
 missioners to consist of three members, 
 that not more than two members shall be 
 adherents of the same political party, is 
 not violative of a constitutional provision 
 that no person shall be deprived of life, lib- 
 erty, or property without due process of 
 law, even when giving the word "liberty" 
 a definition wide enough to include the right 
 to be eligible to hold office, and considering 
 that after two members of the commission 
 have been appointed from one political par- 
 ty all other members of the same party are 
 ineligible to the vacant commissionership. 
 Rogers v. Buffalo, 123 N. Y. 173, 25 N. E. 
 274, 9: 579 
 
 788. The fact that a statute authorizing 
 the appointment of a state board of commis- 
 sioners to consist of three members provides 
 that not more than two of them shall be ad- 
 herents of the same political party does not 
 render it void under a constitutional pro- 
 vision which declares that "no member of 
 this state shall be disfranchised or deprived 
 of any of the rights or privileges secured 
 to any citizen thereof, unless by the law of 
 the land or the judgment of his peers," not- 
 withstanding that after two commissioners 
 have been appointed from one party all oth- 
 er members of that party are ineligible to 
 the vacant commissionership. Id. 
 Removal from office. 
 
 789. Due process of law in respect to the 
 removal of an officer does not mean a trial 
 by a constitutional judiciary, but is fur- 
 nished by the governor's investigation au- 
 thorized by a state Constitution, although he 
 is given the power not only to decide on 
 the removal, but to present the charges and 
 employ counsel in the investigation. Atty. 
 Gen. ex rel. Rich v. Jochim, 99 Mich. 358. 
 58 N. W. 611, 23: 699 
 
 7. Remedies and Procedure. 
 a. In General. 
 
 Equal Protection and Privileges as to, see 
 
 supra, II. a, 7. 
 Denial of Continuance on Admission, see 
 
 Continuance and Adjournment. 20, 22. 
 
 Staying Second Ejectment Suit Till Costs 
 of Former Suit Paid, see Costs and 
 Fees, 55. 
 
 Private Session of County Board of Rev- 
 enue, see Counties, 87. 
 
 See also supra, 334, 597, 633, 744, 745. 
 
 For Editorial Notes, see infra, III. 8. 
 
 790. "Remedy by due course of law," as 
 used in the Kansas Bill of Rights, 18, 
 means the reparation for injury, ordered by 
 a tribunal having jurisdiction, in due course 
 of procedure, after a fair hearing. Hanson 
 v. Krehbiel, 68 Kan. 670, 75 Pac. 1041, 
 
 64: 790 
 
 791. Deprivation of a remedy is equiva- 
 lent to the deprivation of the right which 
 it is intended to vindicate, unless another 
 remedy exists or is substituted for that 
 which is taken away. Normal School Dist. 
 Bd. of Edu. v. Blodgett. 155 111. 441, 40 N. 
 E. 1025, 31 : 70 
 
 792. The right to a remedy by due course 
 of law is not satisfied by the requirement 
 contained in a statute to make specific rep- 
 aration for the injury done, which repara- 
 tion is the same in all cases, and bears no 
 relation to the injury suffered, and has not 
 been decreed by a tribunal after ascertain- 
 ment of the extent of such Injury Hanson 
 v. Krehbiel, 68 Kan. 670, 75 Pac. 1041, 
 
 64: 790 
 
 793. Due process of law is shown when an 
 opportunity is conferred to invoke the equal 
 protection of the law by judicial proceed- 
 ings appropriate for the purpose and ade- 
 quate to secure the end and object sought 
 to be attained. Chicago, B. & Q. R. Co. v. 
 State ex rel. Omaha, 47 Neb. 549, 66 N. W. 
 624, 41 : 481 
 
 794. The court cannot enter judgment in 
 favor of plaintiff in an action for the re- 
 covery of real estate of which defendant is 
 in possession, because of defendant's non- 
 compliance with a rule of coart requiring 
 him to deposit one half the reporter's per 
 diem before proceeding to trial, since it de- 
 prives him of his property without due 
 process of law. Meacham v. Bear Valley 
 Irrig. Co. 145 Cal. 606, 79 Pac. 281, 68: 600 
 
 795. The question whether or not milk 
 which is daily offered for sale in every part 
 of a large and populous city comes up to 
 the prescribed standard, for the purpose of 
 confiscating and destroying that which is 
 condemned, may be determined otherwise 
 than by ordinary process of judicial investi- 
 gation or by chemical analysis, without vio- 
 lating the constitutional provision as to due 
 process of law. Deems v. Baltimore, 80 Md. 
 164, 30 Atl. 648, 26: 541 
 
 796. Allowing an injunction without a 
 bond to prevent the use of property in vio- 
 lation of a statute does not deprive the own- 
 er of his property without due process of 
 law. State ex rel. Duensing v. Roby, 142 
 Ind. 168, 41 N. E. 145, 33: 213 
 In contempt proceeding. 
 
 797. Comriiitment for contempt in refus- 
 ing to make a disclosure as required by la\v 
 is not a deprivation of liberty without due
 
 CONSTITUTIONAL LAW, II, b, 7. 
 
 617 
 
 process of law. Re Clayton, 59 Conn. 510, 
 21 Atl. 1005, 13: GO 
 
 798. Refusal to permit a man charged 
 with contempt by publications respecting 
 evidence in a judicial trial, to show in de- 
 fense that the publications were true, and 
 for this purpose to disprove the accuracy 
 of the reporter's notes which have been of- 
 fered against him, is such a deprivation of 
 his constitutional right to make a defense 
 as to be a denial of due process of law. 
 McClatchy v. Sacramento County Super. Ct. 
 119 Cal. 413, 51 Pac. G96, 39: 691 
 
 799. Due process in the imprisonment of 
 a witness for refusal to answer a proper 
 question on an investigation by grand jurors 
 does not require a regular trial and judg- 
 ment, but is complied with by the issue of a 
 writ, on complaint of the grand jurors, to a 
 justice ot the peace as provided in Conn. 
 Gen. Stat. 91. Re Clark, G6 Conn. 17, 31 
 Atl. 522, 28: 242 
 Mode of serving process. 
 
 Delegation of Power to Courts to Determine, 
 
 see supra, 183. 
 
 See also sunra, 592, infra, 863, 864. 
 For Editorial Notes, see infra, III. 8. 
 
 800. In an action in personam of a strict- 
 ly judicial character, and proceeding accord- 
 ing to the course of the common law, serv- 
 ice of summons by publication in a news- 
 paper, upon resident defendants who are 
 personally within the state and can be found 
 therein, is not "due process of law." Bard- 
 well v. Anderson, 44 Minn. 97, 46 N. W. 
 315, 9: 152 
 
 801. Jurisdiction of a proceeding in rem 
 acquired by virtue of the power of the 
 court over the res. without personal service 
 on claimants within the state or notice by 
 name to those outside of it, is not violation 
 of constitutional provisions for due process 
 of law. Tyler v. Judges of Court of Regis- 
 tration, 175 Mass. 71, 55 N. E. 812, 51: 433 
 
 802. A statute authorizing service of sum- 
 mons on corporations which neglect to file 
 lists of the names of officers on whom 
 process may be served, by leaving copies 
 with the register of deeds where the cor- 
 poration has its principal office, is invalid as 
 not providing due process of law. Pinney 
 v. Providence Loan & I. Co. 106 Wis. 396, 
 82 N. W. 303, 50: 577 
 
 803. A statute authorizing service of proc- 
 ess on an agent of a foreign corporation, 
 "no matter what character of agent such 
 person may be," if the corporation has any 
 transaction with any person or concerning 
 any property in the state through any 
 agency whatever within the state, is not 
 unconstitutional as authorizing judgment 
 without due process of law, at least when 
 the service is on an agent who may be rea- 
 sonably presumed to give notice thereof to 
 the corporation. Connecticut Mut. L. In*. 
 Co. v. Spratley, 99 Tenn. 322, 42 S. W. 145 
 
 44: 442 
 
 804. The provision of Minn. Gen. Laws 
 1894, 399, authorizing the courts to di- 
 rect the manner in which service shall be 
 made on the agents or servants of a com- 
 mon carrier of a notice of a hearing of an 
 
 accusation that it refuses or neglects to 
 obey a lawful order of the railroad and 
 warehouse commission, is not objectionable 
 as an attempt to obtain jurisdiction over 
 ;he carrier without due process of law. 
 State ex rel. Railroad & W. Commission v. 
 Adams Exp. Co. 66 Minn. 271, 68 N. W. 
 1085, 38: 225 
 
 As to jury. 
 
 Equal Protection and Privileges as to, see 
 supra, 594-597. 
 
 805. The constitutional provision that 
 every person ought to obtain justice freely 
 and without purchase is not violated by a 
 statute providing for a struck jury on de- 
 mand of either party, but on condition of 
 his payment of the fees and expenses, with- 
 out any allowance therefor in the taxation 
 of costs. Lommen v. Minneapolis Gaslight 
 Co. 65 Minn. 196, 68 N. W. 53, 33: 437 
 
 806. A statute authorizing a court to de- 
 lare a turnpike road abandoned and vacated 
 
 as a toll road, and thereby a free road, on 
 the ground that it had been out of repair 
 for the preceding six months, without the 
 intervention of a jury or the right of appeal 
 whereby the question of its being out of re- 
 pair for six months could be determined by 
 a jury, is in conflict with constitutional 
 guaranties of a remedy by due course of 
 law and against deprivation of property 
 without due process of law. Salt Crock 
 Valley Turnp. Co. v. Parks, 50 Ohio St. 5fi, 
 35 N. E. 304, 28: 76* 
 
 807. "Due process of law" guaranteed by 
 Utah Const, art. 1, 7, is not infringed by 
 10 of the same aiticle, declaring that in 
 courts of general jurisdiction, except in cap- 
 ital cases, a jury shall consist of eight 
 jurors. State v. Bates, 14 Utah, 293, 47 
 Pac. 78, 43 : 33 
 
 808. Due process of law within U. S. 
 Const. 14th Amend. 1, declaring that no 
 state shall deprive any person of life, lib- 
 erty, or property without due process of 
 law, is not denied by Utah Const, art. 1, 
 10, providing that in courts of general juris- 
 diction, except in capital cases, a jury shall 
 consist of eight jurors. Id. 
 
 809. Due process of law is not denied by 
 requiring the jury in a criminal case to be 
 composed of persons taken from the body 
 selected by a special commissioner of jurors 
 from the general list. People v. Dunn, 157 
 X. Y. 528. 52 N. E. 572, 43: 247 
 
 810. "Due process of law" does not re- 
 quire that all grand juries finding indict- 
 ments for felonies shall be organized as at 
 common law and with the same number of 
 jurors. Parker v. People, 13 Colo. 155, 21 
 Pac. 1120. 4: 803 
 As to appeal. 
 
 Provision for, in Drainage Statute, see 
 Drains and Sewers, 14. 
 
 In Eminent Domain Case, see Eminent Do- 
 main, 199. 
 
 See also, infra, 806, 868. 
 
 811. Giving an appeal from the decisions 
 of drainage commissioners in classifying 
 lands for assessment, and fixing amounts of 
 damages and benefits as well as on every 
 other question except that of necessity for
 
 618 
 
 CONSTITUTIONAL LAW, II. b, 7. 
 
 drainage, provides due process of law. State, 
 ex rel. Baltzell v. Stewart, 74 Wis. 620, 43 
 N. W. 947, 6: 394 
 
 812. A provision that a judgment shall 
 not be reversed for error in the charge of 
 the court, unless such error is excepted to 
 by bill or on motion for new trial, in Tex. 
 Code Crim. Proc. 723, is not unconstitu- 
 tional, since it affects no vested right, but 
 regulates the remedy merely. Johnson v. 
 State, 42 Tex. Crim. Rep. 87, 58 S. W. 60, 
 
 51:272 
 Filing new opinion. 
 
 813. The constitutional provision as to 
 due process of law is not violated by filing 
 a new and! fuller opinion after the cause has 
 been remanded to a lower court. Adams v. 
 Yazoo & M. V. R. Co. 77 Miss. 194-, 24 So. 
 200, 317, 28 So. 956, 60: 33 
 As to lien. 
 
 Notice and Hearing as to, see infra, 877- 
 
 880. 
 As to Amendment of Lien Statement, see 
 
 Mechanics' Liens, 117. 
 
 814. A statute making an employer's sam- 
 ples liable to a lien for hotel bills of his 
 traveling salesman in whose possession they 
 are does not deprive him of his property 
 without due process of law. Brown Shoe 
 Co. v. Hunt, 103 Iowa, 586, 72 N. W. 765, 
 
 39:291 
 
 815. A statute giving a mechanics' lien 
 precedence over all other encumbrances 
 created before or after such lien is unconsti- 
 tutional as taking a man's property away 
 without his consent and without process of 
 law. Meyer v. Berlandi, 39 Minn. 438, 40 
 N. W. 5l3, 1:777 
 
 816. A statute making a contract for the 
 construction of a building, in which the 
 contract price is payable with something be- 
 sides money, so far invalid as to furnish 
 the owner no protection from the claims of 
 subcontractors and material men, is an un- 
 constitutional infringement of the owner's 
 right to the possession and enjoyment of 
 his property. Stimson Mill Co. v. Braun, 136 
 Cal. 122, 68 Pac. 481, 57:726 
 
 817. An owner of property who has made 
 and filed a valid contract for the placing of 
 a building thereon, under which, by the 
 terms of the statute, the entire contract 
 price may be applied to the claims of labor- 
 ers and material men, cannot constitution- 
 ally be required to furnish a bond which 
 will make him liable to them in an addition- 
 al amount in case their claims are not satis- 
 fied by the contractor. Gibbs v. Tally, 133 
 Cal. 373, 65 Pac. 970, 60: 815 
 
 818. A purchaser of property upon which 
 a log lien is claimed is deprived of the prop- 
 erty without due process of law by a stat- 
 ute making him personally liable for the 
 full amount of the claim, if a petition for 
 lien is duly filed, proceedings to enforce it 
 are begun in time, and the property has 
 been so changed that the lien cannot be en 
 forced against it. Rogers-Ruger Co. v. Mur- 
 ray, 115 Wis. 2G7, 91 N. W. 657, 59: 737 
 
 As to insane persons. 
 
 Notice and Hearing as to, see infra, 874- 
 876. 
 
 819. An order by a judge for the tempo- 
 rary confinement of a person alleged to bo 
 insane, pending proceedings for the deter- 
 mination of that question, is not a denial of 
 due process of law when made on a written 
 complaint and affidavit to the fact of insan- 
 ity, but it is clearly within the police power 
 of the state, and is for the restraint of a 
 dangerous person in an emergency. Porter 
 v. Ritch, 70 Conn. 235, 39 Atl. 169, 
 
 39: 353 
 
 820. R. I. Pub. Stat. chap. 74, 11, 12, 
 authorizing the confinement of insane per- 
 sons upon a certificate from two practising 
 physicians, etc., violates the provision of U. 
 S. Const. Amend. 14, that no state shall de- 
 prive any person of life, liberty, or property 
 without due process of law. Re Gannon, 16 
 R. I. 537, 18 Atl. 159, 5: 359 
 
 821. The refusal by a judge of the supe- 
 rior court at the time when judgment is to 
 be entered or after it has been entered in a 
 capital case, to allow or order a judicial in- 
 vestigation concerning the mental condition 
 of the accused, either with or without the 
 aid of a jury, is not a denial of due process 
 of law, as the provisions of Ga. Pen. Code, 
 1047, rela-ting to inquisitions in such mat- 
 ters, are sufficiently comprehensive to cover 
 all cases of alleged insanity beginning after 
 the rendition of the verdict. Baughn v. 
 State, 100 Ga. 554, 28 S. E. 68, 38: 577 
 Criminal matters. 
 
 Equal Protection and Privileges as to, see 
 
 supra, 593, 595, 601. 
 Matters as to Procedure on Criminal Trial 
 
 Generally, see Criminal Law, II. 
 Right to Public Trial, see Criminal Law, 
 
 88-90. 
 Right to Speedy Trial, see Criminal Law, 
 
 90-92. 
 
 Right of Accused to be Present, see Crim- 
 inal Law, 93, 94. 
 Right to Meet Witnesses, see Criminal Law, 
 
 96, 97. 
 As to Self-Crimination, see Criminal Law, 
 
 87, 98-102; Witnesses, II. c. 
 Necessity of Indictment or Information, 
 
 see Criminal Law, II. d. 
 Former Jeopardy, see Criminal Law, II. g. 
 Requisites of Indictment, see Indictment, 
 
 etc., 50, 89. 
 
 See also supra, 807-810, 821 ; infra, 920-923. 
 For Editorial Notes, see infra, III. 8. 
 
 822. The constitutional requirement of 
 due process of law is not violated by a stat- 
 ute extending the right to arrest without 
 warrant for crime committed in presence of 
 an officer, to offenses for which such arrest 
 was not authorized when the Constitution 
 was adopted. Burroughs v. Eastman, 101 
 Mich. 419, 59 N. W. 817, 24:859 
 
 823. An ordinance providing that a person 
 may be arrested and taken, without warrant 
 or hearing, to the station house because he 
 refuses to "move on," and, in the opinion of 
 an officer, "unreasonably persists in remain- 
 ing so as to incommode others passing," vio- 
 lates a constitutional provision that "no per-
 
 CONSTITUTIONAL LAW, II. b, 7. 
 
 619 
 
 son shall be taken, imprisoned, ... or 
 in any manner deprived of his life, liberty 
 or property, but by the law of the land.' 
 State v. Hunter, 106 N. C. 796, 11 S. E. 30(5 
 
 8: 529 
 
 824. The disclosure by physicians of 
 knowledge obtained as to the condition, 
 with reference to venereal disease, of a pris- 
 oner whom they examined against his will 
 upon his trial for rape, is prohibited by a 
 constitutional provision that no person shall 
 be deprived of life, liberty, or property 
 without due process of law, and securing 
 persons against unreasonable searches. State 
 v. Height, 117 Iowa, 650, 91 N. W. 935, 
 
 59: 437 
 
 825. Requiring a person convicted of in- 
 toxication to make a disclosure under oath, 
 as to when, where, how, and froiri*whom he 
 procured the intoxicating liquor, does not 
 violate the constitutional provisions as to 
 due process of law, equal protection, or right 
 of trial by jury; nor is it against public 
 policy. Re Clayton, 59 Conn. 510, 21 Atl. 
 1005, 13: 66 
 
 6. As to Right of Action or Defense. 
 (1) Of Action. 
 
 (a) In General. 
 Equal Privileges as to, see supra, 384, 385. 
 
 826. The constitutional right to acquire, 
 possess, and protect property prevents mak- 
 ing a man liable for the acts and engage- 
 ments of strangers over whom he has no 
 control. Durkin v. Kingston Coal Co. 171 
 Pa. 193, 33 Atl. 237, 29: 808 
 
 827. A statute depriving a creditor of his 
 vested right of bringing an action in another 
 state is a deprivation of property without 
 due process of law. Re Flukes, 157 Mo. 125, 
 57 S. W. 545, 51: 176 
 For support of poor person. 
 
 828. The procedure under the Illinois pau- 
 per's act (111. Rev. Stat. chap. 107) to com- 
 pel the support of a poor person by a rela- 
 tive, in which a complaint is filed in a 
 county court and at least ten days' notice 
 given to the defendant by summons, after 
 which the court proceeds in a nummary way, 
 without further written pleadings, to deter- 
 mine the question of the defendant's liabil- 
 ity and to make the necessary judgment and 
 orders, is not insufficient to constitute due 
 process of law. People use of Peoria County 
 v. Hill, 1R3 111. 186, 46 N. E. 796, 36: 634 
 
 829. The inclusion of brothers and sisters 
 in the list of those who are made liable for 
 the support of a poor person whose pauper- 
 ism has not resulted from intemperance or 
 other bad conduct, by 111. Rev. Stat. chap. 
 107, 1, is not unconstitutional, but the 
 statute transforms an imperfect moral duty 
 into a statutory and legal liability. Id. 
 
 830. The constitutional provision for due 
 process of law is violated by a statutory 
 provision for charging a town with the 
 maintenance of a pauper upon report of a 
 commission, the members of which are not 
 required to take an oath, or authorized to 
 
 I administer oaths to witnesses appearing be- 
 fore them, or to render any judgment in 
 proceedings brought before them, and whose 
 report is acted upon by the court without 
 independent investigation. Church v. South 
 Kingstown, 22 R. I. 381, 48 Atl. 3, 53: 739 
 By deserted wife. 
 
 831. A statute authorizing a deserted wife 
 to prosecute or defend in the husband's 
 name any action which he might have pros- 
 ecuted or defended, and giving her the same 
 powers and rights therein as he might have 
 had, even if it is construed to give her au- 
 thority to collect debts due to him, is not 
 unconstitutional as depriving him of his 
 property without due process of law. Allen 
 v. Minnesota Loan & T. Co. 68 Minn. 8, 70 
 N. W. 800, 37 : 679 
 Against employer, 
 
 832. A statute holding a mine owner lia- 
 able for the negligence of his manager, and 
 at the same time forbidding him to em- 
 ploy any person in that capacity who has 
 not a certificate of competency from the 
 state board of examiners, does not uncon- 
 stitutionally deprive him of any rights. Ful- 
 ton v. Wilmington Star Min. Co. 133 Fed. 
 193, 68: 168 
 
 833. The imposition of liability on a mine 
 owner by Pa. act 1891, art. 17, for the fail- 
 ure of a certified foreman, whom he is com- 
 pelled to employ, and with whose acts he 
 cannot interfere, and whose duties are pre- 
 scribed by the act, to comply with those 
 duties, is unconstitutional and void. Dur- 
 kin v. Kingston Coal Co. 171 Pa. 193, 3.T 
 Atl. 237, 29: 808 
 
 834. A statute attempting to make a cor- 
 poration, on the discharge of an employee, 
 pay the whole amount of his stipulated 
 wages up to that date, although by his 
 failure to perform his contract he has dam- 
 aged the corporation, is unconstitutional as 
 taking property from the corporation with- 
 out due process of law. Leep v. St. Louis, 
 I. M. & S. R. Co. 58 Ark. 407, 25 S. W. 75. 
 
 23: 264 
 Limiting recovery in libel case. 
 
 835. The legislature cannot make the re- 
 traction of a libel a ground for limiting the 
 liability of the publisher to special damages 
 inflicted by it. Osborn v. Leach, 135 N. C. 
 628, 47 S. E. 811. 66:648 
 
 836. The legislature may remove the lia- 
 bility for punitive damages in libel suits 
 in cases where a retraction is made upon 
 notice, since the right to such damages is 
 not a property right. Id. 
 
 837. A statute in relation to liability for 
 libel, which in effect permits evidence of 
 good faith, coupled with a full retraction, 
 not merely in modification of damages, but 
 ;o prevent the recovery of general damasres 
 as distinguished from special damages for 
 
 njury of a pecuniary nature, does not vio- 
 ate, Minn. Const, art. 1, 8, which provides 
 :hat "every person is entitled to a certain 
 remedy in the laws for all injuries or 
 wrongs which he may receive on his per- 
 son, property, or character." Allen v. Pion- 
 er Press Co. 40 Minn. 117, 41 N. W. 936. 
 
 3: 532
 
 620 
 
 CONSTITUTIONAL LAW, II. b, 7. 
 
 838. A statute limiting the recovery, in an 
 action for libel against a newspaper pub- 
 lisher, to actual damages only, where it ap- 
 pears on the trial that the article was pub- 
 lished in good faith, and that within a spec- 
 ified time after service of notice, by the 
 party libeled, of his intent to bring an ac- 
 tion, specifying the statement alleged to 
 be libelous, a full and fair retraction was 
 published in as conspicuous a place and type 
 in such newspaper as was the alleged libel- 
 ous article, is void as denying the constitu- 
 tional right to a remedy by due process of 
 law for an injury suffered. Hanson v. Kreh- 
 biel, 68 Kan. 670, 75 Pac. 1041, 64: 790 
 Shortening period of limitations. 
 
 839. A statute which practically denies a 
 party the right to sue on an existing cause 
 of action, by shortening the period of limi- 
 tations, without leaving a reasonable time 
 thereafter in which to bring the action, de- 
 prives the party of his property without due 
 process of law. Osborne v. Lindstrom, 9 
 N. D. 1, 81 N. W. 72, 46: 715 
 
 840. A statute which shortens the period 
 for bringing an action, without providing a 
 reasonable time for bringing it after the 
 statute takes effect, is unconstitutional as 
 a deprivation of property without due proc- 
 ess of law, even if a period of several 
 months elapses between the passage of the 
 act and the time when it goes into effect. 
 Gilbert v. Ackerman, 159 N. Y. 118, 53 N. E. 
 753, 45: 118 
 Repeal of statute giving right of action. 
 
 841. The repeal of a statute which created 
 a right of action against a county for an 
 injury resulting from a defective bridge or 
 highway does not violate a constitutional 
 provision that every man shall have a rem- 
 edy by due course of law for injury done 
 him in person, property, or reputation, 
 although the statute was in force at the 
 adoption of the Constitution. Templeton v. 
 Linn County, 22 Or. 313, 29 Pac. 795, 15: 730 
 
 (b) Against Railroad Companies or Carriers. 
 
 Equal Protection and Privileges as to, see 
 
 aupra, II. a, 3, 6. 
 
 Police Power as to, see infra, 1014, 1015. 
 For Editorial Notes, see infra, III. 14. 
 
 842. A statute requiring railroads to build 
 cattle guards whenever demand for them is 
 made by the owners of land through which 
 the road runs is not unconstitutional on 
 the ground that the landowner is made the 
 sole judge of the necessity for them, since 
 the statute might require the company to 
 construct them in every case. Birmingham 
 Mineral R. Co. v. Parsons, 100 Ala. 662, 13 
 So. 602, 27: 263 
 For fires. 
 
 Equal Protection and Privileges as to, see 
 
 sunra. 429-434. 
 
 Police Power as to, see infra, 952. 
 For Editorial Notes, see infra, III. 14. 
 
 843. The property of a railroad company 
 is not taken without due process of law by 
 a statute making the company liable for 
 fires set bv its locomotives or originating 
 
 on its right of way by an act of its agents 
 or servants, but giving the company an in- 
 surable interest in the property exposed to 
 such dangers. McCandless v. Richmond & 
 D. R. Co. 38 S. C. 103, 16 S. E. 429, 18: 440 
 
 844. The Colorado act of 1874, making 
 every railroad corporation liable for all dam- 
 ages by fire caused by operating the road, 
 is not unconstitutional, but is merely the 
 re-enactment, pro tanto, of a provision of 
 the ancient common law. Union P. R. Co. 
 v. De Busk, 12 Colo. 294, 20 Pac. 752, 
 
 3: 350 
 
 845. As to fires not caused by negligence, 
 the statute merely provides that the person 
 whose use of a dangerous agency caused a 
 loss to another innocent person shall bear 
 the loss. Id. 
 
 846. A railroad company is not deprived 
 of its property without due process of law, 
 or contrary to the law of the land, by a 
 statute making such company liable for all 
 fires caused and communicated from locomo- 
 tives. Matthews v. St. Louis & S. F. R. Co. 
 121 Mo. 298, 24 S. W. 591, 25: 161 
 [Aff'd by the Supreme Court of the United 
 States in 165 U. S. 1, 41 L. ed. 611, 17 Sup. 
 Ct. Rep. 243.] 
 
 For injury to stock. 
 
 Equal Protection and Privileges as to, see 
 
 supra, 428. 
 For Editorial Notes, see infra, III. 14. 
 
 847. Due process of law is not afforded by 
 a statute allowing a railroad company to be 
 charged with liability for stock killed by 
 trains irrespective of negligence, and the 
 amount of recovery to be established with- 
 out proof of the value of the stock. Wads- 
 worth v. Union P. R. Co. 18 Colo. 600, 33 
 Pac. 515, 23: 812 
 
 848. A statute cannot impose an absolute 
 liability on railroad companies for damages 
 caused by jts trains in killing stock, irre- 
 spective of the railroad company's negli- 
 gence or fulfilment of the requirements of 
 the statutes, but may impose a liability 
 for negligence or failure to construct cat- 
 tle guards required by statute. Birmingham 
 Mineral R. Co. v. Parsons, 100 Ala. 662. 
 13 So. 602, 27:263 
 
 849. The Utah act of March 3, 1884, mak- 
 ing any railroad company causing the death 
 of live stock by running an engine over or 
 against it liable for the value thereof, with- 
 out regard to fault or negligence of the cor- 
 poration, attempts to authorize the taking 
 of property without due process of law, and 
 is void. Jensen v. Union P. R. Co. 6 Utah, 
 253, 21 Pac. 994, 4: 724 
 
 850. Mont. Comp. Stat. p. 826, 5 713, mak- 
 ing every railroad corporation liable to the 
 owner for damages sustained by injuring or 
 killing an animal by running trains, is un- 
 constitutional as attempting to create the 
 liability without reference to anv violation 
 of law or omission of duty. Bielenberg v. 
 Montana Union R. Co. 8 Mont. 271, 20 Pac. 
 314, 2: 813 
 
 851. A statute attempting to make a rail- 
 road liable for all damages to animals by 
 running trains cannot, in order to prevent its 
 condemnation as being unconstitutional, be
 
 CONSTITUTIONAL LAW, II. b, 7. 
 
 621 
 
 construed to mean that the killing shall be 
 prima facie evidence of negligence. Id. 
 
 Against carrier. 
 
 852. A right of action for injury to a rail- 
 road passenger given by Neb. Com p. Stat. 
 chap. 72, art. 1, 3, unless the injury is 
 occasioned by his own criminal negligence 
 or by his violation of some express rule or 
 regulation of the carrier actually brought 
 to his notice, is not in violation of the con- 
 stitutional provision as to -due process of 
 law, but the statute is justifiable under the 
 police power of the state. Chicago, R. I. & 
 P. R. Co. v. Zernecke, 59 Neb. 689, 82 N. W. 
 26, 55: 610 
 
 (2) Of Defense. 
 
 As to Right to Notice and Hearing 1 , see in- 
 fra, II. b, 7, c. 
 See also infra, 1100. 
 
 853. A right of defense is a remedy of 
 the defendant within tne constitutional pro- 
 tection of rights. Normal School Dist. Bd. 
 of Edu. v. Blodgett, 155 111. 441, 40 N. E. 
 1025, 31:70 
 
 854. The phrase "due process of law" 
 means at least some legal procedure in 
 which the person proceeded against, if he is 
 to be concluded thereby, shall have an op- 
 portunity to defend himself. Re Gannon, 16 
 R. I. 537, 18 Atl. 159, 5: 359 
 
 855. A judgment against sureties in a 
 summary proceeding for the amount of a 
 judgment recovered against the principal in 
 an action to which they were not made par- 
 ties is without due process of law, when 
 there has been no suit brought against them 
 on the undertaking, nor any opportunity 
 given them to plead or defend according to 
 the usual course of legal proceedings. Second 
 Nat. Bank v. Becker, 62 Ohio St. 289, 56 N. 
 E. 1025, 51: 860 
 Of limitation. 
 
 Vested Right in Defense of Limitations, see 
 supra, 160-162. 
 
 856. A complete defense under the statute 
 of limitations is property within the pro- 
 tection of a constitutional guaranty of due 
 process of law. Normal School Dist. Bd. of 
 Kdu. v. Blodgett. 155 111. 441, 40 N. E. 
 1025, 31:70 
 
 o. Notice and Hearing. 
 
 As to Mode of Serving Process, see supra, 
 800-804. 
 
 On Removal of Officer, see Officers, 146, 147, 
 150. 
 
 Of Intention to Fix Water Rates, see Wa- 
 ters. 589. 
 
 See also supra, 798, 828. 
 
 For Editorial Notes, see infra, IIL 8. 
 
 857. The institution and prosecution of a 
 proceeding in a court comprehend the filing 
 of a proper complaint, process for bringing 
 in the proper parties, and a judicial in- 
 quiry according to established rules and 
 practice. Zanesville v. Zanesville Teleg. & 
 Teleph. Co. 64 Ohio, St. 67, 59 N. E. 781, 
 
 52: 150 
 
 858. A law constitutionally enacted, which 
 affords a hearing before it condemns, and 
 provides for judgment after trial, does not 
 deprive of property, privileges, or immuni- 
 ties without due course of the law of the 
 land. Union C. L. Ins. Co. v. Chowning. 86 
 Tex. 654, 26 S. W. 982, 24: 504 
 
 859. Due process of law is not furnished 
 by a judgment pronounced without oppor- 
 tunity to be heard by a court of competent 
 jurisdiction in accordance with the provi- 
 sions of a statute, unless that statute ac- 
 cords with the provisions of the fundament- 
 al law. People v. Havnor, 149 N. Y. 195, 43 
 N. E. 541, 31: 689 
 [Writ of Error Dismissed in 170 U. S. 408, 
 42 L. ed. 1087, 18 Sup. Ct. Rep. 631.] 
 
 860. Where individual rights are con- 
 cerned, and the matter is one upon which a 
 party is entitled to be heard, a proceeding 
 conclusively and finally disposing of indi- 
 vidual property rights will oe void, unless 
 founded upon a law providing for notice of 
 some kind. It is not enough that some 
 notice or information may be given, but the 
 law must provide for notice. Kuntz v. 
 Sumption, 117 Inu. 1, 19 N. E. 474, 
 
 2: 655 
 
 861. Special proceedings applicable to the 
 specified subject-matter, and conformable to 
 the rules requiring notice an^ the acquisi- 
 tion of jurisdiction, and which afiect all 
 persons alike whose property or rights come 
 within the lawful scope of the proceedings, 
 are prosecuted with "due process of law." 
 Burlington, C. R. & N. R. Co. v. Dey, 82 
 Iowa, 312, 48 N. W. 98, 12: 436 
 
 862. The remedy by due course of law 
 guaranteed by 16 of the Ohio Bill of 
 Rights extends to all the adversary rights 
 of persons in property, and requires, before 
 judicially determining such right, that juris- 
 diction of the person shall be obtained by 
 process issued and served, although substi- 
 tuted or constructive service may be pro- 
 vided by the legislature when actual serv- 
 ice is impracticable. State ex rel. Monnett 
 v. Guilbert, 56 Ohio St. 575, 47 N. E. 551, 
 
 38: 519 
 
 863. Notice by registered mail, in addi- 
 tion to notice by publication, of proceed- 
 ings by the state board of control created 
 by Wyo. act Dec. 22, 189.0, for the deter- 
 mination of rights in the waters of the 
 state, to each person having a recorded 
 claim to waters of the streams embraced 
 in the adjudication proceedings, is sufficient 
 to constitute due process of law. Farm In- 
 vestment Co. v. Carpenter, 9 Wyo. 110, 61 
 Pac. 258, 50: 747 
 
 864. Mailing to a resident of the state, as 
 well as publishing, a notice of a proceeding 
 in scire facias to revive a judgment, as pro- 
 vided in 2 Starr & C. (111.) Stat. p. 1789, 
 where his residence is stated in the affidavit, 
 which shows that he lias gone out of the 
 state or is concealed within it so that proc- 
 ess cannot be served on him, is sufficient 
 to satisfy the constitutional requirement of 
 due process of Law. Bickerdike v. Allen, 
 157 111. 95, 41 N. E. 740, 29: 782 
 
 865. Statutes conferring upon a city coun-
 
 622 
 
 CONSTITUTIONAL LAW, II. b, 7. 
 
 cil power to regulate and license all kinds 
 of business, and authorizing them to re- 
 voke any license where there is reason to 
 believe that such business is a nuisance, a 
 menace to public health, or detrimental to 
 peace or morals, provided such revocation 
 shall be by unanimous consent of the board, 
 which fail to provide for any notice to the 
 licensee are not unconstitutional as de- 
 priving a person of property without due 
 process of law. Wallace v. Reno, 27 Nev. 
 71, 73 lac. 528, 63: 337 
 
 866. One is not deprived of his property 
 without due process of law by an ordinance 
 imposing a penalty for failing to cut the 
 weeds on it, which cannot be collected until 
 after a day in court. St. Louis v. Gait, 179 
 Mo. 8, 77 S. W. 876, 63: 778 
 
 867. Due process of law does not require 
 notice to the owner of premises before the 
 board of health under statutory authority 
 can order him to furnish water in tenement 
 houses, where he is entitled to a trial in 
 any attempt to enforce a penalty or punish- 
 ment for noncompliance. New York Health 
 Dept. v. Trinity Church, 145 N. Y. 32, 39 
 N. E. 833, 27: 710 
 
 868. A statute providing for constructive 
 notice only of the institution and pendency 
 of a writ of error proceeding, by making a 
 record in the minute book of the circuit 
 court a substitute for personal service, does 
 not violate the constitutional provision 
 against deprivation of property without due 
 process of law. State ex rel. Andreu v. Can- 
 field, 40 Fla. 36, 23 So. 591, 42:72 
 In establishing building line. 
 
 8G9. The establishment of a building line 
 merely by statute or ordinance, without no- 
 tice to lotowners, who are thereby prevented 
 from building on their own lots within a 
 certain distance from the street, deprives 
 them of property without due process of 
 law. St. Louis v. Hill, 116 Mo. 527, 22 S. 
 W. 861, 21: 226 
 
 In eminent domain. 
 See also Eminent Domain, 135. 
 
 870. A statute authorizing gravel to be 
 taken from private lands for necessary re- 
 pairs on highways is not unconstitutional 
 because notice is not required to be given to 
 the owner, or any participation allowed him 
 in the selection or formation of the tri- 
 bunal to assess his damages, where he is 
 given an opportunity to present a claim for 
 compensation to the county court by writ- 
 ten complaint, and have his damages as- 
 sessed and paid, with opportunity to be 
 heard on that question. Branson v. Gee, 
 25 Or. 462, 36 Pac. 527, 24: 355 
 In curative act. 
 
 871. A curative act validating the estab- 
 lishment of an improvement by a county 
 board of supervisors, which has been de- 
 clared void for want of jurisdiction because 
 of the lack of a proper petition, is not un- 
 constitutional as authorizing the taking of 
 private property without just compensation, 
 where such act gives to those to be taxed 
 an opportunity to be heard after notice. As 
 to the taking of property, such proceedings 
 stand in the same position as any other case 
 
 of taxation for public purposes. Richman 
 v. Muscatine County, 77 Iowa, 513, 42 N. W. 
 422, 4: 445 
 
 As to the adoption of child. 
 
 872. Due process of law in proceedings 
 for the adoption of a child on the ground of 
 the parent's abandonment requires, as to 
 the parent, .some notice and opportunity to 
 be heard. Schiltz v. Roenitz, 86 Wis. 31, 
 56 N. W. 194, 21 : 483 
 As to poor person. 
 
 873. The removal of a person in destitute 
 circumstances, who applies for public sup- 
 port in a county where he is temporarily 
 remaining, to a county in which he has a 
 legal settlement, by the county commission- 
 ers or their chairman without judicial pro- 
 ceedings or notice to him of the contem- 
 plated removal, and without opportunity to 
 be heard in respect thereto, does not violate 
 the constitutional provision as to due proc- 
 ess of law. Lovell v. Seeback, 45 Minn. 465, 
 48 N. W. 23, 11: 667 
 As to insane person. 
 
 See also supra, 819-821. 
 
 874. Adjudging a person insane without 
 notice to him, under Iowa Code, 1400, 
 when the commissioners think it would be 
 injurious to him to hold the examination in 
 his presence, does not deprive him of his 
 liberty without due process of law, where 
 a regular practising physician visits and per- 
 sonally examines him, and any relative, or 
 any citizen of the county, may appear and 
 resist the application, and the parties may 
 appear by counsel if they like. Chavannes 
 v. Priestly, 80 Iowa, 316, 45 N. W. 766, 
 
 9:193 
 
 875. A statute permitting commitment to 
 a hospital for the insane upon an applica- 
 tion by a relative or friend of the alleged 
 insane person, or by any one of certain of- 
 ficials, accompanied by a certificate of au- 
 thorized medical examiners that insanity 
 exists, together with a statement of the 
 facts and circumstances on which the opin- 
 ion is Lased, without any provision for no- 
 tice to the alleged insane person, is void 
 as depriving him of liberty without due 
 process of law. Re Lambert, 134 Cal. 626, 
 66 Pac. 851, 55: 856 
 
 876. Empowering the court, in its discre- 
 tion, to commit one acquitted of murder 
 because of insanity to an asylum for treat- 
 ment, from which he cannot be released 
 without an act of the legislature, without 
 notice to him or giving him an opportunity 
 to be heard, or any provisions for investiga- 
 tion as to his present mental state, deprives 
 him of his liberty without due process of 
 law. Re Boyett, 136 N. C. 415, 48 S. E. 
 789, 67:972 
 As to liens. 
 
 See also supra, 664, 814-818. 
 
 877. A judgment which assumes to create 
 a preference in favor of a labor debt over a 
 pre-existing lien on the debtor's property, 
 in pursuance of Mich. Pub. Acts 1887, No. 
 94, 2, authorizing such judgment without 
 making the lienor a party to the action, or 
 making provision for determining the ques- 
 tion of the debtor's insolvency or of the
 
 CONSTITUTIONAL LAW, II. b, 7. 
 
 right to the preference, is void as to him 
 because its enforcement would deprive him 
 of his property without due process of law. 
 Fisher v. Wineman, 125 Mich. 642, 84 N. 
 W. 1111, 52: 192 
 
 878. Minn. Gen. Stat. 1894, 2451-2465, 
 authorizing the establishment of a logger's 
 lien without notice to the owner, but not 
 precluding him from denying in a subse- 
 quent proceeding plaintiff's right to a lien, 
 and giving him an opportunity to intervene 
 in the original action, is not unconstitu- 
 tional as taking the property of one person 
 to pay the debt of another without due 
 process of law. Brown v. Markham, 60 
 Minn. 233, 62 N. W. 123, 30: 84 
 
 879. The lien given to a subcontractor, 
 materialman, or laborer by Ky. act March, 
 1896 (Ky. Stat. 2463), though given irre- 
 spective of any notice of the claim or of the 
 state of the account between the owners and 
 the contractors, is not unconstitutional, as 
 to future contracts, as a taking of one 
 man's property to pay the debt of another 
 without giving any day in court, or as an 
 unwarrantable interference with the right to 
 make contracts. Hightower v. Bailey, 108 
 Ky. 198, 56 S. W. 147, 49: 255 
 
 880. That the only notice of intention to 
 claim a mechanic's lien, required by stat- 
 ute, is the filing of such intention in the 
 recorder's office within sixty days after fur- 
 nishing the materials, does not deprive the 
 property owner of his property without due 
 process of law, if the statute existed when 
 the building contract was made. Smith v. 
 Neubauer, 144 Ind. 95, 42 N. E. 40, 1094, 
 
 33: 685 
 Taxes. 
 See also supra, 664-667, 871; Taxes, 452. 
 
 881. A judicial hearing is not necessary 
 to due process of law in matters of taxa- 
 tiqn. State v. Sponaugle, 45 W. Va. 415, 
 32 S. E. 283, 43: 727 
 
 882. The fact that persons whose proper- 
 ty is assessed have no opportunity to be 
 heard as to who shall be appointed on the 
 assessing commission, and no appeal in 
 which a new commission may be appointed, 
 does not make the assessment unconstitu- 
 tional. Kelly v. Minneapolis, 57 Minn. 294, 
 59 N. W. 304, 26: 92 
 
 883. Requiring every taxable person to 
 bring in an account of his ratable estate to 
 the assessors at a time and place of which 
 he has notice, upon which he may be exam- 
 ined and heard, is sufficient to constitute 
 due process of law in a tax assessment. 
 McTwiggan v. Hunter, 19 R. I. 265, 33 Atl, 
 5, 29:526 
 
 884. Notice of the time and place at 
 which tax assessors will meet in sessions 
 which are not secret, with the right of the 
 taxpayer to appear and be heard, is suffi- 
 cient to constitute due process in the as- 
 sessment. Sam', ford v. Poe, 16 C. C. A. 305, 
 37 U. S. App. 378, 69 Fed. 546, 60: 641 
 
 885. A tax law cannot be held to deprive 
 a taxpayer of his property without due 
 precess of law, because he is given no op- 
 portunity, by its express terms, of having 
 the assessment reviewed by a board of 
 
 equalization or otherwise, if it gives him 
 an opportunity to submit his proofs and 
 make a showing to the assessor in the mat- 
 ter of the assessment of his property. Na- 
 than v. Spokane County, 35 Wash. 26, 76 
 Pac. 521, 65: 336 
 
 886. The denial of due process of law 
 resulting from the provisions of the Indi- 
 ana statute which assumes to confer au- 
 thority upon the county board of equaliza- 
 tion to increase the valuation of property 
 of an individual taxpayer listed by him for 
 taxation, by a decision which is final, with- 
 out giving him an opportunity to be heard, 
 renders such provisions unconstitutional. 
 Kuntz v. Sumption, 117 Ind. 1, 19 N. E. 
 474, 2: 655 
 
 887. Opportunity for contesting in the or- 
 dinary courts of justice a charge imposed 
 upon property where cigarettes are sold is 
 sufficient to uphold the tax as against the 
 owner of the property without notice to 
 him of its assessment, although he may not 
 be directly engaged in the business. Hodge 
 v. Muscatine County, 121 Iowa, 482, 96 N. 
 W. 968, 67 : 624 
 
 888. A collateral inheritance tax for the 
 use of the state, imposed by Iowa Acts 26th 
 Gen. Assem. chap. 28, without any provision 
 for notice to the heirs, legatees, or devisees, 
 is unconstitutional as a deprivation of prop- 
 erty without due process of law. Ferry v. 
 Campbell, 110 Iowa, 290, 81 N. W. 604. 
 
 50: 92 
 
 889. A proceeding in rem under a state 
 statute to revive an outward tax judgment 
 and a lost lien of the state for taxes, in 
 which a default judgment is rendered, does 
 not constitute due process of law. Kipp v. 
 Elwell, 65 Minn. 525, 68 N. W. 105, 
 
 33: 43o 
 
 Assessments for public improvements. 
 See also supra, 668-673; Drains and Sewers. 
 3, 14; Public Improvements, 139. 
 
 890. An owner of property who, before it 
 can be included in a drainage district, is 
 given a day in court, is not deprived of his 
 property without due process of law. 
 Mound City Land & S. Co. v. Miller, 170 Mo. 
 240, 70 S. W. 721, 60: 190 
 
 890a. An assessment by the common 
 council of a city, without notice to, or op- 
 portunity to be heard by, the parties inter- 
 ested in or affected by the assessment, is 
 wanting in "due process of law," if its col- 
 lection can be enforced otherwise than by 
 suit or legal proceedings in which all de- 
 fenses to its validity or amount can be 
 raised. Scott v. Toledo, 36 Fed. 385, 
 
 1 : 688 
 
 890b. Failure to provide for a notice to 
 the person whose property may be affected 
 by a local assessment, and to give oppor- 
 tunity to appear and contest the legality, 
 justice, and correctness of the assessment, 
 at some stage in the proceedings before it 
 becomes final, renders the statute authoriz- 
 ing such assessments void for want of due 
 process of law. Violett v. Alexandria. 92 
 Va. 561. 23 S. E. 909, 31: 382 
 
 890c. The fact that the two modes for 
 the collection of an assessment made with-
 
 624 
 
 CONSTITUTIONAL LAW, 11. b, 7. 
 
 out notice or opportunity to be heard pro- 
 vide for proceedings in court in which de- 
 fense may be made is not sufficient to make 
 an assessment valid as imposed by due proc- 
 ess of law, if the statute allows a third 
 mode of collection by placing the amount 
 upon the tax list and collecting it in the 
 same manner as state and county taxes. 
 Scott v. Toledo, 36 Fed. 385, 1 : 688 
 
 890d. The owner of abutting property as- 
 sessed for sidewalk improvements is not de- 
 prived of his property without due process 
 of law, where the act authorizing such im- 
 provement provides that when execution is 
 issued for the amount of the assessment the 
 owier may file an affidavit denying the 
 whole or any part thereof, returnable to me 
 superior court, the issue upon which is to be 
 tried and determined as in cases of irregu- 
 larity. Speer v. Athens, 85 Ga. 49, 11 S. E. 
 802, 9:402 
 
 890e. Due process of law does not entitle 
 a landowner to a hearing before creation of 
 an irrigation district including his property, 
 although it is for the purpose of making 
 public improvements for which his land will 
 be assessed. It is sufficient that he be al- 
 lowed a hearing at any time before the as- 
 sessment becomes final. Re Madera Irrig. 
 Dist. Bonds, 92 Cal. 296, 341, 28 Pac. 272, 
 
 14: 755 
 
 891. The notice provided for in Ohio Rev. 
 Stat. 2304, which relates merely to the 
 passage of a preliminary resolution declar- 
 ing the necessity for a certain improvement, 
 but makes no reference to any assessment 
 that may be subsequently made in connec- 
 tion with such improvement, or to defray 
 the costs and expenses thereof, is not suf- 
 ficient to make a proceeding to take private 
 property for public uses conform to due 
 process of law. Scott v. Toledo, 36 Fed. 
 385, 1 : 688 
 
 891a. The construction of a sewer by the 
 common council of Portland, Oregon, under 
 121 of the city charter, and charging the 
 cost thereof upon certain property which 
 it declares benefited by the sewer, without 
 first giving the owners notice of its pro- 
 posed construction, does not deprive them 
 of their property without due process of 
 law. Poulsen v. Portland, 16 Or. 450, 19 
 Pac. 450, 1 : 673 
 
 891b. An ordinance fixing the rate per 
 thousand gallons to be paid for discharging 
 a sewer from private premises into a com- 
 mon sewer is not invalid for failure to pro- 
 vide for a hearing on the question as to 
 the rate to be fixed, although there is a 
 mere possibility that the rate fixed may in 
 fact exceed the benefit received. Carson v. 
 Sewerage Comrs. 175 Mass. 242, 56 >.. E. 1, 
 
 48: 277 
 
 891c. An assessment for city improve- 
 ments according to the number of front 
 feet is void on the ground that it does not 
 constitute due process of law, where it is 
 made under general ordinances without no- 
 tice to the property owners, or without any 
 opportunity for thorn to be heard or appear. 
 Ulman v. Baltimore, 72 Md. 587, 597, 609, 20 
 Atl. 141, 21 Atl. 709, 11: 224 
 
 892. An assessment for a street improve- 
 ment made under the charter of the city of 
 Norfolk, Virginia, 25, under a resolution 
 of the council declaring the improvement 
 expedient, and after public notice of such 
 resolution by publication in newspapers, is 
 unconstitutional as a deprivation of prop- 
 erty without due process of law, where the 
 notice wholly failed to designate any tribu- 
 nal before which, or place where, or time 
 when, a party to be affected had the right 
 to appear to expose any alleged wrong in 
 the assessment imposed upon him or his 
 property. Norfolk v. Young, 97 Va. 728, 34 
 S. E. 886, 47:574 
 
 892a. A person upon whose property an 
 assessment for cleaning out a drainage 
 ditch is laid is not deprived of his property 
 without due process of law, where the as- 
 sessment is fixed by the county surveyor 
 after examining the sewer to ascertain 
 whether the work is necessary, and estimat- 
 ing the cost, and a report of his examina- 
 tion and estimate must be returned to the 
 county auditor, who appoints a day for 
 hearing the report, of which due notice is 
 given to all interested parties, and the au- 
 ditor may make such changes in the as- 
 sessment as he deems just, while any per- 
 son aggrieved has a remedy under Ohio Rev. 
 Stat. 1892, 5848, providing for an injunc- 
 tion to restrain the illegal levy or collec- 
 tion of taxes and assessments. Taylor v. 
 Crawford, 72 Ohio St. 560, 74 N. E. 1065, 
 
 69: 805 
 
 892b. Failure to afford a railroad com- 
 pany an opportunity to be heard in oppo- 
 sition to the construction of a ditch to 
 drain off waters accumulating along its 
 right of way from the construction of its 
 road renders a statute providing for the 
 construction of such ditch upon petition of 
 the owner or tenant of contiguous land up- 
 constitutional as a taking of property with- 
 out due process of law. Chicago & E. R. 
 Co. v. Keith, 67 Ohio St. 279, 65 N. E. 1020, 
 
 60: 525 
 
 893. A statute making the issue of im- 
 provement bonds conclusive of the validity 
 of an assessment, and permitting the issue 
 of the bonds without actual notice to the 
 owners of the property assessed or on pub- 
 lished notice only, within forty days after 
 the assessment is finally determined, is 
 unconstitutional as providing for depriva- 
 tion of property without due process of law. 
 Hayes v. Douglas County, 92 Wis. 429, 65 N. 
 W. 482, 31: 213 
 Establishment of boundaries. 
 
 894. A statute enabling a majority of the 
 resident owners of a section of land to com- 
 pel all other owners of the four sections 
 adjacent thereto to contribute equitably to 
 the expense -of locating and marking the sec- 
 tion corners, by an assessment upon their 
 land, without providing for notice to the 
 latter of the time when the work is to be 
 done and the cost apportioned, but merely 
 providing for ten days' notice of an inten- 
 tion to have the work done and notice to 
 the county surveyor, while no notice of any 
 kind is provided for to nonresident land-
 
 CONSTITUTIONAL LAW, II. b, 7. 
 
 625 
 
 owners, is unconstitutional as depriving 
 landlords of their property without due 
 process of law. Davis v. St. Louis County, 
 65 Minn. 310, 67 N. W. 997, 33: 432 
 
 Garnishment. 
 
 895. Due process of law is not furnished 
 by garnishment of a debt due to a nonresi- 
 dent who is not personally served witnin 
 the state and does not voluntarily appear. 
 Louisville & N. R. Co. v. Nash, 118 Ala. 477, 
 23 So. 825, 41 : 331 
 
 Alimony and suit money. 
 
 806. Ordering a man to pay alimony 
 and suit money without having had his day 
 in court and a hearing on the question of 
 the marriage, when that is denied, is a tak- 
 ing of his property without due process of 
 law. Kite v. Hite, 124 Cal. 389, 57- Pac. 227, 
 
 * 45: 793 
 Registering land titles. 
 
 897. The notice by mail, by publication, 
 and by posting on the land which Mass. 
 Stat. 1898, chap. 562, 32, requires to be 
 given of a proceeding for registration of ti- 
 tle to all persons who are known to make 
 any claim of the land, is sufficient to sat- 
 isfy the constitutional provision for due 
 process of law. Tyler v. Judges of Court 
 of Registration, 175 Mass. 71, 55 N. E. 812, 
 
 51:433 
 
 898. The failure to provide for -any no- 
 tice of transfers or other dealings subse- 
 quent to a registration of title under Mass. 
 Stat. 1898, chap. 562, does not make tiie act 
 invalid, as the legislature has power to fix 
 conditions on which land that has been 
 brought into the registry system shall be 
 held. Id. 
 
 899. The determination against adverse 
 claimants of real estate under Ohio act 
 April 27, 1896, for the registration of land 
 titles, made without any issuance and serv- 
 ice of summons upon them, and without 
 any notice except by one published in a 
 newspaper "To whom it may concern," is in 
 violation of the constitutional guaranty of 
 due course of law. State ex rel. Monnett 
 v. Guilbert, 56 Ohio St. 575, 47 i\. E. 551, 
 
 38: 519 
 
 900. The Torrens system of registering 
 land titles, provided for by Minn. Laws 
 1901, chap. 23*, is not unconstitutional as 
 a taking of property without due process 
 of law. where the adjudication is made after 
 an investigation as to the title and as to 
 whether the land is occupied or not, and 
 after personal service of summons on resi- 
 dent parties, and service upon nonresidents 
 and unknown parties by publication, and 
 mailing a copy of the publication notice to 
 nonresidents whose address is known, and a 
 right of appeal is given and reimbursement 
 provided for anyone sustaining loss by the 
 operation of the act out of an assurance 
 fund raised by a percentage charge upon 
 all property adjudicated; althougn the act 
 provides that a decree confirming a title 
 and ordering registration shall be forever 
 binding and conclusive, and snail not be 
 opened by reason of any disability, and 
 that no proceedings shall be had for revers- j 
 ing the judgment, except that any person 
 
 L.R.A. Dig. 40. 
 
 having an interest in the land who has not 
 been actually served or notified of the ap- 
 plication for registration may, within sixty 
 days from the entry of the decree, appear 
 and assert his rights, provided no innocent 
 purchaser for value has acquired an inter- 
 est. State ex rel. Douglas v. \Vestfall, 85 
 Minn. 437, 89 N. W. 175, 57:297 
 
 Seizure, sale, or destruction of property; 
 
 abatement of nuisance. 
 Police Power as to, see infra, 967-972. 
 See also infra, 971. 
 
 901. Police officers may be invested with 
 power to make seizures of property for the 
 purpose of preventing crime, without vio- 
 lating the constitutional provision against 
 seizing property without due process of law. 
 Board of Police Comrs. of Baltimore v. Wag- 
 ner, 93 Md. 182, 48 Atl. 455, 52: 775 
 
 902. Unless articles seized because used 
 for violating law are of such a character 
 that the law will not recognize them as 
 property entitled as such to its protection 
 under any circumstances, they cannot be 
 summarily destroyed without affording the 
 owner an opportunity to be heard upon the 
 subject of their lawful use, and to show 
 whether or not they are intrinsically useful 
 or valuable for some lawful purpose. State 
 v. Robbins, 124 Ind. 308, 24 N. E. 978, 
 
 8: 438 
 
 903. Mont. Rev. 1879, 816, providing 
 that all property of every kind held or used 
 in any of the twenty occupations for which 
 a license is required in that chapter may 
 be seized and sold for the satisfaction of 
 the license due from the person holding or 
 using it, without any notice to the owner, 
 or any trial or opportunity to be heard, 
 and leaving him without any remedy what- 
 ever, violates the constitutional provision as 
 to due process of law. Chauvin v. Valiton, 
 8 Mont. 451, 20 Pac. 658, 3: 194 
 
 904. An act authorizing the seizure of 
 gaming tables, or other instruments of gam- 
 ing, before a conviction of the owner upon 
 a charge of keeping them for gaming pur- 
 poses, is not unconstitutional as depriving 
 a person of property without due process 
 of law. Woods v. Cottrell, 55 W. Va. 476, 
 47 S. E. 275, 65: 616 
 
 905. A hearing of a property owner be- 
 fore the condemnation of his land as a nui- 
 sance by a board of health is not necessary 
 to constitute due process of law, where the 
 question of nuisance remains open to trial 
 in the courts, notwithstanding the decision 
 of the board of health. People ex rel. Cop- 
 cutt v. Yonkers Bd. of Health. 140 N. Y. 1, 
 35 N. E. 320, 23: 481 
 
 Yonkers Bd. of Health v. Copcutt, 140 N. 
 Y. 12, 35 N. E. 443, 23: 485 
 
 906. .Notice to the owner or occupant of 
 premises before the passage of an ordinance 
 by a board of aldermen, under authority of 
 statute, requiring a privy vault to be filled 
 up and destroyed, is not necessary to consti- 
 tute due process of law, since his day in 
 court can be had when sued for a penalty 
 under the ordinance, or by bringing an ac- 
 tion for damages if the authorities fill up
 
 CONSTITUTIONAL LAW, II. b. 7. 
 
 and destroy the vault. Harrington v. Provi- 
 dence, 20 R. I. 233, 38 Atl. 1, 38: 305 
 
 907. Seizure and destruction of nets by 
 officers in obedience to a statute,' in abating 
 a nuisance caused by their voluntary use 
 by the owner in violation of the fishery 
 laws, does not deprive the owner of his 
 property without due process of law or of 
 "a certain remedy in the laws for all inju- 
 ries" to his property, or make an unconsti- 
 tutional "distinction" as to the possession, 
 enjoyment, or descent of property. Bitten- 
 haus v. Johnston, 92 Wis. 588, 66 N. W. 805, 
 
 32: 380 
 
 908. A statute authorizing the game war- 
 den to seize and forfeit to the state, with- 
 out a hearing, all guns, dogs, decoys, fishing 
 tackle, etc., used by any person hunting or 
 fishing without a license, When such license 
 is required by the act, is unconstitutional 
 and void. McConnell v. McKillip (Neb.) 99 
 N. W. 505, 65: 610 
 
 909. A statute permitting the sale at auc- 
 tion of trespassing animals, after the post- 
 ing for ten days by the proper officer of no- 
 tice that the animals had been impounded, 
 and are detained for a certain amount of 
 damages and costs, without providing any 
 judicial proceeding to ascertain either .the 
 damages to be paid, or whether or not the 
 animals were in fact running at large with- 
 in the meaning of the statute, is void as 
 depriving the owner of his property with- 
 out due process of law. Greer v. Downey 
 (Ariz.) 71 Pac. 900, 61: 408 
 
 910. Summary proceedings for the im- 
 pounding of animals running at large and 
 the sale'of them to pay the charges are not 
 unconstitutional as depriving one of his 
 property without due process of law or com- 
 pensation. Burdett v. Allen, 35 W. Va. 347, 
 13 S. E. 1012, 14: 337 
 
 911. An ordinance making a dog liable to 
 be killed by any person unless registered 
 and collared as provided by the ordinance 
 is not in violation of the constitutional pro- 
 vision against depriving a person of prop- 
 erty without due process of law, but is a 
 valid police regulation. Jenkins v. Ballan- 
 tyne, 8 Utah, 245, 30 Pac. 760, 16: 689 
 
 912. An ordinance providing that a dog 
 seized while running at large shall be killed 
 if not ransomed by payment of $1 before 
 10 o'clock of the morning after it has been 
 detained twenty-four hours, and providing 
 for a notice of the seizure to be given to 
 the owner of any dog having a collar with 
 the owner's name thereon, is not unconsti- 
 tutional or so unreasonable that the court 
 can hold it void. Hagerstown v. Witmer. 
 86 Md. W?-, 37 Atl. 965, 39: 649 
 
 913. The summary destruction or appro- 
 priation of a dog by a' humane society, 
 without notice to the owner, when he has 
 failed to procure a license for the dog as 
 required by N. Y. Laws 1896, chap. 448, 
 does not constitute a taking of his property 
 without due process of law, though such a 
 confiscation of domestic animals, such as 
 horses and oxen, would be in violation of 
 the constitutional provisions on that sub- 
 
 ject. Fox v. Mohawk & H. R. Humane Soc. 
 165 N. Y. 517, 59 N. E. 353, 51: 681 
 
 914. Ind. Rev. Stat. 1894, 2202, author- 
 izing any agent of any society for the pre- 
 vention of cruelty to animals to kill any 
 animal found neglected or abandoned, and 
 which is injured or diseased past recovery, 
 or by age has become useless, is unconstitu- 
 tional, as depriving the owner of property 
 without due process of law, so far as it 
 permits such killing without notice to him. 
 Loesch v. Koehler, 144 Ind. 278, 41 N. E. 
 326, 43 N. E. 129, 35 : 682 
 Authorizing execution against partners. 
 
 915. A statute authorizing execution to 
 issue against individual members of a lim- 
 ited partnership to the extent of the unpaid 
 portions of their subscriptions, if execution 
 against the association has been returned 
 unsatisfied, does not violate the constitu- 
 tional provision requiring due process of 
 law, where it allows a judicial investigation 
 as to the amount remaining unpaid on such 
 subscriptions. Rouse, H. & Co. v. Donovan. 
 104 Mich. 234, 62 N. W. 359, 27: 577 
 
 d. As to Evidence. 
 
 Infringement of Right to Jury Trial, see 
 
 Jury, 68-71. 
 See also supra, 124, 651; infra, 1202. 
 
 915a. A change of the rules of evidence 
 by general law does not violate Mo. Const, 
 art. 4, 53, which prohibits such laws only 
 when they are local or special. Daggs v. 
 Orient Ins. Co. 136 Mo. 382, 38 S. W. 85, 
 
 35: 227 
 
 916. The constitutional right of liberty 
 and property is not illegally impaired by 
 requiring one to appear before a referee and 
 furnish evidence to aid the attorney general 
 in instituting proceedings for the suppres- 
 sion of a monopoly. Re Davies, 168 N. Y. 
 89, 61 N. E. 118, 56: 855 
 Burden of proof. 
 
 917. The legislature may impose upon one 
 in whose possession papers used in playing 
 policy are found the burden of showing that 
 such possession was not with knowledge 
 and in violation of a statute making it a 
 penal offense. People v. Adams, 176 N. Y. 
 351, 68 N. E. 636, 63: 406 
 Prima facie evidence; presumptions. 
 
 See also supra, 851; Carriers, 1097; Jury, 
 50, 68, 69. 
 
 918. A statute prescribing the circum- 
 stances that shall constitute prima facie 
 evidence of a fact in issue on trial in the 
 courts of the state is within the authority 
 of the legislature, and may be made applic- 
 able to a cause of action which arose out- 
 side of the state. Pennsylvania Co. v. Mc- 
 Cann, 54 Ohio St. 10, 42 N. E. 768, 31: 651 
 
 919. The provision of Iowa act April 5, 
 1888 (Laws 22 Gen. Assem. chap. 28), mak- 
 ing the commissioners' schedule prima facie 
 evidence that the rates fixed thereby are 
 reasonable is not an infringement of the 
 constitutional guaranties of the right to 
 trial by jury, and against deprivation of
 
 CONSTITUTIONAL LAW, II. b, 8. 
 
 627 
 
 property without due process of law. Chi- 
 cago & N. W. R. Co. v. Dey, 35 Fed. 866, 
 
 1: 744 
 
 919a. A person is not deprived of the pre- 
 sumption of innocence by a statute making 
 it an offense to have possession of prohib- 
 ited articles which are of no lawful use. 
 Ford v. State, 85 Md. 465, 37 Atl. 172, 
 
 41: 551 
 
 920. There is no vested right to the rule 
 of evidence that everyone shall be presumed 
 innocent until proved guilty, so that the 
 legislature cannot make the doing of cer- 
 tain acts prima facie proof of guilt. Mead- 
 owcroft v. People, 163 111. 56, 45 N. E. 303, 
 
 35: 176 
 
 921. A statute making it prima facie evi- 
 dence of a banker's intent to defraud in re- 
 ceiving a deposit, if his failure, suspension. 
 or involuntary liquidation occurs within 
 thirty days thereafter, is not unconstitu- 
 tional. State v. Beach, 147 Ind. 74, 46 N. E. 
 145, 36: 179 
 
 922. The inference of fraudulent intent 
 in receiving a deposit within thirty days of 
 failure is not so purely arbitrary, unrea- 
 sonable, unnatural, or extraordinary as to 
 justify the court in saying that such fail- 
 ure had no fair relation to or connection 
 with the existence of fraudulent intent at 
 the time of the deposit, and that therefore 
 a statute making the act prima facie evi- 
 dence of the intent is unconstitutional. 
 Meadowcroft v. People, 163 111. 56, 45 N. E. 
 303, 35: 176. 
 
 923. Fla. act June 7, 1887, 4, making im- 
 plements, devices, or apparatus commonly 
 used in games of chance usually played in 
 gambling houses or by gamblers prima fa- 
 cie evidence that the house, room, or place 
 where they are found is kept for the pur- 
 pose of gambling, is not unconstitutional. 
 Wooten v. State, 24 Fla. 335, 5 So. 39, 
 
 1: 819 
 
 Conclusiveness. 
 See also supra, 675; Weights. 
 
 924. A statute making a judicial deter- 
 mination of title to land forever binding 
 and conclusive upon all persons after the 
 lapse of two years may be given effect 
 against parties to the proceeding and per- 
 sons who must bring legal proceedings to 
 establish their rights, although it would be 
 void in favor of persons in possession of all 
 they claim, who were not parties to the 
 proceeding. People ex rel. Deneen v. Simon, 
 176 111. 165, 52 N. E. 910, 44: 801 
 
 925. The provision of Kan. Laws 1893, 
 chap. 100, making the specification of 
 weights in bills of lading issued by railroad 
 companies for hay, grain, etc., shipped over 
 their lines, conclusive evidence of the cor- 
 rectness of such weights, is unconstitutional 
 because denying to the companies due proc- 
 ess of law, and because wrongfully depriv- 
 ing the courts of the judicial power to de- 
 termine the weight and sufficiency of evi- 
 dence. Missouri, K. & T. R. Co. v. Simon - 
 son, 64 Kan. 802, 68 Pac. 653, 57 : 765 
 
 926. A statute providing that, if a per- 
 son performing labor or furnishing mate- 
 rial is not enjoined therefrom by law, by 
 
 the person in whom is vested the title to 
 the property benefited by such labor or ma- 
 terial, it shall be conclusive evidence that 
 the labor was performed or the material 
 furnished with his consent, is unconstitu- 
 tional as depriving a man of his property 
 without his consent. Meyer v. Berlandi, 39 
 Minn. 438, 40 N. W. 513, 1 : 777 
 
 8. Criminal Matters. 
 
 Equal Protection and Privileges as to, see 
 supra, II. a, 8. 
 
 Police Power as to, see infra, II. c. 5. 
 
 For Matters as to Jury, see supra, 807-810. 
 
 As to Arrest Without Warrant, see Ar- 
 rest, 13. 
 
 Subjecting Prosecuting Witness to Payment 
 of Costs, see Costs and Fees, 20. 
 
 As to Self-Crimination, see Criminal Law, 
 87, 98-102; Witnesses, II. c. 
 
 Jury as Judges of the Law, see Trial, 112. 
 
 See also supra, 704, 745, 746, 821-825, 919a- 
 923; Intoxicating Liquors, 6; Municipal 
 Corporations, 270. 
 
 927. A municipal ordinance making it a 
 misdemeanor for a woman to go into any 
 building where liquor is sold, or to stand 
 within 50 feet of such building, is void as 
 nn unnecessary interference with individual 
 liberty. Gastineau v. Com. 108 Ky. 473, 56 
 S. W. 705, 49: 111 
 Possession of prohibited property. 
 Partial Invalidity of Statute as to, see Stat- 
 utes, 103. 
 
 See also supra, 917, 923; Fisheries, 14, 15, 
 22, 28; Jury, 54. 
 
 928. An ordinance subjecting one in pos- 
 session of premises on which liquor is sold, 
 disposed of, obtained, or furnished in viola- 
 tion or evasion of law, to fine, whether the 
 act is with his knowledge or consent or not, 
 violates a constitutional provision that ab- 
 solute and arbitrary power over the lives, 
 liberty, and property of freemen exist no- 
 where in the republic. Campbellsville v. 
 Odewalt, 24 Ky. L. Rep. 1717, 1739. 72 S. 
 W. 314, 60: 723 
 
 929. A person is not deprived of his lib- 
 erty without due process of law by a stat- 
 ute making it an offense to have possession 
 of prohibited articles, such as a record of 
 lottery drawings, even if he did not know 
 what the articles that he had were. Ford 
 v. State, 85 Md. 465, 37 Atl. 172, 41: 551 
 
 930. A statute making it an offense 
 knowingly to have in possession any pa- 
 pers used in playing policy does not deprive 
 one of his property without due process of 
 law. People v. Adams, 176 N. Y. 351, 68 
 N. E. 636. 63: 400 
 Tramp law. 
 
 Equal Protection and Privileges as to, see 
 supra, 609. 
 
 931. No violation of constitutional pro- 
 visions as to the law of the land and due 
 process of law is made by Ohio Rev. Stat. 
 6995, known as the tramp law, which is 
 enforced by usual and appropriate methods 
 and is of uniform operation, though it 
 makes it unlawful for a tramp outside of
 
 628 
 
 CONSTITUTIONAL LAW. II. c. 1. 
 
 the county of his residence to threaten in- 
 jury to any other person. State v. Hogan. 
 63 Ohio St. 202, 58 N. E. 572, 52: 863 
 
 Threatening debtor. 
 
 932. The constitutional rights of property 
 do not include the right to send letters or 
 circulars to a debtor threatening to adver- 
 tise a claim against him for sale, which con- 
 stitutes an offense under Mo. Rev. Stat. 
 1889, 3782, as a threat to injure his credit 
 or reputation. State v. McCabe, 135 Mo. 
 450, 37 S. W. 123, 34: 127 
 Associating with bad persons. 
 
 Equal Protection and Privileges as to, see 
 supra, 612. 
 
 933. An ordinance forbidding association 
 with thieves, etc., with intent to agree to 
 commit any offense or to cheat any person, 
 is an unconstitutional invasion of the right 
 of personal liberty. Ex parte Smith, 135 
 Mo. 223, 36 S. W. 628, 33: 606 
 
 c. Police Power. 
 1. In General. 
 
 Delegation of, see supra, 20.2-204. 
 
 Matters as to Interstate Commerce, see 
 Commerce, 84. 
 
 Making County Liable for Property De- 
 stroyed by Mob. see Counties, 39. 
 
 Review of by Courts, see Courts, I. c, 2, ft. 
 
 When Statute Held not to be Within, see 
 Courts. 487. 
 
 Provision against Electioneering, see Elec- 
 tions, 74. 
 
 Authorizing Use of Highway as Railway 
 Road Bed, see Eminent Domain, 335. 
 
 Requiring Prescribed Fences, see Fences, 4. 
 
 Police Power of Municipality, see also Mu- 
 nicipal Corporations, especially, II. c. 
 
 As to Construction of Telegraph Line in 
 Street, see Telegraphs, 1, 5. 
 
 Power to Regulate Telephone Rates, see 
 Telephones, 20, 21. 
 
 See also supra, 312, 819; infra, 1054; Civil 
 Rights, 5, 11; Statutes, 288. 
 
 For Editorial Notes, see infra, III. 10. 
 
 934. Some obvious and real connection 
 between the actual provisions of police reg- 
 ulations and their assumed purpose is es- 
 sential to their validity. Chicago, B. & Q. 
 R. Co. v. State ex rel. "Omaha, 47 Neb. 549, 
 66 N. W. 624, 41 : 481 
 
 935. To sustain a statute as an exercise 
 of the police power, the courts must be able 
 to see that its object to some degree tends 
 toward the prevention of some offense or 
 manifest evil, or that it has for its aim 
 the preservation of the public health, mor- 
 als, safety, or welfare. State ex rel. Wyatt 
 v. AshbrooK, 154 Mo. 375, 55 S. W. 627. 
 
 48: 265 
 
 936. The power of the legislature over a 
 subject is not limited by the constitutional 
 provision against local or special laws grant- 
 ing special or exclusive privilege, immunity 
 or franchise, but this is rather a limitation 
 in respect to the manner of the exercise of 
 the power. Smiley v. MacDonald, 42 Neb. 
 5, 60 N. W. 355, ' 27 : 540 
 
 937. The police power is subordinate to 
 the equality of privilege and burden secured 
 by the Constitution. State v. Jackman, 69 
 N. H. 318, 41 Atl. 347, 42:438 
 
 938. An exercise of police power will not 
 be declared void for the reason that it is 
 partial, and does not exterminate the evil - 
 with which it undertakes to deal. State v. 
 Burgdoerfer, 107 Mo. 1, 17 S. W. 646, 
 
 14: 846 
 
 939. A valid exercise of the police power 
 does not deprive any person of liberty with- 
 out due process of law. Holden v. Hardy, 
 14 Utah, 71, 46 Pac. 756, 37: 103 
 [Aff'd by the Supreme Court of the United 
 States in 169 IT. S. 366, 42 L. ed. 780, 18 
 Sup. Ct. Rep. 383.] 
 
 940. The right of the state to interfere 
 with the use of private property by its own- 
 er belongs to the police power of the state. 
 State ex rel. Duensing v. Roby, 142 Ind. 163, 
 
 41 N. E. 145, 33: 213 
 
 941. Legislation under the police power 
 infringes the constitutional guaranty of 
 protection in liberty and property only 
 when it is extended to subjects not within 
 its scope and purview, as that power was 
 denned and understood when the Constitu- 
 tion was adopted. People v. Budd, 117 N. 
 Y. 1, 22 N. E. 670, 5:559 
 
 942. The legitimate exercise of the police 
 power is not subject to restraint by consti- 
 tutional provisions for the general protec- 
 tion, of rights of individual life, liberty, and 
 property. State v. Schlemmer, 42 La. Ann. 
 1166, 8 So. 307, 10: 135 
 
 943. Police laws and regulations are not 
 unconstitutional, although they prevent the 
 enjoyment of individual rights in property 
 without providing compensation therefor. 
 Summerville v. Pressley, 33 S. C. 56, 11 S. 
 E. 545, 8 : 854 
 
 944. A government has an inherent right 
 to impose such restraint and to provide 
 such regulations in regard to the pursuits 
 of life as the public welfare may require. 
 Singer v. State, 72 Md. 464, 19 Atl. 1044. 
 
 8: 551 
 
 945. The state has authority to make 
 extensive and varied regulations as to the 
 time, mode, and circumstances in and under 
 which parties shall assert, enjoy, or exer- 
 cise their rights, without coming in conflict 
 with any of those constitutional principles 
 which are established for the protection of 
 private rights or private property. State 
 v. Harrington, 68 Vt. 622, 35 Atl. 515, 
 
 34: 100 
 
 946. The limitation on the legislative ex- 
 ercise of the police power is that such a 
 statute must have a reasonable connection 
 with the welfare of the public. People v. 
 Havnor, 149 N. Y. 195, 43 N. E. 541, 31: 689 
 [Writ of error dismissed in 170 U. S. 408. 
 
 42 L. ed. 1087, 18 Sup. Ct. Rep. 631.] 
 
 947. Legislation to protect a citizen 
 against the consequence of his own acts is 
 not within the constitutional exercise of the 
 police power. Re Morgan, 26 Colo. 415, 58 
 Pac. 1071, 47: 52 
 
 948. The police power of the state is the 
 power to govern men and things within the
 
 CONSTITUTIONAL LAW, II. c. 2, 3. 
 
 629 
 
 limits of its dominion, and is not limited to 
 the protection of health, peace, morals, edu- 
 cation, and good order, but comprehends all 
 those general laws or internal regulations 
 necessary to secure peace, good order, the 
 health and comfort of society, and the reg- 
 ulation and protection of all property in the 
 state.' State v. Harrington, 68 Vt. 622, 35 
 Atl. 515, 34: 100 
 
 949. A police regulation prohibiting acts 
 which are in some circumstances harmless 
 is not unconstitutional as an exercise of ju- 
 dicial power. State v. Grittin, 69 N. H. 1. 
 39 Atl. 260, . . 41 : 177 
 
 950. The legislature in undertaking to im- 
 pose an unreasonable and unnecessary bur- 
 den upon any one citizen or class of citi- 
 zens transcends the authority intrusted to 
 it by the Constitution although it, imposes 
 the same burden upon all other citizens or 
 c-lass of citizens. Ritchie v. People, 155 111. 
 98, 40 N. E. 454, 29: 79 
 Assessments. 
 
 Equal Protection as to, see supra, 446. 
 Due Process of Law as to, see supra, 668- 
 673; 890-894. 
 
 951. The police power of the state does 
 not extend to the levying of special assess- 
 ments on property benefited by a levee. 
 Reelfoot Lake Levee Dist. v. Dawson, 97 
 Tenn. 151, 34 S. W. 1041, 34: 725 
 Railroad fires. 
 
 Equal Protection and Privileges as to, see 
 
 supra, 429-434. 
 Due Process of Law as to, see supra, 843- 
 
 846. 
 
 952. The police power of a state has no 
 application in respect to the liability of a 
 railroad company for fires communicated by 
 its engines or originating on its right of 
 way, as this power applies only to matters 
 pertaining to the public healtn, the public 
 morals, and the public safety. McCandless 
 v. Richmond & D. R. Co. 38 S. C. 103, 16 S. 
 E. 429, 18: 440 
 Patent right notes. 
 
 See also Patents. 17, 18. 
 
 953. The police power will authorize the 
 passage of statutes requiring notes given 
 for patent rights to state that fact on their 
 faces. State v. Cook, 107 Tenn. 499, 64 S. 
 W. 720, 62: 174 
 Treatment of habitual drunkards. 
 
 954. The police power does not sustain a 
 statute which is for the benefit of private 
 parties by providing for the treatment in 
 private institutions of habitual drunkards 
 who are not financially able to pay for their 
 own treatment. Wisconsin Keeley Insti- 
 tute Co. v. Milwaukee County, 95 Wis. 153, 
 70 X. W. 68, 36: 55 
 Administration of living person's estate. 
 
 955. Taking possession of a person's prop- 
 erty, under authority of a statute provid- 
 ing for the appointment of a special admin- 
 istrator in case of a person who has disap- 
 peared under circumstances which afford 
 reasonable grounds for believing that he is 
 dead, cannot be upheld as a proper exer- 
 cise of the police power of the state. Clapp 
 v. Houg, 12 N. D. 600, 98 N. W. 710, 
 
 65: 757 
 
 2. State Engaging in Business. 
 
 As to Functions and Powers of State, see 
 
 supra, I. g. 
 See also infra, 1078. 
 
 956. Th'e police power of the state to reg- 
 ulate a business is to be exercised by the 
 adoption of rules and regulations as to the 
 manner in which it shall be conducted by 
 others, and not by itself engaging in it. 
 Rippe v. Becker, 56 Minn. 100, 57 N. W. 331, 
 
 22: 857 
 
 957. The purchase by a state of a site 
 for state elevators or warehouses, and the 
 erection of such structures for the public 
 storage of grain, is not within tne exercise 
 of the police power of the state to regulate 
 the business of such elevators. Id. 
 
 958. The police power of the state does 
 not extend to the entire prohibition of the 
 sale of intoxicating liquors by private in- 
 dividuals, and the giving of a monopoly of 
 such business to the state, without any at- 
 tempt to restrict or discourage such sales. 
 McCullough v. Brown, 41 S. C. 220, 19 S. E. 
 458, 23:410 
 
 958a. The constitutional reservation to 
 the people of all powers not delegated does 
 not restrict the exercise of the police power 
 so as to defeat the assumption, by the 
 state, of the exclusive control and manage- 
 ment of tne sale of intoxicating liquors. 
 State ex rel. George v. Aiken, 42 S. C. 222, 
 20 S. E. 221, 26: 345 
 
 958b. The state under its police power 
 can itself assume entire control and man- 
 agement of those subjects, such as intoxi- 
 cating liquors, that are dangerous to the 
 peace, good order, health, morals, and wel- 
 fare of the people, even when trade is one 
 of the instruments of such state control. Id. 
 
 959. The South Carolina dispensary act 
 of 1893, making all alcoholic liquors con- 
 traband and subject to seizure, unless 
 bought from a state officer, whose appoint- 
 ment is provided for and who is not ad- 
 dicted to the use of such liquors as a bev- 
 erage, and providing that the liquors sold 
 by him shall be tested and found pure be- 
 fore sale, and can be sold only in the day- 
 time and by the package, which cannot be 
 broken nor the liquor drunk on the prem- 
 ises, and that no sale shall be made to a 
 minor, person intoxicated, or in the habit 
 of drinking to excess, or unknown to the 
 dispenser, and that a majority of the voters 
 in any township may prevent the establish- 
 ment of a dispensary therein, is a valid ex- 
 ercise of the police power of the state. Id. 
 
 3. As to Use, Enjoyment, and Destruction 
 of Property. 
 
 Compensation for Injury to Interests where 
 no Property Taken, see Eminent Do- 
 main, 314. 
 
 Prohibiting Burial on Lanus held by Mu- 
 nicipality, see Cemeteries, 14. 
 
 Destruction of Mill and Dam to Prevent In- 
 jury to Highway, see Eminent Domain, 
 247. 
 
 See also supra, 630, 647, 785; infra, 1067.
 
 630 
 
 CONSTITUTIONAL LAW, II. c. 3 
 
 Highways and sidewalks. 
 
 Equal Protection and Privileges as to, see 
 
 supra, 323-325. 
 Due Process of Law as to, see supra, 763- 
 
 766. 
 Power to Compel Placing of Telegraph and 
 
 Telephone Wires under Ground, see 
 
 Highways, 90. 
 
 960. The police power does not authorize 
 an ordinance requiring abutting owners to 
 keep sidewalks free from snow. State v. 
 Jackman, 69 N. H. 318, 41 Atl. 347, 42: 438 
 
 961. A village ordinance forbidding, un- 
 der penalty, property owners to permit 
 snow or ice to collect and remain on the 
 sidewalks in front of their premises, so as 
 to impede public travel, later than 10 
 o'clock in the forenoon of the day after the 
 same shall have fallen thereon, or for more 
 than two hours after being notified to re- 
 move the same, is a valid exercise of the 
 police power, and is not unconstitutional as 
 authorizing a taking of private property for 
 public use without just compensation. Car- 
 thage v. Frederick, 122 N. Y. 268, 25 N. E. 
 480, 10: 178 
 
 962. A statute imposing upon lotowners 
 in a city the duty of repairing sidewalks in 
 the public streets adjacent to their prem- 
 ises violates no provision of the Constitu- 
 tion, and is a legitimate exercise of the po- 
 lice power of the state. Lincoln v. Janesch, 
 63 Neb. 707, 89 N. W. 280, 56: 762 
 
 963. An ordinance requiring electric street 
 railway companies to water their tracks so 
 as effectually to lay the dust within them 
 is a legal exercise of the police power of the 
 city, as tending to promote the comfort, 
 health, and convenience of the public, and 
 does not infringe the contract right of the 
 companies to operate their cars. State v. 
 Canal & C. R. Co. 50 La. Ann. 1189, 24 So. 
 265, 56:287 
 
 964. A statute authorizing an ordinance 
 requiring railroad companies to construct 
 and keep in repair viaducts over streets 
 crossed by their tracks is a valid exercise 
 of the police power of the state. Chicago. 
 B. & Q. R. Co. v. State ex rel. Omaha, 47 
 Neb. 549, 66 N. W. 624, 41 : 481 
 
 965. Additional burdens arbitrarily im- 
 posed without necessity upon a telephone 
 company which has made investments and 
 expenditures in good faith and in reliance 
 upon an ordinance authorizing the erection 
 of poles and overhead lines in streets, such 
 as an unreasonable requirement that the 
 company must build conduits even through 
 ungraded streets and suburban parts of the 
 city and in the open country, are clearly 
 beyond the reasonable exercise of the po- 
 lice power. Northwestern Teleph. Exch. Co. 
 v. Minneapolis, 31 Minn. 140, 83 N. W. 527. 
 86 N. W. 69. 53: 175 
 
 966. An ordinance declaring it unlawful to 
 hold public meetings in the streets of a city 
 without the consent of the municipal au- 
 thorities is not unconstitutional, either be- 
 cause it curtails or restricts the liberty of 
 speech, or makes an arbitrary discrimination 
 in favor of some persons against others, or 
 because the city had no legal power to en- 
 
 act it; nor is such ordinance void upon the 
 ground that it is an unreasonable and op- 
 pressive exercise of police power. Fitts v. 
 Atlanta, 121 Ga. 567, 49 S. E. 793, 67: 803 
 Nuisances; seizure and destruction of prop- 
 erty. 
 Due Process of Law as to, see supra, 901- 
 
 914. 
 
 See also infra, 977, 978, 1026. 
 For Editorial Notes, see infra, III. 10. 
 
 967. Any occupation comes within the 
 range of the police power, which is such as 
 to be naturally liable to create a nuisince 
 unless subjected to special regulations 
 whether it be so conducted as in fact to 
 create a nuisance or not. State v. Orr, 68 
 Conn. 101, 35 Atl. 770, 34: 279 
 
 968. A city ordinance providing that no 
 persons shall establish or conduct any steam 
 shoddy machine or steam carpet-beating 
 machine within 100 feet of any church, 
 schoolhouse, or dwelling house, is valid un- 
 der Cal. Const, art. 11, 11, providing that 
 any city may make or enforce within its 
 limits all such "police regulations as are 
 not in conflict with general laws." Ex parte 
 Lacey, 108 Cal. 326, 41 Pac. 411, 38: 640 
 
 969. The statute declaring the emission of 
 thick or dense black or gray smoke from 
 chimneys a nuisance per se, anu punishing 
 the act as an offense, is within the police 
 power, and therefore does not deprive per- 
 sons of property without due process of 
 law. Moses v. United States, 16 App. D. 
 C. 428, 50: 532 
 
 970. The destruction of property which 
 has become a public nuisance, or which has 
 an unlawful existence, or is obnoxious to 
 the public health, public morals, or public 
 safety, is within the proper exercise of the 
 police power of the state, without making 
 any compensation to the owner. Houston v. 
 State, 98 Wis. 481, 74 N. W. Ill, 42: 39 
 
 971. Under the police power of the state, 
 the legislature has power to declare prop- 
 erty which may be used only for an unlaw- 
 ful purpose to be a public nuisance, and to 
 authorize the same to be abated summarily 
 by public officers; but if property of a na- 
 ture innocent in itself and susceptible of a 
 beneficial use has been used for an unlawful 
 purpose, a statutory provision subjecting it 
 to summary forfeiture to the state as a 
 penalty or punishment for the wrongful use, 
 without affording the owner thereof oppor- 
 tunity for a hearing, deprives him of his 
 property without due process of law. Mc- 
 Connell v. McKillip (Neb.) 99 N. W. 505. 
 
 65: 610 
 
 972. A statute requiring the destruction 
 of peach trees attacked by the yellows is 
 within the discretion of the legislature as 
 an exercise of the police power, unless the 
 courts can see that there could by no pos- 
 sibility be any apprehension of substantial 
 danger from allowing them to live. State 
 v. Main, 69 Conn. 123, 37 Atl. 80, 36: 623 
 Animals. 
 
 Due Process of Law as to, see supra, 769- 
 
 777. 
 
 See also supra, 911, infra, 1066. 
 For Editorial Notes, see infra, 111. 10.
 
 COiNSTITUTIONAL LAW, II. c, 8. 
 
 631 
 
 973. An act making it unlawful for the 
 owner of hogs to permit them to run at 
 large is an exercise of the police power. 
 Haigh v. Bell. 41 W. Va. 19, 23 S. E. 666, 
 
 31: 131 
 
 974. A statute making it unlawful to 
 herd or graze sheep within 2 miles of an 
 inhabited dwelling, and making the owner 
 of sheep so herded or grazed liable for dam- 
 ages to the injured party, is a valid exer- 
 cise of the police power of the state, and 
 not unconstitutional. Sifers v. Johnson, 7 
 Idaho, 798, 65 Pac. 709, 54: 785 
 
 975. The constant use of horses with 
 docked tails tends to corrupt the public 
 morals so as to bring the prohibition of the 
 use of such animals within tne police power 
 of the state. Bland v. People, 32 Colo. 319, 
 76 Pac. 359, , 65: 424 
 
 976. To provide adequate means of de- 
 fense against coyotes is within the general 
 police power, and does not violate funda- 
 mental principles of free government or in- 
 fringe upon the original rights of the citi- 
 zen. Ingram v. Colgan, 106 Cal. 113, 39 Pac. 
 437, 28: 187 
 
 977. Provisions for the summary destruc- 
 tion of dogs running at large contrary to 
 statutes or ordinances are within the police 
 power of the state. Hagerstown v. Wit- 
 mer, 86 Md. 293, 37 Atl. 965. 39: 649 
 
 978. An ordinance requiring all dogs to 
 be securely muzzled, and declaring any dog 
 found running at large without a muzzle to 
 be a nuisance, and that it shall be the duty 
 of the marshal and policemen to kill any 
 such dog, is a valid exercise of the power 
 to enact ordinances for the protection of 
 life, health, and property, granted by 
 Burn's (Tnd.) Rev. Stat. 1894, 3541, 
 3615, 3616 (Homer's Rev. Stat. 1897, 
 3106, 3154, 3155). Walker v. Towle, 156 
 Ind. 639, 59 N. E. 20, 53: 749 
 Fish and game. 
 
 Due Process of Law as to, see supra, 769- 
 777. 
 
 979. Regulations for the protection and 
 preservation of game are within the consti- 
 tutional power of the legislature. Haggerty 
 v. St. Louis Ice Mfg. & S. Co. 143 Mo~ 238, 
 44 S. W. 1114, 40: 151 
 
 980. A statute prohibiting the taking of 
 fish, with certain specified exceptions, in any 
 other manner than angling for them with 
 hook and line, is a valid exercise of the po- 
 lice power. State v. Mrozinski, 59 Minn. 
 465, 61 N. W. 560, 27: 76 
 
 981. A statutory prohibition of fishing 
 with a seine during a part of the year is 
 not unconstitutional, even as applied to a 
 lake wholly upon lands of a private owner 
 and connected with an unnavigable stream 
 only in time of hisrh water. People v. 
 Bridges, 142 111. 30, 31 N. E. 115, 16: 684 
 
 982. The exercise of the police power in 
 protecting game and fish may prohibit the 
 sale of an article of food which is not del- 
 eterious in itself. People v. O'Neil, 110 
 Mich. 324. 68 N. W. 227. 33: 696 
 
 983. The legislature may forbid the sale, 
 
 offering for sale, or possession during the 
 close season, of trout which are not alive, 
 although they were artificially propagated 
 on one's own premises, if such close season 
 is not unreasonable. Com. v. Gilbert, 160 
 Mass. 157, 35 N. E. 454, 22: 439 
 
 984. A statute forbidding fishing for trout 
 with intent to sell or trade the fish caught 
 is a valid exercise of the legislative power 
 to enact equal laws for the protection of 
 the public right of fishery, and of the police 
 power of the state. State v. Dow, 70 N. H. 
 286, 47 Atl. 734, 53: 314 
 
 985. The owner of land over which a 
 brook flows is not deprived of property 
 without compensation by Vt. Stat. 4568, 
 allowing fish and game commissioners to 
 place fish in the stream, to prohibit fishing 
 therein for not more than three years, and 
 by other provisions that make the waters 
 public for at least five years longer, but 
 such provisions are justified by Vt. Const, 
 chap. 1, art. 5, as a regulation of the in- 
 ternal police, and chap. 2, 40, giving the 
 inhabitants of the state the right to fish 
 "in all beatable and other waters (n6t pri- 
 vate property) under proper regulations, to 
 be hereafter made and provided by the gen- 
 eral assembly." State v. Theriault, 70 Vt. 
 617, 41 Atl. 1030.. 43: 290 
 Water rights. 
 
 986. A statute prohibiting the depositing 
 of sawdust in the waters of a lake or any 
 tributary thereto is a proper exercise of 
 the police power. State v. Griffin, 69 N. H. 
 1, 39 Atl. 260, 41: 177 
 
 987. The police power does not justify 
 legislation prohibiting the waste of water 
 from artesian wells to the injury of the 
 wells of neighboring proprietors. Huber v. 
 Merkel, 117 Wis. 355, 94 N. W. 354, 62: 589 
 Party walls. 
 
 988. The provisions as to party walls in 
 Iowa Code, 2019, 2020, 2027, giving a lot 
 owner the right to build a wall not more 
 than 18 inches wide, half upon the land of 
 his neighbor, and to recover from the neigh- 
 bor half the expense thereof when the lat- 
 ter shall use the wall, cannot be held so 
 plainly in violation of the Constitution pro- 
 hibiting private property to be taken for 
 private use without compensation that they 
 can be held invalid after more than forty 
 years' recognition and enforcement, al- 
 though their validity is not free from doubt, 
 but they must be upheld as an exercise of 
 the police power. Swift v. Calnan, 102 
 Iowa, 206, 71 N.' W. 233. 37:462 
 Weeds on city lot. 
 
 989. The rights conferred by the con^ti- 
 tutional guaranty of the right to life, lib- 
 erty, and the enjoyment of one's own in- 
 dustry are held in subordination to the 
 rights of society; so that the owner of a 
 city lot cannot permit weeds to grow on 
 his lot if he would thereby endanger the 
 health of others. St. Louis v. Galb. 179 Mo. 
 8, 77 S. W. 876, 63: 77s
 
 632 
 
 CONSTITUTIONAL LAW, II. c, 4. 
 
 4. Restrictions on Contracts, Business, and 
 Occupations; Health. 
 
 a. In General. 
 
 Treaty with Respect to Quarantine, see 
 
 Treaties, 3. 
 
 See also supra, 676, 967-970. 
 For Editorial Notes, see infra, III. 10. 
 
 990. In order to sustain legislative inter- 
 ference with the business of the citizen by 
 virtue of the police power, it is necessary 
 that the act should have some reasonable 
 relation to the subjects included in such 
 power. Chicago v. Netcher, 183 111. 104, 55 
 N. E. 707, 48: 261 
 
 991. A statute which nowhere attempts 
 to protect any public interest or defend 
 against any public wrong, which shows upon 
 its face that regulation is not its purpose, but 
 that revenue or undue restriction of a busi- 
 ness in the interest of others is the aim in 
 view, cannot be sustained as an exercise of 
 the police power, although it purports to 
 be "An Act to Regulate Business and 
 Trade." State ex rel. Wyatt v. Ashbrook, 
 154 Mo. 375, 55 S. W. 627, 48: 205 
 
 992. The legislature cannot interfere with 
 the right of parties to contract on a sub- 
 ject which is purely and exclusively pri- 
 vate, unaffected by any public interest, or 
 duty to person, to society, or government, 
 where the parties are capable of contract- 
 in<r. Leep v. St. Louis, I. M. & S. R. Co. 
 58 Ark. 407, 25 S. W. 75, 23: 264 
 Health generally. 
 
 Quarantine and Inspection Laws as Regula- 
 tion of Commerce, see Commerce, 11- 
 13. 
 
 Review of Legislative Decision as to, see 
 Courts, 147. 
 
 Power of Congress as to, see District of 
 Columbia. 
 
 Lowering Water of Navigable Stream, see 
 Eminent Domain, 351. 
 
 See also supra, 627. 
 
 For Editorial Notes, see infra, III. 10. 
 
 993. All such wholesome laws as may be 
 necessary to promote the peace, health, and 
 well-being of society, are within the legis- 
 lative power. State v. Powell, 58 Ohio St. 
 324. 50 N. E. 900, 41 : 854 
 
 994. The legislature has inherent author- 
 ity, under the general police power of the 
 state, to enact laws for the promotion of 
 the health, safety, and welfare of the peo- 
 ple, and its arm cannot be stayed when ex- 
 ercised for these purposes. Re Boyce, 27 
 Xev. 299, 75 Par 1, 65: 47 
 
 995. The constitutional right of an in- 
 dividual to hold property is subject to those 
 reasonable regulations which are necessary 
 for the common good and general welfare, 
 especially such as affect the health and 
 morals o'f the people. Ford v. State, 85 Md. 
 465, 37 Atl. 172, 41 : 551 
 
 996. Laws and regulations necessary for 
 the protection of the health, morals, and 
 safety of society are within the legitimate 
 exercise of the police powers of the state, 
 provided they are reasonable. Td. 
 
 997. The power of the legislature to sub- 
 
 serve the general welfare of the people by 
 all neodful and proper regulations in the 
 interest of health and safety is inherent 
 in the sovereignty of the state, and cannot 
 be barteied away by contract or otherwise. 
 Chicago, B. & Q. R. Co. v. State ex rel. 
 Omaha, 47 Neb. 549, 56 N. V, . 624, 41: 481 
 
 998. The physical welfare of the citizen 
 is a subject of such primary importance to 
 the state, and has such a direct relation to 
 the general good, as to make laws tending 
 to promote that object proper under the po- 
 lice power. People v. Havnor, 149 N. Y. 
 195, 43 N. E. 541, 31: 689 
 
 [Writ of error dismissed in 170 U. S. 408, 42 
 L. ed. 1087, 18 Sup. Ct. Rep. 631.] 
 
 99s). Reasonable regulations to protect the 
 public against evils which may result from 
 incapacity and ignorance may be made by 
 the general assembly, where a [nirsuit di- 
 rectly concerns the public health and wel- 
 fare, and is of a character that requires a 
 special course of study, training, or expe- 
 rience in order to qualify one to pursue the 
 occupation with safety to the public In- 
 terests. State v. Gardner, 58 Ohio St. 599, 
 51 N. E. 136, 41 : 689 
 
 1000. Statutes passed in pursuance of the 
 police power of the state must not conflict 
 with the Constitution, and must have some 
 relation to the end sought to be accom- 
 plished; and where their ostensible object 
 is to secure the public comfort, welfare, or 
 safety they must appear to be adapted to 
 that end, and cannot invade the rights of 
 person and property under the guise of a 
 police regulation where they are not such 
 in fact. Ritchie v. People, 155 111. 98, 40 
 N. E. 454, 29: 79 
 
 1001. The police power of the state is 
 that power which enables it to promote the 
 health, comfort, safety, and welfare of so- 
 ciety. Id. 
 As to water closets. 
 
 See also Eminent Domain, 218. 
 
 1002. Requiring the substitution of water- 
 closets for school sinks in tenement houses 
 is a proper exercise of the police power. 
 Tenement House Department v. Moeschen, 
 179 N. Y. 325, 72 N. E. 231, 70: 704 
 
 1003. The placing and maintenance of wa- 
 ter closets in buildings which are designed 
 for habitation, and are so situated that 
 they can be connected with public sewers, 
 may be compelled by the state under its po- 
 lice power, although the buildings were law- 
 fully erected without them. Com. v. Rob- 
 erts, 155 Mass. 281, 29 N. E. 522, 16: 400 
 Water supply. 
 
 Police Power to Prevent Pollution of, see 
 Waters, 291. 
 
 1004. A canal used for the carriage of wa- 
 ter for hire is affected by a public interest 
 and subject to legislative regulation in re- 
 spect to the distribution of the water. 
 White v. Farmers' Hicrhline Canal & R. Co. 
 22 Colo. 191, 43 Pac. 1028, 31: 828 
 
 1005. A statute requiring water to be fur- 
 nished on each floor of every tenement 
 house is a valid exercise of the police power 
 with respect to health, and also with respect 
 to public safety regarding fires and their
 
 CONSTITUTIONAL LAW, II, c, 4. 
 
 633 
 
 extinguishment. New York Health Dept. v. 
 Trinity Church, 145 N. Y.. 32, 39 N. E. 833, 
 
 27: 710 
 Garbage. 
 Equal Protection and Privileges as to, se 
 
 supra, 456-461. 
 For Editorial Notes, see infra, III. 10. 
 
 1006. The fact that garbage is not a 
 nuisance or detrimental to health does not 
 exempt it from the police power or entitle 
 a citizen to engage in its transportation 
 without a license. State v. Orr, 68 Conn. 
 101, 35 Atl. 770, 34: 279 
 Use of flag. 
 
 Equal Privileges as to, see supra, 451, 456, 
 
 459. 
 Due Process of Law as to, see supra, 767. 
 
 1007. The police power does not extend 
 to the prohibition of the use of ttye national 
 flag for advertising purposes. Ruhstrat v. 
 People, 185 111. 133, 57 N. E. 41, 49: 181 
 Convict-made goods. 
 
 1008. A regulation of the price of labor 
 by depressing, through the penalties of the 
 criminal law, the market price of goods 
 made by convicts, which it requires to be 
 labeled or marked "Convict Made," and 
 thereby correspondingly enhancing the price 
 of goods made by other workmen, is not a 
 valid exercise of the police power of the 
 legislature, at least, as applied to convict- 
 made goods from another state. People v. 
 Hawkins, 157 N. Y. 1, 51 N. E. 257, 42: 490 
 Insurance. 
 
 Equal Protection and Privileges as to, see 
 
 infra, 405-411. 
 Due Process of Law as to, see supra, 698, 
 
 699, 739, 740. 
 
 1009. The police power justifies legisla- 
 tion providing that insurance policies shall 
 not be avoided for tne falsity of representa- 
 tions or warranties, unless made with in- 
 tent to deceive, or increasing the risk of 
 loss; and it is immaterial that it is made to 
 apply only to those issued by old-line com- 
 panies, and not to those issued on the as- 
 sessment plan. Continental Fire Ins. Co. v. 
 Whitaker, 112 Tenn. 451, 79 S. W. 119, 
 
 64: 451 
 Vaccination. 
 Due Process of Law as to, see stipra, 629. 
 
 1010. The legislature may, in the exercise 
 of its police power, authorize the health au- 
 thorities of a municipal corporation to re- 
 quire, under penalty, all citizens to be vac- 
 cinated when, in their discretion, it is neces- 
 sary for the public health and safety. Com. 
 v. Pear. 1S3 Mass. 242. 66 N. E. 719,' 67: 935 
 
 1011. The compulsory vaccination of all 
 persons within the limits of a city when 
 there is an epidemic of smallpox existing or 
 reasonably apprehended is. if authorized by 
 statute, within the constitutional exercise 
 of the police nower. Morris v. Columbus. 
 102 Oa. 702. 30 S. E. 850. 42: 175 
 
 1012. A statute requiring vaccination as 
 a prerequisite to attendance at the public 
 schools is a reasonable and proper exercise 
 of the police power, and does not violate the 
 constitutional guaranties of life and liberty. 
 or the provision requiring the mnintonnTioe 
 of a system of schools wherein all the chil- 
 
 dren of the state may be educated. Vie- 
 meister v. White, 179 N. Y. 235, 72 N. E. 97, 
 
 70: 796 
 Horse racing. 
 Regulation of Betting on Horse Race in 
 
 Other State as Regulation of Commerce, 
 
 see Commerce, 8. 
 
 1013. A statute prohibiting horse races 
 during the winter months, or public race 
 meetings on any track more than three 
 times in any year, or more than fifteen 
 days at a time, or more than twice in sixty 
 days, or with less than thirty days be- 
 tween meetings, is a legitimate exercise of 
 the police power of the state. State ex rel. 
 Duensing v. Roby, 142 Ind. 168, 41 N. E. 
 145, 33: 213 
 Carriers. 
 
 Equal Protection and Privileges as to, see 
 
 supra, II. a., 3, 6. 
 Due Process of Law as to Right of Action 
 
 or Defense against, see supra, II. b, 7, 
 
 6, (1), (b). 
 See also supra, 852; Commerce, 48. 
 
 1014. The regulation of the pressure of 
 natural gas transported in pipes is within 
 the police power of the legislature, to be 
 exercised according to its discretion, in the 
 absence of facts to show oppression or usur- 
 pation under a pretext of exercising police 
 power. Jamieson v. Indiana Natural Gas 
 & 0. Co. 128 Ind. 555, 28 N. E. 76, 12: 652 
 
 1015. A statute requiring railroads and 
 transportation companies to turn over to a 
 storage company or public warehouseman 
 all property which the consignees fail to 
 call for or receive within twenty days after 
 notice of its arrival (Minn. Gen. Laws 1895. 
 chap. 149, 11), is unconstitutional and 
 void, not being a lawful exercise of the 
 police power of the state. State v. Chicago, 
 M. & St. P. R. Co. 68 Minn. 381, 71 N. W. 
 400, 38: 672 
 Regulation of rates. 
 
 Equal Protection and Privileges, as to, see 
 supra, 422. 423. , 
 
 Due Process of Law as to, see supra, 751- 
 753. 
 
 1016. The power of the legislature to 
 regulate charges for the use of property 
 and the rendition of services connected 
 therewith does not depend in every case 
 upon the fact that the owner has a legal 
 monopoly, or some special governmental 
 privileees or protection have been bestowed 
 upon him. but it may also extend to certain 
 kinds of business which hold such a peculiar 
 relation to the public interests that there is 
 superinduced upon them the ri^hl of public 
 ro?nl:.tion. People v. Budd, 117 N. Y. 1. 22 
 X. E. 670. 5: 559 
 Sunday law. 
 
 See also infra, 1076. 
 
 1017. Sunday laws are within the legis- 
 lative power to adopt such wholesome laws 
 as may be necessary to promote the peace, 
 health, and wcll-beincr of societv. and do 
 not violate the personal liberty of the indi- 
 vidual, secured by Ohio Bill of Rights. 1. 
 State v. Powell, '58 Ohio St. 324, 50 N.' E. 
 900. 41 : 854 
 
 1018. The police power does not justify a
 
 634 
 
 CONSTITUTIONAL LAW, II. c. 4. 
 
 statute which makes it unlawful for barbers 
 to do business on Sunday without inter- 
 fering with any other class of business. 
 Eden v. People, 161 111. 296, 43 N. E. 1108, 
 
 32: 659 
 
 1019. Prohibiting the opening of barber 
 shops on Sunday is within the police power 
 of the state. People v. Bellet, 99 Mich. 151, 
 57 N. W. 1094, 22: 096 
 
 1020. Forbidding a barber to exercise his 
 trade on Sunday' is a proper exercise of 
 the police power, and does not unconstitu- 
 tionally restrain him of personal liberty, or 
 deprive him of liberty or property without 
 due process of law. State v. Sopher, 25 
 Utah, 318, 71 Pac. 482, CO: 468 
 
 1021. A statute prohibiting barbers from 
 carrying on their trade on Sunday is a 
 constitutional exercise of the police power 
 to promote the public health. People v. 
 Havnor, 149 N. Y. 195, 43 N. E. 541, 31: 689 
 [Writ of Error Dismissed in 170 U. S. 408, 
 42 L. ed. 1087, 18 Sup. Ct. Rep. 631.] 
 
 6. Particular Occupations. 
 
 As to Regulation of Manufacture and Sales, 
 
 see infra, II. c, 4, d. 
 See also supra, 471. 
 For Editorial Notes, see infra, III. 10. 
 
 1022. Persons giving out materials to 
 be manufactured into men's clothing may 
 be required to keep a register of those to 
 whom they are given, to aid the public au- 
 thorities in their supervision of the places 
 where the work is done. State v. Hyman, 
 08 Md. 596, 57 Atl. 6, 64: 637 
 Commission merchants; transient dealers. 
 Equal Protection and Privileges as to, see 
 
 supra, 478-485. 
 See also supra, 483. 
 
 1023. The regulation of the business of 
 commission merchants or persons selling 
 agricultural products and farm produce on 
 commission, in order to protect a large class 
 of people engaged in agricultural pursuits 
 and more or less remote from market from 
 imposition and fraud when intrusting their 
 products and produce to commission men 
 for sule, is a valid exercise of the palice 
 power. State ex rel. Beek v. Wagener, 77 
 Minn. 483, 80 N. W. 633, 46: 442 
 
 1024. A statute imposing burdensome 
 regulations and license fees on the business 
 of temporary or transient dealers, if its aim 
 is tho regulation of the business, and not 
 the obtaining of revenue, falls within the 
 police power of the state, and is therefore 
 not ajrainst pi'blic policy, whether it if 
 expprlient or inexpedient, politic or im- 
 politic State v. Foster, 22 R. I. 163. 46 
 Atl. 833, 50: 33P 
 Lodging-house keepers. 
 
 1025. The police power will not justify 
 the restriction of the number of persons 
 which lodsrinjr-house keeners alone may per- 
 mit to occupy one room during the same 
 niirht, since they are thereby deprived of 
 thoir property, and the discrimination in 
 limiting the provisions to lodging-house 
 keepers prevents the regulation being due 
 
 process of law. Bailey v. People, 190 111. 
 
 28, 60 N. E. 98, . 54: 838 
 
 Pawnbrokers. 
 
 See also Courts, 509. 
 
 1026. The constitutional right of security 
 against unreasonable searches and seizures 
 is not violated by regulation of a pawn- 
 broker's business, which, compels him to 
 take out a license, and to keep a book with 
 a list of all property received in the busi- 
 ness, and to submit such book and such 
 goods or other securities to the inspection 
 of the mayor or a police officer. Shuman v. 
 Ft. Wayne, 127 Ind. 109, 26 N. E. 560, 
 
 11: 378 
 Employment agency. 
 
 1027. The legislature cannot limit the 
 charges which the owner of an employment 
 agencv may make for his services. Ex parte 
 Dickey, 144 Cal. 234, 77 Pac. 924, 66: 928 
 Emigrant agents. 
 
 1028. The occupation of an "emigrant 
 agent" does not belong to that class which 
 is so inherently harmful or dangerous to 
 the public that it may be either directly or 
 indirectly restricted or prohibited, where the 
 occupation consists merely in hiring laborers 
 in the state to be employed beyond the 
 limits of the state. State v. Moore, 113 N. 
 C. 697, 18 S. E. 342, 22: 472 
 Plumbing. 
 
 Equal Protection and Privileges as to, see 
 
 supra, 517, 518. 
 Due Process of Law as to, see supra, 678. 
 
 1029. The business of plumbing is so 
 nearly related to the public health that 
 reasonable regulations tending to protect 
 the public against the dangers of careless 
 and inefficient work may be made by law 
 without infringing the constitutional right 
 of the citizen to pursue such calling. State 
 v. Gardner, 58 Ohio St. 599, 51 N. E. 136, 
 
 41 : 689 
 
 1030. A statute making it unlawful to 
 do business as an employing or master 
 plumber without a certificate of competency 
 obtained from an examining board, and 
 registration with the boaid of health, and 
 requiring compliance with the regulation of 
 both boards, but having no application to 
 plumbers who do not employ others, is a 
 constitutional exercise of the police power 
 to protect health. People ex rel. Nechamcus 
 v. Warden of City Prison, 144 N. Y. 52!). 39 
 N. E. 682, 27: 718 
 
 1031. Prohibiting any but registered 
 plumbers who have received a certificate of 
 competency from a state board to engage in 
 the business of plumbing is but the ordinary 
 exercise of the police power of the state, and 
 does rjot violate any constitutional rights of 
 individuals. Singer v. State, 72 Md. 464, 19 
 Atl. 1044, 8: 551 
 Medicire and dentistry. 
 
 Equal Protection and Privileges as to, see 
 
 supra, 492-509. 
 Due Process of Law as to. see supra. 677. 
 
 1031a. Legislation prohibiting nnyone 
 from treating a disease for a fee. excepting 
 such persons as have prescribed qualifi- 
 cations, is a valid exercise of the police 
 power of the state, and is constitutional.
 
 CONSTITUTIONAL LAW, II. c, 4. 
 
 635 
 
 State v. Marble, 72 Ohio St. 21, 73 N. E. 
 1063, 70: 835 
 
 1032. The requirement that all physicians 
 shall obtain a new certificate and license 
 under Ind. act March 8, 1897, although they 
 had been previously practising medicine and 
 held a license under the old law, and that 
 the validity of the old license and the fit- 
 ness of the applicant might be examined by 
 the medical board, is a valid exercise of the 
 police power of the state. State ex rel. 
 Burroughs v. Webster, 150 Ind. 607, 50 N. E. 
 750, 41:212 
 
 1033. A license to own, run, or manage a 
 dental office, to be granted after examina- 
 tion as to fitness, cannot be required under 
 the police power of the state, where there 
 is no intention of engaging in the actual 
 practice of dentistry. State *f. Brown, 
 (Wash.) 79 Pac. 635, 68: 889 
 Barbers. 
 
 See also supra, 1018-1021. 
 
 1034. The business of a barber involve? 
 the public health and interests to such an 
 extent that the reouirement by Minn. Gen. 
 Laws 1897, chap. 186, of a license or certifi- 
 cate as a condition of carrying on the busi- 
 ness, is a valid exercise of legislative 
 power. State v. Zeno, 79 Minn. 80, 81, N. 
 W. 748. 48: 88 
 Horseshoeing. 
 
 1035. Requiring a horseshoer to practise 
 the business of horseshoeing for four years, 
 and submit to an examination by a board 
 of examiners and pay a license fee for the 
 privilege of exercising his calling, is not 
 within the police power of the state. Bes- 
 sette v. People. 193 111. 334, 62 N. E. 215, 
 
 56: 558 
 
 c. Matters between Master and Servant. 
 
 See also supra, 541, 686. 
 
 For Editorial Notes, see infra, III. 10, 16. 
 
 1036. Employees of corporations have no 
 right to demand that greater power shall be 
 granted to the corporations than the legis- 
 lature sees fit to give them, in order that 
 they may make other contracts with the 
 corporations than the latter are authorized 
 to enter into. State v. Brown, & S. Mf<j. 
 Co. IS R. I. 16, 25 Atl. 246, 17: 856 
 
 1037. The police power does not extend to 
 a statutory prohibition of the exercise by 
 employers of the right to insist that em- 
 ployees shall not belong to labor unions. 
 State v. Julow. 129 Mo. 163, 31 S. W. 781, 
 
 29: 257 
 Wages. 
 Equal Protection and Privileges as to, see 
 
 supra, 552-564. 
 Due Process of Law as to, see supra, 718- 
 
 735. 
 For Editorial Notes, see infra, III. 16. 
 
 1038. A statute prohibiting the payment 
 of wages to employees, or making advances 
 for labor not due, by any "scrip, token, 
 draft, check, or other evidence of indebted- 
 ness payable or redeemable otherwise than 
 in lawful money." is a valid exercise of the 
 police power. [Case affirmed by equa! di- 
 
 vision.] Peel Splint Coal Co. v. State, 36 
 W. Va. 802, 15 S. E. 1000, 17: 385 
 
 1039. The power of corporations to con- 
 tract being the gift of the legislature, it 
 has power to prohibit them from making 
 contracts with employees for payment of 
 wages otherwise than weekly and to within 
 nine days of the date of payment, unless 
 prevented by inevitable casualty. State, Cur- 
 tis v. Brown & S. Mfg. Co. 18 R. I. 16, 25 
 Atl. 246, 17: 856 
 
 1040. Requiring employers to make week- 
 ly payment of wages, notwithstanding 
 private contracts which they may make 
 with their employees, is not within the 
 police power of the state. Republic Iron & 
 S. Co. v. State, 160 Ind. 379, 66 N. E. 1005, 
 
 62: 136 
 
 1041. A statute requiring payment for 
 mining coal to be made according to the 
 weight or measure at the place where it is 
 mined, and, if paid for by weight, that it 
 shall be weighed in the car before removed 
 from the mine or screened, and, if paid for 
 by measure, according to the number of 
 bushels marked on each car before the 
 coal is removed from the mine or screened, 
 is a valid exercise of the police power. 
 [Case affirmed by equal division.] Peel 
 Spint Coal Co. v. State, 36 W. Va. 802, 15 
 S. E. 1000, 17: 385 
 
 1042. The prohibition against screening 
 coal mined at ton or quantity rates, before 
 the same is weighed and duly credited to 
 the employees and accounted for at the legal 
 rate of weights, being imposed by Kan. 
 Laws 1893, chap. 188, without prohibiting 
 the employment of miners at day wages or 
 making contracts for wages based on the 
 quantity of screened coal produced, does not 
 affect the right of contract, and is a valid 
 exercise of the police power. State v. Wil- 
 son, 61 Kan. 32, 58 Pac. 981, 47: 71 
 Hours of labor. 
 
 Equal Protection and Privileges as to, see 
 
 supra, 547-551. 
 Due Process of Law as to, see supra, 710- 
 
 717. 
 For Editorial Notes, see infra, III. 10, 16. 
 
 1043. A limitation of the hours of labor 
 on public work is not a valid exercise of the 
 police power, it not appearing that the 
 services and labor to be performed are un- 
 lawful or against public policy, or that they 
 are of such character that such limitation 
 and restriction as to the number of hours 
 of labor that should constitute a day's work 
 are necessary to the public welfare. Cleve- 
 land v. Clements Bros. Constr. Co. 67 Ohio 
 St. 197, 65 N. E. 885, 59: ?75 
 
 1044. The state cannot forbid independent 
 contractors, performing work for it, to re- 
 quire their employees to labor more than a 
 specified number of hours per day, either 
 under its police power, or on the ground 
 that the legislature may prescribe rules for 
 the manner in which state work shall be 
 performed. People v. Orange County Road 
 Constr. Co. 175 N. Y. 84, 67 N. E. 129, 
 
 65: 33 
 
 1045. The legislature may, under its po- 
 lice power, properly limit the hours of labor
 
 636 
 
 CONSTITUTIONAL LAW, II. c. 4. 
 
 of employees of a public-service corporation, 
 such as "a street railway company, to not 
 more than ten out of twenty-four, to be 
 performed within twelve consecutive hours. 
 Re Ten -Hour Law for Street R. Corps. 24 
 R. I. 603, 54 Atl. 602, 61 : 612 
 
 1046. A limitation of the duration of a 
 day's work in underground mines, smelters, 
 and works for the reduction or refining of 
 ores or metals, known as the "eight-hour 
 law," is a valid exercise of the police power 
 of the state. Short v. Bullion, B. & C. Min. 
 Co. 20 Utah, 20, 57 Pac. 720, 45: 603 
 
 1047. An act providing that the period of 
 employment of workingmen in smelters 
 shall be only eight hours per day, except in 
 case of emergency, is authorized by Utah 
 Const, art. 16, 6, requiring the legislature 
 to pass laws to provide for the health and 
 safety of employees in smelters. State v. 
 Holden, 14 Utah* 96, 46 Pac. 1105, 37: 108 
 [Aff'd by the Supreme Court of the United 
 States in 169 U. S. 366, 42 L. ed. 780. 18 
 Sup. Ct. Rep. 383.] 
 
 104S. A statute prohibiting the employ- 
 ment of workingmen in underground mines 
 more than eight hours per day, except in 
 cases of emergency where life or property 
 is in imminent danger, is a valid exercise of 
 the police power, under Utah Const, art. 16, 
 6. authorizing the legislature to pass laws 
 to provide for the health and safety of em- 
 ployees in factories, smelters, and mines. 
 Holden v. Hardy, 14 Utah. 71, 46 Pac. 756, 
 
 37: 103 
 
 fAff'd by the Supreme Court of the United 
 States in 169 U. S. 366, 42 L. ed. 780, 18 
 Sup. Ct. Rep. 383.] 
 
 1049. A statute restricting the hours of 
 labor of females in manufacturing, mechani- 
 cal, and mercantile establishments, hotels, 
 and restaurants to a maximum of sixty 
 hours a week is a legitimate exercise of the 
 police power, and does not violate the 
 constitutional guaranties of the personal 
 and property rights of either employer or 
 employee. Wenham v. State, 65 Neb. 394, 
 91 N/W. 421, 58: 825 
 
 1050. A statute prohibiting the employ- 
 ment of women in factories or workshops 
 for more than eight hours a day cannot be 
 sustained as a police regulation for the pro- 
 motion of the public health, on the ground 
 that it is designed to protect women on ac- 
 count of their sex and physique, as sex is 
 no bar under the Illinois Constitution or 
 laws to the right to contract, and the mere 
 fact of sex will not justify the exercise of 
 the police power for the purpose of limiting 
 the exercise of fneh rights, by a woman, un- 
 less there is some fair, just, and reasonable 
 connection between such limitation and the 
 public health, safety, or welfare; and there 
 is no reasonable ground why a woman 
 should be deprived of the right to determine 
 for herself how many hours during each day 
 she can and may work in an employment 
 conceded to be lawful in itself and suitable 
 for her to engage in, even if the police 
 power can be exercised to prevent injury to 
 the individual engaged in a particular call- 
 
 ing. Ritchie v. People, 155 111. 98, 40 N. E. 
 454, 29:79 
 
 Safety and health of employees. 
 For Editorial Notes, see infra, III. 16. 
 
 1051. No restriction on the police power 
 of the legislature to provide for the safety 
 of miners by means of the inspection of 
 mines or otherwise is made by 111. Const, 
 art. 4, 29, which expressly requires the 
 legislature to pass laws for the protection 
 of operative miners by providing for venti- 
 lation and for the construction of escape- 
 ment shafts or such other appliances as may 
 secure safety in all coal mines. Chicago, 
 W. & V. Coal Co. v. People, 181 111. 270, 54 
 N. E. 961, 48: 554 
 
 1052. Imposing upon mine owners the 
 burden of paying the cost of inspection of 
 the mines, as provided by 111. act July 1, 
 1895, as amended in July, 1897, is a valid 
 exercise of the police power which does not 
 depend upon any constitutional grant of 
 power to legislate concerning mines. Id. 
 
 1053. A statute compelling reasonable 
 protection for the employees on electric, 
 cable, or steam cars, except those on the 
 rear platform, between November 1 and 
 April 1 of each year, is within the police 
 power. State. v. Hoskins, 58 Minn. 35, 59 
 N. W. 545, 25: 759 
 
 1054. A statute making railroad com- 
 panies liable to all employees for injuries 
 caused by negligence of any of their serv- 
 ants in charge of any signal, telegraph of- 
 fice, switch yard, shop, roundhouse, loco- 
 motive engine, or train, is not unconstitu- 
 tional as unequal, but is sustainable as an 
 exercise of the police power for the pro- 
 tection of persons exposed to dangerous 
 agencies in the hands of others. Indian- 
 apolis Union R. Co. v. Houlihan, 157 Ind. 
 494, 60 N. E. 943, 54: 787 
 
 1055. A statute requiring emery wheels to 
 be provided with blowers to carry away the 
 dust arising from their operation is, at 
 least so far as, it applies to dry wheels and 
 to the protection of persons continuously 
 employed over them a constitutional exer- 
 cise of the police power. People v. Smith, 
 108 Mich. 527, 66 N. W. 382, 32:853 
 
 1056. The police power extends to pro- 
 hibiting the use of a room in a tenement or 
 dwelling house for the manufacture of 
 men's clothing, except by the immediate 
 members of the family living there, and 
 then only iinder permit from a public of- 
 ficial. State v. Hyman, 98 Md. 596, 57 Atl. 
 6, 64: 637 
 
 1057. Requiring a specified air space for 
 every person employed in a manufacturing 
 establishment is strictly and essentially a 
 health regulation within the police power of 
 the legislature. Id. 
 
 d. Regulation of Manufacture and Sales. 
 
 See also supra, 982-984, 1024. 
 
 1058. The sale of a commodity may be 
 subject to the exercise of the police power, 
 though its use would not necessarily sub- 
 vert the morals, impair the health, or dis-
 
 CONSTITUTIONAL LAW, II. c, 4. 
 
 637 
 
 turb the peace of society. State v. Schu- 
 man. 36 Or. 10, 58 Pac. 661, 47: 153 
 
 1050. The police power will not justify 
 an act prohibiting solvent merchants from 
 disposing of their stocks in bulk without 
 giving notice to their creditors. Block v. 
 Schwartz, 27 Utah, 387, 76 Pac. 22, 65: 308 
 Department store. 
 Sen also infra, 1075. 
 
 10GO. The sale in one store or building 
 under one head or unit of management, of 
 dill'crent articles enumerated in the different 
 classes or groups designated by the Mis- 
 souri anti-department store act of May 16, 
 ISO!), cannot be deemed harmful and danger- 
 ous so as to be subject to regulation by the 
 police power, merely because fifteen or more 
 persons may be emnloyed in the establish- 
 ment, if it is innocent and hawnless to sell 
 articles of any one class or groflp, and also 
 to sell those of different classes or groups 
 in establishments employing less than 
 fifteen persons. State ex rel. Wyatt v. Aah- 
 brrok. 154 Mo. 375. 55 S. W. 627, 48: 265 
 Food. . 
 
 10(51. It is within the police power and 
 legislative discretion of the city of New 
 Orleans, under act No. 34 of 1900 of the 
 general assembly, to require certain food 
 commodities to be sold only in the public 
 markets; and the fact that the ordinance in 
 question may have the effect of compelling 
 denlers in such commodities to go into the 
 public markets, or else to go out of busi- 
 ness, does not affect the validity of the ordi- 
 nance. New Orleans v. Faber, 105 La. 208, 
 29 So. 507, 53: 165 
 
 1002. The prohibition of the sale of cream 
 that contains less than 20 per cent of fat, 
 by Minn. On. Stat. 1894. 7002, is a valid 
 exercise of the police power, and constitu- 
 tional. State v. Crescent Creamery Co. 83 
 Minn. 284, 86 X. W. 107, 54: 466 
 
 1063. Prohibiting the sale and shipment 
 of milk to supply cities, towns, or villages, 
 from premises found in an unsanitary con- 
 dition, until they conform to reasonable 
 sanitary regulations, is a valid exercise of 
 the police power, although it interferes to 
 some extent with property rights. State v. 
 Broadbelt, 89 Md. 565, 43 Atl. 771, 45: 433 
 
 1064. The power of the legislature to pro- 
 hibit the addition of water or any other 
 saibstnnce whatever to milk that is sold is 
 included within the police power to pro- 
 tect health, even when it extends to the ad- 
 dition of that which is harmless in itself, 
 and which is pdded without intent to de- 
 fraud, but merely to preserve the milk. 
 State v. Schlenker, 112 Iowa, 642, 84 N. W. 
 6D8. 51 : 347 
 
 1005. A penal ordinance requiring vendors 
 of milk to the public to furnish gratuitous- 
 ly to sanitary inspectors, on their appli- 
 cation, samples of milk not exceeding one 
 half pint for inspection and analysis, is a 
 le?itimate exercise of the police power for 
 public health, and is not unreasonable, 
 vexatious, or oppressive. State v. Dupa- 
 quier. 46 La. Ann. 577. 15 So. 502, 26: 162 
 
 1066, The registration with the live-stock 
 sanitary board, of all herds or cattle of 
 
 persons selling milk for consumption in 
 cities, towns, and viJages, may be required 
 by the legislature in the exercise of the 
 police power; and such statute will not de- 
 prive the milk dealers of property without 
 due process of law. State v. Broadbelt, 80 
 Md. 565, 43 Atl. 771, 45: 433 
 
 1067. An ordinance providing for the de- 
 struction of milk which is found by the 
 authorized inspector, by proper means and 
 instruments, not to come up to the pre- 
 scribed standard, is within the police power. 
 Deems v. Baltimore, 80 Md. 164. 30 Atl. 048, 
 
 26: 541 
 
 1068. A statute prohibiting the sale of 
 imitation butter unless colored pink is a 
 valid exercise of the police power. State v. 
 Marshall, 64 N. H. 549, 15 Atl. 210, 1: 51 
 
 1069. The police power of the state ex- 
 tends to a requirement that oleomargarine 
 and artificial or adulterated butter shall be 
 colored pink. State v. Myers, 42 W. Va. 
 822, 26 S. E. 539, 35: 844 
 
 1070. Statutes forbidding the manu- 
 facture of any article in imitation of butter, 
 which is not pure butter, or the manu- 
 facture or sale of oleomargarine which con- 
 tains any coloring matter, or the sale of any 
 substance which is not butter, but has the 
 appearance of butter, unless it is sold under 
 its true name and has its true name plainly 
 marked thereon; and requiring that all 
 persons dealing in food shall, upon proper 
 application and tender of price, furnish a 
 sample for analysis; the purpose of which 
 is to prevent deception in the sale of dairy 
 products and preserve the public health, 
 are a proper exercise of the police power, 
 and do not violate the constitutional right 
 to liberty and the enjoyment of property. 
 State ex rel. Monnett v. Capital City Dairy 
 Co. 62 Ohio St. 350, 57 N. E. 62, 57: 181 
 
 1071. The legislature cannot prohibit the 
 sale of dairy products containing a pre- 
 servative other than salt, sugar, or spiritu- 
 ous liquors in specified cases, or the sale of 
 preservatives for such use, when the use of 
 preservatives is not declared to be an adul- 
 teration, and the statute is not aimed at 
 adulteration generally, regardless of wheth- 
 er or not their effect is to render the prod- 
 ucts unwholesome. People v. Biesecker, 169 
 X. Y. 53, 61 N. E. 990, 57: 178 
 
 1072. An ordinance making it unlawful to 
 sell fresh pork or sausage made thereof be- 
 tween June 1 and October is unreasonable 
 and void, since it violates the inalienable 
 right of man to procure food. Helena T. 
 Dwyer, 64 Ark. 424, 42 S. W. 1071- 
 
 39: 266 
 
 1073. An ordinance establishing the 
 weight of the loaves of bread that shall b 
 offered for sale within the city, and fixing 
 a penalty for offering for sale short-weight 
 loaves, cannot be successfully attacked as 
 not being within the police power, or as 
 taking property without compensation, or 
 abridging or unlawfully interfering with the 
 right to carry on business. People v. Wag- 
 ner. 86 Mich. 594, 49 N. W. 609, 13: 286 
 
 1074. The statutory prohibition of the 
 manufacture or sale of baking powder con-
 
 638 
 
 CONSTITUTIONAL LAW, IL c, 5, d. 
 
 taining alum is not unconstitutional in view 
 of the dispute as to the fact of its whole- 
 someness, which prevents the court from 
 taking judicial notice that it is wholesome 
 and innocuous. State v. Layton, 163 'Mo. 
 474, 61 S. W. 171, 62: 163 
 
 1075. The constitutional guaranties of 
 liberty and the protection of property 
 rights are violated by an arbitrary pro- 
 hibition of the sale of provisions where dry 
 goods, clothing, jewelry, and drugs are sold, 
 since such a prohibition is not an exercise 
 of the police power. Chicago v. Netcher, 
 183 11!. 104, 55 N. E. 707, 48: 261 
 
 Intoxicating liquors. 
 Equal Protection and Privileges as to, see 
 
 supra, 484-491. 
 Due Process of Law, as to, see supra, 754- 
 
 757. 
 
 Police Regulation of Intoxicating Liquors 
 Cenerallv, see Intoxicating Linuors, I. 
 See also supra, 488, 489, 756, 958, 959; Com- 
 merce, 98; Intoxicating Liquors, I. a. 
 1070. It is within the police power of the 
 state to forbid the giving away or selling of 
 intoxicating liquors on Sunday. Altenburg 
 v. Com. 126 Pa, 602, 17 Atl. 799, 4: 543 
 
 1077. It is within the police power of the 
 state to forbid the giving away, in a social 
 or other manner, by friends or neighbors, of 
 intoxicating liquor to one who is intoxi- 
 cated. Id - 
 
 1078. The establishment of dispensaries 
 by a municipality for the sale of intoxicat- 
 ing linuors under the management of agents 
 or officials created for this purpose may be 
 authorized by the legislature as a valid 
 exercise of the police power. Plumb v. 
 Christie, 103 da. 686, 30 S. E. 759, 42: 181 
 Tickets. 
 
 1079. The police power of the state to 
 grant licenses to engage in a business does 
 not apply to a statute allowing tickets of 
 carriers to be sold only by asrents appointed 
 in a particular manner. State v. Corbett, 
 57 Minn. 345. 59 N. W. 317, 24: 408 
 
 1080. Forbidding all but duly appointed 
 agents of transportation companies from 
 engaging in the business of ticket broker 
 is a violation of the liberty guaranteed to 
 citi/ens by the Constitution, which is not 
 justified by the police power of the state. 
 People ex rel. Tyroler v. Warden of New 
 York City Prison, 157 N. Y. 116, 51 N. E. 
 1006, 43: 264 
 
 5. As to Vices; Crimes. 
 
 Equal Protection and Privileges as to, see 
 
 supra, II. ? 8. 
 
 Due Process of L?,w as to, see supra, II. b, 8. 
 Keview of Legislative Decision as to, see 
 
 Courts, 148. 
 
 1081. The legislature has power to de- 
 claro that certain acts shall constitute a 
 criminal oflV^o, on the ground that they 
 endanger public morals, although such acts 
 may not be sufficient to sustain an indict- 
 ment at common law for nuisance or libel. 
 State v. McKee, 73 Conn. 18, 46 Atl. 40!), 
 
 49: 542 
 
 1082. The right of liberty and pursuit of 
 happiness, which the Constitution makes 
 one of the inalienable rights of individuals, 
 is not necessarily violated by the prohi- 
 bition of any act or personal vice or habit 
 which does not involve direct and immediate 
 injury to another. Territory v. Ah Lim, 1 
 Wash. 156, 24 Pac. 588, 9: 335 
 
 1083. Wash. Sess. Laws 1883, p. 30, 
 amendatory of Wash. Acts 1881, chap. 149, 
 2073, providing that any person who 
 shall smoke or inhale opium shall be deemed 
 guilty of a misdemeanor, is not unconstitu- 
 tional as being in violation of the inalien- 
 able rights to life, liberty, and pursuit of 
 happiness. Id. 
 
 1084. Possession of opium without having 
 a license therefor or without having ob- 
 tained it on the prescription of a physician 
 or pharmacist for medicinal purposes may 
 be made a criminal offense in the discretion 
 of the legislature, without violating any 
 constitutional right. Mon Luck v. Sears, 29 
 Or. 421, 44 Pac. 633, 32:738 
 
 1085. An ordinance prohibiting any prosti- 
 tute from being on the streets or alleys of 
 a city between the hours of 7 o'clock p. M. 
 and 4 o'clock A. M., without any reasonable 
 necessity therefor, is a valid exercise of the 
 police power under a statute giving author- 
 ity to "restrain and punish prostitutes." 
 Dunn v. Com. 105 Ky. 834, 49 S. W. 813. 
 
 43: 701 
 
 d. Freedom of Speech and of the Press; 
 Religious Freedom. 
 
 Making Publication as to Pending Case a 
 Contempt, as Interference with Free- 
 dom of the Press, see Contempt, 17, 79. 
 
 Injunction against Free Speech, see Injunc- 
 tion, 61, 123. 
 
 Prohibition of Public Address in Street, see 
 Municipal Corporations, 145, 146. 
 
 Prohibiting Publication of Criminal News, 
 see Newspaper, 10. 
 
 Right to Publish Anarchistic Article, see 
 Sedition, 3. 
 
 See also supra, 966 ; Privacy, 2, 3. 
 
 1086. An ordinance prohibiting any pub- 
 lic address upon any of the public grounds 
 of a city, such as Boston common, is not 
 an unconstitutional interference with free 
 speech. Com. v. Davis, 162 Mass. 510, 39 
 N. E. 113, 26: 712 
 
 1087. The constitutional guaranty of the 
 right to speak, write, or publish on any sub- 
 ject does not extend to the sending of let- 
 ters or circulars to a debtor threatening to 
 advertise a claim against him for sale, which 
 is a threat to injure his credit or reputation 
 in violation of Mo. Rev. Stat. 1889, 3782. 
 State v. McCabe, 135 Mo. 450, 37 S. W. 123, 
 
 34: 127 
 
 10PS. The constitutional guaranty of the 
 freedom of the press does not restrict the 
 rijrht of the owner of a newspaper on a 
 sale of it to bind himself against editing or 
 being connected with another journal in the 
 same locality. Cowan v. Fairbrother, 118 
 N. C. 406, 24 S. E. 212, 32: 829
 
 CONSTITUTIONAL LAW, II. e, f. 
 
 639 
 
 1080. The summary punishment as for 
 contempt of the publication of a newspaper 
 article does not constitute an invasion of 
 the liberty of the press. Burdett v. Com. 
 103 Va. 838, 48 S. E. 878, 68: 251 
 
 lOflO. An act making it a penal offense to 
 sell, or offer to sell, lend or give a paper 
 principally made up of criminal news, police 
 reports, and pictures and stories of blood- 
 shed, lust, and crime, does not violate Conn. 
 Const, art. 1, 5, providing that every 
 citizen may freely speak, write, and publish 
 his sentiments on all subjects, or 6, pro- 
 viding that no law shall be passed to re- 
 strain the lihertv of speech or of the press. 
 State v. McKee, 73 Conn. 18, 46 Atl. 409. 
 
 49: 542 
 
 1091. The publication of one's picture, 
 without his consent, as part of an advertise- 
 ment, is in no sense an exercis"e of the 
 liberty of speech or of the press, within the 
 meaning of those terms as used in the 
 Constitution. Pavesich v. New England L. 
 Ins. Co. 122 Ga. 190, 50 S. E. 68, 09: 101 
 Religious freedom. 
 
 Of Members of Benevolent Society, see 
 
 Benevolent Societies, 21, 42, 43. 
 Prohibition against Giving Christian 
 
 Science Treatment, see Christian 
 
 Science. 
 Reading from Bible in School, Generallv, 
 
 see Schools, 114, 119-128. 
 
 1092. That an act was done as a matter 
 of religious worship only will not protect 
 one from the consequences of an act which 
 is made subject to a penalty under the law. 
 Com. v. Plaisted, 148 Mass. 375, 19 N. E. 
 224, 2: 142 
 
 1093. The constitutional provision secur- 
 ing freedom of worship were not designed to 
 prevent the adoption of reasonable rules for 
 the use of streets; and a religious body can- 
 not avail itself of these provisions as an 
 authority to take possession of a city street, 
 in violation of such rules, for the purpose 
 of public worship therein. Id. 
 
 1004. Reading the Bible, offering prayer, 
 and singing hymns during school hours in 
 the public schools, in accordance with the 
 usages of sectarian churches, is an infringe- 
 ment of the constitutional guaranty of re- 
 ligious freedom. especially where the edu- 
 cation of children is made compulsory by 
 statute. State ex rel. Freeman v. Scheve. 
 65 Neb. 853, 91 N. W. 846, 59: 927 
 
 1005. The constitutional guaranty of re- 
 ligious freedom is not violated by a stat- 
 ute requiring the furnishing of medical at- 
 tendnnce to minors, where the Constitution 
 provides that liberty of conscience shall not 
 justify practices inconsistent with the 
 safety of the state. People v. Pierson. 176 
 N. Y. 201. 68 N. E. 243, 63: 187 
 
 1005a. A statute prohibiting labor on Sun- 
 day is not in conflict with the Constitution 
 of the United States or of Maryland. Jude- 
 find v. State, 78 Md. 510, 28 Atl. 405, 
 
 22: 721 
 
 109,'b. A constitutional guaranty of re- 
 ligions libertv is not violated by a statute 
 proMHtin? Sunday labor. Id. 
 
 1095c. The prohibition of baseball play- 
 
 ing on Sunday by Ohio Rev. Stat. 7032a, 
 does not require or prohibit any religious 
 observance, and therefore does not violate 
 the right of conscience in matters of religion 
 secured to the individual by the Ohio Bill of 
 Rights, 7. State v. Powell, 58 Ohio St. 
 324, 50 N. E. 900, 41 : 854 
 
 e. Natural Rights; Implied Guaranties. 
 
 Violation of, by Receiver Acting as Referee, 
 
 sec Receivers, 75. 
 See also supra, 232, 353; Privacy, 1; 
 
 Statutes, 49-51. 
 
 1096. Acts inconsistent with the spirit of 
 the Constitution are as much prohibited by 
 its terms as are acts specifically enumerated 
 and forbidden therein. McDonald v. Doust 
 (Idaho) 81 Pac. 60, G9:,220 
 
 1097. An oppressive and unjust law is not 
 void unless it contravenes some provision 
 of the state or Federal Constitution. State 
 v. Harrington, 68 Vt. 622, 35 Atl. 515, 
 
 34:100 
 
 1008. A statute cannot be declared uncon- 
 stitutional simply because it may be wrong 
 and unjust or because it violates the spirit 
 of our institutions or impairs those rights 
 which it is the object of free government to 
 protect. Townsend v. State, 147 Ind. 624, 47 
 N. E. 19, 37: 294 
 
 1099. The courts cannot declare a statute 
 unconstitutional and void solely on the 
 ground of unjust and oppressive provisions, 
 or because it is supposed to violate the 
 natural, social, or political rights of a 
 citizen, unless such injustice is prohibited 
 or such rights guaranteed or protected by 
 the Constitution. Burrows v. Delta Transrt. 
 Co. 106 Mich. 582, 64 N. W. % 501, 29: 468 
 
 1100. No natural right is contravened by 
 making a railroad company liable without 
 regard to negligence for fires set by loco- 
 motive engines, where experience has 
 demonstrated the danger of fires from such 
 sources. Matthews v. St. Louis & S. F. R. 
 Co. 121 Mo. 298. 24 S. W. 591, 25: 161 
 
 [Aff'd by the Supreme Court of the United 
 States in 165 U. S. 1, 41 L. ed. 611, 17 Sup. 
 Ct. Rep. 243.] 
 
 1101. A statute providing penalties for 
 breach of contract cannot be held unconsti- 
 tutional merely on the ground that it is 
 against the genius, nature, and spirit of the 
 government and general principles of law 
 and reason. Union C. L. Ins. Co. v. Chown- 
 ing, 86 Tex. 654, 26 S. W. 982, 24: 504 
 
 f. Guaranties of Justice. 
 
 As to Guaranty of Right to Life, Liberty 
 and Property, and Due Process of Law 
 as to. see supra, IT. b. 
 
 1102. The constitutional provision that 
 "justice shall be administered freely and 
 without purchase" is not violated by a 
 statute authorizing officers to tax and col- 
 lect reasonable fees for services, to create a 
 fund out of which their salaries are to be 
 paid. Henderson v. State ex rel. Stout, 
 137 Ind. 552, 36 N. E. 257, 24: 469
 
 640 
 
 CONSTITUTIONAL LAW, II. g, 1. 
 
 1103. The constitutional provision that 
 justice Shall be administered openly and 
 without purchase is not violated by a stat- 
 ute requiring payment of certain moderate 
 fees by parties to legal proceedings, al- 
 though these are turned into the treasury 
 and the officers paid by salary. Northern 
 Counties Invest. Trust v. Sears, 30 Or. 388. 
 41 Pac. 931, 35: 188 
 
 1104. The right to a fair trial involved in 
 the constitutional provision for trial by 
 jury is not infringed by a statute making 
 the costs and fees payable to officers and 
 witnesses in a criminal case depend on con- 
 viction, where this provision does not apply 
 to the jury, and applies to a justice of the 
 peace only in cases where his power is mere- 
 ly to bind over the accused for trial in a 
 tribunal in which the justice has no voice. 
 State v. Henley, 98 Tenn. 665, 41 S. W. 352, 
 1104, 39: 126 
 
 1105. An order staying all further pro- 
 ceedings in an action until the costs of an 
 appeal are paid does not violate constitu- 
 tional guaranties of right to trial by jury, 
 and to have justice freely, without sale. 
 Knee v. Baltimore City Pass. R. Co. 87 Md. 
 (123. 40 Atl. 890, 42: 363 
 
 1100. The allowance of an attorney's fee 
 in addition to costs that would otherwise 
 be allowed by law to successful lien claim- 
 ants, in pursuance of Colo. Sess. Laws 
 1893. chap. 117, p. 325, 18, which provides 
 for snob allowance only to plaintiffs, is in 
 violation of Colo. Bill of Rights. 6, pro- 
 viding that courts of justice shall be open to 
 every person and that right and justice shall 
 be administered without sale, denial, or de- 
 lay. Davidson v. Jennings, 27 Colo. 187, 60 
 Pac. 354. 48: 340 
 
 1107. RequiriBg an insurance company to 
 pay a penalty and attorneys' fees if com- 
 pelled to pay a loss which it fails to pay 
 within the time specified in the contract 
 does not tend to prevent a resort to the 
 courts, in contravention of a constitutional 
 requirement that all courts shall be onen. 
 Union C. L. Ins. Co. v. Chowning, 86 Tex. 
 654, 2(> S. W. 982, 24: 504 
 
 g. Impairing Obligation of Contracts. 
 
 1. As to Subject-Matter. 
 
 a. In General: By Statutes. 
 
 (1) Generally. 
 
 As to Curative Acts, see supra, I. b, 2, ft. 
 As to Vested Rights, see supra, I. c. 
 Waiver of Right to Object, see Insolvency, 
 
 25. 
 
 By Release of Mortirnsre. see Mortgage. 122. 
 As to State's Title to Water, see Waters. 36. 
 See also supra. 119. 
 For "Editorial Notes, see infra, III. 9, 14. 
 
 1108. A contract valid when made cannot 
 be rendered invalid by a general statute 
 subsequently passed. Stephens v. Southern 
 P. Co. 100 Cnl. 80, 41 Pac. 783. 29: 751 
 
 1109. A stntute does not impair the obli- 
 gation of contracts when it applies to those 
 
 contracts only which are made subsequent- 
 ly. Daggs v* Orient Ins. Co. 136 Mo. 382, 
 38 S. W. 85, 35: 227 
 
 1110. The inhibition against the impair- 
 ment of contracts, contained in U. S. Const, 
 art. 1, 10, is not applicable to Congress. 
 Evans-Snider-Buel Co. v. McFadden, 44 C. 
 C. A. 494, 105 Fed. 293, 58: 900 
 
 1111. The obligation of a contract made 
 subsequently to the enactment of a statute 
 cannot be impaired by it. within the mean- 
 ing of the Federal Constitution. Corbin v. 
 Houlehan, 100 Me. 246, 61 Atl. 131, 70: 568 
 
 1112. The provisions of the Federal Con- 
 stitution prohibiting the impairment of the 
 obligation of a contract do not apply to 
 contracts which are not valid. West- 
 minster Water Co. v. Westminster, 98 Md. 
 551, 56' Atl. 990, 64: 630 
 
 1113. The obligation of a contract is not 
 impaired by the repeal of a law under which 
 a contract for years was made, but which 
 did not authorize a contract for any definite 
 term; and the contract is terminated by 
 such repeal. Synod of Dakota v. State, 2 
 S. D. 366. 50 N. W. 632, 14: 418 
 
 1114. The legislature can avoid payment 
 of the obligations of the state by failure or 
 refusal to make the necessary appropriation, 
 although that body cannot impair the obli- 
 sration of the contract. Carr v. State, ex rel. 
 Du Coctlosquet. 127 Ind. 204, 26 N. E. 778, 
 
 11: 370 
 
 1115. A statute making proof of the cost 
 of an obligation the measure of the credit- 
 or's recovery, instead of the liability of the 
 debtor as shown by the terms of his con- 
 tract, is unconstitutional. People v. O'Brien, 
 111 N. Y. 1, 18 N. E. 692, 2: 255 
 Judgments. 
 
 See also infra, 1209. 
 
 For Editorial Notes, see infra, III. 9. 
 
 1116. Judsrments are not contracts, with- 
 in the prohibition by the Federal Constitu- 
 tion of legislation tending to imnair con- 
 tracts. Evans-Snider-Buel Co. v. McFadden, 
 44 C. C. A. 494, 105 Fed. 293, 58: 900 
 
 1117. A judgment is not a contract within 
 the meaning of the Federal Constitution for- 
 bidding the passage of laws impairing the 
 obligation of contracts. Livingston v. 
 Livingston. 173 N. Y. 377, 66 N. E. 123, 
 
 61: 800 
 
 1118. A judgment upon a tort is not a 
 contract, within the meaning of the consti- 
 tutional provision against impairing the 
 obligation of contracts. Sherman v. Lang- 
 ham. 92 Tex. 13, 40 S. W. 140, 42 S. W. 961, 
 
 39: 258 
 Exemptions. 
 
 1110. The exemption to married men or 
 heads of families of their earnings for 
 personal services rendered within sixty days 
 next preceding the levy of execution by 
 erarnishment or otherwise, provided by Utah 
 Sess. Laws 1899, 7, p. 99. being reasonable, 
 and directed to the remedy, and not the 
 ricrlit, does not impair the obligation of con- 
 tracts entered into prior to its passage, in 
 violation of U. S. Const, art. 1, 10. Tvirk- 
 man v. Bird. 22 Utah. 100. 61 Pac. 338, 
 
 58: 669
 
 CONSTITUTIONAL LAW, II. g, 1. 
 
 641 
 
 Appeal bonds. 
 
 1120. Obligations of sureties on appeal 
 bonds are not contracts within the constitu- 
 tional protection against impairment of 
 obligations, as they are not based on con- 
 sent of adverse litigants, but are assumed 
 by the makers of such bonds, which are per- 
 mitted, and thereby the right to appeal se- 
 cured under the provisions of positive law. 
 "Mexican Nat. R. Co. v. Mussette, 86 Tex. 
 708, 26 S. W. 1075, 24: 642 
 
 1121. Holding an appeal bond executed as 
 security for an appeal to the appellate court, 
 which then had jurisdiction in such cases, 
 to be valid after the transfer by statute of 
 such jurisdiction to another court, does not 
 impair the obligation of a contract, as the 
 bond is made in view of the known power to 
 change the jurisdiction. < Id. 
 
 1122. An appeal bond is protected, by the 
 constitutional provision against impairing 
 the obligation of a contract, from any 
 change in its terms or obligation by virtue 
 of a statute changing the jurisdiction of the 
 appellate courts. Schuster v. Weiss, 114 
 Mo. 158, 21 S. W. 438, 19: 182 
 Marriage. 
 
 Post Nuptial Agreement as to Amount Pay- 
 able to Wife for her Maintenance, see 
 Divorce and Separation, 87. 
 
 1123. The contract of marriage is not a 
 "contract.' within the meaning of the pro- 
 vision in the Constitution of the United 
 States prohibiting states from impairing the 
 obligation of a contract. State v. Tutty, 41 
 Fed 753, 7: 50 
 License of attorney. 
 
 1124 The obligation of the state's con- 
 tract with one to whom it grants a license 
 to practise law is not impaired by a subse- 
 quent statute requiring him to procure a 
 further license from the county clerk as a 
 means of compelling him to pay an occu- 
 pation tax. Ex parte Williams, 31 Tex. 
 Grim. Rep. 262. 20 S. W. 580, 21 : 783 
 
 1125. A tax upon the exercise of the 
 profession of a lawyer is not unconstitu- 
 tional as impairing the obligation of a con- 
 tract. Odlin v. Woodruff, 31 Fla. 160, 12 
 So. 227, 22: 699 
 Contract for water. 
 
 1126. A contract giving a consumer of 
 water the right to draw and take from a 
 canal all he may be entitled to on tender or 
 payment of the amount due therefor, if the 
 owner of the canal fail or refuse to comply 
 with the contract, is not protected against 
 legislative interference by a subsequent 
 statute prohibiting such acts and regulating 
 the distribution of water from such- canals, 
 but giving a remedy for the enforcement of 
 the right to receive all the water to which 
 the contract entitles him. White v. Farmers' 
 Highline Canal & R. Co. 22 Colo! 191, 43 
 Pac. 1028, 31 : 828 
 Taking park for railroad. 
 
 1127. The vested rights of owners abut- 
 ting upon a public park dedicated with the 
 restriction that no buildings shall be erected 
 upon it, fixed by the acts of dedication, the 
 acceptance of the city, and the acquiescence 
 of the public and abutting owners, cannot be 
 
 L.R.A. Dig. 41. 
 
 changed by the legislature granting tn city 
 the right to convey such land for railroad 
 purposes, as such action would be an un- 
 constitutional impairment of such rights. 
 Chicago v. Ward, 169 111. 392, 48 N. E. 927, 
 
 38: 849 
 Completion of eminent domain proceeding. 
 
 1128. The statutory right to have dam- 
 ages for land the fee of which is taken for 
 public use assessed and paid in money is a 
 substantial right which, after the proceed- 
 ings have progressed so far that the fee has 
 passed, cannot be impaired by the passage 
 of a statute authorizing the abandonment 
 of the land, and directing that the fee shall 
 revest in the former owner, and the fact 
 thereof be considered in reduction of the 
 damages to be awarded. Hellen v. Medford, 
 188 Mass. 42, 73 N. E. 1070, 69: 314 
 Agreement to issue county bonds. 
 
 1129. After an election by a county, under 
 authority of law, to ascertain whether it will 
 issue bonds in aid of a railroad, and after 
 subscription to the stock, agreement to is- 
 sue the bonds upon performance of certain 
 conditions by the railroad company, and ac- 
 ceptance by the latter of the agreement and 
 of the conditions, there is a valid and bind- 
 ing contract which cannot be impaired by a 
 subsequent change of the state Constitution. 
 Nelson v. Haywood County, 87 Tenn. 781, 
 11 S. W. 885, 4: 648 
 County warrants. 
 
 1130. County warrants indorsed "Not 
 paid for want of funds," upon which, by 
 Hill's (Or.) Ann. Laws, 2465, interest is 
 payable at the legal rate, are thereby made 
 contracts on which the rate of interest can- 
 not be decreased by subsequent statute. 
 Seton v. Hoyt, 34 Or. 266, 55 Pac. 967, 
 
 43: 634 
 Relief against trust. 
 
 1131. A statute relieving purchasers from 
 a trust or combination to raise the price of 
 food products, from liability to pay for 
 their purchases, will apply to purchases 
 made after its passage under a continuing 
 contract previously executed, which guaran- 
 tees payment on the 15th of each month for 
 goods furnished during the prior month. 
 Ford v. Chicago Milk Shipper's Asso. 155 
 111. 166, 39 N. E. 651, 27: 298 
 Maintenance of bridge. 
 
 1132. A statute by which the maintenance 
 of a bridge is taken upon the state has no 
 element of a contract, and gives rise to no 
 vested rights such that the legislature can- 
 not afterwards charge the expense of the 
 bridge upon towns especially benefited 
 thereby. State ex rel. Bulkeley v. Williams, 
 68 Conn. 131, 35 Atl. 24, 421, 48: 465 
 Charities. 
 
 1133. The prohibition against impairing 
 the obligation of contracts, contained in U. 
 S. Const, art. 1, 10, applies to contracts 
 establishing charitable trusts. Gary Library 
 v. Bliss, 151 Mass. 364, 25 N. E. 92, 7: 765 
 
 1134. The acceptance by a town of a 
 proposition for the donation of a fund for 
 the establishment of a public library, which 
 contains a scheme for the management of 
 the fund and library and the payment of
 
 642 
 
 CONSTITUTIONAL LAW, II. g, 1. 
 
 the money in accordance therewith, consti- 
 tutes a contract between the parties; and 
 the scheme cannot afterwards be changed 
 by the legislature without the consent of 
 all the parties to the contract, at least not 
 until the conditions existing at the time the 
 contract was made become so changed as to 
 make it impracticable or inconvenient 
 further to carry out the original scheme. 
 
 Id. 
 Religious societies. 
 
 1135. An act providing that the majority 
 of a congregation may determine to which 
 branch of a divided religious society they 
 shall belong, and making such determination 
 conclusive as to property held in trust for 
 such congregation, is unconstitutional and 
 void as impairing the obligation of con- 
 tracts. Finley v. Brent, 87 Va. 103, 12 S. E. 
 228, 11:214 
 
 (2) As to Corporate Rights, Property, and 
 Liabilities. 
 
 See also infra, 1188, 1190. 
 
 For Editorial Notes, see infra, III. 9. 
 
 1136. Statutes granting extension to 
 corporate charters, passed after the adop- 
 tion of an act making all grants to corpora- 
 tions subject to amendment, will be subject 
 to that act, although the original charters 
 contained exemptions which were irrevo- 
 cable. Deposit Bank v. Daviess County, 102 
 Ky. 174, 39 S. W. 1030, 44 S. W. 1131, 
 
 44: 825 
 Curi""; defective acknowledgment of charter. 
 
 1137. A statrte curing the defective 
 acknowledgment of a corporate charter, by 
 which existing personal liability of the 
 corporators on a contract of the company 
 was defeated, does not impair any contract 
 obligation of the other party to the contract. 
 Shields v. Clifton Hill Land Co. 94 Tenn. 
 123. 28 S. W. 668, 26: 509 
 Extent of recovery against. 
 
 113R. The Pennsylvania act of 1868 (P. L. 
 53) limiting the amount to be recovered in 
 actions against railroad companies and 
 common carriers for negligence to $3.000 in 
 case of personal injuries and $5,000 in case 
 of death, providing that "upon the accep- 
 tance of the provisions hereof by any car- 
 rier or corporation the same shall become 
 a part of its act of incorporation," does not 
 constitute a contract with a corporation, and 
 is abrogated by the new Constitution of 
 Pennsylvania, art. 3, 21, providing that no 
 statute shall limit the amount of recovery 
 for injuries resulting in death, or for in- 
 juries to persons or property. Pennsylvania 
 R. Co. v. Bowers. 124 Pa. '183, 16 At I. 836, 
 
 2: 621 
 Dissolution of corporation. 
 
 113!). A statute which defeats the right of 
 action against a corporation by its disso- 
 lution does not impair the obligation of 
 contracts, where it provides for the admin- 
 istration of the assets for the benefit of 
 creditors and stockholders. Nelson v. nub- 
 bard. 96 Ala. 238, 11 So. 428, 17:375 
 
 1 140. A statute empowering the state 
 
 auditor to institute proceedings for the dis- 
 solution of insurance companies which upon 
 examination seem to be insolvent, or in such 
 condition as to render their further contin- 
 uance in business hazardous to the insured 
 or to the public, and to apply for an injunc- ' 
 tion to prevent their further proceeding 
 with the business, and for a receiver, is not 
 unconstitutional as impairing the obliga- 
 tion of contracts. Republic L. Ins. Co. v. 
 Swigert, 135 111. 150, 25 N. E. 680, 12: 328 
 Stockholder's liability. 
 See also supra, 1141. 
 
 1141. A statute authorizing assessments 
 on fully paid-up stock of a corporation is 
 an unconstitutional invasion of property 
 and contract rights as applied to the owners 
 of pre-existing paid-up stock. Enterprise 
 Ditch Co. v. Moffit, 58 Keb. 642, 79 N. W. 
 560, 45: 647 
 
 1142. The contract rights of a creditor of 
 a corporation, who has brought an action 
 against a stockholder to enforce his stat- 
 utory double liability, for his own benefit, 
 as authorized by statute, are not uncon- 
 stitutionally impaired oy the enactment of 
 a statute requiring all creditors to unite 
 in one suit against all stockholders for eq- 
 uitable distribution of the double liability 
 fund among the creditors, and abating pend- 
 ing actions under the former law. Miners' 
 & M. Bank v. Snyder, 100 Md. 57, 59 Atl. 
 707, 68: 312 
 Regulating rates. 
 
 1143. It is not a violation of a contract 
 with a plank-road company, created by its 
 act of incorporation, to enact that no toll 
 gate can be kept or toll demanded within 
 the corporate limits of a city, where such 
 corporation had accepted the provisions of a 
 statute amending its charter, which made 
 the privileges of the company the same as 
 those of other companies under the general 
 law. Snell v. Chicago, 133 111. 413, 24 N. E. 
 532, 8: 858 
 
 1144. A charter specification of rates 
 which it shall be lawful for a turnpike com- 
 pany to charge, subject to a certain increase 
 or decrease if necessary to keep the com- 
 pany's dividends within certain limits, does 
 not constitute an irrevocable contract be- 
 tween the state and the corporation, but is 
 merely an indication that such rates are 
 supposed to be reasonable, without preclud- 
 ing the subsequent exercise of legislative 
 power to change the rates. Winchester & 
 L. Turnp. Road Co. v. Croxton, 98 Ky. 739, 
 34 S. W. 518, 33: 177 
 
 1145. The legislature may confer upon a 
 railroad company the exclusive power to fix 
 its rates for the transportation of passen- 
 gers and freight within a certain maximum; 
 and a subsequent attempt by the legisla- 
 ture to fix such rates is invalid as the im- 
 pairment of the obligation of a contract. 
 Pingree v. Michicran C. R. Co. 118 Mich. 
 314, 76 N. W. 635, 53: 274 
 
 1146. The power of railroad commission- 
 ers to make a schedule of reasonable maxi- 
 mum rates does not impair the obligation 
 of the contract of a railroad company, un- 
 der the Illinois act of 1852. which authorizes
 
 CONSTITUTIONAL LAW, IL g, 1. 
 
 643 
 
 ,ts board of directors to establish rates of 
 toll from time to time, but also provides 
 that the company's by-law's shall not be 
 repugnant to the Constitution and laws of 
 the state. Chicago, B. & Q. R. Co. v. Jones, 
 149 111. 361, 37 N. E. 247, 24: 141 
 
 1147. It cannot be presumed, without the 
 clearest language indicating such an in- 
 tention, that parties to a contract antici- 
 pated the enactment of an unconstitutional 
 law, or contracted upon such assumption; 
 and therefore a contract between street 
 railroad companies, to make no change in 
 rates of fare so long as the rates allowed 
 by law upon a certain date shall be re- 
 ceived will terminate by force of its own 
 limitation when a statute is passed reduc- 
 ing such rates. Buffalo East Side Street R. 
 Co. v. Buffalo Street R. Co. Ill ft. Y. 132, 19 
 N. E. 63, 2: 384 
 
 1148. A statute making it unlawful for 
 street railroad companies in a certain city 
 to charge the rates of fare then received 
 does not impair the obligation of a contract 
 between two of the companies operating 
 street railroads in that city, by which they 
 have agreed not to change the rates without 
 zhe consent of each other. Id. 
 Taxes and assessments. 
 
 See also Taxes, 248, 252. 
 
 For Editorial Notes, see infra, III. 9. 
 
 1149. The obligation of a contract is not 
 impaired by the taxation of a special fran- 
 chise of a corporation. People ex rel. Met- 
 ropolitan Street R. Co. v. State Bd. of Tax 
 Comrs. 174 N. Y. 417, 67 N. E. 69, 63: 884 
 
 1150. Charters granting exemption from 
 taxation, passed after the enactment of a 
 general Jaw which provides that all char- 
 ters subsequently enacted shall be subject 
 to amendment or repeal, may, unless a con- 
 trary intent was plainly expressed therein, 
 be amended or repealed at the pleasure of 
 the legislature, so as to deprive the corpo- 
 ration of the exemption. Deposit Bank v. 
 Daviess County, 102 Ky. 174, 39 S. W. 1030. 
 44 S. W. 1131, 44: 825 
 
 "1151. A charter exempting a corporation 
 from taxes so long as it has 'a specified 
 amount of property in the state consti- 
 tutes a contract which cannot be abrogated 
 by the state, and which is not subject to 
 a general provision of the statutes making 
 all charters subject to alteration, suspen- 
 sion, and repeal. State, Singer Mfg. Co. 
 Prosecutor v. Heppsnheimer (N. J. Err. & 
 App.) 58 N. J. L. 633, 34 Atl. 1061, 32: 643 
 
 1152. Consent in writing by banks to be 
 
 foverned by the provisions of a_ statute 
 xing the rate of taxation which the state 
 agrees shall be in lieu of all other taxation 
 upon the banks does not effect an irrevo- 
 cable contract, where the statute expressly 
 provides that it shall be subject to the pro- 
 visions of another law making all grants 
 to corporations subject to amendment at 
 the pleasure of the legislature. Deposit 
 Bank v. Daviess County, 102 Ky. 174, 39 
 S. W. 1030, 44 S. W. 1131, 44: 825 
 
 1153. A grant of exemption from taxation 
 for improvement of the streets occupied by 
 its tracks, made by the legislature to a 
 
 street railway company, is a mere privilege 
 subject to revocation at the pleasure of tne 
 legislature, if no acceptance of its terms 
 or provisions is necessary to make it effec- 
 tual. Rochester v. Rochester R. Co. 182 N. 
 Y. 99, 74 N. E. 953, 70: 773 
 
 1154. A legislative grant to an existing 
 street railway company of exemption from 
 taxation for improvement of the streets 
 occupied by its tracks, not based on any 
 consideration, is subject to revocation at the 
 pleasure of the legislature. Id. 
 
 1155. An enlargement of the liability of 
 a street railway company for paving a 
 street is not unconstitutional, where the 
 company's rights were acquired subject to 
 Tex. Const. 1895, art. 1, 17, providing that 
 all privileges and franchises shall be sub- 
 ject to legislative control, and that there 
 shall be no irrevocable or uncontrollable 
 grant of special privileges or immunities. 
 Storrie v. Houston City Street R. Co. 92 
 Tex. 129, 46 S. W. 796, 44: 716 
 
 1156. The obligation of previous contracts 
 of subscription to a foreign building and 
 loan association doing business within the 
 state is not impaired by Ky. Stat. 4228, 
 imposing an annual tax of 2 per cent on 
 the annual gross receipts of all such asso- 
 ciations. Southern Bldg. & L. Asso. v. Nor- 
 man, 98 Ky. 294. 32 S. W. 952, 31:41 
 Matters as to carriers generally. 
 
 See also supra, 1145-1148. 
 
 1157. Contracts concerning interstate 
 transportation must be resarded as made 
 upon the basis and with the understanding 
 that changes in the law applicable to them 
 may be made by Congress; and there is no 
 vested right in the law as it existed at the 
 time they were made. Fitzgerald v. Grand 
 Trunk R. Co. 63 Vt. 169, 22 Atl. 76, 13: 70 
 
 1158. The provision of Ga. Civ. Code, 
 2317, 2318, that one of two or more con- 
 necting carriers which fails, on applica- 
 tion, to trace and give information of the 
 time, place, and manner of loss or injury, 
 to goods shipped, shall be liable for the 
 value of the goods lost, damaged, or de- 
 stroyed, in the same manner as if the loss, 
 damage, or destruction occurred on its line, 
 notwithstanding a provision in the contract 
 of shipment relieving each carrier from re- 
 sponsibility on delivery to the next carrier 
 in good order, is not an impairment of the 
 obligation of a contract of shipment en- 
 tered into after the enactment of such 
 statute.' Central of Ga. R. Co. v. Murphey, 
 116 Ga. 863, 43 S. E. 265, 60: 817 
 Restricting sale of tickets. 
 
 1159. The obligation of contracts is not 
 impaired as to tickets thereafter isued, by 
 a statute restricting the sale thereof with- 
 out a certificate of authority from the car- 
 rier. Burdick v. People, 149 111. 600, 36 N. 
 E. 948, 24: 152 
 Railroad companies generally. 
 
 For Editorial Notes, see infra, TIL 9. 
 
 1160. Mere legislative authority given a 
 railroad to receive subscriptions to stock 
 from municipal corporations, for which no 
 consideration is given and which there has 
 been no attempt to exercise, is not a con-
 
 644 
 
 CONSTITUTIONAL LAW, II. g, I. 
 
 tract, but may be revoked at any time. 
 Wilkes County v. Call, 123 N. C. 308, 41 
 S. E. 481, 44: 252 
 
 1161. Compelling railroad companies to 
 make a connecting switch where railroads 
 intersect does not violate their charter 
 rights merely because there is no reserva- 
 tion of the power to make such requirement. 
 Jacobson v. Wisconsin, M. & P. E.. Co. 71 
 Minn. 519, 74 N. W. 893, 40: 389 
 
 1162. A statute permitting a foreign rail- 
 road corporation to extend its road through 
 the state> subject to the restrictions pre- 
 scribed by its charter for its government 
 within the state of its domicil, when ac- 
 cepted, constitutes a contract which will 
 preclude the state from subsequently re- 
 quiring it to become domesticated as a con- 
 dition to its continued enjoyment of the 
 privilege. Com. v. Mobile & O. R. Co. 23 
 Ky. L. Rep. 784, 64 S. W. 451, 54: 916 
 Railroad's liability for fires. 
 
 See also supra, 1172. 
 
 1163. A statute making a railroad com- 
 pany liable for damages caused by fire from 
 a locomotive does not impair the obligation 
 of a contract in its charter, which merely 
 authorizes the use of steam or of animal 
 power or mechanical power in operating the 
 road. Matthews v. St. Louis & S. F. R. Co. 
 121 Mo. 298, 24 S. W. 591, 25:161 
 [AfFd by the Supreme Court of the United 
 States in 165 U. S. 1, 41 L. ed. 611, 17 Sup. 
 a. Rep. 243.] 
 
 1164. A contract made by a railroad char- 
 ter is not impaired by a statute making the 
 company liable for fires caused by its en< 
 gines or the act of its servants on its right 
 of way, where, although the original char- 
 ter was not subject to amendment or re- 
 peal, the company accepted an amendment 
 the effect of which, under general laws then 
 in force, was to make the charter subject 
 to amendment, alteration, or repeal. Mc- 
 Candless v. Richmond & D. R. Co. 38 S. C. 
 103, 16 S. E. 429, 18: 440 
 Street railway companies. 
 
 See also supra, 1147, 1148, 1153-1155; Tax- 
 es, 248. 
 For Editorial Notes, see infra, III. 9. 
 
 1165. A contract between a street rail- 
 way company and a city to run cars of the 
 best modern style and construction is not 
 impaired by a statute making additional re- 
 quirements in respect to the cars for the 
 protection of employees. State v. Hoskins, 
 58 Minn. 35, 59 N. W. 545, 25: 759 
 
 1166. An absolute right of a corporation 
 to use the street railway tracks of another 
 corporation cannot be burdened by a sub- 
 sequent statute so as to make the exercise 
 of the right depend on the consent of 
 abutting owners. Ingersoll v. Nassau Elee. 
 R. Co. 157 N. Y. 453, 52 N. E. 545, 43: 236 
 
 1167. The extension of the limits of a 
 municipality over a road on which street 
 railway tracks have been laid under author- 
 ity of the county will make such road sub- 
 ject to an existing ordinance forbidding the 
 tearing up of streets without consent of the 
 municipal authorities, and no contract be- 
 tween the county and the railway company 
 
 is thereby impaired so far as the ordinance 
 merely requires the tearing up of streets to 
 be under reasonable police restrictions. 
 Westport v. Mulholland, 158 Mo. 86, 60 S. 
 W. 77, 53: 442 
 
 Telephone companies. 
 For Editorial Notes, see infra, III. 9. 
 
 1168. The acceptance of the privileges 
 granted by laws of the state to a telephone 
 company, and permission to use streets duly 
 given by a municipality, followed by the 
 expenditure of money by the corporation in 
 valuable improvements, constitutes a con- 
 tract which neither state nor municipality 
 can impair or destroy, unless the power to 
 do so is reserved in the grant itself or in 
 the Constitution. Michigan Teleph. Co. v. 
 St. Joseph, 121 Mich. 502, 80 N. W. 383, 
 
 47:87 
 
 1169. By the passage of an ordinance au- 
 thorizing the establishment of a telephone 
 system in a city, and its acceptance by the 
 company, and its expenditures thereunder, 
 a contractual relation was created between 
 the company and the city, which became a 
 vested right that could not be impaired by 
 subsequent action of the city, directly or 
 indirectly, annulling it for purposes not pub- 
 lic, and for purposes of a personal or pri- 
 vate nature. Northwestern Teleph. Exch. 
 Co. v. Anderson, 12 N. D. 585, 98 N. W. 706, 
 
 65: 771 
 
 1170.- An ordinance of a municipal corpo- 
 ration granting a telephone company the 
 right to use its streets for the erection of 
 poles and overhead lines, under conditions 
 as to permits and directions where the same 
 shall be placed, when accepted and acted 
 upon by the company, is a contract which 
 the municipality cannot unreasonably or ar- 
 bitrarily repeal or amend so as to impair 
 rights acquired under it. Northwestern 
 Teleph. Exch. Co. v. Minneapolis, 81 Minn. 
 140, 83 N. W. 527, 86 N. W. 69, 53: 175 
 Insurance companies. 
 See also supra, 1140, 1204. 
 
 1171. The legislature may provide that 
 no breach of condition in an insurance pol- 
 icy shall avoid it, as to an insurer not In- 
 jured thereby, without interfering with any 
 constitutional right of contract, or, as to 
 future contracts, impairing their obligation, 
 since, insurance companies being the crea- 
 tures of the legislature, it may prescribe 
 limitations in relation to forfeiture of their 
 contracts. McGannon v. Michigan Millers' 
 Mut. F. Ins. Co. 127 Mich. 636, 87 N. W. 
 61, 54: 730 
 
 1172. The obligation of a contract of firn 
 insurance made at a time when a railroad 
 company was by statute liable for fires 
 communicated by its engines is not impaired 
 by a subsequent amendment of the statute 
 restricting the liability of the railroad com- 
 pany in effect to the difference between the 
 loss and the amount of insurance on the 
 property, as the parties to that contract 
 cannot limit the right of the legislature to 
 change the statutory liability. Leavitt v. 
 Canadian P. R. Co. 90 Me. 153, 37 Atl. 886. 
 
 38: 152
 
 CONSTITUTIONAL LAW, II. g, 1. 
 
 645 
 
 Water companies. 
 
 For Editorial Notes, see infra, III. 9. 
 
 1173. A charter giving a corporation a 
 right to convey water from a certain pond 
 for the purpose of supplying villages with 
 pure water, but giving no right to take or 
 use it for the purpose of propelling machin- 
 ery, and nowhere expressly giving an ex- 
 clusive right, or in terms prohibiting a char- 
 ter to a rival corporation, does not consti- 
 tute a contract so as to prevent the legisla- 
 ture from afterwards chartering a rival cor- 
 poration. Rockland Water Co. v. Camden 
 & R. Water Co. 80 Me. 544, 15 Atl. 785, 
 
 1: 388 
 
 1174. An .unconstitutional impairment of 
 the franchise of an existing water company, 
 though it is not an exclusive one, is made 
 by N. Y. Laws 1894, chap. 294, 'which pro- 
 vides that a village establishing its own 
 system of waterworks may impose rates for 
 fire protection on all real property abutting 
 on the mains or within 200 feet of the hy- 
 drants, or on such real property so abutting, 
 or within such distance as the boards may 
 deem beneficial, upon which real property 
 the water is not used by the owners or oc- 
 cupants for domestic or manufacturing pur- 
 poses, since this statute would authorize 
 the taxation of the company's property to 
 pay for competing municipal waterworks, 
 and also authorize such a discrimination 
 against the company's patrons as would ab- 
 solutely destroy its business. Skaneateles 
 Waterworks Co. v. Skaneateles, 161 N. ". 
 154, 55 N. E. 562, 46: 687 
 Electric light companies. 
 
 For Editorial Notes, see infra, III. 9. 
 
 1175. An ordinance granting to an elec- 
 tric light company the exclusive privilege or 
 supplying a city and its inhabitants with 
 light is not a contract within the protection 
 of U. S. Const, art. 1, 10, providing that 
 no state shall pass any law impairing the 
 obligation of contracts, where the city has 
 no power to grant an exclusive franchise, 
 either under its charter or the general law 
 governing municipalities. Clarksburg Elec- 
 tric Light Co. v. Clarksburg, 47 W. Va. 739, 
 35 S. E. 994, 50: 142 
 Gas companies. 
 
 1176. No contract between a city and the 
 holder of its bonds is created, with respect 
 to the continued application of the revenues 
 of gas works to a sinking fund by an ordi- 
 nance which, merely for the protection of 
 the city, imposed on the trustees of the gaa 
 works "the obligation of paying money Into 
 the sinking fund, where no pledge was made 
 to the loan holders. Baily v. Philadelphia, 
 184 Pa. 594, 39 Atl. 494, * 39: 837 
 Corporation for educational purposes. 
 
 1177. The provision of a charter of a 
 public corporation created for public pur- 
 poses, surh as that of education, whereby 
 fines, forfeitures and penalties accruing to 
 a certain county are granted to the corpo- 
 ration, is not a contract within the consti- 
 tutional protection, but may be changed at 
 the will of the legislature. Watson Semi- 
 nary v. Pike County Ct. 149 Mo. 57. 50 S. 
 W. 880, 45:675 
 
 1178. The acceptance by an incorporated 
 school, of a legislative act absolute in terms, 
 and containing no reservation of a right to 
 alter, modify, or repeal it, which grants to 
 the corporation lands which have been se- 
 questered by the legislature for school pur- 
 poses, to be held in trust for the use of the 
 school forever, will, in the absence of a 
 constitutional limitation securing the right 
 to future legislatures to modify or repeal 
 the act, constitute an executed grant, with- 
 in the protection of the United States 
 Constitution, forbidding states to pass laws 
 impairing the obligation of contracts; and 
 the state cannot afterwards recall the grant 
 and make a different disposition of the 
 lands; and the fact that the grant was 
 without consideration is immaterial. Frank- 
 lin County Grammar School v. Bailey, 62 
 Vt. 467, 20 Atl. 820, 10: 405 
 
 6. By Change of Decisions. 
 
 For Editorial Notes, see infra, in. 9. 
 
 1179. A decision by the highest court of 
 a state overruling a prior decision holding 
 
 a statute constitutional does not impair the 
 obligations of a contract entered into after 
 the prior and before the later decision. 
 Storrie v. Cortes, 90 Tex. 283, 38 S. W. 154, 
 
 35: 666 
 
 1180. An innovation or change in the law 
 by a judicial decision does not impair the 
 obligation of an existing contract, where 
 neither the Constitution, nor a statute, nor 
 any enactment that has the force of the 
 law, is applied to affect the contract. Ray 
 v. Western Pennsylvania Natural Gas Co. 
 138 Pa. 576, 20 Atl. 1065, 12: 290 
 
 1181. Decisions on which the parties to a. 
 contract rely do not constitute a part of it 
 so as to exempt the contract from the opera- 
 tion of a subsequent decision declaring a 
 different rule upon the same subject and 
 overruling the earlier decisions. Allen v. 
 Allen, 95 Cal. 184, 30 Pac. 213, 16: 646 
 
 1182. A change of decision as to the va- 
 lidity of a certain kind of mortgage, made 
 after some instruments of the kind were 
 made, whereby they are upheld, does not 
 impair the obligation of a contract between 
 the mortgagor and a creditor who gave him 
 credit, when under the existing decisions 
 such mortgages would be held void. Brown 
 v. Grand Rapids Parlor Furniture Co. 16 
 U. S. App. 221, 7 C. C. A. 225, 58 Fed. 286. 
 
 22: 817 
 
 1183. The construction of a statute of de- 
 scents established by the decisions of the 
 courts at the time of a quitclaim deed by 
 heirs claiming under the statute becomes a 
 part of the contract, and must govern the 
 rights of the parties as against a different 
 construction thereafter adopted by over- 
 ruling the former decisions. Haskett v. 
 Maxey, 134 Ind. 182, 33 N. E. 358, 19: 379 
 
 1184. Overruling decisions of the state 
 court of last resort which were in force at 
 tho time a mortgage was given by a mar- 
 ried woman, and which upheld its validity 
 under the statutes, does not affect the right
 
 646 
 
 CONSTITUTIONAL LAW, 1L g, 2. 
 
 of the mortgagee. Farrior v. New England 
 Mortg. S. Co. 92 Ala. 176, 9 So. 532, 
 
 12: 856 
 
 2. As to Remedies. 
 
 For Editorial Notes, see infra, III. 9. 
 
 1185. Any change or limitation of a rem- 
 edy, which does not materially abridge the 
 right, does not impair the obligation of the 
 contract. Kirkman v. Bird, 22 Utah, 100, 
 61 Pac. 338, . 58: 669 
 
 1186. General remedies afforded by state 
 jurisprudence and practice, entirely aside 
 from anything contained in a contract, nev- 
 er constitute any part of its obligation, and 
 may be changed from time to time. Bever- 
 ly v. Barnitz, 55 Kan. 466, 42 Pac. 725, 
 
 31: 74 
 
 [Rev'd by the Supreme Court of the United 
 States in 163 U. S. 118, 41 L. ed. 93, 16 Sup. 
 Ct. Rep. 1042.] 
 
 1187. A remedy agreed upon in a contract 
 itself, with the sanction of the state law, 
 is indistinguishable from the obligation, and 
 constitutes a part of it. Id. 
 
 1188. The provisions of N. Y. Laws 1850, 
 chap. 140, 48, that the repealing of a char- 
 ter shall not impair any remedy existing 
 against the corporation, its directors, or of- 
 ficers, upon a liability previously incurred, 
 is a contract protected by the provisions of 
 the Federal Constitution. People v. O'Brien, 
 111 X. Y. 1, 18 N. E. 692, ^ 2: 255 
 
 1189. A statutory provision that the re- 
 lease of one shall not discharge another is 
 not unconstitutional as applied to cases 
 where the liability of the stockholder was 
 incurred before, but the proceedings under 
 
 the insolvent act were had and the corpora- 
 tion discharged subsequent to, its passage. 
 Willis v. St. Paul Sanitation Co. 48 Minn. 
 140, 50 N. W. 1110, 16: 281 
 
 Service of process. 
 
 1190. A foreign company executing a pow- 
 p,r of attorney to the secretary of state, in 
 accordance with Tenn. act 1875, authoriz- 
 ing him to accept service of process, does 
 not thereby make a contract with the state 
 which precludes the state from authorizing 
 service to be made on agents of the com- 
 pany. Connecticut Mut. L. Ins. Co. v. Sprat- 
 ley,' 99 Tenn. 322, 42 S. W. 145, 44: 442 
 Curing defective acknowledgment. 
 
 See also supra, 128, 1137. 
 
 1191. A statute curing the defective ac- 
 knowledgment of a deed of trust and the 
 consequent defect in the record of the deed 
 is ineffectual to give it priority over a 
 judgment lien which had been acquired be- 
 fore the defect was cured, as the displace- 
 ment of the judgment creditor's lien would 
 impair the obligation of his contract. Mer- 
 r-hants' Bank v. Ballon. 08 Va. 112. 32 S. 
 lv 481. 44: 30C 
 Redemption. 
 
 1102. A statute abrogating n right whirl" 
 a mortgagee has at the ti?no the mortcragr 
 is taken, of a fixed and definite noriod foi 
 the foreclosure of the mortgagor's equity 
 by providing that, in case of an attachment 
 
 of the mortgagor's interest by a creditor 
 who files a bill in equity, the right of re- 
 demption shall not expire pending such pro- 
 ceedings by any attempted foreclosure of 
 the mortgage, is unconstitutional as im- 
 pairing the obligation of contract. Phlnney 
 v. Phiuney, 81 Me, 450, 17 Atl. 405, 4: 348 
 
 1193. The right of redemption from a tax 
 sale is governed by the law in force at the 
 date of the sale; and a statute extend- 
 ing the time is unconstitutional as impair- 
 ing the obligation of the contract. Hull v. 
 State ex rel. Rollins, 29 Fla. 79, 11 So. 97, 
 
 16: 308 
 
 1194. A change in the remedy on fore- 
 closure of a mortgage by Kan. act 1893, 
 making it unnecessary to have an appraise- 
 ment fixing the amount to be obtained on 
 the sale, and hastening the time for sale 
 in certain cases, but, on the other hand, ex- 
 tending for a year, at most, the time when 
 the purchaser can get a deed, during which 
 the mortgagor is entitled to possession, but 
 .for which he must pay interest on the sale 
 price in case of redemption, does not im- 
 pair the obligation of a contract, as it mere- 
 ly changes the general remedy, and the 
 mortgage in that state is a mere security, 
 vesting no title and giving no right of pos- 
 session either before or after breach. Bev- 
 erly v. Barnitz, 55 Kan. 466, 42 Pac. 725, 
 
 31:74 
 
 [Rev'd by Supreme Court of the United 
 States in 163 U. S. 118, 41 L. ed. 93, 16 
 Sup. Ct. Rep. 1042.] 
 
 1195. A statute reducing the rate of in- 
 terest to be paid on redemption from a fore- 
 closure sale does not impair the obligation 
 of a contract, -where the rate to which it 
 is reduced is not lower than the rate of in- 
 terest agreed upon in the mortgage. Rob- 
 ertson v. Vancleave, 129 Ind. 217, 231, 26 N. 
 E. 899, 15: 68 
 
 1196. The time for redemption of land 
 from a mortgage or absolute deed given as 
 security cannot be extended by a subsequent 
 statute, as this would change the contract 
 rights and obligations of the parties. Allen 
 v. Allen, 95 Cal. 184, 30 Pac. 213, 16: 646 
 
 1197. A statute extending the time for re- 
 demption upon the sale of mortgaged premi- 
 ses impairs the obligation of the contract 
 made by a pre-existing mortgage. State, 
 Thomas Cruse Sav. Bank v. Gilliam, 48 
 Mont. 109. 45 Pac. 661. 33: 556 
 Rev'g on Rehearing, 18 Mont. 94, 44 Pac. 
 394, 31:721 
 Notice of foreclosure. 
 
 1198. A provision for notice of sale under 
 a deed of trust, which is included in the con- 
 tract, cannot be changed by a subsequent 
 statute providing for different notice in all 
 such cases. International Bldg. & L. Asso. 
 v. Hardy, 86 Tex. 610. 26 S". W. 497, 24: 284 
 Attachment. 
 
 Vested Right in Lien of, see supra, 159. 
 Sec also supra, 1192. 
 
 1199. A statute modifying the remedy by 
 attachment, so that an attachment will be 
 'lissolved by a general assignment of the de- 
 ffndant for creditors within ten days there- 
 after, is unconstitutional as applied to con-
 
 CONSTITUTIONAL LAW, III. 
 
 647 
 
 tracts made when the right of attachment 
 was absolute or was not subject to this con- 
 tingency. Peninsular Lead & C. Works v. 
 Union Oil & P. Co. 100 Wis. 488, 76 IN. W. 
 359, 42: 331 
 
 Taxes and tax deeds. 
 See also supra, 1193. 
 
 1200. The obligation of a prior mortgage 
 contract is not impaired by a statute pro- 
 viding for the assessment to the mortgagee 
 of taxes which had previously been paid by 
 the mortgagor, and permitting the mortga- 
 gor, in case he pays such taxes, to deduct 
 the amount from accrued interest on the 
 indebtedness, and, if it exceeds the interest 
 due, then from the principal, even though 
 the effect of the latter would be to ex- 
 tinguish a part of the interest -bearing debt. 
 Detroit Common Council v. Renta, 91 Mich. 
 78, 51 N. W. 787, 16: 59 
 
 1201. A law which requires the lessee of 
 a railroad to deduct the taxes levied on the 
 road from the rent stipulated to be paid 
 under the lease, and pay the same to the 
 state, is not void, even with reference to 
 existing leases, as impairing the obligation 
 of a contract, where both lessor and lessee 
 and the rent due are proper subjects for tax- 
 ation. Vermont & C. R. Co. v. Vermont C. 
 R. Co. 63 Vt. 1, 21 Atl. 262, 10: 562 
 
 1202. A tax deed made in pursuance of 
 a sale of property for a delinquent tax, un- 
 der an act which provides that such deed 
 shall be conclusive evidence of the regulari- 
 ty of the assessment, except for fraud, is 
 a contract with the state that the deed 
 shall so far remain conclusive evidence of 
 title in the grantee therein; and a subse- 
 quent act of the legislature, making such 
 deed only prima facie evidence of such reg- 
 ularity, is void because it impairs the ob- 
 ligation of the contract. Tracy v. Reed, 
 38 Fed. 69, 2: 773 
 Time of payment. 
 
 1203. The time of payment of a pecuniary 
 obligation is a material provision in the con- 
 tract, and a creditor cannot be compelled by 
 statute to accept payment in advance. Peo- 
 ple v. O'Brien, 111 N. Y. 1, 18 N. E. 692, 
 
 2: 255 
 
 Limitation of actions. 
 Vested Right in, see supra. 160-162. 
 See also supra, 1196, 1197. 
 For Editorial Notes, see infra, III. 14. 
 
 1204. A statute shortening the time of an 
 insurance company's immunity from suit 
 to forty instead of ninety days, but with- 
 out extending the period of the statute of 
 limitations, affects the remedy merely, and 
 does not impair any contract right 'arising 
 out of the issuance of a policy before the 
 statute was changed. Jones v. German Ins. 
 Co. 110 Iowa, 75, 81 N. W. 188, 46: 860 
 Liens. 
 
 1205. A statute requiring a notice to be 
 given of an intention to file a lien, the right 
 to which already existed, does not impair 
 the obligation of a contract. Best v. Baum- 
 gardner, 122 Pa. 17, 15 Atl. 691, 1: 356 
 
 1206. A law making a drainage assess- 
 ment a lien upon land superior to the liens 
 of existing encumbrances is not unconstitu- 
 
 tional as a violation of the obligation of 
 
 ontracts, or a devesting of vested rights. 
 
 Wabash E. R. Co. v. East Lake Fork S. D. 
 
 Dist. 134 111. 384, 25 N. E. 781, 10: 285 
 
 1207. A mechanics' lien given by statute 
 is liable always to be modified, altered, or 
 repealed, by the same power that created 
 it. Being only a means for enforcing the 
 payment of a debt arising from the per- 
 formance of a contract, it is not a vested 
 right, but may be taken away without im- 
 pairing the obligation of the contract. 
 Hanes v. Wadey, 73 Mich. 178, 41 N. W. 222, 
 
 2: 498 
 
 1208. Giving a mechanics' lien superiority 
 over a prior mortgage, as to the building or 
 improvement added by the lienor, is not un- 
 constitutional as impairing the obligation of 
 a contract. Wimberley v. Mayberry, 94 
 Ala. 240, 10 So. 157, 14: 305 
 
 1209. The restriction of the lien or charge 
 of a judgment against the estate or person 
 of the judgment debtor, to six years from 
 its rendition, by Wash, act March 6, 1897, 
 and the prohibition of the renewal of such 
 judgment for more than one year after the 
 act takes effect, so far as the act applies 
 to pre-existing contracts, is an unconstitu- 
 tional impairment of their obligation. Bett- 
 man v. Cowley, 19 Wash. 207, 53 Pac. 53. 
 
 40: 815 
 Assignment to evade law. 
 
 1210. An assignment for the purpose of 
 evading the effect of exemption laws be- 
 ing unlawful before, as well as after, the 
 passage of an act prohibiting it, the act af- 
 fects only the remedy; and its application 
 to the case of debts incurred prior to its 
 passage does not, therefore, impair the ob- 
 li^ations of the contracts. Bishop v. Mid- 
 dleton, 43 Neb. 10, 61 N. W. 129, 26: 445 
 Effect of assignment for creditors. 
 
 For Editorial Notes, see infra, III. 9. 
 
 1211. The remedy on promissory notes 
 and warrants of attorney by statutes in 
 force at the time that they were made, 
 which authorized the holder to enter judg- 
 ment, issue execution, and levy upon and 
 sell the debtor's property notwithstanding 
 any assignment for creditors which he might 
 make more than sixty days after their is- 
 sue, constitutes an essential part of the 
 contracts or securities, and cannot be taken 
 away by a subsequent statute which at- 
 tempts to provide that all levies or other 
 processes shall be dissolved by such an as- 
 signment. Second Ward Sav. Bank v. 
 Schranck, 97 Wis. 250, 73 N. W. 31, 39: 569 
 
 III. Editorial Notes. 
 
 As to Prohibition against Taking Private 
 Property for Public Use 
 without Compensation, 
 see Eminent Domain, V. 8 
 18. 
 
 As to Recognition of Judgment of Other 
 State under Full Faith 
 and Credit Provhinn. see 
 Judgment, VIII. 26 29.
 
 648 
 
 CONSTITUTIONAL LAW, III. (Ed. Notes.) 
 
 As to Enactment, Entitling, and Construc- 
 tion of Statutes, see Stat- 
 utes, IV. 
 
 Constitutional Right to Jury Trial, see 
 Jury, V. 2. 
 
 Constitutional Right to Vote, see Elections, 
 V. & 1, 2. 
 
 a. In general; adoption; construction. 
 
 i. Generally. 
 
 Unconstitutionally of statute as defense 
 against mandamus to com- 
 pel its enforcement. 47: 
 512. 
 
 Incorporation of common-law principles in 
 constitutional law. 2 : 
 655.* 
 
 Authority of legislature to remove munici- 
 pality from trusteeship. 
 13: 217;* 16: 695. 
 
 Power of legislature to impose burdens 
 upon municipalities and to 
 control their local adminis- 
 tration and property. 48: 
 465. 
 
 Local self-government in Rhode Island. 50: 
 330. 
 
 2. Adoption; amendment; construction. 
 
 Power of court to determine the question 
 of adoption. 15: 524. 
 
 Condition as to vote by people to adopt 
 statute. 23: 113. 
 
 Power to cure unconstitutional statute by 
 amendment. 60: 564. 
 
 Rules in construction of Constitution. 3: 
 390.* 
 
 Reluctance of court to annul a statute. 13: 
 304. 
 
 3. Self-executing provisions. 
 
 Generally. 16: 281. 
 
 Prohibitions generally. 16: 282. 
 
 Cases as to taking property for public use. 
 
 16: 283. 
 As to jury. 16: 283. 
 
 Exemptions may be regarded as pro- 
 hibitions. 16: 284. 
 
 Taxation. 16: 284. 
 
 Appropriations. 16: 285. 
 
 Stockholders' liability. 16: 285. 
 
 4. Separation of powers; independence of 
 departments. 
 
 Separation of departments of government. 
 1: 361;* 3: 53,* 210;* 4: 
 79.* 
 
 Power of judiciary over 'co-ordinate depart- 
 ment. 3: 53.* 
 
 Legislative authority to abridge power of 
 courts to punish for con- 
 tempt. 36: 254. 
 
 Legislative divorce as conflicting with judi- 
 cial power. 18: 95. 
 
 Constitutional power of courts or judges 
 to appoint officers. 16: 
 737. 
 
 5. Delegation of powers. 
 
 Maxim that delegated authority cannot be 
 redelegated. 11:582.* 
 
 Strict construction of redelegated powers. 
 11: 583.* 
 
 Right of legislature to delegate to munic- 
 ipal corporations power 
 to make by-laws and ordi- 
 nances. 11: 582.* 
 
 b. Constitutional rights and protection. 
 
 6. In general. 
 
 Protection of private rights from interfer- 
 ence by public. 18: 543. 
 Decision against constitutional right as a 
 nullity subject to col- 
 lateral attack. 39: 449. 
 
 Constitutionality of Sunday laws. 22: 721. 
 As to restricting right to carry weapons. 
 
 14: 600. 
 Searches and seizures; how far prohibited. 
 
 11: 378.* 
 
 Giving monopoly of business. 53: 763. 
 Right of state to require service of wit- 
 ness without compensa- 
 tion. 39: 115. 
 
 7. Privileges and immunities; equal pro- 
 tection. 
 As to General or Special Legislation, see 
 
 Statutes, IV. 7. 
 
 Corporations as persons within 14th 
 Amendment. 10: 129;* 
 
 14: 585; 19: 224; 68: 330. 
 Corporations as citizens under 14th Amend- 
 ment. 14: 580; 60: 330. 
 As to Status of Corporations, General- 
 ly, see Corporations, VIII. 
 2. 
 
 What are privileges and immunities of citi- 
 zens. 1: 56.* 
 
 Equal privileges and immunities. 14: 579. 
 Equal accommodations. 14: 579. 
 Who entitled to equal privileges. 14: 
 
 579. 
 
 Extent of right generally. 14: 580. 
 Traveling. 14: 580. 
 As to sexual relations. 14: 580. 
 Right to vote and hold office. 14: 580. 
 Right to be jurors and witnesses. 14: 
 
 581. 
 
 School privileges. '14: 581. 
 Right to practise professions. 14: 581. 
 Commercial and business privileges, 
 
 generally. 14: 582. 
 Property rights. 14: 582. 
 Taxation. 14: 583. 
 As to litigation. 14: 583. 
 Equal protection. 14: 583. 
 General rules. 14: 583. 
 Police power. 14: 584. 
 As to jurors and witnesses. 14: 584. 
 Rights of aliens. 14: 583. 
 As to property. 14: 584. 
 As to punishments and liabilities. 14: 
 
 584. 
 
 As to courts and proceedings. 14: 585. 
 Corporations. 14: 585. 
 
 Constitutional equality in the United 
 States in relation to cor- 
 porate taxation. 60: 321. 
 Validity of class legislation. 6: 621;* 21: 
 
 789. 
 Unjust discrimination. 14: 585. 
 
 As to attorneys' fees. 14: 586. 
 Constitutionality of statute limiting hours 
 of labor. 65: 42.
 
 CONSTITUTIONAL LAW, III. (Ed. Notes.) 
 
 649 
 
 Consideration by Federal Supreme Court of 
 questions relating to equal 
 protection in reviewing 
 judgment of state court. 
 63: 581. 
 
 Question relating to equal protection as 
 Federal question. 62: 531. 
 
 Constitutionality of discrimination against 
 women in police regula- 
 tions. 49: 111. 
 In granting licenses to sell liquors. 
 
 49: 111. 
 
 In excluding women from employments 
 and places of business. 
 49: 111. 
 
 In restricting freedom, society, or right 
 to live in locality. 49: 
 115. 
 
 8. Due process. * 
 
 As regulated by state law. 2: 655.* 
 
 Due process defined. 2: 258,* 655.* 
 
 What constitutes. 5:359;* 11:224;* 13: 
 305.* 
 
 Necessity of judicial proceedings. 2: 656.* 
 
 Necessity of notice and hearing. 2: 657;* 
 3: 194;* 11: 225.* 
 
 Constitutionality of statute limiting hours 
 of labor. 65: 40. 
 
 Vested right in defense of statute of limi- 
 tations. 45: 609. 
 
 Necessity of notice of lunacy proceedings to 
 alleged lunatic. 23: 737. 
 
 What service of process is sufficient to con- 
 stitute due process of law. 
 50: 577. 
 
 Validity of personal judgment rendered 
 upon constructive service 
 of process. 16: 231. 
 
 State revenue laws. 2: 657.* 
 
 Assessment or tax matter. 2: 656.* 
 
 Extending boundaries of municipality. 27: 
 741. 
 
 Seizure and production of papers. 29: 819. 
 
 Denial of, making judgment void. 39: 449. 
 
 Protection against being forced to give 
 evidence to be used 
 against one's self in a civil 
 case. 29: 811. 
 
 Corporations as persons within 14th 
 Ame n d m e n t. 10: 129;* 
 14: 585; 19: 224; 60: 330. 
 As to Status of Corporations, General- 
 ly, see Corporations, VIII. 
 2. 
 
 As a Federal question. 62: 530. 
 
 Consideration by Federal Supreme Court of 
 questions relating to; in 
 reviewing judgment of 
 state court. 63 : 581.' 
 
 Statute authorizing commitment of minors 
 to reformatories without 
 conviction of crime. 16: 
 691. 
 
 9. Impairment of obligation. 
 
 Power of Congress to impair obligation. 
 11:246.* 
 
 Impairment by state Constitution. 10: 406.* 
 
 Change of decision of state court as im- 
 pairing obligation of. 16: 
 646. 
 
 To what contracts rule applies. 10: 405.* 
 
 Of judgment as a contract. 17: Oil. 
 
 Change of interest -on judgment. 17: 
 612. 
 
 Contract of state. 13: 169.* 
 
 Land grants as contracts. 10: 406.* 
 
 Corporate charters as contracts. 2: 257;* 
 10: 406.* 
 
 Privilege of using streets as a co'ntract. 
 
 50: 142. 
 
 Use of streets for railroad or street- 
 railway tracks. 50: 143. 
 Water pipes and mains. 50: 145. 
 Gas pipes. 50: 146. 
 
 Telegraph and telephone lines. 50: 146. 
 Electric light poles and wires; subway. 
 
 50: 147. 
 
 Other uses. 50: 147. 
 Necessity that privilege be accepted 
 
 and acted upon. 50: 148. 
 When privilege invalid in whole or in 
 
 part. 50: 150. 
 
 Capacity in which municipality acts in 
 granting, revoking, or im- 
 pairing the privilege. 50: 
 150. 
 
 Restrospective statutes taking away vested 
 rights. 10:407.* 
 
 Effect of stay laws as. 1 : 358.* 
 
 Effect of state insolvency laws. 1 : 359.* . 
 
 Effect of exemption laws. 1: 359.* 
 
 Statute extending mortgagor's right of 
 possession on foreclosure 
 of pre-existing mortgages. 
 31:721. 
 
 Impairment of remedy. 1: 358.* 
 
 Effect of new and less convenient or more 
 tardy remedy. 1: 357.* 
 
 Alteration or abolition of remedy. 1: 359.* 
 
 Impairing rights by procrastinating remedy. 
 4: 349.* 
 
 Consideration by Federal Supreme Court 
 of questions relating to, in 
 reviewing judgment of 
 state court. 63: 578. 
 
 By police regulation of electric companies. 
 31: 804. 
 
 Corporation taxation as affected by con- 
 tract clause in Federal 
 Constitution. 60: 33. 
 
 Statute limiting hours of labor. 65: 42. 
 
 10. Police power. 
 
 The term "police power" defined. 13: 131.* 
 
 Where lodged. 10: 135.* 
 
 Extent of its exercise. 6: 622;* 10: 135.* 
 
 What is a legitimate exercise of. 13: 132.* 
 
 Limit of, over religious organization. 2: 
 110.* 
 
 Private interests subservient to public in- 
 terests. 8: 854.* 
 
 Rights of corporations subject to. 9: 35.* 
 
 To restrict business, in case of ticket brok- 
 ers. 24: 152. 
 
 Over condition of buildings. 16: 400. 
 
 Protection of health. 10: 136.* 
 
 Protection of health of employees. 32: 853. 
 
 Statute limiting hours of labor. 65: 44. 
 
 As to dead animals. 38: 330. 
 
 Municipal abatement of nuisance. 36: 609. 
 
 As Affecting Commerce, see Commerce, V. 
 
 Police regulation of electric companies. 
 31 : 804.
 
 650 
 
 CONSTITUTIONAL LAW, III. (Ed. Notes., 
 
 Limitations in state Constitutions. 31: 
 
 804. 
 
 Impairment of obligation of con- 
 tracts. 31:804. 
 
 Deprivation of property without 
 due process of law. 31: 
 805. 
 
 Class legislation. 31: 805. 
 Limitations in Federal Constitution. 
 
 31: 805. 
 
 Statutes requiring electric wires to 
 be put underground. 31: 
 806. 
 
 Statutes imposing penalties upon 
 telegraph companies for 
 not transmitting and de- 
 livering messages proper- 
 ly. 31 : 807. 
 
 Statutes regulating telephone 
 prices and requiring serv- 
 ice on equal terms to all. 
 31: 807. 
 
 Statutes imposing license fees on 
 telegraph companies. 37: 
 808. 
 Regulation of dairy produce ; oleomargarine 
 
 act. 1 : 52.* 
 
 ii. Contingent interests. 
 Legislative power to defeat contingent in- 
 terests in property. 79: 
 247. 
 
 Power of legislatures to change or destroy 
 estates by dower, curtesy, 
 or similar estates. 19: 
 256. 
 
 As to dower. 19: 256. 
 As to curtesy. 19: 257. 
 Rights in wife's personal property. 19: 
 
 259. 
 
 12. Disposal of private property. 
 Constitutionality of private statutes to 
 
 authorize. 16: 251. 
 Limitations of the power. 16: 252. 
 Distinction between those sui juris and 
 those who are not. 16: 
 253. 
 Giving power to guardian of infants. 
 
 16: 254. 
 
 Non compos mentis. 16: 254. 
 As to decedents' estates. 16: 254. 
 13. Restrictions on contracts and busi- 
 ness. 
 
 Constitutionality of statutes restricting 
 contracts and business. 
 21: 789. 
 
 Testing statutes by the unwritten Con- 
 stitution. 21: 789. 
 Class legislation. 21:790. 
 Freedom of contract. 21: 792. 
 Contracts molded by statute. 21:793. 
 Police restraints upon business. 21: 
 
 794. 
 American legislation on kindred topics. 
 
 "21: 796. 
 
 Laws concerning hours of labor or 
 a. day's labor. 21 : 796 : 
 65: 44. 
 
 Statutes regulating time of pay- 
 ment of wages. 21:797. 
 Statutes bearing upon mode of 
 payment of wages. 21 : 
 797. 
 
 Statutes forbidding or regulating 
 
 contracts for the labor of 
 
 children or women. 21: 
 
 797. 
 
 Statutes against "company stores." 
 
 21: 797. 
 
 Statutes giving a priority to claims 
 of certain laborers. 21: 
 797. 
 
 Miscellaneous laws affecting the 
 relations of employers and 
 the employed. 21 : 798. 
 English legislation and opinions. 21 : 
 
 798. 
 
 Restrictions placed by courts upon 
 freedom of contract. 21: 
 798. 
 
 Literature. 21 : 799. 
 Legal restrictions on department stores. 
 
 48: 261. 
 14. Retroactive statutes; imposing new 
 
 liability; reviving old liability. 
 General rule against construing statute so 
 as to give it a retrospec- 
 tive effect. 10: 407;* 12: 
 50.* 
 
 Constitutionality of statutes making rail- 
 road companies absolutely 
 liable for damage by fires 
 set out by them or for 
 stock killed by them, irre- 
 spective of negligence. 
 25: 161. 
 
 Fires. 25: 161. 
 Killing stock. 25: 162. 
 
 Constitutionality of laws charging the ex- 
 pense of police regulations 
 on the business to be regu- 
 lated. 16: 380. 
 
 Constitutionality of statute legalizing an 
 invalid private contract. 
 22: 379. 
 
 Under Federal Constitution. 22: 379. 
 Retroactive laws and vested rights. 
 
 22: 380. 
 
 Due process of law. 22: 382. 
 Application of the rules to acknowl- 
 edgments. 22: 382. 
 
 Application of the rules to contracts 
 unenforceable because 
 usurious. 22: 384. 
 
 Conflict with judicial power. 22: 385. 
 Rights of third persons cannot be im- 
 paired. 22: 385. 
 Statutes legalizing municipal contract. 27: 
 
 696. 
 
 Vested right in defense of statute of limi- 
 tations. 45: 609. 
 Civil actions. 45: 609. 
 
 Actions involving title to real or 
 
 personal property. 45: 609. 
 
 Actions not involving title to real 
 
 or personal property. 45: 
 
 610. 
 
 Revival of appeal or writ of error. 
 
 45: 614. 
 
 Criminal actions. 45: 614. 
 Constitutionality of retroactive statute 
 creating right of action 
 or of set-off on account of 
 past acts or transactions. 
 52: 934.
 
 CONSTRUCTION-CONTAGIOUS DISEASE. 
 
 651 
 
 Improvement acts. 52: 935. 
 Divorce. 52: 937. 
 
 Miscellaneous statutes creating rights 
 of action against individ- 
 uals . or private corpora- 
 tions. 52: 938. 
 
 Statutes creating right of action 
 against municipal corpo- 
 rations. 52: 040. 
 15. Ex post facto laws. 
 What are. 3: 181.* 
 Unconstitutionality of. 1: 632.* 
 Constitutionality of statute providing for 
 increased punishment be- 
 cause of prior conviction. 
 34: 399. 
 1 6. Regulations affecting employers and 
 
 employees. 
 
 Restricting contracts between master and 
 servant. 14:325; 21:789. 
 Statutes requiring wages to be paid in law- 
 ful money. 28: 273. 
 Statutes regulating time of payment of 
 
 wages. 28: 344. 
 Statutes to secure safety and comfort of 
 
 employees. 25: 759. 
 Statutes to secure health of employees. 32: 
 
 853. 
 Statutes limiting hours of labor, generally. 
 
 65: 38, 42. 
 
 17. Fixing tolls, rates, or prices. 
 Legislative power to fix tolls, rates, or 
 
 prices. 33: 177. 
 The general doctrine. 33: 177. 
 Whether limited to monopolies or not. 
 
 . 33: 178. 
 To what applicable. 33: 178. 
 
 Elevators and warehouses. 33: 178. 
 Carriers. 33: 179. 
 
 In general; railroads. 33: 179. 
 Street railways. 33: 180. 
 Canals. 33: 180. 
 Ferries. 33: 180. 
 Toll roads. 33: 180. 
 Bridges. 33: 181. 
 Wharves. 33: 181. 
 Telegraphs. 33: 181. 
 Telephones. 33: 181. 
 Has. 33: 181. 
 Water. 33: 181. 
 Bread. 33: 182. 
 Mills. 33: 182. 
 Personal services. 33: 182. 
 Care or salvage of logs. 33: 182. 
 Delegation of power. 33: 182. 
 Extent and limits of power. 33: 183. 
 In general. 33: 183. 
 Judicial interference. 33: 183. 
 Tests of reasonableness. 33: 185. 
 Inequality or discrimination' 33: 
 
 186. 
 Contract exemptions. 33: 186. 
 
 CONSTRUCTION. 
 
 Of Constitution, see Constitutional Law, I. 
 
 a, 3. 
 
 Of Contract, see Contracts, II. 
 Of Corporate Charter, see Corpora t ions. 6D- 
 
 71. 
 Of Deeds, see Deeds, H 
 
 Of Guaranty, see Guaranty, I. 
 
 Of Insurance Contract, see Insurance, III. d. 
 
 Of Statutes, see Statutes, II. 
 
 Of Wills, see Wills, III. 
 
 CONSTRUCTION COMPANY. 
 
 As Instrument of Railroad Company, see 
 Corporations, 841, 847. 
 
 CONSTRUCTIVE POSSESSION. 
 
 See Adverse Possession, I. k. 
 
 CONSTRUCTIVE TRUSTS. 
 See Trusts, I. d. 
 
 CONSULS. 
 
 Jurisdiction over, see Courts, 446. 
 
 See also Diplomatic and Consular Officers. 
 
 CONTAGIOUS DISEASE. 
 
 Of Animals, see Animals, I. e; Carriers, 866; 
 Commerce, 12, 13; Damages, 140. 
 
 As Excuse for Breach of Promise, see Breach 
 of Promise, 8-11. 
 
 Communication of, to Passenger, see Car- 
 riers, 123. 
 
 Ejection of Passenger Who Has, see Car- 
 riers, 357. 
 
 Duty of Carrier Removing Passenger with, 
 see Carriers, 426. 
 
 Quarantine against, see Health, 17-20. 
 
 Delegation of Power to Quarantine against, 
 see Constitutional Law, 215. 
 
 Contract Tending to Spread, see Contracts, 
 444. 
 
 Judicial Notice as to, see Evidence, 113-119. 
 
 Of Trees, Opinion Evidence as to, see Evi- 
 dence, 1432. 
 
 False Representations as to, see Evidence, 
 1605. 
 
 As to Epidemic, see Health, II. 
 
 Power of Health Board or Municipal Au- 
 thorities as to, see Health, 8, 9, 12, 13. 
 
 Hosnital for, see Hospitals, 1-5. 
 
 Action against Husband for Communication 
 of, see Husband and Wife, 235. 
 
 Enjoining Execution of Contract for Care of 
 Leper, see Injunction, 75. 
 
 Liability for Exposing Servant to, see Mas- 
 ter and Servant, 59. 
 
 Liability for Communication of, by Em- 
 ployee, see Master and Servant, 633. 
 
 Liability of Citv as to, see Municipal Cor- 
 porations, 451, 452. 
 
 Contributory Negligence of Person Catch- 
 ing, see Negligence, 243.
 
 652 
 
 CONTEMPT, 1. a. 
 
 Allegation as to, see Pleading, 320. 
 Proximate Cause of Contraction of, see 
 
 Proximate Cause, 27. 
 Teacher's Salary while v Schools Closed on 
 
 Account of, see Schools, 4547. 
 Title of Statute as to, see Statutes, 164. 
 Question for Jury as to, see Trial, 501. 
 See also Smallpox. 
 
 Editorial Notes. 
 
 As to Protection against, see Health, V. 
 Liability for communicating or exposure to. 
 
 19: 725. 
 Of animals, regulations as to. 26: 638. 
 
 CONTEMPT. 
 
 1. What Constitutes. 
 
 a. In General. 
 
 b. Charge against Judge; Publication 
 
 as to Pending Case. 
 
 c. Disobedience. 
 II. Procedure. 
 
 III. Power as to. 
 
 a. Of Notary Public. 
 
 b. Of Court. 
 
 IV. Judgment; Punishment. 
 V. Editorial Notes. 
 
 Appeal from Order as to, see Appeal and Er- 
 ror, 46. 
 
 Review of Decision, see Appeal and Error, 
 524, 1118. 
 
 Punishment of, as Invasion of Liberty of the 
 Press, see Constitutional Law, 1089. 
 
 Proceedings for, as Former Jeopardy, see 
 Criminal Law, 172. 
 
 Governors Power to Pardon for, see Crimi- 
 nal Law, 255. 
 
 Liability of Justice for Failure to Enter 
 Sentence on Docket, see Justice of the 
 Peace, 8. 
 
 Striking Out Disrespectful Petition, see Rec- 
 ords, 8. 
 
 I. What Constitutes. 
 a. In General. 
 
 For Editorial Notes, see infra, V. 1. 
 
 1. An act which is indifferent, merito- 
 rious, or only the assertion of an undoubted 
 right of the party, does not become a crim- 
 inal contempt merely because it is adjudged 
 such by a court. Ex parte Senior. .S7 Fin. 
 1. 19 So. 052. 32: 133 
 
 2. Courts have not unlimited power to 
 determine what shall be regarded as con- 
 tempts, but, in the absence of valid statu- 
 tory specifications, they must be governed 
 by the coimnon law. People ox rel. Connor 
 v. Stapleton, 18 Colo. 568, 33 Pac. 107. 
 
 23: 787 
 
 3. A statutory enumeration of acts which 
 shall constitute contempts of court does not 
 deprive the court of jurisdiction over other 
 contempts. Id. 
 
 4. Acts and omissions deemed to be con- 
 tempts of the authority of courts, under the 
 
 laws of Oregon, are only those which are 
 specified as such under the subdivisions of 
 650 of the Civil Code and in other sections 
 thereof, and can be punished only in the 
 mode therein described. State v. Kaiser, 
 20 Or. 50, 23 P-ac. 964, 8: 584 
 
 5. Attempting to obtain a continuance of 
 a case by means of false telegrams stating 
 that a party is ill constitutes a contempt of 
 court. Carter v. Com. 96 Va. 791, 32 S. E. 
 780, 45: 31Q 
 
 6. The keeper of a county jail may be 
 punished by attachment by a court of the 
 United States for contempt in inflicting 
 cruel or unusual punishment on prisoners 
 committed to his custody by such court. Re 
 Birdsong, 39 Fed. 599, 4: 628 
 
 7. Ratification by the publishers of an ar- 
 ticle constituting contempt of court, put 
 into a newspaper by a reporter, will render 
 them liable therefor. People ex rel. Connor 
 v. Stapleton, 18 Colo. 568, 33 Pac. 167, 
 
 23: 787 
 Interfering with property. 
 
 8. Interference with the property of a 
 corporation of which a receiver has been ap- 
 pointed, by attaching it, is a civil contempt. 
 Holbrook v. Ford, 153 111. 633, 39 N. E. 1091, 
 
 27: 324 
 
 9. Previous knowledge on the part of one 
 attaching property in another state in viola- 
 tion of the rights of a receiver, of the ap- 
 pointment of the receiver or of the insolven- 
 cy of the debtor, is necessary to cause the 
 court to enjoin the suit or commit the plain- 
 tiff for contempt. Id. 
 
 10. The contempt of a resident creditor of 
 a foreign corporation, in attaching in an- 
 other state debts due such corporation after 
 the appointment of a receiver, and in re- 
 fusing to dismiss such attachment suits, is 
 waived by the voluntary interference of such 
 receiver in the attachment suits. Id. 
 
 11. Contempt proceedings are not appro- 
 priate for the trial of issues involving the 
 title to a fund raised by assessments upon 
 the members of a benefit society, which is in 
 the possession of the local branch from 
 whose members it came, or to determine the 
 validity of a lien alleged to have been ac- 
 quired by garnishment proceedings against 
 it. Baldwin v. Hosmer, 101 Mich. 119, 59 
 N. W. 432, 25:739 
 Removing witness. 
 
 12. Removing a witness from the county 
 of his residence, where he was under sub- 
 po?na to attend upon the trial of a cause 
 pending with the purpose and effect of pre- 
 venting nis appearance upon the day of the 
 trial, being a wrongful act which obstructs 
 the administration of justice. is a contempt 
 of court. Hale v. State, 55 Ohio St. 210, 45 
 N. E. 199, 36: 254 
 Locking out court. 
 
 13. Locking the door of a court room dur- 
 ing the adjournment of court, and refusing 
 to allow the judge of the court and his offi- 
 cers and the parties to the suit on hearing 
 before him to enter the court room at the 
 time to which court was adjourned, is a con- 
 tempt of court. Dahnke v. People, 168 111. 
 102, 48 N. E. 137, 39: 197
 
 CONTEMPT, I. b. 
 
 b. Charge against Judge; Publication as to 
 Pending Case. 
 
 Injunction against Publication, see Injunc- 
 tion, 61. 
 
 See also infra, 76-81. 
 For Editorial Notes, see infra, V. 1, 3. 
 
 14. Any form of coercion intended to af- 
 fect the judgment of the court in a pending 
 case is unlawful, although judicial decisions, 
 when made, may be freely commented upon 
 and criticized. State v. Bee Pub. Co. 60 
 Neb. 282, 83 N. W. 204, 50: 195 
 
 15. Fair and reasonable review and com- 
 ment upon court proceedings as they take 
 place from time to time is not a contempt of 
 court. Cooper v. People ex rel. Wyatt, 13 
 Colo. 337, 373. 23 Pac. 790. 6: 430 
 State v. Kaiser, 20 Or. 50, 23 Pac. 9154. 
 
 8: 584 
 
 16. Punishment for contempt may be im- 
 posed upon one who, pending a suit, pub- 
 lishes articles which will tend to embarrass 
 the court in deciding it, where the statutes 
 have adopted the common law governing the 
 punishment of contempts. State v. Tugwell, 
 19 Wash. 238, 52 Pac. 1056, 43: 717 
 
 17. Liability to punishment for contempt 
 for publishing articles tending to embarrass 
 the court pending a suit is not taken away 
 by a constitutional provision giving every 
 person the right to freely write and publish 
 on all subjects, being responsible for abuse 
 of that right. Id. 
 
 18. A corporation may be held liable for 
 criminal contempt for publishing, in a news- 
 paper printed and circulated in a place 
 where a trial is had, an article concerning 
 the cause on trial, which is calculated to 
 prejudice the jury and prevent a fair trial. 
 Telegram Newspaper Co. v. Com. 172 Mass. 
 294, 52 N. E. 445, 44: 159 
 
 19. Publishing in a newspaper the figures 
 named by the respective parties to a suit on 
 trial in an effort to compromise the contro- 
 versy, so that they are likely to be brought 
 to the notice of the jury, is punishable as a 
 contempt of court, although there is no in- 
 tent to pervert the course of justice. Id. 
 
 20. That the jurors did not in fact see a 
 newspaper article published during a trial 
 in such a way as to be likely to come to 
 their notice and prejudice the judgment will 
 not relieve the publisher from contempt of 
 court. Id. 
 
 21. An attempt by wanton publication to 
 prejudice the rignts of litigants in a pend- 
 ing cause, degrade the tribunal, and impede, 
 embarrass, or corrupt the due administration 
 of justice, is a contempt of court. Cooper 
 v. People ex rel. Wyatt, 13 Colo. 337. 373, 22 
 Pac. 790, 6: 430 
 
 22. Criticism of the manner in which trials 
 are conducted in court cannot be punished as 
 a contempt of the court, unless it refers to 
 some particular case pending before the 
 court. Ex parte Green, 46 Tex. Crim. Rep. 
 576, 81 S. W. 723, 66: 727 
 Charge against judge. 
 
 23. A newspaper corporation is guilty of 
 contempt in charging the judges in a pend- 
 ing case with dishonorable conduct, and 
 
 threatening 'them with public odium and rep- 
 robation in case a decision is rendered in a 
 particular way. State v. Bee Pub. Co. 60 
 Neb. 282, 33 N. W. 204, 50: 195 
 
 24. A newspaper article published before 
 the final determination of a cause, stating 
 that the decison rendered is "rotten," that 
 the judge who rendered it had no mind, and 
 intimating that he was corrupt, and that he 
 misstated the facts, is a contempt of court. 
 State v. Tugwell, 19 Wash. 238, 52 Pac. 1056, 
 
 43: 717 
 
 25. It is not contempt for an attorney to 
 characterize as "inflammatory," in a motion 
 to quash an indictment, a charge to the 
 grand jury which assumes that the crime of 
 bribery has been committed and that it is 
 the duty of the jurors to indict therefor, and 
 concludes as follows : "There comes up from 
 the people a command for a forward march 
 all along the line of your duty. You should 
 give heed to that cry, for it comes from a 
 patient and long- suffering endurance which 
 has at last reached its limit." Clair v. State, 
 40 Neb. 534, 59 N. W. 118, 28: 367 
 
 26. Contempt of court is not shown by the 
 act of counsel of one indicted for a crime, 
 in alleging in respectful language, as one 
 of the reasons for quashing the indictment, 
 that the judge's charge to the grand jury 
 was inflammatory and prejudicial in that it 
 aroused the prejudice of the grand jury so 
 that they were not fair and impartial; and 
 the fact that the remedy was by plea, in- 
 stead of by motion, does not affect the ques- 
 tion of contempt. Id. 
 
 27. It is not contempt of court for a de- 
 fendant petitioning for a change of venue on 
 account of prejudice on the part of the pre- 
 siding judge to allege in his petition, which 
 is not read to the court, but is handed to the 
 judge in a respectful manner for his perusal, 
 that when the action was about to be called 
 for trial the judge's wife stated that she 
 must see the judge and arrange with him 
 to have plaintiff win the case at least not 
 if the allegation is true. Mullin v. People. 
 15 Colo. 437, 24 Pac. 880, 9: 566 
 
 28. An allegation of the falsity of a state- 
 ment inserted by a defendant in his petition 
 for change of venue because of prejudice on 
 the part of the presiding judge, to the effect 
 that at the time the case was about to be 
 called for trial the judge and his wife were, 
 as petitioner was informed, the guests of 
 plaintiff, will not support a judgment 
 against defendant for contempt, where issue 
 upon the statement is taken as to the time 
 only, and the fact that defendant had re- 
 ceived information as stated is not denied. 
 
 Id. 
 
 29. A statement by defendant in a peti- 
 tion for change of venue because of preju- 
 dice on the part of the presiding judge, that 
 petitioner believes from the rulings and in- 
 structions of the judge in a former suit be- 
 tween the same parties that the judge is 
 prejudiced in favor of plaintiff, will not 
 make him guilty of contempt although there 
 is no foundation in fact for such belief, 
 where there is nothing to show that he was 
 guilty of any evil intent. Id.
 
 fi'4 
 
 CONTEMPT, 1. c. 
 
 30. A mistaken belief that at the time of- 
 a publication of a libel upon a judge his 
 court had adjourned, so that there could be 
 no punishment as for contempt, is not a de- 
 fense to a proceeding to impose such punish- 
 ment. Burdett v. Com. 103 Va. 838, 48 S. E. 
 878, 68: 251 
 
 31. That the cause is ended will not pre- 
 vent the punishment of a party for con- 
 tempt in publishing an article charging the 
 judge with misconduct during its trial, which 
 consists in scandalizing and defaming the 
 court itself. Id. 
 
 32. It is a contempt of court for a news 
 paper to charge that persons stigmatized as 
 boodlers and corruptionists have influence 
 enough with the court to prevent the hand- 
 ing down of a decision in a case in which 
 they had been convicteu of crime, to charge 
 the court with snielding them from punish- 
 ment, and to state that it would be inter- 
 esting to know what mysterious but power- 
 ful influence has retarded the machinery 01 
 justice so strikingly. People ex rel. Connor 
 v. Stapleton, 18 Colo. 568, 33 Pac. 167, 
 
 23: 787 
 
 33. An affidavit alleging the truth of 
 newspaper statements filed in response to an 
 order to show cause why the affiant should 
 not be punished for a contempt because of 
 such publication, cannot be itself held to 
 constitute a contempt when the original 
 publication did not. State ex rel. Ashbaugh 
 v. Eau Claire County Circuit Ct. 97 Wis. 1, 
 72 N. W. 193, 38: 554 
 
 34. Newspaper articles charging a judge 
 who is a candidate for re-election with cor- 
 ruption and partiality in actions already 
 passed and ended, but not referring to any 
 pending litigation, cannot be punished as a 
 criminal contempt, although they are dis- 
 tributed to officers of the court and to per- 
 sons summoned as jurors therein, as well as 
 generally circulated. Id. 
 
 c. Disobedience. 
 
 See also infra, 79, 80, 98. 
 
 For Editorial Notes, see infra, V. 1. 
 
 35. The fact that an order disobeyed was 
 beyond the jurisdiction of the authority 
 from which it emanated may be shown in 
 defense upon process for contempt. State 
 ex rel. St. Louis, K. & S. R. Co. v. Wear, 135 
 Mo. 230, 36 S. W. 357, 33: 341 
 
 36. The interruption of the court by a by- 
 stander or spectator declaring that he knows 
 two men who saw the affair under consider- 
 ation, followed by refusal to give their 
 names so that they can be summoned as 
 witnesses, constitutes a punishable con- 
 tempt. Coleman v. Roberts, 113 Ala. 323, 21 
 So. 449, 36: 84 
 
 37. An order of court prohibiting the pub- 
 lication of evidence in a divorce case, be- 
 cause it is unfit for publiontion, is not au- 
 thorized by Cal. Code Civ. Proc. 125, au- 
 thorizing the court to exclude persons other 
 than officers of the court, parties, counsel, 
 and witnesses, or by 1209, making disobe- 
 dience of any lawful judgment or unlawful 
 
 interference with the proceedings a con- 
 tempt of court. Re Shortridge, 99 Cal. 526, 
 34 Pac. 227, 21: 755 
 
 38. An order requiring a defendant to op- 
 erate a machine invented by him (the so- 
 called "Keely Motor"), made in a suit for a 
 discovery as to such invention, before issue 
 joined and before legal testimony could have 
 been taken, and which would in effect com- 
 pel him to disclose his defense, is an improv- 
 ident exercise of chancery powers, and hence 
 not sufficient to support a commitment as 
 for a contempt in not obeying such order. 
 Com. ex rel. Keely v. Perkins, 124 Pa. 36, 
 16 Atl. 525,, 2: 223 
 By witness. 
 
 See also infra, 60. 
 
 For Editorial Notes, see infra, V. 1. 
 
 39. A summary enforcement of an answer 
 by imprisoning a witness is not an exercise 
 of judicial power to punish contempt of 
 court as a criminal offense, but of adminis- 
 trative power to enfore a law which, if en- 
 forced at all, must be enforced at once. Re 
 Clark, 65 Conn. 17, 31 Atl. 522, 28: 242 
 
 40. A physician duly subpoenaed and in- 
 terrogated as an expert witness can be pun- 
 ished as for a contempt if he refuses to 
 testify without receiving compensation other 
 than ordinary witness fees. Dixon v. Peo- 
 ple, 168 111. 179, 48 N. E. 108, 39: 116 
 
 41. The utility of a disclosure required by 
 statute from one convicted of intoxication, 
 as to when, where, how, and from whom, 
 he obtained the intoxicating liquor, which 
 disclosure is to be turned over to the State's 
 attorney, cannot be questioned by the con- 
 vict or the court, as an excuse for a refusal 
 to make the disclosure. Re Clayton, 59 
 Conn. 510, 21 Atl. 1005, 13: 66 
 
 42. That the privilege of a witness to re- 
 fuse to give self-incriminating testimony is 
 subject to abuse cannot be considered by the 
 courts in determining the validity of a con- 
 viction for contempt for refusing to answer, 
 further than to guard against such abuses as 
 far as consistent with the maintenance of 
 the right itself. Ex parte Miskimins, 8 
 Wyo. 392, 58 Pac. 411, 49: 831 
 
 43. For wilfully refusing to attend and 
 testify before the house of representatives, 
 or a committee having an election contest 
 properly pending before it, a person duly 
 subpoenaed may be lawfully imprisoned for 
 contempt. Re Gunn, 50 Kan. 155, 32 Pac. 
 948, 19: 519 
 By receiver. 
 
 Question for Jury as to, see Trial, 500. 
 
 44. The service upon a receiver, whose pos- 
 session of property is mixed and scrambling, 
 of a writ directing the suspension of pro- 
 ceedings against such property, together 
 with the petition and order therefor, from 
 which it appears that his authority is ques- 
 tioned because of absence of jurisdiction in 
 the court appointing him, compels him to de- 
 ride at his peril whether or not his author- 
 ity is valid; and if not he must relinquish 
 his claim to possession, or answer for con- 
 tempt of the writ, llavemeyer v. San Fran- 
 cisco Super. Ct. 87 Cal. 267. 25 Pac. 433, 
 
 10: 650
 
 CONTEMPT, I. c. 
 
 655 
 
 45. Merely going upon premises and com- 
 pelling the superintendent in charge to ac- 
 knowledge his authority will not give a re- 
 ceiver acting under a void commission such 
 full and complete possession of them as to 
 justify his maintaining it after the service 
 upon him of a writ directing the suspension 
 of proceedings against the property, where 
 the person in control of the business and all 
 employees continue resistance, and the 
 workmen on the premises have not received 
 or obeyed orders from the receiver, but have 
 continued in the service and pay of their em- 
 ployers. The possession being mixed and 
 scrambling, the legal seisin attaches itself to 
 the right of possession. Id. 
 
 46. A receiver who, upon proper order, 
 fails or refuses to deliver a fund intrusted 
 to 'his care, may properly be adjudged in 
 contempt of court, and imprisoned for such 
 a time as may be necessary to compel the 
 production of the money. Tindall v. West- 
 cott, 113 Ga. 1114, 39 S. E. 450, 55: 225 
 
 47. A receiver is in direct contempt of 
 court, who, in violation of his duty and in 
 disregard of the order of the court, obtains 
 from a bank on checks not countersigned, 
 and appropriates to his own use, a fund aris- 
 ing from a sale of the debtor's property, 
 which he has deposited under the direction 
 of the court, subject to be withdrawn only 
 on his check when the same has been coun- 
 tersigned bjr the judge presiding in the court 
 which appointed him; and regardless of the 
 question whether or not the bank is liable 
 for such wrongful payment, he may be at- 
 tached and punished for disregarding the or- 
 ders of the court and for refusal, when so 
 ordered, to pay into court the fund so mis- 
 appropriated. Id. 
 
 48. A receiver who has misappropriated a 
 fund committed to his safekeeping, and has 
 refused, upon order, to pay it into court, can- 
 not urge, in support of a petition for dis- 
 charge from imprisonment for contempt un- 
 der a writ of habeas corpus, the disqualifica- 
 tion of the judge who presided in the case 
 in which the receiver was appointed, and 
 who made the order for the payment of the 
 money, especially where he was a member 
 of a firm who were plaintiffs in the petition 
 under which he was appointed, heard the 
 judsre discuss his disqualification, and, when 
 urged to preside, inquire if there was any 
 objection, but sat silently by and saw him 
 preside and make the decree, and later, as 
 receiver, made a report to such judge, asking 
 for the allowance of certain expenditures as 
 part of his expenses, and treated him as 
 qualified to do everything in the case. Id. 
 Of order to pay money. 
 
 For Alimony, Jurisdiction of Proceeding, see 
 Courts, 259. 
 
 See also infra, 46^48, 92, 95-97; Incompe- 
 tent Persons, 32. 
 
 For Editorial Notes, see infra, V. 1. 
 
 49. Contempt proceedings will lie to com- 
 pel payment of instalments of alimony or- 
 dered to be paid in the future by a final 
 judgment of divorce, where an execution can- 
 not be issued, since there is no provision of 
 
 law for collecting auch judgment. Staples 
 v. Staples, 87 Wis. 592, 58 N. W. 1036, 
 
 24: 433 
 
 50. Inability to pay instalments of ali- 
 mony, brought about by the party himself 
 with intention to avoid payment, will not 
 prevent his refusal to pay irom being con- 
 tumacious and punishable as a contempt of 
 court. Id. 
 Of Injunction. 
 
 Review of Decision as to, on Appeal, see Ap- 
 peal and Error, 520. 
 
 Federal Jurisdiction of, see Courts, 335, 336. 
 For Editorial Notes, see infra, V. 1. 
 
 51. That an injunction was erroneously 
 granted is no defense to a violation thereof. 
 Smith v. Speed, 11 Okla. 95, 66 Pac. 511, 
 
 55: 402 
 
 52. Disobedience of a preliminary injunc- 
 tion is punishable as a contempt, unless the 
 order was void upon its face for an utter 
 lack of jurisdiction on the part of the judge 
 who granted it. People ex rel. Cauffman v. 
 Van Buren, 136 N. Y. 252, 32 N. E. 775, 
 
 20: 446 
 
 53. An injunction decree for the abate- 
 ment of a liquor nuisance, under loWa Code, 
 1543, operates upon the property as well 
 as upon the person of the defendant; and 
 any person, although not a party to the in- 
 junction proceedings, may be punished for 
 contempt if he violates the injunction. 
 Silvers v. Traverse, 82 Iowa, 52, 47 N. W. 
 888, 11:804 
 
 54. Actual notice of the injunction is not 
 necessary to render a person liable for con- 
 tempt in maintaining a liquor nuisance on 
 certain premises after an injunction has been 
 granted, under the Iowa Code, for the abate- 
 ment of a liquor nuisance thereon. Id. 
 
 55. An engineer who, while on the road 
 with his train, refuses to switch into the 
 train a car from another road with which 
 the labor organization to which he belongs 
 is in conflict, declares that he quits the em- 
 ployment of the company, and refuses re- 
 peated orders to proceed with his train; but, 
 upon receiving an order from such labor or- 
 ganization, completes his trip; and thereaft- 
 er, upon being told what his next run will 
 be, gives no notice or having quit, or intend- 
 ing to quit, his employment, is guilty of 
 contempt as violating an injunction restrain- 
 ing the company from refusing equal facil- 
 ities for the interchange of traffic to such 
 
 ! other company, of which he has notice. To- 
 ledo, A. A. & N. M. R. Co. v. Pennsylvania 
 Co. 54 Fed. 746., 19: 395 
 
 56. An employee of a railroad company is 
 not guilty of contempt as disobeying an in- 
 junction restraining the company from re- 
 fusing to another road equal facilities for 
 the interchange of traffic, where, rather 
 than perform the. duties necessary to such 
 interchange, he quits the service in good 
 faith, unconditionally and absolutely, while 
 his train is safely stored in the company's 
 yard, and no special injury can result, no 
 lives be imperiled, or property jeopardized, 
 by his refusal to continue in the service; 
 but so long as he continues in the service he
 
 856 
 
 CONTEMPT, II. 
 
 is guilty of contempt in refusing to obey 
 such injunction. Id. 
 
 57. Compliance with the specific directions 
 for the abatement of the nuisance, ia a de- 
 cree enjoining the conducting of a business 
 in such a way that the dust and fumes 
 therefrom constitute a nuisance, will not ab- 
 solve defendant from liability to punishment 
 for contempt in failing to obey the general 
 clause of the decree, in case such directions 
 prove insufficient. Northwood v. Barber 
 Asphalt Pav. Co. 126 Mich. 284, 85 N. W. 
 724, 54: 454 
 
 II. Procedure. 
 
 Due Process in, see Constitutional Law, 797- 
 
 799. 
 
 Right to Jury Trial, see Jury, 14, 15. 
 See also infra, 82, 88. 
 
 58. The proper practice, upon the refusal 
 of employees to obey an injunction against 
 a railroad corporation, is the issuance of a 
 citation requiring them to appear and show 
 cause why they should not be attached for 
 contempt. Toledo. A. A. & N. M. R. Co. v. 
 Pennsylvania Co. 54 Fed. 746, 19: 395 
 
 59. An information in proceedings for con- 
 tempt of an injunction need not, under Iowa 
 Code, 3495, contain a copy of the injunc- 
 tion decree, if it specifically refers to it, 
 and shows its existence and a violation of 
 it. Silvers v. Traverse, 82 Iowa, 52, 47 N. 
 W. 888, 11:804 
 
 60. The power to issue a mittimus with- 
 out a regular trial and judgment is given to 
 a justice of the peace by Conn. Gen. Stat. 
 91, when complaint is made to him, by grand 
 jurors, of a rsfusal to give testimony before 
 them. Re Clark, 65 Conn. 17, 31 Atl. 522, 
 
 28: 242 
 
 61. A court of equity asked to proceed as 
 for a contempt against a creditor Who seeks 
 to reach by attachment or garnishment 
 debts due to an insolvent debtor by persons 
 residing out of the state may inquire which 
 of the parties has a paramount right or 
 statutory equity to those debts. Holbrook 
 v. Ford, 153 111/633, 39 N. E. 1091, 27: 324 
 
 62. Appearing and answering as to the 
 merits on a charge of contempt will prevent 
 any attack for lack of jurisdiction of the 
 person, on a decision that the party is in 
 contempt. Ex parte Keeler, 45 S. C. 537, 
 23 S. E. 865, 31 : 678 
 
 63. Evidence taken under a petition for 
 the restoration of property which a receiver 
 has permitted to be taken out of his posses- 
 sion cannot be considered by the court in 
 determining the sufficiency of the receiver's 
 answer in a proceeding against him for con- 
 tempt for such conduct, where it is not in- 
 troduced as evidence in the contempt pro- 
 ceeding-, 'out, if the answer is sufficient to 
 acquit the receiver, he must be discharged. 
 Oster v. People, 192 111. 473, Gl N. E. 460, 
 
 56: 4G2 
 In whose name prosecuted. 
 
 64. A proceeding to punish n receiver for 
 contempt for permitting property committed 
 
 to his care in an equity suit to be taken out 
 of his possession is properly prosecuted by 
 and in the name of the people, and docketed 
 as an independent and distinct cause from 
 the chancery proceeding. Id. 
 
 Issuance of process. 
 
 65. The issuance of process of attachment 
 in a proceeding to compel a receiver to show 
 cause why 'he should not be punished for 
 permitting property committed to his- care 
 to be carried away is not necessary where 
 he is in court when the order requiring him 
 to show cause is entered. Id. 
 Complaint. 
 
 See also Pleading, 439. 
 
 66. A formal complaint is not necessary 
 to authorize a court to take cognizance of a 
 contempt consisting in publishing newspaper 
 articles calculated to prejudice the jury in 
 a trial pending before it. Telegram Newspa- 
 per Co. v. Com. 172 Mass. 294, 52 N. E. 445, 
 
 44: 159 
 Affidavit; statement. 
 
 67. If the facts presented by an affidavit 
 as a basis of a proceeding for contempt do 
 not show that a contempt has been commit- 
 ted, the court will be without jurisdiction 
 to proceed ; but if the facts are sufficient the 
 court may take jurisdiction, and its subse- 
 quent orders will not be reviewed for mere 
 errors. Cooper v. People ex rel. Wyatt, 13 
 Colo. 337, 373, 22 Pac. 790, 6: 430 
 
 68. An affidavit is not necessary to a pro- 
 ceeding to require a receiver to show cause 
 why he should not be punished for contempt 
 for permitting the carrying away of prop- 
 erty committed to his care, where the facts 
 have all been brought to the attention of 
 the court by testimony taken under a peti- 
 tion filed in the cause in which he was ap- 
 pointed to have the property restored. Os- 
 ter v. People, 192 111. 473, 61 N. E. 469, 
 
 56: 462 
 
 69. A court has no authority to proceed 
 against a party for contempt on account of 
 acts not committed in the immediate view 
 and presence of the court, unless the facts 
 constituting the contempt are shown by an 
 affidavit presented to the court. State v. 
 Kaiser, 20 Or. 50, 23 Pac. 964, 8: 584 
 
 70. In the absence of a statement verified 
 by oath, bringing to the knowledge of the 
 judge facts alleged to make the insertion of 
 certain allegations in a petition for change 
 of venue a contempt of court, he has no 
 jurisdiction to issue attachments against, 
 and punish as for contempt, the persons re- 
 sponsible for the filing of the petition, under 
 Colo. Code Oiv. Proc. chap. 31, if neither the 
 language used nor the filing of the petition 
 is per se a contempt. Thomas v. People, 14 
 Colo. 254, 23 Pac. 326. 9: 569 
 Privilege of accused as to testifying. 
 
 71. A person charged with contempt of an 
 injunction cannot be compelled to be a wit- 
 ness against himself, as the proceeding is of 
 a criminal nature. Ex parte Gould, 99 Cal. 
 SCO, 33 Pac. 1112, 21: 751 
 Conclusiveness of finding as to. 
 
 72. A finding of unlawful interference 
 with the proceedings of a court, which is 
 adjudged a contempt, is not conclusive on
 
 CONTEMPT, III. a, b. 
 
 657 
 
 certiorari, where the facts found show that 
 there was no contempt. Re Shortridge, 99 
 Cal. 526, 34 Pac. 227, 21:755 
 
 III. Power as to. 
 a. Of Notary Public. 
 
 Delegation of Power to, see Constitutional 
 
 Law, 230. 
 For Editorial Notes, see infra, V. 2. 
 
 73. A notary public exercising the juris- 
 diction of a justice' of the peace has power 
 to punish a bystander or spectator for con- 
 duct constituting contempt. Coleman v. 
 Roberts, 113 Ala. 323, 21 So. 449, 36: 84 
 
 74. A notary puoiic has no powe,r to com- 
 mit a witness for contempt because of a re- 
 fusal to be sworn or to give a deposition. 
 Re Huron, 58 Kan. 152, 48 Pac. 574, 36: 822 
 
 b. Of Court. 
 
 See also supra, 2, 3, 69. 
 
 For Editorial Notes, see infra, V. 2. 
 
 75. That an act is indictable under the 
 penal law of the state does not deprive the 
 courts of power to punish it as a contempt. 
 Bradley v. State ex rel. Hill, 111 Ga. 168, 
 36 S. E. 630, 50: 691 
 
 76. District courts of Colorado have inher- 
 ent power summarily to convict and punish 
 as for contempt of court those responsible 
 for a. tides published in reference to a pend- 
 ing cause which are calculated to interfere 
 with the due administration of justice in 
 such causes. Cooper v. People ex rel. Wyatt, 
 13 Colo. 337, 373, 22 Pac. 790, 6: 430 
 
 77. The common-law power of the courts 
 to punish for constructive contempt is recog- 
 nized and confirmed by Neb. Code Civ. Proc. 
 669, providing that any wilful attempt to 
 obstruct the proceedings or hinder the due 
 administration of justice in any pending 
 suit shall constitute a contempt, and be pun- 
 ishable as such. State v. Bee Pub. Co. 60 
 Neb. 282, 83 N. W. 204. 50: 195 
 
 78. The supreme court retains jurisdiction 
 to punish for contempt one making a publi- 
 cation tending to embarass it in the deci- 
 sion of a case, even after the rendition of an 
 opinion and the time for rehearing has 
 elapsed, if time still remains for application 
 for modification of tne opinion, which is 
 made soon after the article is published. 
 State v. Tugwell, 19 Wash. 238, 52 Pac. 1056, 
 
 43: 717 
 
 79. The court cannot prohibit the 'publi- 
 cation of the testimony taken in a trial 
 in which no obscenity is involved, where the 
 Constitution guarantees a public trial and 
 the liberty of the press. Ex parte Foster, 
 44 Tex. Crim. Rep. 423, 71 S. W. 593. 
 
 60: 631 
 
 80. The court cannot, of its own motion, 
 adjudge the publisher of a newspaper in con- 
 tempt for disobeying its oral order not to 
 publish the testimony in a case on trial, and 
 then attach him to show cause why the 
 judgment should not be made final. Id. 
 
 L.R.A. 
 
 81. A court is not dissolved by a mere re- 
 cess or necessary adjournment from one day 
 to the next; and misbehavior affecting pub- 
 lic justice, in the court room and in the im- 
 mediate presence of the judge, while he is 
 attending there to resume business when the 
 hour of recess expires, is misbehavior in the 
 presence of the court, and may be punished 
 summarily as a contempt of court, espe- 
 cially if the misbehavior is by a suitor who 
 has called attention to a pending case, and 
 is discussing it in the presence of some of 
 the jurors who may have to try it. Baker 
 v. State, 82 Ga. 776, 9 S. E. 743, 4: 128 
 
 82. That a contempt of court is not com- 
 mitted in the presence of the court does not 
 deprive it of the power to punish the of- 
 fense; but the offender may be brought 
 before the court by rule or other sufficient 
 prqcess. Burdett v. Com. 103 Va. 838, 48 S. 
 E. 878, 68: 251 
 Legislative power to interfere with. 
 Delegation of Legislature's Power to Punish 
 
 for Contempt, see Constitutional Law, 
 230-232. 
 For Editorial Notes, see infra, V. 2. 
 
 83. The inherent power of courts created 
 by the Constitution, to enforce respect and 
 obedience by punishing contempts without 
 a jury trial, cannot be taken away by the 
 legislature. Carter v. Com. 96 Va. 791, 32 
 S. E. 780, 45: 310 
 
 84. No authority to define contempts, and 
 to take from the courts jurisdiction to pun- 
 ish as a contempt any act not mentioned 
 in the statute, is given to the legislature by 
 Ga. Const, art. 1, 1, H 20, providing that 
 the power of the courts to punish for con- 
 tempts shall be limited by legislative acts, 
 since this empowers the legislature only to 
 fix the limit of the punishment which may 
 be inflicted. Bradley v. State ex rel. Hill, 111 
 Ga. 168, 36 S. E. 630, 50: 691 
 
 85. The power to punish for contempt 
 being inherent in a court created by the 
 Constitution and endowed with all the rights 
 and powers possessed by courts of record 
 prior ,to that time, the legislature cannot, 
 without express constitutional authority, by 
 defining what are contempts, limit the 
 courts to treating as contempts such acts 
 only as are embraced in the legislative def- 
 inition. Id. 
 
 86. The attempt to restrict the power of 
 courts to punish for contempt, made by 
 Okla. Sess. Laws 1895, p. 91, defining con- 
 tempt, and limiting the punishment there- 
 for, and providing that in all cases of in- 
 direct contempt the party charged therewith 
 shall, on demand, have a change of judge or 
 venue and a trial by jury is invalid, since 
 the legislature is without power to abridge 
 the inherent right of courts created by the 
 organic act to punish contempts. Smith v. 
 Speed, 11 Okla. 95, 66 Pac. 511, 55: 402 
 
 87. The general assembly is without au- 
 thority to abridge the power of a court 
 created by the Constitution to punish con- 
 tempts summarily, such power being inher- 
 ent and necessary to the exercise of judicial 
 functions; and Ohio Rev. Stat. 690(i. 
 6907, will not be so construed as to impute
 
 658 
 
 CONTEMPT, IV., V. 
 
 to the general assembly an intention to 
 abridge such power. Hale v. State, 55 Ohio 
 St. 210, 45 N. E. 199, 36: 254 
 
 IV. Judgment; Punishment. 
 
 Review of Commitment and Release from 
 Imprisonment, see Habeas Corpus, 31- 
 34. 
 
 Prohibition against Punishment, see Prohi- 
 bition, 17. 
 
 See also supra, 39, 46; Criminal Law, 202; 
 Judgment, 14. 
 
 For Editorial Notes, see infra, V. 2. 
 
 88. When any constitutional right or im- 
 munity of accused is violated in a proceed- 
 ing for contempt in refusing to give testi- 
 mony, a judgment of conviction is void.-Ex 
 parte Miskimins, 8 Wyo. 392, 58 Pac. 411, 
 
 49: 831 
 
 89. A plaintiff in an equity case has no 
 absolute right to proceed with the trial 
 while he is in contempt of court for refusal 
 to obey an order which can be enforced by 
 mandamus. Campbell v. Justices of Supe- 
 rior Court, 187 Mass. 509, 73 N. E. 659, 
 
 69: 311 
 Suspension of judgment. 
 
 90. A condition in a judgment for con- 
 tempt of an injunction against the unlawful 
 sale of intoxicating liquors, that "the execu- 
 tion of this judgment is to be suspended 
 during the pleasure of the court," is unlaw- 
 ful and void. State v. Voss, 80 Iowa, 467, 
 45 N. W. 898, 8: 767 
 Striking out answer. 
 
 91. Striking out a defendant's answer to 
 punish him for contempt is not authorized 
 by U. S. Rev. Stat. 725, U. S. Cbmp. Stat. 
 1901, p. 583, which restricts such punish- 
 ment to fine or imprisonment. Hovey v. 
 Elliott, 145 N. Y. 126, 39 N. E. 841, 39: 449 
 [Aff'd by the Supreme Court of the United 
 States in 1G7 U. S. 409, 42 L. ed. 215, 17 
 Sup. Ct. Rep. 841.] 
 
 92. In an action for divorce, the court has 
 power to punish a contempt of court in re- 
 fusing to pay alimony awarded by it by 
 striking the defendant's answer from the 
 record, or refusing to permit him to plead 
 further, in a case in which the defendant has 
 voluntarily absented himself from the terri- 
 tory for the purpose of avoiding contempt 
 proceedings for failure to pay such alimony 
 Bennett v. Bennett (Okla.) 81 Pac. 632, 
 
 70: 864 
 Fine. 
 
 Delegation of Power as to, see Constitution- 
 al Law. 232. 
 
 93. The fine for disobeying an injunction 
 against the sale of property on execution, 
 whereby the lien of the plaintiff's attach- 
 ments was lost, should be, under N. Y. Code 
 Civ. Proc. 2284, the amount of his debt, 
 where it has become merged in a judgment 
 which the attached property was sufTicient 
 to satisfy, and the debtor is insolvent, and 
 no proof is made in reduction of damages. 
 People ox rel. CaufTmnn v. Van Buren, 136 
 N. Y. 252.. 32 X. E. 775, 20: 446 
 
 94. Civil as well as criminal contempts 
 are within the provisions of U. S. Rev. Stat. 
 725, U. S. Comp. Stat. 1901, p. 583, author- 
 izing fine or imprisonment only, as a pun- 
 ishment therefor, and this is applicable to 
 the District of Columbia. Hovey v. Elliott, 
 145 N. Y. 126, 39 N. W. 841, 39: 449 
 [Aff'd by the Supreme Court of the United 
 States in 167 U. S. 409, 42 L. ed. 215. 17 
 Sup. Ct. Rep. 841.] 
 
 Imprisonment for debt. 
 
 95. The commitment of a defendant for 
 contempt for refusing to pay alimony is not 
 an imprisonment for debt within the consti- 
 tutional provision against imprisonment for 
 debt. Barclay v. Barclay, 184 111. 375, 56 N. 
 E. 636, 51:351 
 
 96. A final money decree for alimony is 
 not a debt within the purview of the con- 
 stitutional inhibition against imprisonment 
 for debt; and punishment as for a contempt 
 may follow a wilful failure to comply with 
 it. State v. Cook, 66 Ohio St. 566, 64 N. E. 
 567, 58: 625 
 
 97. The obligation of a wife to pay money 
 for the support of her husband under an 
 order of court in a case within Cal. Civ. 
 Code, 176, is not a debt within the pro- 
 visions of the Constitution against impris- 
 onment for.debt. Livingston v. Los Angeles 
 County Super. Ct. 117 Cal. 633, 49 Pac. 836, 
 
 38: 175 
 
 98. An order made in a proceeding in con- 
 tempt against sureties on an undertaking 
 for the redelivery of attached property by 
 the principal, requiring them to pay judg- 
 ment recovered against him, and directing 
 that, in default of such payment, they shall 
 be imprisoned, is in contravention of their 
 constitutional right of exemption from im- 
 prisonment for debt. Second Nat. Bank v. 
 Becker, 62 Ohio St. 289, 56 N. E. 1025, 
 
 51 : 860 
 
 V. Editorial Notes. 
 
 i. What constitutes. 
 
 Lack of jurisdiction of matter in which 
 contempt alleged. 2: 223.* 
 
 violation of iniunction as. 8: 589.* 
 
 Disobedience of order of court as. 8: 587.* 
 
 Hv petition to change venue. 9: 566.* 
 
 By refusal to testify. 13: 66.* 
 
 By board of health in disobeying injunc- 
 tion. 48: 708. 
 
 Publishing court proceedings in newspa- 
 per as. 8:586.* 
 
 Liability of newspaper proprietor in case of 
 publication without his 
 knowledge. 26: 781. 
 
 Compelling payment of alimony by con- 
 tempt proceedings. 24: 
 433. 
 
 2. Punishment. 
 
 Power to punish for. 8: 584.* 
 
 Summary punishment. 4: 128;* 8: 586.* 
 
 Notary's power to punish for contempt. 36: 
 822. 
 
 Legislative power to abridge the power of 
 courts to punish for con- 
 tempt. 36: 254.
 
 CONTESTS CONTINUANCE AND ADJOURNMENT, I. 
 
 659 
 
 In general. 36: 254. 
 In case of Federal courts. 36: 258. 
 Distinction between constitutional 
 courts and others. 36: 258. 
 Personal liability of judicial officer com- 
 mitting person for con- 
 tempt. 14: 144. 
 
 3. Statement with respect to ended cause. 
 At common law. 68: 251. 
 Under statute. 68: 260. 
 What constitutes a "pending" action. 68: 
 
 261. 
 Miscellaneous. 68:262. 
 
 CONTESTS. % 
 
 < 
 
 Of Election, see Elections, IV. 
 Against Granting of Liquor License, see In- 
 toxicating Liquors, II. c. 
 Of Mining Claims, see Mines, I. c. 
 Of Title to Office, see Officers, I. f. 
 Of Wills, see Wills, I. e. 
 
 CONTIGUOUS. 
 
 Meaning of Term, see Municipal Corpora- 
 tions, 18. 
 
 CONTINGENT CLAIMS. 
 
 Against Decedent's Estate, see Executors 
 and Administrators, 138-140. 
 
 CONTINGENT FEE. 
 
 Contract by Attorney for, see Attorneys, 
 65-69; Champerty, 11-13. 
 
 CONTINGENT LIMITATION. 
 
 Validity of, see Perpetuities. 
 
 CONTINGENT REMAINDER. 
 
 As Breach of Covenant, see Covenant, 49. 
 
 Recovery for Improvements on Breach of 
 Covenant of Seisin by, see Improve- 
 ments, 9. 
 
 Mortgage of, see Mortgage, 4. 
 
 As Violation of Rule against Perpetuities, 
 see Perpetuities, 18. 
 
 See also Property, 1; Real Property I. c.; 
 Wills, III. g, 9, 6. 
 
 Editorial Notes. 
 
 What is, see Real Property, III. 1, 4. 
 
 Power of legislature to destroy. 19: 247. 
 
 Legislative power to change or destroy 
 estates by dower, curtesy, 
 or similar estates, 19: 256. 
 
 Conveyance of expectancy. 9: 477.* 
 
 CONTINGENT RESULTS. 
 Opinion Evidence as to, see Evidence, VII. g. 
 
 CONTINUANCE AND ADJOURNMENT. 
 
 I. In General. 
 II. Grounds for. 
 
 III. Affidavits for. 
 
 IV. Effect of Admission. 
 V. Editorial Notes. 
 
 Review of, Decision as to, see Appeal and 
 
 .Error VII. i, 2; Replevin, 27. 
 Fraudulent Attempt to Obtain as a Con- 
 
 tempt, see Contempt, 5. 
 Powers of Court During, see Contempt, 81. 
 Of Meeting of County Board, see Counties, 
 
 88-90. 
 Of Prosecution after Third Term, see Crim- 
 
 inal Law, 92. 
 
 Of Election Contest, see Elections, 335, 336. 
 Presumption of, see Evidence, 171, 2(54, 26Q, 
 
 416-424. 
 
 Of Grand Jury, see Grand Jury, 3. 
 Of Injunction, see Injunction, 477a. 
 Acts of Judge after Adjournment, see 
 
 Judges, 17. 
 Of Legislature, see Courts, 88; Legislature, 
 
 10-12; Statutes, 22, 23. 
 Power of Committee after Adjournment of 
 
 Legislature, see Legislature, 15. 
 Adjournment of City Council, see Municipal 
 
 Corporations, 78, 79, 93. 
 Refusal of, as Ground for New Trial, see 
 
 New Trial, 5. 
 By Representative Body, see Parliamentary 
 
 Law, 2, 3. 
 
 I. In General. 
 
 1. Continuing a case to the following day 
 to permit the completion of the jury from 
 the regular panel, rather than from tales- 
 men, is no abuse of discretion or violation 
 of law. Cook v. Fogarty, 103 Iowa, 500, 
 72 N. W. 677, 39: 488 
 
 2. A recorder, although bound to proceed 
 with a pending prosecution notwithstanding 
 an investigation by the grand jury, may 
 nevertheless, on proper showing, after the 
 case shall have been fixed for examination, 
 continue the same for any valid cause, in 
 the exercise of a sound legal discretion. 
 State ex rel. Matranga v. Bringier, 42 La. 
 Ann. 1091, 8 So. 279, 10: 137. 
 
 3. A refusal to continue a case against 
 one who violated a municipal ordinance for 
 the previously announced purpose of testing 
 its constitutionality, merely to give his 
 counsel time to investigate the constitution- 
 al questions claimed to be involved therein, 
 is not error. Fitts v. Atlanta, 121 Ga. 567, 
 49 S. E. 793, 67: 803 
 
 4. There is no abuse of discretion in refus- 
 ing a motion for a continuance if the cir- 
 cumstances cast suspicion on the eood faith 
 of the application. Barnes v. Barnes, 95 
 Cal. 171, 30 Pac. 298, T6: 660
 
 CONTINUANCE AND ADJOURNMENT, II. IV. 
 
 II. Grounds for. 
 
 In Condemnation Proceedings, see Eminent 
 Domain, 183. 
 
 Absence of counsel. 
 
 5. A judgment in a trial court against a 
 party whose counsel is, to the knowledge of 
 the court, at the time present in the su- 
 preme court in obedience to its rule, will 
 not be permitted by the latter court to 
 stand. Peterson v. Atlantic City R. Co. 177 
 Pa. 335, 35 Atl. 621, 34: 593 
 
 6. A motion for a continuance of a crim- 
 inal prosecution on the ground of the ab- 
 sence of one of defendant's counsel, who is 
 alleged to have been always consulted in .re- 
 gard to the case and to be better informed 
 in regara to it than other attorneys could 
 possibly be on short notice, will not be 
 granted where there is nothing to show that 
 the attorneys present in court had not been 
 employed long prior to the time of the 
 motion, or that the case was so intricate 
 that any competent attorney could not pre- 
 sent it properly, even on short notice. Long 
 v. People, 135 HI. 435, 25 N. E. 851, 10: 48 
 Absence of witness. 
 
 See alsp infra, 13-16, 18-22. 
 
 7. A continuance for the testimony of ab- 
 sent witnesses is properly denied if sub- 
 stantially the same testimony as that which 
 is absent is offered at the trial. McKinney 
 v. State, 3 Wyo. 719, 30 Pac. 293, 16: 710 
 
 8. Disappearance during the trial, and ab- 
 sence, when called, of the witnesses who 
 have been subpoenaed and who have ap- 
 peared at the trial, give the party for whom 
 they were subpoenaed no right to a contin- 
 uance without proof by him that their dis- 
 appearance does not occur by his consent. 
 North Chicago City R. Co. v. Gastka, 128 111. 
 613, 21 N. E. 522, 4: 481 
 
 9. An application to compel the attend- 
 ance of a witness, which will delay the trial, 
 is properly refused where the attempt would 
 be idle because he is without the jurisdiction 
 of the court beyond the reach of its proc- 
 ess. Fidelity & C. Co. v. Johnson, 72 Miss. 
 333, 17 So. 2, 30: 206 
 
 10. A continuance because of absence of 
 witnesses should be denied when not made 
 in good faith, as shown by the fact that the 
 applicant made efforts to prevent the at- 
 tendance on behalf of the state of one of 
 the absent witnesses, and used no diligence 
 to procure the testimony of the others. 
 State v. Belvel, 89 Iowa, 405, 56 N. W. 545. 
 
 27 : 846 
 
 11. An application for the continuance of 
 a criminal case for the absence of witnesses 
 which complies strictly with all the require- 
 ments of Ga. Pen. Code, 962, should bo 
 granted or the trial postponed until the at- 
 tendance of such witnesses can be had. 
 where it appears that their evidence is ma- 
 terial on the controlling issue in the case, 
 and also that defendant cannot as fully and 
 satisfactorily make such proof by any other 
 witnesses. Ryder v. State, 100 Ga. 528. 28 
 S. E. 246, 38:721 
 
 12. A continuance of a trial for murder, 
 in which the defense of insanity is set up. 
 
 should be granted for the absence of wit- 
 nesses by whom defendant expects to prove 
 his insanity, where they have been acquaint- 
 ed with him all his life, and one of them is 
 a physician who is familiar with the nature 
 of the disease which is claimed to have 
 caused the insanity; and others are defend- 
 ant's brothers, although there are other wit- 
 nesses, including near relatives, by whom 
 many of the facts could be proved, and al- 
 though the absent witnesses had not ac- 
 tually seen defendant for some time before 
 the homicide. Id. 
 
 III. Affidavits for. 
 
 For Editorial Xotes, see infra, V. 
 
 13. An affidavit for a continuance to pro- 
 cure a nonresident witness should state not 
 only a bona fide belief that he can be pro- 
 cured, but also the grounds of such belief. 
 State v. Harrison, 36 W. Va, 729, 15 S. E. 
 982, 18:224 
 
 14. An affidavit by defendant corporation 
 for a continuance must show due diligence; 
 and where it shows that all the absent wit- 
 nesses are its officers or agents, and have 
 been present in court at some time during 
 the trial, that none have been subpoenaed, 
 and that it has not tried to secure their 
 depositions, it is insufficient. Anheuser- 
 Busch Brew. Asso. v. Hutmacher, 127 HI. 
 652, 21 N. E. 626, 4: 575 
 
 15. An affidavit is insufficient to support 
 a motion for the continuance of a prosecu- 
 tion for an assault, where it states that de- 
 fendant expects to prove by an absent wit- 
 ness that the prosecuting witness had 
 threatened to kill defendant, which threat 
 had been made and communicated to de- 
 fendant prior to the alleged assault, but 
 fails to show that at the time of the as- 
 sault the prosecuting witness was attempt- 
 ing to carry out his threat, or was guilty 
 of some hostile demonstration towards de- 
 fendant. Long v. People, 135 111. 435, 25 N. 
 E. 851, 10: 48 
 
 16. An affidavit for the continuance of a 
 prosecution for an assault, which alleges 
 that defendant expects to prove by an ab- 
 sent witness that the prosecuting witness 
 had threatened to kill defendant, which 
 threat had been made and communicated to 
 defendant prior to the assault, is not suf- 
 ficient unless it also shows how the absent 
 witness obtained his information as to the 
 threats, and how they were communicated 
 to defendant. Id. 
 
 17. Affidavits in opposition to a motion 
 for continuance may be received for pur- 
 poses other than to contradict statements 
 as to what the testimony of absent wit- 
 nesses will be. State v. Belvel, 89 Iowa, 405, 
 o(5 N. W. 545, 27: 846 
 
 IV. Effect of Admission. 
 
 As Authority for Subsequent Admission of 
 Affidavit, see Evidence, 902
 
 CONTINUANCE AND ADJOURNMENT, V. CONTRACTS. 
 
 6(51 
 
 Admissibility of Admission at Subsequent 
 
 Term, see Evidence, 1461. 
 For Editorial Notes, see infra, V. 
 
 18. A motion for a continuance for the 
 purpose of procuring depositions of absent 
 witnesses must be overruled if the opposing 
 counsel admits that such witnesses, if pres- 
 ent, would give the testimony which the af- 
 fidavits supporting the motion claim they 
 would; and such counsel has the right, 
 without any order of the court, to incor- 
 porate in his admission the reservation of 
 a right to impeach such testimony if such 
 course shall become desirable. State v. 
 Gibbs, 10 Mont. 213, 25 Pac. 289, 10: 749 
 
 19. Discretion may be vested in the court 
 to deny a continuance to the accused be- 
 cause of the absence of a witness^ upon ad- 
 mission by'the prosecution that he will tes- 
 tify to the facts set out in the affidavit for 
 continuance without requiring an admission 
 of their truth, in the absence of a consti- 
 tutional provision prohibiting it. Hoyt v. 
 People, 140 111. 588, 30 N. E. 315, 16: 239 
 
 20. Denying a continuance on an admis- 
 sion by the prosecuting attorney that an ab- 
 sent witness would testify as alleged in the 
 defendant's affidavit for continuance with- 
 out requiring an admission of the facts 
 which such testimony would prove if true, 
 does not violate a constitutional right of the 
 accused to "meet the witnesses face to 
 face," and to have "process tc compel their 
 attendance," if a reasonable time for that 
 purpose has already elapsed. Id. 
 
 21. An admission that witnesses who are 
 out of the jurisdiction and not within reach 
 of the process of the court would, if pres- 
 ent or if their depositions were taken, tes- 
 tify as stated in an affidavit for contin- 
 uance, with an agreement that such state- 
 ment shall be introduced during the trial as 
 the testimony might be if taken and offered 
 in regular form, will justify the court in the 
 exercise of its discretion in denying a con- 
 tinuance on account of such witnesses. Fan- 
 ton v. State, 50 Neb. 351, 69 N. W. 953, 
 
 36: 158 
 
 22. A statute permitting the denial of a 
 continuance in a criminal case for absent 
 witnesses for the defendant, provided the 
 prosecuting attorney will admit that the 
 witnesses if present would testify as al- 
 leged in the affidavits, is not in violation of 
 the constitutional right of the defendant 
 to compulsory process for obtaining wit- 
 nesses, or the right to meet witnesses face 
 to face (which means witnesses against 
 him), where he has had reasonable time and 
 opportunity to obtain his witnesses by com- 
 pulsory process of the law; but such rea- 
 sonable time and opportunity must be given 
 him. Atkins v. Com. 98 Ky. 539, 33 S. W. 
 948, 32: 108 
 
 V. Editorial Notes. 
 
 By withdrawal of juror. 48: 432. 
 
 As ground for discharge of accused. 56: 526. 
 
 When application for, denied. 10: 749.* 
 
 Denial of continuance, upon admissions by 
 the prosecution, as affect- 
 ed by right of accused to 
 meet witnesses. 16: 239. 
 Impeaching a contradicting affidavit. 
 16:240. 
 
 Presumption of. 12: 620;* 35: 117. 
 
 CONTRACTOR. 
 
 Liability of, for Negligence, see Negligence, 
 34. 
 
 Bonds of, see Bonds, 15-19. 
 
 Measure of Damages on Bond of, see Dam- 
 ages,- 109. 
 
 Liability for Negligence of, see Master and 
 Servant, III. b; V. 44-50. 
 
 Liability of, for Negligence, see Master and 
 Servant, 720-724. 
 
 For Public Improvement, City's Liability to, 
 see Public Improvements, 20-26. 
 
 As Employee, see Receivers, 48. 
 
 See also Building Contracts. 
 
 Editorial Notes. 
 
 Liability of Employer for Acts of, see 
 Master and Servant, V. 
 44-50. 
 
 Liability to third persons for defects in 
 work after its completion 
 and acceptance. 26: 504. 
 
 CONTRACTS. 
 
 I. Nature and Requisites. 
 
 a. In General. 
 
 b. Implied Agreements. 
 
 c. Consideration. 
 
 1. Necessity; Lack of. 
 
 2. Sufficiency. 
 
 d. Meeting of Minds; Definiteness. 
 
 1. In General. 
 
 2. Mutuality. 
 
 3. Definiteness. 
 
 4. Offers and Their Acceptance or 
 
 Withdrawal. 
 
 e. Formal Requisites; Statute of 
 
 Frauds. 
 
 1. In General; Personal Property. 
 
 2. Collateral Contracts; Debts of 
 
 Others. 
 
 3. Not to be Performed within 
 
 Year. 
 
 4. Contracts as to Realty. 
 
 5. Sufficiency of Writing. 
 
 a. In General. 
 6. Execution. 
 c. Memorandum. 
 
 6. Effect of Fraud or Part Per- 
 
 formance, 
 a. In General. 
 6. Contracts Relating to Real 
 
 Property. 
 II. Construction. 
 
 a. In General. 
 
 b. Entirety. 
 
 c. Time.
 
 662 
 
 CONTRACTS, I. a. 
 
 IL r-ontinued. 
 
 d. Particular Words. Phrases, and 
 Cases. 
 
 1. Miscellaneous. 
 
 2. As to Transfer of Property. 
 
 a. Real Property. 
 6. Personal Property. 
 
 3. Other Agreements Relating to 
 
 Land or Water. 
 
 4. For Services; Construction of 
 
 Buildings or Works. 
 III. Validity and Effect. 
 
 a. In General. 
 
 b. Illegal by Express Provision. 
 
 c. Public Policy. 
 
 1. In General. 
 
 2. Contracts against Liability. 
 
 3. As to Corporations and As- 
 
 sociations. 
 
 4. Affecting Official Action. 
 
 5. Contracts of Public Officers. 
 
 d. Gambling and Wager Contracts. 
 
 e. In Restraint of Trade. 
 
 1. In General. 
 
 2. To Refrain from Business. 
 
 f. Ratification; Validating. 
 
 g. Remedies; Proceeds of Unlawful 
 
 Contract. 
 
 1. In General. 
 
 2. Contracts against Public 
 
 Policy. 
 IV. Performance; Breach. 
 
 a. In General. 
 
 b. Excuse for Failure of Perform- 
 
 ance. 
 
 1. In General. 
 
 2. Impossibility of Performance; 
 
 Inevitable Accident. 
 
 3. Prevention or Hindrance by 
 
 Other Party. 
 
 c. Incomplete Performance; Suf- 
 
 ficiency of Performance. 
 
 1. Right of Recovery on Part 
 
 Performance. 
 
 2. Sufficiency of Performance. 
 
 3. Acceptance; Waiver of Objec- 
 
 tions. 
 
 d. Condition; Certificate of Perform- 
 
 ance. 
 
 e. Breach and Its Effect. 
 
 f. Time. 
 
 V. Change or Extinguishment. 
 
 a. In General. 
 
 b. Termination. 
 
 c. Rescission; Cancelation. 
 
 1. In General. 
 
 2. Conditions; Promptness; Re- 
 
 storing Benefits. 
 
 3. Grounds of. 
 VT. Actions; Liabilities. 
 
 a. In General. 
 
 b. Defenses. 
 VIT. Public Contracts. 
 
 a. In General. 
 
 b. Advertisements and Bids; Letting. 
 VTTT. Editorial Notes. 
 
 Contract of Accord and Satisfaction, see Ac- 
 cord and Satisfaction. 
 
 Accounting as to, see Accounting. 
 
 Review of Decision as to, on Appeal, see 
 Appeal and Error, 612-617. 
 
 Assignment of, see Assignment, 28-30. 
 
 With Passenger, see Carriers, II. a, 10; IV. 
 18, 20. 
 
 To Furnish Cars, see Carriers, II. b. 8. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 I. b; III. 1-11. 
 
 Restrictions on Right of, see Constitutional 
 Law, II. b, 4 6; III. 13. 
 
 Police Restrictions on, see Constitutional 
 Law, II. c, 4. 
 
 Impairing Obligation of, see Constitutional 
 Law, II. g; III. 9. 
 
 Effect of Custom or Usage on, see Custom, 
 6-7, 15-17, 20, 22-28. 
 
 Measure of Damages as to, see Damages, III. 
 a; V. 5-8. 
 
 Recovery for Loss of Profits from Breach of, 
 see Damages, III. p, 2; V. 22. 
 
 For Separate Support and Maintenance, see 
 Divorce and Separation, VIII. 
 
 Estoppel by, see Estoppel, III. d; IV. 8. 
 
 Presumption and Burden of Proof as to, see 
 Evidence, II. k, 1; XIII. 20, 21. 
 
 As Evidence, see Evidence, IV. n. 
 
 Evidence as to, see Evidence. XI. o. 
 
 Sufficiency of Proof of, see Evidence, XII. i. 
 
 As to Custody of Child, see Infanta, 31, 32, 
 35. 
 
 Injunction to Protect Rights in, see Injunc- 
 tion, I. b; IV. 6-8. 
 
 As to Insurance Contract, see Insurance, HI. 
 IX. 14-36. 
 
 Limiting Time to Sue on Policy, see Insur- 
 ance, VI. h, 3; IX. 69,70. 
 
 Limitation of Actions as to, see Limitation 
 of Actions, III. b. 
 
 Compelling Making of, see Mandamus, 154. 
 
 As to Compensation of Employee, see Mas- 
 ter and Servant, I. c. 
 
 As to Medium of Payment, see Money, 4, 5. 
 
 Liability of Seller or Manufacturer for De- 
 fects in Thing Sold or Manufactured, 
 see Negligence, I. b, 2. 
 
 For Partnership, see Partnership, 1, 5-14, 17, 
 18, 38. 
 
 Pleading as to, see Pleading, II. h. 
 
 Reformation of, see Reformation of Instru- 
 ments. 
 
 Of Sale, see Sale. 
 
 Specific Performance of, see Specific Per- 
 formance. 
 
 Trustee's Liability on, see Trusts, 166-168. 
 
 Notice in Warehouse Receipt as Part of Con- 
 tract, see Warehousemen, 16. 
 
 As to Compromise and Settlement, see 
 Compromise and Settlement. 
 
 As to Covenants, see Covenant. 
 
 As to Mortgages, see Mortgage. 
 
 As to Delivery of Telegram, see Telegraphs, 
 II. 
 
 As to Water Rights, see Waters, II. j. 
 
 I. Nature and Requisites, 
 a. In General. 
 
 1. A proposition to issue bonds to a rail- 
 way company is in the nature of a contract, 
 upon the acceptance of which both parties 
 will be bound by the agreement. Wullen-. 
 waber v. Dunigan, 30 Neb. 877, 47 N. W. 
 420, 13: 811
 
 CONTRACTS, I. b. 
 
 66:', 
 
 Parties. 
 
 By Association, Liability of Members, se 
 
 Associations, 19. 
 By Depositor with Savings Bank, see Banks 
 
 350-361. 
 
 By Corporations, see Corporations, IV. d. 
 By County, see Counties, II. d. 
 Individual Liability of Executrix, see Exec 
 
 utors and Administrators, 121. 
 Power of Guardian to Make, see Guardia 
 
 and Ward, 6. 
 Power of Married Woman to Contract, se 
 
 Husband and Wife, I. b, 2. 
 Contracts Between Husband and Wife, se 
 Husband and Wife, II. e; V. 12, 13 
 Antenuptial Contract, see Husband an 
 
 Wife, II. i; V. 15. 
 By Insane Persons, see Incompetent Persons 
 
 II. 
 
 By Infant, see Infants, I. d, 2; IV. 6-8 
 By Agent, see Principal and Agent. 
 By Receiver, see Receivers, II. 
 By Religious Society, see Religious Societies 
 
 64-69. 
 As to Mental Capacity to Make Will, see 
 
 Wills, I. d. 
 
 2. A mortgage by an administrator in 
 dividually to himself as administrator, to 
 secure an indebtedness which he owes to 
 the estate, is invalid for want of contracting 
 parties. Burditt v. Colburn. 63 Vt. 231, 22 
 Atl. 572, 13: 676 
 
 b. Implied Agreements. 
 
 Restitution on. see Assumpsit, 13. 
 
 Of Bank to Pay Depositor's Checks, see 
 
 Banks, 120. 
 Of Carrier or Passenger, see Carriers, 141, 
 
 258, 582. 681. 
 Due Process in Statute as to, see Constitu- 
 tional Law, 926. 
 To Pay for Services of Corporate Director, 
 
 see Corporations, 258. 
 Implied Covenants, see Covenant, 9-11. 46, 
 
 82; Landlord and Tenant, II. b, 2. 
 Right to Bring Action on, see Election of 
 
 Remedies, 20, 23. 
 
 To Pay for Services to Decedent, see Exec- 
 utors anl Administrators, 132. 
 By Executrix to Pay Legacy, see Executors 
 
 and Administrators, '76. 
 To Pay for Maintenance of Insane Person, 
 
 see Incompetent Persons, 15. 
 By Hotel Keeper, see Innkeepers, 22. 
 To Pay Interest, see Interest, 1. 
 Of Landlord to Repair, see Landlord and 
 
 Tenant, 172. 
 
 Of Railroad Employee, see Master and Serv- 
 ant, 2. 
 Infant's Right of Action for Services on, 
 
 see Parties, 26. 
 
 To Pay for Party Wall, see Party Wall, 7. 
 Between Photographer and Customer, see 
 
 Photographs. 1. 
 Allegation as to Performance of Services by 
 
 Infant, see Pleadinsr, 619. 
 To Pay for Support of Poor Person, see Poor 
 
 and Poor Laws, 3. 
 
 Implied Warranty, see Sale, 60-94, 99. 
 As to Time for Unloading Vessel, see Ship- 
 ping, 9, 10. 
 
 Implied Trusts, see Trusts, I. d. 
 Implied Gift by Will, see Wills, 173-177. 
 See also infra, 112, 272, 304, 482, 502, 612. 
 
 626, 747. 
 For Editorial Notes, see infra, VHI. 2, 30. 
 
 3. A mere statutory obligation to pay 
 money does not raise an implied contract to 
 pay it. The liability depends on the statute 
 itself. Davis v. Seymour, 59 Conn. 531, 21 
 Atl. 1004, 13: 210 
 
 4. An express promise or stipulation by 
 parol to remunerate a person for services, 
 w-hich is void as a contract because within 
 the statute of frauds, may be operative to 
 rebut the presumption that the services 
 were rendered gratuitously, and constitute 
 a sufficient ground for compensation quan- 
 tum meruit. Ellis v. Gary, 74 Wis. 176, 42 
 N. W. 252, 352, 4: 55 
 Cadmaai v. Markle, 76 Mich. 448, 43 N. W. 
 315, 5: 707 
 
 5. Persons who make gifts to a fund al- 
 ready established for the maintenance of a 
 public charity are presumed to know on 
 what terms the charity was established and 
 the scheme for the management thereof; 
 and it will also be presumed that they in- 
 tended their gifts to be held upon the same 
 trusts; and the acceptance of the gift will 
 constitute a contract on the part of the 
 donee that it shall be so held. Gary Li- 
 brary v. Bliss, 151 Mass. 364. 25 N. E. 92, 
 
 7: 765 
 
 6. The law raises no implied obligation on 
 ihe part of one received into a charitable 
 nstitution for support or treatment to pay 
 ;herefor, in the absence of a contract; such 
 relief is referred to motives of charity un- 
 
 ess the charter or by-laws of the institu- 
 
 :ion provide that compensation may and 
 
 hall be demanded. Montgomery County v. 
 
 Ristine, 124 Ind. 242, 24 N. E. 990, 8: 461 
 
 7. An agreement is implied that a lessee 
 of mines will not wilfully or negligently in- 
 capacitate itself from taking out more than 
 he minimum quantity of coal per year, 
 vhere the lease is made on a certain royalty 
 >er ton, naming the minimum amount which 
 hall be taken in any year, and the expec- 
 ation of both parties is that a larger quan- 
 ity would be taken. Genet, y. Delaware & 
 
 H. Canal Co. 136 N. Y. 593, 32 N. E. 1078, 
 
 19: 127 
 
 8. The large enhancement of one's prop- 
 rty by the erection near it of a board of 
 rade buildings to which he made a sub- 
 cription which failed because a condition as 
 o the time of completion was not complied 
 vith does not raise any implied promise on 
 
 is part to pay anything therefor. Cincin- 
 ati. S. & C. R. Co. v. Bensley, 6 U. S. App. 
 15, 2 C. C. A. 480, 51 Fed. 738, 19: 796 
 
 9. In an agreement by which a mill corn- 
 any agrees to saw for a person "6,000.000 
 
 et or more of pine logs," as shall be direct - 
 d from time to time, for which the other 
 grees to pay at certain rates, etc., implies 
 n nsrreement u the part of the latter to 
 :i:iish the 6.000.000 feet to be sawed, 
 linneapolis Mill Co. v. Goodnow. 40 Minn. 
 497. 42 N. W. 356. 4: 202
 
 664 
 
 CONTRACTS, I. b. 
 
 10. An express agreement with the pro 
 moters of a corporation for compensation 
 for services rendered for its benefit will no 
 prevent reliance of an implied one to re 
 cover the value of the services from the 
 corporation in case it accepts the benefit o 
 the services but repudiates the agreement 
 Sullivan v. Detroit Y. & A. A. R. Co. 135 
 Mich. 661, 98 N. W. 756, 64: 673 
 To pay for services of attorney. 
 
 11. A church does not take the benefit of 
 1 an attorney's services in prosecuting a 
 
 preacher, so as to make it liable to pay for 
 them, by a resolution for the removal of the 
 preacher from the parsonage, which recites 
 his suspension from the ministry upon the 
 charges presented against him. Parshley v 
 Third M. E. Church, 147 N. Y. 583, 42 N 
 E. 15, 30: 574 
 
 12. Services performed as attorney in 
 fact for a widow by one who was sole lega- 
 tee tinder a will which was subsequently de- 
 clared a nullity, by the terms of which she 
 was given a life estate and a liberal pro- 
 vision was required to be made for her, will 
 not entitle him to any compensation when 
 none was expected at the time the services 
 were rendered. Royston v. McCulley 
 (Tenn. Ch.) 59 S. W. 725, 52: 899 
 
 13. A promise by an infant to pay for 
 necessaries consisting of services of an at 
 torney in conducting a lawsuit will be im- 
 plied, where the suit was brought by her 
 next friend, was legally proper, and the in- 
 fant conferred with the attorney, appeared 
 as a witness, and profited by the successful 
 prosecution of the suit. Crafts v. Carr. 24 
 R. I. 397, 53 Atl. 275, 60: 128 
 Of adoption. 
 
 14. A contract may be implied and en- 
 forced in equity to leave to an adopted child 
 as an heir the property of the adopting pa- 
 rent, where the proceedings for adoption 
 were taken under a statute which was un- 
 constitutional for defect in its title, but 
 were supposed by the adopting parent as 
 long as he lived to be valid. Wright v. 
 Wright, 99 Mich. 170, 58 N. W. 54, 23: 196 
 Between relatives. 
 
 Presumption as to Validity of, see Evidence, 
 
 342. 
 Instruction as to, see Trial, 793. 
 
 15. Where services are rendered to one 
 standing in loco parentis, there is no im- 
 plied promise to pay for them, unless it is 
 raised by the facts and circumstances of the 
 case. Harris v. Smith, 79 Mich. 54, 44 N. 
 W. 169, 6: 702 
 
 16. A minor living in the family of a near 
 relative other than a parent, who continues 
 for years to render valuable services, rely- 
 ing on the relative's promise of compensa- 
 tion at the end of a certain period, can, 
 when discharged during that time without 
 compensation, recover the actual value of 
 the services in assumpsit, even if the prom- 
 ises of the relative were mnde in jest. Plate 
 v. Durst, 42 W. Va. 63, 24 S. E. 580, 32: 404 
 
 17. A contract to pay for the services of a 
 grandson who lived and made his home with 
 his grandfather during minority will not be 
 
 implied. Murphy v. Murphy, 1 S. D. 316, 47 
 N. W. 142, 9: 820 
 
 18. The stepdaughter of a deceased per- 
 son, who was a member of his family, can- 
 not recover against his estate for her serv- 
 ices, without proving an express promise or 
 agreement on his part to pay her therefor. 
 Ellis v. Cary, 74 Wis. 176, 42 N. W. 252, 
 352, 4: 55 
 Harris v. Smith, 79 Mich. 54, 44 N. W. 
 169, 6: 702 
 
 19. An implied promise to pay for the 
 services of a stepdaughter after she became 
 of age is not established by evidence that 
 she lived in the family from the time she 
 was nine years of age, was cared for as one 
 of the family from that time forward until 
 her marriage, after she became of age; that 
 she performed the same duties and dwelt 
 there as a member of the family, and had 
 her board and clothing, and from time to 
 time was given money, after her majority 
 as before. Harris v. Smith, 79 Mich. 54, 44 
 N. W. 169, 6: 702 
 
 20. A promise by a wife, in the presence 
 and hearing of her husband, that her daugh- 
 ter by a former husband should be paid for 
 her services rendered as a daughter in the 
 family after she became of age, is not bind- 
 ing upon the husband's estate unless, he 
 knew that the stepdaughter continued her 
 service in reliance upon the promise. Id. 
 Public. 
 
 See also infra, 510. 
 
 21. A state is not liable on a quantum 
 meruit or implied contract for the value of 
 goods received and used on a purchase il- 
 legally made without advertising for bids as 
 required by law. Mulnix v. Mutual Ben. 
 L. Ins. Co. 23 Colo. 71, 46 Pac. 123, 33: 827 
 
 22. An implied contract against the re- 
 moval of the seat of state government from 
 its original location is not made with prop- 
 erty owners at that place by its location 
 there. Edwards v. Lesueur, 132 Mo. 410, 33 
 S. W. 1130, 31:815 
 
 23. A physician who is a member of a 
 board of health may recover reasonable com- 
 pensation for purely professional services 
 which any other physician might render, 
 rendered by him under direction of the 
 aoard of health without any express agree- 
 ment for compensation. Spearman v. Tex- 
 arkana, 58 Ark. 348, 24 S. W. 883, 22: 855 
 
 24. Payment by councils of a borough, for 
 some years, for water actually furnished 
 under a void contract, creates no contract to 
 accept and pay for it in the future. Milford 
 
 r. Milford Water Co. 124 Pa. 610, 17 Atl. 
 85, 3: 122 
 
 25. Mere acceptance of and payment for 
 he service of a water company in furnish- 
 ng water for general fire purposes are not 
 ufficient to establish a contract on the part 
 3 the water company to compensate the 
 
 municipality for loss of property by fire for 
 he extinguishment of which the company 
 legligently failed to furnish water, although 
 he service was undertaken in compliance 
 vith a demand therefor by the municipality, 
 "kiah City v. Ukiah Water & I. Co. 142 Cal. 
 
 173, 75 Pac. 773, 64: 231
 
 CONTRACTS, I. c. 1, 2. 
 
 665 
 
 c. Consideration. 
 1. Necessity; Lack of. 
 
 Effect of Failure of Consideration, see infra, 
 816-818/830. 
 
 Presumption of Consideration, see Evidence, 
 645, 653, 654. 
 
 Parol Evidence as to Lack of, see Evidence, 
 1184. 
 
 Contract by Agent as to Time of Receiving 
 Premium, see Insurance, 597. 
 
 Necessity of, to Support Novation, see No- 
 vation, 1. 
 
 See also infra, 56, 91, 95, 109a, 368, 597. 
 
 For Editorial Notes, see infra, VIII. 3, 4, 
 9. 
 
 26. No action to enforce a ^gratuitous 
 promise can be maintained, however worthy 
 the object to be promoted. First Presby. 
 Church v. Cooper, 112 N. Y. 517, 20 N. E. 
 352, 3: 468 
 
 27. An instrument would be without con- 
 sideration and therefore void if a default of 
 the obligor could be held as satisfaction of 
 the consideration. Woodland Oil Co. v. 
 Crawford, 55 Ohio St. 161, 44 N. E. 1093, 
 
 34: 62 
 
 28. An agreement during the term to re- 
 ceive less or to pay more than the price 
 named in a contract of employment for one 
 year at a stipulated salary per month is 
 void, unless supported by some change in 
 place, hours, character of employment, or 
 other consideration. Davis v. Morgan, 117 
 Ga. 504, 43 S. E. 732, 61: 148 
 
 29. An agreement by grocers not to buy 
 any butter from the makers for two years, 
 if a firm shall open a butter store in the 
 place, is void for lack of consideration, 
 where such firm neither pays anything 
 therefor nor buys any established plant, 
 place of business, or good will. Chaplin v. 
 Brown, 83 Iowa, 156, 48 N. W. 1074, 12: 428 
 
 30. The extension of the time for pay- 
 ment of a mortgage, made by a written 
 agreement which is not based on any new 
 consideration, is invalid. Olmstead v. Lati- 
 mer, 158 N. Y. 313, 53 N. E. 5, 43:685 
 
 31. One who signed an option contract to 
 convey land after the expiration of the 
 option and without any consideration mov- 
 ing to him is not bound thereby. Le Rov 
 v. Jacobosky, 136 N. C. 443, 48 S. E. 796, " 
 
 67: 977 
 
 32. The death of a stallion, preventing an 
 exercise of the privilege of return by one 
 who had paid for a fruitless service, with 
 an agreement for the privilege of 'return 
 during the season, does not create any fail- 
 ure of consideration which will give a right 
 to repayment. Pinkham v. Libby, 93 Me 
 575, 45 Atl. 823, 49: 693 
 For release. 
 
 Agreement to Accept Part of Debt in Full 
 Satisfaction, see Accord and Satisfac- 
 tion, 16, 17. 
 
 See also infra, 39-41. 
 
 33. A release by an indorsee of a promis- 
 sory note of a joint maker upon payment of 
 a part only of the amount due is without 
 
 consideration and void. Bender v. Been, 78 
 Iowa, 283, 43 N. W. 216, 5: 596 
 
 34. A release from a contract to run a 
 bus from passenger trains to a hotel is valid 
 without any new and independent consider- 
 ation to support it. Hathaway v. Lynn, 75 
 Wis. 186, 43 N. W. 966, 6: 551 
 
 2. Sufficiency. 
 
 For Services of Attorney, see Attorneys, 65, 
 66. 
 
 Exchange Charged for Transmitting Money, 
 see Banks, 246. 
 
 For Bills or Notes, see Bills and Notes, I. c. 
 
 For Compromise and Settlement, see Com- 
 promise and Settlement, 4-11. 
 
 Settlement of Claim as Consideration for 
 Promise, see Compromise and Settle- 
 ment, 12. 
 
 Of Deed to Corporation, see Deeds, 31. 
 
 Parol Evidence as to, see Evidence, VI. g. 
 
 Of Conveyance Attacked for Fraud, see 
 Fraudulent Conveyances, II. 
 
 For Assignment of Insurance Policy, see 
 Insurance, 722. 
 
 Promise to Pay Insurance Premiums, see In- 
 surance, 644. 
 
 Inoperative Lease as Consideration, see 
 Landlord and Tenant, 9. 
 
 For Assignment of Mortgage, see Mortgage, 
 97. 
 
 For Delivery of Telegram, see Telegraphs, 
 43. 
 
 See also infra, 244, 425. 
 
 For Editorial Notes, see infra, VIII. 5. 
 
 35. A promise, in consideration of permis- 
 sion to insure the life of a person, to pay his 
 wife a sum of money after his death, is on 
 a void consideration where the promisor has 
 no insurable interest in the life on which the 
 insurance is taken, and therefore cannot be 
 enforced. Burbage v. Windley, 108 N. C. 
 357, 12 S. E. 839, 12 : 409 
 
 36. A grant by the state to an incorpo- 
 rated school, of lands to be held in trust for 
 the creation of an income to be used for 
 school purposes, is supported by a consider- 
 ation, where, before the grant, the legis- 
 lature was charged with the duty of caring 
 for the lands and appropriating the income 
 to school purposes, and by the grant the 
 legislature is relieved from such duty, which 
 is imposed on and assumed by the incorpo- 
 ration. Franklin County Grammar School 
 v. Bailey, 62 Vt. 467, 20 Atl. 820, 10: 405 
 Of bailment. 
 
 37. A legal consideration for the loan of 
 n painting for a competitive exhibition at a 
 fair is furnished in the detriment and in- 
 convenience to which the sender is subjected, 
 and the indirect and contingent benefit to 
 the person conducting the exhibition. Prince 
 v. Alabama State Fair, 106 Ala. 340, 17 So. 
 449, 28: 716 
 Of promise to pay expert. 
 
 38. There is sufficient consideration for a 
 promise to pay an expert witness a reason- 
 able compensation in addition to the stat- 
 utory fees, when he is engaged in advance of
 
 666 
 
 CONTRACTS, I. c, 2. 
 
 the trial to testify as an expert. Barrus v. 
 Phaneuf, 166 Mass. 123, 44 N. E. 141, 
 
 32: 619 
 For release. 
 See also supra, 33, 34. 
 
 39. A sufficient consideration for a con- 
 tract to release a railroad company from lia- 
 bility for personal injuries of an employee if 
 he accepts benefits from the relief fund of a 
 railroad relief association exists where both 
 employer and employee contribute to the 
 fund, and the employer takes care of the 
 funds, pays the operating expenses, and pays 
 interest on the fund. Pittsburg, C. C. & St. 
 L. R. Co. v. Cox, 55 Ohio St. 497, 45 N. E. 
 641, 35:507 
 
 40. Re-employment of an injured em- 
 ployee for one day, and for such further 
 time as may be satisfactory to the employer, 
 is a sufficient consideration to support a re- 
 lease of liability for injuries caused by the 
 negligence of the employer, where at the 
 time the release was given the injuries were 
 believed by both parties to be slight and in- 
 significant, although they subsequently 
 prove to have been serious, and to have de- 
 stroyed the employee's ability to labor. 
 Quebe v. Gulf. C. & S. F. R. Co. 98 Tex. 6, 
 81 S. W. 20, 66: 734 
 
 41. A release exacted by a railroad com- 
 pany as a condition of permitting an injured 
 employee to return to work, without any 
 undertaking on its part to continue the 
 employment any longer than may be satis- 
 factory to it, is without consideration, and 
 not binding on the employee, although in 
 consequence of it he is permitted to return 
 to work, and receive wages for some time. 
 Missouri, K. & T. R. Co. v. Smith', 98 Tex. 
 47, 81 S. W. 22, 66: 741 
 For promise of third person. 
 
 See also infra, 85, 405; Accord and Satis- 
 faction, 13; Guaranty, 5. 
 
 42. Where a conveyance of property is 
 made in consideration of a contract by the 
 vendee to perform certain services for the 
 vendor, and in case of a sale of the prop- 
 erty to pay certain specified sums to the 
 vendor and to two other persons, strangers 
 to the transaction, a mortgage being taken 
 to secure the performance of the contract, 
 though the amounts agreed to be paid to 
 such third parties are in effect gifts to 
 them the consideration between the immedi- 
 ate parties to the transaction supports the 
 promise as between the vendee and the bene- 
 ficiaries as effectually as if they were 
 actual parties to such transaction and 
 parted with a consideration to either the 
 vendor or the vendee to support the promise 
 made for their benefit, the effect thereof 
 being to vest in them the absolute right to 
 the benefit of the promise, regardless of any- 
 thing the immediate parties to such trans- 
 action subsequently did without their con- 
 sent. Tweodclale v. Tweeddale, 116 Wis. 
 517, 93 N. W. 440, 61: 509 
 To will property. 
 
 43. No binding contract enforceable in a 
 court of equity, to leave property to certain 
 persons at death, is made by a promise to 
 execute a will in their favor in consideration 
 
 of pecuniary assistance rendered and to be 
 rendered to the testatrix, where the aid al- 
 ready given has been of a purely charitable 
 nature, without thought of compensation or 
 legal obligation, and what is expected to be 
 done in the future is not declared to be of 
 a different character. Anderson v. Eggers 
 (N. J. Err. & App.) 63 N. J. Eq. 264, 49 Atl. 
 578, 55:570 
 
 Promise by widow to husband's surety. 
 
 44. A promise by. a widow to pay a surety 
 on her husband's debt is without consider- 
 ation, where it is merely the renewal of a 
 void promise made before his death. Trim- 
 ble v. Rudy, 22 Ky. L. Rep. 1406, 60 S. W. 
 650, 53: 353 
 
 45. . Payment of notes by a surety does not 
 constitute a new consideration which will 
 sustain a promise made by the wife of the 
 principal debtor to indemnify him, where 
 she was not previously obliged to do so. Id. 
 Promise to or by street railroad company. 
 
 46. Ample consideration is furnished for 
 contract obligations of a street railway 
 company to perform tne conditions of a 
 contract with a city, by the grant of the 
 privilege of using the streets for an electric 
 railway. People ex rel. Jackson v. Subur- 
 ban R. Co. 178 111. 594, 53 N. E. 349, 49: 650 
 
 47. The connection, by a street railroad 
 company, of two distinct lines of road which 
 it maintains in one city; and the transpor- 
 tation of passengers over such lines to any 
 part of the city for one fare: and its build- 
 ing, at the city's request, additional lines of 
 road, are a sufficient consideration for the 
 passage of an ordinance relieving the com- 
 pany from paving the street to a given dis- 
 tance outside its rails, and imposing in lieu 
 thereof the duty simply to keen certain por- 
 tions of the street in good repair; and when 
 the ordinance is accepted and the conditions 
 complied with, the original duty ceases. 
 Western Pav. & S. Co. v. Citizens' Street 
 R. Co. 128 Ind. 525, 26 N. E. 188, 10: 770 
 Subscriptions. 
 
 Defense to Action on Check for, see infra, 
 836. 
 
 Grounds for Rescindin?, see infra, 795-797. 
 
 Recovery back for Failure of Consideration, 
 see Assumpsit, 9. 
 
 Notes Given for. see Bills and Notes, 34, 40, 
 41. 
 
 Amount of Recovery on Failure of Consider- 
 ation for, see Damages, 88. 
 
 See also supra, 8, infra, 88, 307, 328-330, 752, 
 768. 
 
 For Editorial Notes, see infra, VIII. 5. 
 
 48. An individual assumption by trustees, 
 of the indebtedness of a church, in reliance 
 on subscriptions, constitutes a consideration 
 for such subscriptions. First M. E. Church 
 v. Donnell, 110 Iowa, 5, 81 N. W. 171, 46: 858 
 
 49. The erection of a library building be- 
 ing discretionary with the board of directors 
 as a school district, and not an imperative 
 legal duty resting upon the board under Mo. 
 Rev. Stat. 1889, 8109, 8112, while it 
 is given express power to accept gifts for 
 the erection of such a building, its erection 
 may be a sufficient consideration for a 
 promise to give money in aid of the enter-
 
 CONTRACTS, I. c, 2. 
 
 607 
 
 prise. Kansas City School Dist. v. Stocking, 
 13 Mo. 672, 40 S. W. 656, 37 : 406 
 
 50. A subscription paper by which the 
 subscribers agree to and with the trustees of 
 a church to pay the sums severally sub- 
 scribed by them for the purpose of paying 
 off a certain mortgage debt, upon condition 
 that the whole sum be subscribed or paid 
 within one year; and reciting a considera- 
 tion of $1 to each of the subscribers in hand 
 paid (but which in fact was not paid), and 
 the agreement of the subscribers with each 
 other contained in the contract; where 
 neither the church nor the trustees promiee 
 to do anything, and whatever action the 
 trustees in fact take in procuring subscrip- 
 tions is as individuals, and not in their offi- 
 cial capacity, creates no obligation which 
 can be enforced by the church against any 
 of the subscribers, because there is no priv- 
 ity of contract between them and the 
 church. First Presby. Church v. Cooper, 112 
 N. Y. 517, 20 N. E. 352, 3: 468 
 
 51. The incurring of an expense and the 
 creation of a liability in furtherance of an 
 enterprise which a donor intended to pro- 
 mote, and in reliance upon his promises, will 
 be taken to have been incurred and created 
 at 'his instance and request, and will estop 
 his executors to plead a want of considera- 
 tion for his promise contained in a promis- 
 sory note. Kansas City School Dist. v. 
 Stocking, 138 Mo. 672, 40 S. W. 656, 
 
 37: 406 
 
 52. A subscription towards the erection of 
 a church building, which is entirely volun- 
 tary on the part of the subscriber and un- 
 supported by any consideration, and which 
 remains unpaid at the subscriber's death, is 
 thereby revoked, and the subsequent erec- 
 tion of the church, although undertaken in 
 reliance partly upon such subscription, will 
 furnish no reason for compelling payment 
 by his executors. Twenty-third Street Bapt. 
 Church v. Cornwell, 117 N. Y. 601, 23 N. E. 
 177, 6: 807 
 
 53. Payment by a subscriber of part of his 
 subscription, which was not legally enforce- 
 able, does not make the balance of the sub- 
 scription valid. First Presby. Church v. 
 Cooper, 112 N. Y. 517, 20 N". E'. 352, 3: 468 
 Love and affection. 
 
 54. Love and affection, and a desire to 
 provide for the grantee after the grantor's 
 death, as a consideration for a conveyance 
 of real estate, are not sufficient to entitle 
 the grantee to enforce an executory promise 
 in the deed to satisfy an encumbrance on 
 the property, or to recover the amount from 
 the residue of the estate in case the mort- 
 gage is foreclosed against the property con- 
 veyed. Fischer v. Union Trust Co. 138 Mich. 
 612, 101 N. W. 852, 68:987 
 
 55. The consideration of a contract will 
 not be held insufficient because affection 
 forms an element thereof. Puterbaugh v. 
 Puterbaugh, 131 Ind. 288, 30 N. E. 519, 
 
 15: 341 
 
 Moral oblifration. 
 For Editorial Notes, see infra, VTTI. 7. 
 
 56. Courts cannot enforce promises bind- 
 ing on the conscience, except in those cases 
 
 where some pecuniary damage flows from 
 the breach, or where, in addition to the 
 moral obligation, the promfse is also sup- 
 ported by a legal consideration. Davis v. 
 Morgan, 117 Ga. 504, 43 S. E. 732, 61: 148 
 
 57. A moral obligation is a sufficient con- 
 sideration to support a promise to pay. Mu- 
 tual Reserve Fund L. Asso. v. Hurst, 78 
 Md. 59, 26 Atl. 956, 20: 761 
 
 58. A promise by a husband to his wife 
 on her deathbed, that their son should have 
 certain property, does not constitute a valu- 
 able consideration for a conveyance by him 
 to the son. Peek v. Peek, 77 Cal. 106, 11 
 Am. St. Rep. 244, , 1: 185 
 
 59. The moral obligation of a son to sup- 
 port his mother is not a sufficient consider- 
 ation to support a promise to reimburse the 
 town for expenses incurred for that purpose. 
 Freeman v. Dodge, 98 Me. 531, 57 Atl. 884, 
 
 66: 395 
 
 60. A promise by a son to reimburse a 
 town in case it settles claims which had 
 been made upon it for supplies furnished his 
 mother is not supported by his statutory 
 obligation to pay the debt, where such ob- 
 ligation is contingent upon the legal es- 
 tablishment of tl\e town's liability and of 
 the ability of the son to meet the expenses, 
 none of which has been established at the 
 time the promise is given. Id. 
 
 61. The abandonment of the use of to- 
 bacco by one party during the life of the 
 other party is a sufficient consideration for 
 a promise by the latter to pay an agreed 
 sum of money. Talbott v. Stemmon, 89 Ky. 
 222, 12 S. W. 297, 5: 856 
 
 62. A minor's abstinence from intoxicat- 
 ing liquors and tobacco, and from swearing 
 and playing cards or billiards for money, 
 is a good consideration for a promise by his 
 uncle to pay him a sum of money. Hamer v. 
 Sidway, 124 N. Y. 538, 27 N. E. 256, 12: 463 
 
 63. .An agreement by one partner who 
 had, by excessive use of stimulants, volun- 
 tarily disabled himself from service for the 
 firm, made after dissolution but before full 
 settlement, to allow his copartner out of the 
 assets a certain sum for past services, to 
 compensate him for his own lack of services, 
 is supported by a strong moral obligation 
 Which renders it valid under Ga. Code, 
 2741, although it would not be valid at com- 
 mon law. Gray v. Hamil, 82 Ga. 375, 10 S. 
 E. 205, 6: 72 
 
 Performance of existing obligation. 
 For Editorial Notes, see infra, VlII. 6. 
 
 64. The performance of a contract by a 
 party who has hesitated or refused to com- 
 plete it may constitute a good consideration 
 for a promise by a third person who will be 
 benefited by such performance. Abbott v. 
 Doane, 163 Mass. 433, 40 N. E. 197, 34: 33 
 Agreement of other party. 
 
 For Editorial Notes, see infra, VI II. 5. 
 
 65. An agreement to pay the purchase 
 price is a sufficient consideration to support 
 a contract to convey real estate. Rodman v. 
 Robinson, 134 N. C. 503, 47 S. E. 19, 65: 682 
 
 66. A promise to deliver coal in the fu- 
 ture is a sufficient consideration to support 
 an acceptance of a draft for the purchase
 
 668 
 
 CONTRACTS, I. c, 2. 
 
 price. Tradesmen's Nat. Bank v. Curtis, 167 
 N. Y. 194, 60 N. E. 429, 52: 430 
 
 67. Mutual promises of merchants to re- 
 frain from engaging in business after 6:30 
 p. M. of each day are sufficient loss or detri- 
 ment in the way of financial transactions, 
 or are sufficient gain and advantage from a 
 social or healthful standpoint, to support a 
 contract to close their places of business at 
 that hour. Stovall v. McCutchen, 107 Ky. 
 577, 54 S. W. 969, 47 : 287 
 
 68. An agreement by an attorney to pros- 
 ecute, and if possible collect, certain claims, 
 and to extinguish the debt due him by the 
 owner thereof for past services, furnishes 
 ample consideration for an agreement by the 
 latter that he shall receive a fixed share of 
 whatever is obtained as the result of such 
 prosecution. Fairbanks v. Sargent, 117 N. 
 Y. 320, 22 N. E. 1139, 6: 475 
 
 69. An antenuptial agreement that at the 
 death of the intended wife certain of her 
 property shall go to her brothers is a suffi- 
 cient consideration for a promise by the hus- 
 band, when his wife is on her deathbed, to 
 hold the property in trust for them, so that 
 they may enforce the trust, although they 
 are mere volunteers. Ransdel v. Moore, 153 
 Ind. 393, 53 N. E. 767, 53: 753 
 
 69a. The vesting of the title to real prop- 
 erty of a married woman in her husband at 
 her death, because of his refusal to procure 
 someone to draw her will, by which she 
 wished to devise the land to third persons, is 
 sufficient consideration for his promise to 
 hold it in trust for them, so that they may 
 enforce the promise. Id. 
 
 70. An agreement by the equitable owner 
 of 1,000 shares of corporate stock of the 
 par value of $10 per share, which stock is 
 held by trustees under a trust agreement, 
 to sell 500 of such shares at $1 per share, 
 and the execution of such agreement by his 
 delivering to the buyer the trustee's receipt 
 for the stock and receiving in return $500 
 in cash and the buyer's receipt for 500 shares 
 of the stock, constitute sufficient considera- 
 tion for an agreement on tho part of the 
 buyer to secure for the seller a bona fide bid 
 of $5,000 for the remaining 500 shares with- 
 in twelve months, or at the end of that 
 time to take the stock himself at that price. 
 Duchemin v. Kendall, 149 Mass. 171, 21 N. 
 E. 242, 3: 784 
 
 71. Consideration for an agreement by a 
 railroad company and other parties about to 
 construct a railroad from a mine to a fur- 
 nace, and from the furnace to an estab- 
 lished railroad, that they will ship all their 
 products at reasonable rates over the latter 
 railroad, may be found in the purchase by 
 the owner of the old road of a certain quan- 
 tity of the bonds of the new company at par 
 in order to supply funds for the enterprise. 
 Bald Eagle Valley R. Co. v. Nittany Valley 
 R. Co. 171 Pa. 284, 33 Atl. 239, 29: 423 
 
 72. A lease with the affirmative cove- 
 nants of the lessee is sufficient considera- 
 tion for a contract giving him a right to 
 purchase the property during the continu- 
 ance of the lease, so that the option cannot 
 be withdrawn by the lessor during that 
 
 time. Frank v. Stratford-Handcock, 13 
 
 Wyo. 37, 77 Pac. 134, 67: 571 
 
 Relinquishment of rj^ht. 
 
 Immediate Paymen for Agreement to 
 Abate Portion, se* Accord and Satisfac- 
 tion, 18. 
 
 Consideration for Compromise and Settle- 
 ment, see Compromise and Settlement, 
 4-11, 12. 
 
 As to Mortgage, see Mortgage, 25, 30. 
 
 For Editorial Notes, see infra, VIII. 5. 
 
 73. A benefit to the promisee, or a detri- 
 ment to the promisor, is not necessary to 
 make a good consideration for a contract, if 
 the exercise of a present right is forborne 
 because of the promise. Ballard v. Burton, 
 64 Vt. 387, 24 Atl. 769, 16: 664 
 
 74. The promise of each party to relin- 
 quish his constitutional right to a jury trial 
 is a sufficient consideration for an agreement 
 to submit the case to the court. Lanahan v. 
 Heaver, 77 Md. 605, 26 Atl. 866, 20: 759 
 
 75. A relinquishment by the mother of a 
 bastard child of her right to compel the 
 father by legal proceedings to assist in the 
 maintenance of the child, and her support 
 and education of the child at her own sepa- 
 rate expense, are a sufficient consideration 
 for his promise to make a conveyance of real 
 estate to her. Van Epps v. Redfield, 68 
 Conn. 39, 35 Atl. 809, . 34: 360 
 Forbearance to sue; resumption of marital 
 
 relations. 
 
 76. Forbearance to bring suit on a claim 
 is a sufficient consideration for an agree- 
 ment not to plead the statute of limitations 
 thereto. Wells, F. & Co. v. Enright, 127 Cal. 
 669, 60 Pac. 439, 49: 647 
 
 77. Forbearance by a wife to bring a well- 
 founded suit for divorce against her husband 
 is a sufficient and legal consideration for a 
 covenant by the husband to surrender all his 
 marital rights in land belonging to the wife. 
 Poison v. Stewart, 167 Mass. 211, 45 N. E. 
 737, 36: 771 
 
 78. The resumption of marital relations 
 by a wife living separate from her husband, 
 and about to commence proceedings for di- 
 vorce against him, to which she was entitled 
 because of his wrongdoing, is a sufficient 
 consideration for his promise to convey 
 property in trust for the benefit of their 
 children, and, in the event of their death, 
 for her benefit. Moayon v. Moayon, 114 Ky. 
 855, 72 S. W. 33, 60: 415 
 
 79. A withdrawal of an action for divorce, 
 brought by the wife, is not sufficient to sup- 
 port a conveyance by defendant to plaintiff 
 of his interest in his father's estate as 
 against the claims of his creditors. Oppen- 
 heimer v. Collins, 115 Wis. 283, 91 N. W. 
 690, 60: 406 
 Extension of time. 
 
 See also supra, 30. 
 
 80. The extension of the time of payment 
 of a past-due note is a sufficient considera- 
 tion to support a promise by a guarantor to 
 pay it. Peterson v. Russell, 62 Minn. 220, 
 64 N. W. 555, 29: 612 
 Naming child for promisor. 
 
 81. The naming of a child for a promisor 
 in accordance with his previous request is a
 
 CONTRACTS, I. d, 1, 2. 
 
 669 
 
 sufficient consideration for a subsequent 
 promise to convey to the child a particular 
 tract of land because of such act. Daily v. 
 Minniok, 117 Iowa. .->fi:!. 01 N. W. 013. 
 
 60: 840 
 Services of unlicensed physician. 
 
 82. Services rendered by an unlicensed 
 physician under a contract which was void 
 in its inception because prohibited by stat- 
 ute do not constitute a consideration which 
 will support an express promise to pay for 
 the services. Puckett v. Alexander, 102 N. 
 C. 95, 8 S. E. 767, 3: 43 
 Marriage. 
 
 For Antenuptial Contract, see Husband and 
 Wife, 161. 
 
 When Action on Contract Barred, see Limi- 
 tation of Actions, 179. , 
 
 For Editorial Notes, see infra, VIII. 5. 
 
 83. Marriage is a valuable consideration 
 sufficient to support a conveyance from hus- 
 band to wife. Barnum v. Le Master, 110 
 Tenn. 638, 75 S. W. 1045, 69: 353 
 
 84. Marriage is a sufficient consideration 
 to support an antenuptial contract for re- 
 lease of dower. Shea's Appeal, 121 Pa. 302, 
 15 Atl. 629, 1: 422 
 
 85. Marriage is a sufficient consideration 
 to support a promise by the groom's father 
 to maintain the bride and her child in case 
 the groom fails to do so. Wright v. Wright, 
 114 Iowa, 748, 87 N. W. 709, 55: 261 
 
 86. The fact that a promise to marry was 
 made six years before the writing was 
 drawn and signed does not impeach the con- 
 sideration of the contract, as the written 
 instrument merges mere oral negotiations. 
 McNutt v. McNutt, 116 Ind. 545, 19 N. E. 
 115, 2: 372 
 
 d. Meeting of Minds; Definitenoss. 
 1. In General. 
 
 In Oil and Gas Lease, see Mines, 72. 
 Adoption of Contract on Telegraph Blank, 
 
 see Telegraphs, 75. 
 See also Principal and Surety, 40. 
 For Editorial Notes, see infra, VIII. 10. 
 
 Mistake or fraud. 
 
 87. Where a woman who could neither 
 read nor write signed an antenuptial con- 
 tract releasing dower, which she had pre- 
 viously refused to execute; and there was 
 no proof that it was read or explained to 
 her, or that she knew the contents; but 
 there was evidence indicating a mistaken 
 conception on her part of its nature, it will 
 not be enforced against her to bar her dow- 
 er. Shea's Appeal. 121 Pa, 302, 15 Atl. 629, 
 
 1: 422 
 Subscription. 
 
 88. A binding contract is made by a sub- 
 scription to secure tne location of a college 
 at a certain town, when the required amount 
 is subscribed, and the subscription accepted, 
 and the college located at that place, while 
 agencies are constituted and put to work to 
 carry out the enterprise. Rogers v. Gallo- 
 way Female College. 64 Ark. 627, 44 . W. 
 454, 39: 636 
 
 2. Mutuality. 
 
 Lack of, Preventing Injunctive Relief, see 
 Equity, 86. 
 
 Necessity of Alleging, see Pleading, 273. 
 
 As Affecting Specific Performance, see Spe- 
 cific Performance, 7-17. 
 
 For Editorial Notes, see infra, VIII. 10. 
 
 89. The element of mutuality is not want- 
 ing in a contract expressly assented to by 
 both parties, with consideration on both 
 sides. Pittsburg, C. C. & St. L. R. Co. v. 
 Cox, 55 Ohio St. 497, 45 N. E. 641, 35: 507 
 
 90. A contract by a man whose wife is 
 living separate from him, and about to be- 
 gin a suit for divorce because of his wrong- 
 doing, that, in case she will resume her mar- 
 ital relations, he will convey one third of 
 his property in trust for their children, and 
 for her in the event of their death, is not 
 void because it is not mutually binding up- 
 on the parties, and the remedy for its en- 
 forcement is not mutual to them. Moayon 
 v. Moayon, 114 Ky. 855, 72 S. W. 33, 60: 415 
 Sale of personal property. 
 
 Effect of Custom on Lack of Privity, see 
 Custom, 28. 
 
 Privity Between Seller or Manufacturer of 
 Article and Person Injured, see Drugs 
 and Druggists, 6; Negligence, I. b, 2. , 
 
 See also infra, 105. 
 
 91. A contract for the future delivery of 
 personal property is void for want of con- 
 sideration and mutuality, if the quantity 
 to be delivered is conditioned by the will, 
 wish, or want of one of the parties; but it 
 may be sustained if the quantity is ascer- 
 tainable otherwise, with reasonable certain- 
 ty. Cold Blast Transp. Co. v. Kansas City 
 Bolt & Nut Co. 52 C. C. A. 25, 114 Fed. 77, 
 
 57: 696 
 
 92. Tlie mutuality of a contract for the 
 purchase and sale of hops to be grown in 
 the future is not destroyed by a clause 
 leaving the purchaser free to reject those 
 tendered if they are not of proper quality 
 and in proper condition. Livesley v. John- 
 ston, 45 Or. 30, 76 Pac. 946, 65:783 
 
 93. Lack of mutuality does not render 
 void a contract for the purchase and sale of 
 phosphate rock, where one party agrees to 
 take from the other all his consumption of 
 such rock in his business as a fertilizer man- 
 ufacturer, for a term of yeara at a stipu- 
 lated price, which the other agrees to supply, 
 it being stated that the annual consumption 
 is estimated at a certain amount under nor- 
 mal conditions, but that the purchaser shall 
 be entitled to demand double that quantity 
 if required. Loudenback Fertilizer Co. v. 
 Tennessee Phosphate Co. 58 C. C. A. 220, 121 
 Fed. 298, 61:402 
 
 94. An agreement to furnish crushed 
 stone "in such quantities as may be desired," 
 to be "delivered on street" in a certain city, 
 without making any more definite provision 
 as to the quantity to be furnished, though it 
 is made with one who has a contract for 
 paving a street in that city, does not bind 
 the other party to furnish him at his option 
 all the stone needed for paving such street, 
 since it does not bind him to take such quan-
 
 670 
 
 CONTRACTS, I. d, 8. 
 
 tity. Hoffman v. Maffioli, 104 Wis. 630, 80 
 N. W. 1032, 47: 427 
 
 95. An unilateral promise or agreement in 
 writing to pay for specified osrsonal prop- 
 erty is binding if upon sufficient; considera- 
 tion; and the consideration need not be ex- 
 pressed if the case is not within the statute 
 of frauds. Horn v. Hansen, 56 Minn. 43, 
 57 N. W. 315, 22: 617 
 Sale of real property. 
 
 Effect of Accepting i)eed Poll, see Deeds, 34. 
 See also infra, 212, 213. 
 
 96. Want of mutuality is no defense, 
 even in an action for specific performance of 
 a unilateral contract for the sale of land, 
 where the party not bound thereby has per- 
 formed all the conditions of the contract and 
 brought himself clearly within its terms. 
 Bigler v. Baker, 40 Neb. 325, 58 N. W. 1026, 
 
 24: 255 
 
 97. The privilege of purchasing given a 
 lessee, in case the lessor makes a sale of the 
 premises, is not invalid on the ground that 
 it is wanting in mutuality, since this priv- 
 ilege is part of the consideration for accept- 
 ing the lease. Hayes v. O'Brien, 149 111. 403, 
 37 N. E. 73, 23: 555 
 Contract of employment. 
 
 For Editorial Notes, see infra, VIII. 10. 
 
 98. A contract for permanent employment 
 whereby one is induced to give up his own 
 similar business is not lacking in mutuality 
 because he does not bind himself to continue 
 in the employment. Carnig v. Carr, 167 
 Mass. 544, 46 N. E. 117, 35: 512 
 
 99. A contract whereby the first party 
 agrees to employ the second party to per- 
 form such work as he may assign to him 
 from time to time imposes no obligation on 
 the first party, and a provision therein for 
 the forfeiture of a specified sum by the 
 servant in case he shall leave the employ- 
 ment without a specified notice constitutes 
 no defense to an action by the latter for his 
 wages, as the contract is void for want of 
 mutuality. Vogel v. Pekoe, 157 111. 339, 42 
 N. E. 386, 30: 491 
 
 100. A railroad engineer employed under a 
 contract by which the employer agrees to 
 pay him according to specified rates for his 
 services, not to discharge him without just 
 cause, to promote him aecordinor to specified 
 grades of service, and when discharges of 
 engineers are made to discharge in the order 
 of juniority in service, may, in the absence 
 of any agreement by the engineer to stay 
 for any special time, be discharged at any 
 time because of the want of mutuality, not- 
 withstanding the implied undertaking on the 
 part of the company to retain him in its 
 service as long as he serves acceptably. St. 
 Louis, I. M. & S. R. Co. v. Mathews, 64 Ark. 
 398, 42 S. W. 902, 39: 467 
 
 3. Definiteness. 
 
 First Raising Question as to, on Appeal, see 
 Appeal and Error. 613. 
 
 Indefiniteness as AfTectinnr Specific Perform- 
 ance, see Specific Performance, 18-20. 
 
 For Editorial Notes, see infra, VIII. 26. 
 
 101. A contract to marry after the death 
 
 of the divorced wife of one of the parties 
 is reasonably definite and certain with re- 
 spect to the time of performance, since it 
 is made to depend upon an event which, in 
 the course of nature, must inevitably occur, 
 notwithstanding the fact that it is possible 
 that one of the contracting parties may die 
 before that event takes place. Brown v. 
 Odill, 104 Tenn. 250, 56 S. W. 840, 52: 660 
 
 102. A contract to take press reports for 
 a term of years at not more than $300 per 
 week, without making any other provision 
 as to price, is to indefinite to permit a re- 
 covery of anything more than nominal dam- 
 ages for its breach. United Press v. Xew 
 York Press Co. 164 N. Y. 406, 58 N. E.-527, 
 
 53: 288 
 
 103. A contract by sellers of ice to pur- 
 chase from another all the ice necessary 
 to carry on their business for a period of 
 five years is not void for uncertainty, and 
 their liability under it cannot be avoided 
 by the transfer of their business within that 
 period, so that they need no more ice under 
 the contract. Hickey v. O'Brien, 123 Mich. 
 611, 82 N. W. 241, 49: 594 
 
 104. A contract to mine ore in a certain 
 pit at a certain price per ton "as long as we 
 can make it pay" is too indefinite to entitle 
 the contracting parties to an allowance for 
 prospective profits in case their work is 
 stopped by the other party to the contract. 
 Davie v. Lumberman's Min. Co. 93 Mich. 491, 
 53 N. W. 625, 24: 357 
 
 105. A contract for its "reqiiirements" of 
 coal for a certain season, made by a lumber 
 company, is not void for uncertainty an 1 for 
 want of mutuality, when it was evidently 
 meant to call for the amount of coal which 
 the corporation should need in its business 
 for such season, and not merelv what it 
 misrht choose to require of the other party. 
 Minnesota Lumber Co. v. Whitebreast Coal 
 Co. 160 111. 85, 43 N. E. 774, 31 : 529 
 
 106. An agreement in a lease, that the les- 
 see shall have the privilege of purchasing 
 the premises upon such terms and at the 
 same price per acre as any other person or 
 purchaser may have offered, although it does 
 not bind the lessor to make any sale, is valid 
 and binding in favor of the lessee if the 
 lessor decides to sell, and is not incomplete 
 or indefinite. Hayes v. O'Brien, 149 111. 403, 
 37 N. E. 73, 23: 555 
 
 107. There is no lack of certainty or defi- 
 niteness in an agreement by which an em- 
 ployee, having been permanently injured in 
 the service of his master, and claiming the 
 injuries were caused by the latter's negli- 
 gence, is promised employment at such work 
 as he is able to perform so long as his serv- 
 ices are satisfactory to the foreman or su- 
 perintendent under whom he works, in con- 
 sideration of a release of his claim for dam- 
 ages, where this is supplemented by an 
 arrangement under which he is given em- 
 ployment as a watchman at a stipulated 
 wage per day. Rhoades v. Chesapeake & O. 
 R. Co. 49 W. Va. 41)4, 39 S. E. 209, 55: 170 
 
 108. An agreement to give a person per- 
 manent employment at stipulated wages if
 
 CONTRACTS, I. d, 4. 
 
 671 
 
 he would give up his business and enter the 
 services of the other party in the same occu- 
 pation is not too indefinite to be capable of 
 enforcement, when properly construe,! as a 
 contract to employ him so long as the em- 
 ployer was engaged in that business and had 
 work which the employee could do and de- 
 sired to do and was able to do satisfactorily. 
 Carnig v. Carr, 167 Mass. 544, 16 N. E. 117, 
 
 So: 512 
 
 109. Accepted orders for goods under a 
 contract which is void because of uncertain- 
 ty as to the quantity constitute sales of the 
 goods thus ordered, on the terms of the 
 contract; but they do not validate the agree- 
 ments as to articles which the one refuses 
 to purchase or the other refuses to sell or 
 deliver, under the void contracts, because 
 neither party is bound to take *or deliver 
 any amount or quantity of these articles 
 thereunder. Cold Blast Transp. Co. v. Kan- 
 sas City Bolt & Nut Co. 52 C. C. A. 25, 114 
 Fed. 77, 57: 696 
 
 109a. An accepted offer to sell or deliver 
 articles at specified prices during a limited 
 time, in such amounts or quantities as the 
 acceptor may want or desire in his business, 
 without any statement of the amount or 
 quantity, is without consideration and void, 
 because the acceptor is not bound to want, 
 desire, or take any. Id. 
 
 110. There is no agreement to furnish any 
 definite number of passengers, on the part of 
 one who writes to a steamship company for 
 rates saying that he is advised that upon 
 favorable terms a party of about 175 to 200 
 or more could be secured, and, after rates 
 have been sent him by the steamship com- 
 pany without mentioning any definite num- 
 ber, writes again that he is advised that 
 there is a "probability that there will be 
 250 people or more" in the party, although 
 the steamship company in reply "beg to 
 confirm' the understanding arrived at" that 
 not less than 75 first-class, 75 second-class, 
 and 100 third-class passengers shall be fur- 
 nished, where in reply to this he accepts the 
 rates and in regard to numbers reiterates 
 his former statement of a probability that 
 the party will exceed 250, adding that he 
 has not been furnished information as to the 
 exact number of each class. Barrow S. S. 
 Co. v. Mexican C. R. Co. 134 N. Y. 15, 31 
 N. E. 261, 17: 359 
 
 4. Offers and Their Acceptance or With- 
 drawal. 
 
 Option to Purchase Corporate Stock, see 
 
 Corporations, 430-438. 
 Burden of Proving Acceptance, see Evidence, 
 
 650. 
 
 Passing of Title, see Sale, 13-17. 
 Acceptance by Purchaser, see Sale, I. d. 
 Specific Enforcement of Option, see Specific 
 
 Performance, 11, 16, 17. 
 Vote by Town as Offer, see Towns, 23. 
 See also supra, 31, 109, 110; infra, 809. 
 For Editorial Notes, see infra, VIII. 10, 
 
 13. 
 
 111. The acceptance of an offer to furnish 
 coal for a year at a certain price to three 
 
 steamers named, which are then employed 
 on a certain steamship line, makes a defi- 
 nite and binding contract. Wells v. Alex- 
 andre, 130 N. Y. 642, 29 N. E. 142, 15: 218 
 
 112. If a notice that coal is needed is req- 
 uisite to the execution of a contract to sup- 
 ply certain steamers with coal for one year, 
 a covenant to give such notice will be in- 
 ferred. Id. 
 
 113. The nonexercise of an option at the 
 appointed time is not waived by a reply, by 
 the one who offered it, to a belated de- 
 mand that he comply with his offer, asking 
 time to consider, and a subsequent offer of 
 a compromise, which is rejected. Page v. 
 Shainwald, 169 N. Y. 246, 62 N. E. 356, 
 
 57: 173 
 
 Necessity of acceptance. 
 Offer of Reward, see Reward, 1. 
 See also infra, 305. 
 
 114. A mere proposal to sell land does not 
 become a sale until accepted, and notice of 
 acceptance given the proposer. Dyer v. 
 Duffy, 39 W. Va. 148, 19 S. E. 540, 24: 339 
 
 115. To make a vote of a corporation a 
 contract which will be binding on it, the 
 obligation which it undertakes to assume 
 must be offered to and accepted by the in- 
 tended beneficiary. Sears v. Kings County 
 Elev. R. Co. 152 Mass. 151, 25 N. E. 98, 
 
 9: 117 
 Sufficiency. 
 See also infra, 128. 
 For Editorial Notes, see infra, VIII. 10. 
 
 116. Acceptance of a contract by assent- 
 ing to its terms, holding it and acting upon 
 it, may be equivalent to a formal execution 
 by one who did not sign it. Sellers v. Greer. 
 172 111. 549, 50 N. E. 246, 40: 589 
 
 1 17. An acceptance of an offer to sell 
 crude oil of 15 degrees gravity, with the 
 added stipulation that it must be of that 
 gravity at 60 degrees Fahrenheit, is not, 
 sufficient to constitute a binding contract. 
 Four Oil Co. v. United Oil Producers, 145 
 Cal. 623, 79 Pac. 366, 68 : 226 
 
 118. If to the acceptance of a proposal a 
 condition be affixed by the party to whom 
 the offer is made, or any modification or 
 change in the offer be made or requested, 
 this will, in law, constitute a rejection of the 
 offer. Weaver v. Burr, 31 W. Va. 736, 8 S. 
 E. 743, 3: 94 
 
 119. An acceptance in writing of a formal 
 and carefully prepared option of sale of land, 
 within the time allowed by it for acceptance, 
 using the formal words, "according to terms 
 of the option given me," to which there is 
 added, by the conjunction "and," a request 
 for a departure from its terms as to the 
 time and place of performance, is uncondi- 
 tional, and converts the option into an ex- 
 ecutory contract of sale. Turner v. McCor- 
 mick, 56 W. Va. 161, 49 S. E. 28, 67: 853 
 
 120. A written offer of land at a certain 
 price for cash, giving a privilege of purchase 
 within sixty days, is not accepted so as to 
 make a binding contract by a letter an- 
 nouncing a determination to take the land, 
 and a readiness to pay therefor so soon as 
 it should be conveyed by proper deed. To 
 make the contract binding, there should
 
 672 
 
 CONTRACTS, I. e, 1. 
 
 have been an unconditional acceptance com- 
 municated, with payment or tender of 
 cash, within the sixty days. Weaver v. 
 Burr, 31 W. Va. 736, 8 S. E. 743, 3: 94 
 
 Withdrawal of offer. 
 See also supra, 72. 
 
 121. An agreement, without considera- 
 tion, giving an option to purchase real es- 
 tate, may be revoked at any time before it 
 is accepted, and a revocation is effected by 
 a sale and conveyance of the property to a 
 stranger. Frank v. Stratford-Handcock, 13 
 Wyo. 37, 77 Pac. 134, 67: 571 
 
 e. Formal Requisites; Statute of Frauds. 
 1. In General; Personal Property. 
 
 Parol Modification of Written Contract, see 
 
 infra, 756-758. 
 
 Necessity of Seal on Contract for Life An- 
 nuity, see Annuities, 8-10. 
 Oral Ante-nuptial Agreement as Considera- 
 tion for Note, see Bills and Notes, 39. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 331-335. 
 Parol Evidence to Vary Written Contract, 
 
 see Evidence, VI. 
 Oral Insurance Contract, see Insurance, 203, 
 
 204, 208. 
 Parol Modification of Insurance Contract, 
 
 see Insurance. 238. 
 Parol Assignment of Insurance Policy, see 
 
 Insurance, 720, 721. 
 Necessity of Pleading Statute of Frauds, 
 
 see Pleading, 498. 
 Mode of Raising Defense of Statute of 
 
 Frauds, see Pleading, 535, 536. 
 Specific Performance of Oral Contract, see 
 
 Specific Performance, I. b. 
 Parol Negotiations on Sunday, see Sunday, 
 
 28. 
 
 \s to Parol Trusts, see Trusts. 1. c. 
 See also supra, 4, 86; infra, 832, 833, 837. 
 For Editorial Notes, see infra, VIII. 11- 
 
 20. 
 
 122. A contract within the statute of 
 frauds is not void, but merely voidable. 
 Lowman v. Sheets, 124 Ind. 416, 24 N. E. 
 351, 7:784 
 
 123. Where a number of contracts are 
 made at the same time and as part of the 
 same transaction, some of which are within 
 the statute of frauds and the others not, 
 and they are of such a nature fi-it they can 
 reasonably be considered as separate, the 
 former will be enforced although the latter 
 are avoided. Td. 
 
 1'24. The party to be charged may waive 
 the necessity of the writing required by the 
 statute of frauds and thereby make the 
 contract binding. St. Louis, K. & N. W. 
 R. Co. v. Clark. 121 Mo. 169. 25 S. W. 192, 
 906, 26: 751 
 
 125. A court of equity cannot give effect 
 to a contract declared void by the statute of 
 frauds under the pretext of aiding an at- 
 tempt to execute a contract. Bloomfield 
 State Bank v. Miller. 55 Neb. 243. 75 N. W. 
 569. 44: 387 
 
 126. The exception of the statute of frauds 
 in reference to estates arising by act or op- 
 
 eration of law does not embrace cases where 
 the creation of the estate depends solely 
 upon the contract. Id. 
 
 Further writing contemplated. 
 Question for Jury as to, see Trial, 239, 240. 
 For Editorial Notes, see infra, VIII. 12, 
 13. 
 
 127. The fact that an express contract 
 contemplates another more formal contract 
 with a corporation in which the contractee 
 is largely interested does not affect its bind- 
 ing powers. Drummond v. Crane, 159 Mass. 
 577, 35 N. E. 90, 23: 707 
 
 128. Letters and telegrams which consti- 
 tute an offer and acceptance of a proposi- 
 tion complete in its terms may constitute 
 a binding contract, although there is an un- 
 derstanding that the agreement shall be ex- 
 pressed in a formal writing, and one of the 
 parties afterwards refuses to sign such an 
 agreement without material modifications. 
 Sanders v. Pottlitzer Bros. Fruit Co. 144 N. 
 Y. 209, 39 N. E. 75, 29: 431 
 Sale of personal property; manufacture. 
 Effect of Part Performance, see infra, 233, 
 
 234. 
 Payment on Contract within Statute, see 
 
 Assumpsit, 4. 
 Oral Evidence to Vary Written Contract, 
 
 see Evidence, 1069. 
 See also infra, 165, 185, 186, 195. 
 For Editorial Notes, see infra, VIII. 20. 
 
 129. A parol agreement to sell and assign 
 a bond and mortgage is a contract for the 
 sale of goods, wares, and merchandise, with- 
 in the statute of frauds. Greenwood v. Law 
 (N. J. Err. & App.) 55 N. J. L. 168, 26 Atl. 
 134, 19: 688 
 
 130. The oral promise of brokers, that if 
 their principal is dissatisfied with bonds 
 which they have purchased for him they will 
 take them off his hands at what they cost 
 him, upon request, is not a contract ^for the 
 sale of goods, things in action, etc.,* within 
 that section of the statute of frauds relat- 
 ing to sales of personal property for more 
 than $50; but is a provision for the re- 
 
 i scission of the entire contract, and is valid. 
 Johnston v. Trask, 116 N. Y. 136, 22 N. E. 
 377, 5: 630 
 
 131. A sale of growing grain to be deliv- 
 ered in a marketable condition, 'harvested 
 and threshed, where no part is delivered 
 and none of the purchase price is paid, is not 
 taken out of the statute of frauds by an ex- 
 ception as to personal property on which 
 "labor, skill, or money are necessarily to be 
 expended in producing or procuring the 
 same," if no special skill, labor, or work- 
 manship is necessary, but only such as a 
 good husbandman would be compelled to ex- 
 pend in fitting the grain for market. Mig- 
 hell v. Dougherty, 86 Iowa, 480, 53 N. W. 
 402, 17: 755 
 
 132. A contract to cut, furnish, and deliv- 
 er the stone work of a building is excepted 
 from the statute of frauds, under Cal. Civ. 
 Code, 1740, as "an agreement to manufac- 
 ture a thing from materials furnished by 
 the manufacturer or another person." 
 Flynn v. Dougherty, 91 Cal. 66P. 27 Pac. 
 1080, 14: 230
 
 CONTRACTS, I. e, 2. 
 
 678 
 
 133 A contract to furnish material and 
 attach it to realty after performing labor 
 thereon, making it a part of a building, is 
 not a sale of goods or chattels within the 
 statute of frauds. Brown & H. Co. v. Wun- 
 der, 64 Minn. 450, 67 N. W. 357, 32: 593 
 
 134. A contract for the manufacture of 
 articles of special and peculiar design, not 
 suitable for general trade, is not for the 
 sale of goods and chattels within the stat- 
 ute of frauds. Id. 
 
 135. A contract to manufacture a monu- 
 ment is not wit'hin the statute of frauds, 
 although there is no agreement to bestow 
 personal skill and labor upon it, or anything 
 to prevent the contractor from purchasing 
 it elsewhere in whole or in part, instead of 
 manufacturing it from his own quarry and 
 in his own shop. Forsyt-h v. Mann Bros. 68 
 Vt. 116, 34 Atl. 481, 32: 788 
 
 136. An oral contract to manufacture 
 and furnish ironwork for a brick building 
 according to special designs and measure- 
 ments, suitable only for use in that partic- 
 ular building, is not within the statute of 
 frauds as a sale of personal property. 
 Heintz v. Burkhard. 29 Or. 55, 43 Pac. 866, 
 
 31: 508 
 
 2. Collateral Contracts; Debts of Others. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 
 333. 
 
 See al!=o infra. 216; Principal and Agent, 70. 
 For Editorial Notes, see infra, VIII. 18. 
 
 137. The promise to accept an order of 
 another person, made to procure him credit 
 with a third person, is within the statute 
 of frauds. Allen v. Leavens. 26 Or. 164, 37 
 Pac. 488, 26: 620 
 
 138. A promise by a third person to pay 
 for articles if the seller, who is holding them 
 as security for the price, will turn them 
 over to the purchaser, is a collateral prom- 
 ise, and must be in writing if the original 
 purchaser is not thereby released. Gray v. 
 Herman, 75 Wis. 453, 44 N. W. 248, 6: 691 
 
 139. A promise by a board to pay for 
 heating apparatus for a public building, 
 made to induce the completion thereof by 
 the other party, who had already partly 
 furnished it under agreement with the chief 
 contractor for the building, who had made 
 default in payment, is an original, and not 
 a collateral, contract within the statute of 
 frauds. Gibson County v. Cincinnati Steam 
 Heating Co. 128 Ind. 240, 27 N. E. 612, 
 
 12: 502 
 
 140. An oral promise by the payee of a 
 note to save certain makers harmless is 
 within the statute of frauds. Mo. Rev. Stat. 
 1889, 5186. Hurt v. Ford. 142 Mo. 283, 44 
 S. W. 228, 41 : 823 
 
 141. Whether the contract is original or 
 collateral, where a man has indorsed a note 
 in blank as an accommodation, and has 
 written on the face the words "Credit the 
 drawer," if the note is for more than $50, 
 must be determined, under the Pennsylvania 
 statute of frauds of 1855, without regard 
 
 L.R.A. Dig. 43, 
 
 to any parol testimony. Temple v. Baker, 
 125 Pa. 634, 17 Atl. 516, 3: 709 
 
 142. A parol contract to pay another's 
 note to a third person is void under the 
 statute of frauds, although in consideration 
 of the promise the promisor receives a con- 
 veyance of real estate from a surety on the 
 note, which he had received from the maker 
 as indemnity against his liability thereon. 
 Lowe v. Turpie, 147 Ind. 652, 44 N. E. 25, 
 47 N. E. 150, 37: 233 
 Contracts with or between sureties. 
 
 For Editorial Notes, see infra, VIII. 18. 
 
 143. A special promise to answer for the 
 debt, default, or miscarriage of another, 
 within the statute of frauds, is made by 
 the promise of a father, upon inducing a 
 third person to become surety for his son, 
 to reimburse the surety if the son fails to 
 pay the debt. Hartley v. Sandford (N. J. 
 Err. & App.) 66 N. J. L. 627, 50 Atl. 454, 
 
 55: 206 
 
 144. An agreement by one person to in- 
 demnify another against loss if he will be- 
 come the surety upon the bond of himself 
 and another as administrators is not a col- 
 lateral promise, within the statute of frauds, 
 as to any liability opcasioned by the de- 
 fault of the other administrator, who did 
 not request such signature. Tighe v. Morri- 
 son, 116 N. Y. 263, 22 N. E. 164, 5: 617 
 
 145. A contract between cosureties fix- 
 ing the proportion and extent of their sev- 
 eral or correlative liability as between them- 
 selves is not within the statute of frauds. 
 Rose v. Wollenberg, 31 Or. 269, 44 Pac. 382, 
 
 39: 378 
 i By widow. 
 
 146. An oral promise by a wife, who is the 
 i beneficiary of her husband's certificate in a 
 I fraternal beneficiary society, to pay his 
 
 debts, is wit'hin the statute of frauds. 
 Fisher v. Donovan, 57 Neb. 361, 77 N. W. 
 778, 44: 383 
 
 146a. A promise by a widow who has ap- 
 propriated the estate of her deceased hus- 
 band to her own use, and thereby become lia- 
 ble for claims against it, to pay such a claim 
 and prevent suit, is not a promise to pay tne 
 debt of another within the statute of frauds. 
 French v. French, 84 Iowa, 655, 51 N. W. 145, 
 
 15: 300 
 By administrator. 
 
 147. A verbal promise by the administra- 
 tor of an estate holding a mortgage against 
 a third person, to pay taxes assessed against 
 the mortgagor if the collector will not levy 
 on the mortgaged property, upon which he 
 has no lien, is within the statute of frauds, 
 and not enforceable. Dillaby v. Wilcox, 60 
 Conn. 71, 22 Atl. 491, 13: 643 
 By infant. 
 
 148. The contract of a minor to repay 
 money borrowed of a bank is not so far void 
 that the contract of a third person to an- 
 swer for it on his default will be an original 
 contract, and not a collateral one, which 
 must be in writing under the statute of 
 frauds. Brown v. Farmers' & M. Nat. Bank, 
 88 Tex. 265, 31 S. W. 285, 33: 359
 
 674 
 
 CONTRACTS, I. e, 3, 4. 
 
 3. Not to be Performed within Year. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 
 332. 
 For Editorial Notes, see infra, VIII. 16. 
 
 149. The statute prohibiting the making 
 of contracts by parol whieh are not to be 
 performed within one year has no applica- 
 tion to a contract which has been fully per- 
 formed by one of the parties. Lowman v. 
 Sheets, 124 Ind. 416, 24 N. E. 351, 7: 784 
 
 150. The fact that an agreement whose 
 performance would otherwise extend beyond 
 a year may, by the happening of some con- 
 tingency, be completely performed within a 
 year, takes it out of the statute of frauds. 
 Carnig v. Carr, 167 Mass. 544, 46 N. E. 117, 
 
 35: 512 
 
 151. A parol agreement to keep and main- 
 tain cattle guards on each side of a person's 
 land, so long as a railroad is operated over 
 it, need not be in writing under a statute 
 requiring every agreement "not to be per- 
 formed within one year" to be in writing. 
 Arkansas M. R. Co. v. Whitley, 54 Ark. 199, 
 15 S. W. 465, ' 11: 621 
 
 152. Under a statute providing that a eon- 
 tract "not to be performed within a year" 
 must be in writing, an agreement to sell 
 corporate stock at the end of three years at 
 a certain price, and also that the stock may 
 be called *at any time before expiration of 
 three years, is valid although not in writing. 
 Seddon v. Rosenbaum, 85 Va. 928, 9 S. E. 
 326, 3: 337 
 Contract which may be ended by death with- 
 in year. 
 
 For Editorial Notes, see infra, VHI. 16. 
 
 153. If by its terms or by reasonable con- 
 struction, a contract not in writing can be 
 fully performed or if it can be performed 
 on one side within a year, although it can 
 be done only by the occurrence of some im- 
 probable event, as the death of the person 
 referred to, it is not within the statute of 
 frauds. Thomas v. Armstrong, 86 Va. 323, 
 10 S. E. 6, . 5: 529 
 
 154. A. promise to provide for the support 
 and education of a minor fourteen or fifteen 
 years old until he becomes twenty-one years 
 of age is not a contract "not to be performed 
 within a year," within the meaning of the 
 statute of frauds requiring such contracts 
 to be in writing, as it may be performed 
 within a year if the child should die within 
 that time. Wooldridge v. Stern, 42 Fed. 311, 
 
 9: 129 
 
 155. An agreement to give a pass to a man 
 and his family annually for ten years, and to 
 stop trains at his house to let them on and 
 off during that period, is not within the stat- 
 ute of frauds as an agreement which cannot 
 be performed within one year, since the 
 death of each member of the family within 
 the year would end the contract. Weather- 
 ford. Mineral Wells & N. W. R. Co. v. Wood. 
 88 Tex. 191, 30 S. W. 859. 28: 526 
 Contract to marry. 
 
 150. A contract to marry is not within the 
 provision of the statute of frauds requiring 
 agreements not to be performed within a 
 
 year to be in writing. Lewis v. Tapman, 
 90 Md. 294, 45 Atl. 459, 47:385 
 
 157. A contract to marry "within thre 
 years" may possibly be performed within 
 a year, and is therefore not within a pro- 
 vision of the statute of frauds as to "an 
 agreement not to be performed within a 
 year." Id. 
 Of partnership. 
 
 158. A contract forming a partnership to 
 be continued beyond one year is void unless 
 in writing; and a partnership so formed is a 
 partnership at will. Wahl v. Barnum, 116 
 N. Y. 87, 22 N. E. 280, 5: 623 
 Lease. 
 
 As to Leases Generally, see infra, 180-184. 
 Of Married Woman's Separate Estate, see 
 
 Husband and Wife, 134. 
 Term of Tenant Entering under Oral Lease, 
 
 see Landlord and Tenant, 38, 39, 41-43. 
 See also infra. 217. 
 For Editorial Notes, see infra, VTII. 19. 
 
 159. A parol lease of real estate for the 
 term of one year commencing in futuro is 
 invalid, under Minn. Gen. Stat. chap. 41, 
 tit. 2, being an agreement which by its 
 terms is not to be performed within one year 
 frem the making thereof. Jellett v. Rhode, 
 43 Minn. 166, 45 N. W. 13, 7: 671 
 
 160. A parol agreement made in March, 
 permitting one who was to take possession 
 of a farm as tenant April 1 next, under a 
 lease for one year, to use the ice in an ice 
 house thereon without charge, if he would 
 refill it so as to leave it filled when he sur- 
 rendered possession, is not void as not to be 
 performed within a year from the making of 
 it. Brown v. Throo'p, 59 Conn. 596, 22 Atl. 
 436, 13: 646 
 
 161. A lease made December 15, 1887, for 
 the year 1888, may be valid, although not in 
 writing, under Miss. Code, 1292, excepting 
 from the necessity of writing a lease for not 
 longer than one year. McCroy v. Toney. 66 
 Miss. 233, 5 So. 392, 2: 847 
 
 162. An oral lease of land for one year, 
 with the privilege of three, at an annual 
 rent, is for a longer period than a year 
 within the statute of frauds, notwithstand- 
 ing the lessee's option, since he could not 
 compel the execution of the lease for a year, 
 because the contract contemplates the exer- 
 cise of the option after the execution of the 
 lease. Hand v. Osgood, 107 Mich. 55, 64 N. 
 W. 867, 30: 379 
 
 ' 163. Although an oral agreement for an 
 extended lease after the expiration of an 
 existing one is void as extending beyond a 
 year, it may be considered as tending to 
 show that the holding was not upon the 
 terms of the original lease. Weber v. Pow- 
 ers, 213 111. 370, 72 N. E. 1070, 68: 610 
 
 4. Contracts as to Realty. 
 
 Sufficiencv of Writing as to, see infra, I. 
 e, 5. 
 
 Effect of Fraud or Part Performance, see in- 
 fra, I. e. 6. 6. 
 
 Invalidity of Xote Given as Forfeit in Case 
 of Nonperformance, see Bills and Notes, 
 15,
 
 CONTRACTS, I. e, 4. 
 
 675 
 
 Conflict of Laws as to, see Conflict of Laws. 
 335. 
 
 Allowance to Purchaser for Improvements 
 Made on Land, see Improvements, 7, 8. 
 
 Parol License, see License, I. 
 
 Specific Performance of, see Specific Per- 
 formance, I. b. 
 
 Parol Trusts in, see Trusts, I. c. 
 
 See also infra, 782. 
 
 For Editorial Notes, soe infra, VIII. 19. 
 
 164. The statute of frauds is in force in 
 the United States only where it has been 
 adopted by legislative enactment; and at 
 common law an oral contract for real es- 
 tate is valid. McKennon v. Winn, 1 Okla. 
 327, 33 Pac. 582, 22: 501 
 
 165. An entire contract relating to person- 
 al as well as real estate, if void as to the real 
 estate, under the statute of frauds, is void 
 as to the personal property a*lso. Pond v. 
 Sheean, 132 111. 312, 23 N. E. 1018, 8: 414 
 
 166. An agreement by a vendor, on rescis- 
 sion of a contract, to reimburse the other 
 party for expenditures upon the land, is not 
 within the statute of frauds. Houston v. 
 Sledge, 101 N. C. 640, 8 S. E. 145, 2: 487 
 
 167. A verbal agreement is not sufficient 
 to create a lien upon land in favor of a sure- 
 ty upon a note given to raise the money 
 with which to make payment therefor. Wood 
 v. Wood. 124 Ind. 545, 24 N. E. 751, 9: 173 
 
 108. An oral agreement will not be effec- 
 tual to surrender the equitable title of a 
 grantor who has delivered a deed to the 
 grantee upon certain conditions, thereby, 
 contrary to the supposition of both parties, 
 conveying the legal title. Darling v. Butler, 
 45 Fed. 332, 10: 469 
 
 As to boundaries. 
 
 169. 'Disputed boundaries between adjoin- 
 ing lands may be settled by express parol 
 agreement, executed immediately and ac- 
 companied by possession according to such 
 agreement. Teass v. St. Albans. 38 W. Va. 
 1, 17 S. E. 400, 19: 802 
 
 169a. A verbal agreement recognizing a 
 boundary line which is not then in dispute 
 is not binding as to the boundary. espe- 
 cially when made by a lessee who had no 
 authority to make any agreement on the 
 subioct. Northern Pine Land Co. v. Bigelow, 
 84 Wis. 157, 54 N. W. 496, 21: 776 
 
 169b. Where there is doubt or ignorance as 
 to the true locality of a boundary line, al- 
 though it might easily be removed by a sur- 
 vey, a parol agreement between adjoin- 
 ing owners fixing the line is not within the 
 statute of frauds. Galbraith v. Lunsford, 
 S7 Tenn. 89, 9 S. W. ,365, 1 : 522 
 
 Party wall. 
 
 170. A parol contract as to a party wall 
 which is not different from that which the 
 law makes is not void under Iowa Code, 
 3030, which provides that special agreement 
 about such walls must be in writing. Swift 
 v. Calnan, 102 Iowa, 206, 71 N. W. 233, 
 
 37:462 
 Partnership. 
 For Editorial Notes, see infra, VIII. 19. 
 
 171. An oral agreement of partnership in 
 the profits of buying nnd selling real prop- 
 
 erty is not within the statute of frauds. 
 Bates v. Babcock, 95 Cal. 479, 30 Pac. 605, 
 
 16: 745 
 Flower v. Barnekoff, 20 Or. 132, 25 Pac. 370, 
 
 11: 149 
 Reed v. Meagher, 14 Colo. 333, 24 Pac. 681, 
 
 9: 455 
 
 172. A partnership agreement to acquire 
 a leasehold interest in a particular mine, as 
 a necessary incident to the development of 
 the property and the extraction of ores 
 therefrom, is not within the statute of 
 frauds, although the interest in the mine 
 was to be acquired oy one who was to trans- 
 fer to the others their respective interests. 
 Reed v. Meagher, 14 Colo. 335, 24 Pac. 681, 
 
 9: 455 
 Easement; license. 
 
 173. An instrument creating an easement 
 is within the operation of the statute of 
 frauds. Nunnelly v. Southern Iron Co. 94 
 Tenn. 397, 29 S. W. 361, 28: 421 
 
 174. The right of drainage through the 
 lands of another is an easement requiring 
 for its enjoyment an interest in such lands, 
 which cannot be conferred except by deed or 
 conveyance in writing. Pifer v. Brown, 43 
 W. Va. 412, 27 S. E. 399, 49: 497 
 
 175. A parol grant of the right to attach 
 I booms to trees on the banks of a stream is 
 
 not valid as against a subsequent grantee 
 of the land. Smith v. Atkins, 110 Ky. 119. 
 60S. W. 930, 53:790 
 
 176. A parol license to do any act on the 
 land of another does not trench upon the 
 policy of the law which requires that con- 
 tracts respecting any title or interest in real 
 estate shall be by deed or in writing. It 
 gives the licensee no estate or interest in the 
 land, but excuses acts done which would be 
 trespass or otherwise unlawful. Hodgkins v. 
 Farrington, 150 Mass. 19, 22 N. E. 73, 
 
 5: 209 
 
 177. A paramount right to subject an- 
 other's land to a particular use, to enter up- 
 on it or maintain structures upon it without 
 the consent of the owner, is an interest in 
 the land which cannot pass without the for- 
 malities required by the statute. Id. 
 Fixtures. 
 
 178. A parol reservation of a barn when 
 conveying the real estate of which it is a 
 part, by absolute warranty deed, is ineffec- 
 tual to retain title in the grantor. Leonard 
 v. Clough, 133 N. Y. 292, 31 N. E. 93, 
 
 16: 305 
 
 179. A parol gift is ineffectual to transfer 
 title to a barn which is part of the real es- 
 tate. Id. 
 Lease. 
 
 Parol Waiver of Stipulation in, see infra, 
 758. 
 
 Admissibility of Lease not Complying with 
 Statute of Frauds, see Evidence, 916. 
 
 Lease of Married Woman's Separate Estate, 
 see Husband and Wife, 134. 
 
 Effect of Parol Surrender of Leased Prem- 
 ises, see Landlord nnd Tenant, 67. 
 
 Right to Distrain for Rent under, see Land- 
 lord and Tenant, 224. 
 
 See also supra, 159-163. 
 
 For Editorial Notes, sep infra, VIII. 19.
 
 676 
 
 CONTRACTS, I. e, 5. 
 
 180. Authority to execute a lease for a 
 term not exceeding three years may be con- 
 ferred by parol. Marshall v. Eugg, 6 Wyo. 
 270, 44 Pac. 700, 45 Pac. 486, 33: 679 
 
 181. That a lease was not signed by the 
 lessee as required by the statute of trauds 
 is not sufficient to protect him from an ac- 
 tion for waste committed during his occu- 
 pation of the premises. Id. 
 
 182. An action by a tenant against his 
 landlord for an alleged breach of a verbal 
 lease of the premises for five years cannot 
 be maintained where the landlord either de- 
 nies making the contract or pleads the stat- 
 ute of frauds in bar of the action, since no 
 testimony can be admitted to prove the parol 
 contract. Browning v. Berry, 107 N. C. 231, 
 12 S. E. 195, 10: 726 
 
 183. The words "two-thirds part at the 
 least of the thing demised," in the exception 
 as to leases for not more than three years, 
 in the statute of frauds, mean two-thirds 
 part of the rental value of the demised prem- 
 ises-, and not of the value of the fee. Child- 
 ers v. Lee, 5 X. M. 576, 25 Pac. 781, 12: 67 
 
 184. A contract with a tenant under a 
 lease for a year, to pay Kim for any build- 
 ings put up for his own use, at the end of 
 the tenancy, at their value at that time, is 
 not for an "interest in land, and need not be 
 in writing. South Baltimore Co. v. Muhl- 
 bach, 69 Md. 395, 16 Atl. 117, 1: 507 
 Sale of timber. 
 
 See also infra, 263. 
 
 For Editorial Notes, see infra, VIII. 19. 
 
 185. A parol sale of growing timber is 
 not within 4 of the statute of frauds in 
 Maryland. Leonard v. Medford. 85 Md. 666. 
 37 Atl. 365, 37:449 
 
 186. A sale of standing timber, whether 
 or not the parties contemplate its immediate 
 severance and removal by the vendee, is a 
 contract concerning an interest in lands 
 within the meaning of the statute of frauds, 
 and is voidable by either party if not in 
 writing. Hirth v. Graham, 50 Ohio St. 57, 
 33 N. E. 90, 19: 721 
 To convey or reconvey. 
 
 See also infra, 194. 
 
 187. A valid oral contract for the sale of 
 real estate, or an interest therein, can be 
 made in the absence of statutory restrictions. 
 McKennon v. Winn, 1 Okla. 327. 33 Pac. 582, 
 
 22: 501 
 
 188. A parol contract in consideration of 
 ;i deed to certain real estate to convey to the 
 grantor certain other real estate, of which 
 lie is not put in possession, is invalid under 
 the statute of frauds. Lowe v. Turpie, 147 
 Ind. 652. 44 N. E. 25. 47 N. E. 150, 
 
 37:233 
 
 180. An agreement to reconvey land which 
 had been conveyed as a mortgage, upon pay- 
 ment of the mortgage debt, is not a contract 
 for the sale of an interest in lands, within 
 the statute of frauds. Mussey v. Yates, 65 
 Vt. 449, 27 Atl. 167, 21: 516 
 
 190. An absolute title in fee simple cannot 
 be nullified by oral evidence of an alleged 
 extrinsic agreement by the grantee to re- 
 convey on n condition subsequent not in- 
 
 cluded in the writing. Brock v. Brock, 90 
 Ala. 86, 8 So. 11, 9: 287 
 
 191. Where there was no fraud in the ex- 
 ecution of a conveyance of land, equity can 
 not relieve against a breach, by the grantee, 
 of a contemporaneous parol promise to re- 
 convey the lands upon the happening of 
 certain contingency. IcL 
 Promise to devise. 
 
 For Editorial Notes, see infra, VIII. 17. 
 
 192. A parol agreement to adopt a child 
 as heir, and to leave her all one's property 
 at death, is within the statute of frauds, 
 where the estate at death consists of prop- 
 erty of which a parol transfer is not valid 
 under the statute. Austin v. Davis, 128 Ind. 
 472, 26 N. E. 890, 12: 120 
 
 193. An agreement to pay for personal 
 services by testamentary provision, which in- 
 cludes real estate as well as personal prop- 
 erty, is within the statute of frauds, and, 
 unless evidenced by writing, fails as to the 
 personalty as well as the real property. 
 Ellis v. Cary, 74 Wis. 176, 42 N. W. 252, 352, 
 
 4: 55 
 
 Pond v. Sheean, 132 HI. 312, 23 N. E. 1018, 
 
 8:414 
 
 194. A parol agreement to convey real es- 
 tate by will, made in settlement of a law- 
 suit, is not valid under the statute of frauds, 
 although the intended devisee in consequence 
 thereof gives up valuable rights. Swash v. 
 SharpsteSn, 14 Wash. 426, 44 Pac. 862, 
 
 32: 796 
 Promise by devisee. 
 
 195. A parol promise to a testator by the 
 sole beneficiary of his will, to dispose of a 
 portion of the property in favor of another 
 person, is invalid so far as it involves the 
 disposition of real property, or of personal 
 property of an amount which comes' within 
 the statute of frauds. Orth v. Orth, 145 Ind. 
 184, 42 N. E. 277, 44 N. E. 17, 32: 298 
 
 5. Sufficiency of Writing. 
 a. In General. 
 
 Showing Completed Agreement Satisfying 
 
 Statute, see Evidence, 915. 
 Necessity of Husband's Joining in Deed, see 
 
 Husband and Wife, 134. 
 See also Partnership, 83. 
 For Editorial Notes, see infra, VIII. 15. 
 
 195a. In the case of negligence in keeping 
 the records of proceedings of a city council 
 resulting in a contract by tne city, courts 
 will not hunt for technicalities to defeat 
 rights clearly grounded in equity, but will 
 give a liberal interpretation to writings 
 found, in order to satisfy the statute ot 
 frauds. Stevens v. Muskegon, 111 Mioh. 72. 
 69 N. W. 227, 36: 777 
 
 196. A written petition presented to the 
 city council for the privilege of laying a 
 private sewer in the public streets, specifi- 
 cs 11 y describing the route, followed by a 
 resolution of the council referring the mat- 
 ter to a committee, and the execution of a 
 bond by the petitioner referring to the pe- 
 tition and it approval. constitute a con- 
 tract in writing for the use of the streets
 
 CONTRACTS, I. e, 5. 
 
 677 
 
 sufficient to satisfy the statute of frauds. 
 
 Id. 
 
 Telegram. 
 For Editorial Notes, see infra, VIII. 15. 
 
 197. A telegram may constitute a suffi- 
 cient note or memorandum of a contract to 
 satisfy the statute of frauds, if, when read 
 in the light of all the surrounding circum- 
 stances, it plainly shows what the suoject 
 of the contract is, the parties thereto, and 
 the terms upon which it is made. Brewer 
 v. Horst-Lachmund Co. 127 Cal. 643, 60 Pac. 
 418, 50: 240 
 Several papers. 
 
 For Editorial Notes, see infra, VIII. 15. 
 
 198. The relation of several writings or 
 letters, to constitute a contract within the 
 statute of frauds, must appear from the 
 writings themselves, and cannot be estab- 
 lished by parol evidence. Ross v\ Allen, 45 
 Kan. 231, 25 Pac. 570, 10: 835 
 
 199. A written agreement for a sublease, 
 "to be made subject" to a lease not yet in 
 existence, but which is to be obtained, is not, 
 for that reason, insufficient under the stat- 
 ute of frauds after such lease is obtained in 
 writing. Freeland v. Ritz, 154 Mass. 257, 
 28 N. E. 226, 12: 561 
 
 200. A series of papers appearing to relate 
 to the same contract may constitute a suffi- 
 cient memorandum within the statute of 
 frauds, although only one of them is signed 
 by the party to be charged. Id. 
 
 201. The provision of the statute of frauds 
 in reference to a note or memorandum in 
 writing of an agreement for the sale and 
 purchase of goods, sfgned by the party to be 
 charged, does not require the whole agree- 
 ment to appear in a single writing; but it 
 may be made out from several instruments 
 or written memoranda referring one to the 
 other, and which, when connected, together 
 are seen to contain all the necessary ele- 
 ments. Louisville Asphalt Varnish Co. v. 
 Lorick, 29 S. C. 533, 8 S. E. 8, 2: 212 
 
 202. The omission of one or more of the 
 essential elements of a memorandum of the 
 sale of real property under the statute of 
 frauds, from a writing containing some of 
 the elements signed by the appointee in a 
 power of attorney to sell that particular 
 land, may be supplied by reference to the 
 power of attorney, which contains such ele- 
 ments. White v. Breen, 106 Ala. 159, 19 
 So. 59, 32: 127 
 
 203. Several different writings may be 
 read together as constituent parts of a 
 memorandum within the statute of frauds, 
 where, when they are viewed together in 
 the light of the situation and circumstances 
 of the parties at the time they were- writ- 
 ten, they show unmistakably that they re- 
 late to the same matter and constitute sev- 
 eral parts of the one connected transaction 
 although there is no express reference from 
 one to the other. Id. 
 
 204. Where a verbal order is given to an 
 agent tor goods, which he immediately en- 
 ters in a memorandum book, and the pur- 
 chaser subsequently writes to the other par- 
 ty: "Don't ship paint ordered through your 
 salesman: we have concluded not to handle 
 
 it," the written entry by the agent, taken 
 in connection with the letter, makes such a 
 note or memorandum in writing of the bar- 
 gain as will satisfy the requirements of the 
 statute of frauds. Louisville Asphalt Var- 
 nish Co. v. Lorick, 29 S. C. 533, 8 S. E. 8. 
 
 2: 212 
 
 Description of land. 
 See also Principal and Agent, 27. 
 
 205. A memorandum which does not show 
 that the property was located in any s^ate, 
 ;>ounty, or city, but is dated simply at 
 'Leavenworth," and describes the property 
 
 as being on Delaware street of some "'ity 
 proper," giving street numbers, but without 
 stating whether the property is real or per- 
 sonal, or mentioning the name of the owner, 
 is insufficient, iinder the statute of frauds, 
 as a contract for the sale of realty. Ross v. 
 Allen, 45 Kan. 231, 25 Pac. 570, 10: 835 
 
 206. A description of land as the portion 
 of a specified farm east of the right of way 
 of a certain railroad, which runs in a north- 
 erly and southerly direction, is sufficient to 
 identify the land, where the range, town- 
 ship, and section on which the land is situ- 
 ated are given. Hayes v. O'Brien, 149 111. 
 403, 37 N. E. 73, 23: 555 
 
 207. The description of property in an 
 agreement for its sale as "one one-and-one- 
 half -story frame dwelling houee with Karn 
 and outbuildings and all land now being 
 used in connection therewith, being about 7 
 acres more or less," situated on a certain 
 street in a certain town, is sufficient to war- 
 rant a decree for specific performance, where 
 the bill particularly describes the property, 
 and alleges that it is the same referred to in 
 the agreement, which is not denied by the 
 answer, and the evidence in regard to the 
 vendee's occupation and tender of purchase 
 money refers to the premises described in 
 the agreement. Sanders v. Bryer, 152 Mass. 
 141, 25 N. E. 86, 9: 255 
 
 208. A contract to purchase of a man "his 
 place" in a certain town, "containing 15 
 acres more or less," sufficiently describes the 
 property, where he resides on the premises 
 nnd owns no other real estate in that town. 
 Hodges v. Kowing, 58 Conn. 12, 18 Atl. 979, 
 
 7:87 
 
 209. The description of the property is 
 sufficient to uphold the contract, where the 
 agreement is to convey one third of all gran- 
 tor's estate, real, personal, or mixed, of 
 whatever kind or nature, belonging to him in 
 his own right, which he acquired under the 
 will of his mother, as well as all the other 
 estate otherwise acquired and now owned 
 by him. Moayon v. Moayon, 114 Ky. 855, 
 72 S. W. 33, 60: 415 
 
 6. Execution. 
 
 For Editorial Notes, see infra^ VIII. 11. 
 
 Acceptance as. 
 
 210. The acceptance by the master of a 
 written contract of employment signed by 
 the servant is equivalent to its formal exe- 
 cution by the former. Vpgel v. Pekoe, 157 
 111. 330. 42 N. E. 386, 30: 491 
 Agent's deed. 
 
 211. The deed of an agent executed in the
 
 678 
 
 CONTRACTS, I. e, 5. 
 
 presence and under the personal direction 
 of his principal is not within a statute of 
 frauds 'providing that an agent may sub- 
 scribe a deed when authorized by writing. 
 Bigler v. Baker, 40 Neb. 325, 58 N. W. 1020, 
 
 24: 255 
 Signature. 
 See also supra, 200; infra, 227-229. 
 
 212. A contract founded on a valuable con- 
 sideration, by which a landowner agrees to 
 sell his land to a third person for a specified 
 amount within a certain time, at the tatter's 
 option, is binding on the landowner although 
 signed by him alone; and if the offer is ac- 
 cepted within the time specified, the contract 
 will be specifically enforced against him or 
 his grantees with notice. Ross v. Parks, 93 
 Ala. 153, 8 So. 368,. 11: 148 
 
 213. The signature of the vendor to a con- 
 tract for the sale of real estate, which is 
 otherwise sufficient, is not necessary in or- 
 der to enable him to enforce it against the 
 vendee. Hodges v. Kowing, 58 Conn. 12, 18 
 Atl. 979, 7: 87 
 
 214. The indorsement by the principal of 
 a check given in part payment of the pur- 
 chase price of land is not a sufficient sub- 
 scription of the contract to make it binding 
 on him, where it was made by an agent not 
 having sufficient authority to bind the prin- 
 cipal, although the check was attached to 
 the contract. Thompson v. New South Coal 
 Co. 135 Ala. 630, 34 So. 31, 62: 551 
 
 215. A signed letter stating that the writ- 
 er remembers "of exhibiting a statement" 
 of another's resources is not sufficient to 
 make the letter a signed statement of them, 
 within the meaning of a statute providing' 
 that no action shall be brought on such a 
 statement unless it is signed, where the 
 statement on which the plaintiff relies was 
 exhibited by a third person, and there is 
 nothing in the letter to identify the one to 
 which it refers, and by the terms of the let- 
 ter the exhibited statement did not contain 
 the whole substance of the communication 
 upon the subject. Third Nat. Bank v. Steel, 
 129 Mich. 434, 88 N. W. 1050, 64: 119 
 
 216. Signing one's name in blank upon the 
 back of a promissory note to which he is not 
 a party, pursuant to an oral agreement to 
 guarantee its payment, although insufficient 
 of itsolf, will justify the holder to write a 
 contract of guaranty over the signature, and 
 thus satisfy the statute of frauds. Peterson 
 v. Russell, 62 Minn. 220, 64 X. W. 555. 
 
 29: 612 
 
 217. A lease for more than a year, void 
 under How. (Mich.) Stat. 6179. because 
 signed by a i --m other than the owner, 
 not thereunto authorized by the owner in 
 writing is not aided by the fact that a dupli- 
 cate lease retained by the owner was signed 
 by him. but never delivered to the lessee, or 
 known of by him. Chesebrough v. Pingree, 
 72 Mich. 438, 40 N. W. 747. 1 : 529 
 
 218. An instrument written and signed by 
 one person for another, in his presence nnd 
 by his direction., is sufficient to bind him, 
 under the statute of frauds, without any 
 written authority to sign for him. Morton 
 v. Murray. 176 111. 54, 51 N. E. 767, 43: 529 
 
 219. A signature to an agreement by a 
 president of a corporation who is also the 
 general manager may be sufficient when he 
 signs as president without signing also as 
 manager. Wells, F. & Co. v. Enright, 127 
 Cal. 669, 60 Pac. 439, 49: 647 
 
 c. Memorandum. 
 
 See also supra, 197, 201-205; infra, 281. 
 For Editorial Notes, see infra, VIII. 15, 
 20. 
 
 220. The memorandum of a contract for 
 the sale of land must show, without the aid 
 of parol proof, the essentials of the agree- 
 ment, including the subject-matter of the 
 sale, the terms, and the names or descrip- 
 tions of the parties^ Mentz v. Newwitter. 
 
 I 122 N. Y. 491, 25 N. E. 1044, 11: 97 
 
 221. The vote of the directors of a corpor- 
 ! ation assuming payment of the debt of a 
 i third person, duly recorded, is a sufficient 
 | memorandum in writing, and the signature 
 
 of the recording officer in attestation of the 
 minutes a sufficient signing of the party 
 to be charged, to satisfy the statute of 
 frauds. Lamkin v. Baldwin & L. Mfg. Co. 
 72 Conn. 57, 43 Atl. 593, 1042, 44: 786 
 
 222. A memorandum signed by a real-es- 
 j tate broker, which states the price to be 
 
 cash, but refers to additional terms of pay- 
 i ment, not evidenced by writing, but left in 
 parol, is insufficient to authenticate a con- 
 tract for the sale of land. Lester v. Heidt, 
 i 86 Ga. 226, 12 S. E. 214, 10: 108 
 
 Description of parties. 
 
 223. An auctioneer's memorandum of the 
 ; sale of lands, which fails to state the name 
 I of the vendor or give any description by 
 ! which he or she can be identified, is fatally 
 ' defective. Ment?: v. Xewwitter, 122 N. Y. 
 i 491, 25 N. E. 1044, 11:97 
 
 224. A memorandum of sale of land which 
 1 neither names nor describes the vendor, al- 
 j though naming certain persons as auction- 
 eers, is insufficient under the statute of 
 frauds. McGovern v. Hern, 153 Mass. 308. 
 26 N. E. 861, 10: 815 
 
 225. A memorandum of a contract for the 
 sale of lands is fatally defective where it 
 does not name or describe the purchaser. 
 Lewis v. Wood. 153 Mass. 321. 26 N. E. 862. 
 
 11 : 143 
 Deed in escrow. 
 
 226. A deed placed in escrow, but not de- 
 livered, cannot be regarded as a sufficient 
 memorandum of a parol agreement for tne 
 land to satisfy the statute of frauds where 
 it does not recite the terms of the contract. 
 Kopp v. Reiter. 146 111. 437. 34 N. E. 942, 
 
 22: 273 
 Signature. 
 Parol Evidence of -Signing as Agent for 
 
 Purchaser, see Evidence, 1236. 
 See also supra. 200, 212, 219, 221. 
 For Editorial Notes, see infra, VIII. 15. 
 
 227. A memorandum of the sale of land, 
 not siyntd by the vendor or by anyone 
 for him. is fatally defective. Ross v. Al- 
 len. 45 Kan. 231, 25 Pac. 570. 10: 835 
 
 228. A memorandum of an order for the
 
 CONTRACTS, I. e, (5. 
 
 679 
 
 purchase of goods, signed by the agent of 
 the buyer, Avith a written acceptance signed 
 by the* agent of the seller, may constitute 
 a valid contract within the statute of 
 frauds. Gerli v. Poidebard Silk Mfg. Co. 
 (N. J. Err. & App.) 57 X. J. L. 432. 31 Atl. 
 401, 30: 61 
 
 229. A contract signed in the name of 
 a firm is not such a memorandum under 
 the statute of frauds as will make the oral 
 acceptance thereof by a subsequent mem- 
 ber of the linn binding upon him, where 
 the contract comes within the statute. 
 Hughe? v. Gross, 166 Mass. 61, 43 N. E. 
 1031, 32: 620 
 
 6. Elfect of Fraud or Part Performance. 
 a. In General. 
 
 For Editorial Notes, see infra. VIII. 14, 
 16. 
 
 230. In a suit by one partner for an ac- 
 counting of the profits realized under a 
 parol agreement, after the same has been 
 executed, a partner who has received the 
 entire profits is estopped from claiming 
 that the agreement is void under the stat- 
 ute of frauds. Flower v. Barnekoff, 20 Or. 
 132, 25 Pac. 370, 11: 149 
 
 231. An oral agreement between husband 
 and wife for the disposal of their prop- 
 erty by will in a certain manner, the mak- 
 ing of one will being the inducement to the 
 making of the other is after such wills 
 have been made, and the wife, after the 
 husband's death, has had and used personal 
 property given her by his will valid by 
 reason of part performance, and will be 
 sustained to prevent her from disposing of 
 real estate which the husband willed to 
 her, otherwise than in accordance with her 
 will. Carmichael v. Carmichael, 72 Mich. 
 76, 40 N. W. 173, 1 : 596 
 
 232. After her death, leaving it unper- 
 formed, such a contract may be enforced 
 against her representatives. Gilpatrick v. 
 Glidden, 81 Me. 137, 16 Atl. 464, 2: 662 
 Sales of chattels. 
 
 For Editorial Notes, see infra, VIII. 20. 
 
 233. A delivery and acceptance sufficient 
 to satisfy the statute of frauds is not ef- 
 fected by a seller of tomatoes in cans, giv- 
 ing the buyer two cans as samples, which 
 the latter takes away with him, where 
 they are not included in the bulk of the 
 sale. Richardson v. Smith, 101 Md. 15, 60 
 Atl. 612. 70: 321 
 
 234. A delivery and acceptance of sample 
 cans of tomatoes cannot be held to be 
 symbolic of the bulk which is the subject 
 of the contract, so as to satisfy the stat- 
 ute of frauds, where the seller expressly 
 insists that the terms are f. o. b. at point 
 of shipment with sight draft, bill of lading 
 attached. Id. 
 Marriage. 
 
 See also infra, 251. 
 
 235. Marriage is not such part perform- 
 ance of an oral promise as to avoid the 
 statute of frauds. Peek v. Peek. 77 Cal. 
 106, 19 Pac. 227, 1: 185 
 
 236. Marriage constitutes such part per- 
 formance by a woman of a contract in con- 
 sideration of marriage as to prevent the 
 operation of the statute of frauds in re- 
 spect to the contract. Nowack v. Berger, 
 133 Mo. 24, 34 S. W. 489. 31:810 
 Adoption; performing services. 
 
 See also infra, 253-256. 
 
 237. Performance of services under a 
 parol agreement which is within the stat- 
 ute of frauds is not sufficient to take the 
 agreement out of the statute. Ellis v. 
 Cary, 74 Wis. 176, 42 N. W. 252, 352, 
 
 4: 55 
 
 238. Performance, on the part of a girl, 
 of a parol contract to live with a inan and 
 his wife during their lives in consideration 
 of their agreement to leave her all their 
 property, will not take the agreement out 
 of the statute of frauds. Austin v. Davis, 
 128 Ind. 472, 26 N. E. 890, 12: 120 
 
 239. An oral contract to give a niece all 
 one's property at death if she will come 
 to live with him and take care of him 
 can be enforced in equity after she has 
 fulfilled her contract. Owens v. McNally, 
 113 Cal. 444, 45 Pac. 710, 33: 369 
 
 240. A contract to leave property to an 
 adopted child as an heir is taken out of 
 tne statute of frauds by its complete per- 
 formance on the part of the child. Wright 
 v. Wright, 99 Mich. 170, 58 N. W. 54, 
 
 23: 196 
 
 241. An oral contract for the adoption of 
 a child as an heir may be recognized and 
 enforced after performance of the considera- 
 tion. Nowack v. Berger, 133 Mo. 24, 34 
 S. W. 489, 31 : 810 
 
 242. An oral contract to adopt a child 
 and make her an heir is made valid by 
 part performance, where it has been car- 
 ried out by assumption and continuance 
 of the parental relation for ten years and 
 until the death of the adopting parents. 
 Kofka v. Rosicky, 41 Neb. 328, 59 N. W. 
 788, 25: 207 
 
 243. The surrender of a child by his 
 mother to the custody and control of a man 
 whom she marries, in pursuance of an oral 
 contract by which, in consideration of the 
 marriage and of the services of the child, the 
 husband agrees to give the child a share 
 of his estate equal to that which an heir 
 would inherit, constitutes an independent, 
 additional, and valuable consideration 
 which will amount to part performance of 
 the contract, and take the case out of the 
 operation of Mo. Rev. JSiat. 1889, 5186. 
 prohibiting an action on a contract in con- 
 sideration of marriage unless it is in writ- 
 ing. Xowack v. Berger, 133 Mo. 24, 34 S. 
 W. 489, 31 : 810 
 
 fc< Contracts Relating to Real Property. 
 
 Specific Enforcement of Contract, see Spe- 
 cific Performance, I. b. 
 See also supra, 169. 
 For Editorial Notes, see infra, VIII. 19. 
 
 244. A consideration previously received 
 may constitute a sufficient performance of 
 an oral promise to convey land to take it
 
 680 
 
 CONTRACTS, I. e, 6. 
 
 out of the statute of frauds. Daily v. Min- 
 nick, 117 Iowa, 563, 91 N. W. 913, 60: 840 
 
 245. Mere acceptance of a portion of the 
 purchase money is not sufficient to take 
 a contract for the sale of land out of the 
 statute of frauds, where the statute re- 
 quires, not only the payment of the pur- 
 chase money, but the placing of the pur- 
 chaser in possession. Thompson v. New 
 South Coal Co. 135 Ala. 630, 34 So. 31, 
 
 62: 551 
 
 246. The purchase by promisor of a tract 
 of land, and his declaration that it is the 
 land he intends to convey in fulfilment of 
 his promise, are sufficient to render cer- 
 tain his promise to convey to an infant 
 a certain quantity of land in case ' he is 
 named for him. Daily v. Minnick, 117 
 Iowa, 563, 91 N. W. 913, 60: 840 
 
 247. Although a parol agreement to ac- 
 quire the interests of all the. tenants in 
 common of real estate, convert the same 
 into money, and pay over to each his 
 pro rata share of the proceeds, is not en- 
 forceable under the statute of frauds, yet, 
 if the agreement is carried out so far that 
 the title is acquired and the property con- 
 verted into money, a trust will arise to pay 
 over the proceeds. The trust, however, is 
 not enforceable at law, unless the trustee 
 has affirmatively recognized his duty to 
 make the payment. Collar v. Collar, 86 
 Mich. 507, 49 N. W. 551, 13: 621 
 
 248. Part performance of a parol agree- 
 ment to convey to a cotenant an interest 
 in lands is not made out by the fact that 
 he had completed similar oral agreements 
 with other cotenants by paying for their 
 shares and receiving conveyances, where the 
 agreements with the cotenants were sev- 
 eral. Graves v. Goldthwait, 153 Mass. 268, 
 26 N. E. 860, 10: 763 
 
 249. The construction of a ditch by one 
 over another's land in accordance with a 
 parol agreement between them that the lat- 
 ter will give the right of way if the former 
 will construct the ditch, which, when com- 
 pleted, is to be used by both in irrigat- 
 ing their respective tracts of land, will give 
 the former a vested right of way by pur- 
 chase for the ditch over the latter's land, 
 which will be protected by injunction. 
 Flickinger v. Shaw, 87 Cal. 'l26, 25 Pac. 
 268, 11:134 
 
 250. An agreement between brothers and 
 sisters to whom land has descended in com- 
 mon, that the same shall be held by them 
 as joint tenants and pass to the survivor 
 by devise or descent, and at the death of 
 the last survivor shall pass by devise or 
 descent to the child of the only married one 
 of them, is sufficiently performed to be 
 taken out of the operation of the statute 
 of frauds by its substantial keeping by 
 all the parties thereto until the land has 
 become vested in the survivor, who has 
 received all the fruits thereof which are 
 to come to her, and to make it enforceable 
 by such child. Murphy v. Whitney, 140 
 X. Y. 541, 35 N. E. 930, 24: 123 
 
 Marriage. 
 
 See also supra, 235, 236. 
 
 251. Where defendant was induced to 
 marry plaintiff's father upon his oral prom- 
 ise to convey land to her, which he never 
 intended to do, but conveyed to plaintiff 
 without consideration on the morning of 
 the marriage with defendant, whom he 
 shortly afterwards deserted, his fraud takes 
 the case out of the operation of the stat- 
 ute of frauds. Peek v. Peek, 77 Cal. 106, 
 19 Pac. 227, l : 185 
 Naming child for grantor. 
 
 252. Naming a child for grantor is suf- 
 ficient performance of consideration to take 
 an oral agreement to convey land to him 
 in consideration thereof out of the stat- 
 ute of frauds, where payment of the pur- 
 chase money, or part thereof, is allowed to 
 do so. Daily v. Minnick, 117 Iowa, 563, 91 
 N. W. 913, 60: 840 
 Adoption; performing services. 
 
 See also supra, 237-243. 
 
 253. Full performance of the considera- 
 tion of a contract for real estate, by car- 
 ing for and supporting the owner until 
 death and then providing for her burial, ig 
 sufficient to take the contract out of the 
 statute of frauds, even as to a piece of 
 real estate included in the property of 
 which actual possession has not been taken 
 under the contract, where there is no evi- 
 dence that anyone else had or claimed 
 possession of it, and there is evidence that 
 the owner had surrendered entire posses- 
 sion of the property, including herself, 
 to the other party to the contract. Bryson 
 v. McShane, 48 W. Va. 126, 35 S. E. 848, 
 
 49: 527 
 
 254. An oral agreement to give property 
 by will to children who become members 
 of the household of tne promisor and give 
 him their services, and also sell real estate 
 at a sacrifice and pay over the proceeds 
 to him, in consideration of his promise, is 
 taken out of the statute of frauds by the 
 fact that the value of their society and 
 services cannot be measured in money, and 
 they cannot be restored to the former posi- 
 tion with respect to their property. Svan- 
 burg v. Fosseen, 75 Minn. 350, 78 N. W. 4, 
 
 43: 427 
 
 255. Becoming a member of a man's fam- 
 ily, and taking his name, and living with 
 him as his child until his death, under a 
 parol promise by him to leave all his prop- 
 erty, real, personal, and mixed, to such 
 child, is not such a part performance of 
 the contract as to make it amount to a 
 fraud to refuse performance of the promise 
 on the ground that it is within the stat- 
 ute df frauds. Pond v. Sheean, 132 111. 312, 
 23 N. E. 1013, 8: 414 
 
 256. Performance of services such as su- 
 perintending repairs on a building, pro- 
 curing tenants, and collecting rents is not 
 sufficient to entitle one to specific per- 
 formance of an oral promise in considera- 
 tion of such services to convey an inter- 
 est in the land for which the property 
 
 ;sll lie oxchanged, the contract being void
 
 CONTRACTS, II. a. 
 
 681 
 
 under the statute of frauds. Russell v. 
 Briggs, 165 N. Y. 500, 59 N. E. 303, 53: 556 
 Promise to reconvey. 
 
 257. The mere breach of an oral agree- 
 ment to reconvey lands conveyed is not suf- 
 ficient standing alone, to establish that 
 fraud in procuring the title which is re- 
 quired to render the grantee a trustee ex 
 maleficio. Brock v. Brock, 90 Ala. 86, 8 
 So. 11, 9: 287 
 
 258. A case in which it is claimed that a 
 deed reciting a valuable consideration was 
 given actually without one and merely in 
 trust is not taken out of the statute of 
 frauds by proof of the mere failure to com- 
 ply with an alleged parol promise to re- 
 convey, as such failure is not evidence of 
 fraudulent intent in the grantee. Nor can 
 the case be taken out of the statute by 
 acts of the grantee under the depd. Feeney 
 v. Howard, 79 Cal. 525, 21 Pac. 984, 
 
 4: 826 
 
 Possession and improvement. 
 Evidence as to Improvements, see Evidence, 
 
 2083. 
 Term of Tenant Entering under Oral 
 
 Lease, see Landlord and Tenant, 38, 39, 
 
 Collusiveness of Parol Contract as to 
 Amount of Rent, see Landlord and Ten- 
 ant, 193. 
 
 See also Landlord and Tenant, 38. 
 
 For Editorial Notes, see infra, VIII. 19. 
 
 259. Joint residence of husband and wife, 
 after marriage, on land which he orally 
 promised to convey to her in consideration 
 of marriage, does not avoid the statute of 
 frauds. Peck v. Peck, 77 Cal. 106, 19 Pac. 
 227, 1 : 185 
 
 260. A purchaser's agreement to take pos- 
 session of land as part of the consideration 
 for a promised conveyance does not destroy 
 the effect of possession as a part perform- 
 ance of an oral contract taking the case 
 out of the statute of frauds. Puterbaugh 
 v. Puterbaugh, 131 Ind. 288, 30 N. E. 519, 
 
 15: 341 
 
 261. Possession of one who entered as a 
 tenant must be clearly shown ,to result from 
 the contract, and not from the lease, in or- 
 der to take a verbal contract of purchase 
 out of the statute of frauds. Bigler v. 
 Baker, 40 Neb. 325, 58 N. W. 1026, 24: 255 
 
 262. The parol assignment of a lease 
 which at the time has more than a year 
 to run, followed by the placing of the as- 
 signee in possession and his recognition by 
 the lessor, is not sufficient to take the case 
 out of the statute of frauds, so as to en- 
 able the lessor to maintain an action 
 against the assignee for rent which -becomes 
 due after he has abandoned the premises. 
 Chicago Attachment Co. v. Davis Sewing 
 Mach. Co. 142 111. 171, 31 N. E. 438, 15: 754 
 
 263. Placing the purchaser in full pos- 
 session of timber under an oral purchase, 
 and his commencing performance of the con- 
 tract, will prevent the seller from repudiat- 
 ing the contract on the ground that it is 
 void under 17 of the statute of frauds. 
 Leonard v. Medford, 85 Mo, 660, 37 Atl. 
 365, 37:449 
 
 264. Mere retention by a judgment debt- 
 or of the possession of land which has been 
 sold under an execution against him, in 
 accordance with a parol contract by which 
 the execution purchaser agreed to reconvey 
 the land upon being repaid the amount of 
 his bid, is not such part performance as to 
 take the contract out of the statute of 
 frauds. Emmel v. Hayes, i02 Mo. 186, 14 
 S. W. 209, 11: 323 
 
 265. The making of such improvements 
 as occur in the ordinary course of hus- 
 bandry will not take a contract for land 
 out of the statute of frauds, where the pur- 
 chaser was already in possession. Id. 
 
 266. Lasting and valuable improvements 
 upon premises made by one in possession 
 under a parol agreement of purchase, is a 
 sufficient part performance, notwithstand- 
 ing default of payment, to defeat an ac- 
 tion of ejectment. Bigler v. Baker, 40 Neb. 
 325, 58 N. W. 1026, 24:255 
 
 267. Where parties to a written contract 
 for the exchange of lands have exchanged 
 possession, but have not executed deeds, a 
 parol rescission of the contract, followed 
 by part performance by restoration of pos- 
 session by one of the parties, will be en- 
 forced against the other. Boggs v. Bod- 
 kin, 32 W. Va. 566, 9 S. E. 891, 5: 245 
 
 II. Construction. 
 a. In General. 
 
 Strict Construction of Contract Limiting 
 Carrier's Liability, see Carriers, 868. 
 
 Exemptions in Carrier's Favor, see Car- 
 riers, 936, 937. 
 
 By Court, where Relief Sought is Be- 
 yond its Jurisdiction, see Courts, 16. 
 
 Parol Evidence as to Meaning of Parties 
 to Contract, see Evidence, VI. e. 
 
 Of Power of Attorney, see Principal and 
 Agent, 25. 
 
 Question for Court or Jury as to, see Trial, 
 II. c, 6. 
 
 Construction of Will, see Wills, III. 
 
 For Editorial Notes, see infra, V11I. 21- 
 24. 
 
 268. The statutes and the settled law 
 of the land at the time a contract is made 
 become a part of it, and must be read in- 
 to it. Deweese v. Smith, 45 C. C. A. 408, 
 106 Fed. 438, 66: 971 
 
 269. A contract is to be construed in the 
 light and with the knowledge of surround- 
 ing circumstances. Remy v. Olds (Cal.) No 
 Off. Rep. 34 Pac. 216, 21: 645 
 
 270. A jury is not bound to adopt the 
 construction of a contract which will ren- 
 der it legal if it is equally capable of one 
 which will render it illegal if other evidence 
 in the case tends to show illegality. Unit- 
 ed States Fidelity & G. Co. v. Charles, 131 
 Ala. 658, 31 So.' 558, 57: 212 
 
 271. Commercial contracts must be in- 
 terpreted in tne light of commercial usages, 
 and their performance must be such as busK
 
 CONTRACTS, II, a. 
 
 ness men would naturally contemplate. 
 Kauffman v. Raeder, 47 C/C. A. 278, 108 
 Fed. 171, 54: 247 
 
 272. Whatever may fairly be implied 
 from the terms or nature of an instrument 
 is, in judgment of law, contained in it. 
 Lawler v. Murphy, 58 Conn. 294. 20 Atl. 
 457, 8: 113 
 
 273. Whatever is necessary to be done 
 in order to accomplish work specially con- 
 tracted to be performed is parcel of the con- 
 tract, though not specified. Id. 
 
 274. If it appears that au ambiguous 
 term in a contract has an established mean- 
 ing among those engaged in the business 
 to which the contract has reference, and 
 unless it is given that meaning it is indefi- 
 nite and equivocal, it should be treated, in 
 interpreting the contract, as used according 
 to that understanding. Metropolitan Ex- 
 hibition Co. v. Ewing, 42 Fed. 198. 7: 381 
 
 275. The words "or" and "and" in a con- 
 tract will be changed to read "and" and 
 "or," where it is plain they were so intend- 
 ed. Bettman v. Harness. 42 W. Va. 433, 
 26 S. E. 271, 36: 566 
 
 276. A construction most beneficial to the 
 promisee will be adopted if other things 
 are equal, when the terms of an instru- 
 ment and the relation of the parties leave 
 it doubtful whether words are used in an 
 enlarged or a restricted sense. Webster v. 
 Dwelling House Ins. Co. 53 Ohio St. 558, 
 42 N. E. 546, 30: 719 
 
 277. Public contracts should be con- 
 strued liberally in favor of the public. 
 Muncie Natural Gas Co. v. Muncie, 160 Ind. 
 97, 66 N. E. 436, 60: 822 
 Punctuation. 
 
 278. Punctuation marks do not control 
 the words of a contract, but are controlled 
 by the words. Holmes v. Phenix Ins. Co. 39 
 C. C. A. 45, 98 Fed. 240, 47: 308 
 Construing as a whole. 
 
 Construing Mortgage with Note Secured, 
 
 see Bills and Notes, 46. 
 For Editorial Notes, see infra, VIII. 21. 
 
 279. The proper construction of a con- 
 tract is not dependent on any name given 
 to the instrument by the parties, or on any 
 one provision, but upon the entire body of 
 the contract and the legal effect of it as a 
 whole. Arbuckle Bros. v. Kirkpatrick. 98 
 Tenn. 221, 39 S. W. 3, 36: 285 
 
 280. The meaning of a contract is to be- 
 gathered from consideration of all its 
 parts, and no provision Is to be wholly dis- 
 regarded as inconsistent with other pro- 
 visions unless no other reasonable construc- 
 tion is possible. Germania F. Tns. Co. v. 
 Roost, 55 Ohio St. 581, 45 N. E. 1097. 
 
 36: 236 
 
 281. A telegram by an agent to his prin- 
 cipal, announcing a purchase of hops, and 
 asking a confirmation thereof, should be 
 read in connection with the answer thereto, 
 in determining whether the telegrams con- 
 stitute a sufficient memorandum of the 
 f-ontract of purchase to satisfy the stat- 
 ute of frauds. Brewer v. Horst-Lachmund 
 Co, 127 Cal. 643. 60 Pac 418, 50: 240 
 
 282. In construing a contract, each of its 
 provisions must be considered in connec- 
 tion with the others, and, if possible, ef- 
 fect must be given to all. McKay v. Bar- 
 nett, 21 Utah, 239, 60 Pac. 1100, * 50: 371 
 
 283. If two writings of different dates, 
 made between the same parties and relat- 
 ing to the same subject-matter, are not 
 different from each other in legal effect, 
 though different in terms, and the later 
 in date is, among other things, a receipt 
 for a sum of money mentioned in the other 
 and to be paid, and therefore a voucher, 
 passed between the parties in performance 
 of the first agreement, such first agree- 
 ment is not discharged by the execution 
 of the latter; and resort may be had to 
 both instruments in ascertaining the rights 
 and liabilities of the parties. Rhoades v. 
 Chesapeake & 0. R. Co. 49 W. Va. 494, 39 
 S. E. 209, 55: 170 
 Intention of parties; construction given by 
 
 them. 
 See also infra, 351. 
 
 284. The intention of parties cannot be 
 imported into a contract, where its terms 
 are plain and unambiguous, and they do 
 not express it. Cold Blast Transp. Co. v. 
 Kansas City Bolt & Nut Co. 52 C. C. A. 
 25, 114 Fed. 77, 57: 69(i 
 
 285. The intention of the parties to a 
 contract, if manifest, will control regard- 
 less of careless recitals or inapt expressions. 
 Rockefeller v. Merritt. 40 U. S. App. 660. 
 76 Fed. 909, 22 C. C. A. 608, 35: 63:^ 
 
 286. A court of law should read a writ- 
 ten contract according to the obvious in- 
 tention of the parties, in spite of clerical 
 errors or omissions which can be corrected 
 by perusing the whole instrument. Wallis 
 Iron Works v. Monmouth Park Asso. (X. 
 J. Err. & App.) 55 N. J. L. 132, 26 Atl. 140, 
 
 19: 456 
 
 287. Courts of equity, as well as courts 
 of law, mus.t construe written contracts 
 according to the intention of the parties 
 as expressed by their terms, and where 
 there is doubt or ambiguity as to the in- 
 tention of the parties they may take in- 
 to consideration the surrounding facts and 
 circumstances, but cannot make contracts 
 for the parties. Atchison, T. & S. F. R. 
 Co. v. Chicago & W. I. R. Co. 162 111. 632. 
 44 N. E. 823, 35: 167 
 
 288. The situation of the parties when 
 a contract is made, its subject-matter, and 
 the purpose of its execution, are always 
 material to determine the intention of the 
 parties and the meaning of the terms they 
 used, and when these are- ascertained they 
 must prevail over the dry words of the 
 agreement. Kauffman v. Raeder, 47 C. C. 
 A. 278, 108 Fed. 171, 54: 247 
 
 289. In construing a contract, before the 
 rule for choosing between two meanings 
 of a word or expression can properly be 
 applied, it must be determined that the 
 meaning intended by the parties is ob- 
 scure, viewing such word or expression in 
 the light of the whole contract and from the 
 standpoint of the parties when it was
 
 CONTRACTS, II. b. 
 
 683 
 
 made. Ulliiuin v. Chicago & X. W. R. d>. 
 112 Wis. 150, 88 X. W. 41. r>(i: iMC, 
 
 290. The construction put upon the con- 
 tract by the parties may be looked to in 
 determining its legal effect, if the language 
 employed leaves the true meaning in doubt. 
 Webster v. Clark, 34 Fla. 637, 16 So. 601, 
 
 27: 126 
 
 291. The interpretation which the parties 
 themselves have put upon an indefinite 
 or ambiguous contract will be adopted by 
 the courts. Vfncennes v. Citizens' Gas- 
 light & C. Co. 132 Tnd. 114, 31 N. E. 573. 
 
 16: 485 
 
 292. The construction which the parties 
 themselves place upon a contract will be 
 adopted by the court, when its terms are 
 uncertain. Union Trust Co. v. Richmond 
 City R. Co. 154 Ind. 291, 55 TS. E. 745, 
 
 48: 41 
 
 293. An ambiguous contract may be in- 
 terpreted by the surrounding facts and cir- 
 cumstances and the practical construction 
 which the parties have given it. Sattler 
 v. Hallock. 160 1ST. .Y. 291, 54 N. E. 667, 
 
 46: 679 
 
 So as to uphold contract, and prevent for- 
 feiture. 
 
 294. If a contract is of doubtful meaning 
 and one construction would make it legal 
 and another illegal, the courts are bound 
 to adopt that construction which will not 
 impute to the parties an intention to vio- 
 late the law. Equitable Loan & Security 
 Co. v. Waring, 117 Ga. 599, 44 S. E. 320, 
 
 62: 93 
 
 295. While the construction placed upon 
 a contract by one of the parties only is 
 not controlling, still, where a contract is 
 capable of being construed eitner as legal 
 or illegal, and either party, and especially 
 the party upon whom the main obligation 
 rests, has uniformly placed that construc- 
 tion upon the contract which would render 
 it legal, this fact mav be properly consid- 
 ered in determining the validity of the 
 contract. Id. 
 
 296. The rule for judicial construction, 
 that where the meaning of language in 
 a contract is doubtful, and either of two 
 meanings is within the reasonable scope 
 thereof, the one should be taken for the 
 meaning intended by the parties which is 
 in harmony, rather than the one which is 
 out of harmony, with common-law rights, 
 cannot properly be invoked for the purpose 
 of determining the contractual intention of 
 the parties, merely because a particular, 
 significant word used by them, as an ab- 
 stract proposition, may have either, of two 
 meanings. Ullman v. Chicago & X. W. R. 
 Co. 112 Wis. 150, 88 X. W. 4L 56: 246 
 
 297. While forfeitures are not unlawful 
 the law does not favor them, and all am- 
 biguities in a contract are to be resolved 
 against their existence: but where a con- 
 tract in unmistakable terms provides for 
 a forfeiture, and is otherwise free from 
 legal infirmity, neither a court of law 
 nor a court of equity will relieve against 
 the forfeiture. Equitable Loan & Secur- 
 
 ity Co. v. Waring. 117 Ga. 59!). 44 S. E. 
 320, 62: 93 
 
 Conflict between printed and written pro- 
 visions. 
 
 298. Unless the conflict between two re- 
 pugnant provisions in a contract, the one 
 written and the other printed, is irrec- 
 oncilable, the rule that the former must 
 control the interpretation of the contract 
 in case of repugnant provisions does not 
 apply; but the contract will be so con- 
 strued as to give effect to every word 
 and expression contained therein. Kratz- 
 enstein v. Western Assur. Co. 116 N. Y. 
 54, 22 N. E. 221, 5: 799 
 
 b. Entirety. 
 
 Agreement for Separation as to Property 
 
 Rights, see Divorce and Separation. 
 
 131. 
 Of Insurance Contract, see Insurance, III. 
 
 e, 1, f. 
 See also supra, 165; infra, 582, 681, 682. 
 
 747; Bills and Xotes, 2. 
 For Editorial Notes, see infra, VTII. 21. 
 
 299. A hiring for one year with monthly 
 payment of wages is an entire contract. 
 Larkin v. Hecksher (N. J. fcup.) 51 N. J. 
 L. 133, 16 Atl. 703, 3: 137 
 
 300. A contract to hire a person for a 
 year for a certain sum per week, payable 
 weekly, is entire and indivisible. Olm- 
 stead v. Bach, 78 Md. 132, 27 Atl. 501, 
 
 22: 74 
 Rev'g on Rehearing, 25 Atl. 343, 18: 53 
 
 301. A contract to lay a sidewalk 10 
 feet wide, without stating the number of 
 feet in length, is not entire so as to pre- 
 vent a recovery upon a quantum meruit. 
 Katz v. Bedford, 77 Cal. 319, 19 Pac. 523, 
 
 1: 826 
 
 302. The discounting of three notes 
 amounting to more than $11,000, under a 
 promise to "use, say $10,000 of the paper," 
 does not constitute an entire transaction 
 which will prevent a rescission of the con- 
 tract as to one of the notes only, after 
 learning of the insolvency of the maker. 
 Bank of Antigo v. Union Trust Co. 149 111. 
 343, 36 N. E. 1029. 23: 611 
 
 303. A contract to purchase and sell all 
 the phosphate rock consumed by a manu- 
 facturer of fertilizer for a series of years 
 is entire. Loudenback Fertilizer Co. v. 
 Tennessee Phosphate Co. 58 C. C. A. 220. 
 121 Fed. 298, 61: 402 
 
 303a. A contract by which a person is to 
 have full charge and control of the real- 
 estate advertising business in the daily, 
 Sunday, and weekly editions of a news 
 paper, the owner to receive certain rates, 
 the plaintiff to have all above those rates 
 that he might receive for advertising, the 
 contract to continue for five years, is an 
 entire and indivisible contract, so that any 
 taint of illegality in it avoids the whole. 
 Hence, inasmuch as it requires the main- 
 tenance of a Sunday newspaper for the 
 length of time contracted for, the whole 
 contract is void and inoperative where the
 
 CONTRACTS, II. c, d, 1. 
 
 publishing, issuing, and circulating a Sun- 
 day newspaper is illegal. Handy v. Globe 
 Pub. Co. 41 Minn. 188, 42 N. W. 872, 
 
 4: 466 
 
 c. Time. 
 
 As to Time of Payment, see Payment, 36. 
 To Accept Proposal of Sale under Power 
 
 of Attorney, see Principal and Agent, 
 
 26. 
 For Delivery of Goods Sold, see Sale, 31- 
 
 33. 
 
 For Unloading Vessel, see Shipping, 9, 10. 
 As to Delivery of Telegram, see Telegraphs, 
 
 46. 
 
 See also infra, IV. f. 
 For Editorial Xotes, see infra, VIII. 21. 
 
 304. A reasonable time for performance 
 is implied in a contract which expresses no 
 time for performance. Whiting v. Gray, 27 
 Fla. 482, 8 So. 726, 11: 526 
 
 305. In unilateral contracts called op- 
 tions, the time fixed for acceptance is of 
 the essence of the contract. Dyer v. Duffy, 
 39 W. Va. 148, 19 S. E. 540, 24: 339 
 
 306. Time is not of the essence of a con- 
 tract for the sale of real estate, unless 
 made so by the express agreement of the 
 parties, or by the nature of the contract it- 
 self, or by the circumstances under which it 
 was made. Courts of equity will ordinarily 
 infer that interest on the deferred pay- 
 ments will be a sufficient compensation for 
 the delay. Frink v. Thomas, 20 Or. 265, 
 25 Pac. 717, 12: 239 
 
 307. Time is of the essence of a subscrip- 
 tion contract to pay money for the cost of 
 a railroad in consideration of its equipment, 
 and the running of trains on or before a 
 specified date, and the subscription cannot 
 be enforced if the road is not completed by 
 the time specified. Garrison" v. Cooke, 96 
 Tex. 228, 72 S. W. 54, 61 : 342 
 
 308. Although there is no stipulation in 
 the contract that time shall be essential, 
 or anything in the nature or circumstances 
 of the agreement to make it so, it can 
 nevertheless be made so by a performance, 
 or tender of performance, by one party, and 
 a demand of the other. Frink v. Thomas, 
 20 Or. 265, 25 Pac. 717, 12: 239 
 
 309. A contract to repurchase stock "at 
 the end of two years," if the holder so 
 desires, does not require him to give no- 
 tice on the first day after the expiration 
 of the two years, that he requires the 
 promisor to repurchase it, but he has a 
 reasonable time to give such notice. La 
 Dow v. E. Bement & Sons, Ii9 Mich. 685, 
 79 1ST. W. 1048, 45: 479 
 
 310. The words "or as soon thereafter as 
 vessel can be ready," following a provi- 
 sion in a contract for delivering lumber at 
 a certain time, where no particular vessel 
 was in view, but one was to be chartered 
 for the purpose, mean a reasonable time 
 for chartering the vessel and having it 
 ready to receive the lumber. Whiting v. 
 Gray, 27 Fla. 482, 8 So. 726, 11: 526 
 
 311. A contract for a municipal water 
 
 supply, which is void because perpetual 
 and therefore in excess of the powers of 
 the municipal corporation, cannot be con- 
 strued to have been intended to exist mere- 
 ly for the lifetime of the water company, 
 and to be valid because such term was not 
 unreasonable. Westminster Water Co. v. 
 Westminster, 98 Md. 551, 56 Atl. 990, 
 
 64: 630 
 
 d. Particular Words, Phrases, and Cases. 
 1. Miscellaneous. 
 
 In Contractor's Bond, see Bonds, 18, 19. 
 
 Of Bond of Bank Clerk, see Bonds, 44. 
 
 Bond for Fidelity of Cashier, see Bonds, 37, 
 38. 
 
 Bond for Fidelity of Assistant Cashier, see 
 Bonds, 40. 
 
 Contract Limiting Carrier's Liability, see 
 Carriers, 928, 937, 938. 
 
 As to Voting of Corporate Stock, see Cor- 
 porations, 666. 
 
 Parol Evidence as to Meaning of Par- 
 ticular Words, see Evidence, 1136-1141. 
 
 Insurance Contract, see Insurance, III. d. 
 
 Contract of Partnership, see Partnership, 
 5-14. 
 
 To Pay for Party Wall, see Party Wall, 5- 
 7. 
 
 As to Conditions Subsequent Relating to 
 Realty, see Real Property, I. a, 2. 
 
 Testamentary Character of Instrument, see 
 Wills, I. a, 2. 
 
 See also infra, 532. 
 
 For Editorial Notes, see infra, VIII. 
 21, 23. 
 
 Not to enter competitive business; joint 
 
 and several. 
 See also infra, 329, 338. 
 
 312. An agreement not to engage in a 
 competitive business, evidenced by a letter, 
 signed by the firm name, giving an option 
 for the purchase of a business and its good 
 will, describing the vendors as "We, the 
 undersigned," doing business under the firm 
 name, and containing a clause, "We also 
 agree that we .will not directly or indirect- 
 ly engage in" a competitive business, and a 
 writing signed by all the members of the 
 firm, extending the option, which is at- 
 tached to and made part of the original 
 option, is both joint and several, and 
 binds the firm and each of its members. 
 Trenton Potteries Co. v. Oliphant (N. J. 
 Err. & App.) 58 N. J. Eq. 507, 43 Atl. 723, 
 
 46: 255 
 
 313. A contract by which a partnership 
 making a sale of its business binds itself 
 by the partnership name not to re-engage 
 in such business for a certain period with- 
 in the same place, though signed by the in- 
 dividual partners, does not preclude them 
 from again re-engaging in such business as 
 individuals. Steichen v. Fehleisen, 112 
 Iowa, 612.. 84 X. W. 715, 51: 412 
 
 314. Parties are bound individually by a 
 clause in an agreement selling a partner- 
 ship business, that "we agree and bind our- 
 selves not to enter into or conduct" a
 
 CONTR1CT8, II. d, 1. 
 
 685 
 
 similar business in the territory covered 
 by the business sold, which is signed by 
 them in tneir individual names. Raymond 
 v. Yarrington, 96 Tex. 443, 73 S. W. 800, 
 
 62: 962 
 As to liability for injury. 
 
 315. A contract between the owner of a 
 building and a corporation renting offices 
 therein, that "the landlord shall not be re- 
 sponsible for any loss or injury arising 
 from or during the use or operation of the 
 elevator," does not apply in case of in- 
 jury to an officer of the corporation, who 
 was injured while using the elevator un- 
 der the general invitation to persons hav- 
 ing business in the building, although he 
 attested the contract and was therefore 
 aware of its contents. Griffen v. Manice, 
 166 N. Y. 188, 59 X. E. 925, % 52: 922 
 To pay bill of expenses for relief ofc certain 
 
 person. 
 
 316. A promise to pay a judgment and 
 the damages and costs which a town may 
 incur in case it assumes the defense of a 
 suit for the value of supplies furnished 
 the mother of the promisor is not shown by 
 a letter promising to "pay the bill" of ex- 
 penses incurred in her relief. Freeman v. 
 Dodge, 98 Me. 531, 57 Atl. 884, 66: 395 
 To pay draft. 
 
 317. A telegram by a bank offering to 
 pay a draft by a certain person for $2,000 
 means to pay it at the bank's place of busi- 
 ness, and imposes no obligation to accept a 
 draft for $2,000 "with exchange" on another 
 place. Lindley v. First Nat. Bank, 76 Iowa, 
 629, 41 N. W. 381, 2: 709 
 To deliver money. 
 
 318. Tender of a check is not a compli- 
 ance with a contract by a telegraph com- 
 pany to. promptly transmit and deliver 
 money. Robinson v. Western U. Teleg. Co. 
 24 Ky. L. Rep. 452, 68 S. W. 656, 57: 611 
 To furnish gas. 
 
 319. The word "lamp" as used in a con- 
 tract for the furnishing and use of natural 
 gas is to be construed with reference to 
 the context, the time, place, and habits of 
 the people with reference to which it is 
 used, and the popular understanding of the 
 word in the localities where natural gas 
 is generally used. Saltsburg Gas Co. v. 
 Saltsburg, 138 Pa. 250, 20 Atl. 844, 10: 193 
 To establish college. 
 
 320. A contract to establish a college "in" 
 a certain town does not require it to be 
 placed within the corporate limits when a 
 large number of the inhabitants of the 
 town dwell beyond such limits. Rogers v. 
 Galloway Female College, 64 Ark. 627, 44 
 S. W. 454, 39 .'636 
 
 321. A contract to establish a college 
 "at" a certain town does not require that 
 it should be placed within the corporate 
 limits. Id. 
 To establish depot. 
 
 322. An agreement on the part of a rail- 
 road company to establish a station at a 
 particular point is not one to keep it there 
 forever, but is made subject to tne general 
 contingencies of business, the public inter- 
 est, and the change, modification, and 
 
 growth of transportation routes as they 
 may affect the requirements of the railroad 
 company's business. Texas & P. R. Co. v. 
 Scott, 23 C. C. A. 424, 41 U. S. App. 624, 
 77 Fed. 726, 37 : 94 
 
 For use of street railway. 
 
 323. A street railway company which by 
 contract has provided for the running of 
 cars by another company over its tracks to 
 a depot which it uses for a steam railroad 
 is not, without express provisions, re- 
 strained thereby from the sale of its fran- 
 chises, and road to a rival of the other 
 company, although the purchaser proceeds 
 under the franchise to construct a line be- 
 tween the depot and a ferry which had 
 previously been reached only by such other 
 company. Prospect Park & C. I. R. Co. 
 v. Coney Island & B. R. Co. 144 N. Y. 152, 
 39 N. E. 17, 26: 610 
 Certificates. 
 
 324. A promise to pay certificates on con- 
 dition that all certificates of similar im- 
 port should be paid pro rata, and no pref- 
 erence given to any of them over others, 
 entitles the holder of such certificates, when 
 all the others have been surrendered and 
 extinguished, only to such amount, if any, 
 as was paid on the others, if they were sur- 
 rendered without fraud or collusion. 
 Pistel v. Imperial Mutual L. Ins. Co. 88 
 Md. 522, 42 Atl. 210, 43:219 
 
 325. A provision in a certificate of an 
 investment association requiring the holder 
 to surrender it, whenever called, upon pay- 
 ment of its redemption value, which is 
 declared to be the full amount paid in, 
 with interest at 8 per cent per annum, 
 and its proportionate share of profits 
 earned in excess of 8 per cent per annum, 
 does not authorize the redemption of any 
 certificate until it has earned at least 8 
 per cent interest on the amounts paid in. 
 Equitable Loan & Security Co. v. Waring, 
 117 Ga. 599, 44 S. E. 320, 62: 93 
 
 326. In construing a contract of an in- 
 vestment association the statements con- 
 tained in the certificate evidencing the 
 contract must control, where there is a va- 
 riance between them and other statements 
 in the advertising literature of the com- 
 pany. Id. 
 With carrier. 
 
 See also supra, 310. 
 
 For Editorial Notes, see infra, VIII. 23. 
 
 327. The words "in case of accident" be- 
 ing used in a bill of lading, referring to 
 events involving damage to the subject of 
 carriage for which the carriar would be lia- 
 ble, and later in the contract the words 
 "negligence aforesaid" being used in regard 
 to the producing cause of injuries to the 
 subject of carriage, without any precedent 
 language other than the words "in case of 
 accident" to which such words can reasona- 
 bly refer, leaving such latter expression 
 without significance except by reference to 
 the former expression, such latter expres- 
 sion should be taken as pointing to the 
 former under the rule for judicial construc- 
 tion, that every word or expression in a 
 contract should be given some significance
 
 CONTRACTS, II. d, 2. 
 
 if that can reasonably be done. Ullman v. 
 
 Chicago & N. W. R. Co. -112 Wis. 150, 88 
 
 N. W. 41, 56: 246 
 
 Subscription. 
 
 Subscriber's Right to Recover Back Money, 
 
 see Subscription. 
 For Editorial Notes, see infra, VIII, 22. 
 
 328. A letter to the board of supervisors 
 of a county agreeing to pay $1,000 toward 
 the erection of a soldiers' monument, pro- 
 vided $2,000 is raised by tax within a cer- 
 tain time, is a conditional subscription 
 which becomes absolute when the condition 
 as to raising the money by tax is per- 
 formed. La Fayette County Monument 
 Corp. v. Magoon, 73 Wis. 627, 42 N. W. 17, 
 
 3: 761 
 
 328a. The city of Philadelphia, within 
 which was to be erected a monument to 
 Washington by the condition of subscrip- 
 tions ' to the fund raised for that purpose 
 by the Cincinnati Society in 1810, was not 
 limited to the corporate limits of Philadel- 
 phia at that time, but included the coter- 
 minous, built-up territory identified in the 
 popular mind as the city, although formed 
 into boroughs and districts having separate 
 legal organizations. Re Washington Monu- 
 ment Fund, 154 Pa. 621, 26 Atl. 647, 
 
 20: 323 
 
 329. The obligation of subscribers to a 
 contract for the construction of a creamery 
 at a stated price, who sign their names, 
 without any specification of amounts, at the 
 end of a subscription paper after the names 
 of other subscribers who have specified with 
 each name the amount subscribed, is, prima 
 facie at least, several, and not joint, and 
 each is liable for his proportion of that part 
 of the total amount of the subscription 
 which has not been provided for by the sub- 
 scription of specific amounts. Cornish v. 
 West, 82 Minn. 107, 84 N. W. 750, 52: 355 
 
 330. A contract between a creamery sup- 
 ply firm and those agreeing to subscribe for 
 the erection of a butter factory, by which 
 the former was to erect and complete the 
 factory and the latter to pay the contract 
 price, creates a several liability on the part 
 of each subscriber to the amount of his sub- 
 scription only; but the interests of the sub- 
 scribers are joint in so far that all must 
 unite in order to repudiate and renounce 
 the contract. Gibbons v. Bente, 51 Minn. 
 499, 53 N. W. 756, 22: 80 
 
 2. As to Transfer of Property. 
 a. Real Property. 
 
 Construction of Deed as to Boundary, see 
 Boundaries, II. 
 
 Deed of Standing Timber, see Timber, 10. 
 
 Contracts as to Real Property Generally, 
 see Vendor and Purchaser. 
 
 Contract for Good or Marketable Title, see 
 Vendor and Purchaser, I. c. 
 
 Contracts as to Quantity of Land, see Vend- 
 or and Purchaser, I. d. 
 
 331. A plain and unequivocal promise to 
 convey land to a person if she will go upon 
 
 and improve it means to give the property 
 absolutely, and to execute a deed therefor. 
 Burlingame v. Rowland, 77 Cal. 315, 19 Pac. 
 526, 1 : 829 
 
 332. An agreement of husband and wife 
 to convey by deed or will all their property, 
 both real and personal, which they may own 
 at the time of their death, will include all 
 they own jointly or separately. Svanburg 
 v. Fosseen, 75 Minn. 350, 78 N. W. 4, 
 
 43: 427 
 
 333. An executory contract by a corpora- 
 tion to sell franchises, with a stipulation to 
 secure and transfer additional rights of way, 
 cannot be construed as part of the same 
 contract with an executed sale of stock of 
 the corporation, made by persons in their in- 
 dividual capacity. Blagen v. Thompson, 23 
 Or. 239, 31 Pac. 647, 18: 315 
 
 334. A grandchild of one granting land 'to 
 a railroad company, who has ceased to be a 
 member of the latter's household, has no 
 rights under a clause in the deed entitling 
 the grantor and his family to free passage 
 over the road as long as the granted land 
 shall continue to be used for railroad pur- 
 poses under the charter of the grantee. 
 Dodge v. Boston & P. R. Co. 154 Mass, 299, 
 28 N. E. 243, 13: 318 
 
 335. A grant of a right of way through 
 property suitable only for residence pur- 
 poses, to secure the transfer of a railway 
 station from a point some distance from a 
 town into it, will not include the right to 
 locate thereon stock pens which will be a 
 nuisance to adjoining property, although 
 such property is unimproved at the time of 
 the grant, and the deed states that the land 
 granted may be used for the transaction of 
 all business connected with the railway, or 
 incident thereto. Missouri, K. &.T. R. Co. 
 v. Mott, 98 Tex. 91, 81 S. W. 285, 70: 579 
 As to price. 
 
 336. The contract mode of ascertaining 
 the price must be pursued when it is speci- 
 fied in the contract. Woodruff v. Woodruff 
 (N. J. Ch.) 44 N. J. Eq. 349, 16 Atl. 4, 
 
 1: 380 
 
 337. The limit to which the court will go 
 in fixing the price is to ascertain it when 
 the contract simply provides that it shall 
 be fair. Id. 
 
 338. A joint promise by the purchasers of 
 real estate to pay the price cannot be modi- 
 fied by a mistaken construction placed upon 
 the writing by the holder and makers, that 
 each is to be liable for his share only. Sully 
 v. Campbell, 99 Tenn. 434, 42 S. W. 15, 
 
 43: 161 
 
 339. Under a conveyance of land in con- 
 sideration of a contract obligating the ven- 
 dee to perform certain services for the vend- 
 or, conditioned upon the vendee's retaining 
 the title to the property during the term 
 the services are to be performed, and further 
 obligating himself in case of a sale thereof 
 to pay the vendor a certain sum of money 
 and to two other persons, strangers to the 
 transaction, other specified sums, the vendor 
 taking a mortgage on the land to secure 
 the performance of the contract, the total 
 consideration named therein being the ag-
 
 CONTRACTS, II. d, 2. 
 
 687 
 
 gregate of all the contingent payments, and 
 the mortgage being so drawn as to indicate 
 the terms of such contract, though it went 
 to the vendor only, tne vendee, upon sell- 
 ing the property, immediately became ab- 
 solutely indebted to the vendor and the two 
 other persons named for the sums agreed to 
 be paid. Tweeddale v. Tweeddale, 116 Wis. 
 517, 93 N. W. 440, 61: 509 
 
 340. If an aged parent conveys his prop- 
 erty to his son to secure support for him- 
 self during the remainder of his life, 
 whether the agreement calls for support 
 generally, or by paying to the grantor 
 money or property in specific amounts at 
 specified times, the contract must be con- 
 strued to required personal performance by 
 the grantee of the obligations incurred by 
 him. Glocke v. Glocke. 113 Wis. 303. 89 
 N. W. 118, % 57: 458 
 
 6. Personal Property. 
 
 By Corporation Purchasing Property and 
 Franchise of Other Corporation, see 
 Corporations, 65. 
 
 Purchase by Corporation of Partnership As- 
 sets, see Corporations, 66. 
 
 Judicial Notice as to Meaning of Term 
 "F. O. B. Cars," see Evidence, 134. 
 
 Insurance Policy, see Insurance, 723. 
 
 Contract of Sale as Distinguished from 
 Agency, see Sale, 6. 
 
 See also supra, 309, 332, 333; infra, 650; 
 Sale, 8, 9. 
 
 341. In a contract by which one agrees 
 to buy out at a future date a certain busi- 
 ness, and to buy all goods that the seller 
 has on hand at that date at their invoice 
 price, provided their entire value is not 
 above a certain amount, the insertion of a 
 clause to the effect that the buyer shall be 
 bound to take only such goods as he him- 
 self shall select will not relieve him of the 
 obligation to take goods to the amount 
 agreed upon, but simply gives him the right 
 to choose the goods he will take to make up 
 the quantity which he agreed to buy. 
 Jacobson v. Sullivan, 152 Mass. 480, 25 N. E. 
 973, 9: 508 
 
 342. A clause in a contract made in the 
 United States, by citizens thereof, for the 
 sale of a certain English patent, that "it is 
 understood that, said English patent is in 
 full form and effect, otherwise said II. is 
 to be relieved from payment," etc., con- 
 strued to mean that the patent was to be 
 "of effect" in a sense that a United States 
 patent must be to obtain recognition in 
 our courts. Chemical Electric Light & 
 Power Co. v. Howard, 148 Mass. 352, 20 
 N. E. 92, 2: 168 
 
 343. The word "shipment," in a contract 
 purchasing 1.000 tons of sugar "for ship- 
 ment within thirty days, by sail or steam, 
 seller's option," and providing for marine 
 insurance by the buyers, means the deliv- 
 ery, within the time required, on some ves- 
 sel destined to the proper port, which the 
 seller has reason to suppose will sail within 
 a reasonable time after shipment, and does 
 not mean a clearance of the vessel as well 
 
 as putting the goods on board, where there 
 is nothing to indicate that the seller was 
 expected to exercise any control over the 
 clearance of the vessel or her subsequent 
 management. Mora y Ledon v. Havemever, 
 121 N. Y. 179, 24 N. E. 297, 8: "245 
 
 For copyright. 
 
 344. A third person who buys the plates, 
 sheets, and copyright of a published work, 
 cannot be considered as the successor in 
 business of the publisher within the mean- 
 ing of a contract by the publisher in pro- 
 curing electrotype plates for it that they 
 should be used only by the publisher "or his 
 heirs or successors in business." Meyer v. 
 Estes, 164 Mass. 457, 41 N. E. 683, 32: 283 
 To indemnify seller. 
 
 345. A covenant by a purchaser of the 
 business and effects of a corporation, the 
 sale of which is intended to terminate its 
 existence, to indemnify it from and against 
 the contracts and engagements to which the 
 said vendor appears to be now liable, and 
 also all claims and demands on account of 
 the same contracts and engagements, does 
 not cover a claim by the president-manager 
 of the corporation to salary for the time 
 subsequently accruing, where it was founded 
 merely on the fact that he had been elected 
 president, and there was no contract that 
 the services and salary should continue for 
 any specified time. Busell Trimmer Co. v. 
 Coburn, 188 Mass. 254, 74 N. E. 334, 
 
 69: 821 
 Price. 
 See also supra, 336-340. 
 
 346. An agreement on the exchange of 
 stocks and securities, as to the valuation 
 at which the exchange shall be made, does 
 not constitute a contract that they are of 
 the actual market value specified." Rocke- 
 feller v. Merritt, 40 U. S. App. 666, 76 Fed. 
 905>, 22 C. C. A. 608. 35: 633 
 
 347. Where the current price of a manu- 
 factured article is that arbitrarily fixed by 
 a combination of manufacturers, its fair 
 market value will govern in an action for 
 its price upon a sale in which no price was 
 mentioned. Lovejoy v. Michels, 88 Mich. 
 15, 49 X. W. 901, ' 13: 770 
 Credit; payment. 
 
 348. A right to credit for the purchase 
 price of goods sold is not given by a pro- 
 vision for a discount for cash, where the 
 contract expressly states "Terms cash." 
 Samuel M. Lawder & Sons Co. v. Albert 
 Mackie Grocery Co. 97 Md. 1, 54 Atl. 634. 
 
 62: 795 
 
 349. The first annual payment is optional 
 with the obligor on a contract to purchase 
 certain patents and inventions, which does 
 not mention a cash payment which was 
 made, but calls for annual payments for 
 fourteen years amounting to $250.000. or, in 
 lieu thereof, the sum of $100,000 at any 
 time within two years, and provides that 
 on failure to make any payment when due, 
 within sixty days after demand, the "sale 
 shall be null and void and of no effect," 
 and the patents revert discharged of any 
 obligations under the contract, with a fur-
 
 688 
 
 CONTRACTS, II. d, 8, 4. 
 
 ther provision giving the obligor the right 
 to assign the contract and thus free himself 
 from personal liability. Williamson v. Hill, 
 154 Mass. 117, 27 N. E. 1008, 13: 690 
 
 3. Other Agreements Relating to Land or 
 
 Water. 
 
 As to Term of Tenant, see Landlord and 
 
 Tenant, 36, 37. 
 
 Oil and Gas Lease, see Mines, 68-71. 
 Railroad Lease, see Railroads, 9. 
 See also supra, 311, infra, 356, 357. 
 For Editorial Xotes, see infra, VIII, 23. 
 
 350. The words "as long as we can make 
 it pay" have no special signification in a 
 contract to mine ore. Davie v. Lumber- 
 man's Min. Co. 93 Mich. 491, 53 N. W. 625, 
 
 24: 357 
 
 350a. An assignee of a contract for the 
 sale of real estate, who turns it over to 
 others without formal assignment, so that 
 they receive the benefit of the purchase, 
 especially if he participates therein him- 
 self, is liable upon a covenant to pay his 
 assignor a certain sum in case he sells such 
 contract or completes the purchase. Fergu- 
 son v. McBea-n, 91 Cal. 63. 27 Pac. 518. 
 
 14: 65 
 For grape vines. 
 
 350b. A contract for planting grape vines 
 may be construed to permit the planting of 
 cuttings without roots. Remy v. Olds (Cal.) 
 Not Off. Rep. 34 Pac. 216, 21 : 645 
 
 To take water from canal feeder. 
 
 351. Maintenance for nearly fifty years, 
 with the knowledge and acquiescence of the 
 canal commissioners, of flumes to take 
 water from a canal feeder, under a contract 
 by which the commissioners granted the 
 right to take it, the bottoms of which are 
 level with the bottom of the feeder, so that 
 whenever the grantee was entitled to take 
 water he would receive it under a head, is 
 a practical construction of the rights of the 
 parties which will prevent the commission- 
 ers from subsequently placing weirs in the 
 flumes so that no water can be received 
 until it has reached a certain height in the 
 feeder. Merrifield v. Canal Commissioners, 
 212 111. 456, 72 N. E. 405, 587, 67: 363 
 
 4. For Services; Construction of Buildings 
 
 or Works. 
 
 Father's Release from Liability for Injuries 
 to Minor Servant, see Release, 17. 
 
 Contract with Waterworks Company, see 
 Waters, 545. 
 
 See also supra, 340. 
 
 352. A contract to pay for the services 
 of one expert in putting in an electrical 
 equipment will not authorize a recovery at 
 contract rates for the services of two. Edi- 
 son General Electric Co. v. Canadian P. Nav. 
 Co. 8 Wash. 370, 36 Pac. 2GO, 24: 315 
 
 353. An agreement in a contract of em- 
 ployment, that refusal to go on a second 
 year can be justified only by "written notice 
 
 of anv cause of dissatisfaction on 
 
 or before January 1," plainly means "any 
 existing cause" or "any cause relied on," 
 and on such notice a cause not alleged there- 
 in, if it existed before January 1, may be re- 
 lied upon. Hughes v. Gross, 166 Mass. 61, 43 
 N. E. 1031, 32: 620 
 
 354. An agreement to furnish a home for 
 a woman about to marry, and her child, and 
 properly provide for her and the child, in 
 case the husband fails to do so, will extend 
 to furnishing a home in which to live, and 
 provisions and clothing, taking into account 
 her ability to cook the food and do the 
 necessary sewing, without regard to the 
 kind of home and support which the hus- 
 band would be expected to furnish from his 
 circumstances in life. Wright v. Wright, 
 114 Iowa, 748, 87 N. W. 709, 55: 261 
 Subcontract. 
 
 355. A construction company becomes a 
 subcontractor, and not an original contract- 
 or with a railroad company, when, with full 
 knowledge that a contract company is un- 
 able to complete the work, it agrees with it 
 to do so for an agreed sum in cash and 
 bonds, with a provision that it shall have a 
 "subcontractor's lien," although the rail- 
 road company has consented to the sublet- 
 ting of the contract and that the construc- 
 tion company shall have a contractor's lien. 
 Richmond & I. Const. Co. v. Richmond 
 N. I. & B. R. Co. 31 U. S. App. 704, 15 C. C. 
 A. 289, 68 Fed. 105, 34: 625 
 For stone from quarry. 
 
 356. The word "shipped" in a contract by 
 a lessee of a quarry to pay certain rates for 
 stone shipped, cannot be construed to in- 
 clude stone not shipped, although quarried 
 and ready for shipment. Crawford v. Oman 
 & S. Stone Co. 34 S. C. 90, 12 S. E. 929, 
 
 12: 375 
 
 357. The words "dimension stone," in a 
 quarry lease fixing prices for such stone, 
 must be construed in their technical trade 
 meaning, in the absence of anything in the 
 contract to indicate the contrary, where 
 both parties are quarry men. Id. 
 Building contracts. 
 
 See also supra, 355. 
 
 For Editorial Notes, see infra, VIII, 21. 
 
 358. An agreement to pay the last instal- 
 ment on a contract upon satisfactory evi- 
 dence that no liens or unsatisfied claims 
 exist on the work applies only to claims 
 under the mechanics' lien law; and the con- 
 dition is complied with if no liens are filed 
 during the time allowed by law. Wallis 
 Iron Works v. Monmouth Park Asso. (N. J. 
 Err. & App.) 55 N. J. L. 132, 26 Atl. 140, 
 
 19: 456 
 
 359. The rights of persons submitting bids 
 for the erection of a building cannot be de- 
 termined by the printed "notice to bidders," 
 where it appears that the terms of the con- 
 tract were orally fixed at a conference be- 
 tween the bidders and the persons request- 
 ing the bids, that the terms so fixed were 
 not incorporated into the printed notice, and 
 that both parties rested upon what was 
 said and done at the conference. McNeil v. 
 Boston Chamber of Commerce, 154 Mass. 
 277. 28 X. K. 245. 13: 559
 
 CONTRACTS, III. a. 
 
 689 
 
 Construction of levee. 
 
 360. A contract for constructing a levee 
 within a certain time at a certain price per 
 cubic yard, with a forfeiture for delay, 
 describing the kind of earth to be worked 
 and its quantity, which fails to provide for 
 any different rates in case the quantity or 
 kind is not as represented, shows that those 
 representations were not considered mate- 
 rial. Nounnan v. .Sutter County Land Co. 
 81 Cal. 1, 22 Pac. 515, 6: 219 
 Hiring or reserving ball player. 
 
 361. The ordinary skill, knowledge, and 
 efficiency of baseball players is all that is 
 required of a player under a contract of 
 hiring for a definite time, which is silent as 
 to the degree of skill to iJe possessed. Bal- 
 timore Base Ball & E. Co. v. Pickett, 78 
 Md. 375, 28 Atl. 279, , 22: 690 
 
 362. A contract giving baseball vlubs the 
 right to "reserve" their players for another 
 season simply gives the clubs the right, as 
 against other clubs, to secure the services 
 of such players if the parties can agree, but 
 places no obligations on the players to en- 
 ter into a contract lor such season. Hence 
 the players cannot be compelled to enter 
 into such future contract by a decree of 
 specific performance, and' consequently they 
 cannot be enjoined from entering into con- 
 tracts with other clubs. Metropolitan Exhi- 
 bition Co. v. Ewing, 42 Fed. 198, 7: 381 
 
 363. There is no necessity to particularize 
 in a contract for the services of a ball 
 player which gives the employer the right 
 to '"reserve" such player for the season next 
 ensuing, the conditions or characteristics of 
 the option, if, when the contract is made, 
 the term has a well -understood definition. 
 
 Id. 
 
 HI. Validity and Effect, 
 a. In General. 
 
 As to Consideration, see supra, I. c. 
 
 As to Definiteness and Meeting of Minds, 
 see supra, I. d. 
 
 Formal Requisites, see supra, i. e. 
 
 Stipulation for Attorneys' Fees, see At- 
 torneys' Fees, 9-15. 
 
 For Continuance of Canal, see Canals, 9. 
 
 Contracts Limiting Liability of Carrier, see 
 Carriers, II. a, 10, f; II. a, 12, e; II. 
 b, 7. 
 
 Champertous Contracts, see Champerty. 
 
 Combination to Injure Another's Business, 
 see Conspiracy, I. c. 
 
 Contract Ousting Jurisdiction of Courts, 
 see Insurance, 1288. 
 
 Estoppel to Deny Validity, see Estoppel, 27. 
 
 Giving Validity by Estoppel, see Estoppel, 
 75-77. 
 
 Burden of Proving Invalidity, see Evidence, 
 646. 
 
 Of Conveyance of Expectancy, see Expect- 
 ancy, 4-10. 
 
 Of Married Woman's Contracts, see Hus- 
 band and Wife, I. b, 2. 
 
 Validity of Contracts Between Husband and j 
 Wife, see Husband and Wife, II. e. 
 L.R.A. Dig. 44. 
 
 Contracts by Insane Person, see Incompe- 
 tent Persons, II. 
 
 Contracts by Infants, see Infants, I. d, 2. 
 
 Validity of Insurance Contract, see Insur- 
 ance, 185-188, 1288. 
 
 Necessity of Pleading Illegality, see Plead- 
 ing, 489, 490. 
 
 Raising Legality by Demurrer, see Pleading, 
 605. I 
 
 Specific Enforcement of Illegal Contract, 
 see Specific Performance, 21, 22. 
 
 Validity of Sunday Contracts, see Sunday, 
 IV. 
 
 See also supra, 294, 295, infra, 733, 785, 840. 
 
 For Editorial Notes, see infra, VIII. 
 25-38. 
 
 364. The courts are not authorized to de- 
 clare a contract void merely because it may 
 be unwise, or even foolish. Equitable Loan 
 & Security Co. v. Waring, 117 Ga. 599, 44 
 S. E. 320/ 62: 93 
 
 365. One contracting to perform work up- 
 on a public improvement does not, by in- 
 corporating into the contract the provisions 
 of a statute as to the rate of wages to be 
 paid, make them binding upon himself if the 
 statute is invalid. People ex rel. Rodgers 
 v. Coler, 166 N. Y. 1, 59 N. E. 716, 
 
 52: 814 
 
 366. A contract invalid as to one of the 
 parties is invalid also as to the other. Port- 
 land v. Portland Bituminous Paving & 
 Improv. Co. 33 Or. 307, 52 Pac. 28, 
 
 44: 527 
 
 367. A contract wholly void is void as to 
 everybody whose rights would be affected 
 by it if valid. Kellogg v. Howes, 81 Cal. 
 170, 22 Pac. 509, 6: 588 
 
 368. An apparent absence of consideration 
 is only a circumstance to be taken into ac- 
 count with other facts and circumstances 
 in the case in determining whether or not a 
 conveyance was procured through fraud and 
 undue influence. Lewis v. Arbuckle, 85 
 Iowa, 335, 52 N. W. 237, 16: 677 
 
 369. A contract by which an ice manu- 
 facturing company undertakes to sell waste 
 water to a railroad company which needs it 
 to supply its engines cannot be held void 
 for collusion because the railroad company 
 undertakes to lay the necessary pipes, which 
 the ice company has no power to do for 
 want of a franchise to lay pipes in the 
 streets. Canton v. Canton Cotton Ware- 
 house Co. 84 Miss. 268, 36 So. 266, 65: 561 
 Effect of partial invalidity. 
 
 As to Voting of Corporate Stock, see 
 
 Corporations, 656. 
 Separation Agreement, see Divorce and 
 
 Separation, 131. 
 See also infra, 395, 400, 412. 
 For Editorial Notes, see infra, VIII. 3. 
 
 370. A person's title under a valid con- 
 tract for the purchase of an interest in 
 brood mares, which is coupled with a voida- 
 ble contract as to their keeping, will not be 
 affected by the avoidance of the latter con- 
 tract. Lowman v. Sheets, 124 Ind. 416, 24 
 N. E. 351, 7: 784 
 
 371. That provision of an agreement by 
 one who is allowed, for a legal considera-
 
 690 
 
 CONTRACTS, III. b. 
 
 tion, to place a structure on a railroad 
 right of way, which undertakes to indem- 
 nify the railroad company for loss or injury 
 to "his property while upon the premises, 
 through the negligence of the company or 
 its servants, is enforceable, although other 
 provisions of his agreement may be invalid. 
 Osgood v. Central Vt. R. Co. 77 Vt. 334, 
 60 Atl. 131, 70: 930 
 
 372. The nullifying, by the subsequent 
 passage of a statute giving certain tele- 
 graph companies a right to construct lines 
 along post roads, of a provision in a con- 
 tract between a railroad and telegraph com- 
 pany for the construction along the railroad 
 right of way of a telegraph line at joint 
 expense, which requires the railroad com- 
 pany to exclude all other telegraph compa- 
 nies from use of its right of way, does not 
 render invalid the provisions of the contract 
 which provide for the maintenance of the 
 line at joint expense and the joint use of 
 the poles for the stringing of wires. West- 
 ern U. Teleg. Co. v. Pennsylvania Co. 64 
 C. C. A. 285, 129 Fed. 849, 68: 968 
 For future crops. 
 
 373. A contract by which one person is to 
 plant and cultivate peach trees upon the 
 land of another for a term of ten years, and 
 to receive half of the proceeds during any 
 two years of such term which he may select, 
 is not invalid in respect to the interest given 
 in such crops as a mortgage of a thing hav- 
 ing no potential existence, since the con- 
 tract is executed by the setting out and de- 
 livery of title to the trees, and the crops 
 are the subject of sale or mortgage in the 
 same manner as crops to be raised from 
 seeds already planted. Dickey v. Waldo, 97 
 Mich. 255, 56 N. W. 608, - 23: 449 
 
 b. Illegal by Express Provision. 
 
 Remedy in Case of, see infra, 608-615. 
 
 Illegality in Acquiring Note, see Bills and 
 Notes, 182, 195. 
 
 Validity of Note in Hands of Bona Fide 
 Holder, see Bills and Notes, 212. 
 
 Validity of Deputy Sheriff's Bond, see 
 Bonds, 70. 
 
 Illegal Contract with Ticket Broker to Al- 
 low Cut Rates, see Commerce, 43. 
 
 As to Transportation Rates, see Commerce, 
 54. 
 
 Constitutionality of Statute Restricting 
 Right to Contract, see Constitutional 
 Law, II. b, 4, b, 2. 
 
 As to Voting Corporate Stock, see Corpora- 
 tions, 657. 
 
 Contracts of Unauthorized Foreign Corpora- 
 tion, see Corporations, 856-860. 
 
 Estoppel by, see Estoppel, 109. 
 
 Mortgagor's Agreement to Pay Taxes, see 
 Mortgage, 37. 
 
 Right to Maintain Action on, see Partner- 
 ship, 136, 137. 
 
 Validity of Sunday Contracts, see Sunday, 
 IV. 
 
 See also supra, 303a, 372. infra, 506; Bills 
 and Notes, 108. 
 
 374. Transactions in violation of law can- 
 
 not be made the foundation of a valid con- 
 tract. Buckley v. Humason, 50 Minn. 195, 
 52 N. W. 385, 16: 423 
 
 375. All contracts made in violation of a 
 penal statute are as absolutely void as if 
 the law in so many words declared that 
 they should be void. Youngblood v. Bir- 
 mingham Trust & S. Co. 95 Ala. 521, 12 So. 
 579, 20: 58 
 
 376. To the general rule that an act in 
 violation of the statute forbidding it is 
 void, there is an exception when the statute 
 is for the protection of the public revenue 
 and does not make the act itself void, and 
 the act is not malum in se or detrimental 
 to good morals. Vermont Loan & T. Co. v. 
 Hoffman, 5 Idaho/ 376, 49 Pac. 314, 
 
 37: 509 
 
 377. A contract by a vendor of patent 
 rights, in violation of a statute to prevent , 
 and punish fraud in the sale of such rights, 
 is void as between the parties. Mason v. 
 McLeod, 57 Kan. 105, 45 Pac. 76, 41 : 548 
 Violation of illegal statute. 
 
 378. Where a statute peremptorily re- 
 quires certain stipulations or agreements 
 to be inserted in a contract, and the same 
 are, by force of such statute and because of 
 its provisions, inserted by the contracting 
 parties in their contract, the obligatory and 
 binding force of such stipulations and agree- 
 ments so inserted depends upon the validity 
 of the statute requiring their insertion; and 
 where such statute is itself unconstitution- 
 al, such stipulations and agreements, al- 
 though incorporated in the contract, are in 
 law without any obligatory or binding force 
 upon the parties to said contract. Cleveland 
 v. Clements Bros. Constr. Co. 67 Ohio St. 
 197, 65 N. E. 885, 59: 775 
 Prohibited possession of game. 
 
 379. A contract for the "cold storage" of 
 game during the "closed season," to be 
 withdrawn during the open season when the 
 game could be lawfully disposed of, is void 
 under Mo. Rev. Stat. 1889, 3902, making 
 it a misdemeanor to have such game in 
 possession during the closed season. Hag-' 
 gerty v. St. Louis Ice Mfg. & S. Co. 143 Mo. 
 238, 44 S. W. 1114, 40: 151 
 Stock subscription. 
 
 380. A contract for the sale of a portion 
 of a subscriber's interest in stock which he 
 subscribed for with the understanding that 
 he should have $5 of stock for $1 of sub- 
 scription is illegal and void, under Ala. 
 Stat. 1875, art. 14, 6, providing that no 
 corporation shall issue stock except for 
 money, labor done, or money or property 
 actually received, and all fictitious increase 
 of stock or indebtedness shall be void. 
 Williams v. Evans, 87 Ala. 725, 6 So. 702, 
 
 6: 218 
 Excessive mill toll. 
 
 381. A contract to pay greater toll for 
 grinding at a public mill than that fixed 
 by statute is invalid and constitutes no de- 
 fense for taking excessive tolls. State v. 
 Edwards, 86 Me. 102, 29 Atl. 947, 25: 504 
 Not to rent to Chinaman. 
 
 382. A covenant not to rent property to a
 
 CONTRACTS, III. b. 
 
 691 
 
 Chinaman is void as against public policy, 
 as violating U. S. Const. 14th Amend., pro- 
 viding for equal protection of the laws, 
 and as an infraction of the treaty with 
 China guaranteeing to Chinamen in the 
 United States all the rights, privileges, and 
 immunities accorded to citizens and sub- 
 jects of the most favored nation. Gandolfo 
 v. Hartman, 49 Fed. 181, 16: 277 
 
 Hours of labor. 
 
 See also infra, 612, 613. 
 
 383. An employee cannot waive the legisla- 
 tive protection created for him by the police 
 power of the state, limiting hours of labor. 
 Short v. Bullion B. & C. Min. Co. 20 Utah, 
 20, 57 Pac. 720, 45: 603 
 
 Release of claim for injury. 
 Validity of Statute Avoiding Contract for, 
 see Constitutional Law, 705. * 
 
 384. An agreement by a railroad employee 
 that the acceptance of benefits from a relief 
 fund shall operate as a release of all claims 
 against the railroad company is void, under 
 the employer's liability act of 1893, although 
 the release is only conditional. Pittsburgh, 
 C. C. & St. L. R. Co. v. Montgomery, 152 
 Ind. 1, 49 N. E. 582, 69: 875 
 
 385. A contract by an employee of a 
 railroad company with a relief association 
 to which both employer and employed con- 
 tribute, for the benefit of the employees in 
 case of sickness or death, whereby it is 
 provided that the acceptance of relief from 
 the relief fund shall have the effect to re- 
 lease the employer from liability for dam- 
 ages, is not within the prohibition of Ohio 
 act April 2, 1890, against any contract to 
 surrender or waive any right to damages 
 against a railroad company for personal in- 
 jury or death, or, in case that right is as- 
 serted, to surrender or waive any other 
 right, as this gives the employee the right 
 to elect which form of recompense he will 
 demand. Pittsburg, C. C. & St. L. R. Co. 
 v. Cox, 55 Ohio St. 497, 45 N. E. 641, 
 
 35: 507 
 
 386. The release of the liability of a rail- 
 road company by an employee's election to 
 accept the benefits of a relief fund in lieu 
 of his right of action for damages is not 
 prohibited by S. C. Const. 1895, art. 9, 15, 
 giving such employees the same rights and 
 remedies allowed to persons who are not 
 employees in certain cases, and providing 
 that any waiver of the benefit of that sec- 
 tion shall be null and void. Johnson v. 
 Charleston & S. R. Co. 55 S. C. 152, 32 S. E. 
 2, 33 S. E. 174, 44: 645 
 
 387. A contract that a railroad company 
 shall be relieved of liability for the injury 
 or death of an employee by the acceptance 
 of benefits from a relief fund which the 
 railroad company helps to provide, but leav- 
 ing the employee or those entitled to main- 
 tain an action for his death the option of 
 choosing the benefits of the relief fund or 
 bringing an action against the company, does 
 not violate Ind. Acts 1893, chap. 130, p. 294, 
 5, prohibiting contracts to relieve rail- 
 road companies from liability to employees. 
 
 Pittsburg, C. C. & St. L. R. Co. v. Moore, 
 152 Ind. 345, 53 X. E. 290, 419, 44: 638 
 Services of unlicensed persons. 
 Validating by Subsequent Statute, see Con- 
 stitutional Law, 123. 
 See also supra, 82. 
 For Editorial Notes, see infra, VIII. 25. 
 
 388. Where a statute or an ordinance, 
 duly authorized and enacted, makes a par- 
 ticular business unlawful for unlicensed 
 persons, any contract made in such business 
 by one not authorized is void. Buckley v. 
 Humason, 50 Minn. 195, 52 N. W. 385, 
 
 16: 423 
 
 389. A person violating a valid city ordi- 
 nance which makes it unlawful for any 
 person to exercise within the city the busi- 
 ness of a real-estate broker without a li- 
 cense can recover no , commissions for his 
 services. Id. 
 
 390. Real -estate agents doing business 
 without a license, in violation of an ordi- 
 nance, cannot recover commissions on a sale 
 of land negotiated by them, notwithstand- 
 ing a subsequent repeal of the ordinance, 
 without a saving clause, pending the suit. 
 Denning v. Yount, 62 Kan. 217, 61 Pac. 
 803, 50: 103 
 
 391. The recovery of commissions by a 
 broker is not prevented by failure to pro- 
 cure a license under an ordinance imposing 
 a penalty for such failure, where the ob- 
 ject of the ordinance is simply to enforce 
 payment of a tax. Fairly v. Wappoo Mills, 
 44 S. C. 227, 22 S. E. 108, . 29: 215 
 
 392. A contract to pay a fee for services 
 rendered by a physician who is not licensed 
 is void in its inception, where a statute 
 prohibits him from practising as a physi- 
 cian for fee or reward. Puckett v. Alexan- 
 der, 102 N. C. 95, 8 S. E. 767, 3: 43 
 
 393. An innholder who has no license can- 
 not recover for board and lodging furnished 
 by- him in such inn, under Me. Rev. Stat. 
 chap. 27, declaring that "no person shall be 
 a common innholder or victualer without a 
 license, under a penalty of not more than 
 $50," and requiring a license fee of only $1, 
 since the purpose of the statute is to pro- 
 tect the public, and not merely to obtain 
 revenue. Randall v. Tuell, 89 Me. 443, 36 
 Atl. 910, 38: 143 
 
 394. A contract for the services of an un- 
 licensed stallion is invalid so that no re- 
 covery thereon can be had, under Ky. Stat. 
 chap. 108, 4201, making the owner liable 
 to indictment and fine for failure to procure 
 the license. Smith v. Robertson, 106 Ky. 
 472, 50 S. W. 852, 45: 510 
 Sales of liquor. 
 
 See also infra, 445, 639. 
 
 395. An agreement to return or pay for 
 beer barrels, kegs, and cases in which beer 
 is shipped contrary to law, is a part of 
 the illegal contract, which cannot be en- 
 forced, when these articles were sent mere- 
 ly for the purpose of completing the sale of 
 the beer. Gipps Brew. Co. v. De France, 91 
 Iowa, 108, 58 N. W. 1087, 28: 386 
 
 396. The purchase price of beer cannot be 
 recovered where it was sold under the ar- 
 rangement contemplating its resale by the
 
 692 
 
 CONTRACTS, III c, 1. 
 
 purchaser in violation of law under pretense 
 of an agency for conducting a bottling de- 
 partment under the license of the seller. 
 Storz v. Finkelstein, 46 Neb. 577, 65 N. W. 
 195, 30: 644 
 
 397. No recovery can be had for intoxi- 
 cating liquors shipped into Iowa to phar- 
 macists with the knowledge that he is for- 
 bidden by the state law from selling them 
 as a beverage, where the seller, in order to 
 aid him in evading the statute, forwards 
 some of the liquors in concealed packages to 
 a fictitious assignee, and furnishes false in- 
 voices to aid him in the commission of 
 perjury as well as in other violations of 
 the law, although the sale of liquors in it- 
 self would be legal. Kohn v. Milcher, 43 
 Fed. 641, 10: 439 
 
 398. Under the New Hampshire statute 
 making it an offense for a person to solicit 
 or take orders for spirituous liquors in the 
 state, to be delivered at a place without the 
 state, knowing, or having reasonable cause 
 to believe, that if so delivered they will be 
 transported into the state and sold in vio- 
 lation of law, an order for liquor, taken 
 within the state by a traveling salesman, to 
 be filled by his employer outside the state, 
 will make the contract of sale void, and 
 prevent a recovery thereon, where the 
 liquors are to be sold in violation of law. 
 Lang v. Lynch, 38 Fed. 489, 4: 831 
 
 399. A contract for the sale of intoxicat- 
 ing liquor to a nonresident, with the view 
 to its being resold by him contrary to the 
 laws of his own state, is void, although the 
 violation of that law was not the controlling 
 inducement to the sale, which was made pri- 
 marily for the money received. Graves v. 
 Johnson, 156 Mass. 2*11. 30 N. E. 818, 
 
 15: 834 
 
 400. A clerk and bartender hired for one 
 entire consideration, by a dealer in groceries 
 and intoxicating liquors, the sa:le of the 
 latter being illegal, cannot recover anything 
 for his service, even upon quantum meruit 
 for services in the grocery part of the store, 
 Sullivan v. Hergan, 17 R. I. 109, 20 N. E. 
 232, 9: 110 
 
 c. Public Policy. 
 1. In General. 
 
 As to Consideration for Subscription, see 
 supra, 48-53. 
 
 Proceedings and Remedy in Case of. see 
 infra, III. g, 2. 
 
 As to Contracts in Restraint of Trade, see 
 infra, III. e. 
 
 Review of Referee's Finding as to, see Ap- 
 peal and Error, 817. 
 
 Of Provision for Submitting all Differences 
 to Arbitration, see Arbitration, 5-7. 
 
 Assignment of Right of Action for Fraud, 
 see Assignment, 3. 
 
 Assignment of Future Wages, see Assign- 
 ment, 18, 19. 
 
 By-laws of Association, see Associations, 2 
 13-15. 
 
 With Attorney for Contingent Fee, see At- 
 torneys, 65-69. 
 
 As Ground For Disbarring Attorney, see 
 Attorneys. 20. 
 
 Provision for Attorneys' Fees, see Attor- 
 neys' Fees, 915. 
 
 Not to Bid at Auction, see Auctions, 5, 6. 
 
 As to Bills and Notes, see Bills and Notes. 
 22-25. 
 
 Excessive Bond to Savings Bank, see 
 Bonds, 6. 
 
 Contract Guaranteeing Honesty of Em- 
 ployees, see Bonds, 24. 
 
 dhampertous Contracts, see Champerty. 
 
 Provision for Chattel Mortgagee Taking 
 Possession on Nonpayment, see Chattel 
 Mortgage, 91. 
 
 Prohibition against Limitation of Carrier's 
 Liability as Interference with Com- 
 merce, see Commerce, 62-68. 
 
 Effect of Public Policy on Enforcement of 
 Contract of Other State, see Conflict of 
 Laws, 19-23. 
 
 Combination to Injure Another's Business, 
 see Conspiracy, I. c. 
 
 Contract for Free Pass, see Corporations, 
 175. 
 
 Contracts of Corporate Officers in Their 
 Own Interests, see Corporations, IV. 
 
 g, 4- 
 
 Validity of Contract for Voting Trust, see 
 Corporations, 656-660. 
 
 Against Handling Grain on Land Conveyed, 
 see Covenant, 27. 
 
 Separation Agreement, see Divorce and Sep- 
 aration, VIII. b. 
 
 Estoppel by, see Estoppel, 109, 267. 
 
 Insuring Life in Favor of One Without In- 
 surable Interest, see Insurance, 144, 145, 
 698. 
 
 Insurance against Capital Conviction, see In- 
 surance, 185. 
 
 Condition against Mortgaging Insured Prop- 
 erty, see Insurance, 382. 
 
 Provision that Insurance Agent shall be 
 Agent of Applicant, see Insurance, 530. 
 
 Provision Against Insurance Inuring to 
 Benefit of Carrier, see Insurance, 1257. 
 
 Insuring Carrier against Liability for In- 
 jury to Passenger, see Insurance, 1355. 
 1356. 
 
 Provision as to Incontestability of Policy, 
 see Insurance, 573, 574. 
 
 Limiting Time for Suit on Policy, see In- 
 surance, 1307, 1308. 
 
 Contract to Assume Risk of Unsafe Place, 
 see Master and Servant, 315. 
 
 Illegal Partnerships, see Partnership, 103- 
 107. 
 
 Right to Maintain Action on, see Partner- 
 ship, 137. 
 
 Pleading as to. see Pleading, 68, 69. 
 
 Necessity of Pleading Invalidity, see Plead- 
 ing, 491-493. 
 
 Lease of Timber on Public Land, see Public 
 Lands, 8. 
 
 Sale of Interest in Public Land, see Public 
 Lands, 16. 
 
 Conditions Subsequent in Conveyances, see 
 Real Property, 7-10. 
 
 Contract to Pav for Chattel before Passing 
 of Title, see Sale, 1. 
 
 As to Place for Settling Disputes, see Ship- 
 ping, 7.
 
 CONTRACTS, III. c, 1. 
 
 693 
 
 Purchasing Abutter's Consent to Construc- 
 tion of Street Railroad, see Street Rail- 
 ways, 29. 
 
 Contracts made on Sunday, see Sunday, IV. 
 
 Contract by Telephone Company Discrimi- 
 nating in Favor of Patentee, see Tele- 
 phones, 18. 
 
 Instructions as to, see Trial, 790. 
 
 See also supra, 403. 
 
 For Editorial Notes, see infra. VIII. 21, 
 31-38. 
 
 401. Contracts which are void at com- 
 mon law because they are against public 
 policy, like contracts which are prohibited 
 by statute, are illegal as well as void. Har- 
 vey v. Merrill, 150 Mass. 1, 22 N. E. 49, 
 
 5: 200 
 
 402. Contracts in which a corporation, in 
 consideration of stated payments made to 
 it, makes promises which are the main in- 
 ducement to such contract, and are impossi- 
 ble to perform, are unlawful, being against 
 public policy. State ex rel. Prout v. Ne- 
 braska Home Co. 66 Neb. 349, 92 N. W. 
 763, 60: 448 
 
 403. A contract by which a person in 
 whose name an action is brought and to 
 whom it belongs attempts to transfer his 
 control over it so as to restrict him from 
 compromising or settling the claim is not 
 valid. North Chicago Street R. Co. v. Ack- 
 ley, 171 111. 100, 49 N. E. 222, 44: 177 
 By guardian. 
 
 404. A contract by a guardian to sell his 
 ward's land in advance of legal authority 
 is contrary to public policy and void. Le 
 Roy v. Jacobosky. 136 N. C. 443, 48 S. E. 
 796, 67: 977 
 By defaulting bank officer. 
 
 405. The contract of a defaulting bank 
 officer to furnish collateral security for his 
 indorsement upon paper previously sold to 
 the bank by him, so as to replenish the as- 
 sets of the bank and enable it to resume 
 business, is not illegal; and after such se- 
 curities have been furnished and the bank 
 has resumed business, the person furnishing 
 such securities at the request of such de- 
 faulting officer, with knowledge of the use 
 to be made thereof by him, cannot be heard 
 to say that there was no consideration for 
 furnishing the same. Tecumseh Nat. Bank 
 v. Chamberlain Bkg. House, 63 Neb. 163, 
 88 N. W. 186, 57: 811 
 As to investments. 
 
 406. Contracts of investment security, 
 debentures, or certificates, which cannot rea- 
 sonably be expected to accumulate a jeserve 
 fund equal to the stipulated endowment val- 
 ues within the stated period without aid 
 from lapses or appropriations from pre- 
 miums on new business, are fraudulent, 
 contrary to public policy, and unlawful. 
 State ex rel. Sheets v. Interstate Savings 
 Investment Co. 64 Ohio St. 283, 60 N. E. 220, 
 
 52: 530 
 
 407. The contract of an investment asso- 
 ciation by which it agrees to pay each cer- 
 tificate holder $500 at the end of fourteen 
 years, in consideration of the ' payment of 
 
 $4 as a membership fee and monthly in- 
 stalments of $1.25 until the end of the 
 period, the $4 being given to the agent pro- 
 curing the contract and 25 cents of each 
 instalment being set apart for expenses, 
 leaving only $1 a month for investment, 
 while it is provided that failure to pay any 
 instalment shall subject a member to a fine 
 of 50 cents a month and that upon failure 
 to pay for six months all payments made 
 shall be forfeited, cannot be said, as mat- 
 ter of law, to be incapable of performance 
 by legitimate methods, or to be so de- 
 pendent on forfeitures and lapses as to be 
 contrary to public* policy, where the com- 
 pany is authorized by its charter to carry 
 on many lines of business, including the 
 right to deal in stocks, bonds, etc., loan 
 money, and purchase, improve, and sell 
 property, both real and personal. Equitable 
 Loan & Security Co. v. Waring, 117 Ga. 
 599, 44 S. E. 320, 62: 93 
 
 408. The mere fact that an enterprise 
 depends for its success, to some extent, on 
 forfeitures and lapses, is not alone sufficient 
 to render the scheme unlawful. Id. 
 To indemnify carrier against loss for injury 
 
 to employee of indemnifier. 
 
 409. A contract by which a news company 
 indemnifies a railroad company against any 
 loss sustained by reason of any injury to 
 employees of the news company, who are 
 carried by the railroad company, is not 
 against public policy. Kansas City, M. & B. 
 R. Co. v. Southern Railway News Co. 151 
 Mo. 373, 52 S. W. 205, 45: 380 
 With employee. 
 
 See also infra, 460-468. 
 
 For Editorial Notes, see infra, VIII. 31. 
 
 410. Public policy does not require the 
 a.voidance of a contract by an employee not 
 to disclose secrets which must necessarily 
 be imparted to him by his employer to ena- 
 ble him to do his work. O. & W. Thum Co. 
 v. Tloczynski, 114 Mich. 149, 72 N. W. 140, 
 
 38: 200 
 
 411. A contract by one about to enter an- 
 other's employ for the purpose of improving 
 machinery used in the latter's business, that 
 the employer shall have the benefit of all 
 inventions made by him during the term 
 of the employment, and that, in case pat- 
 ents shall not be applied for, the employee 
 shall keep the information forever secret, 
 is not unconscionable, nor against public 
 policy, and may be enforced. Thibodeau v. 
 Hildreth, 60 C. C. A. 78, 124 Fed. 892, 
 
 63: 480 
 
 412. If a provision in a contract for the 
 employment of railroad engineers by which 
 the employer undertakes to reinstate an 
 engineer discharged from service whenever, 
 upon his complaint, specified persons shall 
 on investigation decide that the discharge 
 was unjust, is void as against public policy, 
 such provision does not render invalid a 
 further provision in the contract that the 
 engineers shall not be discharged without 
 just cause. St. Louis, I. M. & S. R. Co. v, 
 Mathews, 64 Ark. 398, 42 S. W. 902, 
 
 39: 467
 
 694 
 
 CONTRACTS, III. c, 1. 
 
 With attorney. 
 
 See also infra, 451, 486, 632. 
 
 413. A party employed to act as agent in 
 securing the services of attorneys cannot, 
 contract to receive a portion of the foes 
 himself as assistant attorney. He cannot 
 be both principal and agent, for such a 
 transaction is against public policy and 
 void. Re Evans, 22 Utah, 366. 62 Pac/913, 
 
 .->:!: 052 
 
 414. A clause in a contract between at- 
 torney and client for compensation for con- 
 ducting litigation, that the client shall not 
 settle the controversy without the attorney's 
 consent, is void because against public 
 policy. Dayis v. Webber. 66 Ark. 100, 49 S. 
 W. 822, 45: 196 
 
 415. A contract between an attorney and 
 one who is not an attorney, to procure the 
 former employment by a litigant, in con- 
 sideration of a part of whatever rpmunera- 
 tion the attorney receives for hi* services 
 from the litigant, is contrary to public pol- 
 icy and void. Alpers v. Hunt. 86 Cal. 78, 
 24 Pac. 846, 9: 483 
 
 416. A contract between an attorney at 
 law and one who is not such an attorney, 
 by which the latter agrees to procure the 
 employment of the former by third persona 
 for the prosecution of suks in courts of 
 record, and also to assist in looking after 
 
 ' and procuring witnesses whose testimony is 
 to be used in the cases, in consideration of 
 a share of the fees which the attorney shall 
 receive for his services, is against public 
 policy, and void. Langdon v. Conlin, 67 
 Xeb. 243, 93 X. W. 389, 60: 429 
 
 417. A contract between a wife and her 
 solicitor, providing that for his services in 
 procuring an allowance of alimony and en- 
 forcing its payment he shall receive a share 
 of the alimony recovered, is void not only 
 because a claim for alimony is incapable of 
 assignment, but also because the contract 
 is in contravention of public policy. Lynde 
 v. Lynde (X. J. Err. & App.) 64 X. J. Eq. 
 736, 52 Atl. 694, 58: 471 
 
 418. A contract between attorneys and 
 other persons who are engaged in the illegal 
 sale of intoxicating liquors, to defend all 
 cases brought against the latter for viola- 
 tion of prohibitory liquor laws, in considera- 
 tion of a certain monthly compensation, is 
 against public policy and void. Bowman v. 
 Phillips, 41 Kan. 364, 21 Par. 230. .1: 631 
 Affecting marriage relation. 
 
 Provisions in Will, see Wills. 254. 303-310. 
 
 See also infra, 633; Trusts, 28. 
 
 For Editorial Notes, see infra, VIII. 31. 
 
 419. A claim for services rendered to a 
 man in procuring for him a wife is not 
 valid; it being against public policy to allow 
 marriage brokerage. Antcliff v. -Tune, 81 
 Mich. 477, 45 X. W. 1019, 10: 621 
 
 420. A contract by a man to support a 
 woman who is about to marry his son, in 
 case the son fails to do so, is not contrary 
 to public policy. Wright v. Wright, 114 
 Iowa, 748, 87 X. W. 70ft. 55: 261 
 
 421. A contract to marry is not void as 
 in restraint of marriage because it provides 
 that the marriage shall take place after the 
 
 death of the divorced wife of one of the par 
 ties. Brown v. Odill. 104 Tenn. 250, 56 8. 
 W. 840, 52: 660 
 
 422. Public policy does not condemn a 
 contract to marry after the death of the 
 divorced wife of one of the parties, when 
 there is no legal impediment in the way of 
 an immediate marriage, but the agreement 
 for delay is due to religious scruples. Id. 
 
 423. A contract between husband and 
 wife to secure a divorce a vinculo matri- 
 monii is contrary to public policy, and void. 
 Palmer v. Palmer. 26 Utah. 31. 72 Pac. 3, 
 
 61: 641 
 
 424. An oral agreement between husband 
 and wife to separate and live apart, upon 
 
 I consideration that he support her and the 
 I children and absolutely assign to her insur- 
 j ance policies on his life, is void as against 
 ; public policy, so that she cannot enforce the 
 assignment of the policies. Baum v. Baum. 
 i 109 Wis. 47, 85 X. W. 122, 53: 650 
 
 425. A trust deed for the benefit of 
 grantor's wife, executed as security for a 
 note given upon her promise to abandon her 
 real ground of divorce, and sue on another 
 ground in which she does not believe, is 
 without valid consideration, and void as 
 against public policy. Stokes v. Anderson, 
 118 Ind. 533. 21 X. E. 331. 4: 313 
 To affect bid. 
 
 See also infra, 634, 635. 848-856. 
 
 426. A contract to sell the bid or interest 
 of a successful bidder at a judicial sale, be- 
 fore its confirmation, for more than the 
 amount bid, is contrary to public policy, un- 
 less the advance on the bid inures to the 
 benefit of the parties to the suit. Camp v. 
 Bruce, 96 Va. 521, 31 S. E. 901, 43: 146 
 
 427. An agreement by which one person, 
 under promise of benefit, agrees with an- 
 other to withdraw an offer or bid for prop- 
 erty of the state offered for sale, so as to 
 enable the latter by the removal of competi- 
 tion to buy it cheaper than he otherwise 
 could, is void as being against public policy. 
 Boyle v. Adams, 50 Minn. 255. 52 X. W. 
 860, 17: 96 
 
 428. It is immaterial whether the prop- 
 erty is offered at public auction or by in- 
 viting bids or proposals for its purchase at 
 private sale. Id. 
 
 429. An agreement between bidders for 
 public work to pool their interests, pro- 
 cure the contract at the highest price possi- 
 ble, each having knowledge of the other's 
 bid for that purpose, and divide the profits, 
 while representing themselves as rival bid- 
 ders, is void, so that in case the contract- 
 is procured in the name of one of them, 
 the work done, and the money paid to him, 
 the others will have no standing in court 
 to compel an accounting. Hoffman v. Mc- 
 Mullen, 28 C. C. A. 178, 48 U. S. App. 596, 
 83 Fed. 372, 45: 410 
 
 430. A contract between the owners of 
 two newspapers belonging to the same 
 political party, only one of which could ob- 
 tain a contract for public printing under a 
 statute requiring certain state officers to 
 make the selection having reference to the 
 larger circulation, by which, in order to pre-
 
 CONTRACTS, III. c, 1. 
 
 695 
 
 vent rivalry, they agree that for two years, 
 in case of iae designation of either paper, 
 the profits shall be equally divided, and that 
 each paper shall be alternately selected for 
 that purpose, is contrary to public policy 
 and void as contravening the statute requir- 
 ing the selection to be made by the state 
 officers, and the policy of the statute, which 
 requires publication to be made in the one 
 having the larger circulation. Brooks v. 
 Cooper (N. J. Err. & App.) 50 N. J. Eq. 761, 
 26 Atl. 978, 21: 617 
 
 Against will contest. 
 
 431. A covenant not to contest the will of 
 a relative may be given effect as a release 
 of the contingent right to make such con- 
 test and enforced, when fairly obtained and 
 for an adequate compensation. Re Garce- 
 lon's Estate. 104 Cal. 570, 38 Pac. 414, 
 
 % 32: 595 
 As to procuring codicil. 
 
 432. An abandonment of effort to obtain 
 a codicil to a will cannot constitute a valua- 
 ble consideration for the assignment of an 
 expected interest in the estate, as it is 
 against public policy to recognize such im- 
 portunity as the legitimate basis of a con- 
 tract right. Re Lennig's Estate, 182 Pa. 485, 
 38 Atl.- 466, 38: 378 
 As to custody of infant. 
 
 Effect of Contract on Right to Custody, see 
 
 Infants, 31, 32, 35. 
 For Editorial Notes, see infra, VIII. 31. 
 
 433. A contract made by a mother on her 
 death bed, with the assent of the father, by 
 which the custody of their children is given 
 to relatives of the motuer, is null and void 
 on grounds of public policy. Hibbette v. 
 Bains, 78 Miss. 695, 29 So. 80, 51 : 839 
 
 434. A contract by a grandfather to pay 
 a certain sum to his son's wife living apart 
 from her husband, and a further sum to his 
 grandson on his coming of age, if she will 
 allow him to take the boy into his family 
 until he is of age, and educate him, giving 
 her the privilege of visiting the child and 
 having him at her home whenever conveni- 
 ent, is not against public policy as an at- 
 tempt to shift the burden of parental obli- 
 gation by mere sale of the child. Enders 
 v. Enders, 164 Pa. 266, 30 Atl. 129, 27: 56 
 As to expectancy. 
 
 See also supra, 432. 
 
 435. An agreement by an applicant for 
 admission to an old folks' home to deliver 
 to it any and all property which he may, 
 "by any devise, legacy, or otherwise, become 
 the owner of," in consideration of mainte- 
 nance during life, is void as against public 
 policy. Baltimore Humane Impartial Soc. 
 v. Pierce, 100 Md. 520, 60 Atl. 277, 70: 485 
 As to payment by promisor's executor. 
 
 436. A voluntary covenant that the oblig- 
 or's executors shall pay, within a certain 
 time after her death, a certain sum to the 
 obligee, is not void on grounds of public 
 policy. Krell v. Codman. 154 Mass. 454. 28 
 N. E. 578, 14: 860 
 As to effect of borrowing elsewhere to pay 
 
 mortgage. 
 
 437. A provision in a note secured by 
 mortgage, that the right of the maker to 
 
 make payment at any time is waived, pro- 
 viding the money tendered is borrowed in 
 whole or in part elsewhere, is contrary to 
 public policy, and void. Union C. L. Ins. Co. 
 v. Champlin, 11 Okla. 184, 65 Pac. 836, 
 
 55: 109 
 
 438. A provision in a note that a condi- 
 tion requiring the holder to receive partial 
 payments before maturity cannot be en- 
 forced if the money tendered is borrowed in 
 whole or in part elsewhere, is not invalid as 
 against public policy. Sheneberger v. Union 
 C. L. Ins. Co. 114 Iowa, 578. 87 X. W. 493, 
 
 55: 269 
 
 As to evidence. 
 For Editorial Notes, see infra, VIII. 34. 
 
 439. A contract to procure for a consid- 
 eration testimony that will win a lawsuit 
 is void as against public policy, and as tend- 
 ing to impede the administration of justice. 
 Quirk v. Muller, 14 Mont. 467, 36 Pac. 
 1077, 25: 87 
 
 440. A contract to procure evidence from 
 an absconding insolvent deocor and others 
 to show that a transfer of his property was 
 without consideration, and that tne trans- 
 feree knew of his insolvency, which evidence 
 is to be used for recovering cue debtor's 
 property by a creditor's bill, a share of the 
 proceeds of which is to be given as com- 
 pensation for such services, is void on 
 grounds of public policy because it tends to 
 subornation of perjury. Goodrich v. Tenney, 
 144 111. 422, 33 N. E. 44, 19: 371 
 
 441. One who furnished testimony under 
 a contract for a share of the proceeds of 
 litigation, which was void as against public 
 policy, cannot recover any part of such 
 proceeds if his only claim thereto arises out 
 of such contract. Id. 
 
 442. A "stipulation between an employee 
 and a guaranty insurance company which 
 insures his employer against the employee's 
 fraud or dishonesty, to the effect that a 
 voucher or other evidence of payment by 
 the insurer to the employer shall be con- 
 clusive evidence against the employee as to 
 the fact and extent of nis liability to the in- 
 surer, is void as against public policy so far 
 as it attempts to make such evidence con- 
 clusive, altnough it may be sustained to the 
 extent of making it prima facie evidence. 
 Fidelity & C. Co. v. Eickhoff, 63 Minn. 170, 
 65 N. W. 351, 30: 586 
 As to statute of limitations. 
 
 Waiver of Defense of, by Corporate Officers, 
 see Corporations, 233. 
 
 443. An agreement not to plead the 
 statute of limitations is not void as against 
 public policy. Wells, F. & Co. v. Enright, 
 127 Cal. 669, 60 Pac. 439, 49: 647 
 Creating injury to health. 
 
 444. A contract for the care of a woman 
 in the advanced stages of leprosy, by a 
 laborer and his wife, who are unskilled peo- 
 ple and have no authority to restrain- her 
 from wandering away, and who have several 
 small children in their family, is an unrea- 
 sonable one the execution of which may be 
 restrained because of its tendency to cause 
 a dissemination of the dix-a-c. Baltimore
 
 696 
 
 CONTRACTS, III. c, 2. 
 
 v. Fail-field Improv. Co. 87 Md. 352, 39 
 Atl. 1081, 40: 494 
 
 Sale of liquor. 
 See also supra, 418. 
 
 445. Plaintiff, a corporation, by its agent, 
 sold and furnished bottled beer to the de- 
 fendant, the keeper of a house of prostitu- 
 tion, as the agent well knew. While he had 
 no knowledge of just what was to be done 
 with the beer, the agent supposed at the 
 time it was furnished that it was to be used 
 or sold in the brothel. No other facts ap- 
 pearing, it is held that plaintiff can recover 
 a balance claimed to be due from defendant 
 for and on account of said sale. Anheuser- 
 Busch Brewing Asso. v. Mason, 44 Minn. 
 318, 46 X. W. 558, 9: 506 
 Lease for immoral purpose. 
 
 446. Tiie fact that tenements leased for 
 immoral purposes are located in a section of 
 the city which is mainly given up to such 
 business without interference by the police 
 authorities does not make a partnership 
 formed to lease premises for such business 
 any the less unlawful. Chateau v. Singla, 
 114 Cal. 91, 45 Pac. 1015, 33: 750 
 
 447. A partnership to carry on the busi- 
 ness of letting furnished apartment for im- 
 moral purposes is based upon an illegal 
 contract. Id. 
 To compound crime. 
 
 Va'lidity of Note Given for, see Bills and 
 
 Notes, 23, 210. 
 See also infra. 641, 642. 
 
 448. An obligation given for the settle- 
 ment of a claim for embezzlement by an 
 agent of a private person, although the pur- 
 pose of the transaction is to prevent a 
 prosecution of the embezzler, is not void on 
 grounds of public policy. Loud v. Hamil- 
 ton (Tenn. Ch.) 51 S. W. 140, 45: 400 
 
 449. contract, the consideration of 
 which, in whole or in part, is the suppres- 
 sion of a criminal prosecution, is without 
 any legal efficacy either as a cause of action 
 or as as a defense to an action not founded 
 on or arising out of the agreement. Spring- 
 field F. & M. Ins. Co. v. Hull, 51 Ohio St. 
 270. 37 N. E. 1116, 25: 37 
 
 450. The corrupting tendency of a con- 
 trac to prevent the finding of an indictment 
 renders it void, as matter of law, and its 
 validity cannot depend on the question 
 whether or no.t any acts were done in the 
 execution of the agreement which would 
 contravene public morals or subvert the 
 administration of justice. Weber v. Shay, 
 56 Ohio St. 116, 46 N. E. 377, 37: 230 
 
 451. A contract by attorneys at law to 
 render services to prevent the finding of an 
 indictment against one accused or suspected 
 of crime is illegal and void without respect 
 to their belief as to his guilt; and there- 
 fore they cannot recover on a contract for 
 such services. Id. 
 
 2. Contracts against Liability. 
 
 By Cold Storage Company, see Bailment. 18. 
 
 By Carrier, see Carriers, II. a, 10, f; II. a. 
 
 12, e; II. b, 7; Conflict of Laws.' 91 96. 
 
 By Telegraph Company, see Telegraphs, 77 - 
 
 81, 83. 
 Following State Decision as to, see Courts, 
 
 543. 
 See also supra, 371. 
 
 For libel. 
 
 452. An agreement by an author to in- 
 demnify his publisher for any costs and 
 damages by reason of the publication is not 
 invalid, on the ground that an unlawful 
 publication is intended, where it does not 
 appear that there was any intention on the 
 part of either to write or publish anything 
 libelous. C. F. Jewett Pub. Co. v. Butler. 
 159 Alass. 517, 34 N. E. 1087, 22: 253 
 For negligent fires. 
 
 453. A stipulation against liability for 
 negligence of a railroad company setting fire 
 to buildings erected on its right of way 
 under a lease may be included in the lease 
 without violating public policy. Hartford 
 F. Ins. Co. v. Chicago, M. & St. P. R. Co. 70 
 Fed. 201, 36 U. S. App. 152, 17 C. C. A. 62, 
 
 30: 193 
 
 454. The provision that carriers cannot ex- 
 empt themselves from liability by contract, 
 found in Iowa Code, 1308, does not apply 
 to a contract as to buildings on the railroad 
 right of way, although built for the promo- 
 tion of the carrier's business. Griswold v. 
 Illinois C. R. Co. 90 Iowa, 265, 57 N. W. 843, 
 
 24: 647 
 
 455. The public has no interest in the 
 question whether a railroad company or a 
 lessee who erects buildings on the right of 
 way shall bear the loss resulting from negli- 
 gence of the railroad company's servants, so 
 as to raise any question of policy in respect 
 to a contract exempting the company from 
 such liability. Id. 
 
 456. A stipulation against liability for 
 damage by fire communicated by railroad 
 trains, either accidentally or negligently, is 
 not against public policy when made in a 
 lease at a nominal rent of a portion of the 
 railroad right of way for an elevator, ware- 
 house, and other buildings for use in con- 
 nection with and for the promotion of the 
 railroad company's business; and a statute 
 making the railroad company absolutely 
 liable for all damages caused by negligent 
 fires does not change this rule. , Id. 
 
 457. A provision in a lease of a warehouse 
 owned by a railroad company, that such 
 company shall not be responsible for any 
 damage caused by fire, is not void as against 
 public policy on the ground that the prop- 
 erty of the public will thereby be in danger. 
 Stephens v. Southern P. Co. 109 Cal. 86, 41 
 Pac. 783, 29: 751 
 
 458. A contract by one permitted to place 
 a building on a railroad right of way that 
 the company shall be released from all lia- 
 bility for injury to the building by fire from 
 locomotives is valid, and will relieve the 
 company from liability, either to the owner 
 of the building or its insurer, for injury by 
 fire set out, even through negligence, un- 
 less it is wilful or wanton. Greenwich Ins. 
 Co. v. Louisville & N. R. Co. 112 Kv. 598, 66 
 S. W. 411, * 56: 477 
 
 450. An agreement by one permitted to
 
 CONTRACTS, III. c, 3. 
 
 697 
 
 place a structure on a railroad right of way, 
 as part of the consideration therefor, to 
 indemnify the railroad company against lia- 
 bility, for injury to the said property while 
 upon or about the premises, due to the care- 
 lessness of the railroad company or its serv- 
 ants, is not against public policy. Osffood v. 
 Central Vt. R. Co. 77 Vt. 334, 60 Atl. 137, 
 
 70: 930 
 
 Release of claim for injuries. 
 By Landlord against Liability for Injury by 
 
 Coal Hole, see Highways, 331. 
 See also supra, 384-387; Railroad Relief As- 
 sociations, 2; Release, 17, 19-21. 
 
 460. A contract by which an employee as- 
 sumes all liability for injuries by reason of 
 the employer's negligence or otherwise is not 
 against public policy. Pittsburg. C. C. & 
 St. L. R. Co. v. Mahoney. 148 Ind> 196, 46 N". 
 E. 917, 40: 101 
 
 461. A contract requiring a railroad em- 
 ployee to elect between a right of action 
 against his employer for personal injuries 
 and a right to benefits in a railroad relief 
 association is not contrary to public policy. 
 Pittsburg, C. C. & St. L. R. Co. v. Cox, 55 
 Ohio St. 497, 45 N. E. 641. 35:507 
 
 462. A stipulation in a benefit certificate 
 of a railroad relief association, providing 
 that, where members of that department 
 elect to accept the benefits provided by the 
 certificate, they must waive all right of ac- 
 tion against the railroad company for in- 
 jury received, is valid. Oyster v. Burling- 
 ton Relief Dept. 65 Neb. 789. 9] K W. 
 699, 59: 291 
 
 463. A provision that any claim upon the 
 relief fwnd provided bv assessments on rail- 
 road employees, aided by contributions of 
 the railroad company employing them, on 
 account of an injury to an employee, shall 
 be barred by an action for damages against 
 the railroad company if prosecuted to judg- 
 ment or compromise, and that, on the other 
 hand, the payment of such claim shall pre- 
 clude any such action against the company, 
 does not violate public policy or make an 
 unlawful restriction on railroad companies' 
 liability, since it leaves the ri<rht to elect 
 between the claim and the right of action 
 for damages. Donald v. Chicago, B. & Q. R. 
 Co. 93 Iowa, 284. 61 N. W. 971. 33: 492 
 
 464. A contract by a father releasing a 
 railway company from all liability for in- 
 juries to a minor son while in the com- 
 pany's employ is valid and binding to the 
 extent of exempting the employer from lia- 
 bility for negligent acts of itself and its 
 servants which are not Criminal. New v. 
 Southern R. Co. 116 Oa. 152. 42 S. E.-395, 
 
 59: 115 
 
 465. A contract by which the next of kin 
 of one about to be employed by a railroad 
 company releases the company from liabil- 
 ity to him for damages resulting from negli- 
 gent injuries to the employee is void as con- 
 trary to public policy, whore a statute pro- 
 vides for such liability. Tnrbell v. Rutland 
 R. Co. 73 Vt. 347. 51 Atl. 6. 56: 656 
 
 4H6. A contract by a railroad employee 
 which gives him his election, after an in- 
 jury, to take the benefits of a relief fund 
 
 to which he as well as the railroad com- 
 pany has contributed, or to sue for damages 
 in a court of law, and providing that his ac- 
 ceptance of such benefits will release the 
 employer from liability, is not contrary to 
 public policy. Eckman v. Chicago, B. & Q. 
 R. Co. 169 111. 312, 48 N. E. 496, 38: 750 
 
 467. A contract by which the acceptance 
 of benefits from a relief organization by a 
 railroad employee who has been injured 
 will operate to release the railroad company 
 from liability to damages, but which* gives 
 him the option to accept such benefits or to 
 decline them and retain his right of action 
 against the railroad company, is not against 
 public policy. Johnson v. Charleston & S. 
 R. Co. 55 S. C. 152, 32 S. E. 2, 33 S. E. 
 174, 44: 645 
 
 468. The by-law of a railroad relief as- 
 sociation which requires its members to re- 
 lease the railroad company from any claim 
 for damages before applying to the associa- 
 tion for relief, is not against public policy. 
 Owens v. Baltimore & O. R. Co. 35 Fed. 715, 
 
 1:75 
 
 3. As to Corporations and Associations. 
 
 As to Prior Right of Corporation to Pur- 
 chase Stock, see Corporations, 432. 
 
 469. A contract by a stockholder who was 
 president of a corporation, to pay one half 
 of all liability which might be fixed upon it 
 as the result of certain suits, which is made 
 as part of the transfer of all its shares to 
 another corporation which buys them for the 
 purpose of controlling it, is unlawful and 
 cannot be enforced, although the purchasing 
 corporation has fully executed the contract 
 on its part. Buckeye Marble & F. Co. v. 
 Harvey, 92 Tenn. 115, 20 S. W. 427, 18: 252 
 To control newspaper. 
 
 See also infra, 629. 
 
 470. A contract giving the right to man- 
 age a newspaper and control its policy for 
 five years, to a person employed as editor 
 and manager, is not contrary to public 
 policy when it is part of an agreement by 
 which he purchases a large quantity of 
 stock from the controlling shareholder, and 
 the agreement is approved and ratified by 
 all the stockholders. Jones v. Williams, 139 
 Mo. 1, 39 S. W. 486, 40 S. W. 353, 37: 682 
 Railroads. 
 
 As to Railroad Relief Association, see supra, 
 
 384-387, 461-463, 466-468. 
 See also supra, 453-459, infra, 490. 
 
 471. Specific performance will not be en- 
 forced of an agreement to convey an interest 
 in land to one for services in securing the 
 location of a railroad depot thereon, where 
 he has agreed to divide with certain officials 
 of the road all money received by him from 
 sales of land during the construction of the 
 road, since its tendency is to induce the of- 
 ficers of the corporation to disregard their 
 duties to it, and it is therefore against pub- 
 lic policy. Reed v. Johnston, 27 Wash. 42, 
 67 Pac. 381. 57: 404 
 
 472. Contracts undertaking to obligate a 
 railroad company to establish its depot ex-
 
 698 
 
 CONTRACTS, III. c, 4. 
 
 clusively at a particular point are void as 
 against public policy, since the company 
 must be free to establish and re-establish 
 its depots wherever the public welfare or 
 wants of the public may require. Florida 
 C. & P. R. Co. v. State ex rel. Tavares, 31 
 Fla. 482, 13 So. 103. 20: 419 
 
 Street railway. 
 
 473. Purchasing the consent of a property 
 owner to the laying down of a street rail- 
 way in a street upon which his property 
 abutSf for money or other consideration in- 
 uring to his exclusive benefit, is illegal 
 where the consent of owners representing 
 more than one half of the frontage is a 
 necessary condition of permission to lay 
 tracks in the street. Doane v. Chicago City 
 R. Co. 160 111. 22, 45 X. E. 507, 35: 588 
 
 474. An agreement to sign a petition as 
 one of the owners of more than one half of 
 the frontage on a street, whose consent is 
 necessary to the granting of permission by 
 the common council for the laying of a 
 street railway track therein, is an agree 
 ment to influence the common council, and 
 for that reason unlawful when made for a 
 consideration moving to the property owner. 
 
 Id. 
 
 475. A bond calling for payment of a cer- 
 tain sum by a street railway company to the 
 owner of property abutting on a street, in 
 case a second track is laid without his con- 
 sent, is invalid when it is given to obtain 
 his consent as one of the owners of more 
 than one half the property fronting on the 
 street, which is a condition precedent to per- 
 mission by the authorities for the laying of 
 such track. Id. 
 
 476. The agreement of a street railway 
 company not to lay a second track without 
 the consent of an owner of property abut- 
 ting upon the street is invalid as an at- 
 tempt by the company to bind itself against 
 what the public interest may require in the 
 future. Id. 
 Water companies. 
 
 477. An agreement with the promoter of 
 a corporation to construct village water- 
 works not to organize another corporation 
 for that purpose or to ask or receive a fran- 
 chise from the town authorities for that 
 purpose, is not against public policy. Oakes 
 v. Cattaraugus Water Co. 143 X. Y. 430, 38 
 X. E. 461, 26: 544 
 
 478. A contract between corporations or- 
 ganized to distribute and furnish water to 
 consumers in a county and city, one of 
 which owns a supply of water and a pipe 
 line ending at the city limits, and the other 
 a distributing plant within the city, for co- 
 operation in supplying water to the city 
 and providing a method of determining the 
 price of water, is not in violation of public 
 policy as a monopoly for its sale, since the 
 California Constitution reserves to munici- 
 pal corporations the power of regulating 
 water rates. San Diego Water Co. v. San 
 Diego Flume Co. 108 Cal. 549. 45 Pac. 495, 
 
 29: 839 
 4. Affecting Official Action. 
 
 Criminal Liability as to, see Bribery. 
 
 See also infra, 408, 499, 637. 
 For Editorial Notes, see infra. VIIT. 8 ?'> 
 33. 
 
 479. A contract to give a percentage of a 
 claim against the government for services ;n 
 collecting it is void as against public policy, 
 where the services in fact consisted largely 
 in procuring legislation from Congress by 
 which the Postoffice Department should be 
 required to pay the claim. Spalding v. 
 Ewing, 149 Pa. 375, 24 Atl. 219, 15: 727 
 
 - 480. The legislature may authorize the 
 employment of an agent to prosecute claims 
 on behalf of the state, which require the 
 procurement of legislation, for a fee con- 
 tingent on his success. Davis v. Com. 164 
 Mass. 241, 41 X. E. 292. 30: 743 
 
 Passage of statute. 
 For Editorial Notes, see infra, VIII. 33. 
 
 481. All agreements which tend to intro- 
 duce personal influence and solicitation as 
 elements in procuring and influencing legis- 
 lative action, or action by any department 
 of the government, are against public policy, 
 as contrary to sound morals and tending to 
 inefficiency in the public service. Houlton 
 v. Xichol/93 Wis. 393, 67 X. W. 715, 33: 166 
 
 482. A contract by which a person agrees 
 to draft a bill, have it introduced in the 
 legislature, explain it to, and make argu- 
 ments in its favor before, committees of 
 the legislature, and do all things needful 
 and proper to secure its passage, such party 
 to receive no compensation unless the pas- 
 sage of the bill (an appropriation act) is 
 procured; if successful, the fees not fixed, 
 but to be liberal, is vicious, illegal, and 
 void, and, in the event of the passage of 
 the bill, there can be no recovery of a fee 
 in a suit upon the contract, nor as upon an 
 implied contract, nor a quantum meruit for 
 the services performed. Richardson v. 
 Scotts Bluff County, 59 Xeb. 400, 81 X. W. 
 309. 48: 294 
 Passage of ordinance; opening or paving 
 
 street. 
 See also supra, 474. 
 
 483. The contract of employment to pro- 
 cure the passage of ordinances for paving 
 streets and alleys, at a compensation which, , 
 except for a monthly allowance, is contin- 
 gent upon success in obtaining the necessary 
 ordinances and in securing the paving con- 
 tracts consequent thereon, is void on 
 grounds of public policy. . Crichfield v. 
 Bermuda Asphalt Pav. Co". 174 111. 466, 51 
 X. E. 552. 42: 347 
 
 484. Xo part of a contract of employment 
 to promote the business of a paving com- 
 pany is valid when it contemplates, as part 
 of the duties, the procuring of the passage 
 of ordinances for paving, and the compensa- 
 tion, above a certain monthly allowance, is 
 contingent upon success in procuring them. 
 
 Id. 
 
 485. A promise by a citizen to pay part 
 of the expense of opening a street, upon 
 which an ordinance to open it is obtained, is 
 not opposed to public policy, and the ordi- 
 nance will not be set aside on that ground. 
 State ex rel. Xorth Orange Bapt. Church v.
 
 CONTRACTS, III. c , 5. 
 
 699 
 
 Orange (X. J. Sup.)54 X. J. L. Ill, 22 Atl. 
 1004, 14: 62 
 
 486. A contract to pay a lawyer a certain 
 sum to appear before the street commission- 
 ers, and advocate the laying out of a street 
 through land of the promisor, and to get as 
 much as he can as damages therefor, is not 
 against public policy, but it is a valid con- 
 tract which will not be invalidated by evi- 
 dence tending to show the subsequent use 
 by the lawyer of his personal influence as 
 chairman of the city committee of a polit- 
 ical part}- in fulfilling his part of the con- 
 tract. Barry v. Capen. 151 Mass. 99. 23 X. 
 E. 735, 6: 808 
 Appointment, nomination, or election to of- 
 fice. 
 
 See also infra, 636. 
 
 For Editorial Xotes, see infra, Vftl. 32. 
 
 487. An agreement for expenses and com- 
 pensation for services to influence or pro- 
 cure appointment to office is void. Basket 
 v. Moss, 115 N. C. 448, 20 S. E. 733. 48: 842 
 
 488. The promise to pay interest on bal- 
 ances in favor of the city, made by a banker 
 to induce his election by the council as city 
 treasurer, is against public policy and is 
 incapable of enforcement. Wilkes-Barre v. 
 Rockafellow. 171 Pa. 177, 33 Atl. '269, 
 
 30: 393 
 
 489. A contract by the publisher of a 
 newspaper to use it in influencing the choice 
 of delegates and the action of a convention 
 in favor of a certain candidate for public 
 office is void as contrary to public policy. 
 Livingston v. Page. 74 Vt. 35fi, 52 Atl. 965, 
 
 59 : 336 
 As to public lands. 
 
 490. A contract by railroad companies to 
 refrain from any effort to obtain a grant of 
 public lands from the legislature, and to aid 
 another company to procure it by all reason- 
 able and proper assistance, in consideration 
 of a share of the grant obtained by the lat- 
 ter, is void as against public policy. Chip- 
 pewa Valley & S. R. Co. v. Chicago. St. P. 
 M. & O. R/Co. 75 Wis. 224, 44 N. W. 17, 
 
 6: 601 
 
 491. A contract for the presentation, be- 
 fore the Secretary of the Interior, of the 
 legal status of certain public lands, with a 
 view of having them thrown open to settle- 
 ment under existing laws, not as a favor, 
 but as a right to which all persons simil- 
 arly situated were entitled, without any at- 
 tempt to procure legislation, is not against 
 public policy when it does not appear that 
 any act illegal per KB or of corrupt tendency 
 was contemplated. Houlton v. Xichol. 93 
 Wis. 393, 67 N. W. 715, 33: 166 
 
 492. A contract for services in procuring 
 legislation which forfeits to the government 
 timber lands previously included in a rail- 
 road grant, and gives the preference in pur- 
 chase thereof to those who have already 
 settled thereon, whereby the other party to 
 the contract is enabled to buy very valuable 
 government land for the paltry sum of 
 $1.25 or $2.50 per acre, is void as against 
 public policy. Houltnn v. Dunn. GO Minn. 
 26, Cl N. W. 898, 30: 737 
 
 To give bonus for public enterprise. 
 
 493. The inducement to order and hold an 
 election and to issue the bonds of a school 
 district for the purpose of building a library, 
 which is made by the promise of a private 
 individual to pay the expense of buying a 
 site for the building, is not contrary to pub- 
 lic policy when the board has previously 
 exercised its judgment and determined the 
 desirability of a new library building, but 
 is unable to proceed with the enterprise un- 
 til money is provided to purchase a site. 
 Kansas City School Dist. v. Stocking, 138 
 Mo. 672, 40 S. W. 656, 37:406 
 Granting of pardon. 
 
 494. An agreement that, for a pecuniary 
 consideration, a person will withdraw oppo- 
 sition to the granting of a pardon, and will, 
 by solicitation and the exercise of personal 
 influence, endeavor to induce the pardoning 
 authority to grant a pardon to one who has 
 been convicted of a crime, contravenes pub- 
 lic policy and is void. Deering & Co. v. Cun- 
 ningham, 63 Kan. 174, 65 Pac. 263, 54: 410 
 
 . 5. Contracts of Public Officers. 
 
 For Contracts Affecting Official Action, see 
 supra, III. c, 4. 
 
 Contracting for Period Beyond Term of Of- 
 fice, see Municipal Corporations, 310- 
 319. 
 
 495. An agreement by a city not to op- 
 pose a railroad company's closing certain 
 of its streets crossed by the latter at grade, 
 in consideration of the making of compensa- 
 tion solely to private individuals, is void as 
 against public policy. New Haven v. New 
 Haven & D. R. Co. 62 Conn. 252, 25 Atl. 
 310. 18:256 
 
 496. An offer to print a delinquent tax 
 list for less than the statutory rate, and 
 the tender of a bond for the faithful per- 
 formance of the work, on which a contract 
 is entered into with the county clerk, who 
 has no power to make such contract, will 
 not prevent recovery for the full statutory 
 rate. Hoffman v. Chippewa County, 77 Wis. 
 214, 45 N. W.. 1083, 8: 781 
 
 497. Public policy will not avoid a con- 
 tract by a municipality to pay for a rea- 
 sonable length of time a portion of the 
 taxes assessed against a water company, as 
 part consideration for a water supply, mere- 
 ly because the gross and annual amounts to 
 be paid are uncertain and the return to be 
 received is also uncertain, where the con- 
 tract is limited to the taxes assessed on the 
 property owned by the company at the time 
 of its execution, and on pipe lines, hydrants, 
 and fixtures thereafter laid. Maine Water 
 Co. v. Watewille, 93 Me. 586. 45 Atl. 830, 
 
 49: 294 
 To influence action. 
 
 498. Giving anything of value to a com- 
 missioner of a board of education to in- 
 fluence him in the discharge of a legal duty 
 renders void any contract to the validity 
 of which his vote or assent was necessary. 
 Honaker v. Pocatalico Dist. Bd. of Edu. 
 42 W. Va. 170. 24 S. E. 544. 32: 413
 
 700 
 
 CONTRACTS, III. c, 5. 
 
 4'J9. The giving to a school commissioner 
 of money to pay him for his time and re- 
 imburse him for loss sustained by closing 
 his place of business, in order to induce 
 him to attend a meeting of the board of 
 education to pass upon a proposed contract 
 for the purchase of charts for the schools, 
 will make void a contract therefor, when 
 there was not a majority in favor of it with- 
 out his vote. Id. 
 As to compensation. 
 
 500. A contract by a municipal corpora- 
 tion to pay a public officer a percentage 
 compensation, in addition to, or instead of. 
 that prescribed by law, is against public 
 policy and void. Adams County v. Hunter, 
 78 Iowa, 328, 43 X. W. 208, 6: 615 
 
 Lancaster County v. Fulton, 128 Pa. 48, 
 18 Atl. 384, 5: 436 
 
 501. A contract to pay a- city attorney 
 any compensation other than his salary, for 
 conducting litigation on behalf of the city 
 which is within the scope of his official 
 duties, is void by public policy as well as 
 by the provisions of Cal. Const, art. 11, 9. 
 Buck v. Eureka, 109 Cal. 504, 42 Pac. 243, 
 
 30: 409 
 
 502. For services rendered after the ex- 
 piration of his term of office under a void 
 contract to pay an officer extra compensa- 
 tion he cannot have any recovery under the 
 contract, though he may be entitled to 
 some compensation upon an implied con- 
 tract. Id. 
 
 503. The employment of a county clerk to 
 index the records of his office, under a spe- 
 cial contract which is required by "indispen- 
 sable public necessity" within the meaning 
 of Ind. Rev. Stat.. 5766, prohibiting al- 
 lowances, directly or indirectly, to such of- 
 ficers except in cases of indispensable pub- 
 lic necessity, is not invalid because of the 
 official relations of the clerk with the county 
 board, or on the ground that it was extra 
 compensation for his official services. Tip- 
 pecanoe Countv v. Mitchell. 131 Ind. 370, 
 30 X. E. 409, * 15: 520 
 Sale of office. 
 
 504. A sale by a postmaster of his post- 
 office cabinet, furniture, and fixtures, in- 
 cluding his agreement to resign his office 
 and recommend the appointment of the 
 other party as successor, is void as against 
 public policy. Edwards v. Randle, 63 Ark. 
 318, 38 S. W. 343, 36: 174 
 
 505. A contract by which a sheriff and tax 
 collector turns over the tax list to another 
 person, with an agreement to give him a 
 certain commission for collecting the taxes 
 for certain years, is illegal and void on 
 grounds of public policy, under X. C. Code, 
 2084, which provides that the sheriff shall 
 not "let to farm in any manner his county 
 or any part of it." Cansler v. Penland, 125 
 X. C/578, 34 S. E. 683, 48: 441 
 
 506. A contract between a sheriff and his 
 deputy, providing that the deputy shall col- 
 lect all the taxes, with slight exceptions, and 
 do all the work of the sheriff's office in one 
 district, and attend the sessions of the 
 court during stated portions of the time 
 each vear, and that he shall have all the 
 
 fees and commissions allowed by law upon 
 the work done by him, and shall pay the 
 sheriff $100 a year, violates W. Va. Code, 
 chap. 7, 5, prohibiting the sale or farm- 
 ing, in whole or in part, of any office un- 
 der the laws of the state. White v. Cook, 
 51 W. Va. 201, 41 S. E. 410, 57:417 
 
 507. An agreement by a retiring city 
 treasurer with a friend, that the latter shall 
 run for the office of city treasurer and the 
 former for mayor, and in case of the elec- 
 tion of both the city treasurer elect shall 
 be so only nominally, and that the retiring 
 one shall act both as mayor and treasurer, 
 and shall receive and pay out moneys as 
 such latter officer, is against public policy 
 and void, especially under How. (Mich.) 
 Stat. 2439, invalidating the election of a 
 defaulter; and a bond given by such default- 
 er to the treasurer elect, to secure the 
 sums so held, is in pursuance of such illegal 
 agreement, and is void, and no recovery can 
 be had thereon. Cobbs v. Hixson, 75 Mich. 
 260, 42 X. W. 818, . 4: 682 
 Private interest of officer. 
 
 508. Dealings between a public officer and 
 himself as a private citizen, that bring him 
 into collision with other citizens equally in- 
 terested with himself in the integrity and 
 impartiality of the officer, are against pub- 
 lic policy. Goodyear v. Brown, 155 Pa. 514. 
 26 Atl. 665, 20: 838 
 
 509. A contract for the erection of a 
 school building, entered into with a mem- 
 ber of the building committee who is also 
 a selectman of the town, is not void on 
 the ground of public policy, merely because 
 his vote is necessary to authorize the con- 
 tract. Sylvester v. Webb, 179 Mass. 236, 60 
 X. E. 495. 52: 518 
 
 510. An officer cannot recover on an im- 
 plied contract with a municipality for ma- 
 terials supplied to it. where the statutes 
 prohibit him from being "directly or indi- 
 rectly interested in any contract" with the 
 city, and make a violation thereof a misde- 
 meanor. Berka v. Woodward, 125 Cal. 119. 
 57 Pac. 777, 45: 420 
 
 511. A contract made by a water com- 
 pany with a borough, under an ordinance 
 passed by a council of which the majority 
 were directors of the water company, is ab- 
 solutely void, under Pa. act March 31, 1860, 
 66 (P. L. 400), prohibiting municipal of- 
 ficers from being interested in any contract 
 with the corporation. Milford v. Milford 
 Water Co. 124 Pa. 610, 17 Atl. 185, 3: 122 
 
 512. A contract for the sale of property 
 to a city through one of its officers, who 
 receives a commission from the other party 
 for effecting it, is illegal and void both at 
 common law and under Ohio Rev. Stat. 
 6969, declaring it a penal offense for any 
 public officer, agent, servant, or employee to 
 be directly or indirectly interested in any 
 contract for the purchase of any property 
 of the state, county, or municipality. Find- 
 lay v. Pertz, 31 U. S. App. 340, 13 C. C. A. 
 559. 66 Fed. 427. 29: 188 
 
 513. The fact that the mayor of a city is 
 also the president and a stockholder of a 
 gas company which furnishes gas to the
 
 CONTRACTS, III. d. 
 
 701 
 
 dty, not by virtue of any contract, but by 
 requirement of law, when he has no author- 
 ity in the matter of procuring the gas, does 
 not defeat the right to enforce payment 
 from the city, although the charter of the 
 city provides that no officer shall be directly 
 or indirectly interested in any contract, 
 work, or business, or the sale of any article 
 for which payment is to be made from the 
 city treasury, and that all contracts in vio- 
 lation thereof shall be void. Capital Gas 
 Co. v. Young. 109 Cal. 140. 41 Pac. 869, 
 
 29: 463 
 
 514. A corporation is not disqualified to 
 bid for a contract to be let by the state 
 furnishing board, by reason of the fact that 
 its business manager, who is not a stock- 
 holder or officer of the company, and whose 
 salary or position will not be im any way 
 affected by the contract, was a member of 
 the legislative assembly which passed the 
 act providing for the letting of such con- 
 tract. State ex rel. Eaves v. Rickards, 16 
 Mont. 145, 40 Pac. 210, 28: 298 
 
 To make arrest. 
 
 .~>1.~>. The fact that a justice of the peace 
 has in reality no jurisdiction of the case will 
 not prevent a contract by him to secure the 
 arrest of a person against whom a prose- 
 cution has been instituted before him from 
 being against public policy, where the extent 
 of his compensation is contingent on the 
 recovery of property from the defendant. 
 Brown v. First Nat.' Bank, '137 Tnd. 655, 37 
 N. E. 158, ' 24: 206 
 
 516. A contract by a justice of the peace 
 to make an arrest for a pecuniary consid- 
 eration contingent on the amount of prop- 
 erty that may be recovered of a person who 
 is charged with larceny by an affidavit filed 
 with such justice is void on grounds of pub- 
 lic policy, even if the proceeding before the 
 justice can be merely a preliminary exam- 
 ination. Id. 
 
 d. Gambling and Wager Contracts. 
 
 Remedy in Case of, see infra, 616-619. 
 
 Recovery of Money Deposited with Stake- 
 holder, see Betting, 2. 
 
 Note Payable in Event of Election to Of- 
 fice, see Bills and Notes, 25. 
 
 Invalidity of Note Growing out of, see Bills 
 and 'Notes. 20. 
 
 Validity of Note in Hands of Bona Fide 
 Holder, see Bills and Notes, 212. 
 
 Validity of Option Contract by Corporation, 
 see Corporations, 144. 
 
 Necessity of Insurable Interest in Life, see 
 Insurance, II. 
 
 Gambling Transaction by Agent, see Prin- 
 cipal and Agent, 61. 
 
 Property Right in Quotations used for 
 Gambling, see Property, 2. 
 
 As to Gaming Generally, see Gaming. 
 
 As to Lottery, see Lottery. 
 
 For Editorial Notes, see infra. VTIT. 37. 
 
 517. Wagers, being inconsistent with the 
 established interests of society and in con- 
 flict with the morals of the age, are void 
 as against public policy. Bernard v. Taylor. 
 23 Or. 416, 31 Pac. 968, 18: 859 
 
 -~>1S. An agreement to satisfy a contract 
 by adjustment of differences between the 
 contract and the market price is not neces- 
 sary to make an agreement void as an op- 
 tion contract*, under 111. Grim. Code, 130. 
 Schneider v. Turner. 130 111. 28, 22 N. E. 
 497, 6: 164 
 
 519. To make a contract for the purchase 
 and sale of merchandise a wagering contract 
 it is sufficient, whatever may be the form 
 of the contract, that both parties under- 
 stand and intend that one party shall not 
 be bound to deliver the merchandise and 
 the other party to receive it and pay the 
 price, but that a settlement shall be made 
 by the payment of the difference between 
 the contract price and the market price of 
 the merchandise at that time. Harvey v. 
 Merrill, 150 Mass. 1, 22 N. E. 49, 5: 200 
 
 520. A guaranty that cattle of another 
 person will sell in market for 4 cents per 
 pound, made in consideration of the pay- 
 ment of $30, and an agreement by the other 
 party to pay the guarantor any excess in 
 the selling price above 4 cents per pound, 
 is a gambling contract. First Nat. Bank v. 
 Carroll, 80 Iowa, 11, 45 N. W. 304, 8: 275 
 Playing at cards, etc. 
 
 521. An agreement between an employer 
 and his employees, that winnings of the em- 
 ployees at card games played with each 
 other shall be debited and credited on the 
 respective accounts due the employees, is in- 
 valid as against public policy and the stat- 
 utes forbidding gambling, so that the em- 
 ployer cannot refuse to pay wages earned, 
 on the ground that the amount has already 
 been paid to another employee to whom it 
 has been credited because of his winnings 
 from claimant. Olson v. Sawyer- Goodman 
 Co. 110 Wis. 149, 85 N. W. 640, . 53: 648 
 
 522. A member of a club who shares in a 
 "take-out" or percentage of the winnings of 
 gambling which the club receives from 
 jrames played in it, and in which he to some 
 extent acts as manager, is such a joint 
 wrongdoer with the winner that he cannot 
 recover on a note for money loaned by him 
 with knowledge that it was to be used in 
 such game. White v. Wilson, 100 Ky. 367. 
 38 S. W. 495. 37: 197 
 Purchase of grain, stocks, etc. 
 Speculation in Cotton by Savings Bank, see 
 
 Banks, 346-348. 
 
 Validity of Note in Hands of Bona Fide 
 Purchaser, see Bills and Notes, 212. 
 
 Conflict of Laws as to, see Conflict of Laws. 
 37-39, 242. 
 
 Sufficiency of Proof of Intent Not to Re- 
 ceive Stock Certificates, see Evidence, 
 2287. 
 
 Indictment for Selling Futures, see Indict- 
 ment, etc. 78, 132. 
 
 Injunction against Violation of Agreement, 
 see Injxinction, 84. 
 
 Enjoining Wrongful Dissemination of Quo- 
 tations Used in, see Injunction, 128. 
 
 Right to Set-Off for Amount Paid to Agent, 
 see Set-Off and Counterclaim. 4. 
 
 Question for Jury as to, see Trial, 216. 
 
 For Editorial Notes, see infra, VIII. 37. 
 
 523. A broker who is privy to the unlaw-
 
 702 
 
 CONTRACTS, III. d. 
 
 ful design of the parties to an option con- 
 tract, and brings them together for the pur- 
 pose of making it, cannot recover for any 
 services or losses incurred in the transac- 
 tion. Pope v. Hanke, 155 111. 617, 40 X. E. 
 S39, 28: 568 
 
 524. A wagering contract in futures is 
 not shown by the fact that the purchaser 
 intended to sell his contract before the time 
 for performance arrived, unless it is also 
 shown that the other party to the contract 
 did not contemplate an actual performance 
 of the obligation on his part. Scoles v. 
 State, 46 Tex. Crim. Rep. 296, 81 S. W. 947, 
 
 66: 730 
 
 525. Evidence that a debt was a balance 
 in dealings on the board of trade in margins 
 on wheat is not sufficient to prove the trans- 
 action a gambling one. Preston v. Cincin- 
 nati, C. & H. V. R. Co. 36 Fed. 54, 1 : 140 
 
 526. In considering contracts to purchase 
 and receive grain, although the outward 
 forms of law may have been complied with, 
 yet, where the defense is that the contract 
 is a wagering one, and not intended for the 
 actual sale and delivery of the property, it 
 is the duty of the courts to go behind the 
 contract, and examine the facts and circum- 
 stances which attended the making of it, in 
 order to ascertain its true character 
 Sprague v. Warren, 26 Neb. 326, 41 X. W. 
 1113, 3:679 
 
 527. Where doubt is cast upon the valid- 
 ity of a contract for the sale of grain, by 
 the testimony, it is the duty of the party 
 claiming any rights under it to make it 
 satisfactorily and affirmatively appear that 
 the contract was made with the intention to 
 deliver the grain. Id. 
 
 528. Testimony of a commission merchant 
 lhat lip nrvor had a warehouse receipt for 
 grain in a warehouse, which he claimed to 
 have purchased on the order of certain par- 
 ties; that he did not know in what eleva- 
 tor the alleged grain was which he claimed 
 to have purchased; and that he settled the 
 alleged losses by "ringing up" in the board 
 of trade, fails to show a bona fide pur- 
 chase of grain for actual delivery. Id. 
 
 529. Mere knowledge on the part of a per- 
 son loaning money that the borrower in- 
 tends to use it by engaging in the purchase 
 of options on grains in the market of an- 
 other state, or investing it in wagering or 
 gambling contracts, will not defeat an ac- 
 tion by the lender to recover back the 
 amount loaned. Jackson v. City Xat. Bank, 
 125 Ind. 347, 25 X. E. 221. 9: 657 
 
 530. 2 X. Y. Rev. Stat, chap. 20, tit. 8. 
 16, declaring securities, any part of the con- 
 sideration of which is money won by play- 
 ing at any game, or by betting on the 
 hands of such as do play at any game, or 
 to repay any money knowingly loaned to a 
 player at the time and place of such play, 
 to be void, has no application to notes exe- 
 cuted to obtain money with which to pur- 
 chase options or to put up as margins in 
 cotton speculations. Sondheim v. Gilbert. 
 117 Ind. 71. 18 X. E. 687. 5: 432 
 
 531. A contract that the defendant should 
 give orders from time to time to the plain- 
 
 tiff for the purchase and sale, on account of 
 the defendant, of equal amounts of pork to 
 be delivered in the future; that the plain- 
 tiff should, in his own name, make these 
 purchases and sales on the board of trade, 
 and should, at or before the time of deliv- 
 ery, procure these contracts to be set off 
 against each other according to the usages 
 of that board; that the defendant should 
 not be required to receive any pork and 
 pay for it, or to deliver any pork and re- 
 ceive the pay for it, but should only be re- 
 quired to pay to the plaintiff, or entitled to 
 receive from him, the differences between 
 the amounts of money which the pork was 
 bought for and was sold for; and that the 
 defendant should furnish a certain margin 
 and should pay tne plaintiff his commis- 
 sions, is a wagering contract. Harvey v. 
 Merrill, 150 Mass. 1, 22 N* E. 49, 5: 200 
 
 532. A contract reciting that for a certain 
 consideration one agrees to sell to another 
 certain stock for a certain sum, "if taken 
 on or before" a certain future day, is a con- 
 tract to give the latter the option to buy 
 stock at a future time. Schneider v. Tur- 
 ner, 130 111. 28, 22 N. E. 497, 6: 164 
 
 533. A contract for the sale of stock, "if 
 taken on or before" a certain day, is void as 
 an option contract, under 111. Crim. Code, 
 130, although it would not be void at com- 
 mon law. Id. 
 
 534. A purchase of stock by a broker for 
 his customer, who puts up a margin, and, 
 aside from commissions and interest, simply 
 receives or pays the difference between the 
 buying and selling values, is invalid under 
 Cal. Const, art. 4, 26, as a sale of stock 
 on margin, and can give the broker no right 
 to enforce the customer's indebtedness to 
 him thereon. Cashman v. Root, 89 Cal. 373, 
 26 Pae. 883, 12: 511 
 
 535. A contract to share the profits of a 
 "short" sale of the stock of a corporation, 
 the shares to meet which are to be pur- 
 chased at a decline anticipated because of a 
 legislative investigation of its affairs with 
 one about to bring such affairs to the at- 
 tention of the legislature with the intention 
 of impairing the reputation of the corpo- 
 ration for the protection of his own busi- 
 ness, in consideration of his furnishing ad- 
 vance information as to the probable course 
 and development of the investigation, is 
 void as contrary to public policy. Veazey v. 
 Allen, 173 N. Y. 359. 66 N. E. 103, 62:'362 
 
 536. That one ordering a broker to pur- 
 chase stocks on his account had not the 
 means of paying for them is not conclusive 
 evidence that a mere wagering contract was 
 intended, where the purchaser availed him- 
 self of the broker's credit and facilities for 
 borrowing on the stocks themselves. Win- 
 ward v. Lincoln. 23 R. I. 476, 51 Atl. 106, 
 
 64: 160 
 
 537. Actual purchases of stock by a bro- 
 ker are shown by a ledger indicating that, 
 in response to an order to purchase, the bro- 
 ker charged the customer with the price of 
 the stock, charged him monthly interest on 
 the amount invested, credited dividends re- 
 ceived from the stocks and the entry of the
 
 CONTRACTS, III. e, 1. 
 
 final closing out of the stock at different 
 prices during the day as shares were sold, 
 while tne broker's correspondent testifies 
 that, as to at least some of the stock, the 
 broker actually had the shares in his posses- 
 sion. Id. 
 
 538. A transaction by which a broker, 
 upon orders of his customer, actually pur- 
 chases stocks in good faith and with the in- 
 tention that they shall be delivered upon 
 demand, is not void as a wager at common 
 law, although the stocks are not in fact 
 paid for by, or delivered to, the customer, 
 who has no intention of receiving them, but 
 are held by the broker, who either borrows 
 or advances the purchase money upon the 
 security of the stock, and holds them until 
 ordered by the customer to sell them. Id. 
 
 539. Under the Illinois statute, making il- 
 legal an option to sell or buy at a future 
 time any grain or other commodity, a con- 
 tract for the purchase of 150 cars of coal, 
 with a privilege of 250 cars more, is, as to 
 the 250 cars, void as a wagering contract. 
 Osgood v. Bauder, 75 Iowa, 550, 39 X. W. 
 887, 1 : 655 
 
 540. A contract for a certain quantity of 
 coal, with the privilege of an additional 
 quantity, may be valid as to the part ac- 
 tually bought, though void as a wagering 
 contract in respect to the other part. Id. 
 
 541. A contract for the privilege of order- 
 ing any quantity of coal not exceeding 12,- 
 000 tons is not an option contract in viola- 
 tion of 111. Crim. Code, 130, where it is 
 made as a modification of a prior disputed 
 contract, with the intention of limiting the 
 quantity to be ordered, without relieving the 
 purchaser from an obligation under the prior 
 agreement to purchase the amount required 
 in a certain business. Minnesota Lumber 
 Co. v. Whitebreast Coal Co. 160 111. 85, 43 
 X. E. 774, 31 : 529 
 Bet on horse race. 
 
 Enforcement of, see infra, 617-619. 
 Conflict of Laws as to, see Conflict of 
 
 Laws, 40. 
 Gaming in Connection with Horse Racing 
 
 as a Criminal Offense, see Gaming, 12- 
 
 16. 
 
 542. An agreement by the owners of race 
 horses entered at certain stake races, to 
 divide equally all premiums and stake 
 moneys offered by the associations on such 
 races, awarded to any of the horses of 
 either, is not void as a wagering contract. 
 Hankins v. Ottinger, 115 Cal. 454, 47 Pac. 
 254, 40: 76 
 
 e. In Restraint of Trade. 
 1. In General 
 
 To Ship by One Railroad Only, see Car- 
 riers, 1025. 
 
 Contract Giving Exclusive Privilege to 
 Hacks, Carriages, etc., see Carriers, 
 1045-1067. 
 
 Combinations between Several Persons or 
 Corporations in Restraint of Trade or 
 Commerce, see Conspiracy, II, 
 
 1 Ordinance Creating Monopoly, see Constitu- 
 tional Law, 449. 
 Grant of Monopoly for Removal of Gai- 
 
 bage, see Constitutional Law, 456-461. 
 Void Provision for Creation of Monopoly in 
 
 Corporate Charter, see Corporations, 18. 
 Retaining Power 'of Voting Corporate 
 
 Stock, see Corporations, 661. 
 Effect of Sale of Good Will, see Good Will, 
 
 III. 
 Provision Against Insurance Inuring to 
 
 Benefit of Carrier, see Insurance, 1257. 
 Lease of City Gas Works, see Municipal 
 
 Corporations, 393. 
 See also supra, 429, 430, 478, infra, 620; 
 
 Commerce, 87, 101. 
 For Editorial Notes, see infra, VIII. 36. 
 
 543. The illegality of the by-laws or coiu 
 tract of a stock exchange as being in re- 
 straint of trade cannot be invoked by a 
 stranger as a ground of compelling the mem- 
 bers of such exchange to disobey such rules, 
 as the law does not prohibit contracts in re- 
 straint of trade, but merely declines after 
 they are made to recognize their validity. 
 American Livestock Com. Co. v. Chicago 
 Livestock Exchange, 143 111. 210, 32 N. E. 
 274, 18: 190 
 
 544. It is not necessary that a contract 
 should create a pure monopoly in order to 
 be void as in restraint of trade. Texas 
 Standard Cotton Oil Co. v. Adoue, 83 Tex. 
 650, 19 S. W. 274, 15: 598 
 
 545. All agreements in general restraint 
 of trade are against public policy and void, 
 although agreements having such partial 
 effect only, made in connection with the 
 purchase of a business and its good will, and 
 reasonably necessary to the enjoyment 
 thereof, and not oppressive, may be en- 
 forced. Lufkin Rule iJo. v. Fringeli, 57 Ohio 
 St. 596, 49 N. E. 1030, 41: 185 
 
 546. A bald covenant in restraint of trade, 
 for which there is no other consideration 
 than the payment of money for the obliga- 
 tion itself, without any purchase of the 
 business, practice, trade, or plant of thp 
 covenantor, is void. Tuscaloosa ice Mfg. Co. 
 v. Williams. 127 Ala. 110, 28 So. 669, 
 
 50: 175 
 
 547. An agreement to prevent competition 
 between two corporations in the manufac- 
 ture of fish glue under a patent, whereby an 
 article nearly worthless is to be converted 
 into one of large value, is not against public 
 policy. Gloucester Isinglass & G. Co. v. 
 Russia Cement Co. 154 Mass. 92, 27 N. E. 
 1005, 12: 563 
 Creating agency. 
 
 548. A contract giving a person an exclu- 
 sive agency for the sale of a brand of cigars 
 in a certain territory is not void as in re- 
 straint of trade. Newell v. Meyendorff, 9 
 Mont. 254, 23 Pac. 333, 8: 440 
 
 549. One who has sold his property to a 
 combination, and been placed in possession 
 as agent of the purchaser, cannot after years 
 of service under that agreement, repudiate 
 the contract, and reclaim the property, on 
 the ground that the contract under which 
 the sale was effected was in restraint of
 
 704 
 
 CONTRACTS, III. e, 2. 
 
 trade. Gilbert use of Bishop v. American 
 Surety Co. 57 C. C. A. 619, 121 Fed. 499, 
 
 61 : 253 
 Restricting use of electrotype plates. 
 
 550. An agreement by the purchaser of 
 electrotype plates, that he will not sell them 
 to other parties or multiply them for the 
 purpose of selling them, is valid and enforce- 
 able ; and a sale by him to a third person, 
 with no restriction as to the use to be made 
 of them, may give his vendor a right to sub- 
 stantial damages for breach of the agree- 
 ment. Meyer v. Estes, 164 Mass. 457, 41 X. 
 E. fiSS 32: 283 
 Resviiting use of switch track or right of 
 
 way. 
 
 551. A railroad company having power to 
 condemn land for a right of way for a 
 switch track cannot bind itself by an agree- 
 ment with a dealer in coal that, in consid- 
 eration of the right to place the track on 
 his land, it will not be used to haul coal for 
 other persons having access to it. Louis- 
 ville & N. R. Co. v. Pittsburgh & K. Coal Co. 
 111 Ky. 960, 64 S. W. 969, 55:601 
 
 552. An agreement giving the exclusive 
 right of way to a railroad company, in so 
 far as it attempts to exclude other compan- 
 ies from acquiring a right of way over the 
 same tract, upon land not appropriated or 
 -equired for the use of the former company, 
 ; s void as against public policy. Kettle 
 Uiver R. Co. v. Eastern R. Co. 41 Minn. 461, 
 43 N. W. 469, 6: 111 
 j>y patron of telephone company. 
 
 553. A contract by a patron of a telephone 
 company not to engage service from a rival 
 company is void as contrary to public policy. 
 Gwynn v. Citizens' Teleph. Co. 69 8. C. 434, 
 48 S. E. 460, 67: 111 
 As to sale of liquor. 
 
 554. A lessee's agreement to sell no other 
 beer on the premises than that manufactured 
 by a designated company is not invalid 
 as against public policy. Ferris v. Amer- 
 ican Brewing Co. 155 'ind. 539, 58 K E. 
 701, 52: 305 
 
 2. To Refrain from Business. 
 
 I?v Owner Selling Newspaper, see Constitu- 
 tional Law, 1088. 
 
 Power of Corporate Stockholder as to. see 
 Corporations, 470. 
 
 Measure of Damages for Breach of Con- 
 tract, see Damages, 95. 
 
 Stipulated Damages for Breach of Contract, 
 see Damages, 182-184. 
 
 Kn joining Breach of Contract, see Injunc- 
 tion, 96-103. 
 
 Question for Jury as to, see Trial. 247. 
 
 See also supra. 312-314. infra. 734-737. 767, 
 829. 
 
 For Editorial Notes, see infra. VIII. 36. 
 
 555. A covenant not to engage in a par- 
 ticular business will not invalidate the con- 
 tract of which it is part, if such contract 
 has otherwise a legal consideration. Rosen - 
 baum v. United States Credit System Co. 
 (X. J. Err. & App.) 65 N. J. L. 255, 48 Atl. 
 237. 53: 449 
 
 556. A contract is not void as being in 
 general restraint of trade, when it operates 
 simply to prevent a single party from en- 
 gaging or competing in the same business. 
 Leslie v. Lorillard, 110 X. Y. 519, 18 X. E. 
 363, 1 : 456 
 
 557. The enforcement of a contract not 
 to engage in business in competition with 
 the other contracting party cannot be pre- 
 vented on the ground that such party is an 
 illegal trust or monopoly. Harrison v. Glu- 
 cose Sugar Refining Co. 53 C. C. A. 484, 116 
 Fed. 304. 58: 915 
 
 558. A covenant by the seller of a busi- 
 ness and its good will, not to engage in a 
 competitive business, although in restraint 
 of trade, is not opposed to public policy, 
 but is valid and enforceable if the restraint 
 contracted for is partial and is reasonably 
 required for the protection of the purchaser 
 in the use and enjoyment of the business 
 purchased. Trenton Potteries Co. v. Oli- 
 phant (N. J. Err. & App.) 58 N. J. Eq. 507, 
 43 Atl. 723, 46: 255 
 
 559. The temporary suspension of a news- 
 paper while reasonably diligent efforts are 
 made to find a suitable editor and continue 
 the business will not defeat the right of the 
 owner to enforce an agreement restricting 
 competition by a former owner of the paper. 
 Cowan v. Fairbrother. 118 X. C. 406, 24 S. 
 E. 212, 32: 829 
 
 560. A contract by one selling stock in a 
 corporation organized for the posting of 
 bills, not to engage in that business in com- 
 petition with the corporation, is void as in 
 restraint of trade, under Cal. Civ. Code, 
 1673. Merchants' Ad-Sign Co. v. Sterling, 
 124 Cal. 429, 57 Pac. 468, 46: 142 
 Limitations as to time. 
 
 See also infra, 736. 
 
 For Editorial Notes, see infra, VIII. 36. 
 
 561. A contract will not be declared void 
 for unreasonableness, which prevents the 
 manufacturer of oleomargarine from again 
 engaging in the business for five years upon 
 his uniting with other manufacturers in 
 the formation of a corporation for the pro- 
 duction of that article. Oakdale Mfg. Co. 
 v. Garst, 18 R. I. 484, 28 Atl. 973, 23: 639 
 
 562. A five years' restriction on the use 
 of a secret process and trademarks sold 
 with the business is not an illegal restraint 
 of trade, though it applies not only to the 
 seller, but to those employed by, or asso- 
 ciated with, her in the business. Tode v. 
 Gross, 127 X. Y. 480, 28 N. E. 469, 13: 652 
 
 563. A contract by one selling the right 
 to manufacture and sell a machine which 
 he has devised not to engage in the business 
 of making such machines himself, nor grant 
 anyone else the right to do so during the 
 life of the contract, is not void as against 
 public policy, where possible customers are 
 limited in number and scattered through- 
 out the country. Bancroft v. Union Em- 
 bossing Co. 72 N. H. 402, 57 Atl. 97, 64: 298 
 
 564. A covenant by the seller of a busi- 
 ness and its good will to a corporation, not 
 to engage in a competitive business during 
 the life of the corporation, which is fifty 
 years, or for a short time in excess of its
 
 CONTRACTS, III. e, 2. 
 
 705 
 
 corporate life, is not unreasonable as to 
 terra. Trenton Potteries Co. v. Oliphant, 
 (N. J. Err. & App.) 58 N. J. Eq. 507, 43 Atl. 
 723, 46:255 
 
 565. The restraint of an employee from 
 engaging in business so long as he continues 
 in the employment of a person who agrees 
 to give him permanent employment does 
 not make the contract unlawful or against 
 public policy. Carnig v. Carr, 167 Mass. 
 544, 46 N. E. 117, 35: 512 
 
 566. A contract on the part of one sell- 
 ing the good will of his business not to 
 compete with the purchaser for a given 
 time, which is reasonable as to a portion 
 of the trade, will not be declared void be- 
 cause it may be unreasonable as to that 
 portion in the immediate vicinity where 
 the business is located. SwigeH v. Til- 
 den, 121 Iowa, 650, 97 N. W. 82, 63: 608 
 
 567. A stipulation not to engage in man- 
 ufacturing or selling fire alarm or police 
 telegraph machines and apparatus, and not 
 to enter into competition with the pur- 
 chaser of the business for the period of ten 
 years, with no restriction as to place stip- 
 ulated, which is entered into by a manufac- 
 turer on the sale of his business and a 
 transfer of his patents used therein, is void 
 on the ground of public policy as a con- 
 tract in restraint of trade, and cannot be 
 upheld on the ground that it concerns prop- 
 erty and business protected by patents, or 
 because the restriction is necessary to 
 enable the purchaser to enjoy what is 
 purchased, even if that could be regarded 
 as a test, or because it relates to a single 
 commodity which is not of prime necessity 
 and not a staple of commerce. Gamewell 
 Fire Alarm Teleg. Co. v. Crane, 160 Mass. 
 50, 35 N. E. 98, 22: 673 
 Limitations as to space. 
 
 See also infra, 735, 737. 
 
 For Editorial Notes, s-ee infra, VIII. 36. 
 
 568. The extent of territory in which a 
 competitive business may be restrained, in 
 order to protect a purchaser of a business 
 and its good will, is determined by the 
 area of the existing business, and not by 
 the possibility of the extension of the busi- 
 ness. Trenton Potteries Co. v. Oliphant. 
 (N. J. Err. & App.) 58 N. J. Eq/ 507, 43 
 Atl. 723, 46: 255 
 
 569. The area in which a vendor can be 
 restricted from competition with his vendee 
 is as broad as is necessary to afford ample 
 protection to the latter, provided the agree- 
 ment is not injurious to the public interest. 
 Cowan, v. Fairbrother, 118 N. C. 406, 24 
 S. E. 212, 32: 829 
 
 570. A person may legally buy the busi- 
 ness of another, coupled with an undertak- 
 ing of the seller not to carry on the same 
 business in the same place or within the 
 same territory. National Ben. Co. v. Union 
 Hospital Co. 45 Minn. 272, 47 N. W. 806, 
 
 11: 437 
 
 571. An agreement to refrain from edit- 
 ing or being connected with a newspaper 
 or magazine in the county in which is pub- 
 lished a newspaper the good will of which 
 is transferred as a part of such agree- 
 
 L.R.A. Die. 45. 
 
 ment is not void as in restraint of trade. 
 
 Cowan v. Fairbrother, 118 N. C. 406, 24 
 
 S. E. 212, 32: 829 
 
 Limitations as to both. 
 
 See also infra, 734. 
 
 For Editorial Notes, see infra, VIII. 36. 
 
 572. The test of the reasonableness, with 
 respect to time and territory, of a contract 
 by one selling the good will of his busi- 
 ness, not to engage in the same business 
 in competition with the purchasers, is 
 what will furnish a fair and full protection 
 of the business and good will which have 
 been purchased and paid for. Swigert v. 
 Tilden, 121 Iowa, 650, 97 N. W. 82, 
 
 63: 608 
 
 573. The question of the reasonableness 
 of the restraint of trade, where a business 
 is sold with an agreement not to re-en- 
 gage in like business for a certain time 
 within certain territory, depends upon 
 whether it is such only as to afford a fair 
 protection to the party in whose favor it 
 is made. National Ben. Co. v. Union Hos- 
 pital Co. 45 Minn. 272, 47 N. W. 806, 
 
 11: 437 
 
 574. A contract restraining the exercise 
 of one's calling for a certain time is not 
 necessarily void upon grounds of public 
 policy, simply because the restraint ex- 
 tends throughout an entire state. Herres- 
 hoff v. Boutineau, 17 R. I. 3, 19 Atl. 712, 
 
 8: 469 
 
 575. An agreement not to engage in busi- 
 ness again in the same state for twenty -five 
 years, made by a person selling his busi- 
 ness to another, is a general restraint of 
 trade, which is void. Lufkin Rule Co. v. 
 Fringeli, 57 Ohio St. 596, 49 N. E. 1030, 
 
 41: 185 
 
 576. A contract restricting persons from 
 engaging in the milling business in the vi- 
 cinity of a certain city after the completion 
 of an agreement for the sale of their busi- 
 ness, although it extends for their lives, is 
 not illegal as in restraint of trade. Kra- 
 mer v. Old, 119 N. C. 1, 25 S. E. 813, 
 
 34: 389 
 
 577. Public policy does not prevent the 
 enforcement of a contract by a custom 
 shirt maker, upon selling the good will of 
 his business, not to be connected with such 
 business again within the state for a period 
 of ten years in competition with the pur- 
 chasers, where the customers have been 
 secured by soliciting orders in all parts 
 of the state. Swigert v. Tilden, 121 Iowa, 
 650, 97 N. W. 82, 63 : 608 
 
 578. An agreement to refrain for three 
 years from selling benefit certificates, ex- 
 cept to railroad employees, within a cer- 
 tain territory in which the promisor had 
 a lucrative business in such certificates, 
 and had acquired valuable contracts with 
 hospitals for treatment of the holders of 
 such certificates; with the further agree- 
 ment to turn over such hospital contracts 
 to the other party as far as possible, in 
 consideration of a certain sum of money 
 and of the other party's agreement for the 
 same time to refrain from selling such cer- 
 tificates to railroad employees within that
 
 706 
 
 CONTRACTS, III. e, 2. 
 
 territory, is not void as in restraint of 
 trade. National Ben. Co. v. Union Hospi- 
 tal Co. 45 Minn. 272, 47 N. W. 806, 
 
 11:437 
 
 579. A contract not to teach the French 
 or German language, or aid or advertise to 
 teach them, or be connected in any way 
 with any person, persons, or institutions 
 that teach them, in the state of Rhode 
 Island, during the year after the end of a 
 term of employment as teacher, is unrea- 
 sonable because the restraint extends be- 
 yond any apparently necessary protection 
 to the other party, unless it is shown that 
 the latter would be seriously injured by 
 such teaching in any part of the state. Her- 
 reshoff v. Boutineau, 17 R. I. 3, 19 Atl. 
 712, 8: 469 
 
 580. A contract by an employee of a 
 glucose manufacturer not to become inter- 
 ested during the term of his employment in 
 a rival concern within a radius of 1,500 
 miles of Chicago is not unreasonable as to 
 space, where the business of the employer 
 occupies the whole of that territory. Har- 
 rison v. Glucose Sugar Ref. Co. 53 C. C. 
 A. 484, 116 Fed. 304, 58: 915 
 
 581. An agreement by officers of corpor- 
 ations not to engage in business for five 
 years in any way to interfere with or com- 
 pete with the business of a new corpora- 
 tion to which each of the old companies 
 sold its business is not against public pol- 
 icy, although the new business is of a na- 
 ture to extend over the whole country and 
 is more general than that of either of the 
 old companies, combining the business of 
 installing and constructing electric plants 
 and appliances, which one of them had car- 
 ried on, with that of manufactiiring and 
 dealing in such appliances, which the others 
 had carried on. Anchor Electric Co. v. 
 Hawks, 171 Mass. 101, 50 N. E. 509, 
 
 41: 189 
 
 582. A covenant in a contract for the sale 
 of a business and its good will, that the 
 sellers will not engage in the same busi- 
 ness "within any state in the United States 
 of America, or within the District of Co- 
 lumbia, except in the state of Nevada and 
 the territory of Arizona, for the period of 
 fifty years," is divisible as respects the ter- 
 ritory covered, and embraces not one whole 
 area, but several areas coincident with the 
 states and territories and the District of 
 Columbia, disjunctively described; and the 
 fact that it is invalid as to some of the 
 states and territories, because the busi- 
 ness purchased does not extend to them, 
 does not render it invalid as to' the other 
 states and territories, as to which the 
 restraint is reasonably necessary for the 
 protection of the business. Trenton Pot- 
 teries Co. v. Oliphant (N. J. Err. & App.) 
 58 N. J. Eq. 507, 43 Atl. 723, 46: 235 
 
 583. A contract by one selling his busi- 
 ness not to engage in it again for a series 
 of years within the territory where it could 
 be profitably transacted is void as in gen- 
 eral restraint of trade. Harding v. Amer- 
 ican Glucose Co. 182 111. 551, 55 N. E. 577. 
 
 64: 738 
 
 584. A contract by the owner of an ice 
 niachine to discontinue the manufacture of 
 ice in a certain town for the term of five 
 years, when made without any sale of his 
 business, and in consideration of payments 
 by the owner of the only other ice plant 
 in the place, in which there is a demand for 
 ice sufficient to consume and render mar- 
 ketable the output of both factories, is 
 void as against public policy because of the 
 restraint upon trade and the creation of a 
 monopoly in the supplying of ice within 
 that town. Tuscaloosa Ice Mfg. Co. v. 
 Williams, 127 Ala. 110, 28 So. 669, 
 
 50: 175 
 
 585. A lease by a firm of all its machin- 
 ery used in the manufacture of chaplets 
 or anchors, with an agreement that they 
 will not for five years manufacture or sell 
 any chaplets or anchors, except that they 
 may furnish double-headed chaplets for the 
 use of a single third party, upon the exe- 
 cution of which lease the lessee lease* 
 back the machinery to the first lessor to 
 use for any purpose except for the manu- 
 facture of chaplets or anchors, constitutes 
 an illegal contract in restraint of trade, 
 where it is not limited as to territory, 
 and the lessor has been engaged in cary- 
 ing on such business in other states. Clark 
 v. Needham, 125 Mich. 84, 83 N. W. 1027, 
 
 51: 785 
 
 586. A lease by a corporation, engaged 
 in the business of generating and furnish- 
 ing electricity for public and private use, to 
 a rival corporation in the same city, for 
 a period of ten years, of machinery and 
 appliances used in generating electricity, 
 by which it obligates itself not to ensrage 
 in the business of furnishing electric light 
 and power to public or private consumers 
 in the city during said period, and not to 
 dispose of any of its property, machinery, 
 or appliances retained by it for producing 
 or generating in such city electric light 
 and power, is in contravention of public 
 policy, and no action to recover rents can 
 be maintained thereon by the lessor or its 
 assignee. Keene Syndicate v. Wichita 
 Gas, E. L. & P. Co. 69 Kan. 284, 76 Pac. 
 834, 67 : 61 
 
 587. A contract is void as in restraint of 
 trade, which provides for the purchase of a 
 manufacturing business with the intent to- 
 discontinue its operation, and that the per- 
 sons making the sale shall not engage in 
 the same business in any of eight states 
 named for the period of five years, nor, dur- 
 ing the same period, allow the property 
 where such business had been carried on to 
 be used for that purpose. Western Wooden 
 Ware Asso. v. Starkey, 84 Mich. 76, 47 N. 
 W. 604, 11: 503 
 
 588. An agreement not to engage, di- 
 rectly or indirectly, for twenty-five years, 
 in the state or in the United States, in the 
 same business that is sold by such con- 
 tract, with the good will thereof, tends to 
 create a monopoly, and is invalid, whether 
 it is necessary or not to the reasonable 
 enjoyment of the good will so purchased.
 
 CONTRACTS, III. f, g, 1. 
 
 707 
 
 Lufkin Rule Co. v. Fringeli, 57 Ohio St. 
 59G, 49 N. E. 1030, 41: 185 
 
 589. On an agreement between a barber 
 who had no shop, patronage, or good will 
 to sell, and another with whom he forms a 
 partnership indefinite in duration, and who 
 stipulates to furnish the capital or outfit 
 for one half the gross receipts, a stipulation 
 on the part of the barber never to do any 
 barbering in the town outside the shop of 
 the other party is unreasonable, and will 
 not be enforced in equity. Carroll v. 
 Giles, 30 S. C. 412, 9 S. E. 422, 4: 154 
 
 f. Ratification; Validating. 
 
 Estoppel by, see Estoppel, 120, 125, 162. 
 
 Proof of Ratification of Unauthorized Em- 
 ployment, see Evidence, 2317. 
 
 Of Altered Note, see Bills and Notes, 45; 
 Pleading, 291. 
 
 By Corporation, sec Corporations, IV. d, 4. 
 
 Of Infant's Contracts, see Infants, I. d, 2, ft. 
 
 Of Contract with City, see Municipal Cor- 
 porations, 300-307, 342. 
 
 Of Agent's Contracts, see Principal and 
 Agent, II. d. 
 
 Of Contract by School Board, see Schools, 
 93, 95. 
 
 Question for Jury as to, see Trial, 227, 228. 
 
 For Editorial Notes, see infra, VIII. 29, 
 31. 
 
 590. The allowance by a city council of 
 a claim on an invalid contract does not 
 give to it a validity which it otherwise 
 did not possess. Berka v. Woodward, 125 
 Cal. 119, 57 Pac. 777, 45:420 
 
 591. A contract void because it stipulates 
 for doing what is forbidden by law at the 
 time when it is to be done cannot be rati- 
 fied, even at a time when, owing to a change 
 in the law, it would be lawful to do the 
 thing. Handy v. Globe Pub. Co. 41 Minn. 
 188, 42 N. W. 872, 4: 466 
 
 592. An entire contract cannot be ratified 
 in part. Id. 
 
 g. Remedies; Proceeds of Unlawful Con- 
 tract. 
 
 1. In General. 
 
 Right to Damages against Seller of Bo- 
 hemian Oats, see Fraud and Deceit, 58. 
 
 Right of Action between Partners, see Part- 
 nership, 136, 137. 
 
 Appointment of Receiver, see Receivers, 21. 
 
 See also supra, 441. 
 
 For Editorial Notes, see infra, VIII. 38. 
 
 593. The court will not aid in the enforce- 
 ment of an illegal contract, but will leave 
 the parties to it just where it finds them. 
 Brooks v. Cooper (N. J. Err. & App.) 50 N. 
 J. Eq. 761, 26 All. 978, 21 : 617 
 
 504. No action can be maintained on a 
 contract the consideration of which is either 
 wicked in itself or prohibited by law. Storz 
 v. Finkelstein, 46 Neb. 577, 65 N. W. 195, 
 
 30: 644 
 
 595. Courts will take notice, of their own 
 motion, of illegal contracts which come be- 
 fore them for adjudication, and will leave 
 
 the parties where they have placed them- 
 selves. Richardson v. Buhl, 77 Mich. 632, 
 43 N. W. 1102, 6: 457 
 
 596. The rule against granting relief to a 
 party to an illegal contract does not apply 
 to prevent a receiver from recovering the 
 fruits of the transaction for the benefit of 
 honest creditors. Pittsburgh Carbon Co. v. 
 McMillin, 119 N. Y. 46, 23 N. E. 530, 
 
 7:46 
 
 597. The invalidity of a gratuitous con- 
 tract to do a certain act is no defense to an 
 action by the promisee for injuries sustained 
 by want of due care and skill in doing it. 
 Wertheimer v. Saunders, 95 Wis. 573, 70 N. 
 W. 824, 37: 146 
 
 598. No recovery can be had for losses 
 which have arisen under an illegal contract. 
 Reed v. Johnson, 27 Wash. 42, (i7 Pac. 381, 
 
 57 : 404 
 
 599. The claim of a partner to contribu- 
 tion from his copartners cannot be defeated 
 on the ground of illegality in the partner- 
 ship transaction out of which the liability 
 arose, unless the partnership is itself an 
 illegal partnership, or unless the act form- 
 ing the basis of the claim is not only illegal, 
 but was committed by the partner asking 
 contribution with knowledge or construct- 
 ive notice of its illegality. Smith v. 
 Ayrault, 71 Mich. 475, 39 N. W. 724, 
 
 1: 311 
 Cheating; fraud. 
 
 600. Men who associate themselves for the 
 purpose of cheating others cannot ask the 
 courts to distribute their booty by adjudg- 
 ing the demands of one against the other, 
 arising out of their quarrels over the plun- 
 der. Morrison v. Bennett, 20 Mont. 560, 52 
 Pac. 553, 40: 158 
 
 601. The fact that a transaction is against 
 public policy in law will not prevent a rem- 
 edy against one party, who is guilty of 
 fraud by means of his persuasive or other 
 influence over the other party, in favor of 
 the latter, who is not consciously wrong, 
 but who is actually deceived by the fraud 
 and misrepresentations of the former party. 
 Hess v. Culver, 77 Mich. 598, 43 N. W. 994, 
 
 6: 498 
 
 602. A contract of subscription to a book 
 entitled "Men of Progress of the State of 
 Maine," whereby a person agrees to furnish 
 his portrait and a sketch of his life for pub- 
 lication therein, and to receive and pay for 
 a copy of the book when issued, cannot be 
 enforced where the agent who solicits the 
 subscription falsely represents that only 
 three other persons in the town in which de- 
 fendant lives will be asked to become sub- 
 scribers, and that portraits and sketches of 
 only 300 persons in all will be published, 
 since these representations relate to the 
 character and contents of the book, and are 
 material to a work of this particular charac- 
 ter. Greenleaf v. Gerald, 94 Me. 91, 46 Atl. 
 799, 50: 542 
 
 603. Where a contract has been made to 
 accomplish a fraudulent purpose, a court of 
 equity will not, at the suit of a party to the 
 fraud, a porticeps doli. if the contract is 
 executory, either compel its execution or de-
 
 708 
 
 CONTRACTS, III. g, 1. 
 
 cree its cancelation, or, after it has been ex- 
 ecuted, set it aside, and thus restore to the 
 plaintiff the property or other interest 
 which he has fraudulently transferred. It 
 will leave the parties in the position in 
 which they have placed themselves. This 
 rule applies not only to the original par- 
 ties to the fraudulent transaction, but to 
 their heirs, and to all parties claiming un- 
 der or by title derived from them, where no 
 equitable rights intervene to protect such 
 parties. McClintock v. Loisseau, 31 W. Va. 
 865, 8 S. E. 612, 2: 816 
 
 604. If a man, knowing that a scheme is 
 fraudulent, and that the natural outcome of 
 it will be to defraud some innocent person, 
 goes into it solely for the purpose of making 
 money out of it, though he may not be 
 equally in fault with another who is the 
 moving party in the fraud and influences 
 him by his persuasions and representations, 
 a court will, on the ground of public policy, 
 deny him any relief against the other party. 
 Knight v. Linzey, 80 Mich. 396. 45 N. W. 
 337, 8:476 
 
 605. When an innocent member of a firm 
 established for the conduct of lawful and 
 moral business calls upon his partner for a 
 share of profits made in partnership trans- 
 actions, the partner will not be absolved 
 from the duty of dividing, on showing that 
 he realized the profits by cheating the custo- 
 mers of the firm. Pennington v. Todd (N. J. 
 Err. & App.) 47 N. J. Eq. 569, 21 Atl. 297, 
 
 11 : 589 
 
 606. The illegality of an agreement by a 
 corporation for the purchase of property, by 
 which, to avoid the statutes and to defraud 
 the public, a secret contract was made for 
 the purchase of patents, will not defeat the 
 right of the corporation to recover from a 
 promoter of the corporation the avails of a 
 secret agreement between him and the seller 
 of the property. Yale Gas Stove Co. v. Wil- 
 cox, 64 Conn/101, 29 Atl. 303, 25: 90 
 
 607. If a person having no knowledge of 
 the scheme of the Bohemian-oat business, or 
 of the corporate existence of the pretended 
 company, or of want of integrity of its pur- 
 pose and the honesty of its business, relies 
 entirely upon .and believes the statements of 
 another that there is such a corporation and 
 that its business is honest, he is not pre- 
 cluded, on the ground of guilty participa- 
 tion, from maintaining an action for fraud 
 against the person who induced him to give 
 his notes in pursuance of such scheme, al- 
 though fraudulent. Knight v. Linzey, 80 
 Mich. 396, 45 X. W. 337. 8: 476 
 Contracts in violation of statute. 
 
 See also supra, 400. 
 
 608. An action on a contract which is not 
 only declared unlawful by statute, but is 
 made a penal offense, cannot be maintained. 
 Raleigh & G. R. Co. v. Swanson. 102 Ga. 
 754, 28 R. E. 601, 39: 275 
 
 600. There can be no recovery 33 between 
 the parties on a contract made in violation 
 of a statute, the violation of which is pro- 
 hibited by a penalty, although the statute 
 does not pronounce the contract void or ex- 
 pressly prohibit the same. Sandage v. 
 
 Studebaker Bros. Mfg. Co. 142 Ind. 148. 41 
 N. E. 380, 34: 363 
 
 610. Vendees of patent rights for whose 
 protection a statute is enacted imposing du- 
 ties upon a vendor are not in pari delicto 
 so as to prevent them from obtaining re- 
 lief from their contract on account of the 
 vendor's failure to obey the statute. Mason 
 v. McLeod, 57 Kan. 105, 45 Pac. 76, 41: 548 
 
 611. The courts will not enforce or recogr 
 nize an agreement, express or implied, on 
 the part of a servant to waive the perfor- 
 mance of a statutory duty imposed on the 
 master for the protection of the servant, 
 and in the interest of the public, and en- 
 forceable by criminal prosecution. Narra- 
 more v. CleVeland, C. C. & St. L. R. Co. 37 
 C. C. A. 499, 96 Fed. 298, 48: 68 
 
 612. A servant cannot claim either an ex- 
 press or an implied contract to pay for 
 services under a contract in violation of laws 
 fixing a penalty for doing the act upon 
 which recovery is sought, and in no case can 
 a contract be implied when the parties to it 
 are in pari delicto, and when plaintiff, to 
 make his case, must resort to the illegal 
 transaction in proof and pleading. Short v. 
 Bullion, B. & C. Min. Co. 20 Utah, 20, 57 
 Pac. 720, 45: 603 
 
 613. An employee who works more than 
 eight hours per day in a mill or reduction 
 works, in violation of Utah Sess. Laws 1896, 
 p. 219, chap. 72, and Utah Rev. Stat. 1898, 
 1337, cannot recover on a quantum meruit 
 for his services during the overtime. Id. 
 
 614. If an agreement is legally void and 
 unenforceable by reason of some statutory 
 or common-law prohibition, which does not 
 involve any positive immorality, and there 
 is no other reason of public policy why the 
 courts should refuse to grant relief, a party 
 who has received anything under it from 
 the other party, and has failed to perform 
 on his part, must account to the other for 
 what he has received. Manchester & L. R. 
 Co. v. Concord R. Co. 66 N. H. 100, 20 Atl. 
 383, 9: 689 
 
 615. A railroad company which continues 
 to operate a rival and competing line under 
 a prior contract, after the passage of a 
 statute prohibiting such contracts and mak- 
 ing the company which operates a rival line 
 subject to penalty, although such continua- 
 tion was illegal, cannot retain the money ac- 
 quired by such operation when called upon 
 by the owner of the road for an accounting, 
 but the latter, not being in pari delicto, is 
 entitled to an equitable share of the earn- 
 ings. Id. 
 Gambling and wager contracts. 
 
 Relief between Partners, see Partnership, 
 104-107. 
 
 616. One who loans or advances money 
 with the understanding that it shall be used 
 in gambling, or who participates and shares 
 in the gambling transaction thus promoted 
 by his act, becomes particeps criminis, and 
 cannot recover in a suit for the money 
 loaned or advanced under such circum- 
 stances. Appleton v. Maxwell, 10 N. M. 748, 
 65 Pac. 158, 55: 93 
 
 617. The rule that so long as an illegal
 
 CONTRACTS, III. g, 2. 
 
 709 
 
 contract is executory the courts will aid 
 a recovery back of whatever has been paid 
 thereon does not apply to a partly executed 
 contract for the exclusive right of bookmak- 
 ing at a race track at a particular meeting;, 
 and the contracting party cannot, after en- 
 joying the benefit of the contract for a num- 
 ber of days, abandon it and recover back 
 money paid in excess of the pro rata amount 
 due for the time which has elapsed. Ullman 
 v. St. Louis Fair Asso. 167 Mo. 273, 66 S. 
 W. 949, 56: 606 
 
 618. The courts will aid neither party to 
 a contract by which the owner of a race 
 track grants the exclusive privilege of book- 
 making and pool selling at the track fof a 
 certain meeting. Id. 
 
 619. A partnership for horse racing on a 
 bet with a person whom the partners regard 
 as a "sucker" and a "big snap" Into which 
 they induce him to enter by making him 
 think he has a sure thing and by deceiving 
 him into the supposition that their horse is 
 untrained and undeveloped, while they 
 deemed that they had a "dead mortal cinch," 
 is a conspiracy to defraud such that a court 
 will not aid either of the partners by com- 
 pelling one who has pocketed all the profits 
 to make an accounting. Morrison v. Ben- 
 nett, 20 Mont. 560, 52 Pae. 553, 40: 158 
 Illegal combinations. 
 
 See also supra. 549, 619; infra, 716. 
 
 620. A party to an illegal trust combina- 
 tion, who, in pursuance of the agreement, 
 has furnished goods in the name of the 
 trustee, cannot claim the proceeds as against 
 a receiver of the trust assets, although he 
 withdrew from the combination before the 
 receiver was appointed. Pittsburgh Car- 
 bon Co. v. McMillin. 119 N. Y. 46, 23 N. E. 
 530, 7:46 
 
 2. Contracts against Public Policy. 
 
 Relief between Partners, see Partnership, 
 
 103, 137. 
 
 See also supra. 395-400; infra, 803. 
 For Editorial Notes, see infra, VIII. 35. 
 
 621. No right of action can spring out of 
 an illegal contract; and this rule applies, not 
 only when the contract is expressly illegal, 
 but whenever it is opposed to public pol- 
 icy. Cleveland, C. C. & I. R. Co. v. Closser, 
 126 Ind. 348, 26 N. E. 159, 9: 754 
 Kirkpatrick v. Clark, 132 111. 342, 24 N. E. 
 71, 8: 511 
 
 622. Neither party can have the aid of a 
 court to enforce rights under a contract 
 which is opposed to public policy. Yale Gas 
 Stove Co. v. Wilcox, 64 Conn. 101, 29 Atl. 
 303, , 25 : 90 
 
 623. Enforcement of contracts clearly re- 
 pugnant to sound morality and civic honesty 
 will be denied by the courts on the ground 
 of public policy. Veazey v. Allen, 173 N. Y. 
 359, -66 N. E. 103, 62: 362 
 
 624. No suit will be entertained by either 
 a court of law or a court of equity, by 
 either party to an illegal contract against 
 the other, where the contract is against pub- 
 lic policy, whether it is executed or execu- 
 tory. Woodson v. Hopkins, 85 Miss. 171, 37 
 So. 1000. 38 So. 298, 70: 645 
 
 625. Brokers 'who knowingly make con- 
 tracts that are void and illegal as against 
 public policy, and advance money on account 
 of them at the request of their principal, 
 cannot recover it or their commissions. Har- 
 vey v. Merrill, 150 Mass. 1, 22 N. E. 49, ' 
 
 5: 200 
 
 626. When a contract is against public 
 policy, but neither malum prohibitum nor 
 malum in se, courts will allow compensa- 
 tion for services rendered under it, upon the 
 rule of quantum meruit. Davis v. Webber, 
 66 Ark. 190, 49 S. W. 822, 45: 196 
 
 627. One who agrees to insure his life for 
 the benefit of an association of which he is 
 a member is not in pari delicto, so that the 
 court will not interfere to compel the asso- 
 ciation to account in case it receives the 
 benefit of the insurance. Tate v. Commer- 
 cial Bldg. Asso. 97 Va. 74, 33 S. E. 382, 
 
 45:243 
 
 628. One cannot recover back money paid 
 under an illegal contract to purchase the 
 squipment of a postoffice, when he fails to 
 obtain the appointment as postmaster, 
 which was the chief thing contracted for, 
 but the court will refuse to aid either party. 
 Edwards v. Randle, 63 Ark. 318, 38 S. W. 
 343, 36: 174 
 Accepting free transportation. 
 
 629. One accepting free transportation 
 which a railroad company is forbidden, 
 under penalty, to grant, is not precluded, on 
 the ground that he is in pari delicto, from 
 holding the carrier liable to him for injur- 
 ies due to its negligence, since he is not 
 in pari delicto with a railroad company, and, 
 if he is so with respect to the carriage con- 
 tract, it does not extend to the negligence 
 causing the injury. McNeill v. Durham & 
 C. R. Co. 135 N C. 682, 47 S. E. 765, 
 
 67 : 227 
 Taking excessive interest. 
 
 630. One who, through an agent, conducts 
 a loan office, receiving for loans rates of 
 interest which are so extortionate as to 
 shock the moral sense and to be against 
 the public policy of the state, cannot re- 
 ceive the aid of a court of equity to compel 
 the agent to pay over money received in the 
 business, or to obtain possession of the 
 books, memoranda, and other property per- 
 taining thereto. Woodson v. Hopkins, 85 
 Miss. 171, 37 So. 1000, 38 So. 298, 70: 645 
 To evade taxes. 
 
 631. A mortgage and note assigned with 
 intention to evade the payment of taxes is 
 illegal and the assignor who has retained 
 possession of it cannot enforce it in the 
 name of the assignee for his own benefit; 
 nor can the latter enforce it if he accepted 
 it as particeps criminis to defraud the rev- 
 enue laws. Sheldon v. Pruessner, 52 Kan. 
 579, 35 Pac. 201, 22: 709 
 With attorney. 
 
 632. A statute forbidding an attorney at 
 law to promise or give to any person a val- 
 uable consideration as an inducement to 
 placing, or in consideration of having placed, 
 in his hands a demand for the purpose of 
 having an action brought thereon, will not 
 prevent the person who places the demand
 
 710 
 
 CONTRACTS, IV. a. 
 
 in h : s hands from recDvering the agreed com- 
 pensation, since the parties are not in pari 
 delicto. Irwin v. Curie, 171 N. Y. 409, 64 
 N. E. 161, 58: 830 
 
 Affecting marriage relation. 
 
 633. A void promise to refrain from mar- 
 rying, made by a woman as a mere inci- 
 dent of her contract to live with and take 
 care of a man during his life, will not pre- 
 clude her, after fully performing the con- 
 tract on her part, from recovering the con- 
 sideration which the contract provides for 
 her services. King v. King, 63 Ohio St. 363, 
 59 N. E. Ill, 52: 157 
 Public contracts; affecting bids. 
 
 634. That a municipal corporation has ac- 
 cepted work done under a contract let upon 
 competitive bidding, and paid the price, 
 with knowledge of a partnership agreement 
 between the bidders which enhanced the 
 contract price, will not entitle the partners 
 to an account of the profits from one of 
 their number who received the money, on 
 the ground that the municipality was not 
 injured by the illegal partnership agree- 
 ment. Hoffman v. McMullen, 28 C. C. A. 
 178, 48 U. S. App. 596, 83 Fed. 372, 45: 410 
 
 635. A contract by intending bidders for 
 public work, to procure the contract for a 
 price as high as possible, and become part- 
 ners in its execution, is not, after the work 
 has ' been done and the money paid to one 
 of them, within the rules that a contract 
 will be enforced, even if incidentally con- 
 nected with an illegal transaction, provided 
 it is supported by an independent consider- 
 ation, and that after the illegal contract 
 has been fully executed one party in pos- 
 session of the gains will not be tolerated to 
 interpose the objection that the business 
 was in violation of law, so as to enable the 
 other parties to compel an accounting. Id. 
 Affecting official action. 
 
 See also supra, 482. 
 
 636. The rule denying a remedy to a per- 
 son in pari delicto will not prevent equitable 
 relief against the enforcement of the power 
 of sale in a mortgage which is against pub- 
 lic policy because it was given in compen- 
 sation for services to influence or procure 
 appointment to a public office. Basket v. 
 Moss, 115 N. C. 448, 20 S. E. 733, 48: 842 
 
 637. The illegality of a transfer of stock 
 to the president of a corporation for the 
 purpose of having it used to corrupt govern- 
 ment officials for the benefit of the corpo- 
 ration will not prevent the owner from re- 
 covering the stock by action, if it has not 
 been used for the illegal purpose, but has 
 been taken by the transferee for his own 
 use. Wassermann v. Sloss, 117 Cal. <P5, 
 49 Pac. 566. 38: 176 
 Purchase of lottery ticket. 
 
 For Editorial Notes, see infra, VIII. 25. 
 
 638. An unlawful purchase of a lottery 
 ticket will not prevent the purchaser from 
 claiming the proceeds of the ticket from 
 one who fraudulently obtained it_ from him 
 after it had drawn a prize. Martin v. Rich- 
 ardson, 94 Ky. 183, 21 S. W. 1039, 19: 692 
 Illegal purchase of liquor. 
 
 For Editorial Notes, see infra, VIII. 35. 
 
 639. A statutory right to recover money 
 
 paid on an unlawful purchase of intoxicat- 
 ing liquors cannot apply to a purchase made 
 in another state where it was valid, al- 
 though the seller's intent to aid the pur- 
 chaser to violate the laws of his state 
 would defeat his right to recover for the 
 purchase .price, on grounds of public policy. 
 Wind v. Her, 93 Iowa, 316, 61 N. W. 1001, 
 
 27: 219 
 
 Selling goods for use in disorderly house. 
 For Editorial Notes, see infra, VIII. 25. 
 
 640. A vender of goods, with knowledge 
 that they are to be used in a house of ill 
 fame, must be deemed to aid and partici- 
 pate in the immoral and illegal use, so as 
 to* defeat its right of action to recover the 
 goods from a purchaser thereof on sale un- 
 der execution against the vendees, where 
 the sale reserved title, ownership, and pos- 
 session of the property, with the right to 
 take possession even before maturity of 
 the deferred payments, whenever the vender 
 deemed itself insecure. Standard Furni- 
 ture Co. v. Van Alstine, 22 Wash. 670, 62 
 Pac. 145, 51 : 889 
 To compound crime. 
 
 641. Equity will not entertain a bill to 
 cancel instruments of indebtedness given 
 under an agreement to compound a felony 
 or stifle its prosecution, as the parties are 
 in pari delicto. Rock v. Mathews, 35 W. 
 Va. 531, 14 S. E. 137, 14: 508 
 Shattuck v. Watson, 53 Ark. 147, 13 S. W. 
 516, 7:551 
 
 642. One who has executed and delivered 
 securities in consideration of a promise to 
 refrain from a prosecution for felony of a 
 person guilty thereof cannot, after his ille- 
 gal purpose has failed from causes other 
 than a breach of the contract, and a pros- 
 ecution has been commenced by third par- 
 ties, rescind the contract and recover back 
 the securities. Shattuck v. Watson, 53 
 Ark. 147, 13 S. W. 516, 7:551 
 
 IV. Performance; Breach, 
 a. In General. 
 
 Quantum Meruit for Literary Services, see 
 Assumpsit, 2. 
 
 Estoppel to Deny Liability on Contract, see 
 Estoppel, 197. 
 
 Burden of Proving Performance, see Evi- 
 dence, 648. 
 
 See also supra, 271. 
 
 For Editorial Notes, see infra, VIII. 39- 
 44. 
 
 643. While a person who agrees to pay 
 another a sum of money out of a certain 
 claim when collected has no right to use any 
 artifice to conceal the fact that he has ob- 
 tained payment of the claim, it is not his 
 duty to seek out the other to inform him 
 that it has been paid. Jackson v. Comlis 
 (D. C.) 7 Mackey, 608, 1: 742 
 
 644. The share which a person is entitled 
 to from an estate of a person who had 
 agreed to give the former a specified share 
 thereof cannot be diminished because of a
 
 CONTRACTS, IV. b, 1. 
 
 711 
 
 gift by will of a portion of the estate to 
 the children of the distributee. Nowack 
 v. Berger, 133 Mo. 24, 34 S. W. 489, 
 
 31: 810 
 Who must perform. 
 
 645. A contract to take a supply of water 
 for a term of years, though not specifying 
 any building to which it should be sup- 
 plied, does not require a, personal taking 
 of the water for the whole period, but is 
 satisfied by a taking by other parties at 
 the place contemplated by the parties to 
 the contract. Drummond v. Crane, 159 
 Mass. 577, 35 N. E. 90, 23: 707 
 
 646. For the purpose of determining the 
 riorht of one who, after contracting to fur- 
 nish electrotype plates, took partners into 
 his business and completed his contract 
 without notifying the other party of the 
 change of firm, to relief against ohe who has 
 broken his contract as to the use to be made 
 of the plates, the contract must be re- 
 garded as performed, not by a volunteer 
 stranger, but by the contracting party act- 
 ing through the partnership. Meyer v. 
 Estes, 164 Mass. 457, 41 N. E. 683, 32: 283 
 Place of performance. 
 
 See also infra, 745. 
 
 647. Any reasonable place of perform- 
 ance may be designated by the obligee, as a 
 general rule, when no place of performance 
 is agreed upon by the parties. Tuttle v. 
 Burgett, 53 Ohio St. 498, 42 1ST. E. 427, 
 
 30: 214 
 
 648. Support at such place or places as 
 may be selected by the mortgagees can be 
 claimed by them .under a mortgage condi- 
 tioned that the mortgagor shall furnish 
 them during life comfortable rooms, food, 
 clothing, medicine, and medical attendance 
 in sickness, with necessaries and comforts 
 suitable for persons of their age and situa- 
 tion in life, without specifying any place 
 where it shall be furnished; and they are 
 not obliged to receive it at the house of the 
 mortgagor. Id. 
 How performance may be avoided. 
 
 649. A man is not prevented from trans- 
 ferring his property, by an agreement to 
 leave all his property at death to an adopted 
 child, if the transfer is not made for the 
 purpose of defrauding the latter. Austin 
 v. Davis, 128 Ind. 472, 26 N. E. 890, 12: 120 
 
 650. A contract by a fertilizer manufac- 
 turer whose principal business is to manu- 
 facture acidulated phosphate from crude 
 rock., both for sale, and for the production 
 of higher grades of fertilizer, to take his 
 entire consumption of rock from the other 
 party to the contract, does not give him 
 the right to avoid taking the crude rock by 
 purchasing in the market rock already acid- 
 ulated, when he finds it to his advantage to 
 do so, on the ground that when he pur- 
 chases such rock he does not require any of 
 the crude material. Loudenback Fertilizer 
 Co. v. Tennessee Phosphate Co. 58 C. C. A. 
 220. 121 Fed. 298, 61: 402 
 Notice; offer. 
 
 Of Contract to Sell Land, see Vendor and 
 
 Purchaser, 10. 
 See also infra, 705, 706. 
 
 651. Where the payment of the purchase 
 
 money and the making of the deed are to 
 occur simultaneously, they are regarded as 
 concurrent acts which disable either party 
 from putting an end to the contract with- 
 out performance, or a valid offer to perform, 
 on his part. Frink v. Thomas, 20 Or. 265, 
 25 Pac. 717, 12: 239 
 
 652. A party having an option to deliv- 
 er property under a contract at any time 
 between certain dates, if he intends to treat 
 the time of performance as having arrived, 
 and therefore to hold a repudiation of the 
 agreement by the vendee before the last day 
 of performance has arrived as a breach 
 thereof, must give notice to the vendee of 
 his exercise of his option for an earlier de- 
 livery; but he need not offer to perform, as 
 that is waived by the vendee's refusal to 
 perform. Stanford v. McGill, 6 N. D. 536, 72 
 N. W. 938, 38: 760 
 Recovery for extra work. 
 
 For Corporation, see Corporations, 246. 
 Evidence of Promise to Pay for, see Evi- 
 dence, 1622. 
 See also infra, 839a. 
 
 653. A written contract .for building a 
 house, stipulating that no charge for extra 
 work or materials shall be made, unless or- 
 dered in writing, will not prevent the con- 
 tractor from recovering for extra expense 
 incurred on the express agreement of the 
 other party to pay for it, or on his request 
 therefor, under circumstances implying a 
 consent to be liable for it, irrespective of 
 the written contract. Parties cannot by 
 contract tie up their freedom of dealing with 
 each other. Bartlett v. Stanchfield, 148 
 Mass. 394, 19 N. E. 549, 2: 625 
 
 b. Excuse for Failure of Performance. 
 1. In General. 
 
 Ground for Discharge of Servant, see Mas- 
 ter and Servant, 37-41. 
 
 Excuse for Employee's Quitting Work, see 
 Master and Servant, 48. 
 
 Necessity of Pleading Waiver as Excuse, 
 see Pleading, 500. 
 
 Of Contract of Sale, see Sale, 115, 116. 
 
 Teacher's Right to Salary While School is 
 Closed During Smallpox Epidemic, see 
 Schools, 45-47. 
 
 Bad Bargain as Excuse, see Specific Per- 
 formance, 30. 
 
 For Editorial Notes, see infra, VIII. 42. 
 
 654. The question of the right of the own- 
 er to insure a building which another has 
 contracted to repair and enlarge has no 
 bearing upon the question of the liability 
 of the contractor to comply with his con- 
 tract after the building has been destroyed 
 by lightning. Krause v. Crothersville 
 School Trustees, 162 Ind. 278, 70 N. E. 264, 
 
 65: 111 
 
 655. A state cannot resist payment of 
 compensation to its agent who has under 
 his contract with it become entitled thereto, 
 on the ground that it has promised the 
 United States that it would not make the 
 payment. Davis v. Com. 164 Mass. 241, 41 
 N.'E. 292, 30: 743
 
 712 
 
 CONTRACTS, IV. b, 2. 
 
 656. Failure to repair leased dams or 
 races within ten days after the water has 
 fallen to the average winter stage, as re- 
 quired by a contract leasing the water 
 power, is not excused, if the water continues 
 below that stage, by the fact that the work 
 could not profitably be done within the time 
 agreed upon. Pengra v. Wheeler, 24 Or. 532, 
 34 Pac. 354, 21: 726 
 
 (557. The sale of steamers af^er making a 
 contract for the supply of coal to them for 
 one year will not relieve from the obliga- 
 tion to take the coal which their ordinary 
 and accustomed use required. Wells v. 
 Alexandre, 130 N. Y. 642, 29 N. E. 142, 
 
 15: 218 
 Doubts as to solvency. 
 
 658. Doubts as to the solvency of a 
 publishing corporation will not justify the 
 breach of a contract to furnish it a book for 
 publication. C. F. Jewett Pub. Co. v. Butler, 
 159 Mass. 517, 34 N. E. 1087, 22: 253 
 Disgrace. 
 
 659. The disgrace attaching to the name 
 of a corporation on account of the conduct 
 of its former president and manager, whose 
 name it bears, is not sufficient ground for 
 breaking a contract to furnish it a book for 
 publication. C. F. Jewett Pub. Co. v. But- 
 ler, 159 Mass. 517, 34 N. E. 1087, 22: 253 
 Failure to make test. 
 
 660. Failure of the purchaser of a mare to 
 have a test of her speed as compared with 
 that of another one owned by him, made by 
 the person and within the time agreed upon, 
 because the mares were not in proper condi- 
 tion for the test, or to have the test made 
 afterwards, will not relieve him from liabil- 
 ity to pay an extra $100 in case she is as 
 fast as the other, on other proof of this 
 fact. Deyo v. Hammond, 102 Mich. 122, 60 
 N. W. 455, 25: 719 
 
 2. Impossibility of Performance; Inevitable 
 Accident. 
 
 See also infra, 817. 
 
 For Editorial Notes, see infra, VTIL 42, 
 43. 
 
 661. A contract is invalidated by the 
 subsequent enactment of police regulations 
 which render its performance illegal as to 
 one of the parties. Jamieson v. Indiana 
 Natural Gas & O. Co. 128 Ind. 555, 28 N. E. 
 76, 12: 652 
 
 662. The impossibility of repairing leased 
 dams or races ten days after the water falls 
 to the average winter stage, as agreed upon 
 by the lease, because the water immediately 
 rises again and continues high, releases the 
 lessor from liability for breach of the cove- 
 nant, if he makes the repairs as soon as pos- 
 sible. Pengra v. Wheeler, 24 Or. 532, 34 
 Pac. 354, 21 : 726 
 Early frost. 
 
 663. Upon a contract to raise, sell, and 
 deliver a specified quantity of beans of vari- 
 ous kinds, no particular land upon which 
 they are to be raised being specified, the 
 fact that unexpected early frosts so far de- 
 stroy the party's crop that he cannot deliver 
 the whole quantity specified does not ex- 
 cuse his nonperformance of the contract. 
 
 Anderson v. May, 50 Minn. 280, 52 N. W. 
 530, 17:555 
 
 Heavy rains. 
 
 664. Heavy rains preventing a person 
 from plowing land in the fall, as he agreed 
 to do, in order to fit it for setting out grape 
 vines in the spring, will not allow him to 
 recover for his labor in plowing the land 
 in February and setting out the vines there- 
 after, where they prove to be a failure. 
 Remy v. Olds (Cal.) No Off. Rep. 34 Pac. 
 216, 21:645 
 Inevitable accident; act of God. 
 
 What Act of God will Excuse Nonperform- 
 ance, see Act of God. 
 
 Discharge of Covenant to Repair Building, 
 see Covenant, 115-117. 
 
 See also infra, 674; Sale, 117, 118. 
 
 665. Inevitable accident will not excuse 
 the performance of a contract, where its 
 essential purposes are still capable of sub- 
 stantial accomplishment, thousrh literal per- 
 formance has become physically impossible. 
 Board of Education v. Townsend, 63 Ohio 
 St. 514, 59 N. E. 223, 52:868 
 
 666. The act of God cannot excuse failure 
 to perform a contract, so as to give a person 
 the right to recover upon it without per- 
 formance, although for the purpose of a de- 
 fense nonperformance might be thereby 
 -xcused. Remy v. Olds (Cal.) No Off. Rep. 
 34 Pac. 216, 21: 645 
 
 667. When a party has one or the other 
 of two modes of performing a contract, and 
 one of them becomes impossible by the act 
 of God, he is bou,nd to perform it in the 
 other mode. Board of Education v. Town- 
 send, 63 Ohio St. 514, 59 N. E. 223, 52: 868 
 
 668. The prevention, by the act of God, of 
 full performance of an entire contract, will 
 permit a recovery upon an implied assump- 
 sit for personal services already rendered 
 in part performance of the contract Par- 
 ker v. Macomber, 17 R. I. 674, 24 Atl. 464, 
 
 1C: 853 
 
 669. On the destruction by fire of a build- 
 ing towards the erection of which the con- 
 tractor is to contribute only part of the 
 labor and materials, while the owner is to 
 do the grading, excavating, stone work, 
 brick work, painting, and plumbing, the con- 
 tractor is discharged from his obligation, 
 and can recover on an implied assumpsit for 
 the value of what he has already done. 
 Butterfield v. Byron, 153 Mass. 517, 27 N. E. 
 667, 12: 571 
 
 670. The destruction, by fire, of milk and 
 its products, while in possession of a bailee 
 who has contracted to manufacture and sell 
 butter and cheese, relieves him from his 
 contract so far as the subject thereof is de- 
 stroyed by the fire, if it occurred without 
 his fault. Stewart v. Stone, 127 N. Y. 500. 
 28 N. E. 595, 14: 215 
 
 671. Where, in consideration of the con- 
 veyance by a board of education of a lot on 
 which were situated a schoolhouse and other 
 buildings suitable for a public school, the 
 vendee agreed to convey to the board an- 
 other lot, then vacant, and to remove, re- 
 construct, and rebuild thereon the school- 
 house, so that it would be in a suitable
 
 CONTRACTS, IV. b, 3, c. 1. 
 
 713 
 
 and proper condition for school purposes, it 
 is not a defense to an action for damages 
 for failure to perform the contract with re- 
 spect to the schoolhouse, that it was blown 
 down by a storm and could not, on that 
 account, be removed as a standing building. 
 The contract was nevertheless capable of 
 substantial performance. Board of Educa- 
 tion v. Townsend, G3 Ohio St. 514, 59 N. E. 
 223, 52: 868 
 
 Dissolution of partnership. 
 
 072. A contract by a partnership with an 
 employee for personal services in the cur- 
 rent business of the firm for one year at 
 a given rate per month is dissolved by a 
 dissolution by the death of one of the part- 
 ners within the year. Griggs v. Swift, 82 
 Ga. 392. 9 S. E. i(>62, 5: 405 
 
 673. On a contract by a partnership with 
 an employee for services for one year at a 
 given rate per month, which contract is 
 dissolved by the death of a member within 
 the year, there can be no recovery for serv- 
 ices which were never in fact rendered, 
 but which would have been rendered had 
 not the surviving partner discharged him 
 after the dissolution. Id. 
 
 674. A firm that has engaged a clerk for 
 a year is not absolved from its contract and 
 obligation to retain his services at the 
 agreed salary throughout the year, by the 
 fact that its business house and stock of 
 goods are destroyed by fire, and by the 
 firm's dissolution and retirement from busi- 
 ness, where the contract does not reserve the 
 power to discharge him for such reasons. 
 Madden v. Jacobs, 52 La. Ann. 2107, 28 So. 
 225, 50: 827 
 
 3. Prevention or Hindrance by Other Party. 
 
 See also infra, 753, 754, 808, 812, 813. 
 For Editorial Notes, see infra, VIII. 43. 
 
 675. The party who commits the first 
 breach of a contract cannot maintain an 
 action against the other for a subsequent 
 failure to perform. Loudenback Fertilizer 
 Co. v. Tennessee Phosphate Co. 58 C. C. A. 
 220. 121 Fed. 298, 61 : 402 
 
 676. A contractor to perform certain work 
 cannot proceed with the work and collect 
 the full contract price after express refusal 
 of one of the other parties to perform on 
 his part, although the contract was made 
 with several persons, but one of whom has 
 refused to carry it out. Davis v. Bronson, 
 2 N. D. 300, 50 N. W. 836, 16: 655 
 
 G77. A person prevented from continuing 
 his contract by the arbitrary act of the 
 other party may disregard it, and recover 
 the value of his services rendered in partial 
 performance of it. Parker v. Macomber, 
 17 R. I. 674, 24 Atl. 464, 16: 858 
 
 678. Delay of a city in preparing piers 
 upon wh ; ich a bridge is to be erected by a 
 contractor, thereby hindering his work, will 
 prevent any deduction for consequent delay 
 in its completion, although his contract pro- 
 vides for deductions from the contract 
 price in case of failure to complete the 
 
 work within a certain time. King Iron 
 Bridge & Mfg. Co. v. St. Louis, 43 Fed. 768, 
 
 10: 826 
 
 679. A mine owner who undertakes to de- 
 liver a portion of the ore taken from the 
 mine to certain persons in consideration of 
 their constructing a level to drain the mine 
 in such a manner that the ore can be raised 
 without trouble or inconvenience from water 
 is not discharged from his obligation by the 
 fact that the level is permitted to become 
 and remain out of repair, if he is not at all 
 prejudiced thereby, the level remaining suf- 
 ficient for all practical purposes. Crawford 
 v. Witherbee, 77 Wis. 419, 46 N. W. 545, 
 
 9: 561 
 
 680. A contractor employed to take down 
 portions of a building, whose employees be- 
 en me demoralized and refused to work in 
 the building on account of its weakened 
 and dangerous condition, resulting from the 
 negligence of the owner and his architect in 
 stripping off the sheathing, purlines, rafters, 
 etc., so that spars fell and killed some of 
 the contractor's employees, may abandon 
 his contract and recover damages against 
 the owner. Lynch v. Sellers, 41 La. Ann. 
 375, 6 So. 561, 5: 682 
 
 c. Incomplete Performance; Sufficiency of 
 Performance. 
 
 1. Right of Recovery on Part Performance. 
 
 Proper Remedy for, see Election of Reme- 
 dies, 2. 
 
 Employee Leaving Before Contract Per- 
 formed, see Master and Servant, 26- 
 28. 
 
 See also supra, 299-301, 668; infra, 702, 787, 
 
 For Editorial Notes, see infra, VIII. 42 r 
 43. 
 
 681. An entire contract for services can- 
 not be apportioned so as to permit a re- 
 covery for part performance by one who i 
 guilty of a breach of the contract. Timber- 
 lake v. Thayer, 71 Miss. 279, 14 So. 446, 
 
 24: 231 
 
 682. The general rule that where a con- 
 tract is entire the consideration moving 
 from each party to the other is entire, full 
 performance by one being requisite to his 
 claiming any benefit under the contract from 
 the other, does not apply to a servant fail- 
 ing to complete his contract because dis- 
 charged by the master, although the dis- 
 charge is rightful. Hildebrand v. American 
 Fine Art Co. 199 Wis. 171, 85 N. W. 268, 
 
 53: 826 
 
 683. To entitle a party to recover for part 
 performance of a contract, or for perform- 
 ance in a different way from that contract- 
 ed for, the circumstances must be such that 
 a new contract may be implied from the 
 conduct of the parties, to pay a compensa- 
 tion for what has been done. The mere 
 fact that partial performance is beneficial 
 to a party is not enough to imply a promise 
 to pay for it. Elliott v. Caldwell, 43 Minn. 
 357. 45 N. W. 845, 9: 52 
 
 684. One employed to go to a certain place
 
 CONTRACTS, IV. c, 2. 
 
 and organize a corporation, under an agree- 
 ment for certain capital stock in ca? e he was 
 successful, who went there and devoted his 
 services to the organization of such com- 
 pany, and would have succeeded had his em- 
 ployer not recalled and discharged him, is 
 entitled to recover what his time was worth 
 while there, and reasonable expenses. Cad- 
 man v. Markle, 76 Mich. 448, 43 N. W. 315, 
 
 5: 707 
 
 685. Where the completion of a contract 
 is not controverted, but the defense is that 
 it was not done in a workmanlike manner, 
 the value of the work done and materials 
 furnished may be recovered, where the par- 
 ties cannot rescind and stand in statu quo, 
 hut one of them must derive benefit from 
 the labor of the other. Katz v. Bedford, 
 77 Cal. 319, 19 Pac. 523, 1:826 
 
 686. When a contract has been performed 
 in a substantial part, and the other party 
 has voluntarily accepted and received the 
 benefit of the part performance, knowing 
 that the contract is not being fully per- 
 formed, the performance of the residue can- 
 not be insisted on as a condition precedent 
 to payment for the benefits received from 
 the part performance. Wiley v. Athol, 150 
 Mass. 426, 23 N. E. 311, 6: 342 
 
 687. The difficulty of. determining the 
 measure of damages for failure fully to 
 comply with the terms of a contract for a 
 water supply will not prevent a substantial 
 part performance from changing a warranty 
 which constitutes a condition precedent into 
 an independent covenant. Id. 
 
 688. A party to a contract who has con- 
 ferred upon the other party thereto the 
 benefits of a substantial partial perform- 
 ance thereof, but who has not completely 
 performed the agreement, may maintain an 
 action against the other party for specific 
 performance, or for damages for the latter's 
 failure to perform, upon plea and proof of 
 his own partial performance, without plea 
 or proof of his complete performance; and 
 the defendant in such an action may recoup 
 his damages for the plaintiff's failure of 
 complete performance, or may recover them 
 in an independent action therefor. Kauff- 
 man v. Raeder, 47 C. C. A. 278, 108 Fed. 171, 
 
 54: 247 
 
 689. On the termination by the insol- 
 vency and dissolution of a corporation, of an 
 executory contract with it necessitating, in 
 its execution, work, labor, and the ex- 
 penditure of money for materials, machin- 
 ery, etc., and the construction of roads and 
 other improvements, as well as in carrying 
 on the work, the contractor is entitled to 
 compensation for services rendered by him 
 in pursuance of the contract until the date 
 of its termination, and to reimbursement for 
 his actual and necessary outlay and expen- 
 ses, subject to a deduction of all sums paid 
 to him by the corporation, and of the value 
 of such materials, machinery, and other 
 property on hand. Griffith v. Blackwater 
 Boom & L. Co. 55 W. Va. 604, 48 S. E. 44?. 
 
 69: 124 
 
 Destruction of property before completion. 
 Effect of Loss by Fire after Sale of Land, 
 
 see "Vendor and Purchaser, 13, 14. 
 See also supra, 669-671. 
 For Editorial Notes, see infra, VIII. 42. 
 
 690. Recovery for the work done in the 
 partial performance of a contract to move a 
 building may be had where it was entirely 
 consumed by fire after the contract was 
 partly performed. Angus v. Scully, 176 
 Mass. 357, 57 N. E. 674, 49 : 562 
 
 691. One who has contracted to repair a 
 house for an entire consideration cannot, 
 in case the house -is destroyed by lightning 
 when the work is nearly completed, so that 
 he is not entitled to enforce payment under 
 the contract, recover the value of the work 
 done under a quantum meruit. Krause v. 
 Crothersville School Trustees, 162 Ind. 278, 
 70 N. E. 264, 65: 111 
 
 692. One who has only partially performed 
 his contract to install, for a gross um, a 
 heating plant in a building, to consist of 
 boilers, radiators, and piping, at the time 
 the building is destroyed by fire without the 
 fault of either party, must bear the loss, un- 
 less he shows that the material already in 
 place could not reasonably have been re- 
 moved for a reasonable sum, so that the 
 owner of the building must be regarded as 
 having accepted it as tne work progressed. 
 Dame v. Wood, 73 N. H. 222, 60 Atl. 744, 
 
 70: 133 
 
 693. Provision in a contract for the repair 
 of, and addition to, a building, that the 
 owner "shall not be in any manner respon- 
 sible for any loss or damage that shall, or 
 may, happen to said work or any part there- 
 of," does not throw the loss caused by the 
 accidental destruction of the building by 
 lightning after the work is nearly completed 
 upon the contractor. Krause v. Crothers- 
 ville School Trustees, 162 Ind. 278, 70 N. 
 E. 264, 65: 111 
 
 694. Where one who has undertaken to 
 repair and add to a building has paid out, 
 in the execution of his contract, more than 
 he has received at the time of the destruc- 
 tion of the building by lightning, such pay- 
 ments which have entered into the value of 
 the property must be treated as an execu- 
 tion of the contract pro tanto. Id. 
 
 2. Sufficiency of Performance. 
 For Editorial Notes, see infra, VIII. 40. 
 
 695. All that is ordinarily required of a 
 party to a contract who has agreed to de- 
 liver personal property upon the payment 
 of a debt or price is that he shall put the 
 property in some convenient place, subject 
 to the disposal of the payer upon his com- 
 pliance with the terms of the contract, and 
 that he shall notify the promisor of the 
 fact. Kauffman v. Raeder, 47 C. C. A. 278, 
 108 Fed. 171, 54: 247 
 
 696. Shipment of goods which do not con- 
 stitute a full cargo is sufficiently made by 
 placing them on board the vessel bound for 
 the intended port and engaged in an honest 
 effort to obtain a cargo for such port.
 
 CONTRACTS, IV. c, 3. 
 
 715 
 
 Mora y Ledon v. Havemeyer, 121 N. Y. 179, 
 24 N. E. 297, 8: 245 
 
 097. JLinployment for a year is a fulfil- 
 ment of a contract to give an attorney 
 permanent employment in consideration of 
 services rendered in the formation of a cor- 
 poration, since the contract is indefinite and 
 terminable at the will of either party. Sul- 
 livan v. Detroit Y. & A. A. E,. Co. 135 Mich. 
 601, 98 N. W. 75C, 64: C73 
 
 6.08. An agreement by a railroad company, 
 in consideration of a right of way, to estab- 
 lish a depot on the land, is complied with 
 by establishing the station and maintain- 
 ing it upon the land for thirty-six years, al- 
 though the depot is then removed because 
 rf the exigencies of business. Texas & P. 
 R. Co. v; Scott, 23 C. C. A. 424, 41 U. S. 
 App. 624, 77 Fed. 726, % 37:94 
 
 699. Issuing 5 cards, each good for 20 
 crossings, is a substantial compliance by a 
 bridge company with a contract to sell 100 
 tickets for $1. Newport v. Newport & C. 
 Mridce Co. 90 Ky. 193, 13 S. W. 720, 8: 484 
 
 700. That the light complies with the con- 
 tract at the moment the equipment is com- 
 pleted will not entitle the seller to the 
 price under a contract to furnish an electric- 
 light equipment of certain power, which pro- 
 vides for payment when the work is "found 
 to be in good working order," if a practical 
 test within a reasonable time thereafter 
 demonstrates that the required power has 
 not been attained. Edison General Electric 
 Co. v. Canadian P. Nav. Co. 8 Wash. 370, 36 
 Pac. 260, 24: 315 
 
 701. If a person contracts with another 
 to obtain options for that other to purchase 
 real estate in case he shall, upon examina- 
 tion thereof, elect to do so, and such person, 
 pursuant to his obligation, negotiates with 
 a third person to obtain such an option, and 
 thereby brings to such other's attention the 
 subject of the transaction in aid of enabling 
 him to obtain the land if he desires to do 
 so, and, before a formal option shall have 
 been obtained, such other concludes to make 
 the purchase, and does so, he thereby be- 
 comes liable to such person as upon a full 
 performance of his agreement. Emerson v. 
 >iash, 124 Wis. 369, 102 N. W. 921, 70: 326 
 
 702. Substantial performance of a build- 
 ing contract requiring girders of a certain 
 length and properly placed, and a wooden 
 partition on a brick wall in the cellar for 
 wLich recovery may be had on the allowance 
 of compensation for detects, is not made 
 where these things are not done and their 
 omission constitutes structural defects of 
 so essential a character that they cannot be 
 remedied without partial reconstruction of 
 the building. Spence v. Ham. 163 N. Y. 220, 
 57 N. E. 412. 51: 238 
 
 703. The doctrine of "substantial com- 
 pliance" with building contracts does not 
 apply when the omissions or departures 
 from the contract are intentional, and so 
 substantial as not to be capable of remedy, 
 and that an allowance out of the contract 
 price would not give the owner substan- 
 tially what he contracted for. Elliott v. 
 Caldwell, 43 Minn. 357, 45 N. W. 845, 9: 52 
 
 704. Under a contract by which a person 
 expressly covenants to keep the infant 
 daughter of another in his own family, as 
 one of his children, to provide her with suit- 
 able food, clothing, schooling, and medical 
 attention should she require it, and in case 
 of her death to pay her funeral expenses, he 
 has no legal right to confine her in the 
 county asylum among the common paupers 
 because she becomes insane. It is his duty, 
 if he has no suitable place to keep her, to 
 prepare one. Vancleave v. Clark, 118 Ind. 
 61, 20 N. E. 527, 3: 519 
 ^sufficiency of tender or offer to perform. 
 See also Vendor and Purchaser, 10. 
 
 705. A sufficient offer to perform a con- 
 tract is made where, nine parties having 
 agreed to pay a certain sum and interest to 
 plaintiff on or before a certain day, he 
 agreeing to assign and deliver to them cer- 
 tain stock in a corporation upon payment of 
 the^ money, plaintiff deposits the stock in a 
 bank in the city where the contract was 
 made and more than forty days before the 
 day named causes the parties to be notified 
 that the stock is in the bank, subject to 
 their disposition, upon payment of the debt, 
 and some of the parties reside in the city, 
 while others reside at a place more than 
 300 miles distant. Kauffman v. Raeder, 47 
 C. C. A. 278, 108 Fed. 171, 54: 247 
 
 706. There is a sufficient tender on the 
 part of the seller in a contract by which one 
 agrees to procure for another a bona fide bid 
 of a certain amount for certain stock with- 
 in twelve months, or at the end of that time 
 to take the stock himself at an agreed price 
 at the seller's option, if the seller mails a 
 notice which must, by due course of mail, 
 reach the buyer one year from the date of 
 the agreement, and which informs the buyer 
 that he is expected to take the stock, which 
 is actually tendered to him four days there- 
 after and payment demanded, especially 
 where the buyer makes a general refusal 
 to comply with the agreement. Dnchemin 
 v. Kendall, 149 Mass. 171, 22 N. E. 242, 
 
 3: 784 
 
 3. Acceptance; Waiver of Objections. 
 Acceptance. 
 Liability for Failure to Accept, see infra. 
 
 826. 
 
 Estoppel by, see Estoppel, 239. 
 By Purchaser, see Sale, I. d. 
 See also infra, 712. 
 For ^Editorial Notes, see infra, VEIL 40. 
 
 707. Taking possession of a vessel which 
 is being built by a contractor before its 
 completion or the expiration of the time 
 therefor, merely because the contractor has 
 made an assignment for creditors, though it 
 might be treated by his assignee as a tres- 
 pass, may be regarded instead, at his 
 option, as an acceptance under the contract. 
 Vandegrift v. Cowles Engineering Co. 161 
 N. Y. 435, 55 N. E. 941, 48: 685 
 
 708. The mere fact that a building re- 
 mains on the land and the owner enjoys the 
 benefit of it. he having no option to reject 
 it, is not STich an acceptance as would imoly 
 a promise to pay for it, where the builder
 
 CONTRACTS, IV. d. 
 
 under a special contract has failed to com- 
 plete it, or completes it in a manner not 
 substantially conforming to his contract. 
 Elliott v. Caldwell, 43 Minn. 357, 45 N. W. 
 845, 9: 52 
 
 709. Taking possession of real estate, 
 after work in constructing buildings has 
 been done thereon and the contractor has 
 left the premises, and appropriating to the 
 owner's use and benefit the labor or ma- 
 terials of the contractor, does not consti- 
 tute an unequivocal acceptance of the work, 
 although it may be taken into consideration 
 in determining that matter. Hanley v. 
 Walker, 79 Mich. 607, 45 N. W. 57, 8: 207 
 
 710. Lien creditors are concluded as to the 
 sufficiency of the completion of a building, 
 in the absence of fraud or mistake, by its 
 acceptance by the architect and the owner. 
 Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 
 33 S. W. 652, 30: 765 
 Waiver or estoppel. % 
 See also supra, 652; infra, 825. 
 
 For Editorial Notes, see infra, VIII. 40, 
 42. 
 
 711. Objection to a variance between a 
 lease agreed upon and the one delivered is 
 waived by refusal to accept any lease. 
 Freeland v. Ritz, 154 Mass. 257. 28 N. E. 
 226, 12: 561 
 
 712. Where an order was given for print- 
 ing cards conditional on the acceptance of 
 a finished proof, where such proof has been 
 accepted and directions given to print, an 
 error in the sample proof, which is perpetu- 
 ated in the cards printed to fill the order, is 
 no ground for refusing to accept them. 
 Gills Lithographic & L. P. Co. v. Chase, 149 
 Mass. 459, 21 N. E. 765, 4: 480 
 
 713. A waiver of claim to compensation, 
 or estoppel from asserting it under a con- 
 tract to collect the direct tax returned by 
 the general government for a state which 
 had paid the tax out of its treasury, for a 
 percentage of the amount received, is not 
 worked by consenting to its receipt on con- 
 dition that no part of it shall be used to 
 pay the claimant, since such consent will at 
 most amount to an agreement that he shall 
 be paid in some other way. Davis v. Com. 
 164 Mass. 241, 41 N. E. 292, . 30: 743 
 
 714. Departure from specifications in ma- 
 chines manufactured under a contract will 
 be waived by taking them and failing to 
 give timely notice of nonacceptance because 
 of noncompliance with the contract. J. 
 Thompson Mfg. Co. v. Gunderson, 106 Wis. 
 449, 82 N. W. 299, 49: 859 
 
 715. If machines manufactured under a 
 contract depart from the specifications, with 
 the knowledge and consent of the pur- 
 chaser, he cannot hold the manufacturer re- 
 sponsible in damages for their failure to 
 work. Id. 
 
 d. Condition; Certificate of Performance. 
 
 Submitting to Arbitration for Failure to 
 Complete in Time, see Arbitration, 4. 
 
 Condition in Contribution for Buildinsr 
 Church, Presumption as to, see Evi- 
 dence, 340. 
 
 Allegations as to, see Pleading, 271, 274. 
 
 Condition that Employee shall Give Satis- 
 faction, see Master and Servant, 34. 
 
 Seller's Agreement to Give Satisfaction, see 
 Sale, 3, 4. 
 
 Condition for Perfecting Title to Satisfy At- 
 torney, see Vendor and Purchaser, 52. 
 
 See also supra, 710; infra, 752, 822. 
 
 For Editorial Notes, see infra, VIII. 39 r 
 40. 
 
 716. An agreement by a manufacturing 
 corporation that, subject to conditions 
 named and for the purpose of securing the 
 continuous patronage of a purchaser as 
 payee, the company will, in six months,, 
 pay to the purchaser a certain amount, 
 being a rebate on a purchase that day 
 made, to be valid and payable only on con- 
 dition that the purchaser, his successors and 
 assigns, shall have bought their supply of 
 such goods as are produced by the company 
 exclusively from one or more dealers named, 
 cannot be enforced even in equity with- 
 out the performance of the condition, unless 
 waived or excused, upon the ground that the 
 condition is affixed as a means of carrying 
 out the illegal purposes of a monopoly, as 
 the condition is the sole consideration of the 
 promise, and if illegal the promise falls 
 with it. Dannehy v. McNulta, 30 C. C. A. 
 422, 59 U. S. App. 264, 86 Fed. 825, 41 : 609 
 Arbitrary rejection. 
 
 717. A clause in a contract, obliging the 
 manufacturing company to furnish engines 
 if the exigencies of its business permitted, 
 gave it no arbitrary right to refuse. It 
 must have a valid reason for the refusal,, 
 and its invalidity must be shown by evi- 
 dence. Taylor Mfg. Co. v. Hatcher, 39 Fed, 
 440, 3:587 
 
 718. The mere expression of dissatisfac- 
 tion with an article furnished under a con- 
 tract providing that it shall be satisfactory 
 will not justify a termination of the con- 
 tract, if there was not an actual dissatis- 
 faction. Worthington v. Gwin, 119 Ala. 4j4 r 
 24 So. 739, 43 : 382 
 
 719. A just claim under a contract which 
 provides that the work shall be done to the 
 entire satisfaction of the other party can- 
 not be defeated by the latter by arbitrarily 
 and unreasonably saying he is not satisfied. 
 Dall v. Noble, 116 N. Y. 230, 22 N. E. 406, 
 
 5: 554 
 
 720. A promise to pay an acknowhvl< ' 
 indebtedness at such times and in such *r.:;i* 
 as the debtor "might feel able to pay" cre- 
 ates a legal and moral obligation to pay 
 when the debtor is able, and, although the 
 debtor is made the judge of that fact, his 
 judgment must be honestly exercised. Pistel 
 v. Imperial Mut. L. Ins. Co. 88 Md. 552, 42 
 Atl. 210, 43: 219 
 Necessity of certificate. 
 
 For Editorial Notes, see infra, VIII. 40. 
 
 721. Recovery upon a quantum meruit 
 cannot be based on a contract which makes 
 a certificate of architects a condition prece- 
 dent to a right of action, where the cer- 
 Hficate has not been obtained. Hanley v. 
 Walker. 79 Mich. 607, 45 N. W. 57, 8:' 207 
 
 722. Remedying the defects pointed out
 
 CONTRACTS, IV. e. 
 
 717 
 
 by architects, but not in the ways suggest- 
 ed by them, and without obtaining from 
 them the certificate made by the contract 
 a condition precedent to a right of action, 
 cannot give a cause of action. Plaintiffs 
 cannot substitute their own assertion, or the 
 opinion of the jury, for the decision of the 
 architects. Id. 
 
 723. An architect's certificate that a build- 
 ing has been actually completed, provided 
 for in the building contract, need not be ob- 
 tained by one who furnished materials to 
 the contractor, where the latter abandons 
 the work and the owner finishes the same in 
 accordance with a provision of the contract. 
 Campbell v. Coon, 149 N. Y. 556, 44 N. E. 
 300, 38: 410 
 Conclusiveness and sufficiency ot certificate. 
 See also Evidence, 2305. 
 
 For Editorial Notes, see infra, VIII. 40. 
 
 724. Certificates of architects to whose de- 
 cision, by a contract, all differences are to 
 be referred, with no right of appeal there- 
 from, are binding upon the parties, in the 
 absence of bad faith on their part of con- 
 cealment of defects by the builder. Boettler 
 v. Tendick. 73 Tex. 488, 11 S. W. 497, 5: 270 
 Ilanley v. Walker. 79 Mich. 607, 45 N. W. 
 57, 8:207 
 
 72o. Evidence by witnesses that the work 
 OH a house was not done in a workmanlike 
 manner is inadmissible in an action for 
 damages for failure to construct the house 
 according to contract, where the architect 
 has given the certificate required by the 
 contract as to the character of the work, and 
 there is no evidence of fraud or collusion on 
 his part. Boettler v. Tendick, 73 Tex. 488, 
 11 S. W. 497. 5: 270 
 
 72(i. The certificate of the proper officer 
 that certain work is necessary to complete 
 or perfect a particular job which is being 
 performed for the city of New York, or 
 that any supply is needful for any par- 
 ticular purpose, is conclusive as between the 
 one contracting to furnish such work or 
 supply and the city, where there is no alle- 
 gation of fraud, and where the facts indi- 
 cate that the necessity certified is a possi- 
 ble incident of- such work or supply. 
 Bradv v. New York. 112 N. Y. 480, 20 N. 
 E. 390. 2: 751 
 
 727. The execution and delivery of an 
 architect's certificate under a building con- 
 tract providing for payment upon the pre- 
 sentation of such certificate entitles the 
 contractor to payment, although the cer- 
 tificate is not kept by him, but is handed 
 back to the architect, and no presentation is 
 made to the owner. Arnold v. Bournique, 
 144 111. 132, 33 N. E. 53(1. 20: 493 
 
 728. A certificate by a city engineer stat- 
 ing that the contractor "has completed his 
 contract according to the specifications, and 
 is entitled to the full contract price." is suf- 
 ficient in form to show compliance with a 
 contract to do certain work for the city. 
 which provides that the contractor "shall 
 perform the work in a good, workmanlike, 
 and substantial manner, to the satisfaction, 
 and under the direction, of the city engineer. 
 
 MoGuire v. Rapid City, 6 Dak. 346, 43 N. 
 W. 706, 5: 752 
 
 729. When a building contract provided 
 that the decision of the architect should be 
 conclusive on the question whether work 
 done in the course of the erection of the 
 building was within the specifications, or 
 not, it was an implication, indispensable to 
 the efTcctuation of the purpose of the par- 
 ties, that such decision should be an honest 
 one. Chism v. Schipper (N. J. Sup.) 51 N. 
 J. L. 1, 16 Atl. 316, 2: 544 
 
 730. Fraud in the decision of an arbiter, 
 to whose decision a question is referred by 
 contract, may be set up in a suit on the 
 contract, in avoidance of his decision, even 
 though it does not appear that the party 
 who would benefit by it has colluded. Id. 
 
 731. The chief engineer of the owner, to 
 whose decision matters connected with a 
 building contract are to be left, will not be 
 the person to decide them, after he has left 
 the ov/ner's employ. Wallis Iron Works v. 
 Monmouth Park Asso. (N. J. Err. & App.) 
 55 N. J. L. 132, 26 Atl. 140, 19 : 456 
 
 e. Breach and Its Effect. 
 
 Excuse for Breach, see suora, IV. b, 1. 
 
 Inevitable Accident or Impossibility of Per- 
 formance as Ground for Breach, see 
 supra, IV. b, 2. 
 
 Prevention or Hindrance by other Party as 
 Excuse for Nonperformance, see supra, 
 IV. b, 3. 
 
 Joining Cause of Action for Breach with 
 One for Tort, see Action or Suit, 90. 
 
 Payment of Purchase Money Note as Con- 
 dition Precedent to Action for, see Ac- 
 tion or Suit, 21. 
 
 Breach of Marriage Contract, see Breach of 
 Promise. 
 
 Agreement as to Place to Sue for Breach, 
 see Conflict of Laws, 22. 
 
 Measure of Compensation for Breach, see 
 Damages, III. a; III. p, 2; Set-Off and 
 Counterclaim, 5-7. 
 
 Choice of Remedy for Breach, see Election 
 of Remedies.* 20-30. 
 
 Evidence as to Breach, see Evidence, XI. o. 
 
 Action for Breach against Executor, see 
 Executors and Administrators, 123. 
 
 Injunction against Breach, see Injunction, 
 I. b. 
 
 Breach of Contract to Protect Servant from 
 Strikers, see Master and Servant, 56. 
 
 Third Person's Right to Sue for Breach, see 
 Parties, I. a, 2, 6. 
 
 Of Condition Subsequent, see Real Prop- 
 erty, 18-27. 
 
 Quieting Grantor's Title after Breach of 
 Contract for Support, see Real Prop- 
 erty, 6. 
 
 Question for Jury as to, see Trial, 128, 247. 
 
 Si-e also supra. 675, 681; infra, 764, 824. 
 
 For Editorial Notes, see infra, VIII. 44. 
 
 732. If one who delivers his cotton to a 
 compress company under an agreement by 
 the latter to procure insurance on it does 
 not rely on the obligation so imposed, but 
 procures other insurance thereon in solvent 
 companies, he cannot, in case of the de-
 
 718 
 
 CONTRACTS, IV. e. 
 
 struction of the cotton, recover from the 
 compress company because of its failure to 
 procure insurance. Deming v. Merchants' 
 Cotton-Press & S. Co. 90 Tenn. 306, 17 S. 
 W. 89, 13: 518 
 
 733. A decision of the courts of a state 
 holding unlawful the business of indemnify- 
 ing against losses on credits does not pre- 
 clude recovery for breach of a contract, 
 caused by the insolvency of the company, 
 to act as agent in the state for a foreign in- 
 surance company engaged in such business, 
 where, at the time the contract was made, 
 the business was held lawful by the state 
 insurance commissioner. Rosenbaum v. 
 United States Credit System Co. (N. J. Err. 
 & App.) 65 N. J. L. 255, 48 Atl. 237, 53: 449 
 What constitutes a breach. 
 
 Of Mortgage for Life Support, see Mort- 
 gage, 134. 
 
 By Purchaser, see Sale. 103. 
 See also Guaranty, 1; Photographs, 2. 
 
 734. A contract not to engage in the 
 barber business in any manner in a certain 
 town so long as another person shall con- 
 tinue in business, made by the owner of a 
 barber shop upon a sale of his furniture, 
 tools, and fixtures to such person, is violated 
 by working at the barber trade as an em- 
 ployee. Pohlman v. Dawson, 63 Kan. 471, 
 G5 Pac. 689, 54: 913 
 
 735. A covenant by a partnership in sell- 
 ing its bvisiness, binding the partners not to 
 engage in business again within a certain 
 distance of the old stand, is broken by one 
 partner's so engaging, so as to render him 
 liable for the breach. Love v. Stidham, 18 
 App. D. C. 306, 53: 397 
 
 736. Causing it to be believed by the pro- 
 spective customers of the other party that 
 one is a partner in a rival firm is a breach 
 of a contract not to engage in a business for 
 a certain time as a partner in such firm. 
 Daniels v. Brodie, 54 Ark. 216, 15 S. W. 467, 
 
 11: 81 
 
 737. To take stock or help to organize or 
 manage a corporation formed to carry on a 
 business after one has agreed, on the sale of 
 such a business, not to continue it in that 
 locality, is a breach of his contract. Kra- 
 mer v.'Old, 119 1ST. C. 1, 25 S. E. 813, 34: 389 
 
 738. The mere making of a second execu- 
 tory contract to sell property which the 
 vendor had already agreed to sell is not of 
 itself a breach of the prior agreement, as it 
 does not incapacitate him from carrying it 
 out. Stanford v. Magill, 6. N. D. 536, 72 
 Ts T . W. 938, 38: 760 
 
 739. The vendor in a contract to sell prop- 
 erty of a certain description, no particular 
 articles being agreed upon, can, before the 
 day of delivery, after an ex parte selection 
 of the property which he intends to deliver, 
 sell that property to another without breach 
 of his agreement, as the law requires only 
 that he deliver property of the prescribed 
 description when delivery is due. Id. 
 
 740. The pregnancy of ewes in October is 
 not a breach of a contract made some time 
 before, to deliver them "in healthy condi- 
 tion." Olson v. Port Huron Livestock Asso. 
 18 Mont. 392, 45 Pac. 549, 33:557 
 
 741. Printing a lithographed cover design 
 with the addition, for advertising purposes, 
 of the lithographer's name, which is made 
 after approval of proofs, is a breach of a 
 contract to furnish finished work equal in 
 good effect to the proofs, the approval of 
 which rests with the customer, although the 
 addition does not detract from the merit or 
 usefulness of the cover, and it is customary 
 to make it unless an agreement to the con- 
 trary is specifically made. Harris v. Sharp- 
 ies, 202 Pa. 243, 51 Atl. 965, 58: 214 
 
 742. The repudiation of a contract before 
 the time for performance arrives does not 
 constitute a breach thereof, but the only ef- 
 fect is to dispense with an offer by the other 
 party to perform, if such repudiation is not 
 withdrawn before the stipulated time for 
 performance. Stanford v. Magill, 6 N. D. 
 536, 72 N. W. 938, 38: 760 
 
 743. A breach of an independent covenant 
 which does not go to the whole consideration 
 of a contract, but which is subordinate and 
 incidental to its main purpose, does not 
 constitute a breach of the entire contract, 
 or warrant its rescission by the injured 
 party, but the latter is still bound to per- 
 form his part of the contract, and his only 
 remedy for the breach is compensation in 
 damages. Kauffman v. Raeder, 47 C. C. A. 
 278, 108 Fed. 171, 54: 247 
 
 744. A general assignment for creditors 
 made by a contractor does not abrogate the 
 contract or constitute a breach of it so as 
 to entitle the other party to take possession 
 of the property on which the work is being 
 done before the expiration o f the time 
 agreed upon for performance, although the 
 assignment contains no provisions with re- 
 spect to the assignee's power to carry out 
 contracts. Vandegrift v. Cowles Engineer- 
 ing Co. 161/N. Y. 435, 55 N. E. 941, 48: 685 
 
 745. The refusal of a mortgagor to fur- 
 nish support to the mortgagees at any other 
 place than his own home, although they 
 were entitled to claim it at any reasonable 
 place, and his declaration that he would not 
 pay for any support furnished by others, 
 constitute a breach of the condition of the 
 mortgage, on which an action of foreclosure 
 may be maintained for- the' reasonable value 
 of support furnished by others, without any 
 request of the mortgagor or demand upon 
 him. Tuttle v. Burgett, 53 Ohio St. 498, 
 42 N. E. 427, 30: 214 
 Effect. 
 
 Liability for Inducing Breach, see Case, II. 
 
 Statutory Penalty for Breach, see Constitu- 
 tional Law, ilOl. 
 
 Cancelation of Oil or Gas Lease for Breach 
 of Conditions, see Mines, 85-91. 
 
 See also supra, 652, 742-745; infra, 808-815. 
 
 746. Upon election to treat the renuncia- 
 tion of the contract by the other party, 
 whether by declaration or by acts and con- 
 duct, as a breach of the contract, the rights 
 of the parties are to be then regarded as 
 culminating, and the contractual relation 
 ceases to exist except for the purpose of 
 maintaining an action for the recovery of 
 damages. Lake Shore & M. S. R. Co. v. 
 Richards, 152 111. 59, 38 N. E. 773, 30: 3$
 
 CONTRACTS, IV. f, V. a. 
 
 747. The breach of the implied condition 
 that an employee will serve his employer 
 honestly, by embezzling funds during every 
 month he was employed by a contract which 
 was entire for each month, prevents any re- 
 covery of wages. Peterson v. Mayer, 40 
 Minn. 4C8, 49 N. W. 245, 13: 72 
 
 748. An owner of property in the posses- 
 sion of a bailee who has contracted to in- 
 sure it cannot recover for the latter's failure 
 to procure full insurance, when he has him- 
 self procured it and received payment there- 
 on. Deming v. Merchants' Cotton Press & S. 
 Co. 90 Tenn. 306, 17 S. W. 89, 13: 518 
 
 749. A contract by a compress company 
 to procure insurance for the benefit of car- 
 riers, upon cotton delivered to it for such 
 carriers, renders it liable to them for failure 
 to procure insurance sufficient to 'cover any 
 loss that occurs. Id. 
 
 750. A cotton compress company which 
 receives cotton for compression and storage 
 under a contract, either express or implied 
 from usage, to insure the same to its full 
 value for the owner's benefit, is liable to 
 the latter for its full value in case it is 
 destroyed by fire while, through the com- 
 pany's negligence, it remains uninsured, al- 
 though the company is free from negligence 
 in caring for it. Id. 
 Waiver of breach. 
 
 751. Waiver of a breach by a fertilizer 
 manufacturer, of his contract to procure his 
 crude rock from the other party, by his fail- 
 ure to do so for two years, is not shown by 
 neglect absolutely to refuse further com- 
 pliance until after orders for a large amount 
 nave been received, where they were all 
 rushed in within a few months, and full 
 knowledge of the facts was not shown. 
 Loudenback Fertilizer Co. v. Tennessee 
 Phosphate Co. 58 C. C. A. 220, 121 Fed. 298, 
 
 61: 402 
 f. Time. 
 
 For Delivery of Goods Sold, see Sale, 31-33.' 
 Default by Purchaser of Land, see Vendor 
 
 and Purchaser, 9, 16, 17. 
 Waiver of Right to Damages by Delay, see 
 
 Sale, 102. 
 See also supra, II. c; infra, 814. 
 
 752. A subscription to a building on the 
 express condition that it shall be completed 
 within a certain time fails unless the con- 
 dition is complied with. Cincinnati, S. & C. 
 R. Co. v. Bensley, 6 U. S. App. 115, 2 C. C. 
 A. 480, 51 Fed. 738, 19:796 
 
 V. Change or Extinguishment. 
 a. In General. 
 
 Reformation of Insurance Policy, see Insur- 
 ance, III. b. 
 
 Revocation of Antenuptial Contract, see 
 Husband and Wife, 163. 
 
 For Editorial Notes, see infra, VIII. 45- 
 50. 
 
 753. The revocation of authority after it 
 ha* been executed cannot avail to annul a 
 
 contract made in conformity thereto. Peo- 
 ple v. North River Sugar Ref. Co. 121 N. Y. 
 582, 24 N. E. 834, 9: 33 
 
 754. The appointment of appraisers can- 
 not be revoked at the pleasure of one of the 
 parties, when they have proceeded to make 
 a valuation of property under a contract for 
 the sale thereof at a price to be fixed by 
 the appraisers, and for a valid considera- 
 tion already past. Guild v. Atchison, T. 
 & S. F. R. Co. 57 Kan. 70, 45 Pac. 82, 33 : 77 
 Modification generally. 
 
 For Editorial Notes, see infra, VIII. 45. 
 
 755. The manner in which compensation 
 shall be paid may be waived or modified 
 without destroying the promise that a cer- 
 tain amount shall be paid, where the lat- 
 ter is the principal part of the contract. 
 Davis v. Com. 164 Mass. 241, 41 N. E. 2H2, 
 
 30: 743 
 
 Modification by parol. 
 For Editorial Notes, see infra, VIII. 45. 
 
 756. The ancient technical rule of common 
 law, that a contract under seal cannot be 
 varied or discharged by a parol agreement, 
 is practically superseded. McCreery v. Day, 
 119 N. Y. 1, 23 N. E. 198, 6: 503 
 
 757. An executed parol agreement modi- 
 fying a contract under seal will be upheld. 
 McKenzie v. Harrison, 120 N. Y. 260, 24 N. 
 E. 458, 8; 257 
 
 758. A stipulation in a written lease, giv- 
 ing the tenant the right to cut and use 
 trees growing on the leased premises, may 
 be waived by parol. Lee v. Hawks, 68 Miss. 
 669, 9 So. 828, 13: 633 
 Repudiation. 
 
 As Ground for Rescission, see infra, SOS- 
 SIS. 
 
 By Corporation, Necessity of Promptness, 
 see Corporations, 349. 
 
 See also supra, 742. 
 
 759. Either party to a contract, while it 
 is executory, may by explicit direction stop 
 performance on the other side, thereby be- 
 coming liable for the damages to which the 
 other is subjected; and thereafter the 
 other cannot proceed with the performance 
 of the contract and increase the amount of 
 damages. Gibbons v. Bente, 51 Minn. 499, 
 53 N. W. 756, 22: 80 
 
 760. Affirmative relief in equity against 
 an illegal contract by a corporation to 
 transfer its entire plant and business to 
 another company, and a conveyance in pur- 
 suance thereof, may be given to the extent 
 of an injunction against interference with 
 the title or possession of the original cor- 
 poration, where before actually surrender- 
 ing the possession of its property, or re- 
 ceiving all the consideration, it repudiated 
 the whole scheme and tendered back all 
 that it had ever received, and has kept the 
 tender. MeCutcheon v. Merz Capsule Co. 37 
 U. S. App. 586, 19 C. C. A. 108, 71 Fed. 787. 
 
 31: 415 
 
 Abandonment. 
 
 Of Contract with City, see Municipal Cor- 
 porations. 308, 309. 
 For Editorial Notes, see infra, VIII. 50. 
 
 7<51. The fact that a small quantity of ore 
 delivered under contract providing for sue-
 
 720 
 
 CONTRACTS, V. b. 
 
 cessive shipments of ore free from foreign 
 substances was not free from them does not 
 justify an abandonment of the entire con- 
 tract. Worthington v. Gwin, 119 Ala. 44, 
 24 So. 739, 43: 382 
 
 762. It can make no difference whether a 
 contract has been partially performed or 
 the time for performance has not yet ar- 
 rived, in determining the right of one party 
 to regard it as abandoned by the other. 
 Lake Shore & M. S. R. Co. v. Richards, 
 152 111. 59, 38 N. E. 773, 30: 33 
 
 763. The refusal of a purchaser of wood 
 to keep his agreement to pay for each ship- 
 ment as received, and his declaration that 
 he would not pay for a shipment until the 
 next shipment was received, while he in- 
 sisted on the complete delivery of the wood, 
 do not constitute such an abandonment of 
 the contract on his part as will justify the 
 seller in refusing to ship any more wood. 
 West v. Bechtel, 125 Mich. 144, 84 N. W. 69, 
 
 51:791 
 
 764. A breach of contract which will jus- 
 tify the party not in default in abandoning 
 performance and suing for damages on ac- 
 count of a breach by the other need not be 
 of such a character as to render the further 
 execution of the contract by him impossible, 
 but if the other party refuses to treat it 
 as subsisting and binding upon him, or by 
 his act and conduct shows that he has re- 
 nounced it -and no longer considers himself 
 bound by it, there is in legal effect a pre- 
 vention of performance by the other party. 
 Lake Shore & M. S. R. Co. v. Richards, 152 
 111. 59, 38 N. E. 773, 30: 33 
 
 b. Termination. 
 
 Of Contract by Borrowing Member of Loan 
 Association, see Building and Loan As- 
 sociations, 53. 
 
 Separation Agreement, see Divorce and Sep- 
 aration, 125. 
 
 Of Contract of Employment, see Master and 
 Servant, I. e. 
 
 See also infra, 744. 
 
 765. Neither party can terminate, with- 
 out the consent of the other, a contract 
 between a telegraph company which is seek- 
 ing a route for a through line, and a rail- 
 road company in need of telegraphic service, 
 by which they undertake to construct and 
 maintain a lino along the railroad right of 
 way at joint expense, each to be entitled 
 to string wires for its own use, after the 
 line has been put in operation and main- 
 tained for many years under modified agree- 
 ments in such a manner as to indicate that 
 there was no intention to limit the duration 
 of th? contract. Western U. Teleg. Co. v. 
 Pennsylvania Co. 64 C. C. A. 285, 129 Fed. 
 849, 08: 968 
 
 70!!. An employer who takes an employee 
 seriously injured to a hospital, promising 
 to pay for his care and treatment, without 
 any mention as to length of time, has no 
 right, while the patient is incapable of re- 
 moval or discharge from the hospital with- 
 out great danger to his health or life, to 
 
 termniate its liability for further care or 
 treatment, at least without showing that 
 the patient has sufficient means of his own 
 with which to pay therefor. St. Barnabas 
 Hospital v. Minneapolis International Elec- 
 tric Co. 68 Minn. 254, 70 N. W. 1126, 40: 388 
 
 767. A contract by one selling his busi- 
 ness not to re-engage in the same business 
 in the same town is not discharged, as mat- 
 ter of law, by the mere fact that he subse- 
 quently forms a partnership with the pur- 
 chaser in such business, so that, in case the 
 partnership is dissolved, he will be at liber- 
 ty to establish a business on his own ac- 
 count; even although the partnership agree- 
 ment stipulated that if the parties could 
 not agree the property should be put up 
 at auction between them and sold to the 
 one bidding highest. Drown v. Forrest, 63 
 Vt. 557, 22 Atl. 612, 14: 80 
 By insanity. 
 
 768. The fact that the maker of notes be- 
 came insane after he had given them to be 
 used for the purchase of a site for a libra- 
 ry in a school district, and before the site 
 was bought but after the district had ex- 
 pended money and incurred liability in pro- 
 moting the enterprise, does not revoke his 
 contract. Kansas City School Dist. v. 
 Stocking, 138 Mo. 672, 40 S. W. 656, 37: 406 
 By death of party. 
 
 769. Death terminate^ an executory con- 
 tract when the peculiar skill or taste of the 
 party makes his continued existence essen- 
 tial to the completion of the contract. Cox 
 v. Martin, 75 Miss. 229, 21 So. 611, 36: 800 
 
 770. The death of one who has given a 
 deed of trust on crops to be grown during 
 a certain year, and also on some personal 
 property besides, does not terminate the 
 contract. Id. 
 
 771. A contract of employment by a part- 
 ner is not dissolved by the death of one of 
 the partners, where the business goes on 
 without a break and both parties seem to 
 assume that the contract is not ended. 
 Hughes v. Gross, 166 Mass. 61, 43 X. E. 
 1031, 32: 620 
 
 772. An explicit agreement to take and 
 pay for a certain quantity of water per an- 
 num for ten years is not terminated by the 
 death of the promisor, although he wanted 
 the water, as the other party knew, for use 
 ?n a mill held under a lease, and the lease 
 Avas rightfully terminated by the lessor 
 after his death, especially where the con- 
 tract was procured by the other party as a 
 basis for making an investment in the 
 waterworks. Drummond v. Crane, 159 Mass. 
 577. 35 X. E. 90, 23: 707 
 
 773. A final provision in a contract bind- 
 ing the party and his legal representatives 
 does not bind them to do anything from 
 which he is discharged by death by provid- 
 ing for a substituted performance of his 
 undertakings, which are personal in their 
 character. Marvel v. Phillips, 162 Mass. 
 399, 38 X. E. 111.7, 26: 416 
 
 774. A contract by an assignee of an in- 
 vention to advance all funds requisite, look- 
 ing to the business for repayment, and to 
 manage it for the joint benefit of both, in-
 
 CONTHAUTS, V. c, 1, 2. 
 
 721 
 
 volves undertakings chiefly personal in their 
 character on his part, which are discharged 
 by his death, so that his executors cannot 
 be compelled to make advances of the re- 
 quisite funds for the business. Id. 
 Right to terminate contract of employment. 
 
 775. A parent who has made a contract 
 with another for the services of his minor 
 eon may cancel the contract and take his 
 son from the other's custody, if the latter 
 persists in requiring the son to work on the 
 Sabbath in violation of law, although the 
 son is willing to perform the illegal labor. 
 Hunt v. Adams, 81 Me. 356, 17 Atl. 298, 
 
 3: 608 
 Effect of return after quitting employment. 
 
 776. A return the following day, with an 
 offer to work out the time for which notice 
 is required before quitting, will rit relieve 
 an employee from the effect of quitting 
 without sufficient notice, under a contract 
 fixing stipulated damages therefor. Tennes- 
 see Mfg. Co. v. James, 91 Tenn. 154, 18 S. 
 W. 262, 15: 211 
 
 c. Rescission; Cancelation. 
 1. In General. 
 
 Rescission as Condition Precedent to Action 
 
 for Damages, see Action or Suit, 23. 
 Joining Causes of Action to Set Aside Deed 
 
 and Will, see Action or Suit, 94, 101. 
 Relief against Village Bonds, see Bonds, 113. 
 Cancelation of Written Contract, see 
 
 Cancelation of Instruments. 
 Jurisdiction of Equity to Cancel Written 
 
 Instruments, see Equity, I. f. 
 Of Agreement as to Voting Stock, see 
 
 Corporations, 662. 
 
 Burden of Proof, see Evidence, 647. 
 By Infant, see Infants, I. d, 2, &. 
 Of Insurance Policy, see Insurance, HI. 
 
 b, c. 
 
 Of Gas Lease, see Mines, 83. 
 Of Release from Mortgage, see Mortgage, 
 
 120. 
 
 Of Contract with City, see Municipal Corpo- 
 rations, 300-307. 
 Of Sale, see Sale, III. c. 
 Between Vendor and Purchaser, see Vendor 
 
 and Purchaser, I. e. 
 See also supra, 302, 642, 766; infra, 827a, 
 
 837. 
 For Editorial Notes, see infra, VIII. 49, 
 
 50. 
 
 777. Full knowledge of a fraud by which 
 a contract was procured, which requires the 
 defrauded party to elect whether he will 
 perform or rescind the contract, does not 
 include knowledge of all the evidence tend- 
 ing to prove the fraud; knowledge of the 
 material facts which go to make up the 
 fraud is sufficient. Simon v. Goodyear Me- 
 tallic Rubber Shoe Co. 44 C. C. A/ 612, 105 
 Fed. 573, 52: 745 
 
 778. Where a contract is rescinded while 
 in the course of performance, any claim in 
 respect of performance, or of what has been 
 paid or received thereon, will ordinarily be 
 referred to the agreement of rescission, and 
 in general no such claim can be made un- 
 
 L.R.A. Dig. 46. 
 
 less expressly or impliedly reserved upon 
 the rescission. McCreery v. Day, 119 N. Y. 
 
 1, 23 N. E. 198, 6: 503 
 
 779. Merely signing and acknowledging a 
 deed of assignment of the firm assets for 
 benefit of creditors will not defeat the right 
 of one who has been defrauded in the pur- 
 chase of an interest in a partnership con- 
 cern to rescind the fraudulent contract, if 
 before delivery of the deed he withdraws 
 his consent thereto. Tarkington v. Purvis, 
 128 Ind. 182, 25 N. E. 879, 9: 607 
 
 2. Conditions; Promptness; Restoring Bene- 
 
 fits. 
 
 On Rescission of Sale, see Sale, 177. 
 For Editorial Notes, see infra, VIII. 49, 
 50. 
 
 Promptness. 
 
 In Rescinding Sale to Corporation by Pro- 
 moters, see Corporations, 349. 
 Question for Jury as to, see Trial, 161. 
 See also infra, 825. 
 
 780. If a person, in a business transaction 
 with another, is deceived by the latter to 
 his injury, such person may rescind the 
 transaction within a reasonable time after 
 he discovers, or has reasonable opportunity 
 to discover, the fraud, constructive knowl- 
 edge thereof being just as effective as actual 
 knowledge to set the time for rescission 
 running and to mark its limits. Bostwick v. 
 Mutual L. Ins. Co. 116 Wis. 392, 89 N. W. 
 538, 92 N, W. 246, 67: 705 
 
 781. A landowner permitting the con- 
 struction of a switch track across his prop- 
 erty on consideration that the track shall 
 not be used to haul goods for his business 
 rivals cannot, after large pecuniary invest- 
 ments ha've been made by other persons, 
 which are dependent for their profitable 
 operation on the continued use of the track, 
 withdraw his consent to its use upon learn- 
 ing that the consideration cannot be en- 
 forced. Louisville & N. R. Co. v. Pittsburgh 
 & K. Coal Co. Ill Ky. 960, 64 S. W. 969, 
 
 55: 601 
 
 782. A turnpike company to which plain- 
 tiff orally sold land, in consideration of the 
 right to himself and family to pass per- 
 petually through certain tollgates free of 
 charge, which right he exercised for over 
 fifteen years, cannot rescind the contract be- 
 cause not in writing. Park v. Richmond & 
 I. Turnp. Co. (Ky.) (Not to be Rep.) 9 S. 
 W. 252, 423, 1: 198 
 Restoring benefits. 
 
 On Rescinding Illegal Sale of Waterworks, 
 
 see Action or Suit, 30. 
 Before Rescinding for Duress, see Duress, 12. 
 By Infant, see Infants, 85-90. 
 For Editorial Notes, see infra, VIII. 49. 
 
 783. A voidable contract cannot be disre- 
 garded by either of the parties to it without 
 taking the proper steps to have it canceled 
 and placing the other party in statu quo. 
 Och v. Missouri, K. & T. R/Cb. 130 Mo. 27, 
 31 S. W/962, 36: 442 
 
 784. The tender back of letters patent by 
 a buyer to the seller places the latter in 
 statu quo so as to entitle the former to re-
 
 722 
 
 CONTRACTS, V. c, 3. 
 
 scind the contract of sale on the ground that 
 the letters were void for lack of novelty. 
 Sandage v. Studebaker Bros. Mfg. Co. 142 
 Ind. 148, 41 N. E. 380, 34: 363 
 
 785. The rule that a party who would re- 
 scind a contract must restore what he has 
 received under it does not apply to con- 
 tracts founded on an illegal consideration, 
 and which are void for that reason. Spring- 
 field F. & M. Ins. Co. v. Hull, 51 Ohio St. 
 270, 37 N. E. 1116, 25: 37 
 
 786. A party will not be relieved from the 
 obligations arising from his contract, when 
 he has received and retains the consideration 
 for his unfulfilled promise. Board of Edu- 
 cation v. Townsend, 63 Ohio St. 514, 59 N. E. 
 223, 52: 868 
 
 787. One party to a contract who has re- 
 ceived and retained the benefits of a sub- 
 stantial partial performance thereof by the 
 other party cannot rescind it, but the con- 
 tract must stand, and he must perform his 
 part of it, and his remedy for the breach 
 of complete performance by the other party 
 is limited to compensation therefor in dam- 
 ages. KaufTman v. Raeder, 47 C. C. A. 278, 
 108 Fed. 171, 54: 247 
 
 788. A married woman who, during mi- 
 nority, joins with her husband in a con- 
 veyance of her land in which he has a life 
 interest, is under no obligation, before re- 
 scinding, to refund purchase money paid to 
 the husband and which did not come to her 
 hands, but which may be presumed to have 
 been paid for his interest. She must, how- 
 ever, pay her individual indebtedness to the 
 grantee, which he canceled at the time of 
 the conveyance as part of the consideration 
 thereof. Stull v. Harris, 51 Ark. 294. 11 S. 
 W. 281, 2: 741 
 
 789. To prevent one from rescinding a con- 
 tract of purchase by which he has been de- 
 frauded, for the reason that he has acqui- 
 esced therein, the alleged act of acquiescence 
 must be unequivocal, and must show an 
 election to retain the property after dis- 
 covering the deceit. Tarkington v. Purvis, 
 128 Ind. 182, 25 N. E. 879, 9: 607 
 
 790. No technical tender of property 
 which a vendee was defrauded into buying 
 need be made to the fraudulent vendor be- 
 for"e the commencement of an equity suit to 
 compel a rescission on the ground of fraud. 
 It is sufficient if the vendee can show that 
 he has preserved the property substantially 
 in the condition in which he received it, 
 without intentional or unnecessary change. 
 
 Id. 
 
 791. A sale, by a defrauded vendee, of 
 some of the property received under the 
 fraudulent contract, and a receipt of the 
 money therefor, will not destroy a fully per- 
 fected right on his part to rescind the 
 fraudulent contract, if he fully accounts for 
 the proceeds to the fraudulent vendor, un- 
 less it appears that such sale was made in 
 the regular course of business, or under 
 such circumstances as show an intent to af- 
 firm the fraudulent contract, since he has 
 a right to make sales of the property for 
 certain purposes, such as to preserve it from 
 destruction, etc. Id. 
 
 792. The existence of a cause of action at 
 law to recover the consideration parted with 
 upon a contract, on the ground of fraud, 
 presupposes the actual termination of the 
 contract because of the fraud, and that re- 
 quires a repudiation of such contract by the 
 insured person in toto, or so far as justice 
 may require, and an unconditional offer on 
 his part, so far as justice may require, to 
 restore the wrongdoer to his former situa- 
 tion, or a waiver of such offer by such con- 
 duct, on the latter's part as clearly to indi- 
 cate that a tender to him of that which he 
 parted with in the transaction would be 
 useless because he would not accept it. 
 Bostwick v. Mutual L. Ins. Co. 116 Wis. 392, 
 89 N. W. 538, 92 N. W. 246, 67: 705 
 
 793. The rule as to restoration on rescis- 
 sion of a contract is satisfied if the judg- 
 ment sought will substantially restore the 
 one party to the situation he was in when 
 the agreement was made; as, when money 
 paid by him is less than he justly owed the 
 other party, and the same is credited and 
 the action brought for the balance. Spring- 
 field F. & M. Ins. Co. v. Hull, 51 Ohio St. 
 270, 37 N. E. 1116, 25: 37 
 
 3. Grounds of. 
 
 Duress, see Duress. 
 
 Usury, see Usury, 48. 
 
 Estoppel as to Cause of Negligence, see 
 
 Estoppel, 223, 226. 
 Rescission of Contract of Sale, see Sale, 
 
 III. c. 
 See also supra, 775. 
 
 794. A person who, in a business deal 
 with another, signs a written instrument, is 
 conclusively presumed, as to that other and 
 all persons claiming under him through 
 such instrument, to know the contents 
 thereof, no fraud or deceit being used by 
 such other or by anyone for whose conduct 
 he is responsible, reasonably calculated to, 
 and which does, induce such person to be- 
 come a party to such instrument without 
 reading it. Bostwick v. Mutual L. Ins. Co. 
 116 Wis. 392, 89 N. W. 538, 92 N. W. 246, 
 
 67 : 705 
 Of subscription. 
 
 795. A private understanding with one of 
 four persons who make equal subscriptions, 
 to the effect that other persons will raise 
 and pay a part of his subscription, will not 
 release one of the other four, where this 
 agreement did not amount to a release of 
 the subscriber from any part of his sub- 
 scription. Rogers v. Galloway Female Col- 
 lege. 64 Ark. 627, 44 S. W. 454, "39: 636 
 
 796. A subscriber to a fund to be given 
 for securing the location of a college at a 
 certain place on condition that a specified 
 sum is raised cannot avoid his subscription 
 by showing a deficiency in the amount after 
 it has been accepted as sufficient by the 
 party establishing the college, where he was 
 a leading spirit in the enterprise, knew the 
 subscribers, and knew what was demanded. 
 
 Id. 
 
 797. The purchase of a site for a library 
 without payment of the price therefor, be-
 
 CONTRACTS. V. c, 3. 
 
 723 
 
 fore the collection of notes given to a school 
 district for the purchase of such a site, does 
 not effect a revocation of the contract con- 
 tained in the notes. Kansas City School 
 Dist. v. Stocking, 138 Mo. 672, 40 S. W. 656, 
 
 37: 406 
 For fraud. 
 As to What Constitutes Fraud, see Fraud 
 
 and Deceit. 
 
 In Contract of Sale, see Sale, 168-177. 
 Contract for Purchase of Land, see Vendor 
 
 and Purchaser, 68-72. 
 See also supra, 777, 779, 780, 782, 789-792. 
 For Editorial Notes, see infra, VIII. 46, 
 
 49, 50. 
 
 798. Representations made for the pur- 
 pose of procuring a contract, with the in- 
 tent that they shall be acted on, without 
 knowledge whether they are true or not, are 
 within the rule that a contract procured by 
 false representations may be disaffirmed. 
 Simon v. Goodyear Metallic Rubber Shoe 
 Co. 44 C. C. A. 612, 105 Fed. 573, 52: 745 
 
 799. Equity will grant relief where either 
 a husband or wife has been false to the 
 other, and fraudulently or through coercion 
 has procured an unjust advantage. Mel- 
 drum v. Meldrum, 15 Colo. 478, 24 Pac. 
 1083, 11:65 
 
 800. A purchaser of the interest of one 
 person in a mine, knowing that a fraud was 
 being perpetrated on the seller by concealing 
 the fact of a rich discovery of ore in the 
 mine, cannot avail himself of the benefits 
 thereof, but the conveyance will be set aside 
 for fraud. Gruber v. Baker, 20 Nev. 453, 
 23 Pac. 858, 9: 302 
 Mistake. 
 
 For Cancelation of Release, see Release, 21. 
 Contract for Sale of Land, see Vendor and 
 
 Purchaser, 66, 67. 
 
 See also Reformation of Instruments, 7. 
 For Editorial Notes, see infra, VIII. 47. 
 
 801. Mere ignorance of the contents of a 
 paper, by one who becomes a party thereto 
 under a mistake as to its import, will not 
 enable him to avoid his act. Bostwick v. 
 Mutual L. Ins. Co. 116 Wis. 392, 89 N. W. 
 538, 92 N. W. 246, 67: 705 
 Incompetency. 
 
 802. A deed without power of revocation, 
 from a parent who is incapacitated physical- 
 ly, and weak mentally, to his daughter, who 
 has for some time had the care of him, made 
 without the benefit of competent and inde- 
 pendent advice, will be set aside by equity. 
 Slack v. Rees (N. J. Err. & App.) 66 N. J. 
 Eq. 447, 59 Atl. 466, 69: 393 
 Undue influence. 
 
 Separation Agreement, see Divorce - and 
 
 Separation, 124. 
 Allegation of, see Pleading, 27. 
 Effect of, on Validity of Will, see Wills, I. d. 
 
 803. The fact that a deed of trust was 
 made by a man while sick, troubled, and 
 under nervous excitement, to a trustee act- 
 ing as his counsel, for the purpose of co- 
 ercing his wife into a separation on ad- 
 vantageous terms, will not prevent the 
 grantor from demanding a reconveyance, on 
 the sround that the transaction was against 
 public policy and that he was in pari delicto. 
 
 James v. Steere, 16 R. I. 367, 16 Atl. 143. 
 
 2: 164 
 
 804. An attorney will be ordered to recon- 
 vey land conveyed to him by a client in 
 trust for his children, for the purpose of 
 coercing his wife to a separation on ad- 
 vantageous terms, although it contains no 
 power of revocation, where the client was 
 under a misapprehension as to the trustee's 
 power to reconvey. Id. 
 
 805. A deed from a husband to his wife of 
 land which had been acquired by their joint 
 efforts, secured by her importunities and 
 assurances that he should enjoy it with her 
 as a home, will not be set aside because 
 she has expelled him therefrom. Finlayson 
 v. Finlayson, 17 Or. 347, 21 Pac. 57, 3: 801 
 
 806. The fact that a wife and her husband 
 agreed that she should deed her estate to 
 the latter, who in turn was to will her his 
 estate so that the survivor should have the 
 entire property, does not tend to establish 
 undue influence on the husband's part. 
 Jones v. Gorham, 90 Ky. 622, 14 S. W. 599. 
 
 10: 223 
 
 807. A reconveyance by a natural daugh- 
 ter to her father will be set aside where he 
 had deliberately conveyed the property to 
 her as a gift, and, after becoming feeble in 
 body and mind, was, although unwilling,' 
 driven by other members of his family to 
 ask her for a reconveyance, and she gave it 
 without time for reflection, consultation, or 
 advice, while deeply moved by his distress 
 and urged by the family lawyer, who had 
 been sent with him and who told her that 
 it would be best for her to do so, although 
 he knew that her father's latest will had 
 omitted all provisions for her which former 
 wills contained. Davis v. Strange, 86 Va. 
 793, 11 S. E. 406, 8: 261 
 Breach, repudiation, or delay. 
 
 Breach of Marriage Contract, see Breach of 
 
 Promise, 2. 
 
 Breach of Warranty, see Sale, 161. 
 Question for Jury as to, see Trial, 248. 
 See also supra, 743; infra, 816. 
 For Editorial Notes, see infra, VIII. 49, 
 
 50. 
 
 808. The breach of a dependent covenant 
 which goes to the whole consideration of a 
 contract gives to the injured party the 
 right to rescind the contract, or to treat it 
 as broken and to recover damages for a 
 total breach. Kauffman v. Raeder, 47 C. C. 
 A. 278, 108 Fed. 171, 54: 247 
 
 809. A mere request by one of the parties 
 thereto for an alteration or modification of 
 a fully accepted proposed contract, which 
 by acceptance has been wrought into a bind- 
 ing contract, is not a breach thereof, giving 
 right of rescission or action; neither does 
 it effect such alteration, unless assented to 
 by the other party. Turner v. McCormick, 
 56 W. Va. 161, 49 'S. E. 28, 67:853 
 
 810. An intention to repudiate the con- 
 tract by a buyer of scrap iron who is td 
 pay for each 100 tons as delivered, justify- 
 ing a rescission by the seller, is shown 
 where, after receiving 100 tons, he insists 
 on having two or three car loads more de- 
 livered before remitting for the 100 tons.
 
 724 
 
 CONTRACTS, VI. a. 
 
 Johnson Forge Co. v. Leonard, 3 Penn. (Del.) 
 342, 51 Atl. 305, 57: 225 
 
 811. Failure to deliver the first instal- 
 ment of goods on a contract for delivery in 
 instalments does not justify a rescission by 
 the buyer. Gerli v. Poidebard Silk Mfg. Co. 
 (N. J. Err. & App.) 57 N. J. L. 432, 31 Atl. 
 401, 30: 61 
 
 812. Failure to make payments for articles 
 delivered under a contract for the manu- 
 facture of articles, during a series of years, 
 to be delivered in instalments when ordered, 
 and to be paid for as delivered, entitles the 
 manufacturer to declare the contract re- 
 scinded, and decline to make further deliv- 
 eries under it. Ross Meehan Foundry Co. v. 
 Royer Wheel Co. 113 Tenn. 370, 83 S. W. 
 167, 68: 829 
 
 813. Failure to run street cars as often 
 as every half hour, for part of one winter, 
 on account of 'unusually heavy snowfalls 
 and high winds, by which the road was 
 blocked and it was made practically impos- 
 sible some of the time to run cars over it, 
 where all usual means were used to keep 
 the track open and the road was operated 
 as well as similar roads in the vicinity, is 
 held not to justify a purchaser of land who 
 
 .sustained no damage thereby, in rescinding 
 his contract for the land, by the terms of 
 which the vendor agreed to construct and 
 operate the street railway, and run cars 
 every half hour "as such street railroads 
 are usually run," until the land is sold, or, 
 in default thereof, to take back the land, 
 return the consideration, and pay a speci- 
 fied sum as liquidated damages. Buffalo & 
 L. Land Co. v. Bellevue Land & I. Co. 165 
 N. Y. 247, 59 N. E. 5, 51 : 951 
 
 814. One seeking to rescind a mutual con- 
 tract of which time is not of the essence, 
 on the ground of delay by the other party 
 in complying with its terms, must show 
 either such wilful and intentional delay as 
 will evince the intention of the party de- 
 laying to treat the contract as at an end, 
 or that the delay has caused such damages 
 as will render a decree of specific perform- 
 ance inequitable and unjust. Reid v. Mix, 
 63 Kan. 706, 66 Pac. 1021, 55: 706 
 
 815. The rescission of a written contract 
 to convey land will be decreed in an action 
 to compel specific performance where such 
 performance is denied because of the pur- 
 chaser's laches and the increased value of the 
 property, although the vendor has obtained 
 a judgment for the purchase price, which he 
 offers to cancel. Hendry v. Benlisa, 37 Fla. 
 609, 20 So. 800, 34:283 
 Failure of consideration. 
 
 816. A failure to pay for a shipment of 
 coal within thirty days, as agreed in a con- 
 tract for the shipment of a certain amount 
 in quantities as ordered, does not go to the 
 whole consideration of the contract, and 
 does not, therefore, give a right to rescind. 
 Osgood v. Bauder, 75 Iowa, 550, 39 N. W. 
 887, 1 : 655 
 
 817. The death of a woman whose services 
 and attendance are contemplated in a con- 
 tract by which ehe and her husband agree 
 to board, care for, and maintain her aunt 
 
 during life, makes such a substantial failure 
 in the consideration that the aunt is justi- 
 fied in rescinding the contract. Parker v. 
 Macomber, 17 R. I. 674, 24 Atl. 464, 16: 858 
 818. That the belief of the parties to a 
 contract for the exclusive right to manu- 
 facture machines of a certain pattern that 
 the principal feature in the machine was 
 patentable proves to be erroneous is not 
 such a failure of consideration as will entitle 
 the one obtaining the right to make the ma- 
 chines to rescind the contract, since the 
 rights of the parties are to be governed by 
 the terms of the contract, and their belief 
 as to the rights obtained is immaterial. 
 Bancroft v. Union Embossing Co. 72 N. H. 
 402, 57 Atl. 97, 64: 298 
 
 VI. Actions; Liabilities. 
 a. In General. 
 
 Remedies on Illegal Contract, see supra, 
 
 HI. g. 
 Agreement as to Place to Sue for Breach, 
 
 see Conflict of Laws, 22. 
 As to Devise of Property, see Cotenancy, 2. 
 Measure of Compensation on, see Damages, 
 
 HI. a. 
 Choice of Remedy for Breach, see Election 
 
 of Remedies, 20-30. 
 
 Effect of Pursuing One Remedy, see Elec- 
 tion of Remedies, 40-56. 
 Variance between Pleading and Proof in 
 
 Actions on, see Evidence, XII. m. 
 Right of Action on, Generally, see Parties, 
 
 L a, 2. 
 Parties Defendant to Action, see Parties, II. 
 
 a, 3. 
 See also supra, 69, 748, 749; infra, 860-862; 
 
 Case. 
 
 819. A contract is established with requi- 
 site certainty to allow its enforcement, al- 
 though the writing has been lost, when it is 
 proved to be an agreement that certain ex- 
 isting openings through a railroad embank- 
 ment shall be maintained. Rock Island & P. 
 R. Co. v. Dimick, 144 111. 628, 32 N. E. 291, 
 
 19: 105 
 
 820. No cause of action on contract can 
 arise before the contract is broken. Tilling- 
 hast v. Boston & P. R. Lumber Co. 39 S. C. 
 484, 18 S. E. 120, 22: 49 
 
 821. A penalty which, by the terms of a 
 contract, is to be paid only by a deduction 
 from the final payment, cannot be recovered 
 when no part of that payment has been 
 made. Vandegrift v. Cowles Engineering 
 Co. 161 N. Y. 435, 55 N. E. 941, 48: 685 
 
 822. Retaining and making use of mate- 
 rials, and neglecting to return or offer to re- 
 turn them, will not authorize a recovery for 
 their price, under a contract providing for 
 payment when the work is "in good work- 
 ing order." Edison General Electric Co. v. 
 Canadian P. Nav. Co. 8 Wash. 370, 36 Pac. 
 260. 24: 315 
 
 823. It is not essential to the recovery of 
 an instalment of the amount agreed to be 
 paid in consideration of a release of dower
 
 CONTRACTS, VI. b. 
 
 725 
 
 rights, that the plaintiff should have physic- 
 al possession of a note which the contract 
 contemplated should be given to represent 
 such instalment until the same became due. 
 Irvin v. Irvin, 169 Pa. 529, 32 Atl. 445, 
 
 29: 292 
 
 824. Change of stock in the top die of a 
 monument, which is procured elsewhere 
 after breach of a contract to furnish it, does 
 not affect the right to recover damages for 
 such breach, if the substituted stock costs 
 no more than that called for by the con- 
 tract. Forsyth y. Mann Bros. 68 Vt. 116, 34 
 Atl. 481, 32: 788 
 
 825. A contractor continuing work under 
 a contract to construct a levee at a certain 
 price per cubic yard, after discovering that 
 the representations of the othei*,party as 
 to the quantity and kind of earth to be 
 handled were false, waives any claim for 
 damages because of such representations. 
 Nounnan v. Sutter County Land Co. 81 
 Cal. 1, 22 Pac. 515, 6: 219 
 
 826. One who has ordered goods to be 
 manufactured for him, to be paid for as they 
 are delivered, is liable to the manufacturer 
 for damages in case he fails to accept and 
 take away the completed goods at the time 
 he is required by the contract to do so. 
 Central Lithographing & E. Co. v. Moore, 75 
 Wis. 170, 43 N. W. 1124, 6: 788 
 
 827. An assignor of a contract for the pur- 
 chase of land, who, when making the assign- 
 ment, knows that another is to be equally 
 interested with the assignee in the contract 
 and does not have his name inserted in the 
 assignment, cannot thereafter recover from 
 him upon a covenant contained in such as- 
 signment on the part of the assignee. 
 Ferguson v. McBean, 91 Cal. 63, 27 Pac. 518, 
 
 14: 65 
 
 827a. The surrender and cancelation of a 
 contract for the purchase of land will not 
 prevent the purchaser from recovering the 
 damages sustained by the breach of a con- 
 tract entered into with him by a third 
 party for the construction of a motor rail- 
 way, the purpose of which is to enhance the 
 value of such land. Blagen v. Thompson, 23 
 Or. 239, 31 Pac. 647, 18: 315 
 
 828. An agreement to pay a further sum 
 for bonds in litigation if they are held to be 
 a superior lien to the other bonds of the 
 same issue, but, in case such priority shall 
 not be established, that the sum already 
 paid shall be in full, gives no right to an 
 additional payment where certain other 
 bonds have been accorded an equal priority 
 with them. Oilman v. Jones, 87 Ala. 691, 
 7 So. 48, 5 So. 785, 4: 113 
 
 82!). A partnership covenant against re- 
 engaging in business is not made operative 
 upon the former partners as individuals by 
 virtue of Iowa Code, 3465, giving a right 
 of action against any or all of the parties 
 where two or more are bound by contract, 
 as that statute applies, not to create a lia- 
 bility, but to provide a remedy in case 
 there is a liability. Steichen v. Fehleisen, 
 112 Iowa, 612, 84 N. W. 715, 51: 412 
 
 Recovering back money. 
 
 From Combination to Monopolize Trade, see 
 Assumpsit, 33. 
 
 830. Building shops on donated land with 
 money given for that purpose, to secure the 
 removal by a manufacturing company of its 
 business to a certain place, is not a part 
 performance of its contract to make such 
 removal of its business, so as to prevent the 
 subscribers from recovering back their 
 money on the ground that the entire con- 
 sideration has failed if the business is not 
 removed. Ft. Wayne Electric Light Co. v. 
 Miller, 131 Ind. 499, 30 N. E. 23, 14: 804 
 Liability after sale of interest. 
 
 831. Under a contract by two firms for 
 the purchase of electrotype plates to be used 
 in a publication in which they are jointly 
 interested, which contract is in form joint 
 and provides that they will be "responsible 
 for any and all wrong use of said electro- 
 types," a firm which sells all its interest to 
 the other may be held for damages caused 
 by a breach of the contract by the other 
 after the sale. Meyer v. Estes, 164 Mass. 
 457, 41 N. E. 683, 32: 283 
 
 b. Defenses. 
 
 As to Defenses Generally, see Action or 
 
 Suit, I. c. 
 In Action on Negotiable Instruments, see 
 
 Bills and Notes, VI. c. 
 In Foreclosure Suit, see Mortgage, VI. d. 
 Violation of Sunday Law as, see Carriers, 
 
 950; Sunday, V., VI. 
 Champerty as, see Champerty, 18, 19. 
 See also supra, 594. 
 
 832. The benefit of the statute of frauds 
 cannot be claimed by one who is not a party 
 charged thereby. St. Louis, K. & N. W. R. 
 Co. v. Clark, 121 Mo. 169, 25 S. W. 192, 906, 
 
 26: 751 
 
 833. The invalidity of a contract under 
 the statute of frauds is no defense to a 
 third person who wrongfully prevented the 
 performance of the contract. Jackson v. 
 Stanfield, 137 Ind. 592, 36 N. E. 345, 37 N. 
 E. 14, 23:588 
 
 834. The defense of fraud may be made 
 when a third party, for whose benefit a 
 contract was made, seeks to enforce it. 
 Maxfield v. Schwartz, 45 Minn. 150, 47 N. 
 W. 448, 10: 606 
 
 835. When one of two contracting parties 
 is fraudulently induced to execute a written 
 instrument upon the false representation 
 that it expresses the agreement which they 
 have made, the party defrauded 'may de- 
 fend against the enforcement of the fraud- 
 ulent instrument by the other party, even 
 though he may be chargeable with want of 
 prudence in relying upon the false repre- 
 sentations. Id. 
 
 836. The right of action upon a check 
 given in payment of a subscription is not af- 
 fected by a condition subsequent upon which 
 the subscription is made, but which has not 
 been broken. La Fayette County Monument 
 Corp. v. Magoon, 73 Wis. 627, 42 N. W. 17, 
 
 3:761 
 
 837. A judicial sale of the equitable inter-
 
 726 
 
 CONTRACTS, VII. a, b. 
 
 est of a deceased vendee in a contract for 
 lands will not bar an action by his widow 
 to recover the value of improvements, on 
 an agreement by the vendor to pay her 
 therefor in consideration of rescission of the 
 contract for the lands. Houston v. Sledge, 
 101 N. C. 640, 8 S. E. 145, 2: 487 
 
 VII. Public Contracts. 
 a. In General. 
 
 As to Implied Contract, see supra, 21-25. 
 
 Validity of Contract to Affect Official 
 Action, see supra, TIL c, 4. 
 
 Validity of Contract with Public Officer, see 
 supra, III. c, 5. 
 
 Prior Appropriation as Condition of, see 
 Appropriations, 3, 4. 
 
 Submitting Question as to Damages for 
 Failure to Complete in Time, to Arbi- 
 tration, see Arbitration, 4. 
 
 Limiting Hours of Labor, see Constitutional 
 Law, 1043, 1044; Eight Hour Law; 
 Municipal Corporations, 250. 
 
 Statutory Regulation of Wages Paid, see 
 Constitutional Law, 733, 734. 
 
 Ordinance Creating Monopoly in, see Consti- 
 tutional Law, 449. 
 
 Estoppel Against Execution of, see Estoppel, 
 254. 
 
 As to Municipal Contracts, Generally, see 
 Municipal Corporations. II. d. 
 
 Who may Maintain Action on, see Parties, 
 73-81. 
 
 Contrac-t for Public Improvements, see Pub- 
 lic Improvements, II. 
 
 Enforcing Contract against State, see 
 State, 4. 
 
 See also supra. 277,, 429, 430, 510, 590, 634, 
 635. 
 
 For Editorial Notes, see infra, VIH. 51, 
 52. 
 
 838. A reservation in a contract for pub- 
 lic work in favor of the city, of certain 
 powers given to the board of public works 
 by Milwaukee charter, chap. 5, 20, should, 
 to avoid ground for litigation, make full 
 and complete reservations as to both the 
 rights and powers of the board as pointed 
 out. Ricketson v. Milwaukee, 105 Wis. 591, 
 81 X. W. 864, 47:685 
 
 839. The incorporation of a statute limit- 
 ing the hours of labor on public works into 
 a contract for the construction of a sewer 
 does not make the provisions thereof bind- 
 ing on the contractor, if the statute is in- 
 valid, or estop him from contesting its 
 validity. Cleveland v. Clements P>ros. 
 Constr. Co. 67 Ohio St. 197, 65 X. E. 885. 
 
 59: 775 
 
 830a. The limitation of the hours of labor 
 per day by statute and department regu- 
 lations will not entitle a laborer who volun- 
 tarily exceeds that limit without any con- 
 tract for extra compensation to recover 
 extra pay therefor from the government. 
 United States v. Moses, 60 C. C. A. 600, 126 
 Fed. 58, 70: 281 
 
 840. A provision that none but union 
 
 labor shall be employed cannot be lawfully 
 made in a contract by a public corporation, 
 such as a board of education, as it consti- 
 tutes a discrimination between different 
 classes of citizens, and is of such a nature 
 as to restrict competition and to increase 
 the cost of the work. Adams v. Brenan, 
 177 Hi. 194, 52 N. E. 314, 42: 718 
 
 841. A laborer who contracts with the 
 government to go to a distant point to per- 
 form work under an agreement for free 
 transportation home at the close of his serv- 
 ice is not, in the absence of anything in the 
 contract giving him that right, entitled to 
 pay for the time consumed on the return 
 journey. United States v. Moses. 60 C. C. 
 A. 600, 126 Fed. 58, 70: 281 
 
 b. Advertisements and Bids; Letting. 
 
 Judicial Notice of Corruption in Letting, see 
 
 Evidence, 32. 
 
 See also supra, 514, 634, 635. 
 For Editorial Notes, see infra, VTII. 52. 
 
 842. Contracts may originate in advertise- 
 ments addressed to the general public. An- 
 derson v. St. Louis Bd. of Public Schools, 
 122 Mo. 61, 27 S. W. 610, 26: 707 
 
 843. The intent manifested by an adver- 
 tisement for bids must govern in its inter- 
 pretation. Where the advertisement is noth- 
 ing more than a suggestion to induce offers 
 of a contract by others, it imposes of itself 
 no liability. Id. 
 
 844. When a state board of supply has, 
 after compliance with the statutory pre- 
 requisites, regularly awarded a contract for 
 supplies, it cannot refuse to execute the 
 formal contract, and cancel the award, un- 
 less some cause exists which the law recog- 
 nizes as sufficient to invalidate the contract. 
 State ex rel. Robert Mitchell Furn. Co. v. 
 Toole, 26 Mont. 22, 66 Pac. 496, 55: 644 
 
 845. That one whose bid to furnish state 
 supplies has been accepted is denominated 
 by labor unions as hostile to labor organiza- 
 tions, and is classed as a scab employer, is 
 no ground for refusal by the board of sup- 
 ply to execute the formal contract in pur- 
 suance of the bid and acceptance. Id. 
 
 846. The court will hesitate to restrain 
 the execution of a municipal contract on the 
 ground that the board of public works did 
 not exercise an independent judgment upon 
 the bids submitted therefor, but acted con- 
 jointly with certain committees of the 
 council, where it is not shown that the 
 opinion of the board was influenced by their 
 associates. Ricketson v. Milwaukee, 105 
 Wis. 591, 81 N. W. 864, 47: 685 
 Necessity of sealed bids. 
 
 847. A contract Avith the city of New 
 York, for the consideration of $975, to 
 
 ubstitute cherry for pine in finishing the 
 interior of a public building in process of 
 
 onstruction under a valid contract, need 
 not be founded upon a sealed bid or pro- 
 losal, under the consolidation act, 64, re- 
 quiring contracts for extra work to be so 
 founded where "the several parts of the said 
 work or supply shall together involve the
 
 CONTRACTS, VII. b. 
 
 727 
 
 expenditure of more than $1,000." Brady v. 
 New York, 112 N. Y. 480, 20 N. E. 390, 
 
 2: 751 
 Necessity and sufficiency of advertisement; 
 
 plans and specifications. 
 Delegation of Power as to, by City, see 
 
 Municipal Corporations, 73. 
 For Editorial Notes, see infra, VIII. 52. 
 
 848. A state warrant is not valid when it 
 was given for the purchase price of articles 
 some of which were bought by the secretary 
 of state in the open market, in disregard of 
 Colo. Const, art. 5, 29, and the act of 
 February 12, -1879, requiring such purchase 
 to be made of the lowest responsible bidder 
 after advertising for bids. Mulnix v. 
 Mutual Ben. L. Ins. Co. 23 Colo. 71, 46 Pac. 
 123, 33: 827 
 
 849. The legislature cannot authorize the 
 secretary of state to purchase supplies in 
 the open market, instead of from the lowest 
 responsible bidder after advertising for bids, 
 as directed by Colo. Const, art. 5, 29. Id. 
 
 850. A valid contract for public supplies 
 cannot be let upon a bid tendered pursuant 
 to an advertisement limiting the right to bid 
 to persons employing, or who will in the 
 future employ, union labor only. State ex 
 rel. Robert Mitchell Furn. Co. v. Toole, 26 
 Mont. 22, 66 Pac. 496, 55 : 644 
 
 851. A valid contract for state supplies 
 cannot be made after advertisement for 
 bids in only one paper printed in the state, 
 where the statute provides that before the 
 contract is let the advertisement for bids 
 must be? published in two papers so printed. 
 
 Id. 
 
 852. A constitutional provision that all 
 state printing shall be performed under 
 contract to be given to the lowest bidder 
 does not deprive the legislature of power to 
 require advertisements for bids to furnish 
 state supplies to be published in two news- 
 papers. Id. 
 
 853. Definite plans and specifications must 
 accompany an advertisement for bids for 
 building a public bridge, under a constitu- 
 tional provision requiring bridge contracts 
 to be given to the lowest bidder; and a 
 statute permitting the commissioners to 
 advertise at the same time for plans, 
 specifications, and bids, and to adopt one of 
 the offered plans with its specifications, and 
 accept the accompanying bid, is unconstitu- 
 tional. Fones Bros. Hardware Co. v. Erb, 
 54 Ark. 645, 17 S. W. 7, 13: 353 
 
 854. The right of a city to acquire a 
 patented process without advertising for 
 bids does not justify the letting of a con- 
 tra^t for a complete garbage crematory, 
 with the necessary buildings, machinery, 
 and appurtenances, as well as the use of a 
 patented process, without complying with 
 the statutory requirements as to filing 
 plans and specifications in letting contracts 
 for public works, and without any com- 
 pliance with the statutory provisions as to 
 securing the risrht to use patented processes. 
 Ricketson v. Milwaukee, 105 Wis. 591, 81 
 N. W. 864, 47: 685 
 
 855. Letting a contract for a garbage cre- 
 matory, without making or filing any plan 
 
 of the proposed plant, or adopting any 
 system of garbage cremation, or specifying 
 the dimensions of buildings or description of 
 machinery to be used, but merely calling for 
 a complete garbage cremation plant that 
 will destroy a certain quantity of garbage 
 per day, leaving the bidders to submit plans 
 and specifications showing a description of 
 the buildings, machinery, furnaces, and ap- 
 purtenances, is in violation of Wis. Laws 
 1874, chap. 184, which requires an advertise- 
 ment for such work after a plan or profile 
 of the work, accompanied with specifications 
 or other appropriate and sufficient descrip- 
 tjon of the work, has first been placed on 
 file for the information of bidders and 
 others. Id. 
 
 856. A change in a matter of detail such 
 as in the heating of a public building may 
 be made without filing plans and specifi- 
 cations and advertising for proposals as re- 
 quired by statute in letting the original 
 contract for the building. Gibson County 
 v. Cincinnati Steam Heating Co. 128 Ind. 
 240, 27 N. E. 612, 12: 502 
 Letting to lowest bidder. 
 Conclusiveness of Decision as to, see Appeal 
 
 and Error, 775. 
 Requiring Municipal Printing to be Given to 
 
 Union Printers, see Constitutional Law, 
 
 546. 
 Action to Enforce Lowest Bidder's Right, 
 
 see Parties, 80. 
 See also supra, 848, 849, 853, 854; infra, 865; 
 
 Public Improvements, 17-18b. 28. 
 For Editorial Notes, see infra, VIII. 52. 
 
 857. A city cannot evade a requirement 
 that contracts must be let to the lowest 
 responsible bidder by acting indirectly 
 through the agency of the water board, 
 which is only a department of the city gov- 
 ernment. Frame v. Felix, 167 Pa. 47, 31 
 Atl. 375, 27: 802 
 
 858. A provision that all contracts for 
 public improvements or buildings shall be let 
 to the lowest responsible bidder does not 
 prevent a city from constructing such 
 works under the direction of its own en- 
 gineers and officers. Home BIdg. & C. Co. v. 
 Roanoke, 91 Va. 52, 20 S. E. 895, 27: 551 
 
 859. Proposals for bids for public work 
 cannot fix the price to be paid for labor, 
 where the statute requires all contracts for 
 public work to be let to the lowest respon- 
 sible bidder. Frame v. Felix, 167 Pa. 47. 31 
 Atl. 375, 27 : 802 
 
 860. An advertisement for bids for the 
 erection of a public school building, declar- 
 ing that the board reserves the right to re- 
 ject any or all bids, although it is a rule of 
 the board that all contracts shall be let "to 
 the lowest and best bidder," gives the low- 
 est bidder no cause of action for awarding 
 the contract to another, even if the board 
 act "arbitrarily and capriciously and 
 through favoritism" in awarding the con- 
 tract. Anderson v. St. Louis Bd. of Public 
 Schools, 122 Mo. 61, 27 S. W. 610, 26: 707 
 
 861. The presentation by a reliable and re- 
 sponsible bidder of the lowest bid for a con- 
 tract for public work to officials whose duty 
 it is under a city charter to let the contract
 
 728 
 
 CONTRACTS, VIII. (Ed. Notes.) 
 
 to the lowest reliable and responsible bidder, 
 but who have the right and have given 
 notice that they reserve the right to reject 
 any and all bids, does not constitute an 
 agreement that they will make a contract 
 for the work with such a bidder, nor vest in 
 him such an absolute right to the contract 
 as will authorize a court of equity at his 
 suit to compel them or the municipality to 
 make the contract with him, when they are 
 about to award or have awarded it to a 
 higher bidder. Colorado Pav. Co. v. Murphy, 
 23 C. C. A. 631, 49 U. S. App. 17, 78 Fed. 
 28, 37:630 
 
 802. The lowest bidder, although offering 
 a bond for the performance of the contract, 
 cannot compel the award to him of a con- 
 tract for the publication and annotation of 
 Codes, which by the Montana Constitution 
 and the act of March 7, 1895, the state fur- 
 nishing board is required to let to the "low- 
 est responsible bidder therefor," the statute 
 also requiring that the typesetting, print- 
 ing, and binding shall all be done within the 
 state, and that the publisher shall keep 
 sufficient copies to supply all demands for 
 not leas than eight years, and a full, com- 
 plete set of stereotype matrices of every 
 page of type used. State ex rel." Eaves v. 
 Rickards, *16 Mont. 145, 40 Pac. 210, 28: 298 
 Notice for letting. 
 
 863. A technical defect in a notice for let- 
 ting a contract by a municipal corporation, 
 which ordinary judgment and sagacity could 
 hardly guard against, will not prevent a 
 recovery by the contractor after perform- 
 ance of his contract. Portland Lumbering 
 & Mfsr. Co. v. East Portland, 18 Or. 21, 22 
 Pac. 536, 6: 290 
 
 864. Notice inviting proposals for a con- 
 tract to furnish electric lights need not be 
 given by a municipal corporation, unless re- 
 quired by statute, where payment is all to 
 be made from the corporation treasury. 
 Crowder v. Sullivan, 128 Ind. 486, 28 N. E. 
 94, 13: 647 
 Material or work covered by patent. 
 
 865. The fact that the mode of building a 
 cremating furnace is patented will not make 
 the contract of a municipal corporation for 
 its construction void, when the contract for 
 performing the work and furnishing the ma- 
 terials is let to the lowest bidder, with the 
 understanding that the patentee will allow 
 the use of his patent and superintend its 
 construction in consideration of a certain 
 specified sum paid him by whoever secures 
 the contract. Kilvington v. Superior, 83 
 Wis. 222, 53 N. W. 487, 18: 45 
 
 VIII. Editorial Notes. 
 
 For Particular Classes of Contract, see 
 Specific Titles, e. (j., Bills 
 and Notes. VII. ; Brokers, 
 III.; Husband and Wife. V. 
 
 Conflict of Laws, as to, see Conflict of Laws, 
 
 in.. 1-11. 
 
 Impairment of Obligation, see Constitu- 
 tional Law, III., 9. 
 
 Constitutionality of Statutes Restricting 
 Contracts and Business, 
 see Constitutional Law, 
 III., 13. 
 
 a. Nature and requisites. 
 
 i. In General. 
 i. Generally. 
 Question relating to, as Federal question. 
 
 62: 537. 
 
 Bill of lading as contract. 4: 244.* 
 Entries in bank book as contracts. 24: 737. 
 
 2. Implied contracts. 
 
 2. Generally. 
 
 When arise, generally. 4: 202;* 6: 702.* 
 Not to use negative or engraved plates 
 without consent of party 
 who has paid for them, 
 50: 397. 
 
 3. Consideration. 
 
 3. Generally. 
 
 For Real Estate Mortgage, see Mortgage, 
 VIH. 5. 
 
 For Chattel Mortgage, see Chattel Mort- 
 gages, VII. 3. 
 
 Effect of absence of words "for value re- 
 ceived" in negotiable in- 
 strument. 12:846.* 
 
 Right of alleged fraudulent grantee to show 
 that judgment against 
 grantor was based on an 
 immoral consideration. 67 : 
 602. 
 
 Term "valuable consideration" in deed con- 
 strued. 2:530.* 
 
 False representations as to. 10: 676.* 
 
 4. Necessity of. 
 
 Generally. 12:463.* 
 
 Validity of voluntary deed. 13: 640.* 
 
 Gift of check. 18: 855. 
 
 Gift of promissory note. 26: 305. 
 
 For option. 21: 129. 
 
 Necessity of new consideration to support 
 waiver of failure to give 
 notice of dishonor or sub- 
 sequent promise by in- 
 dorser. 29: 305. 
 
 5. Sufficiency of. 
 
 Generally. 3: 761;* 5: 856;* 12: 46* 
 
 Validity of agreement to transfer future- 
 acquired property in con- 
 sideration of mainten- 
 ance. 70: 485. 
 
 Benefit to promisor and detriment to prom- 
 isee. 12:465.* 
 
 When valuable. 2: 530.* 
 
 Concurrent promises. 12: 463.* 
 
 Waiver of legal right. 3: 466;* 12: 466.* 
 
 Promise to support person. 3: 836;* 13: 
 640.* 
 
 Relinquishment of security as consideration- 
 for deed." 2: 530.* 
 
 Marriage as a consideration. 2: 372;* 12 r 
 464.* 
 
 For new contract. 13: 581.* 
 
 For contract for n^rrnanent employment. 
 35: 515.
 
 CONTRACTS, VIII. (Ed. Notes.) 
 
 729 
 
 For subscription to common object. 3: 468.* 
 For transfer by creditor in satisfaction of 
 
 debt. 36: 346. 
 
 Pre-existing debt as consideration for chat- 
 tel mortgage as against 
 other creditors or equities. 
 33: 305. 
 
 Pre-existing debt as consideration for bona 
 fide purchase of property 
 not negotiable. 36: 161. 
 As to Transfers in Fraud of Creditors, Gen- 
 erally, see Fraudulent Con- 
 veyances, IX. 
 6. Performance of existing obligation as 
 
 a consideration. 
 Payment of existing debt as consideration. 
 
 34: 33. 
 
 Compliance with obligation to deliver pa- 
 pers or property. * 34: 35. . 
 Agreement to comply with lease. 34: 36. 
 Agreement to comply with marriage con- 
 tract. 34: 37. 
 
 Promise to do duty. 34: 37. 
 Cases to be distinguished. 34: 37. 
 Promise of additional compensation for 
 completing contract. 34 : 
 38. 
 
 Promise to perform additional, duty for 
 same consideration. 34: 42. 
 Promise by stranger to the contract. 34:43. 
 7. Moral obligation as consideration. 
 For Other Matters Relating to Moral Obli- 
 gation, see Moral Obliga- 
 tions. 
 The general doctrine. 53: 353. 
 
 History and abstract statement of doc- 
 trine. 53: 353. 
 Concrete application of doctrine. 53: 
 
 355. 
 Promise to pay for past support of 
 
 relative. 53: 355. 
 Cohabitation. 53: 357. 
 Promise to pay for past support of 
 
 pauper. 53: 358. 
 
 Promise to remedy mistake or 
 hardships, or to supple- 
 ment past agreement, 53: 
 358. 
 
 Miscellaneous instances. 53: 359. 
 The exceptions. 53: 361. 
 Generally. 53: 361. 
 Concrete application of exceptions. 
 
 53: 362. 
 
 New promise after bar of limita- 
 tion. 53: 362. 
 
 New promise after discharge by 
 operation of law. 53: 362. 
 New promise after voluntary dis- 
 charge. 53: 363. 
 New promise after majority. 53: 
 
 365. 
 
 New promise by party to negotia- 
 ble paper. .53: 365. 
 New promise after judgment. 53: 
 
 365. 
 New promise after discoverture. 
 
 53: 366. 
 
 New promise when original prom- 
 ise in violation of statute 
 of frauds. 53: 370. 
 New promise when original promise 
 illegal. 53: 370. 
 
 Past legal consideration. 53: 371. 
 Generally. 53: 371. 
 Promise to repay one who vol- 
 untarily pays another's 
 debt. 53: 372. 
 
 Promise to pay for past serv- 
 ices. 53: 373. 
 
 Promise to pay for improve- 
 ments on .property. 53: 
 375. 
 
 8. Proof of; recitals as to. 
 
 Oral evidence of consideration in sealed in- 
 strument. 5: 596.* 
 
 Parol evidence as to consideration of deed. 
 20: 101. 
 
 Burden of proof as to, for transfer by hus- 
 band to wife. 56:828. 
 
 Presumption as to, in absence of express 
 acknowledgment on face 
 of contract. 12 : 845.* 
 
 Recital of receipt of. 3: 804.* 
 
 Recital of money consideration in deed as 
 contractual. 68: 925. 
 
 9. Failure of. 
 
 As a defense to bill or note. 1 : 594.* 
 
 When paper transferred after maturity. 
 46: 760. 
 
 As ground for injunction against judgment. 
 31:747. 
 
 As defense to action for assessment by mu- 
 tual fire insurance com- 
 panies. 32: 492. 
 
 Right of alleged fraudulent grantee to show 
 failure of consideration of 
 contract on which judg- 
 ment against grantor was 
 based. 67 : 603. 
 
 4. Mutuality. 
 
 10. Generally. 
 
 Necessity that acceptance of proposal be un- 
 equivocal. 3: 94.* 
 
 Enforcement of unilateral contract. 1: 554;* 
 6: 807.* 
 
 Rights conferred by "refusal" or "option." 
 21: 127. 
 
 Mutuality of contract for permanent em- 
 ployment. 35: 515. 
 
 Effect upon servant's rights of master's 
 contract with third person 
 exempting latter from li- 
 ability to servants. 46: 54. 
 
 5. Formal requisites. 
 
 11. Generally. 
 
 Signing by mark. 22: 372. 
 
 Signing by proxy. 22: 297. 
 
 Effect of omission of internal revenue stamp. 
 48: 305. 
 
 12. Conditional execution. 
 
 Under parol agreement that contract shall 
 not take effect until others 
 have signed it. 45: 321. 
 Bonds. 45: 321. 
 
 Rule that nonperformance of con- 
 dition vitiates. .45:321. 
 Rule that validity depends upon 
 knowledge or notice. 45: 
 323.
 
 730 
 
 CONTRACTS, VIII. (Ed. Notes.) 
 
 Rule when bond is joint. 45: 325. 
 What a sufficient condition. 45: 
 
 325. 
 Knowledge of, or notice to, obligee. 
 
 45: 327. 
 
 Effect of. 45: 327. 
 Sufficiency of. 45 : 328. 
 Evidence of. 45: 329. 
 Waiver and estoppel. 45: 329. 
 Particular classes of bonds. 45: 
 
 331. 
 Application of general rules. 
 
 45: 331. 
 Bonds for payment of debts. 
 
 45: 331. 
 
 Bonds of contractors. 45: 332. 
 Bonds of employees. 45: 333. 
 Appeal bonds. 45: 333. 
 Bonds in attachment, execu- 
 tion, etc. 45: 334. 
 Bail bonds. 45: 334. 
 Revenue bonds. 45: 335. 
 Official bonds, generally. 45: 
 
 335. 
 Bonds of sheriffs, deputies, 
 
 constables, etc. 45: 336. 
 Treasurers' bonds. 45: 336. 
 Collectors' bonds. 45: 338. 
 Guardians' bonds. 45: 339. 
 Bonds of executors and ad- 
 ministrators. 45: 340. 
 Miscellaneous unclassified 
 
 bonds. 45:341. 
 Conveyances. 45: 341. 
 Ordinary contracts or agreements. 45: 
 
 342. 
 Negotiable instruments. 45: 343. 
 
 Conflict of authority as to, 45:343. 
 Rule that failure to perform con- 
 dition vitiates instrument. 
 45: 343. 
 Rule that failure to perform is no 
 
 defense. 45: 344. 
 The condition; sufficiency and 
 
 waiver. 45: 346. 
 Notice of condition. 45: 347. 
 Non-negotiable notes. 45: 348. 
 13. Offer and acceptance without execu- 
 tion of contemplated formal in- 
 strument. 
 Sufficiency of, as contract. 29: 431. 
 
 General statement of the law. 29: 431. 
 Suggestion of formal contract. 29: 432. 
 Understanding that there is to be a 
 
 - formal contract. 29: 432. 
 Where some terms unsettled. 29: 433. 
 Where the execution of a formal con- 
 tract is one of the terms 
 of the agreement. 29: 
 434. 
 Agreement to execute formal contract 
 
 may be binding. 29: 435. 
 Where it appears that the contract 
 when finished should be a 
 formal one. 29: 436. 
 Failure to execute draft of contract. 
 
 29: 436. 
 
 Estoppel. 29: 436. 
 Illustrations of proposals for formal 
 
 contract. 29: 436. 
 
 Intention to have formal contract as 
 evidence. 29: 437. 
 
 14. Statute of fiauds; necessity of writ- 
 ing. 
 
 Conflict of laws as to statute of frauds. 
 64: 119. 
 
 Validity of oral insurance contract. 22: 768. 
 
 Non-negotiabilitv of contracts in violation 
 * of. 12: 123.* 
 
 Contract void in part. 3: 468.* 
 
 Validity of parol promise to accept an or- 
 der or bill of exchange. 
 26: 620. 
 
 Who is bona fide purchaser within statute. 
 31: 612. 
 
 Use of statute of frauds as a protection to 
 fraud. 25: 569. 
 
 Validity of promissory note given as a for- 
 feit or as collateral to an 
 invalid oral agreement 
 within the statute of 
 frauds. 18: 142. 
 
 Effect of part performance to take contract 
 out of statute. 12: 123* 
 
 15. Sufficiency of writing. 
 
 In several writings. 2: 212.* 
 
 Essentials of memorandum. 2: 212;* 11: 
 
 97.* 
 
 Terms and price. 11:97.* 
 Description of subject-matter. 11: 98,* 
 
 143.* 
 
 Consideration. 11: 98.* 
 Auctioneer's memorandum. 11: 99.* 
 Necessity that it be in writing and 
 signed. 2: 212.* 
 
 Undelivered deed as memorandum to satis- 
 fy statute of frauds. 
 22: 273. 
 
 Telegrams as writings to make a contract 
 within the statute of 
 frauds. 50: 240. 
 Generally. 50: 240. 
 Parol evidence to explain. 50: 245. 
 Contract cases not referring to the stat- 
 ute of frauds. 50: 247. 
 Is the message delivered to the tele- 
 graph company a con- 
 tract? 50:250. 
 
 Which is the original the message de- 
 livered to, or by, the tele- 
 graph company? 50: 202. 
 
 1 6. Contract not to be performed with- 
 in one year. 
 
 Generally. 3:337;* 7:784;* 11:621.* 
 
 Contingent performance after a year. 3: 
 337.* 
 
 For a series of years. 3: 338.* 
 
 Contract for a -year to commence on a fu- 
 ture day. 3: 338.* 
 
 Effect of full performance on one side. 3: 
 338.* 
 
 Application to transfer of interest in real- 
 ty. 3: 339.* 
 
 Antenuptial agreements. 3: 339.* 
 
 Oral promise to pay by request. 3: 339.* 
 
 Where performance within the year is pos- 
 sible. 3: 339.* 
 
 Performance depending upon contingent 
 events. 3: 340.* 
 
 Contracts not expected to be performed 
 within one year. 3: 340.* 
 
 Antenuptial contract. 2: 373.* 
 
 Contracts for permanent employment. 35: 
 514.
 
 CONTRACTS, VIII. (Ed. Notes.) 
 
 731 
 
 17. Agreement to give property by will. 
 
 Generally. 8: 414;* 14: 862. 
 
 Effect of -part performance. 14:863. 
 
 Will as part performance. 14: 863. 
 
 18. Contract to answer for death or de- 
 fault of another. 
 
 Generally. 5: 617.* 
 
 Guaranty of contract of a person under dis- 
 ability. 33: 359. 
 
 Promise to pay third person. 25: 264. 
 
 Contracts between sureties to fix their 
 shares of liability. 39: 
 378. 
 
 19. Agreements concerning realty. 
 
 Specific Performance of Verbal Contract, 
 see Specific Performance, 
 III. 2. N 
 
 See also supra, VIII. 16, 17. 
 
 Interference of equity to prevent obtaining 
 estate by fraud notwith- 
 standing statute. 2: 662.* 
 
 Contracts to transfer interest in realty. 
 3: 337.* 
 
 Enforceability of verbal contracts for ex- 
 change of lands. 5: 245.* 
 
 Validity of parol partnership for dealing in 
 
 lands. 16:745. 
 Parol agreement to procure land on 
 
 joint account. 16: 745. 
 Incorporation of contract in partner- 
 ship agreement. 16: 746. 
 Validity of parol partnership, general- 
 ly. 16: 746. 
 Parol partnership for dealing in lands. 
 
 16: 747. 
 
 Methods of enforcing rights. 16: 749. 
 Partnership in securing products from 
 
 land. 16: 750. 
 Other contracts relating to lands. 16: 
 
 750. 
 Transfer of partnership interest. 16: 
 
 750. 
 
 Availability of statute as a defense. 
 16: 750. 
 
 Effect of statute upon partnership lands. 
 27:477. 
 
 Validity of oral sale of standing timber. 
 
 19: 721. 
 Effect of oral sale as a license. 19: 
 
 722. 
 Sale of bark. 19: 723i 
 
 Sale or mortgage of crops. 23: 450. 
 
 Right to compensation for improvements 
 on land, made in good 
 faith under oral contract 
 or gift. 53: 337. 
 
 Transaction between heir and ancestor re- 
 lating to expectancy. 32: 
 597. 
 
 As to lease for not more than three years. 
 12: 67.* 
 
 Lease to commence at future time; what 
 is lease for one year. 10: 
 726.* 
 
 Lease for more than one year. 7: 671.* 
 
 Compensation for use of premises under 
 lease within statute. 26: 
 799. 
 
 Assignment of lease. 15: 754. 
 
 Entry under parol agreement for a lease as 
 part performance. 20: 36. 
 
 20. Contracts for sale of goods. 
 Distinction between sales of personalty and 
 agreements for work and 
 labor. 14: 230. 
 Tests and rules. 14: 230. 
 Special orders. 14: 231. 
 Manufacture of ordinary articles not 
 according to special di- 
 rections. 14: 232. 
 Finishing articles already in existence. 
 
 14: 233. 
 
 For crops to be raised. 14: 233. 
 For timber to be cut or for logs. 14: 
 
 233. 
 Receipt by carrier to satisfy statute. 22: 
 
 426. 
 
 Contracts for work and labor. 1: 507.* 
 Requisites of memorandum. 11: 143.* 
 Symbolic delivery by sample to satisfy stat- 
 ute of frauds. 70: 321. 
 
 b. Construction and effect; merger. 
 
 21. Generally. 
 
 General rules of construction. 4: 202.* 
 
 Whether contract entire or severable. 
 1 : 826.* 
 
 Separate instruments construed together. 
 3: 579.* 
 
 Effect of party's ignorance of contents of 
 extraneous paper upon 
 attempt to incorporate 
 it into contract by ref- 
 erence. 70: 106. 
 
 Interpretation of words. 3: 859.* 
 
 When primary meaning prevails over tech- 
 nical meaning. 12: 375.* 
 
 Province of court and jury, generally. 4: 
 204;* 12: 376.* 
 
 Meaning of terms of art or business, for 
 jury. 12: 376.* 
 
 Law, usage, and custom as a part of. 3: 
 860;* 4:^392;* 10:785.* 
 
 First and last days in computation of time 
 on. 49: 205. 
 
 Construction of building contract. 10: 826.* 
 
 Liquidated damages and penalty dis- 
 tinguished. 13: 671.* 
 
 Whether stipulation for payment in case of 
 default to be considered a 
 penalty or liquidated dam- 
 ages. 10: 826.* 
 
 Effect of use of term "forfeiture." 10: 
 827.* 
 
 Effect of agreement to give property by 
 will upon right to change 
 will. 14: 861. 
 
 Effect of agreement to give property by will 
 on right to transfer prop- 
 erty during life. 14: 861. 
 
 Distinction between executory and execut- 
 ed. 3: 761.* 
 
 Effect of contract exempting from liabili- 
 ty to servants of other 
 party. 46: 54. 
 
 22. Subscription contract. 
 
 As to Subscriptions, Generally, see Sub- 
 scriptions. 
 
 For Subscription to Corporate Stock, see 
 Corporations, VIII. 25. 
 
 Is a subscription contract joint or several. 
 
 22: 80. 
 Stock subscriptions,. 22: 81.
 
 732 
 
 CONTRACTS, VIII. (Ed. Notes.) 
 
 Contracts in which there is a promise. 
 
 22: 82. 
 
 Effect of agreements among subscrib- 
 ers and their relation to 
 each other. 22: S3. 
 23. Damages "by the elements." 
 What constitutes, within the meaning of 
 . contracts with stipulations 
 referring thereto. 53: 673. 
 What constitutes damage by the ele- 
 ments generally. 53: 673. 
 As applied to covenants in leases. 53: 
 
 673. 
 As applied to contracts by carriers. 
 
 53: 676. 
 
 Other miscellaneous contracts. 53: 677. 
 24. Merger. 
 Prelimiary negotiations merged in written 
 
 contract. 3: 308.* 
 
 Estoppel of party to deny terms of his 
 written contract. 3: 308.* 
 
 c. Validity, 
 i. In general. 
 
 25. Generally. 
 
 Of Contract for Water Supply, see Waters, 
 
 IV. 43. 
 
 Effect of failure to procure license for busi- 
 ness on validity of con- 
 tract therein. 16:423. 
 Constitutionality of statute legalizing. 22: 
 
 379. 
 
 Statute legalizing invalid municipal con- 
 tract. 27: 696. 
 
 Validity of agreement to pay' money after 
 death of promisor. 14: 
 860. 
 Validity of agreement to give property by 
 
 will. 14: 860. 
 
 Validity of contract by foreign corporation 
 which has not complied 
 with statutory conditions 
 of right to do business in 
 the state. 24: 315. 
 
 As to Necessity of Compliance with 
 Conditions, Generally, see 
 Corporations, VIII. 52, 
 54. 
 
 Liability of obligors on an original contract 
 
 as affected by a renewal or 
 
 substituted contract which 
 
 is void. 33: 628. 
 
 Where the renewal is void for forgery. 
 
 33: 628. 
 
 For want of authority. 33: 631. 
 For time, mode, and manner of execu- 
 tion. 33: 632. 
 
 For disability of party. 33: 633. 
 For usury. 33: 633. 
 For other causes contrary to public 
 
 ' policy. 33: 635. 
 26. Definiteness; certainty. 
 Indefiniteness and uncertainty of contract 
 for permanent employ- 
 ment. 35: 515. 
 Validity of purchase of indefinite quantity. 
 
 15: 218. 
 
 Effect on contract of leaving price in- 
 definite. 53: 288. 
 Total absence of price. 53: 289. 
 Option between different amounts. 53: 
 292. 
 
 Price dependent on contingency. 53 r 
 
 293. 
 
 Market price or value. 53: 293. 
 Appraisement or award. 53: 294. 
 Action of, or with, other parties. 
 
 53: 294. 
 
 When price definite or certain. 53: 295- 
 To be fixed by subsequent agree- 
 ment. 53: 295. 
 By happening of subsequent event. 
 
 53: 296. 
 By reference to former relations, 
 
 53: 296. 
 
 By action of other parties. 53: 297. 
 Misunderstanding of parties. 53: 
 
 297. 
 
 Vague general statements. 53: 298. 
 Promise by decedent to pay for 
 
 services. 53: 298. 
 . Executed contract; value instead of 
 
 price. 53: 299. 
 
 27. Contract made on holiday. 
 As to Other Acts on Holidays, see Holi- 
 days; Sunday, VI. 
 
 Law of holidays as applied to contract* 
 other than negotiable in- 
 struments. 19: 317. 
 
 Legality of contract made on Sunday. 3: 
 224;* 4:680;* 7:498;* 
 11:63.* 
 
 28. Fraud; unfair advantage. 
 As to What Constitutes Fraud, see 
 
 Fraud, IX. 
 
 Fraud in contract. 2: 817.* 
 Obtained by circumvention and deceit; 
 neglect of precaution ; 
 sufficiency of proof of 
 fraud. 10: 606.* 
 
 Secret promise for individual advantage of 
 promoter of enterprise. 
 12: 123.* 
 
 Bohemian oats transactions. 6: 498,* 501.* 
 As to validity of contract, made with in- 
 toxicated person. 54: 440. 
 Degree of intoxication. 54: 440. 
 Taking advantage of intoxicated per- 
 son. 54: 443. 
 Fraud. 54: 445. 
 Intoxication produced by the other 
 
 party. 54: 446. 
 Ratification. 54 : 448. 
 Habitual drunkards. 54: 449. 
 As affecting a bona fide holder of note. 
 
 54: 451. 
 
 Implied contracts. 54: 451. 
 Obtaining relief. 54: 452. 
 Who may show intoxication of party. 
 
 54: 453. 
 
 Summary. 54: 453. 
 29. Contracts made by representative; 
 
 ratification. 
 
 Contracts between corporation having 
 common directors or offi- 
 cers. 33: 788. 
 
 Powers of officers to contract with public- 
 which they represent. 15: 
 520. 
 
 Power of public officer to make contract 
 binding on successors, or 
 for a term of years. I6t 
 257.
 
 CONTRACTS, VIII. (Ed. Notes.) 
 
 733 
 
 Ratification by school district of unauthor- 
 ized contracts. 20: 136. 
 30. Special contracts and obligation to 
 
 pay in gold or silver. 
 Before legal tender act. 29: 512. 
 Application of legal tender act to specific 
 contracts for coin. 29: 
 512. 
 Decisions before Bronson v. Rodes. 29: 
 
 512. 
 Denying effect to such contracts. 
 
 29: 512. 
 Supporting such contracts. 29: 
 
 515. 
 
 In equity cases. 29: 516. 
 Effect of state statutes. 29: 516. 
 Doctrine of Bronson v. Rodes and later 
 
 cases. 29: 517. 
 Federal cases. 29: 517. \ 
 State decisions generally. 29: 518. 
 Alternative provisions; coin or 
 
 equivalent. 29: 521. 
 Municipal and state contracts. 
 
 29: 522. 
 Implied contracts or obligations imposed 
 
 by law. 29: 522. 
 In general. 29: 522. 
 Bailment and conversion of coin. 29: 
 
 522. 
 
 Bank deposits. 29: 523. 
 Accounting for trust. 29: 523. 
 Other actions for damages. 29: 523. 
 
 a. Illegal; immoral; opposed to public pol- 
 icy. 
 
 31. Generally. 
 
 As to Contracts Limiting Carrier's Liability, 
 see Carriers, IV. 37. 
 
 As to Illegal Monopolies or Trusts, see 
 Conspiracy, III. 
 
 To indemnify for illegal act. 4: 682.* 
 
 Promotive of illegal transactions, when 
 party may enforce. 9: 
 506.* 
 
 Remotely, connected with illegal transac- 
 tion; not void. 9: 657.* 
 
 Effect of award upon claim arising out of 
 illegal transaction. 58: 
 181. 
 
 Contracts against public policy; instances. 
 3: 631.* 
 
 Attempt to ratify contract opposed to pub- 
 *Iic policy. 12: 121.* 
 
 Contract for transfer of parental authority 
 or responsibility. 27: 56. 
 
 Contract between husband and wife to 
 compromise pending or 
 contemplated divorce suit. 
 60: 406. 
 
 Contracts for permanent employment. 35: 
 513. 
 
 Validity of agreement to transfer future- 
 acquired property in con- 
 sideration of maintenance. 
 70: 485. 
 
 Injunction against enforcing illegal con- 
 tract. 48: 842. 
 
 32. Bribery; corruption. 
 
 Contracts to control operations of govern- 
 ment. 3: 632.* 
 
 Sale of office. 5:217.* 
 
 Agreement for purchase of office or official 
 
 influence. 4: 683.* 
 
 Agreement to induce public officer to do il- 
 legal act or neglect duty. 
 4: 682.* 
 
 Tending to influence election or appoint- 
 ment to public office. 12: 
 120.* 
 
 33. For services to procure legislation. 
 Generally. 30: 737. 
 Condemnation of such contracts generally. 
 
 30: 738. 
 
 Contracts for legitimate professional serv- 
 ices upheld. 30: 738. 
 Contingent fee makes contract void. 30: 
 
 738. 
 Contract for personal influence or lobby 
 
 services. 30: 739. 
 Application of rules. 30: 741. 
 Analogous cases. 30: 742. 
 34. Contract to procure testimony. 
 Generally. 19: 371. 
 Agreements for disclosure of information. 
 
 19: 372. 
 
 Agreements to procure evidence or wit- 
 nesss to be used in a 
 suit. 19: 372. 
 
 Agreements with witnesses. 19: 373. 
 35. Pioperty sold for unlawful use. 
 Right to recover price of. 15: 834. 
 Goods sold to smugglers. 15: 834. 
 Sales in aid of rebellion. 15: 834. 
 Sale of property to be used in aid of 
 prostitution or lewdness. 
 15: 835. 
 Sales in aid of lotteries or gambling. 
 
 15: 836. 
 Sales of intoxicating liquors for illegal 
 
 uses. 15: 836. 
 Mere knowledge of purchaser's 
 
 purpose. 15: 836. 
 Assistance of seller. 15: 837. 
 Conflict of laws as to. 61 : 417. 
 36. Restraint of trade. 
 As to Illegal Monopolies and Trusts, see 
 
 Conspiracy, III. 
 
 Restraint on commerce in violation of Fed- 
 eral anti -trust law. 64: 
 689. 
 
 Validity of contracts in partial restraint 
 of trade, generally. 8: 
 469.* 
 
 Presumption with respect to validity of 
 contracts in partial re- 
 straint of trade. 11:437.* 
 Restrictions as to time. 1:457;* 8:469.* 
 Validity of contracts in restraint of trade 
 without limitation of 
 place. 22: 673. 
 Restraint, unlimited as to time and 
 
 place. 22: 673. 
 Divisibility of contract. 1: 457; 22: 
 
 673. 
 Restriction as to time, but not as to 
 
 place. 22: 673. 
 Publications. 22: 674. 
 Secrets of trade, compounds, and medi- 
 cine. 22: 674. 
 
 Patented articles. 22: 674. 
 Contracts of purchase. 22: 675. 
 Restraint of trade throughout the state. 
 11: 503.*
 
 734 
 
 CONTRACTS, VIII. (Ed. Notes.) 
 
 Contracts for permanent employment. 35: 
 516. 
 
 Restraining use of secrets of trade. 13: 
 652. 
 
 37. Wagering contracts. 
 
 For Avowed Betting and Wagering, see 
 Gaming. 
 
 Conflict of laws as to. 64: 160. 
 
 Invalidity of, generally. 3: 679;* 5: 200;* 
 7:705.* 
 
 Dealings in futures ; option deals. 1 : 140,* 
 656;* 3: 679;* 5: 201.* 
 
 Deposits by way of "margin." 3: 680.* 
 
 Purchase or sale of futures. 12: 121.* 
 
 Validity of wagering policies of insurance. 
 6: 137.* 
 
 Contracts for future delivery of property. 
 4: 398;* 5: 201;* 12: 776* 
 
 Validity of executory contract, for sale of 
 corporate stock. 3: 784.* 
 
 Evidence as to character of contract. 1: 
 140.* 
 
 Right of broker to recover for services or 
 losses in dealings in fu- 
 tures. 1: 141.* 
 
 38. Denial of remedy. 
 
 For fraud or illegality. 8: 476.* 
 
 Unen forceability of contracts in violation 
 or evasion of law, general- 
 ly. 3:631;* 6:218;* 8: 
 497,* 501.* 
 
 Parties in part delicto. 2: 817;* 6: 458;* 8: 
 511;* 12: 121.* 
 
 Contracts wholly void are void as to every- 
 body. 6: 588.* 
 
 Relief to less guiltv party to illegal con- 
 tract. 17: 113.* 
 
 Injunction against enforcing illegal con- 
 tract. 48: 842. 
 
 d. Performance; breach. 
 
 39. Generally. 
 
 Performance of Broker's Contract, see 
 Brokers, III. 5. 
 
 As to Special Agreement to Pay in Gold or 
 Silver, see supra, VIII. 
 30. 
 
 Option as to performance; election. 12: 
 690.* 
 
 Right of one who completes, in disregard of 
 notice to desist. 16: 655. 
 
 Performance of contract for permanent em- 
 ployment. 35: 516. 
 
 Admissibility of books of account to prove. 
 52: 714. 
 
 Effect of stipulation to give satisfaction. 
 17:207. 
 
 40. Performance of building contract. 
 
 Generally. 5: 270.* 
 
 Effect of delay in performance to defeat re- 
 covery. 5: 271.* 
 
 Waiver of strict performance. 5: 272.* 
 
 When work to be done to satisfaction of 
 architect. 5: 272.* 
 
 Binding effect of decisions of architect and 
 engineer. 5: 273.* 
 
 Architect's certificate as a condition pre- 
 cedent to recovery. 5: 
 273;* 17:211. 
 
 Acceptance of work. 5: 274.* 
 
 Substantial compliance. 9: 52.* 
 
 Extra work. 12: 502.* 
 
 Submission to arbitration. 5: 274.* 
 
 41. Time of performance. 
 
 Implied agreement as to. 11: 526.* 
 
 Time as essence of contract. 10: 828;* 12 1 
 
 239,* 241.* 
 Making time of the essence by demand or 
 
 notice. 15: 737. 
 First and last days in computation of time 
 
 on. 49: 205. 
 
 Extension of time when last day of per- 
 formance falls on Sunday.. 
 14: 120. 
 
 42. Excuse for nonperformance. 
 As to Effect of Part Performance of Con- 
 tract for Services General- 
 ly, see infra, VIII. 43. 
 
 Effect of intervening impossibility to per- 
 form. 14: 215. 
 
 Governmental interference. 14: 215. 
 Carriers' contracts. 14: 216. 
 Destruction of subject-matter. 14: 216. 
 Contracts of employment. 14: 217. 
 Effect of sickness or death. 14: 217. 
 Other instances. 14: 218. 
 Effect of destruction of building upon build- 
 ing contract. 12: 571.* 
 
 Recovery for services interrupted by sick- 
 ness or death. 16: 858. 
 Effect on contract of the death of a party 
 
 thereto. 23: 707. 
 Generally. 23: 707. 
 Landlord and tenant. 23: 707. 
 Sale. 23: 708. 
 Guaranty. 23: 709. 
 Agency. 23: 709. 
 Attorney. 23: 710. 
 Notes, bills, and checks. 23: 711. 
 Personal services. 23: 712. 
 Apprentice. 23: 713. 
 Waiver of provisions. 6: 551.* 
 When party entitled to relief from forfei- 
 ture. 10: 828.* 
 
 43. Effect of part performance of con- 
 tract for services. 
 See also supra, VIII, 42. 
 Discharge for cause. 24: 231. 
 Discharge without cause. 24: 231. 
 Damages. 24: 231. 
 Wages. 24: 232. 
 Common count. 24: 232. 
 Quantum meruit. 24: 232. 
 Assumpsit. 24: 233. 
 Accord and satisfaction, and consent. 24: 
 
 233. 
 
 Forfeiture. 24: 233. 
 Infants. 24:233. 
 Time for payment. 24: 233. 
 Slaves. 24 : 233. 
 Abandonment by employee without cause. 
 
 24: 234. 
 
 Recovering for services and expenses under 
 running contract with cor- 
 poration ended by its in- 
 solvency and dissolution. 
 69: 124. 
 44. Breach. 
 Damages for Breach of, see Damages, V. 
 
 5-9, 22, 23. 
 
 Excuse for Nonperformance, see supra, Vlll. 
 42.
 
 CONTRACTS, VIII. (Ed. Notes.) 
 
 735 
 
 Rescission or Abandonment Because of Oth- 
 er Party's Default, see in- 
 fra, VIII. 50. 
 
 Conflict of laws as to measure of damages 
 for. 56: 301, 303. ^ 
 
 When stipulation for payment in 'case of 
 default regarded as a pen- 
 alty; when as liquidated 
 damages. 10 : 826.* 
 
 Effect of use of term "forfeiture." 10: 
 827.* 
 
 Garnishment of damages for. 59: 359. 
 
 Liability, of third party for inducing. 21: 
 233. 
 
 Effect of malice on liability for causing. 
 62: 678. 
 
 Injunction to restrain. 6: 856.* 
 
 e. Change or extinguishment. 
 
 45. Modification by agreement 
 
 Generally. 6: 551.* 
 
 Modification of sealed instrument. 12: 274.* 
 
 Parol evidence to show waiver of right un- 
 der written contract. 13: 
 633.* 
 
 46. Fraud as ground of equitable relief. 
 
 As to Fraud, Generally, see Fraud, IX. 
 
 Aa to Transfers in Fraud of Creditors, see 
 Fraudulent Conveyances, 
 IX. 
 
 When party entitled to relief on ground of 
 fraud. 3:806;* 5:153;* 
 6: 836.* 
 
 47. Mistake as ground of equitable relief. 
 
 See also infra, VIII. 48. 
 
 Generally. 5: 153;* 11: 857;* 12: 273.* 
 
 What is mistake in sense of court of equity. 
 5: 153;* 6: 835.* 
 
 Mistake of law or of legal rights. 5: 
 
 154;* 6:836.* 
 
 Mistake as to legal effect of instru- 
 ment. 6: 837.* 
 
 Showing mistake by parol proof. 5: 158.* 
 
 Burden of proof as to. 5: 159.* 
 
 Character of evidence to show mistak*e. 5: 
 159.* 
 
 Necessity that mistake be material and free 
 from culpable negligence. 
 4: 483;* 6: 835.* 
 
 Mistake of fact. 6: 836.* 
 
 Admissibility of parol evidence to show 
 mistake. 6: 838.* 
 
 Mistake as to incidental or collateral mat- 
 ter. 4: 483.* 
 
 48. Reformation. 
 
 Equity jurisdiction to reform written in- 
 struments. 3: 189;* 5: 
 156.* 
 
 Equitv jurisdiction to correct mistakes in 
 
 contracts. 12: 273.* 
 Necessity of mutuality of mistake. 5: 
 157.* 
 
 Reformation of deed. 5: 158;* 12: 274.* 
 By correcting mistake in description. 
 12: 274.* 
 
 Of insurance contracts. 2: 64;* 3: 189;* 
 5:712;* 6:200,* 838.* 
 
 Character of evidence required to authorize 
 reformation. 3: 190.* 
 
 Enforcement of corrected agreement. 5: 
 159.* 
 
 Evidence necessary to show mistake. 5: 
 
 159.* 
 
 Burden of proof. 5: 159.* 
 49. Rescission; abandonment. 
 Right of rescission of contract which is void 
 because made on Sunday. 
 17:779. 
 Fraudulent representations as ground of 
 
 rescission. 11: 196.* 
 
 Rescission of subscription to stock for fraud 
 or misrepresentation. 33: 
 721. 
 
 Rescission for breach of warranty. 9: 611.* 
 Abandonment of contract for service. 24: 
 
 231. 
 
 Return or offer to return benefit as condi- 
 tion of rescinding contract. 
 9: 610.* 
 
 Necessity that election to rescind be exer- 
 cised promptly. 9: 607.* 
 Effect of ratification or acquiescence to de- 
 feat right to rescind. 9r 
 609.* 
 
 Effect of rescission. 6: 503.* 
 Action or suit for rescission of. 9: 608.* 
 Remedy of party who elects to. rescind after 
 stoppage of contract; re- 
 covery on quantum meru- 
 it. 1 : 827.* 
 
 Putting other party in statu quo as a con- 
 dition of right to rescind. 
 1: 827;* 9: 608.* 
 50. Right to rescind or abandon because 
 
 of other party's default. 
 Generally. 30: 33. 
 Condition precedent. 30: 36. 
 
 How far is right to rescind controlled 
 by question of condition 
 precedent. 30: 36. 
 Charter party. 30: 37. 
 Party excused by nonperformance of 
 condition precedent. 30: 
 39. 
 Excuse for not performing condition 
 
 precedent. 30: 40. 
 
 Right to rescind contract without liability 
 for nonperformance. 30 : 
 40. 
 
 Necessity of mutual consent. 30: 40. 
 Contract may be rescinded. 30: 41. 
 Duty to place other party in statu quo. 
 
 30: 44. 
 
 Partial performance. 30: 47. 
 Party seeking to rescind must not be in de- 
 fault. 30: 48. 
 
 Right of party rescinding to recover for 
 
 what he has done. 30: 49. 
 
 Right to abandon performance and recover 
 
 for breach. 30: 54. 
 Performance excused. 30: 54. 
 Recovery for breach. 30: 55. 
 Txist profits as damages. 30: 57. 
 What will warrant rescission. 30: 59. 
 Application of above rules to various kinds 
 
 of contracts. 30: 64. 
 Vendor and purchaser. 30: 64. 
 Constructive contracts. 30: 67. 
 Insurance contracts. 30: 69. 
 Continuing contracts. 30: 69. 
 Fraudulent representations as ground of 
 rescission of contract. 11: 
 196.*
 
 736 
 
 CONTRADICTION ; CONTRIBUTION. 
 
 f. Public contracts. 
 
 ST. Generally. 
 
 For Municipal Contracts, Generally, see 
 
 Municipal Corpora t i o n s, 
 
 IV. 15. 
 
 For Municipal Water Supply, see Waters, 
 
 IV. 43. ' 
 Statute legalizing invalid municipal con- 
 tract. 27: 696. 
 Liability of public officers on contracts made 
 by them for the public. 
 15: 509. 
 
 Power of public officers to make contracts 
 binding on their succes- 
 sors or for term of years. 
 16: 257. 
 
 Power of officer to contract with public 
 body or municipality 
 which he represents. 15: 
 520. 
 
 52. Right of lowest bidder on. 
 Cases affirming right of lowest bidder. 26: 
 
 707. 
 
 Absence of statute requiring award to low- 
 est bidder. 26: 707. 
 
 Rights under statute or ordinance requiring 
 award to lowest bidder. 
 26: 707. 
 Reservation of right to reject any and 
 
 all bids. 26: 707. 
 Opening bids letting. 26: 708. 
 Defective bid or bond. 26: 708. 
 Specifications quality of article. 26: 
 
 709. 
 Change of plans or bid abandonment. 
 
 26: 709. 
 
 Deposit. 26 : 709. 
 Lowest bidder determination. 26: 
 
 709. 
 
 Qualification of bidder. 26: 710. 
 Readvertisement. 26: 710. 
 Confirmation by council. 26: 711. 
 Street railroad grants. 26:711. 
 Mandamus and injunction generally. 
 26: 711. 
 
 CONTRADICTION. 
 Of Witness, see Witnesses, HL 
 
 CONTRIBUTION. 
 
 To Agricultural Society, see Agricultural 
 
 Societies, 4, 5. 
 By Passenger, see Average. 
 By Accommodation Indorser, see Bills and 
 
 Notes, 96. 
 
 Between Shippers, see Carriers, 738. 
 For Expense of Bridge, Vested Right to, 
 
 see Constitutional Law, 158. 
 In Unlawful Business, see Contracts, 599. 
 Between Cotenants, see Cotenancy, 27-32. 
 As to Dower, see Dower, 3. 
 Parol Evidence in Action for, see Evidence, 
 
 1161. 
 By Members of Mutual Insurance Company, 
 
 see Insurance, 664. 
 
 Between Insurance Companies, see Insur- 
 ance, VI. g. 
 
 Between Life Tenant and Remaindermen 
 for Taxes and Assessments Paid, see 
 Life Tenants, 66. 
 
 Limitation of Action for, see Limitation of 
 Actions, 77, 189-191. 
 
 Between Vendor and Purchaser, see Mort- 
 gage, 189. 
 
 Liability for, as Affecting Right of Action 
 on Covenant, see Parties, 27. 
 
 To Limited Partnership, see Partnership, 
 153-155. 
 
 Between Partners, see Evidence, 1000; Judg- 
 ment, 239-241; Partnership, 100, and 
 also infra, Editorial Notes. 
 
 Between Sureties, see Evidence, 1131; Ex- 
 ecutors and Administrators, 196; Inter- 
 est, 88; Judgment, 388, 389; Principal 
 and Surety, 61-64. 
 
 1. The right of action of a co-obligor or 
 surety who satisfies the debt, for contribu- 
 tion from those who are liable with him, 
 rests upon the implied promise raised by 
 law, and not upon subrogation, where the 
 creditor has no security, and the debt cre- 
 ates no lien upon property and is entitled to 
 no priority over other debts. Faires v. 
 Cockrill, 88 Tex. 428, 31 S. W. 190, 28: 528 
 
 2. Infant heirs are not liable to con- 
 tribution at law for the amount of liability 
 voluntarily incurred by other heirs in sav- 
 ing the estate from insolvency. Benedict v. 
 Chase, 58 Conn. 196, 20 Atl. 448, 8: 120 
 Between wrongdoers. 
 
 See also infra. Editorial Notes. 
 
 3. The principle that denies contribution 
 between wrongdoers does not apply where a 
 railroad company seeks indemnity from a 
 conductor employed by it against a claim 
 for damages by a person whom the con- 
 ductor, in violation of the rules of the com- 
 pany, had permitted to ride on a freight 
 train. Memphis & C. R. Co. v. Greer, 87 
 Tenn.'698, 11 S. W. 931. 4: 858 
 Attaching creditors. 
 
 4. Contribution may be allowed between 
 joint trespassers, where their trespass, which 
 consisted of levies made by their joint pro- 
 curement under their several attachments, 
 was made in good faith, believing that the 
 claim to the property by the person whose 
 rights they invaded was actually fraudu- 
 lent. Vandiver v. Pollak, 97 Ala. 467, 12 So. 
 473, 19: 628 
 
 5. Creditors who attach goods in good 
 faith in the exercise of ordinary prudence 
 and caution, with no intention of commit- 
 ting a trespass or injuring anyone, but with 
 the honest belief that transfers by the 
 debtor were fraudulent, are not wrongdoers 
 such as to be denied the right of contribu- 
 tion between each other for the damages 
 thereby incurred, although the seizure turns 
 out to have been unlawful. Farwell v. 
 Becker, 129 111. 261, 21 N. E. 792, 6: 400 
 
 6. One of several attaching creditors who 
 has assisted in defending actions brought by 
 a claimant of the goods, and whose debt haa 
 been fully paid from moneys arising out of 
 a sale of the goods under the attachment,
 
 CONTRIBUTOR CONVICTS. 
 
 may be required to contribute to the pay- 
 ment of the damages recovered against the 
 other attaching creditors. Id. 
 
 Joint defendants. 
 
 7. Contribution cannot be compelled by a 
 judgment debtor who has paid the judg- 
 ment, from a joint defendant, where, after 
 the latter had been notified that the suit 
 was abandoned, the former had the pro- 
 ceedings renewed and carried to judgment 
 without notice to the other, and assumed 
 to conduct the defense for both without set- 
 ting up as a defense therein a discharge in 
 bankruptcy which he knew his codefendant 
 had obtained pending the action. Duncan 
 v. Flanagan, 133 Pa. 373. 19 Atl. 405, 
 
 7: 412 
 
 Editorial Notes. 
 
 Between partners. 1: 313.* 
 
 Right to, among cotenants. 9: 740.* 
 
 Liability of cotenants to account for use 
 and occupation and rents 
 and profits. 28: 829. 
 
 Liability of cotenants for improvements 
 and repairs. 29: 449. 
 
 Between wrongdoers. 1:313;* 4:859;* 
 6: 631.* 
 
 Between cosureties. 9: 411.* 
 
 Between successive purchasers of parcels of 
 land subject to mortgage. 
 5: 282.* 
 
 Between heir or widow in case of payment 
 of mortgage. 5: 520.* 
 
 By widow as condition of preservation of 
 dower. 4: 119.* 
 
 Between stockholders of foreign corpora- 
 tions. 34: 763. 
 
 Contingency of claim for, as affecting lim- 
 itation of time for presen- 
 tation to estate of de- 
 ceased person. 58: 88. 
 
 CONTRIBUTOR. 
 
 Liability for Libel, see Libel and Slander, 4. 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 See Negligence, II. 
 
 CONVENT. 
 
 Minor's Release from, see Habeas Corpus, 28. 
 Exemption of, from Taxation, see Taxes, 
 297. 
 
 CONVENTIONS. 
 
 Constitutional. Debates of, see Constitu- 
 tional Law, 52. 
 
 Of Political Parties, see Elections, III. 
 L.R.A. Dig. 47. 
 
 CONVERSION. 
 
 Measure of Damages for, see Damages, 387, 
 390-398. 
 
 Equitable Conversion, see Equitable Con- 
 version. 
 
 As Larceny, see Larceny, 3. 
 
 Of Fund by Servant Disbursing under Mas- 
 ter's Order, see Master and Servant, 
 716. 
 
 Action for, see Trover. 
 
 CONVICT-MADE GOODS. 
 
 Provision as to, as Interference with Com- 
 merce, see Commerce, 106. 
 
 Police Regulation as to, see Constitutional 
 Law, 1008. 
 
 CONVICTS. 
 
 Review of Trial Judge's Decision as to San- 
 ity of, see Appeal and Error, 50. 
 
 Trying Question of Sanity of, see Criminal 
 Law, 175. 
 
 Using Public Money to Reimburse One 
 Wrongfully Convicted, see Appropria- 
 tions, 20. 
 
 Liability for Cruelty to, see Assault and 
 Battery, 5. 
 
 Status of, see Civil Death. 
 
 Good Time Credits of, see Cbiwdtutional 
 Law, 234. 
 
 Ex Post Facto Laws as to, see Constitu- 
 tional Law. I. b, 1. 
 
 Violating Conditions of Release, see Crim- 
 inal Law, 71. 
 
 Sentence and Imprisonment of, see Criminal 
 Law, IV. 
 
 Empowering State Auditors to Determine 
 Innocence of Pardoned Convict, see 
 Courts, 239. 
 
 Issuing Warrant for Return of, see Govern- 
 or, 1. 
 
 Employment of. 
 
 Labor of, && part of Punishment, see Crim- 
 inal Law, 192, 193, 207. 
 See also infra, Editorial Xotes. 
 
 1. The employment of a convict upon the 
 public roads under supervision and control 
 of a public agent by order of the county 
 commissioners is not a "hiring out" of the 
 convict which, by N. C. Code, 3448, re- 
 quires an order of court embodied in the 
 sentence. State v. Yandle, 119 N. C. 874, 
 25 S. E. 796, 34: 392 
 
 2. An order of county commissioners for 
 the employment of a convict upon the public 
 roads, made under N. C. Code, 3448, and 
 without any provision therefor in the sen- 
 tence or any order of court, is not void on 
 the ground that it is in the nature of an ad- 
 ditional judgment against the convict. Id. 
 Liability for injuries committed by. 
 Proximate Cause of Injury, see Proximate 
 
 Cause, 135. 
 
 3. Persons in charge of a state convict
 
 738 
 
 COOLING TIME COPYRIGHT. 
 
 are not liable in damages for criminal tori 
 committed by him while at large, whether 
 at large by their permission or because ol 
 their negligence, unless they were in some 
 way connected with the perpetration of the 
 tort, or had reasonable grounds for appre 
 hending that it would be committed. Hen- 
 derson v. Dade Coal Co. 100 Ga. 568, 28 
 S. E. 251, 40: 95 
 
 4. Knowledge that a felony convict about 
 thirty-seven years old, who had been con- 
 tinuously in the penitentiary for about 
 twelve years, and who had five times es- 
 caped therefrom, was "a man in robust anc 
 vigorous health, immoral, brutish, devilish 
 of vicious habits, of violent passions," in- 
 cluding sexual passion, and a person "not 
 restrained by any convictions of right and 
 wrong or governed by any principles oi 
 morality," does not constitute ground of 
 apprehension that he will commit the crime 
 of rape when opportunity occurs, so as to 
 render his custodians liable for damages on 
 account of such a crime committed by him 
 while at large through their fault. Id. 
 Means for identifying. 
 
 5. The photograph, description, and meas- 
 urement of one sentenced to a state prison, 
 which the law requires the superintendent 
 of prisons to secure and preserve, are a part 
 of the public records which the superintend- 
 ent has no power to remove or destroy, even 
 though the prisoner's sentence is after- 
 wards reversed, and he is subsequently ac- 
 quitted of the charge against him. Re Mol- 
 ineux, 177 X. Y. 395, 69 N. E. 727, 65: 104 
 
 6. One convicted of murder, and remanded 
 to the warden of the state prison to be 
 kept in solitary confinement awaiting exe- 
 cution, is within the operation of a statute 
 requiring prisoners received under sentence 
 in the state prison to be measured and de- 
 scribed in accordance with the Bertillon sys- 
 tem for the identification of criminals. Id. 
 
 Editorial Notes. 
 
 i. Generally. 
 
 Effect of conviction on marriage. 31: 515. 
 
 Right to compel prisoners to labor. 27: 593. 
 
 Ordinance against convict labor in street. 
 3D : 680. 
 
 Liability of county on account of escape 
 from prison. 39: 60. 
 
 Justification of prison breach. 15:190. 
 
 Right of peace officer to enter dwelling to 
 recapture escaping pris- 
 oner. 16:501. 
 
 Service of process on prisoner. 46: 7U6. 
 
 Claim against state based on contract for 
 prison labor. 42:59. 
 
 Right of prisoner to appear unmanacled at 
 trial. 39: 821. 
 
 2. Prisoner's right of action for confine- 
 ment in unhealthful or unfit prison. 
 
 Liability of county. 36: 293. 
 
 Liability of municipality. 36: 2!)3. 
 
 Individual liability of keeper. 36: 2D4. 
 
 Right to prevont use of jail. 36: 294 
 
 COOLING TIME. 
 Question for Jury as to, see Trial, 22L 
 
 CO-OPERATIVE STORE. 
 
 Subscription to Stock for Establishment of, 
 see Partnership, 6. 
 
 COPARCENERS. 
 
 Contribution between, see Cotenancy, 29-32. 
 Accounting Between, see Cotenancy, 24. 
 
 COPY. 
 
 As Evidence, see Evidence, 794-799. 
 Of Information, see Indictment, etc., 5. 
 
 A copy of an instrument is a repro- 
 duction or imitation of it, and a transla- 
 tion is not a copy. Rasmussen v. Baker, 
 7 Wyo. 117, 50 Pac. 819, 38: 773 
 
 COPYRIGHT. 
 
 Construction of Contract for, see Contracts, 
 
 344. 
 
 Injunction against, see Injunction, 471. 
 License to Publish Distinguished from 
 
 Agency, see Principal and Agent, 3. 
 Taxation of, see Taxes, 17, and also infra, 
 
 Editorial Notes. 
 
 1. The common-law right of an author to 
 his unpublished manuscript is not abrogated 
 by the copyright acts of Congress. Press' 
 Pub. Co. v. Monroe, 19 C. C. A. 429, 38 U. 
 S. App. 410, 73 Fed. 196, 51:353 
 
 2. A statistical atlas is properly copy- 
 righted as a whole; it is not necessary to 
 copyright separately each map in the book. 
 Black v. Henry G. Allen Co. 42 Fed. 618, 
 
 9:433 
 
 3. Mala fides cannot be imputed to the 
 compiler of an annual digest of judicial de- 
 
 isions. in usinor copyrighted reports pub- 
 lished during the year for the purpose of 
 making such digest. West Pub. Co. v. Law- 
 yers' Co-op. Pub. Co. 64 Fed. 360, 25: 441 
 Reversed on Other Grounds in 51 U. S. 
 App. 216, 79 Fed. 756, 35: 400 
 
 4. That the publisher of an author's copy- 
 righted work is not authorized to sell un- 
 
 )ound copies will "five the author no right 
 of action against another publisher who 
 nirchases unbound sheets, which he binds 
 md sells. Kipling v. G. P. Putnam's Sons, 
 57 C. C. A. 295.. 120 Fed. 631, 65: 873 
 
 5. An author's reservation of "copyright" 
 n an ode written for the World's Columbian 
 Exposition, subject to the concppsion that 
 n addition to the delivery of the ode at 
 he Exposition the Exposition Company 
 hall have the right to publish it in the
 
 COPYRIGHT. 
 
 final history thereof and to furnish copies 
 to the newspaper press and for free dis- 
 tribution, is not invalid, although it accom- 
 panies an acknowledgment of the receipt 
 of money "in full payment for ode composed 
 by me." Press Pub." Co. v. Monroe, 19 C. C. 
 A. 429, 38 U. S. App. 410, 73 Fed. 196, 
 
 51: 353 
 
 What subject of. 
 See also infra, Editorial Notes, 2. 
 
 6. The compiler of a digest has no monop- 
 oly of the opinions, decisions, and syllabi 
 prepared by the courts and judges, even 
 though he has previously published them in 
 copyrighted pamphlets. West Pub. Co. v. 
 Lawyers' Co-Op. Pub. Co. 64 Fed. 360, 
 
 , 25:441 
 
 [Reversed on Other Grounds in 51 U. S 
 App. 216, 79 Fed. 756, 35:400] 
 
 7. A valid copyright may be had by one 
 reporting judicial decisions for his original 
 work published in connection with the opin- 
 ions and syllabi prepared by the judge. Id. 
 
 8. A photograph of a yacht under sail is 
 a proper subject of copyright, where the 
 photographer is required to select and util- 
 ize the best effects of light, cloud, and wa- 
 ter, and general surroundings, and combine 
 them under favorable conditions. Bolles v. 
 Outing Co. 23 C. C. A. 594, 45 U. S. App. 449, 
 77 Fed. 966, 46: 712 
 
 9. The market quotations and sporting 
 news gathered by a telegraph company, and 
 delivered to its patrons by means of tick- 
 ers, are not, as so delivered, within the pro- 
 tection of the United States copyright laws. 
 National Teleg. News Co. v. Western U. 
 Teleg. Co. 56 C. C. A. 190, 119 Fed. 294, 
 
 60: 805 
 Notice. 
 See also infra, Editorial Notes, 3. 
 
 10. The figures "93" in a copyright notice 
 sufficiently designate the date as 1893. 
 Bolles v. Outing Co. 23 C. C. A. 594, 45 U. S. 
 App. 449, 77 Fed. 966, 46: 712 
 
 11. A copyright notice is sufficient where 
 it has the author's surname and his resi- 
 dence and place of business, and there is no 
 other person of the same name in the same 
 business, although it does not give his 
 initials or Christian name. Id. 
 
 12. The inadvertent omission of a copy- 
 right notice from the publication of a copy- 
 righted article by a licensee of the own- 
 er of the copyright does not withdraw the 
 protection of the copyright, or absolve an- 
 other, who publishes the matter without au- 
 thority, from liability in damages, although 
 he was ignorant of the existence of the 
 copyright. American Press Asso. v. Daily 
 Story Pub. Co. 57 C. C. A. 70, 120 Fed. 766. 
 
 66: 444 
 
 Publication; how right to copyright lost. 
 See also supra, 12. 
 
 IS. Exhibition of a painting at an acad- 
 emy of arts to which the public is admitted 
 only by payment of a fee, and the rules 
 of which expressly forbid patrons to copy 
 paintings while so on exhibition, is not a 
 publication, although it contains no notice 
 of copyright, which will prevent the artist 
 or his assignee from enforcing against per- 
 
 sons subsequently attempting to publish 
 copies of it for commercial purposes bue 
 rights which would have been secured by 
 compliance with the copyright law. Werck- 
 meister v. American Lithographic Co. 134 
 Fed. 321, 68: 591 
 
 14. A book is published so as to defeat 
 what is known as the common-law copy- 
 right, or right of first publication, if it is 
 put within reach of the general public so 
 that all may have access to it, no matter 
 what limitations be put upon the use of it 
 by the individual subscriber or lessee. Jew- 
 elers' Mercantile Agency v. Jewelers' "Week- 
 ly Pub. Co. 155 N. Y. 241, 49 N. E. 872, 
 
 41 : 846 
 
 15. A lease of the reference books of a 
 mercantile agency to subscribers, retaining 
 title and providing that the books shall be 
 returned when the subscription expires, con- 
 stitutes a publication which will defeat a 
 common-law copyright. Id. 
 
 16. An author who permits the publica- 
 tion in a magazine of chapters of a book 
 on which he has secured a copyright without 
 any notice other than the general notice by 
 the publishers of the magazine of a copy- 
 right of its matter loses his exclusive rights 
 under his copyright. Mifflin v. R. H. white 
 Co. 50 C. C. A. 66L 112 Fed. 1004, 61 : 134 
 
 17. Permitting the use of a copyrighted 
 article in a foreign encyclopedia, the remain- 
 der of which is written by foreigners and 
 publici juris in this country, does not war- 
 rant its insertion in an unauthorized reprint 
 of the encyclopedia here, by a third person. 
 Black v. Henry G. Allen Co. 42 Fed. 618, 
 
 9: 433 
 
 18. An author who, after publishing a 
 manuscript in a magazine under a copyright 
 notice in the name of the publisher, pub- 
 lishes it in book form with a copyright no- 
 tice in his own name, making no reference 
 to the former one, abandons the work to the 
 public. Mifflin v. R. H. White Co. 50 C. C. 
 A. 661, 112 Fed. 1004, 61: 134 
 What covered by. 
 
 19. The copyright of a new edition of an 
 author's works covers only new matter con- 
 tained in them. Kipling v. G. P. Putnam's 
 Sons, 57 C. C. A. 295, 120 Fed. 631, 65: 873 
 Effect of. 
 
 20. A statutory copyright operates to de- 
 vest a party of the common-law right. Jew- 
 elers' Mercantile Agency v. Jewelers' Week- 
 ly Pub. Co. 155 N. Y. 241, 49 N. E. 872, 
 
 41 : 846 
 
 Assignment of interest in. 
 See also infra, Editorial Notes, 1. 
 
 21. An inchoate right to a copyright 
 may, prior to the taking of the copyright, 
 be transferred by parol. Black v. Heriry G. 
 Allen Co. 42 Fed. 618, 9:' 433 
 
 22. The owner of a copyright may assign 
 an undivided interest therein, so that the 
 copyright becomes the undivided property 
 of joint owners. He may also assign or 
 transfer, in equity, an exclusive right to 
 use the copyrighted work in a ^articular 
 manner or for particular purposes upon 
 such terms and conditions as may be agreed 
 upon. Id.
 
 740 
 
 COPYRIGHT. 
 
 Infringement. 
 
 Burden of Proof as to, see Evidence, 364. 
 748, 749. 
 
 Evidence as to, see Evidence, 2074. 
 
 Sufficiency of Proof as to, see Evidence, 
 2352, 2353. 
 
 Suit by Foreign Administrator for, see Ex- 
 ecutors and Administrators, 114. 
 
 Injunction against, see Injunction. 430, 431. 
 
 Libelous Charge of, see Libel and Slander. 
 89. 
 
 Allegation as to, see Pleading, 420-422. 
 
 See also infra. Editorial Notes, 1, 2. 
 
 23. A newspaper publication of an ode 
 written for the World's Columbian Exposi- 
 tion, made before the delivery of the ode at 
 the Exposition or its publication elsewhere, 
 and without the consent of the author or 
 of the Exposition Company, for which it 
 was written, is a violation of the rights of 
 the author, which makes the newspaper lia- 
 ble for damages. Press Pub. Co. v. Monroe. 
 19 C. C. A. 429. 38 U. S. App. 410, 73 Fed. 
 196, 51:353 
 
 24. One has a right to make and publish 
 an index of copyrighted works, although it 
 c-ontains words and phrases found in the 
 text. Kipling v. G. P. Putnam's Sons, 57 
 ('. C. A. 295/120 Fed. 631, 65:873 
 
 25. Copyrighted headnotes suitable for use 
 in a digest, prepared by a publisher of a se- 
 ries of reports and a digest, cannot be used 
 by a subsequent compiler of a digest, either 
 directly or by way of suggestion, to lighten 
 his labors, except as a guide to verify the 
 accuracy of his work or detect errors, omis- 
 sions, or other faults. West Pub. Co. v. 
 Lawyers' Co-Op. Pub. Co. 64 Fed. 360, 
 
 25: 441 
 
 [Reversed on Other Grounds in 51 U. S. 
 App. 216, 79 Fed. 756, 35: 400] 
 
 26. The use of identical or similar lan- 
 guage is not necessary to constitute an in- 
 fringement of a copyrighted syllabus of a 
 law report, but any unfair appropriation of 
 the labor of the original compiler will con- 
 stitute the offense. West Pub. Co. v. Law- 
 yers' Co-Operative Pub. Co. 51 U. S. App. 
 216, 79 Fed. 756. 25 C. C. A. 648. 35: 400 
 Rev'g 64 Fed. 360. 25:441 
 
 27. The mere circumstance that two sylla- 
 bi of the same opinion are expressed in iden- 
 tical language is not always sufficient proof 
 that one was borrowed from the other. es- 
 pecially if the statement is familiar and 
 brief. * Id. 
 
 28. Mere verbal identity in a single in- 
 stance, without the reproduction of any er- 
 rors, must be wholly overborne by the posi- 
 tive testimony of the writer that his work 
 was original, where he has digested a great 
 number of cases having copyrighted syllabi 
 which he is charged with infringing. Tel. 
 
 29. Infringement of copyrighted syllabi by 
 some of the persons employed in preparing 
 a digest of law reports will render the whole 
 book subject to an injunction and account - 
 ing. when their work is so mingled with the 
 remainder of the book that it cannot be 
 segregated without evidence which the de- 
 fendant can give, but does not. Id. 
 
 30. A copyrighted law hook is not in- 
 
 fringed by a subsequent work on the same 
 subject, where the second author merely 
 collected all available citations, including 
 those found in the copyrighted work, and, 
 after examining the text-books and opin- 
 ions, used those which he considered avail- 
 able to support his own original text. Ed- 
 ward Thompson Co. v. American Law Book 
 Co. 59 C. C. A. 148, 122 Fed. 922, 62: 607 
 
 31. The penalty for infringing copies of a 
 photograph published in a magazine, which, 
 by U. S. Rev. Stat. 4965, U. S. Comp. Stat. 
 1901, p. 3414, is declared to be $1 for every 
 sheet found in the infringer's possession, is 
 limited to the sheets which can be con- 
 demned under the statute, and does not ex- 
 tend to sheets which have formerly been in 
 his possession, but have been disposed of 
 without being so found. Bolles v. Outing 
 Company, 23 C. C. A. 594, 45 U. S. App. 449. 
 77 Fed/ 966, 46: 712 
 
 32. Procuring an article which is to be in- 
 serted in a foreign encyclopaedia, to be writ- 
 ten and copyrighted in this country, for the 
 express purpose of protecting the encyclo- 
 paedia from being reprinted here in cheap 
 form, which reprint would be of great value 
 to our people and could be made were 
 it not for such article, is not such a fraud 
 on the copyright laws as will prevent a 
 court from entertaining jurisdiction of a 
 bill to restrain an infringement of the copy- 
 riht. Black v. Henry G. Allen Co. 42 Fed. 
 618, 9:433 
 
 Editorial Xotes. 
 
 i. Generally. 
 
 Distinction between common-law right and 
 
 copyright. 11: 268.* 
 
 Right of purchaser of, to sell it free from 
 restrictions affecting it in 
 hands of vendor. 55: 632. 
 Assignment of. 9: 433.* 
 State taxation of. 57: 57. 
 As an element in taxation of capital stock 
 
 of corporation. 58: 564. 
 Liability of officers of a corporation for its 
 
 infringement. 28: 426. 
 Daimages for infringement as affected by loss 
 
 of profits. 51 : 801. 
 Directions for securing under revised act of 
 
 Congress. 9 : 433.* 
 2. Common-law rights of authors and 
 
 others in intellectual productions. 
 General theories. 51:353. 
 Prerogative publications. 51 : 355. 
 Parties. 51 : 358. 
 
 Originators. 51:358. 
 Compilers. 51:358. 
 \nnotators and commentators. 51: 
 
 358. 
 
 Successors. 51:359. 
 Masters and servants. 51 : 359. 
 Works. 51 : 359. 
 
 Tn general. 51:359. 
 
 Immoral . libelous, or irreligious works. 
 
 51 : 360. 
 
 Letters. 51:360. 
 Rights. 51:363. 
 
 Before publication. 51: 363. 
 
 After publication. 51 : 367. 
 
 What constitutes publication. 51 : 374.
 
 COPYRIGHT KOTICE-CORONER. 
 
 741 
 
 General principles. 51: 374. 
 What is a publication. 51: 375. 
 What is not a publication. 51 : 370. 
 Infringements. 51:3/8. 
 
 Xames or designations. 51: 378. 
 Abridgments. 51:378. 
 Translations. 51 : 378. 
 Reproductions. 51 : 379. 
 Originals. 51:379. 
 
 Author's own obtained surrep- 
 titiously. 51: 379. 
 Independent creations. 51:379. 
 Combinations. 51: 379. 
 Remedies. 51:380. 
 Liabilities. 51: 380. 
 
 Creditors. 51:381. 
 Taxation. 51:381. 
 3. Effect of omitting notice of, from 
 
 licensed publication. 
 Necessity of notice. 66: 444. 
 Variant notices. 6G: 445. 
 Trade names. 66: 445. 
 Redundancy. 66: 445. 
 Inversion. 66: 445. 
 Location. 66:446. 
 Defective notices. 66: 446. 
 
 Material omissions. 66: 446. 
 Immaterial omissions. 66: 446. 
 Works in several parts. 66: 446. 
 When notice is entirely absent. 66: 447. 
 Unpublished copies. 66: 447. 
 Authorized publications. 66: 447. 
 Before copyright. 66: 447. 
 After copyright. 66 : 447. 
 Unlicensed publications. 66: 448. 
 
 By parties in privity with the pro- 
 prietor. 66 : 448. 
 By pirates. 66 : 448. 
 After notice has been erased. 66: 
 
 449. 
 Patents. 66 : 449. 
 
 COPYRIGHT NOTICE. 
 See Copyright, 10-12. 
 
 CORAM NOBIS. 
 
 1. Relief from a plea of guilty and a sen- 
 tence thereon may be granted by an action 
 or proceeding in the same court in the na- 
 ture of a writ of error coram nobis, where 
 the plea was made under well-grounded 
 fear of mob violence. State v. Calhoun, 50 
 Kan. 523, 32 Pac. 38, 18: 838 
 
 2. The question of guilt or innocence of 
 the accused is not a necessary question to 
 be determined in an action in the nature of 
 a writ of error coram nobis for relief from 
 a plea of guilty induced by fear of mob 
 violence, as the burden of proof cannot be 
 shifted to the accused by reason of the fact 
 that he was compelled through fear to plead 
 guilty. Id. 
 
 3. No statute of limitations will operate 
 against the remedy of a party while under 
 the legal disability of imprisonment, to have 
 his sentence reviewed by an action in the 
 nature of a writ of error coram nobis. Id. 
 
 4. A writ of error coram nobis, or a mo- 
 tion in lieu of it, is not a proper process to 
 reverse a judgment because of the defend- 
 ant's insanity, as the judgment can only be 
 affected in equity, which has jurisdiction in 
 such cases. Withrow v. Smithson, 37 W. 
 Va. 757, 17 S. E. 316, 19: 762 
 
 5. The writ of error coram nobis will not 
 lie to vacate a judgment of conviction and 
 secure a retrial of the accused, because of 
 his inability within statutory limits of time 
 to prepare a record on appeal showing the 
 errors of which complaint was made, as 
 such writ lies only to correct errors of fact 
 in ignorance or disregard of which the judg- 
 ment was pronounced, and to relieve from 
 which no other remedy exists. Collins v. 
 State, 66 Kan. 201, 71 Pac. 251, 60: 572 
 
 Editorial Notes. 
 
 Writ of error coram nobis. 18: 838. 
 Scope of the writ. 18: 839. 
 Right to the writ. 18: 841. 
 Limitations. 18: 842. 
 Procedure. 18 : 842. 
 
 CORNELL UNIVERSITY. 
 See Colleges, 3, 4. 
 
 CORNER LOTS. 
 
 Assessment of, for Street Improvements, see 
 Public Improvements, 192-194. . 
 
 CORONER. 
 
 Ordering Post Mortem Examination, see 
 Corpse, 6, 7. 
 
 Admissibility of Inquest of, see Evidence, 
 859, 860, and also infra, Editorial Notes. 
 
 Inquest of, as Evidence, see Evidence, 883, 
 884. 
 
 Evidence of Confessions at Inquest, see Evi- 
 dence, 1448-1451, and also infra, Ed- 
 itorial Notes. 
 
 Failure to Claim Privilege as Witness at 
 Inquest, see Witnesses, 145. 
 
 Impeachment of Witness by Testimony at 
 Inquest, see Witnesses, 150. 
 
 Service of Writ by, see Writ and Process, 8. 
 
 1. The "viewing" in Neb. Comp. Stat. 
 chap. 28, 7, allowing fees to a coroner for 
 viewing a dead body, means an inspection 
 and investigation by a coroner with a jury; 
 and he is not entitled to fees for viewing the 
 body of a person found dead, unless a jury 
 is impaneled. Lancaster County v. HolyoKe, 
 37 Neb. 328, 55 N. W. 950, 21 : 394 
 
 2. A coroner can lawfully hold an in- 
 quest, under the Nebraska statutes, upon 
 the dead bodies of only such persons as are 
 supposed to have died by unlawful means, 
 although at common law a coroner was re- 
 quired to hold an inquest over the body of a 
 person who died from visitation of God, by
 
 742 
 
 CORPORAL PUNISHMENT; CORPORATIONS. 
 
 chance or accident, or by his own hand or 
 the hand of another. Id. 
 
 3. The verdict of a coroner's jury is not 
 subject to be reviewed, set aside, or quashed 
 in the Georgia superior court, either at the 
 instance of the person accused by it, or any 
 other person, as it is advisory merely to the 
 officers charged with the execution of the 
 public law in case of homicide, binds no one 
 as a judgment, has no probative effect as 
 evidence, and can prejudice the rights of no 
 one. Smalls v. State, 101 Ga. 570, 28 S. 
 E. 981, 40:369 
 
 Editorial Notes. 
 
 Power of, to order post mortem examina- 
 tion. 31:540. 
 Admissibility of finding of. to show cause 
 
 of 'death. 68:285. 
 
 Admissibility on trial for murder, of testi- 
 mony of accused at coro- 
 ner's inquest. 70: 33. 
 When coroner's inquest necessary or proper. 
 
 21:394. 
 
 Second inquest. 21: 395. 
 One inquest on several bodies. 21: 395. 
 Locality. 21 : 395. 
 Statutory provisions. 21: 396. 
 
 CORPORAL PUNISHMENT. 
 
 By Teacher, see Schools, 59-61. 
 Editorial Notes. 
 
 Liability of school teacher for personal in- 
 jury to pupil. 65: 8^6. 
 
 CORPORATIONS. 
 
 I. Nature; Creation; Franchises. 
 
 a. In General. 
 
 b. Corporate Purposes. 
 
 c. De Facto Corporation. 
 
 d. Names. 
 
 II. Consolidation; Reorganization; Trans- 
 fer of Franchises. 
 
 III. Charters; Articles of Incorporation. 
 
 IV. Powers, Liabilities, and Officers. 
 
 a. Rights and Powers Generally. 
 
 b. Owning Stock of Other Compa- 
 
 nies. 
 
 c. Mode of Corporate Action; Acts 
 
 of Agents. 
 
 d. Contracts; Ultra Vires. 
 
 1. Power to Contract. 
 
 2. Right to Set up Ultra Vires 
 
 as Defense. 
 
 3. Formal Requisites. 
 
 4. Ratification. 
 
 e. Property Rights. 
 
 f. Liabilities. 
 
 g. Officers; Meetings. 
 
 1. In General; Qualifications. 
 
 2. Powers. 
 
 IV. continued. 
 
 3. Compensation. 
 
 4. Fiduciary Relation. 
 
 5. Liabilities. 
 
 o. To Stockholders or Cred- 
 itors. 
 
 (1) In General. 
 
 (2) For Failure to Re- 
 
 port. 
 
 (3) For Excess of In- 
 
 debtedness. 
 6. For Torts or Nuisances. 
 
 6. Meetings. 
 h. Promoters. 
 
 V. Capital ; Stock and Stockholders. 
 
 a. In General; Issue of Stock. 
 
 b. Subscriptions. 
 
 1. In General. 
 
 2. Payment. 
 
 c. Transfers; Lien. 
 
 1. In General. 
 
 2. Prior Right of Purchase. 
 
 3. Lien. 
 
 d. Forged or Fraudulent Issue. 
 
 e. Rights of Shareholders. 
 
 1. In General. 
 
 2. Actions by. 
 
 3. Right to Inspect Books. 
 
 4. Dividends. 
 
 f. Liability of Shareholders. 
 
 1. In General. 
 
 2. Effect of Transfer. 
 
 3. For Unpaid Stock. 
 
 a. In General. 
 6. btock Paid for in Prop- 
 erty. 
 
 4. Proceedings to Enforce. 
 
 g. Stockholders' Meetings; Voting. 
 
 1. In General. 
 
 2. Voting. 
 
 a. In General. 
 6. Who Entitled to Vote. 
 VI. Dissolution; Forfeiture; Insolvency. 
 
 a. In General. 
 
 b. Grounds of Forfeiture. 
 
 c. Effect on Property Rights. 
 
 d. Effect on Causes of Action: 
 
 e. Procedure; Power of Equity as to. 
 
 f. Insolvency; Right and Preferences 
 
 of Creditors. 
 
 1. In General. 
 
 2. Preferences. 
 VII. Foreign Corporations. 
 
 a. In General. 
 
 b. Doing Business Within State. 
 
 c. Actions by or against. 
 
 d. Winding up ; Insolvency. 
 VIII. Editorial Notes. 
 
 Acknowledgment of Deed or Mortgage to, 
 
 see Acknowledgment, 1, 5, 6. 
 Agricultural Societies as, see Agricultural 
 
 Societies. 
 
 Bonds of, see Bonds, III. a. 
 By-laws of, see By-Laws, and also infra, 
 
 VIII. 9. 
 Charitable Gift to Corporation to be Created. 
 
 see Charities, 63, and also infra, VIII. 
 
 I- 
 
 Perversion of Charitable Fund by Distribu- 
 tion Among Members, see Charities, 77.
 
 CORPORATIONS, 1. a. 
 
 74 n 
 
 Interstate Business of, see Commerce, and 
 also infra, VIII. 53. 
 
 Self-Executing Provisions as to, see Consti- 
 tutional Law, 85-89. 
 
 Equal Protection and Privileges as to, see 
 Constitutional Law, II. a, 3. 
 
 Class Legislation as to Employees of, see 
 Constitutional Law, II. a, 5, c. 
 
 As to Freedom of Contract with Employees, 
 see Constitutional Law, II. b, 4, 6. 
 
 Police Regulation of Matters Pertaining to 
 Employees, see Constitutional Law, IT. 
 c, 4, c. 
 
 Impairment of Obligation as to. see Con- 
 stitutional Law. II. g, 1, a (2). 
 
 As Person, see Constitutional Law, 392, 638, 
 639, and also infra, VIII. -1. 
 
 Jurisdiction of Generally, see -Courts, I. b, 
 4; I. d; III.; and also infra', VIII. 1, 
 3. 
 
 Citizenship of, for Jurisdictional Purposes, 
 see Courts, 344e, and also infra. VIII. 
 2. 
 
 Sequestration of Property of, in Federal 
 Court, see Creditors' Bill, 11. 
 
 Bill of Discovery Against, see Discovery and 
 Inspection, 10, 12. 
 
 Right to Relief in Equity, see Equity, 98- 
 101, and also infra, VIII. 3. 
 
 Estoppel as to Corporate Existence or Pow- 
 ers, see Estoppel, III. c, and also infra, 
 VIII. 1. 
 
 Judicial Notice as to, see Evidence, 100. 
 
 Presumption and Burden of Proof as to, see 
 Evidence, II. f. 
 
 Secondary Evidence of Books and Papers of, 
 see Evidence, 786, 787. 
 
 Records and Papers of. as Evidence, see Evi- 
 dence, IV. 1. 
 
 Property of, as Assets for Administration, 
 see Executors and Administrators, 100. 
 
 Garnishment of Agent or Officer, see Gar- 
 nishment, 7, 15. 
 
 Habeas Corpus to, see Habeas Corpus, 45. 
 
 Injunction as to Corporate Matters, see In- 
 junction, I. g. 
 
 Restricting Insurance Business to, see In- 
 surance, 4. 
 
 Conelusiveness Against Stockholder of Judg- 
 ment Affecting Corporation, see Judg- 
 ment, 285-293, 359. 
 
 Limitation of Action against, see Limitation 
 of Actions, 67-69. 
 
 Libel of Employee of, see Libel and Slan- 
 der, 109-112. 
 
 Action by, for Slander of Title, see Libel 
 and Slander, 172. 
 
 Mandamus to. see Mandamus, I. e, and also 
 infra, VIII. 3. 
 
 Mortgage by, see .Mortgage, especially I. f. 
 
 Delegation to, of Power to Appoint Officers, 
 see Officers, 54-56. 
 
 As Parties in Action, see Parties. II. a, 5. 
 
 Pleadin^ as to. see Plearlincr. 4, 94. 95. 109, 
 206, 207, 429, 432. 522-52f>b. 
 
 Donation of Public Funds to, see Public 
 Moneys, 32, 42, 48. 
 
 Quo Warranto to. see Quo Warranto. II. a. 
 
 Receiver for, see Receivers. 
 
 Removal of Causes by, or against, see Re- 
 moval of Causes, 11-17. 
 
 Owned by State, see State Institutions. 
 
 Title of Statute as to, see Statutes, 187 
 201, 249. 
 
 Special Legislation as to. see Statutes, 302- 
 314. 
 
 Power of State or Territory to Tax Federal 
 Corporations, see Taxes, 1. b. 
 
 Place where Taxable, see Taxes, I. e, 2; II. 
 
 Liability to Taxation, see Taxes, I. e, 3, 4. 
 
 Exemption of. from Taxation, see Taxes, 1. 
 f, 2, 3. 
 
 Assessment and Enforcement of Tax, sec 
 Taxes, III. 
 
 Question for Jury as to, see Trial, 175 
 177. 
 
 As Trustee, see Trusts, 109-111. 
 
 Venue of Action against Foreign Corpora- 
 tion, see Venue, 13-16. 
 
 Service on, see Writ and Process, II. b, TV. ? 
 56. 
 
 Various Particular Associations or Corpo- 
 rations, see Associations; Banks; Build- 
 ing and Loan Associations; Charitable 
 Institutions; Counties, 24; Insurance; 
 Joint Stock Company; Municipal Corpo- 
 rations; Railroads; Religious Societies; 
 Stock Yards Company; Street Rail- 
 ways; Syndicate; Telegraphs; Tele- 
 phones: Tolls and Toll Roads; Waters, 
 
 in. 
 
 I. Nature; Creation; Franchises, 
 a. In General. 
 
 Delegation of Power to Create, see Benevo- 
 lent Societies, 8. 
 
 Construction of Constitution as to Continu- 
 ing, see Constitutional Law, 46. 
 
 Validity of Contract against Organizing, see 
 Contracts, 477. 
 
 Presumption as to Incorporation of Bank, 
 see Evidence, 402. 
 
 Evidence as to Corporate Existence, see Evi- 
 dence, 2179, 2358. 
 
 Right of Action for Invasion of Franchise, 
 see Parties, 8. 
 
 Sufficiency of Averment of Incorporation, 
 see Pleading, 207. 
 
 Denial of Corporate Existence, see Pleading. 
 523. 
 
 Incorporation of Religious Society, see Re- 
 ligious Societies, 1. 
 
 Title of Statute as to, see Statutes, 188- 
 191, 249. 
 
 Question for Jury as to, see Trial, 175. 
 
 Power of Trustees to Incorporate Estate, see 
 Trusts, 133. 
 
 See also infra, 161, 178; Trial, 1. 
 
 For Editorial Notes, see infra, VIII. 1, 2. 
 
 1. A corporation is an artificial person 
 created by law as the representative of those 
 persons, natural or artificial, who contribute 
 to or become holders of shares in the prop- 
 erty intrusted to it for a common purpose. 
 Re Gibb's Estate, 157 Pa. 59, 27 Atl. 383, 
 
 22:276
 
 744 
 
 CORPORATIONS, I. b. 
 
 la. The term "person," used in law, in- 
 cludes corporations, unless there is some- 
 thing in the law showing the legislative in- 
 tention to restrict its application. Craf- 
 ford v. Warwick County Supers. 87 Va. 110. 
 12 S. E. 147.. 10: 129 
 
 2. A de jure corporatic\n is one whose 
 right to exercise a corporate function would 
 prove invulnerable if assailed by the state 
 iii quo warranto proceedings. Capps v. 
 Hastings Prospecting Co. 40 Neb. 470, 58 
 X. W. 956, 24: 259 
 
 3. The existence de jure of a corporation 
 may be challenged only by public authority 
 in the manner provided by law. Andrews v. 
 National Foundry <te P. Works, 22 C. C. A. 
 110. 46 U. S. App. 281, 76 Fed. 166, 36: 139 
 
 4. A private corporation is not made a 
 public institution by the fact that it is sub- 
 ject to visitation and inspection by public 
 officials. Wisconsin Keeley Institute Co. v. 
 Milwaukee County, 95 Wis. 153, 70 N. W. 
 68. 36: 55 
 
 5. A corporation is an inhabitant of the 
 state that created it, or of the state where 
 it keeps its records and principal office. 
 Connor v. Vicksburg & M. R. Co. 36 Fed. 273, 
 
 1: 331 
 
 6. A corporation exists only in contempla- 
 tion of law and by force of law, and can 
 have no legal existence beyond the state or 
 sovereignty by which it is created. Rece v. 
 Newport News & M. V. Co. 32 W. Va. 164, 
 9 S. E. 212, 3: 572 
 
 7. The legal fiction that a corporation is 
 a legal entity may be disregarded when 
 urged to an intent and purpose not within 
 its reason and policy. State ex rel. Watson 
 v. Standard Oil Co.' 49 Ohio St. 137, 30 N. 
 E. 279, 15: 145 
 
 8. One person cannot conduct his ordinary 
 business in the name of a corporation, under 
 Ky. Gen. Stat. chap. 56, which provides that 
 "any number of persons may associate them- 
 selves together and become incorporated." 
 Louisville Bkg. Co. v. Eisenman, 94 Ky. 83. 
 21 S. W. 531, 19: 684 
 
 9. A charter restriction of the right to 
 membership in a corporation to persons of 
 a certain nationality is not invalid. nnlf* 
 prohibited by statute. Blien v. Rand, 77 
 Minn. 110, 79 N. W. 606, 4(J: 6iti 
 
 10. That a corporation had no charter ex- 
 istence on the day of the grant to it of a 
 franchise to light the streets of a city does 
 not render the franchise inoperative, where 
 it afterwards obtained a charter and ac- 
 cepted the grant. Clarksburg Electric Light 
 Co. v. Clarksburg, 47 W. Va. 739. 35 S. E. 
 994. 50: 142 
 
 11. The subjection of what purports to be 
 a corporation, but has no legal existence as 
 such because of the nonpayment of the bo- 
 nus tax imposed by Md. act 1890, chap. 536. 
 to a suit by the state for the recovery of 
 the tax by Md. Code. 88h. does not. by im- 
 plication, give it a legal existence for all 
 purposes, including a capacity to sue. as it 
 is expressly denied the exercise of any cor- 
 porate powers until the bonus is paid, by 
 S8f. Maryland Tube & I. Works v. WW 
 End Improv. Co. 87 Md. 207. 30 Atl. 620. 
 
 39: 810 
 
 Constitutional control and regulation. 
 See also infra, 90; Statutes, 14. 
 
 12. A water company entering upon the 
 business of furnishing a public water supply 
 under a constitution giving a tribunal the 
 right to fix water rates is bound to submit 
 to the conditions thereby imposed. San 
 Diego Water Co. v. San Diego, 118 Cal. 556, 
 50 Pac. 633, 38: 460 
 
 b. Corporate Purposes. 
 
 Special Legislation as to, see Statutes, 309. 
 See also infra, 110, 127, 140, 141. 
 
 13. No corporation can be organized, under 
 Minn. Gen. Laws 1873, chap. 11 (Minn. Gen. 
 Stat. 1878, chap. 34, 120-143), except for 
 an exclusively manufacturing or mechanical 
 business. If the purpose for which a corpo- 
 ration is formed, as stated in its articles of 
 association, is to carry on a manufacturing 
 or mechanical business, and also some other 
 and distinct kind of business not properly 
 incidental to or connected with the former, it 
 will belong to the class of corporations au- 
 thorized to be formed under Minn. Gen. 
 Stat. tit. 2, chap. 34, 109-119, although 
 the articles recite that it is formed under 
 the act of 1873. State ex rel. Clapp v. 
 Minnesota Thresher Mfg. Co. 40 Minn. 213, 
 41 N. W. 1020, 3: 510 
 
 14. A corporation may be formed for the 
 purpose of buying, owning, improving, sell- 
 ing, and leasing lands, tenements, heredit- 
 aments, real, personal, and mixed estates, 
 and property, including the constructing and 
 leasing of a building, under an act author- 
 izing corporations for trade or for carrying 
 on any lawful mechanical, -manufacturing, 
 or agricultural business. Finnegan v. 
 Knights of Labor Bldg. Asso. 52 Minn. 239, 
 53 N. W. 1150, 18: 778 
 
 15. A corporation organized for the drain- 
 age of a large tract of land is not private, 
 but a political subdivision of the state. 
 
 j Mound City Land & S. Co. v. Miller, 170 
 I Mo. 240, 70 S. W. 721, 60: 190 
 
 16. A charter may, in the exercise of the 
 sound discretion of the court, be refused to 
 a religious society which is organized to 
 promulgate not only religious views, but a 
 method of treating disease by prayer, based 
 upon the theory that it has no actual ex- 
 istence, which theory is opposed to the gen- 
 eral policy of the state as shown by the 
 quarantine laws and those prescribing the 
 qualification of persons who shall be licensed 
 to practise medicine. Re First Church of 
 Christ, Scientist. 205 Pa. 543. 55 Atl. 536. 
 
 63: 411 
 
 17. Conditions and limitations attaching 
 by law to the exercise of any given corpo- 
 rate purposes cannot be destroyed or sub- 
 verted by combining such purposes with 
 some other, under one corporation. Inter- 
 national Fraternal Alliance v. State, 86 Md. 
 
 i 550. 39 Atl. 512, 40: 187 
 
 18. Where a corporation is organized un- 
 | der a general statute, a provision in the 
 i declaration of its corporate purpose, the 
 I necessary effect of which is the creation of 
 
 a monopoly, is void as against public policy.
 
 CORPORATIONS, I. c, d. 
 
 745 
 
 People ex rel. Peabody v. Chicago Gas Trust 
 Co. 130 111. 268, 22 N. E. 789, 8: 497 
 
 19. The word "unlawful," as applied to 
 the purposes for which corporations are 
 formed, is not used exclusively in the sense 
 of inalitin in -Sf <>r "/"lum /irolt-ilil \un. but is 
 also used to designate such acts, powers, 
 and contracts as are ultra vires. Id. 
 
 20. A corporation organized with the ob- 
 ject of purchasing and holding all the shares 
 of the capital stock of any gas company in 
 the city or state is not a corporation or- 
 ganized for a lawful purpose, within the 
 meaning of the Illinois general incorporation 
 act (111. Rev. Stat. chap. 32, 1), providing 
 that corporations may be formed by any 
 lawful purpose, within the exception stated 
 therein. , Id. 
 Purpose declared by corporation. * 
 
 21. Proceedings to compel persons to pay 
 demands of members of a plumber's associa- 
 tion by threatening to expose their alleged 
 .delinquencies and inform certain dealers 
 that they owed overdue, accounts, and there- 
 by prevent them from obtaining credit in 
 the business which they are carrying on, 
 arc not germane tn tlic purpose declared by 
 a plumbers' supply association "of promot- 
 ing pleasant relations among its members," 
 or "of establishing and maintaining a place 
 for social meetings," or of "discussing, arbi- 
 trating, and settling all matters pertaining 
 to the prosperity and promotion of the job- 
 bing plumbers' supply business." Hartnett 
 v. Plumbers' Supply' Asso. 169 Mass. 229, 
 47 N. E. 1002, 38: 194 
 
 c. De Facto Corporation. 
 
 Liability of Stockholders in, see infra, 537- 
 545. 
 
 Religious Corporation, see Religious Socie- 
 ties, 3. 
 
 See also infra, 68, 79, 156, 375, 722, 837. 
 
 For Editorial Notes, see infra. VIII. $ 1. 
 
 22. A corporation de facto is an apparent 
 corporate organization, asserted to be a cor- 
 poration by its members, and actually act- 
 ing as such, but lacking the creative fiat of 
 the law. Re Gibbs's Estate. 157 Pa. W. -17 
 Atl. 383, 22: 276 
 
 23. There can be no de facto corporation 
 in the absence of any legislative provision 
 for the organization of de jure corporations. 
 Guthrie v. Territorv ex rel. Losey, 1 Okla. 
 188. 31 Pac. 190. 21: 841 
 
 24. The dc facto character of a corpora- 
 tion will not be varied by the fact that it 
 was insolvent from the beginning. Lamkin 
 v. Baldwin & L. Mfg. Co. 72 Conn. 57, 43 
 Atl. 593, 1042, 44: 786 
 
 25. A substantial compliance with the law 
 is not necessary to constitute a body which 
 attempts to comply with it a de facto corpo- 
 ration. Finnegan v. Knights of Labor Bldg. 
 Asso. 52 Minn. 239, 53 N. W. 115 - 18: 7 7S 
 
 26. A de facto corporation exists where 
 there is a law authorizing the creation of 
 corporations, an attempt to organize a cor- 
 poration pursuant to it, and user as a cor- 
 poration under such attempted organization. 
 
 Id. 
 
 27. Railroad companies which might be 
 incorporated under general laws by observ- 
 ing about the same forms and requirements 
 which they do observe in attempting to be- 
 come incorporated under special charter are 
 de facto corporations, if the special charters 
 are unconstitutional. McTighe v. Macon 
 Const. Co, 04 <!a. 306, 21 S. E. 701, 32: 208 
 
 28. Neither a de jure nor a de facto cor- 
 poration can exist where the articles are not 
 filed in the office of the secretary of state 
 and the fee therefor paid as required by 
 Colo. Sess. Laws 1887, p. 406, which express- 
 ly prohibits the exercise of any corporate 
 powers until this is done. Jones v. Aspen 
 Hardware Co. 21 Colo. 263. 40 Pac. 457, 
 
 29: 143 
 
 29. Failure to file the articles of incorpo- 
 ration, as required by statute in order to au- 
 thorize a company to commence business, 
 prevents it 'from becoming a corporation 
 de jure. Capps v. Hastings Prospecting Co. 
 40 Neb. 470, 58 N. W. 956, 24: 259. 
 
 30. A corporation is not created by merely 
 making and filing articles of incorporation 
 in the office of the secretary of state, where 
 the stock has not been subscribed and paid 
 in or directors chosen. State ex rel. At- 
 torney General v. Fidelity & C. Ins. Co. 49 
 Ohio St. 440, 31 N. E. 658, 16: 611 
 
 31. There can be no corporation de facto 
 where there is no law authorizing associated 
 parties to file articles of association, or to 
 become incorporated. Eaton v. Walker, 76 
 Mich. 579, 43 N. W. 638, 6: 102 
 
 32. Carrying on business in a corporate 
 name is not evidence of user which can be 
 considered in aid of legal corporate exist- 
 ence, where there is no law authorizing the 
 members to file tneir articles of incorpora- 
 tion, or to become incorporated. Id. 
 
 33. In an action against a county by an 
 industrial school for girls to compel pay- 
 ment for the support of girls committed to 
 it, the fact that plaintiff is a de facto cor- 
 poration will not estop defendant from 
 showing that it has no legal existence. Cook 
 County v. Chicago Industrial School tor 
 Girls, 125 111. 540, 18 N. E. 183, 197, 1: 437 
 
 d. Names. 
 
 Of Benevolent Societies, see Benevolent So- 
 cieties, 3, 4. 
 
 Consideration for Agreement Not to use, see 
 Compromise and Settlement, 11. 
 
 Jurisdiction of Suit to Enjoin Use of, see 
 Courts, 429. 
 
 Injunction against Use of, see Injunction, 
 436-439. 
 
 Limitation of Actio'n for Exclusive Right to 
 V:-c of, see Limitation of Actions. 224. 
 
 Joinder of Corporations to Prevent Decep- 
 tive Use of, see Parties, 116. 
 
 Right to Use of Trade Name, see Trade 
 Name, 18-20. 
 
 Setting Forth in Summons, see \Vrit and 
 Process, 5. 
 
 See also supra. 32; infra, 81, 117, 118, 497; 
 .Mandamus, 218. 
 
 34. The right of a corporation to the ex- 
 clusive use of a name as against another or-
 
 746 
 
 CORPORATIONS, I. d. 
 
 ganization using the same name does not 
 follow from the fact that the latter is doing 
 an unlawful business. Grand Lodsre A. O. 
 U. W. v. Graham, 96 Iowa, 592, 65 N. W. 
 837, 31: 133 
 
 35. The certificate of the auditor as to 
 the right of a corporation to a name is not 
 binding upon another body claiming the 
 right to the name. Id. 
 
 36. The absence of fraudulent intent Is 
 no defense to a corporation in u suit for 
 wrongfully assuming and using a name be- 
 longing to another. Armington v. Palmer, 
 21 R. I. 109, 42 Atl. 308, 43: 95 
 
 37. The right of a corporation to use its 
 name, conferred upon it by the act of in- 
 corporation, being as much a part of its 
 franchise as any other privilege granted, 
 cannot be annulled at the suit of a private 
 person, but can be taken away only by an- 
 other act of the legislature, or at the suit 
 of the state. Paulino v. Portuguese Benefi- 
 cial Asso. 18 R. I. 165, 26 Atl. 36, 20: 272 
 
 38. A license to form a corporation under 
 a certain name, issued by the secretary of 
 state, gives such corporation the right to 
 that name as against an already existing 
 corporation havin? a different name, which 
 has passed a resolution and given notices 
 for a meeting to vote on a change of its 
 name to that selected by the proposeu cor- 
 poration, at least where the proposers did 
 not know at the time of their license of the 
 proposed change. Illinois Watch Case Co. v. 
 Pearson. 140 111. 423, 31 N. E. 440, 16:429 
 
 39. The secretary of state cannot revoke 
 a license to form a corporation under a cer- 
 tain name, merely because another corpora- 
 tion before the license was issued had called 
 a meeting to vote on the question of adopt- 
 ing such name instead of that which it then 
 had. Id. 
 
 40. No suit will lie in favor of one cor- 
 poration, organized under Mass, act 1888, 
 chap. 429, to enjoin either the organization 
 of another corporation with a name so sim- 
 ilar to the first as to be within the apparent 
 prohibition of 2 of that act. or the use of 
 such name, since 7 makes it the duty of 
 the commissioner of insurance to determine 
 whether the names conflict, before the cei- 
 tificate, which is made conclusive evidence 
 of the existence of the corporation, is is- 
 sued; nor will the suit lie to protect the 
 first name as a trade name, since it was 
 taken subject to whatever interference 
 might be permitted by the statute. Ameri- 
 can Order of S. C. v. Merrill, 151 Mass. 008, 
 24 N. E. 918, 8: 320 
 
 41. A corporation which still has assets 
 consisting of accounts and bills and notes 
 receivable, which were exempted from a sale 
 of the remainder of the corporate property, 
 can. without showing actual damage, re- 
 strain the use of its name by another cor- 
 poration which has purchased the plant and 
 is continuing the business of the former. 
 Armington v. Palmer, 21 R. I. 109, 42 Atl. 
 308, 43: 95 
 Trarsfer of right to use. 
 
 Estopnel as to. see Estoppel. 116. 
 Transfer to Corporation of Right to Use 
 Partnership Name, see Good Will, 3. 
 
 42. A purchase of the plant, machinery, 
 stock, and such visible property of a manu- 
 facturing corporation, although it carries the 
 right to use the name of the articles manu- 
 factured, does not give the purchaser the 
 right to take the name of the corporation. 
 Armington v. Palmer, 21 R. I. 109, 42 Atl. 
 308, 43: 905 
 
 43. A vote of a corporation which is pure- 
 ly voluntary and without consideration, to 
 give the use of the corporate name to a new 
 corporation which has previously purchased 
 the plant of the former, is ineffectual as 
 against a minority who do not consent. Id. 
 Right of seceding body as to. 
 
 44. The right to use the name "Grand 
 Lodge of the Ancient Order of United Work- 
 men of Iowa" cannot be claimed by a seced- 
 ing body merely because it has become incor- 
 porated, to the exclusion of the body from 
 which it seceded, which previously had used 
 the name and continued to do so without 
 incorporation. Grand Lodge A. O. U. W. v. 
 Graham, 96 Iowa, 592, 65 N. W. 837, 31 : 133 
 Right of foreign corporation as to. 
 
 See also Insurance, 43. 
 
 45. The business of a foreign corporation 
 must be the same as that of a domestic cor- 
 
 j poration, or so nearly like it that it might 
 operate to injure the latter, in order to bring 
 it within the Massachusetts statute against 
 doing business under a name like that of 
 a domestic company. International Trust 
 Co. v. International Loan & T. Co. 153 Mass. 
 271, 26 N. E. 693, 10: 758 
 
 46. The name under which a foreign cor- 
 poration actually does business, and not its 
 true corporate name, is to be considered in 
 determining whether it violates the Massa- 
 chusetts act against doing business under a 
 name like that of a domestic corporation. 
 
 Id. 
 
 47. The "International Loan & Trust 
 Company" is a name so nearly like that of 
 the "International Trust Company" as to 
 mislead the public, and therefore cannot be 
 used, under the Massachusetts statutes, by 
 a foreign corporation, when the other name 
 is already in use by a domestic corporation. 
 But the addition of the words "Kansas City" 
 or "Kansas City, Missouri," to the name of 
 the foreign corporation, makes the use of 
 it lawful. Id. 
 
 48. The words '"mortgage loan and invest- 
 ment business," in Mass. Acts 1889, chap. 
 452, prohibiting a foreign corporation from 
 carrying on such business under a name like 
 that of a Massachusetts corporation, refer 
 to the mortgage business as one thing and 
 the loan and investment business as another. 
 
 Id. 
 
 49. Buyiner and selling investment secu- 
 rities generally, but chiefly its own debenture 
 bonds, and the stocks and securities of oth- 
 er companies, and mercantile paper which a 
 foreign corporation has discounted at its 
 principal place of business and forwarded 
 for rediscount in Massachusetts, and receiv- 
 ing money on deposit for which certificates 
 of deposit are issued, and also receiving 
 money which it invests for customers, fall 
 within the ''linking" or "loan and invest- 
 ment" business, which a foreign corporation
 
 CORPORATIONS, II. 
 
 is prohibited to engage in under a name like 
 that of a domestic corporation, under Mass. 
 Acts 1889, chap. 452. Id. 
 
 II. Consolidation; Reorganization; Transfer 
 of Franchises. 
 
 Illegal Consolidations in Restraint of Trade 
 and Commerce, see Conspiracy, 174-177. 
 
 Consolidation of Religious Societies, see Re- 
 ligious Societies, 25. 
 
 Consolidation of Street Railways, see Street 
 Railways, 62-65. 
 
 Allegations as to Consolidation, see Pleading, 
 526b. 
 
 Effect of Adopting Code, on Statute Regu- 
 lating, see Statutes, 574. * 
 
 Right of Successor to Tax Exemption, see 
 Taxes, 249. 
 
 Lapse of Legacy by Consolidation, see Wills, 
 440, 441. 
 
 See n'so infra, 209, 210, 500, 812, 813. 
 
 For Editorial Notes, see infra, VIII. 3 2, 4- 
 6. 
 
 50. The phrase "such terms as they may 
 agree upon," in a statute authorizing the 
 consolidation of railroad companies, relates 
 to the mere administrative details attend- 
 ing consolidation, and conveys no substan : 
 tive powers or rights. Adams v. Yazoo & 
 M. V. R. Co. 77 Miss. 194, 24 So. 200, 317, 28 
 So. 956, 60: 33 
 Authority to consolidate. 
 
 See also infra, 821, 822. 
 
 For Editorial Notes, see infra, VIII. 5. 
 
 51. Whether or not the legislature can 
 authorize the consolidation of a corporation, 
 under the general power reserved to alter or 
 annul the charter, it cannot do so when the 
 rights of stockholders will thereby be af- 
 fected by increasing their liability as such, 
 or diminishing the value of their stock, un- 
 less the consolidation is made by the unan- 
 imous consent of the stockholders. Botts 
 v. Simpsonville & B. C. Turnp. Co. 88 Ky. 
 54, 10 S. W. 134, 2: 594' 
 
 52. The clause in the charter of a turn- 
 pike company, that it, "in matters not ex- 
 pressed in the charter, shall have the rights 
 and privileges granted to the most favored 
 turnpike companies," will not authorize a 
 consolidation against the consent of the 
 stockholder. Id. 
 Effect of consolidation. 
 
 Jurisdiction Over Consolidated Corporation, 
 
 see Courts, 59. 
 
 Of Insurance Companies, see Insurance,, 1336. 
 Effect of, on Tax Exemptions, see Taxes, 
 
 262-266. 
 For Editorial Notes, see infra, VIII. 2, 4, 
 
 6. 
 
 53. The consolidation of corporations is 
 a merger, a union, or amalgamation, by 
 which the stock of the two is made one, their 
 property and franchises combined into one, 
 their powers become the powers of one, their 
 names merged into one, and the identity of 
 the TWO practically, if not actually, runs 
 into one. State ex rel. Nolan v. Montana 
 R. Co. 21 Mont. 221, 53 Pac. 623, 45: 271 
 
 54. A consolidation of the stock of cor- 
 
 porations results uniformly and necessarily 
 in the creation of a new corporation. Adams 
 v. Yazoo & M. V. R. Co. 77 Miss. 194, 24 
 So. 200, 317, 28 So. 956, 60: 33 
 
 55. A consolidation which results in the 
 formation of a new company, and not mere- 
 ly a merger of the constituent companies, 
 retaining their separate existences, is au- 
 thorized by statutes providing for the con- 
 solidation of companies under the name of 
 one of them, without saying it shall be un- 
 der its charter, and giving to the new com- 
 pany all the benefits, rights, franchises, and 
 property of the original companies. Id. 
 Liability after consolidation. 
 
 56. A consolidated railroad company may 
 be held responsible for the acts and neglects 
 of its constituent members as done by it 
 as a whole. Southern R. Co. v. Bouknight, 
 25 U. S. App. 415, 17 C. C. A. 181, 70 Fed. 
 442, 30: 823 
 
 57. A railroad company formed by cpn- 
 solidation of others, one of which was or- 
 ganized by purchasers of a railroad on fore- 
 closure, is bound by the obligation of the 
 original company to pay for land which it 
 appropriated under a parol license and 
 agreement to pay therefor. Chicago & I. 
 Coal R. Co. v. Hall, 35 Ind. 91, 34 N. E. 704, 
 
 23: 231 
 
 58. A consolidated corporation which suc- 
 ceeds to all the property and rights of the 
 corporations merged in it, under statutory 
 provisions which operate practically to dis- 
 solve the old corporations into the new, but 
 make no express declarations that it shall 
 assume or become liable for the debts and 
 obligations of the original companies, is lia- 
 ble for all their valid debts and liabilities. 
 Louisville, N. A. & C. R. Co. v. Boney, 117 
 Ind. 501, 20 N. E. 432, 3: 435 
 Reorganization. 
 
 Liability of Stockholders, see infra, 594-599, 
 622-624. 
 
 Money Judgment against Corporation Buy- 
 ing Property on, see Judgment, 45. 
 
 Purchase by Trustee for Bondholders for 
 Purpose of, see Trusts, 164, 165. 
 
 See also infra, 738; Trusts, 208, 210, 211. 
 
 59. A domestic corporation cannot be re- 
 organized under the laws of another state 
 without process of lawful dissolution. Peo- 
 ple v. Ballard, 134 N. Y. 269, 32 N. a. 54, 
 
 17: 737 
 
 Right to transfer franchise. 
 Franchise of Telephone Company, see Tele- 
 phones, 7. 
 See also infra, 688. 
 
 60. Cal. Const, art. 4, 31, providing that 
 corporations shall not be created by special 
 act, does not prohibit the assignment of a 
 franchise to a legally organized corporation 
 by persons having the lawful right to trans- 
 fer the same. People ex rel. Attorney Gen- 
 eral v. Stanford, 77 Cal. 360, 19 Pac. 693, 
 
 2: 92 
 
 61. A corporation cannot lease or dispose 
 of any franchise needful in the performance 
 of its obligations to the state, without leg- 
 islative consent. Stockton v. Central R. Co. 
 (N. J. Ch.) 50 N. J. Eq. 52, 24 Atl. 9f>4. 
 
 17: 97
 
 748 
 
 CORPORATIONS. III. 
 
 62. So long as any stockholder does not 
 consent thereto, a corporation cannot sell 
 all its property to a foreign corporation or- 
 ganized through its procurement, with a ma- 
 jority of nonresident trustees, for the ex- 
 press purposes of stepping into its shoes, 
 taking all its assets, and carrying on busi- 
 ness. People v. Ballard, 134 N. Y. 269, 32 N. 
 E. 54, 17: 737 
 Liability of transferee. 
 
 Evidence as to True Character of Transac- 
 tion, see Evidence, 2180. 
 Creditor's Right of Action, see Parties, 56. 
 For Editorial Notes, see infra, VIII. 6. 
 
 63. To render a new corporation liable at 
 common law for the debts of an established 
 corporation or firm to whose business and 
 property it has succeeded, it must, in the ab- 
 sence of a special agreement, appear that 
 the transaction was fraudulent as to cred- 
 itors of the old corporation, or that the cir- 
 cumstances attending the creation ol the 
 new corporation and its succession to the 
 business and property of the old corpora- 
 tion are of such a character as to warrant a 
 finding that it is a mere continuation of the 
 former. Austin v. Tecumseh Nat. Bank, 49 
 Neb. 412, 68 N. W. 628.. 35: 444 
 
 64. A street railway corporation which 
 purchases the property and franchises of an- 
 other under statutory authority, when no 
 consolidation is intended or sought to be ef- 
 fected, is not charged with the liabilities of 
 a predecessor in the franchise. Capital 
 Traction Co. v. Offutt, 17 App. D. C. 292, 
 
 53: 390 
 
 65. A covenant by a corporation purchas- 
 ing the property and franchise of another, 
 to "assume, discharge, and perform all the 
 obligations" of the prior company, "and all 
 its liabilities of what kind soever," does not 
 make the purchaser directly responsible to 
 a third party for the liability of the older 
 company. Id. 
 
 66. The insertion in a deed conveying the 
 assets of a partnership to a corporation or- 
 ganized to continue the business and which 
 has agreed to pay partnership debts to a cer- 
 tain amount, of a clause obligating it to pay 
 "all the liabilities" of the partnership, will 
 not operate to extend its liability beyond 
 the amount specified, unless the insertion of 
 such clause was authorized or ratified by the 
 corporation. Lamkin v. Baldwin & L. Mfg. 
 Co. 72 Conn. 57, 43 Atl. 593, 1042, 44: 786 
 
 67. To entitle a creditor of a partnership 
 to payment out of assets of a corporation 
 which was organized to continue the part- 
 nership business and received a conveyance 
 of the partnership assets upon undertaking 
 to pay a specified amount of the partnership 
 liabilities, which proves to be less than all, 
 he must show that his claim was among 
 those estimated in fixing the amount so 
 specified. Td. 
 
 68. That an organization never became 
 more than a de facia corporation will not 
 relieve it from liability for the debts of a 
 partnership whose business it was organized 
 to continue, and whose assets it received up- 
 on undertaking to pay its liabilities. Td. 
 
 III. Charters; Articles of Incorporation. 
 
 Curing Defects in, see Constitutional Law, 
 125, 126. 
 
 Impairment of Obligation as to, see Consti- 
 tutional Law, II. g, 1, a, (2). 
 
 Pleading as to, see Pleading, 95, 613. 
 
 Charter of Stockyards Company, see Stock- 
 yards Company, 2. 
 
 See also supra, 9, 10, 27; infra, 90, 91, 98, 
 101, 102, 257, 309, 310, 691, 692, 734, 834, 
 852. 
 
 For Editorial Notes, see infra, VIII. 7, 8. 
 
 Construction of. 
 
 69. The charter of a corporation is to be 
 strictly construed; nothing is to be taken as 
 ceded but what is given in unmistakable 
 terms, or by an implication equally clear. 
 Bockland Water Co. v. Camden & R. Water 
 Co. 80 Me. 544, 15 Atl. 785, 1:388 
 Syracuse Water Co. v. Syracuse, 116 N. 
 Y. 167, 22 N. E. 381, 5:546 
 
 70. The mere fact of the insertion, in cer- 
 tain corporate charters, of a prohibition to 
 interfere with the navigation of streams, is 
 no ground for construing a cnarter which 
 does not contain such prohibition as author- 
 izing such interference where it would be 
 advantageous to the corporation. Connecti- 
 cut River Lumber Co. v. Olco'tt Falls Co. 65 
 N. H. 290, 21 Atl. 1090, 13: 826 
 
 71. The charter of a corporation, giving it 
 the right to raise the level of a pond owned 
 by the state as public property held in trust 
 for public uses, and use the water as it 
 flows from it, but containing no necessary 
 implication of a grant of the exclusive use 
 of the waters, whether construed as a rev- 
 ocable license or a grant of vested right, 
 is subject to the paramount power of the 
 state to use the water for public purposes 
 for which it was held in trust. Watuppa 
 Reservoir Co. v. Fall River, 147 Mass. 548, 
 18 N. E. 465, 1: 466 
 Amendment or repeal. 
 
 Provision for Issuing Family Mileage Tick- 
 ets as Amendment, see Carriers, 1079. 
 
 Vested Right of Amendment, see Constitu- 
 tional Law, 139. 
 
 Special Legislation as to, see Statutes, 306. 
 
 See also infra, 720, 816. 
 
 72. The reserved power to amend, alter, 
 or repeal the charter of a corporation in- 
 cludes the power to change the terms of of- 
 fice of the directors, and provide for a repre- 
 sentation in the board of directors of a mi- 
 nority of the stockholders. Maynard ex 
 rel. Dusenbury v. Looker, 111 Mich. 498, 69 
 X. W. 929, 56: 947 
 
 73. A general statute permitting the al- 
 teration or repeal of any charter becomes a 
 part of a charter granted while it is in force, 
 so that the right to repeal the latter will 
 not lie affected by the repeal of the general 
 law. Watson Seminary v. Pike County Ct. 
 149 Mo. 57, 50 S. W. 880, 45: 675 
 
 74. The reservation of legislative power to 
 amend or repeal a charter, whether con- 
 tained in the charter or in the state Con- 
 stitution or in general laws, is not repug- 
 nant to the grant, but is a constitutional 
 limitation of the powers granted. State v.
 
 CORPORATIONS, IV. a. 
 
 749 
 
 Brown & S. Mfg. Co. 18 R. T. 16, 25 Atl. 
 246, 17: 856 
 
 75. A statute providing for weekly pay- 
 ment of the employees of all corporations 
 other than religious, literary, or charitable, 
 is % to be regarded as an amendment of the 
 acts of incorporation of all such corpora- 
 tions, under the general reservation of pow- 
 er to amend or repeal. Id. 
 
 76. An amendment to an act providing for 
 the organization of a certain class of corpo- 
 rations, which attempts to confer on them 
 a power which they cannot constitutionally 
 exercise, cannot be upheld as to other corpo- 
 rations incidentally mentioned therein, but 
 not alluded to in, or subjected by the amend- 
 ment to, any of the provisions ef the origi- 
 nal act. Portage Twp. Bd. of Health v. Van 
 Hoesen, 87 Mich. 533, 40 N. W. 894, 14: 114 
 
 77. The twenty years' limitation on the 
 existence of a corporation, under Mo. Gen. 
 Stat. 1815, chap. 34, 1, providing that every 
 corporation may have succession for the ''pe- 
 riod limited in its charter, and, when no 
 period, is limited, for twenty years," even if 
 it applies to any purely charitable incorpo- 
 rated association, as to which there is 
 doubt, does not apply to one whose charter 
 reserves the right to amend or repeal it "at 
 any time hereafter," and shows a determina- 
 tion on the part of the legislature to make 
 it perfect and complete without reference to 
 the general law. State ex rel. Clover v. La- 
 dies of the Sacred Heart, 99 Mo. 533, 12 S. 
 W. 293, 6: 84 
 Articles of incorporation. 
 
 See also supra, 21, 28-32; infra, 118, 377, 
 542, 546, 587. 
 
 78. Incorporation cannot be effected by 
 filing the original articles signed by the in- 
 corporators, but riot acknowledged, where 
 the statute requires the filing of a copy of 
 the original, verified as a true copy by two 
 of the signers. Slocxim v. Head, 105 Wis. 
 431, 81 N. W. 673, 50:324 
 
 79. Persons who in good faith file the or- 
 iginal articles to effect incorporation, instead 
 of an authenticated copy as required by 
 statute, and organize as such, may have the 
 rights of a corporation as to all persons 
 with whom their dealings are mutually un- 
 derstood to be in that capacity. Id. 
 
 80. The articles of incorporation under 
 which a company is organized under general 
 laws have the effect of a charter for the 
 purpose of determining the powers of the 
 corporation. North Point Consol. Irrigation 
 Co. v. Utah & S. L. Canal Co. 16 Utah. 24(5, 
 52Pac. 168, '40: 851 
 
 81. The requirement that articles of in-' 
 corporation shall state "the name and loca- 
 tion of such corporation" does not authorize 
 the articles to lx the place of the "principal 
 office." Milwaukee Steamship Co. v. Mil- 
 waukee. 83 Wis. 590, 53 N. W. 839. 
 
 18: 353 
 
 IV. Powers, Liabilities, and Officers. 
 a. Rights and Powers Generally. 
 
 Recovery Back by Corporation of Money 
 Paid on Officer's Debt, see Asaumpsit, 
 44. 
 
 Power to Issue Bonds, see Bonds, III. a. 
 
 Power of Loan Association, see Building and 
 Loan Associations, V. 
 
 Right to Exercise Power of Eminent Do- 
 main, see Eminent Domain, I. b. 
 I Estoppel as to Corporate Powers, see Estop- 
 pel, III. c. 
 
 Right to Maintain Nuisance, see Highways, 
 50. 
 
 Policy by Foreign Company, see Insurance, 
 57. 
 
 Of Religious Corporation, see Religious So- 
 cieties, 19-21. 
 
 Title of Statute as to, see Statutes, 187. 
 
 Special Legislation as to, see Statutes, 305. 
 
 See also infra, 621. 
 
 For Editorial Notes, see infra, VIII. 10. 
 
 82. A corporation, being a creature of the 
 law, has no powers which the law has not 
 conferred upon it. National Home B. & L. 
 Asso. v. Home Sav. Bank. 181 111. 35. 54 N. 
 E. 619, 04: 399 
 
 83. A corporation created by statute pos- 
 sesses no rights and can exercise no powers 
 which are not expressly given or to be nec- 
 essarily implied. Stockton v. Central R. Co. 
 (N. J. Ch.) 50 N. ,T. Eq. 52, 24 Atl. 964, 17: 97 
 
 84. When a corporation is formed under 
 the Illinois general incorporation act, for 
 the purpose of carrying on a lawful busi- 
 ness, the law, and not the statement or li- 
 cense or certificate, must determine what 
 powers can be exercised as incidents of such 
 business. People ex rel. Peabody v. Chicago 
 Gas Trust Co. 130 111. 268, 22 N. E. 798. 
 
 8: 497 
 
 85. The report of a legislative committee, 
 that the .property of a corporation is prop- 
 erly ta*xed, does not amount to a concession 
 on tlio part of the state that the corporation 
 had a right to acquire the title to the prop- 
 erty. People ex rel. Moloney v. Pullman's 
 Palace Car Co. 175 Til. 125, 51 N. E. 664, 
 
 64: 366 
 
 86. A grant to a corporation of a right 
 to own property and transact business af- 
 fords no immunity from any police control 
 to which a citizen could be subjected. State, 
 Trenton Horse R. Co. Prosecutor, v. Trenton, 
 (N. J. Sup.) 53 N. J. L. 132, 20 Atl. 1076. 
 
 11: 410 
 
 87. Where one corporation seeks judicial 
 redress against another corporation, on the 
 ground that the other has refused to give a 
 service or to perform a duty which it owes 
 the complaining corporation, to succeed, it 
 must show affirmatively that the service or 
 duty which it claims exists by force of a 
 statute, or a usage having the force of law. 
 Delaware. L. & W. R. Co. v. Central Stock 
 Yards & T. Co. (N. J. Err. & App.) 45 N. J. 
 Eq. 50, 17 Atl. 146. 6: 855 
 
 88. Unless a duty has been created 
 against a corporation by usage, or by con- 
 tract, or by a statute, the courts cannot 
 be called on to give it effect. Id. 
 
 8H. Although a corporation is regarded as 
 a person separate and distinct from its 
 stockholders, or any of them, when proceed- 
 ing at law or asserting a title to property, 
 or when the title to property is involved, a 
 court of equity will not, when rights of
 
 CORPORATIONS, IV. b. 
 
 an equitable nature are asserted, or relief 
 on rules or principles of equity is sought, 
 forget that the stockholders are the real 
 and substantial beneficiaries of a recovery; 
 and if such stockholders have no standing 
 in equity, and are not equitably entitled to 
 the remedy sought to be enforced by the cor- 
 poration in their behalf and for their advan- 
 tage, no recovery will be permitted to the 
 corporation. Home F. Ins. Co. v. Barber, 67 
 Neb. 644, 93 N. W. 1024, 60: 927 
 
 90. The fact that a corporation organized 
 to build a bridge is not expressly authorized 
 by its charter to obtain approaches by an 
 exercise of the power of eminent domain 
 does not bring an attempt to secure such 
 approacnes in a foreign state within the op- 
 eration of a constitutional provision of such 
 state forbidding any company to engage in 
 business other than that expressly author- 
 ized by its charter. Southern I. & M. Bridge 
 Co. v. Stone, 174 Mo. 1, 73 S. W. 453, 
 
 63: 301 
 
 91. Whiskies, wines, beers, and other malt 
 and intoxicating liquors are included in the 
 "supplies" which the charter of a corpora- 
 tion engaged in manufacturing and selling 
 or using cars authorizes it to furnish to 
 travelers on them. People ex rel. Moloney 
 v. Pullman's Palace Car Co. 175 111. 125, 51 
 N. E. 664, 64: 366 
 Implied powers. 
 
 See also infra, 128. 358, 361. 
 
 For Editorial Notes, see infra, VIII. 10. 
 
 92. Incidental or implied powers of a cor- 
 poration exist only to enable it to carry out 
 the express powers granted, that is, to ac- 
 complish the purpose of its existence, and 
 can in no case avail to enlarge the ^express 
 powers and thereby warrant it to devote 
 its efforts and capital to other purposes 
 than such as its charter expressly author- 
 izes, or to engage in collateral enterprises 
 not directly, but only remotely, connected 
 with its specific corporate purposes. Peopie 
 ex rel. Moloney v. Pullman's Palace Car Co. 
 175 111. 125, 51 N. E. 664, 64: 366 
 
 93. The implied powers which a corpora- 
 tion has in order to carry into effect those 
 expressly granted, and to accomplish the 
 purposes of its creation, are not limited to 
 such as are indispensable for these purposes, 
 but comprise all that are necessary, in 
 the sense of appropriate, convenient, and 
 suitable, including the right of reasonable 
 choice of means to be employed. Central 
 Ohio N. G. & F. Co. v. Capital City Dalr\ 
 Co. 60 Ohio St. 96, 53 N. E. 711, '64: 395 
 To refuse to make discovery. 
 
 94. A corporation or company which the 
 state has the legal right to call upon for in- 
 formation as to its business cannot be per- 
 mitted to determine for itself whether it 
 will answer or not. on the ground that it is 
 not possible to do so, but must answer can- 
 didly so far as reasonably possible, and 
 state facts which it claims should excuse it 
 for not answering more fully. State ex rel. 
 Railroad & W. Com. v. tnited States E\p. 
 Co. 81 Minn. 87. 83 IN. W. 465. 50: 607 
 To exercise franchise without giving bond. 
 
 95. A bond cannot be required from a cor- 
 
 poration as a condition of exercising its 
 franchise, after it has accepted the franchise 
 and entered upon its business under an or- 
 dinance which does not require the bond. 
 Rushville v. Rushville Natural Gas Co. 132 
 Ind. 575, 28 N. E. 853. 15: 321 
 
 To execute ceed for another. 
 
 96. A corporation may execute a deed as 
 an attorney in fact for another. Killings- 
 worth v. Portland Trust Co. 18 Or. 351, 23 
 Pac. 66, 7 : 638 
 To borrow. 
 
 For Editorial Notes, see infra, VIII. 10. 
 
 97. A corporation as such has no power tc 
 create a debt by borrowing money with 
 which to purchase its own stock, especial- 
 ly when it is in failing circumstances. 
 Adams & W. Co. v. Deyette, 8 S. D. 119, 65 
 N. W. 471, 31: 497 
 To act as administrator. 
 
 98. A corporation nnving charter power to 
 accept and execute all -kinds of trusts, in- 
 cluding that of executors and guardianship 
 of infants and insane persons, is not pre- 
 cluded from acting as administrator under 
 appointment by the court by virtue of the 
 provision that it may execute such trusts 
 as may be imposed upon it by any "person 
 or corporation." Union Bank & T. Co. v. 
 Wright (Tenn. Oh.) 58 S. W. 755, 52: 469 
 
 99. A corporation may act as administra- 
 tor, under a charter giving it the right arid 
 power to accept and execute all trusts of 
 every name and kind and to act as executor, 
 although the term "administrator" is not 
 included among those specifically designated 
 therein, since that term is included in the 
 broad power as to tnists, and the term "ex- 
 ecutor" also fairly includes it. Id. 
 To pass by-law. 
 
 100. The power to make reasonable by- 
 laws consistent with its charter inheres in 
 every corporation. En^elhardt v. Fifth 
 Ward Permanent Dime S. & L. Asso. 148 N. 
 Y. 281, 42 N. E. 710, 35: 289 
 
 b. Owning Stock of Other Companies. 
 
 Creation of Monopoly by, see Conspiracy, 
 168. 
 
 Self-Executing Provisions as to, see Con- 
 stitutional Law, 88. 
 
 Validity of Contract as to, see Contracts, 
 469. 
 
 Allegations as to, see Pleading, 525. 
 
 See also supra, 20; Banks, 3. 
 
 For Editorial Notes, see infra, VIII. 21. 
 
 101. Permission to purchase the "capital 
 stock" of other corporations, found in a cor- 
 porate charter, will, if properly conferred, 
 enable its recipient to purchase shares of 
 such stock, although there exists, under cer- 
 tain circumstances, a distinction between 
 "capital stock" and "shares of stock." Peo- 
 ple ex rel. Peabody v. Chicago Gas Trust Co. 
 130 Til. 2fi8. 22 N. E. 798. 8: 407 
 
 102. Charter power to purchase property 
 necessary for its business, with stock, will 
 inrlude the purchase by a cotton manufac- 
 turing company of shares in a corporation 
 organized to manufacture dyes according to 
 secret formulas which, under contracts
 
 CORPORATIONS, IV. c. 
 
 751 
 
 with their originator, were used exclusive- 
 ly by the corporation, and upon the use of 
 which the success of its products largely 
 depended. Joseph Bancroft Sons Co. v. 
 Bloede, 45 C. C. A. 354, 106 Fed. 396, 
 
 52: 734 
 
 103. A corporation cannot become a stock- 
 holder in another corporation unless power 
 to do so is specifically granted in its charter, 
 or necessarily implied from it-. People ex 
 rel. Moloney v. Pullman's Palace Car Co. 
 175 111. 125, 51 N. K 664, 64: 366 
 
 104. Power to authorize the purchase by ^i 
 corporation of shaves of stock in another 
 corporation is -denied to the general assem- 
 bly by Ga. Const, an. 4, 2, f 4 (Civ. Code, 
 5800), only when such purchases tend to 
 create a- monopoly or lessen "competition. 
 Trust Company of Georgia v. State, 109 Ga. 
 736, 35 S. E. 323, 48: 520 
 
 105. A purchase of shares of a domestic 
 corporation by a foreign corporation en- 
 gaged in a similar business, for the express 
 purpose of controlling and managing the do- 
 mestic corporation, is ultra vires, and there- 
 fore unlawful and void. Buckeye Marble & 
 F. Co. v. Harvey, 92 Tenn. 115, 20 S. W. 427, 
 
 18: 252 
 
 106. An incorporated company cannot, un- 
 less authorized by statute, subscribe to the 
 capital stock of another. A subscription so 
 made is ultra rires and void. Valley R. Co. 
 v. Lake Erie Iron Co. 46 Ohio St. 44, 18 IN. 
 E. 486, 1 : 412 
 
 107. A corporation formed, under the Illi- 
 nois general incorporation act, for a purpose 
 other than that of dealing in stocks, cannot 
 exercise the power of purchasing and hold- 
 ing stock in other corporations, where such 
 power canrot be neoessnri'v irnnlied from tlm 
 nature of the power specifically granted, and 
 is not necessary to carry the latter into ef- 
 fect. People ex rel. Peabody v. Chicago Gas 
 Trust Co. 130 111. 268, 22 N. E. 798, 8: 497 
 
 108. A gas company formed for the pur- 
 pose of erecting or operating gas works and 
 manufacturing and selling gas has no power 
 to purchase and hold or sell shares of stock 
 in other gas companies as an incident to 
 such purpose of its formation, even though 
 such power is specified in its articles of in- 
 corporation. Id. 
 
 109. A railroad company in Kansas has 
 the lawful riq^ht to purchase and hold stock 
 of a connecting road. Atchison, T. & S. F. 
 R. Co. v. Cochran, 43 Kan. 225. 23 Pac. 151. 
 
 7: 414 
 
 110. The right of a corporation to hold 
 stock in another corporation if a majority of 
 the stockholders elect, which is given by 
 Minn. Gen. Stat. 1894, 2834. does not pre- 
 vent a corporation organized under that 
 statute from bein<r one which carries on an 
 exclusively manufacturing or mechanical 
 business, if the corporation has not made 
 any election to hold stock in another com- 
 pany. Cowling v. Zenith Iron Co. 65 Minn. 
 263.' fiS X. W. 48, 33: 508 
 Controlling interest or entire ownership. 
 See ilso infra. 143. 144. 
 
 111. A corporation purchasing a majority 
 of the stock of another competing one can- 
 
 not obtain control of its affairs, divert the 
 income of its business, refuse business which 
 would enable the defaulting company to pay 
 its interest, and then institute an action in 
 equity to enforce its obligations for the 
 avowed purpose of obtaining entire control 
 of its property to the injury of the minor- 
 ity -tockholders. Farmers' Loan & T. Co. v. 
 New York & N. R. Co. 150 N. Y. 410, 44 N. 
 E. 1043, 34: 76 
 
 112. A corporation owning a majority of 
 the stock of another company, and assuming 
 control of its business through the control 
 of its officers and directors, assumes the 
 same trust relation toward the minority 
 stockholders that a corporation itself usual- 
 ly bears to stockholders. Id. 
 
 113. The statutory right of a corporation 
 to purchase stock of another company does 
 not give it any right, as the owner of a 
 majority of the stock and bonds of such 
 company, to manage its affairs so as to 
 cause a default on a mortgage and obtain 
 control of the property by foreclosure at 
 less than its value to the injury of the 
 minority stockholders. Id. 
 
 114. The fact that one corporation owns 
 the entire capital stock of another does not 
 vest in the former the legal title to the 
 property of the latter, or render the two 
 corporations identical. McTighe v. Ma con 
 Const. Co. 97 Ga. 1, 25 S. E. 326, 33: 800 
 
 115. Under a provision of the Constitution 
 of the state of Georgia, reciting that "the 
 general assembly of this state shall have no 
 power to authorize any corporation to buy 
 shares of stock in any other corporation in 
 this state or elsewhere, or to make any 
 contract or agreement whatever with any 
 such corporation, which may have the effect, 
 or be intended to have the effect, to defeat 
 or lessen competition in their respective 
 businesses, or to encourage monopoly; and 
 all such agreements and contracts shall be 
 illegal and void," a purchase, by a railway 
 company in Georgia, 01 the contract to con- 
 struct the line of a competitive company, 
 and of the securities of such competitive 
 company, with a view to prevent the con- 
 struction of such competing line, is illegal 
 and void, although accomplished indirectly 
 and constitutes all concerned in such illegal 
 transaction trustees, as to assets resulting 
 therefrom, for the benefit of persons whose 
 rights have been invaded. Langdon v. Cen- 
 tral R. & Bkg. Co. 37 Fed. 449, 2: 120 
 
 c. Mode of Corporate Action; Acts of 
 Agents. 
 
 As to Power of Officers Generally, see infra, 
 
 IV. g, 2. 
 Majority of Trustees Acting Individually, 
 
 see Boards, 2. 
 Parol Evidence of Adoption of Resolution, 
 
 see Evidence. 767. 
 ^fp also infra. 466-470, 480. 
 For Editorial Notes, see infra, VIII. 13, 
 
 15, 16. 
 
 116. The illegality of an act attempted to 
 be done by n corporation will not deprive it
 
 CORPORATIONS, IV. d, 1. 
 
 of its corporate character. People v. North 
 River Sugar Refin. Co. 121 N. Y. 582, 24 N. 
 E. 834, 9: 33 
 
 Aff'g 54 Hun, 354, 7 N. Y. Supp. 406, 5: 386 
 Aff'g 54 Hun, 355 (note), 3 N. Y. Supp. 401, 
 
 2: 33 
 
 117. A contract entered into by a wrong 
 name may be binding on a corporation, when 
 it appears that it intended to be bound. 
 North Point Consol. Irrig. Co. v. Utah & S. 
 L. Canal Co. 16 Utah, 246, 52 Pac. 168, 
 
 40: 851 
 
 118. A corporation may become liable on 
 a contract made in its name and on its be- 
 half after its articles of association are re- 
 corded under Wis. Rev. Stat. 1772. pro- 
 viding that it shall have no legal existence 
 "until such articles be so left for record." 
 Hadger Paper Co. v. Rose, 95 Wis. 145, 70 
 X. W. 302, 37: 162 
 
 119. The act of all or a majority of the 
 stockholders of a corporation should be re- 
 garded as the act of the corporation, when 
 it is designed to affect its property and busi- 
 ness, and is ultra vires of 'the corporation 
 and against public policy, and is done in 
 their individual capacity for the purpose of 
 concealing their real purpose and object. 
 State ex rel, Watson v. Standard Oil Co. 
 40 Ohio St. 137, 30 N. E. 279, 15: 145 
 
 120. An attempted transfer of the stock 
 of a corporation to a trust combination, in 
 consequence of which the stock will be large- 
 ly increased, is a corporate act, although 
 done by the united action of trustees and 
 stockholders without any independent ac- 
 tion of the board of directors as such. Peo- 
 ple v. North River Sugar Refin. Co. 121 N. 
 Y. 582, 24 N. E. 834. 9: 33 
 Affg 54 Hun, 354, 7 N. Y. Supp. 406, 5: 386, 
 Affg 54 Hun. 355 (note), 3 N. Y. Supp. 401, 
 
 2: 33 
 
 121. A deed made by a committee of a 
 corporation and signed by the corporation 
 secretary, under the authority of a resolu- 
 tion adopted at a stockholders' meeting by a 
 unanimous vote of the trustees and stock- 
 holders, will be regarded as an act of the 
 corporation. Id. 
 
 122. The fact that a contract company 
 dominates and controls a railroad company 
 having the same stockholders will not make 
 its engagements operate in legal effect as 
 those of the railroad company with respect 
 to one who is fully aware of the relations 
 of the companies when making a contract 
 with the former for work on the railroad. 
 Richmond & I. Const. Co. v. Richmond, N. I. 
 & B. R. Co. 31 U. S. App. 704. 68 Fed. 105, 
 15 C. C. A. 289. 34: 625 
 
 123. To bind a corporation by a contract 
 made by one who has authority to act for 
 it, it is not necessary that his authority 
 should be recited in the contract, or the 
 corporate name be signed to it, or his offi- 
 cial designation be added to his signature. 
 Jones v. Williams. 139 Mo. 1. 39 S. W. 486, 
 40 S. W. 353.. 37 : 682 
 Other corporation as agent. 
 
 124. The appointment by a corporation by 
 its board of directors of another corporation 
 to act as its sole agent in the sale of water 
 within a city, to IM> distributed by means of 
 
 plants of both corporations, is not in vio- 
 lation of Cal. Civ. Code, 354, subds. 5, 8, 
 where the agency, although exclusive, is not 
 unlimited or unrestricted. San Diego Wa- 
 ter Co. v. San Diego Flume Co. 108 Cal. 549, 
 45 Pac. 495, 29: 839 
 
 d. Contracts; Ultra Vires. 
 I. Power to Contract. 
 
 As to Owning Stock of Other Company, see 
 
 supra, IV. b. 
 Power of Officers or Agents to Make, see 
 
 infra, IV. g, 2. 
 Power of Stockholders to Make, see infra, 
 
 V. e, 1. 
 Liability of Officers for Engaging in Ultra 
 
 Vires Business, see infra, 286-288. 
 Contract Giving Corporation Prior Right to 
 
 Purchase Stock, see infra, 432-435. 
 Law Governing Real Estate Mortgage by 
 
 Foreign Corporation, see Conflict oi 
 
 Laws, 50. 
 Construction of Contract by, see Contracts, 
 
 333. 
 Right of, to Recover where Contract is not 
 
 Completed, see Contracts, 689. 
 Relief in Equity Notwithstanding Ultra 
 
 Vires, see Equity, 98. 
 Validating Ultra Vires Act by Estoppel, see 
 
 Estoppel, 101. 
 Presumption of Validity of, see Evidence, 
 
 409. 
 Ultra Vires Contract by Insurance Company, 
 
 see Insurance, 17, 18. 
 Presumption as to Validity of Contract, see 
 
 Pleading, 432. 
 
 Contract by Municipal Corporation, see Mu- 
 nicipal Corporations, II. d. 
 Corporation as Party to Suit to Annul Ultra 
 
 Vires Act, see Parties, 154. 
 Sufficiency of Complaint on Mortgage by 
 
 Corporation, see Pleading, 222. 
 Power to Establish Railway Relief Asso- 
 ciation, see Railroad Relief Associa- 
 tions, 3. 
 
 Question for Jury as to, see Trial, 215. 
 See also supra, 19; infra, 206, 286, 352, 477, 
 
 640, 711, 750. 
 For Editorial Notes, see infra, VIII. 10- 
 
 12, 14-16. 
 
 -125. The power to contract inheres in 
 every corporation, and is coextensive with 
 its corporate powers. Portland Lumbering 
 & Mfg. Co. v. East Portland, 18 Or. 21, 22 
 Pac. 536, 6: 290 
 
 126. The validity of a transaction by a 
 corporation is to be determined from its gen- 
 eral character considered as a whole, rath- 
 er than by segregating it into individual 
 parts, and regarding each as distinct from 
 the others. Central Ohio N. G. & F. Co. v. 
 Capital City Dairy Co. 60 Ohio St. 96, 53 
 
 , N. E. 711, * 64: 395 
 
 127. Acts of a corporation, which, if stand- 
 | ing alone, or engaged in as a business, would 
 1 be beyond its implied powers, are not neces- 
 sarily 'ultra vires when they are incidental 
 to, or form part of, an entire transaction 
 that, in its geperal scope, is within the cor- 
 porate purpose. W.
 
 CORPORATIONS, IV. d, 1, 
 
 753 
 
 128. A corporation has no implied author- 
 ity to engage in any business other than the 
 particular enterprise for which it is char- 
 tered, or to do any act or make any con- 
 tracts not in pursuance of the purposes for 
 which it was created. Chewacla Lime 
 Works v. Dismukes, 87 Ala. 344, 6 So. 122, 
 
 5: 100 
 
 129. Notice of restrictions annexed to the 
 grant of power by a law authorizing action 
 by a corporation is chargeable upon persons 
 dealing with the corporation. Smith v. Cor- 
 nelius, 41 W. Va. 59, 23 S. E. 599, 30: 747 
 
 130. A corporation does not possess pow- 
 er to acquire by assignment a claim for dam- 
 ages growing out of an alleged conspiracy 
 to defraud which is in no way connected 
 with its own affairs. John V. Farwell Co. 
 v. JosephiMm, 96 Wis. 10, 70 N;W. 289, 71 
 N. W. 109, 37: 138 
 
 131. A corporation dealing in manufac- 
 tured goods and needing them for sale may, 
 as a proper incident to its business, extend 
 financial aid to a manufacturer by advancing 
 him money to enable him to furnish the 
 goods. Holmes, B. & H. v. Willard, 125 N. 
 Y. 75, 25 N. E. 1083, 11: 170 
 Authority given to officer. 
 
 132. Notice of the by-laws of a corpora- 
 tion restricting the right of any officer to 
 make contracts of employment to a period 
 less than one year is not chargeable to one 
 who makes a contract for services to the 
 corporation with a general manager of the 
 company, who has been given absolute 
 charge of its business at the place of con- 
 tract. Moyer V: East Shore Terminal Co. 
 41 S. C. 300, 19 S. E. 651, 25: 48 
 
 133. A resolution authorizing officers of' a 
 corporation "to secure any and all other 
 creditors" after a person named does not 
 require that a mortgage executed in pur- 
 suance thereof should secure all other cred- 
 itors, but the word "and" has the meaning 
 of "or." Brown v. Grand Rapids Parlor Fur- 
 niture Co. 16 U. S. App. 221, 7 C. C. A. 225, 
 58 Fed. 286, 22: 817 
 Deposit of securities in other state. 
 
 134. A deposit of securities by a foreign 
 corporation as required by law in order to 
 obtain the right to do business in the state 
 is not ultra vires. Lewis v. American Sav. 
 & L. Asso. 98 Wis. 203, 73 N. W. 793, 
 
 39: 559 
 
 As to negotiable paper. 
 Effect of Corporate Seal on Negotiability, 
 
 see Bills and Notes, 58. 
 See also infra, 302. 
 Km- Editorial Notes, see infra, VIII. 10. 
 
 135. Business corporations for banking, 
 manufacturing, etc., have no power, unless 
 expressly conferred, to indorse promissory 
 notes for the accommodation of the makers 
 for a consideration paid. National Park 
 Bank v. German Am. Mut. Warehousing & 
 S. Co. 116 N. Y. 281, 22 N. E. 5G7, 5: 673 
 Co-operation with other company. 
 Validity of Contract as to, see Contracts, 
 
 478. 
 
 136. A contract between corporations or- 
 ganized to distribute and furnish water to 
 consumers in a county and city, for co-op- 
 
 L.R.A. Dig. 48. 
 
 cration in supplying water to the city, is 
 not ultra vires because one officer of each 
 corporation is appointed a trustee, and they 
 together are given general charge of the op- 
 eration of the works and of keeping the ac- 
 counts of receipts and expenses, with a lim- 
 ited power of determining what shall be 
 charged to the account of operating expens- 
 es, and with other powers and duties simply 
 executory and such as could not be dis- 
 charged by any board of directors otherwise 
 than through an agent. San Diego Water 
 Co. v. San Diego Flume Co. 108 Cal. 549, 45 
 Pac. 495, ' 29: 839 
 
 Execution of appeal bond as surety. 
 
 137. The execution by a corporation of an 
 appeal bond as surety for another party, if 
 outside the scope of its business, is ultra 
 vires and void. Best Brewing Co. v. Klas- 
 sen, 185 111. 37, 57 IS. E. 20, 50: 765 
 
 138. A brewing company becoming surety 
 on an appeal bond for the benefit of one of 
 its customers, in an action against him for 
 the premises occupied by him, although it 
 may obtain some incidental advantage to its 
 business by such appeal, is not. acting in the 
 exercise of its express or implied powers, 
 and is therefore not bound by such action. 
 
 Id. 
 Purchases generally. 
 
 139. A contract for the purchase of real 
 estate oy a religious corporation as a matter 
 of speculation merely is ultra vires and void. 
 Thompson v. West, 59 Neb. 677, 82 N. W. 
 13, 49: 337 
 
 140. A corporation which, by the act in- 
 corporating it, is for the object of mining 
 and manufacturing lime rock and selling it, 
 and which may purchase lands and goods 
 necessary to its purpose, has no right to 
 carry on a mercantile business and purchase 
 goods to be resold; and a person selling 
 goods for that purpose does so at his peril. 
 Chewacla Lime Works v. Dismukes, 87 Ala. 
 344, 6 So. 122, 5: 100 
 
 141. Where a corporation formed for the 
 purpose of manufacturing and dealing in a 
 particular line of goods, instead of incurring 
 the delay and expense incident to the con- 
 struction of a new manufacturing plant and 
 building up of an independent business, in 
 good faith, with a view of promoting the in- 
 terests of the corporation, chooses to pur- 
 chase of an existing partnership engaged in 
 a like business its established plant and as- 
 sets, including its outstanding claims, among 
 which is one for damages to the property 
 caused by another's negligence, the corpora- 
 tion acquires a valid title to the claim for 
 damages, as against the party liable, and 
 may maintain an action thereon. Central 
 Ohio N. G. & F. Co. v. Capital City Dairy 
 Co. 60 Ohio St. 96, 53 N. E. 711. "64: 395 
 Buying off competition or business of rival. 
 
 142. A contract by a corporation to buy 
 off *he competition of a rival company can- 
 not be assaulted by a stockholder as ultra 
 vires, but is within the discretionary power 
 of the directors. Leslie v. Lorillard, 110 N. 
 Y. 519, 18 N. E. 363, 1: 456 
 
 143. A corporation empowered to engage 
 in and earrv on a certain manufacturing
 
 754 
 
 CORPORATIONS, IV. d, 2 
 
 business may buy the business of its com- 
 petitors, and courts cannot pronounce con- 
 tracts for such permitted purchases invalid, 
 although they tend to, and may temporarily; 
 produce a monopoly of such manufacture; 
 and covenants incidental to such permitted 
 purchases, and reasonably required to pro- 
 tect the purchaser against the seller's engag- 
 ing in competitive business, cannot be pro- 
 nounced against public policy. Trenton Pot- 
 teries Co. v. Oliphant (N. J. Err. & App.) 58 
 N. J. Eq. 507, 43 Atl. 723, 46: 255 
 
 144. Option contracts providing for the 
 sale of plants organized for the manufacture 
 of glucose to a corporation organized to do 
 a banking business and having no authority 
 to purchase such plants, are void. Haruing 
 v. American Glucose Co. 182 111. 551, 55 N. E. 
 577, 64: 738 
 Repurchase of own stock. 
 
 For Editorial Notes, see infra, VIII, 21. 
 
 145. A corporation has power to make 
 valid contracts for the repurchase of its own 
 stock in the absence of charter' restrictions. 
 Wisconsin Lumber Co. v. Greene & W. 
 Teleph. Co. 127 Iowa, 350, 101 N. W. 742, 
 
 69: 968 
 
 146. A corporation cannot accept stock 
 subscriptions secured by its officers, and re- 
 pudiate the promise to take back the stock 
 under certain circumstances. Id. 
 Issue of stock. 
 
 147. The issue of stock by a cemetery cor- 
 poration is ultra vires when it is issued 
 without any specific legislative authority. 
 Cooke v. Marshall, 191 Pa. 315, 43 Atl. 314, 
 196 Pa. 200, 46 Atl. 447, 64: 413 
 Sales generally. 
 
 See also infra, 466, 467, 762, 763, 836. 
 
 For Editorial Notes, see infra, VIII. 10,11. 
 
 148. A sale of surpms steam by a corpora- 
 tion is not in excess of its powers when the 
 steam is generated in the course of its busi- 
 ness by boilers larger than are needed for its 
 present uses, but which are bought in antic- 
 ipation of probable future necessities. Peo- 
 ple ex rel. Moloney v. Pullman's Palace Car 
 Co. 175 111. 125, 51 N. E/664, 64:366 
 
 149. Where one corporation sells property 
 to another for a fixed price, to be paid in 
 stock of the latter, to be delivered to the 
 former through its designated officer, de- 
 livery of the certificates of stock to such 
 officer, or to another by his order, operates 
 as a discharge for the price. Leathers v. 
 Janney, 41 La. Ann. 1120, 6 So. 884, 6: 661 
 
 150. If a sale of corporate property be 
 real and fair, for a sound price, duly paid 
 according to the terms of the contract, and 
 without the shadow of fraud on the part 
 of the purchaser, the latter is not bound for 
 any failure of duty of the officers in distrib- 
 uting the proceeds among the stockholders. 
 
 Id. 
 
 Transfer of entire property. 
 Relief asrainst Illegal Contract for, see Con- 
 tracts, 760. 
 See also supra, 62: infra, 224, 480, 688. 
 
 151. A corporation unable to go on may 
 dispose of its property by a majority vote. 
 in the a^son^e of unfairness, oppression, or 
 fraud. Phillips v. Providence Steam Engine 
 Co. 21 R. T. 302, 43 Atl. 598, 45: 560 
 
 152. When a corporation sells its whole 
 property and rights to a purchaser knowing 
 that they are charged with corporate debts, 
 equity, in a proper case, will subject the 
 property in his hands to the payment of the 
 debts. Leathers v. Janney, 41 La. Ann. 
 1120, 6 So. 884, 6: 661 
 
 153. A transfer by a corporation of its en- 
 tire assets and property of every descrip- 
 tion, to another company, in consideration 
 of shares of stock in the latter not made 
 with the intention of winding up its affairs 
 and dividing the stock among its own stock- 
 holders, or as a temporary arrangement, but 
 as a permanent investment, is ultra vires, 
 and may be set aside in an action by a non- 
 assenting stockholder. Byrne v. Kchuyler 
 Electric Mfg. Co. 65 Conn. 336, 31 Atl. 833, 
 
 28: 304 
 
 154. A sale of the entire manufacturing 
 plant, including patents, processes, and 
 good will, of a corporation, with an agree- 
 ment that it would never again engage in 
 the same business, made in consideration of 
 stock in a new corporation, without intend- 
 ing to wind up the affairs of the former, 
 but with the object of continuing its cor- 
 porate life and activity, to be exercised 
 through the other corporation, is ultra vires 
 and void. McCutcheon v. Merz Capsule Co. 
 37 U. S. App. 586, 71 Fed. 787, 19 C. C. A. 
 108, 31:415 
 
 155. There is no statutory prohibition 
 against a corporation selling any or all of 
 its property, provided the charter contains 
 no such prohibition, and it acts in accord- 
 ance with the duly expressed will of its 
 stockholders and directors. Leathers v. Jan- 
 ney, 41 La. Ann. 1120, 6 So. 884, 6: 661 
 Mortgage of future-acquired property. 
 
 For Editorial Notes, see infra, VIII. 10, 
 11. 
 
 156. A corporation de facto can make any 
 contracts, including mortgages of future-ac- 
 quired property, which the law authorizes 
 corporations to make. McTighe v. Macon 
 Const. Co. 94 Ga. 306, 21 S. E. 701, 32: 208 
 Contract to repay loan. 
 
 157. A contract by a corporation to repay 
 a loan in preferred stock which it had no au- 
 thority to issue is a nullity, and is not re- 
 newed by a subsequent act authorizing it to 
 issue preferred stock, but which does not 
 empower it to renew that contract. An- 
 thony v. Household Sewing-Mach. Co. 16 R. 
 
 1. 571, 18 Atl. 176, 5: 575 
 
 158. A corporation whose directors are au- 
 thorized to borrow money for a legitimate 
 purpose cannot refuse to repay borrowed 
 money, on the ground that it was applied to 
 an unauthorized purpose, unless it shows 
 that the lender knew that the purpose for 
 which the money was borrowed was unau- 
 thorized. North Hudson Mut. Bldg. & L, 
 Asso. v. First Nat. Bank, 79 Wis. 31, 47 N. 
 W. 300, 11: 845 
 
 2. Right to Set up Ultra Vires as Defense. 
 
 See also infra, 206. 
 
 For Editorial Notes, see infra, VIII. 10. 
 
 159. The plea of ultra vires will not be al-
 
 CORPORATIONS, IV. d, 2. 
 
 755 
 
 lowed to prevail when it will not advance 
 justice, but will, on the contrary, accomplish 
 a legal wrong. Lewis v. American Sav. &, 
 L. Asso. 98 Wis. 203, 73 N. W. 793, 39: 559 
 
 160. The profitableness or unprofitableness 
 of a transaction by a corporation, which is 
 ultra vires, does not affect the right of a 
 stockholder to contest it. Byrne v. Si-huy- 
 ler Electric Mfg. Co. 65 Conn. 336, 31 Atl. 
 833, 28: 304 
 
 161. A stranger to contracts made with 
 stockholders of a company which has not 
 completed its organization as a corporation, 
 but who assumed to act as a corporation, 
 cannot object to the validity of the con- 
 tracts because the corporation is not organ- 
 ized. New Haven Wire Co. Cases, 57 Conn. 
 352, 18 Atl. 266, > 5: 300 
 
 162. The state alone can complain of a 
 completed contract entered into by a corpo- 
 ration in violation of constitutional or stat- 
 utory requirements. Wood v. Corry Water 
 Works Co. 44 Fed. 146, 12: 168 
 Right of corporation. 
 
 As against Bona Fide Purchaser of Note, see 
 
 Bills and Notes, 202, 203. 
 For Editorial Notes, see infra, VIII. 10. 
 
 163. A corporation is not estopped, by rea- 
 son of having received the benefits of a con- 
 tract which is ultra vires, from setting up its 
 invalidity in defense of a suit brought to 
 enforce it. Chewacla Lime Works v. Dis- 
 mukes, 87 Ala. 344, 6 So. 122, 5: 100 
 
 164. A contract of a corporation which 
 is beyond its corporate powers and ultra 
 vires in the strict and legitimate sense, and 
 against public policy, cannot be made bind- 
 ing on the corporation by way of estoppel. 
 National Home B. & L. Asso. v. Home Sav. 
 Bank. 181 111. 35, 54 N. E. 619, 64: 399 
 
 165. A contract of a corporation in excess 
 of its powers cannot be enforced because the 
 corporation has received a benefit under it 
 which ex ccquo et bono it ought not to re- 
 tain; but the remedy is by a suit in dis- 
 affirmanee. nnd for an accounting. Miller 
 v. American Mut. Acci. Ins. Co. 92 Tenn. 167, 
 21 S. W. 39, 20: 765 
 
 160. The defense of ultra vires is as avail- 
 able to a corporation when the attempt is 
 made to hold it liable as principal upon a 
 contract which is entered into as agent, be- 
 cause of its failure to disclose its principal, 
 as when it is sued unon a contrn^t whir>h it 
 made as principal. Jemison v. Citizens Sav. 
 Bank, 112 N. Y. 135, 25 N. E. 264, 9: 708 
 
 167. The fact that the capital stock of a 
 corporation had not all been paid in and a 
 certificate of the payments filed as required 
 by Mass. Pub. Stat. chap. 106, 46, which 
 forbids corporations to commence the trans- 
 action of the business for which they are 
 organized until those things are dbne, at the 
 time it entered into nnd performed a con- 
 tract, will not preclude it from recovering 
 the amount due it thereon. Chase's Patent 
 Elevator Co. v. Boston Tow Boat Co. 152 
 Mass. 428, 28 N. E. 300, 9: 339 
 
 168. A corporation cannot hold on to prop- 
 erty, nn'l ple-Ml the doctrine of ultra vires 
 against the obligation to pay for it. Sey- 
 
 mour v. Spring forest Cemetery Asso. 144 
 N. Y. 333, 39 N. E. 365, 26: 859 
 
 169. A corporation cannot defend against 
 a contract liability growing out of a busi- 
 ness in which it is actually engaged, on the 
 ground that such business was done in ex- 
 cess of its corporate powers. Leinkauf v. 
 Lombard, 137 N. Y. 417, 33 N. E. 472, 20: 48 
 
 170. A corporation which has entered into 
 and received the benefits of a contract which 
 it had the power to make will not be permit- 
 ted to avoid paying the consideration money, 
 by showing that in making the contract it 
 did not conform to the statutory require- 
 ments and limitations imposed on it. Wood 
 v. Corry Water Works Co. 44 Fed. 146, 
 
 12: 168 
 
 171. In case of a transaction which is sim- 
 ply ultra vires, neither party win be heard 
 to allege its invalidity while retaining its 
 fruits. Limitation of the contractual power 
 of a corporation does not prevent it from 
 making restitution of money or property ob- 
 tained under an unauthorized contract. 
 Manchester & L. R. Co. v. Concord R. Co. 66 
 N. H. 100, 20 Atl. 383, 9: 689 
 
 172. The plea of ultra vires should not as 
 a general rule prevail, whether interposed 
 for or against a corporation, when it would 
 not advance justice, but, on the c'ontrary, 
 would accomplish a legal wrong. Portland 
 Lumbering & Mfg. Co. v. East Portland, 18 
 Or. 21, 22 Pac. 536, 6: 290 
 
 173. One making a contract in good faith 
 with a corporation within the apparent 
 scope of its powers under a statute making 
 an amendment to its charter has a right to 
 assume that the necessary steps have been 
 taken to accept the power which its officers 
 assume to have; and the company is es- 
 topped to show that a majority of its share- 
 holders have not accepted the amendment, 
 especially where nonacceptance would pre- 
 clude a continuance in business. Miller v. 
 American Mut. Acci. Ins. Co. 92 Tenn. 167, 
 21 S. W. 39, 20: 765 
 
 174. A surety company having charter 
 power to finance other companies, and hav- 
 ing actively undertaken to do so with re- 
 spect to a particular one in whose success it 
 is largely interested, will not be permitted 
 to plead ultra vires in defense of its liability 
 as surety on a note executed to obtain nec- 
 essnry funds for it, where the payee parted 
 with his money under the belief that the 
 
 ! trust company, in placing its name on the 
 note, was pursuing its known policy with 
 
 j respect to the maker thereof. First Nat. 
 Bank v. Guardian Trust Co. 187 Mo. 494, 86 
 S. W. 109, 70: 79 
 
 175. A corporation cannot refuse to per- 
 form its contract to allow subscrioers to 
 stock free passes, or to repurchase the stock 
 at the price paid, on the ground that it is 
 contrary to public policy. Wisconsin Lum- 
 ber Co. v. Greene & W. Teleph. Co. 127 Iowa, 
 350. 101 N. W. 742, 69: 968 
 
 176. A corporation cannot refuse to carry 
 o\jt its contract to repurchase the stock of 
 certain subscribers upon certain contin<ren- 
 cie on the erround that other stockholders 
 
 i were not given the same right to return
 
 756 
 
 CORPORATIONS, IV. d, 3 e. 
 
 their stock; at least where there is no show- 
 ing of any other prejudice to the other 
 stockholders. Id. 
 
 Of other party to contract. 
 See also supra, 171, 172. 
 For Editorial Notes, see infra, VIII. 10. 
 
 177. An individual may challenge the cor- 
 porate capacity of a corporation as a defense 
 to its right to recover, where, in an action 
 between him and the corporation, the latter 
 attempts to acquire title to property vested 
 in such individual. Myatt v. Ponca Gity 
 Land & I. Co. 14 Okla. 189, 78 Pac. 185, 
 
 68: 810 
 
 178. The lack of the corporate existence 
 of the plaintiff suing as a corporation can 
 be set up to defeat the action oy the defend- 
 ant, where this is based on the failure of 
 the plaintiff to pay the bonus tax prescribed 
 by Md. Acts 1890, chap. 536, under which 
 such nonpayment prevents the attempted 
 corporation from having or exercising any 
 corporate powers. Maryland Tube & I. 
 Works v. West End Improv. Co. 87 Md. 207, 
 39 Atl. 620, 39: 810 
 
 179. A party dealing with a corporation 
 having limited an,d delegated powers con- 
 ferred by law is chargeable with notice of 
 them and their limitations, and cannot plead 
 ignorance in avoidance of the defense of 
 ultra vires. National Home B. & L. Asso. 
 v. Home Sav. Bank, 181 111. 35, 54 N. E. 
 619, 64: 399 
 
 180. The want of corporate power to take 
 an assignment of a cause of action cannot be 
 interposed as a defense to an action by a 
 corporation as assignee of a claim for dam- 
 ages. John V. Farwell Co. v. Josephson, 96 
 Wis. 10, 70 N. W. 289, 71 N. W. 109, 37: 138 
 
 181. A lessee of a corporation cannot es- 
 cape the payment of rent for the time dur- 
 ing which it has had undisturbed enjoyment 
 of the property under the lease, merely be- 
 cause the lease was void as against the state 
 for want of capacity in the corporation to 
 make it. Bath Gaslight Co. v. Claffy, 151 N. 
 Y. 24, 45 N. E. 390, " 36: 664 
 
 3. Formal Requisites. 
 
 Sufficiency of Writing to Satisfy Statute 
 
 of Frauds, see Contracts, 219/221. 
 See also supra. 121. 
 For Editorial Notes, see infra, VIII. 11. 
 
 182. The fact that the constitutional re- 
 quirement as to notice to stockholders was 
 not complied with before the execution of a 
 mortgage of the corporate property is not 
 a valid defense to a suit on the mortgage, if 
 every stockholder was present when the 
 mortgage was determined on and voted in 
 favor of it, and the corporation has received 
 the benefit of the money raised thereby. 
 Wood v. Corry Water Works Co. 44 Fed. 
 146, 12: 168 
 
 4. Ratification. 
 
 By Bank, of Guaranty, see Banks, 55. 
 Sufficiency of Proof of, see Evidence. 2317. 
 See also infra, 232, 273. 274, 280, 353, 436; 
 
 Municipal Corporations, 388. 
 For Editorial Notes, see infra, VIIT. 12. 
 
 183. A corporation cannot ratify a con- 
 tract which it had not the power to make. 
 Thompson v. West, 59 Neb. 677, 82 N. W. 
 13, 49: 337 
 
 184. A corporation may ratify a contract 
 which it had power to make, when entered 
 into on its behalf without its authority, or 
 voidable because not reduced to writing. 
 North Point Consol. Irrigation Co. v. Utah & 
 S. L. Canal Co. 16 Utah. 246, 52 Pac. 168, 
 
 40: 851 
 
 185. An agreement of purchase in the 
 name of a corporation a day or two before 
 the actual filing of the corporate certificate 
 is binding if subsequently ratified. Sey- 
 mour v. Spring Forest Cemetery Asso. 144 
 N. Y. 333, 39 N. E. 365, 26: 859 
 
 186. A corporation must be held to have 
 adopted the acts of its agents in conducting 
 a business ultra vires, where its manag- 
 ing officers, knowing the business has been 
 done and that the income of the business has 
 been received and the expenses of it paid 
 by the treasurer, have adopted the action of 
 the treasurer and elected to keep the money. 
 Nims v. Mt. Hermon Boys School, 160 Mas"s. 
 177, 35 N. E. 776, 22: 364 
 
 187. Ratification of a contract between 
 corporations having common directors is 
 shown where one company has entirely per- 
 formed its part of the contract, and the 
 other has performed a part of it and cannot 
 restore anything or place the other party, 
 in whole or in part, in statu quo, especial- 
 ly when the stockholders have expressly ap- 
 proved the contract. San Diego, O. T. & P. 
 B. R. Co. v. Pacific Beach Co. 112 Cal. 53, 44 
 Pac. 333, 33: 788 
 
 188. Unanimous consent of all the stock- 
 holders is not necessary to the ratification 
 of a voidable contract which a majority of 
 them could have authorized in the first in- 
 stance. Id. 
 
 189. Assent by all the directors and stock- 
 holders of a corporation to the transaction 
 by the corporation of business which is sim- 
 ply ultra vires will cause acts done in the 
 furtherance of such business to be regarded 
 as corporate acts, and contracts made with 
 third persons to be binding on it. Holmes, 
 B. & H. v. Willard, 125 N. 1. 75, 25 N. E. 
 1083, 11: 170 
 
 190. That the terms of the resolution un- 
 der which corporate bonds were pledged did 
 not authorize the pledge will not invalidate 
 it if it was made with the knowledge and 
 at the instance of all the stockholders, and 
 has been solemnly ratified by them with 
 full knowledge of the facts. Nelson v. Hub- 
 bard, 96 Ala. 238, 11 So. 428, 17: 375 
 
 191. The consent of stockholders cannot 
 legalize or vitalize a void illegal contract by 
 which a corporation attempts to transfer all 
 its property to another company in consid- 
 eration of shares in the latter. McCutch- 
 eon v. Merz Capsule Co. 37 U. S. App. 586, 
 71 Fed. 787, 19 C. C. A. 108, 31: 415 
 
 e. Property Rights. 
 
 Power to Purchase or Transfer Property, 
 see supra, IV. d.
 
 CORPORATIONS, IV. f. 
 
 757 
 
 Effect of Dissolution on, see infra, VT. c. 
 Of Colleges, see Colleges, 3-5. 
 See also infra, 480. 
 
 192. The right of a corporation to occupy 
 city wharves with a warehouse connected 
 with an elevator, for any other purpose than 
 to store and handle grain, cannot be ques- 
 tioned by the owner of the fee- of the wharf 
 property on the ground that the corporation 
 is exceeding its corporate powers. Belcher's 
 Sugar Ref. Co. v. St. Louis Grain Elev. Co. 
 101 Mo. 192, 13 S. W. 822, 8: 801 
 Ownership of property. 
 
 See also infra, 828, 829. 
 
 193. The power of a corporation to ac- 
 quire and hold title to real estate cannot be 
 questioned by any party except the state, 
 where it has power to hold real "estate for 
 some purposes. Hamsher v. Hamsher, 132 
 111. 273, 23 N. E. 1123. 8: 556 
 
 194. Vacant land may be held by a cor- 
 poration when necessary for use in its busi- 
 ness in the near future. People ex rel. 
 Moloney v. Pullman's Palace Car Co. 175 111. 
 125, 51 N. E. 664, 64: 366 
 
 195. Vacant lots kept for future dwell- 
 ings cannot be owned by a corporation in 
 the exercise of its implied powers, when 
 they constitute part of a tract on which 
 the corporation has built a town in excess 
 of its powers. Id. 
 
 196. The ownership of an office building 
 near the business center of a city, by a 
 manufacturing corporation, does not ex- 
 ceed its incidental powers merely because 
 the building is larger than its needs for 
 present use, and a part of it is therefore 
 rented, if it is probable that the whole 
 building will be needed for its own business 
 in the future. Id. 
 
 197. The ownership, by a manufacturing 
 corporation, of a town or city of more than 
 2,000 houses, with streets, alleys, sewer sys- 
 tem, dwellings, tenement houses, churches, 
 hotel, schools, theater, and business build- 
 ings, no one of which is occupied by any 
 other than a tenant of the corporation, is 
 contrary to public policy, and in excess of 
 the implied powers of the corporation. Id. 
 
 198. The ownership of a sewerage sys- 
 tem, and of a sewerage farm on which 
 vegetables are raised for sale, is not within 
 the implied powers of a corporation because 
 of the necessity of sewerage for a town 
 owned by it, when the ownership of such 
 town is in excess of its powers. Id. 
 
 199. A corporation, although created for 
 a limited period, may take from a city in 
 which the title to streets is vested,- by a 
 grant of a franchise to maintain a street 
 railroad, an interest in perpetuity which is 
 irrevocable. People v. O'Brien, 111 N. Y. 
 1, 18 N. E. 692, 2: 255 
 
 200. A deed conveying lands to a corpo- 
 ration by name before the charter had been 
 obtained, signed and acknowledged by the 
 grantor and delivered to a third party, with 
 directions to retain it until the corporation 
 obtained its charter and organized, and then 
 to deliver it to the corporation; and which, 
 after the charter had been received and the 
 corporation organized under it, such third 
 
 person delivered to the corporation, which 
 accepted it, operated as a valid conveyance 
 of said land to the corporation from the 
 date of the delivery of said deed to it. 
 Spring Garden Bank v. Hulings Lumber Co. 
 32 W. Va. 357, 9 S. E. 243, 3 : 583 
 
 Power to take by will. 
 
 Capacity to Take Devise or Bequest, see 
 .Charities, 64-68; Corporations, 59-62. 
 See also infra, 830. 
 For Editorial Notes, see infra, VIII. 10. 
 
 201. A corporation, by the common law, 
 had power to take property by devise. Re 
 McGraw's Estate, 111 N. Y. 66, 19 N. E. 233, 
 
 2:387 
 
 f. Liabilities. 
 
 After Consolidation, see supra, 56-58. 
 
 Power of Officers and Agents to Bind, see 
 infra, IV. g, 2. 
 
 Liability on Notes, see infra, 295-302. 
 
 Liability in Case of Forged or Fraudulent 
 Issue of Stock, see infra, V. d. 
 
 Liability in Assumpsit on Agreement to Re- 
 pay Loan, see Assumpsit, 11, 12. 
 
 As Bailee, see Bailment, 24. 
 
 Illegal Combinations by, in Restraint of 
 Trade, Commerce, and Competition, see 
 Conspiracy, II. 
 
 For Services Rendered under Agreement 
 with Promoter, see Contracts, 10. 
 
 Default on Indictment against, see Crimi- 
 nal Law, 188. 
 
 For Causing Death, see Deatn, 43. 
 
 For Loan on Note of Individuals, see Debt- 
 or and Creditor, 3. 
 
 For Maintaining Nuisance, see Highways, 
 50; Nuisances, 107. 
 
 See also supra, 118; infra, 678, 734. 
 
 For Editorial Notes, see infra, VIII. 13, 
 47. 
 
 202. Corporations are not bound by false 
 and simulated entries upon their records un- 
 less they have estopped themselves to deny 
 their truth. City Electric Street R. Co. v. 
 First Nat. Exch. Bank, 62 Ark. 33, 34 S. 
 W. 89, 31 : 535 
 
 203. A corporation cannot escape liabil- 
 ity, to the owner of its registered bonds for 
 their value, where it has canceled the regis- 
 tration, and made them payable to bearer, 
 contrary to its agreement, by the fact that 
 its transfer agent was deceived by the for- 
 geries of the agent of the owner, where 'such 
 agent, in dealing with the bonds, was acting 
 entirely outside the scope of his authority. 
 Jennie Clarkson Home for Children v. Mis- 
 souri, K. & T. R. Co. 182 N. Y. 47, 74 N. E. 
 571, 70: 787 
 For tort. 
 
 Revival of Libel Suit against Trustees after 
 Dissolution, see Abatement and Re- 
 vival, 46. 
 
 Liability for Conspiracy, see Conspiracy. 
 
 Creditors' Bill for, see Creditors' Bill, 6. 
 
 Liability for Arrest by, see False Imprison- 
 ment, 4, 13-20. 
 
 Joint Liability of Corporation and Agent 
 for Causing Death, see Joint Creditors 
 and Debtors, 3. 
 
 For Editorial Notes, see infra, VOT. 13.
 
 758 
 
 CORPORATIONS, IV. g, 1. 
 
 2U4. Corporations can be held liable in 
 damages for torts done in pursuance of con- 
 spiracy and combination between them and 
 other corporations or persons, the same as 
 natural persons. West Virginia Transp. Co. 
 v. Standard Oil Co. 50 W. Va. ell, 40 S. 
 E. 591, 56: 804 
 
 205. A corporation is not responsible for 
 imauthorized and unlawful acts of its offi- 
 cers, though done colore offlcii. Central R. 
 Co. v. Brewer, 78 Md. 394, 28 Atl. 615, 27 : 63 
 
 206. An educational corporation engaged 
 in operating a public ferry carrying passen- 
 gers tor hire cannot escape liability for 
 negligence in the management of the ferry, 
 on the ground that the business was ultra, 
 vires. Ninas v. Mt. Hermon Boys' School, 
 160 Mass. 177, 35 N. E. 776, 22: 364 
 
 207. A corporation cannot be held liable 
 to one who is injured in attempting to save 
 its superintendent from peril, on the ground 
 that it ought to have anticipated that, 
 when the superintendent placed himself in 
 peril, someone, upon discovering that fact, 
 would attempt to shield him, where there 
 is nothing to show that the work under- 
 taken by the superintendent might not have 
 been done with safety; since the company 
 was not bound to assume that the superin- 
 tendent would needlessly expose himself, or 
 that, in case he did so, someone would im- 
 peril his own safety to rescue him. Savior 
 v. Parsons, 122 Iowa, 679, 98 X. W. 600, 
 
 64: 542 
 
 208. A corporation may become civilly re- 
 sponsible for libel. Missouri P. R. Co. v. 
 Richmond, 73 Tex. 568, 11 S. W. 555, 4: 280 
 After transfer of franchise. 
 
 Inability of Transferee, see supra, 63-68. 
 
 209. The original obligation of a railroad 
 company to the public cannot be discharged 
 by a transfer of its franchises to another 
 company, except by legislative enactment 
 consenting to and authorizing such transfer, 
 with an exemption granted to such com- 
 pany relieving it from liability. Legis- 
 lative consent to the transfer is not alone 
 sufficient; there must be a release from the 
 obligations of the company to the public. 
 Chollette v. Omaha & R. V. R. Co. 26 Neb. 
 159, 41 N. W. 1106, 4: 136 
 
 210. A railroad company organized and 
 incorporated under the laws of Nebraska 
 cannot absolve itself from the performance 
 of duties imposed upon it by law, or relieve 
 itself from liability for the wrongful acts 
 or omissions of duty of persons operating 
 
 .its road, by transferring its corporate 
 powers to them, or permitting them to 
 operate its road as owners of its capital 
 stock. To allow it to do so would be con- 
 trary to the public policy of the state as 
 expressed in its Constitution and laws with 
 reference to railroad companies. Id. 
 
 Criminal liability. 
 
 For Criminal Contempt, see Contempt. 18. 
 For Editorial Notes, see infra, VTII. 13. 
 
 211. A corporation in the hands of a re- 
 ceiver who has full possession of its prop- 
 erty and entire charge of its affairs cannot 
 be prosecuted for crimes and misdemeanors 
 committed by his agents or servant*. State 
 
 v. \Vabash R. Co. 115 Ind. 466, 17 N. E. 909, 
 
 1: 179 
 
 g. Officers; Meetings. 
 1. In General; Qualifications. 
 
 Meetings of Corporate Stockholders, see 
 infra, V. g. 
 
 Validity of Increase of Directors, see infra, 
 644. 
 
 Preference to, in Case of Insolvency, see 
 infra, 786-802. 
 
 Recovery Back by Corporation* of Money 
 Paid on Debt of, see Assumpsit, 44. 
 
 As to Officers of Banks, see Banks, III. 
 
 Bonds for Fidelity of Officers, see Bonds, II. 
 b. 
 
 Vested Right of Stockholders to Elect Di- 
 rectors, see Constitutional Law, 138. 
 
 Agreement not to Engage in Competitive 
 Business, see Contracts, 581. 
 
 Presumption as to Knowledge of, see Evi- 
 dence, 311-315. 
 
 Notice of Corporate Matters to Officers or 
 Stockholders, see Notice, 19, 20. 
 
 Remedy for Enforcing Rights of Director, 
 see Quo Warranto, 6. 
 
 Death of Officer as Affecting Competency of 
 Witnesses, see Witnesses, 60. 
 
 Service of Process on Officer or Agent, see 
 Writ and Process, 21-24, 31-40. 
 
 See also supra, 72; infra, 684. 
 
 For Editorial Notes, see infra, VIII. 14. 
 
 212. It is a matter of common knowledge 
 that where the ownership of a majority of 
 the stock of a corporation changes, the 
 board of directors usually change, unless 
 its members are already in harmony with 
 the policy of its purchasers. Farmers' 
 Loan & T. Co. v. New York & N. R. Co. 
 150 N. Y. 410, 44 N. K 1043, 34: 76 
 Legality of election of officers. 
 
 Of Bank Officers, see Banks, 27. 
 See also infra, 641, 654. 
 
 213. Original members of a corporation, 
 who organized and chose officers to repre- 
 sent the corporation as their successors, 
 cannot, after the lapse of thirty-two years, 
 ignore their former action, and choose new 
 officers upon discovering that the original 
 choice was illegal, where, in the meantime 
 the affairs of the corporation have been 
 regularly carried on under the belief that 
 the first action was legal. Cooke v. Mar- 
 shall, 191 Pa. 315. 43 Atl. 314, 196 Pa. 200, 
 46 Atl. 447, 64: 413 
 
 214. The acts of trustees of a corpora- 
 tion elected in strict conformity with the 
 by-laws of the corporation for a long period 
 of time, during which their title was un- 
 questioned, will be regarded as entirely le- 
 gal, although they were elected by holders 
 of stock which the corporation had no 
 power to create. Id. 
 Review of election to vacancy. 
 
 215. The word "election," in a statute pro- 
 viding for the review of "any election held 
 by any corporate body," applies only to an 
 election by the stockholders, and not to a 
 selection by the board of directors of a per- 
 son to fill a vacancy in the board, where
 
 CORPORATIONS, IV. g, 2. 
 
 759 
 
 the statutes provide that the directors shall 
 
 be elected annually by the stockholders, 
 
 and also provide for filling a vacancy by 
 
 "an appointee of the board." Wickersham 
 
 v. Brittan, 93 Cal. 34, 28 Pac. 792, 15: 106 
 
 Qualifications. 
 
 Qualification of Bank Officers, see Banks, 
 
 28-30. 
 
 210. A joint stock corporation has power 
 by by-law to declare that no person who is 
 attorney against it in a suit shall be elig- 
 ible as a director. Cross v. West Virginia 
 C. & P. R. Co. 37 W. Va. 342, 16 S. E. 587, 
 
 18: 582 
 
 217. Power to prescribe reasonable quali- 
 fications of its directors by by-law is in- 
 cluded in power to make such by-laws, rules, 
 and regulations for the management and 
 government of the affairs of the corporation, 
 its officers, directors, and agents, as may 
 be deemed necessary or proper. Id. 
 
 218. A person not a citizen of Pennsyl- 
 vania who is a citizen of the United States 
 can become a member of the Farmers & 
 Mechanics Institute of Northampton Coun- 
 ty, Pennsylvania, there being no statutory 
 or charter provision against his doing so; 
 and such nonresident stockholder takes his 
 shares with all the rights and privileges 
 which pertain to them in the hands of a 
 citi/on, and he may vote upon them, and, 
 where no other qualification than ownership 
 of stock is required of the directors, may 
 become a director. Detwiller v. Com. ex rel. 
 Dickinson. 131 Pa. 614, 18 Atl. 990, 7: 357 
 
 219. One wno is not a citizen of the 
 United States, but is, and for many years 
 has been, a resident and property holder in 
 Pennsylvania, can become a stockholder, 
 and is entitled to vote at the stockholders' 
 meetings, and may be legally elected as a 
 director of a corporation founded under the 
 Pennsylvania laws. Com. ex rel. Robinson 
 v. Hemingway. 131 Pa. 636. 18 Atl. 992, 
 
 7: 360 
 
 220. The transferee of stock upon the cor- 
 porate records is qualified to vote and be- 
 come a director, although the transfer was 
 made for the express and sole purpose of 
 so qualifying him, if it was not in further- 
 ance of a fraudulent scheme. Re Argus 
 Printing Co. 1 N. D. 434, 48 N. W. 347, 
 
 12: 781 
 
 221. To be eligible as a director under a 
 statute which requires directors to be stock- 
 holders, a person must appear to be a stock- 
 holder on the corporate records. Id. 
 
 222. Persons who are not members of an 
 assessment fire association cannot lawfully 
 fill the office of director thereof. State ex 
 rel. Richards v. Manufacturers' Mut. F. 
 Asso. 50 Ohio St. 145, 33 N. E. 401, 24: 252 
 
 223. By-laws of a corporation providing 
 that when any director snail die, resign, ne- 
 glect to serve, or remove out of the county, 
 the board may proceed to supply the 
 vacancy, do not authorize a director to be 
 ousted on the ground that he is a non- 
 resident of the commonwealth. Detwiller 
 v. Com. ex rel. Dickinson. 131 Pa. 614, 18 
 Atl. 990, 7: 357 
 
 2. Powers. 
 
 Power to Deal in Own Interests, see infra, 
 IV. g, 4. 
 
 Of Bank Officers, see Banks, III. b. 
 
 Of General Manager, Presumption as to, see 
 Evidence, 288. 
 
 Admissibil'ity of Declarations by Agents and 
 Officers, see Evidence, 1619-1629. 
 
 Injunction against Making Notes, see In- 
 junction, 228. 
 
 Of Insurance Agent, see Insurance, I. d; V. 
 b, 3. 
 
 Imputing Officer's or Agent's Knowledge to 
 Corporation, see Notice, 21, 33, 41, 42, 
 58-73. 
 
 Allegation as to, see Pleading, 315. 
 
 Limitation by By-Laws on Authority of 
 Agent, see Principal and Agent, 10. 
 
 Competency of Officer as Witness, see Wit- 
 nesses, 59. 
 
 See also supra, 123, 132, 133; infra, 451. 
 
 For Editorial Notes, see infra, VIII. 15. 
 
 224. An agent to whom are intrusted the 
 entire management and control of a cor- 
 poration whose stockholders hold no meet- 
 ings has power to make an assignment of 
 its property for its creditors. Conely v. 
 Collins, 119 Mich. 519, 78 N. W. 555, 44: 844 
 
 225. An officer of a corporation does not 
 act as its agent in negotiating a certificate 
 of stock as security for his individual debts, 
 so as to bind the company by his represen- 
 tations as to his ownership of the cer- 
 tificate, which was in fact stolen, the trans- 
 action being one which in no way concerns 
 his official duty, but being wholly for his 
 own personal profit. Farmers' Bank v. Die- 
 bold Safe & L. Co. 66 Ohio St. 367, 64 N. E. 
 518, 58: 620 
 
 226. The exercise of the power to make 
 negotiable notes by officers of a corporation 
 does not raise a presumption of their au 
 thority to do so, in the absence of a usage 
 or custom from which such authority can 
 be implied. City Electric Street R. Co. v. 
 First Nat. Exch. Bank, 62 Ark. 33, 34 S. 
 W. 89, 31 : 535 
 
 227. Persons dealing with the agent of a 
 foreign corporation, who has been consti- 
 tuted its general resident manager and is 
 engaged in carrying on the business of the 
 corporation in a distant land, have a right 
 to assume, in the absence of notice, that the 
 manager's authority extends to all usual 
 dealings necessary to the business, and are 
 not bound by secret limitations or instruc- 
 tions qualifying the terms of the written or 
 verbal appointment. Rathburn v. Snow, 
 123 N. Y. 343, 25 N. E. 379, 10: 355 
 Of president. 
 
 Of Bank President, see Banks, 31-34. 
 
 Taking Note from, as Security for, or in 
 Payment of, Individual Debt, see Bills 
 and Notes, 247, 256. 
 
 Evidence of Admission by, see Evidence. 
 944. 
 
 Imputing President's Knowledge to Corpo- 
 ration, see Notice, 42, 61. 
 
 See also infra. 765. 
 
 For Editorial Notes, sec infra. VTTT.-S 16.
 
 760 
 
 CORPORATIONS, IV. g, 2. 
 
 228. The president of a corporation has 
 no implied authority to act as its agent. 
 Wait v. Nashua Armory Asso. 66 N. H. 581, 
 23 Atl. 77, 14: 356 
 
 229. The management of the entire busi- 
 ness of a corporation may be intrusted to 
 its president, either by an express resolu- 
 tion of the directors or by their acquies- 
 cence in a course of dealing. Jones v. Wil- 
 liams, 139 Mo. 1, 39 S. W. 486, 40 S. W. 353, 
 
 37: 682 
 
 230. Statutes requiring a corporation to 
 be controlled and managed by directors, but 
 authorizing them to appoint such subordin- 
 ate officers and agents as the business may 
 require, do not prevent the directors from 
 intrusting the entire management of the 
 business to a president, as this is not a dele- 
 gation of corporate rights and powers, but 
 a mere authorization to perform the busi- 
 ness for and in the name of the corpo- 
 ration. Id. 
 
 231. A corporation which used mules in 
 its business is liable on notes for mules 
 given in its name by its president, where 
 he had frequently bought mules of the 
 payee and given therefor notes of the cor- 
 poration, which it had always paid, and the 
 sello.r had no reason to suppose that the 
 present purchase was not made for the cor- 
 poration as the president represented it to 
 be. Sparks v. Despatch Transfer Co. 104 
 Mo. 531, 15 S. W. 417, 12: 714 
 
 232. The president of a corporation, who 
 is its general manager, has authority to 
 adopt and ratify a contract made by him- 
 self for the corporation before it was legally 
 created, for the performance of services for 
 the company, which he would have power 
 to engage if no previous contract existed. 
 Oakes v. Cattaraugus Water Co. 143 N. Y. 
 430, 38 N. E. 461, 26: 544 
 
 233. An agreement on behalf of a bank, 
 executed by the president and manager, 
 with the approval of its vice president, to 
 waive a defense under the statute of limi- 
 tations, may be sufficient to bind the bank, 
 although it was not ratified by the direc- 
 tors, and they were not aware of its exe- 
 cution, where the entire management of 
 the business was left to the president and 
 vice president, and they were not accus- 
 tomed to report their actions to the direc- 
 tors, or to ask a ratification thereof, or first 
 to obtain special authority before perform- 
 ing particular acts, while a by-law of the 
 bank provided that the manager should 
 have power to perform all duties which the 
 interests of the bank misht require. Wells, 
 F. & Co. v. Enright. 127 Cal. 669, 60 Pac. 
 430, 49: 647 
 Of president and secretary. 
 
 Power of Secretary to Take Acknowledg- 
 ment, see Acknowledgment, G. 
 
 Of Secretary of Loan Association, see Build- 
 ing and Loan Associations, 3. 
 
 234. The president and secretary of a cor- 
 poration have no inherent power to execute 
 negotiable notes in its name. City Electric 
 Street R. Co. v. First Nat. Exch/Bank, 62 
 Ark. 33, 34 S. W. 89, 31 : 535 
 
 Of president and actuary. 
 
 235. A contract for the employment dur- 
 ing life of a person to act in a medical 
 capacity for a life insurance company is 
 not within the authority conferred upon 
 the president and actuary by a by-law em- 
 pow.ering them to "appoint, remove, and fix 
 the compensation of each and every person, 
 except agents, employed by the company," 
 where the members of the board of trus- 
 tees, to whom the management and control 
 of the corporation are given, hold office only 
 for four years each. Carney v. New York 
 L. Ins. Co. 162 N. Y. 453, 57 N. E. 78, 49: 471 
 Of vice president. 
 
 Imputing Vice Principal's Knowledge to 
 
 Corporation, see Notice, 69. 
 For Editorial Notes, see infra, VIII. 16. 
 
 236. A chattel mortgage on corporate 
 property, executed by the vice president of 
 the corporation, is valid under a statute 
 permitting corporations to convey lands by 
 deed signed by- .the president, vice president, 
 or presiding member or trustee of the cor- 
 poration, especially when he is expressly 
 authorized to do so by the directors. 
 American Exch. Nat. .bank v. Ward, 49 C. 
 C. A. 611, 111 Fed. 782, 55: 356 
 Of treasurer. 
 
 Power to Take Acknowledgment, see 
 Acknowledgment, 6. 
 
 Binding Effect on Treasurer, of Books Kept 
 by Him, see Evidence, 966. 
 
 Imputing Treasurer's Knowledge to Corpo- 
 ration, see Notice, 41. 
 
 237. A corporation is bound by the act 
 of its treasurer in contracting to pay a 
 mortgage upon property which has been 
 transferred to the corporation, where the di- 
 rectors have ceased to hold meetings, and 
 permit the treasurer to attend to the man- 
 agement of the financial and fiscal affairs of 
 the company. Franklin Sav. Bank v. Coch- 
 rane, 182 Mass. 586, 66 N. E. 200, 61 : 760 
 
 238. A charitable corporation is not bound 
 by the act of its treasurer in forging a 
 power of attorney and resolution authoriz- 
 ing the transfer of registered securities 
 belonging to it, where his duties are ex- 
 pressly confined to the care of the secur- 
 ities, and he has been given no authority, 
 either expressly, or by holding him out as 
 possessing it, to sell or dispose of them. 
 Jennie Clarkson Home for Children v. Mis- 
 souri, K. & T. R. Co. 182 I\ T . Y. 47, 74 N. 
 E. 571, 70: 787 
 
 239. The treasurer of a horse railroad cor- 
 poration has no authority to borrow money 
 for the company unless such authority is 
 expressly given him. Craft v. South Bos- 
 ton R. Co. 150 Mass. 207, 22 N. E. 920, 
 
 5: 641 
 
 Of directors or trustees generally. 
 
 Power to Take Acknowledgment, see 
 Acknowledgment, 5. 
 
 Of Directors of Voluntary Association, .see 
 Associations, 26. 
 
 Of Bank Directors, see Banks, 52. 
 
 Power of Courts to Review Action of Di- 
 rectors, see Carriers, 1118. 
 
 Imputing Director's Knowledge to Corpo- 
 ration, see Notice, 33. 61, 62, 69.
 
 CORPORATIONS, IV, g, 8. 
 
 761 
 
 After Appointment of Receiver, see Re- 
 ceivers, 58. 
 
 Of Public Corporation, see State Institu- 
 tions, 2. 
 
 Subrogation of, see Subrogation, 4. 
 
 See also supra, 120, 142, 230, 233; infra, 
 485. 
 
 For Editorial Notes, see infra, VIII. 15. 
 
 240. An extension of the business of a 
 corporation into another state is within the 
 power of the directors. Lewis v. American 
 Sav. & L. Asso. 98 Wis. 203, 73 N. W. 793, 
 
 39: 559 
 
 241. The power to enact suitable by-laws 
 rests in the stockholders of a corporation, 
 and is not included in the general power of 
 the directors to control the stock and busi- 
 ness of the company. North . Milwaukee 
 Town-Site Co. v. Bishop, 103 Wis. 492,. 79 
 N. W. 785, 45: 174 
 
 242. Authority given to a board of direc- 
 tors to execute a note for a certain sum of 
 money and interest does not authorize them 
 to include in the note a stipulation for an 
 attorney's fee, if collected by an attorney. 
 Hardin v. Iowa R. & Constr. Co. 78 Iowa, 
 726, 43 N. W. 543, 0: 52 
 
 243. Where a tripartite agreement be- 
 tween three corporations has been held in- 
 valid as to one of them, an action co sever 
 the contractual relations is within the hon- 
 est discretion of the directors of the other 
 companies. Beveridge v. New York Elev. 
 R. Co. 112 N. Y. 1, 19 N. E. 489, 2: 648 
 
 244. An agreement by the directors of a 
 corporation, made in good faith and with 
 apparent reasons, to reduce the amount of 
 moneys payable under a lease of their cor- 
 poration, is not in excess of their power or 
 voidable at the instance of the stockholders, 
 especially where nearly nine tenths of 
 them have acquiesced and given practical 
 effect to the agreement. Id. 
 
 245. Silent acquiescence by directors of a 
 corporation in acts of its building commit- 
 tee in procuring bids and letting the con- 
 tract for the building, with full knowledge 
 of such acts, will make the contract binding 
 on the corporation, although the committee 
 had in fact no authority to make it. Mc- 
 Neil v. Boston Chamber of Commerce, 154 
 Mass. 277, 28 N. E. 245, 13:559 
 Of majority of directors. 
 
 246. A corporation is liable for the value 
 of extra work done by a contractor under 
 orders of a director who promised that the 
 company would pay for it, although the di- 
 rector acted without authority, where a 
 majority of the directors knew that the 
 contractor was doing the work, and that he 
 had refused to do it without extra pay, and 
 the company received and retained the 
 benefit. Tryon v. White & C. Co. 62 Conn. 
 181, 25 Atl. 712, 20:291 
 
 247. Four of the six directors who own in 
 equal shares all the stock of a corporation 
 formed for establishing a summer resort 
 upon its land may make a binding dedica- 
 tion of portions of such land to the public 
 for parks. Attorney General v. Abbott, 154 
 Mass. 323, 28 N. E. 346, 13: 251 
 
 Of majority of committee. 
 
 248. A majority of a committee appoint- 
 ed by a corporation to contract for the erec- 
 tion of a building may, in the absence of 
 the other members, lawfully act in letting 
 the contract. McNeil v. Boston Chamber of 
 Commerce, 154 Mass. 277, 28 N. E. 245, 
 
 13:559 
 3. Compensation. 
 
 Of Promoters, see infra, 335-341. 
 
 Of Trustee Acting as President, see Trusts, 
 172. 
 
 Parol Evidence as to Fixing, see Evidence, 
 1226. 
 
 Evidence as to Corporate Existence, see Evi- 
 dence, 2179. 
 
 See also infra, 269-272, 276, 282, 487. 
 
 For Editorial Notes, see infra, VIII. 50. 
 
 249. Electing one president of a corpora- 
 tion, who, after the expiration of a con- 
 entitle him to a salary for any specified 
 time. Busell Trimmer Co. v. Coburn, 188 
 Mass. 254, 74 N. E. 334, 69: 821 
 
 250. A unanimous vote of the directors 
 allowing the president of the corporation to 
 draw $100 per month in addition to his sal- 
 ary, to be used "for all special purposes" in 
 connection with sales in its business, will 
 not be assumed to be for an unlawful pur- 
 pose. Clark v. American Coal Co. 86 Iowa, 
 436, 53 N. W. 291, 17:557 
 
 251. For services of a director clearly out- 
 side of his duties as such, and in pursuance 
 of an express contract made in good faith, 
 he is entitled to compensation if the serv- 
 ices are such as the company may legally 
 contract for. Brown v. Republican Moun- 
 tain Silver Mines, 17 Colo. 421, 30 Pac. 66, 
 
 16: 426 
 
 252. The general manager of a corpora- 
 tion, who, after the expiration of a con- 
 tract fixing his salary at $5,000 per year, 
 continues in the same employment, without 
 any new agreement, and afterwards volun- 
 tarily reduces his salary to $3,000 per year, 
 drawing it from month to month thereafter 
 on that basis for many years, until he gives 
 up the office, cannot subsequently recover 
 the balance of the $5,000 per annum at 
 which the salary was originally fixed. 
 Home F. Ins. Co. v. Barber, 67 Neb. 644, 93 
 N. W. 1024, 60: 927 
 After close of term of service. 
 
 253. The right of officers of a corporation 
 to their salaries is terminated, although 
 their term of office has not expired, by the 
 appointment of a receiver for the company 
 on account of its insolvency, since the ap- 
 pointment of the receiver operates as a dis- 
 solution of any contract between the parties 
 for such services by the sovereign power 
 of the state. Lenoir v. Linville Improv. Co. 
 126 N. C. 922, 36 S. E. 185, 51: 146 
 
 254. A by-law of a corporation providing 
 for the removal of officers by the board of 
 directors at pleasure constitutes part of the 
 contract of employment of a secretary at a 
 designated yearly salary, with no special 
 agreement as to the time of service. Doug- 
 lass v. Merchants Ins. Co. 118 N. Y. 484, 23 
 N. E. 806, 7: 822
 
 762 
 
 CORPORATIONS, IV. g, 4. 
 
 In absence of express contract or provision. 
 
 255. One claiming to be president of a 
 corporation under an election by a body 
 claiming to be the board of directors, but 
 which is not even a de facto b9ard, cannot 
 recover the salary of such officer although 
 for about two years he has performed some 
 acts as president, where during all such 
 time his right was in dispute, and, except 
 for a few days, a receiver was in possession 
 of the corporate property. Waterman v. 
 Chicago & I. R. Co. 139 111. 658, 29 N. E. 689, 
 
 15: 418 
 
 256. Neither the president nor the other 
 officers of a corporation are entitled to any 
 compensation for official services on an im- 
 plied promise, in the absence of any by- 
 law or resolution of the directors allowing 
 such compensation. Crumlish v. Central 
 Improv. Co. 38 W. Va. 390, 18 S. E. 456, 
 
 23: 120 
 
 257. Directors of a corporation are not 
 entitled to compensation for their services 
 as such unless it is provided for or expressly 
 sanctioned by the charter. Brown v. Re- 
 publican Mountain Silver Mine, 17 Colo. 421, 
 30 Pac. 66, 16: 426 
 
 258. The director of a corporation, who 
 performs services for the corporation at the 
 request of the board of directors, is entitled 
 to recover on an implied promise to pay 
 what the services are reasonably worth, so 
 far as the amount has not been fixed by the 
 resolution of the board. Ten Eyck v. 
 Pontiac, O. & P. A. R. Co. 74 Mich. 226, 41 
 N. W. 905, 3:378 
 
 259. The general manager of a corpora- 
 tion, who is also a director, has a legal 
 claim for the value of his services, although 
 there has been no resolution of the board of 
 directors and no express contract fixing his 
 compensation, where he devotes his entire 
 time to the business, and his duties are 
 numerous and onerous and not such as per- 
 tain to his office as director. Bassett v. 
 Fairchild, 132 Cal. 637, 61 Pac. 791, 64 Pac. 
 1082, 52: 611 
 
 260. Directors who performed extraordi- 
 nary services at a very large expense of 
 both time and money, by which they saved 
 the corporation from bankruptcy by negoti- 
 ating a contract for the sale of its property 
 at a large price, after a committee appoint- 
 ed to negotiate a sale had failed to do so, 
 and at a time when the corporation was 
 without means to employ agents and could 
 not pay necessary traveling expenses, may 
 be paid a reasonable compensation voted 
 them by a majority of a quorum of stock- 
 holders after the services have been in large 
 part performed, although they engaged 
 therein without any contract for compensa- 
 tion, where they did so because they deemed 
 it improper to make such a contract with 
 themselves, and because it would have en- 
 dangered the success of their negotiations 
 to have called a meeting of the stockholders 
 at that time. Huffaker v. Germania Safety 
 Vault & T. Co. 107 Ky. 200. 53 S. W. 288, 
 
 46: 384 
 
 261. The fact that a person entering into 
 an executorv contract with a corporation. 
 
 necessitating in its execution the expendi- 
 ture of money and labor, is a director of the 
 corporation, does not affect his right, upon 
 the termination of the contract by the in- 
 solvency and dissolution of the corporation, 
 to compensation for services rendered, and 
 to reimbursement for expenses incurred, 
 under the contract, where the contract was 
 entered into openly, without fraud, and the 
 other directors and the stockholders were 
 fully informed of its terms, and permitted 
 it to be partly executed without disapprov- 
 al. Griffith v. Blackwater Boom & L. Co. 
 55 W. Va. 604, 48 S. E. 442, 69: 124 
 
 Accounting for salary illegally received. 
 
 262. Officers of a corporation may be com- 
 pelled to account for all sums withdrawn 
 for salaries, with interest thereon, where 
 they have voted and paid them partly and 
 largely for the purpose of depriving stock- 
 holders of the results of a litigation in case 
 they are successful, although they are paid 
 nominally and partly for services rendered 
 to the company. Eaton v. Robinson, 19 R. 
 I. 146, 31 Atl. 1058, 29: 100 
 
 4. Fiduciary Relation. 
 
 Fiduciary Relation of Stockholder, see 
 infra, 464, 479, 493. 
 
 Presumption as to, see Evidence, 368. 
 
 Evidence of Fraud in Foreclosure, see Evi- 
 dence, 1794. 
 
 See also supra, 261 ; infra, 282, 493-495, 640, 
 643, 668, 669. 
 
 For Editorial Notes, see infra, VIII. 12, 
 18. 
 
 263. The managing officers of a corpora- 
 tion are not only trustees of the corporate 
 entity and the corporate property, but they 
 are also, to 'some extent and in many re- 
 spects, trustees for the corporate sharehold^ 
 ers. Stewart v. Harris, 69 Kan. 498, 77 
 Pac. 277, 66: 261 
 
 264. The directors of a corporation are 
 trustees for its stockholders. When the 
 corporation becomes insolvent the directors 
 become trustees for the corporation credit- 
 ors. Olney v. Conanicut Land Co. 16 R. I. 
 597, 18 Atl. 181, 5: 361 
 
 265. Stockholders who undertake to dis- 
 charge the functions of directors and con- 
 duct the affairs of the corporation become 
 subject to the same trust relation which 
 precludes directors from contracting with 
 themselves to the detriment of the corpo- 
 ration. Crichton v. Webb Press Co. 113 La. 
 167, 36 So. 926. 67: 76 
 Officer dealing individually with corpo- 
 ration. 
 
 See also supra, 261. 
 
 For Editorial Notes, see infra, VIII. 12. 
 
 266. The majority of a quorum of the 
 board of directors of a corporation must be 
 disinterested in respect to the matters voted 
 upon. Miner v. T5el!e Isle Ice Co. 93 Mich. 
 07, 53 X. W. 218. 17: 4i2 
 
 267. Directors cannot lawfully enter into 
 a contract in the benefit of which even one 
 of their number participates* without the 
 knowledge and consent of the stockholders.
 
 CORPORATIONS IV. g. 5. 
 
 763 
 
 Hodge v. United States Steel Corp. (X. ,T. 
 Err. & App.) 64 N. J. Eq. 807, 54 Atl. 1, 
 
 60: 742 
 
 268. Trustees or directors of a going cor- 
 poration are not by virtue of their office 
 precluded from buying bonds or other law- 
 ful obligations of the company at a dis- 
 count, with the right to enforce them 
 against the company for their full amount. 
 Seymour v. Spring Forest Cemetery Asso. 
 144 N. Y. 333, 39 N. E. 365, 26: 859 
 
 269. A director's vote for his own salary 
 will not render the proceedings void, where 
 the result would have been the same if he 
 had not voted. Clark v. American Coal Co. 
 86 Iowa, 436, 53 N. W. 291, 17: 557 
 
 270. Contracts fixing salaries of corporate 
 officers and rentals for property Jeased from 
 its president are absolutely void, 11 where he 
 and those who are merely his dummies, and 
 are furnished by him with stock for that 
 purpose, constitute a board of directors. 
 Miner v. Belle Isle Ice Co. 93 Mich. 97, 53 
 1ST. W. 218, 17: 412 
 
 271. Equity will not permit the members 
 of a corporation, whether as directors or as 
 stockholders, to vote to themselves the 
 money of the corporation over the protest 
 of their associates. Crichton v. Webb Press 
 Co. 113 La. 167, 36 bo. 926, 67: 76 
 
 272. Where the same five persons compose 
 both the directorate and the body of the 
 stockholders of a corporation, two of these 
 persons cannot, by joining with a third, 
 enter into contracts with the corporation, or 
 fix their own salaries, or vote allowances to 
 themselves, over the protest of their two 
 other associates. Id. 
 
 273. A ratification of his o\fn act by a 
 majority stockholder and his dummies, who 
 constitute the board of directors, cannot 
 purge it of its fraudulent character. Miner 
 v. Belle Isle Ice Co. 93 Mich. 97, 53 N. W. 
 218, 17:412 
 
 274. A contract by corporate directors, in 
 the benefit of which one of their number 
 participated, is voidable only, and not void 
 per se, and may be subsequently ratified by 
 the stockholders when the facts are dis- 
 closed to them. Hodge v. United States 
 Steel Corp. (N. J. Err. & App.) 64 N. J. 
 Eq. 807, 54 Atl. 1, 60: 742 
 
 275. A purchase of the property of a cor- 
 poration, in good faith, by directors who 
 have interests to protect, at a public sale 
 by an assignee or receiver of the property, 
 made by order of the court and subject to 
 its approval, is not invalid on account of 
 their fiduciary capacity^ but the transac- 
 tion will be jealously scrutinized. Janney 
 v. Minneapolis Industrial Exposition, 79 
 Minn. 488, 82 N. W. 984, 50: 273 
 
 276. A sale, by an officer of a corpora- 
 tion, of stock therein, nominally made to 
 other officers, but in reality made, as he 
 knew, to the corporation itself, and paid for, 
 as he knew, out of the assets of the com- 
 pany, is void as against its creditors, as a 
 gift to him of the company's assets, wheth- 
 er it is insolvent or not. Hall v. Hender- 
 son, 126 Ala. 449, 28 So. 531, 61: 621 
 
 277. Settlement with the treasurer by a 
 
 board of directors of a corporation is not in- 
 valid because the treasurer is a member of 
 the board. Troy Mining Co. v. White, 10 S. 
 D. 475, 74 N. W. 236, 42:549 
 
 Officer purchasing stock from shareholder. 
 
 278. A director or managing officer of a 
 corporation having a knowledge of the con- 
 dition of the affairs of such corporation, be- 
 cause of the trust relation and the superior 
 opportunities afforded for acquiring infor- 
 mation, must, before he can rightfully pur- 
 chase the stock of one not actively engaged 
 vi the management of its affairs, inform 
 such stockholder of the true condition of 
 the affairs of the corporation. Stewart v. 
 Harris, 69 Kan. 498, 77 Pac. 277, 66: 261 
 Dealings between corporations with same 
 
 officers. 
 
 See also supra, 187. 
 For Editorial Notes, see infra, VIII. 12. 
 
 279. The same person may fill the office 
 of president of two distinct corporations, 
 and such identity does not of itself in- 
 validate dealings between the two corpo- 
 rations. Leathers v. Janney, 41 La. Ann. 
 1120, 6 So. 884, 6: 661 
 
 280. The fact that some or a majority of 
 the directors of two corporations are com- 
 mon to both does not make a contract be- 
 tween the companies absolutely void, or pre- 
 vent its ratification. San Diego, O. T. & P. 
 B. R. Co. v. Pacific Beach Co. 112 Cal. 53, 44 
 Pac. 333, 33 : 788 
 
 5. Liabilities.' 
 
 a. To Stockholders or Creditors. 
 (1) In General. 
 
 Action by Corporate Stockholders against, 
 
 see infra, V. e, 2. 
 Liability of Promoters, see infra, 332-334, 
 
 349. 
 Joining Causes of Action against Directors, 
 
 see Action or Suit, 95. 
 
 Officers of Bank, see Banks, 55-^6, 382, 383. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 168. 
 For Fraudulently Dissolving Insurance 
 
 Company, see Insurance, 72. 
 Conclusiveness of Judgment as to, see 
 
 Judgment, 227. 
 
 Limitation of Action against, see Limita- 
 tion of Actions, 55. 
 Running of Limitations in Favor of, see 
 
 Limitation of Actions, 68 69. 
 Interruption of Running of Limitations as 
 
 to, see Limitation of Actions, 230. 
 Liability to Penalty for Injury Affecting 
 
 Public, see Penalties, 8. 
 Discharge of Director from Liability on 
 
 Mortgage, see Principal and Surety, 39. 
 See also supra, 262. 
 For Editorial Notes, see infra, VITI. 17, 
 
 18. 
 
 281. Directors of a corporation are 
 charged with the . duties of trustees, and 
 bound to care for its property and manage 
 its affairs in good faith: and for violation 
 of that duty, resulting in waste of its as- 
 sets, injury to its property, or unlawful
 
 764 
 
 CORPORATIONS, IV. g, 5. 
 
 gain to themselves, they are liable to ac- 
 count in equity the same as ordinary trus- 
 tees. Bosworth v. Allen, 168 N. Y. 157, 61 
 N. E. 163, 55: 751 
 
 282. In a suit to hold directors of a cor- 
 poration liable for money paid to one of 
 their number for services under a resolu- 
 tion invalid because passed at a meeting 
 at which his presence was necessary to con- 
 stitute a quorum, they should be credited 
 with an amount equal to what the services 
 are reasonably worth. Bassett v. Fair- 
 child, 132 Cal. 637, 61 Pac. 791, 64 Pac. 1082, 
 
 52: 611 
 
 283. The officers of an insurance company 
 which has no stock are wrongdoers in ac- 
 cepting money which they appropriate to 
 their own use to substitute the officers of 
 another company in their places, with a 
 view of transferring the business of the 
 company to the other one. Gilbert v. 
 Finch, 173 N. Y. 455, 66 N. E. 133, 61 : 807 
 
 284. The application of the funds of an 
 insurance company, by its directors, to the 
 purchase of the interest of the incorporators 
 of another company, with a view of trans- 
 ferring its business to their own, is a waste 
 of funds which will render the directors 
 personally liable in damages to a subse- 
 quently appointed receiver of their com- 
 pany, when the other company has no stock, 
 and therefore nothing to transfer, so that 
 all that is accomplished is a substitution 
 of the purchasing directors as officers in the 
 ot her company. Id. 
 
 285. That the affairs of a corporation 
 have been placed in the hands of a receiver 
 neither takes away nor suspends the right 
 of action, under the Minnesota statute, by 
 a creditor against the directors who as- 
 sented to a violation of law by the corpo- 
 ration. Patterson v. Minnesota Mfg. Co. 
 41 Minn. 84, 42 N. W. 926, 4: 745 
 Engaging in ultra vires business. 
 
 See also infra, 302. 
 
 286. An officer of a corporation is not 
 liable to it for damages caused by his mere 
 error of judgment, although in a business 
 which was ultra vires, but which the corpo- 
 ration was actually carrying on. Holmes, 
 B. & H. v. Willard, 125 N. Y. 75, 25 N. E. 
 1083, 11: 170 
 
 287. Individual liability of the officers of 
 a corporation upon contracts made in a 
 business conducted by them on behalf of 
 the corporation does not necessarily follow 
 from the mere fact that such business is 
 beyond tho power of the corporation to en- 
 gage in. Leinkauf v. Lombard, 137 N. Y. 
 417, 33 N. E. 472, 20: 48 
 
 288. The loose, defective, or irregular way 
 in which the business of a corporation is 
 conducted by its managers, who engage the 
 corporation in more or less independent 
 enterprises without much, if any, regard to 
 its charter powers, and without going 
 through the form of putting their acts in 
 official guise, or seeking corporate sanction, 
 will not make the contracts which are made 
 in the corporate business their individual 
 agreements. Id. 
 
 Assent to acts causing insolvency. 
 
 289. To constitute "assent" to acts in 
 violation of law, by the directors of a cor- 
 poration, under the Minnesota statute giv- 
 ing creditors of the corporation a right of 
 action against such assenting directors 
 where their acts shall cause insolvency, 
 there must be something more than mere 
 negligence on the part of a director in not 
 knowing what, in the exercise of proper 
 care, he ought to have known. There must 
 be some wilful or intentional violation of 
 duty, ordering the act done or assenting to 
 it, knowing that the act is being, or about 
 to be, done. But if, with such knowledge, 
 he neither objects to nor opposes it when 
 his duty requires and when he has the 
 opportunity of doing so, this is "assent." 
 Patterson v. Minnesota Mfg. Co. 41 Minn. 
 84, 42 N. W. 926, 4: 745 
 
 290. Under the Minnesota statute relat- 
 ing to the liability of directors assenting to 
 a violation of the law by the corporation, 
 causing its insolvency, a creditor of the cor- 
 poration may sue one or more of the direct- 
 ors to enforce the liability without joining 
 all the creditors to whom they are liable, 
 or all the directors subject to the liability. 
 
 Id. 
 
 291. If a series of acts, or a continuous 
 course of conduct, on the part of the direct- 
 ors of a corporation, in violation of * the 
 Minnesota statute,- finally producing the in- 
 solvency of the corporation, is begun be- 
 fore the debt of a creditor is contracted, 
 the debt is one contracted "after such 
 violation," although the series of acts or 
 course of conduct is not completed, or the 
 insolvency of the corporation consummated, 
 until afterwards; and the creditor has a 
 right of action against the directors assent- 
 ing to such unlawful conduct, under Minn. 
 Gen. Stat. chap. 34, 142. Id. 
 
 292. It is not necessary to an action under 
 the Minnesota statute by creditors of a cor- 
 poration against directors who have assent- 
 ed to a violation of the law, causing in- 
 solvency, that the creditors shall first ob- 
 tain judgment against the corporation, but 
 they may join it in the same action with 
 the directors. Id. 
 For dividends paid. 
 
 293. Dividends paid by the directors of a 
 cornoration when it is realizing a net profit 
 on its business, and when the assets as 
 honestly estimated by them exceed its lia- 
 bilities, will not render them individually 
 liable under a charter imposing such liabil- 
 ity for dividends paid when the company is 
 insolvent, although the assets prove to have 
 been largely overestimated and the com- 
 pany in fact insolvent. Tradesman Pub. 
 Co. v. Knoxville Car-Wheel Co. 95 Tenn. 634, 
 32 S. W. 1097, 31:593 
 For false representations as to stock. 
 
 See also supra, 278; Fraud and Deceit, 70. 
 
 294. Officers of a corporation who sign 
 and issue certificates of its stock in the 
 usual form, stating upon their faces that 
 the corporation is incorporated according to 
 the laws of a particular state, and that the 
 stock is nonassessable, thereby represent
 
 CORPORATIONS, IV. g, 5. 
 
 that the stock is not spurious or invalid be- 
 cause of their known acts or omissions, and 
 also that everything has been done which is 
 necessary to make the stock rightfully ex- 
 empt from further assessment; and, if such 
 representations are false, the officers will 
 be liable in damages to one who has taken 
 the certificates in good faith and for value, 
 relying upon the representations. Windram 
 v. French, 151 Mass. 547, 24 N. E. 914, 8: 750 
 On promissory notes. 
 Parol Evidence as to, see Evidence, 1167- 
 
 1172. 
 
 Personal Liability of Personal Represent- 
 ative, see Executors and Adminis- 
 trators, 81-83. 
 See also infra, 30*2. 
 For Editorial Notes, see infra, VIIJ. 17. 
 
 295. A promissory note purporting to be 
 that of a corporation, signed by a certain 
 person as president, the promise to pay 
 being plural instead of singular, is not 
 ambiguous on its face, although the word 
 "by," or its equivalent, is not used between 
 the name of the corporation and the person 
 signing. Liebscher v. Kraus, 74 Wis. 387, 
 43 N. W. 166, 5: 496 
 
 296. A note in which "the directors of the 
 Jonesville & Glencoe Turnpike Road prom- 
 ise to pay," etc., with the names of individ- 
 uals, without any official designation, signed 
 thereto, and which does not show that the 
 president of the company united in its exe- 
 cution, must be regarded upon its face as 
 the undertaking of the parties whose names 
 appear to it as obligors. McKensey v. Ed- 
 wards, 88 Ky. 272, 10 S. W. 815, 3: 397 
 
 297. A note reciting that "we promise to 
 pay," and signed with the name of a corpo- 
 ration and also by certain persons as presi- 
 dent and secretary respectively, binds such 
 persons individually; and a different intent 
 cannot be shown by parol. McCandless v. 
 Belle Plaine Canning Co. 78 Iowa, 161, 42 
 N. W. 635, 4: 396 
 
 298. The use of the words "we promise 
 to pay," in the body of a note signed in the 
 name of a corporation, followed by the name 
 of its president, does not show that it is his 
 individual note, or the joint note of himself 
 and the corporation. Reeve v. First Nat. 
 Bank (N. J. Err. & App.) 54 1ST. J. L. 208, 23 
 Atl. 853, 16: 143 
 
 299. A note signed by a corporate name 
 under which appears the name of an officer 
 of the company, with his corporate official 
 title affixed thereto, is taken conclusively to 
 be that of the corporation, where nothing 
 appears in the body of the note to indicate 
 the maker. Id. 
 
 300. A promissory note saying, "We 
 promise to pay," but naming no maker in 
 the body of it, and having for signature the 
 written words "John Roach, Treasurer," 
 over which is stamped into the paper a 
 large round seal bearing the name of a cor- 
 poration, is the note of the corporation, 
 and not the individual obligation of the 
 treasurer. Miller v. Roach, 150 Mass. 140, 
 22 N. E. 634, 6: 71 
 
 301. Directors of a corporation incur a 
 personal liability to it by voting for a 
 
 resolution which they have no power, ex- 
 press or implied, to pass, authorizing the 
 issue and negotiation of notes of the cor- 
 poration, which are in effect void, where 
 such notes are issued and come into the 
 hands of bona fide purchasers for value. 
 Metropolitan Elev. R. Co. v. Kneeland, 120 
 N. Y. 134, 24 N. E. 381, 8: 253 
 
 302. Ultra vires acts of directors in exe- 
 cuting accommodation paper in the name of 
 the corporation, or in lending its funds to 
 others, constitute a violation of the Min- 
 nesota statute "by the corporation," so as 
 to give creditors, after insolvency of the 
 corporation, a right of action against the 
 directors committing such ultra vires acts. 
 Patterson v. Minnesota Mfg. Co. 41 Minn. 
 84, 42 N. W. 926, 4: 745 
 
 (2) For Failure to Report. 
 
 For Omission from Report, see Fraud and 
 
 Deceit, 71. 
 Limitation of Action as to, see Limitation 
 
 of Actions, 194, 276. 
 See also infra, 699, 700. 
 
 303. Trustees of a corporation are not 
 personally liable for its debts on the ground 
 of failure to file the report required by 
 statute, merely because the acting trustees 
 who signed it, and who were a majority of 
 those actually elected, and of the number 
 fixed upon by a resolution reducing the 
 original number, were not a majority of the 
 original number, and the certificate of the 
 fact of such reduction of the number had 
 not been filed as required by statute. Wal- 
 lace v. Walsh, 125 N. Y. 26, 25 N. E. 1076, 
 
 11: 166 
 
 304. A report certified by a majority of 
 the board of trustees, who were in fact 
 authorized by the corporation and had pos- 
 session of its property and franchises and 
 undisputed control in the management of 
 its affairs, and which was verified by the 
 president of the board, and filed and pub- 
 lished within the time limited by statute, 
 is sufficient. Id. 
 
 305. Failure by directors of a corporation 
 to file the annual report of its assets, liabil- 
 ities, etc., required by W. Y. Law* 1875, 
 chap. 611, 18, will not render them per- 
 sonally liable for a contingent liability of 
 the corporation under an executory contract, 
 which does not become an existing debt 
 until after the corporation has expired by 
 the terms of its articles of incorporation. 
 Gold v. Clyne, 134 N. Y. 262, 31 N. E. 980, 
 
 17: 767 
 
 306. A statutory provision that the dis- 
 solution of a corporation shall not take 
 away or impair any remedy against its of- 
 ficers for any liability incurred previous to 
 its dissolution will not justify a personal 
 action against directors who have failed to 
 file the required statement of assets, liabil- 
 ities, etc., to collect a contract debt of the 
 corporation which did not mature until after 
 the corporation had expired by the terms of 
 its incorporation. Id. 
 
 307. The filing by the former directors of
 
 766 
 
 a corporation, of an annual report after the 
 corporation has expired by the terms of its 
 incorporation, will not, as matter of law, 
 raise any presumption that proceedings 
 have been taken for extending its life. Id. 
 
 (3) For Excess of Indebtedness. 
 
 See also supra, 322-324. 
 
 308. Consent to the creation of indebted- 
 ness of a corporation in excess of its assets, 
 which will make directors individually li- 
 able therefor under a statute imposing such 
 liability, must be given in their capacity as 
 directors. Tradesman Pub. Co. v. Knoxville 
 Car-Wheel Co. 95 Tenn. 634, 32 S. W. 1097, 
 
 31 : 593 
 
 309. The term "indebtedness," in the char- 
 ter of a corporation making directors li- 
 able personally for indebtedness in excess 
 of capital stock paid in, includes bonded 
 indebtedness. Id. 
 
 310. The term "capital stock paid in," in 
 the charter of a corporation making direct- 
 ors liable for debts in excess of such stock, 
 means the amount subscribed by the stock- 
 holders, and not the total value of the as- 
 sets. Id. 
 
 311. Although the directors' liability for 
 indebtedness of a corporation in excess of 
 the capital stock is available only in favor 
 of creditors whose debts were illegally con- 
 tracted, yet it cannot be enforced by each 
 creditor individually, but must be enforced 
 by a bill filed for the benefit of all creditors 
 similarly situated. Id. 
 For obligation incurred before stock sub- 
 scribed. 
 
 See also supra, 323. 
 
 312. Persons acting as directors of a cor- 
 poration when less than the necessary 
 amount of stock has been subscribed, and 
 thev are without authority to create any 
 corporate obligation, become personally 
 liable though acting in good faith. Farm- 
 ers' Co-Op. T. Co. v. Floyd, 47 Ohio St. 525. 
 26 1ST. E. 110, 12: 346 
 
 6. For Torts or Nuisances. 
 
 Joint Liability of Corporation and Agent 
 
 for Death, see Joint Creditors and 
 
 Debtors, 3. 
 Joinder of Corporation and Officers, see 
 
 Parties, 193. 
 Alleging Liability of Corporation, see 
 
 Pleading, 243. 
 See also Nuisances, 107. 
 For Editorial Notes, see infra, "VTII. 17. 
 
 313. The manager of a corporation in 
 charge of its work in constructing a build- 
 ing is personally liable for negligent failure 
 to erect a scaffold which is needed to pro- 
 tect persons near the walls. Mayer v. 
 Thompson -Hutchison Bldg. Co. 104 Ala. 611. 
 16 So. 620, 28: 433 
 
 314. An officer who is the general manag- 
 ing agent of a lumber cornpajiy may be held 
 personally liable for setting an inexperi- 
 enced and ignorant employee at work on a 
 machine which the former knows to be dan 
 
 CORPORATIONS, IV. g, 5. 
 
 gerous. Greenberg v. Whitcomb Lumber 
 Co. 90 Wis. 225, 63 N. W. 93, 28: 439 
 
 315. The liability of a director of a cor- 
 poration in tort is not to be avoided by his 
 vicarious character, where a tort of the 
 corporation has been committed through the 
 directors. Cameron v. Kenyon-Connell Com- 
 mercial Co. 22 Mont. 312, 56 Pac. 358, 
 
 44: 508 
 
 316. It is the duty of the directors of a 
 corporation dealing in explosives to exer- 
 cise such reasonable supervision over the 
 management of their company's business as 
 will result in the observance of the utmost 
 care on the part of the subordinates who di- 
 rect or handle the explosives. Id. 
 
 317. The liability of the officers of a cor- 
 poration for negligence in storing giant 
 powder in violation of law depends upon 
 their exercise of reasonable diligence in the 
 control and supervision of the business. Id. 
 
 318. It is the duty of the directors of a 
 corporation to avoid the creation of nui- 
 sances by their corporation through its em- 
 ployees acting within the line of their 
 duties. id. 
 
 319. A director who knows nothing of a 
 nuisance maintained by the corporation, and 
 who could not, by exercising ordinary dili- 
 gence in control, have known of it, or who 
 has performed his duty of taking care, is 
 not personally responsible for the nuisance. 
 
 Id. 
 
 320. Nonexecution of the duty of direct- 
 ors, which results in the positive act of 
 a creation and maintenance of a continuing 
 nuisance by the corporation, on account of 
 which a third person is killed, amounts, un- 
 less explained, to a misfeasance on their 
 part, or, if they have actual knowledge of 
 and authorize the nuisance, to malfeasance, 
 and is not merely a nonfeasance for which 
 the liability can be limited to the corpo- 
 ration only. Id. 
 
 321. The president and general manager 
 of a corporation are personally liable for 
 damages caused to a riparian proprietor by 
 the long-continued discharge of muddy 
 water into a stream from ore washers oper- 
 ated by the company with their sanction 
 and their knowledge of the damage caused 
 thereby. Nunnelly v. Southern Iron Co. 
 94 Tenn. 397, 29 S. W. 361. 28: 421 
 Liability for tort as a "debt contracted." 
 
 322. An excess of indebtedness for which 
 directors of a corporation can be held liable, 
 under R. I. Pub. Stat. ohap. 155, 15, can- 
 not include any claim or debt not existing 
 before the excess, unless contracted or 
 voluntarily incurred, and therefore cannot 
 include a judgment for a tort. Leightqn v. 
 Campbell/17 R. I. 51, 20 Atl. 14, 9! 187 
 
 323. "Debts contracted" before recording 
 a certificate for the payment of stock, for 
 which directors are liable under a statute, 
 do not include unliquidated claims for dam- 
 ages arising ex delicto. Id. 
 
 324. A judgment in tort is not a "debt 
 contracted," for which directors of a cor- 
 poration are liable under R. I. Pub. Stat. 
 cuap. 155, 3. 4. Id.
 
 CORPORATIONS, IV. g, 6, h. 
 
 76 1 ; 
 
 6. Meetings. 
 
 Vote of Directors in Their Own Interest, see 
 
 supra. IV. g, 4. 
 
 As to Stockholders' Meeting, see infra, V. g. 
 Presumption as to, see Evidence, 408. 
 Parol Evidence of Adoption of Resolution, 
 
 see Evidence, 767. 
 See also supra, 215. 
 
 Place of. 
 
 325. The office of the president or secre- 
 tary of a corporation will be presumed to 
 be a proper place for holding a meeting, 
 when there is no -regular place of business. 
 Troy Mining Co. v. White, 10 6. D. 475, 74 
 N. W. 236, 42: 549 
 Notice of. 
 
 326. The absence of a director* who was 
 disqualified from acting on a question con- 
 sidered at a special meeting of a board of 
 directors will not render the action invalid, 
 although no written notice of the meeting 
 had been given as prescribed by statute. 
 Iroy Mining Co. v. White, 10 S. D. 475, 74 
 IV. W. 236, 42: 549 
 
 327. The presence of all the directors of 
 a corporation at a special meeting of which 
 written notice has not been given, as re- 
 quired by S. D. Comp. Laws, 2932, subd. 
 4, makes the want of notice immaterial, as 
 the statute, although mandatory, has no 
 negative words. Id. 
 De facto board. 
 
 328. Those assuming to be the board of 
 directors of a corporation do not become a 
 de facto board by meeting on the day after 
 an illegal corporate' election under which 
 some of them claim, although there is a 
 quorum of the de jure directors present, but 
 without notice to the others, where their 
 meeting is not at the office of the company, 
 and they have not obtained possession or 
 control of the seal, record book, papers, or 
 property of the corporation, and their au- 
 thority is disputed by the de jure directors 
 not present as well as by those who up to 
 that date have been the president, vice 
 president, secretary, and a majority of the 
 executive committee of the corporation. 
 Waterman v. Chicago & I. R. Co. 139 111. 
 658, 29 N. E. 689, 15: 418 
 Rescinding vote for dividend. 
 
 329. The vote of a dividend payable at a 
 future time, by the directors of a corpora- 
 tion, may be rescinded at a subsequent 
 meeting held before the dividend becomes 
 payable, if the fact that it has been de- 
 clared has not been made public or in any 
 manner communicated to the stockholders/ 
 and no fund has been set apart for its pay- 
 ment. Ford v. Easthampton Rubber- Thread 
 Co. 158 Mass. 84, 32 N. E. 1036, 20: 65 
 
 h. Promoters. 
 
 Subscription to Stock "by, see infra. 372, 
 
 374, 376. 377. 
 Corporate Liability for Services Rendered 
 
 under Agreement with, see Contracts, 
 
 10. 
 Validity of Contract with, Not to Organize 
 
 Another Company, see Contract 1 *. 477. 
 
 Right of Corporation to Recover Avails of 
 Secret Illegal Agreement by, see Con- 
 tracts, 606. 
 
 Estoppel to Deny Corporate Existence in 
 Suit against, see Estoppel, 103. 
 
 Action by Receiver against, see Receivers, 
 115, 117, 121. 
 
 Priority of Receiver's Certificates Issued to, 
 see Receivers, 107. 
 
 Promoter of Syndicate, see Syndicate, 2. 
 
 See also supra, 232, infra, 376, 435, 473, 600, 
 611, 805. 
 
 For Editorial Notes, see infra, VIII. 47. 
 
 330. Promoters of a corporation who se- 
 cure a waiver of the lien of one selling 
 property to the corporation in favor of a 
 mortgage taken by themselves upon their 
 property, by a fraudulent guaranty that 
 certain money shall be applied to making 
 improvements on the property, which is not 
 done, will not be permitted to enforce their 
 mortgage against his objection. Hooper v. 
 Central Trust Co. 81 Md. 559, 32 Atl. 505, 
 
 29:262 
 
 331. A promoter of a corporation is af- 
 fected and bound by any fraud contained in 
 a guaranty to one selling property to the 
 corporation by another promoter that 
 money in his hands shall be applied to pla 
 cing improvements on the property, for the 
 purpose of securing a waiver of the vendor's 
 lien, so that he cannot acquire a right to a 
 judgment for the price of such improve- 
 ments which he can enforce against the 
 objection of such vendor. Id. 
 Liability. 
 
 As Stockholder, see infra, 537-545. 
 Condition Precedent to Enforcement of, see 
 
 Action or Suit, 29. 
 Limitation of Action on, see Limitation of 
 
 Actions, 118, 119. 
 
 Allegations as to, see Pleading, 95. 
 For Editorial Notes, see infra, VTII. 47. 
 
 332. The fact that persons took counsel 
 and acted in good faith in organizing them- 
 selves into a corporation under what they 
 were advised was a valid law does not 
 relieve them from individual liability for 
 obligations incurred by the concern if the 
 law proves invalid; as obligors are bound, 
 not by the style which they give to them- 
 selves, but by the consequences which they 
 incur by reason of their acts. Eaton v. 
 Walker, 76 Mich. 579, 43 N. W. 638, 6: 102 
 
 333. Promoters of an incorporated college 
 who advance money or assume an obligation 
 to pay the interest on one of the subscrip- 
 tions to a fund for the purchase of prop- 
 erty for the college, when to do this is 
 necessary to obtain the subscription, and il 
 is done at the request of some and with 
 the consent of all those acting as trustees 
 of the prospective corporation, on the under- 
 standing that the college will repay them or 
 save them harmless, can recover from it the 
 amount of such interest which they have 
 been compelled to pay. and which went into 
 the fund* used in buying the college prop- 
 erty. Morton v. Hamilton College, 100 Kv. 
 281. 38 S. W. 1. 35: 275 
 
 334. A purchase of land in the name of ;i
 
 768 
 
 CORPORATIONS, IV. h. 
 
 corporation, the charter of which, prepared 
 for that purpose by the vendor's attorney, 
 had been signed and filed, but defectively 
 acknowledged, and for which purchase- 
 money notes were given signed by a person 
 described as its president, although no or- 
 ganization by election of officers had then 
 been made, does not make him or other pro- 
 moters personally liable on the purchase, 
 especially when the corporation at its first 
 formal meeting approved the purchase, and 
 the vendors have recognized it as the pur- 
 chaser on foreclosure of the vendor's lien. 
 Shields v. Clifton Hill Land Co. 94 Tenn. 
 123, 28 S. W. 668, 26: 509 
 
 Compensation for services generally. 
 
 335. Promoters of a corporation cannot 
 honestly take any remuneration for their 
 services as such, unless a full statement 
 thereof is incorporated in the prospectus, 
 or unless it is voted to them after all the 
 stock has been taken by the public. Hay- 
 ward v. Leeson, 176 Mass. 310, 57 N. E. 656, 
 
 49: 725 
 
 Taking stock in payment for services. 
 See also infra, 342, 374, 653. 
 
 336. Stock taken by promoters for serv- 
 ices, in fraud of the rights of future stock- 
 holders, may be followed by the corpora- 
 tion, and the shares or their proceeds re- 
 covered in the promoters' hands, or damages 
 for their loss. Hayward v. Leeson, 176 
 Mass. 310, 57 N. E. 656, 49: 725 
 
 337. It is a fraud for promoters to under- 
 take to decide for the future stockholders 
 in the corporation to be organized, that OHO 
 third of the whole capital stock is a fair 
 remuneration for their services, to isiio 
 that amount to themselves as such remu- 
 neration, and then to invite the public to 
 subscribe to the stock without disclosing 
 that fact, and getting the subscribers' con- 
 sent to the payment of that remuneration. 
 
 Id. 
 
 338. A corporation may secure the cance-1- 
 ation of stock which was paid for put of the 
 secret profits made by the subscribers in the 
 sale to the corporation of property on which 
 they had secured an option and to purchase 
 which they had organized the corporation, 
 the management .of which at the consumma- 
 tion of the transaction was completely 
 under their control. Yeiser v. United 
 States Board & P. Co. 46 C. C. A. 567, 107 
 Fed. 340, 52: 724 
 
 339. Expenses of organization paid by 
 promoters may be deducted by them in 
 accounting for stock fraudulently taken by 
 them in payment for services as promoters. 
 Hayward v. Leeson, 176 Mass. 310, 57 X. E. 
 656, 49 : 725 
 
 340. The value of stock fraudulently 
 taken by promoters for services, for which 
 they are required to account to the cor- 
 poration, is to be fixed, not as of the time 
 of the taking, when it had no value, but at 
 the time when, by the launching of the cor- 
 poration, its value was established. Id. 
 
 341. The organizers of a corporation 
 cannot escape liability to pay in for the 
 Benefit of creditors the face value of the 
 stock issued to them, although they made 
 
 no written subscription, but agreed orally 
 that the stock should be sold to them by 
 the corporation as fully paid upon payment 
 of a fraction only of its face value. Ver- 
 mont Marble Co. v. Declez Granite Co. 135 
 Cal. 579, 67 Pac. 1057, 56: 728 
 
 Sales by, to corporation. 
 
 342. Promoters of a corporation cannot 
 escape liability to it for fraudulent profits 
 in transferring to it property at an exces- 
 sive value, by limiting the stock subscrip- 
 tion to themselves until the transaction is 
 consummated, so that no stockholder is de- 
 ceived, and then selling the remaining stock 
 to outsiders as treasury 'stock. Pietsch v. 
 Milbrath, 123 Wis. 647, 102 N. W. 342, 
 
 68: 945 
 
 343. A statement in the prospectus of a 
 corporation prepared by a promoter of the 
 corporation who organized it with the in- 
 tention of transferring to it certain real es- 
 tate previously purchased by him as fol- 
 lows: "Cost of ground $40,000," is not 
 fraudulent although the land cost him less 
 than that amount, as it is not a representa- 
 tion that the land actually cost the pro- 
 moter such amount but that it is to .be 
 estimated at that amount in the transfer to 
 the corporation. Milwaukee Cold Storage 
 Co. v. Dexter, 99 Wis. 214, 74 N. W. 976. 
 
 40: 837 
 
 344. No offer of rescission is necessary to 
 obtain an accounting by a corporation from 
 a promoter who by his fraud has secretly 
 received profits on property sold to the cor- 
 poration. Yale Gas Stove Co. v. Wilcox, 
 64 Conn. 101. 29 Atl. 303, 25: 90 
 
 345. One who organizes a corporation to 
 purchase letters patent at a certain price, 
 while he already has a secret agreement 
 with the owner whereby he is to obtain 
 from the latter a part of the avails of the 
 sale, but who induces subscriptions to the 
 stock by stating that he is putting his 
 money into the enterprise upon precisely 
 the same basis as the other stockholders, 
 may be compelled to account to the corpo^ 
 ration for the profits retained by him under 
 his secret agreement. Id. 
 
 346. A promoter of a corporation who 
 transferred to it certain land purchased by 
 him before anything was done toward the 
 formation of the corporation cannot be held 
 liable to the corporation for an amount re- 
 ceived from it in excess of the amount 
 actually paid by him, in the absence of a 
 misrepresentation or false statement by 
 him, although he did not disclose the 
 amount paid by him to any subscriber, 
 
 'where all the subscribers had the opportu- 
 nity to ascertain the condition and value of 
 the land and knew the price charged the 
 corporation. Milwaukee Cold-Storage Co. 
 v. Dexter, 99 Wis. 214, 74 N. W. 976, 40: 837 
 
 347. A sale of land to a corporation by 
 one of its promoters who purchased the 
 land before anything was done toward the 
 formation of the corporation for less than 
 the amount for which he transferred it to 
 such corporation will not be held fraudulent 
 as to the corporation or any subscriber in 
 the absence of any false statement or mis-
 
 CORPORATIONS, V. a. 
 
 769 
 
 representation because he personally paid 
 a commission to certain influential persons 
 to induce them to subscribe for the capital 
 stock, not because he personally paid money 
 to his grantor after the latter's subscription 
 to the capital stock to remove his dissatis- 
 faction at having sold the land so cheaply, 
 especially where his contract of purchase 
 precluded him from transferring the land 
 without the approval of such grantor. Id. 
 
 348. A sale of property to a corporation 
 formed by the owners of the property alone, 
 who take in payment the bonds of the com- 
 pany payable wholly out of the enterprise, 
 cannot be attacked as fraudulent by reason 
 of any overvaluation of the property. Sey- 
 mour v. Spring Forest Cemetery Asso. 144 
 N. Y. 333, 39 X. E. 3G5, 26: 859 
 
 349. A corporation entitled to Repudiate a 
 transaction made by directors for their own 
 benefit must act promptly on knowledge of 
 the facts, and cannot wait and speculate up- 
 on the chances of delay. Id. 
 
 V. Capital; Stock and Stockholders. 
 a. In General; Issue of Stock. 
 
 Power to Issue Stock, see supra, 147. 
 
 Contract to Repurchase Its Own Stock, see 
 supra, 145, 146, 176. 
 
 Forfeiture for Failure to Pay in Capital 
 Stock, see infra, 698. 
 
 Ownership of Stock by- Aliens, see Aliens, 
 17. 
 
 Lien Acquired by Attachment of Stock, see 
 Attachment, 30. 
 
 Stockholders in Bank, see Banks, IT. 
 
 Stock of Loan Association, see Building and 
 Loan Associations, II. 
 
 For Bonds by Corporation, see Bonds, IIT. a. 
 
 Status of Stockholder of Club Which Car- 
 ries on Gambling, see Clubs, 3. 
 
 Conflict of Laws as to Stock, see Conflict 
 of Laws, 164-167. 
 
 Court Forcing Member upon Corporation 
 against Its Will, see Courts, 220. 
 
 Presumption as to Value of Stock, see Evi- 
 dence, 685. 
 
 Presumption as to being Stockholder, see 
 Evidence, 258. 
 
 Issue of Stock, for Interest in Other Busi- 
 ness, Evidence as to, see Evidence, 2132. 
 
 Levy on Stock, see Levy and Seizure, 14-17. 
 
 Raising Question by Stipulation, see 
 Stipulation, 5. 
 
 Implied Trust as to Stock, see Trusts, 50. 
 
 See also supra, 9, 97, 167. 
 
 For Editorial Notes, see infra, VHI. 19- 
 23. 
 
 350. The rights of a creditor respecting 
 shares of corporation stock for which cer- 
 tificates have not been issued, alleged to be 
 the property of his debtor, are the same as 
 in the case of an ordinary chose in action. 
 Lipscomb v. Condon, 56 W. Va. 416, 49 S. E. 
 392. 67:670 
 
 351. The par value of the stock of a cor- 
 poration, within the meaning of its charter 
 authorizing it to borrow money "not exceed- 
 
 L.R.A. Dig 
 
 ing one half of the par value of the capital 
 stock," means the actual amount of the 
 capital paid in, where subscriptions for the 
 full amount of the stock have been made, 
 but only part of the face value of each 
 share actually paid in. Lehigh Ave. R. Co.'s 
 Appeal, 129 Pa. 405, 18 Atl. 498, 5: 367 
 
 352. The issue of stock to a certain per- 
 son is not- ultra vires and void and in- 
 capable of ratification on the ground that 
 no consideration was paid therefor, where 
 all the stock was issued without any con- 
 sideration given directly therefor, but under 
 an arrangement by which the other stock- 
 holders advanced money, for him as well as 
 themselves, to purchase mortgage bonds of 
 the corporation, and, after they were re- 
 imbursed, all received an equal interest in 
 the stock. Clark v. American Coal Co. 86 
 Iowa, 436, 53 N. W. 291, 17: 557 
 
 353. A contract by which an agent gets 
 stock in a corporation from which he makes 
 purchases for his principal, who is ignorant 
 of the arrangement, on which contract the 
 existence of the corporation depends, is not 
 so utterly void as to be incapable of rati- 
 fication, if that is necessary to give it life. 
 
 Id. 
 
 354. The legal imputation of fraud in the 
 issue of stock in a coal company to the fuel 
 agent of a railroad company without his 
 principal's knowledge, wbrreby he receives 
 both dividends on the stock ami compensa- 
 tion for his services as agent in buying fuel 
 from the coal company,, will not make his 
 stock, or the payment of dividends to him 
 thereon, or the representation of the stock 
 in the management and control of the com- 
 pany, illegal as to a subsequent purchaser 
 of stock in the same company, where all the 
 members of the coal company knew of and 
 agreed to such action, while the railroad 
 company was not in fact defrauded, but 
 rather benefited, by its agent's connection 
 with the coal company. Id. 
 Nature of certificate of stock. 
 
 As to Negotiability of Certificates, see infra, 
 397, 398. 
 
 355. Shares of stock in a corporation are 
 personal estate and a species of incorporeal 
 property. Lipscomb v. Condon, 56 W. Va. 
 416. 49 S. E. ,392, 67: 670 
 
 356. A certificate of stock is not the 
 stock itself, but is evidence of its existence 
 and ownership. Id. 
 
 357. Though, when issued, a certificate of 
 stock is a immiment of title, it is not es,- 
 sential to the existence of the property 
 represented by it. Id. 
 Increase of stock. 
 
 Repeal of Statute as to, see Statutes, 566. 
 For Editorial Notes, see infra, VEIL 22. 
 
 358. The increase of stock is not within 
 the implied powers of a corporation. 
 Cooke v. Marshall. 191 Pa. 315, 43 Atl. 314. 
 196 Pa. 200, 4f> Atl. 447, 64: 413 
 
 359. A resolution of the members of a 
 corporation for the increase of its capital 
 stock is a sufficient by-law for that pur- 
 pose. Peck v. Elliott, 24 C. C. A. 425, 47 U. 
 S. App. 605, 70 Fed. 10. 38: 616 
 
 360. An increase of the capital of a cor-
 
 770 
 
 CORPORATIONS, V. b, 1. 
 
 poration by an amendment of a by-law is 
 valid when by the constitution of the cor- 
 poration it is given power to fix the amount 
 of capital by by-law. Id. 
 
 361. The rule against an implied power 
 of a corporation to increase the amount of 
 its capital when that is definitely fixed by 
 the charter or statutory articles of incorpo- 
 ration has no application where the power 
 to determine upon the capital to be engaged 
 is made one of the matters for internal 
 regulation by by-law. Id. 
 Bonus stock. 
 
 Holders of, as Parties on Mortgage Fore- 
 closure, see Parties, 159. 
 Allegation as to, see Pleading, 233. 
 See also infra, 632, 633. 
 For Editorial Notes, see infra, VIII. 20. 
 
 362. A mortgage by a corporation to se- 
 cure money advanced to it in good faith 
 cannot be reduced in favor of liens of subse- 
 quent creditors, because, at the time of, and 
 as an inducement to, the advance, the mort- 
 gagees received stock of the corporation as a 
 bonus. Dummer v. Smedley, 110 Mich. 466, 
 68 N. W. 266, 38: 490 
 
 363. Existing creditors of a corporation 
 cannot impeach a transaction by which the 
 corporate stock is increased and issued as a 
 bonus to third persons to induce them to ad- 
 vance money to the corporation on mort- 
 gage security, so as to avoid the mortgage 
 and treat the advance as a payment for 
 stock. . Id. 
 Preferred stock. 
 
 Dividends on, see infra, 520-524. 
 
 Rights of Preferred Stockholder, see infra, 
 
 457-462. 
 In Loan Association, see Building and Loan 
 
 Associations, 9, 11. 
 See also supra, 157, infra, 646. 
 For Editorial Notes, see infra, VHI. 24. 
 
 364. The preferred stock authorized by 
 Md. Code, art. 23, 294, differs radically 
 from ordinary preferred stock in that it is 
 expressly constituted "a lien on the fran- 
 chises and property" of the corporation, 
 with priority over subsequent mortgages or 
 other encumbrances. Heller v. National 
 Marine Bank, 89 Md. 602, 43 Atl. 800, 
 
 45: 438 
 
 365. A corporation may classify its stock 
 at its organization, and provide for a pref- 
 erence of one class over another in respect 
 of both capital and dividends, in the ab- 
 ->ence of charter regulation or prohibition by 
 law. Hamlin v. Toledo, St. L. & K. C. R. 
 Co. 24 C. C. A. 271. 47 U. S. App. 422. 78 
 Fed. 664, 36: 826 
 
 860. A provision in certificates of "pre- 
 ferred non voting capital stock" that if the 
 holder fails to avail himself of the privilege 
 of converting it into common stock within 
 a specified time it shall "become preferred 
 4 per cent noncumulative stock," does not 
 show that it was not preferred stock before 
 the rejection of the option. Id. 
 
 3fi7. Preferred stock of a railroad com- 
 jmnv is not an indebtedness which can be 
 '>n>id"vp(l in rlotermining whether its 
 obligations ;in> iich as to prevent its oper- 
 ating an additional train. People ex rel. 
 
 Cantrell v. St. Louis, A. & T. H. R. Co. 176 
 111. 512, 45 N. E. 824, 52 N. E. 292, 35: 656 
 Retirement of preferred stock. 
 For Editorial Notes, see infra, VIII. 24. 
 
 368. A corporation whose act of incorpo- 
 ration provides for the payment to preferred 
 stockholders of a yearly dividend at the 
 rate of 7 per cent per annum in quarterly 
 payments, which has declared and paid four 
 such dividends in successive quarters be- 
 fore calling a meeting on the question of 
 retiring part of the preferred stock, is with- 
 in the provision of the New J.ersey act of 
 1902, authorizing corporations which have 
 issued preferred stock entitling the holders 
 to receive dividends at a rate exceeding 5 
 per cent per annum, and which shall have 
 "continuously" declared and paid dividends 
 at such rate on such preferred stock "for 
 the period of at least one year next pre- 
 ceding the meeting," to retire such preferred 
 stock. Hodge v. United States Steel Corp. 
 (N. J. Err. & App.) 64 N. J. Eq. 807, 54 Atl. 
 1, 60: 742 
 Duplicate certificates; indemnity bond. 
 
 369. A corporation cannot be compelled 
 to issue, in place of lost or mislaid cer- 
 tificates of stock, other certificates which 
 purport to be original, and which contain 
 no notice that they are in lieu of those 
 claimed to have been lost, in the absence of 
 any statute, by-law, or other express obliga- 
 tion to do so, although sufficient indemnity 
 is offered. Keller v. Eureka Brick Mach. 
 Mfg. Co. 43 Mo. App. 84, 11: 472 
 
 370. The issue, by a corporation, of dupli- 
 cate certificates reciting that they are dupli- 
 cates and issued in lieu of those which are 
 lost, may be compelled upon the tender of a 
 sufficient indemnity bond. Id. 
 
 371. A bond of indemnity as a condition 
 of issuing a new certificate of stock in lieu 
 of one that has been mislaid while in the 
 custody of the president of the corporation, 
 to which it had been assigned as security, 
 cannot be required of the assignor under a 
 statutory provision respecting lost or de- 
 stroyed certificates, since he had already 
 done respecting it all that he was to do or 
 could be required to do. Farmers' Bank v. 
 Diebold Safe & L. Co. 66 Ohio St. 367, 64 
 N. E. 518, 58: 620 
 
 b. Subscriptions. 
 1. In General. 
 
 Law Governing, see Conflict of Laws, 166. 
 Impairment of Obligation of Contract as to. 
 
 see Constitutional Law, 1160. 
 Illegal Contract for, see Contracts, 380. 
 Estoppel of Subscriber, see Estoppel, 107. 
 
 108. 
 As Contingent Claim against Stockholder's 
 
 Estate, see Executors and Administra- 
 tors, 138. 
 Limitation of Action, see Limitation of 
 
 Actions, 94-98. 
 Partios to Action to Enjoin Collection of, 
 
 see Parties. 158. 
 To Sf'Hc of Partnership Association, see 
 
 Partnership, 6, 34.
 
 CORPORATIONS, V. b. 1. 
 
 771 
 
 Pleading Defense of Substitution of As- 
 signee, see Pleading, 477. 
 
 Removal of Suit to Cancel Subscription, see 
 Removal of Causes, 15. 
 
 Specific Enforcement of Agreement with 
 Subscriber, see Specific Performance, 70. 
 
 Subscription to Railroad Stock by Town, 
 see Towns, 3. 
 
 Question for Jury as to, see Trial, 206. 
 
 Collection of, by Trustee, see Trusts. 163. 
 
 Right of Existing Stockholder to Subscribe, 
 see Union Depot Company, 1. 
 
 See also infra, 405, 406. 
 
 For Editorial Notes, see infra, VIII. 25- 
 27, 35-43. 
 
 372. A subscription by a number of per- 
 sons to the stock of a corporation to be 
 thereafter formed by them constitutes, first, 
 a contract between the subscribers them- 
 selves to become stockholders when the cor- 
 poration is formed, upon the conditions 
 expressed in the agreement, and as such it 
 is binding and irevocable from the date of 
 the subscription; second, it* is in the nature 
 of a continuing offer to the proposed corpo- 
 ration, which, upon acceptance by it, be- 
 comes, as to each subscriber, a contract be- 
 tween him and the corporation. Minne- 
 apolis Threshing-Mach. Co. v. Davis, 40 
 Minn. 110, 41 N. W- 1026 3: 796 
 
 373. A subscription to the stock of a 
 corporation is not an agreement to pay so 
 much money unless so expressed in the con- 
 tract, but is a contract to enter into the 
 relation of stockholder. Rochester & K. F. 
 Land Co. v. Raymond, 158 N. Y. 576, 53 N. 
 E. 507, 47:246 
 
 374. An agreement by which persons or- 
 ganizing a corporation are to have bonds of 
 the corporation to an amount equal to the 
 stock subscribed for, secured by a mort- 
 gage on the corporate property, is illegal 
 and void, and cannot be enforced against the 
 corporation, even though the rights of no 
 creditors of the corporation are involved. 
 Morrow v. Nashville Iron & S. Co. 87 Tenn. 
 262, 10 S. W. 405. 3: 37 
 When subscription completed and binding. 
 For Editorial Notes, see infra, VIII. 25. 
 
 375. An agreement to subscribe and pay 
 for stock within thirty days from the or- 
 ganization of a corporation means stock of 
 a corporation de jure, and not de facto, and 
 therefore is not binding until the corpo- 
 ration is lawfully organized so as to be 
 authorized to do business. Capps v. Hast- 
 ings Prospecting Co. 40 Neb. 470, 58 N. W. 
 956, 24: 259 
 
 376. A promoter of a proposed corpora- 
 tion, who solicits and procures stock sub- 
 scriptions, is the agent of the body of the 
 subscribers to hold the subscriptions until 
 the corporation is formed, and then turn 
 them over to it without any further act of 
 delivery on the part of the subscribers. 
 Hence a delivery of a subscription to such 
 promoter is a complete delivery, so that it 
 becomes eo instanti a binding contract as 
 between the subscribers. Minneapolis 
 Threslnnsj-Mach. Co. v. Davis, 40 Minn. 110, 
 41 N. W. 1026, 3: 796 
 
 377. The agreement of one who signs 
 
 articles of association for the formation of 
 a corporation, to take stock therein, does 
 not become enforceable until he has 
 acknowledged the articles as required by 
 Ind. Rev. Stat. 3851. Coppage v. Huttoii, 
 1;24 Ind. 401, 24 N. E. 112, 7: 591 
 
 Conditions to subscription. 
 Protest by Stockholder Against Requiring 
 Bonus as, see Judgment, 290. 
 
 378. Where a person subscribes to the 
 stock of a proposed corporation, and delivers 
 the subscription to such promoter, and 
 other persons, without notice of any oral 
 condition attached to such delivery, also 
 subscribe to the stock and pay the same in; 
 and, in reliance on the subscriptions, the 
 corporation is organized, engages in its busi- 
 ness, expends large sums of money, and con- 
 tracts liabilities therein, such person, when 
 sued for instalments due on his stock sub- 
 scriptions, will not be allowed to defeat a 
 recovery by showing that he attached a 
 secret oral condition to the delivery of his 
 subscription to the promoter. Minneapolis 
 Threshing-Mach. Co. v. Davis, 40 Minn. 110, 
 41 N. W. 1026, 3: 79G 
 
 379. A stipulation in a contract of sub- 
 scription to the stock of a corporation, pay- 
 able in instalments, to the effect that bonds 
 of the corporation, secured by mortgage on 
 its property, shall be given to its subscrib- 
 ers in an amount equal to their stock, does 
 not make the issuance of such bonds a 
 condition precedent to liability upon the 
 subscription; and the failure of the com- 
 pany to carry out this agreement does not 
 defeat such liability. Morrow v. Nashville 
 Iron & S. Co. 87 Tenn. 262, 10 S. W. 495, 
 
 3:37 
 
 Cancelation or release. 
 Question for Jury as to, see Trial, 161. 
 See also Banks, 26. 
 
 For Editorial Notes, see infra, VTII. 25. 
 26. x 
 
 380. Insolvency of the corporation will 
 not prevent cancelation of a stock subscrip- 
 tion for fraud, if the subscriber acted with 
 due diligence in discovering the fraud and 
 repudiating his subscription, and no con- 
 siderable amount of indebtedness was con- 
 tracted after the subscription was made. 
 Newton Nat. Bank v. Newbegin, 40 U. S. 
 App. 1, 74 Fed. 135, 20 C. C. A. 339, 33: 727 
 
 381. Creditors of an insolvent corpora- 
 tion waive their right to object to cancela- 
 tion of a subscription to stock procured by 
 fraud, by making a settlement with the 
 reorganized corporation, with full knowl- 
 edge that the defrauded subscriber insists 
 on his discharge and a return of his money. 
 
 Id. 
 
 382. A subscriber to the capital stock of 
 an unorganized corporation may withdraw 
 from the enterprise at any time before the 
 corporation is organized and his subscrip- 
 tion accepted, in the absence of any pro- 
 vision of the subscription paper creating 
 a binding contract between the subscribers 
 themselves, as, otherwise, until incorpor- 
 ation there is no obligee. Bryant's Pond 
 Steam-Mill Co. v. Felt, 87 Me. 234, 32 Atl. 
 888, 33:593
 
 772 
 
 CORPORATIONS, V. b, 2, c. 1. 
 
 383. A premature and void contract made 
 by a corporation before there had been paid 
 in the amount of capital stock required by 
 statute to be paid in before corporate powers 
 could be exercised, the contract being to 
 promote the purposes of the corporation, 
 and being carried out after the corpora- 
 tion became enabled to make it valid, does 
 not release a subscription for corporate 
 stock. Naugatuck Water Co. v. Nichols, 58 
 Conn. 403, 20 Atl. 315, 8: 637 
 
 384. Withdrawal by a subscriber to the 
 stock of an unorganized corporation is ef- 
 fected by notifying the promoter's agent, 
 who secured the subscription, of the inten- 
 tion to withdraw, and requesting the drop- 
 ping of the subscriber's name from the 
 subscription paper, which facts are before 
 organization brought to the attention of 
 the subscribers at one of their meetings. 
 Bryant's Pond Steam-Mill Co. v. Felt, 87 
 Me. 234, 32 Atl. 888, 33:593 
 
 385. A corporation may, if it acts in good 
 faith, lawfully receive from its subscribers 
 who have paid a certain percentage of their 
 subscriptions, a surrender of the certificates 
 held by them, and issue, in lieu thereof, cer- 
 tificates for as many fully paid shares of 
 stock as the mony paid in will buy, there- 
 by releasing them from further liability, 
 as far as the claims of the company itself 
 are concerned. Republic L. Ins. Co. v. Swi- 
 gert, 135 111. 150, 25 N. E. 680, 12: 328 
 
 386. An attempt to release a stockholder 
 from his contract by the general manager 
 of a corporation, who is also its largest 
 stockholder, secretary, and treapurer, on 
 the stockholder's request that he will dis- 
 pose of his stock, whereby he causes en- 
 tries to be made on the books charging off 
 the balance due for unpaid calls, and credit- 
 ing to the stockholder the sums paid by 
 him, will not avail to release the stock- 
 holder where no attempt is made to trans- 
 fer his shares, although the manager se- 
 cures new subscriptions to the stock in 
 place thereof, and both parties suppose that 
 he is authorized to substitute new subscrip- 
 tions and release the old ones. Cartwright 
 v. Dickinson, 88 Tenn, 476, 12 S. W. 1030, 
 
 7: 706 
 
 387. The fact that an overissue of stock 
 will be the result where stock is issued to 
 new subscribers as a substitute for stock- 
 holders who wish to withdraw, unless an 
 attempted cancelation of the earlier sub- 
 scriptions (made, with supposed authority, 
 to effect such substitution) shall be upheld, 
 will not aid such invalid attempt at can- 
 celation. Id. 
 
 388. A stockholder who is misled by 
 statements of the manager of the corpora- 
 tion, whom he has requested to dispose of 
 his shares, to the effect that they have been 
 sold, when in fact an invalid attempt to 
 cancel them merely has been made, is not 
 thereby released from his contract. If in- 
 jured, his remedy is one against his agent, 
 the manager. Id. 
 
 2. Payment. 
 
 Liability of Promoters, see also supra, 341. 
 Liability of Stockholder for Unpaid Stock, 
 
 see infra, V. f, 3. 
 Assumpsit for Goods Delivered in Payment, 
 
 see Assumpsit, 3. 
 For New Stock, Recovery Back of Bonus 
 
 Required for Privilege of Subscribing, 
 
 see Assumpsit, 36. 
 Defense against Assignee of Note Given for 
 
 Subscription to Syndicate Organization, 
 
 see Bills and Notes, 186. 
 Pleading as to, see Pleading, 504. 
 See also infra, 406. 
 
 389. Payment of money to save money 
 already paid on subscription to the stock 
 of a corporation, which subscription has 
 been repudiated for fraud, will not neces- 
 sarily amount to an affirmance of the sub- 
 scription. Fear v. Bartlett, 81 Md. 435, 32 
 Atl. 322, 33: 721 
 Stock issued in exchange for property or 
 
 services. 
 
 To Promoters, see supra, 336-342. 
 Liability of Stockholders, see infra, V. f, 
 
 3, 6. 
 See also supra, 149, infra, 566. 
 
 390. A corporation which purchases prop- 
 erty intending to issue stock in payment 
 therefor need not make the whole payment 
 in stock; it may issue stock for a portion, 
 and pay in cash or issue bonds for the bal- 
 ance. Gamble v. Queens County Water 
 Co. 123 N. Y. 91, 25 N. E. 201, 9: 527 
 
 391. A corporation cannot issue its stock 
 in exchange for property purchased by it, at 
 anything less than its par value, under N. 
 Y. Laws 1848, chap. 40, 2, which empow- 
 ers the purchase of property with stock, to 
 be issued to the amount of the value of such 
 property, and provides that the stock so 
 issued shall be declared and taken to be 
 full-paid stock, not liable to further calls. 
 
 IcL 
 
 c. Transfers; Lien. 
 1. In General. 
 
 Liability of Transferee, see infra, V. f, 2. 
 Transfer of Bank Stock, see Banks, 5-11, 
 
 29. 
 Bank's Liability for Giving False Certificate 
 
 Inducing Purchase of Stock, see Banks, 
 
 286. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 167. 
 
 Oral Agreement to Sell, see Contracts, 152. 
 Construction of Contract for Repurchase, 
 
 see Contracts, 309. 
 
 Consideration for Contract to Find Pur- 
 chaser, see Contracts, 70. 
 Validity of Contract Made with Purchaser 
 
 of 'Stock, see Contracts, 470. 
 Performance of Contract to Procure Bid 
 
 for Stock, see Contracts, 706. 
 Transfer for Illegal Purpose, see Contracts, 
 
 637. 
 Deposit of Stock for Delivery on Condition, 
 
 see Escrow, L
 
 CORPORATIONS, V. c, 1. 
 
 773 
 
 Estoppel by Transfer, see Estoppel, 115. 
 227. 
 
 Presumption as to Ownership of Stock, see 
 Evidence, 725. 
 
 Burden of Proving Exercise of Power to 
 Sell, see Evidence, 239. 
 
 Evidence of Damages in Inducing Purchase 
 of Stock, see Evidence, 1832. 
 
 Burden of Showing Character of Transac- 
 tion for Purchase and Sale of Stocks, 
 see Evidence, 348. 
 
 Sale of Stock by Executors, see Executors 
 and Administrators, 56. 
 
 Fraud in Sale of Stock, see Damages, 266- 
 209; Fraud and Deceit, 11, 33, 34, 42, 
 60, 61, 69, 70, 73. 
 
 Gift of Stock, see Evidence, 2149; Gift, 27, 
 28. 35-37, 41, 47, 49. 
 
 Void Decree for Sale of Infant's' Stock, see 
 Infants, 112. 
 
 Conclusiveness of Decision Allotting Stock 
 to Widow, see Judgment, 284. 
 
 Limitation of Action for Wrongful Trans- 
 fer, see Limitation of Actions, 80. 
 
 Notice to Purchaser as to Amount of Cor- 
 porate Property, see Notice, 9. 
 
 Right of Action for Fraudulently Inducing 
 Purchase, see Parties, 84. 
 
 Parties to Action for Fraud in Inducing 
 Purchase of Stock, see Parties, lf>0. 
 
 Sale of Partnership Stock, see Partnership, 
 122. 
 
 Agreement by Broker to Repurchase Stock, 
 see Partnership, 24. 
 
 Pledge of Stock, see Pledge and Collateral 
 Security, 3, 19, 34; Principal and Sure- 
 ty, 50. 
 
 Forged Transfer by Agent, see Principal 
 and Agent, (10, 64. 
 
 Implied Warranty on Sale of Stock, see 
 Sale, 91. 
 
 Enforcement of Contract for Purchase or 
 Sale, see Specific Performance, 8, 22, 
 68-73. 
 
 Effect of Failure to Keep Tender Good on 
 Right to Compel Repurchase, see Ten- 
 der, 11. 
 
 Conversion of Stock, see Damages, 396; 
 Trover, 10, 19. 
 
 Compelling Existing Stockholders to Sell 
 Part of Stock, see Union Depot Com- 
 pany, 2. 
 
 Specific Legacy of Stock, see Wills, 458, 459. 
 
 See also supra, 120, 220, 278. 
 
 For Editorial Notes, see infra, VIII. 
 28-31. 
 
 392. By-laws providing that a transfer 
 of the stock of an irrigation company shall 
 be made only with the land for which it 
 was issued do not apply to a sale of delin- 
 quent stock for assessments, as the pur- 
 chaser is not a transferee of the former 
 owner of the stock. Spurgeon v. Santa Ana 
 Valley Irrig. Co. 120 Cal. 71, 52 Pac. 140. 
 
 39: 701 
 
 Necessity of certificate. 
 See also infra, 402. 
 
 393. The beneficial interest in shares of 
 corporation stock is assignable by parol, the 
 ownership passing immediately on consum- 
 mation of the sale, by force of the contract, 
 
 as in the case of ordinary choses in action, 
 md not by operation of law. Lipscomb v. 
 Condon, 56 W. Va. 416, 49 S. E. 392, 
 
 67: 670 
 
 394. A sale of shares of stock for which 
 no certificate has been issued may be evi- 
 denced by an informal written instrument, 
 executed and delivered by the transferrer 
 to the transferee, without a power of at- 
 torney entitling the latter to have the same 
 transferred on the books of the company. 
 
 Id. 
 
 395. A certificate is not necessary to a 
 sale of shares of corporate stock. Id. 
 
 396. A shareholder may, upon his de- 
 mand, obtain a certificate of his shares, but, 
 unless demanded by him, it need not be 
 issued; and he may freely transfer the 
 shares without it if they are fully paid up, 
 or security for the balance due on them, 
 satisfactory to the board of directors, be 
 given. Id. 
 Negotiability of certificate. 
 
 Evidence of Custom as to, see Evidence, 
 
 1093. 
 See also infra, 428. 
 
 397. Certificates of stock, even when in- 
 dorsed in blank for the purpose of author- 
 izing the making of an instrument of trans- 
 fer over the signature, are not negotiable 
 securities. O'Herron v. Gray, 168 Mass. 573, 
 47 N. E. 429, 40: 498 
 
 398. A certificate of stock of a corpora- 
 tion, expressed on its face to be transfer- 
 able only on the books of the company at 
 its office, personally or by attorney, on sur- 
 render of the certificate, and transferred in 
 blank upon its back, is not a negotiable 
 instrument. Farmers' Bank v. Diebold 
 Safe & Lock Co. 66 Ohio St. 367, 64 N. E. 
 
 518, 58: 620 
 
 Transfer on books. 
 Priority of Transferee Over Subsequent 
 
 Attachment, see Attachment, 43. 
 Transfer of Bank Stock, see Banks, 7-9. 
 Equity Jurisdiction to Cancel, see Equity, 
 
 64. 
 
 Presumption as to, see Evidence, 414. 
 Mandamus to Compel, see Mandamus, 86. 
 As Proximate Cause of Loss of Stock, see 
 
 Proximate Cause. 28. 
 
 See also infra, 418-421, 439, 440. 443. 444. 
 For Editorial Notes, see infra, VIII. 31. 
 
 399. The requirement that corporations 
 keep transfer books and that shares of 
 stock be assigned therein is intended for 
 the protection and convenience of the cor- 
 poration and its shareholders, and does not 
 affect the rights of one to whom shares are 
 transferred without an entry in the trans- 
 fer book. Lipscomb v. Condon, 56 W. Va. 
 416, 49 S. E. 392, 67: 670 
 
 400. That provision of Idaho Rev. Stat. 
 2611, which provides that a transfer of 
 stock, made by indorsement and delivery 
 of the certificate, is not valid, except be- 
 tween the parties thereto, until the same is 
 entered upon the books of the corporation, 
 was not intended as a protection to credit- 
 ors of a stockholder, but was intended to 
 protect the corporation, its members, and
 
 774 
 
 CORPORATIONS, V. c, 1. 
 
 its creditors. Mapleton Bank T. Standrod, 
 8 Idaho, 740, 71 Pac. 119, 67: 656 
 
 401. An entry on the books of a corpo- 
 ration is not necessary to vest a vendee of 
 shares of stock with all the title which the 
 vendor had, notwithstanding a provision in 
 the charter or by-laws that no transfer 
 shall be complete or effectual without reg- 
 istration. Parker v. Bethel Hotel Co. 96 
 Tenn. 252, 34 S. W. 209, 31 : 706 
 
 402. An unregistered transfer of shares 
 of corporation stock, for which no certif- 
 icate has been issued, if made for a valua- 
 ble consideration and without fraud, vests 
 in the transferee a title to the shares su- 
 perior to the claim of a subsequent attach- 
 ing creditor of the transferrer. Lipscomb 
 v. Condon, 56 W. Va. 416, 49 S. E. 392, 
 
 67: 670 
 
 403. A transfer of stock in a corporation 
 is not sufficient to authorize the transferee 
 to vote upon it, until the transfer is made 
 on the books of the company, where it is 
 provided that the stock is transferable only 
 on the books. Morrill v. Little Falls Mfg. 
 Co. 53 Minn. 371, 55 N. W. 547, 21: 174 
 
 404. Assignees of shares of corporate 
 stock having possession of the certificates, 
 though holding under unregistered trans- 
 fers, are not bound by a subsequent con- 
 tract between the corporation and the other 
 shareholders, including the assignor, in 
 whose name the shares remain registered, 
 to surrender a portion of such stock with- 
 out consideration in order that new stock 
 may be issued to pay corporate debts on 
 10 per cent per annum is to be paid, or as 
 much thereof as can be paid from the net 
 profits. Campbell v. American Zylonite Co. 
 122 N. Y. 455, 25 N. E. 853, 11: 596 
 
 405. The right of a corporation to enforce 
 its claim against stock for unpaid assess- 
 ments is not lost by a transfer of it on the 
 company's books into the name of the new 
 owner. Craig v. Hesperia Land & W. Co. 
 113 Cal. 7, 45 Pac. 10, 35: 306 
 
 406. The existence of an unpaid assess- 
 ment against shares of stock in a corpora- 
 tion will not justify it in refusing to trans- 
 fer the stock upon its books in the name of 
 another owner. Id. 
 
 407. It is the duty of every corpora- 
 tion to use reasonable diligence in each case 
 to ascertain whether or not a transfer of 
 stock requested is duly authorized by the 
 former owner, to make transfers so author- 
 ized, and to prevent those unauthorized; 
 and for every breach of this duty it is lia- 
 ble to the injured party for the damage it 
 inflicts. Geyser-Marion Gold Min. Co. v. 
 Stark. 45 C. C. A. 467, 106 Fed. 558, 
 
 53: 684 
 
 408. The rule that a corporation acting 
 in- good faith and without notice of the 
 rights of others may treat registered share- 
 holders as the actual owners of the shares 
 standing in their names is applicable to 
 such transactions only as are within the 
 express or implied powers conferred upon 
 the company or its shareholders. Camp- 
 
 bell v. American Zylonite Co. 122, N. Y 455 
 25 N. E. 853, 11: 596 
 
 409. Knowledge of the fact that a trans- 
 fer of stock to a national bank, made by 
 an attorney of a trustee who had power to 
 sell it, was in fact in fraud of the trustee 
 and only a pledge for the attorney's indi- 
 vidual indebtedness, is not imputed to a cus- 
 todian of the stock who permitted the 
 transfer, merely because the national bank 
 had no power to purchase such stock. Peck 
 v. Providence Gas Co. 17 R. I. 275, 23 Atl. 
 967, 15:643 
 
 410. When an executor attempts to trans- 
 fer on the books of the corporation stock of 
 his testator to a legatee the corporation is 
 charged with a knowledge of the contents 
 of the will, and bound to see that any 
 trust provisions in the will are carried out. 
 Wooten v. Wilmington & W. R. Co. 128 N. 
 C. 119, 38 S. E. 298, 56: 615 
 
 411. Before a corporation can safely per- 
 mit a transfer, upon its books, of stock 
 which belonged to a deceased person, and 
 which it knows has been directed by order 
 of court to be sold by the administrator 
 at private sale, it should ascertain whether 
 or not such a sale has been made under 
 the order as vests title in the purchaser. 
 If it fails to do so, it is liable to make 
 good any loss occasioned by its permitting 
 the transfer. Citizens Street R. Co. v. Rob- 
 bins, 128 Ind. 449, 26 N. E. 116, 12: 498 
 
 412. The custodian of stock held by a 
 trustee who has power to sell it in his 
 discretion is not liable for permitting a 
 transfer of the stock by a duly empowered 
 attorney of the trustee, although the trans- 
 fer was in fact in fraud of the trustee and 
 to secure an individual indebtedness of 
 the attorney, if such custodian had no 
 knowledge of the wrong. Peck v. Providence 
 Gas Co. 17 R. I. 275, 23 Atl. 967, 15: 643 
 
 413. It is not the duty of a corporation 
 to inquire whether or not a person who 
 has possession of stock, with a power of at- 
 torney from the stockholder to transfer it, 
 has defrauded, or intends to defraud, his 
 principal when he applies for a transfer of 
 the stock to himself. Tafft v. Presidio & 
 F. R. Co. 84 Cal. 131, 24 Pac. 436, 11: 125 
 
 414. A by-law requirement that the cer- 
 tificate shall be indorsed before the stock is 
 transferred is for the benefit of the cor- 
 poration, and does not make it the duty of 
 the corporation to a stockholder who has 
 placed his stock in the possession of an 
 agent with a power of attorney to transfer 
 it, to insist on such indorsement. Id. 
 Tiansfer of stock held in trust. 
 
 See also supra. 400-414; infra, 421-423. 
 For Editorial Notes, see infra, VIII. 
 29. 
 
 415. It is actionable negligence for a cor- 
 poration to cancel a certificate and trans- 
 fer stock on the signature of a trustee to 
 the assignment, without any inquiry for 
 the restui quc trust, or for his assent to 
 the transfer. Geyser-Marion Gold Min. Co. 
 v. Stark, 45 C. C. A. 467, 106 Fed. 558, 
 
 53: 684 
 
 416. A corporate record and certificate of
 
 CORPORATIONS, V, c, 2. 
 
 775 
 
 ownership of stock by A. B., trustee, is 
 notice to the corporation that he holds it, 
 without the power of disposition, for some 
 cestui que trust. Id. 
 
 417. A sale by the equitable owner, of cor- 
 porate stock held by trustees, under a trust 
 agreement, transfers the seller's interest 
 subject to the execution of the trust, and is 
 not within the provisions of Mass. Pub. 
 Stat. chap. 78, 6, which render vdid every 
 contract for the sale of stock, "unless the 
 party contracting to sell or transfer the 
 same is at any time of making the contract 
 the owner or assignee thereof, or authorized 
 by the owner or assignee or his agent to 
 sell or transfer" the same. Dutchemin v. 
 Kendall, 149 Mass. 171, 21 N. E. 242, 3: 784 
 Pledgee's rights. 
 
 Pledgeor's Failure to Disclose Improved Con- 
 dition of Corporation, see Fraud and 
 Deceit, 13. 
 
 See also supra, 402; infra, 442, 446, 673, 
 674. 
 
 For Editorial Notes, see infra, VIII. 31. 
 
 418. A purchaser at execution sale of cor- 
 porate stock, with notice that it has been 
 pledged to a third person, takes subject to 
 the rights of the pledgee, although the 
 pledge has not been entered on the books of 
 the corporation. May v. Cleland, 117 Mich. 
 45, 75 N. W. 129, 44: 163 
 
 419. A pledgee of stock has a right to 
 cause a proper entry of the transaction be- 
 tween himself and his pledgeor to be entered 
 upon the books of the corporation for his 
 protection, although the contract is silent 
 on the subject. Spreckels v. Nevada Bank, 
 113 Cal. 272, 45 Pac. 329, 33: 459 
 
 420. A pledgee of stock is not entitled to 
 have the certificates surrendered and new 
 ones issued in his name when the contract 
 is silent on the subject, since the statute re- 
 quiring an entry of a transfer upon the 
 books of the corporation to protect the 
 transferee is satisfied by entering the names 
 of the pledgeor and pledgee, the number or 
 designation of the shaves, and the date of 
 the transfer, without the cancelation of 
 the certificates and the issue of new ones. 
 
 Id. 
 
 421. A signature to a blank transfer of 
 certificates of stock plainly showing that it 
 is made by a guardian of infant owners will 
 not pass a good title to one who takes 
 them before any transfer on the books of 
 the corporation without inquiry and merely 
 as a pledge for a debt from the cashier of 
 a bank in which they were placed for safe 
 keeping but from which they were felo- 
 niously taken by the cashier. 0'IIerron v. 
 Gray, 168 Mass. 573, 47 N. E. 429, 40: 498 
 
 422. A pledge by a trustee of shares of 
 stock in violation of the trust gives no 
 rights to a pledgee who takes them with 
 constructive notice of the trust. First Nat. 
 Bank v. National Broadway Bank, 156 N. Y. 
 459. 51 N. E. 398, 42: 139 
 
 423. An examination of the trust instru- 
 ment itself is required for the protection 
 of one who takes from a known trustee a 
 pledge of shares of stock to secure a loan, 
 at the request of one who untruly claimed 
 
 to be the sole beneficiary, and whom an 
 order of the court appointing the trustee de- 
 scribed as "the only person directly in- 
 terested in the trust," but who had in 
 reality only a life interest. Id. 
 
 Rights of transferee generally. 
 To Dividends, see infra, 518, 519. 
 Of Forged or Fraudulent Issue of Stock, see 
 
 infra, V. d. 
 See also supra, 354, 399-404; infra, 490, 519, 
 
 672. 
 For Editorial Notes, see infra, VIII. 28. 
 
 424. A bona fide purchaser of corporate 
 stock acquires no greater equities than be- 
 longed to his assignor. Clark v. American 
 Coal Co. 86 Iowa, 436, 53 N. W. 291, 17: 557 
 
 425. No discrimination can be made be- 
 tween bona fide purchasers of the stock of a 
 corporation or company, which is on sale in 
 open market, as to the right to perfect 
 their title to the stock, when no discretion- 
 ary power is reserved to that effect. Rice 
 v. Rockefeller, 134 N. Y. 174, 31 N. E. 907, 
 
 17: 237 
 
 426. One holding a bond for half the 
 share in the proceeds of sales to which a 
 stockholder in a corporation formed for 
 establishing a summer resort will be en- 
 titled has no such interest as to give him 
 a voice in determining the policy of the 
 company, or to make his assent to or dis- 
 sent from its proposed plans material. At- 
 torney General v. Abbott, 154 Mass. 323, 
 28N.*E. 346, 13:251 
 
 427. The purchaser of shares of stock on 
 which a dividend is subsequently declared, 
 before the stock is actually transferred, can- 
 not make the execution of an order for the 
 dividend a condition of completing the sale, 
 although the dividend belongs to him as a 
 legal incident of the stock. Phinizy v. Mur- 
 ray, 83 Ga. 747, 10 S. E. 358, 6: 426 
 Purchasers of stolen certificates. 
 
 For Editorial Notes, see infra, VIII. 19. 
 
 428. A bona fide purchaser of certificates 
 of corporate stock standing on the com- 
 pany's books in the name of the former 
 owner, regularly indorsed by him in blank, 
 and stolen from the present owner without 
 his fault, gets no title, because such instru- 
 ments are not negotiable. East Birming- 
 ham Land Co. v. Dennis, 85 Ala. 565, 5 So. 
 317, 2: 836 
 
 429. The title of the true owner of a lost 
 or stolen certificate of stock in a corpora- 
 tion may be asserted against anyone sub- 
 sequently obtaining its possession, even if 
 the holder is a bona fide purchaser. Knox 
 v. Eden Musee Americain Co. 148 N. Y. 441. 
 42 N. E. 988, 31 : 779 
 
 2. Prior Right of Purchase. 
 
 430. A by-law giving a corporation the 
 first right to purchase stock which is for 
 sale by any of its members is not valid un- 
 der a statute specifying several subjects up- 
 on which by-laws may be enacted, but mak- 
 ing no reference to the question of stock 
 transfers. Ireland v. Globe Milling & R. Co. 
 19 R. I. 180, 32 Atl. 921, 29: 429 
 
 431. Even if a by-law of a corporation
 
 776 
 
 CORPORATIONS, V. c, 3, d. 
 
 giving the board of directors the option to 
 take the shares of any stockholder who de- 
 sires to sell them at a value appraised by 
 themselves may be invalid, the subscriber 
 is bound by his agreement which adopts the 
 by-law. New England Trust Co. v. Abbott, 
 162 Mass. 148, 38 N. E. 432, 27:271 
 
 432. An agreement between a subscriber 
 and a corporation, to the effect that the 
 board of directors shall appraise the value 
 of his shares and have the option to take 
 them at that value in case of any transfer 
 thereof, is not against public policy. Id. 
 
 433. An offer of stock for appraisal is not 
 necessary to permit the exercise of an 
 option of the corporation to take the stock 
 under an agreement making it the duty of 
 an executor or other transferee to offer the 
 shares for appraisal to be taken at the elec- 
 tion of the corporation. Id. 
 
 434. A contract to offer stock to the cor- 
 poration at the lowest price at which the 
 holder is willing to sell, before offering it 
 to any other purchaser, is not binding in 
 favor of the corporation when it was made 
 by proposed stockholders before the cor- 
 poration was in existence as a legal entity. 
 Ireland v. Globe Milling & R. Co. 20 R. I. 
 190. 38 Atl. 116, 38: 299 
 
 435. A corporation cannot enforce a con- 
 tract between proposed incorporators to the 
 effect that they will not transfer their 
 stock without Diving the option of purchase 
 to the corporation; but the remedy, if any, 
 for breach of the contract, would be a per- 
 sonal one against the offending stockholder. 
 
 Id. 
 
 436. The mere issue of certificates of 
 stock by a corporation does not amount to 
 a ratification by it of a contract made be- 
 fore it came into existence between the 
 prnnoppd inoornnration to the effect tnat 
 they would not transfer their shares with 
 out giving the company an option to pur- 
 chase them. Id. 
 
 437. A retransfer of shares of stock to the 
 real owner by one in whose name they had 
 been issued to give him an opportunity to 
 acquire them, but who did not choose to 
 do so, is not a sale of them within the 
 meaning of a by-law providing for an 
 option to the other shareholders or the cor- 
 poration to purchase them on any sale of 
 them. Victor G. Bloede Co. v. Bloede, 84 
 Md. 129, 34 Atl. 1127, 33: 107 
 
 438. A by-law restricting the transfer of 
 shares of stock without first giving other 
 stockholders and the corporation an option 
 to purchase it at a price named is unrea- 
 sonable and a palpable restraint upon the 
 alienation of the property. Id. 
 
 3. Lien. 
 
 Lien on Bank Stock, see Banks, 12-15. 
 Foreclosure of, in Equity, see Eouitv. 43. 
 Estoppel as to Condition for, see Estoppel. 
 
 158. 
 See also supra, 405, 406. 
 
 439. Under Cal. Civ. Code, 324, an as- 
 signment of corporate stock is not valid as 
 
 to third persons unless it is entered on the 
 books; and an assignee of a stock certifi- 
 cate of a bank from one who is in debt 
 to the bank, which certificate provides that 
 the transfer shall not be entered on the 
 books until the holder has paid all he owes, 
 is not a bona fide purchaser; and the equit- 
 able lien held by the bank on the stock 
 for the amount due it from the original 
 holder is retained as against such assignee, 
 and it will extend to subsequent advances 
 or loans made to the assignor, where the as- 
 signee gives no notice of the assignment. 
 Jennings v. Bank of California, 79 Cal. 323, 
 21 Pac. 852, 5: 233 
 
 440. The fact that a condition in a stock 
 certificate, that the holder can have no 
 transfer of the stock on the books until 
 he has paid all he shall owe the corporation, 
 inserted without authority of a by-law or 
 vote of the directors, by the officers, does 
 not make it invalid on that account as 
 against the holder, who afterwards bor- 
 rows money, as the officers making a valid 
 loan are supposed to have authority to ar- 
 range its terms and conditions. Id. 
 
 441. Where a bank claims an equitable 
 lien on stock for the amount of a loan to 
 the holder, under a condition in the cer- 
 tificate of stock, providing that it shall not 
 be transferable until the holder has paid all 
 he owes to the bank, the lien is not to be 
 deemed waived by the lending of the money 
 upon the personal credit of the stockholder, 
 merely upon testimony of the cashier that, 
 "if a party i^ in good standing we do not 
 question his right to a transfer. We waive 
 it by transferring. We don't pretend to 
 claim the right to refuse a transfer against 
 a shareholder in good credit." Id. 
 
 442. A corporation having knowledge of 
 a prior pledge of stock cannot extend credit 
 to the shareholder and rely upon its lien 
 as against him, although the statute pro- 
 vides that transfers or liens affecting the 
 stock, if not made or registered upon the 
 books, are invalid as to bona fide creditors 
 or subsequent purchasers without notice. 
 Birmingham Trust & Sav. Co. v. Louisiana 
 Nat. Bank, 99 Ala. 379, 13 So. 112, 20: 600 
 
 d. Forged or Fraudulent Issue. 
 
 Liability of Officers, see supra, 294. 
 Rights of Purchaser of Stolen Certificates, 
 
 see supra, 428, 429. 
 Notice of Fraud, see Notice, 41. 
 Proximate Cause of Loss of Certificates, see 
 
 Proximate Cause, 134. 
 See also infra, 653. 
 For Editorial Notes, see infra, VTII, 19, 
 
 20, 28. 
 
 443. A purchaser of a certificate of stock 
 in open market, without knowledge of any 
 fraud in its issue, is entitled to have it 
 transferred to him on the books of the 
 company without regard to the facts re- 
 lating to any fraud or irregularity in its 
 issunnce. Cincinnati, N. 0. & T. P. R. Co. 
 v. Citizens' Nat. Bank, 56 Ohio St. 351, 47 
 N. E. 249, 43: 777
 
 CORPORATIONS, V. d. 
 
 777 
 
 444. A purchaser of corporate stock re- 
 ceiving new certificates therefor, signed by 
 the proper officers, although issued through 
 their fraud, is, if he acts in good faith, en- 
 titled to be protected as a bona fide pur- 
 chaser. He owes no duty to the corporation 
 to see to it that the seller surrenders any 
 old certificates, and transfers them on the 
 books of the corporation. Allen v. South 
 Boston R. Co. 150 Mass. 200, 22 N. E. 917, 
 
 5: 716 
 
 445. That a certificate of stock is issued 
 in favor of the secretary of the corpora- 
 tion is not sufficient to put a purchaser 
 upon inquiry as to whether he is rightfully 
 the owner, where no other mode of is- 
 suing stock than by the president or the 
 secretary under the corporate "s^al is pro- 
 vided, and neither the secretary nor the 
 president is prohibited from holding stock. 
 Cincinnati, N. O. & T. P. R. Co. v. Citizens' 
 Nat. Bank, 56 Ohio St. 351, 47 N. E. 249, 
 
 43: 777 
 
 446. A person taking in pledge a certifi- 
 cate of stock newly issued in his name, as 
 security for the private debt of an officer 
 of a corporation, who, either alone or witn 
 others, has power to issue stock certificates, 
 is required to investigate the title to the 
 stock, and cannot be protected as an in- 
 nocent holder if the stock was fraudulently 
 issued. Farrington v. South Boston R. Co. 
 150 Mass. 406, 23 N. E. 109, 5: 849 
 
 447. One who, in good faith and without 
 notice, purchases in the market a certificate 
 of stock which has been wrongfully issued 
 by the corporation in lieu of certificates 
 which belonged to a decedent's estate, and 
 which were not legally sold and disposed of 
 by the administrator, receives a good title 
 as against the decedent's estate, if there 
 was nothing on the face of the certificate to 
 put him on inquiry or to give him notice of 
 the infirmity of the title. Such purchaser 
 cannot be required to make an examination 
 of the records to ascertain the validity of 
 the title before he can safely purchase it. 
 Citizens Street R. Co. v. Robbins, 128 Ind. 
 449, 26 N. E. 116, 12: 498 
 Liability of corporation. 
 
 For Editorial Notes, see infra, VITI. 20. 
 
 448. A corporation is not negligent in 
 permitting its president to continue in 
 office and have access to its certificate book 
 and seal, so as to make it liable for his 
 act in issuing forged certificates of stock, 
 by reason of his former misconduct in pledg- 
 ing his own shares to another person in 
 violation of an agreement to pJedge them to 
 an associate. Hill v. C. F. Jewett Pub. Co. 
 154 Mass. 172, 28 N. E. 142, 13: 193 
 
 449. The forgery of the necessary signa- 
 ture of the secretary to certificates of stock, 
 by the president of a corporation, whose 
 only authority as to the issue of certifi- 
 cates is to sign them, does not make the 
 corporation liable therefor to holders who 
 took them in private and personal trans- 
 actions with the president. Id. 
 
 450. Permitting surrendered certificates of I 
 stock to remain uncanceled in the safe of 
 
 the corporation to which an employee has 
 access, and relying upon him to cancel the 
 certificates as he was directed to do, is not 
 such negligence as will maka the corpora- 
 tion liable for his fraudulent use of them 
 to secure a personal loan about three weeks 
 later, if the company did not know or have 
 reason to suspect that he was dishonest, al- 
 though a by-law requiring the cancelation 
 of the surrendered certificates was not com- 
 plied with. Knox v. Eden Musee Americian 
 Co. 148 N. Y. 441, 42 N. E. 988, 31 : 779 
 
 451. Directing an employee to cancel sur- 
 rendered certificates of stock does nov give 
 him any authority, expressed or implied, 
 to act as agent in issuing them, so as 
 to bind the corporation by nis wrongful use 
 of them to secure a personal loan. Id. 
 
 452. A corporation may be held liable in 
 damages for a fraud of its officers in issuing 
 stock, where it cannot be compelled to issue 
 valid shares in place of those fraudulently 
 issued, for the reason that this would cause 
 an overissue of its capital stock. Allen v. 
 South Boston R. Co. 150 luass. 200, 22 N. E. 
 917, 5: 716 
 
 453. A corporation is liable to a bona 
 fide holder of forged certificates of stock 
 regular on their face, but fraudulently is- 
 sued by its secretary, who was also the 
 treasurer and transfer agent of the com- 
 pany, and who countersigned them in his 
 official capacity after forging the signature 
 of the president. Fifth Ave. Bank v. Forty- 
 second Street & G. Street Ferry R. Co. 137 
 N. Y. 231, 33 N. E. 3/8, 19: 331 
 
 454. A corporation is liable in damages 
 to anyone purchasing for value, without 
 notice, spurious stock issued by reason of 
 its neglect to observe care in the issue of 
 the certificates of stock and supervise its 
 agent charged with the performance of 
 such duty. Cincinnati, N. O. & T. P. R. 
 Co. v. Citizens' Nat. Bank, 56 Ohio St. 351, 
 47 N. E. 249, 43: 777 
 
 455. Information that a certificate of 
 stock is in a condition for transfer, given 
 by a person in cliarge of the office of a cor- 
 poration in response to an inquiry, on the 
 faith of which a broker guaranteed its 
 genuineness, estops the corporation from 
 denying its liability to indemnify him or his 
 assignee against loss on account of the fact 
 that the certificate was spurious and worth- 
 less. Jarvis v. Manhattan Beach Co. 148 
 N. Y. 652, 43 N. E. 68, 31:776 
 
 456. A corporation which transfers shares 
 of stock on the surrender of the original 
 certificates and the supposed authority of 
 powers of attorney from executors whose 
 
 ignatures were forged is not relieved from 
 liability to the estate by reason of the fact 
 that the forgery was committed by a son 
 of one of the executors, who had been in- 
 trusted with a key to the box in which the 
 shares were kept, when there was nothing 
 to show that his father had not reason to 
 suppose him trustworthy. Pennsylvania Co. 
 for Ins. etc. v. Franklin Fire Ins. Co. 181 
 Pa. 40, 37 Atl. 191, 37: 780
 
 778 
 
 CORPORATIONS, V. e, 1. 
 
 e. Right of Shareholders. 
 1. In General. 
 
 Ratification of Contract by Stockholders 
 
 see supra, 187-191, 273, 274. 
 Rights of Transferee, see supra, V. c 
 
 Rights of, at Stockholders Meetings, see 
 
 infra, V. g, 1. 
 Right to Vote, see infra, V. g, 2. 
 
 Preference to, in Case of Insolvency, see 
 infra, 789, 790, 803, 804. 
 
 Right to Subscribe for New Stock, see 
 Union Depot Company, 1. 
 
 Vested Right to Elect Directors, see Con- 
 stitutional Law, 138. 
 
 Insurable Interest of Stockholder, see In- 
 surance, 135. 
 
 Insurance of Corporate Property by, see 
 Insurance, 342. 
 
 In Case Corporate Existence is not Ac- 
 quired, see Partnership, 19. 
 
 Competency of Stockholder as Juror, see 
 Jury, 89. 
 
 Competency of Stockholder as Witness, see 
 Witnesses, 59. 
 
 See also supra, 52, 62, 119, 120, 175, 213, 218, 
 219, 241, 244, 263, 265, 271-273, 278, in- 
 fra, 717; Warehousemen, 3b. 
 
 For Editorial Notes, see infra, VIII. 
 32. 
 
 Preferred stockholders. 
 
 As to Preferred Stock Generally, see supra, 
 364-367. 
 
 Retirement of Preferred Stock, see supra, 
 368. 
 
 Dividends on, see infra, 520-524. 
 
 See also infra, 646. 
 
 For Editorial Notes, see infra, VIII. 24. 
 
 457. The holder of preferred stock, even 
 if it was issued in compromise of a debt of 
 the corporation to him, is a stockholder, 
 and not a creditor, under a statute giving 
 the holders of such stock all the privileges 
 of other members of the corporation, in- 
 cluding the right to vote upon the stock. 
 Field v. Lamson & G. Mfg. Co. 162 Mass. 
 388, 38 N. E. 1126, 27: 136 
 
 458. Rents collected by receivers of a 
 corporation are not included in a lien given 
 to preferred shareholders on the company's 
 franchises and property. Heller v. Na- 
 tional Marine Bank, 89 Md. 602, 43 Atl. 
 800, 45: 438 
 
 459. The priority over "any subsequently 
 created mortgage or other encumbrance,' 
 given to preferred shareholders by Md, 
 Code, art. 23, 294, extends to unsecured 
 claims over which subsequent mortgages 
 would have preference. Id, 
 
 460. Articles produced by a corporation 
 for sale are not subject to the lien on the 
 franchises and property of the company 
 given by Md. Code, art. 23, 294. Id. 
 
 461. Insurance collected by receivers for 
 buildings, machinery, and stock in trade 
 that were burned is not subject to the lien 
 of preferred shareholders given by statute 
 on the franchises and property of the com- 
 pany. Id. 
 
 462. Certificates of "preferred, nonvoting 
 capital stock" declared to constitute "a lien 
 upon the property and net earnings of the 
 company next after the company's existing 
 first mortgage," with a provision for "in- 
 terest," which is "only payable out of the 
 net earnings," and which is "not to accumu- 
 late as a charge," but the coupons therefor 
 must be surrendered and canceled on the 
 payment in whole or in part of a subse- 
 quently maturing coupon, do not make the 
 holders thereof creditors of the corporation 
 who are entitled to any part of the 
 capital until all debts are paid or provided 
 for, although they may give them a prefer- 
 ence over common stockholders in relation 
 to both dividends and capital Hamlin v. 
 Toledo, St. L. & K. C. R. Co. 24 C. C. A. 271, 
 47 U. S. App. 422, 78 Fed. 604, 36: 826 
 Minority stockholders. 
 
 463. The utmost good faith toward the 
 minority stockholders must be exercised by 
 the majority, in the control and manage- 
 ment of the property. Miner v. Belle Isle 
 Ice Co. 93 Mich. 97, 53 N. W. 218, 17: 412 
 Fiduciary telation. 
 
 464. Stockholders who combine to consti- 
 tute themselves a majority in order to con- 
 trol the corporation as they see fit become 
 for all practical purposes the corporation 
 itself, and assume the trust relation oc- 
 cupied by the corporation toward its stock- 
 holders. Miner v. Belle Isle Ice Co. 93 Mich. 
 97, 53 N. W. 218, 17:412 
 Stock sold for assessments. 
 
 465. The rights of a purchaser of delin- 
 quent stock sold for assessments must be 
 determined by the general law, if no pro- 
 vision therefor is made by the charter or 
 by-laws, and general provisions of a by- 
 law as to transfer of shares of stock do not 
 applv. fr-'purgeon v. Santa Ana Valley Irrig. 
 Co. 120 Cal. 71, 52 Pac. 140, ?9: 701 
 To contract, or convey property. 
 
 466. Stockholders, as such, have no title 
 to the corporate property which they may 
 convey or encumber in their own name, as 
 the corporation must act through its prop- 
 er agents and in the prescribed way. Home 
 F. Ins. Co. v. Barber, 67 Neb. 644, 93 N. W. 
 1024, 60: 927 
 
 467. A sole stockholder of a corporation 
 has no title, legal or equitable, to its prop- 
 erty, which he can convey by a deed in his 
 own name. Parker v. Bethel Hotel Co. 96 
 Tenn. 252, 34 S. W. 209, 31: 706 
 
 468. A contract between persons who are 
 equal owners of all the stock of a corpora- 
 tion except two shares, of which one is con- 
 trolled by each of them, by which they as- 
 sume to divide and dispose of the property 
 of the corporation, is not obligatory upon 
 ;he corporation. Sellers v. Greer, 172 111. 
 549, 50 N. E. 246, 40: 589 
 
 469. A stockholder has no implied au- 
 thority to make a contract for the corpora- 
 tion merely because he owns a large ma- 
 ority of the stock and has power thereby 
 ;o select and control the board of directors. 
 Jones v. Williams, 139 Mo. 1, 39 S. W. 486, 
 40 S. W. 353. 37: 682 
 
 470. A stockholder canont transfer the
 
 CORPORATIONS, V. e, 2. 
 
 779 
 
 good will of the corporation with his stock 
 within the meaning of a statute permitting 
 one who sells the good will of a business to 
 agree to refrain from carrying on similar 
 business within a limited territory for a 
 specified time. Merchants' Ad-Sign Co. v. 
 Sterling, 124 Cal. 429, 57 Pac. 468, 46: 142 
 Division of assets among stockholders. 
 See also infra, 485. 
 
 471. Representatives of the deceased 
 stockholders of a bank whose charter has 
 expired by limitation are entitled to the 
 proceeds of an insurance policy held as 
 collateral by the bank, to the extent of 
 the debt, under a statute permitting stock- 
 holders to attach corporate property and 
 have any surplus above debts divided among 
 them. Connecticut Mut. L. Ins. Co. v. Duns- 
 comb, 108 Tenn.-724, 69 S. W. 545, 58: 694 
 
 472. A division cannot be made among 
 stockholders of a California corporation, 
 prior to dissolution or expiration of the 
 term of corporate existence, of the stock of 
 a new corporation to which it, in common 
 with a foreign corporation, has transferred 
 its property for the purpose of uniting their 
 conflicting interests, even if such division 
 was unanimously agreed upon by all the 
 stockholders, and among those of the foreign 
 corporation has actually been made, as Cal. 
 Civ. Code, 309, prohibits payment to the 
 stockholders of any part of the capital 
 stock before dissolution or expiration of 
 the term of corporate existence, and the 
 stock of the new corporation received in ex- 
 change for their property is included in the 
 term "capital stock." Kohl v. Lilienthal, 81 
 Cal. 378, 22 Pac. 689, 6: 520 
 
 2. Actions by. 
 
 Costs in, see Costs and Fees, 2, 51, 52. 
 
 To Cancel Assessments, see Insurance, 676. 
 
 Effect of Judgment Against Other. Stock- 
 holder, see Judgment, 293. 
 
 Without Joining Corporation as Party, see 
 Parties, 156, 157. 
 
 For Appointment of Receiver, see Receivers, 
 24, 35-38. 
 
 See also supra, 89; infra, 517, 757. 
 
 For Editorial Notes, see infra, VIII. 18, 
 32, 51. 
 
 473. A corporation, instead of its stock- 
 holders, should sue for the avails of a secret 
 agreement between a promoter and one from 
 whom the corporation purchases property. 
 Yale Gas Stove Co. v. Wilcox, 64 Conn. 101, 
 29 Atl. 303, 25: 90 
 
 474. Individual stockholders of a corpora- 
 tion cannot question in judicial proceedings 
 corporate acts of directors if the same are 
 within the powers of the corporation' and 
 in furtherance of its purposes, and are not 
 unlawful or against good morals, and are 
 performed in good faith and in the exercise 
 of an honest judgment. Hodge v. United 
 States Steel Corp. (N. J. Err. & App.) 64 
 X. J. Eq. 807, 54 Atl. 1, 60: 742 
 
 475. A court of equity has no power to 
 interpose its authority for the purpose of 
 adjusting controversies that have arisen 
 
 among the shareholders or directors of a 
 corporation relative to the proper mode of 
 conducting the corporate business. Repub- 
 lican Mountain Silver Mines v. Brown, 19 
 U. S. App. 203, 7 C. C. A. 412, 58 Fed. 644, 
 
 24: 776 
 
 476. A stockholder in a corporation can- 
 not successfully invoke the power of a 
 chancery court to control its officers or 
 board of managers or to wrest the cor- 
 porate property from their charge, through 
 the agency of a receiver so long as they 
 neither do nor threaten to do any fraudu- 
 lent or ultra vires acts, and so long as they 
 keep within the limits of by-laws which 
 have been prescribed for their governance. 
 
 Id. 
 
 477. A minority stockholder cannot in- 
 voke the jurisdiction of equity for himself 
 and those who may subsequently join him, 
 to prevent the majority stockholders from 
 making a contract which is neither ultra 
 vires, fraudulent, nor illegal. Shaw v. Da- 
 vis. 78 Md. 308. 28 Atl. 619, 23: 294 
 
 478. The fact that the same persons con- 
 stitute the majority stockholders in each 
 of two companies does not enlarge the ju- 
 risdiction of equity to interfere with ths 
 management of one of those corporations 
 in its relation with the other, at the suit 
 of a minority stockholder. Id. 
 
 479. On complaint of minority stock- 
 holders the court will intervene to protect 
 their interests, where the majority of the 
 stockholders of a corporation, who were 
 also the sole managers of its business, have 
 gone on, over the protest of the minority, 
 and dealt with themselves; and the court 
 cannot approve the basis upon which the 
 business has been carried on, even though 
 its intervention involves reforming the con- 
 tract between the corporation and the 
 majority of stockholders, or revising the 
 basis for the apportionment of the profits 
 of the business. Crichton v. Webb Press 
 Co. 113 La. 167, 36 So. 926, 67: 76 
 
 480. A private sale of its property, made 
 by a corporation which is unable to go on 
 with its business, will not be disturbed 
 at the suit of a minority stockholder, and 
 a sale ordered at public auction, merely be- 
 cause he deems that the agreed price is in- 
 adequate and that part of the property is 
 worth more than the price at which it 
 is scheduled, where he does not show 
 that more, or even as much, would be of- 
 fered for the whole property if sold at 
 auction. Phillips v. Providence Steam 
 Engine Co. 21 R. I. 302, 43 Atl. 598, 45: 560 
 
 481. If the action of a majority of the 
 stockholders of a corporation resulting 
 from their votes at a stockholders' meet- 
 ing is so detrimental to the interests of 
 the corporation itself as to lead to the 
 necessary inference that their interests lie 
 wholly outside of and in opposition to 
 those of the corporation and of the minor- 
 ity of the stockholders, and that their ac- 
 tion is a wanton or a fraudulent destruc- 
 tion of the rights of such minority, it may 
 be subjected to the scrutiny of a court of 
 equity at the suit of the minority. Gam-
 
 780 
 
 CORPORATIONS, V. e, 8. 
 
 ble v. Queens County Water Co. 123 N. Y. 
 91, 25 N. E. 201, 9:527 
 
 482. Equity will not prevent the major- 
 ity of the stockholders of a corporation 
 from pursuing a certain course of action, 
 at the suit of the minority, simply upon 
 the allegation that such action will in- 
 volve the corporation in litigation. Con- 
 verse v. Hood, 149 Mass. 471, 21 N. E. 878, 
 
 4: 521 
 
 483. To warrant the interposition of a 
 court in favor of the minority sharehold- 
 ers in a corporation or joint-stock associa- 
 tion, as against the contemplated action of 
 the majority, where such action is within 
 the corporate powers, a case must be made 
 out which plainly shows that such action 
 is so far opposed to the true interests of 
 the corporation itself as to lead to the 
 clear inference that no one thus acting 
 could have been influenced by any honest 
 desire to secure such interests, but that he 
 must have acted with an intent to subserve 
 some outside purpose, regardless of the con- 
 sequences to the company, and in a manner 
 inconsistent with its interest. Gamble v. 
 Queens County Water Co. 123 N. Y. 91, 25 
 N. E. 201, 9: 527 
 
 484. An accounting at the suit of share- 
 holders cannot be granted on the ground 
 that the affairs of a corporation are di- 
 rected by a controlling stockholder in the 
 interest of another corporation of which 
 he is president, and that all the officers 
 and directors are subject to his absolute 
 control and direction, where there is noth- 
 ing to show fraud in the management of 
 the affairs of the corporation, or even that 
 the manner of conducting its business has 
 not been wise, although the corporation is 
 insolvent and all the product of its busi- 
 ness has been purchased by the other com- 
 pany. Wheeler v. Pullman Iron & S. Co. 
 143 'ill. 197, 32 N. E. 420, 17:818 
 
 485. The donation by trustees of an in- 
 corporated benevolent association to each 
 member, in pursuance of a unanimous vote 
 of the members present at a meeting when 
 the vote was taken, of a certain sum for 
 past services, wnen no services had been 
 rendered other than such as the parties 
 were bound to render as members, is a 
 misappropriation of corporate funds, the 
 restoration of which may be compelled by a 
 member who was not a party to the trans- 
 action. Ashton v. Dashaway Asso. 84 Cal. 
 61, 62, 23 Pac. i091, 7: 809 
 
 486. Holders of stock in a corporation 
 the property of which has been sold can- 
 not maintain a suit to enforce a trust in 
 such property for their own benefit on the 
 theory that the directors of the company 
 were guilty of fraud in disposing of it. 
 Hearst v. Putnam Min. Co. 28 Utah. 184. 
 77 Pac. 753, 66: 784 
 
 487. Stockholders who are officers of a 
 corporation may be compelled, upon a bill 
 properly framed, to pay directly to other 
 stockholders their share of money which 
 the officers have fraudulently retained as 
 salaries. Eaton v. Robinson, 19 R. I. 146, 
 31 Atl. 1058, 29: 100 
 
 488. Where the action of the majority 
 of the shareholders of a corporation is 
 plainly a fraud upon, or is really oppressive 
 to, the minority shareholders, and the di- 
 rectors and trustees have acted with and 
 formed part of the majority, a suit to en- 
 join such action may be maintained by one 
 of the minority shareholders suing in his 
 own behalf and in that of all others com- 
 ing in, to which suit the corporation must 
 be made a party defendant. Gamble v. 
 Queens County Water Co. 123 N. Y. 91, 25 
 N. E. 201, 9: 527 
 
 489. A stockholder has the right to main- 
 tain a suit to enjoin the corporation from 
 entering an illegal trust, where the effect 
 will be to subject the charter to forfeiture, 
 and destroy the value of the stock, since 
 it will, in any event, close down the busi- 
 ness of the corporation, and prevent the 
 further earning of profits. Harding v. 
 American Glucose Co. 182 111. 551, 55 N. E. 
 577, 64: 738 
 Persons acquiring stock after acts com- 
 plained of. 
 
 490. Stockholders who have acquired 
 their shares and their interest in the cor- 
 poration from alleged wrongdoers, and 
 through prior mismanagement, have no 
 standing to complain thereof. Home F. Ins. 
 Co. v. Barber, 67 Neb. 644, 93 N. W. 1024, 
 
 60: 927 
 
 491. Subsequent stockholders have no 
 standing to attack prior mismanagement 
 of the corporation; unless such misman- 
 agement or its effects continue and are in- 
 jurious to them specially and peculiarly in 
 some other manner. Id. 
 
 492. Stockholders in a corporation who 
 are injured by the mismanagement thereof 
 may, if they so elect, acquiesce in and treat 
 such transactions as binding, where they 
 are not absolutely void, and the discre- 
 tion to acquiesce therein or bring suit to 
 set them aside cannot be transferred. Id. 
 Excessive price paid" for property. 
 
 493. In determining the question whether 
 or not the price paid by a corporation to 
 one of its directors for property owned 
 by him, by direction of a majority of the 
 shareholders, of which he was one, is so 
 excessive as to constitute a fraud on the 
 rights of the minority, the value of the 
 time and the interest on the money which 
 he has expended thereon may be added to 
 its cost, and he may, in addition, be al- 
 lowed a fair profit thereon, and whatever 
 advantage he may have gained by a for- 
 tunate purchase of materials used. Gam- 
 ble v. Queens County Water Co. 123 N. Y. 
 91, 25 N. E. 201, 9: 527 
 
 494. The true inquiry, in determining 
 whether or not the price paid by a majority 
 of the stockholders of a corporation for 
 property is so excessive as to be a fraud 
 on the minority, is what, under all the cir- 
 cumstances, is the fair value of the prop- 
 erty to the company, considering its pro- 
 pos'ed use and the general purpose for 
 which the company is organized. Id. 
 
 495. An order by a majority of the stock- 
 holders of a corporation to pay an exces-
 
 CORPORATIONS, V. e, 3. 
 
 781 
 
 sive sum for orooerty purchased for it, in 
 stock and bonds, is not to be condemned 
 as a fraud, unless the majority acted in 
 bad faith, on which question possible or 
 probable prospective value of the property 
 purchased may be considered. Id. 
 
 Against other corporation or its officers. 
 
 496. A stockholder of one corporation 
 cannot enjoin another corporation from in- 
 fringing the trademark and interfering 
 with the business of the former. Converse 
 v. Hood, 149 Mass. 471, 21 N. E. 878, 
 
 4: 521 
 
 497. A suit cannot be maintained by a 
 stockholder of one corporation, solely for 
 his individual benefit, against a director of 
 another corporation, to enjoin an infringe- 
 ment by the latter corporation of the trade 
 name or trademark of the former.'* Id. 
 
 498. No duty which can be enforced in 
 equity on the part of an officer of one cor- 
 poration in favor of a stockholder of an- 
 other corporation, to abstain from using 
 the trademarks of the latter corporation, 
 arises from the relation of the parties as 
 officers and members of such corporations. 
 
 Id. 
 Effort to procure action by corporation. 
 
 499. A minority stockholder can bring a 
 suit in equity for relief without showing 
 any request to the directors or refusal 
 by the corporation, where the directors are 
 themselves the wrongdoers. Miner v. Belle 
 Isle Ice Co. 93 Mich. 97, 53 N. W. 218, 
 
 17: 412 
 
 500. A stockholder may, without con- 
 sulting the directors, bring an action to 
 enjoin them from unlawfully transferring 
 the stock to a consolidated corporation. 
 Botts v. Simpsonville & B. C. Turnp. Co. 
 88 Ky. 54, 10 S. W. 134, 2: 594 
 
 501. A stockholder of a corporation may 
 bring an action on behalf of himself and 
 others who shall come in and become par- 
 ties, to prevent the officers and a majority 
 of the stockholders of the corporation from 
 dealing wrongfully with the corporate' prop- 
 erty to the injury of stockholders, where 
 it is reasonably certain that a demand up- 
 on the proper officers to bring the action 
 would be unavailing. Harding v. American 
 Glucose Co. 182 111. 551, 55 N. E. 577, 
 
 64: 738 
 
 502. No prior application to the corporate 
 officers for redress is "necessary before suit 
 by a stockholder for the appointment of 
 a receiver of an insolvent corporation, 
 where the wrongdoing and fraud of the 
 officers themselves is the ground of the ap- 
 plication. Supreme Sitting O. of I. "FT. v. 
 Baker, 134 Ind. 293, 33 N. E. 1128, 20: 210 
 
 503. A demand on the trustees of a cor- 
 poration to restore funds misapplied is not 
 necessary before an action by a member to 
 compel such restoration, where the trus- 
 tees themselves were parties to the un- 
 lawful transaction, and contest the action 
 on the ground that their acts were right- 
 ful. Ashton v. Dashaway Asso. 84 Cal. 
 61, 62, 23 Pac. 1091, 7: 809 
 
 504. An averment of refusal by the of- 
 ficers of a corporation, upon request, to 
 
 take appropriate legal proceedings to pre- 
 vent the unlawful voting of corporate stock, 
 will authorize the entertainment of a suit 
 by stockholders in their own names for 
 the accomplishment of that object. Mem- 
 phis & C. R. Co. v. Woods, 88 Ala. 630, 
 7 So. 108, 7: 605 
 
 505. Before a stockholder of a corpora- 
 tion can maintain a bill in his own name 
 to restrain a rival corporation, which has 
 acquired a majority of the stock of the 
 other, from voting such stock at a stock- 
 holders' meeting, he must request the 
 bringing of a suit by and in the name of 
 the corporation itself, unless it is manifest 
 that such request, if made, would be de- 
 nied. Hence a bill which shows that the 
 board of directors consists of seven mem- 
 bers, of whom three were elected and are 
 controlled by the rival, while the others are 
 independent of its control except one, who 
 is alleged to have been a director before 
 the interest of the rival was acquired, and 
 to have no interest in either corporation, is 
 fatally defective, unless it avers a pre- 
 vious request for a suit by the directors 
 in the name of the corporation, notwith- 
 standing an allegation that such director 
 holds his stock and acts in all things in the 
 interest of the rival. Mack v. DeBardele- 
 ben Coal & I. Co. 90 Ala, 396, 8 So. 150, 
 
 9: 650 
 
 3. Right to Inspect Books. 
 
 First Raising Question as to, on Appeal, 
 
 see Appeal and Error, 619. 
 Burden of Proving Intent in Requesting, 
 
 see Evidence, 347. 
 
 Injunction to Enforce, see Injunction, 242. 
 Mandamus to Enforce, see Mandamus, 89, 
 
 90. 
 
 See also supra, 354. 
 For Editorial Notes, see infra, VIII. 33. 
 
 506. The books and papers of a private 
 corporation under the laws of this state are 
 not public, but private, records and docu- 
 ments. Lipscomb v. Condon, 56 W. Va. 
 416, 49 S. E. 392, 67: 670 
 
 507. A stockholder has the right at com- 
 mon law to inspect the books of his cor- 
 poration at a proper time and place and 
 for a proper purpose. Re Steinway, 159 
 N. Y. 250, 53 N. E. 1103, 45: 461 
 
 508. All reasonable times are intended 
 by a statute giving stockholders the right 
 to inspect the corporate books at all times. 
 Weihenmayer v. Bitner, 88 Md. 325, 42 
 Atl. 245, 45: 446 
 
 509. A stockholder has a right to inspect 
 and examine the books and records of the 
 corporation at reasonable times, so long as 
 his purpose is to inform himself as to the 
 manner and fidelity with which the cor- 
 porate affairs are being conducted, and his 
 examination is made in the interest of the 
 corporation. State ex rel. Weinberg v. Pa- 
 cific Brewing & M. Co. 21 Wash. 451, 58 
 Pac. 584, 47: 208 
 
 510. The right to inspect books of a cor- 
 poration does not depend upon ^the motive 
 or purpose of the stockholder in demand-
 
 782 
 
 CORPORATIONS, V. e, 4. 
 
 ing such inspection, and a petition which 
 shows that the plaintiff is a stockholder, 
 that he has requested the defendant to 
 allow him to inspect the books and rec- 
 ords of the corporation, and fix a reason- 
 able time for the same, which request has 
 been refused, states a cause of action. Cin- 
 cinnati Volksblatt Co. v. Iloffmeister, 62 
 Ohio St. 189, 56 N. E. 1033, 48: 732 
 
 511. The purchaser of stock in a corpora- 
 tion, although entitled to examine its 
 books, is not, as matter of law, under ob- 
 ligation to do so for the purpose of ascer- 
 taining whether or not he has been de- 
 frauded in his purchase of the stock, when 
 he is not aware of any ground of suspicion. 
 Gerner v. Mosher, 58~ Neb. 135. 78 N. W. 
 384, 46: 244 
 
 512. As incident to a right to inspect 
 books of a corporation is the right to have 
 such inspection by a proper agent, and to 
 take copies from such books and records. 
 Cincinnati Volksblatt Co. v. Hoffmeister, 
 62 Ohio St. 189, 56 N. E. 1033, 48: 732 
 
 513. The common-law right of a share- 
 holder to inspect the books of his corpora- 
 tion is not affected by the New York stock 
 corporation law (N. Y. Laws 1892, chap. 
 688, 29. 52), providing for the inspec- 
 tion of the stock book and for the furnish- 
 ing of a statement of assets and liabili- 
 ties upon the request of stockholders own- 
 ing a fixed percentage of the capital stock. 
 Re Steinway, 159 N. Y. 250. 53 N. E. 1103, 
 
 45: 461 
 
 514. The statutory right of a stockhold- 
 er of a corporation to inspect its books, 
 documents, and records is not forfeited by 
 the fact that he is a business rival of the 
 corporation, and seeks information to be 
 used to its injury and loss. Weihenmayer 
 v. Bitner, 88 Md.' 325, 42 Atl. 245, 45: 446 
 
 515. Sufficient ground for applying for a 
 writ of mandamus to compel the officers of 
 an incorporated political club to permit a 
 member to inspect the membership roll 
 is shown by averring that the directors 
 and one of the officers whose duty it is to 
 keep such roll have refused, upon proper 
 request, to permit such inspection; and 
 it is immaterial that a list of members is 
 required to be kept by other officials. Mc- 
 Clintock v. Young Republicans. 210 Pa. 115, 
 59 Atl. 691. 68: 459 
 
 516. A member of a corporation organ- 
 ized in the interests of a political organi- 
 zation has a right to the inspection of the 
 membership roll for the purpose of insti- 
 tuting measures to promote the objects of 
 the organization, to protect the affairs and 
 property of the corporation from being 
 used to further the private political am- 
 bition of any member or group of mem- 
 bers, and to oppose the election of in- 
 competent officials. Id. 
 
 4. Dividends. 
 
 Estoppel by Accepting, see Estoppel, 166. 
 
 Effect of Attaching after Stockholder's 
 Death, see Executors and Administra- 
 tors, 129. 
 
 Effect of Donor's Receipt of, see Gift, 28. 
 Relative Rights of Life Tenants and Re- 
 maindermen, see Life Tenants, II. b. 
 See also supra, 293, 329; infra, 803. 
 For Editorial Notes, see infra, VIII. 34. 
 
 517. On complaint of the minority stock- 
 holders, and on proper showing, the court 
 will order the board of directors of a cor- 
 poration to declare a dividend. Crichton 
 v. Webb Press Co. 113 La. 167, 36 So. 926, 
 
 67:76 
 
 Rights of purchaser of stock. 
 See also supra, 427. 
 For Editorial Notes, see infra, VIII. 34. 
 
 518. A sale of shares of stock, "includ- 
 ing all dividends due or to become due 
 thereon," includes a stock dividend. Rose 
 v. Barclay, 191 Pa. 594, 43 Atl. 385, 45: 392 
 
 519. The failure of a purchaser of stock, 
 "including all dividends," to inform the sell- 
 er of the fact, of which the purchaser knew 
 he was ignorant, that a stock dividend 
 had been declared, does not avoid the sale, 
 where the dividend had been declared at a 
 regularly called meeting of the stockhold- 
 ers, and each had abundant and equal op- 
 portunities of knowledge on the subject. 
 
 Id. 
 
 On preferred stock; guaranty of dividends. 
 See also supra, 368; infra, 724; Guaranty, 
 
 3, 6, 20. 
 For Editorial Notes, see infra, VIII. 24, 
 
 34. 
 
 520. A guaranty by one corporation, on 
 a lease of the road of another, of an an- 
 nual dividend of 10 per cent on the capital 
 stock of the lessor company, creates no 
 privity between the lessee company and the 
 stockholders of the other; and a state- 
 ment printed on the certificates of stock 
 to the effect that such dividend is guar- 
 anteed, purporting only to be a state- 
 ment of a fact having reference to an 
 agreement between the companies, which 
 statement is not signed by the lessee com- 
 pany,, does not constitute any contract with 
 the stockholders. Beveridge v. New York 
 Elev. R. Co. 112 N; Y. 1, 19 N. E. 489, 
 
 2: 648 
 
 521. A guaranty by a corporation of divi- 
 dends upon preferred stock, in accordance 
 with a statute permitting a guaranty of 
 such dividends payable cumulatively out 
 of net profits, does not make the dividend 
 payable at all events, but only devotes the 
 profits to the payment of dividends upon 
 such stock in preference to common stock. 
 Field v. Lamson & G. Mfg. Co. 162 Mass. 
 388, 38 N. E. 1126, 27: 136 
 
 522. The declaration of a 'dividend out of 
 net profits contrary to the judgment of the 
 directors is not required by a guaranty by 
 the corporation of dividends upon preferred 
 stock in accordance with a statute sim- 
 ply permitting a guaranty of such dividends 
 payable cumulatively out of net profits. 
 
 Id. 
 
 523. The right to dividends on preferred 
 stock which are payable out of net profits 
 cannot be enforced in an action at law, 
 even if there axe net profits out of which
 
 CORPORATIONS, V. f, 1. 
 
 783 
 
 they might be paid, if no dividend has been 
 declared. Id. 
 
 524. A court of equity cannot compel the 
 declaration of a dividend on preferred stocK 
 out of net profits from which the directors 
 have a right to make the dividend payable 
 cumulatively, where for half the time for 
 which the dividends are claimed there were 
 no net profits, and the condition of the cor- 
 poration is such that the court cannot say 
 that the payment of dividends might not 
 injure the concern, or that the withholding 
 of them might not be judicious. Id. 
 
 f. Liability of Shareholders. 
 
 1. In General. 
 
 
 * 
 
 Of Foreign Corporation, see infra, 831. 
 832. 
 
 Liability of Personal Representative, see 
 Abatement and Revival, 10, 11. 
 
 Error in Reversing in Toto Judgment for 
 Assessment, see Appeal and Error, 
 1154. 
 
 For Laborer's Wages, Assignability of 
 Claim for, see Assignment, 14. 
 
 Right to Recover Corporate Assets Con- 
 ferred by Majority Stockholder, see 
 Assumpsit, 27. 
 
 Liability of Stockholder in Bank, see 
 Banks, 16-26. 
 
 To Bank Discounting Paper for' Corpora- 
 tion, see Banks, 2. 
 
 Lien on Assets of Insolvent Stockholder, 
 see Banks, 15. 
 
 Stockholder Signing Bond for Corporation, 
 see Bonds, 2. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 I. d, 2, b. 
 
 Self-Executing Provisions as to, see Con- 
 stitutional Law, 85-87. 
 
 Effect of Discharge of Corporation in In- 
 solvency Proceedings, see Constitu- 
 tional Law, 1189. 
 
 Impairing Obligation of Contract as to, see 
 Constitutional Law, 1141. 
 
 Following Decisions of Other Courts, as to, 
 see Courts, 523, 524. 
 
 Measure of Liability for False Represen- 
 tations, see Damages, 268. 
 
 Estoppel to Deny Liability, see Estoppel, 
 104. 
 
 Evidence of False Statements by Stock- 
 holders, see Evidence, 1795. 
 
 Of Insurance Company, see Insurance, 816. 
 
 Conclusiveness of Judgment as to, see Judg- 
 ment, 173, 228, 229, 285, 288. 
 
 Liability of Stock to Levy, see Levy and 
 Seizure, 14-17. 
 
 Limitation of Action against, see Limita- 
 tion of Actions, 99-103. 
 
 Notice of Stockholder's Discharge in Insolv- 
 ency, see Notice, 73. 
 
 In Case Corporate Existence is not Ac- 
 quired, see Partnership, 19. 
 
 Liability of Members of Partnership Asso- 
 citation, see Partnership, VIII. 
 
 Set-Off by Stockholder, see Set -Off and 
 Counterclaim, 23, 32, 39. 
 
 Effect of Repeal of Statute as to, see 
 Statutes, 612. 
 
 Statute Exempting from, as Exclusive Priv- 
 ilege, see Taxes, 203. 
 
 Liability to Taxation on Stock, see Taxes, 
 I. e, 2. 
 
 See also infra, 803. 
 
 For Editorial Notes, see infra, VHI. 23, 
 35-43. 
 
 525. A contract liability is assumed by 
 stockholders under a state Constitution, 
 and laws passed pursuant thereto, imposing 
 upon them a personal liability for debts of 
 the corporation in addition "to the stock 
 subscription. Kirtley v. Holmes, 46 C. C. 
 A. 102, 107 Fed. 1, 52: 738 
 
 526. A person who is accepted as stock- 
 holder in a corporation, by the charter of 
 which he was ineligible to membership, is 
 estopped from denying his eligibility as 
 against creditors of the corporation, after 
 it has become insolvent. Blien v. Rand, 
 77 Minn. 110. 79 N. W. 606. 46: 618 
 
 527. A railroad company whose rights 
 and powers in respect to a connecting road 
 are merely those of a stockholder is not 
 liable for the negligence of a connecting 
 railroad. Atchison. T. & S. F. R. Co. v. 
 Cochran, 43 Kan. 225, 23 Pac. 151, 7 : 414 
 
 528. The provision in Minn. Laws 1889, 
 chap. 30, 1, amending the insolvent law of 
 1887, "that the release of any debtor under 
 this act shall not operate to discharge any 
 other party liable as surety, guarantor, or 
 otherwise for the same debt," includes 
 stockholders who are liable for the debts 
 of the corporation. Willis v. St. Paul Sani- 
 tation Co. 48 Minn. 140, 50 N. W. 1110, 
 
 16: 281 
 Exemption from liability. 
 
 529. A "mechanical business," within the 
 meaning of Minn. -Const, art. 10, 3, ex- 
 empting all manufacturing or mechanical 
 business from a provision for liability of 
 stockholders to the afnount of stock held, 
 means a business closely allied to or inci- 
 dental to some kind of manufacturing 
 business. Cowling v. Zenith Iron Co. 65 
 Minn. 263, 68 N. W. 48, 33: 508 
 
 530. The mining of iron ore is a mechan- 
 ical business within the meaning of Minn. 
 Const, art. 10, 3, exempting such business 
 from the provision as to the liability of 
 stockholders. Id. 
 
 531. A corporation organized in part for 
 buying, selling, leasing, and dealing in min- 
 eral lands is not organized for an exclusive- 
 ly manufacturing business so as to exempt 
 its stockholders, under Minn. Const, art. 
 10, 3, from liability to the amount of 
 stock held. Anderson v. Anderson Iron Co. 
 65 Minn. 281, 68 N. W. 49, 33: 510 
 
 532. A corporation which bv the terms of 
 Minn. Gen. Stat. 1894, 2829, is deemed a 
 manufacturing or mechanical corporation, 
 cannot be held so unless it is within the 
 meaning of those terms as used in the Con- 
 stitution; and the section, so far as it en- 
 larges the class, is void. Id. 
 
 533. An electric street railway company 
 is not a "railroad" corporation within the 
 meaning of the exemption of the stock- 
 holders of railroad corporations from indi-
 
 784 
 
 CORPORATIONS. V. f, 1. 
 
 vidual liability equal to the amount of their 
 stock. Ferguson v. Sherman, 116 Cal. 169, 
 47 Pac. 1023, 37: 622 
 
 Amount. 
 
 534. Stockholders in a corporation can- 
 not defeat all recovery against them for an 
 amount in addition to the value of their 
 stock, because the act providing for it 
 does not fix the amount, but simply fixes 
 a limit beyond which it shall not extend, 
 since the liability will be regarded as ex- 
 tending to such limit if necessary. Flenni- 
 ken v. Marshall, 43 S. C. 80, 20 S. E. 788, 
 
 28: 402 
 
 On paid-up stock. 
 See also infra, 564. 
 
 535. No assessment on paid-up stock of a 
 corporation can be made, in the absence of 
 statutory authority or power given by the 
 articles of incorporation. Enterprise Ditch 
 Co. v. Moffit, 58 Neb. 642, 79 N. W. 560, 
 
 45: 647 
 For failure to publish notice. 
 
 536. The liability of stockholders for fail- 
 ure to publish an annual notice of the cor- 
 porate debts is in the nature of a penalty 
 as a punishment for their default. Globe 
 Pub. Co. v. State Bank, 41 Neb. 175, 59 
 N. W. 683, 27: 854 
 In de facto corporations. 
 
 For Editorial Notes, see infra, VIII. 41. 
 
 537. Subscribers to the stock of corpora- 
 tions which never become fully organized 
 because all the stock is not taken, but 
 which are merged, with their consent, in a 
 new corporation, cannot set up illegality 
 of the merger or the lack of corporate 
 character of any or all of the companies to 
 defeat their liability, as against creditors 
 of the new company, after they have per- 
 mitted it to incur liabilities. Hamilton v. 
 Jackson, 144 Pa. 34, 23 Atl. 53, 13: 779 
 
 538. A creditor who has dealt with a 
 de facto corporation in its corporate capaci- 
 ty cannot charge the stockholders as part- 
 ners with the corporate debt, in the ab- 
 sence of fraud. Louis Snider's Sons Co. v. 
 Troy, 91 Ala. 224, 8 So. 658, 11: 515 
 
 539. Stockholders are liable as partners 
 on contracts of a corporation which they 
 have undertaken to form for a certain busi- 
 ness under the laws of another state, solely 
 because a corporation for such business can- 
 not be legally organized in the state where 
 it is to be carried on. Empire Mills v. 
 Alston Grocery Co. (Tex. App.) 15 S. W. 
 505, 12: 366 
 
 540. An attempted organization of a cor- 
 poration in one state, under a charter 
 granted in another state, does not consti- 
 tute it a de facto corporation so as to re- 
 lieve the members from liability as part- 
 ners, as to give an association such a status 
 the attempted organization must be under 
 semblance of authority, which does not 
 exist in the case supposed. Duke v. Tay- 
 lor. 37 Fla. 64, 19 So. 172, 31: 484 
 
 541. Persona doing business in the nan' 
 of an assumed corporation after filing arti- 
 cles of incorporation for record, but before 
 any stock is subscribed for or any further 
 steps taken towards organization, even if 
 
 they are not liable as stockholders by the 
 terms of the statute, are personally liable 
 as partners, under Wis. Rev. Stat. 1771- 
 1773, providing that no corporation shall 
 have legal existence until such articles are so 
 left for record, and that in such a corpora- 
 tion only persons holding stock shall be 
 members, and that stockholders shall be 
 personally liable until one half of the capi- 
 tal stock has been subscribed and 20 per 
 cent thereof paid. Wechselberg v. Flour 
 City Nat. Bank, 24 U. S. App. 308, 12 C. C. 
 A. 56, 64 Fed. 90, 26: 470 
 
 542. A person who signs articles of incor- 
 poration which are filed for record and re- 
 corded may be liable as a partner for per- 
 mitting the use of his name as an officer of 
 the corporation by other signers of the arti- 
 cles who, without becoming legally incor- 
 porated, carry on business in the assumed 
 name of the corporation, where he has 
 knowledge of such use of his name, or is 
 guilty of negligence in not knowing it. Id. 
 
 543. Taking subscriptions to and issuing 
 stock, electing managers and directors, 
 adopting by-laws, buying a lot, and con- 
 structing and leasing a building upon it, 
 constitute a sufficient user to constitute a 
 de facto corporation which will prevent lia- 
 bility of the members as partners under a 
 statute authorizing corporations for such 
 business. Finnegan v. Knights of Labor 
 Bldg. Asso. 52 Minn. 239, 53 N. W. 1150, 
 
 18: 778 
 
 544. A contract subscribing "for the cap- 
 ital stock of a corporation to be organized" 
 does not constitute the subscribers stock- 
 holders within the provisions of Wis.. Rev. 
 Stat. 1773, making stockholders "then ex- 
 isting" personally liable on obligations of 
 the corporation incurred before one half of 
 its capital stock has been subscribed; and 
 they are not made liable by the fact that 
 they subsequently become in fact stock- 
 holders, and that the corporation thereafter 
 has the benefit of the transaction in which 
 the obligation was created. Badger Paper 
 Co. v. Rose, 95 Wis. 145, 70 N. W. 302, 
 
 37: 162 
 
 545. Merely participating in the signing 
 and filing of articles of incorporation will 
 not render a person liable as a partner for 
 liabilities contracted by one of his associ- 
 ates who assumes to transact business un- 
 der the proposed corporate name, where the 
 organization is never perfected, and the one 
 sought to be charged has not participated 
 in the business or held himself out as a 
 partner. Rutherford v. Hill, 22 Or. 218, 
 29 Pac. 546, 17: 5^9 
 Of trustee or attorney. 
 
 546. One who holds stock as the self-ap- 
 pointed attorney or trustee of an infant/ 
 without anything on the books of the cor- 
 poration to show that the holder is not the 
 actual and beneficial owner, is liable as a 
 stockholder. Kerr v. Urie, 86 Md. 72, 37 
 Atl. 789, 38: 119 
 Sole stockholder. 
 
 547. The failure to pay up all the stock 
 of a corporation does not make one who 
 has become the sole owner of it personally
 
 CORPORATIONS, V. f, I. 
 
 T8S 
 
 liable for corporate debts, on the ground of 
 fraud, at least where these were incurred 
 long after the corporation had been or- 
 ganized and had been doing a prosperous 
 business, and when the stock paid in and 
 the assets were amply sufficient to pay all 
 indebtedness then existing. Louisville Bkg. 
 Co. v. Eisenman, 94 Ky. 83, 21 S. W. 531, 
 
 19: 684 
 
 548. The sole owner of the stock of a 
 corporation which is still doing business as 
 such does not become personally liable on 
 an indorsement of drafts made by him in 
 the name of the corporation, where no 
 fraud was practised and all parties to the 
 transaction acted in the belief that the 
 corporation alone was liable. Id. 
 Mortgage bondholders. , 
 
 549. Railroad mortgage bondholders who 
 subscribed an agreement to pay the com- 
 pany a certain sum in specific instalments, 
 and to receive therefor debenture bonds, do 
 not thereby become liable to creditors of 
 the company for the amounts unpaid on 
 such agreement, on the analogy of the lia- 
 bility of stockholders to the extent of un- 
 paid stock subscriptions. Pettibone v. To- 
 ledo, C. & St. L. R. Co. 148 Mass. 411, 19 
 N. E. 337.. 1: 787 
 For what debts. 
 
 See also infra, 580-585, 616, 617. 
 
 550. The word "ascertained" in the Ne- 
 braska Constitution, making stockholders 
 liable for debts of the corporation which 
 have been ascertained, means judicially as- 
 certained. Globe Pub. Co. v. State Bank, 
 41 Neb. 175, 59 N. W. 683, 27: 854 
 
 550a. No debt is contracted by a corpora- 
 tion by the mere making of a contract for 
 goods, before any breach thereof or delivery 
 of goods, within the meaning of R. I. 
 Pub. Stat. chap. 155, 12, making stock- 
 holders liable for debts contracted before 
 notice by the filing of a certificate. Wing 
 v. Slater, 19 R. I. 597, 35 Atl. 302, 33: 566 
 
 551. The "dues from corporations," that 
 are required by Ohio Const, art. 13, 3, 
 to be secured by individual liability of the 
 stockholders, include obligations growing 
 out of torts, as well as those growing out 
 of contracts. Rider *v. Fritchey, 49 Ohio 
 St. 285, 30 N. E. 692, 15: 513 
 
 552. A demand arising ex delicto may be 
 enforced against the stockholders of a cor- 
 poration under a constitutional provision 
 that the dues from corporations shall be 
 secured by individual liability of the stock- 
 holders. Flenniken v. Marshall, 43 S. C. 
 80, 20 S. E. 788, 28: 402 
 
 553. A stockholder of a railroad com- 
 pany is not liable for the negligence of the 
 officers, agents, or employees of the com- 
 pany in the operation of its road. Atcbi- 
 son, T. & S. F. R. Co. v. Cochran, 43 Kan. 
 225, 23 Pac. 151, 7:414 
 
 554. Whether or not a claim of damages 
 for waste is an indebtedness of a corpora- 
 tion, within the scope of Or. Const, art. 11, 
 3, making a stockholder liable for the in- 
 debtedness of the corporation to the amount 
 unpaid on his stock, a judgment obtained 
 thereon is such an indebtedness. Powell v. 
 
 L-R.A. Dig. 50, 
 
 Oregonian R. Co. 13 Sawy. 535, 36 Fed. 
 726, 2: 270 
 
 555. A judgment against a corporation for 
 the recovery of money is conclusive evidence, 
 in a suit against a stockholder for the col- 
 lection of said judgment, of the existence of 
 the corporation and its liability to plaintiff 
 therein as thereby determined; and such 
 judgment, whether given in an action ex 
 contractu or ex delicto, is an indebtedness 
 of the corporation, for which a stockholder 
 is liable to the amount due on his stock. 
 Powell v. Oregonian R. Co. 13 Sawy. 543, 
 38 Fed. 187, 3: 201 
 
 556. A creditor who purchases claims 
 against the corporation after it has become 
 insolvent and its affairs have been placed 
 in the hands of a receiver will not be grant- 
 ed relief in equity against the holders of 
 stock under an agreement with the corpora- 
 tion that they shall not be obliged to pay 
 for it unless he pays a substantial consid- 
 eration for the claims. Hospes v. North- 
 western Mfg. & C. Co. 48 Minn. 174, 50 N. 
 W. 1117, 15: 470 
 
 557. A claim in favor of creditors of a 
 corporation against the estate of a deceased 
 stockholder before the assets of the cor- 
 poration are fully administered is a "con- 
 tingent claim" within the meaning of Minn. 
 Gen.. Stat. chap. 53, relating to claims 
 against decedents' estates. Id. 
 
 558. A provision in bonds issued by a cor- 
 poration, that no stockholders shall be indi- 
 vidually liable thereon, does not exempt 
 them from the subjection of their contractu- 
 al indebtedness to the company to the pay- 
 ment of creditors holding judgment upon the 
 bonds, but refers to their statutory individ- 
 ual statutory liability. Preston v. Cincin- 
 nati, C. & H. V. R. Co. 36 Fed. .54, 1: 140 
 
 559. One employed by a corporation on a 
 monthly salary, who is part of the time on 
 the road selling goods, making collections, 
 etc., as a drummer, and the rest of the time 
 working in a store, shipping and receiving 
 goods, moving and handling stock, etc., or 
 making sales and collecting bills in the city, 
 is a "clerk," within the meaning of the 
 Tennessee general incorporation act of 1875, 
 11, making stockholders individually lia- 
 ble for moneys due "laborers, servants, 
 clerks, and operatives" in case the corpora- 
 tion becomes insolvent. Cole v. Hand, 88 
 Tenn. 400, 12 S. W. 922, 7: 96 
 
 560. A stockholder of a corporation is lia- 
 ble for interest on obligations which bear 
 interest, under a statute making him liable 
 for his proportion of the debts of the cor- 
 poration. Wells, F. & Co. v. Enright, 127 
 Cal. 669, 60 Pac. 439, 49: 647 
 
 2. Effect of Transfer. 
 
 Of Bank Stock, see Banks, 22, 23. 
 See also supra, 405, 503; infra, 605. 
 
 Liability of transferee. 
 For Editorial Notes, see infra, VHI. 
 38-iO. 
 
 561. A purchaser or assignee of shares of 
 stock in a corporation who takes them with
 
 786 
 
 CORPORATIONS, V. f, 8. 
 
 notice of the facts relative to the mode and 
 manner or purpose of their issue has the 
 same liability as the former owners of the 
 stock. Sprague v. National Bank of Amer- 
 ica, 172 111. 149, 50 N. E. 19, 42: 606 
 
 562. Purchasers of stock with full knowl- 
 edge that it has been paid for only by 
 agreement to transfer a worthless invention 
 are liable for the unpaid subscription. Van 
 Cleve v. Berkey, 143 Mo. 109, 44 S. W. 
 743, 42:593 
 
 563. Both assignor and assignee of cor- 
 porate stock are liable to creditors for the 
 amount remaining unpaid thereon, if the 
 assignee has notice that it was not paid, 
 under 111. Rev. Stat. chap. 32, 8, providing 
 that the assignor shall not be released. 
 Sprague v. National Bank of America, 172 
 [11. 149, 50 N. E. 19, 42: 606 
 
 564. A purchaser or assignee in good faith 
 of stock in a corporation without notice 
 that it has not been fully paid does not be- 
 come liable to the corporate creditors for 
 the unpaid balance, where the stock was 
 issued as fully paid. Id. 
 
 565. By-laws of a corporation which pro- 
 vide in general terms for notice of calls for 
 payments upon subscription liabilities for 
 stock, to successors in interest of original 
 subscribers therefor, include notices to 
 those who may have become possessed, as 
 legatees or next of kin of a deceased sub- 
 scriber, of the benefits of a stock subscrip- 
 tion, where notice to them is necessary to 
 a liability on their part to pay such calls. 
 South Milwaukee Co. v. Murphy, 112 Wis. 
 614, 88 N. W. 583, 58: 82 
 
 566. If property received by a corporation 
 is grossly unequal in value to the par value 
 of the shares given in payment, a subse- 
 quent transferee of the shares, with notice 
 of the circumstances, is liable to the credit- 
 ors of the corporation, to the same extent 
 as the original shareholder. Boulton Carbon 
 Co. v. Mills, 78 Iowa, 460, 43 N. W. 290, 
 
 5: 649 
 
 567. A purchaser, at a sale on execution, 
 of stock in a corporation, which defendant 
 had previously transferred in good faith on 
 the books of the corporation as collateral 
 security, acquires no title by such purchase 
 so as to make him chargeable with liability 
 as a stockholder to the creditors of the cor- 
 poration. Simmons v. Hill, 96 Mo. 679, 10 
 S. W. 61, 2: 476 
 
 568; The transfer, on the books of a cor- 
 poration, of stock by persons holding it as 
 collateral security, to one who had bid off 
 such stock on execution against his debtor, 
 who had pledged it as collateral, does not 
 make him liable as a stockholder, where 
 such transfer is made without his request or 
 knowledge. The fact that he had bid it off 
 on execution does not, by implication, au- 
 thorize such transfer. Id. 
 
 569. Receiving unpaid stock as collateral 
 security for a loan of money to the corpora- 
 tion which issues it does not render the 
 holder liable to creditors of the company 
 as a holder of unpaid stock, unless it may 
 be to creditors specially misled, especially 
 when the statutes forbid the issue of unpaid 
 
 stock and declare that it shall be void. An- 
 drews v. National Foundry & P. Works, 
 22 C. C. A. 110, 46 U. S. App. 281, 76 Fed. 
 166, 36: 139 
 
 Of transferrer. 
 For Editorial Notes, see infra, VIII. 38. 
 
 570. The assignment of stock pending an 
 action against a corporation, to a person 
 who is insolvent at the time when the per- 
 sonal liability of stockholders is to be en- 
 forced, does not relieve the assignor from 
 such liability. Rider v. Fritchey, 49 Ohio 
 St. 285, 30 N. E. 692, 15:513 
 
 571. A corporation which permits the 
 transfer of stock by canceling the certifi- 
 cate and issuing a new one to the pur- 
 chaser, and afterwards brings an action 
 against him "for the unpaid portion of the 
 stock, ratifies the transaction, and cannot 
 subsequently claim that the transfer is in- 
 effectual to release the original shareholder 
 from liability as such, on the ground that it 
 was not made in good faith. Rochester & 
 K. F. Land Co. v. Raymond, 158 N. Y. 576, 
 53 N. E. 507, 47: 246 
 
 572. A holder of stock in a national bank 
 who, without knowledge or suspicion that 
 the bank is either then insolvent or is likely 
 to prove so, sells the stock, and who does 
 everything reasonably possible to procure 
 a transfer of the shares on the books of 
 the bank, cannot be held liable as a stock- 
 holder, although the bank is declared in- 
 solvent before the transfer is effected, and 
 both the bank and the purchaser were in- 
 solvent when the sale was made. Earle v. 
 Carson, 46 C. C. A. 498, 107 Fed. 639. 
 
 60: 266 
 
 3. For Unpaid Stock. 
 a. In General. 
 
 As to Payment for Subscriptions Generally, 
 see supra, V. b, 2. 
 
 Multifariousness of Bill to Enfprce Lia- 
 bility, see Action or Suit, 103. 
 
 Equitable Jurisdiction of Suit for, see 
 Equity, 44, 45, 53. 
 
 Forfeiture of Shares of Joint Stock Com- 
 pany, see Forfeiture, 4. 
 
 Collusiveness of Judgment as to, see Judg- 
 ment, 229. 
 
 Limitation of Action on, see Limitation of 
 Actions, 94-98. 
 
 Joinder of Subscribers, see Parties, 194. 
 
 Amendment of Bill to Reach, see Pleading, 
 125. 
 
 Action by Receiver for, see Receivers, 120. 
 
 See also supra, 547, 563-565; infra, 626, 632, 
 633. 
 
 For Editorial Notes, see infra, VIII. 35, 
 37-39. 
 
 573. The original subscription liability 
 to pay for stock in a corporation cannot be 
 extinguished except by payment thereof or 
 consent of the corporation. South Milwau- 
 kee Co. v. Murphy, 112 Wis. 614, 88 N. W. 
 583, . 58: 82 
 
 574. The doctrine that unpaid subscrip- 
 tions to the capital stock of a corporation 
 
 are a trust fund for creditors has no appli
 
 CORPORATIONS, V. f, 8. 
 
 787 
 
 cation until the corporation becomes in- 
 solvent. Fear v. Bartlett, 81 Md. 435, 32 
 Atl. 322, 33: 721 
 
 575-G. Fraud in the organization of a cor- 
 poration, or in the issuance of its stock, is 
 not a necessary element in establishing 
 the liability of a stockholder to pay the 
 corporation debts to the extent of his un- 
 paid stock subscriptions. Boulton Carbon 
 Co. v. Mills, 78 Iowa, 460, 43 N. W. 290, 
 
 . 5: 649 
 
 577. Creditors of a corporation cannot at- 
 tack payments of overdue stock subscrip- 
 tions because the president of the corpora- 
 tion, in order to secure them, without au- 
 thority, fraudulently repurchased the stock 
 with assets of the corporation. Hall v. 
 Henderson, 134 Ala. 455, 32 So. 840, 
 
 63: 673 
 Jurisdiction of chancery. 
 
 578. Chancery has no original jurisdic- 
 tion, at the suit of a corporation creditor, 
 to coerce the payment by stockholders of 
 their subscriptions to its capital. Hall v. 
 Henderson, 134 Ala. 455, 32 So. 840, 
 
 63: 673 
 
 579. Subscriptions to the stock of a cor- 
 poration do not constitute trust funds for 
 the benefit of its creditors, so as to give 
 chancery jurisdiction of a suit to reach 
 them for the creditors' benefit. Id. 
 For what debts; to what creditors. 
 
 See also supra, 550-560; infra, 602, 616, 617. 
 
 580. A stockholder who becomes such for 
 the mere purpose of enabling the corpora- 
 tion to obtain a certificate of organization, 
 and under an agreement with other sub- 
 scribers that he shall not be required to pay 
 assessments, and shall not be liable on the 
 stock, cannot be assessed thereon except to 
 pay corporate debts. He has no liability as 
 between himself and the other stockholders. 
 Winston v. Brooks, 129 111. 64, 21 N. E. 
 514, 4: 507 
 
 581. The liability of a subscriber to stock 
 in a corporation for any assessment, after 
 the first one, for the purpose of defraying 
 incidental preliminary expenses, does not 
 arise until the corporation is sufficiently or- 
 ganized and qualified to enter upon general 
 business by the subscription of its whole 
 capital stock, or by the amount fixed by 
 statute as sufficient to authorize its entry 
 upon general business. Anvil Min. Co. v. 
 Sherman, 74 Wis. 226, 42 X. W. 226, 4: 232 
 
 582. A creditor whose debt was created 
 before the capitalization of the company 
 or any subscriptions to its stock, as well as 
 subsequent creditors, can enforce the lia- 
 bility of the stockholders for unpaid sub- 
 scriptions. Shields v. Clifton Hill Land Co. 
 94 Tenn. 123, 28 S. W. 668, 26: 509 
 
 583. Where stock is issued as fully paid 
 up without having been paid for to the full 
 amount, shareholders are liable for the 
 amount not actually paid, in favor of cred- 
 itors giving credit in reliance upon its pro- 
 fessed capital having been fully paid in, but 
 not to creditors who dealt with full knowl- 
 edge that the stock was fictitiously issued 
 as paid up. First Nat. Bank v. Gustin- 
 
 Minerva Consol. Min. Co. 42 Minn. 327, 44 
 N. W. 198, G: 676 
 
 584. Where a corporation issues new 
 shares after the claim of a creditor has 
 arisen, the latter, not having dealt with the 
 company on the faith of any capital repre- 
 sented by such shares, cannot insist on 
 contribution, by the holders, of a greater 
 amount of capital than the corporation 
 itself could claim from them as part of its 
 assets. Id. 
 
 585. Liability for negligent injury to an 
 employee is placed upon stockholders of a 
 corporation who have not paid for their 
 stock, by a statute making them liable for 
 all acts of, and contracts made by, it. 
 Kelly v. Fourth of July Min. Co. 21 Mont. 
 291, 53 Pac. 959, 42: 621 
 Calls. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 
 186, 187. 
 
 See also infra, 590-593. 
 For Editorial Notes, see infra, VIII. 36. 
 
 586. A call on stockholders, stating that 
 they may pay in cash or "by a promise to 
 pay in the form of a land contract or con- 
 tracts," without showing who may exer- 
 cise the option, or prescribing any condi- 
 tions or terms to govern in settlement of 
 the balance due the corporation, is void .for 
 indefiniteness. North Milwaukee Town-Site 
 Co. v. Bishop, 103 Wis. 492, 79 N. W. 785, 
 
 45: 174 
 
 587. A corporation whose articles of asso- 
 ciation provide that the holders of shares 
 for the time being, whatever the number 
 issued or subscribed for, shall form the com- 
 pany, may make calls upon its stock, al- 
 though the entire amount of stock has not 
 been subscribed for or the shares allotted. 
 Mandel v. Swan Land & C. Co. 154 111. 
 177, 40 N. E. 462, 27: 313 
 
 588. A by-law prescribing notice of a call 
 for an instalment on a stock subscription is 
 a condition precedent to a valid call, under 
 Wis. Rev. Stat. 1754, providing for calls 
 on "giving such notice thereof as the by- 
 laws shall prescribe." Germania Iron Min. 
 Co. v. King, 94 Wis. 439, 69 N. W. 181, 
 
 36: 51 
 
 589. When a stockholder's subscription to 
 the capital stocs of a corporation provides 
 that payments on such subscription shall be 
 made in instalments of a certain per cent 
 as called for by the board of directors, pro- 
 vided thirty days intervene between calls, 
 it is competent for the legislature to devest 
 the board of directors of its discretion to 
 postpone calls beyond periods of thirty 
 days each, and to fix absolutely, within the 
 limits of the contract, the time and amount 
 of such payments. West v. Topeka Sav. 
 Bank, 66 Kan. 524, 72 Pac. 252, 63: 137 
 Liability after forfeiture of stock. 
 
 590. A positive statutory provision that a 
 corporation may not only forfeit stock for 
 nonpayment of calls, but collect all calls 
 made prior to the forfeiture, will control 
 any principle adopted as a mere equitable 
 rule. Mandel v. Swan Land & C. Co. 154 
 111. 177, 40 N. E. 462, 27: 313 
 
 591. The general rule in the United States
 
 788 
 
 CORPORATIONS, V. f, 8. 
 
 is that, while a corporation having the right 
 under the statute creating it to declare a 
 forfeiture of shares for nonpayment of calls 
 may exercise an option to forfeit the stock 
 or sue for the amount of the calls, it cannot 
 forfeit the stock and afterwards sue at law 
 for such amount. Id. 
 
 592. A right of recovery by a foreign cor- 
 poration, of calls made upon stock which 
 has been forfeited for nonpayment of such 
 calls, being in conflict with the current of 
 legislation in this country, cannot depend 
 on a by-law merely, but must exist in the 
 act under which the company is incor- 
 porated. Id. 
 
 593. A statute authorizing recovery after 
 forfeiture of corporate stock, of all calte 
 owing upon it at the time of forfeiture, does 
 not authorize recovery of interest and ex- 
 penses thereafter accruing. Id. 
 On organization of new company. 
 
 See also infra, 622-624. 
 
 594. The "business or property" of a cor- 
 poration in process of dissolution, which a 
 new corporation may be organized to pur- 
 chase under 161 of the English companies 
 act, does not include the amounts due on 
 unpaid stock subscriptions of dissentient 
 stockholders. Bank of China, Japan, and 
 the Straits v. Morse, 168 N. Y. 458, 61 
 N. E. 774, 56: 139 
 
 595. Mere purchase of shares in a corpora- 
 tion does not imply assent to a scheme for 
 winding up by which the unpaid subscrip- 
 tions can be called in, in excess of corporate 
 liabilities, and the excess turned over to a 
 new corporation organized to take over the 
 property of the old corporation. Id. 
 
 oDG. Failure of a stockholder to oppose 
 a scheme for winding up the corporation 
 and turning its assets over to a new one 
 will not preclude his resisting an unjust 
 assessment upon his stock in furtherance of 
 the scheme, when he knew nothing of the 
 proceeding, or that it was before the court, 
 until long after the assessment was made. 
 
 Id. 
 
 597. In winding up a corporation and or- 
 ganizing a new one to take its property 
 under 161 of the English companies act, 
 stockholders who refuse to go into the new 
 corporation cannot be compelled to pay their 
 unpaid subscriptions in full, while the ob- 
 ligation is canceled in favor of those going 
 in. Id. 
 
 598. Upon winding up a corporation under 
 161 of the English companies act, and or- 
 ganizing a new one to take over its prop- 
 erty, dissenting stockholders cannot be com- 
 pelled to pay in full their unpaid stock sub- 
 scriptions if such payment is not necessary 
 to pay the debts and liabilities of the old 
 company, and if the balance is to be turned 
 over to the new one. Id. 
 
 599. An assessment under an English 
 statute, approved by English courts in a 
 proceeding for winding up a corporation, to 
 which a foreign stockholder has not as- 
 sented, will not be enforced against him 
 personally by the courts of his domicil, 
 where it operates prejudicially to him and 
 
 favorably to* other stockholders, and where 
 he neither appeared nor was personally 
 served with process in the winding-up pro- 
 ceeding. Id. 
 Fraud as defense. 
 
 Sufficiency of Proof of Fraud, see Evidence, 
 2230. 
 
 600. Fraud of promoters in procuring a 
 subscription to stock of a corporation before 
 its organization is not a defense against an 
 assessment on the stock by the corporation 
 after the subscriber has carried out his con- 
 tract and united with others in forming the 
 corporation, but his remedy is restricted to 
 an action against the wrongdoers. St. Johns 
 Mfg. Co. v. Munger, 106 Mich. 90, 64 N. 
 W. 3, 29: 63 
 
 601. Creditors of an insolvent corporation 
 cannot enforce payment of a stock subscrip- 
 tion from one who was induced by fraud to 
 make it, and who, without laches in discov- 
 ering the fraud and within a reasonable 
 time after such discovery, repudiated his 
 subscription contract before the corporation 
 became insolvent. Fear v. Bartlett, 81 Md. 
 435, 32 Atl. 322, 33: 721 
 Illegality as defense. 
 
 See also supra, 537. 
 
 602. Stockholders cannot set up the il- 
 legality of the scheme of the corporation, 
 which did not appear on the face of the 
 contract of subscription or the prospectus 
 therein referred to, in order to escape lia- 
 bility to creditors whose debts have been 
 contracted upon the faith of the subscrip- 
 tions to the stock. Cardwell v. Kelly, 95 
 Va. 570, 28 S. E. 953, 40: 240 
 
 603. In a suit brought in New York by 
 the liquidator of an English corporation 
 against a New York stockholder to enforce 
 an assessment upon his stock, defendant 
 may set up the illegality of the cajl, or the 
 absence of authority to make it, although 
 a different method of attacking the assess- 
 ment might be necessary were the suit 
 brought in England. Bank of China, Japan, 
 and the Straits v. Morse, 168 N. Y. 458, 61 
 N. E. 774, 56: 139 
 Nonpayment of tax as defense. 
 
 604. The failure of a corporation to pay a 
 tax required on the increase of its capital 
 stock cannot be set up by a subscriber to 
 such stock as a defense against his liability, 
 when he has become president of the cor- 
 poration by virtue of that stock alone. 
 Peck v. Elliott, 24 C. C. A. 425, 47 U. S. 
 App. 605, 79 Fed. 10, 38: 616 
 Other defenses. 
 
 605. Liability for an unpaid stock sub- 
 scription cannot be defeated by showing an 
 attempt to transfer the stock, unless it is 
 also shown that it is with the knowledge 
 and consent of the transferee. Vermont 
 Marble Co. v. Declez Granite Co. 135 Cal. 
 579, 67 Pac. 1057, 56: 728 
 
 606. A creditor's knowledge or want of 
 knowledge of the fact that the stock of a 
 corporation was in part unpaid when he 
 extended credit to the company does not 
 affect the statutory liability of the stock- 
 holder to creditors for the amount unpaid
 
 CORPORATIONS, V. f, 8. 
 
 789 
 
 Upon his stock. Sprague v. National Bank 
 of America, 172 111. 149, 50 N. E. 19, 
 
 42: 606 
 
 Z>. Stock Paid for in Property. 
 
 Issue of Stock in Payment for Property 
 
 Purchased, see supra, 390, 391. 
 See also supra, 5G2, 566. 
 For Editorial Notes, see infra, VIII. 40. 
 
 607. Property accepted in payment of 
 stocK must be a fair, just, lawful, and need- 
 ed equivalent for the ' money subscribed. 
 Van Cleve v. Berkey, 143 Mo. 109, 44 S. W. 
 743, 42: 593 
 
 608. "The amount of the yalue" of the 
 property for which stock of a corporation 
 is issued, within the meaning, of Mont. 
 Comp. Stat. 458, div. 5, allowing stock to 
 be issued for property to the amount of the 
 value thereof, means the actual or the fair- 
 ly estimated value of the property ex- 
 changed for the shares. Kelly v. Fourth of 
 July Min. Co. 21 Mont. 291, 53 Pac. 959, 
 
 42: 621 
 
 609. An owner of stock in a corporation, 
 issued in consideration of a transfer of 
 property, the valuation of which was wholly 
 speculative, visionary, and imaginary, is lia- 
 ble to creditors of the corporation for the 
 difference between the value of his stock 
 and the real value of the property. State 
 Trust Co. v. Turner, 111 Iowa, 664, 82 N. 
 W. 1029, 53: 136 
 
 610. A stockholder of a corporation who 
 was one of the corporators, and knew that 
 all the property was taken at a gross over- 
 valuation, and who never paid for any of 
 his stock, except by a sale of property to 
 the company, receiving therefor shares at 
 less than a third of their par value, and by 
 giving his services as president, is liable to 
 creditors for the difference between the par 
 value of the stock and what he actually 
 paid for it. Boulton Carbon Co. v. Mills, 
 78 Iowa, 460, 43 N. W. 290, 5: 649 
 
 611. Promoters of a corporation to whom 
 stock and mortgage bonds are issued nomi- 
 nally in payment for property transferred 
 to the corporation, which was in- fact 
 bought of a third person, will not be per- 
 mitted to jeopardize such third person's col- 
 lection of the purchase money by enforcing 
 their mortgage without paying for their 
 stock. Hooper v. Central Trust Co. 81 Md. 
 559, 32 Atl. 505, 29: 262 
 
 612. Payment of a stock subscription 
 amounting to $250,000, by a bond for title 
 to land on which only $5,000 had been paid, 
 and which was worth no more than the 
 price at which it was bought, leaves the 
 subscribers liable to creditors for the dif- 
 ference between the actual value of the land 
 and the amount of the subscription, where 
 the state Constitution prohibits the issue 
 of stock except for money or property actu- 
 ally received, and statutes require payments 
 by property to be at its money value. 
 Elyton Land Co. v. Birmingham Warehouse 
 & E. Co. 92 Ala. 407, 9 So. 1*9, 12: 307 
 
 613. Fraud is a necessary legal inference 
 from a gross and obvious overvaluation of 
 
 property taken in payment for stock of a 
 corporation, to which is superadded the ele- 
 ment of deliberation in having grossly 
 overvalued the property, and knowledge in 
 having done so. Kelly v. Fourth of July 
 Min. Co. 21 Mont. 291, 53 Pac. 959, 42: 621 
 
 614. Mining corporations are not exempt 
 from the principles applicable to other cor- 
 porations respecting the issue of stock in 
 exchange for property. Id. 
 
 615. A transfer of a patent right to a cor- 
 poration in partial payment of a subscrip- 
 tion to stock as a mere device for evading a 
 condition that the stock must be taken at 
 par, followed by a retransfer to the sub- 
 scriber at a nominal consideration, is insuf- 
 ficient to relieve him from liability to pay 
 for the stock at its par value. Peck v. 
 Elliott, 24 C. C. A. 425, 47 U. S. App. 605, 79 
 Fed. 10, 38: 616 
 For what debts liable; to what creditors. 
 For Editorial Notes, see infra, VIII. 40. 
 
 616. A creditor of a corporation who be- 
 comes such with full knowledge as to the 
 payment for stock by property at an ex- 
 cessive valuation cannot claim that the 
 holders of such stock are liable as stock- 
 holders for the difference between the ac- 
 tual value of the property and the par value 
 of the stock which was issued for it.. State 
 Trust Co. v. Turner, 111 Iowa, 664, 82 
 N. W. 1029, 53: 136 
 
 617. An assignee of overdue notes of a 
 corporation cannot hold a stockholder who 
 paid for his stock only by a transfer of 
 property at a grossly excessive valuation 
 liable for the deficiency in payment, where 
 his assignor could not have done so because 
 he became a creditor of the company with 
 full knowledge of all the facts relating to 
 the issuance of and payment for the stock. 
 
 Id. 
 Good faith as a defense. 
 
 618. The belief of a stockholder that prop- 
 erty transferred to pay for stock was equal 
 in value to the par value of the stock will 
 not relieve him from liability on his sub- 
 scription, as against those who, have given, 
 credit to the company on the faith of its 
 capital stock, if the property is not, in 
 point of fact, of such value. Van Cleve v. 
 Berkey, 143 Mo. 109, 44 S. W. 743, 42: 593 
 
 619. Good faith in the valuation put upon 
 property for which stock of a corporation is 
 issued is demanded, and all that is de- 
 manded, by the law which provides that 
 stock may be issued for property to the 
 amount of the value thereof. Kelly v. 
 Fourth of July Min. Co. 21 Mont. 291, 53 
 Pac. 959, 42: 621 
 
 620. The belief that a prudent and sensi- 
 ble business man would hold in the ordinary 
 conduct of his own business affairs is what 
 constitutes good faith in the valuation of 
 property for which stock of a corporation 
 is issued. Id. 
 Failure to sign subscription list as defense. 
 
 621. Failure to sign a formal stock sub- 
 scription list cannot release the holder of 
 stock which was issued in exchange for 
 property from liability as the holder of un- 
 paid stock, when the stock was issued to
 
 790 
 
 CORPORATIONS, V. f, 4. 
 
 him with his knowledge of the fact that the 
 property was not worth what it was esti- 
 mated to be in the exchange. Kelly v. 
 Fourth of July Min. Co. 21 Mont. 291, 53 
 Pac. 959, 42: 621 
 
 Transfer of assets to new corporation. 
 
 622. A transfer of all the assets of a cor- 
 poration to a new company in consideration 
 of its assuming the indebtedness of the old 
 one and exchanging its stock, share for 
 share, for that of the old company, thereby 
 giving each shareholder the same relation 
 to the property that he previously sustained, 
 does not constitute a contract of bargain 
 and sale of the assets, or establish that their 
 value is sufficient to pay for the new stock 
 in full. Sprague v. National Bank of 
 America, 172 111. 149, 50 N. E. 19, 42: 606 
 
 623. A liability to creditors of an old cor- 
 poration for unpaid stock of. a new com- 
 pany is within the liability of the holders 
 of unpaid stock for debts of the company, 
 imposed by 111. Rev. Stat. chap. 32, 8, 
 where the new company has taken the as- 
 sets and assumed the debts of the old one 
 and was organized to evade the stringent 
 liability of the stockholders in the old com- 
 pany under the laws of another state. Id. 
 
 624. Stock of a new company issued in 
 exchange, share for share, for that of a 
 company existing under the laws of an- 
 
 . other state, without any payment therefor 
 except the transfer of the old company's 
 stock and assets, when this is done to evade 
 the stringent liability of stockholders under 
 the laws governing the original company, 
 will be deemed paid as against the creditors 
 of the old company only to the extent that 
 the actual value of the property actually 
 received from the old company exceeded the 
 sum of its indebtedness. Id. 
 
 4. Proceedings to Enforce. 
 
 Multifariousness of Bill against Stock- 
 holders, see Action or Suit, 103. 
 
 Successive Actions against Stockholder, see 
 Action or Suit, 78, 79. 
 
 Right to Appeal, see Appeal and Error, 102. 
 
 Judgment Fixing Amount of Contribution as 
 Provable Claim, see Bankruptcy, 37. 
 
 Receiver's Right to Prove Claim against 
 Bankrupt Stockholder's Estate, 'see 
 Bankruptcy, 29. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 169, 190-198, 346-353. 
 
 Jurisdiction of Action, see Courts, 39. 
 
 Conflict of Jurisdiction, see Courts, 428. 
 
 Equity Jurisdiction, see Equity, 44, 45, 53. 
 
 By Garnishment, see Garnishment, 3, 102. 
 
 Limitation of Action, see Limitation of 
 Actions, 55, 193. 
 
 Interruption of Running of Limitations as 
 to, see Limitation of Actions, 229. 
 
 Enforcing by Cross Bill, see Pleading, 546. 
 
 Venue of Action, see Venue, 4. 
 
 See also supra, 578, 579. 
 
 For Editorial Notes, see infra, VIII. 42, 
 43. 
 
 625. Equity may afford a remedy against 
 stockholders to enforce a statutory liability 
 
 when the statute prescribes no remedy or 
 form of redress. Kelly v. Fourth of Julv 
 Min. 21 Mont. 291, 53 Pac. 959, 42:621 
 
 626. A proceeding under the statute for an 
 execution for unpJaid subscriptions to cor 
 poratc stock cannot be maintained after 
 the appointment of a receiver for the pur 
 pose of collecting the assets of the corpora- 
 tion. Rouse, H. & Co. v. Detroit Cycle Co. 
 Ill Mich. 251, 69 N. W. 511, 38: 794 
 By receiver or assignee. 
 
 By Assignee for Creditors in Other State. 
 
 see Assignments for Creditors, 26. 
 Of Insolvent Bank, see Banks, 24, 25. 
 Federal Jurisdiction in Case of, see Courts. 
 
 369, 370. 
 
 As Assets of Receiver, see Evidence, 187. 
 See also infra, 638, 740; Receivers, 119, 120, 
 
 128, 141, 143, 145, 147. 
 
 627. A receiver had no authority to bring 
 an action against a stockholder for a debt of 
 the corporation, under N, Y. Laws 1892, 
 chap. 688, 55, although such right of ac- 
 tion is given him by an amendment of that 
 statute in 1897. Hirshfeld v. Fitzgerald, 
 157 N. Y. 166, 51 N. E. 997, 46: 839 
 
 628. Receivers cannot maintain an action 
 to enforce the liability of stockholders in a 
 bank for its debts, under Md. Acts 1888, 
 chap. 294, for the amount of their respective 
 shares of stock, since the fund arising from 
 such liability is in no sense an asset of the 
 corporation, and the receivers have no in- 
 terest in it. Colton v. Mayer, 90 Md. 711. 
 45 Atl. 874, 47: 617 
 
 629. A receiver appointed in an action for 
 the sequestration of the assets of an insol- 
 vent corporation, under the provisions of 
 Minn. Gen. Stat. 1894, chap. 76, has no au- 
 thority, except in cases where it is other- 
 wise provided by statute, to enforce the in- 
 dividual liability of the stockholders for 
 the debts of the corporation. Minneapolis 
 Baseball Co. v. City Bank, 66 Minn. 441. 
 69 N. W. 331, 38:41.3 
 
 630. A stockholder's liability, which is 
 contractual under the statute, becomes a 
 part of the assets which pass to a receiver 
 for the payment of corporate debts. Gush- 
 ing v. Perot, 175 Pa. 66, 34 Atl. 447, 
 
 34: 737 
 
 631. An assignee of a corporation who has 
 not resigned his trust, where there are cred- 
 itors whose claims he must provide for, is 
 not prevented from bringing suit to enforce 
 the liability of a stockholder by the fact 
 that he has suffered the stockholders to re- 
 sume business with the machinery assigned 
 to him, taking a bond for its protection. 
 Cartwright v. Dickinson, 88 Tenn. 476, 12 
 S. W. 1030, 7: 706 
 By creditor. 
 
 Impairment of Obligation of Contract as to, 
 see Constitutional Law, 1142. 
 
 See also infra, 760. 
 
 For Editorial Notes, see infra, VIII. 42, 
 43. 
 
 632. The right of action in favor of cred- 
 itors of a corporation against the holders 
 of bonus stock does not accrue until the 
 corporation becomes insolvent. Hospes v.
 
 CORPORATIONS, V. g, 1. 
 
 791 
 
 Northwestern Mfg. & C. Co. 48 Minn. 174, 
 50 N. W. 1117, 15: 470 
 
 633. The right of creditors to compel the 
 holders of "bonus" stock to pay for it con : 
 trary to their actual agreement with the 
 corporation does not rest on any implied 
 contract or upon any "trust fund" doctrine, 
 but upon the ground of fraud in the mis- 
 representation as to the actual amount of 
 capital, upon the faith of which persons 
 have dealt with the corporation and given it 
 credit. Id. 
 
 634. The appointment of a receiver for a 
 Kansas corporation does not preclude an 
 action by a creditor of the corporation to 
 enforce the additional or double liability of 
 a stockholder. Fidelity Ins. T. & S. D. Co. 
 v. Mechanics' Sav. Bank, 38 G, C. A. 193, 
 97 Fed. 297, 56: 228 
 
 635. The fact that creditors of a corpora- 
 tion are also directors of the company does 
 not preclude them from enforcing the con- 
 stitutional liability of the stockholders for 
 the payment of their debts, although they 
 will be held to strict proof of the debts 
 and of their own good faith in the premises. 
 Janney v. Minneapolis Industrial Exposi- 
 tion, 79 Minn. 488, 82 N. W. 984, 50: 273 
 
 638. The right of a creditor of a orpora- 
 tion to proceed individually against stock- 
 holders is merged in a decree obtained by 
 such creditor in another state, in a court of 
 competent jurisdiction, directing the col- 
 lection of such claims by a receiver. Cas- 
 tleman v. Templeman, 87 Md. 546, 40 Atl. 
 275, 41 : 367 
 
 637. A creditor who brings an action 
 against a stockholder of a bank under New 
 York banking law 1892, 52, although he 
 brings it on behalf of himself and all other 
 creditors similarly situated who may choose 
 to come in, is not a trustee for other credit- 
 ors, to such extent, at least, as to require 
 him to carry on the litigation for their in- 
 terest in opposition to his own or after he 
 has settled his claim. Hirshfeld v. Fitz- 
 gerald, 157 N. Y. 166, 51 N. E. 997, 46: 839 
 Conditions precedent. 
 
 638. The recovery of judgment against a 
 corporation, and the return of execution 
 unsatisfied, as a condition of the mainte- 
 nance of an action against a stockholder in 
 a domestic corporation, are not necessary 
 before suit by a receiver against a stock- 
 holder of a foreign corporation, which is per- 
 mitted in the exercise of comity, aince in 
 such case service of process in the state 
 could not be had against the corporation. 
 Howarth v. Angle, 162 N. Y. 179, 56 N. E. 
 489, ' 47:725 
 
 639. A creditor's cause of action against a 
 stockholder does not accrue until judgment 
 against the corporation and the exhausting 
 of the remedy by execution, under the Ne- 
 braska Constitution providing for liability 
 of the stockholder in certain cases, for cor- 
 porate debts which have been first ascer- 
 tained and after the corporate property has 
 been exhausted. Globe Pub. Co. v. State 
 Bank, 41 Neb. 175, 59 N. W. 683. 27: 854 
 
 g. Stockholders' Meetings; Voting. 
 1. In General. 
 
 Meetings of Corporate Officers, see supra, 
 
 IV. g, 1. 
 Record of Funds as Evidence, see Evidence, 
 
 958. 
 Mandamus to Compel Calling of Meeting, 
 
 see Mandamus, 87, 88. 
 See also supra, 182. 
 For Editorial Notes, see infra, VIII. 44. 
 
 640. Corporate stockholders may, at a 
 duly convened meeting of the stockholders, 
 lawfully enter into or authorize a contract 
 between the company and a third party, in 
 which directors are personally interested, 
 if it is done by them with notice of such 
 interest. Hodge v. United States Steel 
 Corp. (N. J. Err. & App.) 64 N. J. Eq. 807, 
 
 54 Atl. 1, 60: 742 
 Control of court. 
 
 See also supra, 215. 
 
 641. The election of directors of a cor- 
 poration may be supervised and controlled 
 by a court of equity and a master appointed 
 to preside, whenever it is made to appear 
 that, by means of fraud, violence, or other 
 unlawful conduct on the part of a portion 
 of the corporators, a fair and honest elec- 
 tion cannot otherwise be held. Tunis v. 
 Hestonville, M. & F. Pass. R. Co. 149 Pa. 70, 
 24 Atl. 88, 15: 665 
 Place of meeting. 
 
 Outside of State, see Benevolent Societies, 1. 
 
 642. A corporation receiving its charter 
 from one state cannot hold corporate meet- 
 ings in another for the purpose of organiz- 
 ing, electing officers, or performing any 
 strictly corporate functions In its organiza- 
 tion. " Duke v. Taylor, 37 Fla. 64, 19 
 So. 172, 31: 484 
 Notice. 
 
 643. The failure to give notice of a meet- 
 ing at which corporate bonds and mortgage 
 are authorized is immaterial, when all per- 
 sons having any beneficial interest in the 
 corporation as stockholders have ratified the 
 action, with full knowledge of the facts. 
 Nelson v. Hubbard, 96 Ala. 238, 11 So. 428, 
 
 17: 375 
 
 644. Previous notice must be given to 
 render valid a change, at a regular annual 
 corporate meeting, in the by-laws of a cor- 
 poration, increasing the number of direct- 
 ors. Bagley v. Reno Oil Co. 201 Pa. 78, 50 
 Atl. 760, 56: 184 
 
 645. Sufficient notice to stockholders of 
 regular meetings is given by a charter or 
 by-laws which fix the time and place. Mor- 
 rill v. Little Falls Mfg. Co. 53 Minn. 371, 
 
 55 N. W. 547, 21 : 174 
 
 646. A meeting of the stockholders, called 
 for the issue of preferred stock, is properly 
 called under the provisions of M<1. Code, 
 art. 23, 76, providing for meetings to in- 
 crease or diminish the capital stock, to be 
 called by directors, on four weeks' published 
 notice, and is not within 6 of the same 
 article, which applies to meetings generally. 
 Heller v. National Marine Bank, 89 Md. 
 602, 43 Atl. 800, 45: 438
 
 793 
 
 CORPORATIONS, V. g, *. ' 
 
 Quorum. 
 
 For Editorial Notes, see infra, VTTI. 45. 
 
 647. Such of the stockholders as actual- 
 ly assemble at a properly convened meeting, 
 although a minority of the whole number 
 and representing only a minority of the 
 stock, even if but one is present, constitute 
 a quorum for the transaction of business, 
 unless otherwise provided in the charter or 
 by-laws. Morrill v. Little Falls Mfg. Co. 
 53 Minn. 371, 55 N. W. 547, 21: 174 
 Organizing other meeting. 
 
 648. The denial of his right to vote will 
 not justify one who has a majority of the 
 stock of a corporation in withdrawing from 
 a meeting and organizing another meeting 
 and voting there; but his vote at the orig- 
 inal meeting would have been effective not- 
 withstanding the rejection. Re Argus 
 Printing Co. 1 N. D. 434, 48 N. W. 347, 
 
 12: 781 
 
 649. Holders of a majority of the stock 
 of a corporation, after acquiescing in the 
 organization of a meeting and participating 
 in its business, cannot withdraw and or- 
 ganize another meeting at the same time 
 and place. Id. 
 
 2. Voting. 
 a. In General. 
 
 Evidence as to, to Show Gift of Stock, see 
 
 Evidence, 2149. 
 See also supra, 648. 
 
 650. When the methods of voting are not 
 fixed by general law, corporations may make 
 a law for themselves, subject to the quali- 
 fication that such laws and regulations as 
 they make shall not conflict with the laws 
 of the United States. Detwiller v. Com. 
 ex rel. Dickinson, 131 Pa. 614, 18 Atl. 990, 
 
 7: 357 
 
 651. A regulation of a corporation, that 
 stockholders shall have one vote for each 
 share held by them up to ten shares, and 
 fixing the proportion which his votes shall 
 bear to his shares above that number, is a 
 reasonable regulation, uniform in its opera- 
 tion, conflicts with no law, and is binding 
 on all the shareholders. Id. 
 
 652. Stock held by executors eannot be 
 voted when they disagree as to the way in 
 which the vote shall be cast. Tunis v. 
 Hestonville, M. & F. Pass. R. Co. 149 Pa. 
 70, 24 Atl. 88, 15: 665 
 
 653. A vote by all the stockholders of a 
 corporation at a time when none but pro- 
 moters or their nominees are stockholders, 
 authorizing the issuance of paid-up stock 
 to the promoters for their services, is not 
 sufficient to validate such issuance. Hay- 
 ward v. Leeson, 176 Mass. 310, 57 N. E. 656, 
 
 49: 725 
 Majority vote. 
 
 654. A vote of stockholders representing 
 a majority of the subscribed capital stock 
 is necessary to the choice of a director. Re 
 Arijus Printing Co. 1 N. D. 434, 48 N. W. 
 347, 12: 781 
 
 655. All the stockholders of a corporation 
 are bound by all acts and proceedings within 
 the scope and authority conferred by the 
 charter, which are approved or sanctioned 
 by the vote of a majority of the stockhold- 
 ers duly taken and ascertained according 
 to law, where the by-laws of the corpora- 
 tion, adopted by the stockholders in pursu- 
 ance of authority given by the act of in- 
 corporation, provide that a majority vote 
 at a stockholder's meeting shall be binding 
 on the corporation. Hodge v. United States 
 Steel Corp. (N. J. Err. & App.) 64 N. J. 
 Eq. 807, 54 Atl. 1, 60: 742 
 Trust or pooling agreement as to. 
 Injunction against, see Injunction, 225. 
 Specific Enforcement of Contract as to, see 
 
 Specific Performance, 8, 22, 71. 
 See also infra, 670. 
 
 656. A contract to allow another to con- 
 trol the voting of stock, based upon a prom- 
 ise of the latter to secure an office in the 
 corporation for the owner of the stock, is 
 illegal; and such illegal promise, although 
 only a part of the consideration of the con- 
 tract, renders the whole- contract void. Gage 
 v. Fisher, 5 N. D. 297, 65 N. W. 809, 31 : 557 
 
 657. A voting trust under which a ma- 
 jority of the shares of stock of a railroad 
 compaay are held in one block, to be voted 
 in the interest of another corporation which 
 has control of competing lines of railroad, 
 is illegal at common law as well as under 
 Ga. Const. 5, If 4, which prohibits agree- 
 ments to defeat or lessen competition be- 
 tween corporations; and an injunction may 
 be granted against the voting of such stock 
 while thus held. Clarke v. Central R. & 
 Bkg. Co. 50 Fed. 338, 15: 683 
 
 658. A pooling arrangement by which 
 stockholders transfer their shares to trus- 
 tees to be voted as directed by holders of 
 the majority thereof for the period of five 
 years, unless the holders of two thirds of 
 such stock vote to put an end to the trust 
 sooner, is contrary to public policy and void 
 as against the right of an assignee of some 
 of the trustees' certificates to have the 
 shares thereby represented issued to him in 
 his own name and under his own control. 
 Harvey v. Linville Improv. Co. 118 N. C. 
 693, 24 S. E. 489, 32: 265 
 
 659. Owners of the majority of stock in 
 a corporation may lawfully agree to be 
 bound by the will of the majority of them- 
 selves in voting the stock. Smith v. San 
 Francisco & N. P. R. Co. 115 Cal. 584, 47 
 Pac. 583, 35: 309 
 
 660. A separation of the voting power of 
 stock in a corporation from its ownership 
 is not illegal or against public policy. Id 
 
 661. An agreement to retain the power of 
 voting stock for five years, so as to keep 
 the control of the corporation from passing 
 to other persons, made by persons who 
 united in purchasing a block of stock, is not 
 illegal as in restraint of trade. Id. 
 
 662. An owner of stock cannot revoke an 
 agreement made with other persons aa a 
 condition of their joining to purchase a ma- 
 jority of the stock of a corporation, al- 
 though they take certificates in their in-
 
 CORPORATIONS, V. g, t. 
 
 798 
 
 dividual names, to the effect that the stock 
 shall be voted as a unit for five years as a 
 majority of them shall determine by bal- 
 lot. Id. 
 Proxies. 
 
 See also infra, 673, 674. 
 For Editorial Notes, see infra, VIII. 46. 
 
 663. A regulation of a corporation that 
 votes may be cast by proxy is a reasonable 
 regulation, uniform in its application, works 
 no wrong to any shareholder, and conflicts 
 with no law of Pennsylvania. Detwiller v. 
 Com. ex rel. Dickinson, 131 Pa. 614, 18 Atl. 
 990, 7: 357 
 
 664. A proxy for voting stock of a cor- 
 poration, made by the holder of the stock 
 while enjoined from voting it directly on 
 the ground of public policy, cannot carry 
 the right to vote it. Clarke v. 'Central R. 
 & Bkg. Co. 50 Fed. 338, 15: 683 
 
 665. A by-law providing that no proxy 
 should be voted by anyone who is not a 
 stockholder of the corporation is invalid 
 under Cal. Oiv. Code, 312, providing gen- 
 erally that stockholders may be represented 
 by proxies. People's Home Sav. Bank v. 
 San Francisco Super. Ct. 104 Cal. 649, 38 
 Pac. 452, 29: 844 
 
 666. A proxy authorizing the voting of a 
 block of stock in accordance with the deter- 
 mination of a majority of those who own it 
 is made by an agreement into which they 
 enter as one of the conditions of their unit- 
 ing to purchase the stock, that they will 
 vote it as a unit for five years in accord- 
 ance" with the decision of a majority to be 
 determined by ballot. Smith v. San Fran- 
 cisco & N. P. R. Co. 115 Cal. 584, 47 Pac. 
 583, 35: 309 
 
 6. Who Entitled to Vote. 
 
 See also supra, 218-220, 403, 457, 505. 
 For Editorial Notes, see infra, VIII. 31, 
 44. 
 
 667. Fraudulent representations made by 
 a stockholder in a corporation as to its 
 future action, by which a person is in- 
 duced to subscribe to its stock, cannot give 
 such person a right to control that stock- 
 holder's vote, for the purpose of determin- 
 ing the future action of the company. Con- 
 verse v. Hood, 149 Mass. 471, 21 N. E. 878, 
 
 4: 521 
 Stockholder personally interested. 
 
 668. At a meeting of the shareholders of 
 a corporation, each shareholder represents 
 himself and his own interests solely, and in 
 no sense acts as a trustee or representative 
 of others. Hence he has a legal right to 
 vote upon a measure, even though he has a 
 personal interest therein separate from other 
 shareholders. Gamble v. Queens County 
 Water Co. 123 N. Y. 91, 25 N. E. 201, 
 
 9: 527 
 
 669. Stockholders in a corporation are 
 under no disability to vote on the ques- 
 tion of entering into a contract with direct- 
 ors of the corporation because they are also 
 directors, as they do not vote in their fiduci- 
 ary capacity, but, like other stockholders, 
 in the right of the shares of stock held by 
 
 them. Hodge v. United States Steel Corp. 
 (N. J. Err. & App.) 64 N. J. Eq. 807, 54 
 Atl. 1, 60: 742 
 
 Trust. 
 
 670. A trust company which is simply a 
 stakeholder of corporate stock pledged as 
 collateral for bonds of another corporation 
 is not a proper party to vote the stock, 
 where it is also a trustee of indebtedness 
 of the corporation and an agent for its 
 creditors. Clarke v. Central R. & Bkg. Co. 
 50 Fed. 338, 15: 683 
 Rival company. 
 
 671. A railroad company which has ac- 
 quired a majority of the stock of another 
 railroad company will not be allowed, in the 
 absence of express statutory authority, to 
 vote such stock, either by itself or by other 
 persons acting in its interest, in the election 
 of officers or in matters pertaining to the 
 management and control of the latter com- 
 pany; at least where the two roads are 
 rivals having substantially the same field 
 of operation, where a conflict of interest 
 may arise in tue matter of expenditure, or 
 in the division of patronage or of earnings, 
 or where the profits of one company may 
 be enhanced by a diminution of those of 
 the other. Memphis & C. R. Co. v. Woods, 
 88 Ala. 630, 7 So. 108, 7: 605 
 
 672. A limitation as to the number of 
 votes which a single stockholder of a cor- 
 poration is entitled to cast in the direction 
 of its affairs cannot be evaded by another 
 corporation holding stock in the former by 
 the gratuitous transfer of blocks of stock to 
 its own directors individually, for the pur- 
 pose of having each vote the stock standing 
 in his name in its interest. Mack v. De 
 Bardeleben Coal & I. Co. 90 Ala. 396, 8 So. 
 150, 9: 650 
 Pledgee. 
 
 See also supra, 670. 
 
 For Editorial Notes, see infra, VIII. 31. 
 
 673. The right to vote stock held by exec- 
 utors in trust under a will is not affected 
 by a codicil directing that it shall be voted 
 as one executor shall direct, and that the 
 other executors shall give him a proxy, 
 where no proxy has in fact been given and 
 no legal proceedings taken to enforce these 
 provisions. Tunis v. Hestonville, M. & F. 
 Pass. R. Co. 149 Pa. 70, 24 Atl. 88, 15: 665 
 
 674. The pledgee of stock, in whose name 
 it stands on the corporate records, has a 
 right to vote the stock at a meeting of the 
 directors, and the pledgeor has not; but 
 equity may compel the pledgee in a proper 
 case to give him a proxy. Re Argus Print- 
 ing Co. 1 N. D. 434, 48 N. W. 347, 12: 781 
 Dummy. 
 
 675. A person holding stock in a corpora- 
 tion as a dummy for the real owner, with- 
 out any interest in the stock, which is 
 registered in his name for the purpose of 
 enabling the real owner to avoid certain 
 statutory liabilities, whether such purpose 
 would be effectual or not, is not a bona 
 fide holder who can be entitled to vote 
 upon it under Cal. Code 1872, 312. Smith 
 v. San Francisco & N. P. R. Co. 115 Cal. 
 584, 47 Pac. 583, 35: 309
 
 794 
 
 CORPORATIONS, VI. a. 
 
 VI. Dissolution; Forfeiture; Insolvency, 
 a. In General. 
 
 Winding up of Foreign Company, see infra, 
 VII. d. 
 
 Right of Individual to Assail Franchise, see 
 Action or Suit, 56. 
 
 Dissolution of Benevolent Societies, see 
 Benevolent Societies, V. 
 
 Power to Inquire as to Misuse of Franchise 
 by Corporation Engaged in Interstate 
 Commerce, see Commerce, 27. 
 
 Due Process in Forfeiture of Franchise, see 
 Constitutional Law, 806. 
 
 Due Process as to Dissolution, see Consti- 
 tutional Law, 640, 641. 
 
 Dissolution as Impairment of Obligation, 
 see Constitutional Law, 1140. 
 
 Construction of Contract to Indemnify by 
 Purchaser of its Business, see Contracts, 
 345. 
 
 Of Insurance Company, see Insurance, I. c. 
 
 Collateral Attack on Decree for Dissolution, 
 see Judgment, 143. 
 
 Limitation of Time to Forfeit Charter, see 
 Limitation of Actions, 192. 
 
 Parties to Action for Usurping Franchise, 
 see Parties, 155. 
 
 Admission of Corporate Existence, see 
 Pleading, 109. 
 
 Xecessity of Alleging Cessation of Cor- 
 porate Existence, see Pleading, 4. 
 
 Allegation of Dissolution, see Pleading, 522. 
 
 Quo Warranto to Oust from Right to Manu- 
 facture Oleomargarine, see Quo War- 
 ranto, 4, 5. 
 
 Right to Oust Street Railway from Fran- 
 chise, see Quo Warranto, 11, 12. 
 
 Appointment of Receiver on Forfeiture of 
 Charter, see Receivers, 29, 39. 
 
 Title of Statute as to, see Statutes, 189- 
 191. 
 
 Retrospective Statute as to, see Statutes, 
 543. 
 
 Depriving Turnpike Company of Franchise, 
 see Tolls and Toll Roads, 4. 
 
 Forfeiture of Water Company's Franchise, 
 see Waters, 554-560. 
 
 For Editorial Notes, see infra, VIII. 8. 
 48-51. 
 
 676. The existence of a corporation or 
 its title to property cannot be attacked 
 collaterally on the ground of its dissolution 
 or forfeiture of franchise, until dissolution, 
 lias been judicially pronounced. Parker v. 
 Hethel Hotel Co. 96 Tenn. 252, 34 S. W. 
 209, 31:706 
 
 677. A corporation cannot be sued as such 
 and brought into court, and the action 
 maintained against it, on the ground that it 
 is not a corporation; and other defendants 
 sued jointly with it cannot be charged in 
 such an action with having jointly, with 
 such corporation, usurped the rights of a 
 corporation, etc, because by suing a cor- 
 poration as such its existence is admitted. 
 People ex rel. Attorney General v. Stand- 
 lord, 77 Cal. 360, 19 Pac. 693, 2: 92 
 What constitutes a dissolution. 
 
 Closing Bank Doors as, see Banks, 307. 
 
 Sale of Liquor by Club as Forfeiture of 
 
 Charter, see Clubs, 2. 
 For Editorial Notes, see infra, VTII. 48. 
 
 678. A foreclosure sale, under a second 
 mortgage, of the property and franchises 
 of a railroad company, to a foreign corpora- 
 tion, does not extinguish the mortgagor cor- 
 poration, nor cause the purchaser to succeed 
 to it as a corporation, so as to relieve it 
 from liability for the negligent management 
 of the road, where the statutes contemplate 
 that, before the. dissolution of such a cor- 
 poration by sale of its property, another 
 corporation shall be provided to take its 
 place. James v. Western North Carolina 
 R. Co. 121 N. C. 523, 530, 28 S. E. 537, 
 
 46: 306 
 
 679. Section 697 of the North Carolina 
 Code, providing that a foreclosure sale of the 
 property and franchises of a corporation 
 effects its dissolution, must be construed 
 with 701, 1936, and 2005, which require 
 the provision of another corporation to take 
 the place of the former one before such dis- 
 solution can result. Id. 
 
 680. A company is dissolved upon the con- 
 summation of a sale of its corporate prop- 
 erty and the execution of a deed therefor, 
 under a statute which states that the ob- 
 ject of the sale is to dissolve the company. 
 Snell v. Chicago, 133 111. 413, 24 N. E. 532,' 
 
 8: 858 
 
 681. Nonuser of the franchise of a cor- 
 poration and the sole proprietorship of all 
 its capital stock will not constitute a dis- 
 solution of the corporation without a ju- 
 dicial adjudication thereof. Parker v. Bethel 
 Hotel Co. 96 Tenn. 252, 34 S. W. 209, 31: 706 
 
 682. An existing corporation is not dis- 
 solved by the fact that its shares are held 
 by a less number of persons than the law 
 requires as a condition precedent to its or- 
 ganization. Re Belton, 47 La. Ann. 1614, 18 
 So. 642, 30: 648 
 
 683. Neither the want of officers of a cor- 
 poration by reason of failure to elect, or 
 by death, nor the burning of the mill which 
 it was the object of the corporation to car- 
 ry on, will of itself work a dissolution. Id. 
 
 084. The ' election of nonresident direct- 
 ors without the passage of a by-law per- 
 mitting it will not, ipso facto dissolve a 
 corporation of a state whose statutes pro- 
 vide that every director of its corporations 
 must be a resident of the state unless the 
 corporation has otherwise provided in its 
 by-laws. Demarest v. Grant, 128 N. Y. 205, 
 28 N. E. 645, 13: 854 
 
 685. The failure of a person nominated 
 by the majority of the stockholders, to ac- 
 cept and qualify as receiver of a dissolved 
 corporation, does not prevent the decree 
 from terminating its existence. Nelson v. 
 Hubbard, 96 Ala. 238, 11 So. 428, 17: 375 
 Leave to forfeit. 
 
 686. Leave will not be granted to insti- 
 tute proceedings to forfeit the franchises of 
 a solvent active corporation carrying out 
 the purposes of its creation in supplying 
 the necessities of a large number of people, 
 and whose securities are held by innocent 
 
 persons, in the absence of a clear wilful
 
 CORPORATIONS, VI. b. 
 
 795 
 
 misuse, abuse, or nonuse of its franchises. 
 State ex rel. Mylrea v. Janesville Water 
 Power Co. 92 Wis. 496, 66 N. W. 512, 
 
 32: 391 
 Alternatives for forfeiture. 
 
 687. The court may impose a fine in lieu 
 of the forfeiture of the charters of cor- 
 porations found guilty "of entering into a 
 combination in restraint of trade, if the un- 
 lawful combination has been abandoned, al- 
 though the statute provides for the forfei- 
 ture of the rights of corporations found 
 guilty of such conduct. State ex rel. Crow 
 v. Armour Packing Co. 173 Mo. 356, 73 S. W. 
 645, 61 : 464 
 Transfer of franchise. 
 
 Of Telephone Company, see Telephones, 7. 
 
 688. A conveyance by a corporation dur- 
 ing its corporate life of all its property and 
 franchises cannot impart to any other cor- 
 poration or to a natural person the power 
 to continue the exercise of its corporate 
 franchise after that franchise has expired 
 by limitation of law. Virginia Canon Toll 
 Road Co. v. People ex rel. Vivian, 22 Colo. 
 429, 45 Pac. 398, - 37: 711 
 Sale; redemption. 
 
 689. A sale of property in a suit to wind 
 up an insolvent corporation is not made sub- 
 ject to the provisions as to redemption, in 
 a statute governing sales in foreclosure pro- 
 ceedings or under decrees for the payment 
 of money, by the fact that in the suit are 
 filed cross bills seeking preferences in the 
 assets, if the decree refuses to recognize 
 such claims, but leaves the assets unencum- 
 bered thereby. Blair v. Illinois Steel Co. 
 159 111. 350, 42 N. E. 895, 31 : 269 
 Limit of existence. 
 
 Validity of Extension of Corporate Exist- 
 ence, see Constitutional Law, 24. 
 
 Special Legislation Extending Existence, 
 see Statutes, 303, 304. 
 
 Of Street Railway Franchise, see Street 
 Railways, 37-39, 42. 
 
 See also infra, 721. 
 
 For Editorial Notes, see infra, VIII. 48, 
 49. 
 
 690. Although the general corporation 
 law of 1845 was repealed in 1855, including 
 the twenty years' limitation upon the exist- 
 ence of corporations, and the repealing law 
 took effect only from its passage, yet, as the 
 limitation is re-enacted in the same lan- 
 guage in which it appeared in the original 
 law, and the provision as re-enacted applies 
 to corporations created previous to its pas- 
 sage, it leaves such corporations in the same 
 condition they were in before, subject to 
 the same limitation. State ex rel. Clover 
 v. Ladies of the Sacred Heart, 99 Mo. 533, 
 12 S. W. 293, ' 6: 84 
 
 691. The existence of a corporation is not 
 limited to the unexpired term of its prede- 
 cessor, which was organized under a law 
 limiting its existence to thirty years, when 
 the new charter confers all the rights and 
 privileges that would have been had if the 
 company had been organized under such 
 statute. State ex rel. Allison v. Hannibal 
 & R. C. Gravel Road Co. 138 Mo. 332, 39 S. 
 W. 910, 36: 457 
 
 692. The words "perpetual succession," in 
 the charter of a corporation formed by pur- 
 chasers under a deed of trust of the prop- 
 erty of a prior corporation organized under 
 a statute that limited its existence to 
 thirty years, and to which the charter 
 refers for powers, privileges, franchises, and 
 limitations of the new corporation, imply 
 nothing more- than a continuous succession 
 during the existence of the corporation for 
 the period limited. Id. 
 
 693. A statute granting "perpetual suc- 
 cession" to a corporation, followed by a 
 grant of the exclusive right to manufacture 
 gas and coke within a certain city "for 
 the term of thirty years," while a general 
 law of the state limits the life of a corpora 
 tion to twenty years when no other time 
 is specified, does not give the corporation 
 an unlimited period of existence, but limits 
 it to thirty years. State ex rel. Walker v. 
 Payne, 129 Mo. 468, 31 S. W. 797, 33: 576 
 
 b. Grounds of Forfeiture. 
 
 As to What Constitutes a Dissolution, see 
 supra, 678-685. 
 
 Estoppel to Forfeit Franchise, see Estoppel, 
 32. 
 
 Estoppel to Deny Right to Exercise Fran- 
 chise, see Estoppel, 31. 
 
 Burden of Showing, see Evidence, 410. 
 
 For Prize Fighting, see Receivers, 39. 
 
 Of Street Railway Franchise, see Street 
 Railways, 40-48. 
 
 See also infra, 719, 869. 
 
 For Editorial Notes, see infra, VIII. 8, 
 48. 
 
 694. If the unauthorized acts of a corpora- 
 tion affect merely stockholders and creditors 
 who have an adequate legal remedy, the 
 state will not interfere. State ex rel. Clapp 
 v. Minnesota Thresher Mfg. Co. 40 Minn. 
 213, 41 N. W. 1020, 3: 510 
 
 695. There may be actual corporate con- 
 duct which will authorize the dissolution 
 of. a corporation, although there is no 
 formal corporate action taken for the pur- 
 pose of producing such conduct. People v. 
 North River Sugar Ref. Co. 121 N. Y. 582, 
 24 IS T . E. 834, 9: 33 
 Evasion of law. 
 
 By Benefit Society, see Benevolent Societies, 
 
 58. 
 See also Insurance, 70. 
 
 696. A deliberate attempt by a corporation 
 to evade the insurance law of the state in 
 one of its most important provisions is 
 ground for forfeiting the charter. Interna- 
 tional Fraternal Alliance v. State, 86 Md. 
 550, 39 Atl. 512, 40: 187 
 Neglect to have property listed for taxation. 
 See also Taxes, 485. 
 
 697. Neglect of the officers of a corpora- 
 tion to have its property listed for taxa- 
 tion is not sufficient cause for a forfeiture 
 of its franchises. North & S. Rolling Stock 
 Co. v. People ex rel. Schaefer, 147 111. 234, 
 35 N. E. 608, 24: 462 
 Failure to pay in capital stock. 
 
 698. The statutory provision that a "cor- 
 poration shall be dissolved" on failure to
 
 796 
 
 CORPORATIONS, VI. b. 
 
 pay in the capital stock within two years 
 after incorporation makes it the imperative 
 duty of the court to declare the forfeiture 
 in case the attorney general exercises his 
 discretion to bring an action therefor, and 
 leave to do so is given by the court. Peo- 
 ple v. Buffalo Stone & C. Co. 131 N. Y. 140, 
 29 N. E. 947, 15: 240 
 
 Failure to make report. 
 By Benefit Society, see Benevolent Socie- 
 ties, 59. 
 
 699. For failure to make the annual re- 
 port required by the New York Manufactur- 
 ing act of 1848, 12, a corporation incurs 
 the liability of forfeiture of its charter. 
 People v. Buffalo Stone & C. Co. 131 N. Y. 
 140, 29 N. E. 947, 1ft: 210 
 
 700. The express provision of the statute, 
 that trustees of a corporation shall be liable 
 for its debts in case they fail to make an 
 annual report, does not by implication pro- 
 hibit a forfeiture of the charter for such 
 failure, as the provision expressed relates to 
 the trustees, and not to the corporation. 
 
 Id. 
 
 Entering into monopolistic agreement. 
 See also supra, 687. 
 
 701. A corporation organized for the pro- 
 duction of oil and gas may be deprived of 
 its franchise* in case it enters into an 
 agreement with a rival company, fixing the 
 price to be charged for gas in a certain city 
 in which their pipes are laid, and binding 
 it to refuse to supply gas to customers sup- 
 plied from the rival's pipes. State ex rel. 
 Snyder v. Portland Natural Gas & O. Co. 
 153 Ind. 483, 53 N. E. 1089, 53: 413 
 
 702. A manufacturing corporation which, 
 instead of manufacturing its product and 
 disposing of it to the public on what might 
 be fair competitive prices, becomes a party 
 to a combination in part at least designed 
 to create a monopoly and exact from the 
 public prices which could not be otherwise 
 obtained, is liable to have its charter va- 
 cated and annulled for such subversion of 
 the object for which it was created. Ee 
 Sugar Trust Case, 54 Hun, 354, 7 N. Y. 
 Supp. 406, ' 5: 386 
 
 Affg 54 Hun, 355 (note), 3 N. Y. Supp. 
 401, 2: 33 
 
 703. A manufacturing corporation cannot 
 enter into any partnership arrangement, 
 either directly or indirectly, through the 
 medium of a trust, or into any substantial 
 consolidation which will avoid and disregard 
 the statutory permissions and restraints: 
 and any voluntary attempt by it to do so 
 will be such a material violation of its 
 charter as to justifv its dissolution. People 
 v. North River Sugar Ref. Co. 121 N. Y. 582. 
 24 N. E. 834, 9: 33 
 Migration; nonresidence. 
 
 For Editorial Notes, see infra, VTTI. 8. 
 
 704. It is sufficient ground for the dissolu- 
 tion of a corporation that it has removed 
 its principal place of business and all of 
 its agencies from the state of its creation, 
 in contravention of the policy of the state 
 as evinced by its general system of legis- 
 lation. Simmons v. Norfolk & B. Steam- 
 boat Co. 113 N. C, 147, 18 S. E. 117, 22: 677 
 
 705. A charge against a corporation of 
 falsely and fraudulently posing as a do- 
 mestic corporation, when it had in fact 
 migrated to a foreign state, is not shown 
 by the facts that the local office is not at 
 all times open and the books are not al- 
 ways there, if the corporate property is 
 within the state and the officers and books 
 are frequently at the office, at least as often 
 as the business requires. North & S. Roll- 
 ing Stock Co. v. People ex rel. Schaefer, 
 147 111. 234, 35 N. E. 608, 24: 462 
 
 706. The mere fact that the books of a 
 corporation have been kept most of the 
 time in a foreign state, contrary to a stat- 
 utory requirement, is not sufficient cause 
 to forfeit its franchises, if the two places 
 of location are but a short distance apart 
 across the boundary line, and they have 
 been produced at the principal office when- 
 ever any one entitled to do so desired to 
 see them. Id. 
 
 707. Nonresidence of the officers, directors, 
 and stockholders of a domestic corporation, 
 is not, in the absence of statutory require- 
 ments, express or implied, a ground for for- 
 feiture of its franchises. Id. 
 Nonuser of franchise. 
 
 Estoppel to Forfeit because of, see Estoppel, 
 
 Street Railway Franchise, see Street Rail- 
 ways, 40-42, 44-48. 
 See also supra, 681, 684; infra, 753. 
 For Editorial Notes, see infra, VIII. 8. 
 
 708. An act of a corporation tending to 
 produce injury to the public by affecting 
 the welfare of the people is an abuse of its 
 corporate franchise for which the charter of 
 the company may be forfeited by an in- 
 formation in the nature of quo warranto. 
 People ex rel. Mcllhany v. Chicago Live- 
 stock Exch. 170 111. 556, 48 N. E. 1062, 
 
 39: 373 
 
 709. The exercise and use of the franchises 
 of a corporation for the benefit of the public 
 is a condition on which it is allowed to be 
 created and maintained; and when it volun- 
 tarily declines to fill this condition, or 
 places itself in a situation as a consequence 
 of its voluntary action in which that may 
 be prevented, it may be annulled at the 
 suit of the attorney general. Re Sugar 
 Trust Case, 54 Hun, 354, 7- N. Y. Supp. 406, 
 
 5: 386 
 
 Affg 54 Hun, 355 (note), 3 N. Y. Supp. 
 401, 2: 33 
 
 710. Failure of a corporation to exercise 
 all of its granted power is no ground for 
 forfeiture of its franchises, unless that re- 
 quirement is expressly made by some stat- 
 ute or ordinance under which it derives 
 some of its powers, or the powers are in- 
 separably connected with each other. Illi- 
 nois Trust & Sav. Bank v. Doud, 44 C. C. A. 
 389, 105 Fed. 123, 52: 481 
 Abuse of franchise; unlawful business. 
 
 Of Carrier for Making Unlawful Charges, 
 see Commerce, 60. 
 
 For Wrongfully Conferring Degrees, see Col- 
 leges, 9. 
 
 Foreign Insurance Company, see Insurance, 
 48.
 
 CORPORATIONS VI. c. 
 
 797 
 
 Allegations as to, see Pleading, 526a. 
 Ousting by Quo Warranto, see Quo War- 
 
 ranto, 4, 5, 33. 
 Of Water Company, see Waters, 555, 556, 
 
 558, 559. 
 
 See also Insurance, 69. 
 For Editorial Notes, see infra, VII. 8. 
 
 711. Acts ultra vires, or in excess of pow- 
 ers, are not necessarily a misuser of the 
 franchises, such as will warrant their for- 
 feiture. To justify such forfeiture, the 
 ultra vires acts must be so substantial and 
 continued as to so derange or destroy the 
 business of the corporation that it no longer 
 fulfil the end for which it was created. 
 Ultra vires acts may be such as to justify 
 interference by the state by injunction to 
 prevent a continuance of the % excess of 
 powers, while they would not be a sufficient 
 ground for a forfeiture of the corporate 
 franchises in proceedings by quo warranto. 
 State ex rel. Clapp v. Minnesota Thresher 
 Mfg. Co. 40 Minn. 213, 41 N. W. 1020, 3: 510 
 
 712. The object of proceedings by quo 
 warranto against a corporation being to 
 protect public interests, to warrant a for- 
 feiture of corporate franchises for misuser, 
 the misuser must be such as to work or 
 threaten a substantial injury to the pub- 
 lic. Id. 
 
 713. To warrant the annulment of a cor- 
 porate franchise, the corporation must be 
 shown to have exceeded or abused its pow- 
 ers in such a manner as to threaten or 
 harm the public welfare. People v. North 
 River Sugar Ref. Co. 121 N. Y. 582, 24 N. E. 
 834, 9: 33 
 
 714. In a proceeding to annul a corporate 
 franchise for abuse of powers, the substan- 
 tial inquiry is: What has the corporation 
 in fact accomplished; what has been its con- 
 duct and effective work? and the manner 
 in which the result has been reached is 
 immaterial. Id. 
 
 715. A corporation, organized under the 
 laws of Nebraska, which is engaged in a 
 business forbidden by statute, or unlaw- 
 ful as against public policy, may be de- 
 prived of its charter and dissolved by pro- 
 ceedings in quo warranto. State ex rel. 
 Prout v. Nebraska Home Co. 66 Neb. 349, 
 92 N. W. 763, 60: 448 
 Usurpation. 
 
 Laches as Bar to Proceeding for, see Quo 
 Warranto, 3. 
 
 716. The exercise by a private corpora- 
 tion of franchises or privileges not conferred 
 by law may be a serious usurpation and en- 
 croachment which*, when it injures or puts 
 in hazard the private rights of any' per- 
 son, will justify the exercise by the court 
 of the powers given by Mass. Pub. Stat. 
 chap. 186, 17-25, on an information in 
 the nature of a quo warranto. Hartnett v. 
 Plumber's Supply Asso. 169 Mass. 229, 47 
 N. E. 1002, 38: 194 
 
 c. Effect on Property Rights. 
 
 Expiration of Bank's Existence, see Banks, 
 
 2. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 272. 
 
 Survival of Street Railway Franchise, see 
 Street Railways, 37. 
 
 Effect of Expiration of Toll Road Com- 
 pany's Charter, see Tolls and Toll 
 Roads, 14, 15. 
 
 On Right to Take under Will, see Wills, 146. 
 
 For Editorial Notes, see infra, VIII. 50. 
 
 717. Stockholders of a corporation have 
 the same right to purchase its property 
 and take possession thereof that stran- 
 gers would have, during the pendency of a 
 suit to forfeit the charter. Havemeyer v. 
 San Francisco Super. Ct. 84 Cal. 327, 24 
 Pac. 121, 10: 627 
 
 718. The right of trustees in a corporate 
 mortgage to take possession and control of 
 the property and carry on the business for 
 which it is used is a property right or in- 
 terest which survives the voluntary disso- 
 lution of the corporation. Nelson v. Hub- 
 bard, 96 Ala. 238, 11 So. 428, 17: 375 
 
 719. A corporation violating the organic 
 law forfeits its franchise, but does not 
 thereby become subject to the escheat or 
 confiscation of its property. Com. ex rel. 
 Attorney General v. New York, L. E. & W. 
 R. Co. 132 Pa. 591, 19 Atl. 291, 7: 634, 
 
 720. An express reservation by the legis- 
 lature of power to repeal a charter can 
 give no authority to take away or destroy 
 property lawfully acquired or created under 
 authority conferred by the charter. People 
 v. O'Brien, 111 N. Y. 1, 18 N. E. 692, 
 
 2: 255 
 
 721. A conveyance in fee to a corporation 
 which has a limited existence is not limited 
 to the life of the corporation, and does not 
 give the grantor a resulting trust which will 
 take effect when the corporation ceases to 
 exist. Wilson v. Leary, 120 N. C. 90, 26 
 S. E. 630, 38: 240 
 
 722. Putting in issue the corporate exist- 
 ence of relator, at whose instance an alter- 
 native writ of prohibition has been issued 
 to prevent a receivership illegally instituted 
 over another corporation from being ex- 
 tended over property which was transferred 
 by the latter corporation to relator, is not 
 sufficient to affect the force of the writ, 
 since relator, although only a de facto cor- 
 poration, is entitled to possession of its 
 property until deprived of it by a proper 
 proceeding. State ex rel. Amsterdamsch 
 Trustees Kantoor v. Spokane County Super. 
 Ct. 15 Wash. 668, 47 Pac. 31, 37: 111 
 
 723. The purpose as well as the effect, 
 of the amendatory act of Congress making 
 the comptroller of the currency a commis- 
 sioner of the Freedman's Saving & Trust 
 Company, was to invest him, as such com- 
 missioner, with the property, management, 
 and disposition of the affairs of said com- 
 pany for the purposes of liquidation; and 
 lie thereby became the statutory substitute 
 and successor of the corporation itself, and 
 not a mere trustee of the bare legal title of 
 its property. Spratt v. Livingston, 32 Fla. 
 507, 14 So. 160, 22: 453 
 On guaranty of dividends. 
 
 724. A defense to a guaranty of corporate 
 dividends, that the corporation has been 
 dissolved, cannot be defeated on the ground
 
 798 
 
 CORPORATIONS, VI. d, e. 
 
 that the dissolution was caused by defend- 
 ant's own misconduct, where it was ad- 
 judged on the application of the plaintiff 
 for technical breaches of corporate duty, for 
 some of which he was as much responsible 
 as the defendant. Lorillard v. Clyde, 142 
 X. Y. 456, 37 X. E. 489, 24: 113 
 
 d. Effect on Causes of Action. 
 
 Against Officers, see supra, 306, 307. 
 Intervention by Officer, see Parties, 211. 
 
 725. Statutes continuing corporate exist- 
 ence a certain time after dissolution for 
 purposes of suits, and forbidding the de- 
 fense of want of legal organization of the 
 corporation, do not apply to corporations 
 of other states. Marion Phosphate Co. v. 
 Perry, 41 U. S. App. 14,- 74 Fed. 425, 
 20 C. C. A. 490, 33 : 252 
 
 726. The continuation of the existence of 
 corporations "dissolved by forfeiture or any 
 other cause," provided for by Ala. Code, 
 1690, does not apply to corporations dis- 
 solved by the voluntary act of the owners 
 of three fourths of the stock, under 
 1683-1689, which supply a complete scheme 
 or system of procedure for winding up its 
 affairs. Xelson v. Hubbard, 96 Ala. 238, 11 
 So. 428, 17: 375 
 By corporation. 
 
 For Editorial Xotes, see infra, VIII. 50. 
 
 727. An action for libel cannot be prose- 
 cuted by a receiver in insolvency of the cor- 
 poration libeled, although the libel has re- 
 sulted in pecuniary injury to such corpora- 
 tion, and thus diminished the estate passing 
 to the receiver. Milwaukee Mut. F. Ins. 
 Co. v. Sentinel Co. 81 Wis. 207, 51 X. W. 
 440, 15: 627 
 
 728. The further prosecution of a suit for 
 libel is within the terms of an injunction 
 restraining a corporation from exercising 
 any of its corporate rights, privileges, or 
 franchises; and where the injunction is 
 granted under statutory authority, upon 
 the appointment of a receiver because of 
 the insolvency of the corporation, the de- 
 fendant in the libel suit may avail himself 
 of it to procure a stay of further proceed- 
 ings in such suit. Id. 
 
 729. The right to continue the prosecution 
 of a suit is not saved to a dissolved cor- 
 poration by a statute which continues the 
 existence of such corporations for three 
 years for the prosecution of actions, and 
 gives the managers power to settle up its 
 affairs, subject to the power of the court to 
 make a different provision, where the court 
 appoints a receiver and enjoins the cor- 
 poration from exercising any of its rights, 
 privileges, or franchises. Id. 
 Against corporation. 
 
 Revival of Libel Suit against Trustees, see 
 
 Abatement and Revival, 46. 
 As Impairment of Obligation of Contract, 
 
 see Constitutional Law, 1139, 1188. 
 See also supra, 285, 678, 679. 
 
 730. After the dissolution of a corpora- 
 tion the power to proceed judicially against 
 it is wholly devested except as specially 
 
 authorized by statute. Combes v. Milwau- 
 kee & M. R. Co. 89 Wis. 297, 62 X. W. 89, 
 
 27: 369 
 
 731. The dissolution of a corporation 
 works an abatement of suits pending 
 against it, and presents, an insuperable im 
 pediment to the institution of new suits 
 against it, unless some clear statutory pro- 
 vision prevents the termination of its exist- 
 ence for the purposes of its organization 
 from having this effect. Xelson v. Hub- 
 bard, 96 Ala. 238, 11 So. 428, 17: 37f> 
 
 732. The civil death of corporations is not 
 included within the rule, Actio personal is 
 moritur cum persona. Shayne v. Evening 
 Post Pub. Co. 168 X. Y. 70, 61 X. E. 115. 
 
 55: 777 
 
 733. If the adoption of the common law 
 included the rule that the expiration of a 
 corporate charter terminated actions of tort 
 pending against the corporation, it has been 
 rendered wholly inapplicable to business 
 corporations by the subsequent legislation 
 regarding them. Id. 
 
 734. The ' rule of the common law that 
 liability for the publication of a libel dies 
 with the publisher cannot *be extended by 
 analogy to embrace cases where the charter 
 of a corporation expires after it has in- 
 curred liability for the publication of a 
 libel. Id. 
 
 735. The dissolution of a corporation de- 
 fendant after the submission and taking 
 under advisement by the court of an action 
 on contract will not abate the action, but 
 the court will date the findings and enter 
 the judgment as of the time when the 
 action was submitted. Shakman v. United 
 States Credit System Co. 92 Wis. 366, 60 
 X. W. 528, 32: 383 
 
 736. A suit to foreclose a mortgage can- 
 not be brought as an independent suit 
 against a corporation after a decree of dis- 
 solution under Ala. Code, 1683-1689, but 
 a claim should be filed in the dissolution 
 proceedings. Xelson v. Hubbard, 96 Ala. 
 238, 11 So. 428, 17: 375 
 
 737. A judgment against a corporation 
 after its dissolution is invalid. Marion 
 Phosphate Co. v. Perry, 41 U. S. App. 14, 
 74 Fed. 425, 20 C. C. A. 490, 33: 252 
 
 738. A corporation organized by purchas- 
 ers of a railroad on foreclosure, which is 
 afterwards devested of all its property and 
 its franchise for the operation of the rail- 
 road by the subsequent foreclosure of prior 
 liens thereon created by the original owner, 
 does not thereafter continue to exist so 
 that it can be sued after a new corporation 
 under legislative authority has acquired 
 the property under the latter foreclosure 
 and operated the road for many years. 
 Combes v. Milwaukee & M. R. Co. 89 Wis. 
 297, 62 X. W. 89, 27: 369 
 
 e. Procedure; Power of Equity as to. 
 
 Proceedings by Quo Warranto against Cor- 
 poration, see Quo Warranto, II. a. 
 
 Leave to Bring Quo Warranto Proceedings 
 for Dissolution, see Quo Warranto, 28. 
 
 For Editorial Xotes, see infra, VIIl. 8.
 
 CORPORATIONS, VL e 
 
 799 
 
 739. The fact that a statute under which 
 an action is instituted to wind up the busi- 
 ness of an insolvent corporation, and for 
 the granting of incidental relief, does not 
 confer jurisdiction to dissolve the corpora- 
 lion as prayed for in the petition, does not 
 deprive the court of jurisdiction to grant 
 the relief authorized by statute. Re Osh- 
 kosh Mut. F. Ins. Co. 77 Wis. 366, 46 N. W. 
 441, 9: 273 
 
 740. In a statutory proceeding by the 
 state auditor to wind up a corporation, to 
 which the stockholders are not made par- 
 ties, the corporation has the duty to pro- 
 tect their rights; and it may therefore 
 object to the making of an order directing 
 the receiver to bring suits for unpaid stock 
 subscriptions. Republic L. Ins. "(Jo. v. Swig- 
 ert, 135 111. 150, 25 N. E. 680, 12: 328 
 
 741. Proceedings to forfeit a franchise are 
 not excluded by Aid. Code, art. 23, 263, au- 
 thorizing proceedings to restrain an as- 
 sumption or exercise of any franchise, lib- 
 erty, or privilege, or the transaction of un- 
 authorized business. International Frater- 
 nal Alliance v. State, 86 Md. 550, 39 Atl. 
 512, 40: 187 
 
 742. The mere fact that the voluntary 
 winding up of a corporation is subject to 
 the supervision of the court does not take it 
 out of 161 of the English companies act, 
 which regulates the proceedings for volun- 
 tary winding up, and make it subject to 
 the provision regulating winding up by the 
 court, especially when the corporation and 
 its liquidator opposed a winding up by the 
 court as desired by creditors. Bank of 
 China, Japan and the Straits v. Morse, 168 
 N. Y. 458, 61 N. E. 774, .56: 139 
 Notice of meeting for liquidation. 
 
 743. Statutory provisions as to the notice 
 to be given of a meeting to consider the 
 question of liquidating a corporation must 
 prevail under provisions in the by-laws. 
 Republican Mountain Silver Mines v. Brown, 
 19 U. S. App. 203, 7 C. C. A. 412. 58 Fed. 
 644, 24: 776 
 
 744. Provisions in the by-laws, as to no- 
 tice of a meeting to consolidate with an- 
 other corporation, can have no application 
 to a proceeding to liquidate the corporation 
 and sell the assets. Id. 
 By whom petition made or proceeding 
 
 brought. 
 
 See also infra, 756, 757; Attorney General, 
 2. 
 
 745. No relator is necessary in a suit by 
 the attorney general under, N. Y. Code Civ. 
 Proc. 1808, to remove the trustees erf a do- 
 mestic corporation and compel them to 
 account for its property, if in his opinion 
 the public interests require that such ac- 
 tion should be brought. People v. Ballard, 
 134 N. Y. 269, 32 N. E. 54, 17: 737 
 
 746. The attorney general will not be per- 
 mitted to maintain an independent action 
 for the dissolution of an insolvent insur- 
 ance corporation, if all the ends which could 
 be attained by such action may be ac- 
 complished by his becoming a party to an 
 action already pending against the corpora- 
 tion, brought by creditors and stockhold- 
 
 ers. Re Oshkosh Mut. F. Ins. Co. 77 Wis. 
 366, 46 N. W. 441, 9: 273 
 
 747. The fact that suit by the attorney 
 general to annul the existence of a ' cor- 
 poration as an illegal combination to keep 
 down the price of a commodity was insti- 
 tuted upon petition of another associa- 
 tion which was formed to enhance such 
 prices cannot affect the decision of the case. 
 People v. Milk Exchange, 145 N. Y. 267, 
 39 N..E. 1062, 27: 437 
 
 748. An action to annul a corporation 
 brought in the interest of the public by 
 the attorney general, under N. Y. Code Civ. 
 Proc. chap. 15, tit. 2, art. 4, is not defeated 
 by the fact that some of the persons who 
 petitioned therefor were those whose acts 
 or omissions were the ground of the forfeit- 
 ure. People v. Buffalo Stone & C. Co. 131 
 N. Y. 140, 29 N. E. 947, 15: 240 
 
 749. Whether the attorney general, who 
 has brought an action to wind up the af- 
 fairs of a corporation in which a receiver 
 has been appointed, and which is still pend- 
 ing undetermined, can, to avoid multiplic- 
 ity of suits and to carry out the provisions 
 of N. Y. Laws 1886, chap. 310, maintain an- 
 other action in aid of the former, to obtain 
 a judgment declaratory of the rights and 
 liabilities of the several parties as affect- 
 ed by the dissolution of the corporation, and 
 to determine the fact as to what were the 
 assets of the company, and the extent of 
 the interest of the several parties therein, 
 and to restrain mortgagees and contractors 
 and others from enforcing their rights in 
 and liens upon the property, by legal pro- 
 ceedings, doubted, but not decided. People 
 v. O'Brien, 111 N. Y. 1, 18 N. E. 692, 
 
 2: 255 
 
 750. The fact that suits to restrain the 
 usurpation of corporate powers must be 
 brought by the state does not prevent an 
 individual from attacking the right of a 
 corporation to enjoy a certain franchise in 
 an action to recover damages for injuries 
 to his business by acts of the corporation 
 which are alleged to be ultra vires. Hud- 
 son River Teleph. Co. v. Watervliet Tump. 
 & R. Co. 135 N. Y. 393, 32 N. E. 148, 
 
 17: 674 
 
 751. The rule that the franchise of a 
 corporation cannot be annulled at the suit 
 of private persons applies to defeat a suit 
 by members of a voluntary association who 
 claim that the corporators named in the 
 charter were merely their agents, and seek 
 to compel them to deliver the charter to 
 them and to restrain the corporators named 
 in the charter from acting under it, since 
 the complainants would have no authority 
 to organize or .act under such charter. Paul- 
 ino v. Portuguese Beneficial Asso. 18 R. I. 
 165. 26 Atl. 38, 20: 272 
 
 752. A creditor of a corporation may, 
 \vitliout obtaining judgment against it, 
 maintain a bill under the Tennessee stat- 
 utes to wind up its affairs, if, after sus- 
 taining large losses, it has suspended busi- 
 ness with no preparation for resumption, 
 and has executed trust deeds in favor of 
 certain creditors covering practically all its
 
 810 
 
 CORPORATIONS, TL f, L 
 
 assets, while its claim to solvency is based 
 upon extravagant valuations of its assets. 
 Tradesman Pub. Co. v. Knoxville Car-Wheel 
 Co. 95 Tenn. 634, 32 S. W. 1097, 31: 593 
 
 753. A forfeiture of the franchise of a 
 canal company by accepting a new charter 
 conferring power to use the water for manu- 
 facturing purposes, and by nonuser there- 
 of for navigation, cannot be enforced by an 
 owner of the adjoining property with a con- 
 tingent right of reversion in the land of 
 the corporation, but only by the sovereign 
 state. Bass v. Roanoke Nav. & W. P. 
 Co. Ill N. C. 439, 16 S. E. 402, 19: 247 
 Power of equity. 
 
 754. Courts of chancery have no jurisdic- 
 tion to decree the dissolution of a corpora- 
 tion, in the absence of statutory authority. 
 Wheeler v. Pullman Iron & 8. Co. 143 111. 
 197, 32 N. E. 420, 17: 818 
 
 755. A court of equity cannot dissolve or 
 wind up the affairs and sequestrate the 
 property of a corporation without' express 
 statutory authority. Wallace v. Fierce- 
 Wallace Pub. Co. 101 Iowa, 313, 70 N. W. 
 216, 38: 122 
 
 756. Equity had afr common law no power 
 to decree a surrender or forfeiture of cor- 
 porate franchises at the suit of an individu- 
 al. Republican Mountain Silver Mines v. 
 Brown, 19 U. S. App. 203, 7 C. C. A. 412, 58 
 Fed. 644, 24: 776 
 
 757. A court of equity can wind up a cor- 
 poration at the suit of a minority stock- 
 holder, and appoint a receiver for that pur- 
 pose, with an order for an accounting, where 
 the corporation has utterly failed of its 
 purpose because of fraudulent mismanage- 
 ment and misappropriation of its funds in 
 the interest of one who owns a majority 
 of its stock, some of which is nominally 
 held by directors who are merely dummies 
 under his control. Miner v. Belle Isle Ice 
 Co. 93 Mich. 97, 53 N. W. 218, 17: 412 
 
 758. The power of a court of equity, on 
 good cause shown, to dissolve or close up the 
 business of any corporation, which is con- 
 ferred by 25 of the Illinois statute for the 
 incorporation of companies for pecuniary 
 profit, exists only as a portion of the re- 
 lief provided for by that section, and does 
 not authorize the exercise of such power 
 except for causes for which the state might 
 procure a judgment of forfeiture at law. 
 Wheeler v. Pullman Iron & S. Co. 143 111. 
 197, 32 N. E. 420, 17: 818 
 
 f. Insolvency; Rights and Preferences of 
 Creditors. 
 
 1. In General. 
 
 Liability of Stockholders in Reorganized 
 Company, see supra, 594-599. 
 
 Officer's Liability for Assent to Acts Caus- 
 ing Insolvency, see supra, 289-292. 
 
 Insolvency of Foreign Corporations, see 
 infra, VII. d. 
 
 Insolvency of Bank, see Banks, IV. b, 2; V. 
 
 Insolvency of Loan Association, see Build- 
 ing and Loan Associations, VLL 
 
 Of Insurance Company, eee Insurance, 25, 
 659, 664, 670, 671, 1289, 1290, 1301, 
 1302, 1320, 1365, 1366, 1370, 1371. 
 
 Error in Reversing in Toto Judgment for 
 Assessment on Stockholder, see Appeal 
 and Error, 1154. 
 
 Liability of Ship Building Corporation to 
 Bankruptcy Proceedings, see Bank- 
 ruptcy, 12. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 L f. 
 
 Receivers for, see Receivers. 
 
 Set-Off of Dividend against Liability as 
 Stockholder, see Set-Off and Counter- 
 claim, 39. 
 
 See also supra, 24, 264, 380, 502, '556, 752. 
 
 For Editorial Notes, see infra, VIII. 48, 
 50, 51. 
 
 759. Where a man brought an action 
 against a corporation for injuries resulting 
 from negligence, pending which the corpora- 
 tion, then insolvent, mortgaged its property 
 to its directors for money advanced, after 
 recovering judgment and levying on the 
 corporate property, he was entitled by bill 
 in equity to have the mortgage declared 
 void as against him. Olney v. Conanicut 
 Land Co. 16 R. I. 597, 18 Atl. 181, 5: 361 
 
 760. Under Wis. Rev. Stat. 3216 et 
 seq., a judgment creditor of an insolvent 
 corporation, whose execution has been re- 
 turned unsatisfied, may maintain a suit 
 against the company and the other neces- 
 sary parties defendant to facilitate the 
 collection of the claim, in which its effects 
 may be sequestrated and placed in the hands 
 of a receiver, and all suits by other creditors 
 enjoined, and such creditors compelled to 
 come into the action for an equal distribu- 
 tion of assets. Stockholders may be made 
 parties and compelled to pay the amounts 
 due on their stock subscriptions, and officers 
 of the law may be compelled to deliver 
 to the receiver property in their hands 
 under attachments or executions against 
 the corporation. Ballin v. J. & E. B. Friend 
 Lace Importing Co. 78 Wis. 404, 47 N. W. 
 516, 10: 742 
 
 761. A contractor who, under an execu- 
 tory contract with a corporation, terminat- 
 ed by its insolvency and dissolution, has 
 made large expenditures in the construc- 
 tion and repair of river dams, bridges, and 
 roads belonging to the corporation, for the 
 driving and hauling of timber, and upon 
 timber partially prepared for delivery un- 
 der the contract, is entitled, upon a sale of 
 the corporate property free and discharged 
 from the contract, under a decree of the 
 court directing it to be offered for sale 
 both subject to and free from the contract, 
 to compensation and reimbursement for his 
 services and expenditures out of the as- 
 sets of the company, although he afterwards 
 purchases the corporate property and ob- 
 tains the benefit of such improvements. 
 Griffith v. Blackwater Boom & L. Co. 55 W. 
 Va. 604, 48 S. E. 442, 69: 124 
 Disposition of property generally. 
 Distribution of Assets of Insurance Com- 
 pany, see Insurance, 73-85. 
 
 See also infra, 773.
 
 CORPORATIONS, VI. f, 2. 
 
 801 
 
 For Editorial Notes, see infra, VIII. 51. 
 
 762. The mere insolvency of a corpora- 
 tion does not eo instanti deprive its direct- 
 ors and officers of power to dispose of the 
 corporate property in good faith as pay- 
 ment or security of corporate debts, al- 
 though the effect may be to give some 
 creditors a preference over others. Warren 
 v. First Nat. Bank, 149 111. 9, 38 N. E. 122, 
 
 25: 746 
 
 763. Directors and officers of an insol- 
 vent corporation can dispose of its property 
 in good faith to pay or secure corporate 
 debts, even though the result is to give 
 some creditors a preference over others. 
 Illinois Steel Co. v. Q'Donnell, 156 111. 624, 
 41 N. E. 185, 31: 265 
 Assignments for creditors. 
 
 What Constitutes an Assignment, see As- 
 signments for Creditors, 7. 
 
 Assignee's Power to Enforce Stockholder's 
 Liability, see Banks, 24, 25. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 I. f. 
 
 By Insurance Company, see Insurance, 79. 
 
 See also infra, 871-874. 
 
 764. At common law an insolvent corpora- 
 tion can make a general assignment in trust 
 to an assignee for the benefit of creditors. 
 Vanderpoel v. Gorman, 140 N. Y. 563, 35 
 N. E. 932, 24: 548 
 
 765. An assignment by a corporation for 
 the benefit of creditors is a corporate act 
 which may be performed by the president 
 and secretary under the authority of the 
 board of directors, in the absence of any 
 statute or by-law providing that it shall be 
 otherwise done. Id. 
 Attachments. 
 
 766. An attachment and sale of the cor- 
 porate property in a suit against the Comp- 
 troller of the Currency as commissioner and 
 statutory successor of the Freedman's Sav- 
 ings & Trust Company is lawful, where the 
 corporation would have been subject to at- 
 tachment. Spratt v. Livingston, 32 Fla. 
 507, 14 So. 160, 22: 453 
 
 767. The mere insolvency of a corpora- 
 tion, known to a creditor, will not prevent 
 him from obtaining a valid lien by attach- 
 ment of its property. Ballin v. Merchants' 
 Exch. Bank, 89 Wis. 278, 61 N. W. 1118, 
 
 27: 357 
 
 768. The invalidity of an attachment of 
 property of an insolvent corporation will 
 not preclude a purchaser of the property 
 from defending against one claiming it un- 
 der a mortgage which constitutes an invalid 
 preference. Fowler v. Bell, 90 Tex. 150, 37 
 S. W. 1058, 39: 254 
 Discharge. 
 
 Discharge in Bankruptcy, see Bankruptcy, 
 IV. 
 
 769. Corporations as well as natural per- 
 sons are included within the provisions of 
 the Wisconsin statute, for a discharge of 
 insolvent debtors. Barth v. Backus, 140 
 N. Y. 230, 35 N. E. 425, 23: 47 
 
 770. Corporations are included within the 
 words "any person," in Sand. & B. (Wis.) 
 Ann. Stat. chap. 80a, 1702d, providing 
 
 .A. Dig. 51. 
 
 that any person who shall make a volun- 
 tary assignment for the benefit of creditors 
 may be discharged from his debts upon 
 compliance with the provisions of the act. 
 Segnitz v. Garden City Banking & T. Co. 
 107 Wis. 171, 83 N. W. 327, 50: 327 
 
 2. Preferences. 
 
 Attachment as, see supra, 766-768. 
 
 AS to Funds in Insolvent Bank, see Banks, 
 
 V. 
 Of Claims against Receiver, see Receivers, 
 
 III. 
 
 See also supra, 689, 762, 763. 
 For Editorial Notes, see infra, VIII. 51. 
 
 771. An insolvent corporation may, in the 
 exercise of its jus disponzndi, prefer one 
 creditor to another. American Exch. Nat. 
 Bank v. Ward, 49 C. C. A. 611, 111 Fed. 782, 
 
 55: 356 
 
 772. An insolvent corporation has no au- 
 thority to prefer creditors. Adams & W. 
 Co. v. Deyette, 8 S. D. 119, 65 N. W. 471, 
 
 31 : 497 
 
 773. Statutory authority of a corpora- 
 tion to hold, purchase, and sell property as 
 the "purposes" of the corporation shall re- 
 quire, applies only to powers to be used 
 while the corporation is carrying on busi- 
 ness, and does not give power to execute 
 a preferential deed of assignment after in- 
 solvency and permanent cessation of busi- 
 ness. Lyons Thomas Hardware Co. v. Perry 
 Stove Mfg. Co. 86 Tex. 143, 24 S. W. 16, 
 
 22: 802 
 
 774. A preferential deed of trust executed 
 by a private trading corporation after its 
 insolvency and ceasing to carry on business, 
 without any intention of resuming, is void 
 as against unsecured creditors of the cor- 
 poration. Id. 
 
 775. Trust deeds in favor of certain cred- 
 itors, executed by a corporation after sus- 
 taining heavy losses and suspending busi- 
 ness and when it cannot meet its accruing 
 liabilities, will be set aside. Tradesman 
 Pub. Co. v. Knoxville Car Wheel Co. 95 
 Tenn. 634, 32 S. W. 1097, 31 : 593 
 
 776. A corporation is insolvent within the 
 rule as to preferring creditors, where its as- 
 sets are insufficient to pay its debts and it 
 has ceased to do business, or is in the act 
 of taking a step which will practically inca- 
 pacitate it for conducting the corporate en- 
 terprise with reasonable prospect of success, 
 or its embarrassments are such that early 
 suspension and failure must ensue. Corey 
 v. Wadsworth, 99 Ala. 68, 11 So. 350, 
 
 23: 618 
 
 777. The "business" of a corporation, 
 within a statutory authority to contract in 
 "its authorized business," cannot be con- 
 strued to include the making of a preferen- 
 tial deed of trust after the corporation has 
 become insolvent and ceased to carry on its 
 operations without any intention of resum- 
 ing. Lyons Thomas Hardware Co. v. Perry 
 Stove Mfg. Co. 86 Tex. 143, 24 S. W. 16, 
 
 22: 802 
 
 778. Corporate bonds representing no
 
 803 
 
 CORPORATIONS, VI. f, 2. 
 
 actual indebtedness cannot be pledged as 
 collateral security to a debt of the corpora- 
 tion, so as to entitle the holder to a divi- 
 dend thereon from the receiver of the corpo- 
 ration as well as upon the debt. Interna- 
 tional Trust Co. v. Union Cattle Co. 3 Wyo. 
 803, 31 Pac. 408, 19: 640 
 
 779. A corporation for profit, organized 
 under the laws of Ohio, after it has become 
 insolvent and ceased to prosecute the ob- 
 jects for which it was created, cannot, by 
 giving some of its creditors mortgages on 
 the corporate property to secure antecedent 
 debts without other consideration, create 
 valid preferences in their behalf over the 
 other creditors, or over a general assignment 
 thereafter made for the benefit of creditors. 
 Rouse v. Merchants' Nat. Bank, 46 Ohio St. 
 493, 22 N. E. 293, 5: 378 
 
 780. A trustee of an insolvent banking 
 firm cannot share in the assets of an insol- 
 vent corporation, which was entirely owned 
 by one member of the firm, on account of 
 overdrafts of the corporation, until after 
 the creditors of the corporation have been 
 paid. Potts v. Schmucker, 84 Md. 535, 36 
 All. 592, 35: 392 
 
 781. A bank loaning money to a construc- 
 tion company which owns all the stock of 
 a railroad company cannot, even in equity, 
 enforce its claim against the assets of the 
 railroad property in the hands of a receiver, 
 in preference to the lien of a valid mortgage 
 executed by the railroad company to secure 
 an issue of bonds, although under some cir- 
 cumstances it might subject the railroad 
 property to its debt as equitable assets of 
 the borrower. McTighe v. Macon Const. Co. 
 97 Ga. 1, 25 S. E. 326, 33: 800 
 
 782. A party loaning money to an em- 
 barrassed corporation subsequently adjudged 
 insolvent, and taking security therefor, can- 
 not in equity claim a lien on its mortgaged 
 property or the proceeds thereof, in prefer- 
 ence to a pre-existing mortgage, no matter 
 for what purpose the loan was made or 
 how the money loaned was applied, pro- 
 viding the mortgage bondholders were not 
 parties to the transaction. Farmers' Loan 
 & T. Co. v. Bankers' & M. Teleg. Co. 148 
 N. Y. 315, 42 N. E. 707, 31:403 
 
 783. The filing in a suit to dissolve a cor- 
 poration and close up its business, of cross- 
 bills in the nature of creditors' bills, and of 
 prayers to set aside a deed of trust on the 
 property, will not operate to give the cred- 
 itors praying such relief preference over the 
 other creditors of the corporation. Blair v. 
 Illinois Steel Co. 159 111. 350, 42 N. E. 895, 
 
 31: 269 
 
 Trust fund doctrine. 
 As to Funds in Insolvent Bank, see Banks, 
 
 319-325. 
 Following Trust Property Generally, see 
 
 Trusts, V. 
 For Editorial Notes, see infra, VTIT. 51. 
 
 784. The insolvency of a corporation does 
 not ipso facto transform its assets into a 
 trust fund for the equal benefit of its credit- 
 ors. American Exch. Nat. Bank v. Ward, 49 
 C. C. A. 611, 111 Fed. 782, 55: 356 
 
 785. The property of an insolvent cor- 
 poration is not a trust fund for the benefit 
 of creditors in any sense other than that 
 when a chancery court takes possession of 
 it upon some general principle of equity 
 jurisdiction, wholly independent of any idea 
 that the property constitutes a trust fund, 
 it will be administered for the equal benefit 
 of creditors. O'Bear Jewelry Co. v. Volfer, 
 106 Ala. 205, 17 So. 525, 28: 707 
 Of officers or directors. 
 
 Presumption of Knowledge of Insolvency, 
 
 see Evidence, 312. 
 See also supra, 276. 
 
 786. Directors of an insolvent corporation 
 are not precluded from executing a chattel 
 mortgage upon the corporate assets to se- 
 cure their own just demands, if they act in 
 absolute good faith. American Exch. Nat. 
 Bank v. Ward, 49 C. C. A. 611, 111 Fed. 
 782, 55: 356 
 
 787. A deed of trust by an insolvent cor- 
 poration is not void as matter of law from 
 the fact that the directors vote themselves 
 preferences in payment of debts. Schufeldt 
 v. Smith, 131 Mo. 280, 31 S. W. 1039, 
 
 29: 830 
 
 788. A director who is a bona fide creditor 
 of a corporation may be made a preferred 
 creditor, where preferences to any creditors 
 are lawful. Brown v. Grand Rapids Parlor 
 Furniture Co. 16 U. S. App. 221, 7 C. C. A. 
 225, 58 Fed. 286, 22: 817 
 
 789. The preference of a creditor of an in- 
 solvent corporation is not invalid because he 
 was a stockholder, director, and president 
 of the company, and as such participated in 
 the transaction by which he was given a 
 preference over other creditors. Corey v. 
 Wadsworth, 118 Ala. 488, 25 So. 503, 
 
 44: 766 
 
 790. The fact that directors and stock- 
 holders of a corporation vote to give a mort- 
 gage preferring themselves as creditors does 
 not render it invalid. Brown v. Grand Rap- 
 ids Parlor Furniture Co. 16 U. S. App. 221, 
 7 C. C. A. 225, 58 Fed. 286, 22: 817 
 
 791. The directors of an insolvent cor- 
 poration are, by virtue of their position, de- 
 barred from preferring debts of the corpora- 
 tion due to themselves. Olney v. Conanicut 
 Land Co. 16 R. I. 597, 18 Atl. 181, 5: 361 
 
 792. Directors of an insolvent manufac- 
 turing corporation may apply its assets to 
 their own unsecured claims against it, and 
 to its obligations upon which they are indi- 
 vidually liable, although the result is to 
 deprive persons who have contracted with 
 it of any remedy for breach of its contracts. 
 Nappanee Canning Co. v. Reid, Murdock & 
 Co. 159 Ind. 614, 64 N. E. 870, 59: 199 
 
 793. One of the governing body of an in- 
 solvent corporation cannot be made a pre- 
 ferred creditor for an unsecured debt. Corey 
 v. Wadsworth, 99 Ala. 68, 11 So. 350, 
 
 23: 618 
 
 794. A director cannot take advantage of 
 his superior means of information to secure 
 his debt against the corporation, either by 
 confession of judgment or otherwise. Hill 
 v. Pioneer Lumber Co. 113 N. C. 173, 18 
 S. E. 107, 21:560
 
 CORPORATIONS, VI, f, 2. 
 
 803 
 
 795. Directors of an insolvent corporation, 
 who vote themselves preferences over other 
 creditors, must show that all their secured 
 claims are honest and justly due them. 
 Schufeldt v. Smith, 131 Mo. 280, 31 S. W. 
 1039, 29: 830 
 
 7!)<1. Valid securities may be given to its 
 directors by a corporation, although it is in 
 fact insolvent, where it is a going concern 
 doing a large business, and the securities are 
 given for money loaned at the same time in 
 good faith to enable the company to carry 
 on the purposes of its incorporation. Illi- 
 nois Steel Co. v. O'Donnell, 156 111. 624, 41 
 N. E. 185, 31: 265 
 
 797. Subsequent insolvency of a corpora- 
 tion which has borrowed money when sol- 
 vent from officers or directors wiH^not affect 
 their rights of action to recover such loans 
 and enforce their securities. Id. 
 
 798. Judgment notes of a corporation, re- 
 newed after its insolvency, are in the same 
 position with respect to the right of the 
 corporation to make preferences as prior 
 judgment notes for which the renewals were 
 given. Id, 
 
 799. An insolvent corporation cannot 
 make a preference of a debt due from it on 
 which the officers and directors are bound 
 as sureties. National Wall Paper Co. v. 
 Columbia Nat. Bank, 63 Neb. 234, 88 N. W. 
 481, 56: 121 
 
 800. A preference by an insolvent corpora- 
 tion, of creditors whose debts have been 
 guaranteed by directors of the corporation, 
 is not invalid although made without the 
 requirement or knowledge of the creditors, 
 unless it otherwise appears that it was made 
 for the benefit of the directors or guaran- 
 tors, and not for that of the creditors 
 themselves. Blair v. Illinois Steel Co. 159 
 111. 350, 42 N. E. 895, 31:269 
 Of relative 'of directors or officers. 
 
 For Editorial Notes, see infra, VIII. 51. 
 
 801. Relationship of a creditor of an in- 
 solvent corporation to one or more of its 
 directors or officers will not prevent the 
 giving of a valid security as a preference to 
 such creditor. Illinois Steel Co. v. O'Don- 
 nell, 156 111. 624, 41 N. E. 185, 31: 265 
 
 802. A preference given by an insolvent 
 corporation to a creditor, having no indorse- 
 ment or guaranty from its directors, is not 
 unlawful though she is an aunt of three of 
 the directors. Blair v. Illinois Steel Co. 159 
 111. 350, 42 N. E. 895, 31 : 269 
 Of stockholders. 
 
 See also supra, 789, 790. 
 
 803. A stockholder of an insolvent corpo- 
 ration who has, in accordance with his stat- 
 utory liability, satisfied a portion of the 
 claim of a corporate creditor, cannot, upon 
 the basis of the amount paid, share in fu- 
 
 . ture dividends to creditors from the cor- 
 porate assets. Sacramento Bank v. Pacific 
 Bank, 124 Cal. 147, 56 Pac. 787, 45: 863 
 
 804. The capital of a corporation is not 
 held in trust for creditors, except in the 
 sense that it cannot be distributed among 
 stockholders without first providing for the 
 payment of corporate debts; and in this re- 
 
 spect there is no distinction between unpaid 
 capital and paid capital, between stock 
 subscriptions and any other assets of a cor- 
 poration. Hospes v. Northwestern Mfg. & 
 C. Co. 48 Minn. 174, 50 N. W. 1117, 15: 470 
 Of promoter. 
 
 805. A promoter of a corporation who has 
 not paid his stock subscription will not be 
 permitted to take an assignment of a claim 
 for improvements made on the corporate 
 property, so as to enforce the same in pri- 
 ority to valid mortgages on such property. 
 Hooper v. Central Trust Co. 81 Md. 559, 32 
 Atl. 505, 29: 262 
 For wages. 
 
 Priorities in Funds in Receiver's Hands, see 
 
 Receivers, 88-93. 
 See also supra, 559. 
 
 806. A lawyer employed by a railroad 
 company on a yearly salary payable month- 
 ly is not a laborer or employee within the 
 meaning of those terms in a statute giving 
 a preference to the payment of wages or 
 salaries of such, persons out of the assets of 
 insolvent corporations. Latta v. Lonsdale, 
 47 C. C. A. 1, 107 Fed. 585, 52: 479 
 
 807. Compensation for the services of an 
 attorney at law is not included in the 
 "wages or salaries to clerks, servants, or 
 employees," which are entitled to preference 
 in payment from the assets of an insolvent 
 corporation, under Md. Code, art. 47, 15. 
 Lewis v. Fisher, 80 Md. 139, 30 Atl. 608, 
 
 26: 278 
 
 808. A "superintendent" of a natural-gas 
 company, who is not a general manager, or 
 a general agent, or an officer of the com- 
 pany, but whose principal duties are to su- 
 perintend the construction of trenches and 
 the laying of gas pipes, is a laborer within 
 the meaning of that term as used in El- 
 liott's (Ind.) Supp. 605, giving a prefer- 
 ence to laborers' claims for wages against 
 corporations. Pendergast v. Yandes, 124 
 Ind. 159, 24 N. E. 724, 8: 849 
 
 809. An insurance adjuster, or a person 
 rendering services of a higher degree than 
 a clerk, is not included among the "clerks, 
 servants, and employees" of an insurance 
 company, to whom the statutes give a pref- 
 erence in distribution of the company's as- 
 sets when it is insolvent. Boston & A. R. 
 Co. v. Mercantile Trust & D. Co. 82 Md. 
 535, 34 Atl. 778, . 38: 97 
 
 810. A preference of claims of clerks, serv- 
 ants, and employees of an insolvent corpo- 
 ration, does not extend to a trust fund de- 
 voted to a special purpose, as in case of a 
 deposit for the benefit of policy holders of 
 an insurance company. Id. 
 
 811. A person employed at a salary of 
 $100 per month by a mowing machine com- 
 pany to go from place to place and fix and 
 set up machines and unpack and repack 
 them when necessary, as well as to sell or 
 solicit sales, is an employee within the 
 meaning of N. Y. Laws 1885, chap. 376, 
 giving a preference to claims of wages of 
 "employees, operatives, and laborers" of 
 corporations. Palmer v. Van Santvoord, 153 
 N. Y. 612, 47 N. E. 915, 38: 402
 
 804 
 
 CORPORATIONS, VII. a. 
 
 Of corporate creditors over those of pre- 
 ceding partnership. 
 
 812. Debts of the partnership must be 
 postponed to those contracted by the cor- 
 poration after its organization, where a 
 corporation is organized to continue the 
 business of a partnership whose assets are 
 transferred to it upon its undertaking to 
 pay the partnership debts, and the corpora- 
 tion becomes insolvent. Lamkin v. Bald- 
 win & L. Mfg. Co. 72 Conn. 57, 43 Atl. 593 
 1042, 44: 786 
 
 813. Taxes due by a partnership whose 
 business a corporation is organized to con- 
 tinue, which receives the partnership assets 
 upon undertaking to pay its liabilities, 
 are not, in case the corporation becomes 
 insolvent, entitled to preference out of as- 
 sets in the hands of its receiver, where the 
 statute gives such preference to taxes as- 
 sessed against the insolvent debtor. Id. 
 
 VII. Foreign Corporations, 
 a. In General. 
 
 Right of, as to Name, see supra, 45-49. 
 Property Rights of Alien Corporation, see 
 
 Aliens, 21, 22. 
 Attachment against, see Attachment, 18, 19. 
 Attachment of Nonresident's Shares of 
 
 Stock, see Attachment, 15; Levy and 
 
 Seizure, 17. 
 Attachment of Wages Due from, see Levy 
 
 and Seizure, I. 
 Foreign Loan Association, see Building and 
 
 Loan Associations, VIII. 
 State Regulation of, see Carriers, 1016. 
 Regulations Interfering with Commerce, see 
 
 Commerce, 29. 
 As to Rights of Generally, see Conflict of 
 
 Laws, I. d. 
 Conflict of Laws as to Insolvency of, see 
 
 Conflict of Laws, I. f. 
 Conflict of Laws as to Usury by Foreign 
 
 Loan Association, see Conflict of Laws, 
 
 56-60. 
 
 Conflict of Laws as to Contracts with For- 
 eign Insurance Company, see Conflict 
 
 of Laws, I. b, 3. 
 Law Governing Real Estate Mortgage by, 
 
 see Conflict of Laws, 50. 
 Stipulation that Contract Is a Foreign 
 
 One, see Conflict of Laws, 26. 
 Unlawful Combination by, see Conspiracy, 
 
 200. 
 Due Process as to, see Constitutional Law, 
 
 639. 
 Impairing Obligation of Contract with, see 
 
 Constitutional Law, 1162. 
 Defense for Breach of Agreement to Em- 
 ploy Agent in State, see Contracts, 733. 
 Lien Acquired on Debts Due, by Foreign 
 
 Creditors' Bill against, see Creditors' 
 
 Bill, 25. 
 
 Embezzlement by Agent of, see Embezzle- 
 ment, 4. 
 Power of Eminent Domain, see Eminent 
 
 Domain, 12-15. 
 
 I Estoppel of, to Dispute Validity of Trust, 
 see Estoppel, 237. 
 
 Conclusiveness against, of Debtor's Dis- 
 charge in Insolvency, see Insolvency, 30. 
 
 Foreign Insurance Company, see Insurance, 
 I. b. 
 
 Right of Foreign Insurance Company to 
 Subrogation, see Insurance, 1252. 
 
 Interest on Unpaid License Fees, see In- 
 terest, 6. 
 
 License Tax on Sales by Agents. of, see Com- 
 merce, 148-151, 164. 
 
 Taxation of, see Taxes, 33-35, 57, 68, 69, 
 144, 160, 161, 170, 175, 177, 194, 195, 
 213, 215, 217, 396, 436, 440, 441. 
 
 Tax on Gift to, see Taxes, 627, 628. 
 
 Question for Jury as to Validity of Defense 
 of Incorporation in Other State, see 
 Trial, 502. 
 
 See also supra, 62, 90, 105, 227, 472. 678. 
 
 For Editorial Notes, see infra, VIII. 
 52-58. 
 
 814. A foreign corporation acting in ex- 
 cess of its conferred authority may be ques- 
 tioned as to its authority only by the state. 
 Myatt v. Ponca City Land & I. Co. 14 
 Okla. 189, 78 Pac. 185, 68: 810 
 
 815. A state statute granting powers and 
 privileges to corporations must, in the ab- 
 sence of plain indications to the contrary, 
 be held to apply only to corporations cre- 
 ated by the state and over which it has the 
 power of visitation and control. Re Prime's 
 Estate, 136 N. Y. 347, 32 N. E. 1091, 
 
 18: 713 
 
 816. Restrictions on the contracts or busi- 
 ness of foreign corporations cannot be up- 
 held to the extent of altering or amending 
 or repealing their charters under the laws 
 of other states. Johnson v. Goodyear Min. 
 Co. 127 Cal. 4, 59 Pac. 304, 47: 338 
 
 817. A foreign corporation will not be 
 held void as an evasion of the laws of the 
 state in which all the corporators reside and 
 in which is the principal place of business of 
 the company, where there was no fraud or 
 evasion of the law of the state of incorpora- 
 tion, and the certificate of incorporation 
 was granted by the secretary of state with 
 knowledge of the facts. Demarest v. Grant, 
 128 N. Y. 205, 28 N. E. 645, 13: 854 
 
 818. The provision for service of process 
 on foreign insurance companies, made by 
 Va. act of assembly May 18, 1887. by re- 
 quiring the appointment of an attorney or 
 agent to acknowledge service or on whom 
 it may be made, does not deprive the cor- 
 poration of the right to plead a want of 
 jurisdiction on the ground that the sub- 
 ject-matter of the suit or the remedy 
 sought is beyond the reach of the court, or 
 not within the sovereign power of the 
 state from which the court derives its au- 
 thority. Taylor v. Mutual Reserve Fund 
 L. Asso. 97 Va. 60, 33 S. E. 385, 45: 021 
 Limited partnerships. 
 
 819. Partnership associations organized 
 under Pa. act June 2, 1874, which have the 
 powers in substance of corporations, are 
 regarded in New Jersey, when doing busi- 
 ness there, as corporations subject to cor-
 
 CORPORATIONS, VII. a. 
 
 805 
 
 poration taxes. State, Tidewater Pipe Co. 
 Prosecutor, v. State Bd. of Assessors (N. J. 
 Sup.) 57 X. J. L. 516, 31 Atl. 220, 27: 684 
 Interstate companies. 
 
 820. A foreign insurance company is not 
 made a corporation of the District of Co- 
 lumbia by having an agency and doing busi- 
 ness in the District, in compliance with the 
 act of Congress of 1887, chap. 46, 4, which 
 subjects it to process when served on the 
 agent. Clark v. Mutual Reserve Fund L. 
 Asso. 14 App. D. C. 154, 43: 390 
 
 821. Neb. Const, art. 11, 8, denying the 
 right of eminent domain to a railroad cor- 
 poration organized under the laws of an- 
 other state or of the United States, until 
 it has become a body corporate under the 
 laws of Nebraska, does not prohibit exist- 
 ing railroad companies, one of which is a 
 domestic corporation, from forming a new 
 corporation by consolidation, pursuant to 
 the laws of the state, and thereby becoming 
 a domestic corporation. State ex rel. Leese 
 v. Chicago, B. & Q. R. Co. 25 Neb. 156, 41 
 N. W. 125, 2: 564 
 
 822. A corporation consolidated under the 
 provisions of Neb. Comp. Stat. 1887, chap. 
 16, 114, by the union of a corporation op- 
 erating a railroad from a point within the 
 state on the Missouri river, and another 
 corporation organized under the laws of 
 Illinois and of Iowa, operating a railroad 
 from a point on the Missouri river directly 
 opposite the terminus of the other road, to 
 Chicago, is not a foreign corporation. Id. 
 
 823. One state cannot, by a mere legis- 
 lative declaration, make all corporations 
 created by charter or the laws of other 
 states domestic corporations of such state; 
 at least, it cannot, by such declaration, de- 
 prive the foreign corporation of its right to 
 resort to the Federal courts in cases where 
 such right is conferred by the Constitution 
 and laws of the United States. Rece v. 
 Newport News & M. V. Co. 32 W. Va. 164, 
 6 S. E. 212, 3: 572 
 
 824. While a corporation may be char- 
 tered by the same name by two states, 
 clothed with the same capacities and 
 powers, and intended to accomplish the 
 same objects, and be exercising the same 
 powers and duties in both states, yet it will, 
 in law, be two distinct corporations, one 
 in each state, with only such corporate 
 powers in each state as are conferred by its 
 creation in that state. Id. 
 
 825. Two states cannot by joint action 
 create a corporation which will be regarded 
 as a single corporate entity, and for, juris- 
 dictional purposes a citizen of each state 
 which joined in creating it. Missouri P. R. 
 Co. v. Meeh, 69 Fed. 753, 32 U. S. App. 691, 
 16 C. C. A. 510, 30: 250 
 
 826. An interstate corporation having but 
 one board of directors formed by process of 
 consolidation or otherwise acts in each of 
 such states as a domestic, and not as a for- 
 eign, corporation. Id. 
 
 827. The result of creation by one state 
 of a corporation of a given name, and the 
 declaration of the legislature of an adjoin- 
 ing state that the same legal entity shall 
 
 be or become a corporation of that state, 
 and be entitled to exercise within its bor- 
 ders all of its corporate functions by the 
 same board of directors, is not to create a 
 single corporation, but two corporations of 
 the same name having a different paternity. 
 
 Id. 
 
 Property rights. 
 
 For Editorial Notes, see infra, VIII. 52, 
 55. 
 
 828. The state only can question the right 
 of foreign corporations to hold lands in ex- 
 cess of the amount limited by statute. 
 American Mortg. Co. v. Tennille, 87 Ga. 28, 
 13 S. E. 161, 12: 529 
 
 829. A foreign cerporation owning all the 
 stock of a domestic corporation, where the 
 statutes allow its stock to be held by other 
 corporations, does not thereby "acquire or 
 hold" the real estate of the domestic cor- 
 poration so as to violate the Pennsylvania 
 act of April 26, 1855, against acquiring or 
 holding real estate "directly in the corpo- 
 rate name, or by or through any trustee or 
 other device whatsoever, unless specially au- 
 thorized," under penalty of escheat. Com. 
 ex rel. Attorney General v. New York, L. E. 
 & W. R. Co. 132 Pa. 591, 19 Atl. 291, 
 
 7: 634 
 
 830. A simple bequest of money to be 
 paid to a foreign corporation is valid, even 
 if the law of the state forbids the execu- 
 tion of such a -trust as that for which the 
 corporation is created in the state where 
 the will is made. Presbyterian General As- 
 sembly v. Guthrie, 86 Va. 125, 10 S. E. 318, 
 
 6: 321 
 
 Liability of members. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 I. d, 2, b. 
 
 Conclusiveness of Judgment as to, see Judg- 
 ment, 285. 
 
 See also supra, 592. 
 
 For Editorial Notes, see infra, VIII. 43. 
 
 831. Members of a company incorporated 
 in another state, who organize and choose 
 directors in Florida and undertake to carry 
 on the corporate business in that state with- 
 out becoming incorporated therein are liable 
 as partners in the business. Taylor v. Bran- 
 ham, 35 Fla. 297, 17 So. 552, " 39: 362 
 
 832. A corporation created under the laws 
 of another jurisdiction cannot exercise cor- 
 porate functions in Florida without be- 
 coming incorporated under its laws, and its 
 liabilities contracted there while unincor- 
 porated therein rest upon its members or 
 stockholders in the jurisdiction as partners. 
 
 Id. 
 
 Restrictions by law of domicil. 
 See also infra, 874. 
 For Editorial Notes, see infra, VIII. 52. 
 
 833. A corporation is subject to the laws 
 of the state or sovereignty under and by 
 virtue of which it has been created; and 
 these laws have a paramount influence over 
 its corporate powers where it undertakes to 
 exercise them. American Waterworks Co. 
 v. Farmers' Loan & T. Co. 20 Colo. 203. 37 
 Pac. 269, 25: 338 
 
 834. The charter alone of a foreign cor- 
 poration, and not the general legislation of
 
 806 
 
 CORPORATIONS, VII. b. 
 
 the state in which it was created, will have 
 effect to limit its powers outside of that 
 state. Warren v. First Naif. Bank, 149 111. 
 9, 38 N. E. 122, 25: 746 
 
 835. An officer of a foreign corporation 
 cannot use its name to prosecute a writ of 
 error against the objection of a receiver who 
 has been appointed in the state where it 
 was created, with an injunction upon the 
 officers from continuing the business or 
 using the name of the corporation for any 
 purpose. American Waterworks Co. v. 
 Farmers' Loan & T. Co. 20 Colo. 203, 37 Pac. 
 269, 25: 338 
 
 836. The power of a corporation created 
 by another state to deal in the purchase 
 and sale of real estate cannot be questioned 
 by a party dealing with it, on the ground 
 that such dealing is in excess of the powers 
 granted to it by the laws under which it is 
 incorporated. Lancaster v. Amsterdam Im- 
 prov. Co. 140 N. Y. 576, 35 N. E. 964, 
 
 24: 322 
 
 837. The right of a de facto corporation 
 to transact business under a franchise which 
 another state has attempted to confer can- 
 not be questioned by individuals. Id. 
 
 838. It is indispensable that a corpora- 
 tion seeking to invoke the doctrine of com- 
 ity must first be possessed of some right, 
 power, or privilege in the country of its 
 domicil; and unless it has both existence 
 and some right or power there, it cannot be 
 awarded any in a foreign state. Myatt v. 
 Ponca City'Land & I. Co. 14 Okla. 189, 78 
 Pac. 185, 68: 810 
 
 839. A foreign corporation organized in 
 Kansas for the sole purpose of buying and 
 selling real estate in the territory of Okla- 
 homa, and having no power to carry on 
 any business in the state of its creation, 
 cannot enforce its right to carry on business 
 in the territory, under the doctrine of 
 comity. Id. 
 
 b. Doing Businaes Within State. 
 
 Recovery Back of License Fee Paid for 
 Privilege, see Assumpsit, 64. 
 
 Liability for False Statements in Certifi- 
 cates, see Fraud and Deceit, 62. 
 
 See also supra, 821. 
 
 840. A foreign corporation is subject to 
 the laws of a state in which it does busi- 
 ness, which prohibit garnishment or other 
 proceedings to defeat the exemption of 
 wages of a debtor on a contract to be per- 
 formed in that state. Singer Mfg. Co. v. 
 Fleming, 39 Neb. 679, 58 N. W. 226, 
 
 23: 210 
 
 841. A company organized to build and 
 operate an extension of a railroad system 
 into another state will be regarded as but 
 the instrument of such system to carry on 
 its business there, where the stock is all 
 placed in the names of employees of the old 
 corporation, the principal offices of the new 
 corporation are filled by oflicers of the old 
 one, the old corporation purchases bonds of 
 the new one to construct its road, and fur- 
 nishes the rolling stock, a traffic agreement 
 
 is made by which the new corporation is to 
 work for the old one for a long period of 
 time, the benefit of which is to pass with 
 sale or mortgage of the property of the old 
 one, and the operating divisions of the road 
 show a single system and management. 
 Buie v. Chicago, R. I. & P. R. Co. 95 Tex. 51, 
 65 S. W. 27, 55: 861 
 
 What is. 
 
 By Foreign Insurance Company, see Insur- 
 ance, 54-56. 
 See also Venue, 14, 16. 
 For Editorial Notes, see infra, VIII. 52. 
 
 842. A single transaction involving a pur- 
 chase of coal on credit, with si guaranty by 
 a third person, is held not to constitute 
 "transacting any business," within the 
 meaning of the New Jersey statute requir- 
 ing certain acts of foreign corporations "be- 
 fore transacting any business in the state." 
 Delaware & H. Canal Co. v. Mahlenbrock 
 (N. J. Err. & App.) 63 N. J. L. 281, 43 
 Atl. 978, 45: 538 
 
 843. A sale of coal made on an order and 
 guaranty sent by mail from one state to 
 another is not within the New Jersey cor- 
 poration act of 1896, 97, restricting the 
 business of foreign corporations in that 
 state. Id. 
 
 844. A foreign corporation which simply 
 contracts to furnish milling machinery and 
 place it in a mill, without having any office 
 or agency in the state, is not carrying on 
 business in the state within the meaning of 
 a statutory prohibition of carrying on busi- 
 ness. Milan Mill. & Mfg. Co. v. Gorton, 93 
 Tenn. 590, 27 S. W. 971, 26: 135 
 
 845. The taking of a single mortgage by a 
 foreign corporation for past-due indebted- 
 ness for goods sold at its domicil is not 
 doing business in the state within the mean- 
 ing of restrictions on business of foreign 
 corporations. Florsheim Bros. Dry-Goods 
 Co. v. Lester, 60 Ark. 120, 29 S. W. 34, 
 
 27: 505 
 
 846. The institution or prosecution of a 
 suit is not a "doing business" within the 
 meaning of laws prescribing conditions of 
 business by foreign corporations. St. Louis, 
 A. & T. R. Co. v. Philadelphia Fire Asso. 60 
 Ark. 325, 30 S. W. 350, 38- 83 
 
 847. A railroad company which organ- 
 izes a company to construct an extension of 
 its system into another state, and through 
 it operates such extension, will be regarded 
 as doing business in the latter state, so as 
 to be liable to suit there, on causes of ac- 
 tion arising out of the state, by service of 
 process upon the officers of the new com- 
 pany. Buie v. Chicago, R. I. & P. R. Co. 95 
 Tex'. 51, 65 S. W. 27, 55: 861 
 Right to do business; conditions as to. 
 First Raising Question as to, on Appeal, see 
 
 Appeal and Error, 620. 
 
 Bond Insuring Corporations against Man- 
 ager's Dishonesty, see Bonds, 33. 
 
 By Foreign Loan Association, see Building 
 and Loan Associations, 86. 
 
 Conllict of Laws as to, see Conflict of Laws, 
 157-159. 
 
 Self -Executing Provision as to, see Consti- 
 tutional Law, 89.
 
 CORPORATIONS, VII. b. 
 
 807 
 
 Equal Protection and Privileges as to, see 
 Constitutional Law, 368, 374-376. 
 
 Estoppel to Insist on Conditions, see Estop- 
 pel, 29. 
 
 Presumption as to, see Evidence, 412. 
 
 Foreign Insurance Company, see Insurance, 
 34-53. 
 
 Effect of Failure to File Charter on Run- 
 ning of Limitations, see Limitation of 
 Actions, 172. 
 
 Compellng Grant of License, see Mandamus, 
 43, 44. 
 
 Allegations as to, see Pleading, 429, 595, 
 596. 
 
 Tax on Right to do Business, see Taxes, 177. 
 
 See also supra, 134, 837, 839, 846, 847; infra, 
 861-863. 
 
 For Editorial Notes, see infra, VIII. 52, 
 54, 58. 
 
 848. A foreign corporation can transact 
 any lawful business in New York state 
 which a nonresident natural person can do. 
 Lancaster v. Amsterdam Improv. Co. 140 
 N. Y. 576, 35 N. E. 964, 24: 3*2 
 
 849. A foreign corporation incorporated 
 for the purpose of dealing in the purchase 
 and sale of real property is not prevented 
 by the statutes or public policy of the state 
 of New York from transacting such business 
 in that state. Id. 
 
 850. The exemption of a previously char- 
 tered railroad company from a statutory 
 provision respecting the sale and effect of 
 tickets does not extend to a foreign cor- 
 poration subsequently created which leases 
 the road of the former. Robinson v. South- 
 ern P. Co. 105 Cal. 526, 38 Pac. 94, 722, 
 
 28: 773 
 
 851. The law of comity does not require 
 that a mercantile corporation organized un- 
 der the laws of another state shall be al- 
 lowed to do business in Texas, as the re- 
 peal in 1885 of a statute granting the privi- 
 lege of organized mercantile corporations 
 is a direct prohibition against the operation 
 of such corporations in the state. Empire 
 Mills v. Alston Grocery Co. (Tex. App.) 15 
 S. W. 505, 12: 366 
 
 852. That a foreign corporation doing 
 business in the state has power, under its 
 charter, to relinquish the transaction of a 
 branch of its business, does not authorize 
 it to enter into a trust combination, or sell 
 property required for the transaction of its 
 business in violation of the local laws, or 
 deprive the local courts of the power to see 
 that the business transacted in the state 
 shall not be disposed of in such a way as 
 to violate the local statutes. Harming v. 
 American Glucose Co. 182 111. 551, 55 N. E. 
 577, 64: 738 
 
 853. Foreign corporations, upon comply- 
 ing with the conditions required by W. Va. 
 Code, chap. 54, 30, have tne same rights, 
 powers, and privileges respecting their con- 
 tracts and remedies, if not otherwise re- 
 pugnant to tne policy of the state, as do- 
 mestic corporations of like character, 
 whether, under the general law of comity, 
 they would have had such rights, powers, 
 and privileges or not; but they can exercise 
 no greater powers in this state than its do- 
 
 mestic corporations. Floyd v. National 
 Loan & Invest. Co. 49 W. Va. 327, 38 S. E. 
 653, 54: 536 
 
 854. A certificate of the proper officer that 
 a foreign corporation has complied with the 
 requirements of the statute necessary to 
 entitle it to do business in the state is suf- 
 ficient to establish prima facie the authority 
 of the corporation to transact such business. 
 Washington National Bldg. L. & I. Asso. 
 v. Stanley, 38 Or. 319, 63 Pac. 489, 58: 816 
 
 855. Railroad corporations are not within 
 the contemplation of Id. Rev. Stat. 2653, 
 requiring foreign corporations doing busi- 
 ness in the state to designate an agent upon 
 whom process may be served. Boyer v. 
 Northern P. R. Co. 8 Idaho, 74, 66 Pac. 
 826, 70: 691 
 Validity of contracts of unauthorized com- 
 pany. 
 
 By Foreign Insurance Company, see Insur- 
 ance, 57-61. 
 
 856. Imposing a penalty on the officers, 
 agents, and stockholders of a foreign cor- 
 poration for doing business in the state 
 without filing a certificate, does not render 
 void a contract by the corporation to manu- 
 facture articles at its domicil and deliver 
 them to the purchaser in the state imposing 
 the penalty. Kindel v. Beck & P. Litho- 
 graphing Co. 19 Colo. 310, 35 Pac. 538, 
 
 24: 311 
 
 857. A provision of a statute imposing a 
 penalty "for every day that business is done 
 by a foreign corporation, without register- 
 ing," as required by law, does not of itself 
 make void contracts made by such corpora- 
 tion while unregistered. Edison General 
 Electric Co. v. Canadian P. Nav. Co. 8 
 Wash. 370, 36 Pac. 260, 24: 315 
 
 858. A contract for the loan of money by 
 a foreign corporation which has not paid the 
 license tax required by Id. Rev. Stat. jj 
 1644, of all persons engaged in that busi- 
 ness, is not void, although the statute 
 makes the loan a misdemeanor and provides 
 for suit to recover the tax, with damages, 
 since it is essentially a revenue law, and tne 
 business itself is not prohibited alto- 
 gether. Vermont Loan & T. Co. v. Hoffman, 
 5 Idaho, 376, 49 Pac. 314, 37: 509 
 
 859. A contract of a foreign corporation, 
 if not contrary to public policy, is not in- 
 valid because the corporation has not com- 
 plied with R. I. Gen. La-ws, chap. 253, 
 36-41, requiring it to appoint a resident of 
 the state as its attorney but not declaring 
 that such contract shall be void, while an- 
 other statute expressly provides that in case 
 of a foreign insurance company the contract 
 shall be valid. Garratt Ford Co. v. Vermont 
 Mfg. Co. 20 R. I. 187, 37 Atl. 948, 38: 545 
 
 860. A foreign corporation coming into 
 West Virginia to transact business must 
 conform to the law of the state, if there 
 be any, regulating similar corporations or- 
 ganized under the laws of that state; and 
 its contract, although in terms solvable in 
 the foreign state in which such corporation 
 has its domicil, must be such a contract as 
 a similar domestic corporation is authorized 
 to make, or the courts of this state cannot
 
 808 
 
 CORPORATIONS, VII. c, d. 
 
 enforce, or permit the enforcement of, its 
 performance. Floyd v. National Loan & 
 Invest. Co. 49 W. Va. 327, 38 S. E. 653, 
 
 54: 536 
 
 c. Actions by or against. 
 
 See also supra, 725. 
 By. 
 
 Comity in Permitting Suit, see Conflict of 
 Laws, 156-162. 
 
 Jurisdiction of Action by, see Courts, 69. 
 
 By Foreign Insurance Company, see Insur- 
 ance, 58-60. 
 
 Removal of, see Removal of Causes, 11-17. 
 
 For Editorial Notes, see infra, VIII. 
 52, 58. 
 
 861. The failure of a foreign corporation 
 to comply with the conditions of the right 
 to do business in a state will not preclude 
 an action by it, or by an insurance com- 
 pany subrogated to its rights, for negli- 
 gent injuries to its property within the 
 state. St. Louis, A. & T. R. Co. v. Philadel- 
 phia Fire Asso. 60 Ark. 325, 30 S. W. 350, 
 
 28: 83 
 
 862. An action by a foreign corporation 
 which had not, at the time of commencing 
 it, complied with the statutory require- 
 ments to enable it to do business in the 
 state, will not be dismissed on motion, if 
 at the time of the motion it has so com- 
 plied, under a statute providing that foreign 
 corporations which have not complied with 
 the requirements cannot "maintain" any 
 suit or action in the state. Carson-Rand Co. 
 v. Stern, 129 Mo. 381, 31 S. W. 772, 
 
 32: 420 
 
 863. The mere collection of a debt by a 
 foreign corporation after the passage of an 
 act imposing certain conditions upon its 
 right to do business is not within the pro- 
 hibition of the statute,' where the debt was 
 due on a contract made before the act was 
 passed. Pioneer Sav. & L. Co. v. Cannon, 
 96 Tenn. 599, 36 S. W. 386, 33: 112 
 
 864. A foreign corporation will not be de- 
 nied recognition by the courts of a state 
 merely because composed exclusively of its 
 own citizens. Oakdale Mfg. Co. v. Garst, 
 18 R. I. 484, 28 Atl. 973, 23: 639 
 Against. 
 
 For Causing Death, Conflict of Laws as to, 
 see Conflict of Laws, 225. 
 
 Jurisdiction of Action, see Courts, I. b, 4. 
 
 Federal Jurisdiction, see Courts, 378-380. 
 
 Garnishment of, see Garnishment, 20-25, 42, 
 68-74, 84, 110, 112. 
 
 Jurisdiction to Render Judgment against, 
 see Judgment, 22, 28. 
 
 Setting Aside Judgment against, see Judg- 
 ment, 421. 
 
 Running of Limitations against, see Limita- 
 tion of Actions, 166-172. 
 
 Removal of, see Removal of Causes, 11-17. 
 
 Venue of Action, see Venue, 13-16. 
 
 Service of Process on Corporation, see Writ 
 and Process, II. b. 
 
 See also supra, 638, 847. 
 
 For Editorial Notes, see infra, VIII. 58. 
 
 865. A foreign corporation doing business 
 in the state does not acquire a fixed resi- 
 
 dence in the state, for the purpose of suing 
 and being sued, by designating an agent 
 upon whom process may be served as re- 
 quired by the provisions of Id. Rev. Stat. 
 2653. Boyer v. Northern P. R. Co. 8 
 Idaho, 74, 66 Pac. 826, 70: 691 
 
 866. A foreign corporation doing business 
 in the state, and having agents located 
 therein for this purpose, may be sued and 
 served, in the same manner as domestic 
 corporations, upon any transitory cause of 
 action, whether originating in the state or 
 otherwise; and it is immaterial whether the 
 plaintiff be a nonresident or a resident of 
 the state, provided the enforcement of the 
 cause of action would not be contrary to the 
 laws and policy of the state. Reeves v. 
 Southern R. Co. 121 Ga. 561, 49 S. E. 674, 
 
 70: 513 
 
 867. A foreign corporation actually doing 
 business within a state cannot avoid lia- 
 bility to be sued therein upon controversies 
 arising out of transactions performed there, 
 upon the ground that it has not consented 
 to be subject to the jurisdiction of the 
 courts, where the statutes provide that 
 transacting business within the state shall 
 make it subject to such jurisdiction. Abbe- 
 ville E. L. & P. Co. v. Western Electrical 
 Supply Co. 61 S. C. 361, 39 S. E. 559, 
 
 55: 146 
 
 868. A foreign corporation which has its 
 principal place of business and the bulk of 
 its property in a state with whose laws it 
 has complied for the purpose of obtaining 
 the orivilege of doing business there, which 
 subject it to the service of process there, 
 is subject to the jurisdiction of the courts 
 of that state in actions to collect debts due 
 from it either to foreign or domestic credit- 
 ors, so far as foreign creditors are per- 
 mitted to maintain actions in the state. 
 Goodwin v. Claytor, 137 N. C. 224, 49 S. E. 
 173, 67: 209 
 
 d. Winding-up; Insolvency. 
 
 Transmitting Funds to Foreign Receivers of 
 
 Loan Associations, see Building and 
 
 Loan Associations, 84. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 I. f. 
 
 Jurisdiction of, see Courts, 77. 
 Presumption as to Validity of Assignment, 
 
 see Evidence, 413. 
 Receiver of, see Receivers, VI. 
 See also supra, 725. 
 
 869. The invalidity of a resolution passed 
 at its domicil by a foreign corporation to 
 wind up its affairs will not entitle the courts 
 of a foreign state in which it is doing busi- 
 ness to decree its dissolution and appoint 
 a receiver, if its directors have submitted to 
 the jurisdiction so that relief may be afford- 
 ed by simply enjoining the execution of the 
 resolution. Republican Mountain Silver 
 Mines v. Brown, 19 U. S. App. 203, 7 C. C. 
 A. 412, 58 Fed. 644, 24: 776 
 
 870. The motives of the stockholders of a 
 corporation, resident at its domicil, in call- 
 ing a meeting to wind it up on such short 
 notice that the majority stockholders
 
 CORPORATIONS, VIII. (Ed. Notes.) 
 
 809 
 
 resident at its place of business cannot at- 
 tend the meeting will not cause equity to 
 interfere, if the proceeding is strictly ac- 
 cording to law and the foreign stockholders 
 might have appointed an agent to repre- 
 sent their interests. Id. 
 
 871. The provision of Laws 1890, chap. 
 564, 48, that no corporation shall make 
 any transfer or assignment to any person 
 whatever in contemplation of its insolvency, 
 and declaring every such assignment void, 
 refers solely to domestic corporations. Van- 
 derpoel v. Gorman, 140 N. Y. 563, 35 N. E. 
 932, 24: 548 
 
 872. A foreign corporation carrying on 
 business in New York may there make an 
 assignment for the benefit of its creditors 
 without preferences, in the absence of any 
 statute of the state of its creation prohibit- 
 ing such assignment, although the laws of 
 New York prohibit such an act on the part 
 of domestic corporations. Id. 
 
 873. The prohibition of the New York 
 statute against assignments by domestic 
 corporations of property in contemplation of 
 insolvency does not evince any public policy 
 of the state forbidding the exercise by a 
 foreign corporation having property in the 
 state of its inherent common-law right to 
 make such an assignment, especially where 
 the assignment is valid in the state of the 
 creation of the corporation, and provides for 
 an equal distribution of the property among 
 all of the creditors, in conformity with the 
 policy of New York regarding the distribu- 
 tion of the property of insolvent domestic 
 corporations. Id. 
 
 874. The New York statute prohibiting 
 assignments or transfers by insolvent cor- 
 porations has no extraterritorial force, and 
 does not affect the validity of an assign- 
 ment by an insolvent corporation, executed 
 in Ohio, as a transfer of a fund in Illinois. 
 Warren v. First Nat. Bank, 149 111. 9, 38 
 N. E. 122, 25: 746 
 
 VIII. Editorial Notes. 
 
 a. Nature; creation; jurisdiction and con- 
 trol. 
 
 Taxation of, see Taxes, VI. 10-17. 
 
 i. Generally. 
 
 Corporations classified. 9:33.* 
 
 Nature of public corporation owned by 
 state. 29:378. 
 
 Counties as quasi corporations. 1:757.* 
 
 Nature of incorporated institutions belong- 
 ing to the state. 29: 378. 
 
 Acts essential to creation of. 7:591.* 
 
 Existence; how shown. 13:370.* 
 
 Presumption as to incorporation. 22:276. 
 In civil cases. 22:276. 
 In criminal cases. 22:278. 
 
 Effect of subsequent incorporation to make 
 valid a gift to an unincor- 
 porated asociation. 14: 
 410. 
 
 Estoppel of person dealing with body as 
 corporation, to deny its 
 incorporation. 12:366.* 
 
 Estoppel of one corporation to deny the ex- 
 istence of other. 13:779. 
 
 Judicial notice in respect to. 4:36.* 
 
 De facto foreign corporation. 24:293. 
 
 Residence or citizenship of corporation for 
 purpose of Federal juris- 
 diction in state other than 
 that where created. 14: 
 184. 
 Adoption or new incorporation. 14: 
 
 185. 
 
 Consolidation with domestic corpora- 
 tion. 14:185. 
 Residence; an "inhabitant" where. 14: 
 
 185. 
 
 Where "found" under act of 1875. 14: 
 186. 
 
 As to Status of Corporations, Generally, see 
 infra, VIII. 2. 
 
 2. Status. 
 
 As persons, generally. 19:223. 
 
 As persons within 14th Amendment. 10: 
 129;* 14:585; 60:330. 
 
 As persons within the meaning of statutes. 
 19:225; 60:331. 
 
 As citizens within Federal Constitution. 
 14: 580; 60: 330. 
 
 As citizens for purposes of Federal jurisdic- 
 tion. 11:216.* 
 
 Residence or citizenship for purpose of Fed- 
 eral jurisdiction in state 
 other than that where cre- 
 ated. 14:184. 
 
 Consolidated interstate corporation as do- 
 mestic corporation of one 
 of the states. 15:82. 
 How far new corporation created. 15: 
 
 82. 
 Extent and limit of state authority. 
 
 15:83. 
 Privileges and obligations under state 
 
 statutes. 15:84. 
 Taxation. 15:85. 
 
 3. Jurisdiction and control over. 
 
 See also supra, VIII. 2. 
 
 Jurisdiction of Federal courts over corpora- 
 tions. 1:332.* 
 
 Equity jurisdiction over corporations. 2: 
 551;* 9:651.* 
 
 Removal of suits against corporations. 
 1:65.* 
 
 What service of process upon corporation is 
 sufficient to constitute due 
 process of law. 50:588. 
 
 Mandamus to compel acts by corporation. 
 
 12:180.* 
 
 To enforce provisions of by-laws of cor- 
 poration. 32:575. 
 
 Mandamus to enforce right to inspect books 
 of corporation. 45:457. 
 
 b. Consolidation. 
 
 4. Generally. 
 
 See also Railroads, III. 2. 
 
 English doctrine of amalgamation. 13:781.* 
 
 Suit to restrain. 2:594.* 
 
 Effect of. 3:435.* 
 
 New corporations created by. 2:564.*
 
 810 
 
 CORPORATIONS, VIII. (Ed. Notes.) 
 
 Rights of shareholder when consolidation 
 
 unauthorized. 4:365.* 
 
 Taxation of consolidated corporation, ex- 
 emption. 6:222.* 
 
 Consolidated interstate corporation as do- 
 mestic corporation of one 
 of the states. 15:82. 
 5. Right to consolidate. 
 Definition. 52:369. 
 
 Necessity of legislative sanction. 52:370. 
 In general. 52:370. 
 
 Requisite for each constituent. 52:371. 
 May be conditional. 52:372. 
 How expressed. 52:372. 
 
 In charter or prior general act. 
 
 52:372. 
 
 Statute antecedent to consolida- 
 tion. 52:373. 
 
 Ratification of unauthorized con- 
 solidation. 52:373. 
 
 Consolidation as affected by law. 52:373. 
 Organic. 52: 373. 
 Statutory. 52 : 374. 
 
 Permissive statutes. 52:374. 
 Restrictive statutes. 52:376. 
 Interpretation, application, and 
 
 construction. 52:377. 
 Common law. 52:380. 
 
 Necessity of stockholder's consent. 52:381. 
 In general. 52:381. 
 How given. 52:381. 
 Expressly. 52:381. 
 Implied. 52:382. 
 When dispensed with. 52:387. 
 Rights and remedies upon unauthorized con- 
 solidation. 52:387. 
 Public. 52:387. 
 Private. 52: 387. 
 
 The constituent corporations. 52: 
 
 388. 
 
 Stockholders. 52 : 388. 
 Subscribers to stock. 52:390. 
 Creditors, bondholders, and others. 
 
 52:390. 
 Authority of railroads to consolidate. 
 
 5:726.* 
 
 Restrictions on consolidation of parallel or 
 competing railroads. 45: 
 271. 
 6. Rights and liabilities of consolidated 
 
 corporation. 
 
 Succession to rights and obligations of con- 
 stituent corporations. 2: 
 565;* 3:747;* 5:726.* 
 
 Liability of a consolidated railroad com- 
 pany for the debts of its 
 predecessor. 23:231. 
 Assumption of liability by contract. 
 
 23:232. 
 
 Statutory liability. 23:232. 
 Liens and priorities. 23:233. 
 Pleading and practice. 23:234. 
 
 c. Charters; franchises; by-laws. 
 
 7. Generally. 
 
 See also Railroads, III. 1. 
 
 Taxation of Franchise, see Taxes, VI. 
 
 10-17. 
 Corporate charters as contracts. 2:257;* 
 
 10:406.* 
 Corporate franchise as a public grant. 
 
 8:498.* 
 
 Conditions attached to grant of franchise. 
 9:34.* 
 
 Grants of corporate rights or privileges to 
 be construed strictly. 9: 
 34.* 
 
 Covenants in grant to corporation. 2:199.* 
 
 Restriction of power to terms of grant. 
 3:175.* 
 
 Extraterritorial effect of restriction in char- 
 ter as to rate of interest. 
 62:76. 
 
 Execution or judicial sale of corporate fran- 
 chise, or property neces- 
 sary to its enjoyment. 
 20:737. 
 
 8. Forfeiture; restraining exercise of cor- 
 porate franchise. 
 
 As to Dissolution, Generally, see infra, VHL 
 48-51. 
 
 Restraining exercise of corporate franchise. 
 9:273.* 
 
 Quo warranto for illegal exercise of corpo- 
 rate franchise. 7:319.* 
 
 Quo warranto against corporation for mak- 
 ing illegal charges in the 
 course of authorized busi- 
 ness. 63:761. 
 
 Forfeiture and dissolution for misuser of 
 franchise. 8:498.* 
 
 Proceedings to forfeit franchise. 9:273.* 
 
 How forfeiture of charter or franchise de- 
 clared. 2:256;* 9:35.* 
 
 For what causes charter may be forfeited. 
 9:37.* 
 
 Proceedings against corporation to forfeit 
 franchise for misuser or 
 nonuser. 3:510.* 
 
 Migration of, as ground for forfeiting cor- 
 porate charter. 24:462. 
 
 How and in what proceedings forfeiture of 
 charter taken advantage 
 of. 9:37.* 
 
 9. By-laws. 
 
 Effect of, as notice. 25:48. 
 
 As to members of the corporation. 25: 
 
 48. 
 
 As to lien on stock. 25:48. 
 As to public generally. 25:49. 
 
 Whether third persons dealing with agents 
 of private corporations 
 are charged with knowl- 
 edge of by-laws of corpo- 
 ration. 10:355.* 
 
 Restricting transfer of stock. 27:271. 
 
 Effect of, on contract. 1:482.* 
 
 Regulation by by-laws of elections by pri- 
 vate corporations. 18: 
 582. 
 
 Mandamus to enforce provision of by-laws 
 of corporation. 32:575. 
 
 Rights of members of benefit society as af- 
 fected by by-laws. 5:96.* 
 
 Conflict between by-laws and certificate or 
 policy of mutual benefit 
 society or insurance com- 
 pany. 47:681. 
 
 d. Powers and liabilities, 
 i. Rights and powers, generally. 
 
 10. Generally. 
 
 Of Consolidated Corporation, see supra, 
 VLLL 6.
 
 CORPORATIONS. VIII. (Ed. Notes.) 
 
 811 
 
 Strict construction of corporate powers. 1: 
 458.* 
 
 Common-law powers; auxiliary transaction. 
 6:661;* 11:845.* 
 
 Incidental powers. 11:845.* 
 
 Restriction of powers. 3:174;* 5:100* 7: 
 605.* 
 
 Rights subject to police power. 9:35.* 
 
 Formation of trusts by illegal combination; 
 monopolies. 8:500;* 9: 
 37.* 
 
 Corporation as trustee. 2:418;* 11:715.* 
 
 Legal powers and privileges of surety and 
 trust companies. 48: 587. 
 
 Power to take property by will and to hold 
 property. 2:387.* 
 
 Libel or slander of a corporation. 52:525. 
 
 Power to sell property. 6:678.* * 
 
 Power to borrow money. 6:661;* 11:845.* 
 
 Effect of statute forbidding corporation to 
 plead usury. 62:79. 
 
 Power to mortgage property. 6:565,* 661;* 
 11:846.* 
 
 Power to issue nesotiable securities. 11: 
 
 846.* 
 
 Protection of bona fide holders. 11: 
 846.* 
 
 Acts ultra vires. 2: 420;* 6: 290.* 
 
 Estoppel to set up plea of ultra vires. 1: 
 285;* 11:847;* 12:168;* 
 20:765. 
 
 Right of private persons to contest the 
 power of a corporation to 
 take or hold property. 
 32:293. 
 
 State alone can question right of corpora- 
 tion in possession. 32: 
 293. 
 
 The inability of the corporation to hold the 
 property does not give im- 
 munity to wrongdoers. 
 32:295. 
 
 Right of persons contracting with corpora- 
 tion. 32:295. 
 
 Defective organization and forfeiture. 32: 
 295. 
 
 Suits by the corporation. 32:296. 
 
 Specific performance. 32:296. 
 
 Property acquired by will. 32:297. 
 
 2. Contracts. 
 
 n. Generally. 
 
 See also supra, VTTI. 10. 
 
 As to Power of Officers or Agent to Con- 
 tract, see infra, VIII. 15. 
 
 Power to contract. 1:285;* 6:290.* 
 
 Contracts against public policy. 8:497.* 
 
 Manner of executing corporate mortgage. 
 6:565.* 
 
 Execution of deed by corporation. 12:588.* 
 
 Seal as affecting negotiability of bill or note 
 of corporation. 35:606. 
 
 12. Between corporations having common 
 directors or officers. 
 
 Validity in general. 33:788. 
 
 Ratification. 33:790. 
 
 When one company controls the other. 33: 
 791. 
 
 Lack of consideration; transactions out of 
 the usual course of busi- 
 ness. 33:793. 
 
 Actual fraud or unfair advantage to direct- 
 ors. 33:794. 
 Presumption as to unfairness. 33:796. 
 
 3. Liability of corporation. 
 
 13. Generally. 
 
 Of Consolidated Corporation, see supra, VlLL. 
 6. 
 
 Taxation of Corporations, see Taxes, VI. 
 10-17. 
 
 For torts. 10:129.* 
 
 For breach of duty imposed by law. 4:299.* 
 
 For felonies or public wrongs. 4:299.* 
 
 For acts of officers. 12:714;* 13:193.* 
 
 Of railroad, for the acts of a receiver. 1: 
 179.* 
 
 On contracts of promoters. 26:544. 
 
 Of corporation for charitable purposes for 
 act of servant. 23:200. 
 
 Liabilities of incorporated institutions be- 
 longing to state. 29:383. 
 
 Power of railroad company to devest itself 
 of its duties or responsi- 
 bilities by lease. 4:135.* 
 
 For malicious prosecution. 14:791. 
 
 For fraud or forgery of officers in issue of 
 stock. 19:331. 
 
 For acts of independent contractor in re- 
 spect of matters incident 
 to the exercise of corpo- 
 rate franchise. 66:136. 
 
 At whose instance judgment against corpo- 
 ration may be set aside. 
 54:763. 
 
 Injunction against execution sale of prop- 
 erty of quasi public cor- 
 poration. 30:104. 
 
 e. Officers and agents. 
 
 14. Generally. 
 
 Directors, trustees, and officers of incorpo- 
 rated institutions belong- 
 ing to state. 29:384. 
 
 Distinction between servants and agents of. 
 2:192.* 
 
 Application of rule of respondeat superior 
 to corporation. 1:607.* 
 
 How directors chosen. 12:784.* 
 
 Directors de facto. 15:418. 
 Who are. 15:418. 
 Eligibility. 15:419. 
 
 Termination of right to act as direct- 
 ors. 15:419. 
 
 15. Rights and powers of. 
 
 Power of agents to indorse negotiable paper. 
 27:401. 
 
 Bound to notice by-laws. 25:48. 
 
 Compensation for services of. 3:378.* 
 
 Right of officer of corporation to take ac- 
 knowledgment of instru- 
 ment in which corporation 
 interested. 33:337. 
 
 Contracts by agents. 12:715.* 
 
 Time for which contracts of employment 
 may be made on behalf of 
 corporation by its officers, 
 directors, and agents. 
 49:471. 
 
 Contracts of permanent employment. 
 49:47L
 
 812 
 
 CORPORATIONS, VIII. (Ed. Notes.) 
 
 Other contracts of employment. 49: 
 
 472. 
 
 Power of directors to sell, property of cor- 
 poration. 6:678.* 
 
 Right of directors, when creditors of cor- 
 poration, to enforce stock- 
 holders' liability to credit- 
 ors. 50:273. 
 
 1 6. Of president and vice president. 
 As to contracts, generally. 14:356. 
 
 Effect of express provisions to limit 
 authority. 14: 357. 
 
 As to borrowing money. 14:357. 
 
 As to drawing or paying checks. 14: 
 357. 
 
 To transfer negotiable papers. 14:358. 
 
 Employment of agents. 14:358. 
 
 As to transfers of property. 14:358. 
 
 As to mortgages. 14:359. 
 
 As to admissions and representations. 
 14:359. 
 
 As to settlement or surrender of claims. 
 14:359. 
 
 As to litigation and employment of at- 
 torneys. 14:360. 
 
 When vice president may exercise author- 
 ity of president: 14:360. 
 17. Duties and personal liabilities of. 
 Garnishment of officer or agent of, by cred- 
 itor of corporation. 36: 
 561. 
 
 Personal liability of officers on note made 
 for corporation. 19: 676. 
 
 When promise is by the company and 
 signature is official. 19: 
 676. 
 
 When a promise is, "we," or "I," and 
 the signature is in the 
 name of the company by 
 its officers. 19: 676. 
 
 When the promise is official and the 
 signature is individual. 
 19:677, 680. 
 
 Notes in the form of duebills. 19:677. 
 
 Notes promising, "on behalf of," or "on 
 account of." 19:677. 
 
 Indorsements made officially. 19:678. 
 
 When the promise is individual and the 
 signature is official. 19: 
 679. 
 
 Notes made under seal of the corpora- 
 tion. 19:679. 
 
 When the promise is made officially and 
 the signature is official. 
 19:680. 
 
 Notes where the consideration is ex- 
 pressed on the face of the 
 paper. 19:681. 
 
 Notes having company name thereon. 
 19:681. 
 
 Where the official designation is altered. 
 
 19: 681. 
 
 Personal liability of officers of incorporated 
 institutions belonging to 
 state. 29:385. 
 
 Personal liability of officers for torts or 
 negligence of corporation. 
 28:421. 
 
 In general. 28:421. 
 
 Fraud. 28:421. 
 
 Conversion. 28:422. 
 
 Trespass. 28:422.. 
 
 Infringement. 28 : 423. 
 Of patent. 28:423. 
 Of trademark. 28:426. 
 Of copyright. 28:426. 
 Injury to persons generally. 28:428. 
 Injury to employee. 28:427. 
 Libel. 26:781. 
 Negligence. 28 : 427. 
 18. Of directors. 
 
 Personal liability of directors on their con- 
 tract. 3:397.* 
 Personal responsibility to creditors. 4: 
 
 747.*" 
 Liability to the corporation. 55:751. 
 
 Standard or degree of care. 55: 752. 
 Relation of directors to corpora- 
 tion generally. 55: 652. 
 General principles. 55:653. 
 Gross or ordinary negligence. 55: 
 
 654. 
 Standard of reasonable care. 55: 
 
 655. 
 Nonfeasance and misfeasance. 55: 
 
 657. 
 Questions of law or fact; burden. 
 
 55: 758. 
 Liability for acts in excess of their 
 
 power. 55 : 758. 
 In general. 55:758. 
 As affected by mistake. 55:759. 
 Effect of assent or acquiescence. 
 
 55:761. 
 
 Liability for their own acts and omis- 
 sions with respect to mat- 
 ters within their author- 
 ity. 55: 761. 
 General rule. 55:761. 
 Specific application. 55:762. 
 
 Loans and investments. 55: 
 
 762. 
 
 Other transactions. 55:764. 
 Liability for misconduct of executive 
 officers and employees. 
 55:766. 
 
 Liability for acts and omissions of co- 
 directors. 55:771. 
 In general. 55:771. 
 Nonattendance at meetings. 55: 
 
 771. 
 
 Duty to protest and oppose. 55: 772. 
 Partial participation. 55:772. 
 Acts and omissions of committees. 
 
 55:773. 
 Liability as affected by compensation. 
 
 55:773. 
 Measure of damages; items of loss. 
 
 55:774. 
 
 Duty of directors of savings banks. 2:535.* 
 Liability for fraud and breaches of trust by. 
 
 2:534.* 
 
 Trust relation of directors in stock corpora- 
 tions. 2:534;* 4:746.* 
 Care required of bank directors. 15:305. 
 When corporations must bring suit to en- 
 force liability of directors. 
 9:653.* 
 When stockholders may sue. 9:654,* 
 
 655.* 
 
 Request of corporation as condi- 
 tion. 9:654.* 
 
 Necessity of joining corporation as 
 a party. 9:656.*
 
 CORPORATIONS, VIII. (Ed. Notes.) 
 
 813 
 
 f. Capital; stock and stockholders, 
 i. In general. 
 
 19. Generally. 
 
 Taxation of Capital Stook of Corporation, 
 
 see Taxes, VI. 13. 
 Issuance of corporate stock not subject to 
 
 mandate. 3: 265.* 
 Rights of owner to stolen certificates. 
 
 13:605. 
 Distinction between capital stock and 
 
 shares. 2:796.* 
 Issuance of paid-up stock certificates. 6: 
 
 677.* 
 
 Issue of watered or fictitious stock. 6:677.* 
 Situs of corporate stock for purposes of ad- 
 ministration. 24:687. 
 Attachment of shares of stock- in foreign 
 
 corporation. 55 : 796. 
 
 Certificates of stock as negotiable instru- 
 ments. 12:781.* 
 Donation to corporation of shares of its own 
 
 stock. 18:255. 
 20. Bonus stock; forged or fraudulent 
 
 issue. 
 
 Bonus stock of corporations. 38:490. 
 General principle. 38:490. 
 Constitutional and statutory provisions. 
 
 38:.491. 
 Effect of recitals and nominal payment. 
 
 38:492. 
 Stock as bonus to purchasers of bonds. 
 
 38:493. 
 Mere acceptance of shares; surrender; 
 
 cancelation. 38:494. 
 Rights of creditors. 38:494. 
 Bona fide purchasers. 38:494. 
 Liability of corporation for fraud or forgery 
 of its officers in the issue 
 of stock. 19:331. 
 Who entitled to protection as bona fiae 
 
 purchasers. 19:332. 
 Forged transfers. 19:333. 
 21. Ownership of stock; who may be 
 
 stockholders. 
 
 Charter restrictions on eligibility to become 
 a shareholder in a corpora- 
 tion. 46: 618. 
 Sole ownership of stock of a corporation. 
 
 19: 684. 
 
 Right of nonresidents to become stockhold- 
 ers. 24: 252. 
 
 Power of corporation to deal in the stock 
 of other corporations, or 
 in its own. IS: 252. 
 Power to deal in the skares of other 
 
 corporations. 18: 252. 
 Taking stock in payment of debts. 
 
 18: 253. 
 Power to deal in its own stock. 18: 
 
 254. 
 
 May take its own stock in satis- 
 faction of debts. 18: 255. 
 Donations. 18: 255. 
 Right of, to purchase its own shares of 
 
 stock. 61:621. 
 In the absence of statutory authority. 
 
 61: 621. 
 
 In general. 61: 621. 
 Taking shares in payment of in- 
 debtedness due corpora- 
 tion. 61: 629. 
 
 Statutory grant of power. 61: 630. 
 Statutes forbidding purchase. 61: 631. 
 Rights of creditors. 61: 632. 
 In general. 61: 632. 
 Creditors who are entitled to pro- 
 tection. 61: 632. 
 
 What constitutes a purchase within 
 meaning of rule forbidding 
 same. 61:633. 
 
 22. Increase of capital stock. 
 Generally. 9: 631.* 
 
 Power to increase capital stock of corpora- 
 tions. 38: 616. 
 In general. 38: 616. 
 Power of directors. 38: 617. 
 Constitutional and statutory provi- 
 sions. 38: 617. 
 
 Right as between owner of capital and in- 
 come, to increased stock. 
 16: 461. 
 
 23. Forfeiture of corporate stock. 
 Power to forfeit. 27: 305. 
 Validity of exercise of power. 27: 307. 
 In general. 27 : 307. 
 Necessity of notice. 27: 310. 
 Sufficiency of notice. 27 : 310. 
 Redemption or other remedy of stockholder. 
 
 27: 311. 
 Effect of forfeiture on personal liability of 
 
 stockholder. 27: 314. 
 As to unpaid assessments. 27: 314. 
 As to creditors. 27: 317. 
 Miscellaneous. 27: 321. 
 24. Preferred, guaranteed, and interest- 
 bearing stock. 
 Power to issue. 27: 136. 
 
 In the first instance. 27: 136. 
 
 Given by change of charter or articles. 
 
 27: 138. 
 
 Estoppel to deny validity. 27: 139. 
 Nature of interest created by. 27: 140. 
 Rights and preferences as to assets. 27: 
 
 142. 
 Rights and preferences in dividends. 27: 
 
 143. 
 
 In general. 27: 143. 
 Payment out of capital. 27: 144: 
 Payment when capital is impaired or 
 
 debts unpaid. 27: 144. 
 Guaranteed dividends. 27: 145. 
 Preference over common stock. 27: 146. 
 Accumulations and arrears. 27: 147. 
 Remedy to obtain or protect dividends. 
 
 27: 148. 
 Guaranty of dividends by outside party. 
 
 27: 149. 
 
 Interest-bearing stock. 27: 149. 
 Special stock. 27: 151. 
 Reduction of shares. 27: 151. 
 Miscellaneous matters. 27: 153. 
 
 2. Subscriptions. 
 
 25. Generally. 
 
 As to liability upon, see infra, VIII. 35- 
 
 43 
 
 Validity of. 4: 508.* 
 Validity of conditional subscriptions. 4: 
 
 509.* 
 Agreement to subscribe as a subscription. 
 
 4:507.* 
 Agreements between proposed subscribers 
 
 4: 508.*
 
 814 
 
 CORPORATIONS, VIII. (Ed. Notes.) 
 
 Whether joint or several. 22: 81. 
 
 Subscriber bound to know effect of contract. 
 3: 796.* 
 
 Release from subscription. 7: 706.* 
 
 Simulated subscriptions a fraud in law. 
 3: 37.* 
 
 Right to vary terms of subscription by pa- 
 rol. 3-: 798.* 
 
 When statute of limitations begins to run 
 on subscription to corpo- 
 rate stock. 7: 660.* 
 
 26. Withdrawal of subscription. 
 
 General rule. 33: 593. 
 
 After organization of corporation. 33: 593. 
 
 Rule in case of preliminary subscriptions. 
 33: 595. 
 
 Cases holding that subscriptions cannot be 
 withdrawn. 33: 595. 
 
 Cases permitting withdrawal. 33: 596. 
 
 Illegal contract. 33: 597. 
 
 Agreement to subscribe. 33: 597. 
 
 Statutory rules. 33:597. 
 
 Effect of death of subscriber. 33: 597. 
 
 27. Rescission for fraud or misrepresen- 
 tation. 
 
 Right to and manner of relief. 33: 721. 
 
 Estoppel to rescind. 33: 722. 
 
 No relief against equally innocent persons. 
 33: 725. 
 
 Effect of insolvency or winding-up proceed- 
 ings. 33: 727. 
 
 Must be fraud of corporation. 33: 728. 
 
 What fraud will authorize rescission. 33: 
 729. 
 
 3. Transfer; sale. 
 
 28. Generally. 
 
 As Affecting Right to Dividends, see infra, 
 
 VIII. 34. 
 Effect of, upon Stockholder's Liability, see 
 
 infra, VIII. 38. 
 Specific performance of contract to sell 
 
 stock. 50: 501. 
 
 Implied warranty on sale of stock. 53: 153. 
 Validity of executory contracts for sale of 
 
 corporate stock. 3: 784.* 
 Sufficiency of transfer. 12: 781.* 
 Forged transfers. 19: 331. 
 Bequest 01 corporate stock. 7: 391.* 
 29. Duty of corporation with respect to 
 
 transfer of stock held in trust. 
 Generally. 15: G43. 
 
 What amounts to notice of trust. 15: 643. 
 The English rule. 15: 644. 
 Xotice from circumstances. 15: 645. 
 Application of the rules. 15:645. 
 Enforcement of liability. 15: 646. 
 30. Restrictions on right to sell. 
 By by-law. 27: 271. 
 
 In general. 27: 271. 
 Of national banks. 27: 273. 
 By articles of association. 27: 273. 
 Exercise of power to approve or disapprove. 
 
 27: 274. 
 Specific performance of contract for sale of 
 
 corporate stock. 12: 776.* 
 31. Pledge. 
 Liability of Pledge as Shareholder, see in- 
 
 ' fra. VTIT. 3f>. 
 Effect of pledgee's failure to transfer shares 
 
 on company's books. 12: 
 
 781.* 
 
 Pledgee's title. 12: 782.* 
 
 Right to vote stock. 12: 783.* 
 
 Right to dividends on pledged stock. 12: 
 
 783;* 45: 394. 
 
 Validity of pledge or other transfer of stock 
 of corporation when not 
 made in books of com- 
 pany, as against attach- 
 ments, executions, or sub- 
 sequent transfers. 67 : 656. 
 
 Registry not necessary in absence of 
 statute or by-law. 67: 
 660. 
 
 Statutes requiring transfer on books. 
 67: 664. 
 
 By-law requiring transfer on books. 
 67: 672. 
 
 Provision of certificate requiring trans- 
 fer on books. 67: 675. 
 
 Requirement of record with county 
 clerk. 67 : 675. 
 
 Effect of effort to secure transfer. 67: 
 676. 
 
 Effect of notice to purchaser or creditor. 
 67: 677. 
 
 Persons not entitled to benefit of stat- 
 utes. 67 : 680. 
 
 Estoppel of pledgee. 67 : 682. 
 
 Statutory recognition of transfers of 
 
 certificates. 67 : 683. 
 
 Implied authority of pledgee to sell corpo- 
 rate stoc^. 43 : 742. 
 
 What sales of corporate stock by pledgee 
 amount to conversion. 43: 
 739. 
 
 4. Rights of shareholders. 
 
 32. Generally. 
 
 With Respect to Consolidation, see supra, 
 
 VIII. 5. 
 
 Whether corporation or stockholder real 
 party in interest by whom 
 action must be brought. 
 64: 609. 
 
 When shareholder may maintain suit for 
 
 protection of corporate 
 
 property and rights. 4: 
 
 746.* 
 
 33- Right of stockholder to inspect books 
 
 of corporation. 
 At common law. 45: 446. 
 Under statutes. 45: 446. 
 Extent of the right generally. 45: 448. 
 At common law. 45: 448. 
 Under statutes. 45: 448. 
 Assistance of attorney or expert. 
 
 45 : 449. 
 Making memoranda and taking copies. 
 
 45: 449. 
 
 Time of inspection. 45: 450. 
 The books and papers inspected. 45: 
 
 431. 
 
 Effect of business convenience or neces- 
 sity on. 45: 453. 
 To what corporations applicable. 45: 
 
 454. 
 
 Domestic corporations. 45: 454. 
 Foreign corporations. 45: 454. 
 Insolvent corporations. 45: 456.
 
 CORPORATIONS, VIII. (Ed. Notes.) 
 
 815 
 
 The remedy. 45: 457. 
 
 By mandamus. 45: 457. 
 By imposition of a penalty. 45 : 457. 
 By action for damages. 45: 458. 
 Other remedies. <5: 458. 
 Sufficiency of demand and refusal to sustain 
 
 remedy. 45: 458. 
 Effect of purpose of stockholder on remedy. 
 
 45: 461. 
 
 Generally. 45: 461. 
 For hostile purposes. 45: 463. 
 To obtain grounds for litigation. 45: 
 
 465. 
 To obtain knowledge of condition of 
 
 company. 45: 467. 
 Rule that there must be a specific dispute. 
 
 45:468. 
 
 Matters of procedure. 45: 469. . 
 in mandamus. 45: 469. * 
 
 In other proceedings. 45: 471. 
 34. Dividends. 
 Guaranty of dividends on corporate stock. 
 
 2: 183.* 
 
 Pledgee's right to dividends. 12: 783.* 
 Right to increased stock and stock dividends 
 
 as between owner of capi- 
 tal and income. 16: 461. 
 The English rule. 16: 41. 
 How far such rule followed in this 
 
 country. 16: 462. 
 Departures from the Eg-lish rule. 16: 
 
 463. 
 
 Right to subscribe for stack. 16: 464. 
 Right to dividends on transfer of stock. 
 
 45: 392. 
 Undeclared dividends pass with the 
 
 stock. 45 : 393. 
 
 Rule applies between testator and lega- 
 tee. 45: 393. 
 Between life tenant and remainderman. 
 
 45:394. 
 
 Between pledgeor and pledgee. 45: 394. 
 Sale for future delivery. 45 : 394. 
 Special contracts. 45: 3&5. 
 Peculiar circumstances under which 
 
 dividend was declared. 
 
 45: 395. 
 
 Apportionment. 45: 396. 
 Right to deal with dividend separately. 
 
 45: 396. 
 Right to demand order for dividend as 
 
 condition of performing 
 
 contract to purchase. 45: 
 
 396. 
 Right as between corporation and 
 
 transferee. 45: 397. 
 
 5. Liabilities of shareholders. 
 
 35. Generally. 
 
 Self-executing constitutional provision as 
 to. 16:285. 
 
 Liability upon subscription. 3: 797.* 
 
 Effect of secret arrangement between corpo- 
 ration and shareholder. 
 3: 797. 
 
 Liability of stockholders of insolvent insur- 
 ance company. 38: 110. 
 
 Who are laborers, servants, or employees 
 under statute making 
 stockholders individually 
 liable. 18:308. 
 
 Liability of member of corporation for libel 
 published by corporation. 
 26: 781. 
 
 Right of set-off in bankruptcy against un- 
 paid shares of corporate 
 stock. 55: 47. 
 
 Release of. 7: 706.* 
 
 36. Calls; assessments. 
 
 Liability to assessment; calls. 4: 232.* 
 
 Contingent liability on call. 58: 85. 
 
 Effect of assessment on stockholders made 
 under order of court in 
 another state as res judi- 
 cata. 34: 694. 
 
 Right to make successive assessments on 
 stocKholders to pay debts. 
 66: 971. 
 
 37. Assessments on paid-up stock. 
 
 General rule. 45: 648. 
 
 The question of assent. 45: 648. 
 
 Under state statutes. 45: 648. 
 
 Under charter provisions. 45: 651. 
 
 Assessments under by-laws. 45: 651. 
 
 Assessment by resolution. 45: 652. 
 
 Voluntary assessments. 45: 652. 
 
 Nonassessable stock; estoppel. 45: 653. 
 
 Injunction restraining. 45: 653. 
 
 38. Effect of transfer of shares upon lia- 
 bility for unpaid subscription. 
 
 In general. 47 : 246. 
 
 Statutes continuing liability. 47: 256. 
 
 Transfer prohibited. 47 : 256. 
 
 Generally transfer releases subscriber. 47: 
 
 257. 
 
 Under statutory provisions. 47: 257. 
 Corporation scheme contemplates re- 
 lease. 47 : 258. 
 
 Transfer must be perfected. 47: 260. 
 Transfer must be bona fide. 47: 262. 
 After insolvency of corporation. 47: 
 262. 
 
 Transfer to or release by corporation. 47: 
 262. 
 
 Rights of creditors. 47: 264. 
 
 Time of transfer. 47 : 264. 
 
 39. Liability of pledgee of stock as a 
 shareholder. 
 
 In general. 36: 139. 
 
 Dummy holder for pledgee's benefit. 36: 
 140. 
 
 Payment of debt or retransfer. 36: 140. 
 
 Taking stock from corporation itself. 36: 
 141. 
 
 40. Payment for stock by transfer of 
 property as protection against lia- 
 bility to creditors of corporation. 
 
 Preliminary statement. 42: 593. 
 
 The English law. 42: 593. 
 
 Exceptional American cases. 42: 594. 
 
 Subscription contracts. 42: 597. 
 
 Purchase of property with stock. 42: 612. 
 
 Provisions imposing liability. 42: 617. 
 
 Effect of creditor's knowledge of facts. 42: 
 619. 
 
 Rights of transferee. 42: 620. 
 
 41. Partnership liability of stockholders 
 in case of defective or illegal incor- 
 poration. 
 
 Corporations not authorized by law. 17: 
 550. 
 
 Effect of incorporation out of the state. 
 17 : 550.
 
 816 
 
 CORPORATIONS, VIII. (Ed. Notes.) 
 
 Fraudulent corporations. 17: 550. 
 Corporations de facto. 17: 551. 
 Defectively organized companies. 17 : 551. 
 Statutory as distinguished from partner- 
 ship liability. 17: 554. 
 Intent to incorporate. 17: 554. 
 Subsequent loss of corporate character. 17: 
 
 554. 
 
 Partnership inter sese. 17: 554. 
 42. Who may enforce; remedy. 
 Right of directors, when creditors, to en- 
 force. 50: 273. 
 
 Right of creditor of corporation to proceed 
 against stockholder. 2 : 
 270.* 
 
 Equitable remedy to subject to judgment 
 
 against corporation debt 
 
 due it for unpaid stock. 
 
 63: 698. 
 
 Set-off between corporation and stockholder. 
 
 23:316. 
 
 Allowance of attorney's fees in suit to en- 
 force stockholder's liabil- 
 ity. 54: 825. 
 
 Contingency of liability of stockholder as 
 affecting time for presen- 
 tation of claim against 
 his estate. 58: 85. 
 
 Conflict of laws as to limitation of actions 
 against stockholders. 48: 
 637. 
 Law governing liability of and remedy 
 
 against. 6: 676.* 
 43. Right to enforce outside of state of 
 
 incorporation. 
 In general. 34: 737. 
 
 In action by corporation or its representa- 
 tive. 34: 738. 
 In action by creditor of corporation. 34: 
 
 741. 
 Remedy according to law of forum. 34: 
 
 741. 
 For unpaid subscriptions to stock. 34: 
 
 742. 
 
 In general. 34: 742. 
 By creditor's bill. 34: 743. 
 For statutory liability after stock is 
 
 fully paid for. 34: 747. 
 In general. 34: 747. 
 Nature of the liability. 34: 750. 
 Liability absolute or distinct from 
 statutory remedy. 34: 753. 
 Constitutional liability. 34: 755. 
 Exclusiveness of statutory remedy 
 provided in state of incor- 
 poration. 34: 755. 
 
 . Conditions prescribed by statutes 
 in state of incorporation. 
 34: 757. 
 
 Action at law. 34: 758. 
 Suit in equity. 34: 759. 
 Remedies in Federal courts. 34: 761. 
 In general. 34: 761. 
 In equity. 34: 761. 
 At law. 34: 762. 
 
 Contribution between stockholders of for- 
 eign corporations. 34: 
 763. 
 
 g. Stockholders' meetings; voting. 
 
 44. Generally. 
 
 Who entitled to vote stock. 12: 783.* 
 
 Vote on pledged stock. 12: 783.* 
 
 Power to vote on stock held by joint owners. 
 
 15: 665. 
 
 Voting trusts of corporate stock. 15: 683. 
 Regulation by by-laws of elections by pri- 
 vate corporations. 18: 582. 
 As to right to vote. 18: 583. 
 As to proxies. 18: 584. 
 45. What constitutes a quorum for meet- 
 ing of stockholders. 
 Where number indefinite. 21: 174. 
 Where number is definite. 21: 175. 
 Where the "stock" votes. 21: 175. 
 Presumption as to quorum. 21 : 175. 
 Modifications by statute or by-law. 21: 
 
 175. 
 46. Right to vote by proxy in private 
 
 corporation. 
 
 At common law. 29: 844. 
 Under statutes and by-laws. 29: 845. 
 Statutes. 29 : 845. 
 By-laws. 18: 584; 29: 845. 
 Form of proxy. 29: 846. 
 When and for what purpose a proxy may be 
 
 used. 29: 847. 
 
 Rejection of proxy by inspectors. 29: 848. 
 Revocation of proxy. 29: 848. 
 Directors voting by proxy. 29: 848. 
 Miscellaneous matters. 29: 849. 
 
 h. Promoters. 
 
 47. Generally. 
 
 As to Payment for Stock by Transfer of 
 Property, see supra, VIII. 
 40. 
 Individual liability of corporators. 12: 
 
 366.* 
 Liability of corporators as partners. 11: 
 
 515.* 
 
 Partnership liability of stockholders in case 
 of defective or illegal in- 
 corporation. 17: 550. 
 
 The duties and liabilities of promoters to 
 the corporation and its 
 members. 25: 90. 
 The duty of the promoter. 25: 90. 
 Sales by promoter to corporation. 25: 
 
 90. 
 
 Commissions, profits on options, and 
 profits on property bought 
 for the corporation. 25: 
 92. 
 Liability to corporation. 25: 94. 
 
 Liability to subscribers. 25: 95. 
 Duty to bondholders. 25 : 99. 
 Character of promoter's liability. 25: 
 
 99. 
 
 Effect of promoter's fraud upon corpo- 
 ration's right against sub- 
 scriber. 25: 100. 
 Feigned subscriptions. 25: 101. 
 Waiver of fraud. 25: 102. 
 How suit should be brought. 25: 102. 
 Liability of corporations on contracts of 
 
 promoters. 26: 544. 
 Casas recognizing liability. 26: 544. 
 Modification of the doctrine of liability. 
 
 26: 545. 
 
 Denial of liability. 26: 545. 
 Statutory liability. 26: 546.
 
 CORPORATIONS, VIII. (Ed. Notes.) 
 
 817 
 
 Apparent exceptions to the rule. 26: 
 
 546. 
 
 Limits of the exception. 26: 546. 
 Services rendered after incorporation. 
 
 26: 547. 
 
 Ratification. 26: 548. 
 Means of ratification. 26: 548. 
 Adoption. 26: 549. 
 Receiving benefit. 26: 550. 
 Fraud. 26:551. 
 Becoming party. 26: 551. 
 Enforcing. 26: 551. 
 Question for jury. 26: 551. 
 Relations and rights of syndicate members. 
 "40:216. 
 
 i. Dissolution; winding-up. 
 i. In general. "% 
 
 48. Generally. 
 
 As to Forfeiture of Charter or Franchise, 
 see supra, VIII. 8. 
 
 As to Liability of Stockholders, see supra, 
 VIII. 35-43. 
 
 Equity jurisdiction as to. 9: 651.* 
 
 For what causes may corporation be dis- 
 solved. 9:33.* 
 
 What works a dissolution. 2: 549;* 8: 498,* 
 858;* 9: 33,* 274.* 
 
 Effect of insolvency to work a dissolution. 
 2: 256.* 
 
 Dissolution of benefit associations. 2: 550.* 
 
 Expiration of charter. 1: 781;* 9: 273.* 
 
 Continued existence of corporation till for- 
 feiture declared. 9: 274.* 
 
 Power to appoint receivers of corporations 
 when no other relief asked. 
 20: 210. 
 
 49. Period of existence of private corpo- 
 ration. 
 
 In general. 33: 576. 
 
 Charter limitations. 33: 576. 
 
 General statutes limiting existence. 33: 
 577. 
 
 Constitutions limiting existence. 33: 579. 
 
 Effect of expiration of time. 33: 579. 
 
 50. Effect of insolvency or dissolution. 
 
 Effect of appointment of receiver or as- 
 signee for creditors of a 
 corporation on compensa- 
 tion of officers, agents, or 
 employees for unexpired 
 term of employment. 51: 
 146. 
 
 Recovering for services and expenses under 
 a running contract with a 
 corporation ended by its 
 insolvency and dissolution. 
 69: 124. 
 
 Scope of note. 69: 124. 
 Breaches of contracts in general. 69: 
 
 125. 
 The measure of damages in such cases. 
 
 69: 126. 
 How corporations are dissolved. 69: 
 
 128. 
 When dissolution is not effected. 69: 
 
 129. 
 
 The earlier common-law doctrine con- 
 cerning the effect of dis- 
 solution. 69: 130. 
 L.R.A. Dig. 52. 
 
 Comment and criticism concerning it. 
 
 69: 132. 
 
 The trust fund, or "American," doc- 
 trine. 69: 134. 
 
 The effects of corporate dissolution ac- 
 cording to modern views. 
 69: 137. 
 
 Civil death. 69: 137. 
 Upon litigation. 69: 138. 
 Upon property and assets. 69: 
 
 139. 
 
 Upon debts and credits. 69: 141. 
 Upon contracts in general. 69: 
 
 142. 
 Upon employment contracts. 69: 
 
 144. 
 
 With officers. 69: 144. 
 With superintendents. 69: 145. 
 With agents. 69: 146. 
 With ordinary employees. 69: 
 
 150. 
 Remedies. 69: 151. 
 
 Abstract. 69: 151. 
 Concrete. 69: 152. 
 Construction and effect of statutes. 
 
 69: 153. 
 
 Conclusion. 69: 155. 
 
 Effect of adjudication of insolvency and of 
 proceedings for dissolution 
 of corporation upon its 
 rights of action. 15: 627. 
 At common law. 15: 627. 
 Under the statutes. 15: 628. 
 Effect and validity of statutes. 15: 
 629. 
 
 2. Disposition of property; preferences. 
 
 51. Generally. 
 
 Unpaid subscriptions as part of assets. 5: 
 
 650.* 
 
 Capital stock as a trust fund for payment 
 of debts. 5: 378,* 649;* 
 7; 707.* 
 
 Action of one stockholder or creditor in be- 
 half of others. 9: 273.* 
 What classes of employees are entitled to a 
 preference out of assets of 
 insolvent corporation. 18: 
 306. 
 Injunction against judgments confessed by, 
 
 30: 240. 
 
 Distribution of assets of insolvent insur- 
 ance company. 38: 97. 
 Preferences among creditors given by in- 
 solvent corporations. 22: 
 802. 
 
 Preferences prohibited. 22: 804. 
 Stockholders as preferred creditors. 22: 
 
 805. 
 
 Directors and officers as preferred cred- 
 itors. 22 : 806. 
 Preferences by legal proceedings. 22: 
 
 808. 
 
 Remedies. 22: 809. 
 English decisions. 22: 810. 
 
 j. Foreign corporations. 
 
 52. Generally. 
 
 As to Foreign Insurance Company, see In- 
 surance, IX. 3.
 
 818 
 
 CORPORATIONS, VIII. (Ed. Notes.) 
 
 Taxation of, see Taxes, VI. 10-17. 
 Service of Process upon, see Writ and Proc- 
 ess, IV. 6, 9. 
 
 Law of comity as to. 8: 2;M5;* 12: 366.* 
 Amenable to local law. 13: 584.* 
 Conditions imposed upon right to transact 
 business in state. 8: 236.* 
 Regulation of business of, by state. 9: 601.* 
 Recognition or exclusion of foreign corpora- 
 tions. 24: 289. 
 Right to sue. 24: 289. 
 Right of contract. 24: 290. 
 Ownership of property. 24: 291. 
 Power to act as trustee, administrator, 
 
 etc. 24:291. 
 
 Limitations by charter or statute of 
 state where incorporated. 
 24: 291. 
 Good faith of foreign corporation. 24: 
 
 291. 
 
 Statutory exclusion of, or restrictions 
 upon, foreign corporations. 
 24: 292. 
 De facto foreign corporations. 24: 
 
 293. 
 
 Designation of agent and place of busi- 
 ness. 24: 293. 
 License tax. 24: 293. 
 Conditions against invoking Federal 
 
 jurisdiction. 24: 294. 
 Remedies against. 24: 295. 
 What constitutes "doing business" as 
 prohibited by statute. 24: 
 295. 
 Estoppel to deny character or powers. 
 
 24:' 297. 
 
 Right of foreign corporation to plead stat- 
 ute of limitations. 18: 
 524. 
 
 Locality of jurisdiction of state court over 
 foreign corporations. 70: 
 691. 
 
 53. Exclusion of roreign corporation as 
 interference witfi interstate com- 
 merce. 
 
 Generally. 60: 677. 
 Telegraph companies. 24: 311. 
 Insurance companies. 24: 312. 
 Packet company. 24: 312. 
 Express companies. 24: 312. 
 Rnilroad companies. 24: 312. 
 Bridee company. 24: 313. 
 Trading companies. 24: 313. 
 Publishing companies. 24: 314. 
 Loaning companies. 24: 314. 
 54. Effect of noncompliance with statu- 
 tory conditions. 
 
 As to Foreign Insurance Company, see In- 
 surance, IX. 3. 
 
 Validity of contracts made by foreign cor- 
 porations which have not 
 complied with statutory 
 conditions of the right to 
 do business in a state. 
 24: 315. 
 
 Where a penalty is imposed. 24: 316. 
 Mere prohibition of business. 24: 318. 
 Contracts expressly declared void. 24: 
 
 320. 
 
 Effect of foreclosure. 24:320. 
 Estoppel. 24: 320. 
 
 Right of foreign corporation to set up non- 
 compliance with con- 
 ditions of doing business 
 in order to defeat recovery 
 against it. 25: 569. 
 55- Right of, to own real estate. 
 Generally. 24: 322. 
 
 Limitation by charter or laws of the state 
 of incorporation. 24: 324. 
 Railroads. 24: 326. 
 Telegraphs. 24: 327. 
 Interest in mines. 24: 327. 
 Exercise of eminent domain. 24: 327. 
 As to mortgages. 24: 328. 
 Enforcement of restrictions. 24: 329. 
 56. Service of process upon; garnishment 
 
 of. 
 
 What service of process upon is sufficient to 
 constitute due process of 
 law. 50: 589. 
 
 Who may be served with process in suit 
 against a foreign corpora- 
 tion. 23: 490. 
 
 Service on insurance commissioner for for- 
 eign company. 23: 499. 
 
 Garnishment of debt due from foreign cor- 
 poration in state where it 
 is engaged in business. 
 67:214. 
 
 57. Removal of cause. 
 As to Citizenship of Corporations General- 
 ly, see supra, VIII. 2. 
 Effect of stipulation against. 24: 294. 
 Suits removable by foreign corporation. 1 : 
 
 65;* 11: 568.* 
 
 Right to remove cause. 1 : 568.* 
 Effect of state legislation to prevent re- 
 moval of cause by. 3: 
 572.* 
 
 58. Right of nonresident to sue. 
 Generally. 70: 513. 
 
 The right of foreigners to sue. 70: 514. 
 Of natural persons. 70: 514. 
 Of foreign corporations. 70: 514. 
 Of one foreigner to sue another. 70: 
 
 517. 
 
 The right of foreign corporations to do busi- 
 ness in domestic states. 
 70: 519. 
 
 Public policy. 70: 521. 
 The liability of natural persons to suits in 
 
 foreign courts. 70: 522. 
 The liability of foreign corporations to suit. 
 
 70: 523. 
 At common law. 70: 523. 
 
 Earlier doctrine. 70: 523. 
 Modern view. 70: 523. 
 By statute. 70: 525. 
 The effect of entering a state by a foreign 
 
 corporation. 70: 525. 
 In general. 70: 525. 
 Submission to judicial jurisdiction. 70: 
 
 526 
 
 Tacitly. 70: 526. 
 Expressly. 70: 529. 
 
 Acquiring jurisdiction over foreign corpora- 
 tions. 70: 530. 
 
 When they remain abroad. 70: 530. 
 When found within the jurisdiction. 
 
 70: 530. 
 
 By service of process. 70: 532. 
 In general. 70: 532.
 
 CORPSE, I., II. a. 
 
 819 
 
 Upon officers casually present. 70: 
 
 532. 
 Upon resident representatives. 70: 
 
 533. 
 Upon persons specially designated. 
 
 70: 535. 
 
 After leaving the jurisdiction. 70: 535. 
 Service out of the jurisdiction. 70: 
 
 535. 
 
 By appearance and consent. 70: 536. 
 Judicial discretion to decline jurisdiction. 
 
 70: 538. 
 
 Generally. 70: 538. 
 
 In litigation over internal affairs of 
 foreign corporations. 70: 
 539. 
 In suits by citizens of the United 
 
 States. 70: 541. _ 
 Locus of the cause or subject of action. 70: 
 
 543. 
 
 In general. 70: 543. 
 Domestic. 70: 544. 
 Foreign. 70: 546. 
 
 Jurisdiction entertained. 70: 546. 
 Jurisdiction declined. 70: 548. 
 Actions arising upon foreign statutes. 
 70: 550. 
 
 CORPSE. 
 
 I. Municipal Regulations. 
 II. Private Rights. 
 
 a. In General. 
 
 b. Custody, Disposition, and Burial, 
 m. Editorial Notes. 
 
 Damaares in Respect to, see Damages, 573- 
 
 577. 
 Failure of Carrier to Forward, see Trial, 
 
 307. 
 
 I. Municipal Regulations. 
 
 Prohibiting Burial within City Limits, see 
 Municipal Corporations, 203, 210. 
 
 Burial permit. 
 
 1. The statutory duty of a health officer 
 to issue burial permits upon certain con- 
 ditions does not require the issuance of such 
 permits to bury in a cemetery the use of 
 which has been forbidden by the municipal- 
 ity. La Societa Italiana Di Mutua Bene- 
 ficienza v. San Francisco, 131 Cal. 169, 63 
 Pac. 174, 53: 382 
 Directing removal after burial. 
 
 Private Right of Removal, see also infra, 
 
 31-36. 
 For Editorial Notes, see infra, III. 
 
 2. The opening of a grave in a town ceme- 
 tery by order of the town officers, for the 
 purpose of removing a dead body from a lot 
 which has not been paid for to anothpr part 
 of the cemetery which is free, is within N. 
 C. Acts 1885. chap. 90, 1, making it a 
 felony for any person, without due process 
 of law or the consent of specified relatives 
 to open any grave and remove any dead 
 
 body therefrom. State v. McLean, 121 N. 
 C. 589, 28 S. E. 140, 42: 721 
 
 3. Municipal officers who direct the open- 
 ing of a grave in the town cemetery, and 
 the removal of a dead body therefrom to 
 another part of the cemetery, cannot escape 
 liability on the ground that they were 
 ignorant of the law and supposed that they 
 had the right to order such removal, under 
 IN. C. Acts 1885, chap. 90, 1, making it a 
 felony for any person, without due process 
 of law or the consent of specilied relatives, 
 to open any grave and remove a dead body 
 therefrom. Id. 
 
 4. The mayor and commissioners of a 
 town who direct the removal from a town 
 cemetery of bodies buried in certain lots 
 which have not been paid for, to the free 
 portion of the cemetery, within a specified 
 time unless the lots are paid for within 
 such time, cannot escape liability under N. 
 C. Acts 1885, chap. 90, 1, making it a 
 felony for any person, without due process 
 of law or the consent of specified relatives, 
 to opon any grave to remove a dead body 
 therefrom, on the ground that they are 
 acting in their official capacity. Id. 
 
 5. The mayor of a town who puts the 
 vote and declares the result on a resolution 
 that the secretary of the board of town 
 commissioners notify parties who have paid 
 nothing for burial lots in the town ceme- 
 tery that unless they pay within a specified 
 time the bodies buried in such lots will be 
 removed to the free part of the cemetery, 
 and who, on being asked as to the legal 
 right to remove such bodies, said, "The way 
 is open. Go ahead and remove them," is 
 liable under N. C. Code, 977, for counsel- 
 ing, procuring, and commanding an act 
 which, by N. C. Acts 1885, chap. 90, 1, is 
 made a felony. Id. 
 
 II. Private Rights. 
 a. In General. 
 
 Measure of Carrier's Liability for Failure 
 to Forward, see Damages, 240. 
 
 Autopsy. 
 
 For Editorial Notes, see infra, ITL 
 
 6. A coroner may lawfully order a post 
 mortem examination without the consent of 
 the family of the deceased, where death has 
 resulted from an injury which seems to him 
 insufficient alone to produce death. Young 
 v. College of Physicians & S. 81 Md. 358, 32 
 Atl. 177, 31:540 
 
 7. A post mortem examination made by 
 a medical examiner in the exercise of his 
 duty, when required by a coroner, does not 
 render him liable for imitilating the body 
 without the consent of the family of the de- 
 ceased, if the work was done with ordinary 
 decency and without wantonly disfiguring 
 the body. Id. 
 
 8. An action against a hospital for an au- 
 topsv performed upon the dead body of a 
 child without the consent of the father, who 
 was the natural guardian and who intrusted
 
 CORPSE, n. b. 
 
 the child to the hospital for treatment, does 
 not fail on the ground that there -is no right 
 of property in a dead body. Burney v. Chil- 
 dren's Hospital, 169 Mass. 57, 47 N. E. 401, 
 
 38: 413 
 
 Unauthorized sale of. 
 Attempt to Sell as a Misdemeanor, see 
 
 Criminal Law, 34. 
 Indictment for, see Indictment, etc., 49. 
 
 9. An unauthorized sale of the dead 
 body of a human being for gain and profit 
 is a common-law misdemeanor of high 
 grade and malum in se. Thompson v. 
 State, 105 Tenn. 177, 58 S. W. 213, 51 : 883 
 Mutilation of. 
 
 Damages for, see Damages, 573, 574. 
 Evidence as to, see Evidence, 1951. 
 Liability for Failure of Hospital to Deliver 
 Amputated Portions, see Hospitals, 7. 
 
 10. A right of action exists against one 
 who, on being granted permission to ex- 
 amine the stomach of a corpse, removes it 
 from the body, and refuses to return it, so 
 that the body has to be buried in a mutilat- 
 ed condition. Koerber v. Patek, 123 Wis. 
 453, 102 N. W. 40, 68: 956 
 
 11. The only child of a widow has a right 
 of action for wilful mutilation of her corpse. 
 
 Id. 
 
 12. For the unlawful mutilation of a dead 
 body an action for damages will lie in favor 
 of the widow of the aeceased. Larson v. 
 Chase, 47 Minn. 307, 50 N. W. 238, 14: 85 
 
 b. Custody, Disposition, and Burial. 
 
 Exemplary Damages for Interference with 
 
 Burial of, see Damages, 30. 
 Damages for Removing from Burial Lot, see 
 
 Damages, 415. 
 
 Replevin for, see Replevin, 16. 
 For Editorial Notes, see infra, III. 
 
 13. An unlawful and unwarranted inter- 
 ference with the exercise of right of burial 
 by the proper relatives is a tort which gives 
 them a cause of action against the wrong- 
 doer. Wright v. Hollywood Cemetery 
 Corp. 112 Ga. 884, 38 S. E. 94, 52: 621 
 
 14. Procuring at one's own expense the 
 return of a corpse which he had contracted 
 with the next of kin to keep safely until a 
 convenient time for burial, but which he had 
 negligently permitted to go into the posses- 
 sion of a third person, will not prevent a 
 recovery by the next of kin of such dam- 
 ages as they may have suffered by reason 
 of such negligence, unless they expressly 
 agreed that such return wotild be accepted 
 in full satisfaction of the cause of action 
 arising therefrom. Renihan v. Wright, 125 
 Ind. 536, 25 "N". E. 822, ' 9: 514 
 Who entitled to. 
 
 Parties to Action for Interference with 
 Ricrht of Burial, see Parties, 149. 
 
 15. The courts of Indiana possess the 
 power to enforce the ricrht of a father and 
 mother to the body of their deceased child. 
 and to protect them in the exercise of the 
 right of burial: and they also possess power 
 to assess such damages as may accrue to 
 the parents on account of being deprived of 
 
 such rights. Renihan v. Wright, 125 Ind. 
 536, 25 N. E. 822, 9: 514 
 
 16. A grandmother with whom a child 
 without living parents resided has the legal 
 right to cause the body of the child to be 
 buried in a lot where there is a right of 
 sepulture for the child, especially when she 
 acts with the participation of a minor 
 brother of the decedent, who is the nearest 
 of kin living or present at the place. 
 Wright v. Hollywood Cemetery Corp. 112 
 Ga. 884, 38 S. E. 94, 52: 621 
 
 17. The primary right to care for and 
 bury the body of a decedent rests with 
 the surviving spouse. Koerber v. Patek, 
 123 Wis. 453, 102 N. W. 40, 68": 956 
 
 18. The disposal of the body of a person 
 who has not made any testamentary pro- 
 vision therefor cannot be taken away from 
 his widow and given to a stranger to his 
 blood. O'Donnell v. Slack, 123 Cal. 285, 55 
 Pac. 906, 43:388 
 
 19. A widow has the right to control the 
 burial of her husband in preference to the 
 next of kin (here the father), and may re- 
 move the body from the place where it was 
 buried, without her consent, by the next of 
 kin. Hackett v. Hackett, 18 R. I. 155, 26 
 Atl. 42, 19:558 
 
 20. A widow having by statute the pri- 
 mary right to administer upon the estate 
 of her intestate husband has a right to 
 control the interment of his body, and a 
 waiver of the right to administer will not 
 include a waiver of such right of control, 
 unless it is made to do so expressly. Petti- 
 grew v. Pettigrew, 207 Pa. 313, 56 Atl. 
 878, 64: 179 
 
 21. The right to the possession of a dead 
 body for preservation and burial belongs, in 
 the absence of any testamentary disposition, 
 to the surviving husband or wife or next of 
 kin; and the right of the surviving wife, 
 if livin? with her husband at the time of 
 his death, is paramount to that of the next 
 of kin. Larson v. Chase, 47 Minn. 307, 50 
 N. W. 238, 14: 85 
 
 22. A legal right to bury a corpse, which 
 the courts will protect, vests in the nearest 
 relative of the decedent so situated as to be 
 able and willing to perform that duty. 
 Koerber v. Patek, 123 Wis. 453, 102 N. W. 
 40, 68: 956 
 
 23. The fact that a statutory provision 
 imposing, under penalty, the duty of bury- 
 ing a dead body upon the next of kin of 
 decedent, and giving him the right of pos- 
 session for that purpose, is found in the 
 penal code, does not prevent its having force 
 in a civil action to establish the rights of 
 such next of kin to possession of the body 
 for purposes of burial. Enos v. Snyder, 131 
 Cal. 68. 63 Pac. 170, 53:221 
 
 24. The rierht to the custody and to de- 
 fido upon the final place of burial of the 
 lifdv of a deceased unmarried person resides, 
 ordinarily, in his next of kin; and this right 
 will not be treated as having been waived 
 or relinquished, except upon clear and satis- 
 factory evidence of conduct indicative of a 
 free and voluntary intent and purpose to
 
 CORPSE, III. CORRUPTION. 
 
 821 
 
 that end. McEntee v. Bonacum, 66 Neb. 
 651. 92 N. W. 633, 60: 440 
 
 25. An executor or administrator as such 
 has no right to the possession of the body 
 of the testator or intestate for purposes of 
 burial. Enos v. Snyder, 131 Cal. 68, 63 
 Pac. 170, 53: 221 
 
 26. The right to the custody of a corpse, 
 and the right to superintend its burial, do 
 not belong to the executor or administrator, 
 but to the next of kin. Renihan v. Wright, 
 125 Ind. 536, 25 N. E. 822, 9: 514 
 
 27. Neither the court in probate nor the 
 personal representative has any right to the 
 body of a deceased person who has made no 
 testamentary provision on the subject, nor 
 any right to control the manner of dis- 
 posing of the remains, or to dictate the 
 place of interment. O'Donnell v. Slack, 123 
 Cal. 285, 55 Pac. 906, 43: 388 
 Person's own rights as to. 
 
 28. A person's expressed wish as to the 
 place of burial must be carried out as far 
 as possible. Thompson v. Deeds, 93 Iowa, 
 228, 61 N. W. 842, 35: 56 
 
 29. The direction of a person as to the 
 disposal of his body after death is en- 
 titled to respectful consideration when the 
 question comes before the court, whether it 
 is controlling or not. Pettigrew v. Petti- 
 grew, 207 Pa. 313, 56 Atl. 878, 64: 179 
 
 30. One cannot by will confer any rights 
 as to the disposition of his dead body. 
 Enos v. Snyder, 131 Cal. 68, 63 Pac. 170, 
 
 53:221 
 
 Right to remove after burial. 
 Removal by Municipal Order, see supra, 2^5. 
 Burden of Proving Intent on Prosecution 
 
 for Removal, see Evidence, 359. 
 For Editorial Notes, see infra, III. 
 
 31. There is no universal rule for gov- 
 erning the right to remove the remains of a 
 deceased person after interment, but each 
 case must be considered in equity on its 
 own merits, having due regard to the 
 interests of the public, the wishes of deced- 
 ent, and the rights and feelings of those 
 entitled to be heard by reason of relation- 
 ship or association. Pettigrew v. Pettigrew, 
 207 Pa. 313, 56 Atl. 878, 64: 179 
 
 32. A widow should be permitted to re- 
 move the body of her deceased husband 
 from the lot of his father, where she had 
 consented to its burial, in order to place it 
 upon a lot purchased by her for that pur- 
 pose beside his only child, who desired it 
 to be done, where the child and widow 
 could not, for lack of room, be buried 
 where the father was, and family hostility 
 would probably prevent such course if it 
 was physically possible. Id. 
 
 33. A widow's removal of her husband's 
 body from a cemetery lot owned by his 
 daughter, in which he was buried by his own 
 request, may be enjoined by the daughter if 
 there is no reason for the removal except 
 their disagreement respecting a monument 
 and the care of the grave. Thompson v. 
 Deeds, 93 Iowa, 228, 61 N. W. 842, 35: 56 
 
 34. The duty of an executor or adminis- 
 trator terminates with the first interment 
 of the body of the testator or intestate, 
 
 and he has no right to a voice on the ques- 
 tion of the removal of the remains. Petti- 
 grew v. Pettigrew, 207 Pa. 313, 56 Atl. 878, 
 
 64: 179 
 
 35. A man who has consented to the 
 burial of the body of his deceased wife 
 in the lot of another cannot, without the 
 cansent of the lot owner, enter upon the lot 
 and remove the body. Pulsifer v. Douglass, 
 94 Me. 556. 48 Atl. 118, 53: 238 
 
 36. The owner of a tomb to which re- 
 mains of the dead have been transferred 
 from the places of sepulture first selected 
 by the surviving relatives, and in which 
 they have been deposited under his assur- 
 ance, accepted by the relatives and on the 
 faith of which they permitted the transfer, 
 that the remains should rest forever in the 
 tomb, has no right to cause their removal. 
 Choppin v. Dauphin, 48 La. Ann. 1217, 20 
 So. 681, 33: 133 
 
 III. Editorial Notes. 
 
 Control and disposition of. 14: 85. 
 Power of coroner to order post mortem. 
 
 31: 540. 
 Prescriptive right with respect to burial of 
 
 dead. 53:895. 
 Uharacter of estate or property of owner in 
 
 burial lot. 67: 118. 
 
 Liability for disinterment of dead bodies, 
 and actions relating there- 
 to. 42:721. 
 Civil actions. 42: 722. 
 In general. 42 : 722. 
 Actions maintained. 42: 724. 
 Equitable relief. 42: 725. 
 Damages. 42: 729. 
 Disinterment by the authorities or 
 for public purposes. 42: 
 730. 
 
 English authorities. 42: 731. 
 Criminal actions. 42: 733. 
 In general. 42: 733. 
 Under state statutes. 42: 733. 
 
 CORPUS DELICTI. 
 
 Proof of, see Evidence, 2360, 2378. 
 
 Editorial Notes. 
 Proof of, in criminal case. 68: 33. 
 
 *-- 
 
 CORROBORATION. 
 
 Of Accomplice, see Evidence, 2372-2376. 
 Of Witness, see Witnesses, 188-200. 
 
 CORRUPTION. 
 
 In Passage of Resolution by City Council, 
 see Action or Suit, 42.
 
 822 
 
 CORRUPT PRACTICES ACT COSTS AND FEES, I. 
 
 CORRUPT PRACTICES ACT. 
 
 Special Proceeding under, see Quo Warranto, 
 
 2. 
 
 Strict Construction of, see Statutes, 508. 
 See also P^lections, II. d; Officers, 9. 
 
 COSMETICS. 
 
 Editorial Notes. 
 
 Misrepresentation as to, as affecting valid- 
 ity of trademark. 19: 56. 
 
 COSTS AND FEES. 
 
 I. Right to Recover; Liability for. 
 II. Amount; Practice; Collection. 
 III. Editorial Notes. 
 
 On Appeal, see Appeal and Error, VIII. d. 
 
 Right to Appeal from Allowance of, see 
 Appeal and Error, 33, 34. 
 
 Review of Question of, on Appeal, see Ap- 
 peal and Error, 386, 523. 
 
 Waiver of Error as to Item of, see Appeal 
 and Error, 678. 
 
 Of Arbitration, Payment from Deposit 
 Made to Secure Award, see Arbitration, 
 10. 
 
 Equal Protection and Privileges as to, see 
 Constitutional Law, II. a, 6. 
 
 Due Process in Denying Right to Tax Costs 
 of Struck Jury, see Constitutional Law, 
 805. 
 
 Effect of Order to Pay, see Criminal Law, 
 242. 
 
 Evidence of, to Show Value, see Evidence, 
 1817. 
 
 As Condition of Permitting Filing of An- 
 swer, see Pleading, 100. 
 
 Against Junior Appropriators, see Waters, 
 382. 
 
 I. Right to Recover; Liability for. 
 
 1. A statute giving a right to costs in 
 any civil action will include a proceeding 
 by the poor authorities, under the provi- 
 sions of a statute, to compel a child to sup- 
 port its indigent parent. Condon v. Pom- 
 roy-Grace, 73 Conn. fi07, 48 Atl. 750, 53: 096 
 
 2. That a stockholder suing to enforce 
 a fancied right of a corporation proceeded 
 in good faitli is no ground for relieving 
 him from payment of costs in case he is 
 unsuccessful. Piotsch v. Milbrath, 123 Wis. 
 047. 102 N T . W. 342, 08: 945 
 
 3. Failure to perfect judgment within 
 sixty days after the entry of the verdict 
 will prevent the successful party from re- 
 covering costs n ml or Saul). & B. (^Vis.) Ann. 
 Stat. -2S:4. although he procured the tax- 
 ation of the costs before that time and an 
 unsuccessful motion to set aside the verdict 
 and obtain a new trial was made. Milwau- 
 
 kee Masons' & B. Asso. v. Niezerowski, 95 
 Wis. 129, 70 N. W. 166, 37: 127 
 
 4. One who attempts to obtain a depo- 
 sition, and begins to take it, but does not 
 get it completed because the witness refused 
 to go on with, the testimony, is not charge- 
 able with costs under N. H. Pub. Stat. chap. 
 225, 12, on the ground that he neglected 
 or refused to take a deposition after giving 
 notice of it, where he in fact desired to have 
 the deposition completed, but understood 
 that he could not compel the witness, to 
 proceed, while the other party was present 
 and had the same means and opportunity 
 of enforcing the examination. Ott v. Hen- 
 tall, 70 N. H. 231, 47 Atl. 80, 51: 226 
 On dismissal. 
 
 5. Neither party recovers costs when a 
 proceeding is dismissed, without motion, for 
 want of jurisdiction. Re Dickson, 49 C. C. 
 A. 574, 111 Fed. 726, 55: 349 
 
 6. Defendant should be required to pay 
 the costs upon dismissal of a suit to en- 
 join the enforcement of an ordinance void 
 for unreasonableness, in consequence of its 
 repeal pending suit, although plaintiff had 
 erroneously claimed the unconstitutionality 
 of the statute authorizing it. Cicero Lum- 
 ber Co. v. Cicero, 176 111. 9, 51 N. E. 758, 
 
 42: 696 
 On disbarment. 
 
 7. Persons who institute proceedings to 
 disbar an attorney are entitled to their 
 costs as against him in case the proceeding 
 is successful. Re Kirby, 10 S. D. 322, 73 
 N. W. 92, 10 S. D. 414, 73 N. W. 907, 39: 856 
 In suit for injunction. 
 
 8. Costs may be awarded against one who 
 has constructed a ditch with the avowed 
 purpose -of diverting a certain quantity of 
 water from a stream, in an action to en- 
 join him from so doing, although at the 
 time of trial he has not done so and in fact 
 has caused no injury to the complaining 
 party. Jones v. Conn, 39 Or. 30, 64 Pac. 
 855, 65 Pac. 1068, 54: 630 
 
 9. The costs of a suit by a taxpayer, by 
 which the execution by the city of an illegal 
 contract is enjoined, are taxable again'st 
 both the city and contractor, if both are 
 made defendants. Chicago v. McCoy, 136 
 111. 344, 26 N. E. 363, 11:413 
 In partition. 
 
 See also infra, 47. 
 
 For Editorial Notes, see infra, III. 1. 
 
 10. The matter of costs in partition pro- 
 ceedings is peculiarly within the discretion 
 ot the trial court; and there is no abuse of 
 such discretion in imposing a portion of the 
 costs upon a grantee of the interest of one 
 of the cotenants in proportion to the part 
 set off to him. Young v. Edwards, 33 S. C. 
 404, 11 S. E. 1066, 10: 55 
 
 11. Where a bill in partition was filed 
 seasonably, and the title of one of the de- 
 fendants, who was adjudged to be entitled 
 to the entire land, could only have been es- 
 tablished by suit, the complainant may be 
 allowed costs. Van Tine v. Van Tine (N. 
 .1. Oh.) (Not to be Rep.), 15 Atl. 240, 1: 155 
 
 12. The intervener in a partition suit who 
 withdraws his petition may be decreed to
 
 COSTS AND FEES, I. 
 
 pay the costs incurred by him, and the costs 
 of suit to establish the title may be de- 
 creed to plaintiff, while the costs of the par- 
 tition should be equally divided among the 
 parties to whom the land is decreed. Askey 
 v. Williams, 74 Tex. 294, 11 S. W. 1101, 
 
 5: 176 
 On foreclosure. 
 
 13. Costs in favor of plaintiff on a note 
 and mortgage which are invalid cannot be 
 ordered paid from the proceeds on fore- 
 closure of another mortgage on the same 
 property, in the same case. Sheldon v. 
 Pruessner, 52 Kan. 579, 35 Pac. 201, 22 : 709 
 
 14. The costs of a resale of railroad prop 
 erty after foreclosure cannot be allowed to 
 a judgment creditor who was not made a 
 party to the foreclosure suit, if nothing re- 
 mains for him out of the proceeds after 
 paying the superior liens, including those 
 set up in the foreclosure suit. Stewart v. 
 Wheeling & L. E. R. Co. 53 Ohio St. 151, 41 
 N. E. 247, 29: 438 
 In condemnation proceeding. 
 
 15. The costs of proceedings to condemn 
 land may be put upon the party seeking to 
 condemn, under Cal. Code. Civ. Proc. 1255, 
 giving discretion as to costs, where the case 
 has not been properly opened and proved, 
 and a reversal therefor is required. San 
 Diego Land & T. Co. v. Neale, 88 Cal. 50, 
 25 Pac. 977, 11:604 
 Against trustee or personal representative. 
 See also infra, 21, 29; Executors and Ad- 
 ministrators, 78. 
 
 For Editorial Notes, see infra, III. 1. 
 
 16. A trustee under a will who files a 
 bill for the construction of certain clauses 
 in the will will not be allowed his costs out 
 of the trust fund, if the prayer of a cross 
 bill by the beneficiaries that their action in 
 removing him, which, under the will, they 
 had the power to do, and he had no power 
 to resist, be ratified, is granted, and no 
 construction of the will made. May v. May, 
 5 App. D. C. 552, 41: 767 
 
 17. An administrator should be personally 
 charged with costs by the judgment against 
 him, where he fails in an action brought by 
 him under a statute providing that "in all 
 civil causes at law the party prevailing 
 shall recover costs." Lynch v. Webster, 17 
 R. I. 513, 23 Atl. 27, 14: 696 
 Municipal liability. 
 
 18. A city is not liable for costs in a 
 suit to enforce an ordinance. Carrollton v. 
 Ba/zette, 159 111. 284, 42 N. E. 837, 31 : 522 
 Criminal and penal cases. 
 
 For Editorial Notes, see infra, TIL 1. 
 
 19. A defendant should not be relieved 
 from the payment of costs when found 
 guilty of violating a penal statute, without 
 some reason for so doing. Welsh v. State, 
 126 Ind. 71, 25 N. E. 883, 9: 664 
 
 20. A statute which authorizes the ques- 
 tion -of the good faith of the prosecuting 
 witness in instituting a prosecution to be 
 tried and determined at the same time that 
 the defendant is tried, and the taxation of 
 costs against him in case it is found that 
 In filing the information he acted malicious- 
 
 ly or without probable cause, is unconsti- 
 tutional and void. Rickley v. State, 65 
 Neb. 841, 91 N. W. 867, 61: 489 
 
 Suing as poor person. 
 For Editorial Notes, see infra, III. 1. 
 
 21. To permit an administrator to bring 
 an action in forma pauperis for the alleged 
 negligent killing of his intestate, he need 
 not show personal inability to give the re- 
 quired bond, or make the necessary deposit, 
 but it is sufficient if he shows such in- 
 ability on behalf of the estate and those 
 for whose benefit the suit is really brought. 
 Christian v. Atlantic & N. C. R. Co. 136 N. 
 C. 321, 48 S. E. 743, 68: 418 
 Security for. 
 
 22. An independent foreign government is 
 "a person residing without the state," with- 
 in the meaning of N. Y. Code Civ. Proc. 
 3268, requiring security for costs from such 
 persons. Republic of Honduras v. Soto, 112 
 N. Y. 310, 19 N. E. 845, 2: 642 
 
 23. When a deposit of money, as security 
 for costs, has once been made, the court 
 has no authority, under N. Y. Code Civ. 
 Proc. 2376, to require any additional se- 
 curity. Id. 
 
 24. The relator in proceedings in the na- 
 ture of quo warranto will not be required 
 to give additional security for costs on the 
 ground that the security given is insolvent 
 where the evidence in support of the motion 
 only shows that according to the tax records 
 of the county the security has only $320 of 
 taxable property. Capital City Water Co. 
 v. State ex rel. Macdonald, 105 Ala. 406, 18 
 So. 62, 29: 743 
 
 25. An irregularity in commencing a pro- 
 ceeding in the nature of qoio warranto for 
 the dissolution of a corporation before giv- 
 ing security for costs is waived, where such 
 security is subsequently given, and the re- 
 spondent files a demurrer and motion to 
 quash and afterwards its pleas, and no mo- 
 tion to dismiss on that ground is made 
 until nearly a year after the commencement 
 of the action, when the case comes on for 
 hearing. Id. 
 Out of fund or estate. 
 
 Sale of Decedent's Lands to Pay, see Exec- 
 utors and Administrators, 72. 
 See also supra, 16; infra, 48, 50-52. 
 
 26. Costs will not be imposed upon the 
 estate where the friends of an infant pre- 
 sent on her behalf an unfounded claim to 
 share in the estate of a deceased person, so 
 that the executor is compelled to file a bill 
 to determine her rights. Van Derlyn v. 
 Mack, 137 Mich. 146, lOO N. W. 278, 66: 437 
 
 27. A claim by the Physio-Medical Insti- 
 tute to a legacy given to the "Physio-Medi- 
 cal College" has not sufficient merit to war- 
 rant allowance of claimant's costs out of the 
 fund, if the evidence plainly shows that 
 claimant was not the legatee intended. 
 
 tratton v. Physio-Medical Institute, 149 
 Mass. 505, 21 N. E. 874, 5: 33 
 
 28. Taxable costs of all parties in a suit 
 r or the construction of a will may be or- 
 dered out f the funds f an estate before 
 distribution. Powers v. Jeudevine, 61 Vt. 
 587, 18 Atl. 778, 7: 517
 
 824 
 
 COSTS AND FEES, II. 
 
 29. Costs of a contest on the accounting 
 of a husband's executors, to determine 
 whether or not a husband and wife were 
 tenants by the entirety in a bond and mort- 
 gage for moneys of which each contributed 
 part, should be paid out of the estate where 
 the question is new and the executors have 
 acted in good faith. Re Albrecht, 136 N. Y. 
 91, 32 N. E. 632, 18: 329 
 
 30. Costs out of the estate will not be al- 
 lowed to one who unsuccessfully contests 
 the right of the administrator to retain a 
 distributive share, and apply it on the 
 distributee's indebtedness to the estate. 
 Webb v. Fuller, 85 Me. 443, 27 Atl. 346, 
 
 22: 177 
 
 31. The power of the supreme court to al- 
 low a defeated appellant costs out of the 
 fund in a suit for the construction of a will 
 which came to it from the circuit court on 
 exceptions after an appeal from the pro- 
 bate court is limited, under Vt. Rev. Laws, 
 2280, to the allowance of the costs in that 
 court. Jones v. Knappen, 63 Vt. 391, 22 
 Atl. 630, 14: 293 
 
 32. That the fund reached by a general 
 creditors' bill against an insolvent building 
 and loan association is all absorbed by prior 
 claims not secured by mortgage or other 
 fixed lien, so that the one who instigated it 
 will receive nothing, will not prevent the 
 allowance of a reasonable fee to his solicit- 
 ors out of the fund, since their work was 
 done for the benefit of all the distributees. 
 Campbell v. Provident Sav. & L. Soc. (Tenn. 
 Ch.) 61 S. W. 1090, 54: 817 
 Effect of tender. 
 
 33. No interest or costs can be recovered 
 on a judgment for the amount of a tender 
 which has been renewed in court with a 
 proffer of judgment, according to the South 
 Carolina practice. Wilcox v. Richmond & 
 D. R. Co. 8 U. S. App. 118, 3 C. C. A. 73, 52 
 Fed. 264, 17 : 804 
 Amount of recovery as affecting. 
 
 See also supra, 32; Courts, 288. 
 
 34. Under How. (Mich.) Stat. 4263, a 
 receiver of an insolvent mutual insurance 
 company recovering judgment against mem- 
 bers on assessments made by him against 
 them may recover costs, whatever the 
 amount of the judgment, although 8964 
 gives costs to the defendant where the 
 judgment against him is less than $100. 
 Wardle v. Townsend, 75 Mich. 385, 42 N. 
 W. 950, 4: 511 
 
 II. Amount; Practice; Collection. 
 
 Refusal to Retax, as Reversible Error, see 
 
 Appeal and Error, 854. 
 See also supra, 3. 
 For Editorial Notes, see infra, HI. 1, 2. 
 
 36. A limitation of the amount of costs 
 to $30 when the law determines their 
 amount, under Wis. Rev. Stat. 2918, subs. 
 7, 2921, is erroneous. Haves v. Douglas 
 County, 92 Wis. 429, 65 N. W. 482, 31: 213 
 
 36. A rule of court requiring a copy of 
 each pleading to be filed with it, and allow- 
 
 ing therefor a fee of 10 cents per hundred 
 words, and directing the same to be taxed 
 with the costs, does not apply to a petition 
 which consists of many counts precisely 
 alike with the exception of dates, etc., as 
 to which a copy of one count with a refer- 
 ence to the others will suffice, so as to al- 
 low the taxing of costs for a copy of the 
 whole pleading. Cook v. Chicago, R. I. & 
 P. R. Co. 81 Iowa, 551, 46 N. W. 1080, 9: 764 
 Of evidence. 
 Fees of Witness, see, Witnesses, V. 
 
 37. The cost of procuring evidence which 
 was proper to establish the cause of action 
 on plaintiff's original claim is taxable in 
 his favor, although a portion of it was in- 
 curred in establishing liability on claims 
 assigned to plaintiff, but which the court 
 held were not properly assignable. John V. 
 Farwell Co. .v. Josephson, 96 Wis. 10, 70 
 N. W. 289, 71 N. W. 109, 37: 138 
 Expense of search. 
 
 38. The expense of an unofficial search 
 made by a title insurance company is not 
 taxable as part of the disbursements on 
 foreclosure of a mortgage, "according to the 
 course and practice of the court," there 
 being no express provision of law allowing 
 such item, although the expense of an of- 
 ficial search by a county clerk can be taxed. 
 Equitable L. Assur. Soc. v. Hughes, 125 N. 
 Y. 106, 26 N. E. 1, 11: 280 
 For receiver. 
 
 39. Directing that all a receiver's fees and 
 expenses should be taxed as costs against 
 the unsuccessful party to a suit, without 
 fixing his compensation and in advance of 
 a hearing on different items of his account, 
 is improper. Cutter v. Pollock, 4 N. D. 205, 
 59 N. W. 1062, 25: 377 
 Extra allowance. 
 
 Contract for Extra Compensation to Expert 
 Witness, see Witnesses, 214. 
 
 40. An extra allowance as part of the 
 costs of the action may be made under N. 
 Y. Code Civ. Proc. 3253, in the discretion 
 of the court, to a defendant against whom 
 nominal damages only are recovered. Unit- 
 ed Press v. New York Press Co. 164 N. Y. 
 406, 58 N. E. 527, 53:288 
 
 41. An extra allowance of costs may be 
 granted in the discretion of the court, on 
 the denial of an injunction against a street 
 railway company to prevent the use of a 
 particular system of electric propulsion over 
 a part of its road, if there is any evidence 
 in the moving papers tending to establish 
 the value of such use. Hudson River 
 Teleph. Co. v. Watervliet Turnp. & R. Co. 
 135 N. Y. 393, 32 N. E. 148, 17: 674 
 
 42. An extra allowance of costs cannot be 
 made in a suit to enjoin a breach in a 
 restrictive covenant in a deed, where no 
 sum is recovered or claimed, and there is 
 no allegation, proof, or finding as to the 
 value of the subject-matter involved, and 
 the statute provides that such an allow- 
 ance shall be based upon the sum recovered 
 or claimed, or the value of the subject- 
 matter involved. Kitching v. Brown, 180 
 N. Y. 414, 73 N. E. 241, 70: 742 
 
 43. An extra allowance of costs is not
 
 COSTS AND FEES, II. 
 
 835 
 
 precluded by the fact that on a former trial 
 
 of the same case an extra allowance had 
 
 been granted and the costs paid as a con- 
 dition of a new trial. Bolton v. Schriever, 
 
 135 X. Y. 65, 31 N. E. 1001, 18: 242 
 
 Attorney's fees. 
 
 As to Contract for Attorneys' Fees, see At- 
 torneys' Fees. 
 
 Equal Protection and Privileges as to, see 
 Constitutional Law, II. a, 6. 
 
 Due Process of Law as to, see Constitutional 
 Law, 623, 624. 
 
 To Successful Lien Claimants, see Constitu- 
 tional Law, 1106. 
 
 Allowance for, as Element of Damages, see 
 Damages, III. r. 
 
 In Divorce Suit, see Divorce and Separa- 
 tion, V. b. 
 
 In Action by State to Recover Back Prop- 
 erty Escheated, see Escheat, 3, 4. 
 
 As General Charge against Decedent's Es- 
 tate, see Executors and Administrators, 
 134. 
 
 As Necessaries for Infants, see Infants, 67, 
 68. 
 
 Against Insurance Company Delaying Pay- 
 ment, see Constitutional Law, 1107. 
 
 Subrogation of Insurer to Claim for, see 
 Insurance, 1265. 
 
 Mode of Pleading Foreign Law as to, see 
 Pleading, 83. 
 
 Retrospective Statute as to,' see Statutes, 
 550. 
 
 Repeal of Statute as to, see Statutes, 567. 
 
 See also supra, 32. 
 
 For Editorial Notes, see infra, III. 3. 
 
 44. The fact that a party signs his bill 
 pro se, where it is not shown that he was 
 not in fact represented by other solicitors, 
 does not prevent him from claiming a 
 solicitor's fee on the foreclosure of a mort- 
 gage containing a provision for such fee. 
 Barry v. Guild, 126 111. 439, 18 N. E. 759, 
 
 2: 334 
 
 45. Attorneys' fees allowed to a lien 
 claimant under Fla. act 1887, chap. 3747, 
 are incidental to the lien claim, and en- 
 titled to payment on the same basis as the 
 judgment for labor or material. Dell 
 v. Marvin, 41 Fla. 221, 26 So. 188, 45: 201 
 
 46. Separate bills of costs for different de- 
 fendants represented by different attorneys, 
 and having different interests, may be re- 
 covered, including such items as retaining 
 fees, fees for attendance on the trial, and 
 term fees, where separate services were 
 necessary and proper for such defendants. 
 Adams v. Beloit, 105 Wis. 363, 81 N. W. 869, 
 
 47:441 
 
 47. Attorney's fees are taxable as in 
 equitable actions in a proceeding under Wis. 
 Rev. Stat. 3129, for the trial of issues on 
 application by a creditor in a partition 
 action, whether the trial is by court or by 
 jury. Von Osdell v. Champion, 89 Wis. 061, 
 62 N. W. 539, 27 : 773 
 
 48. Attorney's fees cannot be allowed to 
 unsuccessful proponents of a will in the con- 
 test proceedings, but any allowance therefor 
 must be made out of the estate in the 
 course of administration. Clark v. Turner, 
 50 Neb. 290, 69 N. W. 843, 38:433 
 
 49. For successfully defending claims to 
 the assigned property by an attempted re- 
 scission of sales, an assignee for creditors 
 may be allowed attorneys' fees, although 
 the assignment is set aside on a cross pe- 
 tition by other creditors. Perry Mason 
 Shoe Co. v. Sykes, 72 Miss. 390, 17 So. 171, 
 
 28: 277 
 
 50. Attorneys' fees cannot be allowed out 
 of the assigned property as against creditors 
 successfully asserting liens thereon, for an 
 unsuccessful defense of the assignment by 
 an assignee for creditors, although the as- 
 signment is declared void, not for actual 
 fraud, but by reason of failure to comply 
 with some positive requirement of statute 
 law, and although the assignee is also a re- 
 ceiver of the court, since it is not his duty 
 as receiver to defend the assignment. Id. 
 
 51. Minority stockholders may compel the 
 corporation to pay actual and necessary ex- 
 penses, including reasonable attorneys' fees, 
 of a successful suit by them to recover cor- 
 porate property which had been wrongfully 
 conveyed by the corporate officers according 
 to the wishes of the majority stockholders. 
 Grant v. Lookout Mountain Co. 93 Tenn. 
 691, 28 S. W. 90, 27: 98 
 
 52. Minority stockholders of a corpora- 
 tion, who, by filing an equitable petition 
 against it and its officers, succeeded in en- 
 joining it and them from doing ultra vires 
 acts which would have required the expend- 
 iture of money belonging to it, were not en- 
 titled to a judgment for their attorney's 
 fees against the corporation, when there 
 was, as a result of the litigation, neither a 
 recovery of property for the corporation, 
 nor administration or distribution by the 
 court of any fund brought into its hands 
 for this purpose, and when the corporation 
 itself repudiated the effort of the plaintiffs 
 to thus protect its interests, and, in defense 
 to their petition, stood squarely upon the 
 proposition that the acts in question were 
 not ultra vires, but authorized by its char- 
 ter. Alexander v. Atlanta & W. P. R. Co. 
 113 Ga. 193, 38 S. E. 772, 54: 305 
 53. Bad faith which will authorize at- 
 torney's fees and damages is not shown by 
 testing questions which are not easy of 
 solution and have never been adjudicated in 
 the state. Massachusetts Ben. L. Asso. v. 
 Robinson, 104 Ga. 256, 30 S. E. 918, 42: 261 
 
 54. In the absence of evidence, the court, 
 in fixing an attorney's fee, must be guided 
 in estimating the value of his services by 
 the amount of labor performed as indicated 
 by the record. Farley v. Geisecker, 78 Iowa, 
 453, 43 N. W. 279, ' 6: 533 
 Stay for payment. 
 
 For Editorial Notes, see infra, III. 2. 
 
 55. Staying a second suit in ejectment 
 until plaintiff pays the costs of a former 
 unsuccessful action does not violate a con- 
 stitutional guaranty that for any injury a 
 person shall have "a remedy by due process 
 of law," and right and justice shall be ad- 
 ministered without sale, denial, or delay. 
 Shear v. Box, 92 Ala. 596, 8 So. 792, 11 : 620
 
 826 
 
 COSTS AND FEES, III. COTENANCY, II. 
 
 in. Editorial Notes. 
 
 i. Generally. 
 
 As to payment in coin. 29: 596. 
 
 Of view by jury. 42: 393. 
 
 Of application for instructions in will case. 
 9:231. 
 
 On withdrawal of jurors. 48: 437. 
 
 In partition. 10: 55.* 
 
 Right to tax amount paia to surety com- 
 pany for undertaking. 48 : 
 591. 
 
 Effect, on costs, of allowance of compound 
 interest. 29 : 658. 
 
 Effect of pardon on. 15: 395. 
 
 Setting off costs in bankruptcy cases. 55: 
 55. 
 
 Claims against state for. 42: 41. 
 
 Personal liability of executors and adminis- 
 trators for. 14: 696. 
 
 Right of executor or administrator to sue, 
 defend, or appeal in forma 
 pauperis. 68: 418. 
 
 Liability for, of party controlling or carry- 
 ing on litigation in name 
 of another. 62: 618. 
 
 Constitutionality of statute authorizing 
 costs of prosecution to be 
 imposed upon prosecuting 
 witness. 61:489. 
 
 2. Compelling payment of. 
 
 Stay until costs are paid. 11: 620.* 
 
 Cruel punishment for failure to pay. 35: 
 567. 
 
 Imprisonment for nonpayment of. 27: 601. 
 
 Costs as debts within constitutional provi- 
 sion as to imprisonment. 
 34: 655. 
 
 Compelling labor in payment of. 27: 601. 
 
 3. Attorney's fees. 
 
 Constitutionality of provision for. 14: 586. 
 
 Validity of stipulations for. 1: 540;* 
 3: 50;* 7: 445.* 
 
 Effect of stipulation for, in bill or note, up- 
 on negotiability. 1:547;* 
 3: 51.* 
 
 Allowance of attorneys' fees out of fund 
 for attorneys of creditors 
 who sue in behalf of 
 themselves and other 
 creditors. 54: 817. 
 In general. 54: 817. 
 Suit to have conveyance set aside. 54: 
 
 818. 
 
 In general. 54: 818. 
 From what part of fund allowance 
 
 made. 54: 819. 
 Suit for administration of decedent's 
 
 estate. 54: 820. 
 In general. 54: 820. 
 From what part of fund allowance 
 
 made. 54: 822. 
 Where plaintiff's debt not reached. 
 
 54: 822. 
 
 Suit for appointment of receiver and to 
 wind up insolvent corpo- 
 ration. 54: 823. 
 In general. 54: 823. 
 From what part of fund allowance 
 
 made. 54: 824. 
 
 Where plaintiff's debt not reached. 
 54: 825. 
 
 Suit to enforce stockholder's liability. 
 
 54: 825. 
 Proceedings in bankruptcy cases. 54: 
 
 826. 
 
 In general. 54: 826. 
 Amount of fee. 54: 826. 
 
 COTENANCY. 
 
 I. In General. 
 II. Creation and Existence. 
 
 III. Rights and Remedies as to Each Other. 
 
 IV. Transfers of Interests. 
 V. Editorial Notes. 
 
 Estoppel of Cotenant, see Estoppel, 125. 
 
 Homestead in Case of, see Homestead, 7. 
 
 Tenancy by Entirety, see Husband and 
 Wife, II. b. 
 
 Husband's Rights in Wife's Share as Tenant 
 in Common, see Husband and Wife, 103. 
 
 Effect of Temporary Retention of Premises 
 under Permit from Cotenant, see Land- 
 lord and Tenant, 50. 
 
 Levy on Cotenant's Interest, see Levy and 
 Seizure, 11, and also infra, V. 3. 
 
 Notice to Cotenant, see Notice, 57. 
 
 Action by One Cotenant, see Parties, 188. 
 
 In Partnership Real Estate, see Partner- 
 ship, 77. 
 
 Partition between Cotenants, see Partition. 
 
 Agreement against Partition, see Real 
 Property, 1. 
 
 I. In General. 
 
 1. A joint tenancy is an estate held by 
 two or more persons jointly, so that during 
 the lives of all they are equally entitled to 
 the enjoyment of the land, or its equivalent 
 in rents and profits; but upon the death of 
 one his share vests in the survivor or sur- 
 vivors until there be but one survivor, 
 when the estate becomes one in severally 
 in him and descends to his heirs upon his 
 death. Thornburg v. Wiggins, 135 Ind. 178, 
 34 N. E. 999, 22:42 
 
 2. A contract by brothers and sisters to 
 whom land has descended in conrnon, to 
 hold the same as joint tenants, and that it 
 shall pass to the survivor by descent or de- 
 vise, and at the death of the last survivor 
 shall pass to the child of one of such broth- 
 ers by descent or devise, is not rendered un- 
 enforceable by such child by the fact that 
 the last survivor has conveyed all the 
 nroperty, where the grantee had knowledge 
 of the rights of such child, especially 
 where he obtained the property by fraud, 
 without paying any consideration therefor. 
 Mnrphy v. Whitney, 140 N. Y. 541, 35 N. E. 
 930, 24: 123 
 
 n. Creation and Existence. 
 
 Adverse -Possession by Tenant, see Adverse 
 Possession, I. f.
 
 COTENANCY, III. 
 
 827 
 
 In Proceeds of Insurance, see Insurance, 
 
 1222. 
 See also infra, 13. 
 
 3. A tenancy in common is created by a 
 deed in which the grantor makes an excep- 
 tion of a part not distinctly located, and 
 continues until he exercises his right of 
 election. Smith v. Furbish, 68 N. H. 123, 44 
 Atl. 398, 47:226 
 
 4. A tenancy in common entitling each of 
 the children to a one-third undivided in- 
 terest in remainder in severalty is created, 
 under the Alabama statute against sur- 
 vivorship among joint tenants, by a will 
 creating a trust in favor of one for life and 
 after her death in favor of her three chil- 
 dren for and during the term of their 
 natural lives. Gindrat v. Western R. of 
 Ala. 96 Ala. 162, 11 So. 372, 19: 839 
 
 5. UndeV a gift of a particular fund or 
 sum of money to two or more, to be divided 
 among them share and share alike, the 
 legatees take as tenants in common, and 
 not as joint tenants. Bishop v. McClelland 
 (N. J. Ch.) 44 N. J. Kq. 450, 16 Atl. 1, 1: 551 
 
 6. Where property is devised to a daugh- 
 ter for life, with remainder to her children, 
 the survivors or survivor of them living at 
 her death, the children living at her death 
 do not take as tenants in common during 
 the lifetime of the mother, but only as 
 members of a fluctuating class, with no 
 specific or fixed interests; and a conveyance, 
 by one of them to a third party by deed, 
 with covenants of seisin and general war- 
 ranty, of the whole of the tract of land de- 
 vised, does not impose upon the vendee to- 
 wards the other children the duties and 
 obligations of one tenant in common to an- 
 other. Kansas City Land Co. v. Hill, 87 
 Tenn. 689, 11 S. W. 797, 5: 45 
 
 7. The relation of cotenants will con- 
 tinue to exist between two locators of a 
 mining claim until the claim is abandoned 
 or forfeited. McCarthy v. Speed, 11 S. D. 
 362, 77 N. W. 590, 12 S. D. 7, 80 N. W. 135, 
 
 50: 184 
 
 In crops or trees. 
 See also infra, 18, 19. 
 
 8. A person who, by virtue of an arrange- 
 ment whereby he harvested hay, became the 
 owner of an undivided portion of it, became 
 thereby a tenant in common of the hay. 
 Louisville, N. A. & C. R. Co. v. Hart, 119 
 Ind. 273, 21 N. E. 753, 4: 549 
 
 9. A contract by which one person is to 
 set out and cultivate for ten years peach 
 trees upon the land of another, and to have 
 half of the crops for any two years of such 
 term which he may select, makes him a ten- 
 ant in common with the owner of the land, 
 of the peaches for the years which he may 
 select. Dickey v. Waldo, 97 Mich. 255. 5fi 
 N. W. 608, 23: 449 
 
 10. Trees standing on a boundary line be- 
 long to the adjoining owners as tenants in 
 common. Musch v. Burkhart, 83 Iowa, 301 
 48 N. W. 1025, 12: 484 
 In warehouse receipt. 
 
 11. Holders of receipts for grain deposit- 
 ed for storage, of the same kind and quality, 
 
 are tenants in common in the grain, under 
 Minn. Gen. Stat. 1878, 13, each being 
 limited to the amount called for by his re- 
 ceipt. Hall v. Pillsbury, 43 Minn. 33, 44 N. 
 W. 673, 7:529 
 
 III. Rights and Remedies as to Each Other. 
 
 Part Performance of Oral Agreement to 
 
 Convey Interest in Land to Cotenant, 
 
 see Contracts, 248. 
 Form of Remedy against Cotenant, see 
 
 Equity, 75. 
 
 Estoppel of Cotenant, see Estoppel, 170. 
 Allowance for Improvements on Partition, 
 
 see Improvements, 10-13. 
 As to Partition Generally, see Partition. 
 See also supra, 1, 2, 11. 
 For Editorial Notes, see infra, V. 
 
 12. A tenant in common may be liable for 
 conversion in wrenching and carrying away 
 machinery from a mill against his coten- 
 ant's protest. Waller v. Bowling, 108 N. C. 
 289, 12 S. E. 990, 12: 261 
 
 13. An occupying claimant in good faith 
 and the owner of the fee should be regarded 
 in effect as tenants in common in propor- 
 tion to the value of their respective in- 
 terests, with the sole right of possession in 
 the occupant so long as the joint tenancy 
 continues, where the owner does not pay 
 for the improvements and the occupant 
 does not pay for the land as is required by 
 statute, and the statute does not provide 
 for such a contingency. Leighton v. Young, 
 10 U. S. App. 298, 3 C. C. A. 176, 52 Fed. 
 439, 18:266 
 In oyster bed. 
 
 14. A tenant in common of an oyster bed 
 cannot deprive his cotenants of their right 
 to take natural oysters therefrom, by 
 dredging the land and placing oyster shells 
 and seed oysters thereon, although these 
 must be slightly disturbed by taking the 
 natural oysters. Mott v. Underwood, 148 
 N. Y. 463, 42 N. E. 1048, 32: 270 
 In manure. 
 
 15. One of two tenants in common of a 
 quantity of manure may rightfully take 
 away his share without the intervention of 
 a court to make the division. Pickering v. 
 Moore, 67 N. H. 533, 32 Atl. 828, 31 : 698 
 In mines. 
 
 Damages for Exclusion from, see Damages, 
 
 615. 
 Measure of Damages for Mining Coal, see 
 
 Damages, 412, 413. 
 Proper Remedy for Cotenant Excluded from 
 
 Mine, see Election of Remedies. 6. 
 Estoppel as to, see Estoppel, 168, 169. 
 Injunction asrainst Taking Petroleum, see 
 
 Injunction, 187. 
 See also supra, 8; infra, 38; ivlines, 34. 
 
 16. A license or consent of a joint tenant 
 if a mine to take ore therefrom extends 
 only to his interest in the mine. Omaha & 
 "T. Smeltina: & R. Co. v. Tabor, 13 Colo. 41, 
 ?1 Pac. 925, 5: 286 
 
 17. Tt is waste in a tenant in common to 
 take petroleum oil from the land for which
 
 COTENANCY, III. 
 
 he is liable to his cotenants to the extent of 
 
 their right in the land. Williamson v. 
 
 Jones, 43 W. Va. 562, 27 S. E. 411, 38: 694 
 
 As to crops. 
 
 See also supra, 8-10. 
 
 For Editorial Notes, see infra, V. 1. 
 
 18. Crops grown upon land while it is in 
 the peaceable possessioij of one of several 
 tenants in common become his individual 
 property when they are, in the due course 
 of husbandry, peaceably and in good faith 
 severed by him from the common estate; 
 and if his cotenants afterwards enter and 
 take away such crops they will be liable 
 in trover for the value thereof. Le Barron 
 v. Babcock, 122 N. Y. 153, 25 N. E. 253, 
 
 9:625 
 
 19. The measurement and marking of 
 stacks of hay by tenants in common to 
 show the division lines of the portions, and 
 an agreement that either, at his con- 
 venience, could cut the stacks and take his 
 portion, is not sufficient, without an actual 
 severance of the stacks, to terminate the 
 common ownership. Louisville, N. A. & C. 
 R. Co. v. Hart, 119 Ind. 273, 21 N. E. 753, 
 
 4: 549 
 Liens. 
 
 20. One tenant in common has no lien 
 against his cotenant's interest in the prop- 
 erty for rents in excess of his share, col- 
 lected and retained by such cotenant before 
 partition of the land. Flack v. Gosnell, 76 
 Md. 88, 24 Atl. 414, 16: 547 
 
 21. Mass. Pub. Stat. chap. 12, 63-65, 
 relating to the preservation of a lien in 
 favor of one tenant in common who pays 
 taxes, as against his cotenants, apply 
 simply to a payment in the first instance, 
 not to a redemption of the premises after 
 a sale, when the tenant takes a deed which 
 is put on record. Hurley v. Hurley, 148 
 Mass. 444, 19 N. E. 545, 2: 172 
 
 22. One who redeems property in which 
 he afterwards becomes a tenant in common, 
 from a tax sale, is entitled to have the lien 
 kept alive as against his cotenant, until 
 the latter shall have paid his share of the 
 taxes, if there are no special fiduciary re- 
 lations between the parties, although he 
 takes no steps to assert and preserve his 
 lien, as prescribed by Mass. Pub. Stat. chap. 
 12, 63-65. Id. 
 Power to create easement. 
 
 23. A tenant in common cannot create 
 an easement over the premises without con- 
 sent of his cotenants. Baker v. Willard. 
 171 Mass. 220, 50 N. E. 620, 40: 754 
 Accounting. 
 
 Accounting for Petroleum Taken from 
 
 Land, see Accounting, 3, 4. 
 For Editorial Notes, see infra, V. 4. 
 
 24. A coparcener merely from sole occu- 
 pation of the premises is not chargeable in 
 favor of other coparceners, unless he ex- 
 cludes them. Ward v. Ward, 40 W. Va 
 611, 21 S. E. 746, 29: 449 
 
 25. The liability of a joint tenant or ten- 
 ant in common to account to his cotenants 
 under W. Va. Code. chap. 100, 14, for re- 
 ceiving more than his just share or propor- 
 
 tion of the benefits, does not apply to co- 
 partners. Id. 
 
 26. A tenant in common may be com- 
 pelled to account to his cotenant for the use 
 of the lands held in common, although he 
 has received the benefits thereof without 
 any attempt to exclude the other, or any 
 promise or mutual understanding to give 
 any compensation for the profits taken by 
 him. Gage v. Gage, G6 N. H. 282, 29 Atl. 
 543, 28: 829 
 Contribution. 
 
 See also infra, 34. 
 
 27. A tenant in common purchasing at a 
 tax sale will be entitled to contribution 
 from his cotenants, toward the cost and ex- 
 pense incurred in the purchase of the tax 
 title. Clark v. Lindsey, 47 Ohio St. 437, 25 
 N. E. 422, 9: 740 
 
 28. Part owners of a water po\yer cannot 
 be compelled to contribute to the building 
 of weirs at a large expense, in order to 
 apportion the water, or of improvements 
 not in the nature of repairs, but to raise the 
 level of the water to facilitate its appor- 
 tionment. Brown v. Cooper, 98 Iowa, 444, 
 67 N. W. 378, 33: 61 
 
 29. The right to compel joint tenants, ten- 
 ants in common, or coparceners to con- 
 tribute to necessary repairs, applies only to 
 mills and houses, and not to fences or other 
 repairs to the property. Ward v. Ward, 40 
 W. Va. 611, 21 S. E. 746, 29: 449 
 
 30. The right of a joint tenant, tenant in 
 common, or coparcener to compel others to 
 contribute to necessary repairs, exists only 
 as to future repairs made, after request to 
 assist and refusal. Id. 
 
 31. A coparcener allowed for improve- 
 ments may be charged by way of set-off for 
 use and occupation. Id. 
 
 32. Permanent improvements made by 
 one coparcener are ctiargeable to the others 
 personally or upon their shares in the land, 
 only when made by their request or agree- 
 ment. Id. 
 Purchase of outstanding title. 
 
 Evidence of Fraud as to, see Evidence, 1793. 
 Purchase by Life Tenant, see Life Tenants, 
 
 7, 8, 24. 
 See also Taxes, 505. 
 
 33. Title cannot be acquired against a 
 cotenant in common at a sale under an en- 
 cumbrance which was created by the for- 
 mer owner, through whom both parties 
 claim title. McPheeters v. Wright, 124 Ind. 
 560, 24 N. E. 734, 9: 176 
 
 34. Where one of several reversioners of 
 the equity of redemption of real estate in 
 possession of the life tenant, which is worth 
 considerable more than the amount of the 
 mortgage, purchases the interest of the 
 mortgagee, together with all rights which 
 he has acquired under foreclosure proceed- 
 ings, and. before the foreclosure is complete, 
 acquires the life interest in the property, 
 he is bound, before he can complete the 
 foreclosure as against his co-reversioners, 
 to notify them of the peril to their interests 
 and give them an opportunity to come in 
 and contribute with him towards a redemp- 
 tion from the mortgage; and in case he fails
 
 COTENANCY, IV., V. 
 
 829 
 
 to do so, and gets title to the property [ the partition proceedings a defense to a re- 
 under his foreclosure proceedings, they will | covery by the party to whom the exclu- 
 
 be entitled to their proportions thereof 
 upon payment of their shares of the mort- 
 gage debt. Barnes v. Boardman, 152 Mass. 
 391, 25 N. E. 623, 9: 571 
 
 35. Where a reversioner acquires the life 
 interest in the equity of redemption of real 
 estate after having purchased the interest 
 of the mortgagee in the property, and then 
 forecloses and takes title to the property 
 without notifying his co-reversioners, after 
 which he sells the property to a bona fide 
 purchaser for value, the co-reversioners, 
 upon coding in to redeem, may, if they con- 
 sent thereto, be given an interest in the 
 fund realized from the sale, instead of in 
 the property. Id. 
 
 30. One cotenant in remainder 5 , not en- 
 titled to possession of the property, may 
 obtain, as against his cotenants, a good title 
 to the property from a stranger who has 
 purchased at a tax sale made possible 
 through the default of the life tenant. 
 
 Crawford v. Meis, 123 Iowa, 
 W. 186, 
 
 610. 99 N. 
 66: 154 
 
 37. Where a person seised of lands as ten- 
 ant in dower neglects to pay the taxes 
 thereon so long that they are sold for the 
 payment of taxes, if one of several ten- 
 ants in common of the remainder in fee 
 
 sale, the purchase will be held to inure to 
 the benefit of all the cotenants in remain- 
 der. Clark v. Lindsey, 47 Ohio St. 437, 25 
 N. E. 422, 9: 740 
 
 38. One cotenant of a mining claim upon 
 which the annual assessment work has not 
 been done cannot, by relocating the claim, 
 obtain a title thereto as against his coten- 
 ants. McCarthy v. Speed, 11 S. D. 362, 77 
 N. W. 590, 12 S. D. 7, 80 N. W. 135, 
 
 50: 184 
 
 IV. Transfers of Interests. 
 
 Assignability of Right of Action to Set 
 Aside Conveyance between Cotenants, 
 see Assignment, 7. 
 
 Parol Evidence as to Sale in Trust for Co- 
 tenants, soe Evidence, 1210. 
 
 Running of Limitation in Favor of Pur- 
 chaser, see Limitation of Actions, 134. 
 
 As to Partition of Interests, see Partition. 
 
 Specific Enforcement of Oral Contract to 
 Convey Interest, see Specific Perform- 
 ance, 49. 
 
 See also Guardian and Ward, 15; Trial, 3. 
 
 39. Where a devisee who is a tenant in 
 common with other devisees dies leaving a 
 will by which he devises his estate to his 
 niece, the legal title to his undivided inter- 
 est in the land devised to him passes under 
 his will to the niece. Simmons v. Spratt, 
 26 Fla. 449., 8 So. 123, 9: 343 
 
 40. A stranger to the common title can- 
 not question the rightfulness of the exclu- 
 sive possession of one tenant in common as 
 against his cotenants: and where there has 
 been an actual partition, such stranger can- 
 not make the irregularity or invalidity of 
 
 sive possession of the land in question has 
 been given. If the legal title to the entire 
 part assigned in severalty did not pass, his 
 title, to the extent of his undivided inter- 
 est, is sufficient to maintain or assert his 
 exclusive possession to the whole land as- 
 signed him, or any part thereof. Id. 
 41. Where there has been an actual par- 
 tition of land among tenants in common, 
 and one of them conveys by metes and 
 bounds a part of that asigned to him in 
 severalty, the grantee has, as to the part 
 so conveyed, the same rights against a 
 stranger to the common title as his grantor 
 had. Though the deed should prove void 
 as to other cotenants, it is good as against 
 the grantor and a stranger to the common 
 
 title. 
 
 Id. 
 
 10:55 
 
 42. A conveyance by warranty deed by 
 one tenant in common, which purports to 
 describe by metes and bounds the portion 
 of the common property which the grantor 
 intends to convey, is valid as between the 
 parties to such deed, where it can be given 
 full effect without injury to the other co- 
 tenants, and will operate as a conveyance 
 of the grantor's entire undivided interest in 
 the property. Young v. Edwards, 33 S. C. 
 404, 11 S. E. 1066, 
 
 Of logs or timber. 
 
 43. A cotenant cannot convey a good title 
 to logs which he cut and sold without au- 
 thority from land owned in common, and 
 therefore cannot enforce the contract 
 against the purchaser, who refuses to re- 
 ceive the logs. Nevels v. Kentucky Lumber 
 Co. 108 Ky. 550, 56 S. W. 969, 49: 416 
 
 44. One tenant in common cannot con- 
 vey his interest in the timber on the land 
 and thereby make the other tenants in com- 
 mon cotenants with his grantee. Benedict 
 v. Torrent, 83 Mich. 181, 47 N. W. 129, 
 
 11:278 
 Appurtenances passing by. 
 
 45. A sale of his interest by one tenant in 
 common of a mill to the other will carry 
 the appurtenances necessary to its opera- 
 tion as they existed when the sale was 
 made, and prevent his subsequently with- 
 drawing water from the stream, for manu- 
 facturing purposes on his own land, to the 
 injury of the mill. Cox v. Howell, 108 
 Tenn. 130, 65 S. W. 868, 58: 487 
 
 V. Editorial Notes. 
 
 i. Generally. 
 
 When burial lot held in common. 67: 122. 
 
 When action of trover will lie by one co- 
 tenant against another. 
 12: 261,* 262.* 
 
 Cotenant's conveyance by metes and bounds. 
 11:278.* 
 
 Right of tenant in common to crops. 9: 
 625.* 
 
 How far share of one cotenant collecting 
 rents in subject to lien in 
 favor of his cotenant. 16:. 
 547.
 
 830 
 
 COTENANCY, V. (Ed. Notes.) COUNTIES. 
 
 2. Relation between cotenants; adverse 
 
 interests. 
 
 Trust relations between cotenants. 12: 485. 
 Possession by one; disseisin. 4: 645;* 10: 
 
 388.* 
 Acquiring adverse claim by payment of 
 
 taxes. 2: 172;* 9: 740.* 
 Effect of purchase of outstanding title by 
 cotenant, generally. 9: 
 571;* 10: 101.* 
 Purchase of tax title. 2: 172;* 10: 
 
 101.* 
 
 Right of cotenant to relocate mining claim 
 for his own benefit. 50: 
 184. 
 
 3. remedies. 
 As to Action for Partition, Generally, see 
 
 Partition, III. 
 
 Validity of agreement against right to par- 
 tition. 16:220. 
 Right to injunction against each other. 
 
 12:484.* 
 
 Contribution among cotenants. 9 : 740.* 
 Ejectment by one against third person. 
 
 18: 789. 
 
 Levy on crops owned by cotenants. 23: 260. 
 4. Liability of cotenants to account for 
 use and occupation and rents and 
 profits. 
 
 The common-law doctrine. 28: 829. 
 Reason of the common-law doctrine. 28:830. 
 States not adopting the English statute. 
 
 28: 832. 
 When held liable. 28: 832. 
 
 In case of ouster. 28:832. 
 
 In cases where an agreement exists. 
 
 28: 834. 
 
 When occupied by one alone. 28: 836. 
 The remedy as between cotenants. 28: 840. 
 Statutory action of account. 28: 840. 
 Proceedings in equity. 28: 842. 
 In action of assumpsit. 28: 844. 
 Liability to account for rents received. 
 
 28: 848. 
 
 Lien for rents received. 28: 849. 
 The question, What is more than a just 
 
 share? 28: 849. 
 
 Necessity of a demand. 28: 850. 
 Necessarv allegations in action of account. 
 
 28: 850. 
 
 In what character liable. 28: 850. 
 Position of cotenant holding over. 28: 851. 
 Extent of liability. 28: 852. 
 When liable to pay interest. 28: 853. 
 When held for the rental value. 28: 853. 
 Position of purchaser of cotenant's share. 
 
 28: 854. 
 
 As to coparceners. 28: 854. 
 The question of deductions. 28: 854. 
 Mesne profits. 28: 857. 
 The application of the statute of limita- 
 tions. 28: 859. 
 
 Construction of the state statutes. 28: 860. 
 i 5, Liability of cotenants for improve- 
 ments and repairs. 
 Improvements. 29: 449. 
 
 Liability at common law. 29: 449. 
 Liable in assiimpsit for improvements. 
 
 29: 452. 
 
 Rule in equity. 29: 452. 
 Lien for improvements. 29: 456. 
 Interest on improvements. 29: 457. 
 
 Position of grantee of cotenant's share. 
 
 29: 457. 
 Repairs. 29:457. 
 
 General doctrine. 29: 457. 
 Liability in assumpsit. 29: 459. 
 Necessity of a demand and notice. 29: 
 
 459. 
 Lien for repairs. 29: 459. 
 
 COTTOLENE. 
 
 Sale of, see Food, 8, 9. 
 
 COTTON. 
 
 Validity of Contract for Dealing in, on 
 
 Margin, see Contracts, 530. 
 Proximate Cause of Injury by Burning of, 
 
 see Proximate Cause, 34, 35. 
 
 COUNCIL. 
 
 Legislative Functions of, see Municipal Cor- 
 porations, II. c. 
 
 COUNSEL FEES. 
 
 See Attorneys, II. c, 1; Attorneys' Fees; 
 Damages, HI. r. 
 
 COUNTERCLAIM. 
 
 See Set-Off and Counterclaim. 
 
 COUNTERFEITING. 
 
 Indictment for, see Indictment, etc., 85. 
 
 Liability for Charging Passenger with 
 Passing Counterfeit Money, see Car- 
 riers, 182, 183, 186, 190. 
 
 Labels and Trademarks, see Forgery, 18; 
 Trademark, IV. 
 
 Editorial Notes. 
 
 Instigation to. 25: 345. 
 Cruel and illegal punishment for. 35: 571. 
 Evidence of other crimes in prosecution for. 
 62: 225, 257. 
 
 COUNTIES. 
 
 I. As Political Divisions; Organization; 
 County Seat. 
 
 a. In General; Organization. 
 
 b. County Seat.
 
 COUNTIES, I. a. 
 
 831 
 
 II. Rights and Liabilities. 
 
 a. In General. 
 
 b. Warrants; Indebtedness. 
 
 c. Power to Tax; County Purposes. 
 
 d. Contracts; Power and Procedure 
 
 of Officers. 
 
 III. Editorial Notes. 
 
 Agricultural Societies of, see Agricultural 
 Societies, 2, 5. 
 
 Assumpsit against, for Money Mistakenly 
 Paid to, see Assumpsit, 42. 
 
 Estoppel of, see Bonds, 145, 162, 164. 
 
 Deed to Commissioner of, see Deeds, 52. 
 
 Judicial Notice as to, see Evidence, 44-46. 
 
 Grant of Ferry Franchise" by, see Ferry, 7, 8. 
 
 Collateral Attack on Judgment against, 
 see Judgment, 124. 
 
 Lien on Property of, see Mechanics' Liens, 
 67. 
 
 Seal of, see Seal, 4, 5. 
 
 Special Legislation as to, see Statutes, SIS- 
 SIS, 334-336, 345, 346, 362, 365, 366, 
 369, 375, 382, 383, 385, 386, 389, 404, 405. 
 
 L As Political Divisions; Organization; 
 County Seat. 
 
 a. In General; Organization. 
 
 Equity Jurisdiction as to Boundary of, see 
 Equity, 17. 
 
 1. A county organization is not a spe- 
 cial privilege or immunity within the mean- 
 ing of a constitutional provision that no 
 special privilege or immunity shall ever be 
 granted that may not be altered or revoked 
 by the legislature. McDonald v. Doust 
 (Idaho) 81 Pac. 60, 69: 220 
 Creation; reorganization. 
 
 Two-Thirds Vote for Creation of, see Elec- 
 tions, 253. 
 
 Special Legislation as to, see Statutes, 316, 
 317. 
 
 Effect of Repeal of Statute as to, see Stat- 
 utes, 616. 
 
 See also infra, 6, 7; Municipal Corporations, 
 1. 
 
 2. The state is estopped from questioning 
 the regularity of the passage of an act 
 creating a county, when for four years the 
 county has been recognized by each of the 
 co-ordinate branches of the government as 
 a county and legal subdivision of the state. 
 People ex rel. Attorney General v. Alturas 
 County, 6 Idaho, 418, 55 Pac. 1067, 44: 122 
 
 3. When conflicting petitions for the sub- 
 mission of the question of creating new 
 counties are presented, it is the duty of the 
 county board to grant the petition that is 
 first filed, if it meets all the requirements 
 of the law, and to refuse to submit the 
 others. State ex rel. Pennell v. Armstronar, 
 30 Neb. 493, 46 N. W. 618, 9:382 
 
 4. A county board cannot lawfully sub- 
 mit to be voted upon at the same election, 
 two proposition to organize from a county 
 two new counties, when the territory de- 
 scribed in one proposition embraces part of 
 that included in the other. Id. 
 
 5. The power to create new counties, con- 
 ferred on the legislature by the Constitu- 
 tion, does not include power to reorganize 
 under a new name an old county existing 
 at the time of the adoption of the Consti- 
 tution. McDonald v. Doust (Idaho) 81 Pac. 
 60 69: 220 
 
 Division; change of boundary. 
 
 Proof of Annexation, see Evidence, 2310. 
 
 Division of, in Apportionment of Election 
 Districts, see Election Districts, 7-10. 
 
 Effect of Change of Boundary on Election 
 Districts, see Election Districts, 14, 15. 
 
 Mandamus to Compel Division into As- 
 sembly Districts, see Mandamus, 60. 
 
 Quo Warranto to Test Validity of Annexa- 
 tion, see Quo Warranto, 15, 31. 
 
 Division of, into Townships, see Towns, 4. 
 
 See also supra, 3, 4; infra, 10, 45, 46. 
 
 6. New counties cannot be formed so as 
 to reduce the county froih which they are 
 created to a less area than the constitu- 
 tional limit. State ex rel. Pennell v. Arm- 
 strong, 30 Neb. 493, 46 N. W. 618, 9: 382 
 
 7. The power to divide counties or towns 
 and erect new counties and towns, or to 
 change their boundaries, is conferred by the 
 general grant of legislative power, the time 
 and mode of exercising which is in the dis- 
 cretion of the legislature, unless restrained 
 by other provisions or arrangements of the 
 Constitution. People ex rel. Henderson v. 
 Westchester County Supers. 147 N. Y. 1, 41 
 N. E. 563, 30: 74 
 
 8. The provision in N. Y. Const, art. 3, 
 5, that nothing in that section shall pre- 
 vent the division at any time of counties 
 and towns by the legislature, although that 
 section relates to the apportionment of 
 members of assembly and the manner of 
 constituting assembly districts, gives the 
 legislature power to change such bounda- 
 ries in its discretion, although the county 
 boundaries which are changed may be the 
 boundaries of a senate district. Id. 
 
 9. Md. Const, art. 13, 1, which provides 
 that no lines of any county shall be changed 
 without the consent of a majority of the 
 voters residing within the district which, 
 under the proposed change, would form a 
 county different from that to which it be- 
 longed prior to the change, was not intend- 
 ed to limit the power of the legislature to 
 change county lines to cases where parts of 
 one county are added to some other county. 
 Daly v. Morgan, 69 Md. 460, 16 Atl. 287, 
 
 1:757 
 Abolishing. 
 
 10. A statute abolishing an existing 
 county, and creating two new counties out 
 of the same territory, and establishing a 
 new county seat for each, is void under the 
 Idaho Constitution, which recognizes the 
 counties existing at ,the time of its adop- 
 tion as legal subdivisions of the state, and 
 forbids the removal of a county seat or the 
 cutting off of territory without a vote of the 
 people, and prohibits the reduction of the 
 territory of a county below 400 square 
 miles. McDonald v. Doust (Idaho) 81 Pac. 
 60, 69: 220
 
 832 
 
 COUNTIES, I. b, II. a. 
 
 11. The legislature has no power to de- 
 stroy the counties recognized by the Consti- 
 tution as organized and existing at its 
 adoption as legal subdivisions of the state. 
 
 Id. 
 
 Unorganized counties. 
 
 Special Legislation as to, see Statutes, 335. 
 Taxation in, see Taxes, 39, 92. 
 
 12. An unorganized county attached to an 
 organized county for judicial purposes is 
 not "annexed," within the meaning of Dak. 
 Comp. Laws, 535, providing that such por- 
 tions of the territory not organized into 
 counties as are annexed to any organized 
 county shall, for judicial and other pur- 
 poses, be deemed to be within the limits 
 and a part of the county to which they are 
 annexed. State ex rel. Dollard v. Hughes 
 County, 1 S. D. 292, 46 N. W. 1127, 
 
 10: 588 
 
 13. Dak. Laws 1887, chap. 175, attaching 
 certain unorganized counties to an organized 
 county for judicial purposes, did not have 
 the effect of so attaching them for elec- 
 tion purposes, such act being at once a 
 grant and a limit of jurisdiction. Id. 
 
 b. County Seat. 
 
 Duty to Stop Trains at, see Carriers, 1445- 
 
 1150. 
 Compelling Trains to Stop at, see Com' 
 
 merce, 71, 72. 
 As Place of Holding Court, see Courts, 314- 
 
 ? 1 . 7 ' 
 Condition in Deed for, see Real Property, 14. 
 
 Special Legislation as to, see Statutes, 336, 
 
 See also supra, 10. 
 
 For Editorial Notes, see infra, III. 5. 
 
 Petition for change. 
 
 14. Under Va. act March 2, 1888, author- 
 izing the voters of Warwick county to vote 
 upon the question of the removal of the 
 courthouse, corporations owning real estate 
 and paying taxes in said county are in- 
 cluded in the term "persons" in 1 of said 
 act, who are to sign the application for an 
 election to ascertain whether the court- 
 house shall be removed. Crafford v. War- 
 wick County Supers. 87 Va. 110, 12 S. E. 
 147, 10: 129 
 
 15. Proof that those who have signed a 
 petition for the removal of a county seat or 
 a remonstrance were not in fact resident 
 electors of the county, as required by stat- 
 ute in order to be allowed to unite in such 
 petition or remonstrance, must be per- 
 mitted by the board of county commission- 
 ers. Ayres v. Moan, 34 Neb. 210, 51 N. W. 
 830, 15: 501 
 
 16. A petition for the removal of a county 
 seat under Neb. Comp. Stat. chap. 17, art. 
 3, 1, must show the section, township, and 
 range on which, or the town or city in 
 which, each resident ^elector who signs it 
 resides, together with his age and the time 
 of his residence in the county, or such pe- 
 titioner cannot be recognized. Id. 
 
 17. A supplemental petition cannot be al- 
 lowed, to add to the list of petitioners for 
 the removal of a county seat. Id. 
 
 18. The determination of the board of 
 
 county commissioners involved in their or- 
 dering an election upon a proposition to re- 
 locate a county seat, that the petition pray- 
 ing for such election was signed by the 
 number of voters required by the North 
 Dakota statutes, is not open to judicial in- 
 vestigation after the election has been held 
 and a sufficient vote cast to work a reloca- 
 tion of the county seat. State ex rel. Little 
 v. Langlie, 5 N. D. 594, 667 N. W. 958, 
 
 32: 723 
 
 Election as to change. 
 Two-Thirds Vote for, see Elections, 254. 
 Mandamus to Test Validity of, see Man- 
 damus, 133, ,134. 
 See also supra, 18. 
 
 19. An election on a proposition to relo- 
 cate a county seat is not void because of a 
 defect in the notice of election required by 
 the North Dakota statutes, where it ap- 
 pears from the vote cast that the voters 
 were not misled by it. State ex rel. Little 
 v. Langlie, 5 N. D. 594, 67 N. W. 958, 
 
 32: 723 
 
 20. The requirements of Dak. Comp. Laws, 
 565, that if the county board orders an 
 election on a proposition to relocate the 
 county seat it shall be its duty to notify 
 the voters in the general election notices to 
 designate upon their ballot at the election 
 the place of their choice, is substantially 
 complied with by a notice stating that one 
 of the purposes of the election is to vote 
 upon the question of relocating the county 
 seat. Id. 
 
 21. Promises that -a courthouse will be 
 built free of cost to the county if the 
 county seat is removed to a certain place, 
 and that the expense of the election for that 
 purpose will be paid by private citizens ' 
 without cost to the county, constitute brib- 
 ery which will make invalid an election in 
 favor of such removal. Ayres v. Moan, 34 
 Neb. 210, 51 N. W. 830, 15: 501 
 
 II. Rights and Liabilities, 
 a. In General. 
 
 Requiring County to Build and Maintain 
 
 Hisrh Schools, see Constitutional Law, 
 
 279. 
 Equity Jurisdiction to Compel Restoration 
 
 of Fund, see Equity, 42. 
 
 Levy on Property of, see Exemptions, 11. 
 County as Municipal Corporation, see As- 
 
 sumpsit, 52. 
 Compelling Restitution to Treasurer of 
 
 Money Improperly Appropriated, see 
 
 Parties, 98. 
 
 Rights of, in Apportioning Election Dis- 
 tricts, see Election Districts, II. 
 Power to Revoke Legislative Grant of Fines, 
 
 etc., to, see Fines, 4. 
 Right in Proceeds of License, see License, 
 
 59. 
 Right to Recover for Support in Insane 
 
 Asylum, see Incompetent Persons, 33- 
 
 35. 
 Recovery for Support of Poor Person, see 
 
 Poor and Poor Laws, 8.
 
 COUNTIES, II. a. 
 
 833 
 
 Liability for Maintenance of Girl at Indus- 
 trial School, see House of Correction, 9. 
 
 Liability to Garnishment, see Garnishment, 
 27-29. 
 
 Liability for Interest, see Interest, 70, 71. 
 
 Liability for Witness Fees, see Witnesses, 
 205, 206. 
 
 For Editorial Notes, see infra, III. 
 
 22. A county is not a municipal corpora- 
 tion proper. Jefferson County Supers, v. 
 Graf ton, 74 Miss. 435, 21 So. 247, 36: 798 
 
 23. A county is not a municipal corpora- 
 tion in the full sense of the term, but only 
 a quasi corporation, and possesses such pow- 
 ers and is subjected to only such liabili- 
 ties as are specially provided for by law. 
 Schweiss v. First Judicial Dist. Ct. 23 Nev. 
 226, 45 Pac. 289, \ 34: 602 
 
 24. Counties are not included among the 
 corporations referred to in Tenn. Const, art. 
 11, S, prohibiting the creation or increase 
 of the power of corporations by special 
 laws. Burnett v. Maloney, 97 Tenn. 697, 
 37 S. W. 689, 34: 541 
 
 25. A county as a municipal corporation 
 has no such interest in or right of possession 
 to the reports of the supreme court dis- 
 tributed to county judges in accordance 
 with Neb. Comp. Stat. 1899, chap. 19, 20, 
 as will authorize it to maintain replevin 
 proceedings against a former county judge 
 who, after the expiration of his term of 
 office, retains possession of such reports re- 
 ceived by him in his official capacity while 
 in office; but the right to the possession of 
 such books is in the county judge as be- 
 tween himself and all others except, pos- 
 sibly, the state. Clifford v. Hall County, 60 
 Neb. 506, 83 N. W. 661, 50: 733 
 
 26. A county is not, in the exercise of its 
 governmental power, privileged to dis- 
 charge the water-closets of its courthouse 
 onto the land of an adjoining owner to his 
 injury. Pearce v. Gibson County, 107 Tenn. 
 224. 64 S. W. 33, 55: 477 
 Liability to county. 
 
 For Property Taken for Public Use, see 
 Eminent Domain, 283. 
 
 27. Loaning cash and securities to a 
 county treasurer, knowing him to be an 
 embezzler, for the purpose of enabling him 
 to conceal his embezzlement by showing 
 the money and securities as the property of 
 the county, does not render the lender lia- 
 able to an action in favor of the county, on 
 the ground that the discovery of his em- 
 bezzlement and opportunity to prosecute 
 him therefor were thereby delayed. Nel- 
 son County v. Northcote,' 6 Dak. 378, 43 
 N. W. 897, 6: 230 
 Payment for property taken. 
 
 28. Compensation to be made to a land- 
 owner for land taken by a county for the 
 location of a public road must fee paid out 
 of the ordinary county revenue raised by 
 the limited tax provided by Wyo. Const, 
 art. 15, 5. Grand Island & N. W. R. Co. 
 v. Baker, 6 Wyo. 369, 45 Pac. 494, 34: 835 
 Payment of invalid lien. 
 
 29. A county which pays claims of labor- 
 ers and material men for which invalid 
 mechanics' liens have been filed on a county 
 
 L.R.A. Dig. 53. 
 
 bridge, and takes an assignment thereof, ac- 
 quires no rights thereby and cannot set up 
 such claims or the payment thereof against 
 a contractor who built the bridge. First 
 Nat. Bank v. Malheur County, 30 Or. 420, 
 45 Pac. 781, 35: 141 
 
 Liability to pay sheriff's posse. 
 
 30. A county is not liable for services ren- 
 dered by members of a sheriff's posse comi- 
 tatus, in the absence of statutory provisions 
 for their compensation. Sears v. Gallatin 
 County, 20 Mont. 462, 52 Pac. 204, 40: 405 
 Liability for torts or negligence generally. 
 Liability as to Bridges, see Bridges, II. 
 Liability for Injury by Defective Highway, 
 
 see Highways, IV. a. 
 For Injury by Bad Condition of Jail, see 
 
 Jails, 3. 
 For Editorial Notes, see infra, III. 4. 
 
 31. No new liability for torts is imposed 
 upon a county by a statute making it a 
 municipal corporation for exercising the 
 powers and discharging the duties of local 
 government and the administration of pub- 
 lic affairs, and providing that actions for 
 damages for any injury to any property or 
 rights for which it is liable shall be in the 
 name of the county. Markey v. Queens 
 County, 154 N. Y. 675, 49 N. E. 71, 39: 46 
 
 32. A county is liable for the unauthor- 
 ized and unlawful acts of its officials done 
 colore officii, when it adopts and ratines 
 them and retains and enjoys the benefit 
 thereof. Schussler v. Hennepin County 
 Comrs. 67 Minn. 412, 70 N. W. 6, 39: 75 
 
 33. Counties being subdivisions of the 
 state and instrumentalities of government 
 exercising authority given by the state, are 
 no more liable for the acts or omissions of 
 their officers than the state. Jasper County 
 v. Allman, 142 Ind. 573, 42 N. E. 206, 
 
 39: 58 
 
 34. When the law itself imposes a duty 
 on county commissioners as such, and they 
 are not appointed thereto by the county, 
 the county will not be responsible for their 
 breach of duty, or for their nonfeasance or 
 misfeasance in relation to such duty. Ter- 
 ritory ex rel. Choteau County v. Cascade 
 County, 8 Mont. 396, 20 Pac. 809, 7: 105 
 
 35. A county is not liable for injuries re- 
 ceived by an employee from a defective ma- 
 chine in an asylum which was maintained 
 by the county in discharge of its duty as a 
 political division of the state to care for 
 its insane. Hughes v. Monroe County, 147 
 N. Y. 49, 41 N. E. 407, 39: 33 
 
 36. The maintenance of a county asylum 
 does not become a private business such 
 that the county is liable for injuries re- 
 ceived by employees, by reason of the fact 
 that some revenue is incidentally derived 
 by the county from the sale of surplus 
 farm products and from payments made by 
 those liable for the support of insane per- 
 sons kept in the asylum. Id. 
 
 39. A county is not liable for the pollu- 
 tion of a stream and the surrounding at- 
 mosphere by sewage from its penitentiary 
 and almshouse, conducted to reservoirs on a 
 nearby farm owned by it, and then spread 
 upon the land, since it acts in the matter
 
 884 
 
 COUNTIES, II. b. 
 
 in its governmental capacity; although an 
 injunction to abate the nuisance may be 
 granted against the officers in charge of the 
 buildings. Lefrois v. Monroe County, 162 
 N. Y. 563, 57 N. E. 185, 50:206 
 
 Liability for acts of mob. 
 Due Process as to, see Constitutional Law, 
 
 658. 
 
 Imposition by Legislature of Liability for 
 Death by, see Constitutional Law, 259a. 
 Making County Liable as a Taking of Prop- 
 erty, see Eminent Domain, 228. 
 Imposing Penalty for, see Jury, 44. 
 
 38. A debt is not created against a 
 county, within the meaning of 111. Const. 
 art. 9, 12, by a statute making the county 
 liable to owners for property destroyed by 
 mobs and riots. Chicago v. Manhattan Ce- 
 ment Co. 178 111. 372, 53 N..E. 68, 45: 848 
 
 39. A statute compelling a county to pay 
 three fourths of the value of property de- 
 stroyed by a mob or riot, irrespective of 
 ability or exercise of diligence to protect 
 the property, is a police regulation for the 
 better government of the state, which does 
 not violate 111. Const, art. 9, 9, 10, pro- 
 hibiting statutes to impose taxes upon mu- 
 nicipal corporations for corporate purposes. 
 
 Id. 
 
 40. A county may be liable for the death 
 of a person by mob violence under .Ohio 
 act April 10, 1896, although the individuals 
 composing the mob had assembled without 
 any unlawful purpose, and had not after- 
 wards specifically agreed to be a mob. 
 Champaign County v. Church, 62 Ohio St. 
 318, 57 N. E. 50, 48: 738 
 
 41. The liability of a county "in all cases 
 of lynching when death ensues," under S. C. 
 Const, art. 6, 6 (S. C. Acts 1896, p. 213), 
 is not limited to cases in which the persons 
 lynched were prisoners or in custody of the 
 court, although the provision contains the 
 words "without regard to the conduct of 
 the officers," as these mean that this liabil- 
 ity is without reference to other provisions 
 respecting the lynching of prisoners. Brown 
 v. Orangeburg County, 55 S. C. 45, 32 S. E. 
 764, 44: 734 
 Delegation of power. 
 
 Delegation of Power to Counties, see Con- 
 stitutional Law, 211-213. 
 For Editorial Notes, see infra, III. 2. 
 
 42. The treatment and cure of inebriates 
 by a private corporation at county expense 
 is in no sense the performance of any mu- 
 nicipal function within the prohibition of 
 Const, art. 5, 35, prohibiting the delega- 
 tion of such functions. Re House, 23 Colo. 
 87, 46 Pac. 117, 33: 832 
 
 b. Warrants; Indebtedness. 
 
 Adverse Claim on Warrants, see Adverse 
 
 Claim, 2. 
 Compelling Payment of, see Mandamus, 80- 
 
 84. 
 As to County Bonds, see Bonds, III. b. 
 
 43. Failure of the legislature to provide 
 compensation for an attorney who is ap- 
 pointed by the court to conduct disbarment 
 proceedings in accordance with the pro- 
 
 visions of the statute does not absolve the 
 county from liability to make reasonable 
 compensation to him for such services. 
 Hyatt v. Hamilton County, 121 Iowa, 292, 
 96 N. W. 855, 63: 614 
 
 Indebtedness to other county. 
 Runnmg of Limitations as to, see Limita- 
 tion of Actions, 81, 82, 183. 
 
 44. A claim given by a special statute in 
 favor of one county against another need 
 not, unless required by such act, be au- 
 thenticated, as required in the case of ordi- 
 nary claims against counties. Perry County 
 v. Conway County, 52 Ark. 430, 12 S. W. 
 877, 6: 665 
 
 45 A proportion of the debt of a county 
 may be imposed upon another county to 
 which territory detached from the former 
 is attached, not merely by the act segregat- 
 ing the territory, but, if that is silent on 
 the subject, by subsequent legislation. Id. 
 
 46. The county of Cascade, under the 
 Montana act of September 12, 1887, provid- 
 ing that it "shall be liable for and shall 
 pay the sum of $30,000" to the county of 
 Choteau, from which it was created, giving 
 it the option to cause warrants to be issued, 
 which on being indorsed, "Not paid for 
 want of funds," shall bear interest, or to 
 issue coupon bonds and sell them, cannot 
 discharge the debt by delivery of the 
 bonds, but, if it issues the bonds, must 
 convert them into cash and pay the debt. 
 Territory ex rel. Choteau County v. Cas- 
 cade County, 8 Mont. 396, 20 Pac. 809, 
 
 7: 105 
 
 Limit of indebtedness. 
 
 Limit of Municipal Indebtedness, see Munic- 
 ipal Corporations, II. e, 2. 
 For Editorial Notes, see infra, III. 3. 
 
 47. The provision of Mo. Const, art. 10, 
 12, that "no county shall be allowed to be- 
 come indebted, in any manner or for any 
 purpose, to an amount exceeding in any 
 year the income and revenue provided for 
 such year," is to be construed as referring 
 to that class of debts which it is optional 
 with the county court or other governing 
 body of the county to incur, and not to com- 
 pulsory obligations cast on the county by 
 operation of law. Barnard v. Knox County. 
 37 Fed. 563, 2: 426 
 
 48. A constitutional limitation on the 
 amount of county indebtedness applies to 
 a debt for necessary books and stationery 
 which it is made by statute the duty of the 
 county clerk to purchase for his office, as 
 well as to any other obligation. Barnard v. 
 Knox County, 105 Mo. 382, 16 S. W. 917, 
 
 13: 244 
 
 49. In determining whether or not county 
 indebtedness violates a constitutional pro- 
 vision that .no county shall create any in- 
 debtedness, exceeding 2 per cent upon the 
 assessed value of the taxable propertv in it, 
 compulsory obligations imposed bv the leg- 
 islature must be included. Grand Island & 
 N. W. R. Co. v. Baker, 6 Wyo. 369, 45 Pac. 
 494, 34: 835 
 
 50. A prohibition against county indebt- 
 edness for any other than strictly county 
 purposes will not prevent indebtedness for
 
 COUNTIES, II. c. 
 
 885 
 
 a public canal through the county to connect 
 two large public water ways with the ocean. 
 Lancey v.King County, 15 Wash. 9, 45 Pac. 
 645, 34: 817 
 
 61. A judgment against a county for a 
 claim which should have been paid out of 
 current revenue, but was not because the 
 amount limited by the Constitution was 
 exhausted, and which did not become valid 
 county indebtedness because the constitu- 
 tional limit of indebtedness had already 
 been reached, or because it was not legally 
 adopted by the people, is not "public debt" 
 within the meaning of a provision of a 
 Constitution limiting the tax rate except 
 for public debt and interest thereon. Grand 
 Island & N. W. R. Co. v. Baker, 6 Wyo. 
 369, 45 Pac. 494, * 34: 835 
 
 52. Necessary expenditures made manda- 
 tory in the Constitution, and provided for 
 by the legislature of the state, and im- 
 posed upon a county, are not within the 
 limitation of county indebtedness, made by 
 Wash. Const, art. 6, 6. Rauch v. Chap- 
 man, 16 Wash. 568, 148 Pac. 253, 36: 407 
 Warrants. 
 
 Cancelation of, in Equity, see Equity, 62, 
 63. 
 
 Interest on, see Interest, 95, 96. 
 
 Mandamus to Compel Payment of, see Man- 
 damus, 81-83, 187. 
 
 Party to Suit to Enjoin Payment of, see 
 Parties, 128. 
 
 As to Municipal Warrants, see Municipal 
 Corporations, 334-338. 
 
 See also supra, 46. 
 
 53. Warrants or orders directed to the 
 county treasurer, and expressed upon their 
 face to be "chargeable under the head of 
 county expenditures," or to be payable "out 
 of any money in the treasury appropriated 
 for county purposes," are prima facie valid 
 claims against the county, when issued by a 
 clerk of the court who is ex officio auditor, 
 and whose official duty it is to audit all 
 accounts against the county and keep on. 
 file vouchers therefor, and who cannot legal- 
 ly audit accounts until they are approved 
 by the county commissioners. Ray v. Wil- 
 son, 29 Fla. 342, 10 So. 613, 14: 773 
 
 54. An order of a board of county com- 
 missioners requiring that county warrants 
 previously issued shall be presented for re- 
 examination by the board, and providing 
 that all such scrip not presented by a 
 stated day shall be of no effect, or "repu- 
 diated," is, though published according to 
 the terms of the order, no defense to the 
 payment of warrants not presented. Id. 
 
 55. A good-faith purchaser of county war- 
 rants occupies no better position than the 
 seller, as they are non-negotiable within the 
 meaning of the law merchant. Erskine v. 
 Steele County, 4 N. D. 339, 60 N. W. l(tr>0. 
 
 28: 645 
 
 56. A portion of a county warrant issued 
 by the county commissioners, which repre- 
 sents the discount at which the warrant 
 will be sold, is illegal and void. Id. 
 
 57. A county warrant issued by the com- 
 missioners of a newly formed county, in the 
 absence of legislative authority, for tran- 
 
 scribing from the records of the counties out 
 of which it is formed such part as relates to 
 real estate situated in the former county, is 
 illegal and void. Id. 
 
 58. A statute may so far validate void 
 county warrants theretofore issued that the 
 plea of ultra vires cannot thereafter be in- 
 terposed as a defense thereto; but the pur- 
 pose to validate them must be clearly ex- 
 pressed by the legislature, or be deducible 
 from the statute by necessary implication. 
 Erskine v. Nelson County, 4 N. D. 66, 58 N. 
 W. 348, 27 : 696 
 
 c. Power to Tax; County Purposes. 
 
 Due Process as to, see Constitutional Law, 
 
 658. 
 
 To Pay Militia, see Militia, 5. 
 For Maintenance of Armory, see Militia, 12. 
 Purposes for which Public Money may be 
 
 Used, see Public Moneys, II. 
 Special Legislation as to, see Statutes, 362, 
 
 365, 366. 
 
 As to Taxes Generally, see Taxes. 
 Amount of Tax Rate, see Taxes, 353. 
 Special County Tax for Deficiency, see 
 
 Counties, 69. 
 See also supra, 42, 50, 51. 
 
 Payment of judgment. 
 
 59. The fact that the validity of the debt 
 on which a judgment against a county was 
 rendered cannot be questioned in a proceed- 
 ing to enforce a tax to pay it does not pre- 
 vent a resistance of the tax on the ground 
 that it was not authorized by law. Grand 
 Island & N. W. R. Co. v. Baker, 6 Wyo. 369, 
 45 Pac. 494, 34: 835 
 
 60. Recourse to the claims upon which 
 judgments against a county were rendered 
 may be had to determine to what class they 
 belong, and whether or not any limit is im- 
 posed upon taxation by which they may be 
 enforced. Id. 
 Payment of bridge bonds. 
 
 61. The requirement that a county shall 
 pay the debt of a city within it, made by 
 Or. act 1895, providing for a county tax to 
 pay the interest and principal' on the bridge 
 bonds of the city of Portland, is unconsti- 
 tutional. Simon v. Northup, 27 Or. 487, 40 
 Pac. 560, 30: 171 
 Roads and bridges. 
 
 Necessity of Appropriation for, see Appro- 
 priations, 3, 4. 
 
 Repeal of Statute as to, see Statutes, 585. 
 See also supra, 61 ; public Moneys, 54. 
 
 62. The constitutional provision that mon- 
 ey raised by county taxes should not be used 
 for other than county purposes is not vio- 
 lated by Fla. Acts 1891, chap. 4014, 17, pro- 
 viding that half the funds raised for county 
 roads and bridges shall be turned over to 
 municipal authorities for town or city 
 streets. Duval County Comrs. v. Jackson- 
 ville, 36 Fla. 196, 18 So. 339, 29: 416 
 
 63. Under the Constitution and laws of 
 Florida, a county cannot impose taxes ex- 
 cept for county purposes; and the building 
 of a bridge in a county, within the corpor- 
 ate limits of a municipality, in which the 
 county outside of those limits is in nowise
 
 896 
 
 COUNTIES, H. <L 
 
 interested, the same being for the sole bene- 
 fit and advantage of the municipality, is not 
 a county purpose. Skinner v. Henderson, 
 26 Fla. 121, 7 So. 464, 8: 55 
 
 64. If a county may build a bridge with- 
 in the limits of a municipality when the cir- 
 cumstunces suit, it may also aid the munic- 
 ipality in building one under like circum- 
 stances, even though it is to be constructed 
 under a contract with the municipality, and 
 is to be under its control. Id. 
 Improvements of navigation. 
 
 65. The work of improving the naviga- 
 tion of a river and removing obstructions 
 therefrom within a county is a county pur- 
 pose, within the meaning of a constitutional 
 provision that the legislature shall author- 
 ize counties to raise taxes for county pur- 
 poses, although the river is a navigable 
 stream and public highway for interstate 
 and foreign commerce, running far beyond 
 the limits of the county, and the commerce 
 and business of the river within the county 
 limits is very small and of no importance. 
 Stockton v. Powell, 29 Fla. 1, 10 So. 688, 
 
 15:42 
 Maintenance of courts. 
 
 66. The expense of maintaining 1 the dis- 
 trict court is a county purpose which must 
 be provided for out of the fund raised by 
 the limited tax levy authorized by Wyo. 
 Const, art. 15, 5. Grand Island & N. W. 
 R. Co. v. Baker, 6 Wyo. 369, 45 Pac. 494, 
 
 34: 835 
 Water supply. 
 
 67. Providing an adequate supply of wa- 
 ter for municipal domestic purposes in one 
 of the communities of a county is a matter 
 pertaining to the interests of the county, 
 and is a legitimate county purpose, within 
 the meaning of N. M. Comp. Laws 1897, 
 604, U 5, empowering county commissioners 
 to have the management of the interests of 
 the county, and 651, f 4, giving a county 
 power "to make all contracts and do all 
 other acts in reference to the property and 
 concerns necessary to the exercise of its cor- 
 porate or administrative powers." Agua 
 Pnra Co. v. Las Vegas, 10 N. M. 6, 60 Pac. 
 208, 50: 224 
 Buildings of state agricultural station. 
 
 68. A county cannot be taxed for the site 
 and construction, of buildings of a state 
 agricultural station, to secure its location 
 within the county, under a constitutional 
 provision which requires all taxes for gen- 
 eral revenue for the state to be levied by a 
 uniform rule upon all the taxable property 
 within the state, since a tax for such pur- 
 pose is general revenue for the state, al- 
 though incidental benefits may accrue to 
 property in the county by reason of such 
 location. Wasson v. Wayne County Comrs. 
 49 Ohio St. 622, 32 N. E. 472, 17: 795 
 Deficiency in school fund. 
 
 69. A special tax by county commission- 
 ers to supply a deficiency in the amount 
 necessary to keep the public schools ppen 
 for at least four months in the year, as re- 
 quired by N. C. Const, art. 9, 3, is not a 
 tax "for a special purpose" imder art. 5, 
 6, which limits the amount of county taxes 
 
 to double the state tax "except for a spe- 
 cial purpose and with the approval of the 
 general assembly." Bladen County Bd. of 
 Edu. v. Bladen County, 111 N. 6. 578, 16 
 S. E. 621, 18: 850 
 
 Public fair or exposition. 
 What will Avoid Appropriation for, see Ap- 
 propriations, 1. 
 
 Use of Public Funds for, Generally, see Pub- 
 lic Moneys, 18-21. 
 
 70. The expense of placing blocks of stone 
 from a county in a state building at the 
 Columbian World's Fair cannot be made a 
 county tax. Hayes v. Douglas Countv, 92 
 Wis. 429, 65 N. W. 482, 31 : 213 
 
 71. An exhibition of the resources of a 
 county at a state centennial exposition is a 
 county purpose within the meaning of a 
 constitutional provision authorizing taxa- 
 tion for county purposes. Shelby County 
 v. Tennessee Centennial Exposition Co. 96 
 Tenn. 653, 36 S. W. 694, 33: 717 
 
 72. The fact that a state exposition is be- 
 yond the territorial limits of a county does 
 not show that a county exhibition there is 
 not for a county purpose. Id. 
 
 73. The public schools of a county may be 
 classed among her "resources," within the 
 meaning of a statute and resolutions of a 
 county court for an exhibit of the county 
 resources at a state exposition. Id. 
 Prerequisites to refunding of illegal tax. 
 Recovery Back of Taxes Paid, see Assump- 
 
 sit, 48, 52, 54, 55, 58. 
 
 74. Suit for the refunding of an illegal 
 tax cannot be maintained against the coun- 
 ty until the claim has been presented to the 
 board of supervisors, under a statute provid- 
 ing that that board shall direct the treas- 
 urer to refund illegal taxes. Bibbins v. 
 Clark, 90 Iowa, 230, 59 N. W. 290, 29: 278 
 
 d. Contracts; Power and Procedure of Of- 
 ficers. 
 
 Mode of Action by Board of Supervisors, 
 
 see Boards, 4. 
 Delegation of Power to County Board, see 
 
 Constitutional Law, 211-213. 
 Constitutional Provision as to Term of 
 
 Commissioner, see Constitutional Law, 
 
 51. 
 Power of Officers as to Courthouse, see 
 
 Courthouse. 
 
 Power as to Running of Elevators in Court- 
 house, see Courts, 5. 
 Powers of Drain Commission, see Drains 
 
 and Sewers, 1. 
 Evidence of Recitals in Records of Board, 
 
 see Evidence, 2309. 
 Injunction against Contract, see Injunction, 
 
 344, 345. 
 Power to Reduce Number of Justices, see 
 
 Justice of the Peace, 3. 
 Mandamus to Officer, see Mandamus, I. d. 
 Power of County Board to Annex Territory 
 
 to City, see Municipal Corporations, 23. 
 Who are County Officers, see Officers, 60, 62. 
 Double Nature of Office, see Officers, 3, 87. 
 Liability of Officers, see Officers, 207. 
 Salary of Officers, see Officers, 178, 183, 
 
 185-187, 189, 190.
 
 COUNTIES, II. d. 
 
 837 
 
 Special Legislation as to Salaries of Depu- 
 tir-. see Statutes, 405. 
 
 Compensation of Probate Judge as County 
 Oilicer, see Judges, 60. 
 
 Election of County Superintendent, see Par- 
 liamentary Law, 2. 
 
 Casting Vote by Auditor,-see Parliamentary 
 Law, 34. 
 
 Subscription by, in Aid of Railroad, see 
 Railroads, 31-33. 
 
 Special Legislation as to Formation of Gov- 
 erning Board of, see Statutes, 318. 
 
 As to County Treasurer, see County Treas- 
 urer. 
 
 See also supra, 3, 4, 18, 32-34. 
 
 75. Officials in charge of the financial 
 affairs of a county have no authority in 
 law to purchase vaccine matter, &nd make 
 the cost of the same a charge against the 
 county. Daniel v. Putnam County, 113 Ga. 
 570, 38 S. E. 980, 54: 292 
 
 76. A contract by a county to build a 
 bridge is not authorized by an appropriation 
 for preliminary work, estimates, etc., to- 
 wards securing such bridge. Fones Bros. 
 Hardware Co. v. Erb, 54 Ark. 645, 17 S. W. 
 7, , 13:353 
 
 77. County commissioners are not author- 
 ized to enter into contracts for the care and 
 support of persons in the county asylums 
 for the poor, which are organized solely 
 for the purpose of public charity and be- 
 nevolence; hence, no recoverv can be had 
 by them upon a contract to pay for care 
 and support furnished to an insane person. 
 Montgomery County v. Ristine, 124 Ind. 
 242, 24 N. E. 990, 8: 461 
 Power of board to confess judgment. 
 
 78. A board of county commissioners 
 which can only act as a body in session can- 
 not confess judgment against the county un- 
 der a statute requiring defendant to per- 
 sonally appear in court in order to confess 
 judgment. Grand Island & N. W. R. Co. v. 
 Baker, 6 Wyo. 360, 45 Pac. 494, 34: 835 
 
 79. A power of attorney to confess judg- 
 ment cannot be given by a board of county 
 commissioners without statutory authoritv. 
 
 Id. 
 Power to buy and sell property. 
 
 80. A sale and conveyance of an academy 
 by a county to a presbytery is void unless 
 made under legislative authority. Jefferson 
 Countv Supers, v. Grafton, 74 Miss. 435. 21 
 So. 247, 36: 798 
 
 81. The power of a county to buy land 
 cannot be questioned by one who claims un- 
 der the county's title, but that question is 
 one which the state only can raise. ' Id. 
 Contract beyond term of office. 
 
 82. A contract for the employment of a 
 keeper of a county poorhouse for three 
 years is not within the power of a board of 
 supervisors, each of whom is elected for one 
 year only, although the statute <rives them 
 power to appoint such keoper without any 
 exprepn limitation as to the time. Mill'kin 
 v. Edgar County, 142 111. 528, 32 N. E. 403. 
 
 18: 447 
 
 83. A contract by which a board of coun- 
 ty commissioners attempts to employ a 
 legal adviser for a period of three years, to 
 
 commence three months in the future and 
 after the time for the election of a person 
 to fill the vacancy caused by the expira- 
 tion of the term of office of one member of 
 the board, the term of employment extend- 
 ing over a period during which all the mem- 
 bers of the board as constituted at the time 
 of the contract will retire therefrom unless 
 re-elected, is against public policy and void. 
 Jay County v. Taylor, 123 Ind. 148, 23 N. 
 E. 752, 7: 160 
 
 84. A board of county commissioners can- 
 not bind or tie the hands of their successors 
 in office by making a designation of news- 
 papers for publications and printing which 
 shall continue for longer than one year. 
 Sheldon v. Fox, 48 Kan. 356, 29 Pac. 759, 
 
 16: 257 
 Place of meetings of board. 
 
 85. Action at a meeting not held at the 
 county courthouse as required by law, by 
 a board of supervisors, whereby they con- 
 sider a petition for a local-option election 
 and make an order therefor, is void, and 
 cannot give validity to an election based 
 thereon. Harris v. State ex rel. Dolan, 72 
 Miss. 960, 18 So. 387, 33: 85 
 
 86. The law requiring the board of super- 
 visors to meet "at the courthouse" is not 
 complied with by meeting in another build- 
 ing outside the inclosure of the courthouse 
 lot, although it had one door which opened 
 into such inclosure, especially when the 
 meeting was held in a room which had no 
 interior connection with such inclosure. Id. 
 Private sessions of board. 
 
 87. A statute requiring a county board of 
 revenue to act in private when passing on 
 any claim or awarding a contract does not 
 violate a constitutional provision that 
 courts must be open, since in such matters 
 it is not in the exercise of judicial power. 
 State ex rel. Bragg v. Rogers, 107 Ala. 444, 
 19 So. 909, 32: 520 
 Adjourned meetings of board. 
 
 88. The statutory provisions naming the 
 time for trustees to convene in order to ap- 
 point a county superintendent are directory 
 only, and the failure to get a quorum on 
 that day does not prevent a meeting for 
 that purpose on a subsequent day. Wamp- 
 ler v. State ex rel. Alexander, 148 Ind. 557, 
 47 N. E. 1068, 38: 829 
 
 89. Where a regular meeting of a board 
 of county commissioners adjourns to a sub- 
 sequent day, all the members being present, 
 each member is charged with the official 
 duty of attending, and with notice of any 
 lawful action to be taken at such adjourned 
 meeting : and anything done at such meet- 
 ing within the power of the board to do is 
 not rendered invalid by the fact that one 
 member did not attend it. Stockton v. Pow- 
 ell. 29 Fla. 1, 10 So. 688, 15: 42 
 
 90. A special meeting of a board of coun- 
 ty commissioners, of which each commis- 
 sioner has been duly notified, may be ad- 
 iourned to a subsequent day by the mem- 
 bers present, a majority of the entire 
 board; and it seems that less than a ma- 
 jority may do so. The members present at 
 such meeting have actual notice of the ad-
 
 838 
 
 COUNTIES, in. COUNTY SEAT. 
 
 journment, and those not present are 
 charged in law with notice thereof, and the 
 adjourned meeting is but a continuation of 
 the original one; and anything done at the 
 adjourned meeting, concerning the matter 
 for which the meeting was originally called, 
 is as legal as if it had been done before the 
 adjournment. Id. 
 
 Allowance by board. 
 
 91. The action of county commissioners 
 on petition under Ind. Acts 1893, p. 741, 
 which says the board "may fix and allow a 
 certain sum" within prescribed limits and 
 that any such allowance and the proceed- 
 ings of the board in relation thereto, "if in 
 conformity with the provisions of this act, 
 shall be final and conclusive," is an exer- 
 cise of the discretion of the board, and is 
 not a judicial act from which an appeal can 
 be taken. Vigo County Comrs. v. Davis, 
 136 Ind. 503, 36 N. E. 141, 22: 515 
 
 92. The allowance by the board of com- 
 missioners of a claim by a county officer 
 against the county, in violation of the plain 
 letter of the statute, is not binding on the 
 county. Gross v. Whitley County Comrs. 
 158 Ind. 531, 64 N. E. 25, 58: 394 
 
 in. Editorial Notes. 
 
 i. Generally. 
 
 As quasi corporations. 1: 757.* 
 Garnishment of. 37:207. 
 Extrinsic evidence to show unconstitution- 
 ally of statutes incorpo- 
 rating counties. 14: 459. 
 Legislative power to change boundaries. 
 
 1: 757.* 
 By whom action affecting counties must be 
 
 brought. 64: 619. 
 2. Powers. 
 
 Delegation of legislative power to county 
 boards of supervisors. 16: 
 161. 
 
 As trustees of charities. 14: 70. 
 3. Liabilities. 
 Constitutional limitation on debts. 2: 426;* 
 
 6: 665.* 
 
 Liability for imprisonment of person in un- 
 healthful or unfit prison. 
 36: 293. 
 4. Liability of county in actions for torts 
 
 and negligence. 
 
 Injuries to travelers and vehicles. 39: 33. 
 By bridges and approaches being out of 
 
 repair. 39: 33. 
 Implied liability. 39: 33. 
 Where statute imposes liability. 
 
 39: 46. 
 From defective roads and highways. 
 
 39: 53. 
 
 Where the injury was caused by the 
 fright of a horse. 39: 56. 
 By negligence of employee. 39: 59. 
 Injuries to other persons. 39: 59. 
 
 From condition of buildings. 39: 59. 
 Generally. 39: 59. 
 On account of escape from prison. 
 
 39: 60. 
 
 By negligence or wrongful act of em- 
 ployee. 39: 62. 
 
 Injuries to real property from public im- 
 provements. 39: 63. 
 Generally. 39: 63. 
 By construction and operation of 
 
 bridges. 39 : 65. 
 By roads. 39 : 68. 
 
 By ditches, canals, and dams. 39: 69. 
 By buildings. 39: 70. 
 
 Other wrongful and negligent acts affect- 
 ing persons or property. 
 39: 71. 
 
 Generally^ 39: 71. 
 Affecting property. 39: 72. 
 Infringement of patentf. 39: 73. 
 Damages by defaulting officer. 39: 74. 
 By misapplication, conversion, or taking 
 
 property. 39: 75. 
 
 Presentation of claims before county board 
 as a condition precedent 
 to suit. 39: 77. 
 5. County seat. 
 Bribery in vote for. 15: 501. 
 Establishment of. 13: 174.* 
 
 COUNTS. 
 
 In Pleading, see Pleading, 14, 15, 213, 219. 
 Election between, see Trial, I. b. 
 
 COUNTY ATTORNEY. 
 
 See District and Prosecuting Attorneys. 
 
 4 > 
 
 COUNTY AUDITOR. 
 
 See Auditors. 
 
 COUNTY CLERK. 
 
 Eligibility of Women to Office of, see Offi- 
 
 cers, 17, 18. 
 Salary of, see Officers, 178, 189. 
 
 COUNTY COMMISSIONERS. 
 
 Certiorari to, see Certiorari, 15, 43. 
 See also Counties, II. d. 
 
 COUNTY RECORDER. 
 
 Delegation of Power to, see Constitutional 
 Law, 235-240. 
 
 COUNTY SEAT. 
 See Counties, I. b.
 
 COUNTY SOLICITOR COUPONS. 
 COUNTY SOLICITOR. COUPONS. 
 
 Compensation of, see Officers, 190. 
 
 COUNTY SUPERINTENDENT. 
 Tie Vote for, see Parliamentary Law, 34. 
 
 COUNTY TREASURER. 
 
 Bond of, see Bonds, II. c. 
 
 Premature Action on Bond of, see Action or 
 Suit, 19. * 
 
 Liability for Lending to, to Conceal Embez- 
 zlement by, see Counties, 27. 
 
 Injunction against, see Money in Court, 4. 
 
 Liability for Interest, see Compromise and 
 Settlement, 16; Interest, 62-64. 
 
 Res Judicata as to Right to Compensation, 
 see Judgment, 88. 
 
 Mandamus to, see Mandamus, 69, 81-84. 
 
 Rights of, as to Public Money, see Public 
 Moneys. 
 
 Deposits by, see Public Moneys, 7. 
 
 Subrogation of, to Tax Lien, see Subroga- 
 tion, 30. 
 
 1. A county treasurer does not become en- 
 titled to the compensation allowed by a prior 
 act during the time in which a decision hold- 
 ing void the act in force when he took office 
 remains unreversed; but upon the reversal 
 of such decision his rights since he entered 
 upon the discharge of his duties are governed 
 by the later act. Gross v. Whitley County 
 Comrs. 158 Ind. 531, 64 N. E. 25, 58: 394 
 
 2. A county treasurer is not entitled to 
 compensation under the statute in force dur- 
 ing his first term for services performed dur- 
 ing his second term, when a different statute 
 was in force, on the ground that he was pre- 
 vented by injunction from performing them 
 during his first term. Id. 
 
 3. Interest received by a county treasurer 
 after ue has gone out of office, on account of 
 money deposited by him in a bank while in 
 office, without any agreement for interest, 
 cannot be recovered from him by the county, 
 where there is no statutory provision re- 
 quiring him to account for such interest, and 
 the law expressly prohibits him from loan- 
 ing the money, either with or without inter- 
 est. Maloy v. Bernalillo County Comrs. 10 
 N. M. 638, 62 Pac. 1106, 52: 126 
 
 COUPLERS. 
 
 Negligence as to, see Master and Servant, 90. 
 
 183-193, 201. 
 Assumption of Risk as to, see Master and 
 
 [Servant, 321, 326. 
 Contributory Megligence as to, see Master 
 
 and Servant, 408-413. 
 
 As Affecting Negotiability of Note, see Bills 
 
 and Notes, 75. 
 
 Notice by Recitals in, see Bonds, 90. 
 Estoppel as to, by Recitals in Bond, see 
 
 Bonds, 156. 
 For Repayment of Extra Fare Charged, see 
 
 Carrier*, 637. 
 
 Jurisdiction of Suit on, see Courts, 344. 
 Evidence as to Liability on, see Evidence, 
 
 2093. 
 
 Interest on, see Interest, 14, 15, 100. 
 Limitation of Action on, see Limitation of 
 
 Actions, 47. 
 Secured by Mortgage, see Mortgage, 149, 158, 
 
 217. 
 Retaining Amount of Tax From, see Taxes, 
 
 526. 
 
 1. Although an action may be maintained 
 upon coupons for interest on a corporation 
 mortgage bond without the production of 
 the bond, a recovery must be based upon the 
 obligation contained in the bond, and no re- 
 covery can be had contrary to the agreement 
 therein expressed. McClelland v. Norfolk S. 
 R. Co. 110 N. Y. 469, 18 N. E. 237, 1: 299 
 
 2. The cancelation before maturity of a 
 negotiable bond, or its payment to the hold- 
 er, without notice to a bona fide holder of 
 negotiable coupons which have been detached 
 and transferred to him, cannot affect his 
 rights. Internal Improv. Fund v. Lewis, 34 
 Fla. 424, 16 So. 325, 26: 743 
 
 3. The first coupon, as well as others, is 
 included in a sale of bonds to a syndicate 
 without any exception or reservation of it 
 from the sale, although there is a provision 
 that two thirds of the first payment of in- 
 terest shall be paid by a trustee as commis- 
 sion, and any interest in that coupon is 
 therefore derived through the syndicate, and 
 subject to the rule which precludes one mem- 
 ber from secretly obtaining a commission 
 in which his associates do not share. Balti- 
 more Trust & G. Co. v. Hambleton, 84 Md. 
 456, 36 Atl. 597, 40: 216 
 Assignment; negotiability. 
 
 4. In the absence of an express agreement 
 or controlling equity to the contrary, the as- 
 signment of one of a number of coupon in- 
 terest notes secured by a mortgage carries 
 with it a pro rata share of the security. 
 Champion v. Hartford Invest. Co. 45 Kan. 
 103, 25 Pac. 590, 10: 754 
 
 5. The title to interest coupons passes 
 from hand to hand by mere delivery. Id. 
 
 6. Interest coupons on negotiable bonds 
 may be detached and negotiated separateiy 
 by simple delivery, and sued on separately 
 from the bond after the bond itself has been 
 paid and satisfied, as well as uetore. Inter- 
 nal Improv. Fund v. Lewis, 34 Fla. 424, 16 
 So. 325, 26: 743 
 
 7. Coupons that are payable to bearer, and 
 that are attached to and represent the semi- 
 annual instalments of interest accruing upon 
 railroad bonds, are in legal effect promissory 
 notes, and possess all the attributes of nego- 
 tiable paper. Id.
 
 840 
 
 COUPON TICKETS COURTS. 
 
 COUPON TICKETS. 
 See Carriers, II. a, 10, &. 
 
 COURTHOUSE. 
 
 Authorizing Circuit Courts to Repair Rooms, 
 
 see Constitutional Law, 253. 
 Locking, as a Contempt of Court, see Con- 
 
 tempt, 13. 
 Order to Discharge Water Closets of, on Ad- 
 
 joining Land, see Counties, 26. 
 Meeting of County Board at, see Counties, 
 
 85, 86. 
 
 Power of Court over, see Courts, 3-5. 
 Injunction as to Control or Repair of, see 
 
 Injunction, 274, 275. 
 Use of Town Funds for Building of, see Pub- 
 
 lic Moneys, 25. 
 As to Removal of County Seat, see Coun- 
 
 ties, I. b. 
 As to Place of Sitting of Court, see Courts, 
 
 314-317. 
 
 1. A lease of rooms in a courthouse to be 
 used for private purposes cannot be lawfully 
 made by county commissioners in the ab- 
 sence of statutory authority. State ex rel. 
 Scott v. Hart, 144 Ind. 107, 43 N. E. 7, 
 
 33: 118 
 
 2. The custody and care of the courthouse 
 and jail, given to the sheriff by 111. Rev. 
 Stat. chap. 125, 14, is a limitation of the 
 provision of chap. 34, 25, giving to the 
 county board the care and custody of all the 
 real estate owned by the county. Dahnke v. 
 People, 168 111. 102, 48 N. E. 137, 39: 197 
 
 3. The custody of the courthouse, which 
 the sheriff, as the court's executive officer, 
 has, is the custody and care of the building 
 as a courthouse, while as real estate simply 
 it is in the care and custody of the county 
 board, which controls the title and keeps it 
 in repair. Id. 
 
 4. An assignment of the different court 
 rooms in the courthouse to the different 
 judges of the courts of record is not within 
 the power of the county board under stat- 
 utes requiring the board to provide a court- 
 house and proper rooms and offices for the 
 accommodation of such courts; but it rests 
 with the judges -of the courts to arrange 
 among themselves how they will occupy the 
 several court rooms provided by the board. 
 
 Id. 
 
 5. The power to manage county affairs, 
 given to the county board by 111. Const. 
 1870, art. 10, 7, does not include the power 
 to assign court rooms to the different judges 
 of the courts of record. Id. 
 
 Editorial Notes. 
 
 Mechanics' lien on. 35: 142. 
 
 Lease or license of, for private use. 33: 118. 
 
 COURT OF CLAIMS. 
 
 Jurisdiction of, see Courts, 326. 
 See also Alabama Claims. 
 
 Editorial Notes. 
 Act creating. 2: 572.* 
 
 COURT OF VISITATION. 
 
 Delegation of Power to, see Constitutional 
 Law, 191. 
 
 COURT ROOM. 
 
 Liability of Judge for Excluding Spectator 
 from, see Judges, 62. 
 
 COURT RULES. 
 
 For Admission of Attorneys, see Attorneys, 
 1, a, 2, 14. 
 
 COURTS. 
 
 I. Jurisdiction and Powers in General. 
 
 a. In General; Inherent Powers. 
 
 b. Over Nonresidents; Territorial 
 
 Limitations. 
 
 1. Generally. 
 
 2. Crimes. 
 
 3. Real Property. 
 
 a. In General. 
 
 6. In Other State. 
 
 4. Foreign Corporations. 
 
 c. Relation to Other Departments of 
 
 Government. 
 
 1. In General; Political Ques- 
 
 tions. 
 
 2. Legislative Department; Stat- 
 
 utes, 
 o. In General. 
 
 b. Police Power. 
 
 c. Public Purpose ; Tax ; Em- 
 
 inent Domain. 
 
 d. Offices; Elections. 
 
 e. Regulation of Business; 
 
 License. 
 
 3. Municipal Matters. 
 
 a. In General. 
 
 6. Review of Ordinances. 
 
 d. Jurisdiction Over Associations, 
 
 etc.; Conclusiveness of De- 
 cisions of Their Tribunals. 
 
 1. Associations Generally. 
 
 2. Religious Societies. 
 
 e. Legislative Power as to. 
 
 f. Power of Municipality Over. 
 
 g. Loss of Jurisdiction. 
 
 II. State and Territorial Courts. 
 
 a. Jurisdiction. 
 
 1. In General. 
 
 2.' Original Jurisdiction of Appel- 
 late Court; Superintending 
 Control. 
 
 3. As Dependent on Amount. 
 
 4. Matters as to Title. 
 
 5. Trusts; Probate; Insolvency. 
 
 6. Crimes. 
 
 b. Terms; Place of Sitting. 
 
 c. Transfer of Cause. 
 
 d. Opinions. 
 III. Federal Courts. 
 
 a. Suits by or against State or State 
 Officers.
 
 COURTS, I. a. 
 
 841 
 
 III. continued. 
 
 b. Suits against United States. 
 
 c. Federal Questions. 
 
 d. As Dependent on Citizenship. 
 
 e. As Dependent on Amount. 
 
 f. In Equity; Following State Prac- 
 
 tice; Effect of State Laws. 
 
 g. Ancillary Jurisdiction, 
 h. Crimes. 
 
 i. Districts. 
 
 IV. Conflict of Authority; Relation of 
 State to Federal. 
 
 a. Exclusiveness of Jurisdiction First 
 
 Acquired. 
 
 b. Interference with Other Courts; 
 
 Injunctions. 
 
 c. Property in Custody of Courts or 
 
 Officers. 
 
 d. When State or Federal Jurisdiction 
 
 Exclusive; Limitations Upon. 
 
 1. In General. 
 
 2. Criminal Proceedings. 
 V. Rules of Decision. 
 
 a. In General. 
 
 b. Stare Decisis; Previous Decisions 
 
 of Same Court. 
 
 c. Construction and Constitutionality 
 
 of Statutes or Ordinances. 
 
 d. State Courts Following Federal De- 
 
 cisions. 
 
 e. Following Decisions of Courts of 
 
 Other State or Country. 
 
 f. Federal Courts Following State De- 
 
 cisions. 
 VI. Editorial Notes. 
 
 Of Admiralty, see Admiralty. 
 
 Of Mediation, Conciliation and Arbitration, 
 see Arbitration, 12-14. 
 
 Courts Martial, see Courts Martial. 
 
 Binding Effect of Agreed Statement, see 
 Agreed Case, 5. 
 
 Denial by, of Creditor's Right to an Account- 
 ing, see Assignments for Creditors, 90. 
 
 Statute Over-Riding Rules as to Admission 
 of Attorney, see Attorneys, 2. 
 
 Clerk of, see Clerks. 
 
 Performing Business of, Through Commis- 
 sioners, see Commissioners. 
 
 Effect of Amendment of Constitution on De- 
 cisions of, see Constitutional Law, 28. 
 
 Appointment of Metropolitan Board by Leg- 
 islature, see Constitutional Law, 282. 
 
 Delegation of Power, see Constitutional Law, 
 I. d, 3. 
 
 Constitutional Rules as to Procedure, see 
 Constitutional Law, II. a, 7; II. b, 7. 
 
 Constitutionality of Guaranty of Justice in, 
 see Constitutional Law. II. f. 
 
 Change of Decision as Affecting Contract, 
 see Constitutional Law, II. g, 1, 6 (1) 
 (b), and also infra, VI. 1. 
 
 Contempt of, see Contempt. 
 
 Aiding in Enforcement of Illegal Contract, 
 see Contracts, III. g. 
 
 Maintenance of, by County, see Counties, 66. 
 
 Constitutional Provision as to Being Open, 
 see Counties, 87. 
 
 Judicial Notice by, see Evidence, I. 
 
 Presumption in Favor of Judicial Acts, see 
 Evidence, 623-629. 
 
 Oral Evidence of Transactions in, see Evi- 
 dence, 775-778. 
 
 Acts of, on Holidays, see Holidays, 1-5. 
 
 Mandamus to, see Mandamus, I. b. 
 
 Power to Issue Mandamus in Aid of Appel- 
 late Jurisdiction, see Mandamus, 29-31. 
 
 Refusal to Bring in Parties Whose Presence 
 Will Defeat Jurisdiction, see Parties, 
 208. 
 
 Prohibition to Restrain, see Prohibition. 
 
 Power in Quo Warranto, see Quo Warranto. 
 
 Railroad Commissioners as, see Railroad 
 Commissioners, 4. 
 
 Records of, Generally, see Records, 8-10. 
 
 Parol Evidence as to Records of, see Evi- 
 dence, 1231-1235. 
 
 Partial Invalidity of Statute as to, see Stat- 
 utes, 94-97. 
 
 Special Legislation as to, see Statutes, 384- 
 399. 
 
 Repeal of Statute as to, see Statutes, 587. 
 
 Functions of, on Trial, see Trial, ii. a. 
 
 Instruction by, to Trustee, see Trusts, 132. 
 
 As to Judges, see Judges. 
 
 As to Justices of the Peace, see Justice of 
 the Peace. 
 
 As to Removal of Causes, see Removal of 
 Causes. 
 
 I. Jurisdiction and Powers in General, 
 a. In General ; Inherent Powers. 
 
 Powers and Duties as to Naturalization, see 
 Aliens, II. 
 
 Jurisdiction on Appeal, see Appeal and Er- 
 ror. 
 
 Waiver of Objections to Jurisdiction by Ap- 
 pearance, see Appearance. 
 
 To Enforce RigM to Custody of Corpse, see 
 Corpse, 15. 
 
 Effect on Jurisdiction of Requirement of No- 
 tice in Eminent Domain Case, see Emi- 
 nent Domain, 170. 
 
 Presumption as to Jurisdiction, see Evi- 
 dence, 630. 
 
 To Abridge Powers and Duties of Executor, 
 see Executors and Administrators, 32. 
 
 Power to C'noose Assistants for Judges, see 
 Judges, 4. 
 
 Power to Form New Schedules of Water 
 Rates, see Waters, 592. 
 
 For Editorial Notes, see infra, VI. 1-11. 
 
 1. A wrong decision does not destroy ju- 
 risdiction. Turner v. Conkey, 132 Ind. 248, 
 31 N. E. 777, 17: 509 
 
 2. Mere failure of a petition to state a 
 cause of action, or the defective statement 
 of a good cause of action, does not deprive 
 the court of jurisdiction. Schubach v. Mc- 
 Donald, 179 Mo. 163, 78 S. W. 1020, 
 
 65: 136 
 
 Powers generally; inherent powers. 
 To Compel Bankrupt to Assign Transfer of 
 
 Property, see Bankruptcy, 1. 
 To Punish for Contempt, see Contempt, III. 
 
 b. 
 To Assign Court Rooms to Judges, see 
 
 Courthouse, 4. 
 To Suspend Sentence, see Criminal Law, 241- 
 
 246. 
 To Order Physical Inspection, see Discovery 
 
 and Inspection, 18-27.
 
 842 
 
 COURTS, I. a. 
 
 To Award Alimony, see Divorce and Separa- 
 tion, V. 
 As to Running Streams, see Waters, 219. 
 
 3. The power of courts to order necessary 
 repairs to the court room is inherent and in- 
 cidental to jurisdiction, like the power to 
 punish for contempt. White County Comrs. 
 v. Gwin, 136 Ind. 562, 36 N. E. 237, 22: 402 
 
 4. The power of circuit courts to author- 
 ize repairs to the court room cannot extend 
 to the practical reconstruction of the court- 
 house, or to the construction of lasting and 
 permanent improvements, such as exten- 
 sions, additions, and enlargements. Id. 
 
 5. A court has inherent power to order an 
 elevator in the courthouse to be operated by 
 the sheriff during sessions of court, when the 
 use of the elevator is necessary to furnish 
 fit and convenient means of access to the 
 court room, although the county commis- 
 sioners direct, on the contrary, that the use 
 of the elevators shall be discontinued. Vigo 
 County Comrs. v. Stout, 136 Ind. 53, 35 N. 
 E. 683, 22: 398 
 
 6. The courts of the United States must 
 be enabled fully to perform all the functions 
 imposed upon them by the Constitution and 
 laws, without hindrance or obstruction; and 
 they have the inherent power to protect 
 themselves, by and through their executive 
 officers, under the direction and supervision 
 of the Attorney General and the President, 
 against obstruction and hindrance in the 
 performance of their judicial duties. Re 
 Neagle, 14 Sawy. 232, 39 Fed. 833, 5: 78 
 
 7. No court has authority to originate and 
 introduce new process to enable parties to 
 secure evidence in support of their cases. 
 Austin & N. W. R. Co. v. Cluck, 97 Tex. 172, 
 77 S. W. 403, 6*: 494 
 
 8. No court possesses the power to com- 
 pel a trustee to consent to a destruction of 
 a real -estate trust which the statutes pro- 
 hibit him from doing any act to contravene. 
 Cuthbert v. Chauvet, 136 N. Y. 326, 32 N. E. 
 1088, 18: 745 
 
 9. A court has no authority to establish 
 reasonable rules and regulations for the ex- 
 tension of telephone lines, but its authority 
 is limited to requiring the proper authori- 
 ties to adopt such rules and regulations, and 
 to passing upon the validity of such action 
 when taken. Michigan Teleph. Co. v. St. 
 Joseph, 121 Mich. 502, 80 N. W. 383, 
 
 47: 87 
 
 10. A court has no jurisdiction to deter- 
 mine whether a vacancy exists in the office 
 of senator for a certain county, so as to re- 
 quire the election of a new incumbent, when 
 the senate, which is made the judge of the 
 qualifications and election of its members by 
 Md. Const, art. 3, 19, has not decided the 
 question. Covington v. Buffett, 90 Md. 5fif), 
 45 Atl. 204, 47: 622 
 
 11. Courts cannot fix a time different from 
 that fixed by the legislature within which 
 suits may be brought, but the fixing of such 
 time is purely a legislative function. Os- 
 borne v. Lindstrom, 9 N. D. 1, 81 N. W. 72, 
 
 46: 7T5 
 
 12. A court in which suit is brought 
 against a railroad company for negligently 
 killing a passenger, by one who obtained let- 
 
 ters of administration by alleging assets con- 
 sisting of the unsettled claim against the 
 company, cannot investigate the validity of 
 the claim for the purpose of adjudicating 
 that the administration) is void, and that 
 therefore the action cannot be maintained. 
 Boston & M. R. v. Kurd, 47 C. C. A. 615, 108 
 Fed. 116, 56: 193 
 
 13. The court is under no obligation to ad- 
 minister exact justice between litigants; its 
 province being to try the issues formed by 
 the pleadings according to the rules of pro- 
 cedure. Austin & N. W. R. Co. v. Cluck, 97 
 Tex. 172, 77 S. W. 403, 64: 494 
 Power over highway near court room. 
 Municipal Liability for Injury by Rope Or- 
 dered Across Highway by Court, see 
 Highways, 265. 
 
 14. It seems that a judge has authority to 
 order ropes stretched across a street during 
 the hours when his court is sitting, to pre- 
 vent travel in front of the courthouse, when 
 the noise of passing vehicles is sufficient to 
 obstruct the proper administration of jus- 
 tice therein. Belvin v. Richmond, 85 Va. 574, 
 8 S. E. 378, 1: 807 
 
 15. A court may prevent the use, during 
 court hours, of a pavement newly laid in the 
 adjoining street, in such a way that the 
 noise of the traffic thereon interrupts the 
 business of the court, both under its com- 
 mon-law powers, and under a statute giving 
 it power to preserve order so near to it as 
 is necessary to prevent interruption, dis- 
 turbance, or hindrance to its proceedings. 
 Ex parte Birmingham, 134 Ala. 609, 33 So. 
 13, 59: 572 
 Real controversies. 
 
 Suit to Construe Will, see Wills, 463. 
 See also infra, 502. 
 
 16. The court has no power to construe a 
 contract, so as to make its decision res 
 judicata, when the case made and the relief 
 sought are beyond its jurisdiction. Taylor 
 v. Mutual Reserve Fund L. Asso. 97 Va. 60, 
 33 S. E. 385, 45: 621 
 
 17. A court will not inquire into the valid- 
 ty of a divorce obtained by a man since de- 
 ceased, for the mere purpose of satisfying a 
 sentiment as to who is his widow. Law- 
 rence v. Nelson, 113 Iowa, 277, 85 N. W. 84, 
 
 57: 583 
 
 18. For the purpose of determining the 
 proper recipient of a pension due to the wid- 
 ow of a deceased person, the court will in- 
 quire into the validity of a divorce which he 
 had obtained. Id. 
 Power of parties to affect. 
 
 Ousting Jurisdiction of, by Provision for 
 Submitting Differences to Arbitration, 
 see Arbitration, 5-7. 
 
 Provision in Lloyds Policy Ousting Courts 
 of Jurisdiction, see Insurance, 1288. 
 
 Consent to Jurisdiction of Justice of the 
 Peace, see Judgment, 128. 
 
 Raising Question by Stipulation, see Stipu- 
 lation, 5. 
 It). Consent of the parties is sufficient to 
 
 jive jurisdiction over them to a court which 
 
 has jurisdiction of the subject-matter. Cof- 
 
 rode v. Gartner, 79 Mich. 332, 44 N. W. 623, 
 
 7:511
 
 COURTS, I. b, 1. 
 
 843 
 
 20. The parties cannot stipulate that the 
 issues of a cause in the original jurisdiction 
 of the supreme court shall be tried by the 
 court when the supreme court has sent the 
 cause to a subordinate court, with explicit 
 directions to try the issues of fact by sub- 
 mitting them to a jury. C. & J. Michel 
 Brewing Co. v. State (S. D.) 103 N. W. 40, 
 
 70: 911 
 
 21. A stipulation to set aside out of the 
 proceeds of existing insurance policies in 
 case of loss by fire a sum sufficient to pay 
 certain bonds, in case the court should fi- 
 nally decide that the owner of the property 
 as grantee of the equity of redemption was 
 bound to insure for the benefit of the bond- 
 holders, when this was made by large stock- 
 holders in the company owning tfte, property, 
 for the purpose of satisfying the court that 
 there was no disposition to evade the obliga- 
 tion to insure if it were judicially heM to ex- 
 ist, does not put the court in control of 
 funds that arise from the insurance, in such 
 fashion as to qualify it with any special 
 jurisdiction to administer and apply the 
 same, or raise any duty of administering and 
 disposing of a res in court. Farmers' Loan 
 & T. Co. v. Penn Plate Glass Co. 43 C. C. A. 
 114, 103 Fed. 132, 56:710 
 
 b. Over Nonresidents; Territorial Limita- 
 tions. 
 
 1. Generally, 
 
 As to Federal Districts, see infra, III. i. 
 
 Right of Courts of One State to Enforce 
 Laws of, or Causes of Action Arising in, 
 Another State, see Conflict of Laws. 
 
 Prohibiting Action in Other State as Denial 
 of Due Process, see Constitutional Law, 
 827. 
 
 Domicil for Jurisdictional Purposes, see 
 Domicil, 3-6. 
 
 Presumption as to Jurisdiction, see Evi- 
 dence, 630, 631, 634. 
 
 Suit by Foreign Executor, see Executors and 
 Administrators, 114-118. 
 
 Suit against Foreign Executors or Adminis- 
 trators, see Executors and Administra- 
 tors, 124-129. 
 
 As to Venue of Action, see Venue. 
 
 For Editorial Notes, see infra, VI. 6. 
 
 22. A court has no discretion to refuse to 
 hear a case between nonresidents of which 
 it has jurisdiction, merely because the suit 
 is brought there only for convenience of 
 parties and attorneys, and will entail ex- 
 pense upon the county. Cofrode v. Gartner, 
 79 Mich. 332, 44 N. W. 623, 7: 511 
 
 23. Upon the question of the business resi- 
 dence, lor Jurisdictional purposes, of a non- 
 resident who owns, but has discontinued the 
 operation of, a distillery within the county, 
 his testimony as to his intent with respect 
 to resumption of such operation may be con- 
 sidered. Gambrill v. Schooley, 95 Md. 260, 
 52 Atl. 500, 63: 427 
 
 24. The nonresident owner of a distillery 
 located in a certain county cannot be said, 
 as matter of law, to be carrying on business 
 there so as to bring him within the jurisdic- 
 
 tion of its courts, where he has contracted 
 the exclusive sale of his product tor five 
 years to one concern, which cannot be re- 
 quired to take more than 600 barrels per an- 
 num, and there is nothing to show that this 
 cannot be supplied from stock on hand, while 
 the distillery has been closed for three 
 months, and is not to be opened again until 
 orders require it. Id. 
 
 25. An action on contract is within the 
 jurisdiction of the courts of the state in 
 which is the place of performance, although 
 the parties are residents of other states. 
 Cofrode v. Gartner, 79 Mich. 332, 44 N. W. 
 623, 7:511 
 
 26. That the parties are nonresidents and 
 the cause of action originated beyond the 
 limits of the state justify the court in re- 
 fusing to entertain jurisdiction, although the 
 action is transitory; and it will be refused 
 where the cause of action arises out of mat- 
 ters connected with Indian lands. Morris v. 
 Missouri P. R. Co. 78 Tex. 17, 14 S. W. 228, 
 
 9: 349 
 
 27. The judge of a city court, the juris- 
 diction of which extends over the whole of 
 the county in which it is located, has power 
 to grant a writ of 'habeas corpus directed to 
 any person having another in illegal custody 
 within the territorial limits of the county, 
 and to make it returnable to any place with- 
 in the county, notwithstanding such person 
 may be a nonresident of the county. Sim- 
 mons v. Georgia Iron & Coal Co. 117 Ga. 305, 
 43 S. E. 780, 61:739 
 
 28. A court is not deprived of the jurisdic- 
 tion to grant an injunction against numer- 
 ous persons, many ol whom live within the 
 county, against the violation of an exclu- 
 sive ferry franchise for a terry across a 
 river which is a boundary ot the county, 
 merely because the franchise has been grant- 
 ed by the county court of the adjoining coun- 
 ty. Warren v. Tanner, 21 Ky. L. Hep. itt/8, 
 56 S. W. 167, 49: 248 
 
 29. That stocKS and bonds claimed by 
 a domestic corporation had been pledged to 
 a nonresident does not deprive the domestic 
 courts of jurisdiction of a bill in equity at- 
 tacking the validity of the title. Kidd v. 
 .New Jaampshire Traction Co. 72 .N. H. 273, 
 56 Atl. 4U5, tft>: 574 
 Causes of action arising on river forming 
 
 state boundary. 
 See also Boundaries, I. 
 
 30. The "concurrent jurisdiction" over the 
 waters of the Mississippi river, given to the 
 states of Wisconsin and Minnesota by the 
 act of Congress admitting them to the Un- 
 ion, does not empower one state to regulate 
 the individual enjoyment, by people of an- 
 other state within its boundaries, of prop- 
 erty held in trust by such other state for 
 the people within its limits, such as public 
 water and the fish and game that inhabit 
 the same. Roberts v. Fullerton, 117 Wis. 
 222, 93 N. W. 1111, 65: 953 
 
 31. The term "concurrent jurisdiction on 
 the water" of the Mississippi river, in the 
 acts of Congress providing lor the admission 
 of the states of Wisconsin and Minnesota in- 
 to the Union, must be restrained to the or-
 
 844 
 
 COURTS, I b, 2. 
 
 dinary meaning thereof in American public 
 law at the time the term came into use in 
 the legislative enactments of this country. 
 
 Id. 
 
 32. The enforcement, by the state of Min- 
 nesota, of its fish and game laws on the 
 Wisconsin side of the main channel of the 
 Mississippi river, is not justifiable on the 
 theory of common ownership of the river, or 
 things in or on or under the same, on the 
 Wisconsin side of the main channel. Id. 
 
 33. The term "concurrent jurisdiction on 
 the water" of the Mississippi river, used in 
 the acts of Congress providing for the ad- 
 mission of the states of Wisconsin and Min- 
 nesota into the Union, refers to the effect of 
 the law of each state within the domain of 
 the other covered by water divided by the 
 boundary line between the two states, as re- 
 gards persons or things on the water, con- 
 cerned or connected in some way wiui the 
 use thereof for purposes of navigation, and 
 has no reference to the land under the water, 
 or things of a permanent nature in or over 
 the water. In respect to such matters, and 
 rights incident thereto, the jurisdiction of 
 each state on its side of the boundary line 
 is exclusive. Id. 
 
 34. The concurrent jurisdiction which 
 Wisconsin has with the state of Minnesota 
 on the Mississippi river is of a special na- 
 ture, one not incident to, nor implying con- 
 current dominion over, the territory covered 
 by water between the two states, or concur- 
 rent ownership in such water, or the land 
 under the water, or the fish and game that 
 inhabit the same. Id. 
 
 35. Jurisdiction is acquired by an Indiana 
 court by the service of process on the Ohio 
 river on the Kentucky side of the low-water 
 mark on the Indiana shore, in view of the 
 condition contained in the Virginia compact 
 of 1789, 11, that the jurisdiction of the pro- 
 posed state of Kentucky on the Ohio river 
 should be "concurrent only with the states 
 which may possess the opposite shores of the 
 said river," which condition Congress neces- 
 sarily assented to and adopted when it con- 
 sented to the Virginia compact by the act of 
 February 4, 1701 (1 Stat. at L. 189, chap. 4), 
 admitting Kentucky to the Union. Wedding 
 v. Meyler, 192 U. 'S. 573, 48 L. ed. 570, 24 
 Sup. Ct. Rep. 322, 66: 833 
 
 36. The Missouri statute giving damages 
 for injuries resulting in death controls a case 
 between citizens of that state, arising from 
 facts occurring on the Mississippi river near 
 the Illinois shore, east of the main channel, 
 as the act of Congress of April i8, 1818, 
 gives the states bordering on the river con- 
 current jurisdiction so far as the river forms 
 the common boundarv. Sanders v. St. Louis 
 & N. O. Anchor Line, "97 Mo. 26, 10 S. W. 5!).i, 
 
 3: 3:)0 
 
 37. An island outside the boundary of the 
 state of Iowa because east of the middle 
 of the main channel of the Mississippi river 
 is beyond the jurisdiction of the courts of 
 that state for the abatement of 'nuisances 
 thereon or the punishment of crime commit- 
 ted thereon although the state has concur- 
 rent jurisdiction, under act of Congress of 
 
 March 3, 1845, over the river itself for its 
 whole width so far as it forms a boundary. 
 Buck v. illenbolt, 84 Iowa, 394, 51 N. W. 
 22, 15: 187 
 
 Note in other state. 
 
 38. A claim that a note belongs to a non- 
 resident debtor will not make it property 
 subject to trustee process in the hands of the 
 maker, which will give the courts of the 
 state of the maker's residence jurisdiction to 
 make a decree affecting its title or owner- 
 ship, if it is in fact payable to a third per- 
 son and held by him at his residence in an- 
 other state. Ward v. Boyce, 152 N. Y. 191, 
 46 N. E. 180. 36: 549 
 Liability of stockholder of foreign corpora- 
 tion. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 I. d, 2, 6. 
 
 39. An action to enforce the liability of a 
 stockholder under the laws of another state 
 in which the corporation was organized and 
 judgment has been rendered against it, but 
 no proceedings taken against him, cannot be 
 maintained in a state in which the corpora- 
 tion has no place of business, notwithstand- 
 ing that the parties, although both nonresi- 
 dents, do not reside in the same state, and 
 neither of them resides in the state where 
 the corporation was organized. Bank of 
 North America v. Rindge, 154 Mass. 203, 27 
 N. E. 1015, 13: 56 
 Injury in other jurisdiction. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 I. e. 
 
 40. The fact that an action might be 
 brought in Mexico for injuries received there 
 by a railroad employee who lives in Texas, 
 since the defendant owns and operates a 
 railroad in Mexico, does not constitute a 
 reason why he should not sue in Texas, at 
 least when the defendant railway company 
 is incorporated in the United States and its 
 road extends into Texas. Evey v. Mexican 
 C. R. Co. 26 C. C. A. 407, 52 U. S. App. 118, 
 81 Fed. 294, 38: 387 
 
 41. A citizen of one state may maintain 
 in the courts of another state a transitory 
 action arising at his residence against an- 
 other citizen of the same state found in the 
 other state under the provision of the Unit- 
 ed States Constitution guaranteeing to the 
 citizens of each state all the privileges and 
 immunities of citizens of the several states 
 which the courts of the latter state have no 
 discretionary power to dismiss. Eingartner 
 v. Illinois Steel Co. 94 Wis. 70, 68 IS. W. 
 064, 34: 503 
 Destruction of property outside of state. 
 
 42. An action may be maintained in Texas 
 for the destruction of personal property in 
 the territory of the Choctaw Nation. Mis- 
 souri P. R. Co. v. Cullers, 81 Tex. 382, 17 
 S. W. 19, 13: 542 
 
 2. Crimes. 
 
 Right of Courts of One State to Enforce 
 Laws of Another as to, see Conflict of 
 Laws, I. e, 3. 
 
 Venue of Action, see Venue, 17-19. 
 
 For Editorial Notes, see infra, VI. 6.
 
 COURTS, I. b, 8. 
 
 845 
 
 Committed in more than one county. 
 Prosecution in One County as Bar, see Crim- 
 inal Law, 143. 
 See also infra, 385 ; Criminal Law, 33. 
 
 43. A constitutional right to trial by jury 
 of the vicinage does not prevent the trial 
 taking place in either county, in case a 
 crime is begun in one and consummated in 
 another. Hargis v. Parker, 27 Ky. L. Rep. 
 441, 85 S. W. 704, 69: 270 
 
 44. Depositing a forged instrument in the 
 mail directed to another county does not 
 make the county in which it was mailed, but 
 the county where the instrument was re- 
 ceived, the place of the offense of uttering it, 
 if such offense is committed. State v. Hud- 
 son, 13 Mont. 112, 32 Pac. 413, 19: 775 
 
 45. A statute making a crimd , committed 
 partly in each of two counties punishable in 
 either does not apply to the uttering of a 
 forged instrument by mailing it from one 
 county to another, as no part of the of- 
 fense is committed in the former. Id. 
 
 46. A prosecution for obtaining money by 
 the use of the confidence game should be in- 
 stituted in the county where the offense was 
 consummated, and not in that where pre- 
 liminary acts were done, under a statute 
 providing that local jurisdiction of all of- 
 fenses shall be in the county where the gf- 
 fense is committed. Graham v. People, 181 
 111. 477, 55 N. E. 179, 47: 731 
 
 47. Where a death following a fatal blow 
 struck in one county occurs in another the 
 commencement of a prosecution in either 
 will uar a subsequent one in the other, where 
 the statute provides that the jurisdiction 
 shall be in the courts of the county "where 
 the prosecution shall be first begun," al- 
 though a nolle prosequi is entered before 
 the termination of the trial. Coleman v. 
 State, 83 Miss. 290, 35 So. 937, 64: 807 
 
 48. An accessory before the fact to a mur- 
 der in which the wound is inflicted in one 
 county and the injured person dies in an- 
 other may be tried in either county, al- 
 though his acts are committed only in the 
 former, under statutes providing that acces- 
 sories shall be liable to the same punishment 
 as principals, and may be prosecuted jointly 
 with them, and, in case of a crime commit- 
 ted jointly in two counties, the prosecution 
 may be in either. Hargis v. Parker, 27 Ky. 
 L. Rep. 441, 85 S. W. 704, 69: 270 
 Committed in more than one state, gener- 
 ally. 
 
 49. A homicide may be made punishable 
 by statute in the state where the death oc- 
 curs, although the mortal stroke was given 
 in another state, and the Constitution pro- 
 vides that trials of crimes shall be in the 
 county where the "offense was committed." 
 Ex parte McNeely, 36 W. Va. 84, 14 S. E. 
 436, 15:226 
 Shooting across state boundary. 
 
 For Editorial Notes, see infra, VI. 6. 
 
 50. There is no jurisdiction in North Car- 
 olina of the crime committed by persons 
 who, while standing in that state, shoot 
 across the state boundary and kill a person 
 in Tennessee. State v. Hall, 114 N. C. 909, 
 19 S. E. 602, 28: 59 
 
 61. The offense of shooting at another is 
 committed in Georgia when one in the state 
 of South Carolina, without malice afore- 
 thought, but Hot in his own defense or un- 
 der other circumstances of justification, aims 
 and fires a pistol at another who at the time 
 is in Georgia, although the ball misses him, 
 and strikes the water in Georgia near the 
 boat which he occupies. Simpson v. State, 
 92 Ga. 41, 17 S. E. 984, 22: 248 
 
 Committed on river farming state boundary. 
 
 52. A state has jurisdiction to try and 
 punish offenses against its Sunday laws, 
 committed by persons engaged in carrying 
 passengers over navigable waters of the 
 United States lying along its borders, be- 
 tween different points within its territory. 
 Dugan v. State, 125 Ind. 130, 25 N. E. 171, 
 
 9: 321 
 
 53. The courts of Indiana have jurisdiction 
 to try and punish persons selling intoxicat- 
 ing liquors in violation of its laws upon 
 boats anchored in the Ohio river, where such 
 river constitutes the southern boundary of 
 the state. Welsh v. State, 126 Ind. 71, 25 
 N. E. 883, 9: 664 
 
 3. Real Property. 
 a. In General. 
 
 Venue of Action, see Venue, 8-12, 
 
 In other county. 
 
 Mandamus Proceeding, see Mandamus, 151. 
 
 54. The circuit court of one county having 
 jurisdiction of the parties and the original 
 controversy has jurisdiction to decree a sale 
 of land in another county as incidental to 
 the relief originally sought. Doty v. Depos- 
 it Bldg. & L. Asso. 103 Ky. 710, 46 S. W. 219, 
 47 S. W. 433, 43: 551 
 
 55. Land of the husband in another county 
 within the state is withm the jurisdiction of 
 a court in a divorce suit to decree an ali- 
 mony under Kan. Code Civ. Proc. 72. Wes- 
 ner v. O'Brien, 56 Kan. 724, 44 Pac. 1090, 
 
 32: 289 
 
 56. A suit to compel the execution or can- 
 celation of deeds to land may be within the 
 jurisdiction of a court outside of the county 
 in which the land lies, if it has jurisdiction 
 of the person of the defendant. Hayes v. 
 O'Brien, 149 111. 403, 37 N. E. 73, 23: 555 
 In other country. 
 
 For Editorial Notes, see infra, VI. 6. 
 
 57. The facts that the parties to a con- 
 tract for the purchase and sale of land are 
 foreigners, and that tire land is situated in a 
 foreign country, will not prevent the courts 
 of the state in which the contract was en- 
 tered into from taking jurisdiction of a suit 
 brought by the vendee, after repudiating the 
 contract because of the vendor's fraud, to 
 compel the restoration to him of money and 
 securities given in exchange for the land, 
 which are within the jurisdiction of such 
 courts; the vendee having voluntarily sub- 
 mitted himself to their jurisdiction, and of- 
 fered to do equity. Loaiza v. San Francisco 
 Super. Ct. 85 Cal. 11, 24 Pac. 707, 9: 376
 
 846 
 
 COURTS, I. b, 4. 
 
 6. In Other State. 
 
 Venue of Action, see Venue, 10. 
 
 See also Executors and Administrators, 118; 
 
 Judgment, 366, 377. 
 For Editorial Notes, see infra, VI. 6. 
 
 58. A court of equity sitting in one state 
 has jurisdiction of a suit by one of its citi- 
 zens holding a mortgage on property in an- 
 other state, to enjoin another citizen from 
 removing from the property alleged fixtures 
 which he had furnished under a conditional 
 contract, at least where the nonresident 
 mortgagor voluntarily comes in and submits 
 to the jurisdiction. Schmaltz v. York Mfg. 
 Co. 204 Pa. 1, 53 Atl. 522, 59: 907 
 
 59. A court having jurisdiction over a 
 railroad corporation, although it may be a 
 company formed by the consolidation of a 
 corporation in that state with one in an- 
 other state, may make a decree foreclosing 
 a mortgage on the corporate property situat- 
 ed in both states, and direct a sale of the 
 whole property and the execution of a prop- 
 er conveyance to the purchaser. McTighe 
 v. Macbn Const. Co. 94 Ga. 306, 21 S. E. 701, 
 
 32: 208 
 
 In divorce suit. 
 See also supra, 55. 
 
 60. No interest in real estate located in 
 another state can be vested in a complain- 
 ant in a divorce proceeding by a decree which 
 purports to deal directly with the title to 
 the estate. Proctor v. Proctor, 215 111. 275, 
 74 N. E. 145, 69: 673 
 Specific performance of contract. 
 
 61. The equity courts of onie state, having 
 jurisdiction of the parties, may entertain a 
 suit for specific performance of the contract 
 to convey lands in another state; but a de- 
 cree in such suit does not create or vest a 
 title in the lands. Lindley v. O'Reilly (N. 
 J. Err. & App.), 50 N. J. L. 636, 15 Atl. 379, 
 
 1:79 
 Rescission of sale. 
 
 62. The courts of a state have jurisdiction 
 of an action between nonresidents for the 
 rescission of a sale of lands situated with- 
 out the state, where the contract was made 
 in the state, and the agent of the vendor, 
 who is a resident thereof, holds the consider- 
 ation, consisting partly of money and partly 
 of notes of a resident secured by mortgages 
 on lands within the state, and is sought to 
 be restrained in the action from turning 
 over the consideration to the vendor. Loaiza 
 v. San Francisco Super. Ct. 85 Cal. 11, 24 
 Pac. 707, . 9: 376 
 
 63. An action between nonresidents for 
 the rescission of a sale made within the 
 state, of lands situated in a foreign jurisdic- 
 tion, the real object of which is not to com- 
 pel the vendor to accept a reconveyance, but 
 to compel the restoration to the vendees of 
 the moneys paid and a cancelation of the 
 securities given on the contract, all of which 
 are within the court's jurisdiction, the ven- 
 dees having offered to rescind, is an action 
 in rem and within the jurisdiction of the 
 state courts, although the vendors were not 
 personally served. Id. 
 
 Correction of patent. 
 
 64. The state of Kentucky cannot main- 
 tain a suit in the courts of that state to 
 correct a patent for and reinvest itself with 
 title to lands included within the strip that 
 by compact with the state of Tennessee, be- 
 fore the patent was issued, had been brought 
 under the sovereignty of the latter state, 
 with the right only on the part of Kentucky 
 to dispose of it by grant or otherwise, es- 
 pecially when much of the land has been sold 
 and is not in the possession of, or claimed 
 by, the patentee or his heirs. Any remedy 
 which exists must be enforced in the courts 
 of Tennessee. Com. v. Bowman (Ky.) (Not 
 to be Rep.) 10 Ky. L. Rep. 891, 11 S. W. 28, 
 
 3: 220 
 Injury to. 
 
 65. An action for injuries to real property 
 is not maintainable in a state in which the 
 lands are not located, and of which neither 
 of the parties are residents. Morris v. Mis- 
 souri P. R. Co. 78 Tex. 17, 14 S. W. 228, 
 
 9: 349 
 
 66. An action for injury done to lands 
 without the state by an act no part of which 
 was performed within the state is purely 
 local, and cannot be maintained in the Texas 
 courts. Missouri P. R. Co. v. Cullers, 81 
 Tex. 382, 17 S. W. 19, 13: 542 
 Rights under will. 
 
 Presumption as to Jurisdiction, see Evi- 
 dence, 631. 
 
 67. The inability of the beneficiary under 
 a will to bring suit for conveyance of land 
 to him as directed by the will, in the state 
 where the land is sn/uated, because the will 
 is not recorded there, will not prevent him 
 (or his heirs after his death) from bringing 
 such suit in another state where the will was 
 made. McQuerry v. Gilliland, 89 Ky. 434, 12 
 S. W. 1037, 7: 454 
 
 68. Where the will of a resident of Massa- 
 chusetts gives personal property in that 
 state and real property in another state to 
 the heirs of a resident of the latter state, 
 the Massachusetts courts have jurisdiction 
 to determine the proper disposition of the 
 personal property only, especially where a 
 trustee has been appointed in the other state 
 for the purpose of selling the land there sit- 
 uated. Lincoln v. Perry, 149 Mass. 368, 21 
 N. E. 671, 4: 215 
 
 4. Foreign Corporations. 
 
 Conflict of Laws as to Insolvency of For- 
 eign Corporation, see Conflict of Laws, 
 I. f. 
 
 Allegations Showing Jurisdiction, see Plead- 
 ing, 189. 
 
 For Editorial Notes, see infra, VI. 6, 6 l / 2 - 
 
 Action by corporation. 
 
 Comity in Permitting Suit by Foreign Cor- 
 poration, see Conflict of Laws, 156-162. 
 
 Right of Foreign Corporation to Sue, see 
 Corporations, 861-864. 
 
 69. Jurisdiction will not be taken on serv- 
 ice by publication, of an action by a foreign 
 corporation having a place of business in 
 the state to recover a debt contracted in an- 
 other state and not reduced to judgment,
 
 COURTS, I. b, 4. 
 
 847 
 
 from a nonresident whose only property in 
 the state consists of his interest as partner 
 in a firm whose property, assets, books, 
 vouchers, papers, and accounts, are all, with 
 few exceptions, in another state where the 
 principal business of the firm is carried on 
 and two of the partners live. National 
 Teleph. Mfg. Co. v. Du Bois, 165 Mass. 117, 
 42 N. E. 510, 30: 628 
 
 Action against corporation generally. 
 Against Foreign Railroad Company for 
 
 Causing Death, see Conflict of Laws, 
 
 225. 
 Liability of Foreign Corporation to Suit, see 
 
 Corporations, 865-868. 
 Venue of Action, see Venue, 13-16. 
 See also supra, 59; infra, 378-381. 
 For Editorial Notes, see infra, VI X 6, Q%. 
 
 70. Courts have no visitorial power over 
 foreign corporations doing business within 
 the state, unless it is expressly conferred by 
 statute. Republican Mountain Silver Mines 
 v. Brown, 19 U. S. App. 203, V C. C. A. 412, 
 58 Fed. 644, 24: 776 
 
 71. No court in the state of New York has 
 jurisdiction of an action by a nonresident 
 against a foreign corporation on a cause of 
 action which did not arise within the state. 
 Robinson v. Ocean Steam Nav. Co. 112 N. Y. 
 315, 19 N. E. 625, 2: 636 
 
 72. Jurisdiction of an inquiry into and 
 control over the internal management of a 
 foreign corporation is not conferred by a 
 statute which in broad and comprehensive 
 terms provides for all actions, suits, or pro- 
 ceedings against foreign corporations. Con- 
 don v. Mutual Reserve Fund L. Asso. 89 
 Md. 99, 42 Atl. 944, 44: 149 
 
 73. The motive or effect of acts within the 
 internal management of a foreign corpora- 
 tion cannot make them cognizable by a court 
 which does not otherwise have jurisdiction, 
 over them. Id. 
 
 74. A court will not interfere with the in- 
 ternal management of a foreign corporation 
 at the suit of a resident stockholder, by 
 setting aside unwise and useless contracts 
 which depreciate and destroy the value of 
 the stock, although the visible, tangible 
 property of the corporation, consisting of 
 conduits in streets for electric lighting, is 
 within the state. Madden v. Penn Electric 
 Light Co. 181 Pa. 617, 37 Atl. 817, 38: 638 
 
 75. Courts of one state cannot, by injunc- 
 tion, afford equitable relief even to one of 
 its residents who is a member" of a foreign 
 corporation, by an order commanding and re- 
 quiring such corporation to do or not to do 
 certain specified acts connected with the in- 
 ternal management of its corporate affairs, 
 although the statutes in general terms pro- 
 vide means for bringing foreign corporations 
 into the courts of the state, and that resi- 
 dents may bring actions in the courts for 
 any cause of action. Howard v. Mutual Re- 
 serve Fund L. Asso. 125 N. C. 49, 34 S. E. 
 199, 45: 853 
 
 76. Courts in California have jurisdiction 
 of the subject-matter of an action by a pas- 
 senger against a foreign railroad company 
 for injuries sustained by collision on its 
 railroad in another state, under the provi- 
 
 sions of Cal. Code Civ. Proc. 395, providing 
 for trial in any county which the plaintiff 
 may designate, if the defendants do not re- 
 side in the state, and 411, providing for 
 service of summons on an agent of the cor- 
 poration. Denver & R. G. R. Co. v. Roller, 
 41 C. C. A. 22, 100 Fed. 738, 49: 77 
 
 77. A nonresident creditor of a foreign 
 corporation is not prevented from joining in 
 a suit to have the assets of the corporation 
 which are within the jurisdiction of the 
 court placed in the possession of a receiver 
 to be administered tor the benefit of credi- 
 tors, by a statute providing that a nonresi- 
 dent cannot maintain a suit against a for- 
 eign corporation in the courts of the state, 
 unless the cause of action arose in the state 
 or its subject-matter has its situs there. J. 
 A. Holshouser Co. v. Gold Hill Copper Co. 
 138 N. C. 248, 50 S. E. o50, 70: 183 
 
 78. The liability for damages on the part 
 of a corporation which has assisted in fraud- 
 ulently placing the title to property of a 
 foreign corporation beyond the reach of its 
 stockholders by taking the title to it i" its 
 own name and then pledging it to another 
 nonresident corporation is assets witnin the 
 jurisdiction of the court where the wrong- 
 doer resides. Kidd v. New Hampshire Trac- 
 tion Co. 72 N. H. 273, 56 Atl. 465, 66: 574 
 Action against insurance company. 
 
 79. The fact that an insurance association 
 is a nonresident corporation does not deprive 
 a court of jurisdiction to enter a decree 
 against it ordering an assessment to pay a 
 certificate. Newman v. Covenant Mut. Ben. 
 Asso. 76 Iowa, 56, 40 JN. W. 87, 1:659 
 
 80. An attempt to investigate, overhaul, 
 and control the management of the internal 
 affairs of a corporation domiciled in an- 
 other state, by compelling it to exhibit its 
 books, papers, and vouchers, and furnish a 
 list of policy holders for inspection, and to 
 determine questions of fraudulent misappro- 
 priation of assets and the reasonableness of 
 a rate of assessment, is beyond the jurisdic- 
 tion of the court. Taylor v. Mutual Reserve 
 Fund L. Asso. 97 Va. 60, 33 S. E. 385, 
 
 45: 621 
 
 81. An injunction to prevent a foreign as- 
 sessment insurance company from taking 
 any proceedings to have a certificate of 
 membership or policy of insurance declared 
 lapsed or forfeited for failure to pay an al- 
 leged illegal and extortionate assessment 
 cannot be granted, for the reason that it 
 could not be enforced, and would be an at- 
 tempt to control and overhaul the manage- 
 ment of a corporation in another jurisdic- 
 tion. Id. 
 
 82. A suit to enjoin a foreign insurance 
 company to which all assessments are pay- 
 able at its home office, but which has an 
 agency and carries on business within the 
 jurisdiction of the court, against collecting 
 from a resident therein any excessive and 
 illegal assessments, and against forfeiting 
 his policy for nonpayment of such assess- 
 ments, while seeking also an accounting and 
 a discovery of the books and papers of the 
 corporation, and a determination of the true 
 basis of assessments, is beyond the power or
 
 848 
 
 COURTS, L c, 1. 
 
 jurisdiction of a court of equity, as the relief 
 sought would require the control, direction, 
 and revision of the internal affairs of the 
 corporation. Clark v. Mutual Reserve Fund 
 L. Asso. 14 App. D. C. 154, 43: 390 
 
 83. An injunction forbidding a foreign in- 
 surance corporation to collect or levy any 
 further assessments upon a resident member 
 upon the plan adopted by the company 
 would require an investigation and control 
 of the management of the company, and is 
 beyond the jurisdiction of the court, in the 
 absence of any allegation of fraud, although 
 the court would have jurisdiction in case of 
 actual fraud in inducing the plaintiff to be- 
 come a member of the corporation, to his pe- 
 cuniary loss, or in the levying and collect- 
 ing of assessments, or if the suit was to re- 
 cover the amount due on his policy and the 
 defendant had declared the policy forfeited 
 for failure to pay the assessments, as the 
 latter suit would be merely to enforce the 
 contract or give damages for its breach. 
 Howard v. Mutual Reserve Fund L. Asso. 125 
 N. C. 49, 34 S. E. 199, 45: 853 
 
 84. An accounting between a foreign mu- 
 tual insurance association and a member in- 
 volves an inquiry into the internal affairs of 
 the company, which cannot be made by a 
 court outside of the state in which the cor- 
 poration has its home. Condon v. Mutual 
 Reserve Fund L. Asso. 89 Md. 99, 42 Atl. 944, 
 
 44: 149 
 
 c. Relation to Other Departments of Gov- 
 ernment. 
 
 1. In General; Political Questions. 
 
 As to Railroad Company's Location .of 
 Tracks, see Eminent Domain, 3, 4. 
 
 See also supra, 9; Municipal Corporations, 
 37. 
 
 For Editorial Notes, see infra, VI. 8. 
 
 85. The motive with which a vessel may 
 be quarantined is not a matter for the courts 
 to consider, when the health board had the 
 legal power and right to act as it did. Com- 
 pagnie Franchise v. State Board of Health, 
 51 La. Ann. 645, 25 So. 591, 56: 795 
 Executive department. 
 
 See also infra, 321; Legislature, 9. 
 
 86. The courts cannot interfere to arrest 
 the action of the governor in suspending an 
 officer, so long as he acts within the power 
 given him by the Florida Constitution, and 
 cannot review his decision as to the proof 
 of the charge against an officer, that power 
 of review being given to the senate. State, 
 ex rel. Attorney General v. Johnson, 30 Fla. 
 433, 11 So. 845, 18: 410 
 
 87. Words forbidding the removal of offi- 
 cers "for political reasons," in a charter au- 
 thorizing the governor to make such remov- 
 als "at any time for cause, to be stated in 
 writing," cannot be given any practical ef- 
 fect except by operating on the conscience 
 of the executive, and do not permit the re- 
 view of his action by the courts on the 
 ground that a removal was in fact made by 
 him for political reasons, contrary to his 
 written statement of the case. People ex 
 
 rel. Engley v. Martin, 19 Colo. 565, 36 Pac. 
 543, 24: 201 
 
 88. The question whether or not a "dis- 
 agreement" exists which authorizes the gov- 
 ernor to adjourn the general assembly, under 
 R. I. Const, art. 7, 6, is one on which the 
 decision of the governor is conclusive and is 
 not reviewable by the courts. Re Legisla- 
 tive Adjournment, 18 R. I. 824, 27 Atl. 327, 
 
 22: 716 
 
 Railroad commission. 
 See also Carriers, 1101-1103. 
 
 89. The court cannot interfere with tiie re- 
 fusal of the railroad commission, under Ky. 
 Const. 218, to allow a less charge for a 
 longer than for a shorter haul, as it is per- 
 mitted to do in special cases by that sec- 
 tion. Louisville & N. R. Co. v. Com. 104 Ky. 
 226, 46 S. W. 707, 105 Ky. 179, 47 S. W. 598, 
 
 43: 541 
 Removal of teacher. 
 
 90. The power to remove a teacher at 
 pleasure, given to the board of regents of 
 normal schools by Wis. Rev. Stat. 404, 
 subd. 3, is discretionary, and cannot be re- 
 viewed by the courts. Gillman v. Regents 
 of Normal Schools, 88 Wis. 7, 58 N. W. 1042, 
 
 24: 336 
 Expulsion of pupil. 
 
 91. The question of guilt or innocence of a 
 pupil expelled from the public schools in 
 accordance with established rules cannot be 
 reviewed by the courts, unless it appears 
 that he was expelled arbitrarily or mali- 
 ciously. Board of Education v. Booth, 110 
 Ky. 807, 62 S. W. 872, 53: 787 
 Political questions. 
 
 As to Motive in Forming Political Party, see 
 
 Elections, 105. 
 Injunction t'o Protect Political Rights, see 
 
 Injunction, I. h. 
 See also infra, 129-135. 
 
 92. The question as to which one of two 
 factions of a political party is the true rep- 
 resentative of the party is rather a political 
 than a judicial question, and will not be 
 decided by a court as the basis of a manda- 
 mus to the secretary of state to recognize 
 the nominations made by one faction only. 
 Phelps v. Piper, 48 Neb. '724, 67 N. W. 755, 
 
 33: 53 
 
 93. The decision of the state central com- 
 mittee of a political party, which, by the 
 rules of the party, is invested with full con- 
 trol of the management of its affairs, in a 
 contest as to which of two bodies of men 
 constitutes the executive committee of a 
 certain county, is conclusive upon the courts, 
 sance the question is a political one, and the 
 courts have no power to question the regu- 
 larity of the proceedings or the justice of 
 the decision. Davis v. Hambrick, 109 Ky. 
 276, 58 S. W. 779, 51 : 671 
 
 94. The decision of a dispute as to which 
 of two persons is the regular party nominee 
 for Congress, when made by the governing 
 authority of the party within the state, such 
 as a state central committee, under author- 
 ity conferred upon it by the state conven- 
 tion, is conclusive upon the courts. Moody 
 v. Trimble, 109 Ky. 139, 58 S. W. 504, 
 
 50: 810
 
 COURTS, I. c, 2. 
 
 849 
 
 2. Legislative Department; Statutes. 
 a. In General. 
 
 Delegation of Legislative Power to Judicia- 
 ry, see Constitutional Law, I. d, 3. 
 
 Delegation of Judicial Power by Legisla- 
 ture, see Constitutional Law, I. d, 5. 
 
 Usurpation of Power by Courts, see Consti- 
 tutional Law, I. e. 
 
 Encroachment on Judicial Power, see Consti- 
 tutional Law, I. e, 2. 
 
 Extent of Punishment for Crime, see Crim- 
 inal Law, 197. 
 
 As to \alidity of Statutes Generally, see 
 Statutes, I. c. 
 
 Rule of Decision as to Determining Consti- 
 tutionality of Statutes, see infra, V. c. 
 
 See also Statutes, 447. 
 
 For Editorial Notes, see infra, VI. 4, 8. 
 
 95. The judiciary is the final authority in 
 the construction of the Constitution and the 
 laws, and its construction should be received 
 and followed by the other departments. 
 People ex rel. Engley v. Martin, 19 Colo. 565, 
 36 Pac. 543, 24: 201 
 Inquiry into motive of legislature. 
 
 See also infra, 136, 215, 216. 
 
 96. Courts cannot inquire into the motives 
 of legislators. State ex rel. Terre Haute v. 
 Kolsem, 130 Ind. 434, 29 N. E. 595, 14: 566 
 
 97. In determining the question of the 
 validity of a statute for the government of 
 cities, the courts have nothing to do with 
 its wisdom, propriety, or justice, or with the 
 motives which are supposed to have inspired 
 its passage. Com. ex rel. Elkin v. Moir, 199 
 Pa. 534, 49 Atl. 351, 53: 837 
 Inquiry into wisdom of legislation. 
 
 See also supra, 97; infra, 114, 115, 176. 
 
 98. It is for the legislature, and not for 
 the court, to determine whether a statute is 
 expedient or inexpedient, politic or impol- 
 itic. State v. Foster, 22 R. I. 163, 46 Atl. 
 833, 50: 339 
 
 99. Questions relating to the wisdom, pol- 
 icy, and expediency of statutes are for the 
 people's representatives in the legislature 
 assembled, and not for the courts, to deter- 
 mine. Re Boyce, 27 Nev. 299. 75 Pac. 1, 
 
 65: 47 
 
 100. The power of the legislature cannot 
 be restrained by the courts upon considera- 
 tion ol policy or supposed natural equity. 
 Territory v. Ah Lim, 1 Wash. 156, 24 Pac. 
 588, 9: 395 
 
 101. A statute which does not violate 
 some provision of the Constitution cannot 
 be annulled by the courts, whether its pro- 
 visions are wise or unwise, or whether its 
 operations be hurtful or beneficial. State v. 
 Henley, 98 Tenn. 665, 41 S. W. 352, 1104, 
 
 39: 126 
 
 102. The courts cannot overturn a law 
 passed within constitutional limitations, on 
 the ground that it is unwise, impolitic, un- 
 just, or oppressive, or even that it was pro- 
 cured by corrupt means. State ex rel. Mor- 
 ris v. Wrightson (N. J. Sup.) 56 N. J. L. 
 126, 28 Atl. 56, 22: 548 
 
 L.R.A. Dig. 54. 
 
 Form or enactment of statutes generally. 
 
 103. Courts must enforce a constitutional 
 provision which declares that certain forms 
 are indispensable in the passage of laws. 
 Wells v. Missouri P. R. Co. 110 Mo. 286, 
 19 S. W. 530, 15: 847 
 
 104. It is the duty of the court to exam- 
 ine legislative journals to .determine the dis- 
 puted fact whether or not a statute as pub- 
 lished is in fact that which was passed by 
 the legislature, where the Constitution re- 
 quires that each house shall keep a journal, 
 and that no bill shall become a law unless 
 on its final passage the vote taken by ayes 
 and noes is entered on the journal. State ex 
 rel. Cheyenne v. Swan, 7 Wyo. 166, 51 Pac. 
 209, 40: 195 
 
 105. Fraud in procuring the enrolment of 
 a bill and the signature thereto by the presi- 
 dent of the senate and the speaker of the 
 house of representatives, but which is on its 
 face regular and in due form, gives the 
 courts no power to order its removal from 
 the files of the secretary of state; or to en- 
 join him from delivering a copy to the pub- 
 lic printer, but the remedy, if any, is with 
 the legislature. Carr v. Coke, 116 N. C. 223, 
 22 S. E. 16, 28: 737 
 Local or special laws. 
 
 Delegation to Court of Power as to, see Con- 
 stitutional Law, 194. 
 
 106. The question whether a general law 
 can be made applicable to a particular case 
 is for the legislature, and not for the court, 
 to determine. Pittsburgh, C. C. & St. L. R. 
 Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582, 
 
 69: 875 
 
 107. Whether or not a general law can be 
 made applicable to a subject-matter not in- 
 cluded in Ind. Const, art. 4, 22, is a ques- 
 tion of legislative judgment. Bank of Com- 
 merce v. Wiltsie, 153 Ind. 460, 53 N. E. 950, 
 
 47: 489 
 
 108. The enactment of a local or special 
 law on a subject not enumerated in Ind. 
 Const, art. 4, 22, is an expression of the 
 opinion and judgment of the legislature that 
 a general law cannot be made applicable, 
 and this judgment is not subject to be re- 
 viewed by the courts. Indianapolis v. Na- 
 vin, 151 Ind. 139, 156, 47 N. E. 525, 51 N. 
 E. 80, 41 : 337 
 
 109. Whether a statute is in violation of 
 Ind. Const, art. 4, 23, which provides that 
 where a general law can be passed it shall 
 be general and operate uniformly through- 
 out the state, is a question for the legisla- 
 ture, and not for the courts. Evansville v. 
 State ex rel. Blend, 118 Ind. 426, 21 N. E. 
 267, 4: 93 
 
 110. It is purely a legislative question, 
 subject to no review by the courts, whether 
 in a given case a general or special law 
 should be enacted under a state Constitution 
 which provides that "in all other cases 
 where a general law can be made applicable 
 no special law shall be enacted." Edmunds 
 v. Herbrandson, 2 N. D. 270, 50 N. W. 970, 
 
 14: 725 
 
 111. Courts have no power to inquire 
 whether the notice of application to the leg- 
 islature for local or special legislation, which
 
 850 
 
 COURTS, I. c, 2. 
 
 is required by the Constitution and laws, 
 was or was not given before the passage of 
 such legislation. Stockton v. Powell, 29 Fla. 
 1, 10 So. 688, 15:42 
 
 112. Whether, in any given case, the leg- 
 islature has transcended its power and 
 passed a law in conflict with the constitu- 
 tional limitation in respect to local or spe- 
 cial laws, is essentially a question of law, 
 and must necessarily be decided by the 
 courts. Ayars's Appeal, 122 Pa. 266, 16 Atl. 
 356, 2: 577 
 
 113. The question whether or not a gen- 
 eral law can be made applicable is for the 
 court, under a constitutional provision for- 
 bidding the enactment of special laws where 
 general ones can be made applicable, when 
 the Constitution also provides that its pro- 
 visions shall be construed to be mandatory 
 and prohibitory, and not merely directory. 
 Carolina Grocery Co. v. Burnet, 61 S. C. 205, 
 39 S. E. 381, 58: 687 
 
 114. The wisdom of a particular classi- 
 fication for purposes of legislation is a mat- 
 ter exclusively for legislative discretion. 
 Julien v. Model Building, L. & I. Asso. 116 
 Wis. 79, 92 N. W. 561, 61 : 668 
 
 115. Whether or not a system of classi- 
 fication prescribed by the legislature in leg- 
 islating upon a subject concerning which 
 general laws are not required is good or 
 vicious, will not be determined by the ju- 
 diciary. State ex rel. Terre Haute v. Kol- 
 sem, 130 Tnd. 434 29 N. E. 595, 14: 566 
 Determination or finding of fact. 
 
 See also infra, 148. 
 
 116. A legislative determination of the 
 fact that the burning of natural gas in flam- 
 beau lights is wasteful and extravagant is 
 conclusive on the court. Townsend v. State, 
 147 Ind. 624, 47 N. E. 19, 37: 294 
 
 117. A finding of the legislature, recited in 
 a statute, respecting disputed facts on which 
 a claim is asserted against a board of edu- 
 cation, will not estop the board from con- 
 tenting the facts in court. Marion Twp. Bd. 
 of Edu. v. State ex rel. Lindsey, 51 Ohio St. 
 531. 38 N. E. 614, 25: 770 
 Powers of legislature. 
 
 118. A house of representatives is not the 
 final judge of its own powers and privileges 
 in cases in which the rights and liberties of 
 the subject are concerned; but the legality 
 of its action in such cases may be examined 
 and determined by the court. Re Gunn, 50 
 Kan. 155, 32 Pac. 948, 19: 519 
 Constitutional amendment. 
 
 119. The judicial department of the gov- 
 ernment has the right to consider whether 
 the legislative department and its agencies 
 have observed constitutional iniunrtions in 
 attempting to amend the Constitution, and 
 to annul their acts in case they have not 
 done so. State, TJott, Prosecutor, v. Wurts. 
 (N. J. Err. & App.) 63 N. J. L. 289, 43 
 Atl. 744. 881, 45: 251 
 
 120. The question whether a proposed con- 
 stitutional amendment is in conformity with 
 the constitutional requirements in constitu- 
 tinsr hut a single amendment, and also the 
 question whether the proposition has re- 
 ceived such a majority as the Constitution 
 
 prescribes for its adoption, are judicial ques- 
 tions for the courts to decide, notwithstand- 
 ing the fact that tne legislature has de- 
 clared that the amendment is adopted and 
 that it is a part of the Constitution of the 
 state. State ex rel. McClurg v. Powell, 77 
 Miss. 543, 27 So. 927, 48: 652 
 
 121. An attempt to amend the Constitu- 
 tion by submission of a question under joint 
 resolution of the legislalure, even if it may 
 be ineffectual, is within the exercise of leg- 
 islative duty which a court cannot interfere 
 with by injunction. State ex rel. Cranmer 
 v. Thorson, 9 S. D. 149, 68 N. W. 202, 
 
 33: 582 
 City limits. 
 
 Delegation of Power as to, see Constitution- 
 al Law, 195, 196. 
 
 122. Courts cannot revise the legislative 
 discretion as to the extent of the territorial 
 limits of a municipality. Kimball v. Grants- 
 ville City, 19 Utah, 368, 57 Pac. 1, 45: 628 
 Grade crossing. 
 
 123. The judgment of the legislature as 
 to the propriety of requiring a railroad com- 
 pany to conform the grade of its tracKs at a 
 street crossing to that of the street for the 
 purpose of making the crossing more safe 
 for travelers does not conclude all inquiry 
 by the courts as to the existence of facts 
 essential to support the exercise of such 
 power. Houston & T. C. R. Co. v. Dallas, 
 98 Tex. 396, 84 S. W. 648, 70:850 
 
 Compulsory education. 
 
 124. Whether or not a statute requiring 
 the attendance of children at school is 
 "wholesome and reasonable" is a legislative, 
 and not a judicial, question, where the legis- 
 lature has constitutional power to pass all 
 manner of wholesome and reasonable laws 
 as they may judge for the benefit and wel- 
 fare of the state. State v. Jackson, 71 N. H. 
 552, 53 Atl. 1021, 60: 739 
 Location of public institution. 
 
 125. The validity of a location by the leg- 
 islature of a public institution is not beyond 
 review in the courts on the ground that it 
 is a legislative question, under Or. Const, 
 art. 14, 3, which amounts to a location of 
 such institutions at the seat of government. 
 State ex rel. McCain v. Metschan, 32 Or. 372, 
 46 Pac. 791, 41 : 692 
 Lawfulness of imprisonment. 
 
 126. The supreme court of Kansas haa 
 power on habeas corpus to inquire into the 
 lawfulness of the imprisonment by an order 
 or resolution of the house of representatives 
 of the state. Re Gunn, 50 Kan. 155, 32 Pac. 
 948, 19: 519 
 Expulsion of member of legislature. 
 
 127. The court cannot supervise the exer- 
 cise by the legislature of its constitutional 
 power to expel a member. French v. Senate, 
 146 Cal. 604, 80 Pac. 1031, 69: 556 
 Rival legislatures. 
 
 128. The judicial department has juris- 
 diction to decide which of two rival bodies, 
 each claimed to be the state senate, is the 
 coni';itutional body. Attorney General ex 
 rel. Wert? v. Rogers (N. J. Sup.) 56 N. J. 
 L. 480, 28 Atl. 726, 29 Atl. 173, 23: 354
 
 COURTS, I. c, 2. 
 
 851 
 
 Apportionment. 
 
 129. The constitutionality of a leorislative 
 apportionment act is a judicial question, and 
 not one which the court cannot consider on 
 the ground that it is a political question. 
 Parker v. State ex rel. Powell, 133 Ind. 178, 
 32 M. E. 836, 18: 567 
 
 130. An injunction to prevent the secre- 
 tary of state from issuing notices of elec- 
 tion under an unconstitutional apportion- 
 ment act gerrymandering the state is not a 
 usurpation of authority by the court, on the 
 ground that the question is a political one, 
 but the constitutionality of the act is pure- 
 ly a judicial question. State ex rel. Adams 
 County v. Cunningham, 81 Wis. 440, 51 N. 
 W. 724, 15: 561 
 
 131. The fact that the action may have a 
 political effect, and in that sense en ect a 
 political object, does not make the questions 
 involved in a suit to declare the unconsti- 
 tutionally of an apportionment act political 
 instead of judicial. State ex rel. Lamb v. 
 Cunningham, 83 Wis. 90, 53 N. W. 48, 
 
 17: 145 
 
 132. An unconstitutional apportionment 
 law may be declared void by the courts, not- 
 withstanding the fact that such statute is 
 an exercise of political power. Denny v. 
 State ex rel. Easier, 144 Ind. 503, 42 N. E. 
 929, 31:726 
 
 133. The constitutionality of an appor- 
 tionment act is a subject of judicial inquiry, 
 and not a mere political question. State 
 ex rel. Morris v. Wrightson (N. J. Sup.) 56 
 N. J. L. 126, 28 Atl. 56, 22: 548 
 
 134. The constitutionality of a statuce 
 forming a delegate district or apportioning 
 delegates for the house of delegates is a ju- 
 dicial question for the courts, although the 
 statute is an exercise of political power. 
 Harmison v. Jefferson County Ballot Comrs. 
 45 W. Va. 179, 31 S. E. 394, 4z: 591 
 
 135. The approximation to the dual con- 
 stitutional requirements of county repre- 
 sentation and proportionate popular repre- 
 sentation, in the enactment of an apportion- 
 ment law by the legislature, is not review- 
 able by the courts except for gross abuse of 
 discretion and providing both objects con- 
 templated in the Constitution are kept in 
 view. Denny v. State ex rel. Easier, 144 Ind. 
 503, 42 N. E. 929, 31 : 726 
 Appropriation. 
 
 136. The purpose of the legislature to ap- 
 propriate public money for the benefit of an 
 individual cannot be determined by the 
 courts on the testimony of witnesses, when 
 it has expressed its purpose, in the bill it- 
 self, to be the enlargement or improvement 
 of a public canal. Waterloo Woolen Mfg. 
 Co. v. Shanahan, 128 N. Y. 345, 28 N. E. 
 358, 14: 481 
 Decision of Congress. 
 
 137. The decision by Congress that a 
 bridge across a navigable body of water, 
 erected under authority of a state statute 
 which provides that it shall not unnecessa- 
 rily obstruct the navigation, is lawful, is con- 
 clusive upon the state courts as to whether 
 or not the conditions have been complied 
 with. Frost v. Washington County R. Co. 
 96 Me. 76, 51 Atl. 806, 59: 68 
 
 6. Police Power. 
 
 Rules of Court in Deciding as to, see infra, 
 487. 
 
 138. It is for the courts to determine what 
 are the subjects upon which the police power 
 is to be exercised, and the reasonableness of 
 that exercise. Re Morgan, 26 Colo. 415, 58 
 Pac. 1071, 47: 52 
 
 139. It is a judicial question whether a 
 trade or calling is of such a nature as to 
 justify police regulation. Eden v. People, 
 161 111. 296, 43 N. E. 1108, 32: 659 
 
 140. The question, What are the subjects 
 of police power? is a judicial one; but the 
 question as to when an exigency exists for 
 the exercise of the power is for the legis- 
 lature to decide. State v. Gerhardt, 145 Ind. 
 439, 44 N. E. 469, 33: 313 
 
 141. Although the legislature may deter- 
 mine when the exigency exists for the ex- 
 ercise of the police power, yet it is for the 
 courts to determine what are the subjects 
 of the exercise of this power. Bessette v. 
 People, 193 111. 334, 62 N. E. 215, 56: 558 
 
 142. The court cannot declare an act of 
 the legislature which has a real and sub- 
 stantial relation to the police power void for 
 unreasonableness. State v. Hyman, 98 Md. 
 596, 57 Atl. 6, 64: 637 
 
 143. If any conceivable circumstances 
 would justify the exercise of police power, 
 the legislature, and not the courts, is to 
 judge of the existence or prevalence of such 
 circumstances. [Case affirmed by equal di- 
 vision.] Peel Splint Coal Co. v. State, 36 W. 
 Va. 802, 15 S. E. 1000, 17: 385 
 
 144. It is the province of the courts to 
 determine whether a statute purporting to 
 be an exercise of the police power of the 
 state, but taking away the property of a 
 citizen or interfering with his personal lib- 
 erty, is an appropriate measure for the pro- 
 motion of the comfort, safety, and welfare 
 of society. Ritchie v. People, 155 111. 98, 
 40 N. E. 454, 29: 79 
 
 145. When the police power is exerted for 
 the purpose of regulating a useful business 
 or occupation and the mode in which that 
 business may be carried on or advertised, 
 the legislature is not the exclusive judge as 
 to what is a reasonable restraint upon the 
 constitutional right of the citizen to pursue 
 his calling or to exercise his own judgment 
 as to the manner of conducting it. Ruhstrat 
 v. People, 185 111. 133, 57 N. E. 41, 49: 181 
 
 146. The constitutional requirement that 
 police powers shall be wholesome and rea- 
 sonable does not justify the court in setting 
 aside a statute upon a subject in regard to 
 which the legislature is authorized to act 
 because the opinion of the judge differs from 
 that of the legislators on the question 
 whether it will be for the good and welfare 
 of the state. Com. v. Pear, 183 Mass. 242, 
 66 N. E. 719, 67: 935 
 
 147. It is the duty of the courts to exam- 
 ine legislation complained of as a violation 
 of the rights secured to the citizens by the 
 Constitution, for the purpose of ascertain- 
 ing whether the health, morals, safety, or 
 welfare of the public justifies its enactment
 
 852 
 
 COURTS, I. c, 2. 
 
 under the police power of the state. Peo- 
 ple ex rel. Tyroler v. Warden of New Y.ork 
 City Prison, 157 N. Y. 116, 51 N. E. 1006, 
 
 43: 264 
 
 148. The question whether a given habit 
 is detrimental to either the moral, mental, 
 or physical well-being of a citizen, or wheth- 
 er the habitual use of a particular drug is 
 deleterious to himself, so as to justify leg- 
 islative prohibition of its use by individuals, 
 is one of fact which can only be inquired 
 into by the legislature, and not by the 
 courts in determining the constitutionality 
 of the prohibition. Territory v. Ah Lim, 1 
 Wash.. 156, 24 Pac. 588, 9: 395 
 
 c. Public Purpose; Tax; Eminent Domain. 
 
 149. The determination by the legislature 
 of the question what is a public purpose is 
 not conclusive upon the courts. State ex 
 rel. Douglas County v. Cornell, 53 Neb. 556, 
 74 N. W. 59, 39: 513 
 Taxes. 
 
 Consideration of Municipal Tax, see infra, 
 
 196, 197. 
 Review of Taxes Generally, see Taxes, III. 
 
 c. 
 
 150. A tax law will not be declared invalid 
 on the ground that the tax is not for the 
 benefit of the public, unless it is for the 
 furtherance of an object or enterprise in 
 which the public has palpably no interest. 
 State ex rel. Douglas County v. Cornell, 53 
 Neb. 556, 74 N. W. 59, 39: 513 
 
 151. The decision of the question whether 
 a tax or a public debt is for a public or 
 private purpose is not a legislative, but a ju- 
 dicial, function, and a legislature cannot 
 make a private purpose a public purpose, or 
 draw to itself or create the power to author- 
 ize a tax or a debt for such a purpose, by its 
 mere fiat. Dodge v. Mission Twp. 46 C. C. 
 A. 661, 107 Fed. 827, 54: 242 
 
 152. Courts have no power to give any re- 
 lief against erroneous assessments of boards 
 whose assessments for taxation are made 
 final by statute. Cleveland, C. C. & St. L. 
 R. Co. v. Backus, 133 Ind. 513, 33 N. K 421, 
 
 18: 729 
 
 153. The duty of determining what is a 
 wise and fair mode of distributing the bur- 
 den of taxation is a purely legislative power, 
 which the judicial department of the gov- 
 ernment cannot exercise. State v. Travel- 
 ers' Ins. Co. 73 Conn. 255, 47 Atl. 299. 
 
 57: 481 
 
 154. The good faith of the legislature in 
 imposing a privilege tax on railroad com- 
 panies that have charter exemptions from ad 
 valorem taxation, or the motive to deprive 
 them of that exemption, cannot be inquired 
 into by the courts. Knoxville & 0. K. Co. 
 v. Harris, 99 Tenn. 684, 43 S. W. 115. 
 
 53: 921 
 
 155. To determine the amount of revenue 
 required for the needs of a municipality, 
 when not limited by constitutional barriers, 
 is within the sole discretion of the legisla- 
 tive authorities, and the courts have no war- 
 
 rant to interfere with that discretion. Stull 
 v. De Mattos, 23 Wash. 71, 62 Pac. 451, 
 
 51: 892 
 
 Eminent domain. 
 
 See also infra, 186; Eminent Domain, 59, 
 82. 
 
 156. Whether or not a purpose for which 
 private property is sought to be taken 
 under the power of eminent domain is a pub- 
 lic one is a judicial question. Ulmer v. Lime 
 Rock R. Co. 98 Me. 579, 57 Atl. 1001, 
 
 66: 387 
 
 157. Whether a particular use for which 
 private property is sought to be taken is 
 public or private is a question, not for the 
 legislature, but for the judiciary. Arnsper- 
 ger v. Crawford, 10 Md. 247, 61 Atl. 413, 
 
 70:497 
 
 158. The legislative determination that a 
 particular use is a public use, justifying the 
 exercise of the power of eminent domain, 
 though entitled to the benefit of strong pre- 
 sumption, is not conclusive upon the court. 
 Ryan v. Louisville & N. Terminal Co. 102 
 Tenn. Ill, 50 S. W. 744, 45: 303 
 
 159. The legislature cannot make a pri- 
 vate use public by calling it so, so as to jus- 
 tify an exercise of the power of eminent do- 
 main in its behalf; the question of its public 
 character must be determined by the court. 
 Brown v. Gerald, 100 Me. 351, 61 Atl. 785, 
 
 70: 472 
 
 160. The actual purpose for which a cor- 
 poration intends to exercise its power of 
 eminent domain is subject to judicial in- 
 quiry, where it is authorized to use it for 
 several purposes, some of which the legis- 
 lature had no constitutional power to grant. 
 
 Id. 
 
 161. Whether a particular improvement 
 under a statute providing a general system 
 for draining wet and overflowed land will 
 inure to the public health, convenience, or 
 welfare is a judicial question which the leg- 
 islature cannot determine to the exclusion 
 of the courts. State ex rel. Utick v. Polk 
 County Comrs. 87 Minn. 325, 92 N. W. 216, 
 
 60: 161 
 
 162. Whether it was expedient or neces- 
 sary that the right of eminent domain shall 
 be exercised for a particular public use, is 
 generally for the determination of the legis- 
 lature. 'Brown v. Gerald, 100 Me. 351, 61 
 Atl. 785, 70: 472 
 
 163. The question as to the propriety and 
 necessity of legislation authorizing the tak- 
 ing of private property for public use be- 
 longs exclusively to the legislature, in the 
 exercise of whose judgment in regard there- 
 to the courts have no power to interfere. 
 State ex rel. Utick v. Polk County Comrs. 87 
 Minn. 325, 92 N. W. 216, 60: 161 
 
 164. Although the determination of the 
 legislature is not conclusive that a purpose 
 for which it directs property to be taken is 
 a public use, yet it is conclusive, if the use 
 is public, that a necessity exists which re- 
 quires the propertv to be taken. Moore v. 
 Sanford. 151 Mass. 285, 24 N. E. 323, 7: 151 
 
 165. The legislature, and not the court, 
 must decide whether or not there is such 
 a demand for lights in a particular locality
 
 COURTS, I, c, 2. 
 
 858 
 
 as to justify the exercise of the power of 
 eminent domain for the construction of an 
 electric line to supply it. Brown v. Gerald, 
 100 Me. 351, 61 Atl. 785, VO: 472 
 
 d. Offices; Elections. 
 
 See also supra, 127. 
 
 166. An attempt by the legislature to re- 
 move a judge for causes which do not give 
 the legislature any constitutional authority 
 to remove him is subject to review by the 
 judiciary. McCulley v. State, 102 Tenn. 509, 
 53 S. W. 134, 46: 567 
 
 167. Bitter and intense feeling against 
 township trustees, in the communities where 
 they reside, cannot be considered by the 
 courts in determining the validity of an act 
 extending the time for the election of their 
 successors. State ex rel. Harrison v. Men- 
 augh, 151 Ind. 260, 51 N. E. 117, 357, 43: 408 
 
 168. The determination of the legislature 
 in abolishing an office and creating a new 
 one, that the change of duties or burdens is 
 sufficient to make the latter a different office, 
 cannot be reviewed by courts, provided the 
 act is otherwise valid. State ex rel. Yancey 
 v. Hyde, 129 Ind. 296, 28 N. E. 186, 13: 79 
 
 169. A determination of an election con- 
 test for the offices of governor and lieuten- 
 ant governor, by the legislature, which, by 
 Ky. Const. 90, is made the sole tribunal 
 to determine such contest, and which pro- 
 ceeds under Ky. Stat. 1596a, subs. 8, by 
 referring the matter to a board, and re- 
 ceives its report before determining the con- 
 test, cannot be reviewed by the courts on 
 the grounds that the notice of contest or the 
 evidence was insufficient, or that the contest 
 board was not fairly drawn by lot, as re- 
 quired by statute, or that the election should 
 have been held void, where the findings by 
 the legislature do not show that it was void. 
 Taylor v. Beckham, 108 Ky. 278, 56 S. W. 
 177, 49: 258 
 
 170. The jurisdiction of a court to compel 
 town officers to call a new election for a 
 member of the general assembly, as required 
 by statute, is not defeated by Vhe fact that 
 each house is the judge of the elections and 
 qualifications of its members, and that the 
 ordering of a new election may involve the 
 question of the validity of a prior election. 
 State v. South Kingstown, 18 R. I. 258, 27 
 Atl. 599, 22: 65 
 
 e. Regulation of Business; License. 
 
 See also infra, 185. 
 
 171. It is competent for the courts to de- 
 termine whether any particular regulations 
 of an ordinary business or occupation is a 
 reasonable restriction upon the constitution- 
 al right of a citizen to engage therein. Ex 
 parte Whitwell, 98 Cal. 73, 32 Pac. 870, 
 
 19: 727 
 
 172. Courts have no power to make an ar- 
 rangement of the business intercourse of 
 common carriers such as they think ought 
 to be made, because such function is legis- 
 lative rather than judicial. State ex rel. 
 
 Board of Transp. v. Sioux City, O. & W. R. 
 Co. 46 Neb. 682, 65 N. W. 766, 31 : 47 
 
 173. The legislature must be the judge as 
 to whether or not there is reason to appre- 
 hend fraud in the sale of goods by itinerant 
 vendors when it enacts a stringent license 
 law for the prevention of fraud in such 
 sales. State v. Harrington, 68 Vt. 622, 35 
 Atl. 515, 34: 100 
 Reasonableness of license fee.' 
 
 174. The reasonableness of license fees in 
 respect to their amount, when imposed, not 
 by municipal ordinance without legislative 
 authority, but by the state through legisla- 
 tive enactment, is conclusively established 
 by the statute, and cannot be reviewed by 
 the courts. State v. Harrington, 68 Vt. 622, 
 35 Atl. 515, 34: 100 
 
 175. The action of the legislature in fixing 
 the amount of the license fee imposed upon 
 a business for purposes of regulation is con- 
 clusive, unless, beyond serious doubt, it is 
 manifest that the amount of the fee has 
 been established, not with regard to the pur- 
 pose of regulation, with a view of protecting 
 the public welfare, but with the real purpose 
 to raise revenue under the guise of the police 
 power, or to subvert the proper exercise of 
 that power to the prohibition of the right of 
 the citizen to exercise a lawful calling. 
 Price v. People, 193 111. 114, 61 N. E. 844, 
 
 55: 588 
 Regulation of rates. 
 
 176. If legislative power exists to inter- 
 fere with a certain business and regulate its 
 charges, the court has nothing to do with 
 the policy or wisdom of interference in a 
 particular case, or with the question of the 
 adequacy or inadequacy of the compensa- 
 tion authorised. People v. Budd, 117 N. Y. 
 1, 22 N. E. 670, 5: 559 
 
 177. The poweV the jurisdiction to de- 
 termine in advance what compensation a 
 public-service corporation may exact for 
 services to be rendered, is a legislative and 
 not a judicial function. Nebraska Teleph. 
 Co. v. State ex rel. Yeiser, 55 Neb. 627, 
 76 N. W. 171, 45: 113 
 
 178. The fixing of rates by legislative pow- 
 er or" otherwise than by appropriate judicial 
 proceedings in which full notice and oppor- 
 tunity to appear and defend are given is re- 
 viewable by the courts, at least to the ex- 
 tent of ascertaining whether such rates will 
 furnish some reward for the property used 
 and services furnished. San Diego Water 
 Co. v. San Diego, 118 Cal. 556, 50 Pac. 633, 
 
 38: 460 
 
 179. An inquiry by the courts into the 
 reasonableness of rates established by state 
 authority for railroad transportation is not 
 prevented by the fact that the legislature 
 has pursued the forms of law in prescribing 
 a schedule of rates; but the question is open 
 and must be deeded in each case, whether 
 the rates prescribed are within the limits of 
 legislative power, or are mere proceedings 
 which, if not restrained, will work a con- 
 fiscation of property. Chicago & N. W. R. 
 Co. v. Dey, 35 Fed. 866, 1: /44 
 
 180. xhe courts have no power to interfere 
 with rates for railroad transportation fixed
 
 854 
 
 COURTS, I. c, 3. 
 
 by a state, when such rates will give some 
 compensation, however small, to the owners 
 of railroad property; but it is their duty to 
 interfere when the rates prescribed will not 
 pay any compensation to the owners, . e., 
 some dividend to stockholders after payment 
 of fixed charges and cost of service. Chicago 
 & N. W. R. Co. v. Dey, 35 Fed. 866, 1:744 
 
 3. Municipal Matters. 
 a. In General. 
 
 Review of Determination of County Commis- 
 sioners, see Counties, 18. 
 
 181. A court cannot declare void a con- 
 tract for the term of twenty-one years made 
 by a city in the exercise of discretionary 
 power given by the legislature to determine 
 the length of the term of such contract. 
 Illinois Trust & Sav. Bank v. Arkansas City, 
 22 C. C. A. 171, 40 U. S. App. 257, 76 Fed. 
 271, 34: 518 
 
 182. A resolution by which a common 
 council undertakes to make a compromise 
 with a contractor to whom something is 
 equitably due, though perhaps nothing le- 
 gally, on a contract imperfectly performed, 
 does not constitute a legislative act, but is 
 part of the administrative duties 01 the 
 council, which may be declared void for 
 fraud and corruption. Weston v. Syracuse, 
 158 N. Y. 274, 53 N. E. 12, 43: 678 
 Incorporation or annexation. 
 
 183. The legislative character of the func- 
 tion of annexation of territory to a city does 
 not preclude judicial examination and de- 
 cision on questions as to the preliminary 
 steps and the truth and sufficiency of the 
 petition for annexation. Forsyth v. Ham- 
 mond, 142 Ind. 505, 40 N. E. 267, 41 N. E. 
 950, 30: 576 
 As to offices. 
 
 184. In the absence of legislative author- 
 ity, the common council of a city has no 
 power to determine the election and quali- 
 fications of the mayor, so as to prevent the 
 courts from determining as to his rights to 
 the office. Buckman v. State ex rel. Spen- 
 cer, 34 Fla. 48, 15 So. 697, 24: 806 
 License. 
 
 See also supra, I. c, 2, e. 
 
 185. The intent of the council that a li- 
 cense tax shall be prohibitory is immaterial, 
 if the council has power to impose the tax 
 for the purpose of raising revenue and the 
 ordinance imposing it is valid on its face. 
 Stull v. DeMattos, 23 Wash. 71, 62 Pac. 451, 
 
 51 : 892 
 Necessity of taking property. 
 
 186. The question of the necessity for tak- 
 ing particular property to aid in furnishing 
 a municipal water supply cannot be left 
 finally to the municipality without any right 
 of appeal to the courts, under a constitution 
 permitting property to be taken under the 
 right of eminent domain only when neces- 
 sary for public use. Stearns v. Barre. 73 Vt. 
 281, 50 Atl. 1086, 58: 240 
 As to highways generally. 
 
 Power of Courts as to Plan for Street Rail- 
 
 wav on, see Constitutional Law, 247. 
 See also infra, 210, 211. 
 
 187. Discretion vested in a city council to 
 extend the city streets across" a railroad 
 right of way at grade, or upon a bridge or 
 viaduct, will not be controlled by the court. 
 Illinois C. R. Co. v. onicago, 141 111. 586. 30 
 N. E. 1044, It: 530 
 
 188. The power of a court of equity to 
 compel a railroad company to comply with 
 its duty to restore a street to a proper con- 
 dition is not defeated by any powers which 
 a city council mav have. Moundsville v. 
 Ohio River R. Co/37 W. Va. 92, 16 . E. 
 514, 20: 161 
 
 189. The jurisdiction of a court to enjoin 
 interference with the operation of a street 
 railroad by moving a building along a street 
 is not excluded by the general jurisdiction 
 of a common council over the streets. Wil- 
 liams v. Citizens R, Co. 130 Ind. 71, 29 N. E. 
 408, 15: 64 
 
 190. The decision by the common council 
 of a city, that trees growing within the 
 limits of a sidewalk are obstructions which 
 should be removed, is not reviewable by the 
 courts in the absence of any evidence to 
 show an abuse of discretion. Chase v. Osh- 
 kosh, 81 Wis. 313, 51 N. W. 560, 15: 553 
 
 191. Equity may review the action of a 
 municipal corporation in declaring orna- 
 mental trees adjoining the curb in the street 
 in front of private property to be nuisances, 
 and ordering their removal. Frostburg v. 
 Wineland, 98 Md. 239, 56 Atl. 811, 64: 627 
 As to local improvements. 
 
 See also infra, 507. 
 
 192. The determination of corporate au- 
 thorities as to what is a local improvement 
 is the subject of review by the courts. Chi- 
 cago v. Blair, 149 111. 310, 36 N. E. 829, 
 
 24: 412 
 
 193. The location of a sidewalk upon a 
 street is, under the Illinois statute, within 
 the discretion of the city authorities, and 
 cannot be interfered with by the courts. 
 Mt. Carmel v. Shaw, 155 111. 37, 39 N. E. 
 584, 27:580 
 
 194. The determination of a public im- 
 provement commission to construct a new 
 curb, sustained by some evidence of its 
 necessity, is not reviewable by the courts, 
 where the commission has statutory author- 
 ity to construct curbing whenever they deem 
 the same necessary, and whenever, in their 
 judgment, the public convenience requires it. 
 People ex rel. North v. Featherstonhaugh, 
 172 N. Y. 112, 64 N. E. 802, 60: 768 
 
 195. Questions of necessity and expediency 
 of viaducts over railroad tracks, and of the 
 portion of tne expense which the city may 
 properly assume, are for the determination 
 of the city authorities, rather than the 
 courts. Argentine v. Atchison, T. & S. F. 
 R. Co. 55 Kan. 730, 41 Pac. 946, 30: 255 
 Tax. 
 
 As to Taxes Generally, see supra, 149-155. 
 
 196. The court may compel a city govern- 
 ment to correct an error in the mode of levy- 
 in? a tax, although it cannot appoint an as- 
 sessor or correct the error itself. Levi v. 
 Louisville, 97 Ky. 394, 30 S. W. 973, 28: 480 
 
 197. An assessment of personal property
 
 COURTS. I. c, 3. 
 
 855 
 
 by the ad valorem system, like that applied 
 to real property, may be ordered by the court 
 on behalf of the owners of real estate, where 
 a city has illegally attempted to tax per- 
 sonal property in another manner, even if 
 the illegal mode attempted would be as just 
 as the other. Id. 
 
 Regulation of water works. 
 See also Waters, 591, 592, 595-597, 603. 
 
 198. The courts have no right to interfere 
 with the discretion of a city in the exercise 
 of the power conferred upon it to provide a 
 system of water works and control and reg- 
 ulate the same. Asher v. Hutchinson Water, 
 L. & P. Co. 66 Kan. 496, 71 Pac. 813, 61: 52 
 
 199. A review by the court of the action 
 of the common council in fixing water rates 
 is not limited to a determination of the 
 question on the same evidence tha? was pro- 
 duced before the council, where the hearing 
 before the council was conducted without 
 notice to the water company or the rate 
 payers, and without any right on their 
 part to intervene effectually. San Diego 
 Water Co. v. San Diego, 118 Cal. 556, 60 
 Pac. 633, 38: 460 
 
 b. Review of Ordinances. 
 
 Rules of Court in Deciding as to, see infra, 
 506-510. 
 
 Injunction against Ordinance, see Injunc- 
 tion, 317-332. 
 
 For Editorial Notes, see infra, VI. 4. 
 
 200. Courts may declare void ordinances 
 and by-laws which are not reasonable. Des 
 Moines City R. Co. v. Des Moines, 90 Iowa, 
 770, 58 N. W. 906, 26:767 
 
 201. An ordinance which is unreasonable, 
 unjust, and oppressive, will be held by the 
 courts to be void. Hawes v. Chicago, 158 111. 
 653, 42 N. E. 373, 30: 225 
 
 202. The reasonableness of an ordinance is 
 open to judicial injuiry, when it is passed 
 in the exercise of a general authority to leg- 
 islate on the subje'ct without prescribing 
 the mode of its exercise. Champer v. Green- 
 castle, 138 Ind. 339, 35 N. E. 14, 24: 768 
 
 203. The reasonableness or unreasonable- 
 ness of a municipal ordinance is a question 
 for the decision of the court in the light of 
 all existing circumstances or contempora- 
 neous condition*, the objects sought to be 
 obtained, and the necessity or want of neces- 
 sity for its adoption. Hawes v. Chicago, 
 158 111. 653, 42 N. E. 373, 30: 225 
 
 204. If an ordinance is based upon a gen- 
 eral power, and its provisions are more de- 
 tailed than the expression of power con- 
 ferred, the court may look into its reason- 
 ableness. State, Trenton Horse R. Co. Pros- 
 ecutor, v. Trenton (IN. J. Sup.) 53 N. J. L. 
 132, 20 Atl. 1076, 11:410 
 
 205. The courts may inquire into the rea- 
 sonableness or unreasonableness of munici- 
 pal ordinances, where they have not been 
 expressly authorized by the legislature, or 
 are of a class which the legislature itself 
 has no power to enforce. Houston & T. C. 
 R. Co. v. Dallas, 98 Tex. 396, 84 S. W. 648, 
 
 70: 850 
 
 206. The courts will not inquire as to the 
 
 reasonableness of an ordinance when the 
 power exists to pass it. Skaggs v. Martins- 
 ville, 140 Ind. 476, 39 N. E. 241, 33: 781 
 
 207. An ordinance cannot be held invalid 
 because it is unreasonable, when the power 
 to pass ordinances on the subject is con- 
 ferred by a constitutional statute. [Af- 
 firmed by divided court.] Darlington v. 
 Ward, 48 S. C. 570, 26 S. E. 906, 38: 326 
 
 208. An ordinance cannot be successfully 
 assailed in a judicial tribunal for unreason- 
 ableness, when it has been adopted by ex- 
 press authority of the legislature without 
 conflict with any constitutional prohibition 
 or fundamental principles. Beilingv. Evans- 
 ville, 144 Ind. 644, 42 N. E. 621, 35: 272 
 
 209. Courts have no power to declare an 
 ordinance void because it is unreasonable; 
 unless its unreasonableness is so clear as to 
 indicate a mere arbitrary exercise of the 
 power vested in the council. State v. Barge, 
 82 Minn. 256, 84 N. W. 911, 1116, 53: 428 
 As to highways. 
 
 210. Ine legislative judgment and discre- 
 tion of a city council in passing an ordi- 
 nance for the public safety and convenience 
 and the proper regulation of the us*e of the 
 streets are not subject to review or super- 
 vision by the courts. Lake Roland Elev. 
 R. Co. v. Baltimore, 77 Md. 352, 26 Atl. 510, 
 
 20: 126 
 
 211. The court cannot set aside as unrea- 
 sonable an ordinance which authorizes the 
 laying of double tracks, when a statute ex- 
 pressly authorizes a municipal board to des- 
 ignate the number of street railway tracks 
 that shall be laid in any street, lane, or ave- 
 nue 6f the city. State ex rel. Kennelly v. 
 Jersey City (N. J. Sup.) 57 N. J. L. 293, 30 
 Atl. 531, 26: 281 
 As to speed of trains. 
 
 212. The reasonableness of an ordinance 
 limiting the speed of trains within munici- 
 pal limits, passed under general statutory 
 authority, which merely prescribes the min- 
 imum rate, without prescribing the details 
 of the regulation, is subject to review by the 
 courts. Chicago & A. R. Co. v. Carlinville, 
 200 111. 314, 65 N. E. 730, 60: 391 
 Sale of liquor. 
 
 213. General power to license and regulate 
 places for the sale of liquor does not prevent 
 judicial inquiry as to the reasonableness of 
 an ordinance prohibiting the use of blinds, 
 screens, etc., in such places. Champer v. 
 Greencastle, 138 Ind. 339, 35 N. E. 14, 
 
 24: 768 
 Prevention of fires. 
 
 214. Where a city is given power to make 
 regulations for the prevention of fire, and 
 the propriety or necessity of the methods 
 to be pursued to accomplish that object is 
 left to the discretion of the council, the 
 courts will not be warranted in setting aside 
 as improper an ordinance adopting means 
 which the council has by its acts declared 
 proper. Olympia v. Mann, 1 Wash. 389, 25 
 Pac. 337, 12: 150 
 Inquiry into motive. 
 
 See also supra, 96. 97; infra, 508. 
 
 215. An ordinance will not be declared 
 void on account of the motives which in-
 
 856 
 
 COURTS, I. d, 1. 
 
 dueed its passage, at least, when actual 
 fraud is not shown. Wood v. Seattle, 23 
 Wash. 1, 62 Pac. 135, 52: 369 
 
 216. The motives that prompt the enact- 
 ment of an ordinance cannot be considered 
 by the court in determining whether the or- 
 dinance is reasonable or unreasonable and 
 oppressive. Bennett v. Pulaski (Tenn. Ch.) 
 52 S. W. 913, 47: 278 
 
 d. Jurisdiction over Associations, etc.; Con- 
 clusiveness of Decisions of Their Tri- 
 bunals. 
 
 1. Associations. Generally. 
 
 Power to Review Decision of Military Board, 
 see Certiorari, 9-11. 
 
 Control over Election of Corporate Directors, 
 see Corporations, 641. 
 
 Review of Election by Corporate Directors, 
 see Corporations, 215. 
 
 Jurisdiction of Action by Corporate Stock- 
 holder, see Corporations, V. e, 2. 
 
 Review of Decision. of Medical Commission- 
 ers, see Medical College, 2. 
 
 See also. Benevolent Societies, 20. 
 
 For Editorial Notes, see infra, VI. 3. 
 
 217. The right of resort to the courts by 
 members of a fraternal organization will not 
 be deemed to be taken away by mere in- 
 ference; and if it can be done at all it will 
 only be where the restriction is stated in 
 the clearest and most express terms. Su- 
 preme Lodge 0. of S. F. v. Raymond, 57 Kan. 
 647, 47 Pac. 533, 49: 373 
 
 218. The rules by which the members of 
 an association agree to be governed cnsti- 
 tute the charter of their rights, and the 
 courts will decline to take cognizance of any 
 matter arising under them in respect of 
 matters of policy or tne internal economy 
 of the organization. Lawson v. Hewell, 118 
 Cal. 613, 50 Pac. 763, 49: 400 
 
 219. Courts will not interfere to control 
 the enforcement of by-laws of voluntary as- 
 sociations for the discipline of members who 
 have assented to them, where they infringe 
 no public policy or rule of law, and are not 
 unreasonable. Green v. Chicago Bd. of 
 Trade, 174 Til. 585, 51 N. E. 599, 49: 365 
 
 220. A court of chancery will not under- 
 take to force a member upon a corporation 
 which is not engaged in commercial business, 
 but merely furnishes to its members facili- 
 ties for carrying on business, against the 
 wiVl of those whose duty it is to pass upon 
 applications for membership. American 
 Livestock Com. Co. v. Chicago Livestock Ex- 
 plmnee, 143 111. 210, 32 N. E. 274, 18: 190 
 Division of fund. 
 
 221. The courts will not, except in case of 
 gross abuse, interfere with the division of a 
 fund contributed by the public to aid the 
 families of members of the fire department 
 killed in the discharge of their duties. Hal- 
 linan v. Hearst, 133 Cal. 645, 66 Pac. 17, 
 
 55: 216 
 Rejection of claim. 
 
 222. The right of members of a fraternal 
 organization to resort to courts when their 
 claims have been finally rejected by its 
 
 tribunals is not taken away by a constitu- 
 tional provision that no claim shall be paid 
 until all the laws or rules of the order 
 have been fully complied with and proof 
 made according to the laws of the order, 
 and also that the supreme lodge shall have 
 exclusive jurisdiction of all appeals from the 
 grand or subordinate lodges and members, 
 and its decisions upon all questions and ap- 
 peals shall be the supreme law of the order. 
 Supreme Lodge O. of S. F. v. Raymond, 57 
 Kan. 647, 47 Pac. 533, 49: 373 
 
 223. A rule in the relief department of a 
 railroad company that the decision of an ad- 
 visory committee on appeal from the deter- 
 mination of the superintendent of claims of 
 beneficiaries submitted to him shall be final 
 and conclusive on all parties without excep- 
 tion or appeal does not prevent the mainte- 
 nance of an action on a valid claim rejected 
 by such committee. Baltimore & 0. R. Co. 
 v. Stankard, 56 Ohio St. 224, 46 N. E. 577, 
 
 49: 381 
 
 224. An agreement by members of a vol- 
 untary benefit association, that the decision 
 of its tribunals rejecting a claim to bene- 
 fits shall be conclusive, is not against public 
 policy as an attempt to oust courts of jur- 
 isdiction. Hembeau v. Great Camp of the 
 K. of M. 101 Mich. 161, 59 N. W. 417, 
 
 49: 592 
 Expulsion. 
 
 225. The question whether or not the evi- 
 dence upon which an officer of a voluntary 
 society, who had jurisdiction of the mat- 
 ter, acted in declaring irregular a vote of 
 the association which suspended a member, 
 was sufficient to support his decision, is 
 not open to review by a court of law. Con- 
 nelly v. Masonic Mut. Ben. Asso. 58 Conn. 
 552, 20 Atl. 671, 9: 423 
 
 226. Decisions of a voluntary society or 
 association in admitting, displacing, sus- 
 pending, or expelling members, are of a 
 quasi judicial character, and will not be in- 
 terfered with by the courts, except to as- 
 certain whether the proceeding was pur- 
 suant to the rules and by-laws of the so- 
 ciety, or was in good faith, and not in vio- 
 lation of the laws of the land. Id. 
 
 227. The remedies afforded by the consti- 
 tution, laws, and regulations of the order 
 must be exhausted before a worshipful mas- 
 ter and presiding officer of a local lodge of 
 ancient, free, and accepted masons, can in- 
 voke the aid of the courts against the 
 grand master of the grand lodge of the state 
 to prevent suspension. Mead v. Stirling, 62 
 Conn. 586, 27 Atl. 591, 23: 227 
 
 228. A social club, in the trial of a charge 
 against one of its members, conviction of 
 which will, under its charter and by-laws, 
 subject him to expulsion, acts as a judicial 
 tribunal, and its judgment therein renders 
 the case res judicata, and will preclude its 
 re-examination on its merits by a judicial 
 court. Com. ex rel. Burt v. Union League, 
 135 Pa. 301, 19 Atl. 1030, 8: 195 
 Board of trade. 
 
 229. Courts" have power to correct abuses 
 resulting from the unwarranted procedure 
 of a committee of a board of tride, where
 
 COURTS, I. d. 2. 
 
 857 
 
 property rights are involved. Ryan v. Cud- 
 ahy, 157 111. 108, 41 N. E. 760, 49: 353 
 
 2. Religious Societies. 
 
 Powers of Ecclesiastical Tribunals Gener- 
 ally, see Religious Societies, IX. 
 For Editorial Notes, see infra, VI. 3. 
 
 230. All remedies within the church must 
 be exhausted by a member before the secu- 
 lar courts will interfere, if they have a 
 right to interfere at all, with the" action of 
 an ecclesiastical tribunal against him. Hat- 
 lield v. De Long, 156 Ind. 207, 59 N. E. 483. 
 
 51: 751 
 
 231. The decision of an association of 
 churches to which both factions of a church 
 belonging to the association have submit- 
 ted their claims, even if it is merely advis- 
 ory, is entitled to great weight in the courts 
 on the questions of religious doctrine, dis- 
 cipline, faith, and practice. Smith v. Pedi- 
 go, 145 Ind. 361, 33 N. E. 777, 19:433 
 
 232. The question of the regularity and 
 legal effect of the organization of an annual 
 conference of a religious organization, 
 after forcibly intercepting the entrance of 
 the bishop appointed to preside over it be- 
 cause of his alleged suspension from uis of- 
 fice under the discipline of the organization, 
 raises an ecclesiastical question upon which 
 the decision of the highest tribunal of the 
 order is binding on the civil courts. Krecker 
 v. Shirey, 163 Pa. 534, 30 Atl. 440, 29: 476 
 
 232a. The jurisdiction of a civil court to 
 adjudge any ecclesiastical matter must re- 
 suit as a mere incident to the determina- 
 tion of some property right. Nance v. Bus- 
 by, 91 Tenn. 303, 18 S. W. 874, 15: 801 
 As to property rights. 
 See also supra, 232a. 
 
 232b. For the purpose of settling the 
 title to church property, courts may inquire 
 into and determine the validity of an at- 
 tempt to amend the constitution and con- 
 fession of faith of the society, so as to as- 
 certain whether those adhering to the orig- 
 inal or amended documents constitute the 
 society. Schlichter v. Keiter, 156 Pa. 119, 27 
 Atl. 45, 22: 161 
 
 232c. Courts are not deprived of jurisdic- 
 tion to enforce rights in the property of a 
 voluntary religious association, which have 
 been established by a conclusive ecclesiasti- 
 cal decree, where there is no other remedy, 
 by a statute providing that no order of any 
 ecclesiastical body, or any custom or usage 
 of any religious order, shall hereafter be 
 recognized or enforced in this state so far 
 as it shall relate to the acquisition, tenure, 
 control, or disposition of any real estate or 
 interest therein. Fuchs v. Meisel, 102 Mich. 
 357, 60 N. W. 773, 32: 92 
 
 As to consolidation. 
 
 233. The consolidation of several churches 
 of the same denomination into one by the 
 properly constituted eccleciastical author- 
 ity is a matter of ecclesiastical law and 
 practice, and the determination of such ec- 
 clesiastical tribunal will not be reviewed by 
 the courts. Trinity M. E. Church v. Harris, 
 73 Conn. 21G, 47 Atl. 110, 50. 636 
 
 233a. The consolidation of several 
 churches of the Methodist Episcopal de- 
 nomination, which is effected, in accordance 
 with the uniform and universal practice of 
 the denomination, by the presiding bishop 
 at an annual conference, who appoints a 
 pastor for the united societies under a new 
 name, and appoints no pastor for either of 
 the old churches, is binding on the courts. 
 
 Id. 
 
 As to pastors. 
 See also supra, 233a. 
 
 233b. The decision of an eccleciastical 
 tribunal concerning the right, duties, and 
 obligations of a priest or minister of the 
 church who has submitted the controversy 
 to it for decision, is a bar to a subsequent 
 action by him in a civil court. Baxter v. 
 McDonnell, 155 N. Y. 83, 49 N. E. 667, 
 
 40: 670 
 
 233c. The decisions of church tribunals as 
 to the terms upon which the pastoral rela- 
 tions shall be formed and the salary ac- 
 companying it shall be demanded, as well 
 as in respect to doctrine and discipline, will 
 be binding on the civil courts. First Presby. 
 Church v. Myers, 5 Okla. 809, 50 Pac. 70,' 
 
 38: 687 
 
 233d. The removal by church officials, un- 
 der authority of the church discipline, of a 
 pastor who has no contract right to salary, 
 and the appointment of his successor, will 
 not be reviewed by the civil courts. Travers 
 v. Abbey, 104 Tenn. 665, 58 S. W. 247, 
 
 51:260 
 Change of constitution. 
 
 233. The adoption by the general confer- 
 ence of the report of a special committee on 
 the question whether a proposed new church 
 constitution is substantially the same as the 
 old one is a legislative, and not a judicial, 
 act, within the rule as to the conclusiveness 
 in the several courts of decisions by eccle- 
 siastical tribunals. Philomath College v. 
 Wyatt, 27 Or. 390, 31 Pac. 206, 37 Pac. 1022, 
 
 26: 68 
 
 234. The decision of the legally consti- 
 tuted ecclesiastical tribunal having jurisdic- 
 tion of the matter, that a proposed revised 
 confession of faith and amended constitu- 
 tion of a religious society, the question of 
 the adoption of which had been submitted 
 to a vote of the society, has become the 
 fundamental belief and constitution of the 
 society, is finding upon the civil courts. 
 Lamb v. Cain, 129 Ind. 486, 29 N. E. 13, 
 
 14: 518 
 
 234a. The decision of a general conference 
 which is the highest tribunal of a church, 
 that a new constitution and confession of 
 faith have become the fundamental belief 
 and constitution of the society, is not bind- 
 ing upon the courts where it is clearly 
 shown that the fundamental law of the 
 church, requiring a request by two thirds of 
 the whole society before a change in the 
 constitution can be made, has not been com- 
 plied with, but that one general conference 
 had appointed a commission to prepare a 
 new constitution and submit it to a vote of 
 the church, and a succeeding general con- 
 ference declared the constitution adopted,
 
 858 
 
 COURTS, I. e. 
 
 although the affirmative vote of the church 
 while more than two thirds of the members 
 voting, was much less than two thirds o 
 the whole society. Bear v. Heasley, 98 Mich 
 279, 57 N. W. 270, 24: 615 
 
 234b. The inquiry whether or not a church 
 tribunal that undertakes to decide as to 
 the expulsion of a member has been organ 
 ized in conformity with the constitution o: 
 the church is not ecclesiastical, within the 
 exclusive jurisdiction of the ecclesiastica 
 tribunals, but is within the jurisdiction oi 
 the civil courts, although the decision ol 
 such ecclesiastical tribunal, if it were prop- 
 erly constituted, would be conclusive on the 
 courts. Hatfield v. De Long, 156 Ind. 207 
 59 N. E. 483, 51 : 751 
 
 Expulsion; excommunication. 
 See also supra, 234b. 
 
 235. Excommunication by vote of a ma- 
 jority of the members voting at any confer- 
 ence of a purely congregational and inde- 
 pendent church, although it is made without 
 notice to the accused of the charges against 
 him or opportunity to vindicate himself, and 
 under an erroneous construction of the 
 usage and practice of the church, is an act 
 of the church which cannot be reviewed or 
 interfered with by a civil court. Nance v. 
 Busby, 91 Tenn. 303, 18 S. W. 874, 15: 801 
 
 235a. An exposition by the supreme ju- 
 dicial tribunal of a religious association, of 
 a provision of the discipline to the effect 
 that under it a second trial after one acquit- 
 tal upon substantially the same charges is 
 illegal, is binding upon the members of the 
 association and must be respected by the 
 civil courts. Krecker v. Shirey, 163 Pa. 534, 
 30 Atl. 440, 29: 476 
 
 e. Legislative Power as to. 
 
 To Abridge Court's Inherent Power as to 
 Contempt, see Contempt, 83-87. 
 
 Partial Invalidity of Statute as to Courts, 
 see Statutes, 94-97. 
 
 Special Legislation as to Courts, see Stat- 
 utes, 384-399. 
 
 See also infra, 272. 
 
 236. Any change which transfers the pow- 
 er that belongs to a judge to a jury, or to 
 any other person or body, is as plain a vio- 
 lation of the Constitution as^one which 
 would give the courts executive or legis- 
 lative power. The cosrnizance of equitable 
 questions belongs to the judiciary as a part 
 of the judicial power, and, under our Con- 
 stitution, must remain vested where it al- 
 ways has been vested heretofore. Brown 
 v. Kalamazoo County Circuit Judge, 75 
 Mich. 274, 42 N. W. 827, 5:226 
 
 237. It is not competent for the legisla- 
 ture to deprive the supreme court of its re- 
 visory jurisdiction over all the other state 
 tribunals, and no legislation which practi- 
 cally destroys it is valid. Id. 
 
 238. A statute which attempts to deprive 
 the governor of his constitutional power to 
 appoint judges of an inferior court, by 
 changing the name of the court and requir- 
 
 ing the judge to be elected without chang- 
 ing its jurisdiction or functions, is void. 
 Johnson v.- State, 59 N. J. L. 535, 37 Atl. 
 949, 38; 373 
 
 239. An attempt by the legislature to 
 make the board of state auditors an appel- 
 late court to determine the guilt or inno- 
 cence of a pardoned convict, and allow him 
 damages for wrongful conviction and im- 
 prisonment if they find him innocent, is in 
 violation of the constitutional provisions es- 
 tablishing courts and conferring upon them 
 exclusive jurisdiction to try civil and crim- 
 inal cases. Allen v. Board of State Audi- 
 tors, 122 Mich. 324, 81 N. W. 113, 47: 117 
 Changing or abolishing judicial circuits. 
 Power to Provide for More than One Judge 
 
 in Circuit, see Judges, 13. 
 Two-thirds Vote on Passage of Act Abol- 
 ishing, see Statutes, 19. 
 
 240. The power to detach counties from 
 one judicial circuit and add them to another 
 is within the constitutional grant of legis- 
 lative authority to ordain and establish from 
 time to time circuit, chancery, and other 
 inferior courts. McCulley v. State, 102 
 Tenn. 509, 53 S. W. 134, 46: 567 
 
 241. A statute abolishing a judicial dis- 
 trict before the expiration of the term of 
 office of the judge of that district, and 
 transferring all the counties comprising it 
 into another district, is within the constitu- 
 tional power of the legislature. Aikman v. 
 Edwards, 55 Kan. 751, 42 Pac. 366, 30: 149 
 Creating, abolishing, or changing number 
 
 of courts. 
 
 Partial Invalidity of Statute Abolishing 
 Courts, see Statutes, 95. 
 
 242. Courts in addition to circuit courtSj 
 whether inferior to or concurrent with them 
 in jurisdiction, may be established in Indi- 
 ana under the constitutional amendment 
 of March 14, 1881. Woods v. McCay, 144 
 Ind. 316, 43 N. E. 269, 33:97 
 
 243. The power to abolish existing courts, 
 and to increase and diminish the number, 
 is included in the legislative power to or- 
 dain and establish them. McCulley v. State, 
 102 Tenn. 509, 53 S. W. 134, 46: 567 
 
 244. Since separate orphans' courts in 
 ounties of a certain class were created by 
 
 and exist under the authority of the Penn- 
 sylvania Constitution, although put in ac- 
 tual operation by the legislature, it is com- 
 setent for the legislature to regulate and 
 naintain them, but not to abolish them 
 by appeal. Pteid v. Smoulter, 128 Pa. 324, 
 18 Atl. 445, 5: 517 
 
 Giving right to rehearing in. 
 
 245. The legislature cannot give the right 
 ;o a rehearing in the supreme court con- 
 trary to its rules, where the Constitution 
 ;reates the court, and provides that the leg- 
 slative, executive, and supreme judicial 
 xnvers of the government shall be separate 
 
 and distinct, and also that the general as- 
 embly may regulate methods of proceeding 
 n "courts below the supreme court." Hern- 
 Ion v. Imperial F. Ins. Co. Ill N. C. 384. 16 
 S. E. 465, - 18:547 
 
 Authorizing appointment of referee. 
 
 246. A justice of the supreme court may
 
 COURTS, I. f. II. a, 1. 
 
 S59 
 
 be authorized by the legislature to appoint 
 a referee to take testimony to aid the attor- 
 ney general in instituting proceedings for 
 the suppression of a monopoly. Re Davies, 
 168 N. Y. 89, 61 N. E. 118, ' 56: 855 
 
 Imposing duties on courts. 
 See also infra, 286. 
 
 247. The preparation of the syllabi of 
 judicial decisions is an essential part of the 
 reporter's work, which the legislature can- 
 not compel the judges to perform, especial- 
 ly under a state Constitution which pro- 
 vides that no judge shall be allowed to re- 
 port decisions. Ex parte Griffiths, 118 Ind. 
 83, 20 N. E. 513, 3: 398 
 
 248. The legislature cannot impose upon a 
 court the duty of receiving and acting on 
 petitions for the submission to Ihe voters 
 of the question whether or not intoxicating 
 liquors shall be sold, under a Constitution 
 separating the departments of government. 
 Supervisors of Elections v. Todd, 97 Md. 
 247, 54 All. 963, 62: 809 
 As to commissioners. 
 
 249. Under Ind. Const, art. 7, 1, ordain- 
 ing that "the judicial power of the state 
 shall be vested in one supreme court, in cir- 
 cuit courts, and in such other courts as the 
 general assembly may establish," the legis- 
 lature cannot create a supreme court com- 
 mission for the transaction of judicial busi- 
 ness. State ex rel. Hovey v. Noble, 118 Ind. 
 350, 21 N. E. 244, 4: 101 
 
 250. An act providing for the appoint- 
 ment of commissioners of the supreme court 
 "to assist ... in the performance of 
 its duties, . . . under such rules and 
 regulations as said court may adopt," is not 
 in violation of the California Constitution. 
 People ex rel. Morgan v. Hayne, 83 Cal. Ill, 
 23 Pac. 1, 7 : 348 
 
 251. The possibility that the court may 
 be unduly influenced by the reports and 
 opinions of commissioners appointed to as- 
 sist it does not affect the question of the 
 constitutionality of the act providing for 
 their appointment, when it is shown that 
 they are not usurping judicial power. Id. 
 
 f. Power of Municipality Over. 
 
 252. The local legislature of a municipal- 
 ity cannot confer power to hear and decide 
 cases upon judges of superior courts, who 
 are state officers. Fawcett v. Pritchard, 14 
 Wash. 604, 45 Pac. 23, 33:674 
 
 253. Constitutional permission to munici- 
 pal corporations to frame their own char- 
 ters does not include the right to provide 
 a tribunal and clothe it with power to hear 
 and decide contests of election to municipal 
 offices. Id. 
 
 g. Loss of Jurisdiction. 
 
 Over Administration of Decedent's Estate, 
 see Executors and Administrators, 26. 
 
 254. After a court, by reason of the resi- 
 dence of one of several codefendants living: 
 in different counties, has obtained jurisdic- 
 tion of a suit against the mayor and alder- 
 men of a city and dispensary commission- 
 
 ers to enjoin the maintenance of a dispens- 
 ary for the sale of intoxicating liquors, 
 such jurisdiction is not lost by the death, 
 removal, or resignation Irom office of the 
 resident defendant. Lofton v. Collins, 117 
 Ga. 434, 43 S. E. 708, 61: 150 
 
 255. A court loses jurisdiction of an ac- 
 cused person by wrongfully interpreting his 
 constitutional rights or immunities against 
 him, or by refusing him a constitutional 
 right, so that its judgment against him is 
 void. Ex parte Miskimins, 8 Wyo. 392, 58 
 Pac. 411, 49: 831 
 
 II. State and Territorial Courts. 
 a. Jurisdiction. 
 1. In General. 
 
 Jurisdiction in Particular Kinds of Actions 
 and Proceedings, see Accounting; Ad- 
 miralty ; Attachment ; Certiorari; 
 Cloud on Title; Corporations; Credi- 
 tors' Bill; Divorce and Separation, II.; 
 Equity, I.; Executors and Administra- 
 tors ; Fraud and Deceit, VIII. ; Fraudu- 
 lent Conveyances, VIII.; Garnishment; 
 Habeas Corpus; Incompetent Persons; 
 Infants; Injunction; Insurance, VI. h; 
 Mandamus; Marriage, IV.; Mortgage, 
 V.; Nuisances, II.; Partnership; Pro- 
 hibition, I.; Receivers, I, IV.; Replevin, 
 I.: Specific Performance; Trespass; 
 Trover; Wills, IV. 
 
 See also supra, 254. 
 
 For Editorial Notes, see infra, VI. 12. 
 
 256. Neither the original nor the amended 
 charter of the city of Anderson, South Caro- 
 lina, gives the right to a trial by the full 
 council in the mayor's court in the first in- 
 stance, but only on appeal. Anderson v. 
 O'Donnell, 29 S. C. 355, 7 S. E. 523, 1: 632 
 
 257. A suit for relief against an ordi- 
 nance fixing unreasonable water rates is an 
 equitable one, within the jurisdiction of 
 the superior courts of California. Spring 
 Valley Water Works v. San Francisco City 
 & County, 82 Cal. 286, 22 Pac. 910, 1046, 
 
 6: 756 
 
 Election contests. 
 
 Jurisdiction of County Judge in Term Time, 
 see Elections, 326. 
 
 258. Officers of school districts are in- 
 cluded in the words "all other officers," in 
 111. act April 3, 1872 (111. Rev. Stat. chap. 
 46), giving the county court jurisdiction of 
 contests of election of county, township, and 
 precinct officers, and all other officers for 
 the contest of whose election no provision 
 is made. Misch v. Russell, 136 111. 22, 26 
 N. E. 528, 12: 125 
 Enforcement of alimony. 
 
 259. A proceeding to enforce a decree for 
 alimony by attachment for contempt is 
 properly brousrht in the court of common 
 pleas, where the decree was rendered by 
 the circuit court, and the cause remanded by 
 that court to the court of common pleas for 
 execution. State v. Cook, 66 Ohio St. 566, 
 64 N. E. 567, 58: 625
 
 860 
 
 COURTS, II. a, 2. 
 
 Naturalization. 
 
 260. A court in which the judge thereof is 
 charged with the duty of keeping its rec- 
 ords, which must be authenticated by him 
 though having a recorder charged with the 
 duty of keeping such records when request- 
 ed by the judge, is not a court having a 
 clerk, within the Federal statute regulating 
 naturalization, and has no power to receive 
 a declaration of intention to become a citi- 
 zen. Re Dean, 83 Me. 489, 22 Atl. 585, 
 
 13. 229 
 
 261. A court, to have jurisdiction of appli- 
 cations for naturalization, or to receive 
 declarations of intention under the Federal 
 statute, must, in addition to possessing a 
 seal, have a clerk distinct from the judge 
 charged with the duty of keeping a true 
 record of its doings, and afterwards of 
 authenticating them. Id. 
 
 262. While a court, to have cognizance of 
 applications for naturalization, or to receive 
 declarations of intention under the Federal 
 statute, must possess common-law jurisdic- 
 tion, it is not necessary that it have all the 
 common-law jurisdiction that pertains to 
 all classes of actions, but merely that it 
 exercises its powers according to the course 
 of the common law. Id. 
 Enforcement of stipulation. 
 
 263. A stipulation for value in a posses- 
 sory action, unlike stipulations for value 
 in other cases, can be enforced in any court 
 having jurisdiction of an action of debt for 
 the amount due on the stipulation. Braith- 
 waite v. Jordan, 5 N. D. 196. 65 N. W. 701, 
 
 31:238 
 Nuisances. 
 
 264. The jurisdiction of the municipal 
 court of the city of Wilmington, Delaware, 
 in cases of public nuisance, extends to a 
 case of coasting on the public streets, which 
 is intrinsically a common nuisance, al- 
 though not expressly declared to be so by 
 any ordinance. Wilmington v. Vandegrift, 
 1 Marv. (Del.) 5, 29 Atl. 1047, 25: 538 
 
 265. Jurisdiction to abate nuisances ex- 
 isting in the cities having a population of 
 20,000 or more, in a summary manner, under 
 the laws of the state of Georgia, resides 
 alone in the police court of the city where 
 it is claimed such nuisance exists, except 
 as to things or acts which are by the com- 
 mon or statute law declared to be nuisances 
 per se or which are in their very nature 
 palpably and indisputably such. Western 
 & A. R. Co. v. Atlanta, 113 Ga. 537, 38 S. 
 E. 996, 54: 294 
 
 2. Original Jurisdiction of Appellate Court; 
 Superintending Control. 
 
 To Roview Determination of Board of State 
 Canvassers, see Certiorari, 4. 
 
 Over Writ of Habeas Corpus, see Habeas 
 Corpus, 6. 
 
 See also supra, 237; Parties, 93; Prohibition, 
 2, 3. 
 
 For Editorial Notes, see infra, VT. 1, 9. 
 
 206. The general superintending control 
 conferred by Mo. Const, art. 6, 3. upon 
 the supreme court over inferior courts, in- 
 
 cludes no power to control the judgment 
 or discretion of a lower court for any 
 particular purpose or in any particular 
 manner. State ex rel. Monett Mill. Co. v. 
 Neville, 157 Mo. 386, 57 S. W. 1012, 51 -. 95 
 
 267. The superintending control of the 
 Missouri supreme court over the courts of 
 appeals, by mandamus, prohibition, and 
 certiorari, is not limited to cases which 
 may be certified to that court under the 
 provisions of the constitutional Amendment 
 of 1884, G. State ex rel. Bayha v. Kan- 
 sas City Ct. App. 97 Mo. 331, 10 S. W. 855, 
 
 3: 476 
 
 268. Prohibition to stay further proceed- 
 ings under a void order for rehearing by a 
 court of mediation and arbitration may be 
 granted by the supreme court of Michigan 
 under its power of superintending control. 
 Renaud v. State Court of Mediation and 
 Arbitration, 124 Mich. 648, 83 N. W. 620, 
 
 51 : 458 
 
 269. The supreme court has jurisdiction 
 to intervene by a writ of prohibition to 
 stay an inferior court from proceeding out 
 of its jurisdiction, under a constitutional 
 provision empowering it to issue such writs 
 as may be necessary to give it a general 
 control of inferior jurisdictions. Hargis v. 
 Parker, 27 Ky. L. Rep. 441, 85 S. W. 704, 
 
 69: 270 
 
 270. The supreme court may exercise its 
 constitutional power to prevent an inferior 
 court from exceeding its jurisdiction, before 
 the question of jurisdiction has been pre- 
 sented to such court, where the situation 
 disclosed is such that to take the ordinary 
 course would be of itself to subject the com- 
 plaining party to irremediable loss. Id. 
 
 271. A constitutional grant of superin- 
 tending control over inferior courts vests in 
 the , supreme court an independent and 
 separate jurisdiction, enabling it to restrain 
 the excesses and quicken the neglects of 
 inferior courts in the absence of other 
 adequate remedy, and authorizes the use of 
 all the ancient writs necessary to the exer- 
 cise of that high power, including man- 
 damus, prohibition, certiorari, and pro- 
 cedendo. State ex rel. Fourth Nat. Bank v. 
 Johnson, 103 Wis. 591, 79 N. W. 1081, 51: 33 
 
 272. The right to hear and determine the 
 cause, involved in the constitutional grant 
 to the supreme court of superintending 
 control over inferior courts, cannot be taken 
 away by the legislature by directing that 
 issues of fact arising during the attempted 
 exercise of such control shall be tried in 
 
 ertain designated inferior courts. Id. 
 
 273. Mandamus will issue, under the 
 power of superintending control conferred 
 upon the supreme court by Mich. Comp. 
 Laws, 191, to vacate a void order by the 
 state court of mediation and arbitration 
 granting a rehearing in a cause decided by 
 
 t. Ronaud v. State Court of Mediation and 
 Arbitration, 124 Mich. 648, 83 N. W. 620, 
 
 51: 458 
 
 274. A supreme cotirt whose original 
 jurisdiction in mandamus proceedings is 
 imited to cases involving public interests 
 
 or private ones in which there is no other
 
 COURTS, II. a, 2. 
 
 861 
 
 adequate remedy will not take jurisdiction 
 of a proceeding by a private relator to com- 
 pel a municipal corporation to remove a 
 bridge across a street, connecting the upper 
 floors of buildings abutting thereon. Peo- 
 ple ex rel. Kocourek v. Chicago, 193 111. 507, 
 62 X. E. 179, 58: 833 
 
 275. Under constitutional grants to the 
 supreme court of original jurisdiction in 
 cases relating to the revenue, in mandamus 
 and habeas corpus, and of appellate juris- 
 diction in all other oases, and to the circuit 
 courts of original jurisdiction of all causes 
 in law and equity, original jurisdiction in 
 mandamus vests in the supreme court only 
 in cases which directly involve the interests 
 of the state at large, or, in cases of local 
 public interests or private rights, when it 
 is necessary to prevent a failure of justice 
 because there is no other adequate remedy, 
 about which the court may exercise a 
 sound legal discretion. Id. 
 
 276. Mandamus to compel the dissolution, 
 as on bond of an injunction issued at the 
 suit of taxpayers, to restrain the sale of a 
 street railway franchise by a city, will be 
 granted by the Louisiana supreme court in 
 the exercise of the general supervisory 
 jurisdiction over inferior courts given it by 
 the Louisiana Constitution, where the ef- 
 fect of the injunction is to arrest the action 
 of the city officers in a matter of public 
 concern within the scope of the authority 
 conferred on them, which is still subject to 
 legislative consideration, and has not yet 
 reached such definite shape as to threaten 
 injury to the plaintiffs in injunction or the 
 public, while the injury to the city may be 
 irreparable, and the remedy by appeal will 
 afford no relief. State ex rel. New Orleans 
 v. Judge of Civil Dist. Ct. 52 La. Ann. 1275, 
 27 So. 607, 51 : 71 
 
 277. The original jurisdiction of the su- 
 preme court of South Dakota, under S. D. 
 Const, art. 5, 2, 3, includes the power to 
 issue, hear, and determine a writ of certio- 
 rari under such regulation as may be pre- 
 scribed by law, where judicial questions are 
 involved affecting the sovereignty of the 
 state, its franchises or prerogatives, or the 
 liberties of the people. State ex rel. Dol- 
 lard v. Hughes County, 1 S. D. 292. 46 N. 
 W. 1127, 10: 588 
 
 278. Under its general superintending 
 control over inferior courts conferred by 
 Colo. Const, art. 6, 2, the supreme court 
 has no power to review on certiorari a 
 judgment of the court of appeals in a 
 habeas corpus proceeding to determine the 
 right to the custody of a child, as between 
 the father and relatives of the deceased 
 mother, upon the theory that the court ex- 
 ceeded its jurisdiction by applying a rule of 
 law at variance with the settled doctrine 
 upon the subject, where it had jurisdiction 
 to determine the question, and its judgment 
 was not in conflict with any prior decision 
 of the supreme court. People ex rel. Green 
 v. Court of Appeals of Colo. 27 Colo. 405, 61 
 Pac. 592. 51 : 105 
 
 279. The original prerogative jurisdiction 
 of the supreme court of Wisconsin extends 
 
 to the issue of an injunction to prevent an 
 officer of the state from doing an unauthor- 
 ized act in relation to a matter of public 
 interest. State ex rel. Adams County v. 
 Cunningham, 81 Wis. 440, 51 N. W. 724, 
 
 15:561 
 
 280. A statute authorizing a county to 
 issue bonds to procure seed grain for needy 
 farmers is a matter of local concern, and 
 the supreme court of North Dakota has not 
 original jurisdiction to issue an injunction 
 in such matter. State ex rel. Goodwin v. 
 Nelson County, 1 N. D. 88, 45 N. W. 33, 
 
 8: 283 
 
 281. To warrant the supreme court of 
 Colorado in taking jurisdiction in an original 
 proceeding by injunction, the case made by 
 the complaint must not only show equitable 
 ground for relief, but must disclose a ques- 
 tion involving the rights or franchises of the 
 state in its sovereign capacity, that is, 
 public rights or interests, as contradis- 
 tinguished from matters of private or in- 
 dividual concern. People ex rel. Bentley v. 
 McClees, 20 Colo. 403, 38 Pac. 468, 26: 646 
 
 282. The writ of injunction which the 
 Constitution authorizes the supreme court 
 of Colorado to issue in the exercise of its 
 original jurisdiction is a jurisdictional writ, 
 as contradistinguished from the ordinary 
 writ of injunction in aid of jurisdiction 
 otherwise acquired. Id. 
 
 283. A writ of injunction to restrain the 
 secretary of state irom delivering certifi- 
 cates of election to certain persons elected 
 as district judges, asked on the ground that 
 the terms of the incumbents of such judicial 
 offices were not about to expire, the real 
 question in controversy being the question 
 of title to public offices between the individ- 
 ual claimants, will not be granted by the 
 supreme court of Colorado as the contro- 
 versy does not involve the rights or fran- 
 chises of the people, or the rights of the 
 state in its sovereign capacity. Id. 
 
 284. The original jurisdiction of the su- 
 preme court of North Dakota to issue a 
 writ of injunction under the authority given 
 by the state Constitution, 87, cannot be 
 invoked by a private person without any 
 s'howing that the attorney general is unable 
 or unwilling to act, but the information 
 should be filed by the attorney general, or 
 under his authority, and by leave of the 
 court first obtained, and in the name of the 
 state. Anderson v. Gordon, 9 N. D. 480, 83 
 N. W. 903. 52: 134 
 
 285. The preservation of a constitutional 
 legislature, as well as of the right of the 
 people of the state to equal representation 
 in the legislature, is a matter of public in- 
 terest which is within the original pre- 
 rogative jurisdiction of the supreme court 
 of Wisconsin State ex rel. Adams County 
 v. Cunningham, 81 Wis. 440, 51 N. W. 7?4. 
 
 15: 561 
 
 280. The siipreme court of Indiana will 
 give judgment upon the validity of a stat- 
 ute requiring the judges to make syllabi of 
 opinions, when the question is presented 
 upon a petition of the reporter of the 
 court, since the question directly concerns
 
 868 
 
 COURTS. II. a, 35. 
 
 the rights, powers, and functions of the 
 court, and no other tribunal can determine 
 it. Ex parte Griffiths, 118 Ind. 83, 20 N. 
 E. 513, 3: 398 
 
 3. As Dependent on Amount. 
 
 Jurisdiction o'f Justice, see Justice of the 
 
 Peace, 16. 
 For Editorial Notes, see infra, VI. 7. 
 
 287. The superior court has no original 
 jurisdiction of a legal cause of action, 
 where the amount claimed is under $200. 
 Howard v. Mutual Reserve Fund L. Asso. 
 125 N. C. 49, 34 S. E. 199, 45: 853 
 
 288. A statute denying plaintiff costs in a 
 district court, if his recovery is below $50, 
 does not limit the jurisdiction of the court 
 to cases in which that sum is involved. 
 St. Paul F. & M. Ins. Co. v. Coleman, 6 
 Dak. 458, 43 N. W. 693, 6:87 
 
 289. Mere failure to prove damages suffi- 
 cient in amount to give the court jurisdic- 
 tion will not necessarily oust the jurisdic- 
 tion, where, as laid in the declaration, they 
 are sufficiently large. To have that effect, 
 plaintiff's good faith in laying his damages 
 at so large an amount must be negatived. 
 Drown v. Forrest, 63 Vt. 557, 22 Atl. 612, 
 
 14:80 
 
 Amount in controversy. 
 For Editorial Notes, see infra, VI. 7. 
 
 290. The total fund sought is the amount 
 in controversy, for the purpose of determin- 
 ing jurisdiction, in a suit by one taxpayer, 
 on behalf of all similarly situated, to re- 
 cover back taxes illegally exacted. Com. 
 use of Wiggins v. Scott, 112 Ky. 252, 65 
 S. W. 596, 55: 597 
 
 291. In determining whether or not a 
 suit for injunction against a boycott in- 
 volves a sufficient amount in money to be 
 within the jurisdiction of the court, the 
 test is the value in money to complainant 
 of the relief sought, or the amount of loss 
 in case relief is denied. Marx & H. Jeans 
 Clothing Co. v. Watson, 168 Mo. 133, 67 S. 
 W. 391. 56: 951 
 
 292. The matter in dispute in an injunc- 
 tion suit to' restrain the seizure of a home- 
 stead on execution is the homestead, and 
 not the amount of the judgment sought to 
 be executed; and the injunction suit must 
 be filed in another court than that of the 
 seizure, if the latter court has not jurisdic- 
 tion ratione materice. Speyrer v. Miller, 
 108 .La. 204, 32 So. 524, 61 : 781 
 
 293'. Interest on damages for conversion, 
 given as damages for delay in payment, and 
 not by express provision of statute, is not 
 such interest as must be excluded under 
 Tex. Const, art. 5, 16, from the amount of 
 $1,000 fixed as the maximum sum for con- 
 current jurisdiction of county and district 
 courts. Baker v. Smelser, 88 Tex. 26, 29 
 S. W. 377, 33: 163 
 
 Joinder of causes to rive jurisdiction. 
 
 294. Claims in clifforont counts against a 
 town for iniuries to sheep, under Conn. Gen. 
 Stat. 3752, not being based on contract, 
 cannot be united to make up the amount 
 necessary to give jurisdiction to the Con- 
 
 necticut court of common pleas. Davis v. 
 Seymour, 59 Conn. 531, 21 Atl. 1004, 13: 210 
 
 295. Causes of action for fines for failure 
 to keep a ticket office and waiting room 
 open at a depot cannot be joined to give the 
 circuit court jurisdiction under Ky. Stat. 
 1093. giving justices exclusive jurisdiction 
 in penal actions where the fine recover- 
 able does not exceed $20. Louisville & N. 
 R. Co. v. Com. 102 Ky. 300, 43 S. W. 458, 
 
 53: 149 
 In equity. 
 
 296. Equity will not extend its aid for 
 the recovery of a legacy the amount of 
 which is only $20. Gale v. Nickerson, 151 
 Mass. 428, 24 N. E. 400, 9: 200 
 
 4. Matters as to Title. 
 
 297. The circuit court in Indiana has 
 jurisdiction of a proceeding to establish a 
 way of necessity over the land of another, 
 since the act of March 9, 1889, which at- 
 tempted to confer jurisdiction of such pro- 
 ceedings upon the board of county commis- 
 sioners, is unconstitutional. Logan v. Stog. 
 dale, 123 Ind. 372, 24 N. E. 135, 8: 58 
 
 298. A suit to restrain a sale under a 
 trust deed in order to prevent a cloud upon 
 title is one "involving title to real estate," 
 within the jurisdiction of the Missouri su- 
 preme court. Gardner v. Terry, 99 Mo. 523, 
 12 S. W. 888, 7:67 
 
 299. A district court obtains the same 
 jurisdiction over a case in which title to 
 real estate is involved, certified to it by a 
 justice of the peace, under Mont. Comp. 
 Stat. 779, as if it had been originally 
 commenced therein, and may render judg- 
 ment for damages in excess of the juris- 
 dictional amount of the justice. Gassert v. 
 Bogk, 7 Mont. 585, 19 Pac. 281, 1 : 240 
 
 300. A county court acting as a probate 
 court has no jurisdiction to try a question 
 of title to property as between the personal 
 representative of a decedent and a person 
 claiming in hostility to the estate. Arne- 
 eraard v. Arnegaard, 7 N. D. 475, 75 N. W. 
 797, 41:258 
 
 5. Trusts; Probate; Insolvency. 
 
 Power of Legislature as to Orphans' Court, 
 
 see supra, 244. 
 Domicil for Purposes of Jurisdiction, see 
 
 Domicil, 3, 5, 6. 
 Jurisdiction of Suits by Insane Persons, see 
 
 Incompetent Persons, 43. 
 Repeal of Statute as to Orphans' Court, see 
 
 Statutes, 587. 
 For Editorial Notes, see infra, VI. 5. 
 
 301. The attempt to confer general com- 
 mon-law and chancery jurisdiction on pro- 
 bate courts by the territorial act of Utah, 
 March 6, 1852, was absolutely void because 
 it was not authorized by the organic act. 
 Re Christensen's Estate, 17 Utah, 412, 53 
 Pac. 1003, 41: 504 
 Trusts. 
 
 302. The superior court in Connecticut has 
 power, as a court of equity, to supply trus- 
 tees, when necessary to preserve a trust, but
 
 COURTS, II. a, 6, b. 
 
 863 
 
 will exercise the power only when necessary 
 to prevent the trust from being defeated; 
 and it will first give the probate court a 
 chance to make such an appointment where 
 it has the power. Dailey v. New Haven, 60 
 Conn. 314, 22 Atl. 945, " 14: 69 
 
 303. The circuit court in Wisconsip, hav- 
 ing general jurisdiction, is not precluded 
 from taking jurisdiction of a suit against 
 trustees under a will by the fact that the 
 will has been proved in the county court 
 and the estate finally settled in that court, 
 except the execution of the trust, although 
 the county court is expressly given juris- 
 diction of such suits. Lamberton v. Pereles, 
 87 Wis. 449, 58 N. W. 776, 23: 824 
 Estates of decedents. 
 
 Jurisdiction to Appoint Administrator, see 
 
 Executors and Administrators, 12-16. 
 As to Instructions to, and Control Over 
 
 Personal Representatives, see Executors 
 
 and Administrators, IV. b. 
 Jurisdiction of Suit to Construe or Reform 
 
 Will, see Wills, IV. 
 See also supra, 296, 300; Wills, 115. 
 For Editorial Notes, see infra, VI. 5. 
 
 304. The county court has exclusive juris- 
 diction in the first instance, under Hill's 
 (Or.) Code, 895, to direct and control the 
 conduct, and to settle accounts, of executors, 
 administrators, and guardians, including 
 the power to inquire into cases of devastavit 
 and charge the delinquent with the amount 
 thereof. Steel v. Holladay, 20 Or. 70; 25 
 Pac. 69, 10: 670 
 
 305. The grant of exclusive jurisdiction 
 over the estates of deceased persons to the 
 probate courts, by the Arkansas Constitu- 
 tion of 1874, places the assets of a decedent 
 beyond the reach of process from any other 
 tribunal. Meredith v. Scallion, 51 Ark. 361, 
 11 S. W. 516, 3: 812 
 
 306. The superior court in Connecticut has 
 jurisdiction of a suit to compel an intes- 
 tate's estate which has been saved from 
 insolvency by the voluntary act of all the 
 heirs of legal age to refund the expense in- 
 curred thereby, before distribution. Bene- 
 dict v. Chase, 58 Conn. 196, 20 Atl. 448, 
 
 8: 120 
 Insolvency. 
 
 307. Where a claim is presented to an 
 assignee for the benefit of creditors, which 
 for its sufficiency depends upon the validity 
 of a mortgage of property of the assignor 
 as against his creditors, and exceptions to 
 it are filed which properly aver the mort- 
 gage to be void as against the creditors for 
 fraud, the orphans' court is the -proper 
 tribunal to hear the proofs and allegations 
 of the parties and determine the question of 
 fraud. Moore v. Williamson (N. J. Prerog. 
 Ct.) 44 N. J. Eq. 496, 15 Atl. 587, 1: 336 
 
 6. Crimes. 
 
 Territorial Limitation as to, see supra, I. 
 
 b, 2. 
 Conflict of Authority as to, see infra, IV. 
 
 d, 2. 
 Limitation of Jurisdiction of Police Court, 
 
 see Criminal Law, 81. 
 
 Effect of Pending Prosecution in Other 
 Court, see Criminal Law, II. e. 
 
 Jurisdiction to Require Surety for Good 
 Behavior, see Criminal Law, 194-196. 
 
 See also supra, 255. 
 
 308. While, under La. Rev. Stat. 1010, 
 justices of the peace have no authority to 
 investigate charges of murder, the same 
 being vested in district judges only, the re- 
 corders of the city of i\ew Orleans, under 
 previous laws, under the Constitution, and 
 the city charter, are empowered to do so. 
 State ex rel. Matranga v. Bringier, 42 La. 
 Ann. 1091, 8 So. 279, 10: 137 
 
 309. Although exclusive jurisdiction is 
 given to the court of special sessions by N. 
 Y. Code Crim. Proc. 56, subd. 32, as 
 amended by N. Y. Laws 1884, chap. 379, 
 over prosecutions for violations of the excise 
 law, in which complaints are made to a 
 committing magistrate, yet if, during the 
 preliminary examination for the purpose of 
 determining whether a warrant shall issue, 
 the case is withdrawn from the magistrate 
 with his consent, it may be subsequently 
 presented to the grand jury and tried in 
 the court of sessions. People v. Andrews, 
 115 N. Y. 427, 22 N. E. 358, 6: 128 
 
 310. The jurisdiction conferred upon 
 courts of special sessions by N. Y. Laws 
 1885, chap. 183, 14, as to offenses arising 
 under that act, is not exclusive. Austin v. 
 Vrooman, 128 N. Y. 229, 28 N. E. 477, 
 
 14: 138 
 Violation of ordinance. 
 
 311. The jurisdiction of the mayor over 
 violation of an ordinance will not be defeat- 
 ed by the fact that a provision in the ordi- 
 nance attempts to make his jurisdiction ex- 
 clusive, if the laws give him at least a co- 
 ordinate jurisdiction. State v. Biggs, 126 
 N. C. 1014, 35 S. E. 473, 48: 446 
 
 b. Terms; Place of Sitting. 
 
 Effect of Recess in Session, see Contempt, 
 81. 
 
 Judicial Notice of Judicial District, see Evi- 
 dence, 42. 
 
 Plurality of Subjects in Statute as to, see 
 Statutes, 265. 
 
 Partial Invalidity of Statute as to Terms, 
 see Statutes, 94. 
 
 See also supra, 240, 241. 
 
 For Editorial Notes, see infra, VI. 10. 
 
 Adjourned term. 
 
 312. A court has, at a regularly adjourned 
 term, all the power in respect to the 
 amendment of 'its minutes as to the or- 
 ganization of the grand jury by which an 
 indictment, designed for trial at the or- 
 iginal term and on the docket at the time of 
 the adjournment, was presented, which it 
 would have had at the original term. Keith 
 v. State, 91 Ala. 2, 8 So. 353, 10: 430 
 Special term. 
 
 313. Under a statute providing that the 
 governor may order a special term of court 
 in any county whenever it shall appear to 
 him by the certificate of a judge, or of the 
 county commissioners, or otherwise, that a
 
 864 
 
 COURTS, II. c III. b. 
 
 certain state of facts exists, he is the sole 
 judge of the sufficiency of the evidence to 
 satisfy him that a special term is required. 
 State v. Lewis, 107 IS!. C. 967, 12 S. E. 457, 
 
 11: 105 
 
 Place of sitting. 
 Statute as to, see Statutes, 61. 
 
 314. A conviction on a trial held at a 
 county seat de facto, where the courthouse 
 is situated and the public business actually 
 transacted, will not be held invalid on 
 habeas corpus under the statute which or- 
 dains that the court shall be held at the 
 COULMV seat, although the removal of the 
 county seat some years before from another 
 place was illegal. Re Allison, 13 Colo. 5^5, 
 22 Pac. 820, 10: 790 
 
 3J?. Long acquiescence in the universal 
 custom of courts to sit at county seats is 
 equal to positive law requiring the courts to 
 be held at those places. White County 
 Comrs. v. Gwin, 136 Ind. 562, 36 N. E. 237, 
 
 22: 402 
 
 316. In Indiana the legislature may re- 
 quire courts to sit at places other than the 
 county seats. Woods v. McCay, 144 Ind. 
 316, 43 N. E. 269, 33: 97 
 
 317. An act establishing for a county an 
 additional court to sit at a place other than 
 the county seat cannot be set aside because 
 of the inconvenience of having two courts 
 holding their sessions at different places. Id. 
 
 c. Transfer of Cause. 
 
 Effect of Failure to Provide for Appeal as 
 to, see Appeal and Error, 6. 
 
 Estoppel to Object as to, see Appeal and 
 Error, 491. 
 
 Removal of Case in Division to Court in 
 Bane, see Appeal and Error, 1264. 
 
 In Eminent Domain Case, see Eminent Do- 
 main, 179. 
 
 Transfer between State and Federal Courts, 
 see Removal of Causes. 
 
 318. No transcript of the proceedings in 
 one division of a court need be certified to 
 another division upon the transfer of a 
 criminal cause from one to the other for 
 trial because of alleged prejudice on the part 
 of the judge presiding in the former divi- 
 sion, where the same clerk is the custodian 
 of the proceedings in both divisions. State 
 v. Lehman, 182 Mo. 424, 81 S. W. 1118. 
 
 66: 490 
 
 d. Opinions. 
 
 See also supra, 286. f 
 
 319. The mere fact that opinions are pre- 
 pared by the commissioner of the supreme 
 court of Nebraska is no indication that such 
 cases have not been examined by the judges; 
 but all questions of law, and, so far as prac- 
 ticable, questions of fact, are considered by 
 each of the judges and commissioners, and 
 opinions are invariably submitted for ex- 
 amination and criticism by the entire mem- 
 bership of the court. Randall v. National 
 Birtg. L. & P. Union, 42 Neb. 809, 60 N. W. 
 1019, 29: 133 
 
 320. Whether or not an opinion shall be 
 filed in the decision of a case is a matter 
 of discretion with the supreme court. Par- 
 ker v. Atlantic Coast Line R. Co. 133 N. C. 
 335, 45 S. E. 658, 63: 827 
 
 321. A constitutional provision that "the 
 governor shall have authority to require the 
 opinion of the judges of the supreme court 
 upon important questions of law involved in 
 the exercise of his executive powers, and 
 upon solemn occasions," is confined ex- 
 clusively to such questions as may raise a 
 doubt in the executive department, and the 
 court will refuse to answer questions pro- 
 pounded by the governor upon request of 
 the legislature. Re Construction of Consti- 
 tutional Provision, 3 S. D. 548, 54 N. W. 
 650, 19: 575 
 
 ITI. Federal Courts. 
 
 a. Suits by or against State or State Of- 
 ficers. 
 
 For Editorial Notes, see infra, VI. 13. 
 
 322. A United States circuit court has no 
 jurisdiction of a suit civil in form, but penal 
 in nature, brought by a state officer in his 
 official character to enforce penalties im- 
 posed by the state law and to be paid into 
 the state treasury, and in which the officer 
 has no personal interest, not even for fees 
 or commissions. Ferguson v. Ross, 38 Fed. 
 161, 3: 322 
 
 323. Courts will look behind the nominal 
 parties on the record to ascertain who are 
 the real parties to the suit, and will deter- 
 mine whether a state is the real party to an 
 action brought by or against its officer, by a 
 consideration of the nature of the case as 
 presented by the whole record. Id. 
 
 324. The Federal courts have jurisdiction 
 of a suit against state railroad commission- 
 ers, brought by a corporation created by an- 
 other state, to restrain the enforcement of 
 a schedule of rates prepared by such com- 
 missioners under a state statute claimed* by 
 the complainant to be unconstitutional. 
 Such a suit is not in effect a suit against the 
 state, and hence is not within the llth 
 Amendment to the Constitution, which pro- 
 hibits the Federal courts from entertaining 
 suits brought against a state by citizens of 
 another state. Chicago & N. W. R. Co. v. 
 Dey, 35 Fed. 866, 1 : 744 
 
 b. Suits against United States. 
 
 See also infra, 345c". 
 
 325. A claim against the United States 
 for damages to rice fields by the con- 
 struction of a dam in making harbor im- 
 provements is one sounding in tort, and is 
 not within the jurisdiction of the circuit 
 court. Mills v. United States, 46 Fed. 738, 
 
 12: 673 
 
 326. The jurisdiction of the court of 
 claims to find the facts, make conclusions 
 of law, and give opinions in matters referred 
 to it by heads of the executive departments,
 
 COURTS, III. c, d. 
 
 865 
 
 without entering judgments, is not restrict- 
 ed by U. S. Rev. Stat. 10f>6. U. b. Comp. 
 Stat. 1901, p. 739, forbidding jurisdiction 
 of claims dependent on a treaty. Thing- 
 valla Line v. United States, 24 Ct. Cl. 255, 
 
 5: 135 
 
 327. The act of Congress of March 3, 1887, 
 24 Stat. at L. 552, chap. 373, conferring ju- 
 risdiction of all suits at common law or in 
 equity where the United States is plaintiff 
 or petitioner, without reference to special 
 subjects of revenue, etc., does not repeal by 
 implication the grant of jurisdiction over the 
 special subjects mentioned in the independ- 
 ent clause of U. S. Rev. Stat. 629, U. S. 
 Comp. Stat. 1901, p. 503. United States v. 
 Shaw, 39 Fed. 433, 3: 232 
 
 c. Federal Questions. ** 
 
 For Editorial Notes, see infra, VI. 13. 
 
 328. The Federal courts are without juris- 
 diction to entertain a suit to determine the 
 respective rights of the parties to any land 
 the title to which remains in the govern- 
 ment of the United States, in regard to 
 which a contest is pending in the Land De- 
 partment of the government. Cosmos Ex- 
 ploration Co. v. Gray Eagle Oil Co. 50 C. C. 
 A. 79, 112 Fed. 4, 61: 230 
 
 :5 - 2!>. A* case for cognizance by a Federal 
 court is constituted bj r the fact that a sin- 
 gle question dependent on the Constitution 
 or a Jaw or treaty of the United States is 
 involved, although at the same time oilier 
 questions depending upon the general prin- 
 ciples of law are also involved. Toledo, A. 
 A. & N. M. R. Co. v. Pennsylvania Co. 54 
 Fed. 74<i, 19: 395 
 
 330. A suit by a receiver of a water com- 
 pany appointed by a Federal court, to re- 
 cover from a city rentals due for hydrants, 
 is one arising under the laws of the United 
 States, within the jurisdiction of the Fed- 
 eral court. Kiehl v. South Bend. 22 C. C. A. 
 618, 44 U. S. App. 687. 76 Fed. 921, 36: 226 
 Matters affecting commerce. 
 
 See also infra. 334. 
 
 For Editorial Notes, see infra. VI. 13. 
 
 331. The United States circuit court has 
 jurisdiction to enforce any rights arising 
 b.ates v. Lancaster, 44 Fed. 885, 10: 317 
 though the same right. 1 ? may have existed 
 at common law. Toledo, A. A. & N. M. R. 
 Co. v. Pennsylvania Co. 54 Fed. 730. Ifl: 387 
 
 332. Circuit courts of the United States 
 may constitutionally be given jurisdiction of 
 suits by the government to enjoin illegal 
 combinations in restraint of interstate com- 
 merce; and it da not depend on diverse 
 citizenship of the parties. United fetates v. 
 Jellico Mountain Coke & C. Co. 46 Fed. 432, 
 
 12: 753 
 
 National Banking act. 
 For Editorial Notes, see infra. VI. 13. 
 
 333. An agent appointed under the pro- 
 visions of the national banking act to take 
 the place of a receiver, under certain cir- 
 cumstances, has the same right as the re- 
 ceiver to sue in a Federal court, without re- 
 gard to citizenship or the amount in con- 
 troversy. McConville v. Gilmour, 36 Fed. 
 277, 1 : 498 
 
 L. R. A. Dig. 55. 
 
 Enforcement of decisions. 
 
 334. The right asserted by a petitioner 
 asking for the enforcement of an order of 
 the Interstate Commerce Commission arises 
 and is claimed under a law of the Uniteu 
 States which relates to a subject over which 
 Congress has exclusive control; and this is 
 sufficient to sustain the jurisdiction of the 
 circuit court, independent of the citizenship 
 of the parties to the controversy, since it 
 involves a Federal question. Kentucky & I. 
 Bridge Co. v. Louisville & M. R. Co. 37 Fed. 
 567, 2: 289 
 
 335. The right of one having an interest 
 in the enforcement of a decree of a United 
 States circuit court granting an injunction, 
 to institute proceedings in such court for 
 the punishment of one violating the injunc- 
 tion, is a right arising under the Constitu- 
 tion and laws of the United States. United 
 States v. Lancaster, 44 Fed. 885, 10: 317 
 
 336. The right of a citizen of one state to 
 institute proceedings in a United States cir- 
 cuit court situated in another state to pun- 
 ish for contempt citizens of the latter state 
 who have disobeyed a decree of such court, 
 in the enforcement of which the petitioner 
 has an interest, is a right secured by the 
 Constitution and laws of the United States, 
 within the meaning of U. S. Rev. Stat. 
 5508, 5509, U. S. Comp. Stat. 1901, p. 3712, 
 which provide a punishment for conspiring 
 to injure, oppress, threaten, or intimidate 
 a person in the exercise of such rights. Id. 
 
 d. As Dependent on Citizenship. 
 
 As to Federal Districts, see infra, III. i. 
 
 Abatement of Suit for Nonresidence of Par- 
 ties, see Abatement and Revival, 5. 
 
 Waiver of Objection as to Jurisdiction, see 
 Pleading, 51. 
 
 Plea to Jurisdiction, see Pleading, 495. 
 
 Removal of Action on Ground of Citizenship, 
 see Removal of Causes, I. b. 
 
 See also supra. 332; infra, 364; Judgment, 
 149. 
 
 For Editorial Notes, see infra, VI. 13. 
 
 337. Jurisdiction of "controversies" be- 
 tween citizens of different states, given to 
 Federal courts by the Constitution, extends 
 to all "cases" or "suits" between such par- 
 ties, including a habeas corpus case, which 
 involves the right to personal liberty. King 
 v. McLean Asylum of M. G. H. 21 U. S. App. 
 481, 12 C. C. A. 145, 64 Fed. 331, 26: 784 
 
 338. Wherever the citizens of a state may 
 secure a trial of their controversies by its 
 courts of general jurisdiction either by origi- 
 nal process, or by appeal, or by other pro- 
 ceedings, the citizens of different states may 
 obtain the trial of like controversies between 
 them by some appropriate action in the 
 Federal courts. Re Barber Asphalt Pav. Co. 
 132 Fed. 945. 67: 761 
 
 339. Jurisdiction of a habeas corpus case 
 on the ground of citizenship may exist in a 
 Federal court under U. S. Rev. Stat. 751, 
 752, U. S. Comp. Stat. 1901, p. 592, where the 
 strict issue between citizens of different 
 states is whether or not the petitioner is en- 
 titled to his liberty from restraint as an
 
 866 
 
 COURTS, III. e. 
 
 insane person anywhere. King v. McLean 
 Asylum of M. G. H. 64 Fed. 331, 21 U. S. 
 App. 481, 12 C. C. A. 145, 26: 784 
 
 340. A transitory action for a personal 
 tort, accruing in Mexico, is within the juris- 
 diction of a circuit court of the United 
 States, where one party is a citizen and resi- 
 dent of Texas and the other a citizen of 
 Massachusetts. Evey v. Mexican C. R. Co. 
 26 C. C. A. 407, 52 U. S. App. 118, 81 Fed. 
 294, 38: 387 
 
 341. Jurisdiction is not conferred on a 
 Federal court by majdng a necessary party, 
 whose interests are all in common with 
 those of the complainants, a nominal defend- 
 ant, in order that all the complainants may 
 be nonresidents of the state in which the 
 suit is brought and of which the defendants 
 are citizens. Rich v. Bray, 37 Fed. 273, 
 
 2: 225 
 
 342. To give jurisdiction to a Federal cir- 
 cuit court, where two or more parties, whose 
 interests are so separate that any number of 
 them may proceed with the litigation with- 
 out the others, join, as a matter of conven- 
 ience to prevent multiplicity of suits, in one 
 action for the ascertainment and distribution 
 of their respective interests in a common 
 fund, the interests of each, independent of 
 the others, must amount to $2,000. Id. 
 
 343. A limited partnership, under the laws 
 of Pennsylvania, although entitled to sue as 
 an individual, is not entitled to maintain a 
 suit as "a citizen," in a Federal court, 
 against citizens of other states. Imperial 
 Ref. Co. v. Wyman, 38 Fed. 574, 3: 503 
 
 344. The jurisdiction of a United States 
 circuit court of an action on coupons payable 
 to bearer, when the parties are citizens of 
 different states, is not defeated by the fact 
 that with the cause of action on the coupons 
 plaintiff has joined in the same count a 
 claim upon municipal bonds to which the 
 coupons were attached, although under the 
 act of Congress of August 13, 1888 (25 Stat. 
 at L. 434, chap. 866, U. S. Comp. Stat. 1901, 
 p. 508), the court has no jurisdiction of the 
 action on the bonds because they are not 
 made payable to bearer, but to a payee of 
 the same state as the maker. Independent 
 School Dist. v. Rew, 49 C. C. A. 198, 111 
 Fed. 1, 55: 364 
 Citizenship at commencement of action. 
 For Editorial Notes, see infra, VI. 13. 
 
 344a. Citizenship, to give jurisdiction to a 
 Federal court, must have existed at the com- 
 mencement of the action. Seddon v. Virgin- 
 ia, T. & C. Steel & I. Co. 36 Fed. 6, 1 : 108 
 Citizenship in District of Columbia. 
 For Editorial Notes, see infra, VI. 13. 
 
 344b. Federal citizenship in a territory or 
 in the District of Columbia will not suffice 
 to give jurisdiction to a Federal court on the 
 ground of citizenship. Seddon v. Virginia, 
 T. & C. Steel & I. Co. 36 Fed. 6, 1 : 108 
 
 Citizenship of married woman. 
 
 344c. A married woman unlawfully de- 
 serted by her husband may, without the ne- 
 cessity of a decree of court, establish an in- 
 dependent domicil, if permitted by the law 
 of the state where she takes up her resi- 
 dence, which will control in determining 
 
 whether there is a diversity of citizenship 
 sufficient to give the Federal courts jurisdic- 
 tion of an action brought by her to recover 
 damages for personal injuries. Watertown 
 v. Greaves, 50 C. C. A. 172, 112 Fed. 183, 
 
 5t>: 865 
 
 344d. The circuit courts of the United 
 States have jurisdiction to cancel a written 
 contract of marriage on the ground of its 
 forgery, where the contract assumes imme- 
 diately to create the marriage relation, im- 
 posing upon the husband all the obligations 
 which the law creates by marriage, if the 
 parties are citizens of different states, and 
 the pecuniary value of the marital obliga- 
 tions and rights is of the amount required to 
 give jurisdiction. Sharon v. Terry, 13 Sawy. 
 387, 36 Fed. 337, 1: 572 
 
 Citizenship of corporation. 
 Removal of Action, see Removal of Causes, 
 
 II. ; 16, 22. 
 
 See also Corporations, 823, 825. 
 For Editorial Notes, see infra, VI. 13. 
 
 344e. A Federal court has no jurisdiction 
 of an action by a citizen of the state against 
 a consolidated railway company organized 
 under the statutes of that and adjoining 
 states, for personal injuries inflicted within 
 the state, as such corporation is a domestic 
 corporation for jurisdictional purposes. Mis- 
 souri P. R. Co. v. Meeh, 69 Fed*. 753, 32 
 U. S. App. 691, 16 C. C. A. 510, 30: 250 
 Assignees as parties. 
 For Editorial Notes, see infra, VI. 13. 
 
 345. An action for damages for the breach 
 of a written contract of lease is an action 
 "founded upon contract," in the sense of 
 that language as used in the restriction con- 
 tained in the act of Congress of March 3, 
 1875, 1 ; and a circuit court of the United 
 States cannot take cognizance of such a suit 
 in favor of an assignee unless the same 
 might have been prosecuted by the assignor 
 if no assignment had been made. Republic 
 Iron Min. Co. v. Jones, 37 Fed. 721, 2: 746 
 
 345a. Where the maker and payee of a 
 note are both citizens of the same state, it 
 may be proved in a suit by the indorsee, in 
 order to give jurisdiction to a Federal court, 
 that the note was made for the accommoda- 
 tion of the nominal payee, who was the real 
 maker, and that the indorsee was in fact the 
 real payee, and that there never had been 
 any assignment of the note. Goldsmith v. 
 Holmes, 13 Sawy. 526, 36 Fed. 484, 1: 816 
 
 345b. The test of the negotiability of a 
 note, in order to determine the right of an 
 assignee to sue thereon in the circuit court 
 of the United States, under the act of Con- 
 gress of 1875, is its negotiability according 
 to the principles of the law merchant, and is 
 not affected by state statutes. Windsor 
 Sav. Bank v. McMahon, 38 Fed. 283, 3: 192 
 
 e. As Dependent on Amount. 
 
 Removal of Case as Dependent on, see Re- 
 moval of Causes, 28. 
 See also supra. 327, 342, 344d. 
 For Editorial Notes, see infra, VI. 13. 
 
 345c. The limitation as to the amount in 
 a controversy necessary to give the circuit
 
 COURTS, III. f. 
 
 887 
 
 court jurisdiction, fixed by the act of Con- 
 gress of March 3, 1887, 1 (24 Stat. at L. 
 552, chap. 373), does not apply to suits in 
 which the United States is a plaintiff or pe- 
 titioner. United States v. Shaw, 39 Fed. 433, 
 
 3: 232 
 
 345d. The amount of the annual license 
 tax is not the amount in controversy in a 
 suit to restrain the enforcement of the tax, 
 so as to defeat the jurisdiction of a Federal 
 court, where complainant asks to be relieved 
 from threatened penalties, and alleges that, 
 if the injunction is not granted, its business 
 will be entirely destroyed, and it will be 
 damaged in a sum exceeding $2,000, and that 
 goods in excess of that sum will be seized. 
 American Fertilizing (Jo. v. North Carolina 
 Bd. of Agri. 43 Fed. 609, - , 11: 179 
 
 345e. The jurisdiction of a circuit court of 
 the United States, in an action to set aside 
 an award against insurance companies for 
 the loss of insured property, where the in- 
 surance by each company was for more than 
 $2,000, is not defeated by the fact that the 
 award was less than the amount of the total 
 insurance, and that therefore the interest of 
 some of the companies might be less than 
 $2,000 each, where it is not shown that 
 there was any pro rata clause in the policy, 
 as the insured might select certain compan- 
 ies and collect of each the full amount of the 
 policy, in the absence of such a clause. 
 Hartford F. Ins. Co. v. Bonner Mercantile 
 Co. 44 Fed. 151, 11:623 
 
 346. Under U. S. Rev. Stat. 629, cl. 4, U. 
 S. Comp. Stat. 1901, p. 503, which is not re- 
 pealed by the acts of March 3, 1875, 18 Stat. 
 at L. 470, chap. 137, U. S. Comp. Stat. 1901, 
 p. 508, and March 3, 1887, 24 Stat. at L. 
 552, chap. 373, circuit courts have jurisdic- 
 tion in suits arising under the revenue 
 law, although the amount involved is less 
 than $2,000. Ames v. Hager, 13 Sawy. 473, 
 36 Fed. 129, 1 : 377 
 
 347. Whether or not the amount in dis- 
 pute in a suit by a taxpayer to enjoin a 
 city froTii issuing bonds because it is already 
 indebted beyond its limit is sufficient to 
 give jurisdiction to a Federal court is deter- 
 mined by the amount of bonds contemplat- 
 ed. Ottumwa v. City Water Supply Co. 56 
 C. C. A. 219, 119 Fed. 315, 59: 604 
 
 f. In Equity; Following State Practice; Ef- 
 fect of State Laws. 
 
 See also supra, 345b. 
 
 348. The equitable jurisdiction of the Fed- 
 eral courts vested in them under the judi- 
 ciary act of 1789, and, where it has not been 
 subsequently changed by act of Congress, 
 the test of that jurisdiction is the adequacy 
 of the remedy at law for wrongs of the 
 character under consideration in the year 
 1789, when the judiciary act was adopted. 
 National Surety Co. v. State Bank, 56 C. 
 C. A. 657, 120 Fed. 593, 61 : 394 
 
 349. A Federal court of equity has no 
 jurisdiction of a suit to try the title to land 
 of which defendant is in possession. Cos- 
 mos Exploration Co. v. Gray Eagle Oil Co. 
 50 C. C. A. 79, 112 Fed. 4, 61:230 
 
 350. A statute permitting a simple-con- 
 tract creditor to file a bill in equity without 
 reducing his claim to judgment, for the pur- 
 pose of reaching assets to pay the debts of 
 nn insolvent corporation, is not applicable 
 to proceedings in the Federal courts. Mor- 
 row Shoe Mfg. Co. v. New England Shoe Co. 
 18 U. S. App. 256, 616, 6 C. C. A. 508, 8 C. C. 
 A. 652, 57 Fed. 685, 60 Fed. 341, 24: 417 
 Following state practice. 
 
 As to Revival of Action, see Abatement and 
 Revival, 42. 
 
 In Suit to Remove Cloud from Title, see 
 Cloud on Title, 17. 
 
 In Condemnation Proceedings, see Eminent 
 Domain, 162. 
 
 Judicial Notice of State Statutes, see Evi- 
 dence, 21-23. 
 
 See also infra, 362; Pleading, 494. 
 
 For Editorial Notes, see infra, VI., 16. 
 
 351. In a suit by an occupying claimant 
 to restrain the execution of a writ of pos- 
 session, a Federal court may, in its discre- 
 tion, refer the case to a master, or appoint 
 commissioners, instead of directing the mar- 
 shal to summon appraisers in accordance 
 with the state practice, although it is de- 
 sirable to follow state practice as near as 
 may be. Leighton v. Young, 10 U. S. App. 
 298, 3 C. C. A. 176, 52 Fed. 439, 18: 266 
 
 352. That the mode of procedure in a Fed- 
 eral court adopted by an occupying claimant 
 to enforce compensation for improvements 
 placed by him on land which has been ad- 
 judged to the true owner does not conform 
 strictly to the requirements of the state 
 occupying claimants' law will not defeat 
 the action, if in the state statute legal and 
 equitable rights and modes of proceeding are 
 confounded, since the Federal courts will en- 
 force the right but will preserve the dis- 
 tinction between law and equity. Id. 
 
 353. A rule of evidence under a state 
 statute as to privileged communications 
 must be regarded in the circuit court sit- 
 ting in that state, under U. S. Rev. Stat. 
 858, U. S. Comp. Stat. 1901, p. 659, 
 making the laws of the state the rules 
 of decision as to competency of witnesses, 
 except as affected by the color or interest of 
 the witness, or in actions against executors 
 and administrators or guardians. Mutual 
 Ben. L. Ins. Co. v. Robison, 19 U. S. App. 266, 
 7 C. C. A. 444, 58 Fed. 723, 22: 325 
 Effect of state laws to restrict or enlarge. 
 Enforcing State Law in Admiralty Court, 
 
 see Admiralty, 7. 
 See also Damages, 449; Conflict of Laws, 
 
 214; Lis Pendens. 7. 
 For Editorial Notes, see infra, VI. 16. 
 
 354. The states did not grant, and they 
 cannot by their legislation revoke, impair or 
 destroy, the equitable jurisdiction of the na- 
 tional courts. National Surety Co. v. State 
 Bank, 56 C. C. A. 657, 120 Fed. 593, 61 : 394 
 
 355. While state legislation may not im- 
 pair or destroy, it may enlarge, the rights 
 and remedies in equity in the national 
 courts. Id. 
 
 356. The jurisdiction of the Federal courts 
 may not be limited or impaired by state 
 legislation which confers exclusive jurisdic-
 
 868 
 
 COURTS, in. g, h. 
 
 tiou of litigation upon state courts or pre- 
 scribes exclusive methods of invoking that 
 jurisdiction. Re Barber Asphalt Pav. Co. 132 
 Fed. !)45, 67: 761 
 
 357. The equitable jurisdiction of Federal 
 courts, under the judiciary act of 1789, can- 
 not be taken away by state statutes giving 
 a right to equitable remedies in courts of 
 law. Hartford F. Ins. Co. v. Bonner Mer- 
 cantile Co. 44 Fed. 151, 11: 623 
 
 358. The remedy at law which will defeat 
 the equitable jurisdiction of the Federal 
 court may be a remedy at common law, and 
 not merely a legal remedy given by a state 
 statute. Grand Rapids & I. R. Co. v. Spar- 
 row, 36 Fed. 210, 1: 480 
 
 359. The courts of the United States sit- 
 ting in equity may administer, in suits of 
 which they have jurisdiction, equitable 
 rights peculiar to the laws of the state 
 where the courts are held. Fechheimer v. 
 Baum, 37 Fed. 167, 2e 153 
 
 360. A state statute authorizing an origi- 
 nal suit in the court in which an unconscion- 
 able judgment that the defendant was pre- 
 vented by unavoidable casualty from defend- 
 ing against was rendered, to enjoin its collec- 
 tion and to annul it. provides a cumulative 
 remedy, and does not impair the original 
 equitable jurisdiction of the circuit courts of 
 the United States to grant appropriate re- 
 lief for a like cause in cases in which the 
 citizenship of the parties and the amounts 
 in controversy give those courts jurisdiction. 
 National Surety Co. v. State Bank. 56 C. C. 
 A. 657, 120 Fed. 593, 61 : 394 
 
 361. An equitable defense, under a state 
 Code, to an action at law upon an award, 
 based on misconduct of the arbitrators which 
 did not go to their jurisdiction to hear the 
 dispute and which does not appear on the 
 face of the award, is not a valid defense 
 in an action at law in a circuit court of the 
 United States, and therefore does not defeat 
 the equitable jurisdiction of the latter court 
 to set aside the award. Hartford F. Ins. 
 Co. v. Bonner Mercantile Co. 44 Fed. 151, 
 
 11: 623 
 
 362. A circuit court of the United States 
 has no jurisdiction in an action at law upon 
 a note to enforce a specific lien upon prop- 
 erty conveyed to secure it, according to a 
 remedy and practice given by state law, 
 without foreclosure proceedings. American 
 Freehold Land & Mortg. Co. v. Thomas. 47 
 Fed. 550, 12: 681 
 
 363. The equity jurisdiction of the Federal 
 courts may extend to a suit for the disclos- 
 ure and distribution of assets held by an 
 executor de son tort, although such suit 
 could not be maintained in the state courts 
 for the reason that the probate system of 
 the state affords a complete remedy. Rich 
 v. Bray. 37 Fed. 273, 2: 225 
 
 364. The extension by a state of equity 
 jurisdiction to suits to set aside probated 
 wills will permit the maintenance of such 
 suits in Federal courts sitting in such state, 
 which acquire jurisdiction through diverse 
 citizenship of the parties. Williams v. 
 Crabb, 54 C. C. A. 213, 117 Fed. 193, 59: 425 
 
 365. A provision of a state statute giving 
 
 a cause of action for death by negligence, 
 that the action shall be brought in some 
 court established by the Constitution and 
 laws of the state, is not operative to deprive 
 a Federal court of jurisdiction of such ac- 
 tion. Bigelow v. Nickerson. 34 U. S. App. 
 261, 17 C. C. A. 1, 70 Fed. 113, 30: 336 
 
 366. A state law passed since 1789 can- 
 not affect criminal procedure in the Federal 
 courts. A final record was required to be 
 made by the clerk at common law. and the 
 general method of making the record pre- 
 scribed by the common law should be fol- 
 lowed now, subject to such changes as have 
 been wrought by the character of our insti- 
 tutions and the modifications made neces- 
 sary by the enlarged Bill of Rights of the 
 Federal Constitution. Erwin v. United 
 States, 37 Fed. 470, 2: 229 
 
 367. The fact that the local statute pro- 
 vides that a creditor of an insolvent trader, 
 or firm of traders, whose debt is mature, un- 
 paid, demanded, and payment refused, may 
 ask for :>. receiver, creates an exception to 
 the rule making the existence of a lien a 
 prerequisite to such an application in a court 
 of the United States. Fechheimer v. Baum, 
 37 Fed. 167. 2:153 
 
 368. A receiver of a Federal court in 
 charge of a railroad company, who, by act 
 of Congress March 3, 1887. chap. 373," cor- 
 rected by act August 13. 1888, chap. 866, is 
 required to manage and operate the property 
 according to the requirements of the valid 
 laws of the state in which it is situated, in 
 the same manner as the owner or possessor 
 thereof would be bound to do if in posses- 
 sion, is subject to any rule prescribed by 
 the state imposing on railroad corporations 
 a liability for the negligence of employees 
 having superior authority over other em- 
 ployees. Peirce v. Van Dusen, 24 C. C. A. 
 280, 47 U. S. App. 339, 78 Fed. 693, 69: 705 
 
 g. Ancillary Jurisdiction. 
 For Editorial Notes, see infra, VI. 13, 
 
 369. A proceeding by receivers of a corpo- 
 ration to enforce the liability of a stockhold- 
 er is ancillary to the receivership suit, and 
 the jurisdiction thereof depends upon the 
 jurisdiction in the original case. Peck v. 
 Elliott, 24 C. C. A. 425, 47 U. S. App. 605, 
 79 Fed. 10, 38: 616 
 
 370. The legal character of the liability 
 of a stockholder does not prevent its en- 
 forcement by receivers in a proceeding which 
 is wholly ancillary to the original receiver- 
 ship suit in equity. Id. 
 
 371. A Federal court has jurisdiction of a 
 suit in equity to reform a policy of insur- 
 ance, if it has jurisdiction of the action at 
 law between the same parties upon the poli- 
 cy, already commenced, to which the equity 
 suit is merely auxiliary. Rosenbaum Bros, 
 v. Council Bluffs Ins. Co. 37 Fed. 724, 
 
 3: 189 
 h. Crimes. 
 
 Territorial Limits as to, see supra, I. b, 2. 
 Conflict of Authority as to, see infra, IV. 
 
 d, 2. 
 See also supra, 366.
 
 COURTS, III. i, IV. a. 
 
 372. It is not within the power of the 
 United States to punish for a conspiracy to 
 murder within a state, unless the murder 
 was in violation of a United States statute. 
 United States v. Lancaster, 44 Fed. 896, 
 
 10: 333 
 i. Districts. 
 
 Waiver of Objection as to. see Appeal and 
 Error, 671. 
 
 373. A United States circuit court sitting 
 in one of several states by the concurrent 
 action of which a railroad company was in- 
 corporated has jurisdiction of a suit brought 
 against the company by a citizen of another 
 of said states. Boston & M. R. v. Kurd, 
 47 C. (J. A. (515, 108 Fed. 116, 50: 193 
 
 374. Under the act of Congress *of March 
 3, 1887, a civil action in a. Federal court for 
 violations of the Interstate Commerce Act 
 can be brought only in the district whereof 
 defendant is an "inhabitant," as jurisdic- 
 tion is not dependent on citizenship. Connor 
 v. Vicksburg & M. R. Co. 36 Fed. 273, 
 
 1: 331 
 
 375. Where jurisdiction of a circuit court 
 of the United States is based on the fact 
 that the parties on one side are citizens of 
 a different state from any of those on the 
 other, a suit to on force a lien or trust may 
 be brought in the district where the property 
 is situated and where some of the defend- 
 ants claiming an equitable lien thereon re- 
 side, although neither the plaintiffs nor 
 the defendant who owns the property reside 
 in that district. Langdon v. Central R. & 
 Bkg. Co. 37 Fed. 449. 2: 120 
 
 376. A Federal court cannot, by attach- 
 ment of property within the district where 
 suit is brought, acquire jurisdiction to ren- 
 der judgment against such property, where 
 the owner is not a resident of the district, 
 and is not legally found and served therein 
 so as to authorize a personal judgment. 
 This rule is not changed by the act of Con- 
 gress of March 3. 1887. Harland v. United 
 Lines Teleg. Co. 40 Fed. 308, 6: 252 
 
 377. A circuit court of the United States 
 in Louisiana has no jurisdiction over prop- 
 erty in Texas such as confers upon it power 
 to appoint a ro.reiver of a railroad in Texas 
 which is the property of a corporation cre- 
 ated by Congress. Texas & P. R. Co. v. 
 Gay, 86 Tex. 571, 26 S. W. 599, 25: 52 
 Foreign corporations. 
 
 378. A foreign corporation becomes "an 
 inhabitant" of a district in which it is sued, 
 within the meaning of the judiciary act of 
 1888. 1, by engaging in business there ac- 
 cording to the laws of the state. Gilbert 
 v. New Zealand Ins. Co. 49 Fed. 884, 
 
 15: 125 
 
 379. A foreign corporation waives any ob- 
 jection to being sued within a certain dis- 
 trict in which it carries on business, by ap- 
 pointing an attorney with power to receive 
 service of process in any suit against it. Id. 
 
 380. The fact that a railroad company 
 keeps an office and agent in a Federal judi- 
 cial district outside of the state which char- 
 tered it. and in which are its road and chief 
 office, will not make it an inhabitant of 
 
 such district, so as to give the Federal courts 
 therein jurisdiction of actions against it, 
 in which jurisdiction is not founded only on 
 the fact of diverse citizenship. Connor v. 
 Vicksburg & M. R. Co. 36 Fed. 273, 1: 331 
 381. A suit for the appointment of a re- 
 ceiver of a railroad which extends into two 
 Federal jurisdictions within the same state; 
 if the required diversity of citizenship exists, 
 may be brought in either district, whether 
 the principal office of the railroad company 
 is in that district or not. East Tennessee, 
 V. & G. R. Co. v. Atlanta & F. R. Co. 49 
 Fed. 608. 15: 109 
 
 IV. Conflict of Authority; Relation of State 
 to Federal. 
 
 a. Exclusiveness of Jurisdiction First Ac- 
 quired. 
 
 Offenses against Both State and Municipal 
 Governments, see Criminal Law, 179- 
 184. 
 
 Stay of Later Action, see Dismissal or Dis- 
 continuance, 8. 
 
 For Editorial Notes, see infra, VI. 1, 14, 
 15. 
 
 382. The court which first acquires juris- 
 diction of specific property by the issue and 
 service of process in a suit to enforce a lien 
 upon it, in which it may be necessary to 
 take possession or control of it, retains ju- 
 risdiction until the end, free from the inter- 
 ference of any court of co-ordinate jurisdic- 
 tion. Williams v. Neely, 67 C. C. A. 171, 134 
 Fed. 1, 69: 232 
 
 383. Where different courts may enter- 
 tain jurisdiction of the same subject, the 
 court which first obtains jurisdiction will, 
 with some well-recognized exceptions, re- 
 tain it to the end of the controversy, either 
 to the entire exclusion of the other, or to the 
 exclusion so far as to render the latter'^ de- 
 cision subordinate to that of the court first 
 obtaining jurisdiction; and it is immaterial 
 which court renders the first judgment or de- 
 cree. Sharon v. Terry, 36 Fed. 337. 1 : 572 
 
 384. The exceptions to the rule that prior- 
 ity of jurisdiction controls priority of deci- 
 sion are, first, where the same plaintiff has 
 asked, in different suits, a determination of 
 the same matter; and, second, where the 
 cases are upon contracts or obligations which 
 from their nature are merged in the judg- 
 ment rendered, the subject upon which the 
 first suit is founded having thus ceased to 
 exist. Id. 
 
 385. The arrest at their own instigation, 
 for the purpose of preventing a trial else- 
 where, of persons accused of crime, by a 
 magistrate of the county where the commis- 
 sion of the crime is commenced, and binding 
 them over to await the action of tho grand 
 jury, will not prevent proceedings against 
 thorn in the county whore the crime is con- 
 summated, under a statute providing that, 
 if the jurisdiction of any offense be in two 
 counties, the accused shall be tried in the 
 county in which he is first arrested. Hargis 
 v. Parker, 27 Ky. L. Rep. 441. 85 S. W. 704, 
 
 69: 270
 
 870 
 
 COURTS, IV. b. 
 
 As between state and Federal courts. 
 Pendency of Action in One Court as Ground 
 for Abating Action in Other, see Abate- 
 ment and Revival, 38, 39. 
 See also infra, 397-405, 421-425. 
 For Editorial Notes, see infra, VI. 14. 
 386. A state court which has obtained ju- 
 risdiction of a suit against a corporation can- 
 not be ousted thereof by the subsequent ap- 
 pointment of a receiver for the corporation 
 by a Federal court and the removal of the 
 cause, based on the fact of such appoint- 
 ment, when the case was not otherwise re- 
 movable. Pendleton v. Lutz, 78 Miss. 322, 
 29 So. 164, 51: 649 
 
 387. Where the jurisdiction of the circuit 
 court of the United States has attached in 
 a suit brought by a citizen of a state other 
 than that in which the court is held, the 
 right of the plaintiff to prosecute his suit in 
 such court to a final determination there 
 cannot be arrested, defeated, or impaired by 
 any subsequent action or proceeding of the 
 defendant respecting the same subject-mat- 
 ter in a state court. Sharon v. Terry, 36 
 Fed. 337, 1: 572 
 
 388. An amicable proceeding in a state 
 court to which creditors of a railroad are 
 parties, with no immediate purpose to ask 
 for a receiver, and in which no rule nisi to 
 show cause why a receiver should not be ap- 
 pointed has been issued, will not prevent a 
 Federal court from taking jurisdiction for 
 the appointment of a receiver. East Tennes- 
 see. V. & G. R. Co. v. Atlanta, & F. R. Co. 
 49 Fed. 608, 15:109 
 
 389. The filing, by order of a Federal 
 court, of a bill for a receiver, is sufficient to 
 give priority of jurisdiction over the prop- 
 erty as against a subsequent garnishment 
 under process of a state court, although this 
 was issued before service upon the defendant 
 in a suit for a receiver, if a receiver was ap- 
 pointed in due time. Riesner v. Gulf, C. & 
 S. F. R. Co. 89 Tex. 656, 36 S. W. 53, 
 
 33: 171 
 
 390. The appointment of a receiver by a 
 Federal court after a judgment in a state 
 court establishing a mechanic's lien against 
 specific property and directing a sale of it 
 to satisfy the demand will not defeat the 
 right of the lien claimants to have the 
 property sold on execution under the judg- 
 ment. Rogers & B. Hardware Co. v. Cleve- 
 land Bldg. Co. 132 Mo. 442, 34 S. W. 57, 
 
 31 : 335 
 
 391. An action against receivers of a rail- 
 road company appointed by a Federal court, 
 for injuries caused by the company's negli- 
 gence before their appointment, cannot be 
 maintained in a state court without permis- 
 sion of the court which appointed them. 
 Smith v. St. Louis & S. F. R. Co. 151 Mo. 
 391, 52 S. W. 378, 48: 368 
 
 392. Where a controversy concerning the 
 title to government land is still pending in 
 and undetermined by the Land Department 
 of the United States, the courts of a state 
 will not interfere. Frink v. Thomas. 20 Or. 
 265, 25 Pac. 717, 12:239 
 
 b. Interference with Other Courts; Injunc- 
 tions. 
 
 On Habeas Corpus, see Habeas Corpus, II. 
 For Editorial Notes, see infra, VI. 14. 
 
 393. The Federal courts sitting as courts 
 of equity have the same power to prevent 
 the enforcement of unjust judgments at law 
 procured by accident or mistake that they 
 have to prevent the collection of those ob- 
 tained by fraud. National Surety Co. v. 
 State Bank, 56 C. C. A. 657, 120 Fed. 593, 
 
 61: 394 
 
 394. A subsequent suit involving rights in 
 the same property, in a court of co-ordinate 
 jurisdiction, should not be dismissed, but, 
 before a seizure of the property under it, 
 should be stayed until the proceedings in 
 the earlier suit are terminated, or ample 
 time for their termination has elapsed. Wil- 
 liams v. Neely, 67 C. C. A. 171, 134 Fed. 1, 
 
 69: 232 
 
 395. A Federal court of equity may issue 
 an injunction to preserve in statu quo real 
 property, a controversy with respect to the 
 title to which is pending in the Land De- 
 partment. Cosmos Exploration Co. v. Gray 
 Eagle Oil Co. 50 C. C. A. 79, 112 Fed. 4, 
 
 61: 230 
 
 396. A defendant manufacturer of alleged 
 infringing articles is not entitled to an order 
 enjoining the prosecution of suits previously 
 begun because such suits were first begun, 
 and because comity demanded that applica- 
 tion should be made to the court in which 
 such suits were pending. Kelley v. Ypsilanti 
 Dress- Stay Mfg. Co. 44 Fed. 19, 10: 686 
 As between state and Federal courts. 
 
 See also supra, 386-392; infra, 421-425, 429; 
 
 Judgment, 111. 
 For Editorial Notes, see infra, VT. 14. 
 
 397. U. S. Rev. Stat. 720, U. S. Coinp. 
 Stat. 1901,. p. 581, prohibiting injunctions by 
 any court of the United States to stay pro- 
 ceedings in a state court, does not apply 
 where the Federal court has first obtained 
 jurisdiction of the subject-matter of the pro- 
 ceedings and of the parties in the state 
 court. This section must be construed in 
 connection with U. S. Rev. Stat. 716, U. 
 S. Comp. Stat. 1901, p. 580, which provides 
 that the Federal courts shall have power to 
 issue all writs which may be necessary for 
 the exercise of their respective jurisdictions, 
 and agreeable to the usages and principles 
 of law. Sharon v. Tern-, 36 Fed. 337. 
 
 1: 572 
 
 398. A receiver, although illegally ap- 
 pointed by a state court in excess of its 
 jurisdiction to aid the nforcement of its 
 own judgment, cannot be enjoined from act- 
 
 ng by a United States circuit court, being 
 protected by U. S. Rev. Stat. 720, U. S. 
 n omp. Stat. 1901, p. 581, which provides that 
 ;he writ of injunction shall not be granted 
 >y any court of the United States to stay 
 proceedings in any court of a state, except 
 n cases where such injunction may be au- 
 thorized by any law relating to proceedings 
 n bankruptcy. Phelps v. Mutual Reserve 
 ^und L. Asso'. 50 C. C. A. 339, 112 Fed. 453. 
 
 61: 717
 
 COURTS, IV. b. 
 
 871 
 
 399. An injunction by a Federal court to 
 restrain plaintiff in an unconscionable judg- 
 ment of a state court from using it to extort 
 money from a defendant who ought not in 
 equity and good conscience to pay it, is not 
 a violation of U. S. Rev. Stat. 720, U. S. 
 Comp. Stat. 1901, p. 581, prohibiting Federal 
 courts from staying proceedings of a state 
 court or of its officers, since such an in- 
 junction acts on the person of the judgment 
 plaintiff, and not upon" the state court or its 
 officers. National Surety Co. v. State Bank, 
 56 C. C. A. 657, 120 Fed. 593, 61: 394 
 
 400. The national courts, sitting in equity, 
 have the same jurisdiction and power to re- 
 strain judgment plaintiffs in unconscionable 
 judgments of the state courts from using 
 them to extort money from defendants who 
 ought not to pay them, that they have to 
 enjoin such plaintiffs in like judgments of 
 the Federal courts. Id. 
 
 401. A Federal circuit court, sitting in 
 equity, has jurisdiction to enjoin the en- 
 forcement of an unconscionable judgment of 
 a state or of a national court for new causes, 
 such as fraud, accident, or mistake, which 
 prevented the judgment defendant from 
 availfng himself of a meritorious defense 
 that was not fairly presented to the court 
 that rendered the judgment. But it has no 
 power to take such action on account of er- 
 rors or irregularities in the proceedings on 
 which the judgment or decree is founded, 
 or on account of erroneous or illegal deci- 
 sions by the court which rendered the judg- 
 ment or decree. Id. 
 
 402. The existence of a remedy at law in 
 the state courts to prevent the enforcement 
 of an unconscionable judgment of a state 
 court does not deprive a Federal court hav- 
 ing jurisdiction of the parties by reason of 
 diverse citizenship from enjoining the col- 
 lection of such judgment, where there is no 
 adequate remedy at law in the Federal 
 courts. Id. 
 
 403. The decree of a circuit court of the 
 United States canceling a forged marriage 
 contract may be used to stay the enforce- 
 ment of judgments for property rights re- 
 covered upon such contract in a subsequent 
 suit in a state court. Sharon v. Terry, 36 
 Fed. 337, 1 : 572 
 
 404. A state court of equity may enter- 
 tain a bill to set aside a judgment obtained 
 by fraud in a Federal court. Wonderly v. 
 Lafayette County, 150 Mo. 635, 51 S. W. 745, 
 
 45: 386 
 
 405. A suit in a circuit court of the Unit- 
 ed States to foreclose a mortgage, and an 
 unexecuted decree of foreclosure and sale, 
 in which case the issue of certificates had 
 been authorized, do not prevent a state 
 court from taking jurisdiction of a suit by 
 creditors of the mortgagor who are not par- 
 ties to the suit in the Federal court, but who 
 alleged in their bill that the mortgage and 
 bonds secured thereby are fraudulent and 
 void as well as the issue of certificates and 
 the decree of foreclosure, although it may 
 be that the relief sought cannot all be grant- 
 ed. Gay v. Brierfield Coal & I. Co. 94 Ala. 
 303, 11 So. 353, 16: 5C4 
 
 Courts of different states. 
 See also Contempt, 9. 
 
 406. A court of one state cannot restrain 
 a citizen of that state from the prosecution 
 of a suit in another state, where the land is 
 situated, for the foreclosure of a mortgage 
 thereon, on the ground that the decision of 
 that court may be different from its own, or 
 from the decision of the United States Su- 
 preme Court. Carson v. Dunham, 149 Mass. 
 52, 20 N. E. 312, 3: 203 
 
 407. A citizen may be restrained from pro- 
 ceeding in another state by garnishment to 
 seize the wages of a fellow citizen, in eva- 
 sion of the laws of their own state, by which 
 such wages are exempt. Moton v. Hull, 77 
 Tex. 80, 13 S. W. 849, 8: 722 
 
 408. The fact that one defendant resides 
 in the state in which actions against part- 
 ners is brought will not prevent an injunc- 
 tion against it in another state where the 
 other partner and plaintiffs reside, if the 
 plaintiffs went out of their own jurisdiction 
 to evade its laws and a judgment for them 
 would prejudice the rights of the later part- 
 ner. Miller v. Gittings, 85 Md. 601, 37 Atl. 
 372, 37: 654 
 
 409. The right to an injunction to restrain 
 the prosecution of several actions on a con- 
 tract for the recovery of different instal- 
 ments, commenced in the court of another 
 state for the purpose of avoiding a statute 
 of the state of the residence of the parties, 
 affecting the validity of the contract, is not 
 defeated by the fact that complainant has 
 other legal defenses available in the foreign 
 jurisdiction. Sandage v. Studebaker Bros. 
 Mfg. Co. 142 Ind. 148, 41 N. E. 380, 34: 363 
 
 410. An injunction against the prosecution 
 of actions in another state will be granted 
 when the plaintiffs have gone out of their 
 own state to sue a fellow citizen, for the 
 purpose of evading the laws of their state, 
 and their actions are oppressive and unrea- 
 sonable, tending to embarrass and defeat 
 justice. Miller v. Gittings, 85 Md. 601, 37 
 Atl. 372, 37: 654 
 
 411. A party to a contract is entitled to an 
 injunction restraining the prosecution of 
 several actions for the recovery of different 
 instalments thereunder, commenced by the 
 assignee of the other party in the court ot a 
 foreign state for the purpose of avoiding a 
 statute of the state in which the contract 
 was made and to be performed, and in which 
 both tne parties and such assignee reside. 
 Sandage v. Studebaker Bros. Mfg. Co. 142 
 Ind. 148, 41 N. E. 380, 34: 363 
 
 412. An injunction to restrain a husband 
 from prosecuting a suit for divorce in an- 
 other state, the jurisdiction of which he has 
 invoked on a false and fraudulent allegation 
 of his residence in that state, may be issued, 
 at the suit of the wife, by a court of the 
 state in which the parties were married and 
 in which the wife is domiciled. Kempson v. 
 Kempson (N. J. Err. & App.) 63 N. J. Eq. 
 783, 52 Atl. 360, 58: 484 
 Different courts of same state. 
 
 413. Land and movables claimed as home- 
 stead having been seized in a justice-of-the- 
 peace court, and an injunction sued out in
 
 872 
 
 COURTS, IV. c. d, 1. 
 
 the district court, the movables may be In- 
 cluded in the injunction, notwithstanding 
 that the justice-of-the-peace court would 
 have jurisdiction as to them. Speyrer v. 
 Miller, 108 La. 204, 32 So. 524, 61: 781 
 
 414. An injunction against carrying out 
 an order of court cannot be granted by an- 
 other court of similar jurisdiction, but can 
 be granted, if at all. only by the court which 
 made the order. Vigo County Comrs. v. 
 Stout, 136 Ind. 53, 35 N. E. 683, 22: 398 
 
 415. The fact that the application for a 
 writ of habeas corpus may show that the 
 person held in custody is detained under a 
 void sentence of the superior court would 
 not prevent the judge of a city court having 
 power to grant the writ from taking juris- 
 diction of the proceeding. Simmons v. Geor- 
 gia Iron & Coal Co. 117 Ga. 305, 43 S. E. 780, 
 
 61: 739 
 
 c. Property in Custody of Courts or Officers. 
 See also supra, 386-392, 397^05. 
 
 416. Property seized and held under mesne 
 or final process of either a state or a United 
 States court is in the custody of the law, 
 and within the exclusive jurisdiction of the 
 court from which the process has issued, for 
 the purposes of the writ; and the possession 
 of the officer having it in custody cannot be 
 disturbed by another court of co-ordinate 
 jurisdiction. Tefft v. Steinberg, 40 Fed. 2, 
 
 5: 221 
 
 417. Leave of the court must be obtained 
 in order to enforce a judgment claimed to 
 be a prior or superior lien upon property 
 which has been taken into the custody and 
 control of the court. Brady v. Johnson, 75 
 Md. 445, 26 Atl. 49, 20: 737 
 
 418. A sheriff's custody of attached prop- 
 erty cannot be disturbed by a court of chan- 
 cery, and the property transferred to the 
 custody of its receiver, in a suit by the at- 
 tachment defendant, unless by consent of 
 all parties. Ford v. Judsonia Mercantile Co. 
 52 Ark. 426, 12 S. W. 876, 6: 714 
 
 419. A sheriff's right to the possession of 
 property under attachment is not lost by the 
 subsequent appointment of a receiver. State 
 ex rel. Hunt v. Chehalis County Super. Ct. 
 8 Wash. 210, 35 Pac. 1087, 25: 354 
 
 420. An assignment for the benefit of cred- 
 itors in North Dakota does not place the 
 property of the assignor in custody of law 
 so as to prevent attachment. Re Enderlin 
 State Bank, 4 N. D. 319, 58 N. W. 514, 
 
 26: 593 
 As between state and Federal courts. 
 
 421. The surplus proceeds of property 
 seized by the sheriff on foreclosure, in a state 
 court, of a chattel mortgage securing a debt 
 much less than the value of the property, 
 are in the custody of the state court; and a 
 Federal court will not, on application of 
 other creditors, interfere with their disposi- 
 tion by an injunction and an appointment of 
 si receiver. Tefft v. Sternberg, 40 Fed. 2, 
 
 5: 221 
 
 422. The foreclosure of a chattel mort- 
 gage, under the Georgia statute, by an exe- 
 cution issued by the clerk of the superior 
 
 court, to which defenses may be raised by 
 an affidavit of illegality, is a "proceeding in 
 a state court," within the rule which pro- 
 hibits interference with such proceedings by 
 the courts of the United States. Id. 
 
 423. The appointment by a state court of 
 a receiver of a corporation on a petition of 
 its dissolution, with due notice to the attor- 
 ney general, brings the property of the cor- 
 poration into the custody and exclusive ju- 
 risdiction of the court from the time of such 
 appointment, which cannot be defeated by 
 seizure under subsequent process of a Fed- 
 eral court in admiralty, although the latter 
 is executed before the receiver has filed his 
 bond or taken actual manual possession of 
 the property. Re Schuyer's Steam Towboat 
 Co. 136 N. Y. 169, 32 N. E. 623, 20: 391 
 
 424. A restraining order by a state court, 
 enjoining officers of a railroad from permit- 
 ming the use of its funds for other than the 
 purposes of the corporation, is in no sense 
 a seizure of the property which will preclude 
 jurisdiction of a Federal court to appoint a 
 receiver. East Tennessee, V. & G. R. Co. v. 
 Atlanta & F. R. Co. 49 Fed. 608, 15: 109 
 
 425. The jurisdiction of the Supreme 
 Court of the United States on a writ of er- 
 ror to a state court, where a stay bond is 
 executed after levy on a judgment, is not 
 interfered with by an action the purpose of 
 which is in effect to vacate the levy. Central 
 Trust Co. v. Moran, 56 Minn. 188, 57 N. W. 
 471, 29: 212 
 
 d. When State or Federal Jurisdiction Ex- 
 clusive; Limitations Upon. 
 
 1. In General. 
 
 Conflict Between Jurisdiction of Consul and 
 of State Court, see Diplomatic and Con- 
 sular Officers. 
 
 As to Usury, Estoppel as to, see Estoppel, 
 258. 
 
 See also Carriers, 1110. 
 
 For Editorial Notes, see infra, VI. 14, 15. 
 
 426. Congress may give the Federal courts 
 exclusive jurisdiction when a right arises un- 
 der a law of the United States. Copp v. 
 Louisville & N. R. Co. 43 La. Ann. 511, 9 
 So. 441, 12: 725 
 
 427. A state cannot, by its legislature, 
 confer a substantial right or remedy in the 
 way of a suit inter partcs, upon its own citi- 
 zens, that will not be available to the citi- 
 zens of the other states; nor can it, by any 
 device, restrict such right ci remedy thus 
 made available, to enforcement in its own 
 courts, the conditions of citizenship being 
 such that they would otherwise be enforce- 
 able in the Federal courts. Williams v. 
 Crabb, 54 C. C. A. 213, 117 Fed. 193. 
 
 59: 425 
 
 428. A bill may be maintained in a Fed- 
 eral court to subject land of a decedent 
 which has passed into the hands of a volun- 
 tary transferee to the payment of the de- 
 cedent's statutory liability as a corporate 
 stockholder, -where there are no other liabil- 
 ities or claims against the estate, and the 
 estate possesses no other property, so that
 
 COURTS, IV. d, 1. 
 
 873 
 
 there would be no interference with the local 
 probate law. Kirtley v. Holmes, 46 C. C. A. 
 102, 107 Fed. 1, 52: 738 
 
 429. That a corporation has acquired its 
 corporate name from the state will not pre- 
 vent a Federal court from enjoining it from 
 using the name at the suit of a corporation 
 of another state, if the statute permitted 
 the corporators to select the name, and it 
 was chosen fraudulently for the purpose of 
 appropriating the good will of the other cor- 
 poration. Peck Bros. & Co. v. Peck Bros Co. 
 51 C. C. A. 251, 113 Fed. 291, 62: 81 
 Matters as to patents. 
 
 For Editorial Notes, see infra, VI. 15. 
 
 430. In an action by one partner, who had 
 paid a judgment rendered against him in 
 an action for the infringement of a patent, 
 for contribution from his copartner, the va- 
 lidity of the patent or its infringement not 
 being involved, the state court has jurisdic- 
 tion. 8mith v. Ayrault, 71 Mich. 475, 39 
 N. W. 724, 1: 311 
 
 431. The title to letters patent does not 
 necessarily involve the validity of infringe- 
 ment of the patent, so as to defeat the ju- 
 risdiction of a state court. Shoemaker v. 
 South Bend Spark Arrester Co. 135 Ind. 471, 
 35 N. E. 280, 22: 332 
 Matters as to public land. 
 
 432. State courts have jurisdiction of an 
 action of trespass quare clausum fregit in 
 respect to land ceded by the state to the 
 United States and leased by the latter to a 
 private person, until Congress has made new 
 regulations touching the administration of 
 justice in civil cases arising therein. Barrett 
 v. Palmer, 135 N. Y. 330, 31 N. E. 1017, 
 
 17: 720 
 
 433. The right of state courts to deter- 
 mine the local law in respect to riparian 
 rights on meandered lakes under patents 
 from the government is more important than 
 the right of Federal courts to construe such 
 patents. Fuller v. Shedd, 161 111. 462. 44 N. 
 E. 286, 33: 146 
 Matters affecting commerce; anti-trust act. 
 
 434. A state court has no jurisdiction of 
 an action for damages against a carrier for 
 violation of the Interstate Commerce Law, 
 as that provides for redress, either by pro- 
 cedure before the Commission or suit before 
 a Federal court. Copp v. Louisville & N. R. 
 Co. 43 La. Ann. 511, !) So. 441, 12: 725 
 
 435. State courts have not lost jurisdic- 
 tion of the subject-matter of actions against 
 carriers in respect to interstate shipments, 
 by reason of the fact that Congress has leg- 
 islated upon the subject. St. Joseph -& G. I. 
 R. Co. v. Palmer, 38 Neb. 463, 56 N. W. 958, 
 
 22: 335 
 
 436. The provisions of the anti-trust act 
 of Congress of July 2, 1890, known as the 
 Sherman act, can be enforced only by the 
 courts and in the manner provided by it, and 
 not by the state courts in the exercise of 
 their equitable jurisdiction. Post v. South- 
 ern R. Co. 103 tenn. 184, 52 S. W. 301, 
 
 55: 481 
 
 437. A city charter which provides for ap- 
 peals from the allowance or rejection of 
 claims against that city to a certain state 
 
 court, and prohibits the payment of such 
 claims while such appeals are there pending, 
 does not restrict the jurisdiction of the Fed- 
 eral courts over claims of citizens of other 
 states, or the power of those courts to en- 
 force their judgments upon such claims; and 
 actions by original process in the Federal 
 courts may be maintained in controversies 
 over such claims without presenting them 
 to the city council. Re Barber Asphalt Pav. 
 Co. 132 Fed. 945, 67: 761 
 
 Admiralty and maritime cases. 
 
 438. No principle of comity requires state 
 courts to refuse to take cognizance of an 
 action on an undertaking to secure a stay 
 of proceedings on appeal in an admiralty 
 case. Braithwaite v. Jordan, 5 N. D. 196, 
 65 N. W. 701, 31: 238 
 
 439. An action on an undertaking to se- 
 cure a stay of proceedings on appeal in an 
 admiralty case is not an integral part of the 
 original case, or a proceeding to enforce the 
 judgment therein, or within the exclusive 
 jurisdiction of admiralty, but is within the 
 jurisdiction of a state court. Id. 
 
 440. A mechanic's lien may be enforced in 
 a state court for work and materials fur- 
 nished in equipping a new vessel, where such 
 lien is given by a state law, where they were 
 furnished at the instance, and request of the 
 master and managing owner of the vessel. 
 Baizley v. The Odorilla, 121 Pa. 231, 15 Atl. 
 521, 1: 505 
 
 441. The limitation of liability of tin- 
 owners of vessels, for maritime losses, by 
 U. S. Rev. Stat. 1878, 4283, I'. S. Comp. 
 Stat. 1901, p. 2943, may be administered in 
 an action at law against them in a stato 
 court to recover for death caused by a col- 
 lision. Loughin v. McCaulley, 186 Pa. 517. 
 40 Atl. 1020, 48: 33 
 Matters as to Indians; Indian reservations; 
 
 Indian Territory. 
 See also supra, 42; infra, 451-455. 
 
 422. It seems that an Indian may resort 
 to state courts for redress of wrongs, under 
 a constitutional provision guaranteeing to 
 every person the right of redress for injuries 
 done to him in his person, property, or repu- 
 tation. Missouri P. R. Co. v. Cullers, 81 
 Tex. 382, 17 S. W. 19, 13: 542 
 
 443. An Indian may lawfully own person- 
 al property and assign a claim for damages 
 for its wrongful destruction, so as to en- 
 title the assignee to maintain a suit therefor 
 in the Texas courts. Id. 
 
 444. An action against an Indian belong- 
 ing to a tribe and a particular reservation, 
 brought on a contract in favor of a white 
 man, is within the jurisdiction of a state 
 court, in the absence of any Federal statute 
 or treaty to the contrary. Stacy v. Labelle, 
 99 Wis. 520, 75 N. W. 60, 41: 419 
 
 445. For conversion of property in the In- 
 dian Territory occupied by the Cherokee Na- 
 tion, the nearest United States court has 
 jurisdiction to the exclusion of that of a 
 state court. Holderman v. Pond. 45 Kan. 
 410, 25 Pac. 872, 1 1 : 542 
 Over toreign consul. 
 
 446. A state court has no jurisdiction in a 
 civil case over the person of a consul general
 
 874 
 
 COURTS, IV. d, 2 V. b. 
 
 of a foreign country for the United States, 
 who resides in the state. Wilcox v. Luco, 
 118 Cal. 639, 45 Pac. 676, 50 Pac. 758, 
 
 45: 579 
 
 2. Criminal Proceedings. 
 
 Offenses against Both Federal and State 
 Governments, see Criminal Law, 177, 
 178. 
 
 447. Neither a state nor any tribunal or 
 officer thereof has any color or right to com- 
 plain of the efforts made by the United 
 States courts to protect suitors therein in 
 their right to prosecute suits and actions 
 before such courts. United States v. Lan- 
 caster, 14 Fed. 885, 10: 317 
 
 448. That a perjury committed in a state 
 court occurs while such court is holding a 
 session, by permission of the state law and 
 of the Federal officials, in a building of 
 which the United States has exclusive juris- 
 diction, does not deprive the state courts of 
 jurisdiction to punish the perjurer. Exum 
 v. State, 90 Tenn. 501, 17 S. \V. 107, 15: 381 
 
 449. The provision as to crimes in U. S. 
 Rev. Stat. 5328, U. S. Comp. Stat. 1901, 
 p. 3622, that nothing in title 70 shall impair 
 the jurisdiction of 'the states, exempts the 
 cases specified in that title, which are also 
 offenses under the laws of the several states, 
 from the operation of U. S. Rev. Stat. 711, 
 U. S. Comp. Stat. 1901, p. 577, which de- 
 clares that jurisdiction by Federal courts in 
 respect to crimes and offenses shall be ex- 
 clusive of- the courts of the states. People 
 v. Welch, 141 N. Y. 266, 36 N. E. 328, 
 
 24: 117 
 
 450. A Federal court has no jurisdiction of 
 a suit to enjoin a state food commissioner 
 from proceeding to enforce a pure-food stat- 
 ute of the state by criminal prosecutions, 
 as he is required to do by the statute, on the 
 ground that he has erroneously construed 
 the statute to include matters not within it. 
 Arbuckle v. Blackburn, 51 C. C. A. 122, 113 
 Fed. 616, 65: 864 
 Of Indians; on Indian reservation. 
 
 See also supra, 442-445. 
 
 451. Crimes committed on an Indian reser- 
 vation by persons other than tribal Indians 
 are within the jurisdiction of state courts, 
 unless otherwise provided by treaty with an 
 Indian tribe or by the act admitting the 
 state into the Union, and except so far as 
 restricted by the authority of Congress to 
 regulate commerce with Indian tribes. 
 State v. Campbell, 53 Minn. 354, 55 N. W. 
 553, 21: 169 
 
 452. Indians while preserving their tribal 
 relations and residing on a reservation set 
 apart for them by the United States are not 
 subject to the criminal laws of a state. Id. 
 
 453. The fact that an Indian belonging to 
 the tribe is not subject to the criminal laws 
 of a state for a crime of adultery committed 
 on the reservation does not exempt a half- 
 breed woman, with whom the offense was 
 committed, who did not sustain any tribal 
 relation. Id. 
 
 454. The half-breed daughter of a white 
 
 father and an Indian mother, who does not 
 sustain any tribal relations, but has lived 
 with her white husband on a farm where she 
 was raised, does not become an Indian so as 
 to be exempt from the criminal laws of the 
 state by abandoning her husband and going 
 upon an Indian reservation, and by the fact 
 that she has drawn one annuity as an Indian 
 from the United States. Id. 
 
 455. A tribal Indian killing a member of 
 the same tribe while off the reservation is 
 subject to be tried for the crime in the 
 courts and according to the laws of the state 
 within whose jurisdiction the crime was 
 committed, since the passage of the act of 
 Congress of March 3, 1885. Pablo v. Peo- 
 ple, 23 Colo. 134, 46 Pac. 636, ?,7: 636 
 On military reservation. 
 
 456. A district court in Montana has juris- 
 diction to try a person charged with murder 
 committed upon a military reservation. 
 Burgess v. Territory, 8 Mont. 57, 19 Pec. 558, 
 
 1: 808 
 
 457. The jurisdiction of the United States 
 over a military reservation in a territory is 
 not exclusive, and does not deprive the terri- 
 torial laws and courts of the jurisdiction 
 conferred on them by law. Id. 
 
 V. Rules of Decision, 
 a. In General. 
 
 As to Abstract Questions, see Action or Suit, 
 
 11, 12. 
 As to Applicability of Common Law, see 
 
 Common Law, 12. 
 Authority to Declare Contract Void, see 
 
 Contracts, 364. 
 Following Decision of Political Convention, 
 
 see Elections, 288-290. 
 Following Decision of Ecclesiastical Court, 
 
 see Religious Societies, IX. 
 For Editorial Notes, see infra, VI. 16. 
 
 458. A will will not be construed by the 
 courts before necessity of action under it 
 arises. May v. Mav, 5 App. D. C. 552, 
 
 41: 767 
 
 b. Stare Decisis; Previous Decisions of 
 Same Court. 
 
 Binding Nature of Common Law, see Com- 
 mon Law, 13. 
 See also Judgment, 237. 
 
 459. The decision of a judge is not law 
 for succeeding cases; it is only evidence of 
 the law. Presbyterian General Assemblv v. 
 Guthrie, 86 Va. 125, 10 S. E. 318, 6 ^321 
 
 460. The public policy of a state or nation 
 must be determined by its Constitution, 
 laws, and judicial decisions, not by the vary- 
 ing opinions of laymen, lawyers, or judges 
 as to the demands of the interest of the pub- 
 lic. Hartford F. Ins. Co. v. Chicago, M. <fc 
 St. P. R. Co. 70 Fed. 201, 36 U. S. App. 152, 
 17 C. C. A. 62, 30: 193 
 
 461. A construction by officers having the 
 enforcement of the tax laws of Ohio, since
 
 COURTS, V. b. 
 
 875 
 
 the enactment thereof, to the effect that, un- 
 der such laws, shares held by residents of 
 Ohio of stock of foreign railroad corpora- 
 tions having property in Ohio on which they 
 pay taxes, and of consolidated railroad com- 
 panies, are not taxable in Ohio, does not bind 
 the successors of such officers, or the state, 
 in the proper assessment and collection of 
 taxes upon such shares. Lee v. Sturges, 46 
 Ohio St. 153, 19 N. E. 560, 2: 556 
 
 462. The question respecting the proper 
 relation of character evidence to the other 
 evidence in the case does not involve any of 
 those essentially important rights and in- 
 terests favored by the doctrine of prece- 
 dents. Daniels v. State, 2 Penn. (Del.) 586, 
 48 Atl. 196, 54: 286 
 
 463. i'he rule of stare decisis ^does not 
 bind the court in deciding the constitution- 
 ality of a statute, where no property right 
 or contract between the parties is involved. 
 Denny v. State ex rel. Easier, 144 Ind. 503, 
 42 N. E. 929, 31: 726 
 
 464. The court will not consider itself 
 bound by a prior decision upon the question 
 of the constitutionality of a law regulating 
 the liquor traffic, no rule of property being 
 involved. State ex rel. George v. Aiken, 42 
 S. C. 222, 20 S. E. 221, 26: 345 
 
 465. The doctrine of stare decisis cannot 
 be invoked in favor of decisions on former 
 statutes which were merely similar to, 'but 
 not identical with, one under review. Adams 
 v. Yazoo & M. V. R. Co. 77 Miss. 194, 24 So. 
 200, 317, 28 So. 956, 60: 33 
 Obiter dicta. 
 
 466. Propositions assumed by the court to 
 be within the case, and questions presented, 
 considered, and deliberately decided by the 
 court, leading up to the final conclusion 
 reached, are not obiter dicta, but, if dicta 
 at all, are judicial dicta, and are as effect- 
 ually passed upon as the ultimate questions 
 solved. Brown v. Chicago & N. W. R. Co. 
 102 Wis. 137, 77 N. W. 748, 78 N. W. 771, 
 
 44: 579 
 
 467. General expressions in every opinion 
 are to be taken in connection with the 
 case in which those expressions are used, 
 and, if they go beyond the case, ought not 
 to control the judgment in a subsequent suit 
 when the very point is presented for deci- 
 sion. Wadsworth v. Union P. R. Co. 18 Colo. 
 600, 33 Pac. 515, 23: 812 
 Erroneous decisions. 
 
 See also infra, 476, 478. 
 
 468. The rule of stare decisis is not inflex- 
 ible, and will not be applied to uphold a de- 
 cision which is clearly erroneous or contra- 
 ry to well-established legal principles, or a 
 decision which is not necessarily involved in 
 the case. Kimball v. Grantsville City, 19 
 Utah, 368, 57 Pac. 1, 45: 628 
 
 469. A decision which misconceives and 
 wrongly declares th law, whether it is an 
 ancient or a recent one, is subject to be over- 
 ruled. Wilson v. Leary, 120 N. C. 90, 26 S. 
 E. 630, 38: 240 
 
 470. Departure from decisions previously 
 made is required by the policy of the law 
 where adherence to them would be produc- 
 tive of more evil than the departure there- 
 
 from and the establishment of a better and 
 sounder rule. Evansville v. Senhenn, 151 
 Ind. 42, 47 N. E. 634, 41 : 728 
 
 471. It is the duty of the court to overrule 
 a decision or series of decisions, if clearly 
 incorrect either through a mistaken concep- 
 tion of the law or through misapplication of 
 the law to the facts, if no injurious results 
 would follow from their overthrow. Jas- 
 per County v. Allman, 142 Ind. 573, 42 N. E. 
 206, 39: 58 
 Effect of overruling of decision. 
 
 472. A decision by the highest court of the 
 state holding a given statute constitutional 
 will not, after a subsequent decision of the 
 same court overruling the former decision, 
 control contracts entered into before the lat- 
 ter decision. Storrie v. Cortes, 90 Tex. 283, 
 38 S. W. 154, 35: 666 
 Decision of military tribunal. 
 
 473. A decision by a tribunal created by a 
 military governor wnile the state was in a 
 subjugated condition is not binding in a 
 subsequent case involving similar questions. 
 Lusby v. Kansas City, M. & B. R: Co. 73 
 Miss. 360, 19 So. 239, 36: 510 
 Commercial law. 
 
 474. The so-called commercial law derives 
 all its force from its adoption by the state 
 as part of the common law; and a decision 
 on the commercial law of a state stands up- 
 on the same basis as a decision upon any 
 other branch of the common law. Forepaugn 
 v. Delaware, L. & W. R. Co. 128 Pa. 217. 18 
 Atl. 503, 5: 508 
 
 475. There is no distinction between the 
 binding effect of decisions on commercial law 
 and on statutes. Id. 
 Rule of property. 
 
 476. A decision by a state court as to the 
 construction of an act of Congress governing 
 mining claims should not be followed if it 
 is wrong, under the doctrine of stare decisis, 
 or on the ground that it has become a settled 
 rule of property, when the construction of 
 the statute has not been settled by the Su- 
 preme Court of the United States. Calhoun 
 Gold Min. Co. v. Ajax Gold Min. Co. 27 Colo. 
 1, 59 Pac. 607, 50: 209 
 
 477. ihe doctrine of stare decisis applies 
 with peculiar force to decisions respecting 
 real property, vested rights, and those mat- 
 ters of general commercial importance which 
 tend to influence future business transac- 
 tions; but questions where the decisions do 
 not constitute a business rule as where per- 
 sonal liberty is involved will be met by 
 eot-siderauons which favor certainty and 
 stability in the law. Daniels v. State, 2 
 Penn. (Del.) 586, 48 Atl. 196, 54: 286 
 
 478. Where a question has been decided by 
 the supreme court of Oregon, and parties, 
 relying upon the decision as a settled rule 
 of law, have transacted important affairs 
 which would be seriously affected by a 
 change of the rule, the court will adhere to 
 it in subsequent cases, however it might be 
 inclined to hold if the question were res in- 
 tegra. Poulsen v. Portland, 16 Or. 450. 19 
 Pac. 450, 1 : 673 
 Criminal matters. 
 
 479. The decisions of the court of over
 
 876 
 
 COURTS, V. c. 
 
 and terminer and the court of general ses- 
 sions were not reviewable by the supreme 
 court prior to the adoption of the Delaware 
 Constitution of 1897, and they will not be 
 departed from by the supreme court unless 
 it be satisfied that they are clearly erron- 
 eous. Daniels v. State, 2 Penn. (Del.) 586, 
 48 All. 196, 54: 286 
 
 c. Construction and Constitutionality of 
 Statutes or Ordinances. 
 
 Following Decisions of Courts of Other 
 
 State or Country, as to, see infra, V. e. 
 Federal Courts Following State Decisions as 
 
 to, see infra, 529-538. 
 Adopting Construction of Statute by Court 
 
 of other State, see Conflict of Laws, 102, 
 
 103. 
 Presumption and Burden of Proof as to, see 
 
 Evidence, II. a. 
 Validity of Statutes Generally, see Statutes, 
 
 I. c. 
 Construction of Statutes Generally, see 
 
 Statutes, II. 
 See also supra, 463^65, 472; infra, 513-515; 
 
 Constitutional Law, 272; Statutes, 117, 
 
 118. 
 
 480. Mere difference of opinion between 
 the courts and the lawmaking power is not 
 sufficient ground for holding a statute un- 
 constitutional. Chicago, B. & Q. R. Co. v. 
 State ex rel. Omaha, 47 Neb. 549, 66 N. W. 
 624, 41:481 
 
 481. It is settled doctrine that the courts 
 will not declare an act of the legislature 
 unconstitutional unless it is manifestly so. 
 Rosenbloom v. State, 64 Neb. 342, 89 N. W. 
 1053, 57: 922 
 
 482. Courts must uphold a statute, unless 
 it is so plainly and palpably in conflict with 
 the Constitution as to leave no doubt or 
 hesitation in the judicial mind as to its in- 
 validity. Burlington, C. R. & N. R. Co. v. 
 Dey, 82 Iowa, 312, 48 N. W. 98, 12: 436 
 
 483. A court cannot declare a statute void 
 or arrest its execution, unless it is in viola- 
 tion of some constitutional restriction. 
 Kimball v. Grantsville City, 19 Utah, 368, 
 57 Pac. 1, 45: 628 
 
 484. A reasonable doubt as to the con- 
 stitutionality of a statute must be resolved 
 by the court in favor of its validity. Stats 
 v. Foster, 22 R. I. 163, 46 Atl. 833, 50: 339 
 
 485. A statute will not be declared void 
 unless its nullity and invalidity are beyond 
 reasonable doubt. State v. Camp Sing, 18 
 Mont. 128, 44 Pac. 516, 32: 635 
 
 486. A statute will not be declared void 
 by the courts unless it is made to appear 
 clearly, palpably, and plainly that it violates 
 some constitutional provision. State v. 
 Gerhardt, 145 Ind. 439, 44 N. E. 469, 33: 313 
 
 487. The court will not hold that an act 
 is not within the police power of the state 
 unless it is so clearly without as to remove 
 every reasonable doubt that it is. Holden v. 
 Hardy. 14 Utah, 71, 46 Pac. 756, 37: 103 
 [AfFd bv the Supreme Court of the United 
 States in Ifif) U. S. 366, 42 L. ed. 780, 18 Sup. 
 Ct. Rep. 383.] 
 
 488. The constitutionality of a statute 
 must be upheld if there is reasonable doubt 
 as to its violation of the Constitution. 
 State ex rel. Andreu v. Canfield, 40 Fla. 36. 
 23 So. 591, 42: 72 
 
 489. An act of the legislature will not be 
 declared unconstitutional and void on the 
 presumption that it will be used as a basis 
 to assert an unjust or illegal claim to the 
 property of the state. Marsh v. Stonebrak- 
 er (Neb.) 98 N. W. 699, 65: 607 
 
 490. The constitutionality of a pure-food 
 law is to be determined by its language and 
 purpose, and not by the alleged wrongful 
 institution of prosecutions under it by those 
 charged with its enforcement against those 
 guiltless of a violation of its provisions. Ar- 
 buckle v. Blackburn, 51 C. C. A. 122, 113 Fed. 
 616, 65: 864 
 
 491. The courts will not declare invalid 
 an enactment of the legislature delegating 
 the power of eminent domain, unless it is 
 clearly so. Ulmer v. Lime Rock R. Co. 98 
 Me. 579, 57 Atl. 1001, 66: 387 
 
 492. A judgment that a statute is inval- 
 id cannot be based on an admission. State 
 ex rel. McCaffery v. Aloe, 152 Mo. 466, 54 S. 
 W. 494, 47: 393 
 
 493. A casus omissus in a statute cannot 
 be supplied by a court of law, for that would 
 be to make laws. Re Election of Executive 
 Officers, 31 Neb. 262, 47 N. W. 923, 10: 803 
 
 494. The judicial power to interpret a 
 statute does not contemplate the power to 
 amend it when it comes before the court 
 for construction. Nichols v. Mutual Life 
 Ins. Co. 176 Mo. 355, 75 S. W. 664, 62: 657 
 
 495. Where the practice of the executive 
 in the interpretation of his constitutional 
 powers of vetoing separate items in school 
 appropriation bills has been frequent and ac- 
 quiesced in without objection for a number 
 of years, it should be very clearly shown to 
 be unconstitutional, to justify the courts in 
 declaring against it. Com. ex rel. Elkin v. 
 Barnett, 199 Pa. 161, 48 Atl. 976, 55: 882 
 
 496. The courts will not construe language 
 so as to invalidate an act, when it is fairly 
 susceptible of a construction consistent with 
 validity, but will give effect to a legitimate 
 legislative purpose plainly indicated, if it 
 can reasonably be done. State v. McKee, 73 
 Conn. 18, 46 Atl. 409, 49: 542 
 
 497. The courts of one state will adopt its 
 own methods of construction on a constitu- 
 tional provision of another state where the 
 courts of the latter state have not construed 
 it. Tuttle v. National Bank of the Repub- 
 lic, 161 111. 497, 44 N. E. 984, 34: 750 
 When constitutionality will be considered. 
 Jurisdiction to Review Constitutional^}' of 
 
 Statutes, see supra, I. c, 2. 
 
 498. Courts will not assume to pass upon 
 onstitutional questions unless properly be- 
 fore them. State ex rel. Taylor v. Lord, 28 
 Or. 498, 43 Pac. 471, 31:473 
 
 499. The constitutionality of a statute 
 will not be considered in a case which can be 
 decided upon its merits without soich con- 
 sideration. Parker v. State ex rel. Powell, 
 133 Ind. 178, 32 N. E. 836, 18: 567 
 
 500. Where provisions of a statute are in
 
 COURTS. V. d. 
 
 877 
 
 no wise practically involved in the case un- 
 der consideration, their constitutionality will 
 not be passed upon. Wooten v. State, 24 
 Fla. 335, 5 So. 39, 1 : 819 
 
 501. A court of equity will not assume to 
 determine the constitutionality of a legisla- 
 tive act unless the case comes within some 
 recognized ground of equity jurisdiction, and 
 presents sonic actual or threatened infringe- 
 ment of the rights of property on account of 
 such unconstitutional legislation. State ex 
 rel. Taylor v. Lord, 28 Or. 498, 43 Pac. 471, 
 
 31: 473 
 
 502. Courts will not spend time in at- 
 tempting to remedy errors in an apportion- 
 ment of members of the legislature among 
 the inhabitants of the state, which injure 
 no one and which raise nothing biit abstract 
 questions for adjudication. People ex rel. 
 Carter v. Rice, 135 N. Y. 473, 31 N. E. 921, 
 
 16: 836 
 
 503. The constitutionality of the late su- 
 preme court commission of Colorado will not 
 be considered in a private controversy which 
 was referred to the commission for examin- 
 ation, and where the cause in which the 
 judgment sought to be impeached was ren- 
 dered has, according to records of the su- 
 preme court and in conformity with its pro- 
 cedure, passed to the jurisdiction of the 
 trial court, such judgment being only indi- 
 rectly drawn in question through suit upon 
 the appeal bond given in" connection with the 
 former review thereof. Rockwell v. Butler, 
 17 Colo. 290, 29 Pac. 458, 17:611 
 
 504. The constitutionality of a statute 
 giving women the right to hold office will 
 not be passed upon in a collateral proceed- 
 ing. Stevens v. Carter. 27 Or. 553. 40 Pac. 
 107-3. 31:342 
 
 505. The determination of the constitu- 
 tionality of a statute is within the power of 
 the court in a habeas corpus proceeding 
 where both parties request it, although 
 there may be some objection to this mode of 
 raising the question. Com. v. Huntley, 156 
 Mass. 236, 30 N. E. 1127. 15: 839 
 Ordinances. 
 
 Presumption and Burden of Proof as to, see 
 Evidence, 200-205. 
 
 506. Whenever a city ordinance can i>e so 
 construed and applied as to give it force and 
 validity this will be done by the courts, al- 
 t hough the construction so put upon it may 
 not be the most obvious and natural one, or 
 the literal one. Swift v. Topeka. 43 Kan. 
 1>71, 23 Pac. 1075. 8: 772 
 
 507. Doubt as to the constitutionality of 
 an ordinance relating to the construction of 
 a public improvement will be resolved in 
 favor of the property rights of individuals 
 as against the power of tne city to invade 
 them. Slaughter v. O'Berry, 126 N. C. 181, 
 35 S. E. 241.. 48: 442 
 
 508. Courts cannot indulge the presump- 
 tion that an ordinance was passed for an il- 
 legal purpose, when it was apparent that it 
 could be done legally. Chicago General R. 
 Co. v. Chicago. 176 'ill. 253, 52 N. E. 880. 
 
 66: 959 
 509 
 must 
 
 ). A very clear abuse of the police power 
 ; be shown in order to justify the court 
 
 in declaring ordinances regulating pawn- 
 brokers, junk dealers, and dealers in second- 
 hand goods, to be unreasonable and void. 
 Grand Rapids v. Braudy, 105 Mich. 670, b4 
 N. W. 29, 32: ll(i 
 
 510. A court should not set aside a muni- 
 cipal ordinance for unreasonableness, unless 
 it is manifestly so on its face, or is based 
 on fraud, or was passed in wanton disre- 
 gard of private rights, or exceeded the power 
 of the council. Olvnipia v. Mann, 1 Wash. 
 389, 25 Pac. 337, 12: 150 
 
 d. State Courts Following Federal Decisions. 
 For Editorial Notes, see infra, VI. 16. 
 
 511. The construction of provisions of the 
 Federal Constitution by the Supreme Court 
 of the United States must be followed by 
 the state courts in all matters to which 
 such provisions are applicable. State ex 
 rel. Board of Transp. v. Sioux City, O. & W. 
 R. Co. 46 Neb. 682, 65 N. W. 766, 31 : 47 
 
 512. A decision of the Supreme Court of 
 the United States is binding on a state 
 court in a case which arose under territorial 
 laws before the state was admitted to the 
 Union. Choate v. Spencer, 13 Mont. 127, 32 
 Pac. 651, 20: 424 
 
 513. A decision of the federal court sus- 
 taining the constitutionality of a state stat- 
 ute is not binding upon a state court, when 
 the same question subsequently arises there 
 under a similar statute; but it is the duty 
 of the state court to examine and decide the 
 
 j question according to its interpretation of 
 the constitutional guaranty. People v. 
 Budd, 117 N. Y. 1. 22 N. E. 670, 5: 559 
 
 514. On questions of the requirements of 
 the state Constitution the supreme court of 
 the state is not at liberty to set aside or 
 discard its own views because of different 
 conclusions by the Federal courts. Indian- 
 apolis v. Nav'in. 151 Ind. 139, 156, 47 N. E. 
 525, 51 N. E. 80, 41: 337 
 
 515. A decision of the Supreme Court of 
 tli" United States, holding that an eight- 
 hour law of a certain state does not violate 
 the Federal Constitution, is not binding on 
 the courts of another state in favor of the 
 validity of such a law under the Constitu- 
 tion of that state. Re Morgan, 26 Colo. 
 415, 58 Pac. 1071. 47: 52 
 
 516. When a state court has yielded its 
 opinion and adopted that of the United 
 States Supreme Court upon a given subject, 
 and such decision has been acquiesced in for 
 many years, it will not be departed from un- 
 less the court is very sure it is wrong, and 
 also that the United States court either will 
 not regard the state decision as subject to 
 review by it, or will change its own decision. 
 Phoenix Nat. Bank v. Batcheller, 151 Mass. 
 589. 24 N. E. 917. 8: 644 
 Commercial law. 
 
 517. State legislation with respect to the 
 law merchant must be recognized and en- 
 forced by Federal courts, although in the 
 absence of such statutes they are not bound 
 by state decisions on the subject. Hudson 
 Furniture Co. v. Harding, 17 C. C. A. 203, 
 34 U. S. App. 148, 70 Fed. 468, 30: 513
 
 878 
 
 COURTS, V. e. f. 
 
 518. A state statute providing that all 
 persons becoming parties to promissory 
 notes payable on time, by signature on the 
 back thereof, shall be entitled to the same 
 notice of nonpayment as indorsers, must 
 control the decisions of a Federal court as to 
 the rights of parties to a note payable in 
 that state. Id. 
 
 e. Following Decisions of Courts of Other 
 State or Country. 
 
 Looking to Decisions of Other States in As- 
 certaining Rules of Common Law, see 
 Common Law, 15. 
 
 As to Construction of Constitution, see Con- 
 stitutional Law, 55. 
 
 See also supra, 497. 
 
 For Editorial Notes, see infra, VI. 16. 
 
 519. The construction of a statute by the 
 lower courts of the state of its enactment is 
 not binding on the courts of another state. 
 Schmaltz v. York Mfg. Co. 204 Pa. 1, 53 Atl. 
 522, 59: 907 
 
 520. The construction of a state statute 
 by the courts of that state will ordinarily 
 be adopted in another state. Bell v. Farwell, 
 176 111. 489, 52 N. E. 346, 42: 804 
 
 521. In construing the statutes of another 
 state, courts must accept as conclusive the 
 construction put thereon by the highest ju- 
 dicial tribunal of such state. Watson v. 
 Lane (N. J. Err. & App.) 52 N. J. L. 550, 20 
 Atl 894, 10: 784 
 
 522. Decisions of a state that under its 
 statute notice of an unrecorded mortgage 
 will not affect the rights of a third person 
 dealing with the mortgaged property are 
 binding on the courts of a territory over 
 which the statute is subsequently extended 
 by Congress. McFadden v. Blocker, 3 Ind. 
 Terr. 224, 54 S. W. 873, 58: 894 
 
 523. The construction of a statute creat- 
 ing stockholders' liability for corporate 
 debts, by the state courts, will not be fol- 
 lowed in other states, if to do so would be 
 unjust to their citizens and violate the pol- 
 icy of their laws. Finney v. Guy, 106 Wis. 
 256, 82 N. W. 595, 49: 486 
 
 524. The construction of a statute impos- 
 ing liability upon stockholders for debts of 
 a corporation, made by the highest court of 
 the state in which it was enacted, is bind- 
 ing upon the courts of another state in 
 which it is sought to be enforced. Howarth 
 v. Lombard, 175 Mass. 570, 56 N. E. 888, 
 
 49: 301 
 
 525. Decisions of the English courts, ren- 
 dered since the independence of America, 
 are entitled to respect upon the question as 
 to what the common law is, and in particu- 
 lar cases may properly be regarded as con- 
 elusive. Johnson v. Union P. Coal Co. 28 
 Utah, 506, 76 Pac. 1089, 67: 506 
 
 f. Federal Courts Following State Decisions. 
 For Editorial Notes, see infra, VI. 16. 
 
 526. The question whether or not the is- 
 suance and sale of bonds by a municipality 
 to procure a water supply will create an in- 
 debtedness must be solved by the law appli- 
 cable to contracts in general, and to negotia- 
 
 ble bonds in particular, upon which the Fed- 
 eral courts are not bound by state decisions. 
 Ottumwa v. City Water Supply Co. 56 C. C. 
 A. 219, 119 Fed. 315, 59:604 
 
 527. The question whether or not an in- 
 surable interest in an assignee is requisite 
 to the validity of the assignment of a policy 
 of life insurance, which was originally is- 
 sued to one who had an insurable interest, 
 is a question of general law, upon which the 
 decisions of the courts of the state in which 
 the assignment was made are not control- 
 ling in the Federal courts. Gordon v. Ware 
 Nat. Bank, 132 Fed. 444, 67: 550 
 
 528. The right of an adjoining landowner 
 to make a new bank for a navigable river 
 which forms the boundary between two 
 states, or by artificial structures to tarn the 
 water upon the lands upon the opposite side 
 of the river, is not a local question on which 
 a Federal court is bound by state decisions, 
 but depends upon general principles of law. 
 Cairo, V. & C. R. Co. v. Brevoort, 62 Fed. 
 129, 25: 527 
 Construction of state statutes of Constitu- 
 tions. 
 
 For Editorial Notes, see infra, VI. 16. 
 
 529. The construction given by the highest 
 court of a state to a statute of limitations 
 of that state will be followed by the Feder- 
 al courts. Brunswick Terminal Co. v. Na- 
 tional Bank of Baltimore, 40 C. C. A. 22, 
 99 Fed. 635, 48: 625 
 
 530. The first direct ruling of the highest 
 court of a state construing a state statute 
 will be followed by a Federal court without 
 further inquiry, notwithstanding a prior de- 
 cision of the Federal court to the contrary. 
 Andrews v. National Foundry & P. Works, 
 46 U. S. App. 281, 76 Fed. 166, 22 C. C. A. 
 110, 36: 139 
 
 531. The decisions of the highest court of 
 a state upon the proper construction to be 
 given to the constitutional and statutory 
 provisions of that state are binding in Fed- 
 eral courts. Rhodes v. United States Nat. 
 Bank, 24 U. S. App. 607, 66 Fed. 512, 13 C. 
 C. A. 612, 34: 742 
 
 532. A Federal court should render judg- 
 ment depending on the construction of a 
 state Constitution, in accordance with a pre- 
 vious decision by the highest state court on 
 the subject, although, before such state 
 decision was rendered, the Federal court had 
 rendered an opinion to the contrary. Sand- 
 ford v. Poe, 16 C. C. A. 305, 37 U. S. App. 
 378, 69 Fed. 546, 60: 641 
 
 533. The fact that a case argued and du'y 
 onsidered in a state court was a friendly 
 
 one will not prevent the decision therein on 
 he construction of the State Constitution 
 From being conclusive in Federal courts. Id. 
 
 534. In the construction of the statutes of 
 a state which measures the powers and lia- 
 bilities of its political organizations Federal 
 courts uniformly follow the interpretation 
 of the highest judicial tribunal of the state, 
 where no question of general or commercial 
 
 aw or of right under the United States Con- 
 stitution or laws is involved. Illinois Trust 
 & Sav. Bank v. Arkansas City, 76 Fed. 271, 
 40 U. S. App. 257, 22 C. C. A. 171, 34: 518
 
 COURTS, V. f. 
 
 879 
 
 5.35. The decision of the highest court of a 
 state in the construction of its statutes, and 
 as to the validity or invalidity of contracts 
 dependent only on such statutes, is the con- 
 trolling rule of decision in Federal courts, 
 where there is no Federal question. Clarks- 
 burg Electric Light Co. v. Clarksburg, 47 W. 
 Va. 739, 35 S. E. 994, 50: 142 
 
 536. The construction by a state court of 
 :i law of the state as authorizing the court 
 to try and determine in a condemnation pro- 
 ceeding an adverse claim of the plaintiff 
 therein to an interest in the property sought 
 to be condemned is conclusive on the Su- 
 preme Court of the United States on writ 
 of error to that court. Hooker v. Los An- 
 geles, 188 U. S. 314, 47 L. ed. 47, 23 Sup. 
 Ct. Rep. 395, 63: 471 
 
 537. A Federal court is bound by a con- 
 struction given by the courts of the state 
 in which it is sitting, to a statute imposing 
 liability upon mine owners for death of em- 
 ployees, to the effect that it takes away the 
 defense of contributory negligence. Fulton 
 v. Wilmington Star Min. Co. 133 Fed. 193, 
 
 68: 168 
 
 538. The rule of law in Tennessee, which 
 prevents the defense of contributory negli- 
 gence from being a complete bar to an ac- 
 tion for injury to a person on a railroad 
 track, under the statute, but makes it cause 
 for reduction of damages, being one which 
 grows out of the language of the statute 
 itself, the construction thereof by the su- 
 preme court must be followed in Federal 
 courts, in an action arising in that state. 
 Byrne v. Kansas City, Ft. S. & M. R. Co. 22 
 U. S. App. 220, 9 C. C. A. 666, 61 Fed. 605, 
 
 24: 69 3 
 International comity. 
 
 539. The question of international comity 
 is controlled and decided by international 
 law and custom, and the decisions of local 
 courts thereon are not controlling in the 
 courts of the United States. Evey v. Mexi- 
 can C. R. Co. 26 C. C. A. 407, 52 U. S. App. 
 118, 81 Fed. 294, 38: 387 
 Survivability of action. 
 
 540. The survivability of a right of ac- 
 tion is a property right, in respect of which 
 the Federal courts are governed by local law. 
 Warren v. Furstenheim, 35 Fed. 691, 1: 40 
 Matters as to evidence. 
 
 541. The rules of evidence in the Federal 
 courts are questions of general law, not con- 
 trolled by state decisions. Garrett v. South- 
 ern R. Co. 41 C. C. A. 237, 101 Fed. 102, 
 
 49: 645 
 
 542. The Federal court will not follow the 
 state court decisions as to the admissibility 
 in evidence at common law of extracts from 
 medical books. Union P. R. Co. v. Yates, 25 
 C. C. A. 103, 49 U. S. App. 241, 79 Fed. 584, 
 
 40: 553 
 Contracts limiting liability. 
 
 543. Decisions by state courts as to the 
 validity of a contract against liability for 
 negligence are not conclusive upon the Fed- 
 eral courts. Hartford F. Ins. Co. v. Chicago, 
 M. & St. P. R. Co. 70 Fed. 201, 36 U. S. App. 
 152, 17 C. C. A. 62, 30: 193 
 
 Fellow service. 
 
 544. The question of fellow service, in an 
 action by an employee in a Federal court to 
 recover from his employer for personal 
 injuries inflicted through negligence, is not 
 one of local law to be settled by the deci- 
 sions of the highest courts of the state in 
 which the cause of action arose. Louisville 
 & N. R. Co. v. Stuber, 48 C. C. A. 149, 108 
 Fed. 934, 54: 696 
 Rule of property. 
 
 For Editorial Notes, see infra, VI. 16. 
 
 545. The rule of property under the de- 
 cision of the courts of a state will be regaru- 
 ed by Federal Courts. Balkham v. Wood- 
 stock Iron Co. 43 Fed. 648, 11: 230 
 Commercial law. 
 
 For Editorial Notes, see infra, VI. 16. 
 
 546. Federal courts on questions of gener- 
 al commercial law exercise their own judg- 
 ment independent of the state law, but give 
 weight to the decisions of the courts of the 
 state whose law they are administering 
 where the question is a new one in the Fed- 
 eral courts. Farmers Nat. Bank v. Sutton 
 Mfg. Co. 6 U. S. App. 312, 3 C. C. A. 1, 52 
 Fed. 191, 17: 595 
 
 547. The construction and effect of recit- 
 als in negotiable instruments is a question, 
 not of state constitutional or statutory law, 
 but of commercial law, upon which the de- 
 cisions of the state courts are not control- 
 ling in the Federal tribunals. Independent 
 School Dist. v. Rew, 49 C. C. A. 198, 111 Fed. 
 1, 55: 364 
 
 548. The relation to a note, Of a party 
 whose name is signed on the back of it, is a 
 question of general law on which Federal 
 courts are not bound by state decisions. 
 Hudson Furniture Co. v. Harding, 34 U. S. 
 App. 148, 17 C. C. A. 203, 70 Fed. 468, 
 
 30: 513 
 
 549. The general commercial law as to no- 
 tice to an indorsee of a note, of the equities 
 between the original parties, prevails in the 
 Federal courts, rather than any particular 
 rule established in a state by its courts or 
 statutes. Bank of Edgefield v. Farmers Co- 
 op. Mfg. Co. 2 U. S. App. 282, 2 C. C. A. 637, 
 52 Fed. 98, 18: 201 
 
 550. The question of the validity of mu- 
 nicipal bonds is one of commercial law, upon 
 which the Federal courts are bound to exer- 
 cise their own judgment. Huron v. Second 
 Ward Sav. Bank, 30 C. C. A. 38, 57 U. S. 
 App. 593, 86 Fed. 272, 49: 534 
 Validity of mortgages. 
 
 551. Whether chattel mortgages are void 
 as common-law assignments giving prefer- 
 ences to creditors is a question of local law, 
 upon which a Federal court will follow the 
 state decisions. Brown v. Grand Rapids 
 Parlor Furniture Co. 16 U. S. App. 221, 7 
 C. C. A. 225, 58 Fed. 286, 22: 817 
 
 552. A Federal court will follow the lat- 
 est decisions of the supreme court of the 
 state as to the validity of mortgages, al- 
 though a different decision by that court 
 was regarded as the law when the mortga- 
 ges were made. Id. 
 Damages for mental anguish. 
 
 553. The liability of a telegraph company
 
 880 
 
 COURTS, VI. (Ed. Notes.) 
 
 to damages for mental anguish on account 
 of negligence in transmitting a message is a 
 question of general law on which a Federal 
 court is not bound by the decisions of the 
 state where the cause of action arises. 
 Western U. Teleg. Co. v. Wood, 13 U. S. App. 
 317, 6 C. C. A. 432, 57 Fed. 471, 21: 706 
 
 Replevin suit. 
 
 554. The decision of a state court in a re- 
 plevin suit in which the construction of a 
 state statute is not involved is not binding 
 on a Federal court in a subsequent suit upon 
 the replevin bond. Gilbert use of Bishop v. 
 American Surety Co. 57 C. C. A. 619. 121 
 Fed. 499, 61 : 253 
 
 555. The Federal court is not bound to fol- 
 low a decision of the courts of the state in 
 which it is sitting, declaring that a plaintiff 
 in replevin is not bound to return the prop- 
 erty replevied if prevented by act of law, 
 which is based, not upon a statute, but upon 
 ireneral principles. Three States Lumber Co. 
 v. Blanks, 66 C. C. A. 353, 133 Fed. 470, 
 
 69: 283 
 
 VI. Editorial Notes, 
 a. Jurisdiction and powers in general. 
 
 i. Generally. 
 
 As to Admiralty Jurisdiction, see Admiral- 
 ty, III. 
 
 As to Appellate Jurisdiction, see Appeal and 
 Error, XI. 2. 
 
 As to Crimes, see Criminal Law, 13, 14. 
 
 As to Removal of Causes to Federal Courts, 
 see Removal of Causes, 
 III. 
 
 As Affected by Mode of Process, see Writ 
 and Process, IV. 5-9. 
 
 Presumption as to. 12: 575. 
 
 Estoppel to deny. 15: 273. 
 
 On unauthorized appearance by attorney. 
 21 : 848. 
 
 Original jurisdiction of court of last resort 
 in mandamus case. 58: 
 833. 
 
 Equitable jurisdiction to protect civil rights. 
 10: 616.* 
 
 Exclusiveness of jurisdiction by appoint- 
 ment of receiver. 20: 391. 
 
 Chancery jurisdiction over gifts to charity. 
 1: 418.* 
 
 Jurisdiction to annul marriage for insanity 
 of one of the parties. 40: 
 745. 
 
 Necessity of judicial proceedings to con- 
 stitute due process of law. 
 2: 656.* 
 
 Change of decision of state court as an im- 
 pairment of contract. 16: 
 646. 
 
 Relation of power to eminent domain. 4: 
 785:* 7: 151.* 
 
 Jurisdiction over proceedings for establish- 
 ment of drains and sewers. 
 60: 174. 
 
 Retention of jurisdiction to afford complete 
 relief. 3: 191.* 
 
 Jurisdiction of court of claims. 3: 463.* 
 
 Jurisdiction and powers of consuls. 45: 481. 
 Jurisdiction of crimes by and against In- 
 dians. 21: 169. 
 
 2. Effect of lack of jurisdiction; challen- 
 ging jurisdiction. 
 As affecting purjury. 54: 513. 
 As affecting liability for false imprisonment. 
 
 18: 356. 
 Injunction against judgments for want of 
 
 jurisdiction. 31 : 200. 
 
 Right of alleged fraudulent grantee to at- 
 tack judgment against 
 grantor for lack of juris- 
 diction. 67 : 603. 
 Estoppel of party who has invoked jurisdic- 
 
 * tion to deny it. 15:273. 
 After obtaining benefit of the court's 
 taking jurisdiction. 15: 
 274. 
 
 Jurisdiction over consuls. 45: 580. 
 3. Over corporations and associations. 
 See also infra, 6y 2 . 
 Equity jurisdiction over corporations. 2: 
 
 551;* 9: 651.* 
 
 What service of process upon corporation is 
 sufficient to constitute due 
 process of law. 50: 588. 
 When civil courts have jurisdiction of con- 
 troversy between associa- 
 tion and its members. 49 : 
 353. 
 
 Right of nonresident to sue foreign corpora- 
 tion. 70: 513. 
 
 Conclusiveness of decisions of tribunals of 
 associations or corpora- 
 tions. 49: 353. 
 Tribunals other than ecclesiastical. 49: 
 
 353. 
 In general; when civil courts have 
 
 jurisdiction. 49: 353. 
 Discipline. 49: 354. 
 
 Extent of review, generally. 
 
 49: 354. 
 For insufficient or unauthorized 
 
 cause. 49: 359. 
 In general. 49: 359. 
 When power conferred in 
 general terms. 49: 360. 
 Notice and opportunity to be 
 
 heard. 49: 363. 
 Miscellaneous defects; proce- 
 dure. 49: 367. 
 Waiver of defects. 49: 371. 
 Decisions directly on property 
 rights; validity of agree- 
 ment to abide by decision. 
 49: 372. 
 
 Miscellaneous decisions. 49: 378. 
 Duty to exhaust remedies within 
 the organization. 49: 379. 
 Ecclesiastical tribunals. 49: 384. 
 
 Basis of court's jurisdiction over 
 ecclesiastical controver- 
 sies. 49: 384. 
 
 Conclusiveness of decisions, gener- 
 ally. 49: 386. 
 
 Jurisdiction of ecclesiastical tribu- 
 nals. 49: 390. 
 
 Regularity of procedure. 49: 395. 
 Fairness and validity of decisions 
 as tested by church laws. 
 49: 397.
 
 COURTS, VI. (Ed. Notes.) 
 
 881 
 
 Duty to obtain decision by higher 
 
 tribunal. 49: 3<J9. 
 
 Congregational and independent 
 
 cnurches. 49: 399. 
 
 4. With respect to statutes and ordi- 
 nances. 
 
 Power to interpret and construe statutes. 
 12: 856.* 
 
 Reluctance to annul statute. 13: 304.* 
 
 Inquiry into collusiveness of enrolled bill. 
 23: 340. 
 
 Reasonableness of ordinance as a subject of 
 judicial inquiry. 2: 723.* 
 
 5. Surrogates' courts; probate matters; 
 wills. 
 
 Probate jurisdiction. 3: 812.* 
 
 Jurisdiction of surrogate's court, generally. 
 2: 175.* 
 
 Concurrent jurisdiction of courts of equity 
 with surrogate's court. 2: 
 176. 
 
 Interference by chancery with proceedings 
 before surrogate. 2: 176.* 
 
 Power of surrogate to vacate or set aside 
 decree or order. 2: 644.* 
 
 Power to dismiss proceedings. 2: 644. 
 
 Jurisdiction of suit to determine validity of 
 devise. 2: 175.* 
 
 Jurisdiction over executors and administra- 
 tors. 2: 828.* 
 
 6. Jurisdiction as affected by residence or 
 citizenship or territorial limitations. 
 
 As to Jurisdiction in Divorce as Affected by 
 Domicil, Residence, or 
 Place of Marital Offense, 
 see Conflict of Laws, III. 
 13. 
 
 As to Jurisdiction of Action for Death or 
 Bodily Harm Occurring in 
 Another State, see Con- 
 flict of Laws, III. 25. 
 
 As to Enforcement of Penal Laws of An- 
 other State, see Conflict 
 of Laws, III. 26. 
 
 Federal Jurisdiction as Affected by Resi- 
 dence or Citizenship, see 
 infra, VI. 13. 
 
 Discriminating against citizens of other 
 states. 14: 583. 
 
 Jurisdiction over suits affecting real prop- 
 erty in another state or 
 country. 69: 673. 
 
 Jurisdiction to order foreclosure sale of rail- 
 road in different states. 
 32: 208; 69: 682. 
 
 Locality of crime committed through the 
 agency of the mails or of 
 carriers. 19: 775. 
 
 Locality of crime committed by shooting 
 or striking across state 
 boundary. -28: 59. 
 
 Locus of cause or subject of action as af- 
 fecting -jurisdiction of ac- 
 tion by nonresident 
 against foreign corpora- 
 tion. 70: 543. 
 
 514. Locality of jurisdiction of state 
 court over foreign corporations. 
 
 Generally. 70: 692. 
 
 Jurisdiction coextensive with the state. 70: 
 
 692. 
 L.R.A. Dig. 56. 
 
 | Constructive domestic residence. 70: 693. 
 
 Counties in which railroads extend. 70: 
 696. 
 
 Venue determined by doing business. 70: 
 696. 
 
 Resident agents. 70: 697. 
 
 Place of origin of the cause or situation of 
 the subject of the action. 
 70: 699.' 
 
 Local actions. 70: 699. 
 Transitory actions. 70: 699. 
 
 Of domestic origin. 70: 699. 
 Of foreign origin. 70: 700. 
 
 When the foreign corporation is not sole de- 
 fendant. 70: 701. 
 
 Effect of appearance and waiver. 70: 701. 
 
 Federal corporations. 70: 702. 
 
 Counties where plaintiff resides. 70: 702. 
 
 Plaintiff's choice. 70: 702. 
 
 Courts of limited jurisdiction. 70: 702. 
 
 Constitutionality of venue statutes. 70: 
 703. 
 
 Construction of venue statutes. 70: 703. 
 
 7. Jurisdiction as affected by amount in- 
 volved. 
 
 Amount in dispute in case of injunction 
 against enforcement f 
 liens or claims against 
 specific property. 64: 74J1. 
 
 Voluntary credits to bring debt within ju- 
 risdiction of court. 28: 
 221. 
 
 The rule permitting remission. 28: 222. 
 
 The rule as affected by the character of the 
 
 claim. 28: 223. 
 Actions for an uncertain amount. 28: 
 
 223. 
 Actions for an amount certain. 28: 
 
 224. 
 
 Actions in which jurisdiction depends 
 upon the value of the 
 property in suit. 28: 224. 
 
 Remission of interest. 28: 225. 
 
 Rule denying the right to remit. 28: 226. 
 
 What constitutes a remission. 28: 228. 
 
 When made. 28: 229. 
 
 8. Relation to other departments of gov- 
 ernment. 
 
 Independence of different departments of 
 government. 4: 79.* 
 
 Interference with other departments of gov- 
 ernment. 3: 53.* 
 
 Power of judiciary to interfere with execu- 
 tive. 3: 316.* 
 
 How far courts will interfere by mandamus 
 with heads of executive 
 department. 3: 55.* 
 
 Legislative authority to abridge power of 
 court to punish for con- 
 tempt. 36: 254.* 
 
 9. Superintending control and supervisory 
 jurisdiction of superior over inferior 
 courts. 
 
 Generally. 51: 33. 
 
 Inherent power of supervisory or superin- 
 tending control over infe- 
 rior tribunals. 51: 34. 
 Existence and derivation of power. 51 : 
 
 34. 
 
 In what courts the inherent power ex- 
 ists. 51 : 35.
 
 COURTS, VI. (El. ]*otes.) 
 
 In the highest law court of origi- 
 nal general jurisdiction. 
 51 : 35. 
 In courts of appellate jurisdiction. 
 
 51: 36. 
 
 In courts of local jurisdiction. 51: 
 37. 
 
 Constitutional and statutory grants of su- 
 perintending control, gen- 
 eral supervision, etc. 51: 
 37. 
 
 In states which have no express constitu- 
 tional or statutory grants 
 of the power. 51: 74. 
 
 In courts of the United States. 51: 103. 
 
 Where the application to correct should be 
 
 first made. 51: 107. 
 To the court sought to be controlled. 
 
 51 : 107. 
 
 To an inferior jurisdiction having the 
 power. 51: 107. 
 
 When the power is exercised without des- 
 ignating it as such. 51: 
 107. 
 
 By courts of original jurisdiction as 
 successor of the King's 
 bench. 51: 107. 
 
 By courts having no grant of the spe- 
 cific power. 51: 108. 
 By courts having grants of the juris- 
 diction. 51: 108. 
 
 Use in place of appeal or other remedy. 51: 
 109. 
 
 For what purposes exercised. 51: 109. 
 
 Compelling lower court to act. 51 : 109. 
 Controlling lower court's discretion or 
 
 judgment. 51: 110. 
 To aid appellate jurisdiction. 51: 110. 
 In exercise of revisory jurisdiction. 51 : 
 111. 
 
 Power of legislature to interfere. 51: 111. 
 To enlarge the power. 51: 111. 
 To encroach upon the power. 51: 111. 
 
 Exercise of the power by courts of local ju- 
 risdiction. 51: 111. 
 
 ID. Time; terms. 
 
 Judicial notice of terms. 4: 34.* 
 
 Delay of prosecution caused by failure to 
 hold court, as ground for 
 discharge of accused. 56: 
 530. 
 
 Sitting on holidays. 19: 317. 
 
 Extension of time for court proceedings 
 when last day falls on 
 Sunday. 14: 122. 
 
 ii. Judicial notice of judicial matters. 
 
 As to Judicial Notice, Generally, see Evi- 
 dence, XIII. 1. 
 
 Judicial notice of jurisdiction and authority 
 of courts. 4: 34.* 
 
 Judicial notice of prior judicial proceedings. 
 4: 34.* 
 
 Judicial notice of court records. 4 : 35.* 
 
 Judicial notice of terms of court. 4: 34.* 
 
 12. Property in custody of court. 
 
 Replevin for property in legal custody. 13: 
 408. 
 
 Rule that property in custody of law is not 
 subject to seizure. 10: 
 529.* 
 
 Garnishment of property in custody of law. 
 12: 508. 
 
 Injunction against sale of property. 3t; 
 103. 
 
 b. Federal courts. 
 
 13. Generally. 
 
 See also infra, VI. 16. 
 
 Equity jurisdiction of. 2: 225.* 
 
 Circuit court jurisdiction. 1: 377,* 817;* 2: 
 746.* 
 
 Ancillary jurisdiction. 3: 190.* 
 
 Jurisdiction of suit against state railroad 
 commissioners. 3: 238. 
 
 Jurisdiction as affected by amount in dis- 
 pute. 2: 226.* 
 
 Suit by assignee of chose in action. 1: 817;* 
 12: 681.* 
 
 Jurisdiction of circuit court not conferred 
 by attachment process 
 against nonresident. 6: 
 252.* 
 
 Citizenship in District of Columbia. 1 : 108.* 
 
 Corporations as citizens for purposes of 
 Federal jurisdiction. ' 11: 
 216.* 
 
 Necessity of diversity in citizenship at time 
 suit brought. 1: 108.* 
 
 Right of citizen of District of Columbia to 
 maintain suit in circuit 
 court on the ground of di- 
 verse citizenship. 1: 108.* 
 
 When assignee in chose of action may sue 
 in United States circuit 
 court. 2:746.* 
 
 Jurisdiction of, with respect to bridge over 
 navigable waters. 2:541.* 
 
 Jurisdiction of United States Supreme Court 
 in action against national 
 bank to recover penalty 
 for taking usurious inter- 
 est. 56: 680. 
 
 Conditions against foreign corporation in- 
 voking Federal jurisdic- 
 tion. 24: 294. 
 
 Lien of judgment of Federal court. 47: 469. 
 
 c. Conflict of authority; relation of state 
 to Federal. 
 
 14. Generally. 
 
 Courts of concurrent jurisdiction cannot act 
 in conflict. 1 : 573.* 
 
 When jurisdiction of law and equity con- 
 current. 1: 191;* 5: 226.* 
 
 Concurrent jurisdiction of courts of equity 
 with surrogate's court. 2: 
 176.* 
 
 Retention of suit in court whence process 
 first issued. 2: 177.* 
 
 Concurrent jurisdiction of Federal and state. 
 12: 725.* 
 
 Noninterference f by Federal courts with pro- 
 ceedings in state courts. 
 5: 224.* 
 
 Mutual independence of state and Federal 
 courts. 5: 221.* 
 
 Retention of jurisdiction by court first ac- 
 quiring same. 5: 222.* 
 
 Priority of right obtained by actual seizure. 
 5: 223.* 
 
 Exclusive jurisdiction in court first acquir- 
 ing possession of property. 
 5: 223.*
 
 COURTS MARTIAL COVENANT. 
 
 883 
 
 Exclusiveness of jurisdiction by appoint- 
 ment of receiver as be- 
 tween state and Federal 
 courts. 20: 391. 
 
 Injunction against suit in foreign jurisdic- 
 tion. 21:71. 
 
 Pendency of actions in both state and Fed- 
 eral courts sitting in same 
 state. 42: 449. 
 
 15. Power and jurisdiction of state court 
 with respect to Federal matters. 
 
 Administration of Federal laws in state 
 
 courts. 48: 33. 
 Generally. 48: 33. 
 Civil laws. 48: 34. 
 Criminal and penal laws. 48: 38. 
 
 With respect to naturalization. 30: 761. 
 
 When state courts have jurisdiction in cases 
 involving patent rights. 1: 
 311,* 314.* 
 
 Jurisdiction of state court to enforce for- 
 feiture of interest provid- 
 ed by national banking 
 act. 56: 688. 
 
 Jurisdiction of state court over action to re- 
 cover from national bank 
 twice the amount of usu- 
 rious interest paid to it. 
 56: 690. 
 
 State jurisdiction over lands of the United 
 States within the state. 
 17: 720. 
 
 16. Rules of decision. 
 
 As to Effect and Conclusiveness of Decision 
 on Appeal, see Appeal and 
 Error, XI. 15. 
 
 Questions as to which decisions of Federal 
 coiirt are conclusive. 5: 
 513.* 
 
 State courts following Federal decisions in 
 construing statute to im- 
 pose penalty on national 
 banks for taking illegal in- 
 terest. 56: 677. 
 
 Binding effect of decisions of state supreme 
 courts on courts of other 
 states. 5: 512.* 
 
 General rule that United States Supreme 
 Court will follow decisions 
 of state courts. 5: 509.* 
 As to construction of state Constitution 
 or statute. 5: 509.* 
 
 Federal court following decision of state 
 court as to rule of prop- 
 erty. 5 : 509.* 
 
 Rule of decision by Federal court with re- 
 spect to questions of gen- 
 eral commercial law. 5: 
 510.* 
 
 Application of statute requiring practice 
 and proceeding in Federal 
 court to conform "as near 
 as may be" to those of 
 state court. 11: 275.* 
 
 Adoption by Federal courts of remedies cre- 
 ated by state statutes. 
 18: 266.' 
 Preservation of equity jurisdiction. 18: 
 
 266. 
 
 Enlargement of equitable remedies. 
 18: 266. 
 
 Limitation or enlargement of equity 
 powers. 18: 267. 
 
 Extending legal remedies. 18: 268. 
 
 Limiting equitable jurisdiction, 18: 
 269. 
 
 COURTS MARTIAL. 
 
 Necessity of Presentment on Indictment, see 
 Criminal Law, 80. 
 
 The trial of a member of the National 
 Guard in time of peace by court-martial, for 
 a violation of the rules and regulations of 
 the military code, and his punishment, if 
 found guilty, by a limited fine or limited 
 imprisonment for nonpayment of fine, does 
 not violate the constitutional right of trial 
 by jury or other constitutional provisions. 
 State ex rel. Madigan v. Wagener, 74 Minn. 
 518, 77 N. W. 424, 42: 749 
 
 COURTYARD. 
 
 Enjoining Encroachment on Space Reserved 
 for, see Injunction, 182, 183. 
 
 COVE. 
 
 Right to Compensation for Closing Entrance 
 of, see Eminent Domain, 254, 357, 358. 
 
 Filling Basin of, see Fisheries, 3. 
 
 Right to Fish in, see Fisheries, 25, 26. 
 
 Laches Preventing Ciaim of Rights in, see 
 Limitation of Actions, 44. 
 
 COVENANT. 
 
 I. Construction and Effect Generally. 
 
 a. In General. 
 
 b. Restricting Use of Property. 
 II. Breach; Enforcement; Who Liable. 
 
 a. In General. 
 
 b. What Constitutes a Breach. 
 
 c. Who May Enforce. 
 
 1. In General. 
 
 2. Covenants Running with the 
 
 Land. 
 
 d. Who Liable or Bound. 
 
 1. In General. 
 
 2. Covenants Running with the 
 
 Land. 
 
 III. Running with the Land. 
 
 IV. Extinguishment of, or Discharge from, 
 
 Covenant. 
 V. Editorial Notes. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 
 105, 106. 
 Against Competition, see Conspiracy, 125, 
 
 126. 
 
 To Pay after Death, see Contracts, 436. 
 Effect of Invalidity of, see Contracts. 555. 
 Not to Engage in Business, see Contracts, 
 
 III. e, 2.
 
 884 
 
 COVENANT, I. a. 
 
 Estoppel by, see Estoppel, 43, 44, 58, 59, 61, 
 and also infra, V. 4. 
 
 Estoppel against Enforcing, see Estoppel, 
 260, 271. 
 
 Administrator's Suit on, for Rent, see Exec- 
 utors and Administrators, 109. 
 
 As to Expectancy, see Expectancy, 4. 
 
 On Sale of Good'Will, see Good Will, 16. 
 
 Not to Foreclose Mortgage, see Guaranty,' 25. 
 
 In Lease, see Lease, II. b. 
 
 Limitation of Action on, see Limitation of 
 Actions, 51. 
 
 Effect of, on Running of Limitations, see 
 Limitation of Actions, 91, 186. 
 
 To Insure Mortgaged Property, see Mort- 
 gage, 49, 86. 
 
 Adoption of, by Mortgagee Suing Mortga- 
 gor's Grantee, see Mortgage. 219. 
 
 By City to Keep Highway Open, see Munici- 
 pal Corporations, 293. 
 
 Pleading in Action on, see Pleading, 286, 287. 
 
 By Husband to Surrender Marital Rights, 
 see Release, 1. 
 
 Notice of, from Record, see Real Property, 
 II. d. 
 
 Recovery Back by Covenantee of Amount of 
 Encumbrance -Paid, see Trial, 572. 
 
 I. Construction and Effect Generally, 
 a. In General. 
 
 Covenants Running with the Land, see infra, 
 III. 
 
 By Assignee of Land Contract, see Con- 
 tracts, 350a. 
 
 To Assume Obligations of Corporation, see 
 Corporations, 65. 
 
 Distinction Between Covenant and Condi- 
 tion, see Deeds, 40-43. 
 
 By Indian, see Indians, 10. 
 
 For Editorial Notes, see infra, V. 1. 
 
 1. It seems that a covenant under seal by 
 a life tenant having power to dispose of the 
 remainder of the estate by will, to refrain 
 from disposing of a portion of such remain- 
 der upon consideration that the will grant- 
 ing the power shall not be contested, is en- 
 forceable. Wood v. Bullard, 151 Mass. 324, 
 25 N. E. 67, 7 : 304 
 
 2. An obligation to pay a portion of the 
 expense of the repairs to a dam is not creat- 
 ed by a stipulation in a deed that a grantee 
 shall pay a part of the sums which have to 
 be paid for flowage or damages to proprie- 
 tors of lands above the dam. Whittenton 
 Mfg. Co. v. Staples, 164 Mass. 319, 41 N. E. 
 441, 29: 500 
 
 3. The fact that the amount of a judg- 
 ment was determined by agreement will not 
 take the judgment out of the protection of a 
 covenant to indemnify the defendant against 
 liability upon the claim on which the judg- 
 ment is taken, although it will reduce the 
 judgment from conclusive to presumptive 
 evidence of the liability. Kansas City, M. & 
 B. R. Co. v. Southern Railway News Co. 
 151 Mo. 273, 52 S. W. 205, 45: 380. 
 
 4. The support of an incompetent person 
 who has always lived on a certain farm, to 
 
 which a vendee of a farm binds himself by a 
 declaration of trust to apply the net rent* 
 of the farm, or the interest on the purchase 
 price if it should be sold, and which is made 
 a first lien on the farm in case of sale there- 
 of, is not limited to support on the farm, 
 where there is nothing in the declaration to 
 show that intent. McArthur v. Gordon, 126 
 N. Y. 597, 27 N. E. 1033, 12: 667 
 
 5. A covenant by a married man to sur- 
 render, convey, and transfer to his wife and 
 her heirs all his right in certain lands of the 
 wife, which he had acquired by his marriage, 
 the wife to have full and absolute control 
 and possession of all such land free and dis- 
 charged of all rights, claims, or demands of 
 the husband, requires him not to disturb his 
 wife's enjoyment while she keeps her proper- 
 ty, to execute any instrument necessary in 
 order to release his right if she conveys, and 
 to claim no right on her death, but to do 
 whatever is necessary to clear the title from 
 such rights at that time. Poison v. Stewart, 
 167 Mass. 211, 45 N. E. 737, 36: 771 
 
 6. A covenant by one selling a business, 
 that she, her father, husband, and brother- 
 in-law will refrain from communicating a 
 secret recipe used in the business to anyone 
 but the buyer, and from using trademarks 
 connected with the business, under a penalty 
 of $5,000 named as stipulated damages in 
 case of a violation of the covenant within 
 five years, does not limit her liability for 
 such uamages to her own personal violation 
 of the covenant, but extends it to a violation 
 by any of the persons named. Tode v. 
 Gross, 127 N. Y. 480, 28 N. E. 469, '13: 652 
 Mutuality. 
 
 See also infra, 68, 69. 
 
 7. The mutuality of covenants of adjoin- 
 ing lot owners may constitute a sufficient 
 consideration for their respective grants of 
 easements. Barr v. Lamaster, 48 Neb. 114, 
 66 N. W. 1110, 32:451 
 
 8. A covenant for a party wall, expressly 
 made to run with the land, will not be held 
 invalid for lack of mutuality because it ap- 
 pears to have been executed by one of the 
 parties only, who is defendant's predecessor 
 in title, where it recites its making by both, 
 and there is proof that a wall was erected by 
 the other party and was acquiesced in, and 
 that conveyances were made subject to the 
 agreement. Mott v. Oppenheimer, 135 N. Y. 
 312, 31 N. E. 1097, 17:409 
 Implied covenants. 
 
 In Lease, see Landlord and Tenant, II. d, 2. 
 
 See also infra, 46, 82. 
 
 For Editorial Notes, see infra, V. 2. 
 
 9. At common law a covenant of seisin is 
 not implied in a deed of real property by the 
 use of the operative words "grant, bargain, 
 sell, convey, and warrant." Aiken v. Frank- 
 lin, 42 Minn. 91, 43 N. W. 839, 6: 360 
 
 10. No implied covenant arises out of a 
 recital of facts, or out of the use of 
 words of conveyance, in a quitclaim deed, 
 in the absence of fraud or intentional mis- 
 representation, where the terms of the deed 
 taken together show that the instrument is 
 in its essence a quitclaim with no warranty 
 intended except as against the grantors and
 
 COVENANT, I. b. 
 
 885 
 
 tieir evwa acts. McDonough v. Martin, 88 
 Ga. 675, 13 S. E. 59, 18: 343 
 
 11. A oaveyaee f lots to a railway com- 
 pany, "for railway purposes," is not to be 
 construed as covenanting that the street on 
 which the lots abut, to the center line there- 
 of, may be used for such purposes while it 
 remains a street, so as to interfere with any 
 easement constituting a private right of 
 property which the grantor may have there- 
 in, appurtenant to other property abutting 
 on the same street. Lamm v. Chicago, St. 
 P. M. & O. R. Co. 45 Minn. 71, 47 N. W. 455, 
 
 10: 2G8 
 Warranty. 
 In Deed of Trees, see Deeds, 32. 
 
 12. The state is within the terms of a 
 warranty of the title to real estate against 
 "all persons whatsoever." West Coast Mfg. 
 & I. Co. v. West Coast Improv. Co. 25 Wash. 
 627, C6 Pac. 97, 62: 763 
 
 13. A general covenant of warranty in a 
 deed of a tract of land will extend to tide 
 lands visibly within the limits of the grant, 
 the paramount title to which at the time ot 
 the grant is in the state, and the insertion 
 of the words "together with the littoral, 
 riparian, and shore rights" and "the tene- 
 ments, hereditaments, and appurtenances 
 thereunto belonging," does not refer to such 
 rights merely as pertain to the upland. Id. 
 
 14. The insertion in a deed of a tract of 
 land which includes within its limits tide 
 lands belonging to the state, of the clause, 
 "and also the estate, right, title, and inter- 
 est at law and in equity therein and there- 
 to," does not restrict the covenant of war- 
 ranty to the right, title, and interest which 
 the grantor actually has. Id. 
 
 15. A covenant of warranty of title in a 
 deed conveying a tract of land on which Is 
 situated a mill and dam embraces an ease- 
 ment as to ponded water occasioned by such 
 dam or back water therefrom, on an ad- 
 joining tract of land of another person, and 
 like easements necessary and incident to the 
 free use and beneficial enjoyment of the 
 mill and dam conveyed, although such ease- 
 ments are not expressly mentioned in the 
 deed.' Bowling v. Burton, 101 N. C. 176. 7 
 S. E. 701, 2: 285 
 
 16. An estate to which the" husband's cov- 
 enant of warranty can attach is transferred 
 where 'he joins with his wife in a deed of 
 land of which neither has a valid title in 
 fact, although she has color of title, of which 
 he is in possession while his wife occupies 
 the premises with aim, and on their joint 
 conveyance he delivers the possession to the 
 grantee, and shares in the purchase money, 
 especially where his covenant is not only 
 with the grantee, but with her "heirs and 
 assigns," Mygatt v. Coe, 142 N. Y. 78, 36 
 N. E. 870, 24: 850 
 As to encumbrances and assessments. 
 Parol Evidence as to Encumbrance, see Evi- 
 dence, 1079, Iil6. 
 
 For Editorial Notes, see infra, V. 4. 
 
 17. A covenant against encumbrances cov- 
 ers encumbrances unknown to the purchas- 
 er, as well as those known. Burr v. La- 
 master, 30 Neb. 688, 46 N. W. 1015, 9: 637 
 
 18. A full covenant deed protects the 
 grantee against an easement which is open, 
 visible, and well-known at the time of the 
 conveyance, except in the case of a highway. 
 Huyck v. Andrews, 113 N. Y. 81, 20 N. E. 
 581, 3:789 
 
 19. An encumbrance, within the terms of 
 a covenant against encumbrances, includes 
 "every right to or interest in the land, to the 
 diminution of the value of the land, but con- 
 sistent with the passage of the fee by the 
 conveyance." 
 
 20. A parol agreement under which a ten- 
 ant is in possession of land is an encum- 
 brance covered by a covenant "against all 
 encumbrances whatever." Edwards v. Clark, 
 83 Mich. 246, 47 N. W. 112, 10: 659 
 
 21. Where a person purchases a vacant lot 
 which supports the half of the wall of the 
 building erected on the adjoining lot, and 
 such purchaser is, by the terms of a previous 
 party-wall agreement entered into by his 
 grantor, obliged to pay a part of the costs 
 of the wall in order to use it, such agree- 
 ment and wall constitute an encumbrance. 
 Burr v. Lamaster, 30 Neb. 688, 46 N. W. 
 1015, 9: 637 
 
 21a. A contract to convey land free and 
 clear from all encumbrances does not require 
 the vendor to pay assessments thereafter 
 made for local improvements in advance of 
 the execution of the work, as such assess- 
 ments, although encumbrances in a strict 
 sense, are not emcumbrances contemplated 
 by the contract. Gotthelf v. Stranahan, 138 
 N. Y. 345, 34 N. E. 286, 20: 455 
 
 22. Sewer and street-grading assessments 
 are not within the terms of a covenant in a 
 mining lease obligating the lessee to pay 
 "all United States, state, and local taxes, 
 duties, and imposts" on the property. Pette- 
 bone v. Smith, 150 Pa. 118, 24 Atl. 693, 
 
 17: 423 
 
 23. The right of a municipality to reas- 
 sess the cost of a street improvement upon 
 abutting property after an assessment is set 
 aside as in contravention of the charter is 
 within a covenant against encumbrances 
 in a conveyance of the property, made sub- 
 sequent to the improvement. Green v. Tid- 
 ball, 26 Wash. 338, 67 Pac. 84, 55: 879 
 
 24. A provision in a municipal charter, 
 that assessments for street improvements 
 shall become encumbrances on abutting 
 property only after the roll is placed in the 
 treasurer's hands for collection, does not 
 control in determining liability upon a cov- 
 enant against encumbrances in a conveyance 
 of abutting property, made after an im- 
 provement for which it is subject to assess- 
 ment has been completed. Id. 
 
 b. Restricting Use of Property. 
 
 In Dedication, see Dedication, 6. 
 
 Release from Restrictions, see Easements, 
 
 100. 
 Restrictions by Condition Subsequent, see 
 
 Real Property, 9-17, 19, 33-35. 
 For Editorial Notes, see infra, V. 3. 
 
 25. Restrictions and prohibitions as to the 
 use of real property by the grantee should
 
 886 
 
 COVENANT, I. b. 
 
 generally be resolved in favor of the free 
 use of the propertv. Hutchinson v. Ulrich, 
 145 111. 336, 34 N. E. 556, 21 : 391 
 
 26. A change of circumstances cannot be 
 considered on a petition at law under the 
 statute to ascertain the limits of a restric- 
 tion in a deed, as equitable ground for not 
 enforcing it. Welch v. Austin, 187 Mass. 
 256. 72 N. E. 972, 68: 189 
 
 27. A condition in a deed of a small parcel 
 of land that no grain shall ever be handled 
 on the land granted, which contains no fa- 
 cilities for handling grain at the time of the 
 grant, is not unreasonable or contrary to 
 public policy. Wakefield v. Van Tassell. 202 
 111. 41, 66 N. E. 830, 65: 511 
 As to Building. 
 
 Other Restrictions as to Buildings, see Build- 
 ings, 46, 47. 
 
 In Dedication, see Dedication, 24. 
 
 Against Obstructing View, see Easements, 
 56, 57. 
 
 Creation of Conditional Fee by Restriction 
 as to, see Real Property. 34. 
 
 See also infra, 47, 56. 57, 63, 114. 
 
 28. A provision in a deed that the building 
 to be erected on the granted premises shall 
 correspond to the building on the adjoining 
 property of the grantor cannot prolong the 
 duration of the restriction beyond the exist- 
 ence of the house so built, merely because 
 the building on the adjoining property con- 
 tinues to exist. Welch v. Austin. 187 Mass. 
 256, 72 N. E. 972, 68: 189 
 
 29. A provision in a deed restricting build- 
 ing on a lot to "a single dwelling" must be 
 construed to mean a single building used for 
 a dwelling, and does not prevent tue build- 
 ing of a flat or apartment house thereon to 
 be occupied by more than one family. 
 Hutchinson v. Ulrich, 145 111. 336, 34 K E. 
 556, 21: 391 
 
 30. A modern apartment house is not 
 within a covenant against the erection, upon 
 certain premises, of a tenement house, which 
 was made at a time when that term referred 
 to the habitations of the very poor, and was 
 associated in the contract with other things 
 that were obviously noxious, noisome, or 
 deleterious. Kitching v. Brown, 180 N. Y. 
 414, 73 N. E. 241, 70: 742 
 
 31. A covenant that the "house" on a lot 
 conveyed "shall be forever hereafter restrict- 
 ed from having any building or part of a 
 building attached to the said messuage 
 thereon erected" more than ten feet high is 
 not limited to the house or building then 
 existing on the land. Landell v. Hamilton, 
 175 Pa. 327, 34 Atl. 663, 34: 227 
 
 32. A provision in a lease, that the lessee 
 shall not build at the rear of the premises 
 nearer than 25 feet, is not violated by 
 building on one side of the premises, extend- 
 ing beyond the rear wall of the old building 
 but not extending in the rear of the leased 
 premises. Keating v. Springer, 146 111. 481, 
 34 N. E. 805, 22: 544 
 
 33. A lease providing that the lessee "shall 
 not build at the rear of said premises nearer 
 than 25 feet, and no obstruction higher than 
 6 feet shall be placed in such manner as to 
 obstruct light to said premises," prohibits 
 
 any obstruction higher than 6 feet in any 
 direction from said premises, which wouia 
 obstruct light to them. Id. 
 
 34. A reservation in a deed, of the "free 
 use of light and air," and the right to put 
 windows in a building overlooking all the 
 tract if a building is erected on the common 
 line, with the further provision giving the 
 right to both parties to use a party wall for 
 a distance of 24 feet from the street, has the 
 effect to prohibit the grantee from building 
 on the premises conveyed more than 24 feet 
 from tne street. Hagerty v. Lee (N. J. Err. 
 & App.) 54 N. J. L. 580, 25 Atl. 319, 20: 631 
 
 35. A basement surmounted by a balcony 
 is not a "usual projection" in Boston, within 
 the meaning of a deed requiring the front 
 wall of a building to be set back 20 feet from 
 the street, but allowing steps, windows, por- 
 ticos, and other usual projections appurte- 
 nant to such front wall within certain re- 
 served spaces, especially where bay win- 
 dows and circular or octagon fronts are ex- 
 pressly restricted within definite limits. At- 
 torney General v. Algonquin Club, 53 Mass. 
 447, 27 N. E. 2, 11:500 
 
 36. Under a provision in a deed that no 
 bay window, circular, or octagon front, shall 
 be built within 20 feet of the street, unless 
 its horizontal section would fall within a 
 trapezoid whose base on the front wall is 
 not more than seven tenths of the front of 
 the bunding or more than 18 feet in any 
 case, and whose side lines make an angle of 
 45 degrees with the base: and that each 
 house in tne block shall be considered a sep- 
 arate building within the meaning of the 
 limitation, the trapezoids of different bay 
 windows cannot overlap each other, or the 
 sum of their bases exceed seven tenths of 
 the whole front of the building; but the 
 bases of such trapezoids may overlap upon 
 a portico or balcony. Id. 
 
 37. A merely personal right, and not an 
 easement appurtenant, was created by an 
 express condition in a deed that the grantee, 
 his heirs and assigns, should never erect a 
 building nearer the street than the one then 
 standing, where the grantor, who then occu- 
 pied adjoining premises as a homestead, was 
 an invalid, who usually sat at a window 
 from which he had a good view of the street, 
 and he had declared during the negotiations 
 that he did not wish his view of the street 
 from that window cut off, and should have 
 a clause in the deed to prevent it. Clapp v. 
 Wilder, 176 Mass. 332, 57 N. E. 692, 50: 120 
 
 38. Provisions in a deed that the house 
 shall set back a certain distance from the 
 street, and not extend beyond a specified 
 depth, so as to correspond to grantor's ad- 
 joining house, and that the elevation, mate- 
 rial, and plan shall also correspond to such 
 house so as to form one building, are not 
 personal to the parties, but apply in favor 
 of their successors in title so long as the 
 house first built on the granted premises 
 stands. Welch v. Austin, 187 Mass. 256, 72 
 N. E. 972, 68: 189 
 
 39. The following clause in a deed "Pro- 
 vided always, and these presents arc upon 
 this express condition," that no part of the
 
 COVENANT, II. a, b. 
 
 887 
 
 granted premises shall ever be used or occu- 
 pied as a tavern, will be construed as a 
 covenant running with the land, and not as 
 a condition subsequent subjecting the estate 
 to forfeiture, when no right to re-enter is 
 reserved, where no such interest appears to 
 have existed in the grantors as demanded or 
 made important the reservation of such a 
 condition, and the obvious and only purpose 
 of its insertion was to protect the adjacent 
 property, and where it appears that the of- 
 fice of the clause is simply to restrain the 
 generality of the preceding clause. Post v. 
 Weil, 115 N. Y. 361, 22 N. E. 145, 5: 422 
 
 40. A condition in a deed that the land 
 shall not be used or occupied as a tavern 
 will be construed as a restriction created 
 for the benefit of the adjoining property, en- 
 forceable as a covenant running with the 
 land, and not as being a condition subse- 
 quent, imposed for the personal benefit of 
 the grantors and their heirs. Id. 
 
 41. An undertaking establishment in 
 which human dead bodies are prepared for 
 burial or other sepulture, and sometimes 
 subject to embalming and post-mortem ex- 
 amination, is a business "injurious or offen- 
 sive to the neighboring inhabitants," within 
 the terms of a restrictive agreement, al- 
 though it may not constitute a legal nui- 
 sance. Rowland v. Miller, 139 N. Y. 93, 34 
 N. E. 765, 22: 182 
 
 II. Breach; Enforcement; Who Liable, 
 
 
 a. In General. 
 
 Joining Claim for Reformation with one for 
 Breach, see Action or Suit, 97. 
 
 When Liability Accrues, see Bankruptcy, 31. 
 
 Damages for Breach, as Fixed Liability, see 
 Bankruptcy, 33. 
 
 Measure of Damages for Breach, see Dam- 
 ages, 8, 9. 114-119. 653. 
 
 Estoppel to Rely on Breach, see Ejectment, 
 31. 
 
 Burden of Showing Surrender to Paramount 
 Title, see Evidence, 729. 
 
 Evidence to Show Breach, see Evidence, 865. 
 
 Evidence as to Damages by Breach, see Evi- 
 dence, 2035. 
 
 Recovery for Improvements on Breach of, 
 see Improvements, 9. 
 
 Remedy of Covenant in Lease, see Landlord 
 and Tenant, 14. 
 
 Running of Limitations in Case of, see Limi- 
 tation of Actions. 132, 133, 205. 
 
 Striking out Allegations in Action for 
 Breach, see Pleading, 174. 
 
 For Editorial Notes, see infra, V. 3, 7. 
 
 42. Payment of taxes after they would 
 have been barred except for suits instituted 
 therefor, and after the suits have been de- 
 layed so long as to defeat the lien acquired 
 by them, does not entitle a grantee to re- 
 cover on covenants of warranty and against 
 encumbrances. Robinson v. Bierce, 102 
 Tenn. 428, 52 S. W. 992, 47 : 275 
 
 43. It is not sufficient for t>he enforcement 
 in equity of a covenant that it affects the 
 
 use of the land or its mode of enjoyment in 
 a collateral way, but it must relate to or 
 concern the land or its use. Kettle River 
 R. Co. v. Eastern R. Co. 41 Minn. 461, 43 N. 
 W. 469, 6: 111 
 
 44. No damages can be recovered for 
 breach of- a covenant of warranty in a deed 
 given in consideration of love and affection, 
 under a statute limiting the recovery in 
 case of breach of covenants of warranty to 
 the amount of purchase money paid, with 
 interest thereon. McClure v. Melton, 34 S. 
 C. 377, 13 S. E. 615, 13: 723 
 Waiver of breach; loss of right to enforce. 
 
 45. Failure to complete construction work 
 as soon as possible, if a breach of the cove- 
 nant for its performance, is waived by pro- 
 ceeding against the covenantor for failure 
 to replace and complete the work after the 
 building has been destroyed by fire. Krause 
 v. Crothersville School Trustees, 162 Ind. 
 278, 70 N. E. 264, 65:111 
 
 46. The right of action against a grantee 
 in a deed poll, for breach of his implied un- 
 dertaking to perform a condition contained 
 in the deed, such as maintaining fences, is 
 extinguished on his conveyance of the fee 
 to another. Hickey v. Lake fcshore & M. S. 
 R. Co. 51 Ohio St. 40, 36 N. E. 672, 
 
 23: 396 
 
 47. Building along the division line and 
 partly on each lot a solid wall higher than 
 a covenant allows the servient owner to build, 
 will prevent the dominant owner, who builds 
 it, from enforcing the covenant in equity as 
 to the space below the top of the wall, but 
 will not absolutely terminate the covenant. 
 Landell v. Hamilton, 175 Pa. 327, 34 Atl. 
 663, 34: 227 
 Conditions precedent to enforcement. 
 
 48. Tender back of the consideration mon- 
 ey is not a prerequisite to re-entry for con- 
 dition broken, under the deed authorizing 
 such re-entry on failure to perform the con- 
 dition. Bouvier v. Baltimore & N. Y. R. Co. 
 (N. J. Err. & App.) 67 N. J. L. 281, 51 Atl. 
 781, 60: 750 
 Necessary provisions in decree for breach. 
 
 49. Restoration of possession is an indis- 
 pensaole ingredient of a decree in equity in 
 favor of a vendee for breach of a covenant 
 of seisin made by an outstanding contingent 
 remainder, where his deed gave him at least 
 a life estate, and he has had the benefit of 
 possession. Brannon v. Curtis, 98 Tenn. 153, 
 38 S. W. 107 5 3 69: 760 
 
 b. What Constitutes a Breach. 
 
 For Editorial Notes, see infra, V. 1. 
 
 50. A covenant against encumbrances is 
 broken at the instant a conveyance is made, 
 hv an outstanding ensement of any kind. 
 Huyck v. Andrews, 113 N. Y. 81, 20 N. E. 581, 
 
 3: 789 
 Eviction. 
 
 Eviction of Tenant, see Landlord -and Ten- 
 ant, 73. 
 See also infra, 62, 81. 
 
 51. An eviction, either actual or construc- 
 tive, is necessary before a cause of action
 
 888 
 
 COVENANT, II. c, 1. 
 
 arises on a covenant of warranty. Wight v. 
 Gottschalk (Tenn. Ch.) 48 S. W. 140, 
 
 43: 189 
 
 52. A judgment against a covenantee in 
 possession upon foreclosure of a lien created 
 prior to the covenant, rendered after notice 
 to the warrantor to appear and defend, is 
 a constructive eviction giving a right of ac- 
 tion upon the covenant. Collier v. Cowger, 
 62 Ark. 322, 12 S. W. 702, 6: 107 
 
 53. An eviction constituting a breach of 
 warranty of title to real estate is effected 
 by the assertion of paramount title by the 
 state, which the covenantee is compelled to 
 purchase to save improvements which he has 
 placed on the land. West Coast Mfg. & I. 
 Co. v. West Coast Improv. Co. 25 Wash. 
 627, 66 Pac. 97, 62: 763 
 
 54. To constitute a breach of a covenant 
 for quiet enjoyment (or warranty, which is 
 in fact equivalent), there must be a union 
 of acts of disturbance and lawful title. 
 Barry v. Guild, 126 111. 439, 18 N. E. 759, 
 
 2: 334 
 
 55. Testimony of a person that he "saw 
 evidence of the possession of the third party 
 in the shape of a derrick and tool-house sit- 
 uated on the land, operated by a stone com- 
 pany," where it does not show whether the 
 stone company had or claimed possession of 
 1 acre or 20, or that it claimed to hold under 
 lawful title; and testimony of the vendee's 
 agent, "that he never could get possession," 
 without stating what efforts were made; 
 where it does not appear that any of the 
 land is occupied except by the derrick and 
 tool-house, is not sufficient to show a 
 breach of covenant of quiet enjoyment of a 
 tract of 20 acres of land. Id. 
 Restrictions as to use of property. 
 Restrictions in Dedication of Land, see Ded- 
 ication, 6. 
 
 See also supra, 32, 47 ; infra, 63-65. 
 
 56. An "apartment house," constructed for 
 residence purposes only, is not a breach of a 
 condition in a deed against using the prop- 
 erty except for "residence purposes." Mc- 
 Murtry v. Phillips Invest. Co. 103 Ky. 308, 
 45 S. W. 96, 40: 489 
 
 57. A covenant in a conveyance of land for 
 a college campus, that it shall be devoted ex- 
 clusively as a part of the campus, and that 
 no buildings shall be erected thereon except 
 those devoted to university purposes, is not 
 broken by the placing thereon of lumber, 
 tools, sheds, derricks, engines, and oil tanks 
 for the exploration for oil supposed to be 
 beneath the surface, where such occupation 
 will probably be of a temporary character, 
 even if oil is found, and the general pur- 
 poses of the grant may be materially ad- 
 vanced by the pecuniary results of the de- 
 velopment. Los Angeles University v. 
 Swarth, 46 C. C. A. 647, 107 Fed. 798, 
 
 54: 262 
 
 c. Who May Enforce. 
 1. In General. 
 
 Remote Grantee, see Husband and Wife, 130. 
 Liability to Contribute as Affecting Right 
 of Action, see Parties, 27. 
 
 See also Parties, 65. 
 
 For Editorial Notes, see infra, V.' 7. 
 
 58. A vendee can claim the benefit of no 
 covenants contained in the deed to his ven- 
 dor except such as attach to and run witlh 
 the land, namely, for quiet enjoyment and 
 warranty. Barry v. Guild, 126 111. 439, 18 
 N. E. 759, 2: 334 
 
 59. The covenant of seisin, if broken at all, 
 is broken when made, and becomes a non- 
 assignable chose in action upon which no one 
 can sue but the grantee or his personal rep- 
 resentative. Clement v. National Bank of 
 Rutland, 61 Vt. 298, 17 Atl. 717, 4: 425 
 
 60. Where a man who has made a deed 
 with covenants, intending that an undivided 
 part of the land conveyed should be hem 
 merely as security, obtains from a subse- 
 quent grantee a deed of such undivided part, 
 made, at his request, to a stranger to the 
 former deeds, the latter deed has the same 
 legal effect as if made by the original gran- 
 tor himself; and the vendee therein is not 
 entitled to the benefit of any covenants con- 
 tained in the original deed by the grantor. 
 Barry v. Guild, 126 111. 439, 18 N. E. 759, 
 
 2: 334 
 
 61. 'JLhe reconveyance of land deeded with 
 a covenant of warranty by way of mortgage 
 containing like covenants will not prevent 
 an action on the original covenants in favor 
 of one who purchases at the foreclosure sale. 
 Wiggins v. Pender, 132 N. C. 628, 44 S. E. 
 362, 61 : 772 
 
 62. If a covenant of warranty is broken 
 by eviction before grantee conveys, and the 
 assignor is liable to the assignee, and dis- 
 charges that liability before suit brought, 
 the assignor may maintain an action upon 
 the covenant. Clement v. National Bank of 
 Rutland, 61 Vt. 298, 17 Atl. 717, 4: 425 
 Restrictions on use of property. 
 
 By Injunction, see Injunction, 104, 105. 
 See also Specific Performance, 36. 
 
 63. A covenant with a grantor to a pur- 
 chaser of one of several lots in a tract, bind- 
 ing tne grantor to include certain building 
 restrictions in deeds of the other lots, inures 
 to the benefit of subsequent purchasers of 
 such lots, and entitles them to enforce such 
 building restrictions against one of such 
 grantees who violates them. Hutchinson v. 
 Ulrich, 145 111. 336, 34 N. E. 556, 21: 391 
 
 64. A restriction as to the building line, 
 inserted in a deed, cannot inure to the bene- 
 fit of a prior grantee of another lot on the 
 same street, which is conveyed subject to the 
 same restriction, when the grantor did not 
 impose any servitude upon the land he re- 
 tained and the restrictions were not part of 
 a general plan or scheme for the benefit of 
 all the purchasers. Summers v. Beeler, 90 
 Md. 474, 45 Atl. 19, 48: 54 
 
 65-67. A genera] plan or scheme for the 
 benefit of all the purchasers of lots sold on 
 the same street as shown by a recorded plat 
 does not appear from the fact that most of 
 the lots are sold subject to the same re- 
 striction as to building line, where no re- 
 strictions are shown by the plat, and none 
 are imposed on some of the lots that are
 
 COVENANT, II. c, 2, d, 1. 
 
 889 
 
 first sold, while purchasers of some of the 
 other lots have violated the restrictions up- 
 on them, and such violations have not been 
 resisted by other purchasers. Id. 
 
 2. Covenants Running with the Land. 
 
 Subsequent grantees. 
 
 68. Privity of contract alone is insufficient 
 to carry to subsequent owners of the prop- 
 erty the benefit of a covenant of warranty 
 or of quiet enjovment. Mygatt v. Coe, 124 
 N. Y. 212, 26 N. E. 611, 11:646 
 
 69. Privity of estate, within the meaning 
 of the feudal law, mutuality, need not ex- 
 ist between covenantor and covenantee or 
 his successors in interest, to carry a cove- 
 nant of warranty to subsequent i grantees; 
 but, unless there is either mutuality or suc- 
 cession of interest, this covenant will not 
 run with the land. Id. 
 
 70. A remote grantee connected with the 
 immediate grantee by an unbroken chain of 
 warranty deeds has all the rights of the 
 latter to sue the original grantor for the re- 
 moval from the real estate of a barn which 
 passed under the original deed. Leonard v. 
 Clough, 133 N. Y. 292, 31 N. E. 93, 
 
 16: 305 
 
 71. A conveyance of real estate by one 
 who has acquired no title and has never been 
 in possession, to another who does not take 
 possession, will not carry the covenants in 
 the deeds from remote grantors to subse- 
 quent purchasers from such grantee. Wal- 
 lace v. Pereles, 109 Wis. 316, 85 N. W. 371, 
 
 53: 644 
 
 72. Covenants of warranty and of quiet 
 enjoyment, entered into jointly by the owner 
 of the fee and her husband, who is a stran- 
 ger to the title, do not run with the land as 
 against him, and are not available against 
 him in favor of a subsequent grantee who 
 holds no assignment of the cause of action 
 arising from the breach. Mygatt v. Coe, 124 
 N. Y. 212, 26 N. E. 611, 11:646 
 
 73. A covenant of general warranty of 
 title, in a deed of marked trees described as 
 standing on certain land on which a lien is 
 given to secure the warranty, though some 
 of the trees are in fact on other land, is not 
 a covenant running with the trees, on which 
 the grantor will be liable to a subsequent 
 purchaser by deed from^the grantee. Asher 
 Lumber Co. v. Cornell, 22 Ky. L. Rep. 569, 
 58 S. W. 438, 56: 672 
 
 74. A stipulation in a deed of land to a 
 railroad company, that the company shall 
 construct and maintain a fence along its 
 right of way where land is used solely for 
 pasturage and enclosed on the other side, so 
 long as it is used exclusively for pasturage, 
 is not a covenant running with the land, and 
 cannot be enforced by a subsequent owner of 
 such land. Gulf. C. & S. F. R. Co. v. Smith, 
 72 Tex. 122, 9 S. W. 865, 2: 281 
 
 75. Where the right to the use of the 
 waters of a stream is fixed by a covenant be- 
 tween the riparian owners, made for the 
 benefit of their respective heirs or grantees, 
 the fact that a subsequent grantee is the 
 grantee of a part only of the lands of one 
 
 of the parties to which the covenant is ap- 
 plied does not impair his rights under the 
 covenant as a riparian owner. Horn v. Mil- 
 ler, 136 Pa. 640, 20 Atl. 706, 9: 810 
 Assignees. 
 
 76. A promise by an adjoining lot owner 
 to the builder of a party wall, to compensate 
 him for the use thereof, is personal to the 
 promisee, and not a covenant running with 
 his land; and where the builder's lot is con- 
 veyed to one party, and the party-wall 
 agreement assigned to another, the latter is 
 entitled to the sum due under such agree- 
 ment. Cook v. Paul, 4 Neb. (Unof.) 93, 93 
 N. W. 430, 66: 673 
 
 77. An assignee is not deprived of the ben- 
 efit of a covenant of warranty in a convey- 
 ance of real estate by the fact that he is 
 not named in the covenant, if assigns are 
 named in the habendum ' clause of the deed. 
 Wiggins v. Pender, 132 N. C. 628, 44 S. E. 
 362, 61:772 
 
 78. Assignees of one who has taken a 
 deed to real estate with covenant of warran- 
 ty which does not include assigns cannot 
 rely on the covenant to prevent the original 
 grantor from reclaiming the land because of 
 the invalidity of his grant; at least they 
 cannot if there was no assignment of the 
 benefit of the covenant to them. Smith v. 
 Ingram, 130 N. C. 100, 40 S. E. 984, 61: 878 
 
 79. A covenant by a lessee of a part of a 
 railroad right of way for warehouse pur- 
 poses, binding him to hold the lessor harm- 
 less for losses, by whomsoever claimed, aris- 
 ing out of the destruction of property on 
 the leased premises by fires set by the les- 
 sor's negligence, with a stipulation that the 
 covenant shall be binding upon the assigns 
 of both parties, will pass to a transferee of 
 the railroad property and of the lease, so 
 as to give the latter the same right to en- 
 force the covenant which the original lessor 
 had. Northern P. R. Co. v. McClure, 9 N. D. 
 73,81 N. W. 52, 47: 149 
 Purchasers at judicial sale. 
 
 80. Purchasers at a foreclosure sale are 
 in privity with the mortgagor's grantor so 
 as to be able to maintain an action against 
 him for breach of the covenants in his deed. 
 Mygatt v. Coe, 142 N. Y. 78, 36 N. E. 870. 
 
 24: 850 
 
 81. A purchaser of lands at a judicial sale, 
 although receiving no covenants of warranty, 
 may maintain an action upon the covenants 
 in the deed to the person for whose liability 
 the property was sold, in case of an eviction 
 by title paramount. Thomas v. Bland, 91 
 Ky. 1, 14 S. W. 955, 11: 240 
 
 d. Who Liable or Bound. 
 1. In General. 
 
 On implied covenant. 
 
 82. A grantor is personally bound by cov- 
 enants implied, under the Missouri statute, 
 by the use of the words "bargain and sale 
 and grant" in a deed assuming to convey in 
 tier own right and as guardian, where she 
 had no authority to make the conveyance. 
 Foote v. Clark, 102 Mo. 394, 14 S. W. 981. 
 
 11: 861
 
 890 
 
 COVENANT, II. d, 2. 
 
 Administrator of covenantor. 
 
 83. That no real assets had descended to 
 the heirs of one who warranted the title to 
 real estate will not prevent the recovery of 
 a judgment against his administrator for 
 breach of the covenant. Wiggins v. Fender, 
 132 N. C. 628, 44 S. E. 362, 61:772 
 
 2. Covenants Running with the Land. 
 
 Covenantor. 
 
 See also supra, 72. 
 
 84. An action for reformation of a deed 
 as to the description of the property, as well 
 as for damages for breach of covenant, of 
 warranty, may be brought against the re- 
 mote grantor who conveyed to plaintiif's 
 grantor with the same covenants that were 
 contained in the plaintiff's deed. Butler v. 
 Barnes, 60 Conn. 170, 21 Atl. 419, 12: 273 
 Grantee. 
 
 85. The intention of the parties to a cov- 
 enant respecting real property is the control- 
 ling element in determining at least on a 
 bill of equity whether or not the covenant 
 shall bind subsequent owners of the proper- 
 ty. Bald Eagle Valley R. Co. v. Nittany 
 Valley R. Co. 171 Pa. 284, 33 Atl. 239, 
 
 29: 423 
 
 86. A covenant or stipulation inserted in 
 a deed poll binds the grantee, his heirs, 
 and assigns, where it relates to the prem- 
 ises conveyed. Hagerty v. Lee (N. J. Err. 
 & App.) 54 N. J. L. 580, 25 Atl. 319. 
 
 20: 631 
 
 87. Covenants relating to land or its mode 
 of use or enjoyment may be enforced 
 against grantees with notice, although there 
 is no privity of estate, and although they 
 are not such as, in strict legal contem- 
 plation, run with the land. Kettle River R. 
 Co. v. Eastern R. Co. 41 Minn. 461, 43 X. 
 W. 469, 6: 111 
 
 88. Covenants in a deed of submerged land 
 between low-water mark and an established 
 dock line are binding upon subsequent gran- 
 tees of the upland from the same grantor. 
 Miller v. Mendenhall, 43 Minn. 95, 44 N. W. 
 1141, 8: 89 
 
 89. A covenant on the part of a vendor of 
 land, which forms part of the consideration 
 of the grant, to open a way through an- 
 other tract which he does not at the time 
 own, but contemplates purchasing, does not 
 run with the latter tract after it comes into 
 possession of the vendor; and it cannot, 
 therefore, be enforced against his grantee. 
 Houston v. Zahm, 44 Or. 610, 76 Pac. 641, 
 
 65: 799 
 
 90. A personal covenant on the part of a 
 landowner to locate a way across the land 
 is not binding upon his grantee without no- 
 tice. Id. 
 
 91. A covenant to repair a roof, made by 
 a reversioner alone without the joinder 
 therein of a life tenant, although both join 
 in conveying part of the building covered 
 by the roof, does notirun with the life es- 
 tate, and therefore so long as the life es- 
 tate is outstanding their subsequent gran- 
 tees under joint conveyances of other por- 
 tions of the building hold possession under 
 the life estate so that the covenant of the re- 
 
 versioner does not operate upon them, and 
 the charge upon them for the maintenance 
 of the roof can be only for an equitable 
 share of the cost. Rochester Lodge No. 21, 
 A. F. & A. M. v. Graham, 65 Minn. 457, 68 
 N. W. 79, 37:404 
 
 92. An undertaking of a grantee in a deed 
 poll to perform a condition therein ex- 
 pressed, such as to maintain fences, will run 
 with the land and become obligatory upon 
 subsequent purchasers. Hickey v. Lake 
 Shore & M. S. R. Co. 51 Ohio St. 40, 36 N. E. 
 672, 23: 396 
 
 93. A covenant in a deed to a railroad 
 company, by which the grantors agree to 
 build a fence along the railroad, "or not hold 
 such railroad responsible for any damage 
 done to stock belonging to us," without any 
 mention of assigns, is personal to the grant- 
 ors, binding them only, and does not run 
 with the land. Brown v. Southern P. Co. 
 36 Or. 128, 58 Pac. 1104, 47:409 
 
 94. A purchaser of land through which a 
 railroad runs is not bound by his vendor's 
 agreement to fence the railroad, of which he 
 had no actual notice, and which was not re- 
 corded. Pittsburg, C. & St. L. R. Co. v. Bos- 
 worth, 46 Ohio St. 81, 18 N. E. 533, 2: 199 
 
 95. A purchaser, at a foreclosure sale, of 
 a railroad company's interest under a deed 
 granting it a right of way over certain 
 lands, in which is incorporated, as part of 
 the consideration therefor, an agreement by 
 the company to build a fence, is bound to 
 carry out the agreement : and its liability to 
 do so may be enforced by a subsequent 
 grantee of the fee in an action of covenant, 
 although the company merely accepted the 
 deed without acknowledging it. Midland R. 
 Co. v. Fisher, 125 Ind. 19, 24 N. E. 756, 
 
 8: 604 
 
 96. A covenant in a deed of land for a 
 railroad right of way, that certain trains 
 shall be run on the road to be built thereon, 
 which is the chief consideration of the con- 
 veyance, and in default of which for six 
 months a forfeiture is provided, is a cove- 
 nant running with the land, on which an ac- 
 tion may be maintained against a subse- 
 quent purchaser of the railroad who fails 
 to run such trains, notwithstanding the fact 
 that the covenant had been broken by the 
 original grantee before such transfer, and 
 although the covenant does not expressly 
 refer to assigns. Doty v. Chattanooga Union 
 R. Co. 103 Tenn. 564, 53 S. W. 944, 48: 160 
 
 97. An agreement by an adjoining owner 
 to pay for a share of a party wall when he 
 should have occasion to use it does not run 
 with the land, and does not bind a purchaser, 
 even if he has notice of it. Nalle v. Pajr.si 
 (Tex.) (Not to be Rep.) 9 S. W. 2055, 1: 33 
 
 98. A promise to pay a share of the cost 
 of a party wall when it is used, made by a 
 grantee for himself, his heirs, and assigns 
 to a grantor who built the wall, but had 
 previously sold the adjoining lot, does not 
 run with the land so as to bind one who 
 subsequently acquires both lots and makes 
 use of the party wall in erecting a new 
 building on them. Lincoln v. Burrage, 177 
 Mass. 378, 59 N. E. 67, 52: 110
 
 COVENANT, III. 
 
 891 
 
 99. Failure to refer in a deed to a covenant 
 binding a grantor to pay part of the cost of 
 a, party wall on which he has commenced 
 to erect a building will not relieve the gran- 
 tee from liability. Mott v. Oppenheimer, 135 
 N. Y. 312, 31 N. E. 1097, 17: 409 
 
 100. An obligation in the nature of a serv- 
 itude upon an estate conveyed with a water 
 privilege may be enforced, without any per- 
 sonal obligation of the owner, under a stip- 
 ulation that the grantee, his heirs and as- 
 signs, shall pay a certain part of the sums 
 paid for flowage or damages to the proprie- 
 tors of land above a reservoir. Whittenton 
 Mfg. Co. v. Staples, 104 Mass. 319, 41 N. E. 
 441, 29: 500 
 
 101. A covenant by and between owners 
 of adjacent lands, as to the use aijd enjoy- 
 ment by the respective parties of the waters 
 of a stream to which they are severally en- 
 titled, made for the mutual benefit of them- 
 selves, their heirs, and grantees, runs with 
 the land, and binds not only the contracting 
 parties, but also their heirs and grantees, 
 although in subsequent deeds of the respec- 
 tive premises no mention is made of such 
 covenant, or of the rights accruing there- 
 from. Horn v. Miller, 136 Pa. 640, 20 Atl. 
 706, 9: 810 
 
 102. An agreement between lot owners on 
 the west side and owning to the thread of a 
 stream, to share the water power appurte- 
 nant to lots on the east side bought by them 
 in common among themselves in certain 
 proportions, to be used on the west-side lots, 
 no one conveying to any other any interest 
 in his independent estate in the west-side 
 lots, although binding as a personal covenant 
 upon any of such owners who may subse- 
 quently purchase lots on the east side of the 
 stream, to share the water-power thus ac- 
 quired with the other west-side owners, yet, 
 not being a covenant running with the land, 
 does not bind their grantees of east-side lots, 
 who were not parties and did not purchase 
 subject to the agreement, or strip the east- 
 ide lots of their natural water rights. Law- 
 rence v. Whitney. 115 N. Y. 410, 22 N. E. 174, 
 
 5: 417 
 
 III. Running with the Land. 
 
 Who May Enforce, see supra, II. c, 2. 
 Who Bound by, see supra, II. d, 2. 
 Covenant in Lease, see Landlord and Tenant, 
 
 17. 
 
 See also supra. 37-40. 
 For Editorial Notes, see infra, V. 6. 
 
 103. The test in equity to determine 
 whether a covenant in a deed runs with the 
 land is the intention of the parties. Landell 
 v. Hamilton. 175 Pa. 327, 34 Atl. 663, 
 
 34: 227 
 
 104. A covenant cannot run with the land, 
 in the technical meaning of the word, unless 
 it can run with it at law. Middletown v. 
 Newport Hospital, 16 R. I. 319, 15 Atl. 800, 
 
 1: 191 
 
 105. A covenant of indemnity by a lessee 
 against damages or claims for losses or in- 
 
 jury suffered to property on the leased prem- 
 ises, by fires set by the lessor's engines, is 
 directly connected with the estate and with- 
 in the meaning of Wis. Rev. Codes, 3784 - 
 3787, providing that certain specified cove- 
 nants shall run with the land, and extending 
 the provisions to covenants "appurtenant to 
 such estates," covenants "for the direct ben- 
 efit of the property or some part of it," and 
 those which are "incidental thereto." North- 
 ern P. R. Co. v. McClure, 9 N. D. 73, 81 N. 
 W. 52, 47: 149 
 
 106. W'here a deed is made by a town, 
 signed and sealed by the town clerk, a bond 
 by the grantee running to the town treasur- 
 er, to secure certain privileges to the inhab- 
 itants of the town, is a mere personal obli- 
 gation, and not a covenant running with the 
 land. Middletown v. Newport Hospital, 16 
 R. I. 319, 15 Atl. 800, 1: 191 
 
 107. A covenant by a landowner to ren- 
 der to another one eighth of the mineral 
 raised upon his land, in consideration of the 
 latter's covenant to construct a level for 
 the purpose of draining the land and thus 
 making the ore therein available, which is 
 supplemented by a grant to the latter of 
 such one eighth of the ore, runs with the 
 land. Crawford v. Witherbee, 77 Wis. 419. 
 46 N. W. 545, 9: 561 
 
 108. A covenant by a landowner, agreeing 
 that the products of his land shall be trans- 
 ported to market exclusively over the line 
 of a particular railroad, is not a real cove- 
 nant running with the land. Kettle River 
 R. Co. v. Eastern R. Co. 41 Minn. 461, 43 N. 
 W. 469, 6: 111 
 As to maintenance of depot. 
 
 109. A condition constituting the consid- 
 eration for a grant of a right of way to a 
 railroad company, that a depot should be 
 maintained on the land, is in the nature of 
 a covenant running with the land. Lyman 
 v. Suburban R. Co. 190 111. 320, 60 N. E. 515, 
 
 52: 645 
 
 As to party wall. 
 See also supra, 97-99. 
 For Editorial Notes, see infra, V. 6. 
 
 110. An agreement for a party wall, ex- 
 pressly declared to be a covenant running 
 with the land and to bind the "heirs and 
 assigns" of the parties, must be held to run 
 with the land. Mott v. Oppenheimer, 135 
 N. Y. 312, 31 N. E. 1097, 17:409 
 As to water rights. 
 
 See also supra, 75, 100-102. 
 
 For Editorial Notes, see infra, V. 6. 
 
 111. Where a water right which is appur- 
 tenant to land on the east side of a river 
 is bought in common by owners of land on 
 the west side, and is severed, each owner 
 being assigned his due proportion of the 
 water right, and each agreeing to use such 
 portion for his own benefit on the west 
 side, no party conveying to any other any 
 interest in his several and independent es- 
 tate in land on the west side, the covenant 
 for use of the water is not a covenant run- 
 ning with the land on the west side. Law- 
 rence v. Whitney, 115 N. Y. 410, 22 N. E. 
 174, 5: 417 
 
 112. A covenant for the mere use of water
 
 892 
 
 COVENANT, IV., V. 
 
 as an easement is not a covenant running 
 with the land, where the land is not at the 
 same time granted or conveyed. Id. 
 
 IV. Extinguishment of, or Discharge from, 
 Covenant. 
 
 Release from Restrictions, see Easements, 
 
 100. 
 See also supra, 47; Release, 5. 
 
 113. A covenant in a deed of land restrict- 
 ing the mode of its use, and inserted for the 
 benefit of adjoining land of the grantor, will 
 be extinguished by the subsequent vesting 
 in one person of the title to both tracts of 
 land. Post v. Weil, 115 N. Y. 361, 22 N. E. 
 145, 5:422 
 
 114. A change in the use of premises from 
 residence to business purposes after a cov- 
 enant restricting erections thereon above a 
 certain height is not sufficient to destroy 
 the effect of the covenant. Landell v. Ham- 
 ilton, 175 Pa. 327. 34 Atl. 663, 34: 227 
 By destruction of premises. 
 
 115. A covenant to repair a standing 
 building and construct an annex thereto 
 which shall become an integral part of it is 
 discharged by a destruction by lightning of 
 the main building when the work is prac- 
 tically completed, so as to render the repair 
 ;md completion of the annex impossible 
 without the reconstruction of the main 
 building. Krause v. Crothersville School 
 Trustees, 162 Ind. 278, 70 N. E. 264, 65: 111 
 
 116. Failure to complete the repair of a 
 building and the construction of an annex 
 thereto as soon as possible, so that the main 
 building is destroyed by lightning before the 
 work is completed but after it might have 
 been done does not deprive the one under- 
 taking the work of the benefit of the rule 
 that relieves him from his covenant in case 
 the building upon which his work is to be 
 done is destroyed without his fault. Id. 
 
 117. The offer by the owner of a building 
 which another has contracted to repair and 
 add to, to restore it after it has been de- 
 stroyed by lightning when the work was 
 nearly completed, will not require the con- 
 tractor to comply with his covenant and re- 
 construct and complete the work according 
 to the original contract. Id. 
 
 V. Editorial Notes. 
 
 See also Sale, IV. 6-8. 
 
 i. Generally. 
 
 Defined and construed. 6: 107.* 
 
 Distinguished from conditions; construc- 
 tion. 1: 380;* 5: 422.* 
 
 In deed poll. 23: 396. 
 
 In grant of water power. 67: 401. 
 
 Effect of acceptance of deed. 1: 381.* 
 
 In oil lease. 12: 290.* 
 
 In grant to corporation. 2: 199.* 
 
 Personal covenants binding on purchaser. 
 2: 200.* 
 
 Effect f covenant fer quiet enjoyment 2: 
 334.* 
 
 Effect of covenant f seisin. 6: 360.* 
 
 When covenant of seisin broken. 4: 425.* 
 
 Voluntary; how far enforceable. 13: 723.* 
 
 How far is tide land within protection of 
 covenants in deed. 62: 
 763. 
 
 Right of mortgagee to benefit of insurance 
 where mortgage contained 
 a covenant to insure. 25: 
 305. 
 
 Liability of heirs on covenant or specialty 
 debt of ancestor. 21: 90. 
 
 Purchase by covenantee from true owner 
 as breach. 6: 107.* 
 
 2. Implied covenants. 
 
 Recitals in a deed as basis of implied cove- 
 nants of title. 18: 343. 
 
 Implied covenant in lease as to fitness of 
 property for the purpose 
 intended. 33: 449. 
 
 3. Restricting use of property. 
 
 As to Conditions in Deed Affecting Use of 
 Property, see Deeds, III. 
 9. 
 
 Generally. 3: 580.* 
 
 Covenants not to build. 3: 580.* 
 
 Covenants to keep street open. 3: 581.* 
 
 Equitable remedy for encroachment on 
 rights. 3: 581.* 
 
 Enforcement of covenant in equity. 3: 581.* 
 
 Injunction to restrain breach of covenant. 
 5: 423.* 
 
 4. Against encumbrances. 
 
 In general. 3: 789.* 
 
 What deemed an encumbrance. 3: 789.* 
 
 Easement as an encumbrance. 3: 790.* 
 
 Measure of damage where easement exists. 
 3: 790.* 
 
 Effect of encumbrance as breach of covenant. 
 3: 790.* 
 
 Action for breach of covenant. 3: 791.* 
 
 Damages for breach of covenant. 3: 791.* 
 
 5. Covenant as estoppel; after-acquired 
 title. 
 
 Effect of covenant of warranty upon after- 
 acquired title. 2: 335." 
 
 Effect of covenant of married woman as an 
 estoppel against acquiring, 
 superior title. 22: 779. 
 
 6. Covenant running with land. 
 
 Test by which to determine whether grant 
 runs with land. 2: 199.* 
 
 To contribute to cost of party wall as. 66: 
 673. 
 
 Of seisin as. 6: 361.* 
 
 Agreement to build a party wall as. 1 : 33.* 
 
 Covenant in grant of water power as. 67: 
 402. 
 
 7, Enforcement; remedy; relief. 
 
 Measure of Damages for Breach of, see Dam- 
 ages, V. 6. 
 
 See also supra, V. 3, 4. 
 
 Power of equity to compel observance of. 
 5: 422.* 
 
 Forfeiture for breach of covenant. 5: 423.* 
 
 Equitable relief against forfeiture of es- 
 tate for breach of collat- 
 eral covenants. 69: 853. 
 
 Enforcement of restrictive covenants in 
 grant. 2: 200.*
 
 COVERTURE CREDITORS. 
 
 883 
 
 Action for breach of warranty. 2: 334.* 
 
 Action on covenants in deed as remedy for 
 failure of title. 5:47.* 
 
 Recovery for breach of covenant of seisin. 
 4: 427.* 
 
 Who is real party in interest by whom ac- 
 tion must be brought on 
 covenant. 64: 621. 
 
 Covenant with several ; when one may sue 
 alone. 9: 704.* 
 
 Parol evidence as to consideration of a deed 
 in action for breach of 
 covenant. 26: 107. 
 
 Contingency of claim for breach of cove- 
 nant of warranty as af- 
 fecting its presentation to 
 decedent's estate. 58: 88. 
 
 Right to set off damages for breach of, on 
 mortgage foreclosure. 21: 
 324. 
 
 COVERTURE. 
 
 As Defense to Foreign Contract, see Con- 
 flict of Laws, 108. 
 
 Disability of, see Husband and Wife, I. b. 
 
 As Personal Defense, see Judgment, 280. 
 
 Effect of, on Running of Limitations, see 
 Limitation of Actions, II. 1. 
 
 Reply to Plea of, see Pleading, 557. 
 
 COW-CATCHER. 
 
 Necessity of, on Train, see Master and Serv- 
 ant, 158; Railroads, 143. 
 
 COWS. 
 
 Claim for Unnecessary Destruction of, see 
 Claims, 22. 
 
 COW STABLE. 
 
 Municipal Regulation of, see Municipal Cor- 
 porations, 128, 218. 
 
 COYOTES. 
 
 Presentation of Claim for Killing, see 
 
 Claims, 24. 
 Police Power as to, see Constitutional Law, 
 
 976. 
 
 Judicial Notice of. see Evidence, 130. 
 Bounty for Killing, see Public Moneys, 50. 
 
 CRANBERRIES. 
 
 Insurance of. seo Insurance. 511. 
 
 CREAM. 
 
 Regulating Sale of, see Constitutional Law, 
 1062. 
 
 
 
 CREAMERY. 
 
 Construction of Subscription Contract for, 
 
 see Contracts, 329, 330. 
 Filth from, as Uuisance, see Nuisances, 16, 
 
 88. 
 
 CREDIBILITY. 
 
 Of Witness, see Trial, 99a, 100; Witnesses, 
 IV. 
 
 CREDIT. 
 
 Sale by Chattel Mortgagor on, see Chattel 
 
 Mortgage, 34, 35. 
 When Right to, is Given by Contract of Pur- 
 
 chase, see Contracts, 348. 
 Judicial Notice of Value of, see Evidence, 
 
 142. 
 
 Presumption of, see Evidence, 743. 
 Burden of Proving injury to, see Evidence, 
 
 759. 
 For Insurance Premiums, Evidence of 
 
 Agent's Custom as to, see Evidence, 
 
 1719. 
 Evidence of Impairment of, see Evidence, 
 
 1852. 
 Sale by Administrator on, see Executors and 
 
 Administrators, 59. 
 Power of Factor to Sell Goods on, see Fac- 
 
 tors, 11. 
 Fraud in Obtaining, see Fraud and Deceit, 
 
 y. 
 
 Garnishment of, see Garnishment, 38. 
 Situs, of. for Purpose of Garnishment, see 
 
 Garnishment, I. d. 
 Wife's Power to Pledge Husband's Credit 
 
 for Necessaries, see Husband and Wife, 
 
 8-14. 
 For Interest on Disbursements, see Interest, 
 
 5. 
 Agent's Power to Purchase or Sell on Cred- 
 
 it, see Principal and Agent, II. b. 
 Of County, Loan of, see Public Moneys. 58, 
 
 59. 
 Tax on, see Taxes, 22, 72, 99, 121-126, 145, 
 
 148, 149. 
 Deduction of Debts from, in Assessing Tax- 
 
 es, see Taxes, 405, 413, 414. 
 
 CREDIT INSURANCE. 
 See Insurance, 816, 1363-1371. 
 
 CREDITORS. 
 
 Rights of, in Life Insurance Policy, see In- 
 
 surance. VI. d. 2, 6. 
 See also Debtor and Creditor.
 
 894 
 
 CREDITORS' BILL, L, II. 
 
 CREDITORS' BILL. 
 
 L When Maintainable. 
 
 II. Exhausting Legal Remedies. 
 HI. What Property may be Reached. 
 IV. Liens; Priorities between Creditors. 
 
 V. Decree; Relief Generally. 
 VI. Editorial Notes. 
 
 Consolidation of, see. Action or Suit, 69; 
 Appeal and Error, 391. 
 
 Based on Foreign Judgment, see Conflict of 
 Laws, 353. 
 
 Attorney's Fee Out of, see Costs and Fees, 
 32. 
 
 Bill for Discovery as, see Discovery and In- 
 spection, 5. 
 
 Right of Parties Bringing, to Control Ac- 
 tion, see Dismissal or Discontinuance, 
 3. 
 
 As to Supplementary Proceedings, see Exe- 
 cution, II. 
 
 Attacking Judgment by, see Judgment, 112. 
 
 Effect of. on Right to Redeem From Judi- 
 cial Sale, see Judicial Sale, 42. 
 
 Interruption of Statute of Limitations by 
 Decree for Account on, see Limitation 
 of Actions, 233. 
 
 Parties to, see Parties, 126, 127; Pleading, 
 199. 
 
 Sufficiency of Complaint, see Pleading, 435- 
 437. 
 
 I. When Maintainable. 
 
 In Suit to Dissolve Corporation, see Corpo- 
 rations, 783. 
 
 For Tax, see Taxes, 485-489. 
 For Editorial Notes, see infra, VI. 
 
 1. A creditor's bill will not lie against a 
 municipal corporation to reach money due 
 from it to a contractor who is a debtor of 
 the complainant. Addyston Pipe & S. Co. 
 v. Chicago, 170 111. 580, 48 N. E. 967, 
 
 44: 405 
 
 2. If an equitable attachment of a debtor's 
 property is prohibited by statute, the prop- 
 erty cannot be reached in equity and the 
 statute avoided merely by a change in the 
 form of proceedings. Venable v. Rickenberg, 
 152 Mass. 64, 24 N. E. 1083, 8: 623 
 
 3. A suit in equity to reach and apply 
 property to the payment of a debt cannot 
 be maintained, either under the general eq- 
 uity jurisdiction, or under a statute which 
 permits such suit in case the property "can- 
 not be come at to be attached or taken on 
 execution in a suit at law." where the prop- 
 erty is in its nature attachable by trustee 
 process, but cannot be attached in the par- 
 ticular case because of a statute prohibit- 
 ing the collecting of that particular kind of 
 debt attachment, "either by trustee process 
 or otherwise." Id. 
 
 4. A judgment creditor may have relief 
 in equity against an alleged fraudulent debt- 
 or who has either fraudulently conveyed his 
 property, or who possesses only an equitable 
 interest therein; and in either case a return 
 of nulla bona is conclusive evidence that the 
 
 debtor has no other property liable to exe- 
 cution. Fechheimer v. Hollander, 6 Mackev r 
 512, 1 : 36& 
 
 5. A suit in equity to reach assets includ- 
 ed in a general assignment for creditors, and 
 also included within the terms of prior deeds 
 of trust purporting to cover such assets as 
 after-acquired property of the debtor, can 
 not be maintained by an execution creditor 
 who levied on the property before posses- 
 sion was taken by the assignee, on the 
 ground that the deeds of trust are void as 
 to such property, since in that case he has 
 an adequate remedy at law, while in equity 
 such deeds may be sustained. Horner-Gay- 
 lord Co. v. Fawcett, 50 W. Va. 487, 40 S. E. 
 564, 57: 869 
 
 6. Claims against a corporation, based on 
 unliquidated damages for torts alleged to 
 have been committed by it, cannot, stand- 
 ing alone, form the basis of a creditor's bill 
 against it. Slover v. Coal Creek Coal Co. 
 (Tenn.) 82 S. W. 1131, 68: 852 
 
 7. A creditor's bill cannot be based upon a 
 judgment for money only, in an action in 
 which jurisdiction was obtained only by at- 
 tachment of the property of an absconding 
 debtor, since under N. Y. Code Civ. Proc. 
 707, such judgment can be enforced only 
 against the attached property. Capital City 
 Bank v. Parent, 134 N. Y. 527, 31 N. E. 976, 
 
 18: 240 
 
 8. A judgment having become dormant by 
 lapse of time during the pendency of an ac- 
 tion based thereon, in the nature of a cred- 
 itors' bill, for the purpose of reaching cer- 
 tain choses in action of the judgment debtor 
 and applying the proceeds thereof to the 
 payment of the judgment, the action must 
 fail. Miller & Co. v. Melone, 11 Okla. 241, 
 67 Pac. 479, 56: 620 
 
 9. The mere fact that a debtor's interest 
 in his father's estate consists in part of real 
 estate, upon which an execution might be 
 levied, will not prevent the maintenance of 
 a creditor's bill to reach such interest if an 
 execution has been returned "no property 
 found," and it is not shown that the value 
 of such real estate was sufficient to satisfy 
 the costs of sale. Oppenheimer v. Collins, 
 115 Wis. 283, 91 N. W. 690. 60: 406 
 
 10. The satisfaction or discharge of a 
 judgment may be shown as a defense 
 against a creditors' bill to enforce the judg- 
 ment after revival on scire facias, as well 
 as to defeat the revival. Bickerdike v. Al- 
 len, 157 111. 95, 41 N. E. 740, 29: 782 
 
 II. Exhausting Legal Remedies. 
 
 In Federal Court, see Courts, 350. 
 
 Before Bringing Creditors' Bill to Collect 
 
 Tax, see Taxes, 489. 
 See also supra, 4; Attachment, 10. 
 
 11. A person whose judgment against a 
 corporation was obtained in a United 
 States court is entitled to pursue a remedy 
 given by the statutes of the state in whico 
 such court is situated, by which the proper- 
 ty of the corporation may be sequestrated
 
 CREDITORS' BILL, III. 
 
 895 
 
 and equally distributed among creditors, the 
 same as though his judgment was obtained 
 in a state court. Ballin v. J. & E. B. Friend 
 Lace Importing Co. 78 Wis. 404, 47 N. W. 
 516, 10: 742 
 
 12. An action seeking to subject to the 
 payment of a judgment the proceeds of a sale 
 of goods alleged to be in fraud of the rights 
 of the plaintiff, and asking that the pur- 
 chasers be declared debtors of the judgment 
 defendant and be required to account for 
 the goods so conveyed to them, and which 
 also asks that certain notes and securities 
 held by other parties be declared the proper- 
 ty of the judgment debtor and subject to 
 the payment of the judgments, is in law a 
 creditors' bill, and the plaintiffs right to 
 the relief sought depends entirely* upon the 
 existence of a judgment. Miller & Co. v. 
 Melone, 11 Okla. 241, 67 Pac. 479, 56: 620 
 
 13. Equity will not aid a judgment cred- 
 itor against a fraudulent conveyance until 
 he actually obtains a specific lien by attach- 
 ment of the property or levy thereon under 
 an execution, or until he has exhausted all 
 his legal remedies to collect his claim; but, 
 when that is done, equity will enforce his 
 right to a lien by annulling the fraudulent 
 transfer so that the judgment may attach 
 to the property. French Lumbering (Jo. v. 
 Theriault, 107 Wis. 627. 83 N. W. 927, 
 
 51: 910 
 
 14. To entitle a judgment creditor to an 
 order appointing a receiver of his debtor's 
 property it must be made to appear that the 
 creditor has in good faith exhausted his 
 remedies at law; and to that end it must 
 appear, unless special circumstances are 
 shown to excuse it, that execution has been 
 issued upon the judgment to the sheriff of 
 the county of defendant's residence, and 
 been returned unsatisfied in whole or in 
 part. Minkler v. United States Sheep Co. 
 4 N. D. 507, 62 N. W. 594, 33: 546 
 
 15. It is not necessary in order to main- 
 tain a creditors' bill, that the creditor 
 should give a bond of indemnity to the 
 marshal, or risk the danger of litigation 
 with those who claim title under an assign- 
 ment from the debtor. A return of nulla 
 bona sufficiently shows that he has exhaust- 
 ed all reasonable legal remedy. Fechheimer 
 v. Hollander. 6 Mackey, 512. 1: 368 
 What excuses failure to obtain judgment or 
 
 levy execution. 
 
 16. 'ihe presentation, allowance, and ap- 
 proval of claims in an insolvency court, are 
 the equivalent of a judgment, for the pur- 
 pose of enforcing the creditor's rights 
 against fraudulent or void acts of the in- 
 solvent. Ruggles v. Cannedy, 127 Gal. 290, 
 53 Pac. 911, 46: 371 
 
 17. Jurisdiction to set aside a trust deed 
 is acquired, although complainants in the 
 original bill in which such relief was sought 
 were not judgment creditors of the grantor, 
 where a cross bill to foreclose the deed is 
 filed in the suit, making numerous parties 
 defendants with a requirement to answer, 
 which they do by attacking the deed, and 
 upon issues so formed the question of the 
 
 validity of the deed is submitted by the 
 parties for decision. Blair v. Illinois Steel 
 Co. 159 111. 350, 42 N. E. 895, 31: 269 
 
 18. Creditors whose executions cannot be 
 levied upon their debtor's property because 
 it is in the hands of a receiver are not, be- 
 cause of failure to levy executions, preclud- 
 ed from attacking the validity of a deed of 
 trust which has been given by the debtor as 
 being in fraud of their rights. Id. 
 
 19. A decree granting the relief asked in a 
 judgment creditor's bill, by establishing a 
 lien in his favor on the assets in the hands 
 of a receiver, cannot be sustained in the ab- 
 sence of evidence showing the issuance of 
 an execution and its return unsatisfied; and 
 absence of such proof is not remedied by the 
 fact that the bill was consolidated with that 
 of another creditor who furnished such proof 
 in reference to his claim. Russell v. Chicago 
 Trust & Sav. Bank, 139 111. 538, 29 N. E. 37, 
 
 17: 345 
 
 III. What Property may be Reached. 
 
 Unassigned Right of Dower, see Dower, 69, 
 71. 
 
 Cemetery Lots, see Exemptions, 14. 
 
 Debts Owing to Nonresidents, see Garnish- 
 ment, 67. 
 
 For Editorial Notes, see infra, VI. 
 
 20. An injunction to prevent defendants 
 from paying nonresident creditors, granted 
 in a creditor's suit, under Wis. Rev. Stat. 
 3029, sufficiently asserts dominion and con- 
 trol over the indebtedness to subject it to 
 final judgment appointing a receiver. Bragg 
 v. Gaynor, 85 Wis. 468, 55 N. W. 919, 
 
 21: 161 
 
 21. Mass. Stat. 1851, chap. 206 (Pub. Stat. 
 chap. 151, 2, cl. 11), giving a remedy in 
 equity to reach and apply, in payment of 
 debts, "any property, right, title, or interest, 
 legal or equitable," of the debtor, does not 
 cover choses in action which, from their 
 nature, cannot be assigned by the debtor. 
 Pettibone v. Toledo, C. & St. L. R. Co. 148 
 Mass. 411, 19 N. E. 337, 1 : 787 
 
 22. An executory mutual obligation creat- 
 ed by an agreement by railroad bondholders 
 to lend the company money, for which they 
 are to receive additional bonds, is not a debt 
 due the company, which under the general 
 equity power, or under the Massachusetts 
 statutes, can be reached by creditors of the 
 company. Id. 
 
 23. Letters patent may be sold and trans- 
 ferred by a court of equity through its mas- 
 ter for the benefit of creditors of their own- 
 er, under Mass. Stat. 1884, chap. 285, even 
 although he is a nonresident of the state, if 
 the court has acquired jurisdiction which 
 will enable it to bind him with a personal 
 judgment. Wilson v. Martin-Wilson Auto- 
 matic F. A. Co. 151 Mass. 515, 24 N. E. 
 784, 8: 309
 
 CREDITORS' BILL, IV. CREWS. 
 
 IV. Liens; Priorities between Creditors. 
 
 See also supra, 19. 
 
 24. A creditors' bill is not filed so as to 
 acquire a lien on the debtor's property, by 
 taking it to the clerk's office, and having 
 him indorse it as filed and enter a record of 
 it in the general docket, if it is immediately 
 withdrawn and remains in the hands of the 
 complainant's attorney. Meridian Nat. 
 Bank v. Hoyt & Bros. Co. 74 Miss. 221, 21 
 So. 12, 3?: 796 
 
 25. No lien is acquired upon debts due a 
 foreign corporation from residents of- a state 
 other than that in which a creditor's bill is 
 brought against such corporation, where 
 there is no service of process upon it. Hoi- 
 brook v. Ford, 153 111. 633, 39 N. E. 1091, 
 
 27: 324 
 
 26. The death of the vendor before a spe- 
 cific lien shall have been obtained on prop- 
 erty that he has conveyed in fraud of cred- 
 itors will prevent the enforcement of a judg- 
 ment by execution against such property 
 and preclude the acquisition thereby of a 
 lien which equity will protect. French Lum- 
 bering Co. v. Theriault, 107 Wis. 627, 83 N. 
 W. 927, 51: 910 
 Priorities. 
 
 Priority of Judgment against Fraudulent 
 
 Grantor, see Judgment, 313, 314. 
 For Editorial Notes, see infra, VI. 
 
 27. The superior diligence of a junior judg- 
 ment creditor in bringing a suit to uncover 
 land which had been conveyed after the 
 judgments, in fraud of creditors, will en- 
 title him to the proceeds. Doster v. Man- 
 istee Nat. Bank. 67 Ark. 325, 55 S. W. 137, 
 
 48: 334 
 
 28. A creditor at large is not entitled to 
 priority over one who has obtained a judg- 
 ment against the debtor subsequent to the 
 date of a fraudulent conveyance, but before 
 the filing of the bill by such creditor at 
 large to set it aside, although he is entitled 
 to priority over one who obtains his judg- 
 ment after the filing of such bill. Foley v. 
 Ruley, 50 W. Va. 158, 40 S. E. 382, 55: 916 
 
 29. The seizure by the court of the debt- 
 or's -property and the appointment of a re- 
 ceiver for it in a judgment creditor's suit 
 presents no obstacle to the obtaining of 
 liens upon such property by other creditors 
 who file similar bills. By filing such bills, 
 creditors will obtain priority over those 
 whose claims have not been reduced to judg- 
 ment, and among themselves in the order of 
 the filing of their respective bills. Russell 
 v. Chicago Trust & Sav. Bank. 139 111. 538, 
 29 N. E. 37, 17:345 
 
 V. Decree; Relief Generally. 
 
 Error in Directing Exhaustion of Personal- 
 ty before Realty, see Appeal and Error. 
 1153. 
 
 Relief under Pleading, see Pleading, 105. 
 
 See also supra, 19. 
 
 30. Personal judgment should not be en- 
 
 tered against defendants for the fnll amount 
 of the claim, in the absence of anything to 
 show that they had become personally liable 
 therefor, in a creditor's suit to subject as- 
 sets in the hands of third persons to the 
 payment of a judgment debt. Oppenheiiner 
 v. Collins, 115 Wis. 283, 91 N. W. 690, 
 
 60: 406 
 
 31. In applying assets which have been 
 wrongfully assigned in fraud of creditors to 
 the payment of debts of the assignor, real 
 estate should be first exhausted, to the ex- 
 oneration of personalty. Id. 
 
 32. In a creditors' bill a decree for an ac- 
 count of outstanding debts suspends all oth- 
 er pending creditors' suits, but not a pend- 
 ing action at law, the judgment in which, 
 when obtained, will be entitled to share in 
 the benefit of the decree. Paxton v. Rich, 
 85 Va. 378, 7 S. E. 531, 1: 639. 
 
 VI. Editorial Notes. 
 
 i. Generally. 
 
 As to Fraudulent Conveyances, Generally, 
 see Fraudulent Convey- 
 ances, IX. 
 
 Jurisdiction of equity over. 1: 788.* 
 
 When lies. 1: 368.* 
 
 For unpaid subscriptions to stock of foreign 
 corporation. 34: 743. 
 
 What may be reached by. 8: 623.* 
 
 Exemption of officer's salary from. 54: 566. 
 
 Allowance of attorney's fees. 54: 817. 
 
 Effect of bankruptcy on. 45: 193. 
 
 Suspension of Other suits. 1: 639.* 
 
 Plaintiffs control over suit brought for all 
 similarly situated. 46: 
 839. 
 
 2. Priority as to proceeds of. 
 
 Generally. 17: 345. 
 
 Effect of judgments as liens. 17: 345. 
 
 Bill for all similarly situated. 17: 348. 
 
 Creditors at large. 17:348. 
 
 CREEK. 
 
 As Boundary, see Boundaries, 32, 33. 
 
 Authority of City as to, see Municipal Cor- 
 porations, 55. 
 
 Enforcement of Contract to Clear Channel 
 of, see Specific Performance, 53. 
 
 Navigability of, see Waters, 3. 
 
 CREMATING FURNACE. 
 
 For Reduction of Garbage, see Contracts, 
 854, 855, 865; Municipal Corporations, 
 290. 
 
 CREWS. 
 
 Right to Salvage, see Salvage, 2.
 
 CRIME CRIMINAL LAW. 
 
 897 
 
 CRIME. 
 
 Suicide as, see Insurance, 979-982; Suicide. 
 Proximate Cause of Injury by, see Proxi- 
 mate Cause, VIII. 
 See also Criminal Law. 
 
 CRIMINAL CONVERSATION. 
 
 Release from Judgment for, by Discharge 
 in Bnnkruptcy, see Bankruptcy, 61. 
 
 Wife's Right of Action for, see Husband and 
 Wife, 225. 
 
 CRIMINAL INTENT. 
 
 As Element of Crime, see Criminal Law, 7- 
 
 12, 14, 28. 
 Presumption and Burden of Proof as to, see 
 
 Evidence, II. e, 6. 
 
 Allegation of, see Indictment, etc., II. b. 
 Question for Jury as to, see Trial, 218-222. 
 
 CRIMINAL LAW. 
 
 I. Criminal Liability. 
 
 a. In General. 
 
 b. Capacity to Commit; Irresponsibil- 
 
 ity. 
 
 c. Attempts. 
 
 d. Solicitation. 
 
 e. Parties to Offenses. 
 
 f. Instigation or Consent, as Defense. 
 11. Procedure. 
 
 a. In General. 
 
 b. Protection and Rights of Accused 
 
 Generally. 
 
 c. Warrant; Commitment. 
 
 d. Necessity of Indictment or Infor- 
 
 mation. 
 
 e. Concurrent Proceedings. 
 
 f. Pleading; Motions; Demurrer. 
 
 g. Former Jeopardy. 
 
 1. In General. 
 
 2. Different Offenses; Different 
 
 Modes of Describing Same 
 Act. 
 h. Determining Sanity of Accused; 
 
 Proceeding with Trial. 
 
 ITI. Offenses against Different Sovereignties. 
 IV. Sentence and Imprisonment. 
 
 a. In General. 
 
 b. Cruel and Unusual Punishment'. 
 
 c. Extent of Punishment Generally; 
 
 Excessive Fines. 
 
 d. Time of Imprisonment; Cumu- 
 
 lative and Indeterminate Sen- 
 tences. 
 
 e. Place of Imprisonment. 
 
 f. Punishment of Second Offenses and 
 
 Habitual Criminals. 
 
 g. Suspension of Sentence; Time of 
 
 Imposing. 
 h. Parole: Reprieve; Pardon. 
 
 1. In General. 
 
 2. Conditional. 
 L.R.A. Dig. 57. 
 
 V. Record. 
 VI. Editorial Notes. 
 
 Various Particular Crimes, see Abduction; 
 
 ' Abortion; Banks, VII.; Betting; Bicycle 
 Paths, 2, 3; Bigamy; Burglary; Car- 
 riers, II. d; Corpse, 9; Elections, II. d; 
 Embezzlement; False Pretenses; For- 
 gery; Game Laws, 3, 4, 6, 7; Gaming; 
 Highways, 208; Homicide; Husband and 
 Wife, IV.; Incest; Infants, 11-14; In- 
 sWBrice, 61, 114-118, 979-982; Intoxi- 
 cating Liquors, III.; Larceny; Lottery; 
 Obscenity; Obstructing Justice; Per- 
 jury; Postoffice, III.; Prize Fighting; 
 Rape; Robbery; Sedition; Seduction; 
 Suicide; Trespass, II.; Warehousemen, 
 24, 25. 
 
 Abduction of Criminal, see Abduction, and 
 also infra, VI. 13. 
 
 Consent to Abortion, see Abortion, 2. 
 
 Arrest, see Arrest. 
 
 Liability for Cruelty to Prisoner, see As- 
 sault and Battery, 5. 
 
 Status of Convicts, see Civil Death. 
 
 Effect of Imprisonment as Civil Death, see 
 Civil Death. 
 
 Conflict of Laws as to Crimes, see Conflict 
 of Laws, I. e, 3. 
 
 Conspiracy to Commit Crime, see Con- 
 spiracy. 
 
 Legislative Release from Hospital for Crim- 
 inal Insane, see Constitutional Law, 
 259. 
 
 Class Legislation as to Payment of Costs 
 of Prosecution, see Constitutional Law, 
 589. 
 
 Ex Post Facto Laws, see Constitutional 
 Law, I. b, 1. 
 
 Equal Protection and Privileges in Criminal 
 Matters, see Constitutional Law, II. a, 
 8. 
 
 Police Power as to Crimes, see Constitu- 
 tional Law, II. c, 5. 
 
 Due Process of Law in Criminal Matters, 
 see Constitutional Law, II. e, 8. 
 
 Illegality of Contract to Suspend Criminal 
 Prosecution, see Contracts, 448-451. 
 
 Liability for Injuries Committed by Convict, 
 see Convicts, 3, 4. 
 
 Means of Identifying Convicts, see Convicts, 
 5, 6. 
 
 Liability of Corporation for Criminal Con- 
 tempt, see Contempt, 18. 
 
 Criminal Liability of Corporation, see Cor- 
 porations, 211. 
 
 Costs of Criminal Prosecution, see Costs 
 and Fees, 19, 20. 
 
 District Attorney, see District and Prose- 
 cuting Attorneys. 
 
 Estopnel in Criminal Cases, see Estoppel, 
 87. ' 
 
 Extradition, see Extradition. 
 
 Civil Liability for False Arrest and Im- 
 prisonment, see False Imprisonment. 
 
 Civil Liability for Bringing Prosecution, see 
 Malicious Prosecution. 
 
 Garnishment of Property Taken from 
 Prisoner, see Garnishment, 63-55. 
 
 Grand Jury, see Grand Jury. 
 
 Habeas Corpus, see Habeas Corpus.
 
 898 
 
 CRIMINAL LAW, I. a, b. 
 
 Sufficiency of Indictment against Demurrer, 
 see Indictment, etc., 99. 
 
 Responsibility for Failure to Furnish Medi- 
 cal Attendance to Infant, see Infants, 
 11-14. 
 
 Injunction against Criminal Acts, see In- 
 junction, I. d. 
 
 Insurance in Foreign Company, see Insur- 
 ance, 61. 
 
 Criminal Liability of Insurance Agent, see 
 Insurance, 114-118. 
 
 Apportionment between Judges of Labor of 
 Holding Courts, see Judges, 5. 
 
 Liability for Violating License Ordinance, 
 see License, 53, 54. 
 
 Compelling Court or Judge to Exercise 
 Jurisdiction, see Mandamus, 23-26. 
 
 Abatement of Nuisance Constituting a 
 Crime, see Nuisances, 118. 
 
 Defense to Prosecution for Unlawful Prac- 
 tising of Medicine, see Physicians and 
 Surgeons, 11-13. 
 
 Proximate Cause of Injury by Crime, see 
 Proximate Cause, VIII. 
 
 Criminal Removal of Court Records, see 
 Records, 9, 10. 
 
 Reward for Criminal, see Reward. 
 
 Search of Accused Person, see Search and 
 Seizure. 
 
 Sheriff Takinsr Photograph, etc., of Prisoner, 
 see Sheriff, 3. 
 
 Partial Invalidity of Statute as to, see 
 Statutes, 98^-104. 
 
 Title of Statute as to, see Statutes, 168-170, 
 229-236, 253, 272-274. 
 
 Plurality of Subjects in Statute as to, see 
 Statutes, 261, 262. 
 
 Special Legislation as to, see Statutes, 299. 
 
 Application of Penalty to Amendment of 
 Statute, see Statutes, 443. 
 
 Strict Construction of Penal Statute, see 
 Statutes, 500-513. 
 
 Compulsory Process for Witnesses, see Wit- 
 nesses'. 204, 205. 
 
 Fees of Witnesses on Criminal Trial, see 
 Witnesses, V. 
 
 Service of Indictment, see Writ and Process, 
 30. 
 
 Exemption of Nonresident Defendant from 
 Service of Process, see Writ and Proc- 
 ess, 78. 
 
 I. Criminal Liability, 
 a. In General. 
 
 For Editorial Notes, see infra, VI. 1, 10, 
 11. 
 
 1. It does not lie in the power of the 
 legislature to make that act a crime which 
 consists in the bare exercise of a simple con- 
 stitutional right. Re Flukes, 157 Mo. 125, 
 57 S. W. 545, 51: 176 
 
 2. Purely statutory offenses cannot be es- 
 tablished bv implication. People v. Phyfe. 
 13(5 N. Y. 554, 32 N. E. 978. 19:'l41 
 
 3. The non performance of an act, the per- 
 formance of which by the person chareed 
 therewith is impossible, cannot be made a 
 crime, by either a legislative or municipal 
 
 body, for which the delinquent may be 
 punished by fine and imprisonment. Port 
 Huron v. Jenkinson, 77 Mich. 414, 43 N. W. 
 923, 6: 54 
 
 4. All ihe provisions of a section of a 
 statute need not be violated in order to 
 make one liable to a fine under a general 
 provision that he shall be fined for a viola- 
 tion of the section. State v. Gerhardt, 145 
 Ind. 439, 44 N. E. 469, 33: 313 
 
 5. That an officer's term has expired will 
 not prevent his prosecution and punish- 
 ment for misdemeanor in office. Com. v. 
 Coyle, 160 Pa. 36, 28 Atl. 634, 24: 552 
 What law governs. 
 
 6. The laws in force when the fatal blow 
 or wound is inflicted govern the crime of 
 murder as it is regarded as committed at 
 that time, although the death occurs on a 
 subsequent date. Debney v. State, 45 Neb. 
 856, 64 N. W. 446, " 34: 851 
 Intent; motive; knowledge. 
 
 Question for Jury as to Intent, see Trial, 
 
 218-222. 
 
 See also infra, 14; Rape, 6. 
 For Editorial Notes, see infra, VI. 1. 
 
 7. Criminal intent or criminal negligence 
 is of the essence of every criminal offense, 
 and it must in some way appear in order to 
 justify a conviction. Meadowcroft v. Peo- 
 ple, 163 111. 56, 45 N. E. 303, 35: 176 
 
 8. The intent with which an act is done 
 is immaterial, when the act is denounced 
 as unlawful bv statute. State v. Southern 
 R. Co. 122 N. C. 1052, 30 S. E. 133, 41 : 246 
 
 9. The intention of a person who com- 
 mits an act which is made a misdemeanor 
 by statute constitutes no element of the of- 
 fense. Haggerty v. St. Louis Ice Mfs- & S. 
 Co. 143 Mo. 238, 44 S. W. 1114, 40: 151 
 
 10. One who intentionally commits a 
 crime is responsible criminally for the 
 consequences of his act, if the offense proves 
 to be different from that which he intended. 
 Com. v. 'Murphy, 165 Mass. 66, 42 N. E. 504, 
 
 30: 734 
 
 11. Whether a criminal intent or a guilty 
 knowledge is a necessary ingredient of a 
 statutory offense is a matter of construc- 
 tion. Com. use of Allegheny County v. 
 Weiss. 139 Pa. 247, 21 Atl. 10, 111 530 
 
 12. There is a sufficient criminal intent to 
 sustain a conviction of one who compels an- 
 other, through fear of death, to make an 
 actual attempt to commit a crime, although 
 the latter acts solelv under compulsion. 
 State v. Dowell, 106 N. C. 722, 11 S. E. 525, 
 
 8: 297 
 
 13. It is not indispensable to a conviction 
 that the motive for the crime shall apnoar. 
 Keady v. People, 32 Colo. 57, 74 Pac. 892, 
 
 66: 353 
 
 b. Capacity to Commit; Irresponsibility. 
 
 Passion Produced by Provocation, see Homi- 
 cide, 3. 
 
 Insanity; irresistible impulse. 
 
 Setting Aside Conviction of Insane Person, 
 see Appeal and Error. 737. 
 
 Sufficiency of Proof of Insanity, see Evi- 
 dence, 2367-2371.
 
 CRIMINAL LAW, I. b. 
 
 899 
 
 Instruction as to, see Trial, 850. 
 See also infra, 51, 52, 174-176. 
 For Editorial Notes, see infra, VI. 3, 4, 
 23. 
 
 14. The fact that one who committed a 
 homicide was temporarily insane when he 
 formed and executed the design to kill an- 
 other may be taken into consideration under 
 Tex. Pen. Code, art. 40a, both to determine 
 the degree of the murder and in fixing the 
 penalty. Evers v. State, 31 Tex. Crim. Rep. 
 318, 20 S. W. 744, 18: 42"! 
 
 15. It is immaterial whether a person 
 claiming insanity as a defense to a charge 
 of murder is totally or partially insane on 
 other subjects or not if he is diseased to the 
 extent of breaking down the distinction be- 
 tween a knowledge of right and wrong in 
 reference to the act for which he is on trial. 
 Ford v. State, 73 Miss. 734, 19 So. 665, 
 
 35: 117 
 
 16. A person partially insane is respon- 
 sible for a criminal act, if at the time he 
 knows right from wrong and knows the na- 
 ture and character of the act and its conse- 
 quences, knows that it is wrong, hurtful to 
 another, and deserves punishment. State v. 
 Harrison, 36 W. Va. 729, 15 S. E. 982, 
 
 18: 224 
 
 17. Where a person at the time of the 
 commission of an alleged crime has suf- 
 ficient mental capacity to understand the 
 nature and quality of the particular act or 
 acts constituting the crime, and the mental 
 capacity to know whether they are right or 
 wrong, he is generally responsible if he com- 
 mits such act or acts, whatever may be his 
 capacity in other particulars; but if he does 
 not possess this degree of capacity, then 
 he is not so responsible. State v. O'Neil, 51 
 Kan. 651, 33 Pac. 287, '24: :>.->r> 
 
 18. Lunacy or insanity, to take away ac- 
 countability, must be of such degree as to 
 obliterate the sense of right and wrong as 
 to the particular act done. Hornish v. Peo- 
 ple, 142 111. 620, 32 N. E. 677, 18: 237 
 
 19. A person who is insane or of unsound 
 mind must be also incapable of knowing the 
 wrongfulness of his act, in order to be held 
 incapable of crime under Okla. Stat. 1893, 
 1852, which declares that all persons are 
 capable of committing crime except "luna- 
 tics, insane persons, and all persons of un- 
 sound mind, including persons temporarily 
 or partially deprived of reason, upon proof 
 that at the time of committing the act 
 charged against them, they were incapable 
 of knowing its wrongfulness," since -the 
 final clause applies to all the classes of 
 persons mentioned. Maas v. Oklahoma, 10 
 Okla. 714, 63 Pac. 960, 53: 814 
 
 20. Conviction for assault with intent to 
 murder cannot be had in case the accused 
 was at the time of committing the deed in- 
 sane because of the recent voluntary use of 
 cocaine, morphine, and whisky, although 
 the statute provides that insanity from the 
 voluntary recent use of intoxicating liquor 
 shall be no defense. Edwards v. State. 38 
 Tex. Crim. Rep. 386, 43 S. W. 112, 39: 262 
 
 21. The existence of an imcontrollable in- 
 
 sane impulse to commit a crime known to 
 be such does not modify the criminal re- 
 sponsibility for the act. State v. Knight, 
 95 Me. 467, 50 Atl. 276, 55: 373 
 
 22. Mere irresistible impulse to do an act 
 will not exempt? a person from criminal re- 
 sponsibility therefor. State v. Harrison, 36 
 W. Va. 729, 15 S. E. 982, 18: 224 
 
 23. That the impulse to steal is inspired 
 by avarice or greed will not oreclude the 
 defense of insanity, if the will power is 
 weakened to such an extent as to leave the 
 afflicted one powerless to control the im- 
 pulse. State v. McCullough, 114 Iowa, 532, 
 87 N. W. 503, 55:378 
 Intoxication. 
 
 See also supra, 20; infra, 176. 
 
 For Editorial Notes, see infra, VI. 5. 
 
 24. Voluntary intoxication is no justifica- 
 tion or excuse for crime. State v. O'Neil, 
 51 Kan. 651, 33 Pac. 287, 24: 555 
 
 25. Voluntary intoxication is neither an 
 excuse for nor a palliation of the crime of 
 murder committed by one in that state. 
 Harris v. United States, 8 App. D. C. 20, 
 
 36: 465 
 
 26. Under a statute establishing degrees 
 of the crime of murder, and providing that 
 wilful, deliberate, and premeditated killing 
 shall be murder in the first degree, intoxi- 
 cation at the time of the killing may be con- 
 sidered upon the question whether he was in 
 such a condition of mind as to be capable of 
 deliberate premeditation. State v. O'Neil, 
 51 Kan. 651, 33 Pac. 287, 24: 555 
 
 27. One who is intoxicated to the extent 
 of being deprived of the mental capacity to 
 deliberate or premeditate cannot commit a 
 crime of which the statute makes pre- 
 meditation an essential element, if he had 
 formed no purpose to commit the crime 
 prior to the time he became so intoxicated. 
 Hence, upon the trial of a person charged 
 with having committed murder in the first 
 degree, of which premeditation is an essen- 
 tial element, the fact that the accused was 
 drunk at the time he committed the crime 
 may be considered for the purpose of de- 
 termining whether or not there was pre- 
 meditation. Aszman v. State, 123 Ind. 347, 
 24 N. E. 123, 8: 33 
 
 28. Upon trial of an indictment for con- 
 spiring to commit murder, the fact of de- 
 fendant's intoxication at the alleged time of 
 the commission of the offense may be con- 
 sidered by the jury as bearing upon the ex- 
 istence of the felonious intent necessary to 
 render him guilty. Booher v. State, 156 
 Ind. 435, 60 N. E. 156, 54: 391 
 
 Infancy. 
 
 To Commit Rape, see Rape, 2. 
 
 For Editorial Notes, see infra, VI. 2. 
 
 29. A boy between thirteen and fourteen 
 years of age cannot be punished for a sim- 
 ple misdemeanor in betting money at a 
 game of chance, where he did not know he 
 was violating any law although he clearly 
 knew the difference between right and 
 wrong. State v. Yeargan, 117 N. C. 706, 23 
 S. E. 153, 36: 196
 
 900 
 
 CRIMINAL LAW, I. c e. 
 
 c. Attempts. 
 
 Punishment for, see infra, 223, 224, 240. 
 Proof of Commission under Allegation of 
 
 Attempt, see Evidence, 2417. 
 See also supi-a, 12; infra. 40, 43-45. 
 For Edito? ial Notes, see infra, VI. 8. 
 
 30. Attempts which, if successful, would 
 have resulted in an indictable offense, are 
 indictable. Com. v. Tolman, 149 Mass. 229, 
 21 N. E. 377, 3: 747 
 
 30a. Mere preparatory acts for the com- 
 mission of a crime, and not proximately 
 leading to its consummation, do not consti- 
 tute an attempt to commit the crime. 
 Groves v. State, 116 Ga. 516, 42 S. E. 755, 
 
 59: 598 
 
 31. A person cannot be guilty of an at- 
 tempt to commit an offense which he is 
 physically impotent to perpetrate. Foster 
 v. Com. 96 Va. 306, 31 S. E. 503, 42: 589 
 
 32. The common-law rule as to what 
 constitutes an attempt to commit an of- 
 fense is not changed by Mich. Comp. Laws 
 1897, 11,784. providing for punishment of 
 every person who shall attempt to commit 
 a crime and do any act towards its commis- 
 sion, but shall fail in the perpetration, or 
 shall be intercepted or prevented in the 
 execution of the same. People v. Younss, 
 122 Mich. 292, 81 1ST. W. 114, 47: 108 
 
 33. One who is successful in obtaining 
 money by means of the confidence game 
 cannot be convicted of an attempt, although 
 the act was not consummated in the county 
 where the indictment was found. Graham 
 v. People, 181 111. 477, 55 N. E. 179, 47: 731 
 
 34. An attempt to make an unlawful sale 
 of the dead body of - a human being is itself 
 a misdemeanor. Thompson v. State, 105 
 Tenn. 177, 58 S. W. 213, 51: 883 
 To commit extortion. 
 
 35. The offense of attempting to commit 
 the crime of extortion may be committed by 
 threats which do not actually inspire fear 
 in the intended victim, even if the latter is 
 in fact acting as a decoy of the police. 
 People v. Gardner, 144 N". Y. 119, 38 N. E. 
 1003, 28:699 
 To commit larceny. 
 
 36. An indictment charging an attempt to 
 commit grand larceny in the second degree 
 is supported by proof that defendant while 
 in a crowd thrust his hand into another 
 person's pocket, and withdrew it therefrom 
 empty, although it is not shown that there 
 was any property in the pocket which could 
 be the subject of larceny, under statutes 
 defining grand larceny in the second degree 
 as stealing and unlawfully appropriating 
 property of any value by taking the same 
 from the person of another under circum- 
 stances not amounting to grand larceny, and 
 defining an attempt as an act done with in- 
 tent to commit crime, and tending, but fail- 
 in<", to effect its commission. People v. 
 Moaan, 123 N. Y. 254, 25 N. E. 412, 10: 109 
 To commit burglary. 
 
 37. An attempt to break and enter a 
 dwelling house was not made by the fact 
 that a person left his home with revolver 
 and slippers, and traveled 9 miles towards 
 
 the place where he intended to commit the 
 crime, where he met a person with whom 
 he had planned to commit the crime, and 
 then provided himself with chloroform and 
 loaded his revolver, but was prevented from 
 committing the crime by being arrested. 
 People v. Youngs, 122 Mich. 292, 81 N. W. 
 114, 47: 108 
 
 To commit robbery. 
 
 38. The offense of attempt to commit 
 robbery is created by a statute providing 
 that every person who attempts to commit 
 any crime, but fails, is punishable. People 
 v. Burns (Cal.) 69 Pac. 16, 60: 270 
 
 39. An assault with intent to commit a 
 robbery may be prosecuted as an attempt to 
 commit robbery. Id. 
 
 d. Solicitation. 
 
 Instigation as a Defense, see infra, I. f. 
 Charging Instigator as Principal, see In- 
 dictment, etc., 89. 
 See also infra, 56-58. 
 For Editorial Notes, see infra, VI. 8. 
 
 40. Soliciting another to commit a felony 
 is a crime distinct from that of attempting 
 to commit the felony. State v. Bowers, 35 
 S. C. 262, 14 S. E. 488, 15:199 
 
 41. Proof of persuading and procuring a 
 person to take poison, which results in 
 death, will warrant a conviction of murder. 
 Burnett v. People, 204 111. 208, 68 N. E. 505, 
 
 66: 304 
 Of bribe. 
 
 42. The solicitation of a bribe is not 
 punishable as a crime by the laws of Kan- 
 sas. State v. Bowles, 70 Kan. 821, 79 Pac. 
 726, 69: 176 
 
 43. The solicitation of a bribe does not 
 constitute an attempt to accept or receive 
 a bribe. Id. 
 To commit adultery. 
 
 44. Mere solicitation to commit adultery 
 is not an attempt to commit the crime. 
 State v. Butler, 8 Wash. 194, 35 Pac. 1093, 
 
 25:434 
 To commit arson. 
 
 45. An attempt to commit felony is made 
 by soliciting a person to set fire to the 
 dwelling house of another, and giving him 
 matches for that purpose, besides offering 
 him a reward, although the matches are 
 not used for that purpose, and the offer is 
 rejected. State v. Bowers, 35 S. C. 262, 14 
 S. E. 488, 15: 199 
 
 e. Parties to Offenses. 
 
 Indictment against Accessory, see Indict- 
 ment, etc., 92. 
 
 Information Charging Person as Accessory, 
 see Indictment, etc., 20. 
 
 Co-conspirators. 
 
 For Editorial Notes, see infra, VI. 6, 7. 
 
 46. Where the criminal liability arises 
 from the act of another, the act done must 
 be in furtherance of a common design or in 
 prosecution of a common purpose for which 
 the parties were combined. Butler v. Peo- 
 ple, 125 111. 641, 18 N. E. 338, 1 : 211
 
 CRIMINAL LAW. I. f 
 
 901 
 
 47. Active participation in planning a fe- 
 lonious taking of money, followed by an ac- 
 tual taking by a part of the confederates 
 in pursuance of the plan, will warrant a 
 conviction of larceny, although the accused 
 was not present when the crime was ac- 
 tually committed. Com. v. Hollister, 157 
 Pa. 13. 27 Atl. 386, 25: 349 
 
 48. To render a conspirator guilty of 
 a murder committed by a co-conspirator it 
 must have been committed in furtherance 
 of the conspiracy, and have been the nec- 
 essary and probable result of the execu- 
 tion of the conspiracy. Powers v. Com. 110 
 Ky. 386, 61 S. W. 735, 53: 245 
 
 49. To render one responsible for an act 
 committed in furtherance of a conspiracy, 
 his will must contribute to the thing ac- 
 tually done, so that if the conspiracy is to 
 commit a wrongful act not requiring a de- 
 praved, wicked, or malignant spirit, a con- 
 spirator merely as such will not be guilty 
 of murder in case, in carrying out the com- 
 mon design, a co-conspirator kills a per- 
 son. Id. 
 
 ' 50. That one of several members of a 
 municipal assembly jointly indicted for en- 
 tering into a corrupt agreement to sell 
 their votes upon a measure to come before 
 them is not guilty does not require the 
 acquital of others who are guiltv. State 
 v. Lehman, 182 Mo. 424, 81 S. W. 1118, 
 
 66: 490 
 
 51. Co-conspirators are not relieved from 
 liability for injuries caused by the conspir- 
 acy, by the fact that one of their number 
 was of unsound mind. Tucker v. Hyatt, 
 151 Ind. 332, 51 N. E. 469, 44: 129 
 
 52. The unsoundness of mind of a co-con- 
 spirator at the time of the trial of an ac- 
 tion to recover for injuries caused by the 
 conspiracy is no defense to any of the guilty 
 parties. Id. 
 Agent. 
 
 Indictment against, see Indictment, etc., 113. 
 For Editorial Notes, see infra. VI. 6, 7. 
 
 53. The fact that one of the participants 
 in a crime was a mere agent of another does 
 not affect his criminal liability for his acts. 
 Thompson v. State, 105 Tenn. 177, 58 S. W. 
 213, 51:883 
 Principal. 
 
 Locality of Prosecution of Accessory, see 
 
 Courts, 48. 
 Charging Instigator as, see Indictment, etc., 
 
 89. 
 
 Instructions as to, see Trial, 854. 
 See also Gaming, 10. 
 For Editorial Notes, see infra, VI. 6, 7. 
 
 54. One who proposes a scheme, and puts 
 in motion the forces by which court records 
 are removed from the files for the purpose 
 of destroying them, is guilty as principal 
 throughout the transaction, although the 
 papers are actually removed by the district 
 attorney under permission of a judge of 
 the court, and placed in the custody of a 
 public officer for delivery to the one who 
 wishes them. People v. Mills, 178 N. Y. 274, 
 70 N. E. 786, 67: 131 
 
 55. A man jointly indicted with another 
 for rape of the wife of the former cannot 
 
 be convicted after the other has been ac- 
 quitted, although he is indicted as a prin- 
 cipal in the offense, since he could be guilty 
 only as an aider and abettor. State v. 
 Haines, 51 La. Ann. 731, 25 So. 372, 44: 837 
 Advice and encouragement. 
 See also supra, 40-45, 47, 55. 
 For Editorial Notes, see infra, VT. 6. 
 
 56. It is not sufficient to charge one with 
 murder that the killing was in pursuance 
 of his advice, counsel, or encouragement, 
 unless it was induced thereby. Powers v. 
 Com. 110 Ky. 386, 61 S. W. 735, 53: 245 
 
 57. One who advises and counsels the kill- 
 ing of members of the legislature is guilty 
 of murder without any reference to the 
 question whether he engages in a conspir- 
 acy to do or procure the doing of sdme 
 other unlawful act, if in pursuance of such 
 advice and counsel, and induced thereby, a 
 member is killed. Id. 
 
 58. One who is present at the commis- 
 sion of a malicious trespass, advising or en- 
 couraging the destruction of property, is 
 equally guilty with those actually commit- 
 ting the offense, although he may not in 
 person injure the property, since in misde- 
 meanors all concerned, if guilty at all, are 
 principals. State v. Stark, 63 Kan. 529, 66 
 Pac. 243, 54: 910 
 
 f. Instigation or Consent, as Defense. 
 For Editorial Notes, see infra, VI. 9. 
 
 59. No crime is committed where one ar- 
 ranges to have a crime committed against 
 his property or himself, and knows that an 
 attempt is to be made to encourage others 
 to commit the act and to lead and encour- 
 age them in its commission, by one acting 
 in concert with the owner. Love v. People. 
 160 111. 501, 43 N. E. 710, 32: 139 
 
 60. The owner of property and his agent 
 may wait passively for a would-be criminal 
 to perpetrate an offense and each and every 
 part of it for himself, but must not aid, en- 
 courage, or solicit him that they may seek 
 to punish. Id. 
 
 61. One who knows of a crime contem- 
 plated against him may remain silent and 
 permit matters to go on, for the purpose of 
 apprehending the criminal, without being 
 held to have assented to the act. State v. 
 Abley, 110 Iowa, 61, 80 N. W. 225, 46: 862 
 
 62. The fact that the owner of a build- 
 ing to whom a detective disclosed that it 
 was probably about to be burglarized by 
 a person named, with the feigned assistance 
 of himself, acting for the purpose of secur- 
 ing evidence of the intended burglary and 
 other crimes, did not take steps to prevent 
 the burglary, but passively allowed it to 
 go on, is not a consent to the burglary that 
 will be a defense to the burglar. State v. 
 Currie 'N. IX) 102 N. W. 875. 69: 405 
 
 63. The criminal liability for breaking 
 and entering a store building and taking 
 goods therefrom at night is not defeated by 
 the fact that a clerk of the proprietor knew 
 that the offense was to be committed, and, 
 at the request of an officer acting as a de- 
 tective, had loaned his key in order to per-
 
 902 
 
 CRIMINAL LAW, II. a. 
 
 mit a duplicate to be made for the use of 
 the burglar, where it did not appear that 
 the clerk had charge of the building or 
 had any right to admit persons therein 
 after it was closed for the night, and his 
 conduct was not known to the proprietors, 
 since his assent to the entry will not be im- 
 puted to the master. State v. Abley, 109 
 Iowa, 61, 80 N. W. 225, 46: 862 
 
 Apparent co-operation of detective. 
 Criminal Liability of Detective, see Detect- 
 ive. 
 See also supra, 35, 62, 63. 
 
 64. A conviction of larceny will not be 
 prevented by the fact that one of the sup- 
 posed confederates in the plan had informed 
 the police and the intended victim, and 
 was acting with them for the purpose of 
 detecting and punishing the guilty parties, 
 if the latter had no knowledge of it and 
 performed all the acts necessary to consum- 
 mate the crime. Com. v. Hollister, 157 Pa. 
 13, 27 Atl. 386, 25: 349 
 
 65. Burglary is not committed by those 
 assisting a detective in entering a building 
 and taking money from a safe in pursuance 
 of a previously arranged plan between him 
 and the owner with the sole intent of en- 
 trapping the others into the apparent com- 
 mission of the crime. Love v. People, 160 
 111. 501, 43 N. E. 710, 32:139 
 
 66. The acts of a detective who appar- 
 ently assists in a burglary for the purpose 
 of securing evidence of the same and other 
 offenses are not to be imputed to the crim- 
 inal, as they are not acting in a common 
 purpose. .Nevertheless, if the offense is 
 committed by the person charged, as to 
 every element thereof, he may be found 
 guilty, notwithstanding the complicity of 
 the detective. State v. Currie (N. D.) 102 
 N. W. 875, 69:405 
 
 67. Upon the trial of one charged with 
 burglary, the mere fact that one who was 
 present with and assisted him in the burg- 
 lary was a detective is not a defense, if the 
 detective did not instigate the crime, and 
 it was committed, as to every ingredient 
 of it, by the criminal. Id. 
 
 II. Procedure, 
 a. In General. 
 
 Right to Appeal in Criminal Case, see Ap- 
 peal and Error, I. c; and also infra, 
 VI. 12. 
 
 Arrest of Judgment on Appeal, see Appeal 
 and Error, 168. 
 
 Furnishing Stenographer's Notes to Per- 
 son Convicted, see Appeal and Error, 
 182. 
 
 Dismissal of Appeal Because of Appellant's 
 Escape, see Appeal and Error, 378. 
 
 Presumptions on Appeal, see Appeal and 
 Error, 448-452. 
 
 Appeal from Death Warrant, see Appeal 
 and Error, 517. 
 
 Discretion as to Discharge of Jury, see Ap- 
 peal and Error, 571. 
 
 First Raising Question of Jurisdiction on 
 Appeal, see Appeal and Error, 597. 
 
 Review of Verdict, see Appeal and Error, 
 736-738. 
 
 Effect of Judge's Temporary Absence, see 
 Appeal and Error, 1112. 
 
 Prejudicial Error in Admission of Evidence, 
 see Appeal and Error, 907-910. 
 
 Prejudicial Error in Summoning and Selec- 
 tion of Jury, see Appeal and Error, VII. 
 m, 7, 6. 
 
 Bail and Recognizance, see Appeal and Er- 
 ror, 146; Bail and Recognizance. 
 
 Certiorari in Criminal Case, see Certiorari, 
 8, 41. 
 
 Review of Quashing of Appeal, see Certio- 
 rari, 27. 
 
 Constitutional Provision as to Criminal 
 Trials, see Constitutional Law, 62. 
 
 Changing Practice in, see Constitutional 
 Law, 99-102, 185. 
 
 Equal Protection and Privileges as to Jury, 
 see Constitutional Law, 5Q5-, 596. 
 
 Contempt Proceedings in Name of the. Peo- 
 ple, see Contempt, 64. 
 
 Continuance in Criminal Case, see Contin- 
 uance and Adjournment. 
 
 Review of Conviction by Writ of Error 
 Coram Nobis, see Coram Nobis. 
 
 Effect of State Law on Criminal Procedure 
 in Federal Court, see Courts, 366. 
 
 Jurisdiction in Criminal Case, see Courts, 
 I. b, 2; n. a, 6; III. h; IV. d, 2; and 
 also infra, VI. 13, 14. 
 
 Loss of Jurisdiction, see Courts, 255. 
 
 Private Counsel to Aid Prosecution, see Dis- 
 trict and Prosecuting Attorneys, 3, 4. 
 
 Evidence in Criminal Cases Generally, see 
 Evidence. 
 
 Presumption and Burden of Proof, see Evi- 
 dence, 219, 231-235, 243, 330-338, 358- 
 360. 388-391, 399, 424, 763-765; XIII. 
 14, 27, 29, 65-75, 87-89, 92-95. 
 
 Letters as Evidence, see Evidence, 956, 
 957. 
 
 Conviction of Crime as Evidence, see Evi- 
 dence, 876-881. 
 
 Admissibility of Dying Declarations, see 
 Evidence, X. 1. 
 
 Evidence as to Declarations of Acts of Ac- 
 cused, see Evidence, 1537-1540. 
 
 Proof of Acts or Declarations of Co-con- 
 spirators, see Evidence, X. g. 
 
 Relevancy of Evidence Generally see Evi- 
 dence, XI. t. 
 
 Evidence as to Character and Reputation 
 of Accused, see Evidence, 1747-1749. 
 
 Evidence of Other Crimes, see Evidence, XL 
 k. 
 
 Sufficiency of Proof, see Evidence, XII. 1. 
 
 Variance between Allegations and Proof, 
 see Evidence, 2417-2424. 
 
 Defense to Prosecution for Obtaining Money 
 by False Pretenses, see False Pre- 
 tenses, 12. 
 
 Competency of Juror, see Jury, II. b. 
 
 Jurisdiction of Justices, see Justice of the 
 Peace, 17-20. 
 
 Grounds for New Trial, see New Trial, 14. 
 
 Removal of Criminal Case, see Removal of 
 Causes, 8, 40-42, and also infra, 13.
 
 CRIMINAL LAW, II. a. 
 
 903 
 
 Unreasonable Searches and Seizures, see 
 
 Search and Seizure. 
 Directing Jury to Return Verdict of Guilty, 
 
 see Trinl, 573. 
 Election between Counts of Indictment, see 
 
 Trial, 8, 9. 
 Order of Proof, see Appeal and Error, 1119; 
 
 Trial, 23, 24. 
 Jury as Judges of the Law, see Trial, 111, 
 
 112. 
 Submission of Case or Question to Jury, 
 
 see Trial, II. 
 Argument of District Attorney, see Appeal 
 
 and Error, 1091a, 1092, 1097, 1101, 1104a, 
 
 HOC; Trial, 38, 47, 49, 50, 57-59. 
 Instructions in Criminal Case, see Appeal 
 
 and Error, 1042, 1057, 10CO, 1070-1072, 
 
 1080, 1090; Trial, III. 
 Verdict in Criminal Case, see Trial, 890, 
 
 916-923, 928. 
 Venue of Criminal Cases, see Venue, 17-19, 
 
 22-30. 
 
 Indorsing Names of Witnesses on Informa- 
 tion, see Witnesses, 23. 
 
 Competency of Witnesses, see Witnesses, I. 
 Accomplice as Witness, see Witnesses, 17- 
 
 20. 
 Examination of Witnesses, see Witnesses, 
 
 n. 
 
 Cross-Examination of Witnesses, see Wit- 
 nesses, II. b. 
 
 Impeachment or Discrediting of Witness, 
 see Witnesses, III. 
 
 Corroboration of Witness, see Witnesses, 
 193-200. 
 
 For Editorial Notes, see infra, VI. 12-27. 
 
 68. Constitutional provisions and forms of 
 proceedings relating to crimes denounced by 
 the public criminal statutes of the state do 
 not apply to violations of mere municipal 
 ordinances, save to a very qualified extent. 
 State v. Boneil, 42 La. Ann. 1110, 8 So. 
 298, 10: 60 
 
 69. It is the mandatory duty of a record- 
 er before whom complaints of murder are 
 lodged, to proceed to the investigation there- 
 of, unless the grand jury discharges the ac- 
 cused, or the state discontinues the prosecu- 
 tion before him. State ex rel. Matranga v. 
 Bringier, 42 La. Ann. 1091, 8 So. 279, 
 
 10: 137 
 
 70. A statute making an offense punish- 
 able by fine a misdemeanor within the 
 law governing procedure does not include 
 fines imposed for violation of municipal or- 
 dinances. Ogden v. Madison, 111 Wis. 413, 
 87 N. W. 568, 55: 506 
 
 71. Under a statute making the violation 
 of the conditions of his release by a. con- 
 vict an offense to which a penalty is at- 
 tached, he cannot be returned to prison un- 
 der the old mittimus or a copy thereof, but 
 he is entitled to have his guilt established 
 in a new proceeding. Re Conditional Dis- 
 charge of Convicts, 73 Vt. 414, 51 Atl. 10, 
 
 56: 658 
 
 72. A mistrial will result from changing 
 the judge, without defendant's consent, dur- 
 ing the trial of a criminal case, when the ar- 
 gument to the jury is in progress, the new 
 judge being required to read the defend- 
 ant's instructions to the jury, which have 
 
 been approved by his predecessor, and to 
 pass upon those presented by the state, al- 
 though the judges belong to the same cir- 
 cuit, and the statute permits such judges 
 to interchange with each other and per- 
 form each other's duties. Durden v. People, 
 192 111. 493, 61 N. E. 317, 55:240 
 
 73. Ordering the trial, upon a plea of not 
 guilty in a criminal case, to proceed before 
 the same jury that has disagreed and been 
 discharged upon a special issue of insanity, 
 is error under a statute which provides 
 that in ease of such disagreement the court 
 shall order the trial to proceed on the plea 
 of "not guilty," without providing that it 
 shall proceed before the same jury. French 
 v. State, 85 Wis. 400, 55 N. W. 566, 21: 402 
 
 74. An information charging one with 
 crime may be filed in vacation. State v. 
 Kyle, 166 Mo. 287, 65 S. W. 763, 56: 115 
 Preliminary examination. 
 
 Law Changing Place of, as Ex Post Facto, 
 see Constitutional Law, 101. 
 
 Parol Evidence of Testimony at, see Evi- 
 dence, 776, 777. 
 
 In Extradition Proceeding, see Extradition, 
 6. 
 
 Release for Errors on, see Habeas Corpus, 
 17, 19. 
 
 75. A preliminary examination is not an 
 action; the proceeding is not according to 
 the course of the common law; but it is 
 purely statutory and compliance with the 
 statute is requisite to jurisdiction at every 
 step. State ex rel. Durner v. Huegin, 110 
 Wis. 189, 85 N. W. 1046, 62: 700 
 
 76. An examination to determine whether 
 a criminal prosecution shall be commenced 
 is a judicial proceeding in that, so far as 
 the magistrate acts within his jurisdiction, 
 his decision is as binding for the purposes 
 of such proceeding when it is right as when 
 it is wrong, but if there is no evidence rea- 
 sonably permitting of action, a decision 
 upon a contrary theory is in excess of juris- 
 diction. Id. 
 
 77. The rule that the accused is entitled 
 to the benefit of any doubt does not apply 
 in preliminary examinations. Marks v. Sul- 
 livan, 8 Utah, 406, 32 Pac. 668, 20: 590 
 
 78. The mere fact that the order holding 
 the accused to answer for a crime was dated 
 October 4, when the arrest was made Sep- 
 tember 17, does not show that the commit- 
 ting magistrate had lost jurisdiction of the 
 case by delay, for the examination may 
 have been proceeded with immediately after 
 the arrest and continued until the order 
 was made. People v. Ebanks, 117 Cal. 652, 
 49 Pac. 1049, 40: 269 
 Necessity of presentment. 
 
 79. A crime is infamous within the mean- 
 ing of a constitutional provision that no 
 person shall be held to answer for such 
 crimes unless on presentment of a grand 
 jury, if conviction will result in an im- 
 prisonment for at least a year, which may 
 in the discretion of the court be in the state 
 prison. Re Butler, 84 Me. 25, 24 Atl. 456. 
 
 17: 764 
 
 80. A violation of the rules and regula- 
 tions of the Minnesota military code does
 
 904 
 
 CRIMINAL LAW, II. b. 
 
 not constitute a "criminal offense," within 
 the meaning of 7 of the Minnesota Bill of 
 Rights, respecting presentments or indict- 
 ments. State ex rel. Madigan v. Wagoner, 
 74 Minn. 518, 77 N. W. 424, 42: 749 
 
 81. The attempt to give police courts con- 
 current jurisdiction with the supreme court 
 in any criminal case where the fine does not 
 exceed $200 and the term of imprisonment 
 does not exceed one year, although the of- 
 fenses thus punishable were not within the 
 jurisdiction of a justice of the peace in 1784, 
 renders N. H. Laws 1895, chap. 117, uncon- 
 stitutional, because it impairs the constitu- 
 tional right of trial by jury, and of a pre- 
 sentment or indictment before prosecution 
 in cases in which such rights existed when 
 the state Constitution was adopted. State 
 v. Gerry, 66 N. H. 495, 38 All. 272, 38: 228 
 Leave to file information. 
 
 82. Leave of court was not necessary at 
 common law to authorize the filing of an 
 information for the prosecution of a crim- 
 inal. State v. Kyle, 166 Mo. 287, 65 S. W. 
 763, 56: H5 
 
 82a. Leave of court is not necessary to the 
 filing of an information by the district at- 
 torney charging the commission of crime. 
 State v. Gug'lielmo (Or.) 79 Pac. 577, 
 
 69: 466 
 
 82b. In the absence of evidence to the 
 contrary, a deputy district attorney who 
 signs the name of the district attorney to 
 the information will be presumed to have 
 possessed plenary power in the premises, 
 and to have been authorized to examine 
 witnesses to enable him intelligently to 
 charge persons with the commission of 
 crimes, to prepare informations, sign the 
 name of the district attorney thereto,, and 
 file them in court. Id. 
 
 Second indictment. 
 
 83. A grand jury may, without hearing 
 witnesses, return a second indictment 
 against a person for the same offense 
 charged in the first one, for the purpose of 
 correcting a formal description. Xordlinger 
 v. United States, 24 App. D. C. 406, 70: 227 
 Nolle prosequi; dismissal of indictment. 
 For Editorial Notes, see infra, VI. 24. 
 
 84. The right of a prosecuting attorney 
 to enter a nolle proserjui in. a criminal pro- 
 ceeding does not continue after a conviction 
 by verdict of guilty although sentence may 
 not have been pronounced. State ex rel. 
 Butler v. Moise, 48 La. Ann. 109, 18 So. 
 943, 35: 701 
 
 85. The dismissal of an indictment on the 
 motion of the county attorney after it has 
 been attacked by demurrer is not equivalent 
 to a decision of the court sustaining the 
 demurrer, so as to prevent the case from be- 
 ing resubmitted to the same or another 
 grand jury without order of the court, as 
 would otherwise be required under Minn. 
 Gen. Stat. 1894, 7207-7299. State v. 
 Peterson, 61 Minn. 73, 63 N. W. 171, 
 
 28: 324 
 
 b. Protection and Rights of Accused Gen- 
 erally. 
 
 Commitment of Witness for Defendant in 
 Absence of Jury, see Appeal and Error, 
 551. 
 
 harmless Error in Instruction as to Ac- 
 cused's Failure to Testify, see Appeal 
 and Error, 1042. 
 
 Applause as Ground for Reversing Convic- 
 tion, see Appeal and Error, 850. 
 
 Equal Protection as to Right of Appeal, see 
 Constitutional Law, 601. 
 
 Due Process as to Jury, see Constitutional 
 Law, 807-809. 
 
 Due Process in Compulsory Physical Exam- 
 ination of Accused, see Constitutional 
 Law, 824. 
 
 Duty of Prosecutor as to, see District and 
 Prosecuting Attorneys, 1. 
 
 Admissibility of Evidence Obtained by Un- 
 reasonable Search, see Evidence, 1025, 
 1036. 
 
 Evidence of Custom to Search Prisoners, 
 see Evidence, 2188. 
 
 Right to Trial by Jury, see Jury, I. b, 2; I. 
 d, 2; and also infra, VI. 16. 
 
 Cross-Examination of Accused, see Wit- 
 nesses, 108-115. 
 
 For Editorial Notes, see infra, VL 16. 
 
 86. Filing indictments against witnesses 
 to prove an alibi, based solely on evidence 
 of witnesses for the prosecution, in the pres- 
 ence of persons summoned to serve as jurors 
 in the trial of the case, is improper as not 
 calculated to give the accused a fair and 
 impartial trial. Atkins v. Com. 98 Ky. 539, 
 33 S. W. 948, 32 : 108 
 
 87. Requiring a defendant in a criminal 
 case to stand up or sit down in the presence 
 of the jury at any particular time is within 
 the discretion of the trial judge, involving 
 no constitutional right. People v. Gardner, 
 144 N. Y. 119, 38 N. E. 1003, 28: 69 
 Public trial. 
 
 See also infra, 90. 
 
 For Editorial Notes, see infra, VI. 12. 
 
 88. The constitutional right to a "public 
 trial" in a criminal case is violated by an 
 order of the court to a police officer station- 
 ed at the door of the court room to "see 
 that the room is not overcrowded, but that 
 all respectable citizens be admitted and 
 have an opportunity to get in whenever 
 thev shall apply," where it is shown that 
 citizens and taxpayers were excluded by 
 such officer while the seats provided for 
 spectators wve not all occupied. People v. 
 Murray, 89 Mich. 276, 50 N. W. 995, 
 
 14: 809 
 
 89. The fact that people might obtain ad- 
 mission to a court room by a private en- 
 trance through the clerk's office is no an- 
 swer to the charge that the constitutional 
 right to a public trial was denied by an 
 order of the court in pursuance of which 
 they were refused admittance at the public 
 entrance. Id. 
 Speedy trial. 
 
 See also supra, 78; infra, 149. 
 For Editorial Notes, see infra, VI. 25. 
 00. Statutory provisions permitting one
 
 CRIMINAL LAW, II. b. 
 
 905 
 
 accused of felony, who has been released 
 from custedy because not brought to trial 
 within sixty days as required by statute, 
 to be rearrested for the same offense, do not 
 violate constitutional provisions guarantee- 
 ing accused persons the right to a speedy 
 and public trial. Re Begerow, 136 Cal. 293, 
 68 Pac. 773, 56: 528 
 
 91. The lapse of more than sixty days af- 
 ter a mistrial without placing the case' on 
 the calendar for retrial or good cause shown 
 for the failure to do so, the delay not being 
 caused by or with the consent of the ac- 
 cused, will entitle him to discharge under 
 habeas corpus, where the Constitution guar- 
 antees him a speedy trial, and the statute 
 provides that prosecutions shall be dis- 
 missed if, in the absence of good cause 
 shown, the accused is not brought to trial 
 within sixty days after filing the indict- 
 ment, and the trial is not postponed upon 
 his application. Re Begerow, 133 Cal. 349, 
 65 Pac. 828, 56: 513 
 
 92. Prisoners out on bail who do not ap- 
 pear and demand trial cannot demand their 
 release for failure to prosecute after the 
 third term under a statute providing that 
 in case a prisoner is admitted to bail the 
 court may continue the trial of the cause 
 to the third term if it shall appear that 
 the witnesses for the people are absent and 
 their testimony material. Meadowcroft v. 
 People, 1G3 111. 56, 45 N. E. 303, 35: 176 
 Presence of accused. 
 
 Presumption as to, on Appeal, see Appeal 
 and Error, 452. 
 
 Estoppel to Complain of Reception of Ver- 
 dict in Absence of Accused, see Appeal 
 and Error, 488. 
 
 View by Jury in Absence of, see Appeal 
 and Error, 500. 
 
 For Editorial Notes, see infra, VI. 16. 
 
 93. A statute permitting a verdict when 
 defendant is voluntarily or wilfully absent 
 does not violate his constitutional right to 
 be present at the trial. State v. Hope, 100 
 Mo. 347, 13 S. W. 490, 8: 608 
 
 94. The constitutional right of a person 
 charged with a felony to be present during 
 his trial is not infringed by a statute which 
 permits the trial to proceed in his ab- 
 sence, if he absents himself pending the 
 trial. Gore v. State, 52 Ark. 285, 12 S. W. 
 5C4. 5: 832 
 
 95. The fact of sickness of an absent ju- 
 ror, which is one ground under the statute 
 for discharging the jury, cannot be deter- 
 mined on trial for a felony, in the absence 
 of defendant from the court room. .State 
 v. Smith, 44 Kan. 75, 24 Pac. 84, 8: 774 
 Right to meet witnesses. 
 
 Refusal of Continuance for Absence of Wit- 
 ness, as Violation of, see Continuance 
 and Adjournment, 20, 22. 
 
 Use ef Deposition on Trial, see Depositions, 
 13. 
 
 See also Evidence, 839. 
 
 For Editorial Notes, see infra, VI. 16. 
 
 96. One accused of crime is not con- 
 fronted with the witness against him, with- 
 in the meaning of Utah Const, art. 1, 12, 
 when he is compelled to sit 24 feet from the 
 
 witness, so that he cannot hear her testi- 
 mony or see her face, or see the jury, al- 
 though the witness states that she is afraid 
 to tell because she is afraid of the defend- 
 ant, and will not testify until he is re- 
 moved from immediately facing her. State 
 v. Mannion, 19 Utah, 505, 57 Pac. 542, 
 
 45: 638 
 
 97. Reading on a second trial of a crim- 
 inal case testimony of a witness who died 
 after the first trial, at which accused was 
 present and represented by counsel, who was 
 accorded the right of cross-examination, 
 does not infringe the right of the accused 
 to be confronted with the witnesses against 
 him, in the presence of the court. People 
 v. Elliott, 172 N. Y. 146, 64 N. E. 837, 
 
 60: 318 
 
 Crimination of self. 
 
 Privilege of Person Charged with Contempt, 
 see Contempt, 71. 
 
 Claim of Exemption from Discovery on 
 Ground of, see Discovery and Inspec- 
 tion, 3. 
 
 Evidence of Confessions, see Evidence, VIII. 
 
 Admission of Account Books as Violation of 
 Privilege against, see Evidence, 929. 
 
 Compelling Disclosure of Possession of De- 
 cedent's Property, see Executors and 
 Administrators, 111. 
 
 Right to Ask Juror Criminating Question, 
 see Jury, 103. 
 
 As to Privilege of Witnesses Generally, 
 see Witnesses, II. c. 
 
 See also supra, 87 > Evidence, 1538. 
 
 For Editorial Notes, see infra, VI. 20, 21. 
 
 98. Compelling the defendant in a crim- 
 inal case to stand up for the purpose of 
 identification does not violate the constitu- 
 tional provision against compelling one to 
 be a witness against himself. People v. 
 Gardner, 144 N. Y. 119, 38 N. E. 1003, 
 
 28: 699 
 
 99. The admission of testimony as to 
 marks and scars found upon the person of a 
 defendant in a criminal prosecution, during 
 a forcible examination of him with a view 
 to ascertaining his identity for the purpose 
 of arresting him, is not prohibited by a con- 
 stitutional provision that no person in any 
 criminal prosecution shall be compelled to 
 testify against himself. O'Brien v. State, 
 125 Ind. 38, 25 N. E. 137, 9: 323 
 
 100. The use of an envelope containing no 
 writing, but pictures, merely as evidence 
 against an accused n.rson in order to show 
 that his conduct in respect to these articles 
 was incriminating, is not in violation of a 
 constitutional guaranty that he shall not be 
 compelled to give evidence against himself, 
 although the envelope and inclosures were 
 taken from his premises by a trespasser. 
 State v. Griswold, 67 Conn. 290, 34 Atl. 
 1046, 33:227 
 
 101. Compelling samples of milk to be 
 furnished by dealers for inspection and 
 inalysi* is not unconstitutional as forcing 
 them to furnish evidence against them- 
 selves. State v. Dupaquier, 46 La. Ann. 
 577, 15 So. 502, 26: 162 
 
 102. The use of private property illegally 
 seized by the police officers against *ne ac-
 
 1 ,I06 
 
 CRIMINAL LAW, II. c, d. 
 
 cased of crime does not violate the consti- 
 tutional provision that no one shall in any 
 criminal case be compelled to be a witness 
 against himself. People v. Adams, 176 N. 
 V. 351. 68 N. E. 636, 63: 406 
 
 Trial before drunken juror. 
 
 103. The conviction of a person of a 
 crime which La. Const. 1898, art. 116, re- 
 quires should be tried by a jury of twelve, 
 though nine jurors concurring may render 
 a verdict, is not a legal conviction, though 
 twelve jurors are physically present during 
 the trial, and all concur in a verdict of 
 guilty, if one member of the jury is in a 
 drunken condition during the trial. State 
 v. Ned, 105 La. 696, 30 So. 126, 54: 933 
 Fettering. 
 
 For Editorial Notes, see infra, VI. 22. 
 
 104. The ancient right of one accused of 
 crime under an indictment or information, 
 to appear in court unfettered, is preserved 
 by legislative adoption of the common law. 
 State v. Williams, 18 Wash. 47, 50 Pac. 
 580, 39: 82) 
 
 105. The rights of an accused person to a 
 fair trial are impaired by keeping manacles 
 on other persons who are kept in court and 
 in the presence of the jury, when they have 
 been found guilty of the crime of burglary, 
 with which he also is charged. Id. 
 
 106. The constitutional right of an ac- 
 cused person to appear and defend in person 
 includes the right to be unfettered, unless 
 some impelling necessity demands his re- 
 straint to secure the safety of others and 
 his own custody. Id. 
 Waiver or loss of right. 
 
 Irregularity as to Arraigning Defendant and 
 Receiving Plea, see Appeal and Error, 
 675. 
 
 See also infra, 131-133. 
 
 For Editorial Notes, see infra, VI. 16. 
 
 107. A constitutional right cannot be 
 waived by the defendant or his counsel in a 
 felony case, but a statutory right may be 
 waived. Queenan v. Territory, 11 Okla. 261, 
 71 Pac. 218, 61: 324 
 
 108. Defendant who goes to trial with- 
 out objection that a copy of the indictment 
 and a list of the jurors has not been served 
 upon him thereby waives such omission. 
 Parker v. People, 13 Colo. 155. 21 Pac. 1120, 
 
 4: 803 
 
 109. Defendant in a criminal action did 
 not lose his right to complain of the ab- 
 sence of a witness, which was not in any 
 way occasioned by him or his counsel, be- 
 cause such witness was present at an earlier 
 period of the trial, and requested defend- 
 ant's counsel to be allowed at that time to 
 go on the stand and testify, and was subse- 
 quently compelled to leave the court for 
 providential cause, as it is defendant's 
 right to introduce his witnesses in the or- 
 der in which he or his counsel may deem 
 best. Ryder v. State. 100 Ga. 528, 28 S. E. 
 246. 38: 721 
 
 c. Warrant; Commitment. 
 
 Warrant for Extradition, see Extradition. 
 32-38. 
 
 110. In a state where the use of jails for 
 
 United States prisoners is permitted, when- 
 ever a prisoner is committed to jail a copy 
 ol the writ of commitment, showing the 
 grounds therefor, should, be left with the 
 jailer, whether the commitment is pending 
 examination, or for trial, or after convic- 
 tion. Erwin v. United States, 37 Fed. 470, 
 
 2: 229 
 Sufficiency of warrant of commitment. 
 
 111. A warrant of commitment for trial 
 which states the offense charged with con- 
 venient certainty is sufficient if good in all 
 other respects. State ex rel. Durner v. 
 Huegin, 110 Wis. 189, 85 N. W. 1046, 
 
 62: 700 
 
 112. The rule that a form for a commit- 
 ment prescribed by statute must be strictly 
 followed does not mean literally followed 
 unless the statute clearly so indicates. Id. 
 
 113. The formal language, "against the 
 peace and dignity of the state of Wisconsin, 
 and the statutes in such case made and pro- 
 vided," or equivalent formal words, is un- 
 necessary to either a criminal complaint or 
 warrant of commitment for trial. Id. 
 
 114. The statutory form for a commit- 
 ment found in Wis. Rev. Stat. 1898, 
 4774, is satisfied by the use of language in- 
 cluding all material elements, though such 
 language departs from the particular word- 
 ing of the form. Id. 
 
 115. The rule of convenient certainty as 
 to describing the offense in a warrant of 
 commitment does not require the facts to 
 be stated in detail; a statement thereof 
 according to their legal effect is sufficient. 
 
 Id. 
 
 116-18. The description of an offense in a 
 warrant of commitment by its generic 
 name, if it has one, whether the offense be 
 statutory or one known to the common law, 
 states by reasonable inference all the facts 
 requisite to such offense. Id. 
 
 d. Necessity of Indictment or Information. 
 
 Self-Executing Provision as to, see Consti- 
 tutional Law, 94. 
 
 Equal Protection as to, see Constitutional 
 Law, 593. 
 
 As to Requisites and Sufficiency of Indict- 
 ment, Information, or Complaint, sec 
 Indictment, etc. 
 
 See also supra, 80, 81; infra, 215. 
 
 Of indictment. 
 
 For Editorial Notes, see infra, VI. 12. 
 
 119. Indictment by a grand jury is not 
 necessary to due process of law, so as to 
 preclude the institution of a criminal pros- 
 ecution by information. State v. Gug- 
 lielmo (Or.') 79 Pac. 577. 69: 466 
 
 120. Prosecution upon an information 
 filed by the district attorney, as provided 
 by Or. Sess. Laws 1,899, p. 99, instead of 
 upon indictment of a grand jury, is suf- 
 ficient to constitute due process of law with- 
 in the meaning of U. S. Const. 14th Amend., 
 where all the rights and privileges of a reg- 
 ular trial are preserved to the accused. State 
 v. Tucker. 30 Or. 291. 61 Pac. 894, 51: 246 
 
 121. An act providing for an information 
 by the district attorney in place of an in-
 
 CRIMINAL LAW, II. e, f. 
 
 907 
 
 dictment by a grand jury, but that the cir- 
 cuit court may convene a grand jury when- 
 ever in its opinion it is deemed advisable to 
 do so, is authorized by Or. Const, art. 7, 
 18, regulating the organization of grand 
 juries, and giving the legislature power to 
 modify or abolish them. Id. 
 
 122. Under a constitutional provision for 
 the constitution of a grand jury, which em- 
 powers the legislature to modify or abolish 
 it, provision may be made for the institution 
 of criminal proceedings by information 
 without the entire abolition of the grand 
 jury. State v. Guglielmo (Or.) 79 Pac. 577, 
 
 69 : 4C6 
 
 123. A statute prescribing the procedure 
 is not necessary to permit the % filing of in- 
 formations under a constitutional amend- 
 ment forbidding the prosecution of crimi- 
 nals except by indictment or information, 
 although prosecution by information was 
 not authorized prior to the amendment, 
 since the common-law information may be 
 resorted to. State v. Kyle, 166 Mo. 287, 65 
 S. W. 763, 56: 115 
 Of information. 
 
 124. The constitutional right to an accu- 
 sation by information before being put on 
 trial for a misdemeanor stands on the same 
 ground, under X. H. Const, art. 88, as the 
 right to indictment before being on trial for 
 felony. State v. Gerry, 68 N. H. 495, 38 Atl. 
 272, 38: 228 
 
 e. Concurrent Proceedings. 
 
 As to Offense against Different Sovereign- 
 ties, see infra, HI. 
 See also infra, 143. 
 
 125. The fact that a prosecution is pend- 
 ing in another court for an offense against 
 the statutes of the state does not deprive 
 a municipal court of jurisdiction to try the 
 offender for the same a*?t as an offense 
 against a municipal ordinance. Anderson 
 v. O'Donnell. 29 S. C. 355, 7 S. E. 523. 
 
 1 : 632 
 
 126. The fact that the grand jury is in- 
 vestigating a charge of murder against ac- 
 cused in custody without the benefit of bail 
 is no justification for a recorder to decline 
 to fix and examine the complaint before 
 him. Such investigation does not suspend 
 the pending prosecution before the recorder. 
 State ex rel. Matranga v. Bringier, 42 La. 
 Ann. 1091. 8 So. 279, 10: 137 
 
 f. Pleading; Motions; Demurrer. 
 
 Confining Proof to Facts Stated in Bill of 
 Particulars, see Evidence, 2061. 
 
 As to Requisites and Sufficiency of Indict- 
 ment, Information, and Complaint, see 
 Indictment, etc. 
 
 Quashing of Indictment, see Indictment, 
 etc., IV. 
 
 See also infra, 144. 
 
 For Editorial Notes, see infra, VI. 17. 
 
 127. No pleading is necessary to support 
 the production of a pardon in a criminal 
 
 case. Powers v. Com. 110 Ky. 386, 61 S. W. 
 735, 53:245 
 
 Mode of raising questions. 
 See also infra, 137. 
 
 128. Failure of an indictment to set forth 
 the offense with sufficient clearness and 
 certainty must be taken advantage of by 
 demurrer, and not urged under a plea of 
 not guilty. Blum v. State, 94 Md. 375, 51 
 Atl. 26, 56: 322 
 
 129. An objection to an indictment which 
 shows a fatal defect upon its face may be 
 taken by demurrer, though a plea of abate- 
 ment will be necessary if the defect is not 
 apparent on its face. State v. Vincent, 91 
 Md. 718, 47 Atl. 1036, 52: 83 
 
 130. A verified plea in abatement is the 
 only mode of raising the question that an 
 information cannot be filed while the grand 
 jury is in session. Hobbs v. State, 133 Ind. 
 404, 32 N. E. 1019, 18: 774 
 Waiver or admission by plea or failure to 
 
 plead. 
 For Editorial Notes, see infra, VI. 17. 
 
 131. The benefit of a pardon as a bar to a 
 prosecution is not waived by a plea of not 
 guilty, or by other steps taken in the pro- 
 ceedings, but the pardon may be set up at 
 any time or stage of the proceedings be- 
 fore the execution of the sentence. Terri- 
 tory v. Richardson, 9 Okla. 579, 60 Pac. 244, 
 
 49: 440 
 
 132. The right to object to the panel of 
 the grand jury because the required number 
 of jurors were not drawn for it is waived 
 by filing a plea of guilty to the indictment. 
 State v. Belvel. 89 Iowa, 405, 56 N. W. 545, 
 
 27 : 846 
 
 133. The privilege of a person surren- 
 dered in interstate extradition proceedings, 
 as to trial for a different offense, is not 
 waived by failure to plead it in abatement 
 of the indictment for such different crime, 
 nor by entering a plea of not guilty there- 
 to when before the trial he asserts his priv- 
 ilege, and objects to the trial on that 
 ground. Ex parte McKnight, 48 Ohio St. 
 588, 28 N. E. 1034, 14: 128 
 
 134. A plea of guilty on a charge of vio- 
 lating a city ordinance is only an admission 
 that defendant committed the acts charged, 
 and it is immaterial where the ordinance is 
 invalid. Grossman v. Oakland, 30 Or. 478, 
 41 Pac. 5, 36: 593 
 Motions generally. 
 
 135. A motion asking the court to direct 
 an acquittal in a criminal case on account 
 of the failure of proof on the part of the 
 state, unless such failure is a total one, 
 must specify wherein it is claimed such 
 proof fails. 'State v. Tamler, 19 Or. 528, 25 
 Pac. 71, 9: 853 
 
 136. A motion to dismiss an indictment 
 cannot be based on facts not appearing on 
 the record. Com. v. Hayden, 163 Mass. 453, 
 40 N. E. 846, 28: 318 
 
 137. A motion to set aside an informa- 
 tion cannot be made after a plea of not 
 guilty and one trial upon that plea; nor can 
 the point be raised by motion in arrest, as 
 under the North Dakota statutes a motion 
 in arrest only reaches defects that are avail-
 
 908 
 
 CRIMINAL LAW. II. g, 1. 
 
 able on demurrer. State v. Pancoast, 5 N. 
 
 D. 516, 67 N. W. 1052, 35: 518 
 
 Motions in arrest of judgment. 
 
 First Making, on Appeal, see Appeal and Er- 
 ror, 637. 
 
 Authority of De Facto Judge to Arrest 
 Judgment, see Judges, 12. 
 
 See also supra, 137; infra, 282. 
 
 138. Duplicity in an information, which 
 amounts only to surplusage, is not ground 
 for motion in arrest. State v. Armstrong. 
 106 Mo. 395, 16 S. W. 604, 13: 41ft 
 
 139. An arrest of judgment can be only 
 for a defect appearing upon the face of the 
 record. On motion therefor, knowledge de- 
 rived from the evidence cannot be consid 
 ered. State v. Eaves, 106 N. C. 752, 11 S. E 
 370, 8: 259 
 
 g. Former Jeopardy. 
 1. In General. 
 
 Provision for Appeal as, see Appeal and Er- 
 ror, I. c. 
 
 Collusive Arrest in Other Court, see Courts 
 385. 
 
 See also Courts, 47; Judgment, ,226. 
 
 For Editorial Notes, see infra, VI. 19. 
 
 140. Jeopardy is the peril in which a de- 
 fendant is put when he is regularly charged 
 with a crime before a tribunal properly or- 
 sanized and competent to try him. Com. v. 
 Fitzpatrick, 121 Pa. 109, 15 Atl. 466, 
 
 1:451 
 
 141-2. The validity of a plea of former 
 jeopardy for an offense committed before an 
 amendment of the Constitution, interposed 
 on a trial after such amendment, will be 
 governed by the provisions of the amended 
 Constitution, where it is in favor of the 
 accused, and such amended Constitution de- 
 clares that the provisions of all laws in- 
 consistent with such Constitution shall 
 cease upon its adoption. State v. Rich- 
 ardson, 47 S. C. 166, 25 S. E. 220, 35: 235 
 
 143. Where, by reason of the fact that a 
 crime is partly consummated in each oi 
 several counties, the courts of each have 
 jurisdiction of the offense, the state cannot 
 begin a prosecution in one of them, and 
 then, at its pleasure, dismiss that and com- 
 mence another in another county, and so 
 harass the accused in every county in which 
 jurisdiction can be obtained. Coleman v. 
 State, 83 Miss. 290, 35 So. 937, 64: 807 
 
 144. A hearing upon a plea of former 
 jeopardy alone is not itself a jeopardy, and 
 a discharge upon such a hearing is not an 
 acquittal, since such plea does not involve 
 the merits of the case. State v. Hagcr, 61 
 Kan. 504, 59 Pac. 1080, 48: 254 
 What constitutes an acquittal. 
 
 See also supra, 144. 
 
 145. The refusal of a court to proceed to 
 trial of the prosecution on appeal from a 
 conviction is not an acquittal. Grand Rap- 
 ids v. Braudy, 105 Mich. 670. 64 N. W. 29, 
 
 :',2: 116 
 
 146. A verdict of manslaughter in the first 
 degree, which the court refuses to receive 
 because there are no degrees of manslaugh- 
 
 ter, does not amount to an acquittal of the- 
 higher offense of murder, so as to prevent 
 the jury, after retiring again, from render- 
 ing a verdict of murder in the first degree. 
 Grant v. State, 33 Fla. 291, 14 So. 757, 
 
 23: 723 
 Acquittal procured by bribery as bar. 
 
 147. That an acquittal was procured by 
 bribery of the prosecuting attorney will not 
 destroy the effect of a plea of former jeop- 
 ardy, where the state was a party to the- 
 former prosecution, and was represented 
 throughout by its proper officer, while the 
 proceedings up to and including the submis- 
 sion were regular. Shideler v. State, 129 
 Ind. 523, 28 N. E. 537, 29 N. E. 36, 16: 225 
 Trial without arraignment or plea. 
 
 148. A trial without arraignment of the 
 accused, or a waiver of it by aim, and 
 without a plea of not guilty, or the entry 
 of it for him, does not put the accused in 
 jeopardy so as to entitle him to plead a 
 former acquittal or conviction to a subse- 
 quent trial for the same offense. State v. 
 Rook, 61 Kan. 382, 59 Pac. 653, 49: 186 
 Release for delay in trial. 
 
 149. The release of a prisoner under ha- 
 beas corpus proceedings for failure to bring 
 him to trial within sixty days as required 
 by statute is not a bar to a subsequent pro- 
 ceeding against him for the same offense. 
 Re Begerow, 136 Cal. 293, 68 Pac. 773, 
 
 56: 52& 
 Withdrawal of case from jury. 
 
 150. One who has been put upon his trial 
 under a valid indictment before a court of 
 competent jurisdiction, and after a jury is 
 charged with a trial of the case, cannot, 
 after a withdrawal of the case from the 
 jury at the request of the prosecuting at- 
 torney and without his consent, after one 
 witness has been examined for the state, be- 
 again put upon his trial for the same of- 
 fense, either at common law or under S. C. 
 Const, art. 1, 17, providing that no person 
 shall be subject for the same offense to be 
 twice put in "jeopardy" of life or liberty. 
 State v. Richardson, 47 S. C. 166, 25 S. E. 
 220, 35 : 238 
 Withdrawal of juror. 
 
 151. A plea of former jeopardy should 
 be sustained where, after the evidence for 
 the state had been introduced at the former 
 trial, the judge, when absent from the 
 court room, and in the absence of the pris- 
 oner, released a juror upon representation* 
 as to the dangerous sickness of his wife, 
 which resulted in the discharge of the jury 
 without a verdict. Upchurch v. State, 3fr 
 Tex. Crim. Rep. 624, 38 S. W. 206, 44: 694 
 
 152. Under a statute permitting discharge 
 of the jury in a felony case upon one of 
 them becoming sick, or in case of accident 
 or circumstance occurring to prevent their 
 being kept together, the necessary facts 
 must be judicially determined; and if the 
 judge, when absent from the court room, 
 and in the absence of the prisoner, acts 
 upon representations made to him, and ex- 
 cuses a juror, the prisoner will be entitled 
 to release. Id-
 
 CRIMINAL LAW, II. g, 2 
 
 S09 
 
 Discharge of jury. 
 
 For Editorial Notes, see infra, VI. 19. 
 
 153. The discharge of the jury after a 
 criminal trial has progressed several days, 
 against the objection of defendant, upon in- 
 formation by telephone to some officer in 
 attendance on the court that one of the 
 jurors was sick and unable to proceed with 
 the trial, without further proof of the fact, 
 is a bar to a second trial, under R. I. Const, 
 art. 1, - 7, providing that no person shall, 
 "after acquittal," be tried for the same of- 
 fense. State v. Nelson, 19 R. I. 467, 34 Atl. 
 990, 33 : 559 
 
 154. One accused of a capital offense has 
 not been in jeopardy which will bar a sub- 
 sequent trial, where, after the jury has been 
 impaneled and the trial begun? the judge 
 discharges them after ascertaining by inde- 
 pendent investigation that some of them are 
 so prejudiced in favor of the accused as to 
 be incompetent, and have endeavored to 
 prejudice other jurors, belittled the state's 
 evidence, procured the intoxication of the 
 bailiff, and obtained communication with 
 persons not jurors. Re Ascher, 130 Mich. 
 540, 90 N. W. 418, 57: 806 
 
 155. A discharge of a jury after they 
 have been out for some time and their fore- 
 man has stated in tne presence of all, with- 
 out dissent by any, that there is no prob- 
 ability of their agreeing upon a verdict, 
 will not sustain a plea of former jeopardy. 
 State v. Hager, 61 Kan. 504, 59 Pac. 1080, 
 
 48: 254 
 
 156. The discharge of a jury -in a crim- 
 inal case without the consent of the ac- 
 cused, because the jurors are unable to 
 agree, will not sustain the defense of for- 
 mer jeopardy, on a subsequent trial. Dreyer 
 v. People, 188 111. 40, 58 N. E. 620, 58: 869 
 
 157. Discharge of a jury after one day's 
 deliberation, because the court was satisfied 
 that agreement was impossible, is not a bar 
 to another trial, under the Colorado Consti- 
 tution, which provides that "if the jury dis- 
 agree . . . the accused shall not be 
 deemed to have been in jeopardy." Re Alli- 
 son, 13 Colo. 525, 22 Pac. 820, 10: 790 
 
 158. Since in a capital case the court can- 
 not discharge the jury without the consent 
 of the defendant, unless an absolute neces- 
 sity requires it, the discharge of the jury 
 in such case on the last day of the term, 
 which the court had power to extend, after 
 they have for five days failed to agree upon 
 a verdict, made against the objection of the 
 defendant. bar3 another trial for the same 
 offense. Com. v. Fitzpatrick, 121 Pa. 109. 
 15 Atl. 460, 1: 451 
 Reversal of first conviction. 
 
 159. The plea of former jeopardy cannot 
 prevail where a judgment of conviction is 
 set aside on the application of the convict 
 becatise he has been denied a public trial. 
 People v. Murray, 89 Mich. 276, 50 N. W. 
 995, 14: 809 
 
 160. Procuring reversal of a judgment of 
 conviction on account of error by the trial 
 court waives the right to object to further 
 prosecution on the ground of former jeop- 
 
 ardy. McGinn v. State, 46 Neb. 427, 65 N. 
 W. 46, 30: 450 
 
 161. A sentence of conviction imposed 
 under authority of Mass. Pub. Stat. chap. 
 187, 13, after the reversal of a former 
 judgment, on the application of the convict, 
 because it was imposed under a statute 
 that was passed after the offense was com- 
 mitted, and was therefore unconstitutional 
 so far as it related to that offense, does not 
 violate the constitutional provision against 
 double jeopardy, or abridge the privileges 
 and immunities of the accused as a citizen, 
 or deprive him of his liberty without due 
 process of law, although he had partly 
 served the invalid sentence before it was re- 
 versed, including one day's solitary confine- 
 ment, to which each of the sentences con- 
 demned him. Com. v. Murphy, 174 Mass. 
 369, 54 N. E. 860, 48: 393 
 
 162. The granting of a new trial after 
 conviction of a lower offense than is charged 
 in the indictment will not authorize a con- 
 viction of the offense originally charged, 
 under a statute providing that no person 
 can be subjected to a second prosecution 
 for a public offense for which he has once 
 been prosecuted and acquitted. People v. 
 McFarlane, 138 Cal. 481, 71 Pac. 568, 72 Pac. 
 48, 61 : 245 
 
 163. A conviction of manslaughter may be 
 sustained, although the evidence establishes 
 murder on a second trial of an indictment 
 for murder upon which there was a con- 
 viction of manslaughter at the former trial, 
 which was set aside and a new trial granted; 
 where the evidence does not prove a case 
 where the verdict must be for murder or 
 acquittal as justifiable homicide. Id. 
 
 2. Different Offenses; Different Modes of 
 Describing Same Act. 
 
 Acquittal as Bar to Civil Action, see Judg- 
 ment, 172. 
 
 164. Acquittal of the larceny of a piano 
 will bar a subsequent trial upon an indict- 
 ment charging the same offense, committed 
 under the same circumstances as to time, 
 place, owner, etc., excepting that the subject 
 of the theft is stated to be an auto-electric 
 piano, or autolectra, instead of a piano, as 
 stated in the first indictment. Nordlinger 
 v. United States, 24 App. D. C. 408, 70: 227 
 
 165. A conviction of a battery bars a sub- 
 sequent prosecution for the same acts as 
 an assault with a deadly weapon with in- 
 tent to murder, where the statute permits 
 a conviction of any lower offense necessarily 
 included in a higher one with which a de- 
 fendant is charged. People v. McDaniels, 
 137 Cal. 192, 69 Pac. 1006, 59: 578 
 
 166. The uttering as true of a forged 
 mortgage and a forged note, which the mort- 
 gage purports to secure, at one time and to 
 the same party, is a single act, and consti- 
 tutes only one offense, and a conviction on 
 an indictment for uttering the mortgage is 
 a bar to a subsequent conviction for utter- 
 ing the note. State v. Moore, 86 Minn. 422, 
 90 N. W. 787, 61 : 819 
 
 167. An acquittal of the crime of libel in
 
 910 
 
 CRIMINAL LAW, II. h, III. 
 
 the use of certain words contained in a pub- 
 lished article will bar a subsequent prosecu- 
 tion for libel in using other words contained 
 in the same article published at the same 
 time and in the same newspaper. People 
 v. Stephens, 79 Cal. 428, 21 Pac. 856, 4: 845 
 
 168. Robbing different individual passen- 
 gers on a stage at the same time and in 
 rapid succession constitutes a distinct of- 
 fense for each individual; and a conviction 
 for robbing one is no bar to a prosecution 
 for robbing others. Re Allison, 13 Colo. 525, 
 26 Pac. 820, 10: 790 
 
 169. A conviction for selling liquor on 
 Sunday is not a bar to an indictment for 
 selling liquor without a license. Arrington 
 v. Com. 87 Va. 96, 12 S. E: 224, 10: 242 
 
 170. A conviction for furnishing intoxi- 
 cating liquor to a minor without legal au- 
 thority is not a bar to a prosecution for 
 selling the liquor without a license, where 
 the sale to the minor is an offense irrespec- 
 tive of the license, and the sale without li- 
 cense is an offense whether sold to a minor 
 or other person. Com. v. Vaughn, 101 Ky. 
 603, 42 S. W. 117, 45: 858 
 
 171. A person is not twice put in jeopardy 
 because he is subjected to an action for a 
 penalty as well as to a criminal prosecution 
 for the same offense. State ex rel. Beedle 
 
 v. Schoonover, 135 Ind. 526, 35 N. E. 119, 
 
 21 : 767 
 
 172. A suit for an injunction against the 
 violation of a statute, and punishment for 
 contempt of such an injunction, in addition 
 to a criminal prosecution for the illegal act, 
 do not violate the constitutional provision 
 against putting a person twice in jeopardy 
 for the same offense. State ex rel. Duen- 
 sing v. Roby, 142 Ind. 168, 41 N. E. 145, 
 
 33: 213 
 
 Acquittal as bar to prosecution for per- 
 jury. 
 
 173. Acquittal on a charge of a criminal 
 offense is a bar to a prosecution of the ac- 
 cused for perjury in swearing that he did 
 not commit the offense. Cooper v. Com. 106 
 Ky. 909, 51 S. W. 789, 59 S. W. 524, 
 
 45: 216 
 
 h. Determining Sanity of Accused; Pro- 
 ceeding with Trial. 
 
 Setting aside Conviction, see Appeal and 
 Error, 737. 
 
 Conclusiveness of Finding as to Sanity, see 
 Appeal and Error, 798. 
 
 Due Process as to, see Constitutional Law, 
 821. 
 
 Presumption and Burden of Proof as to 
 Sanitv. see Evidence TT. e, 5. 
 
 Opinion Evidence as to Sanity, see Evidence, 
 VIT. e. 
 
 Sufficiency of Proof of Insanity, see Evi- 
 dence. 2367-2371. 
 
 For Editorial Notes, see infra, VI. 23. 
 
 174. Reasonable ground to doubt the san- 
 ity of a person about to be tried for felonv 
 must appear before the court will impanel 
 a jury to inquire as to his sanity; and 
 the court may inspect and exnmine him. 
 consider his action and demeanor, read af- 
 
 fidavits, and inquire of physicians and oth- 
 ers touching his condition. State v. Harri- 
 son, 36 W. Va. 729, 15 S. E. 982, 18: 224 
 
 175. The trial of the question of the san- 
 ity or insanity of a person who has been 
 sentenced to death, on a claim that he has 
 become insane since the sentence, is not a 
 matter of absolute right, if the court is sat- 
 isfied of his sanity, but the investigation 
 of the matter is in the discretion of the 
 court. State v. Nordstrom, 21 Wash. 403, 
 58 Pac. 248, 53 : 584 
 
 176. A person who has no delusions, but 
 is more than ordinarily intelligent, with 
 memory unimpaired, and who appreciates 
 exactly the nature of a criminal charge 
 against him and his relations to the pro- 
 ceeding, and who, so far as mental opera- 
 tions are concerned, is as sane as men are 
 ordinarily, though, on account of a serious 
 illness resulting from indulgence in the ex- 
 cessive use of intoxicating drink, his brain 
 is affected so as to change his character, 
 whereby he has lost ambition, become aim- 
 less and trifling, and has deteriorated in 
 moral character, while his appetite for in- 
 toxicants has become uncontrollable at fre- 
 quent intervals, so that, if at liberty, he 
 will inevitably take to drinking, and when 
 under the influence of intoxicants will be 
 dangerous, is not insane within the mean- 
 ing of statutes providing for the restraint 
 of lunatics, but, if he has been committed to 
 an insane hospital after commencement of 
 a prosecution, is entitled to be returned to 
 the custody of the sheriff in order that the 
 trial maybe proceeded with. Re Buchan- 
 an, 129 Cal. 330, 61 Pac. 1120, 50: 378 
 
 III. Offenses against Different Sovereign- 
 ties. 
 
 Concurrent Proceedings in Different Court s, 
 
 see supra, II. e. 
 For Editorial . Notes, see infra, VI. 18. 
 
 Federal and state. 
 
 177. The same act may be an offense 
 against both state and Federal governments, 
 punishable in each jurisdiction under its 
 laws. People v. Welch, 141 N. Y. 266. 36 
 N. E. 328, 24: 117 
 
 178. Manslaughter committed within the 
 territorial limits of a state by the mis- 
 conduct or negligence of a pilot licensed 
 under Federal laws, in charge of a vessel 
 which comes into collision with another, 
 causing the death of a person, is punishRble 
 under state laws, although by U. S. Rev. 
 Stat. 5344, U. S. Comp. Stat.'l901, p. 3629, 
 it is made an offense against the United 
 States. Id. 
 ^tate and municipal. 
 
 Delegation of Power by Legislatirre to Mu- 
 nicipalitv as to, see Constitutional 
 Law, 205. 
 
 Tnrisdiction of Mayor, see Courts. 311. 
 
 See also supra, 125; Disorderlv Houses, 9; 
 Municipal Corporations, 110. 
 
 179. >io power to punish acts made crim-' 
 inal by the state law, and fully covered
 
 CRIMINAL LAW, IV. a. 
 
 911 
 
 thereby, is conferred by W. Va. Code, chap. 
 47, 28, vesting in the councils of municipal 
 corporations the power and duty "to pro- 
 tect the persons and property of the citi- 
 zens of such city, town, or village, and to 
 preserve peace and good order therein," ex- 
 cept such as would be attended with cir- 
 cumstances of aggravation not included in 
 the state law. Such power must be spe- 
 cifically and expressly given by the legisla- 
 ture before it can be exercised by such cor- 
 poration. Judy v. Lashley, 50 W. Va. 628, 
 41 S. E. 197, 57: 413 
 
 180. A city ordinance providing punish- 
 ment for the maintenance of a nuisance is 
 not invalid or unconstitutional because the 
 general statutes of the state provide for 
 the punishment of like offenses. , People v. 
 Detroit White Lead Works, 82 Mich. 471, 
 46 N. W. 735, 9: 722 
 
 181. A municipal ordinance making it an 
 offense to permit gaming in the place or 
 house of any person is not invalid because 
 the state has enacted a statute which pro- 
 hibits such acts in public places. Greenville 
 v. Kemmis, 58 S. C. 427, 36 S. E. 727, 
 
 50: 725 
 
 182. It cannot be made by ordinance an 
 offense against a city to do what a statute 
 makes an offense against the state, triable 
 only in a court of record (e. g., the keeping 
 or exhibiting of a gaming table or bank), 
 where the Constitution of the state provides 
 that all prosecutions shall be conducted in 
 the name and by the authority of the state 
 and shall conclude against the peace and 
 dignity of the state. Ex parte Fagg, 38 
 Tex. Crim. Rep. 573, 44 S. W. 294, 
 
 40: 212 
 
 183. A municipality may provide for the 
 summary punishment of a violation of its 
 ordinances for the suppression of disor- 
 derly houses, although the keeping of such 
 houses is a misdemeanor indictable at com- 
 mon law a"d triable by jury. Osrden v. Mad- 
 ison, 111 Wis. 413, 87 N. W. 568, 55: 506 
 
 184. The carrying of deadly weapons, be- 
 ing an offense fully provided for and pun- 
 ished by law, and being an act not in itself 
 amounting to a breach of the peace, cannot 
 be made an offense and punished by a mu- 
 nicipal ordinance, unless expressly author- 
 ized by the municipal charter. Judy v. 
 Lashley, 50 W. Va. 628, 41 S. E. 197, 
 
 57: 413 
 
 IV. Sentence and Imprisonment, 
 a. In General. 
 
 Due Process in Committing One Acquitted 
 because of Insanity, see Constitutional 
 Law, 876. 
 
 Effect of Conviction on Competency as 
 Juror, see Jury, 82. 
 
 Assessment of Punishment by Jury, -see 
 Jury, 37, 38, 66, 67; Trial, 920. 
 
 Prohibition against Imposition of Fine, see 
 Prohibition. 30. 
 
 Partial Invalidity of Statute as to Im- 
 prisonment, see Statutes, 102. 
 
 Strict Construction of Statute as to Impris- 
 onment, see Statutes, 513. 
 
 Effect of Amending Statute for Punishment 
 of Particular Crime, see Statutes, 615. 
 
 Instruction as to, see Trial, 848. 
 
 Sufficiency of Verdict, see Trial, 918. 
 
 See also supra, 3, 4. 
 
 For Editorial Notes, see infra, VI. 2, 28. 
 
 185. Punishment of two or more persons 
 for the same crime is to be inflicted as if 
 each one had committed the crime separate- 
 ly. Thompson v. State, 105 Tenn. 177, 53 S. 
 W. 213 ; 51:88.3 
 
 186. A plea of guilty to an information 
 charging larceny, under a general statute, in 
 one count, and horse stealing in another, ap- 
 plies to both counts, and authorizes sen- 
 tence for horse stealing. People v. Morris. 
 80 Mich. 634, 45 N. W. 591, 8: 680 
 
 187. The consolidation, upon the motion 
 of the defendants, of several indictments 
 for different offenses, for the purpose of 
 trial only, does not make it improper for 
 tne court to pass a separate sentence for 
 each conviction. Parker v. People, 13 Colo. 
 155, 21 Pac. 1120, 4: 80.7 
 By default. 
 
 188. A judgment by default against a cor- 
 poration indicted for misdemeanor may be 
 rendered on its failure to appear, by virtue 
 of the common law in Pennsylvania, which 
 has established this practice in civil cases, 
 notwithstanding the lack of any precedents 
 in criminal cases, since personal appearanc; 1 
 of the defendant is no more necessary in 
 case of misdemeanor than in a civil action. 
 Com. v. Lehigh Valley R. Co. 165 Pa. 162, 30 
 Atl. 836, 27: 23T 
 Delay in executing mittimus. 
 
 189. Failure to execute a mittimus under 
 a judgment sentencing a person to impris 
 onment for a certain number of days in case 
 of failure to pay a fine, until after the pre- 
 scribed number of days has elapsed, wiU 
 not entitle the defendant to relief from 
 the sentence, in the absence of any effort 
 on his part to have it promptly executed. 
 Miller v. Evans, 115 Iowa, 101. 88 N. W. 
 198, 56: 101 
 Changing mode of inflicting death penalty. 
 Shortening Time Before Execution as Ex 
 
 Post Facto Law, see Constitutional 
 Law, 112. 
 
 190. The legislature has power to change 
 the manner of inflicting the penalty of 
 death. People ex rel. Kemmler v. Durston. 
 119 N. Y. 569. 24 1ST. E. 6, 7: 715 
 Correction of. judgment. 
 
 191. The power of the court to correct a 
 judgment sentencing a person to death and 
 to solitary confinement until execution is 
 not lost by the fact of imprisonment after 
 sentence, on the ground that this is the suf- 
 fering of a part of the sentence. McGinn 
 v. State, 46 Neb. 427, 65 N. W. 46, 30: 450 
 Labor of convicts. 
 
 As to Hiring out of Convicts Generally, see 
 Convicts, 1, 2. 
 
 Involuntary Servitude by Hiring Out Va- 
 grant, see Involuntary Servitude. 
 
 See also infra, 209.
 
 912 
 
 CRIMINAL LAW, IV. b. 
 
 For Editorial Notes, see infra, VI. 28, 
 29.. 33. 
 
 192. Convicts cannot be worked in private 
 chain gangs controlled by private individ- 
 uals, and a convict confined on such a chain 
 gang should be released from the custody 
 of the individuals controlling it, and re- 
 manded to the custody of the authorities 
 lawfully entitled thereto. Simmons v. 
 Georgia Iron & Coal Co. 117 Ga. 305, 43 
 S. E. 780, 61 : 739 
 
 193. Constitutional provisions against 
 slavery and involuntary servitude are not 
 violated by an ordinance permitting prison- 
 ers committed to a city prison for violation 
 of a by-law or ordinance, in default of pay- 
 ment of a fine, to be employed by the city 
 marshal at labor either on the streets or 
 public works, or in a public or private 
 place, being credited $1 a day on a judg- 
 ment for fine for each day's work performed. 
 Topeka v. Boutwell, 53 Kan. 20, 35 Pac. 819, 
 
 27: 593 
 Sureties for good behavior. 
 
 194. In case of a conviction of selling in- 
 toxicating liquors without a license in viola- 
 tion of W. Va. Code, chap. 32, 1, 3, for- 
 bidding such sale and providing that the 
 punishment for such an offense shall be a 
 fine and, at the discretion of the court, im- 
 prisonment in the county jail, the court has 
 no power, in addition to imposing a fine and 
 costs, to require of the defendant sureties 
 for good behavior. State v. Gillilan, 51 W. 
 Va. 278, 38 S. E. 516. 57: 426 
 
 195. In case of conviction for a statutory 
 misdemeanor, or a common-law misdemean- 
 or for which punishment is prescribed by 
 statute, courts of record have no jurisdic- 
 tion to require of the defendant sureties for 
 .good behavior. Id. 
 
 196. Courts of record have a discretion- 
 ary jurisdiction, in case of conviction for a 
 gross common-law misdemeanor, punish- 
 ment for which has not been prescribed by 
 statute, to require of the defendant sureties 
 for good behavior. Id. 
 
 b. Cruel and Unusual Punishment. 
 
 As a Contempt of Court, see Contempt. 6. 
 
 Authorizing Sentence on Charge of Being 
 a Suspicious Person, see Disorderly Per- 
 sons, 1. 
 
 For Editorial Notes, see infra, VI. 29. 
 
 197. The legislature is ordinarily the 
 judge of the expediency of creating new 
 crimes, and of prescribing penalties, whether 
 light or severe, for prohibited acts. Com. 
 v. Murphy, 165 Mass. 66, 42 X. E. 504. 
 
 30: 734 
 
 198. The punishment of imprisonment for 
 life under Mass. Stat. 1SP3. chap. 466. for 
 criminal intimacy with a female child under 
 the age of sixteen years, is not in violation 
 of the constitutional provision against cruel 
 or unusual punishments. Id. 
 
 199. A minimum punishment of three 
 years for horse stealing, except in cases of 
 the first offense, when it may be only two 
 years, with a maximum of fifteen years. 
 
 is not cruel or unusual punishment, al- 
 though the punishment must be greater for 
 this crime than it may be for homicide. 
 People v. Morris, 80 Mich. 634, 45 N. W. 591, 
 
 8:685 
 Indeterminate sentence. 
 
 200. Cruel and unusual punishment is not 
 made by an indeterminate sentence, not 
 more than the maximum nor less than the 
 minimum prescribed by statute for the 
 specified crime. Miller v. State, 149 Ind. 
 607, 49 N. E. 894, 40: 109 
 Excessive fine. 
 
 See also infra, 202-205. 
 
 201. Imposing a fine of from $100 to $250, 
 and imprisonment from ten to thirty days, 
 for violating a statute regulating tempo- 
 rary or transient dealers, does not consti- 
 tute an excessive fine or cruel punishment 
 in violation of R. I. Const, art. 1, 8. State 
 v. Foster, 22 R. I. 163, 46 Atl. 833, 50: 339 
 Fine and imprisonment. 
 
 202. A fine of not less than $200 nor more 
 than $1,000, and imprisonment for not less 
 than ninety days nor more than one year, 
 for violation of a restraining order under 
 the South Carolina dispensary act of 1894. 
 22, are not within the constitutional pro- 
 vision against excessive fines or cruel and 
 unusual punishments. Ex pa-rte Keeler, 45 
 S. C. 537, 23 S. E. 865, 31: 678 
 
 203. Imprisonment for 2,160 days in de- 
 fault of payment of fines aggregating $720 
 and costs of prosecution for seventy-two 
 distinct violations of one ordinance against 
 trespass on public parks, all made within 
 one hour and forty minutes, constitutes an 
 unusual and unreasonable punishment. 
 State ex rel. Garvey v. Whitaker, 48 La. 
 Ann. 527, 19 So. 457, 35: 561 
 
 204. The constitutional provision against 
 cruel and unusual punishments is not violat- 
 ed by a statute authorizing imprisonment 
 from two to ten years and a fine not exceed- 
 ing $2,000 for conspiracy to do an unlawful 
 act in the night time, or to do such act 
 while wearing white caps, masks, or other 
 disguises. Hobbs v. State, 133 Ind. 404, 32 
 N. E. 1019, 18: 774 
 
 205. Punishment by fine of not less than 
 i?25 nor more than $200, or by imprisonment 
 in the city jail for not less than ten days 
 nor more than sixty days, for violation of 
 an ordinance prohibiting keepers of saloons, 
 barrooms, etc., from permitting females to 
 enter their places of business for immoral 
 purposes, is not unreasonable or oppressive. 
 State v. Nelson, 10 Idaho, 522, 79 Pac. 79, 
 
 67: 808 
 Chaining by neck. 
 
 206. To chain a prisoner by the neck with 
 a trace-chain and padlock so that he can 
 neither lie down nor sit down, and leave 
 him so chained in darkness for several hours 
 of the night, is cruel and unusual punish- 
 ment which it is the duty of the court to 
 nrevent. Re Birdsong, 39 Fed. 599. 4: 628 
 Imprisonment at hard labor. 
 
 See also supra. 192. 193. 
 
 207. Imprisonment at hard labor is not 
 unconstitutional as cruel or unusual punish- 
 ment for the offense of a tramp in threaten-
 
 CRIMINAL LAW, IV. c, d. 
 
 918 
 
 ng to do personal injury to another person. 
 State v. Hogan, 63 Ohio St. 202, 58 N. E. 
 572, 52: 863 
 
 Death penalty and mode of executing it. 
 
 208. The death penalty for assault upon 
 & -train with intent to commit robbery or 
 other felony, as provided by N. M. Comp. 
 Laws 1897, 1151, is not a cruel and un- 
 usual punishment within the meaning of U. 
 S. Const. 8th Amend. Territory v. Ketch- 
 urn, 10 N. M. 718, 65 Pac. 169, 55: 90 
 
 209. Permitting the warden to select the 
 day of the week designated by the court for 
 an execution does not render the statute 
 void as tending to aggravate the prisoner's 
 distress by enhancing his suspense. Storti 
 v. Com. 178 Mass. 549, 60 N. E. 210,^ 52: 520 
 
 210. The execution of a criminal by elec- 
 tricity is not cruel or unusual punishment 
 -within the meaning of a constitutional pro- 
 hibition of such punishments. Id. 
 
 211. Whether the use of electricity as an 
 Agency of producing death constitutes a 
 more humane method of executing the judg- 
 ment of the court in capital cases than 
 hanging is a question for the determination 
 of the legislature. The determination of 
 that question in the affirmative, after care- 
 ful deliberation, is conclusive upon the 
 <M>urts; and such method cannot, therefore, 
 be declared a violation of the constitutional 
 provision against cruel and unusual punish- 
 ment. People ex rel. Kemmler v. Durston, 
 119 N. Y. 569, 24 N. E. 6, 7: 715 
 
 . Extent of Punishment Generally; Exces- 
 sive Fines. 
 
 Right to Complain of Favorable Sentence, 
 see Appeal and Error, 477. 
 
 Reduction of Punishment on Appeal, see Ap- 
 peal and Error, 506-508. 
 
 Reviewing Judge's Discretion as to, see Ap- 
 peal and Error, 522. 
 
 In Bastardy Proceeding, see Bastardy, 7. 
 
 Change in Statute as Ex Post Fucto, see 
 Constitutional Law, 95, 105-112. 
 
 In Contempt Proceeding, see Contempt, IV. 
 
 Amount of Fine in Contempt Proceeding, 
 see Contempt, 93. 
 
 Evidence to Assist in Determining Extent, 
 see Evidence, 1779. 
 
 Tor Editorial Notes, see infra, VI. 29, 30. 
 
 212. A statute diminishing the degree of 
 punishment for an offense, but making no 
 alteration in the kind of punishment, must 
 govern in thereafter imposing punishment 
 for an offense committed prior to its pas- 
 sage. State v. Cooler, 30 S. C. 105, 8 a E. 
 692, 3-: 181 
 
 213. The city of New Orleans, even prior 
 to act 41, 1890, possessed power to enforce 
 her ordinances by fines and by imprisonment 
 in default of payment, within the limits 
 fixed by law; and, when the penalty de- 
 fined in an ordinance is within said limits, 
 the recorders of the city are bound to ob- 
 serve the same, and can neither extend nor 
 diminish them. State v. Boneil, 42 La. Ann. 
 1110, 8 So. 298, 10: 60 
 
 214. The power of the court to order con- 
 finement of a person sentenced to death, 
 during the time before execution, does not 
 
 L.R.A. Dig. 58. 
 
 rest upon any positive provision of statute, 
 as such confinement is not a part of the 
 penalty although it is a necessary incident 
 thereof. McGinn v. State, 46 Neb. 427, 65 
 N. W. 46, 30: 450 
 
 215. The disqualification from holding of- 
 fice for five years, prescribed by 35 of 
 the Illinois civil service act of 1895 as a 
 punishment for conviction under the preced- 
 ing section, so far as that punishment is 
 authorized without an indictment, is in 
 violation of 111. Const, art. 2, 8, requiring 
 indictment for criminal offenses, except 
 where the punishment is ''by fine or im- 
 prisonment otherwise than in the peni- 
 tentiary." People ex rel. Akin v. Kipley, 
 171 111. 44, 49 N. E. 229, 41: 775 
 Imposing imprisonment in lieu of fine. 
 
 216. Where a statute prescribes a fine as 
 the punishment for giving liquor to minors, 
 the court has no authority to impose im- 
 prisonment therefor. Pressly v. State 
 (Tenn.) 86. S. W. 378, 69: 291 
 
 217. An ordinance allowing imprisonment 
 without giving a person convicted an oppor- 
 tunity to pay a fine in lieu thereof is void, 
 wnere the charter of the town authorizes 
 imprisonment only in default of payment 
 of a fine. Calhoun v. Little, 106 Ga. 336, 
 32 S. E. 86, 43: 630 
 Excessive fines. 
 
 Reducing on Appeal, see Appeal and Error, 
 1207. 
 
 For Visiting Disorderly House, see Disorder- 
 ly Houses, 7. 
 
 Question for Jury as to Excessiveness, see 
 Trial, 108. 
 
 See also supra, 201-205. 
 
 218. A fine prescribed by statute cannot 
 be held by the courts to be excessive un- 
 less it is so clearly disproportioned to the 
 offense as to come necessarily within the 
 constitutional prohibition. State v. Main, 
 69 Conn. 123, 37 Atl. 80, 36: 623 
 
 219. A fine of $50 for violating an ordi- 
 nance prohibiting gaming does not consti- 
 tute an error of law on the ground that it 
 is excessive and unjust, where it is within 
 the limits prescribed by the city charter 
 and ordinance. Greenville v. Kemmis, 58 S. 
 C. 427, 36 S. E. 727, 50: 725 
 
 220. A fine of from $50 to $100 for each 
 day that street cars are run in violation of 
 law is not excessive, although a large aggre- 
 gate of fines may be made by repeatedly 
 committing the offense. State v. Hoskins, 
 58 Minn. 35, 59 N. W. 545, 25: 759 
 Validity of legal part of excessive sentence. 
 
 221. A sentence by a court having juris- 
 diction of the person and the offense, in ex- 
 cess of that permitted by law. is not void 
 in tola, but the portion thereof which 
 might have been legally imposed is valid. 
 Re Taylor, 7 S. D. 382, 64 N. W. 253, 45: 136 
 
 d. Time of Imprisonment; Cumulative and 
 Indeterminate Sentences. 
 
 Uncertainty of Duration as Ex Post Facto 
 
 Law, see Constitutional Law, 106. 
 For Editorial Notes, see infra, VI. 28. 
 
 222. The time of absence from jail of one
 
 914 
 
 CRIMINAL LAW, IV. e. 
 
 who, having been committed under an alter- 
 native judgment that he pay a fine or be 
 imprisoned a certain number of days, se- 
 cures his release through the unauthorized 
 act of the sheriff, cannot be considered as 
 having been spent in jail in satisfaction of 
 the judgment. Ex parte Vance, 90 Cal. 208, 
 27 Pac. 209, 13: 574 
 
 For attempt to commit crime. 
 See also infra, 240. 
 
 223. A statute making the penalty of an 
 attempt one half that prescribed for the 
 commission of the offense is void for uncer- 
 tainty in cases where the penalty for the of- 
 tense is imprisonment for life. People v. 
 Burns (Cal.) 69 Pac. 16, 60: 270 
 
 224. Under statutes fixing the punish- 
 ment for robbery at imprisonment for not 
 less than one year, arid permitting the 
 court, in its discretion, to sentence the of- 
 fender to imprisonment during his natural 
 life, and making the punishment for an at- 
 tempt, imprisonment for a term not exceed- 
 ing one half the longest term of imprison- 
 ment prescribed upon conviction of the of- 
 fense so attempted, an attempt to commit 
 robbery may be punished by imprisonment 
 for a definite term of years. Id. 
 When time begins to run. 
 
 225. A six months' sentence to a chain 
 gang does not begin to run from the date 
 of the sentence while the convict is at 
 liberty, where the sentence itself declares 
 that it shall begin and be counted from the 
 time of his reception in the chain gang. 
 Neal v. State, 104 Ga. 509, 30 S. E. 858, 
 
 42: 190 
 
 226. An order for the execution of a six 
 months' sentence to the chain gang may be 
 made after the expiration of six months 
 without calling on the accused to show 
 cause against it, where the sentence ex- 
 pressly declared that it should begin from 
 the time of his reception in the chain gang, 
 and during the meantime he has been at 
 liberty because of a void direction of the 
 court for the suspension of the execution 
 of the sentence. Id. 
 Cumulative sentences. 
 
 227. Cumulative and successive sentences 
 are within the power of a court to impose 
 at common law, and they may be imposed 
 by Federal courts without any express au- 
 thority by act of Congress. Howard v. 
 United States, 43 U. S. App. 678, 75 Fed. 
 986, 21 C. C. A. 586, 34: 509 
 
 228. A consolidation of separate indict- 
 ments charging definite offenses, for the 
 purposes of trial, does not make them one 
 offense so as to permit but one sentence. 
 
 Id. 
 
 229. Where four sentences in misdemean- 
 or cases are imposed against the same per- 
 son on the same day, each one after the first 
 providing that the term of service should 
 begin to run at the expiration of the time 
 fixed by those preceding, the convict is not 
 entitled to be discharged from custody until 
 he has served the aggregate time fixed by 
 the four sentences. Simmons v. Georgia 
 Iron & Coal Co. 117 Ga. 305, 43 S. E. 780. 
 
 61: 739 
 
 230. An escaped convict who under an- 
 other name is convicted and sentenced to 
 the same penitentiary for another crime- 
 may, at the expiration of the latter sen- 
 tence, be held to serve out the remainder 
 of his first sentence. Henderson v. James,. 
 52 Ohio St. 242, 39 N. E. 805. 27: 290- 
 Indeterminate sentences; deductions. 
 
 Ex Post Facto Law as to Deductions, se 
 Constitutional Law, 107-109. 
 
 Delegation of Power as to, see Constitution- 
 al Law, 234. 
 
 In Commitment to Reform School, see- 
 House of Correction, 6, 7. 
 
 Retrospective Statute as to, see Statutes,. 
 542. 
 
 See also supra, 200. 
 
 For Editorial Notes, see infra, VI. 28, 32.. 
 
 231. A sentence of not less than two nor 
 more than four years, in the discretion of 
 the board of control of prisons, may be good 
 for two years, although void as far as it 
 attempts to give discretion to the board. 
 People v. Cummings, 88 Mich. 249, 50 N. 
 W. 310, 14: 285- 
 
 232. The possibility of a deduction by 
 wood-time credits, although contingent on 
 the conduct of the convict, does not render 
 a sentence so indefinite or uncertain that a 
 successive sentence to begin on the expira- 
 tion of the former will be invalid. Howard 
 v. United States, 75 Fed. 986, 43 U. S. App. 
 678, 21 C. C. A. 586, 34: 509- 
 
 233. A statute permitting the imposition 
 of a sentence of imprisonment with a mini- 
 mum and maximum term is not unconsti- 
 tutional when read in connection with the- 
 law relating to prisons by which the author- 
 ities may, under certain circumstances,, 
 parole a prisoner at the termination of a 
 minimum term, subject to his good behavior, 
 and to the liability to be rearrested in case- 
 of breach of the parole. People v. Adams, 
 176 N. Y. 351, 68 N. E. 636, 63: 40& 
 
 e. Place of Imprisonment. 
 
 Commitment to Reform School, see House- 
 
 of Correction. 
 For Editorial Notes, see infra, VI. 29. 
 
 Workhouse. 
 
 See also Workhouse. 
 
 234. A person convicted of selling liquor 
 contrary to the provisions of the Brooks 
 law, in a county which has a contract for 
 the confinement of certain of its prisoner* 
 in the Allegheny county workhouse, a 
 authorized by the acts of 1886 and 1871, 
 may be committed to that institution, if his- 
 term of imprisonment is sufficient, although 
 the Brooks law provides for confinement in 
 the county jail. Com. v. Zelt, 138 Pa. 615, 
 21 Atl. 7, ' 11: 602- 
 Prison outside of state. 
 
 235. A convict may be sentenced to a 
 prison located beyond the state, when it is- 
 fiuthorized and required by statute. Mc- 
 Kinnev v. State. 3 Wyo. 719, 30 Pac. 293, 
 
 16: 710- 
 
 230. Imprisonment in the penrtentiary of 
 a sister state, under contract between the- 
 states, does not violate the Constitution of
 
 CRIMINAL LAW, IV. f, g. 
 
 915 
 
 the United States. Kingen v. Kelley. 3 
 Wyo. 566, 28 Pac. 36, 15: 177 
 
 Change of place. 
 
 Ex Post Facto Law as to, see Constitutional 
 Law, 110. 
 
 237. Changing the mittimus after sen- 
 tence of a prisoner, to conform to a change 
 in the location of the state penitentiary, 
 does not change or modify the judgment of 
 conviction, but may be done at a subsequent 
 term of court. Kingen v. Kelley, 3 Wyo. 
 566, 28 Pac. 36, 15: 177 
 
 238. A transfer of a convict from one 
 place of imprisonment to another is not such 
 a judicial act that it cannot be performed 
 by the governor under authority of statute. 
 Rich v. Chamberlain, 104 Mich. 436, 62 X. \V. 
 584, "27:573 
 
 f. Punishment of Second Offenses and 
 
 Habitual Criminals. 
 
 Ea Post Facto Law as to, see Constitutional 
 
 Law, 110. 
 For Editorial Notes, see infra, VI. 19, 29, 
 
 31. 
 
 239. Imprisonment for a felony, terminat- 
 ed by an unconditional pardon, is not to be 
 regarded as one of the two former im- 
 prisonments for felony required by 2 Bates's 
 (Ohio) Ann. Stat. 7388-11, to place the 
 accused in the category of habitual crimi- 
 nals. State v. Martin, 59 Ohio St. 212, 52 
 N. E. 188, 43: 94 
 
 240. Conviction of attempt to commit rob- 
 bery after conviction of prior crimes punish- 
 able by imprisonment in the state prison 
 does not require imposition of punishment 
 under a statute providing for life imprison- 
 ment after such conviction of one guilty of 
 a crime which, upon a first conviction, would 
 be punishable, at the discretion of the court, 
 by imprisonment for life, although one con- 
 victed of robbery under such circumstances 
 would be within the terms of such statute, 
 where there was no discretion to punish one 
 guilty of an attempt to commit robbery by 
 imprisonment for life. People v. Burns 
 (Cal.) 69 Pac. 16, 60: 270 
 
 g. Suspension of Sentence; Time of Impos- 
 
 ing. 
 
 In Contempt Proceeding, see Contempt, 90. 
 
 See also supra. 226. 
 
 For Editorial Notes, see infra, VI. 28. 
 
 Power to suspend. 
 
 241. The power to suspend sentence arfter 
 conviction is. at common law, inherent in a 
 court of record possessing jurisdiction in 
 criminal cases. People ex rel. Forsyth v. 
 Monroe County Ct. of Sess. 141 N. Y. 288. 
 36 N. E. 380, * 23 : 856 
 
 242. Sentence in a criminal case may law- 
 fully be suspended at the pleasure of the 
 court, and the court's power over an ac- 
 cused is not affected or lost by an order to 
 pay costs, both of himself and a codefend- 
 ant, or even by committing him for refusal 
 to do so. sin'. 1 *' the remiirement to pay costs 
 is not part of t^p sentence. State v. Crook. 
 115 N. C. 760, 20 S. E. 513, 29: 260 
 
 243. A statute authorizing a court to sus- 
 pend sentence in a criminal case after con- 
 viction does not encroach upon the constitu- 
 tional power of the executive to grant re- 
 prieves and pardons. People ex rel. Forsyth 
 v. Monroe County Ct. of Sess. 141 N. Y. 
 288, 36 N. E. 386, 23:856 
 
 244. The suspension of a sentence alrtady 
 pronounced, until further order of the court, 
 in case defendant pays the costs that day, 
 is beyond the authority of the court, at 
 least when it is done merely as a matter of 
 leniency to the prisoner. Re Wgbb, 89 Wis. 
 354, 62 N. W. 177, 27: 356 
 
 245. A trial court has no jurisdiction in- 
 definitely to suspend sentence after con- 
 viction of crime, or to release the prisoner 
 on parole, when the legislature has adopted 
 a plan to give persons convicted of crimes 
 an opportunity to reform by providing a 
 system of parole and boards to administer 
 it. People ex rel. Boenert v. Barrett, 202 
 111. 287, 67 N. E. 23, 63: 82 
 
 246. A clause noting the suspension of a 
 sentence, added at the end of the sentence 
 in a criminal case, should be ignored and 
 the sentence executed without regard there- 
 to, where there is no law in force which 
 authorizes such a suspension Neal v. State, 
 104 Ga. 509, 30 S. E. 858, 42: 190 
 Loss of jurisdiction to impose sentence by 
 
 suspension. 
 
 247. A court cannot preclude itself or its 
 successor from passing the proper sentence 
 whenever such a course appears to be prop- 
 er, by an order suspending sentence during 
 good behavior. People ex rel. Forsyth v. 
 Monroe County Ct. of Sess. 141 N. Y. 288, 
 36 N. E. 386, 23: 856 
 
 248. Power over a prisoner is lost upon 
 indefinite suspension of sentence without 
 recognizance after his plea of guilty, and the 
 court cannot subsequently sentence him. 
 People ex rel. Smith v. Allen, 155 111. 61, 39 
 N. E. 568, 41 : 473 
 
 249. Jurisdiction to impose sentence upon 
 one convicted of crime is lost by permitting 
 him to go at large upon his own recogni- 
 zance pending a motion for new trial, and 
 taking no further action in the case until 
 after the expiration of several terms of 
 court. People ex rel. Boenert v. Barrett, 
 202 111. 287, 67 N. E. 23, 63:82 
 
 250. The rieht to take advantage of the 
 loss of jurisdiction to impose sentence by 
 permitting: the convict to go at large for an 
 unreasonable time upon his own recogni- 
 zance is not lost by acting upon the favor 
 conferred by the court. Id. 
 
 251. An order committing a defendant to 
 serve out a sentence previously pronounced 
 but suspended, made after the time of im- 
 prisonment named in the sentence has ex- 
 oired, is void for want of jurisdiction. Re 
 Webb. Sfl Wis. 354, 62 N. W. 177, 27:356 
 Setting aside suspension. 
 
 252. A suspension of sentence without 
 conditions expressed in the judgment may 
 be set aside by the court on its own motion, 
 and the execution of the sentence ordered 
 at any time during the same term. Weber 
 v. State, 58 Ohio St. 616, 51 N. E. 116, 
 
 41 : 472
 
 916 
 
 CRIMINAL LAW, IV. h, 1. 
 
 h. Parole; Reprieve; Pardon. 
 1. In General. 
 
 Stay of Execution on Appeal as Reprieve, 
 
 see Appeal and Error, 118. 
 Validity of Agreement to Secure Pardon, 
 
 see Contracts, 494. 
 See also supra, 127, 131, -245. 
 
 253. In order to impeach a pardon for 
 fraud it must be done in a direct manner, 
 and not collaterally by contesting its 
 validity whtsn set up as a bar to a prosecu- 
 tion. Territory v. Richardson, 9 Okla. 579, 
 60 Pac. 244, ' 49 : 440 
 
 254. A territorial legislature has no power 
 to impose limitations upon the manner in 
 which the pardoning power shall be used, 
 set up, alleged, or called to the notice of 
 the court as a defense. Id. 
 
 254a. A "conviction" after which the gov- 
 ernor can grant pardon under La. Const. 
 1879, art. 66, is made by a verdict of guilty, 
 although sentence is not yet pronounced. 
 State ex rel. Butler v. Moise, 48 La. Ann. 
 109, 18 So. 943, 35: 701 
 
 255. The pardoning power of the govern- 
 or extends to cases of contempt. Sharp v. 
 State ex rel. Cason, 102 Tenn. 9, 49 S. W. 
 752, 43: 788 
 Validity of pardon. 
 
 See also infra, 267. 
 
 256. Failure to make application for a 
 pardon in the first instance to the Michigan 
 l>oard of pardons does not make a pardon 
 granted by the governor void. People v. 
 Marsh, 125 Mich. 410, 84 N. W. 472, 51: 461 
 
 257. A pardon granted by the governor 
 in the exercise of his constitutional author- 
 ity is not invalid because it was not pro- 
 cured in pursuance of statutory regulations. 
 Territory v. Richardson, 9 Okla. 579, 60 Pac. 
 r244, 49:440 
 
 258. A pardon by one who received a cer- 
 tificate of election as governor, and who was 
 inducted into office, but whose title has 
 been adjudged invalid in a contest duly in- 
 augurated, in which another has been de- 
 clared elected, is of no effect. Powers v. 
 Com. 110 Ky. 386, 61 S. W. 735. 53: 245 
 Infringing governor's power as to pardon. 
 See also supra, 239, 243. 
 
 259. The power to pardon after conviction 
 of crime which is conferred upon the gov- 
 ernor and other specified oflicers by Fla. 
 Const, art. 4, in all cases except impeach- 
 ment and treason, is exclusive of the legis- 
 lative power to grant a pardon by statute. 
 Singleton v. State. 38 Fla. 297, 21 So. 21, 
 
 34: 251 
 
 260. The exorcise of the pardoning power 
 is not infringed by a statute which author- 
 izes the suspension of certain penalties of 
 a prohibitory liquor law, in any city or 
 town, upon certain conditions, including the 
 consent of a specified portion of the elec- 
 tor^ State ex rel. Witter v. Forknor, 94 
 lo\\;t. 1, 62 K W. 772, 28:206 
 
 2til. The constitutional power of the gov- 
 ernor to grant a pardon or commutation of 
 sentence is not infringed by a statute pro- 
 viding a board of pardons to investigate the 
 
 facts on petition for a pardon, and to report 
 the results of their investigation, with such 
 recommendations as to them shall seem ex- 
 pedient, where such recommendations have 
 no binding force upon the governor. Rich 
 v. Chamberlain, 104 Mich. 436, 62 N. W. 584, 
 
 27:573 
 
 262. A restoration of competency to 
 testify as a witness which was lost by con- 
 viction of a crime cannot be made by legis- 
 lative act where the Constitution "confers 
 the pardoning power upon a board consist- 
 ing of the governor and several ' associates. 
 Singleton v. State, 33 Fla. 297, 21 So. 21, 
 
 34: 251 
 
 263. Where the poweY to grant pardons is, 
 by the Constitution, vested in the governor, 
 the legislature cannot create a board with 
 authority to grant conditional paroles or 
 releases from the state prisons and houses 
 of correction. Re Conditional Discharge of 
 Convicts, 73 Vt. 414, 51 Atl. 10, 56: 658 
 
 264. A statute providing for a maximum 
 and minimum sentence of imprisonment 
 for convicts, and giving a board power to 
 grant parojes after the expiration of the 
 minimum time, conflicts with the govern- 
 or's pardoning power. Id. 
 
 265. A statute authorizing a parole or 
 conditional release by the board of control 
 of prisons, of a. prisoner who is sentenced 
 for an indefinite term, whereby he remains 
 in the legal custody of the board, although 
 outside the prison and subject to be taken 
 back on order of the board if he violates the 
 conditions of his parole or release, is in vio- 
 lation of Mich. Const, art. 6, 1, 
 giving the judicial power to the courts, or 
 art. 5, 11, giving pardoning power to the 
 governor. People v. Cummings, 88 Mich. 
 249, 50 N. W. 310, 14: 285 
 Time of granting pardon. 
 
 266. A pardon extends to every offense 
 known to the law, and may be exercised at 
 any time after its commission, either before 
 legal proceedings are taken, or during their 
 pendency, or after conviction and judgment. 
 Territory v. Richardson, 9 Okla. 579, 60 
 Pac. 244, 49: 440 
 
 267. A pardon granted after conviction 
 and pending a hearing in the supreme court, 
 to which the case was removed by the de- 
 fendant by bill of exceptions before sen- 
 tence, is valid under Mich. Const, art. 6, 
 11, providing that the governor may grant 
 pardons after conviction, since the defend- 
 ant admits his guilt and waives the bill 
 of exceptions by his petition for, and ac- 
 ceptance of, the pardon, and asking to have 
 the record remanded to the trial court on 
 the strength thereof. People v. Marsh, 125 
 Mich. 410, 84 X. W. 472. 51: 461 
 Execution of reprieved criminal. 
 
 208. The granting of a reprieve and the 
 fixing of a day for the execution of a con- 
 victed criminal is by the common 1 aw a 
 judicial power, and cannot be exercised by 
 the governor, or person administering the 
 government, except in so far as it is ex- 
 nressly permitted by the Constitution. 
 State,' Clifford, Prosecutor, v. Heller (N. J. 
 Sup.) 63 X. J. L. 105, 42 Atl. 155, 57: 312
 
 CRIMINAL LAW, IV. b, 2, V 
 
 917 
 
 2C9. A warrant by the governor for the 
 execution of a reprieved criminal cannot be 
 lawfully issued more than ninety days after 
 conviction, under N. J. act April 16, 1846, 
 providing that where a reprieve is granted 
 by the governor he shall issue his warrant 
 to the sheriff of the proper county, fixing 
 a time for execution of the sentence, since 
 N. J. Const. 1844, art. 5, cl. 9, gives the 
 executive power to grant a reprieve to ex- 
 tend until the expiration of a time not ex- 
 ceeding ninety days after conviction, and 
 art. 3 prohibits the exercise by the gov- 
 ernor of any legislative or judicial power 
 except as expressly provided in the Consti- 
 tution. Id. 
 Effect of pardon. 
 For Editorial Notes, see infra, VI. 12. 
 
 270. A pardon is an act of grace, proceed- 
 ing from the powers intrusted with the ex- 
 ecution of the laws, which exempts the in- 
 dividual upon whom it is bestowed from the 
 punishment which the law inflicts for the 
 commission of a crime. It is a remission of 
 guilt, and a declaration of record by the au- 
 thorized authority that a particular individ- 
 ual is to be relievea from the legal conse- 
 quences of a particular crime. Territory v. 
 Richardson, 9 Okla. 579, 60 Pac. 244, 49: 440 
 
 271. A remission of fine is made by a par- 
 don granted while the fine remains in the 
 hands of the sheriff to whom it was paid, 
 before he has paid it over to the treasury or 
 been charged with it in an audit of his ac- 
 counts. Fischel v. Mills, 55 Ark. 344, 18 S. 
 W. 237, 15: 395 
 
 2. Conditional. 
 
 Partial Invalidity of Statute as to, see Stat- 
 utes, 91. 
 
 See also supra, 263-265. 
 For Editorial Notes, see infra, VI. 28. 
 
 272. A convict who elects to accept a pa- 
 role, and avails himself of the liberty which 
 it confers, must do so subject to the con- 
 ditions upon which alone it is granted to 
 him. Fuller v. State, 122 Ala. 32, 26 So. 146, 
 
 45: 502 
 
 273. The parole of a convict is in the na- 
 ture of a conditional pardon, and within the 
 constitutional grant of the pardoning power 
 to the governor. Id. 
 
 274. Mich. Laws 1893, act No. 207, popu- 
 larly known as the "jag cure act," which 
 authorizes a person convicted of drunkenness 
 to be released on a recognizance conditioned 
 that he will immediately take treatment for 
 the cure of drunkenness of some corporation 
 organized by law to make and file reports 
 in reference thereto, and that he will obey 
 all regulations prescribed by those adminis- 
 tering such cure, with a further provision 
 that he may be acquitted and discharged at 
 the end of sixty days on proof that he has 
 conformed to such conditions. is xinconsti- 
 tutional as an attempt to permit unofficial 
 persons to prescribe rules which shall acquit 
 persons charged with crime, while these 
 rules may be as variable as the corporations 
 are numerous. Senate of the Happy Home 
 Club v. Alpena County, 99 Mich. 117, 57 N. 
 W. 1101, 23: 144 
 
 Right to grant conditional pardon. 
 
 275. A pardon on condition that the pris- 
 oner "leave the state within forty-eight 
 hours, never to return," may be lawfully 
 granted by a governor who has authority, 
 under the state Constitution, to "grant par- 
 don on such terms and under such restric- 
 tions as he shall think proper." State v. 
 Barnes, 32 S. C. 14, 10 S. E. 611, 6: 743 
 
 276. A constitutional provision forbidding 
 exile does not prevent the granting of par- 
 dons to convicts upon condition that they 
 leave the state and never return. Ex parte 
 Hawkins, 61 Ark. 321, 33 S. W. 106, 30: 730 
 
 277. The condition attached to the grant- 
 ing of a pardon, that the convicted person 
 shall pay to the county a specified sum for 
 its reimbursement for the expense incurred 
 for the prosecution, is not unlawful so as to 
 render the pardon invalid. People v. March, 
 125 Mich. 410, 84 N. W. 472, 51 : 461 
 Breach of condition. 
 
 Person Violating Condition as Fugitive from 
 Justice, see Extradition, 12. 
 
 Issuing Warrant for Return upon, see Gov- 
 ernor, 1. 
 
 See also supra, 71, 233. 
 
 278. On forfeiture of a pardon by breach 
 of the conditions, a convict becomes liable to 
 serve that part which he has not already 
 served of the term of imprisonment for 
 which he was sentenced, although the origi- 
 nal term has long since expired. State v. 
 Barnes, 32 S. C. 14, 10 S. E. 611, 6: 743 
 
 279. The summary arrest of a convict who 
 has violated his parole, and his summary re- 
 turn or remand ment to servitude or impris- 
 onment under his sentence, are not in vio- 
 lation of the constitutional guaranties gov- 
 erning the arrest and trial of criminals. 
 Fuller v. State, 122 Ala. 32, 26 So. 146, 
 
 46: 502 
 
 280. A convict who has received and ac- 
 cepted a conditional pardon cannot be ar- 
 rested and remanded for nonperformance of 
 the condition, upon the mere order of the 
 governor, but is entitled to a hearing be- 
 fore a court and an opportunity to show per- 
 formance of the condition, or legal cause for 
 his failure to perform. State ex rel. O'Con- 
 nor v. Wolfer, 53 Minn. 135, 54 N. W. 1065, 
 
 19: 783 
 
 281. On a hearing as to the performance 
 of the condition of a pardon, where a convict 
 is rearrested for failure to perform such con- 
 dition, he is not entitled to a jury trial as 
 a matter of right, except upon the question 
 whether he is the same person who was con- 
 victed, if he pleads that he is not. Id. 
 
 V. Record. 
 
 Record on Appeal, see Appeal and Error, IV. 
 Presumption as to, see Evidence, 629. 
 See also supra, 136. 
 
 282. The "face of the record" considered 
 on a motion in arrest of judgment on indict- 
 ment embraces not only the face of the in- 
 dictment, but the entire record as made up 
 to that point. State v. Haines, 51 La. Ann. 
 731, 25 So. 372, 44: 837
 
 918 
 
 CRIMINAL LAW, VI. (Ed. Notes.) 
 
 283. The record in a murder case, which 
 does not show that the prisoner was present 
 at any time during the trial except when he 
 was arraigned and pleaded, does not show 
 that he had legal and constitutional trial, 
 and is fatally defective. French v. btate, 85 
 Wis. 400, 55 JN. W. 566, 21: 402 
 
 VI. Editorial Notes. 
 
 For Review, on Appeal, of Decisions in 
 Criminal Cases, see Ap- 
 peal and Error, XI. 11, 
 12, 14. 
 
 a. Criminal liability; excuses; defenses. 
 
 i. Generally. 
 
 As to Self -Defense, see Assault, III; Homi- 
 cide, IV. 
 Ignorance of law as an excuse for crime. 
 
 11: 810.* 
 
 Ignorance of fact as an excuse. 11: 810.* 
 Guilty knowledge as an element of crime. 
 
 10: 35.* 
 Intent as an element of crime. 11: 807; 
 
 13: 134.* 
 
 Validity of statute making it criminal to 
 have possession of prop- 
 erty which is capable of 
 criminal use. 20: 52. 
 
 Criminal liability for violation of statute 
 limiting hours of labor. 
 65: 50. 
 
 Good character as a defense. 8: 301.* 
 Criminal liability of newspaper proprietor 
 for libel published with- 
 out his consent. 26: 779. 
 Adoption of common law in United States 
 as to criminal matters. 
 22: 507. 
 
 Want of internal revenue stamp on instru- 
 ment requiring stamp, as 
 affecting criminal prose- 
 cution. 46: 454. 
 
 2. Criminal liability of children. 
 The period of indiscretion innocence legally 
 
 presumed. 36: 196. 
 The common-law rule. 36: 196. 
 The common-law rule changed by stat- 
 ute. 36: 197. 
 
 The dubious age of discretion innocence 
 
 presumed prima facie, 
 
 guilt may be proved. 36: 
 
 197. 
 
 As to felonies other than rape. 36: 
 
 197. 
 
 Murder. 36: 200. 
 Assault with intent to inflict great 
 
 bodily injury. 36: 201. 
 Arson. 36: 201. 
 Burglary. 36: 201. 
 Larceny. 36: 201. 
 Larceny by bailee. 36: 202. 
 Accessory "to theft. 36:202. 
 Bigamy or polygamy. 36: 202. 
 False pretenses. 36": 203. 
 Perjury. 36: 203. 
 As to rape. 36: 203. 
 
 The English rule. 36: 203. 
 The American rule. 36: 203. 
 
 Lesser crimes not amounting to rape. 
 
 36: 204. 
 
 Assault with intent to commit 
 rape. 36: 204; 36: 205; 
 36: 206. 
 
 Aiding and assisting. 36: 204. 
 Common "assault" upon a female. 
 
 36: 205. 
 
 Indecent assault. 36: 205. 
 Assault and battery upon a female. 
 
 36: 206. 
 Misdemeanors. 36: 206. 
 
 Assault and battery in ordinary 
 
 cases. 36: 206. 
 Gambling. 36: 207. 
 Malicious trespass. 36: 207. 
 Misdemeanors connected with own- 
 ership of land. 36:207. 
 Vagrancy. 36: 207. 
 
 The age of presumed discretion. 36: 207. 
 The rule stated. 36: 207. 
 Particular applications of the rule. 36: 
 
 207. 
 To manslaughter and murder. 36: 
 
 207. 
 
 To Sabbath desecration. 36: 208. 
 To riot. 36: 208. 
 To obstruction of railway track. 
 
 36: 208. 
 
 To rape. 36: 208. 
 
 To failure to support wife (Mich- 
 igan). 36:208. 
 To seduction. 36: 208. 
 To treason. 36: 208. 
 Confession of infants. 36: 208. 
 Command of parent no excuse for infant's 
 criminal act done there- 
 under. 36: 210. 
 
 Punishment of infants. 36: 210. 
 3. Mental condition as affecting criminal 
 
 responsibility. 
 Presumption as to Sanity, see Evidence, 
 
 XIII. 14. 
 Burden of Proof as to Sanity or Insanity, 
 
 see Evidence, XIII. 29. 
 
 Expert and Nonexpert Evidence aa to San- 
 ity, see Evidence, XIII. 
 65-68. 
 
 What are insane delusions. 37: 261. 
 Morphinism as affecting responsibility. 39: 
 
 262. 
 
 Kleptomania as a defense to theft. 18: 229. 
 Effect of hypnotism in criminal cases. 40: 
 
 269. 
 Proof of other crimes to rebut defense of 
 
 insanity. 62 : 300. 
 Insanitv after commission of criminal act. 
 
 38: 577. 
 Presumption of continuance of insanity. 
 
 35: 117. 
 
 4. Irresistible impulse as excuse for crime, 
 flenerally. 18: 224. 
 
 Effect of disease to create irresistible im- 
 pulse. 18: 228. 
 Impulse obliterating sense of right and 
 
 wrong. 18: 229. 
 Kleptomania. 18: 229. 
 5. What intoxication will excuse crime. 
 The general rule. 36: 465. 
 When intoxication may be shown. 36: 467. 
 Generally. 36: 467. 
 Larceny; robbery. 36: 469.
 
 CRIMINAL LAW, VI. (Ed. Notes.) 
 
 Burglary. 36: 470. 
 Forgery. 36: 470. 
 Homicide. 36: 470. 
 Intent. 36: 470. 
 Wilful drunkenness. 36 : 473. 
 Deliberation and premeditation. 
 
 36: 473. 
 
 Provocation; self-defense. 36: 476. 
 Assaults. 36:477. 
 Kape. 36: 479. 
 
 Attempts to commit suicide. 36: 479. 
 Insanity induced by intoxication. 36 : 479. 
 The general doctrine. 36: 479. 
 What degree of insanity excuses. 36: 
 
 480. 
 
 Effect of particular susceptibility to in- 
 sanity from drink. 36: 
 482. i 
 
 Intoxication under the Texas statute. 36:483. 
 Involuntary intoxication. 36: 484. 
 Voluntary intoxication in extenuation of 
 
 crime. 8: 33.* 
 6. Principals; accessories; conspirators; 
 
 accomplices. 
 Admissibility of acts and declarations of 
 
 co-conspirators. 1 : 273.* 
 Aiders and a betters of principals. 13: 195.* 
 Aiders and abetters guilty as principals. 8: 
 
 297.* 
 
 Liability for acts of associates. 1: 211.* 
 Spectators at prize fight as accomplices. 
 
 15: 516. 
 Basing an indictment upon testimony of 
 
 accomplices. 28: 310. 
 hild as accessory to theft. 36: 202. 
 7. Criminal and penal liability for act of 
 
 copartner, servant, or agent. 
 General rules. 41:650. 
 
 Application to particular subjects. 41: 652. 
 Crimes against the person. 41: 652. 
 Forgery, burglary, larcenv. 41 : 652. 
 Libel. 41 : 653. 
 
 Violation of revenue laws. 41: 654. 
 Maintenance of nuisances. 41: 655. 
 Adulteration of food products. 41: 656. 
 Trespass in wilfully cutting trees. 41: 
 
 657. 
 
 Sabbath breaking. 41: 658. 
 Dealing with slaves. 41:658. 
 Gaming on licensed premises. 41: 659. 
 - Miscellaneous offenses. 41: f(!0. 
 Violation of liquor laws. 41: 661. 
 Conflict of authority. 41 : (i(i I . 
 Unlawful sale generally. 41: 061. 
 By partner. 41: 661. 
 By agent or servant. 41 : 602. 
 Selling without license. 41: Go I. 
 By partner. 41: 664. 
 By agent or servant. 41: 660. 
 Selling to minors. 41 : 666. 
 By partners. 41:666. 
 By agents or servants. 41 : 606. 
 Selling to habitual drunkards. 41 : 669. 
 Soiling on Sunday. 41: 670. 
 Violation of other miscellaneous pro- 
 visions. 41 : 670. 
 Kvidenoe of. 41 : 672. 
 
 Presumption and burden of proof. 
 
 41 : 072. 
 
 Admissibility. 41:672. 
 Sufficiency. '41: 673. 
 "Question f.r jury. 41: 670. 
 
 919 
 
 8. Attempt; solicitation. 
 
 What constitutes an attempt to commit a 
 
 crime. 3: 743.* 
 
 Attempt to commit crime. 10: 109.* 
 Criminality of solicitation to crime which is 
 not consummated. 25: 434. 
 How far punishable as assault. 25: 
 
 434. 
 How far punishable as attempt. 25: 
 
 434. 
 How far punishable as solicitation. 25: 
 
 434. 
 
 9. Instigation or consent to crime. 
 For the purpose of detecting criminal, as a 
 defense to prosecution. 
 25: 341. 
 
 Burglary. 25: 342. 
 Robbery. 25: 343. 
 Larceny. 25: 343. 
 Stealing slave. 25:344. 
 Trading with slave. 25: 344. 
 Offering bribe. 25: 345. 
 Counterfeiting. 25: 345. 
 Receiving stolen goods. 25: 345. 
 False pretenses. 25: 345. 
 Putting away forged instruments. 25: 
 
 "345. 
 
 Obstructing railway track. 25: 345. 
 Conspiracy. 25: 345. 
 Selling obscene prints and lottery tick- 
 ets. 25: 345. 
 Selling liquor. 25 : 346. 
 Offenses against mails. 25: 346. 
 10. Duress as an excuse for crime. 
 Generally. 19: 357. 
 Duress of wife by husband. 19: 358. 
 11. Criminal negligence. 
 Defined. 3: 644.* 
 Negligence as supplying place of criminal 
 
 intent. 3: 645.* 
 Imputing negligence of servant to master. 
 
 3: 645.* 
 
 Homicide caused by carelessness and negli- 
 gence. 3: 645.* 
 Negligent homicide. 61:277; 63:392. 
 
 Application of doctrine of contributory 
 negligence. 61: 298. 
 
 b. Jurisdiction; procedure; protection of 
 accused. 
 
 12. Generally. 
 
 Constitutionality of statute authorizing 
 costs of prosecution to be 
 imposed upon prosecuting 
 witness. 61: 489. 
 
 Acquittal or discharge on criminal charge as 
 evidence of want of prob- 
 able cause in action for 
 malicious prosecution. 64: 
 474. 
 
 Effect of pardon on fine, forfeiture, or costs. 
 15: 395. 
 
 Entry of judgment nunc pro tune in crim- 
 inal case. 20: 146. 
 
 Separation of jury. 3: 211.* 
 
 Effect of withdrawal of juror in criminal 
 case. 48: 440. 
 
 Number and agreement of jurors necessary 
 to valid verdict. 43: 49. 
 
 Injunction against criminal proceedings. 
 21: 84.
 
 920 
 
 CRIMINAL LAW, VI. (Ed. Notes.) 
 
 Right of state to appeal in a criminal case. 
 
 19: 342. 
 
 From judgment on special verdict, de- 
 murrer, etc. 19: 345. 
 Right of state to appeal conterred by 
 
 statute. 19: 345. 
 
 Statutory provisions of various states. 
 19: 346. 
 
 Correction of verdict in criminal cases. 23: 
 723. 
 
 What constitutes residence out of state 
 within statute of limita- 
 tions. 17: 226. 
 
 First and last days in computing time for 
 prosecutions. 49: 216, 224. 
 
 Right of defendant to public trial. 14: 809. 
 
 Right to separate trial in criminal case. 5: 
 836. 
 
 What is an infamous crime within consti- 
 tutional provisions requir- 
 ing presentment by a 
 grand jury. 17: 764. 
 
 Effect of conviction of crime upon marriage 
 relation. 31: 515. 
 
 13. Jurisdiction. 
 
 Removal of criminal causes into Federal 
 courts from other Federal, 
 or from state, courts. 53: 
 568. 
 
 Jurisdiction of criminal actions against con- 
 sul. 45: 584. 
 
 Jurisdiction to punish crimes committed by 
 or against Indians. 21: 
 169. 
 
 Abduction or wrongful bringing of criminals 
 into jurisdiction as a de- 
 fense to prosecution. 15: 
 177. 
 
 Power of consul to send criminals to home 
 country for trial. 45: 485. 
 
 14. Situs or locality oif crime. 
 
 Crime committed through the agency of the 
 mails or of carriers. 19: 
 775. 
 
 Of crime committed by shooting across state 
 boundary. 28: 59. 
 
 15. Proceedings for violation of ordinances. 
 
 How far to be regarded as prosecutions for 
 
 crime. 33: 33. 
 General rule. 33: 33. 
 State decisions. 33: 35. 
 
 16. Constitutional rights of person 
 charged with felony. 
 
 Right to appear in person and with counsel. 
 5: 832.* 
 
 Right to process to procure witnesses. 5: 
 833.* 
 
 Right to be informed of nature of accusa- 
 tion. 5: 833.* 
 
 Right 'to be confronted with witnesses 
 against him. 5: 833.* 
 
 Right to be present during trial. 5: 834.* 
 Waiver of right to be present. 5: 835.* 
 Presence, when not necessary. 5: 835.* 
 Necessity that record show that he was 
 present. 5: 835.* 
 
 Right of trial by jury in criminal cases. 
 
 'o:'835.* 
 Waiver of right. 5:83(5.* 
 
 Right to a separate trial. 5: 836.* 
 
 17. Arraignment; plea. 
 
 Effect of defendant's standing mute. 10: 92.* 
 
 Effect of failure to arraign. 10: 91.* 
 
 Necessity of arraignment. 10: 91.* 
 Proceedings on arraignment. 10: 92.* 
 Statute allowing plea of guilty in capital 
 
 case. 16: 358. 
 
 18. Different offenses by same act. 
 Prosecution and punishment of distinct of- 
 fenses committed by sin- 
 gle sale of intoxicating 
 liquor. 45: 858. 
 General rule. 45: 858. 
 Principles exemplified. 45: 859. 
 19. Former jeopardy. 
 Plea of. 1:451.* 
 As a defense; when jeopardy attaches. It 
 
 451;* 4:543.* 
 
 On dismissal of jury. 1 : 452.* 
 By reason of the discharge of the jury in the 
 prisoner's absence. 44 : 
 694. 
 
 Conviction or acquittal of offense as a bar 
 to prosecution for homi- 
 cide in commission of the 
 offense. 63: 405. 
 
 Increasing severity of punishment for second" 
 or subsequent offense. 34: 
 400. 
 Decision as to, as a Federal question. 62 1 
 
 530. 
 
 20. Self-crimination. 
 Exemption from, generally. 4: 766;* 9: 
 
 323;* 11:591.* 
 
 By experiment in presence of jury. 15: 223. 
 
 Constitutional protection against being 
 
 forced to furnish evidence 
 
 to be used against one's- 
 
 self in a civil case. 29: 
 
 811. 
 
 Provisions against self-accusation. 29t 
 
 811. 
 Limitation to criminal proceedings. 
 
 29: 811. 
 
 Application to proceedings for pen- 
 alties and forfeitures. 29: 
 813. 
 
 General doctrine as to evidence 
 against one's self. 29 1 
 815. 
 
 The contrary doctrine. 29: 817. 
 Parties in interest. 29: 818. 
 Unreasonable searches and seizures. 
 
 29: 818. 
 
 Right of trial by jury. 29: 819. 
 Due process of law. 29: 819. 
 Distinction between civil and criminal 
 or penal proceedings. 29: 
 820. 
 
 Effect of statutes prohibiting the use of tes- 
 timony against the wit- 
 ness. 14: 407; 26: 418. 
 
 Use of testimony given in course of legisla- 
 tive investigation upon- 
 subsequent criminal prose- 
 cution of witness. 1 : 274.* 
 Admissibility in evidence against accused of 
 documents or other things- 
 taken from him. 59: 465. 
 Constitutional restrictions. 59: 465. 
 General statement application. 
 
 59: 465. 
 
 Unreasonable searches and seiz- 
 ures. 59: 466. 
 
 Compelling evidence against self,. 
 59: 468.
 
 CRIMINAL LAW, VI. (Ed. Notes.) 
 
 921 
 
 Effect of illegal or improper seizure. 
 
 59: 470. 
 
 Rule as to articles unlawfully possessed, 
 or in which the puolic has 
 an interest. 59: 472. 
 To what proceedings foregoing rules ap- 
 ply. 59: 473. 
 21. Right to compel accused to exhibit 
 
 himself for identification. 
 Cases denying the right. 28: 699. 
 Cases asserting the right. 28: 700. 
 Comparison of cases. 28: 703. 
 Waiver of the constitutional exemption. 
 
 28 703 
 
 The English rule. 28: 704. 
 22. Right of prisoner to appear unman- 
 
 acled at trial. 
 In general. 39: 82 1. 
 When justifiable. 39: 822. 
 Upon his arraignment and sentence. 39: 
 
 824. 
 As a ground of reversal and review. 39: 
 
 824. 
 
 Provisions of state Constitutions and stat- 
 utes. 39: 825. 
 23. Insanity after commission of criminal 
 
 act. 
 
 Effect; generally. 38: 577. 
 Question, when and how raised. 38: 578. 
 Test of insanity which will prevent trial. 
 
 38: 579. 
 Determination as to submission of issue. 
 
 38: 580. 
 
 Doubt as to sanity. 38: 580. 
 Evidence to establish doubt. 38: 581. 
 Discretion of the court as to. 38: 581. 
 Disposition of the issue. 38: 582. 
 How tried; generally. 38: 582. 
 Procedure on trial. 38: 583. 
 Effect of the determination. 38: 585. 
 Insanity after verdict. 38: 587. 
 Insanity after judgment. 38: 588. 
 Appeals. 38: 589. 
 Effect of recovery. 38: 590. 
 24. Power of public prosecutor to dismiss 
 
 prosecution. 
 The origin and nature of the power. 35: 
 
 701. 
 The power absolute, when and where. 35: 
 
 701. 
 
 In general. 35: 701. 
 After verdict. 35: 704. 
 
 The power limited by the will of the court, 
 
 when and where. 35: 705. 
 
 The court may advise, but cannot compel, 
 
 the exercise of the power. 
 
 35: 708. 
 
 The power limited by the will of the ac- 
 cused, when. 35: 709. 
 The power exercised towai'd one of several. 
 
 35: 710. 
 
 For t'he purpose of qualifying him as a 
 witness against others. 
 35: 710. 
 When others only are found guilty. 35: 
 
 711. 
 
 The power to correct the indictment or in- 
 formation ty dismissal as 
 to a part. 35: 712. 
 When it contains several counts. 35: 
 
 712. 
 
 When it contains only one count. 35: 
 714. 
 
 The power absolute after new trial granted,, 
 or appeal taken. 35: 716. 
 
 The power of the reviewing court. 35: 716. 
 
 The power to recall the dismissal of the 
 prosecution. 35: 716. 
 
 25. Delay of prosecution as ground for dis- 
 charge. 
 
 Where there is no cause for delay. 56: 513. 
 
 In failing to indict or to file an information. 
 56: 515. 
 
 Where the statutory time has not elapsed. 
 56: 518. 
 
 Caused by appeal or error. 56: 518. 
 
 Where there is a mistrial or a new trial. 
 56: 519. 
 
 Where the indictment is set aside or nolled 
 and new indictment found. 
 56: 522. 
 
 Where defendant is held under several in- 
 dictments. 56: 524. 
 
 Where there are other defendants. 56: 52f>_ 
 
 Caused by change of venue. 56: 525. 
 
 Caused by continuance for evidence. 5(5: 
 526. 
 
 For want of time to try. 56: 527. 
 
 In neglecting to provide a prosecuting attor 
 ney or expense money for 
 court. 56: 528. 
 
 In failing to have a jury. 56: 529. 
 
 In failing to hold court. 5<>: 530. 
 
 "Court" and "term" defined. 56: 531. 
 
 Where the defendant is not in jail or is out 
 on bail. 56: 533. 
 
 Where the defendant is in the penitentiary.. 
 56: 534. 
 
 Caused by acts or condition of accused. 5t>: 
 535. 
 
 Presumption that cielav is for good causr. 
 56: 536. 
 
 Demand as a condition precedent to a dis 
 charge. 56: 538. 
 
 Remedy to obtain discharge. 56: 539. 
 
 By habeas corpus in another court. 5(5 r 
 
 539. 
 Where trial court has refused to. 
 
 discharge. 56: 539. 
 On original application. 56:541. 
 Bv habeas corpus in trial court. .~>ti: 
 
 542. 
 
 By application in trial court under sta-t 
 ute directing discharge. 
 56: 543. 
 By other pleading or motions. 56: 544. 
 
 Effect of discharge. 56: 544. 
 
 26. Proof; presumption; burden of proof. 
 
 Presumptions with Respect to Criminal Mat- 
 ters, Generally, see Evi- 
 dence, XIII. 27. 
 
 Presumption as to Sanity, see Evidence^ 
 XIII. 14. 
 
 Burden of Proof as to Sanity or Insanity^ 
 see Evidence, XIII. 29. 
 
 Expert and Nonexpert Evidence as to San- 
 ity, see Evidence. XIII. ? 
 65-68. 
 
 As to Confessions, see Evidence, XIII. 75. 
 
 Relevancy of Evidence in Criminal Cases, 
 Generally, see Evidence, 
 XIII. 87. 
 
 Evidence of Other Crimes, see Evidence, 
 XIII. 88. 
 
 Evidence as to Character or Reputation, see- 
 Evidence, XIII. 89
 
 922 
 
 CRIMINAL LAW, VI. (Ed. Notes.) 
 
 Weight of Evidence in Criminal Cases, Gen- 
 erally, see Evidence, Xi-ii. 
 9^-95. 
 
 As to Evidence with Respect to Handwrit- 
 ing, Generally, see Evi- 
 dence, XIII. 69-74. 
 Inference of evil intent. 11: 811.* 
 Presumption that party intended natural 
 consequences of acts. 11: 
 810.* 
 Burden and measure of proof as to alibi. 
 
 41 : 530. 
 
 Evidence of threats of accused or of person 
 
 injured or killed. 17: 654. 
 
 Incompetency of evidence before grand jury. 
 
 28: 318. 
 Use of documents before grand jury. 28: 
 
 320. 
 Admissibility of proof of trailing of person 
 
 oy bloodhounds. 42: 432. 
 Evidence admissible in prosecution of car- 
 rier for transporting in- 
 toxicating liquors. 46 : 
 420. 
 
 Admissibility on trial for murder, of testi- 
 mony of accused at coro- 
 ner's inquest. 70: 33. 
 Admissibility of coroner's finding to show 
 
 cause of death. 68:285. 
 When evidence of drunkenness admissible, 
 
 8: 33.* 
 
 Sufficiency of evidence to prove defendant's 
 
 responsibility for sale of 
 
 intoxicating liquor by his 
 
 servant. 41 : 673. 
 
 Tse of depositions and affidavits before 
 
 grand jury. 28: 319. 
 
 Admissibility of acts and declarations of co- 
 conspirators. 1:273;* 12: 
 197.* 
 
 1 fow near main transaction must declara- 
 tions be made in order to 
 constitute part of .res 
 gestce. 19: 737. 
 
 Dying declarations as evidence. 56: 353. 
 In prosecution for homicide by commis- 
 sion of, or attempt to corn- 
 mi i, abortion. 63: 916. 
 
 Effect of admission to change burden of 
 proof and right to open 
 and close in criminal case. 
 61: 562. 
 
 27. Proof of corpus delicti. 
 Tn general. 68: 33. 
 What constitutes. 68: 34. 
 In general. 68: 34. 
 Homicide. 68: 35. 
 Larceny. 68: 40. 
 Arson. 68: 41. 
 Burglary. 68: 41. 
 Other crimes. 68: 41. 
 When proof of marriage necessary. 68: 
 
 42. 
 
 Bigamy. 68: 42. 
 Adultery. 68: 44. 
 Other cases. 68: 45. 
 Necessity. 68: 45. 
 
 General rule. 68:45. 
 Homicide. 68: 46. 
 Larceny. 68: 48. 
 Other crimes. 68: 49. 
 
 To corroborate confession. 68: 50. 
 In general. 68: 50. 
 Homicide. 68: 53. 
 Larceny. 68: 54. 
 Arson. 68: 55. 
 Other crimes. 68: 55. 
 Character and sufficiency. 68: 57. 
 General rule. 68: 57. 
 Homicide. 68: 57. 
 
 In general. 68: 57. 
 To corroborate confession. 68: 64. 
 Larceny. 68: 65. 
 
 In general. 68: 65. 
 To corroborate confession. 68: 68. 
 Other crimes. 68 : 69. 
 In general. 68: 69. 
 To corroborate confession. 68: 71. 
 Use of confession in aid of other evi- 
 dence to establish. 68: 73. 
 Necessity of direct or positive evidence 
 
 of. 68: 75. 
 Evidence of, tending to connect accused. 
 
 68: 78. 
 
 Order of proof immaterial. 68: 79. 
 Province of court and jury. 68: 79. 
 
 c. Sentence and imprisonment. 
 
 28. Generally. 
 
 Commitment of minors to reformatory with- 
 out conviction of crime. 
 16: 691. 
 
 Effect of conviction and sentence upon mar- 
 riage relation. 31: 515. 
 Justification of prison breach. 15: 190. 
 Claim against state on contract for prison 
 
 labor. 42: 59. 
 
 Effect of absence from jail in computing 
 time of imprisonment. 
 13: 574.* 
 Suspension of sentence for good behavior. 
 
 14: 285. 
 Conditional pardons and parole of prisoner. 
 
 14: 285. 
 
 29. Cruel and unusual punishment. 
 Constitutional and statutory provisions. 
 
 35: 561. 
 General principles governing punishments. 
 
 35: 561. 
 
 Cruel and unusual. 35: 561. 
 Legislative control. 35: 562. 
 Discretion of court. 35: 563. 
 Nature of punishment. 35: 564. 
 Penitentiary. 35: 564. 
 Flogging and other corporal punish- 
 ments. 35 : 565. 
 Convict labor. 35: 566. 
 Hard labor. 35 : 566. 
 House of refuge. 35: 567. 
 Imprisonment for costs. 35: 567. 
 Fine or imprisonment. 35: 567. 
 Special statute. 35: 569. 
 Imprisonment for life. 35: 569. 
 Disfranchisement and forfeiture. 35: 
 
 569. 
 
 Ducking stool. 35: 569. 
 Bread and water. 35: 569. 
 Punishment for particular crimes. 35: 569. 
 Arson and burning. 35: 569. 
 Assault and battery. 35: 569. 
 Bastardy. 35: 570." 
 Burglarv. 35 : 570.
 
 CRIMINAL LAW, VI. (Ed. Notes.) 
 
 923 
 
 Carrying concealed weapons. 33: 571. 
 
 Common scold. 35: 571. 
 
 Conspiracy. 35: 571. 
 
 Counterfeit coin. . 35: 571. 
 
 Disorderly houses and persons. 35: 571. 
 
 Dueling. 35: 571. 
 
 False pretenses, cheats, and frauds. 35: 
 571. 
 
 Fishery and game-law offenses. 35: 572. 
 
 Fornication. 35: 572. 
 
 Gambling. 35: 572. 
 
 Highway offenses. 35: 573. 
 
 Horse stealing. 35: 573. 
 
 Larceny. 35: .~>7.'!. 
 
 Libel. 35: 573. 
 
 Liquor laws offenses. 35: 574. 
 
 Murder and manslaughter.- 35: 575. 
 
 Nuisance. 35: 576. 
 
 Profane language. 35: 576. 
 
 Perjury. 35: 576. 
 
 Pvapp. 35: 576. 
 
 Receiving stolen goods. 35: 577. 
 
 Robbery. 35: 577. 
 
 Special statutory offenses. 35: 577. 
 
 Unlawful publications. 35: 578. 
 
 Vagrancy. 35: 578. 
 
 Violation of ordinances. 35: 578. 
 Extent of United States Constitution. 35: 
 
 578. 
 Increased punishment, second offense. 35: 
 
 579. 
 
 30. Effect of excessive sentence. 
 Cfeneral rule. 45: 137. 
 
 In state courts. 45: 137. 
 
 In United States courts. 45: 138. 
 Effect of application for habeas corpus. 45: 
 139. 
 
 Sentence void, prisoner discharged. 45: 
 139. 
 
 Discharged, proper sentence served. 
 45: 144. 
 
 Discharge refused on habeas corpus. 45: 
 145. 
 
 Discharge refused until legal sentence 
 served. 45: 148. 
 
 Sentence corrected or. modified and af- 
 firmed. 45: 149. 
 
 Sentence ordered modified, and case re- 
 manded. 45: 149. 
 
 Proper sentence imposed, and prisoner 
 remanded. 45: 149. 
 
 Execution stayed, bail for future ap- 
 pearance. 45: 149. 
 
 Remanded and record corrected. 45: 
 
 150. 
 Effect on appeal, or on writ of error. 45: 150. 
 
 In general. 45: 150. 
 
 Sentence reversed, prisoner discharged. 
 45: 151. 
 
 Prisoner discharged, legal sentence 
 served. 45: 152. 
 
 Judgment reversed in part and affirmed 
 in part. 45: 153. 
 
 Sentence corrected or modified, and 
 judgment affirmed. 45: 
 153. 
 
 Judgment ordered modified and case re- 
 manded. 45: 154. 
 
 Judgment reversed, and case remanded. 
 45: 156. 
 
 Judgment reversed, and new sentence 
 imposed. 45: 157. 
 
 Judgment reversed, and new trial 
 
 granted. 45: 157. 
 
 Execution stayed, bail for future ap- 
 pearance. 45: 158. 
 
 Discharged upon suing out writ of er- 
 ror. 45: 158. 
 On certiorari. 45: 158. 
 
 Discharge refused. 45: 158. 
 
 Judgment reversed, and case remanded. 
 
 45: 158. 
 
 Prisoner discharged. 45:159. 
 English decisions. 45: 159. 
 31. Enhancing penalty when crime com- 
 mitted by habitual criminals or prior 
 offenders. 
 
 Validity of statutes and ordinances. 34: 398. 
 In general. 34: 398. 
 Ex post facto laws. 34: 399. 
 Cruel and unusual punishment. 34: 
 
 400. 
 
 Equal protection of the laws. 34: 400. 
 Second punishment or jeopardy for the 
 
 same offense. 34: 400. 
 
 Construction and effect of statutes. 34: 400. 
 In general. 34: 400. 
 Third and subsequent offenses. 34: 401. 
 Conditions as to prior conviction before 
 commission of later of- 
 fense. 34: 402. 
 
 Conditions as to execution of or relief 
 from prior sentence before 
 commission of later of- 
 fense. 34: 402. 
 Effect of pardon of prior offense. 34: 
 
 402. 
 
 Effect of appeal or writ of error to re- 
 view prior conviction. 34: 
 403. 
 Effect of prior conviction in other state 
 
 or country. 34: 403. 
 What prior sentence must have been. 
 
 34: 403. 
 
 Similarity or identity of prior and sub- 
 sequent offenses. 34: 404. 
 Procedure. 34: 404. 
 
 In general. 34: 404. 
 
 Pleas and admissions. 34:405. 
 
 Order of trial: separating issues. 
 
 34: 405. 
 
 Proof. 34: 4()<i. 
 
 Attacking validity of prior convic- 
 tion. 34: 407. 
 
 Verdict and judgment. 34: 407. 
 Appeal or writ of error. 34: 408. 
 32. Reduction of term for good behavior. 
 Constitutionality of statutes providing 
 
 therefor. 34: 509. 
 
 Construction and effect of statutes. 34: 510. 
 In general. 34: 510. 
 Fedeial cases. 34: 512. 
 33- Right to compel prisoner to labor. 
 The power, generally. 27: 593. 
 Constitutional restrictions. . 27:. 594. 
 Necessity of express authority. 27: 595. 
 Exception when labor is a part of the prison 
 
 discipline. 27: 596. 
 
 Construction of statutes conferring the pow- 
 er generally. 27 : 597. 
 Upon what courts conferred. 27: 598. 
 For what crimes imposed. 27: 598. 
 Place of performance. 27: 599. 
 The term of duration. 27: 600.
 
 924 
 
 CRIMINAL NEWS-CROPS. 
 
 Imposition for nonpayment of costs. 27: 
 
 601. 
 
 Necessity of strict compliance. 27: 602. 
 Delegation of the power. 27: 603. 
 Hiring out convicts. 27: 604. 
 Power to hire out. 27 : 604. 
 10 contract. 27: 606. 
 Hiring by surety. 27: 607. 
 Leasing prisons. 27: 608. 
 Assignability of contract. 27: 608. 
 Custody and management of convicts. 
 
 27: 609. 
 
 Termination of contract. 27: 609. 
 Recovery of agreed compensation. 27: 
 
 610. 
 
 Disposition of proceeds. 27: 611. 
 Effect of delay in execution of sentence. 
 
 27:611. 
 Discharge because of inability to pay. 27: 
 
 611. 
 Remedy for improper imposition. 27: 612. 
 
 CRIMINAL NEWS. 
 
 Complaint for Selling Newspaper Contain- 
 ing, see Indictment, etc., 67. 
 
 Prohibiting Publication of, see Newspaper, 
 10. 
 
 Question for Jury as to, see Trial, 506. 
 
 CRIMINATION OF SELF. 
 
 Claim of Exemption from Discovery on 
 Ground of, see Discovery and Inspection, 
 3. 
 
 As to Privilege of Witness against, see Wit- 
 nesses, II. c. 
 
 See also Criminal Law, 87, 98-102; VI. 20. 
 
 CRITICISM. 
 
 Of Trial as Contempt, see Contempt, 22; V. 
 
 1. 
 
 Jurisdiction of Equity to Prevent, see Equi- 
 ty, 37. 
 
 As Libel, see Libel and Slander, 15-18; III. 
 
 Of Public Officers, or Candidates, Privilege 
 in, see Libel and Slander, II. e, 5. 
 
 CROPS. 
 
 Liability for Wrongful Levy on, see Bonds, 
 65.' 
 
 Mortgage of, see Chattel Mortgage. 22, 77, 
 78. and also infra, Editorial Notes, 2. 
 
 Right of Action by Illegal Lessee for Con- 
 version of, see Conflict of Laws, 200. 
 
 Contract for Interest in Crops of Peaches, 
 see Contracts, 373. 
 
 EllYn-t. of Unexpected Frost on Contract to 
 Raise Crop, see Contracts, 663. 
 
 Cotenancy in Crops, see Cotenancy, 8, 9, 18. 
 J9, and also infra, Editorial Notes, 1. 
 
 Damages for Injury to or Destruction of,. 
 see Damages, 433, 434, 445, 446, 456, 457 r 
 474-178, 614. 
 
 Right to, in Ejectment, see Ejectment, 43, 
 44. 
 
 Right w>, on Condemnation, see Eminent 
 Domain, 292. 
 
 Presumption from Judgment for Conversion 
 of, see Evidence, 746. 
 
 Opinion Evidence as to Maturity of, see Evi- 
 dence, 1435. 
 
 Ownership of Grass in Highway, see High- 
 ways, 188, 189. 
 
 Husband's Right to, see Husband and Wife,. 
 108. 
 
 Tenant's Right to, see Landlord and Tenant,. 
 125, 126, and also infra, Editorial Notes, 
 
 1- 
 
 Levy on, see Levy and Seizure, 23-25, 47, 50,. 
 and also infra, Editorial Notes, 1. 
 
 Replevin for Strawberry Plants, see Replev- 
 in, 15. 
 
 Conversion by Mortgagee of, see Trover, 12. 
 
 1. Unmatured crops growing upon land 
 belonging to the owner of the crops are part 
 and parcel of the land for the purpose of 
 jurisdiction of an action for damages to 
 them. Bagley v. Columbus S. R. Co. 98 Ga. 
 626, 25 S. E. 638, 34: 286 
 
 2. A growing crop, the annual result of 
 agricultural labor, sown by a husband on hi* 
 land pending a suit for divorce and alimony- 
 brought by his wife, passes by a decree 
 which gives the land to the wife as alimony, 
 although such crop is not, in terms, described 
 or referred to in the decree. Herron v. Her- 
 ron, 47 Ohio St. 544, 25 N. E. 420, 9: 66T 
 
 3. One who, in good faith, makes grass in- 
 to hay, with the knowledge of and without 
 objection by the owner, under a belief that 
 he has a right to do so, by which its value 
 is greatly increased, acquires a title to the 
 hay which will sustain his action of replevin 
 therefor, but is liable for its value at the 
 time of the conversion. Carpenter v. Lin- 
 genfelter, 42 Neb, 728, 60 N. W. 1022, 
 
 32: 422" 
 
 Effect of foreclosure. 
 See also infra, Editorial Notes, 1. 
 
 4. A chattel mortgage on crops growing- 
 upon mortgaged land is not a constructive- 
 severance of them, which will prevent their 
 passing to a purchaser of the land on fore- 
 closure sale made while the crops are still 
 standing Jones v. Adams, 37 Or. 473, 59 
 Pac. 811, 50: 388 
 
 5. One who buys a fully matured crop 
 standing on mortgaged premises from the- 
 mortgagor before commencement of foreclos- 
 ure proceedings, although after default on. 
 the mortgage, obtains a good title as against 
 the receiver on foreclosure. Caldwell v. Al- 
 sop, 48 Kan. 571, 29 Pac. 1150, 17: 782 
 
 G. Nursery trees and bushes raised for sale 
 on mortgaged premises cannot be taken 
 away, after title by foreclosure sale has been 
 perfected, by one who purchased them at a 
 sale on execution issued upon a justice's- 
 judgment, although he might have taken 
 them away before foreclosure, without lia- 
 bility to the mortgagee. Batterman v. Al- 
 bright, 122 N. Y. 484, 25 N. E. 856, 11: 800>
 
 CROPS; CROSS. 
 
 925 
 
 7. A standing crop which is fully matured 
 tA the time of a sale in foreclosure of a 
 mortgage on the land belongs to the tenant 
 growing it, as against the purchaser at the 
 sale. Richards v. Knight, 78 loAva, 69, 42 
 N. W. 584, 4:453 
 
 8. A crop of wheat sown after judgment 
 in foreclosure, by a tenant who rented the 
 land pending suit to foreclose, and which 
 is not ready to harvest until after foreclos- 
 ure sale and sheriff's deed, belongs to the 
 purchaser at such sale as against the ten- 
 ant. Goodwin v. Smith, 49 Kan. 351, 31 Pac. 
 153, 17: 284 
 
 9. A purchaser of land on foreclosure is 
 entitled to wheat grown upon the premises 
 during the period of redemption^ which, un- 
 der a contract between the mortgagor and 
 a third person who farmed the land on 
 shares (title and possession of all the grain 
 grown being retained in the mortgagor until 
 settlement), has been set apart as the 
 amount due the mortgagor as rent, and may 
 pursue the same remedies to enforce his 
 right which the mortgagor has against his 
 lessee, under N. D. Rev. Codes, 5549, pro- 
 viding that a purchaser on foreclosure, from, 
 ihe time of the sale until redemption, is en- 
 titled to receive from the tenant in posses- 
 sion the renis of the property sold, or the 
 value of the use and occupation thereof. 
 Whithed v. St. Anthony & D. Elevator Co. 
 9 N. D. 224.. 83 N. W. 238, 50: 254 
 
 10. Crops planted by one in possession un- 
 der a bond for title, after he has refused to 
 j-omply with his contract to purchase, and 
 the vendor, having tendered a good title, has 
 begun an action to foreclose the bond, be- 
 long to the vendor. Sievers v. Brown, 34 Or. 
 454, 56 Pac. 171. 45: 642 
 Of sale on execution. 
 
 11. Annual crops growing on the land do 
 not pass to a purchaser at judicial sale: and 
 for the purpose of saving the debtor's rights 
 thereto, these annual crops will be regarded 
 HP personalty. Aldrich v. Bank of Ohiowa, 
 64 Neb. 276. 'SO N. W. 772, 57: 920 
 
 12. The title to grass which is severed 
 from realty after sale on execution, but be- 
 fore confirmation, does not pass to the pur- 
 chaser of the land. Yeazel v. Einspahr", 40 
 'Neb. 432. f>8 N. W. 1020, 24: 449 
 On death of life tenant. 
 
 See also infra. Editorial Notes, 1; Life 
 Tenants. 18. 
 
 13. i he right to harvest growing crops on 
 land subject to a life lease is preserved to 
 the administrator of the life tenant, or to a 
 IPSSOO of the life tenant, by Ohio Rev. Stat. 
 $g (i02(i. iii)27. in ease of the death of the 
 life tenant after crops have been sown. No- 
 ble v. Tyler, til Ohio St. 432. 56 N. E. 191. 
 
 48: 735 
 
 14. Where the les>e.- ot' a tenant for life 
 has growing crops unharvest ei| at the time 
 of the latter's death, he is entitled to them. 
 Bradley v. Bailey. r,(l ( OMII. 374. 15 All. 74(i. 
 
 1: 427 
 
 15. If a enant for life dies before the har- 
 vest of crops sown during his life, they be- 
 to his executor, although at the time 
 
 of sowing the crops the tenant did not be- 
 lieve that he should live until harvest. Id. 
 16. The right of an executor of a tenant 
 for life to crops maturing after the latter's 
 death does not depend upon the manner in 
 which the crops were sown; the fact of hur- 
 ried and imperfect sowing may be pertinent 
 only on the question whether he was in 
 reality sowing crops, or only pretending to 
 do so. id. 
 
 Editorial Notes. 
 
 i. Generally. 
 
 Growing crops as emblements. 6: 617.* 
 Injuries to, as element of damages for re- 
 moval of fence. 53: 630. 
 Contract for crops to be raised, as a sale. 
 
 14: 233. 
 
 Levy upon, as personal property. 23: 258. 
 Rights of tenant in common to. 9: 625.* 
 Right to crops upon death of life tenant. 
 
 1: 427;* 11: 800.* 
 
 Title by accession to crops wrdngfully sev- 
 ered. 32: 422. 
 
 Right of one who buys or makes lawful en- 
 try on public land to crops 
 placed thereon by another. 
 70: 799. 
 As between landlord and tenant. 3: 124:* 
 
 11: 800.* 
 
 In case of estate by entireties. 30: 308. 
 Right to, on foreclosure. 4: 453.* 
 2. Sale or mortgage of future crops. 
 How assignable. 23: 449. 
 
 Sales. 23: 449. 
 
 Statute of frauds. 23 : 450. 
 
 Mortgages. 23 : 450. 
 
 Upon sale of the land. 23: 451. 
 General doctrine. 23: 452. 
 Necessity and effect of ratification. 23: 453. 
 Necessity and effect of possession. 23: 453. 
 Potential interests. 23: 455. 
 Equitable doctrine. 23: 456. 
 Description. 23: 458. 
 
 General rules. 23: 458. 
 
 Sufficient. 23: 459. 
 
 Insufficient. 23: 460. 
 Parol evidence to identify. 23: 461. 
 Notice. 23: 4ii2. 
 
 General. 23: 462. 
 
 Constructive. 23: 462. 
 Necessity and effect of recording. 23: 463. 
 To what crop or part of crop it extends. 
 
 23: 464. 
 
 Title of a mortgagee. 23: 464. 
 Effect of. 23: 466. 
 
 As against creditors. 23: 465. 
 
 As against purchasers. 23: 465. 
 
 As between husband and wife. 23: 466. 
 
 Judgment against. 23: 4ti(i. 
 Severance of the property. 23: 467. 
 Application of proceeds. 23: 467. 
 To secure crop advances. 23: 467. 
 Crops raised upon shares. 23: 468. 
 Upon whom binding. 23: 408. 
 Landlord and tenant. 23: 4ti8. 
 Conversion. 23: 471. 
 Special state doctrines and laws. 23: 472. 
 
 CROSS. 
 
 On Ballots, see Elections, II. b.
 
 926 
 
 CROSS BILL CURRENCY. 
 
 CROSS BILL. 
 
 In Suit to Remove Cloud from Title, see 
 Cloud on Title, IV. 
 
 In suit to Dissolve Corporation, see Corpo- 
 rations, 783. 
 
 In Suit for Divorce, see Divorce and Separa- 
 tion, 14. 
 
 Burden of Proving Allegations of, see Evi- 
 dence, 218. 
 
 Necessary Parties to, see Parties, 189. 
 
 In Will Contest, see Wills, 136. 
 
 See also Pleading, IV. 
 
 CROSS ERRORS. 
 
 Assignment of, see Appeal and Error, IV. 
 p. 3. 
 
 CROSS-EXAMINATION. 
 
 Of Witness, see Witnesses, II. b; VI. 10. 
 
 CROSSING. 
 
 Condemnation of Property for Crossing Rail- 
 
 road. see Eminent Domain, 54-56, 261- 
 
 264, 267, 339. 
 
 As Nuisance, see Nuisances, 49. 
 Railway Crossings Generally, see Railroads, 
 
 II. b. 
 Injury at Railway Crossing, see Railroads, 
 
 II. d, 3; II. e, 2. 
 
 CROSS INTERROGATORIES. 
 
 Effect of Refusal to Answer, see Depositions, 
 17. 
 
 CROSS PETITION. 
 
 On Appeal, see Appeal and Error, 142. 
 
 CROSS TIES. 
 
 Obstruction of Highway by, see Highways, 
 
 112. 
 Replevin for, see Replevin, 34. 
 
 CRUEL AND UNUSUAL PUNISHMENT. 
 
 As a Contempt of Court, see Contempt, 6. 
 See also Criminal Law, IV. b; VL 29. 
 
 CRUELTY. 
 
 To Animals, see Animals. II.; Municipal Cor- 
 porations, 201; Statutes, 2. 
 
 To Apprentice, see Apprentices, 2. 
 To Children, see Parent and Child, 10. 
 As Ground for Divorce, see Divorce and Sep- 
 aration, III. a. 
 
 A male parson who has attained the phys- 
 ical strength and stature of manhood, and 
 "who is almost as large as his father, but 
 not quite as strong," is not a "child" within 
 the meaning of Ga. act, 4612h, which i 
 aimed at the prevention of cruelty to chil- 
 dren. Collins v. State, 97 Ga. 433, 25 S. E. 
 325, 35: 501 
 
 CULVERT. 
 
 Carrier's Liability for Insufficiency of, see 
 
 Carriers, 234. 
 In Railroad Embankment, see Railroads, II. 
 
 f. 
 
 CUMULATIVE SENTENCES. 
 See Criminal Law, 227-230. 
 
 CUMULATIVE VOTING. 
 
 See Elections, 84, 85. 
 
 CURATIVE LAW. 
 
 Validating County Warrants, see Counties, 
 57. 
 
 Effect of, to Prevent Bar of Prior Judgment,, 
 see Judgment, 206. 
 
 Power of Legislature as to, see Legislature, 
 20. 
 
 Sufficiency of Title, see Statutes, 185, 191. 
 
 Special Legislation by, see Statutes, 331. 
 
 See also Acknowledgment, IV.; Constitu- 
 tional Law, I. b, 2, 6; III. 14. 
 
 Editorial Notes. 
 
 See also Constitutional Law, III. 14. 
 Power to cure unconstitutional statute by 
 amendment. 60: 564. 
 
 CURATOR AD HOC. 
 
 Editorial Notes. 
 Admissions and waivers by. 32: 686, 688. 
 
 CURFEW LAW. 
 
 Municipal Authority to Pass, see Municipal 
 Corporations. 268, 269. 
 
 CURRENCY. 
 
 Editorial Notes. 
 
 Payment in forged paper or base coin. It 
 '" 199.*
 
 CURRENT WAGES CURTESY. 
 
 92? 
 
 Special contracts and obligations to make 
 payments in gold or sil- 
 ver. 29: 512. 
 
 --*-* 
 
 CURRENT WAGES. 
 What are, see Exemptions, 32. 
 
 CURSING. 
 Indictment for, see Indictment, etc., 83. 
 
 CURTAINS. 
 
 For Saloons, see Intoxicating Liquors, 32- 
 35. 
 
 CURTESY. 
 
 Adverse Possession of Estate by, see Ad- 
 
 verse Possession, 28. 
 Vested Right to, see Constitutional Law, 
 
 142-144. 
 Conveyances in Fraud of, see Husband and 
 
 Wife, 165. 
 Collusiveness of Judgment as to, see Judg- 
 
 i ment, 193. 
 Running of Limitations against Remainder- 
 
 men, see Limitation of Actions, 129. 
 
 1. Tenancy by the curtesy initiate is done 
 away with by the Virginia married woman's 
 act. Alexander v. Alexander, 85 Va. 353, 7 
 S. E. 335, 1 : 125 
 
 2. Upon the death in 1832 of a wife intes- 
 tate leaving surviving a husband and six 
 children born of the marriage her real prop- 
 erty descended to and vested in her children, 
 subject as the law then stood to the estate 
 of her surviving husband as tenant by the 
 curtesy. Orthwein v. Thomas, 127 111. 554, 
 21 N. E. 430, 4: 434 
 
 3. A child is born alive, within the mean- 
 ing of the rule as to curtesy, when it tries 
 to breathe after being fully delivered exter- 
 nal to the mother, although it is dead when 
 the navel cord is cut. Goff v. Anderson, 91 
 Ky. 303, 15 S. W. 866, 11: 825 
 In what. 
 
 See also infra, Editorial Notes. 
 
 4. An estate by curtesy cannot attach to 
 a mere life estate. Bigley v. Watson, 98 
 Tenn. 353, 39 S. W. 525, '38: 679 
 
 5. A husband has no rights as tenant by 
 the curtesy in lands in which his wife had 
 an estate in remainder, where she died be- 
 fore the expiration of the life tenancy, and 
 never had a right to the possession. Todd 
 v. Oviatt, 58 Conn. 174, 20 Atl. 440, 7: 693 
 
 6. A tenancy by the curtesy initiate is 
 created in the trustee, where land purchased 
 by a husband is conveyed to him for the use 
 and benefit of his wife, with nothing to in- 
 dicate a purpose to exclude him from a riirlit 
 by the curtesy. Meacham v. Buntine, 156 
 lil. 586, 41 N/E. 175, 28: 618 
 
 7. Executors, by paying taxes and selling 
 a portion of the estate in coal, which is re- 
 served from the sale of the surface of the 
 ground, but who are not in the actual oc- 
 cupancy or possession of the property, and 
 have no interest therein except a simple 
 power of sale, are in no such possession as 
 to prevent a seisin of the owner sufficient to 
 support a claim of curtesy by her husband 
 after her death. Rankin's Appeal, 1 Mona- 
 ghan (Pa.) 308, 16 Atl. 82, 2: 429 
 
 8. A deed to a married woman "to her 
 sole and separate use, and free from the 
 interference or control of her said husband, 
 or any husband, and her heirs and assigns, 
 to her and their only proper use and benefit 
 forever," must be held to defeat a right to 
 curtesy in the premises on the grantee's 
 death, where, by the statutes of the state, a 
 married woman could hold real estate as if 
 unmarried, as the restriction in the grant 
 can have no force whatever given to it un- 
 less the intention was to exclude the estate 
 by the curtesy. Haight v. Hall, 74 Wis. 152, 
 42 N. W. 109, 3: 857 
 
 9. A fee-simple estate is vested in a 
 woman by a deed to her and her body heirs, 
 in which her husband is entitled to curtesy, 
 although the grant is expressly made free 
 from his debts and liabilities. Bingham v. 
 Weller, 113 Tenn. 70, 81 S. W. 843, 69: 370 
 
 . 10. A man is deprived of 'his curtesy in- 
 terest in land by conveying it to his wife to 
 her sole, separate, and exclusive use, free 
 and discharged from all his control and lia- 
 bilities. Id. 
 What will defeat. 
 See also infra, Editorial Notes. 
 
 11. A divorce obtained by a man for the 
 fault of his wife will defeat his right of 
 curtesy in her property. Doyle v. Rolwing, 
 165 Mo. 231, 65 S. W. 315, 55:332 
 
 12. All inchoate interest as tenant by the 
 curtesy is destroyed by an absolute divorce, 
 unless it is preserved by statute. Burgess 
 v. Muldoon, 18 R. I. 607, 29 Atl. 298, 24: 798 
 
 13. A divorce obtained by a husband from 
 his wife does not defeat his tenancy by the 
 curtesy initiate, where the statute has made 
 no provision for such a case, but has de- 
 clared that a divorce obtained for his fault 
 and misconduct shall defeat a husband's 
 right as tenant by the curtesy. Meacham v. 
 Bunting, 156 111. 586, 41 N. E. 175, 28: 618 
 
 14. A tenancy by the curtesy is not de- 
 feated by a will giving the husband of the 
 testatrix a life estate in the premises, with 
 the privilege of using so much of the es- 
 tate as may be necessary to his support, 
 at least where he has not indicated a pur- 
 pose to claim under the will, although he has 
 acted as executor and as such has settled 
 the estate. Sill v. White, 62 Conn. 430, 26 
 Atl. 396, 20: 321 
 Rights of tenant by curtesy. 
 
 15. A tenant by curtesy, in an estate 
 which consists of coal mines and mining 
 privileges has the right to work open mines 
 even to exhaustion, although he is not ten- 
 ant of the surface. Rankin's Appeal, 1 Mon- 
 aghan (Pa.) 308, 16 Atl. 82, 2: 429
 
 CURTESY (Ed. Notes) CUSTOM. 
 
 Editorial Notes. 
 
 Tenancy by the curtesy, generally. 7: 693;* 
 
 11: 825.* 
 Effect of statute upon husband's right. 
 
 7: 693.* 
 
 To what estate attaches. 11: 826.* 
 Necessity of seisin during coverture; 
 rule at common law. 7: 
 694;* 11: 826.* 
 
 Qualification of the rule. 7: 694.* 
 Entry on land. 7: 694.* 
 Right of curtesy vested in remainder 
 
 or life estate. 7: 695.* 
 When estate becomes initiate. 11: 
 
 826.* 
 When estate bv the curtesy fails. 7: 
 
 695.* 
 
 Effect of husband's wrongful act to for- 
 feit curtesy. 7 : 695.* 
 Liability for husband's debts. 7: 696.* 
 Disposal of estate by wife. 7: 696.* 
 Power of legislature to destroy. 19: 256. 
 Right of tenant by the curtesy in partner- 
 ship real estate. 27: 340. 
 Husband's right of curtesy in property con- 
 veved by him to his wife. 
 69': 375. " 
 Effect of tax sale of land held by tenant 
 
 by curtesy. 32: 808. 
 Levy on estate by. 23: 648. 
 Duty of tenant by, to pay taxes. 32: 748. 
 
 CUSTODIA LEGIS. 
 
 See Custod of Law. 
 
 CUSTODY. 
 
 Ot Corpse, see Corpse, II. b. 
 Of Children, see Divorce and Separation, 
 VII.; Infants. I. c. 
 
 CUSTODY OF LAW. 
 
 Interference with, bv Other Court, see 
 Courts, IV. c. 
 
 Garnishment of Property in. see Garnish- 
 ment. I. c. 2. 
 
 Levy on Property in, see Levy and Seizure, 
 I. b. 
 
 Of Money in Court, see Money in Court. 
 
 Custody of Receiver, see Receivers, 56. 
 
 Replevin for Property in, see Replevin, I. b. 
 
 Editorial Notes. 
 
 Rule that property in custody of law is 
 
 not subject to seizure. 
 
 10: 52!).*' 
 Garnishment of property in custody of law. 
 
 12: 508.* 
 Injunction against execution sale of prop- 
 
 erty in. .30: 103. 
 Replevin for propertv in legal custody. 13: 
 
 408.* 
 
 Equitable remedy to subject property in, 
 _ % " to judgment after returm 
 
 of no property found. 
 
 63: 673. 
 Maritime lien on vessel in custody of law. 
 
 70: 391. 
 
 CUSTOM. 
 
 Of Stock Brokers, see Brokers, 5. 
 
 Of Carrier, see Carriers, 36, 458, ' 459, 468, 
 486, 539, 600, 601, 711-714,796, 815, 831- 
 834, 846, 856, 911, 929, 986; Evidence, 
 2034; Quo Warranto, 8; and also infra, 
 Editorial Notes. 
 
 Of Law School as to Graduation, see Col- 
 leges, 7. 
 
 Of Courts to Sit at County Seats, &e 
 Courts, 315. 
 
 Of Commission Merchants, see Factors, 4, 8. 
 
 Of Church as to Pews, see Pews, 4. 
 
 Of Port, see Shipping, 12. 
 
 As Affecting Charitable Gift, see Charities, 
 21. 
 
 Common Error as Law, see Common Error. 
 
 Effect of Construction, see Constitutional 
 Law, 56. 
 
 Usage in Construction of Constitution, see 
 Constitutional Law, I. a, 3. 
 
 As Basis of Easement, see Easements, 25. 
 
 Judicial Notice as to, see Evidence, 135-140. 
 
 Burden of Proof as to, see Evidence, 750, 
 
 Evidence of, Generally, see Evidence. XI. b. 
 
 Parol Evidence of, see Evidence, VI. b. 
 
 Effect of, on Parol Evidence as to Writing, 
 see Evidence, 1071; and also infra, Ed- 
 itorial Notes. 
 
 Sufficiency of Proof of, see Evidence, 2350, 
 2351. 
 
 To Search Prisoners, Evidence as to, see 
 Evidence, 2188. 
 
 Necessity of Pleading, see Pleading, 90; and 
 also infra, Editorial Notes. 
 
 Effect of Long Continued Custom, see Stat- 
 utes, 620. 
 
 Question for Jury as to, see Trial, 522, 523. 
 
 As to Appropriation of Ice, see Ice, 19. 
 
 As to Interest on Advances bv Partner, see 
 Interest, 25, 26. 
 
 As to Discharge of Employee, see Master 
 and Servant, 35. 
 
 As to Who Shall Furnish Scaffolding, see 
 Master and Servant. 316. 
 
 As to Removal of Goods on Payment of 
 Freight Charges, see Sale. 156. 
 
 As to Withdrawal of Bill, see Statutes, 21. 
 
 As to Tax Roll, see Taxes, 378. 
 
 As to Use of Standard Time, see Time, 2. 
 
 As to Use of Water of Running Stream, eoe 
 Waters, 220, 222. 
 
 As to Prior Appropriation of Water, see 
 Waters, 317-319, 329. 
 
 1. No usage is good which conflicts with 
 an established principle of law. East Bir- 
 mingham Land Co. v. Dennis, 85 Ala. 565, 
 5 So. 317. 2: 830 
 
 2. A usage which is not according to lav/, 
 though universal, cannot be set up to control 
 the law. Columbus & H. Coal & I. Co. v. 
 Tucker, 48 Ohio St. 41, 26 N. E. 630, 12: 577
 
 CUSTOM. 
 
 929 
 
 3. In all contracts as to the subject-mat- 
 ter of which known usages prevail, the par- 
 ties proceed on the tacit assumption of such 
 usages, but commonly reduce into writing 
 the particulars of their agreement, omitting 
 to specify those known usages which are 
 included as of course bv mutual understand- 
 ing. MacCulsky v. Klosterman, 20 Or. 108, 
 25 Pac. 366, 10: 785 
 
 4. A usage to be good and one of whicii 
 the courts will take judicial notice must be 
 general and of such long standing as to have 
 become a part of the law itself. City Elec- 
 tric Street R. Co. v. First Nat. Exch. Bank, 
 62 Ark. 33, 34 S. W. 89, 31: 535 
 
 5. A usage to affect a contract must bo 
 so general and well established that knowl- 
 edge and adoption of it may be presumed; 
 and it must be certain and uniform. Balti- 
 more Base Ball & E. Co. v. Pickett, 78 Md. 
 375, 28 Atl. 279, 22: 690 
 
 6. A usage or custom, to be binding, must 
 be so uniform, long established, and general- 
 ly acquiesced in, and so well known, as to 
 induce the belief that parties contracted 
 with reference to it if nothing was said to 
 the contrary, and that the failure to con- 
 form to it would be an exception. Cleve- 
 land, C. C. & St. L. R. Co. v. Jenkins, 174 
 111. 398, 51 N. E. 811, 62: 922 
 
 7. A custom or usage, to be available 
 against a party to a contract, must be so 
 notorious as to affect him with knowledge 
 of it, and raise the presumption that he 
 dealt with reference to it, or he must be 
 shown to have had actual knowledge of it. 
 Blake v. Stump, 73 Md. 160, 20 Atl. 788. 
 
 10:103 
 As to warning of school meeting. 
 
 8. Usage cannot excuse failure of the 
 warning of a school-district meeting to spec- 
 ify the business or question to be considered, 
 as required by Vt. R. L. 1880, 521. Scott 
 v. School District No. 9. 67 Vt. 150. 31 Atl. 
 145, 27: 588 
 As to right to fish. 
 
 9. Custom cannot give a public right to 
 fish in a pond on private land because a 
 common-law custom, as distinguished from a 
 usage of trade, must be immemorial, and in 
 New Jersey is therefore impossible, because 
 a custom laid in the public is bad for uni- 
 versality and because a right to take profit 
 from the land of another cannot be acquired 
 by custom. Albright v. Cortright (N. J. 
 Err. & App.) 64 N. J. L. 330. 45 Atl. 634, 
 
 48: 616 
 
 As to negligence. 
 
 To Ride Bicycle on Sidewalk, Availability 
 as Defense, see Bicycles, 8. 
 
 As to Passengers Being on Platform, see 
 Carriers, 36. 
 
 Tn Permitting Children to Ride on Engine on 
 Trains, see Carriers. 458, 459. 
 
 As to Assisting Women Passengers, see Car- 
 riers. 468: Evidence, 2034. 
 
 To Throw Mail Bags from Car. see Carriers. 
 539. 
 
 To Suspend Husiness During Holiday, see 
 Carriers. 831-834. 
 
 As to Transportation of Live Stock, see Car- 
 riers. 846. 856. 
 L.R.A. Dig. oil. 
 
 As to Taking Cars from Connecting Car- 
 riers without Changing Goods, see Car- 
 riers, 986. 
 
 As to Mode of Delivering Freight, see Quo 
 Warranto, 8. 
 
 As to Coupling Cars, see Master and Serv- 
 ant, 201. 
 
 To Store Street Cars in Street, see Master 
 and Servant, 75; Notice, 59. 
 
 As to Kicking Cars, see Master and Servant , 
 309. 
 
 See also Master and Servant, 610; infra, 
 Editorial Notes. 
 
 10. A custom of others to be equally negli- 
 gent is no defense to one charged with negli- 
 gence. Columbus & H. Coal & I. Co. v. 
 Tucker, 48 Ohio St. 41, 26 N. E. 630, 12: 577 
 
 11. The custom of a class of persons to 
 ride upon a pilot of an engine cannot pre- 
 vent such an act from being regarded as neg- 
 ligence. Warden v. Louisville & N. R. Co. 
 94 Ala. 277, 10 So. 276, 14: 56'2 
 
 12. The custom of people to crawl unuer 
 a train blockading a highway crossing can- 
 not affect the question of negligence in so 
 doing. Rumpel v. Oregon Short Line & U. 
 X. R. Co. 4 Id. 13, 35 Pac. 700, 22: 725 
 
 13. A general custom and usage as to 
 placing railings or barriers along a highway 
 embankment is of no importance in deter 
 mining the liability of a town for failure 
 to provide such barriers at a dangerous 
 place, where the statute imposes an absolute 
 liability to make highways safe for travel. 
 Molloy v. Walker Twp. 77 Mich. 448, 43 N. 
 W. 1012, 6: 695 
 
 14. Custom cannot excuse a failure to 
 make a scaffold or other safeguard on the 
 side of a brick wall which is being built 
 within a few feet of the entrance of a 
 schoolhouse then in use. Mayer v. Thomp 
 son-Hutchison Bldg. Co. 104 Ala. 611, 16 
 So. 620, 28:433 
 Of benefit association. 
 
 15. A usage of a mutual benefit associa- 
 tion, constituting a part of the contract with 
 ertdh of its members, that masonic questions 
 shall be decided by masonic tribunals, with 
 respect to whether the members are masons 
 or not, as required by the by-laws of the 
 association, is as conclusive on the associa 
 tion as though it provided in terms that tin- 
 question of being or continuing to be a 
 mason in good standing should be decided by 
 the masonic officers. Connelly v. Masonir 
 Mut. Ben. Asso. 58 Conn. 552. 20 Atl. 671. 
 
 9: 42S 
 
 Of insurance. 
 
 As to Employment of Clerk by Agents, sec 
 Evidence'. 2170. 
 
 16. There is no presumption of knowl- 
 edge, on the part of an insurance company 
 doing a general business throughout the 
 United States, of a custom or usage as to 
 what constitutes a "building" or "risk." 
 which is peculiar to a city in a state foreign 
 to its domicil. so as to make the custom an 
 element of its contracts relating to proper 
 ty in such city, without proof that it had 
 such knowledge, firman American Ins. Co. 
 v. Commercial F. Ins. Co. 95 Ala. 46!), 
 11 So. 117, 1 : ^
 
 930 
 
 CUSTOM. 
 
 As to usury. 
 
 17. If a contract is usurious, no custom 
 can legalize it. Harmon v. Lehman, 85 Ala. 
 379, 5 So. 197, 2: 589 
 Of banks. 
 
 As to Collection of Commercial Paper, see 
 Banks, 205, 219-221, 228, 233, 263. 
 
 To Require Identification of Person Present- 
 ing Check, see Checks, 44. 
 
 As to Taking Bill of Lading as Security, 
 see Factors, 4. 
 
 Judicial Notice of, see Evidence, 135. 
 
 Parol Evidence as to, see Evidence, 1092. 
 
 See also infra, Editorial Notes. 
 
 18. A custom among the banks of a cer- 
 tain place to pay notes made by a depositor 
 payable at a bank out of his deposit, with- 
 out instructions, in order to be binding must 
 be certain and uniform, and there must be 
 a reasonable ground to suppose that it was 
 known to both parties to the contract. Gris- 
 som v. Commercial Nat. Bank, 87 Tenn. 350, 
 10 S. W. 774, 3: 273 
 Of real estate agents. 
 
 See also infra, 25; and Editorial Notes. 
 
 19. A usage or custom of real estate 
 agents in a certain city to get up syndicates 
 to buy property in their hands for sale will 
 not bind members of a syndicate who have 
 no knowledge thereof, especially if they live 
 at other places, so as to sustain a purchase 
 
 . of property for the syndicate made by such 
 agents who are -also acting as secret agents 
 of the vendor. Ferguson v. Gooch, 94 Va. 
 1, 26 S. E. 397, 40:234 
 
 Of baseball players. 
 
 20. A usage or custom of baseball clubs 
 to discharge a player on ten days' notice, if 
 he is deficient in playing, cannot modify a 
 special contract for a definite time, espe- 
 cially when the player has no reciprocal 
 right to cancel the contract. Baltimore Base 
 Ball & E. Co. v. Pickett, 78 Md. 375, 28 
 Atl. 279, 22:690 
 Of carpet makers. 
 
 21. A custom or usage of carpet making, 
 which would give the color mixer an ex- 
 clusive title, as against his employer, to the 
 various combinations and shades of color de- 
 vised by him for use in the manufacture of 
 carpets in his employer's mill, is unreason- 
 able and cannot be sustained. Dempsey v. 
 Dobson, 184 Pa. 588, 39 Atl. 493. 40: 550 
 Of traders. 
 
 Parol Evidence as to, see Evidence. 1087, 
 
 1089, 1090. 
 See also infra, Editorial Notes. 
 
 22. A known usage of trade forms a part 
 of a contract made in that trade. Union 
 Ins. Co. v. American F. Ins. Co. 107 Cal. 327, 
 40 Pac. 431, 28: 692 
 
 23. When one employs another to deal in 
 a particular market, he will be held to in- 
 tend that the mode of performance should 
 be in accordance with the established cus- 
 toms and usages of the market, so long as 
 the custom or usage is neither immoral, 
 unlawful, unreasonable, contrary to the ex- 
 press agreement of the parties, nor such as 
 to change the intrinsic character of the un- 
 dertaking. Skiff v. Stoddard. 63 Conn. 198. 
 2<5 Atl. 874, 21: 102 
 
 24. A local custom of dealers in a place 
 where a sale is made, which violates a well- 
 established principle of law, and changes the 
 nature and obligations of the relation of two 
 parties to each other, is inoperative unless 
 known and assented to by both. Geyser- 
 Marion Gold Min. Co. v. Stark, 45 C. C. A. 
 467, 106 Fed. 558, 53: 684 
 
 25. The fact that a person engaged in 
 buying and selling real estate at times 
 dealt through the agency of brokers is not 
 sufficient of itself to affect him with knowl- 
 edge of a peculiar custom among them as 
 to when their commission should be con- 
 sidered as earned. Blake v. Stump, 73 Md. 
 160, 20 Atl. 788, 10: 103 
 
 26. A custom of trade known to a person 
 having diamonds in his possession, limiting 
 his power to sell them, is binding on a pur- 
 chaser from him, whether he has knowledge 
 of the custom or not. Smith v. Clews, 114 
 N. Y. 190, 21 N. E. 160, 4: 392 
 
 27. A custom of trade in the city 01 Au- 
 gusta, Georgia, by which, contrary to the 
 general law of the state, acceptance of corn 
 in bulk and paying for it after inspection 
 are considered as waiving or releasing all 
 claim upon the seller to answer for any de- 
 fects of quality, is not binding except upon 
 those who have recognized it in their own 
 transactions, and thus adopted it for their 
 own dealings. Miller v. Moore, 83 Ga. 684, 
 10 S. E. 360, 6: 374 
 
 28. A verdict against a tobacco sampler 
 for the amount of loss resulting to a 
 buyer because the tobacco in the cases was 
 not as represented by the sample tags is 
 supported by evidence that by usage of 
 trade he undertook to make good such loss, 
 and that he had promised to make it good 
 after having been notified of it, and had 
 paid other losses resulting from the same 
 cause, although there was no privity of con- 
 tract between him and the person injured. 
 Conestoga Cigar Co. v. Finke. 144 Pa. 159, 
 22 Atl. 868. 13: 438 
 
 Editorial Notes. 
 
 As part of contract ; usage of trade to aid 
 interpretation. 3: 860;* 
 4: 392;* 10: 785.* 
 
 Admissibility of evidence of, to vary writ- 
 ten contract. 13: 4*40.* 
 
 Effect on legal right. 2: 87.* 
 
 Validity of. 10: 366.* 
 
 Admissibility of evidence of, on question 
 of negligence. 10: 366.* 
 
 As affecting carrier's liability. 2: 76.* 
 
 As affecting liability of baggage transfer 
 company. 34: 140. 
 
 As to delivery of goods by carrier. 1: 651.* 
 
 As law. conflict with rules of law; reason- 
 ableness of; knowledge 
 of; to affect express eon- 
 tract. 13: 438.* 
 
 Banking customs. 21 : 440. 
 
 Usages and customs with respect to bank 
 collections. 2:699;* 7: 
 855.* 
 
 Effect of clearing-house rules and customs. 
 25: 830. 
 
 \s to prior appropriation. 30: 669.
 
 CUSTOMS DUTIES DAMAGES. 
 
 931 
 
 As to receipt of double commissions by 
 real estate broker. 45: 48. 
 
 As affecting performance of real estate 
 broker's contract. 44:600. 
 
 Habitual practice of employee as substitute 
 for rule. 43: 316. 
 
 As affecting duty of master to promulgate 
 rules. 43: 311. 
 
 Question relating to, as Federal question. 
 62: 538. 
 
 Necessity of specially pleading local usage 
 and custom. 2: 709. 
 
 How proved. 13: 440.* 
 
 Custom as a defense to action of prosecu- 
 tion for cutting timber on 
 public lands. JO: 878. 
 
 CUSTOMS DUTIES. 
 
 See Duties. 
 
 CUTS. 
 
 Injury to Adjoining Land by, see Highways, 
 206. 
 
 CUT STONE. 
 As Fixture, see Fixtures, 42. 
 
 CYCLONES. 
 
 Insurance against Loss by. see Insurance, 
 
 968. 
 Use of Public Funds to Pay Debts Resulting 
 
 from, see Public Moneys, 16. 
 
 CY PRES. 
 Doctrine of, see Charities, JL b. 
 
 D 
 
 DAIRIES. 
 
 Special Privilege as to, see Comstitutional 
 Law, 467. 
 
 Validity of Ordinance Prohibiting, see Con- 
 stitutional Law, 682. 
 
 Police Power as to Imitation of Products, 
 of, see Constitutional Law, 1068-1071. 
 
 Municipal Regulation of, see Municipal Cor- 
 porations, 128, 218. 
 
 Editorial Notes. 
 
 Municipal power over, as nuisances. 38: 
 657. 
 
 DAMAGES. 
 
 I. General Principles; Nominal Damages; 
 
 Preventing Unnecessary Amount. 
 "II. Exemplary or Punitive. 
 
 a. In General. 
 
 b. For act of Servant; Carrier's Lia- 
 
 bility. 
 
 HI. Measure of Compensation, 
 a. On Contracts. 
 
 1. Generally. 
 
 2. On Bonds. 
 
 3. As to Real Property. 
 
 4. Sales of Personalty: Warran- 
 
 ty. 
 
 a. Seller's Failure to Deliv- 
 
 er. 
 
 b. Buyer's Failure to Com- 
 
 plete Purehasi'. 
 v. Breach of Warranty. 
 
 5. Of Employment. 
 
 III. a continued. 
 
 6. To Advance Money; Nonpay- 
 
 ment of Checks. 
 
 7. Liquidated Damages. 
 
 b. For Telegrams. 
 
 c. Expulsion of, or Failure in Duty to, 
 
 Passenger. 
 . 1. In General. 
 2. Ejection. 
 
 d. In Respect to Freight. 
 
 e. Torts Generally; Breach of Prom- 
 
 ise. 
 
 f. Fraud. 
 
 g. Assault; False Imprisonment; Ma- 
 
 licious Prosecution; Abuse of 
 
 Process. 
 
 h. Libel or Slander. 
 i. Personal Injuries; Death. 
 
 1. In General. 
 
 2. Injuries to Married Women. 
 
 3. Death. 
 
 4. Instances of Amount. 
 
 a. In General. 
 
 b. Death. 
 
 j. Injury; Taking or Detention of 
 
 Personal Property, 
 k. Injury to Real Property; Nuisance. 
 
 1. In General. 
 
 I. Injury to, or Destruction of. 
 Buildings or Trees. 
 
 3. Injury to Wator Rights ; Over- 
 
 flows. 
 
 4. Nuisanrr^. 
 
 1. Condemnation or Depreciation in 
 Value l>v Kiuinpnt Domain. 
 
 1. In General. 
 
 2. Value: Estimate of. 
 
 n. In (Jem-ral. 
 
 6. Value im Special Use. 
 
 3. Consequential Injuries.
 
 932 
 
 DAMAGES, I. 
 
 III. 1 continued. 
 
 4. As to Abutting Owners. 
 
 a. Railroads in Street. 
 6. Elevated Railroads. 
 
 5. In Highway Cases. 
 
 6. Advantages; Offsets. 
 
 a. In General. 
 
 6. Special Benefits, 
 m. In Injunction Cases. 
 n. In Trademark and Patent Cases, 
 o. Mental Anguish. 
 
 1. Accompanying Physical Suf- 
 
 fering. 
 
 2. Unaccompanied by Physical 
 
 Injury. 
 
 a. In General. 
 
 b. From Delay in Delivering 
 
 Telegram or Transmit- 
 ting Money. 
 
 c. Failure of Duty to Pas- 
 
 senger. 
 p. Loss of Profits. 
 
 1. In General. 
 
 2. From Breach of Contract. 
 
 q. Time for Which Recoverable; 
 
 Prospective, 
 r. Counsel Fees, 
 s. Mitigation; Reduction, 
 t. Aggravation, 
 u. Apportionment. 
 
 IV. Assessment; Treble Damages. 
 V. Editorial Notes. 
 
 Review of. on Appeal, see Appeal and Error, 
 
 VII. 1, 2, 6. 
 Prejudicial Error as to Measure of, see Ap- 
 
 ' peal and Error, 1167-1170. 
 First Attacking Remoteness of, on Appeal, 
 
 sec Appeal and Error, 606. 
 Opinion Evidence as to. see Evidence, VII. f. 
 Relevancy of Evidence as to, see Evidence, 
 
 XT. g. 
 Admissibility of Evidence as to, Under 
 
 Pleading, see Evidence. 2036-2048. 
 Interest as. see Interest. I. c: and also infra, 
 
 V. S 28. 
 On Amount Recovered as, see Interest. I. c: 
 
 and also infra, V. 17, 28. 
 New Trial for Insufficiency or Excessiveness 
 
 of. see New Trial, 18-20. 
 Allegations as to. see Pleading, II. f. 
 Question for Jury as to. see Trial, 105. 
 Instructions as to. see Appeal and Error, 
 
 VI L m. 4. n. (3); Trial. 656-670. 738, 
 
 761-783. 
 
 1. General Principles: Nominal Damages; 
 Preventing Unnecessary Amount. 
 
 1. Compensatory damages cannot include 
 an allowance for "inconvenience" as well as 
 injuries. Jenson v. Chicago. St. P. M. & O. 
 K. Co. 86 Wis. 589. 57 N. W. 359. 22: 680 
 
 '2. Damages which are the legal and nat- 
 ural result of the act done, though to some 
 extent contingent, are not too remote to be 
 recovered. Taylor Affg. Co. v. Hatcher. 39 
 I-'ed. 440, 3: 587 
 
 3. General damages are such as the jury 
 may give when the judge cannot point out 
 anv men sure l>v which thev are to oe ascer- 
 
 tained except the opinion and judgment of 
 a reasonable man. Special damages are such 
 as by competent evidence are directly trace 
 able to a failure to discharge a contract 
 obligation or duty imposed by law. Bank of 
 Commerce v. Goos. 39 Neb/ 437, 58 N. W. 
 84, 23: 190 
 
 Effect of prior recovery. 
 
 4. Including in damages for condemnation 
 an allowance for the danger of fire by oper- 
 ation of a railroad will not prevent the own- 
 er of property from recovering for its loss 
 by subsequent fire communicated from the 
 railroad locomotives, as the original dam 
 ages were compensation for the depreciation 
 to the value of the property. Matthews v. 
 St. Louis & S. F. R. Co. 121 Mo. 298, 24 
 S. W. 591, 25: 161 
 Aff'd by the Supreme Court of the United 
 States in 165 U. S. 1, 41 L. ed. 611. 17 Sup. 
 Ct. Rep. 243. 
 
 Nominal damages. 
 
 Reversal for Failure to Allow, see Appeal 
 and Error, 1167. 
 
 Submission to Jury of Question as to. see 
 Trial, 72. 
 
 For Breach of Indefinite Contract, see Con- 
 tracts 102. 
 
 See also infra, 93, 139, 161, 165, 171. 207. 338, 
 350, 382, 406, 460, 507, 522. 
 
 For Editorial Notes, see infra, V. 6. 
 
 5. Some proof of the amount of damages 
 is necessary in order to recover anything 
 more than nominal damages for an action- 
 able wrong. Watts v. Norfolk & W. R. Co. 
 39 W. Va. 196, 19 S. E. 521, 23: 674 
 
 6- Only nominal damages can be recovered 
 for a tortious invasion of one's property 
 rights, where there is no evidence of the 
 extent of the loss thereby inflicted upon the 
 injured party. Swift v. Broyles, 115 Ga. 
 885, 42 S. E. 277, 58: 390 
 
 7. One violating his agreement not to 
 engage in a business which he has sold to 
 another is liable, at least, for nominal dam 
 ages. Raymond v. Yarrington. 96 Tex. 443, 
 73 S. W. 800, 62: 962 
 
 8. In an action on contract for breach of 
 covenant to convey real estate with warran- 
 ty of title, where the vendor's title is de- 
 fective, only nominal damages can be re- 
 covered. Gerbert v. Congregation of the 
 Sons of Abraham (N. J. Err. &. App.). 59 
 N. .1. L. 160. 3.-. At I. 1121. 69: 764 
 
 9. Nominal damages only can be recovered 
 for breach of a covenant of warranty by rea-' 
 son of an encumbrance consisting of a right 
 of dower, so long as it remains inchoate. 
 Blevins v. Smith. 104 M<>. ">83. 16 S. W. 213. 
 
 13: 441 
 
 10. Where medical services are proved in 
 an action for personal injuries, nominal 
 damages at least should be awarded for pro- 
 fessional treatment. Feeney v. Long Island 
 R. Co. 116 N. Y. 375, 22 N. E. 402. 5: 544 
 Preventing unnecessary amount. 
 
 As to Effect of Wrong Medical Treatment, 
 see infra, 308, 310. 
 
 Effect of Prior Disease or Infirmity, see in- 
 fra, 311 317. 
 
 Reduction or Mitigation of Damage*, see in- 
 fra. III. s.
 
 DAMAGES, II. a. 
 
 933 
 
 Aggravation of Damages, see infra, III. t. 
 
 Error in Refusing Instruction as to, see Ap- 
 peal and Error, 1072a. 
 
 See also infra, 327, 432. 
 
 For Editorial Notes, see infra, V. 3. 8, 
 22, 23, 27. 
 
 11. The injured party must use reason- 
 able exertion to lessen or moderate the dam- 
 age resulting from a wrongful injury. Fac- 
 tors & T. Ins. Co. v. Werlein, 42 La. Ann. 
 1046, 8 So. 435, 11 : 361 
 
 12. It is the duty of the injured party, 
 when a contract is broken, to minimize the 
 loss and injury, when it is practicable to 
 do so by a reasonable outlay of money; but 
 such outlay is to be allowed him as a part 
 of his damages. Griffith v. Blackwater 
 Boom & L. Co. 55 W. Va. 604; 48 S. E. 442, 
 
 69: 124 
 
 13. The duty to minimize loss requires a 
 buyer, upon breach by the seller of a con- 
 tract to sell goods upon credit, to accept the 
 latter's unconditional offer to sell at a re- 
 duced price for cash on delivery, where he is 
 able to accept it and goods of that kind and 
 quality are not purchasable from other par- 
 ties. Lawrence v. Porter, 22 U. S. App. 483, 
 11 C. C. A. 27, 63 Fed. 62, 26: 167 
 
 14. An agent employed to buy live stock 
 at a certain market for a nonresident p~in- 
 oipal. and who, because of delay in delivering 
 to him a telegram, makes purchases which 
 the delayed message tells him not to make, 
 is not required, in order to reduce to the 
 minimum the damages recoverable from the 
 telegraph company, to resell the property 
 that he has purchased, until he has had op- 
 portunity to communicate with and get in- 
 structions from his principal. Western U. 
 Teleg. Co. v. North Packing & P. Co. 188 111. 
 366, 58 N. E. 958, 52: 274 
 
 15. One on whom a wilful injury is in- 
 flicted is not precluded, by his mere failure 
 to exercise reasonable care to avoid the con- 
 sequences of the injury, from recovering for 
 so much of the damage as results from that 
 failure. Galveston, H. & S. A. R. Co. v. 
 Zantzinger, 92 Tex. 365, 48 S. W. 563, 
 
 44: 553 
 
 16. Where plaintiffs injuries were aggra- 
 vated by his own neglect, and the jury ap- 
 portioned the damages, he may recover only 
 to the extent of the damage caused without 
 his fault. Owens v. Baltimore &. O. R. Co. 
 35 Fed. 715, 1: 75 
 
 17. An aggravation of personal injuries, 
 caused by the neglect or failure of the in- 
 jured person to obtain the needed medical or 
 surgical assistance, cannot be- charged 
 against the party by whose negligence the 
 original injury was received. Texas & P. R. 
 Co. v. White, 42 C. C. A. 86. 101 Fed. 928, 
 
 62: 90 
 
 18. A passenger is not called upon to sub- 
 mit to a wrongful ejection for the purpose 
 of economizing the damages to be recovered, 
 but may make any resistance not amounting 
 to a criminal disturbance of the peace. Ells- 
 worth r. Chicago, B. &. Q. R. Co. 95 Iowa, 98, 
 63 N. W. 584, 29: 173 
 
 19. The owner of a building which is in- 
 jured by the falling of an adjoining wall 
 
 must use reasonable precautions to reduce 
 the damages likely to be occasioned by its 
 fall. Factors & T. Ins. Co. v. Werlein, 42 
 La. Ann. 1046, 8 So. 435, 11: 361 
 
 II. Exemplary or Punitive, 
 a. In General. 
 
 Mitigation of, see infra, 662. 
 
 Reversal for Allowance of, see Appeal and 
 Error, 1167-1170. 
 
 Necessity of Pleading, see Pleading, 236. 
 
 Retrospective Statute as to, see Constitu- 
 tional Law, 116. 
 
 Instruction as to, see Appeal and Error, 
 1036; Trial, 657, 660, 768, 781-783. 
 
 Sufficiency of Verdict as to, see Trial, 896, 
 897. 
 
 Effect of Motive on, see Trover, 37. 
 
 For Editorial Notes, see infra, V. 4. 
 
 20. The doctrine of punitive damages is 
 rejected by the supreme court of Washing- 
 ton as unsound in principle and unfair and 
 dangerous in practice. Spokane Truck & D. 
 Co. v. Hoefer, 2 Wash. 45, 25 Pac. 1072, 
 
 11: U89 
 
 21. The right to bring an action ex delicto 
 does not of itself authorize the allowance 
 of smart money. Hansley v. Jamesville & 
 W. R. Co. 115 N. C. 602. 117 N. C. 565, 20 S. 
 E. 528, 23 S. E. 443, 32: 543 
 Torts or negligence generally. 
 
 For Editorial Notes, see infra, V. 4. 
 
 22. Punitory damages cannot be awarded 
 against the estate of a deceased person for 
 a tort committed by him in his lifetime. 
 Hewlett v. George, 68 Miss. 703, 9 So. 885. 
 
 13: 682 
 
 23. Wanton and reckless indifference to 
 the rights of others, equivalent to an inten- 
 tional violation of them, may constitute a 
 ground of exemplary damages. Press Pul>. 
 Co. v. Monroe, 19 C. C. A. 429, 38 U. S. App. 
 410, 73 Fed. 196, 51: 35:5 
 
 24. Actual damages are not necessary to 
 authorize exemplary damages in case of 
 wanton and reckless indifference to the 
 rights of others by a wrongdoer. Id. 
 
 25. Exemplary or punitive damages may 
 be awarded where a wrong has in it the 
 element of negligence which is gross or wan- 
 ton, or wilfully oppressive. Kansas City, Ft. 
 S. & M. R. Co. v. Little, 66 Kan. 378, 71 Pac. 
 820, 61: i22 
 
 26. Punitive damages may be awarded 
 when a wrongful act is done wilfully in a 
 wanton or oppressive manner, or even when 
 it is done recklessly. Fotheringham v. 
 Adams Exp. Co. 36 Fed. 252, 1 : 474 
 
 27. Mere negligence, unless so gross as to 
 amount to positive bad faith, is not a ground 
 for awarding punitive damages. Peterson 
 v. Western U. Teteg. Co. 72 Minn. 41, 74 N. 
 W. 1022. 40: 661 
 Wrongful conspiracy or combination. 
 Instructions as to, see Trial, 768. 
 
 28. Exemplary damages cannot be recov- 
 ered in an action against tho several mem-
 
 934 
 
 DAMAGES, II. a. 
 
 bers of an association for acting in concert 
 to withdraw their patronage from a dealer, 
 when some of them have been coerced by a 
 by-law which imposed a penalty for its vio- 
 lation. Boutwell v. Marr, 71 Vt. 1, 42 Atl. 
 K07, 43: 803 
 
 29. Compelling the withdrawal of a hearse 
 and carriages from a funeral just at the 
 time when they were wanted, in pursuance 
 of an unlawful* by-law of a liverymen's as- 
 sociation which prohibited doing business 
 with any person who did not deal exclusive- 
 ly with its members, will justify an award 
 of exemplary damages, where the act was 
 done with full knowledge of the situation, 
 and for the purpose of demonstrating the 
 power of the association to punish livery- 
 men ior doing business in an independent 
 way, and to punish other persons for deal- 
 ing with nonunion liverymen. Gatzow v. 
 Buening. 106 Wis. 1, 81 N. W. 1003, 49: 475 
 Interference with burial rights. 
 
 30. In a suit for an unlawful and unwar- 
 ranted interference with the exercise of a 
 right of burial by the proper relatives, if 
 the injury inflicted upon the plaintiffs was 
 wanton and malicious, or the result of gross 
 negligence or a reckless diregard of the 
 rights of others, equivalent to an intentional 
 violation of them, exemplary damages may 
 be awarded, in estimating which the injury 
 to the natural feelings of the plaintiffs may 
 be taken into consideration. Wright v. 
 Hollywood Cemetery Corp. 112 Ga. 884. 38 
 S. E. 94, 52: 621 
 Libel and slander. 
 
 Mitigation of Damages, see infra, 658. 
 Class Legislation as to, see Constitutional 
 
 Law. 346. 
 Power of Legislature to Limit Amount, see 
 
 Constitutional Law, 836. 
 Sufficiency of Verdict as to, see Trial, 897. 
 See also infra, 86; Libel and Slander, 177. 
 For Editorial Notes, see infra, V. 4. 
 
 31. The award of punitive damages in a 
 slander case must be limited as the circum- 
 stances in the judgment of the jury require. 
 Gambrill v. Schooley. 95 Md. 260, 52 Atl. 
 500, 63: 427 
 
 32. Exemplary or punitive damages are 
 within the sound discretion of the jury in 
 an action for slander or libel, where the 
 words are actionable per se, but cannot in 
 any case be recovered as a matter of legal 
 right. Gambrill v. Schooley. 93 Md. 48, 48 
 Atl. 730. 52: 87 
 
 33. Punitive damages cannot be recovered 
 for the utterance of words which are qual- 
 ifiedly privileged, unless it is shown that ac- 
 tual malice prompted the utterance. Fresh 
 v. Cutter, 73 Md. 87, 20 Atl. 774. 10: 67 
 
 34. Unless slanderous words are uttered 
 with actual malice, hatred, or ill-will, or 
 with such clear want of ground as to war- 
 rant an inference of hatred or ill-will, only 
 Compensatory damages should be allowed. 
 Broughton v. McGrew, 39 Fed. 672. 5: 406 
 
 35. Punitive damages may be allowed, 
 ven in the absence of express malice, for 
 publication of a libel which is not privileged 
 and is without excuse. Coffin v. Brown, 94 
 Md. 190. 50 Atl. o67. 55: 732 
 
 36. Exemplary damages may be allowed 
 for wantonly publishing a libel without in- 
 quiry or justifiable motive. Morning Jour- 
 nal Asso. v. Rutherford, 1 U. S. App. 296, 2 
 C. C. A. 354, 51 Fed. 513, 16: 803 
 
 37. The custom of a newspaper to print 
 stories of elopements and similar gossip 
 whenever they have appeared in the columns 
 of another paper, without any inquiry as to 
 their truth, shows such reckless unconcern as 
 to the mental anguish that may be caused 
 by such publication as will warrant a jury 
 in finding the publisher guilty of wanton 
 negligence which will justify a verdict for 
 punitive or exemplary damages. Morning 
 Journal Asso. v. Rutherford, 1 U. S. App. 
 296, 2 C. C. A. 354, 51 Fed. 513, 16: 803 
 
 38. Gross and reckless negligence and wan- 
 ton indifference to the rights of the persons 
 libeled may, without any direct intention 
 to injure, constitute such malice as will 
 justify exemplary damages. Press Pub. Co. 
 v. McDonald, 26 U. S. App. 167, 11 C. C. A. 
 155, 63 Fed. 238, 26: 531 
 
 39. Failure to make any effort to verify 
 the accuracy of a libelous despatch, before 
 printing it in a newspaper, may be found 
 by the jury to constitute such reckless and 
 wanton desregard of the rights of others as 
 to sustain a verdict for punitory damages. 
 
 Id. 
 Breach of marriage promise. 
 
 40. Exemplary or punitive damages, as 
 such, cannot be recovered for breach of a 
 contract of marriage by reason of the fact 
 that the promise was not made in good 
 faith, but was made without intent to per- 
 form it, for the purpose of humiliating and 
 disgracing the other party, although this 
 fact may constitute an aggravation of the 
 compensatory damages. Trammell v. Vaugh- 
 an, 158 Mo. 214, 59 S. W. 79, 51: 854 
 
 41. Exemplary damages may be awarded 
 for breach of promise of marriage, where, 
 after the wedding day was agreed upon and 
 the usual preparations made and the rela- 
 tives and guests bidden to the ceremony, de- 
 fendant failed to appear, shamming illness 
 as an excuse, and had also persuaded plain- 
 tiff to resign a situation for the purpose of 
 marrying him, and furthermore in his plead- 
 ing charges her with having no affection for 
 him, but with entertaining a purpose to pro- 
 cure money from him on the pretense of hia 
 promise to marry her and his breach thereof. 
 Ohellis v. Chapman, 125 N. Y. 214, 26 N. E. 
 308, 11:784 
 Seduction. 
 
 42. Punitive damages are allowable in the 
 case of seduction. Lawyer v. Fritcher, 130 
 N. Y. 239. 29 N. E. 267, 14: 700 
 Fraud. 
 
 43. Exemplary damages are recoverable 
 for fraud in inducing a man to marry a 
 woman who is pregnant by another. Kujek 
 v. Goldman. 150 N. Y. 176, 44 N. E. 773, 
 
 34: 156 
 Assault and battery. 
 
 44. In an action to recover damages re- 
 sulting from an assault and battery commit- 
 ted on the plaintiff, if there be aggravating 
 circumstances either in the act or intention,
 
 DAMAGES, II. b. 
 
 935 
 
 punitive or exemplary damages may be re- 
 covered. Berkner v. Dannenberg, 116 Ga. 
 954, 43 S. E. 463, 60: 559 
 
 45. One who recklessly and wantonly 
 strikes a stranger upon the pretext of de- 
 fending himself against one with whom he 
 has had an altercation is liable for exem- 
 plary, as well as compensatory, damages. 
 Crabtree v. Dawson, 26 Ky. L. Rep. 1046, 83 
 S. W. 557. 67: 565 
 
 46. In determining the liability of a per- 
 son for exemplary damages for an assault, 
 the character and standing of the parties 
 involved may be considered. Goldsmith v. 
 Joy, 61 Vt. 488, 17 Atl. 1010. 4: 500 
 Abuse of process. 
 
 47. Exemplary damages may be award- 
 ed against attaching officers who, although 
 they have no personal acquaintance with, 
 or ill-will against, defendant, wilfully and 
 knowingly allow themselves to become tools 
 of the attaching creditors, whose object is 
 apparently malicious, and make an unlaw- 
 ful levy in a high-handed and oppressive 
 way to oppress the debtor. Giddings v. 
 Freedley, 128 Fed. 355, 65: 327 
 
 48. Punitive damages may be awarded 
 for the wrongful arrest, by a servant, of a 
 landowner, to get him out of the way while 
 poles and wires are strung over his property 
 against his will, for the benefit of the mas- 
 ter. Jackson v. American Teleph. Teleg. 
 Co. 139 N. C. 347, 51 S. E. 1015, 70: 738 
 
 41). Punitive damages cannot be awarded 
 against a sheriff's bond for the wrongful act 
 of the sheriff's deputy in killing a third per- 
 son under the mistaken belief that he is a 
 felon for whose arrest the deputy has a 
 warrant, and that the killing is necessary 
 to prevent his escape. Johnson v. Williams, 
 111 Ky. 289, 63 S. W. 759, 54: 220 
 
 Refusal of telephone service. 
 
 50. Belief in the existence of a legal right 
 to refuse telephone service to one applying 
 for it, although erroneous, and refusal to 
 furnish service for the purpose of protect- 
 ing the rights of the telephone company, 
 will prevent the imposition of punitive dam- 
 ages for such act. Gwynn v. Citizens' 
 Teleph. Co. 69 S. C. 434, 48 S. E. 460, 
 
 67: 111 
 
 Personal injuries or death. 
 See also supra, 22-27. 
 
 51. The damages for a personal injury 
 caused by negligence may be the "present 
 cash value" of the injury to the injured per- 
 son, taking into consideration pain and men- 
 tal suffering, and not allowing anything as 
 a punishment, or punitive damages. (Joley 
 v. North Carolina R. Co. 128 N. C. 534, 39 S. 
 E. 43, 129 N. C. 407, 40 S. E. 195, 57: 817 
 
 52. For a druggist to fill an order for % 
 grain calomel tablets with morphine, and 
 place them in a box labeled calomel, without 
 giving notice of the fact, may be found to 
 be gross negligence of an aggravated form, 
 which will render him liable for punitive 
 damages in case injury results therefrom. 
 Smith v. Middelton. 112 Ky. 588. 66 S. W. 
 388. 50: 484 
 
 53. Exemplary damages are not recover- 
 able in an action for negligence resulting in 
 
 death to another. Thompson v. Louisville 
 & N. R. Co. 91 Ala. 496, 8 So. 406, 11: i46 
 Refusal to honor check. 
 
 54. Punitive damages should not be al 
 lowed for wrongful refusal to honor a check, 
 in the absence of actual malice, oppression, 
 or bad motive on the part of the bank. 
 American Nat. Bank v. Morey, 113 Ky. 857, 
 69 S. W. 759, 58: 956 
 Nonpayment of wages. 
 
 55. The exemplary damages allowed for 
 nonpayment of wages on the discharge of an 
 employee under Ark. act March 25, 1889, 
 providing that in such case the wages shall 
 continue at the contract rate until paid, but 
 not more than sixty days unless action is 
 brought in that time, are not unreasonable. 
 St. Louis, I. M. & S. R. Co. v. Paul, 64 Ark. 
 83, 40 S. W. 705, 37 : 504 
 Forcible entry. 
 
 56. Exemplary damages for forcible entry 
 may be recovered if the unlawful act is done 
 in a wanton and reckless manner. Mosseller 
 v. Deaver, 106 N. C. 494, 11 S. E. 529, 
 
 8: 537 
 Injury to real property. 
 
 57. Exemplary damages may be awarded 
 for wilfully attempting to enjoy a parol li- 
 cense to maintain a ditch over another's land 
 after the license has been revoked. Hicks 
 Bros. v. Swift Creek Mill Co. 133 Ala. 411, 
 31 So. 947, 57: 720 
 
 58. Punitive damages may be allowed for 
 the cutting of trees upon the sidewalk for 
 the accommodation of electric light wires, 
 in entire disregard of the rights of the abut- 
 ting owner, and against his protest. Brown 
 v. Asheville Electric Co. 138 N. C. 533, 51 S. 
 E. 62, 69: 631 
 
 b. For Act of Servant; Carrier's Liability. 
 
 For Editorial Notes, see infra, V. 4. 
 
 59. A natural person may be charged with 
 punitive damages for injuries caused by the 
 gross negligence of his servant in the conduct 
 of the master's business, althougn he has 
 exercised due care to select a competent and 
 careful one. Smith v. Middelton, 112 Ky. 
 588, 66 S. W. 388, 56: 484 
 
 60. The master can be held only for actual 
 damages from a wrongful act of his servant, 
 unless he participated in or approved of the 
 wrong. Staples v. Schmid, 18 R. 1. 224, 2(i 
 Atl. 193, 19: 824 
 Liability of carriers generally. 
 
 61. Punitive damages may be given for 
 injury by a railroad train caused by gross 
 negligence, recklessness, or wanton disregard 
 or malice. Mack v. South Bound R. Co. 50 
 S. C. 323, 29 S. E. 905, 40: 679 
 
 62. A railroad company cannot be made 
 responsible for exemplary damages on ac- 
 count of injuries done by one of its serv- 
 ants, even "though the act was wanton and 
 malicious, unless the act was expressly or 
 impliedly authorized or ratified by the com- 
 pany. Ricketts v. Chesapeake & O. R. Co. 
 33 W. Va. 433, 10 S. E. 801. 'i : 354 
 
 63. Exemplary damages cannot be recoy- 
 ered against a carrier for the malicious act 
 of the conductor of a train to the injury of 
 a passenger, which has not been ratified or
 
 936 
 
 DAMAGES, II. b. 
 
 adopted, if there was no carelessness in the 
 selection of employees, or in the establish- 
 ment of regulations, or. in short, if the car- 
 rier or its officers, by whom it is controlled, 
 have not been guilty of any malice, gross 
 negligence, or oppression. Dillingham v. An- 
 thony, 73 Tex. 47, 11 S. W. 139, 3: 634 
 
 64. The mere retention of the conductor 
 of a train in the same position after knowl- 
 edge of his misconduct does not operate as 
 a ratification of his wilful and malicious act 
 in assaulting a passenger, so as to make the 
 carrier liable for exemplary damages. Id. 
 
 65. Exemplary damages may be imposed 
 on the lessor of a railroad because of the 
 reckless conduct of servants of the lessee in 
 the management of a train, by reason of 
 which a person received personal injuries. 
 Hart v. Charlotte, C. & A. R. Co. 33 S. C. 
 4-27, 12 S. E. 9, 10: 794 
 
 66. Punitive damages cannot be recovered 
 for injuries to one attempting to board a 
 railroad train from being struck by another 
 train upon the main track, which he was 
 obliged to cross, where whistles were-sound- 
 <<! and the bell was rung and the fireman 
 'ailed to such person to look out, and there 
 \\ as nothing to prevent him from seeing the 
 t rain. Southern R. Co. v. Smith, 30 C. C. A. 
 .-.S. 52 1). S. App. 708, 86 Fed. 292. 40: 746 
 
 67. That cross- ties under the track at the 
 Mi-int where a train was derailed by a brok- 
 ;!! rail were unsound, decayed, and rotten, 
 and that the rail which broke was old, and 
 (he company constantly repaired the old 
 t rack with old rails, indicate such gross neg- 
 ligence as authorizes a verdict for exemplary 
 damages. Alabama G. S. R. Co. v. Hill, 90 
 Ala. 71, 8 So. 90, 9: 442 
 Failure to transport. 
 
 68. Punitive damages cannot be recovered 
 for failure to transport a passenger on a rail- 
 road because an engine was broken down, 
 where there was no personal injury, insult, 
 indignity, or intentional wrong to him. 
 Hansley v. Jamesville & W. R. Co. 115 N. C. 
 i02. 117 N. C. 565, 20 S. E. 528, 23 S. L. 443, 
 
 32: 543 
 
 09. A railroad company is not liable for 
 punitive damages on account of its failure 
 from inability to run a train on the return 
 trip at a stipulated time, merely because it 
 sold a return ticket for that trip, when it 
 had but two engines, one of which was in the 
 shop for repairs and the other was not in 
 uood condition, and its roadbed and equip- 
 ment had been used for a considerable time 
 in a dilapidated condition, although the 
 Darnings of the road were all applied to its 
 improvement. Id. 
 
 70. Exemplar}' or vindictive damages may 
 be given for the refusal to sell a passenger 
 a ticket or to check his baggage to a regular 
 station of a passenger train, in pursuance of 
 an unreasonable regulation of the company 
 which indicates a wanton disregard of the 
 rights of passengers. Pittsburgh, C. & St. 
 L.'R. Co. v. Lyon. 123 Pa. 140. 16 Atl. 607. 
 
 2 : 489 
 
 Abuse of passenger. 
 See also infra, 83. 
 
 71. Pmiitivp rlamno<: nrp recoverable from 
 
 a carrier for insulting language to a woman 
 while a passenger, by an employee of the 
 carrier, though there had been no negligence 
 in employing him or any authorization or 
 ratification of his conduct. Knoxville Trac- 
 tion Co. v. Lane, 103 Tenn. 376, 53 S. W. 557. 
 
 46: 549 
 
 Assault on passenger. 
 See also supra, 64. 
 
 72. Punitive damages may be awarded in 
 an action against a street car company for 
 an assault by its conductor upon a pa'ssen- 
 ger. Birmingham R. & E. Co. v. Baird, 130 
 Ala. 334, 30 So. 456, 54: 752 
 
 73. Two hundred and fifty dollars actual, 
 and $750 exemplary, damages, awarded 
 against a street car company because of the 
 intentional kicking in the vicinity of the 
 heart, by a conductor, of a boy attempting 
 to board a car to become a passenger, 
 are not so excessive as to be set aside on 
 appeal. McNamara v. St. Louis Transit 
 Co. 182 Mo. 676, 81 S. W. 880, 66: 48<i 
 
 74. The intentional kicking, without just 
 cause or excuse, by a street car conductor, 
 of a boy who is attempting to board a car 
 to become a passenger, will justify an award 
 of exemplary damages against the street car 
 company, although the conductor honestly 
 believed that he was attempting to steal a 
 ride. Id. 
 
 75. Provocation does not necessarily de- 
 feat exemplary damages for an assault by a 
 conductor on a passenger, but the conduct of 
 both may be considered bv the jury. Balti- 
 more &. O. R. Co. v. Barger, 80 Md. 23, 30 
 Atl. 560, 26: 220 
 Ejection. 
 
 70. Only compensatory damages can be re- 
 covered for ejecting a passenger without un- 
 reasonable force, if it is done in good faith, 
 pursuant to rules, and upon due notice to 
 him. Pine v. St. Paul City R. Co. 50 Minn. 
 144, 52 N. W. 392, 16: 347 
 
 77. Exemplary damages cannot be recov- 
 ered from a carrier for the malicious act of 
 the conductor in ejecting a passenger unless 
 his act is either authorized or ratified by the 
 carrier. Robinson v. Superior Rapid Transit 
 R. Co. 94 Wis. 345, 68 N. W. 961, 34: 205 
 
 78. Exemplary damages may be recovered 
 by a passenger for an ejection which was 
 malicious as well as wrongful. Ellsworth 
 v. Chicago, B. & Q. R. Co. 95 Iowa. 98, 63 N. 
 W. 584. 29: 173 
 
 79. Exemplary damages may be recovered 
 for the expulsion of a passenger from a train 
 before arriving at his destination, because by 
 the rules of the company, unknown to the 
 passenger, the train is not scheduled to stop 
 at such station, where the passenger has re- 
 lied on the representation of the ticket agent 
 that the train would stop at such station. 
 Kansas City, Ft. S. & M. R. Co. v. Little. 
 66 Kan. 378. 71 Pac. 820, 81: 122 
 
 80. Exemplary damages may be recovered 
 for the ejection, in the night and at a 
 strange place, of a lady from a train where 
 she has a right to be under tho carriage con- 
 tract made with the agent selling her tick 
 et. of which the conductor is fully informed, 
 although the form* of tho contract are not
 
 I)AMA<;i:>. III. a. 1. 
 
 9H7 
 
 embodied in the ticket, and the regulations 
 of the carrier require passengers between 
 the termini named in the ticket to travel 
 by another route. Illinois C. R. Co. v. Harp- 
 er, 83 Miss. 560, 35 So. 764, 64: 283 
 
 81. Punitive damages may be awarded for 
 injuries sustained in consequence of an ejec- 
 tion from a street car for refusal to pay 
 fare, where the objection was unwarranted 
 and arbitrary, causing serious injuries to the 
 passenger, who shortly afterwards suffered 
 1 1 mil an attack of pneumonia, the severity 
 of which was to some extent due to his in- 
 juries and the condition of his system in con- 
 sequence thereof. Nashville Street R. Co. v. 
 Griffin, 104 Tenn. 81, 57 S. W. 153, 49: 451 
 Failure to stop at station. 
 
 82. Punitive damages are recoverable of a 
 railroad company for disregard of its stat- 
 utory duty to stop at a station for a passen- 
 ger, when it has advertised for passengers 
 for that train and has room for them, or 
 could by reasonable diligence have had cars 
 enough to accommodate them. Purcell v. 
 Richmond & D. R. Co. 108 N. C. 414, 12 S. E. 
 954, 12: 113 
 
 83. A woman carried by a railroad train 
 beyond her station, at which the railroad 
 employees refused to put her off, and to 
 whom they "were indecorous or insulting, 
 either in words, tone, or manner,' may be 
 allowed to recover punitive damages. Louis- 
 ville & N. R. Co. v. Ballard, 88 Ky. 159, 10 
 S. W. 429, 2: 694 
 Cutting off sleeper from train. 
 
 ><4. Exemplary damages cannot be allowed 
 for mere negligence in cutting off a sleeper 
 from a train, whereby a passenger with a 
 sick child is left while his baggage and medi- 
 cine go with the train. Norfolk & W. R. Co. 
 v. Lipscomb, 90 Va. 137, 17 S. E. 809, 
 
 20: 817 
 As to freight. 
 
 85. If delivery of goods by a carrier at the 
 wrong landing is made with a wilful purpose 
 to harass and injure the owner, punitive 
 damages may be recovered. Strieker v. 
 Leathers, 68 Miss. 803. 9 So. 821, 13: 600 
 As to telegrams. 
 
 86. Punitive damages are recoverable 
 against a telegraph company for the mali- 
 cious transmission of a libelous message over 
 its wires by its agent within the scope of his 
 employment. Peterson v. Western U. Teleg. 
 Co. 75 Minn. 368, 77 N. W. 985. 43: 581 
 
 III. Measure of Compensation. 
 
 a. On Contracts. 
 
 1. Generally. 
 
 Mental Anguish for Breach, see infra. 570- 
 572, 575-577. 
 
 Loss of Profits from Breach, see infra, HI. 
 p, 2. 
 
 For Breach of Contract as to Telegraph, see 
 infra, III. b; III. o, 2, 6. 
 
 Opinion Evidence as to Damages from 
 Breach, see Evidence, 1348. 
 
 Right to Interest in Case of Breach, see In- 
 terest. 29. 32-34. 
 
 See also infra. 244. 
 
 For Editorial Notes, see infra, V. 
 
 5-9. 
 
 87. The measure of damages recoverable 
 on a contract by the promisee is not affected 
 by the fact that it was for the benefit of a 
 corporation of which he is a stockholder. 
 Drummond v. Crane, 159 Mass. 577. 35 N. E. 
 90, 23: 707 
 
 88. The amount of recovery on failure of 
 the consideration for which money is donat- 
 ed to a manufacturing company in order to 
 secure the removal of the business to a cer- 
 tain place is the amount paid, with interest. 
 Fort Wayne Electric Light Co. v. Miller, 131 
 Ind. 499, 30 N. E. 23, 14: 804 
 
 89. The measure of damages in assumpsit 
 by the holder of a warehouse receipt for eggs 
 on which he has made advances, against the 
 warehouseman^ who has delivered the eggs 
 to the depositor, is the amount of the loan, 
 with interest, if this is less than the value 
 of the eggs. Fifth Nat. Bank v. Providence 
 Warehouse Co. 17 R. I. 112, 20 Atl. 203. 
 
 9: 200 
 
 Breach of telephone contract. 
 Punitive Damages for, see supra, 50. 
 
 90. The measure of damages for wrongful- 
 ly disconnecting a telephone because of mis- 
 take as to payment of rent is the amount 
 which will compensate the patron for the 
 injuries caused by the breach of contract. 
 Cumberland Teleph. & Teleg. Co. v. Hendon, 
 114 Ky. 501, 71 S. W. 435, 60: 849 
 
 91. The compensatory damages to be 
 awarded a patron of a telephone company 
 for wrongful discontinuance of the service is 
 the amount paid for the service for the time 
 during which it was refused, in the absence 
 of any proof of specific loss because of the 
 disconnection. Id. 
 Insurance contract. 
 
 Extent of Recovery against Assessment 
 
 Company, see Insurance, HI. h, 2. 
 For Editorial Notes, see infra, V. 5. 
 
 92. The rule that the damages for breacii 
 of a contract insuring a life are the pre- 
 miums paid prior to the breach, with inter- 
 est thereon from the date of each payment, 
 is applicable to contracts in mutual benefit 
 associations. Strauss v. Mutual Reserve 
 Fund L. Asso. 126 N. C. 971, 36 S. E. 352. 
 128 N. C. 465, 39 S. E. 55, 54: 605 
 
 93. No more than nominal damages could 
 be recovered for the depletion of the class 
 in a benefit society to which a person in- 
 sured belonged, even if it constituted a 
 breach of contract, where such depletion was 
 occasioned by the formation of a new <-las>. 
 into which many members of the former en- 
 tered, as the damages are too remote, con- 
 jectural, and speculative to form the basis 
 of a legal recovery. Supreme Lodge K. of I* 
 v. Knight, 117 Ind. 489, 20 N. K. 47. 48:5. 
 
 3: 409 
 
 94. The holder of a fire insurance policy 
 insuring "forever" the insured and his as- 
 signs may, where the insurer wrongfully tor 
 minates the policy, secure a new policy in 
 another company, and recover from the old 
 company the costs thereof. Marshall v. 
 Franklin F. Ins. Co. 176 Pa. 628. 35 Atl. 204. 
 
 34: 159
 
 938 
 
 DAMAGES. III. a, 2. 
 
 Not to engage in business. 
 
 See also supra, 7, 12; infra, 182-184. 
 
 95. Damages for breach of a contract bind- 
 ing a person not to engage in business as a 
 member of a rival firm, where the breach 
 consists only in causing the erroneous belief 
 that he was a member of that firm, can in- 
 clude only the loss to the other party occa- 
 sioned by that belief, and not any loss 
 caused by the competing business independ- 
 ent of the belief. Daniels v. Brodie, 54 
 Ark. 216, 15 S. W. 467, 11: 81 
 To construct railroad or side track. 
 
 96. The measure of damages for breach of 
 contract to build a motor railway to connect 
 with the business portion of a city a tract 
 of land which one of the parties has just 
 purchased with the view of fitting and sell- 
 ing it for residences is the difference between 
 the value of the land on the day the road 
 should have been completed, not less tnan 
 the agreed purchase price, and what its 
 value would have been on that day with the 
 road completed and in operation. Blagen v. 
 Thompson, 23 Or. 239, 31 Pac. 647, 18: 315 
 
 97. The expenditure for rails for a side 
 track to be used in mining may be included 
 in the damages for breach of a mining con- 
 tract. Worthington v. Gwin, 119 Ala. 44, 24 
 So. 739, 43: 382 
 To furnish wedding trousseau; 
 
 98. in computing damages for the breach 
 of the contract of a fashionable milliner to 
 furnish the dresses for the trousseau of a 
 bride of wealth and high social standing, the 
 court will take into consideration, not alone 
 the disappointment of the bride in not hav- 
 ing the dresses in time for the wedding, and 
 her mortification and humiliation in going 
 to her husband unprovided with a suitable 
 trousseau, but also the fact that entertain- 
 ments had been planned in her honor on her 
 wedding tour, and at her arrival at the home 
 of her husband, which entertainments she 
 would have to forego for want of the dress- 
 es. Lewis v. Holmes, 109 La. 1030, 34 So. 66, 
 
 61:274 
 To supply fuel or water. 
 
 99. Injury must be shown, to authorize re- 
 covery of damages for breach of contract to 
 permit the taking from a tank of all water 
 not required for certain purposes, by the ap- 
 plication of the water to purposes not cov- 
 ered by the agreement. Abraham v. Oregon 
 & C. R. Co. 37 Or. 495, 60 Pac. 899, 64: 391 
 
 100. Damages suffered by individuals in 
 their property by reason of failure to fur- 
 nish a stipulated supply af water to a town 
 cannot be taken into account in determining 
 the damages to the town. Wiley v. Athol. 
 150 Mass. 426, 23 X. K 311, 6: 342 
 
 101. The sickness and death of children 
 directly due to the failure of a natural gas 
 company to supply the needed gas for fuel 
 in severe winter weather to a dwelling house 
 which it had assumed to supply, and for 
 which other fuel could not be procured, may 
 constitute an element of the damages to be 
 recovered for such failure. Coy v. Indian- 
 apolis Gas Co. 146 Tnd. 655. 46 N. E. 17, 20, 
 
 36: 535 
 
 102. The full amount of damage to grow- 
 
 ing lettuce in a greenhouse, which is frozen 
 by reason of the failure to supply water 
 necessary for steam heating, is the measure 
 of damages for such failure. Watson v. 
 Needham, 161 Mass. 404, 37 N. E. 204, 
 
 24: 287 
 To keep another's child in own family. 
 
 103. The proper measure of damages for 
 breach of a contract by a person to keep in 
 his own family the daughter of another, 
 where the contract had been fully complied 
 with for nearly two years, and the daughter 
 was then placed in the county asylum and 
 remained there until she died, with no at- 
 tempt by either party to rescind the con- 
 tract, is the difference in value between the 
 care and treatment she actually received 
 and that called for by the contract, and not 
 the whole consideration received for her 
 keeping. Vancleave v. Clark, 118 Ind. 61, 20 
 N. E. 527, 3: 519 
 Not to transfer note. 
 
 104. The insolvency of the plaintiff is a 
 fact to be considered on the question of his 
 damages for breach of contract by transfer- 
 ring to a bona fide purchaser a note made 
 by him, but which he has not paid. Lyle T. 
 McCormick Harvesting Mach. Co. 108 Wis. 
 81, 84 N. W. 18, 51:906 
 Failure to notify of forgery of check. 
 
 105. The amount of damages which a 
 bank is entitled to claim against a depositor 
 because of his failure to promptly notify it 
 of forged checks returned in his vouchers is, 
 in case the forger is arrested and a part of 
 the money recovered, the difference between 
 the amount paid on the checks and the 
 amount so recovered. First Nat. Bank v. 
 Allen, 100 Ala. 476, 14 So. 335. 27: 426 
 By agent. 
 
 106. The measure of damages in an action 
 against an agent for making a contract with 
 plaintiff without authority is the loss sus- 
 tained by the failure of the contract. Far- 
 mers' Co -Op. T. Co. v. Floyd, 47 Ohio St. 525, 
 26 N. E. 110, 12: 346 
 
 107. The measure of damages for breach 
 by an agent who signs a contract to convey 
 his principal's land and so warrants his au- 
 thority to make the contract, is what the 
 other contracting party loses by reason of 
 the false assertion of authority, or the 
 amount of money paid out, or the value of 
 services rendered, or the special damages 
 sustained. Le Roy v. Jacobosky, 136 N. C. 
 443, 48 S. E. 796, * 67: 977 
 
 2. On Bonds. 
 
 Punitive, see supra, 49. 
 
 On Injunction Bond, see infra, 553. 
 
 Right to Damages on Injunction Bond, see 
 
 Injunction, 488, 491. 
 On Replevin Bond, see Replevin, 26. 
 Submission of Question to Jury in Action 
 
 on, see Trial. 72. 
 See also infra, 172, 180, 280. 
 For Editorial Notes, see infra, V. 2, 20. 
 
 108. The measure of damages, in an action 
 to recover from the sureties on the official 
 bond of a bank cashier the amount which he 
 has embezzled from the bank from time to
 
 DAMAGES, III. a, 3 
 
 939 
 
 time, is the sum of such embezzlements and 
 the interest on each sum embezzled from the 
 time it was taken. McShane v. Howard 
 Bank, 73 Md. 135, 20 Atl. 776, 10: 552 
 
 109. The penalty named is not the meas- 
 ure of the surety's liability on the bond of 
 a contractor for government work, under a 
 statute requiring it to be conditioned for 
 the performance of the contract, with the 
 additional obligation that the contractor 
 shall pay for labor and materials; but, al- 
 though the surety has taken charge of and 
 completed the work at a loss exceeding the 
 penalty of the bond, he may still be liable 
 to laborers and materialmen for the amount 
 of their claims. Griffith v. JHundle, 23 Wash. 
 453, 63 Pac. 199, % , 55: 381 
 
 3. As to Real Property. 
 
 For Fraud in Sale of, see infra, 259-264. 
 Recovery for Loss of Profits, see infra, 630. 
 In Case of Deficiency in Quantity, see Ven- 
 dor and Purchaser, 20. 
 See alsoi supra, 96. 
 For Editorial Notes, see infra, V. 22. 
 
 Unlawful sale by mortgagee. 
 
 110. A mortgagor may elect to recover full 
 damages on account of the unlawful sale of 
 the land under a power of sale in the mort- 
 gage when there was no default, and thus 
 ratify the title of a purchaser who has 
 bought the land for value in good faith, al- 
 though he might, instead, repudiate the sale 
 and redeem the premises. Rogers v. Barnes, 
 169 Mass. 179, 47 N. E. 602, 38: 145 
 Breach of contract to convey. 
 
 Recovery for Loss of Profits, see infra, 633. 
 
 See also supra, 8, 107. 
 
 For Editorial Notes, see infra, V. 5, 23. 
 
 111. The measure of damages for breach 
 of a contract to convey real estate is the 
 difference between the contract price and the 
 market value of the property. Le Roy v. 
 Jacobosky, 136 N. C. 443, 48 S. E. 796, 
 
 67: 977 
 
 112. In an action on a contract to convey 
 unimproved land with warranty of title, to 
 recover damages for failure to convey, the 
 vendor's title proving defective, the value 
 of buildings placed on the land by the ven- 
 dee, without the request of the vendor, be- 
 fore the time fixed for conveyance has ar- 
 rived, cannot be recovered by the vendee. 
 Gerbert v. Congregation of the Sons of Abra- 
 ham (N. J. Err. & App.). 59 N. J. L. 160, 35 
 Atl. 1121, 69: 764 
 
 113. Where a vendor, upon nonpayment of 
 notes for the balance of the purchase price, 
 the deed having been left in escrow, repudi- 
 ates the contract and sells the land to a 
 third party without notifying vendee, the 
 latter's measure of damages is the market 
 value of the land at the time the deed should 
 have been delivered, less the unpaid balance 
 of the purchase price, with interest. The 
 prices at which such land or lots are being 
 sold in market at the time is the market 
 value. The fact that, because of a ''boom," 
 the prices are "fictitious," is immaterial. 
 Johnson v. McMullin. 3 Wyo. 237, 21 Pac. 
 701, 4: 670 
 
 Breach of covenants. 
 
 Recovery of Counsel Fees, see infra, 653. 
 Evidence as to, see Evidence, 1836, 2035. 
 Recovery for Improvements on, see Improve 
 
 ments, 9. 
 
 Allowance of Interest, see Interest, 34. 
 See also supra, 8, 9; infra, 124, 125. 
 For Editorial Notes, see infra, V. 6, 22, 
 
 23. 
 
 114. The measure of damages upon the 
 covenant of seisin, if there is a failure of 
 title to the whole of the property conveyed, 
 is the price paid, and a recovery will operate 
 practically as a rescission; for a purchaser 
 cannot be permitted to recover back the con- 
 sideration, and also retain the property con- 
 veyed. Kansas City juand Co. v. Hill, 87 
 Tenn. 589, 11 S. W. 797, 5: 45 
 
 115. The rental value of the premises dur- 
 ing the possession of the vendee must be de- 
 ducted from his recovery for breach of a 
 covenant of seisin, which is made by an out- 
 standing contingent remainder, where his 
 deed gave him at least a life estate, and the 
 life tenancy has continued so as to preclude 
 the remainder-men from demanding rents 
 for any part of the time. Brannon v. Cur- 
 tis, 98 Tenn. 153, 38 S. W. 1075, 69: 760 
 
 116. Rent due from a tenant under a lease 
 which constituted a breach of a covenant 
 against encumbrances cannot be deducted 
 from the damages for breach of covenant, 
 where the purchaser never collected the rent 
 or recognized or acknowledged the tenancy. 
 Edwards v. Clark, 83 Mich. 246, 47 N. W. 112, 
 
 10: 659 
 
 117. The measure of damages in an action 
 by an evicted vendee against a remote ven- 
 dor for breach of a covenant for quiet enjoy- 
 ment of lands is the amount received by 
 such vendor, with interest thereon, and not 
 the consideration paid by the evicted party. 
 To this may be added the costs properly 
 taxed in the action by which he was evicted, 
 but not his attorney's fees in that action. 
 Brooks v. Black, 68 Miss. 161, 8 So. 332, 
 
 11: 178 
 
 118. The grantee of one who has conveyed 
 to a railroad a right of way through a cer- 
 tain tract of land forming a part of his 
 farm, such grantee receiving only a part of 
 the right-of-way land, is not, in seeking a 
 recovery for damages for breach of a cove- 
 nant by the railroad company to keep a 
 stream running on the same side of the 
 track, and not to lee it run through cattle 
 guards, restricted to that part of the right- 
 of-way land which he purchased, but may 
 have recovery for the damage to all of the 
 land purchased, although it exceeds the 
 whole tract of the right-of-way land. Peden 
 v. Chicago, R. I. & P. R. Co. 78 Iowa, 131, 
 42 N. W. 625, 4: 401 
 
 119. The fact that a covenant in a right- 
 of-way deed to a railroad, that it will keep 
 a certain stream on the same side of the 
 track and not allow it to cross through cat- 
 tle guards, does not mention either bridges 
 or culverts, will not confine the landowner to 
 a recovery for the damage caused by trans- 
 mission of the water through cattle guards 
 alone, so as to exclude him from recovery
 
 940 
 
 DAMAGES, 111. a, 4. 
 
 for damages caused by its transmission un- 
 der bridges and through culverts. Id. 
 Breach of lessor's contract. 
 
 120. The damages for failure to give a 
 lessee possession under the lease cannot be 
 increased by showing the sums paid by the 
 plaintiff for releases from contracts with 
 clerks and to induce merchants to take back 
 goods purchased from them, unless it is 
 made to appear that the sums paid were 
 reasonable, and that the obligation to pay 
 was entered into in good faith. Cohn v. 
 Norton, 57 Conn. 480, 18 Atl. 595, 5: 572 
 
 121. The measure of damages for failure 
 to deliver the building to the tenant accord- 
 ing to the terms of a contract to build and 
 lease to him a building of such unprecedent- 
 ed size that no one but the tenant would be 
 likely to make it serviceable in his business 
 is the difference between the rent provided 
 for in the contract and the value or rental 
 value, and not the market value of the prop- 
 erty. Jonas v. Noel, 98 Tenn. 440, 39 S. W. 
 724. 36: 862 
 
 122. The measure of damages recoverable 
 by a lessee to whom the lessor fails to give 
 possession of the premises is the rent paid, 
 and the difference between the rent agreed 
 to be paid and the value of the term, to- 
 gether with such special damages as the cir- 
 cumstances mav show him to be entitled to. 
 Colin v. Norton. 57 Conn. 480, 18 Atl. 595, 
 
 5: 572 
 
 123. The lessee of a store, on failure to 
 obtain possession, cannot recover, as dam- 
 ages, amounts which he has been compelled 
 to pay to clerks or to merchants from whom 
 he has bought goods, for release from con- 
 tracts, or anything for depreciation of goods, 
 where the lessor did not request him to hire 
 clerks and purchase goods, or know that he 
 was about to do so. Id. 
 
 124. The rule allowing the lessee only 
 nominal damages for breach of a covenant, 
 express or implied, in a lease has never 
 been adopted in Connecticut; but all such 
 cases are decided upon the general principles 
 applicable to other contracts. Id. 
 
 125. The breach by a landlord of his cove- 
 nant to repair a leaky roof will not render 
 him liable in damages for injuries caused by 
 the leak to goods voluntarily left by his 
 tenant beneath the roof after his refusal of 
 the latter's request that the repairs be 
 made. Hendry v. Squier, 126 Ind. 19, 25 N. 
 E. 830. 9: 798 
 
 126. The damages for the wrongful, but 
 not malicious, ousting of a tenant from pos- 
 session of a part of a rented farm are the 
 difference in rental value of the farm with 
 and without such part although a portion 
 of it had been planted at the time. Irwin 
 v. Hess, 176 Pa. 594, 35 Atl. 217. 35: 415 
 
 127. An agreement for a pro rata deduc- 
 tion of the agreed rents for water power, in 
 case of a deficiency of water, does not pre- 
 i hide a recovery of damages for breach of 
 contract by the lessor to repair the dams and 
 races, if injured, by which failure the lessee 
 loses the use of his mill, the rental value of 
 which is $20 or $2.~> per day. while the rent 
 of the water power is only .*2.83 per day. 
 
 Pengra v. Wheeler, 24 Or. 532, 34 Pac. 354. 
 
 21:726 
 
 4. Sales of Personalty; Warranty. 
 . a. Seller's Failure to Deliver. 
 
 Recovery for Loss of Profits, see infra, 634- 
 
 637. 
 
 See also supra, 13. 
 For Editorial Notes, see infra, V. 5, 8, 23 
 
 27. 
 
 128. In an action to recover damages for 
 the breach of an executory contract to sell 
 and deliver goods, the general rule is that 
 the difference between the market value 
 thereof at the time and place of delivery, 
 and the contract price, with interest from 
 the time of the breach, is the true measure. 
 Vogt v. Shienebeck, 122 Wis. 491, 100 N. W 
 820, 67:756 
 
 129. The measure of damages for failure 
 to deliver coal, where the purchase price is 
 not paid in advance, is the difference be- 
 tween the contract price and the market 
 price at the time of delivery fixed by the 
 contract. Osgood v. Bauder, 75 Iowa, 550, 
 39 N. W. 887, 1:655 
 
 130. The measure of damages for breach 
 of an agreement to furnish a machine is the 
 difference between the price agreed upon and 
 the greater cost of another machine. A. D. 
 Puffer & Sons Mfg. Co. v. Lucas, 112 N. C. 
 377, 17 S. E. 174, 19: 682 
 
 131. In case one who has sold furniture 
 for a hotel, and contracted with the proprie 
 tor to deliver it by or on a certain date, 
 knowing the purpose for which it is to 'be 
 used and that it is necessary for the opera 
 tion of the hotel, fails to deliver it until long 
 after the appointed time, thereby preventing 
 the renting of the rooms to guests, he is lia- 
 ble for the loss sustained by reason of such 
 failure; and such loss may be determined by 
 finding the difference between the value, for 
 the purpose for which they were intended, of 
 the rooms furnished and unfurnished during 
 the time they could not be used for sucli 
 purpose. Berkey & G. Furniture Co. v. Has- 
 call, 123 Ind. 502, 24 N. E. 336, 8: 65 
 
 132. Damage from diminution of yield be- 
 cause of breach of contract to furnish ferti- 
 lizer to assist in making a crop is not too 
 remote to sustain an action for the breach. 
 Herring v. Armwood, 130 N. C. 177, 41 S. E. 
 96, 57: 958 
 Manufactured article. 
 
 Recovery for Loss of Profits, see infra, 636. 
 For Editorial Notes, see infra, V. 23. 
 
 133. The difference in the value of a manu- 
 factured article after and before the discov- 
 ery of the defects is not the proper measure 
 of damages for breach of contract to manu- 
 facture it. Rollins Engine Co. v. Eastern 
 Forge Co. 73 N. H. 92, 59 Atl. 382, 68; 441 
 Goods not obtainable elsewhere. 
 
 For Editorial Notes, see infra, V. 23. 
 
 134. Damages for breach of contract t<> 
 furnish machinery which cannot be procured 
 in the market, to a projected limited part- 
 nership thereafter organized by the parties
 
 DAMAGES. 111. a, 4. 
 
 941 
 
 purchasing a> general partners, may include 
 loss .suffered from consequent inability suc- 
 cessfully to establish and fit out the pro- 
 posed business. Abbott v. Hapgood. 150 
 Mass. 248, 22 N. E. 907, 5: 586 
 
 135. The general rule that the measure of 
 damages in case of breach of an executory 
 contract to sell and deliver goods is the dif- 
 ference between the market value thereof at 
 the time and place of delivery and the con- 
 tract price, with interest, does not apply 
 where at the time of the breach the buyer 
 <-ould not have obtained like goods at the 
 place of delivery, and in such case the dam- 
 ages recoverable are such as arise naturally 
 from the breach, or such as may reasonably 
 Ixt supposed to have been in contemplation 
 of both parties at the time they made the 
 contract, as the probable result of the breach 
 of it. Vogt v. Shienebeck, 122 Wis. 491, 100 
 N. W. 820, 67: 756 
 
 136. The proper measure of damages for 
 breach of an executory contract of sale and 
 delivery, where at the time of the oreach 
 similar goods could not be obtained by the 
 li'.iyer at the place agreed upon for delivery 
 but there was a market value for such goods 
 ;it tin* point to which they were to be con- 
 Mjined, is the difference between the con- 
 n-act price and such value, less any expense 
 which the buyer, if the contract had been 
 performed, would have been put to in deliv- 
 ering the goods at such place, with interest 
 on the residue at the legal rate, from the 
 date of the breach. Id. 
 Articles purchased with intent to resell. 
 for Editorial Notes, see infra, V. 23. 
 
 137. Where a company manufacturing ag- 
 ricultural steam engines agrees to furnish 
 an agent who sells on commission the en- 
 gines necessary to supply the season's de- 
 mand, and the agent makes large expendi- 
 tures in advertising, canvassing, and other- 
 wise building up the trade, and proves a 
 heavy demand upon him for these particular 
 engines, largely in excess of his order to 
 th< company, the company, refusing with- 
 out sufficient cause to furnish the engines 
 ordered, will be held liable for the sum of 
 fommissions on the engines ordered, and for 
 the reasonable expenditures of the agent in 
 the undertaking. Taylor Mfg. Co. v. Hatch- 
 or. 39 Fed. 440. 3: 587 
 
 138. The difficulty and extra expense of 
 procuring the stock for a monument in win- 
 ter months and the limited time available, 
 where a contractor who had agreed to fur- 
 nish it in the spring repudiated the agree- 
 ment late in December, may constitute ele- 
 ments of damages for bread) of contract, 
 \vhen the other party was also bound to fur- 
 nish it to a third party. Forsyth v. Mann 
 Bros. 68 Vt. 116. 34 Atl. 481, 32: 788 
 
 b. Buyer'< Failure- to Complete Purchase. 
 
 For Editorial Notes, see infra, V. 5. 8, 
 23. 
 
 139. Physical impossibility for the seller 
 to tender goods at the proper time will pre- 
 vent his obtaining more than nominal dam- 
 ages for breach of the contract by prior no- 
 
 tice that the purchaser will not accept the 
 goods. Gerli v. Poidebard Silk Mfg. Co. (N. 
 J. Err. &. App.) r>7 N. J. 1.. 4^2. 31 Atl. 401, 
 
 :!<!: til 
 
 140. An abortive attempt to sell property 
 as prescribed by N. D. Rev. Code, 4833. In 
 order to fix the amount of liability of a ven- 
 dee who has broken his contract, will not 
 preclude the recovery of the damages pre- 
 scribed by 4988, subd. 2, and 5009. 
 Stanford v. Magill, 6 N. D. 536, 72 N. W. 938, 
 
 38: 760 
 
 141. The measure of damages for a ven- 
 dees' breach of an executory contract of 
 purchase, when the property has not been 
 resold as prescribed by N. D. Rev. Code, 
 4833, is, under 4988. subd. 2, the excess, 
 if any, of the amount due from the buyer 
 under the contract over the value to the 
 seller, together with the excess, if any, of 
 the expenses of marketing the property over 
 those which would have been incurred in 
 delivering it to the purchaser; while under 
 5009 the value to the seller is deemed to 
 be the price which he could have obtained 
 in the market nearest the place where it 
 should have been accepted by the buyer, and 
 at such time after the breach as would have 
 siifficed, with reasonable diligence, for the 
 seller to effect a resale. Id. 
 
 142. The purchase by the vendor, at a 
 public auction sale, of a yacht, made after 
 the vendee has refused to comply with his 
 contract to purchase, will not prevent the 
 price at which the property is struck off 
 from being taken as the basis for assessing 
 the damages for the breach, where the sale 
 is duly advertised and made upon notice to 
 the vendee. Ackerman v. Rubens, 167 N. \ . 
 405, 60 N. E. 750, 53: 867 
 Manufactured articles. 
 
 See also infra, 638. 
 
 For Editorial Notes, see infra, V. 23. 
 
 143. The difference between the contract 
 price and the cost of production is the meas- 
 ure of damages for breach of a contract to 
 take a large quantity of an article which 
 was manufactured in" large quantities only 
 to fill orders, and was perishable in its na 
 ture, so that large quantities of it could not 
 be kept in stock, while the demand was lim- 
 ited and it had no market price, although 
 the manufacturer was able to effect some 
 sales at a price less than that fixed by the 
 broken contract. Todd v. Gamble. 148 N. Y. 
 382. 42 N. E. 986.. 52: 225 
 
 c. Breach of Warranty. 
 
 Rocovorv for Loss of Profits, see ini'ra. r,:!7 
 Effect of Prayer for Relief, see Pleading. 88. 
 For Editorial Notes, see infra. V. ?> ">. 1 
 
 144. The fact that a' dealer has been fully 
 paid for an article which he sold will not 
 preclude a recovery by him from the party 
 from whom he bought it, on breach of war 
 ranty, to the full extent of defects existing 
 in it Western Twine Co. v. Wright, 11 S. 
 D. 521, 78 N. W. 942, 44:438 
 
 145. The measure of damages for breach 
 of warranty of the capacity of a kiln for 
 drying lumber is not. when there is no kiln
 
 942 
 
 DAMAGES, III. a, 5. 
 
 of the agreed capacity on the market, the 
 difference between the value of the kiln sold 
 and one of the required capacity, but is the 
 difference between the value of the appara- 
 tus delivered and the contract price. Huy- 
 ett-Smith Mfg. Co. v. Gray, 129 M. C. 438, 
 40 N. E. 178, 57: 193 
 
 Animal with infectious disease. 
 See also infra, 379. 
 
 146. A general warranty that an animal 
 is sound and free from disease is necessarily 
 a warranty against diseases of a-11 kinds, in- 
 cluding those which are infections or conta- 
 gious, so as to render the warrantor liable 
 for damages caused by the communication 
 of such a disease to other stock with which 
 the animals sold are properly placed in the 
 ordinary course of business, and also for such 
 other damages and expenses as are the di- 
 rect and natural result of the breach of war- 
 ranty. Joy v. Bitzer, 77 Iowa. 73, 41 N. W. 
 575, 3:184 
 Failure of seed to grow. 
 
 147. All the losses necessarily sustained 
 by the failure of seed to germinate may be 
 recovered in an action for breach of an im- 
 plied warranty that it was suitable for sow- 
 ing. Shaw v. Smith, 45 Kan. 334, 25 Pac. 
 886, 11: 681 
 
 148. The measure of damages for failure 
 of seed rice to grow when planted by one 
 who purchased under a warranty, and who 
 did not discover its worthlessness until it 
 was too late to plant another crop, is the 
 amount paid for the rice, the expense of 
 preparing the soil for the crop and planting 
 the seed, and a reasonable rent for the land } 
 less such amount as it might have been rent- 
 ed for, to be planted in crops other than rice, 
 after it was too late to plant rice. Keiger 
 v. Worth Co. 127 N. C. 230. 37 S. E. 217, 
 
 52: 362 
 Defects causing loss of use of property. 
 
 149. The measure of damages for furnish- 
 ing an imperfect and unskilfully made cyl- 
 inder for a cotton compress on account of 
 the defects of which an accident occurred 
 which caused the loss of the use of the com- 
 press for the entire season, is its rental 
 value, that is, the value of its use, during 
 that season, where the cylinder was fur- 
 nished under a contract to have the com- 
 press ready for use at a certain date, which 
 the contractor understood was necessary in 
 order to have it ready for compressing that 
 season's crop of cotton. Livermore Foun- 
 dry & M. Co. v. Union Compress & Storage 
 Co. 105 Tenn. 187, 58 S. W. 270, 53: 482 
 Defects causing personal injuries. 
 
 150. Damages for personal injuries caused 
 by the explosion of an acetylene gas machine 
 may be recovered in an action for breach oi 
 warranty of its safety. Tyler v. Moody. Ill 
 Ky. 191, 63 S. W. 433. 54: 417 
 
 151. Damages which an employer is com- 
 pelled to pay for injuries to an employee 
 caused by the explosion of a boiler are not 
 too remote to be included in the recovery 
 of damages against the maker of the boiler 
 for breach of warranty. Boston Woven 
 Hose & Rubber Co. v. Kendall. 178 Mass. 
 232. 50 N. E. 657. 51 : 781 
 
 5. Of Employment. 
 
 Punitive, see supra, 55. 
 
 Burden of Proof as to Opportunity to Re- 
 duce Damages, see Evidence, 228. 
 See also supra, 137; infra, 176. 
 For Editorial Notes, see infra, V. 5, 7. 
 
 152. One who sues for breach, before the 
 time for performance arrived, of a contract 
 to employ him as manager of an opera house 
 for a compensation, to consist in part of a 
 share of the net profits, is not entitled to 
 recover as damages a share of the amount 
 for which his employer disposed of the lease 
 subsequent to the time when such employ- 
 ment should have begun. Greenwall Theat- 
 rical Circuit Co. v. Markowitz, 97 Tex. 479, 
 79 S. W. 1069, 65: 302 
 
 153. A contractor who, in the prosecution 
 of work under his contract for cutting logs 
 and hauling and driving them to a mill by 
 means of a railroad, tramroads, and booms 
 and dams in a river, constructed by him for 
 the purpose, puts in timber to the same mill, 
 by means of the same improvements, for 
 others, not keeping separate accounts of the 
 expenditures, may be allowed, upon an in- 
 quiry as to the amount necessary to compen- 
 sate him for his services and outlay, when 
 he has been prevented from completing his 
 contract, to charge up his entire outlay on 
 all the work done, and credit all sums re- 
 ceived on account thereof, when it is shown 
 that all the work was profitable so far as ex- 
 ecuted, and that the accounts cannot be sep- 
 arated. Griffith v. Blackwater Boom & L. 
 Co. 55 W. Va. 604, 48 S. E. 442, 69:124- 
 
 154. When a contractor, by reason of the 
 termination of a partly executed contract, 
 is entitled to compensation for services and 
 outlay, part of which have been made in 
 effecting permanent improvements, the serv- 
 ice and expenditures relating to such im- 
 provements are not apportioned between the 
 executed and unexecuted parts of the con- 
 tract. Id. 
 
 155. In an action to recover for part per- 
 formance of a contract, from the party who 
 has rightfully terminated the same, prima 
 facie the amount recoverable is the contract 
 rate for services rendered up to the time of 
 the discharge; and that will prevail in the 
 absence of a claim for damages, properly 
 pleaded as a counterclaim and established 
 on the trial. Hildebrand v. American Fine 
 Art. Co. 109 Wis. 171, 85 N. W. 268, 53: 826 
 
 156. Damages for breach of contract by 
 unlawful discharge are limited to such a 
 are actually sustained, measured by the 
 wages and reasonable diligence to obtain 
 other employment. Larkin v. Hecksher (N. 
 J. Sup.) 51 N. J. L. 133, 16 Atl. 703. 
 
 3: 137 
 
 157. The measure of damages for the 
 wrongful discharge of a servant is the de- 
 ficiency, not due to his fault, between the 
 wages earned by him and those which he 
 would have earned under the contract. Mc- 
 Mullan v. Dickinson Co. 60 ivnnn. 156. 62 N. 
 W. 120, 27:409 
 
 158. Tlie amount to be recovered for un- 
 lawful discharge of an employee is the con-
 
 DAMAGES, 111. a, 6, 7 
 
 048 
 
 tract price less what may have been paid 
 him, and also what he has earned or by due 
 diligence might have earned during the time 
 covered by the contract. Baltimore Baseball 
 & E. Co. v. Pickett, 78 Md. 375, 28 Atl. 279, 
 
 22: 690 
 
 159. To entitle an employee to damages 
 against his employer for breach of the con- 
 tract by disposing of all his property so 
 that no more services could be rendered, he 
 must show that he has not been able to earn 
 an equal amount elsewhere. Busell Trimmer 
 Co. v. Coburn. 188 Mass. 254. 74 N. E. 334, 
 
 69: 821 
 
 6. To Advance Money; Nonpayment of 
 Checks. 
 
 * 
 
 To advance money. 
 Punitive, see supra, 54. 
 Presumption of Damage from Nonpayment, 
 see Evidence, 744. 
 
 160. The measure of damages for breach 
 of an agreement, by one who receives a con- 
 veyance of real estate as security, to ad- 
 vance money to pay debts of the grantor 
 and satisfy liens upon his estate, is the 
 same as for breach of a contract to loan 
 money direct. Lowe v.- Turpie, 147 Ind. 652, 
 44 N. E. 25, 47 N. E. 150, 37 : 233 
 
 161. No more than nominal damages can 
 be recovered for breach of a contract to fur- 
 nish money to pay off liens on real estate, 
 by reason of which the real estate is lost to 
 the owner, if it does not appear that the 
 owner did not know of the intended breach 
 until too late to enable him to procure mon- 
 ey elsewhere to satisfy the lien. Id. 
 
 162. That a landowner has placed all his 
 property and means of paying his debts in 
 the hands of one who has contracted to pay 
 such debts and satisfy the liens on the 
 property, and is therefore unable to procure 
 money elsewhere to satisfy such liens, will 
 not entitle him to more than nominal dam- 
 ages for refusal to carry out the contract to 
 advance the money, by reason of which the 
 property is lost. Id. 
 
 163. The measure of damages 'for failure 
 to comply with a contract to pay encum- 
 brances on a lot, by reason of which the 
 lots are lost, is not the value of the lots, 
 but only the amount that was to be paid, 
 although the title was conveyed to the one 
 making the promise under the agreement 
 that he was to satisfy the encumbrances and 
 convey the property to the one bringing the 
 suit. Id. 
 Nonpayment of check. 
 
 Mental Anguish for, see infra, 572. 
 Evidence as to, see Evidence, 1852, 2038. 
 For Editorial Notes, see infra, V. 5. 
 
 164. For refusal of a bank to pay a check 
 for want of funds, especially if returned 
 through the clearing house, although occa- 
 sioned by a mere mistake in bookkeeping, 
 more than nominal damages may be given 
 without any proof of actual loss or damage. 
 Schaffner v. Ehrman, 139 111. 109, 28 N. E. 
 917, 15: 134 
 
 165. General compensatory damages, and 
 not merely nominal damages, may be recov- 
 
 ered by a merchant or trader for the dis- 
 honor of his check when he had funds to 
 meet it. Svendsen v. State Bank, 64 Minn. 
 40, 65 N. W. 1086, 31: 552 
 
 166. Damages for wrongful refusal of a 
 bank to pay a check cannot include an al- 
 lowance for injuries sustained by an arrest 
 and imprisonment for giving an alleged 
 fraudulent check and the publication of the 
 fact, as these are not the natural result of 
 the refusal to pay the check. Bank of Com 
 merce v. Goos, 39 Neb. 437, 58 N. W. 84, 
 
 23: 190 
 
 167. A student in a strange city may re 
 cover, as damages for wrongful refusal to 
 honor a check given in payment for instruc- 
 tion and materials, for any time lost, or any 
 expenses incurred, or any loss of business or 
 instruction sustained because of such dis- 
 honor. American National Bank v. Morey, 
 113 Ky. 857, 69 S. W. 759, 58: 95fi 
 
 7. Liquidated Damages. 
 
 In Liquor Bond, see Bonds, 20. 
 
 See also supra, 109. 
 
 For Editorial Notes, see infra, V. 2, 28. 
 
 168. Damages will be regarded as liquidat- 
 ed when they may be sustained by the 
 breach of a single stipulation, and are un- 
 certain in amount, not readily susceptible of 
 proof, and the parties have agreed upon the 
 sum as compensation for such breach, and 
 this is not disproportionate to the presum- 
 able loss. Wallis Iron Works v. Monmouth 
 Park Asso. (N. J. Err. & App.) 55 N. J. L. 
 132, 26 Atl. 140, 19: 456 
 
 169. Stipulation for the payment of $200 
 as liquidated damages on the breach of any 
 of several promises and agreements which 
 are of varying degrees of importance, and 
 the damages for the breach of some of which 
 would be easily ascertainable, must be con- 
 strued as a penalty. Wilhelm v. Eaves, 21 
 Or. 194, 27 Pac. 1053, 14: 297 
 
 170. The sum of $500 stipulated "as liqui- 
 dated and ascertained damages for the 
 breach" of a contract to build a wall, or, at 
 the contractor's option, to remove a house 
 3 feet and put it in as good condition as be- 
 fore, the cost of which would not exceed 
 $100, must be held to be a penalty, and not 
 liquidated damages. Condon v. Kemper, 47 
 Kan. 126, 27 Pac. 829, 13: 671 
 
 171. Before any liability to pay liquidated 
 damages can attach to the party in default, 
 he must have been guilty of a substantial 
 breach of his agreement, resulting in some 
 thing more than mere nominal damages o> 
 the other party. Hathaway v. Lynn, 75 
 Wis. 186, 43 N. W. 956, 6: 551 
 
 172. Where one binds himself under seal 
 to the well and true payment of a certain 
 sum of money monthly during the good be- 
 havior of another, under a penalty of $5,000. 
 the instrument constitutes a good penal 
 bond, and the $5,000 is a penalty, and not 
 liquidated damages. Carey v. Mackey, 82 
 Me. 516, 20 Atl. 84. 9: 113 
 
 173. A contract to pay a stipulated sum 
 as damages will be given effect only where 
 the damages provided against are uncertain
 
 944 
 
 DAMAGES, III b. 
 
 and not ascertainable by any satisfactory 
 and certain rule of law. Krutz v. Robbing, 
 12 Wash. 7. 40 Pac. 415, 28: 676 
 
 174. The larger sum will be held a penal- 
 ty, and not liquidated damages, where the 
 payment of a smaller sum is secured by an 
 agreement to pay the larger. Id. 
 
 175. A contract that in case of the wrong- 
 ful use of electrotype plates the purchaser 
 shall be responsible for the damages caused 
 the seller, and shall pay a fine to him "equal 
 to the tenfold price of the wrongly used 
 electrotypes," provides for a penalty, and 
 not liquidated damages, which cannot be en- 
 forced under the Massachusetts law beyond 
 the actual damages caused by the breach. 
 Meyer v. Estes. 164 Mass. 457, 41 N. E. 683, 
 
 32: 283 
 For quitting service. 
 
 176. A stipulation that the damages for 
 breach of contract in quitting the service of 
 a contractor for loading and unloading ves- 
 sels and cars upon docks shall be the loss of 
 fifteen days' wages is justified by the uncer- 
 tainty as to the injury that may be caused 
 thereby to the employer's business. 'Fisher 
 v. Walsh, 102 Wis. 172, 78 N. W. 437, 
 
 43: 810 
 
 177. A stipulation for $10 liquidated dam- 
 ages in case an employee earning from 50 
 cents to $1 per day in a cotton mill divided 
 into many departments and employing hun- 
 dreds of hands should fail to give two weeks' 
 notice before quitting will not be regarded 
 as a penalty, where each department of the 
 mill is dependent on the one immediately 
 below it, so that there would be a certainty 
 of some damage, the amount of which could 
 not be exactly ascertained. Tennessee Mfg. 
 Co. v. James.' 91 Tenn. 154. 18 S. W. 262, 
 
 15:211 
 For delay in completing contract. 
 
 178. The sum of $100 a day for default in 
 completion of a grand stand for a race 
 course, which is expressly fixed by the con- 
 tract as the measure of 'damages which the 
 parties would suffer, and not by way of pen- 
 alty, will be regarded as liquidated damages. 
 Wallis Iron Works v. Monmouth Park Asso. 
 (N. J. Err. & App.) 55 N. ,T. L. 132. 26 Atl. 
 140, 19:456 
 
 179. A stipulation for a certain sum as 
 damages for failure to comply with a con- 
 tract to remove a building by n certain time 
 will be construed as a penalty and the re- 
 covery limited to the damages actually suf- 
 fered, although the bond expressly provides 
 that the sum named shall be liquidated dam- 
 ages, and not a penalty, where it would not 
 be difficult or impossible to assess the actual 
 damages from the testimony given.- espe- 
 cially under a statute providing that, in 
 suits to recover a forfeiture which appears 
 by default or confession or upon demurrer, 
 the court shall render judgment for so much 
 A* is due according to equity. Chicago 
 House-Wrecking Co. v. United States. 45 
 T. C. A. 343.. 100 Fed. 385. 53: 122 
 
 ISO. The stipulated amount to be paid by 
 .1 n olcct ric company to the city under a 
 IKUKI requiring it (o complete the installa- 
 tion of its plant, for which the city has 
 
 granted the use of its streets, within a. speci- 
 fied time, will be regarded as liquidated dam- 
 ages, so that the whole amount must oe 
 paid in case of failure to meet the require- 
 ment, although the city proves no actual 
 damage. Salem v. Anson, 40 Or. 339, 67 
 Pac. 190, 56: 169 
 
 181. A provision for the retention of 15 
 cents per 100 feet from the contract price 
 of logs to be cut and delivered, upon all logs 
 not delivered by a specified date, will be re- 
 garded as one for liquidated damages, and 
 not as a penalty, since the actual damage 
 sustained by depreciation in the value of 
 the logs on account of delayed delivery can- 
 not be determined by any known rule. Kil- 
 bourne v. Burt & B. Lumber Co. Ill Ky. 693, 
 64 S. W. 631, 55: 275 
 Breach of covenant against engaging in 
 
 business. 
 
 182. "The penalty of $5,000 which is here- 
 by named as stipulated damages" for viola- 
 tion of a covenant, made on the sale of a 
 business, not to reveal a secret process or 
 use trademarks belonging to the business, 
 is to be regarded as stipulated damages, 
 notwithstanding the use of the word "pen- 
 alty." Tode v. Gross, 127 N. Y. 480, 2s \. 
 E. 469, . 13: 652 
 
 183. A covenant to pay $2,000 if one re- 
 turns to practise his profession in a certain 
 place while another is practising there is 
 imported by an express covenant never to 
 practise there so long as the other does, but 
 providing that the covenantor shall have the 
 right to do so after five years by paying 
 such sum, "but not otherwise." The sum 
 named is not liquidated damages or a pen- 
 alty, but a price fixed for what the contract 
 permits if the money is paid. Smith v. Ber- 
 gengren, 153 Mass. 236. 26 N. E. 690. 
 
 10: 768 
 
 184. A clause binding one "in the penal 
 sum of $400" for the true performance f an 
 agreement not to practise medicine within 
 a certain place for ten years will be regarded 
 as a penalty, and not as liquidated damages, 
 where there is nothing in the nature of the 
 contract or the circumstances to show the 
 contrary intent. Wilkinson v. Colley, 164 
 Pa. 35, 30 Atl. 286, 26:114 
 
 b. For Telegrams. 
 
 Punitive Damages for, see supra, 86. 
 For Libelous Telegram, see infra, 292, 293. 
 Mental Anguish for, see infra, III. o, 2. 6. 
 Recovery of Counsel Fees, see infra, 654. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 100, 101. 
 
 Presumption as to, see Evidence, 251. 
 Burden of Proving Damages, see Evidence, 
 
 208. 
 As to Telegrams Generally, see Telegrams, 
 
 II. 
 
 See also infra, 293. 
 For Editorial Notes, see infra, V. 9. 22. 
 
 185. The sendee's damages for failure to 
 promptly deliver a telegram are limited to 
 what might reasonably have been in contem- 
 plation of the parties, but will include com- 
 pensation for all injurious results which flow
 
 DAMAGES, III. b. 
 
 945 
 
 therefrom by ordinary natural sequence 
 without the interposition of any other negli- 
 gent act or overpowering force, McPeek v. 
 Western U. Teleg. Co. 107 Iowa, 356, 78 N. 
 W. 63, 43: 214 
 
 Summoning physician. 
 Recovery for Mental Anguish, see infra, 595- 
 
 597. 
 Evidence as to, see Evidence, 1856. 
 
 186. Even though there was negligence 
 on the part of the servants of a telegraph 
 company in delivering a message calling a 
 physician to attend a patient, yet, if it could 
 not have been delivered in time for him to 
 have rendered any assistance, no damages 
 can be recovered. Western U. Teleg. Co. v. 
 Cooper. 71 Tex. 507, 9 S. W. 598, 1: 728 
 
 187. Substantial damages may e given 
 for breach of a contract to transmit prompt- 
 ly a telegram which the company knew to 
 be addressed to a physician and to .direct 
 him to come to the sender's house at once. 
 Western U. Teleg. Co. v. Church, 3 Neb. 
 (Unof.) 22, 90 N. W. 878, 57: 905 
 
 188. Damages for breach of a contract 
 promptly to transmit and deliver a telegram 
 from a sick person summoning his physician 
 "at once" may include an allowance for the 
 pain and suffering endured during the phy- 
 sician's absence because of such breach. Id. 
 
 189. An award of $950 damages is not ex- 
 cessive where, on account of the failure of a 
 telegraph company to transmit and deliver 
 a telegram summoning a physician, a wom- 
 an was left in labor for thirty minutes, with 
 the child partly born, which resulted in the 
 death of the child and great pain of body 
 and mind to the woman. Id. 
 Announcing illness. 
 
 Recovery for Mental Anguish, see infra, 600- 
 605. 
 
 Evidence as to, see Evidence, 2114. 
 
 Sufficiency of Notice of Contents, see Tele- 
 graphs, 62-64. 
 
 190. A verdict for the sum of $4,500.25 for 
 failure to deliver a telegram telling a person 
 to come home because his child is worse is 
 excessive. Western U. Teleg. Co. v. Hough- 
 ton, 82 Tex. 561, 17 S. W. 846, 15: 129 
 Business telegrams generally. 
 Sufficiency of Notice of Contents, see Tele- 
 graphs, 67-70. 
 
 See also supra, 14. 
 
 191. The loss by reason of not shipping 
 property which would have been shipped if 
 a telegram had been delivered within a rea- 
 sonable time may be recovered as damages 
 for the delay in its delivery. Western U. 
 Teleg. Co. v. Eubank, 100 Ky. 591, 38 S. W. 
 1068. 36: 711 
 
 192. The difference between the price at 
 which property was offered and its actual 
 market value at the time when a telegram 
 accepting the offer should have been deliv- 
 ered may be recovered against a telegraph 
 company for failure to deliver the message 
 within a reasonable time, although notified 
 of its importance, in consequence of which 
 the sender of the message lost the purchase. 
 Alexander v. Western U. Teleg. Co. 66 MISS. 
 161, 5 So. 397, 3: 71 
 
 193. Change of the stated price in a tele- 
 L.R.A. Dig. 60. 
 
 gram intended to notify a purchaser of the 
 market price of mules, so as apparently to 
 quote them at $10 a head less than their 
 market price, which results in the sendee's 
 directing the purchase of a certain number 
 on his account, will render the telegraph 
 company liable for the difference in the price 
 paid and that stated in the telegram as de- 
 livered. Hays v. Western U. Teleg. Co. YO 
 S. C. 16, 48 S. E. 608, 67: 481 
 
 194. The measure of damages against a 
 telegraph company for failure to deliver a 
 message regarding the state of the market 
 at a certain point, whereby a live stock ship- 
 per is induced to send his stock to a market 
 point more distant than that first intended, 
 and sells at a lower price than would have 
 been obtainable in the nearer market, is the 
 difference in prices at the two market points, 
 with the difference in freight added. West- 
 ern U. Teleg. Co. v. Collins, 45 Kan. 88, 25 
 Pac. 187, 10: 515 
 
 195. The measure of damages, where the 
 negligent delay of a telegraph company in 
 the delivery of a message results in the loss 
 to the sender of a sale of a quantity of corn 
 at a price above the market value of the 
 corn at the time and place it would have 
 been delivered had such a sale been made, 
 is the difference in value between the price 
 the corn would have brought had the sale 
 been made, and the market value of the corn 
 at such time and place of delivery, although 
 it was finally disposed of at a higher price 
 owing to an advance in the market price. 
 Western U. Teleg. Co. v. Nye & Schneider 
 Grain Co. 70 Neb. 251, 97 N. W. 305, 
 
 63: 80:! 
 
 196. Where, owing to a mistake in the 
 transmission, the price of a commodity was 
 quoted as less than the true price, whereup- 
 on it was ordered by and shipped to the 
 party inquiring, and thereafter the seller, 
 upon discovering the mistake, accepted the 
 price quoted in the telegram and sued the 
 company for the difference between that 
 and the true price, the seller is, in the ab- 
 sence of evidence of the market price at 
 either the place of sending or receiving the 
 goods, or of the freight rates between these 
 points, entitled to recover such difference 
 from the company. Pepper v. Western U. 
 Teleg. Co. 87 Tenn. 554, 11 S. W. 783. 
 
 4: 660 
 
 197. The damages recoverable by one who 
 gets a telegram for a mistake in understat- 
 ing the price in an offer to sell goods are 
 limited to such difference in price, excluding 
 any loss of profits on a contract of resale 
 which he made on the faith of the telegram 
 but failed to carry out because he had him- 
 self refused to receive the goods without any 
 excuse except his disappointment by the 
 mistake in the price. Fererro v. Western 
 U. Teleg. Co. 9 App. D. C. 455, 35: 548 
 
 198. The difference between the actual 
 market value of a lot and the price received 
 is the measure of damages for a mistake in 
 the transmission of a telegram which is not 
 in cipher, to an agent by which a lower price 
 is named to him than that stated by the 
 principal, and in reliance upon which he ex-
 
 946 
 
 DAMAGES, IIL c, 1. 
 
 ecutes the contract. Reed v. Western U. 
 Teleg. Co. 135 Mo. 661, 37 S. W. 904, 
 
 34: 492 
 
 199. Loss of business and customers by a 
 produce dealer as an indirect result of his 
 failure to perform a contract is too remote 
 and speculative for consideration as an ele- 
 ment of damages recoverable from a tele- 
 graph company for its negligent alteration 
 of a telegram in the course of transmission, 
 which was the cause of his inability to 
 carry out his contract. Fererro v. Western 
 U. Teleg. Co. 9 App. D. C. 455, 35: 548 
 
 200. The measure of damages for failure 
 to notify one who delivers a message to a 
 telegraph company for transmission, advis- 
 ing the sendee to purchase certain stock, 01 
 ihe fact that it cannot be transmitted be- 
 cause of obstruction of the line, is the differ- 
 ence between what the stock comd have 
 been purchased for had the message been 
 promptly sent and what was paid for the 
 stock under the belief that the advice related 
 to conditions at the time the message 
 reached the sendee. Swan v. Western U. 
 
 . Teleg. Co. 63 C. C. A. 550, 129 Fed. 318, 
 
 67: 153 
 Announcing time of trial. 
 
 201. 'ihe measure of -damages for failure 
 to deliver as written a telegraph message 
 notifying a witness of the day the case is set 
 for trial, and delivering one in place thereof, 
 naming a day so much earlier that, upon ar- 
 riving at the place of trial, he returns home 
 to await the arrival of the true date, is 
 'tis expenses in going to and returning from 
 be place of trial and the value of the time 
 lost. Losses resulting from the stoppage 
 of his business, such as salaries of men, cost 
 of keeping teams and the value of their 
 services, and anticipated profits, cannot be 
 recovered unless the company was notified 
 1hat such losses would follow a failure cor- 
 rectly to deliver the message. Western U. 
 Teleg. Co. v. Short, 53 Ark. 434, 14 S. W. 
 649, 9: 744 
 Causjng loss of reward. 
 
 See also infra, 248. 
 
 202. Damages for failure to promptly de- 
 liver a telegram advising the sendee of the 
 whereabouts of a fugitive from justice may 
 include loss of a reward offered for the cap- 
 ture, although the message did not contain 
 such information on its face, if the company 
 knew that it was important and that the 
 sendee was expecting a message relating to 
 such capture, and although neither the com- 
 pany nor the sendee knew at the time of the 
 offer of reward, since the company was 
 charged with knowledge that the reward 
 might be made and that negligence might 
 result in its loss. McPeek v. Western U. 
 Teleg. Co. 107 Iowa, 356, 78 N. W. 63, 
 
 43: 214 
 
 Telegram asking for money. 
 Mental Anguish for Delay in Transmitting 
 Money by Telegraph, see infra, 606. 
 
 203. A telegraph company which negli- 
 gently fails to deliver a telegram from one 
 in a strange city a long distance from home, 
 asking for money, by reason of wnich fail- 
 ure he is compelled to attempt to make the 
 
 journey on foot, is liable for the price of the 
 telegram, compensation for time lost, price 
 of meals, and lodging during the time he 
 is en route, and damages for the mental 
 worry and distress accompanying the phys- 
 ical fatigue and exertion caused by the 
 journey. Barnes v. Western U. Teleg. Co. 
 27 Nev. 438, 76 Pac. 931, 65:666 
 
 204. The rule that, for breach of contract, 
 damages may be recovered, which may be 
 supposed to have been contemplated by the 
 parties thereto, renders a telegraph company 
 liable for the hardship and suffering endured 
 by a minor who is compelled to attempt to 
 walk home in the winter time by the failure 
 of the company to deliver a telegram asking 
 for aid, where the company is informed that 
 he is without money in a strange city, 400 
 miles from home. Id. 
 
 205. Four hundred dollars is not excessive 
 as damages to be awarded to a minor who 
 is compelled to find his way home on foot 
 during the winter, after being left without 
 means in a strange city, 400 uiiles from 
 home, by the negligent failure of a telegraph 
 company to deliver a telegram. Id. 
 Cipher telegrams. 
 
 What is a Cipher Telegram, see Telegraphs, 
 
 65. 
 For Editorial Notes, see infra, V. 22. 
 
 206. The measure of damages for delay in 
 delivering a cipher telegram is limited to the 
 amount paid for its transmission. Fergu- 
 son v. American Teleg. Co. 178 Pa. 377, 
 35 Atl. 979, 35:554 
 
 207. For breach of a contract to transmit 
 or deliver an unexplained cipher, or other- 
 wise unintelligible message, a telegraph com- 
 pany is liable only for nominal damages, or, 
 at most, for the sum paid it for transmis- 
 sion and delivery. Western U. Teleg. Co. v. 
 
 .Wilson, 32 Fla. 527, 14 So. 1, 22: 434 
 
 208. A telegram reading: "Fifty-five 
 cents, usual terms, quick acceptance," is 
 not within the rule restricting the damages 
 for negligent alteration of a telegram in the 
 course of transmission to the sum paid for 
 the message, and excluding consequential 
 damages, where the telegram is in cipher 
 or in language unintelligible to the company 
 and its operators. Fererro v. Western U. 
 Teleg. Co. 9 App. D. C. 455, 35:548 
 
 209. The rule restricting damages for a 
 negligent alteration of a telegram in the 
 course of transmission, to the sum paid for 
 the message, and excluding consequential 
 damages if the message was in cipher or in 
 language unintelligible to the company and 
 its operators, does not apply where the face 
 of the message clearly shows that a busi- 
 ness transaction is contemplated, and that 
 negligence in its transmission may reason- 
 ably be attended with pecuniary loss, al- 
 though it does not disclose the full mean- 
 ing of the sender. Id. 
 
 c. Expulsion of, or Failure in Duty to, Pas- 
 senger. 
 
 1. In General. 
 
 Punitive Damages for, see supra, 61-71, 82- 
 84.
 
 DAMAGES, III. c, 2. 
 
 Recovery for Mental Anguish, see infra, III. 
 o, 2, c. 
 
 Extraterritorial Effect of Law Fixing Maxi- 
 mum and Minimum Fine for Causing 
 Death of Passenger, see Conflict of 
 Laws, 228. 
 
 See also infra, 311, 330, 345, 366. 
 
 For Editorial Notes, see infra, V. 5, 10. 
 
 210. Damages for the refusal to permit a 
 passenger to take a train which his ticket 
 entitled him to take include the amount paid 
 by him for another ticket, compensation for 
 loss of time, necessary hotel expenses, anu 
 also compensation for any inconvenience 
 suffered. Northern C. R. Co. v. O'Conner, 76 
 Md. 207, 24 Atl. 449, 16: 449 
 
 211. The measure of damages for physical 
 and mental injuries received by being 
 wrongfully compelled to ride in a second- 
 class car must largely depend on the discre- 
 tion of the court or jury trying the cause. 
 St. Louis, A. & T. R. Co. v. Mackie, 71 Tex. 
 491, 9 S. W. 451, 1: 667 
 Assault. 
 
 Punitive Damages for, see supra, 64, 72-75. 
 See also infra, 270. 
 
 212. Twenty-five hundred dollars is not 
 an excessive award against a street car com- 
 pany for the act of its conductor in striking 
 a passenger several times in the face merely 
 because, in order to stop the car, -he pulled 
 the bell rope so hard as to break it. Birm- 
 ingham R. & E. Co. v. Baird, 130 Ala. 334, 
 30 So. 456, 54: 752 
 
 213. Where a conductor of a train refuses 
 to recognize an excursion ticket in the hands 
 of the holder, who is thereby entitled to ride 
 thereon, and demands of him the regular 
 fare, and attempts to eject him by force 
 for nonpayment thereof, the railway com- 
 pany is liable in damages for the assault, 
 and the jury in assessing the damages may 
 consider in connection therewith the annoy- 
 ance, vexation, and indignity suffered by 
 him. Carsten v. Northern P. R. Co. 44 Minn. 
 454. 47 N. W. 49, 9: 688 
 Arrest. 
 
 214. Ten dollars is a sufficient compensa- 
 tion for a passenger's injured pride, wounded 
 sensibility, and mortification caused by pub- 
 lic arrest, where it was procured by a con- 
 ductor in the belief that the passenger was 
 fraudulently evading payment of fare, when 
 he in fact tendered a valid mileage ticket, 
 but unreasonably refused to state whether 
 the name on the ticket was his own. Palmer 
 v. Maine C. R. Co. 92 Me. 399, 42 Atl. 800, 
 
 44: 673 
 Abuse by fellow passengers. 
 
 215. A verdict for $1.000 is not excessive 
 in favor of a colored man against a railroad 
 company, where drunken passengers made 
 him dance and sing and subjected him to 
 many indignities, while the conductor re- 
 fused to interfere. Richmond & D. R. Co. 
 v. Jefferson, 89 Ga. 554. 16 S. E. 69, 17: 571 
 Carrying beyond station. 
 
 216. A verdict for $2.000 is excessive 
 where the only injury was carrying a young 
 lady passenger l l / 2 miles beyond her station, 
 and telling her in a loud tone that she must 
 get off. which made it necessary for her to 
 
 947 
 
 walk back along the track and part of the 
 way through the woods, where it was on a 
 pleasant day and she was in the habit of 
 walking a great deal. Chattanooga. R. c\; 
 C. R. Co. v. Lyon, 89 Ga. 16, 15 S. E. 24, 
 
 15: 857 
 
 217. A judgment for $3,005 damages in 
 favor of a woman who was carried past her 
 station on a railroad train, in consequence 
 of which she was obliged to walk between 
 1 and 2 miles, carrying a large bundle and 
 valise, and, by the exertion and excitement 
 thereby caused, was made sick for several 
 days, and who was treated in an insulting 
 manner by the railroad employees, will not 
 be set aside as excessive where substantially 
 the same amount has been given on a former 
 trial. Louisville & N. R. Co. v. Ballard, 88 
 Ky. 159, 10 S. W. 429, 2: 694 
 Requiring change of sleepers without dress- 
 ing. 
 
 Instruction as to, see Trial, 766. 
 
 218. A verdict of $2,500 for injury to a 
 woman passenger forced to make a change 
 of sleepers without being allowed time to 
 dress, in consequences of which ghe suffered 
 a miscarriage, is not so excessive as to cre- 
 ate belief that the jury were misled by pas- 
 sion, prejudice, or ignorance, and to require 
 a new trial. MeKeon v. Chicago, M. & St. 
 P. R. Co. 94 Wis. 477, 69 N. W. 175, 35: 252 
 
 2. Ejection. 
 
 Punitive Damages for, see supra, 76-81. 
 Recovery for Mental Anguish, see infra, 609, 
 
 610. 
 
 See also supra, 18; Carriers, 377. 
 For Editorial Notes, see infra, V. 10, 26. 
 
 219. The measure of damages for wrong- 
 ful ejection from a street car is not limited 
 to the price of a ticket for another fare 
 which plaintiff had in his possession and 
 might have used, where the conductor, in- 
 stead of ascertaining definitely whether or 
 not plaintiff had paid his fare, which might 
 have been done by a few moments' investi- 
 gation, charged him with attempting to beat 
 the company, and thus placed him in a posi- 
 tion where the use of another ticket would 
 be an apparent admission of the charge. 
 Sprenger v. Tacoma Traction Co. 15 Wash. 
 660, 47 Pac. 17, 43: 706 
 
 220. Damages for unnecessary violence in 
 ejecting a passenger from a train for non- 
 payment of fare cannot include compensa- 
 tion for his inconvenience in having to make 
 his way back to a station in the nighttime, 
 or for his suffering or sickness from expos- 
 ure. Texas & P. R. Co. v. James, 82 Tex. 
 306, 18 S. W. 589, 15: 347 
 
 221. A passenger wrongfully expelled from 
 a train is entitled to recover not only the 
 money he has paid out necessarily in ex- 
 penses thereby caused, but the value of the 
 time lost, and compensation for the pain 
 and suffering consequent upon his removal, 
 and any pernmnent or continued injury oc- 
 casioned thereby. Paddook v. Atchison. T. 
 
 S. F. R. Co. 37 Fed. 841, 4: 231 
 
 222. In an action for ejection of a passen- 
 ger, damages resulting from the loss of a
 
 948 
 
 DAMAGES, III. d. 
 
 job of work, occasioned by his delay at the 
 station at which he was obliged to leave the 
 train, are too remote to be considered. 
 Carsten v. Northern P. R. Co. 44 Minn. 454, 
 47 N. W. 49, 9: 688 
 
 223. Paroxysms of the nervous system, 
 caused by the indignity and humiliation suf- 
 fered by a passenger on being wrongfully 
 ejected from a train, constitute a bodily in- 
 jury for which damages are recoverable. 
 Sloane v. Southern Cal. R. Co. Ill Cal. 668, 
 44 Pac. 320, 32:193 
 Instances of amounts. 
 
 224. Twenty-five dollars is not excessive 
 damages for ejecting a passenger a mile or 
 two from a station in the night, when a 
 slight rain is falling and he is suffering 
 some from fever. St. Louis S. W. R. Co. 
 v. Harper, 69 Ark. 186, 61 S. W. 911, 53: 220 
 
 225. A verdict assessing damages at $300 
 for the wrongful expulsion of a passenger 
 from a train from % to % of a mile from a 
 station will not be disturbed on appeal as 
 excessive. Phettiplace v. Northern P. R. Co. 
 84 Wis. 412, 54 N.' W. 1092, 20: 483 
 
 226. A verdict of $450 for wrongful ejec- 
 tion of a passenger from a train is not so 
 excessive as to warrant a reversal of the 
 judgment, where he explained to the con- 
 ductor that the failure to have his ticket 
 signed and stamped as required by a condi- 
 tion thereon, because of which he was ex- 
 pelled, was due to the fault of the company 
 in not having present at the station an 
 agent authorized to so validate the ticket, 
 and he was ejected from the train in the 
 early hours of a dark, rainy morning, at a 
 place with which he was unfamiliar, 4 miles 
 from the station where he boarded the train, 
 and after having offered to secure with a 
 diamond ring the payment of his fare. 
 Southern R. Co. v. Wood. 114 Ga. 140, 39 
 S. E. 894.. 55: 536 
 
 227. A verdict for $2,500 for ejectment 
 from a train wrongfully but without malice, 
 where the passenger boarded a construction 
 train and returned a distance of 2 miles to 
 the depot, is excessive. Louisville & N. R. 
 Co. v. Wilsey, 11 Ky. L. Rep. 419 (Not to be 
 Rep.) 12 S. W. 275. 5: 855 
 
 228. Three hundred dollars damages is ex- 
 cessive for putting a passenger off a train 
 for attempting to ride after the time limited 
 on the ticket has expired, although the limi- 
 tation was unlawful, if no force was used, 
 or purpose to humiliate was shown, and the 
 passenger was within a few miles of his des- 
 tination, which he reached without further 
 outlay only five hours later than he would 
 had the train carried him. Louisville & N. 
 R. Co. v. Turner. 100 Tenn. 213, 47 S. W. 
 223, 43: 140 
 
 229. A verdict for $1.400 for the ejection 
 of a woman from a train, which obliged her 
 to walk about a mile and caused a recur- 
 rence of insomnia and nervous paroxysms to 
 which she had been subject, is excessive. 
 Sloane v. Southern Cal. R'. Co. Ill Cal. 608. 
 44 Pac. 320, 32: 193 
 
 d. In Respect to Freight. 
 
 Punitive Damages, see supra, 85. 
 Limitation of Amount of Carrier's Liability, 
 
 see Carriers, II. b, 1, c. 
 For Editorial Notes, see infra, V. 5, 22. 
 
 230. Damages resulting to the owner of 
 imported goods from the unauthorized pay- 
 ment of duties thereon at the port of entry, 
 by a carrier which had agreed to transport 
 them in bond, are such as might have been 
 foreseen by the carrier, within the meaning 
 of La. Civ. Code, arts. 1934-1943. Smith 
 Bros. & Co. v. New Orleans & N. E. R. Co. 
 106 La. 11, 30 So. 265, 54: 923 
 Failure to furnish cars. 
 
 231. The damages for failure to furnish 
 cars to ship property in fulfilment of a con- 
 tract are the profits which the shipper would 
 have made on the contract if the cars had 
 been furnished. Houston, E. & W. T. R. Co. 
 v. Campbell, 91 Tex. 551, 45 S. W. 2, 43: 225 
 Refusal to receive. 
 
 232. A railroad company is liable for all 
 damages which are the direct and proximate 
 result of its refusing to receive fruit for 
 transportation, and cannot limit its liability 
 to such, only, as result from unreasonable 
 delay in the transportation. Mathis v. 
 Southern R. Co. 65 S. C. 271, 43 S. E. 684, 
 
 61: 824 
 Delay. 
 
 Allowance of Interest, see Interest, 31. 
 See also infra, 239. 
 
 233. The measure of a carrier's liability 
 for failure to deliver promptly goods which 
 it had received with knowledge that the 
 shipper had contracted to deliver them on 
 a specified date or forfeit a certain sum for 
 each day's delay is the loss sustained by the 
 shipper under the penalty clause of its con- 
 tract. Illinois C. R. Co. v. Southern Seat- 
 ing & C. Co. 104 Tenn. 568, 58 S. W. 303, 
 
 50: 729 
 Loss or conversion. 
 
 234. The measure of damages for loss, 
 through the negligence of a sleeping car 
 company, of personal effects of a passenger, 
 which have no market value, is their value 
 to him; that is, the actual loss in money 
 which he would sustain by being deprived of 
 them. Cooney v. Pullman Palace-Car Co. 
 121 Ala. 368, 25 So. 712, 53: 690 
 
 235. The measure of damages for property 
 lost by negligence of a common carrier is 
 not limited to the valuation in the bill of 
 lading. Lang v. Pennsylvania R. Co. 154 Pa. 
 342. 26 Atl. 370, 20: 360 
 
 236. The measure of damages for a con- 
 version by a carrier of goods which the con- 
 signee has not thereafter accepted is their 
 value at the time when they should have 
 been delivered, and not, as in the case of 
 mere delay, the difference between their 
 value at that time and at the time of actual 
 delivery. Baltimore & O. R. Co. v. O'Don- 
 nell. 49 Ohio St. 489. 32 N. E. 476. 21:117 
 Discrimination in rates. 
 
 237. The amount of injury suffered by a 
 shipnor on account of lower rates given to 
 another shipper, for which he may recover 
 from the carrier, under Pa. act 1883. cannot
 
 DAMAGES, III. e. 
 
 949 
 
 be taken, without proof, to be the difference 
 in the rates charged. Hoover v. Pennsylva- 
 nia R. Co. 156 Pa. 220, 27 Atl. 282, 22: 263 
 Live stock. 
 
 Limitation of Amount of Carrier's Liability, 
 see Carriers, 910, 917, 918, 922, 925. 
 
 238. Damages for breach by the carrier of 
 a written contract under which cattle were 
 shipped cannot be recovered in an action for 
 breach of a prior oral contract to transport 
 them at a certain time. Waters v. Rich- 
 mond & D. R. Co. 110 N. C. 338, 14 S. E. 
 802, 16: 834 
 
 239. Where mares being with foal are 
 shipped they constitute freight having what 
 is called an inherent defect ; and if they lose 
 their foal on the way, the measure of dam- 
 ages is not the difference in their market 
 value as they are and what it would have 
 been had they arrived in good condition; 
 but if the loss is total, it is the price, less 
 freight charges, they would have brought 
 if delivered in reasonable time, having had 
 due and necessary care while in the carrier's 
 possession; and. if the loss is partial, it is 
 the difference between such price, less 
 freight, and the actual value of the animals 
 as delivered. Missouri P. R. Co. v. Fagan, 
 72 Tex. 127, 9 S. W. 749, 2: 75 
 Failure to forward corpse. 
 
 Mental Anguish for, see infra, 576, 577. 
 
 240. The sum of $1,640 is excessive dam- 
 ages for failure to forward a corpse by a 
 certain train, whereby its interment was de- 
 layed from afternoon until the next morn- 
 ing, where its condition did not render 
 speedy interment necessary, and the person 
 complaining was treated with proper courte- 
 sy. Louisville & N. R. Co. v. Hull, 113 Ky. 
 561, 68 S. W. 433, 57: 771 
 
 e. Torts Generally; Breach of Promise. 
 
 Punitive Damages, see supra, 22-30, 42, 50. 
 
 Mitigation of, see infra, 660, 664. 
 
 Recovery for Mental Anguish, see infra, III. 
 o, 2. a. 
 
 Loss of Profits from Illegal Combination, see 
 infra, 611. 
 
 Excessiveness Requiring Remission on Ap- 
 peal, see Appeal and Error, 1204. 
 
 For Duress Compelling Execution of Deed 
 Absolute in Form, see Duress, 7. 
 
 Alienation of Husband's Affection, Evidence 
 as to, see Evidence, 2123. 
 
 Instruction as to, see Trial, 768. 
 
 See also supra. 5, 6; infra, 403, 416. 
 
 For Editorial Notes, see infra, V. 10, 24. 
 
 241. The general rule is that damages fpr 
 which a party is liable in tort are such, and 
 onlv such, as are the reasonable and prob- 
 able consequence of his acts. Peters v. Jack- 
 son. 50 W. Va. 644, 41 S. E. 190, 57: 428 
 
 242. Damages resulting directly from a 
 wrongful act are recoverable, as a general 
 rule, whether they could or could not have 
 been foreseen or contemplated as a orobf We 
 result. Schumaker v. St. Paul & D. R. Co. 
 46 Minn. 39, 48 N. W. 559, 12: 257 
 
 243. In an action of tort, if it be impossi- 
 ble, in the nature of the case, to distinguish 
 between the damage arising from the action- 
 
 able injury and damage which has another 
 origin, the jury should be left to make from 
 the evidence the best estimate in their pow- 
 er as reasonable men, and award *o the 
 plaintiff compensatory damages for the ac- 
 tionable injury. Jennins v. Pennsylvania 
 R. Co. 67 N. J. L. 331, 51 Atl. 704, 57: 309 
 
 244. The measure of damages in an ac- 
 tion sounding in tort for negligence in the 
 performance of a duty based on contract, un- 
 attended by circumstances showing evil in- 
 tent, oppression, or wanton disregard of 
 another's rights, is practically the same as 
 if the action were for breach of the contract 
 under the same circumstances. Fererro v. 
 Western U. Teleg. Co. 9 App. D. C. 455, 
 
 35: 548 
 
 245. One who violates a duty owed to oth- 
 ers, or commits a tortious or wrongfully 
 negligent act, is liable, not only for those 
 injuries which are the direct and immediate 
 consequences of his act, but for such con- 
 sequential injuries as, according to common 
 experience, are likely to and in fact do re- 
 sult from his act. Smethurst v. Independ- 
 ent Cong. Church, 148 Mass. 261, 19 N. E. 
 387, 2: 695 
 
 246. The measure of damages in actions 
 for tort is not the amount which might, rea- 
 sonably be supposed to have been contem- 
 plated by the parties as the reasonable re- 
 sult of the wrongful act, but such amount as 
 represents the direct injury resulting from 
 the act, although it could not have been con- 
 templated as the probable result of the act 
 done. Cowan v. Western U. Teleg. Co. 122 
 Iowa, 379, 98 N. W. 281, 64: 545 
 
 247. Expenses of travel to another place 
 to purchase lumber are too remote to be in- 
 cluded in damages for unlawfully preventing 
 a person from procuring lumber from ac- 
 customed sources. Jackson v. Stanfield, 137 
 Ind. 592, 36 N. E. 345, 37 N. E. 14, 23: 588 
 
 248. Damages cannot be recovered for loss 
 of a reward for the arrest of a fugitive, by 
 one who made arrangements with the owner 
 of a house where a suspected person was 
 staying to telephone him at a given place if 
 such person proved to be the fugitive, 
 against the owner of a private telephone at 
 such place, to whom the message from such 
 owner identifying the suspected person as a 
 fugitive was communicated on his represen- 
 tation that he was the constable, by means 
 of which he caused the arrest of the fugi- 
 tive and obtained the reward, as such dam- 
 ages are too remote and contingent. Smitha 
 v. Gentry, 20 Ky. L. Rep. 171, 45 S. W. 515. 
 
 42: 302 
 
 249. The owner of a coal mine is not en- 
 titled to any damages in a suit for an in- 
 junction, from the fact that one of the de- 
 fendants had driven away from the mine a 
 person who had a contract with the plaintiff, 
 without any limit as to time, to take coal 
 at a certain price per bushel, and who had 
 cleaned out the entry to the mine, for which 
 plaintiff had paid nothing, where it does not 
 appear that plaintiff may not stilfmine and 
 s^ll the coal and get a higher price for it. 
 Rankin's Appeal, 1 Monaghan (Pa.) 308 
 16 Atl. 82, 2: 429
 
 950 
 
 DAMAGES, III. f. 
 
 Wrongful expulsion from association. 
 
 250. .The damages to be recovered by a 
 member wrongfully expelled from an unin- 
 corporated benefit society may include the 
 loss sustained by being deprived of the use 
 and enjoyment of the property of the socie- 
 ty and of the privileges of membership, and 
 also the mental suffering caused by the 
 wrongful expulsion and the manner in which 
 it was effected. Lahiff v. St. Joseph Total 
 Abstinence & Benev. Soc. 76 Conn. 648, 57 
 Atl. 692, 65: 92 
 
 Ordering from public resort. 
 Mental Anguish for, see infra, 578. 
 
 251 Seven hundred and fifty dollars is ex- 
 cessive to award a woman as damages for 
 being ordered from a place of public resort, 
 where little injury is shown beyond the vio- 
 lation of the right to be there, and the in- 
 sult involved in the order to leave. Davis 
 v. Tacoma R. & P. Co. 35 Wash. 203, 77 Pac. 
 209, 66: 802 
 
 Wrongful sale of liquor. 
 Evidence as to, see Evidence, 1937. 
 
 252. There can be only one allowance of 
 damages for one wrongful sale of liquor, 
 and only one sale allowed for under any 
 count ; and damages can only be allowed for 
 permitting loitering about the premises 
 where liquors are sold, for the particular oc- 
 casions proved other than those when sales 
 are alleged to have been made. Sackett v. 
 Ruder, 152 Mass. 397, 25 N. E. 736, 9: 391 
 Communication of smallpox. 
 
 253. A verdict for $2,775 damages on ac- 
 count of the communication of smallpox to 
 the plaintiff and her family is not so large 
 as to justify the court in setting it aside on 
 appeal, considering the loathsomeness of the 
 disease and the anxiety and suffering it 
 must have entailed. Henderson v. Clayton, 
 22 Ky. L. Rep. 283, 57 S. W. 1, 53: 145 
 Physician's abandonment during confine- 
 ment. 
 
 See also supra, 189. 
 
 254. Damages for the death of the child 
 cannot be allowed in an action by husband 
 and wife for a physician's abandonment of 
 the wife during her confinement. Lathrope 
 v. Flood, 135 Cal. 458, 63 Pac. 1007, 67 Pac. 
 683, 57:215 
 Breach of promise. 
 
 Punitive Damages, see supra, 40, 41. 
 Aggravation of Damages, see infra, 668. 
 Prejudial Instruction as to, see Appeal and 
 
 Error, 1041. 
 Evidence as to, see Evidence, 2040, 2107, 
 
 2118. 
 For Editorial Notes, see infra, 5, 27. 
 
 255. A woman wlio breaks a contract of 
 marriage in order to marry another man is 
 not entitled to recover from the latter for 
 his breach of promise any damages growing 
 out of her wrongful act in breaking her 
 promise to marry the former. Trammell v. 
 Vaughan, 158 Mo. 214, 59 S. W. 79, 51 : 854 
 
 256. Damages in an action for breach of 
 promise of marriage cannot be enhanced by 
 the loss of the plaintiff's opportunity to 
 marry another man to whom she was pre- 
 viously engaged, merely because she broke 
 her engagement with him at the solicitation 
 
 of the defendant, since she cannot take ad- 
 vantage of her own perfidy. Hahn v. Bet- 
 tingen, 81 Minn. 91, 83 N. W. 467, 50: 669 
 
 257. A verdict for $2,800 in a suit for 
 breach of promise of marriage, when both 
 parties were and still are of excellent char- 
 acter and standing, and the defendant repre- 
 sented his estate to be worth $10,000 though 
 he now contends that it is worth much less, 
 while the plaintiff has no estate of her own 
 and her father is in humble circumstances, 
 will not be set aside on the ground that it 
 is so excessive as to indicate prejudice, pas- 
 sion, caprice, or corruption on the part of 
 the jury. Brown v. Odill, 104 Tenn. 250, 56 
 S. W. 840, 52: 660 
 
 f. Fraud. 
 
 Punitive, see supra, 43. 
 
 For Editorial Notes, see infra, V. 24. 
 
 258. The liability of a bank president who 
 induces the cashier to loan money to a 
 minor, whereby it is lost, will extend to the 
 balance due on actual advances, with law- 
 ful interest, but not to conventional interest 
 or attornev's fees. Brown v. Farmers' & M. 
 Nat. Bank^ 88 Tex. 265, 31 S. W. 285, 
 
 33: 359 
 
 On sale of real property. 
 Mitigation of Damages, see infra, 659. 
 
 259. The true measure of damages in an 
 action to set aside a conveyance for fraud is 
 the profit derived from the property while 
 in the purchaser's possession. Gruber v. 
 Baker, 20 Nev. 453, 23 Pac. 858, 9: 302 
 
 260. The measure of damages for deceit 
 in the sale of property is the difference be- 
 tween what it would have been worth if as 
 represented and what it actually was worth 
 at the time of the sale. Fargo Gaslight & 
 C. Co. v. Fargo Gas & E. Co. 4 N. D. 219, 
 59 N T . W. 10G6, 37 : 593 
 
 261. In an action to recover damages for 
 fraudulent representations by which the 
 plaintiff was induced to exchange real prop- 
 erty for stock in a corporation, the measure 
 of recovery, in the absence of a claim for 
 special or exemplary damages, is the differ- 
 ence in value between what was received or 
 parted with, as the case may be, and what 
 would have been received or parted with, 
 had the representations been true, where he 
 affirmed the contract after discovering the 
 deceit. Beare v. Wright (N. D.) 103 N. W. 
 632, 69: 409 
 
 262. Rescission or attempted rescission of 
 a contract of purchase made on the faith of 
 false statements by a third person as to 
 the title will not make him liable in an ac- 
 tion for fraud beyond the difference between 
 the actual vale of the property and its value 
 as it would have been if the representation 
 had been true. Nash v. Minnesota Title Ins. 
 & T. Co. 163 Mass. 574, 40 N. E. 1039, 
 
 28: 753 
 
 263. Damages for false representation as 
 to the title of property of another person, 
 on the faith of which it was purchased, in- 
 clude only the difference between the value 
 of the property as it was and the value as 
 it would have been if the representation hnd 
 been true. Id.
 
 DAMAGES, III. g. 
 
 951 
 
 264. The measure of damages for the 
 fraudulent misrepresentation of a vendor of 
 real property inducing the purchaser to en- 
 ter into the contract is the difference be- 
 tween the value of the property as it would 
 have been if as represented and its real 
 value, and not necessarily the difference be- 
 tween the purchase price and its real value. 
 Gustafson v. Rustemeyer, 70 Conn. 125, 39 
 Atl. 104, 39: 644 
 On sale of goods. 
 
 265. The value of the goods at the place 
 and the time when they were obtained, and 
 not the contract price, is the measure of 
 damages for fraud in obtaining them. ,John 
 V. Farwell Co. v. Josephson, 96 Wis. 10, 70 
 N. W. 289, 71 N. W. 109, 37: 138 
 On sale of corporate stock. , 
 
 See also supra, 261. 
 
 266. Damages to a holder of shares of 
 stock fraudulently issued by corporate offi- 
 cers should be measured by the market val- 
 ue of valid stock at the time when the cor- 
 poration refused to recognize the corporate 
 shares as valid. Allen v. South Boston R. 
 Co. 150 Mass. 200, 22 N. E. 917, 5: 716 
 
 267. The true measure of damages suf- 
 fered by one who is fraudulently induced to 
 make a contract of sale, purchase, or ex- 
 change of property is the difference between 
 the actual value of that which he parts with 
 and the actual value of that which he re- 
 ceives under the contract. Rockefeller v. 
 Merritt, 40 U. S. App. 666, 22 C. 0. A. 608, 
 76 Fed. 909, 35: 633 
 
 .268. The measure of damages for false 
 representations by stockholders as to the 
 amount of corporate property, made for the 
 purpose of effecting a sale of the stock, and 
 which are relied upon by the purchaser, is 
 the difference between the actual value of 
 the stock and what it would have been worth 
 had the representations been true. Boddy v. 
 Henry, 113 Iowa, 462, 85 N. W. 771, 53: 769 
 
 269. The damages for fraudulent repre- 
 sentations inducing the purchase of corpo- 
 rate stock cannot be limited to the difference 
 in the value of the stock on the day the 
 representations were made and on the day 
 of purchase, if at both dates it was of much 
 less intrinsic value than the price paid for 
 it, but should represent the difference be- 
 tween the price paid and the intrinsic value 
 of the stock as ascertained by events in the 
 subsequent history of the corporation, and 
 not by the market price. Hindman v. Firtt 
 Nat. Bank, 50 C. C. A. 623, 112 Fed. 931, 
 
 57: 108 
 
 g. Assault; False Imprisonment; Malicious 
 Prosecution; Abuse of Process. 
 
 Assault. 
 
 On Passenger, see supra, 64, 72-75, 212, 213. 
 Punitive Damages for, see supra, 212, 213. 
 Time for Which Recoverable, see infra, 647. 
 Mental Anguish for, see infra, 579. 
 Mitigation of, see infra. 663; Pleading, 602. 
 Evidence as to, see Evidence, 2048. 
 See also supra, 44-46. 
 
 270. A great disparity between the 
 amount awarded by a jury in a civil action 
 as damages for intentionally kicking a boy 
 
 from a street car and the fine which could 
 have been imposed in case of a criminal 
 prosecution for the offense does not of it- 
 self show that the verdict is exfc-~i\ <. 
 .vlcNamara v. St. Louis Transit Co. 82 Mo. 
 676, 81 S. W. 880, 66: 486 
 
 271. The measure of damages for injuries 
 caused by a kick is not what defendant 
 might reasonably be supposed to have con- 
 templated as likely to result, but what ac- 
 tually did result. Vosburg v. Putney, 80 
 Wis. 523, 50 N. W. 403, 14* : 226 
 
 272. A verdict of $4,000 in favor of one 
 who at midnight was taken from his home 
 to a distant field, stripped naked, tied to a 
 tree, and severely beaten, and then ordered 
 to leave the county, or he would be killed, 
 rendered against the persons who committed 
 the assault, will not be set aside as exces- 
 sive. Morgan v. Kendall, 124 Ind. 454, 24 
 N. E. 143, 9: 445 
 
 273. Where a number of citizens without 
 warrant of law take into the woods a young 
 man whom they suspect of having commit- 
 ted the crime of arson, and who is, at the 
 time, in attendance upon the grand jury, 
 and there abuse and ill treat him for a .num- 
 ber of hours, and place a rope around hia 
 neck, and threaten to hang, and make a 
 demonstration of hanging, him, all with a 
 view of extorting from him a confession of 
 the crime or an accusation against some oth- 
 er person, a verdict of $500 as damages 
 for mental anguish, terror, and distress is 
 insufficient, even though nothing be claimed 
 on account of damage to reputation, and 
 nothing be proved in the way of pecuniary 
 loss; and the amount allowed will be in- 
 creased. Warner v. Talbot, 112 La. 817, 36 
 So. 743, 66:336 
 False imprisonment; malicious prosecution. 
 Evidence as to, see Evidence, 1853-1855. 
 For Editorial Notes, see infra, V. 10. 
 
 274. Damages for wrongful confinement in 
 an insane asylum are not confined to iae 
 expense of procuring a release and the time 
 lost, but extend to the mental suffering, 
 humiliation, shame, disgrace, and injury to 
 reputation suffered thereby. Hewlett v. 
 George, 68 Miss. 703, 9 So. 885, 13: 682 
 
 275. Loss of employment because of false 
 imprisonment is an element of damages, 
 where, because of the imprisonment, an offer 
 of employment was withdrawn, although 
 no contract had actually been executed. 
 Stoecker v. Nathanson, 5 Neb. (Unof.) 435, 
 98 N. W. 1061. 70: 667 
 
 276. Damages can be recovered only to 
 the time of the lawful arrest, where a per- 
 son within the jurisdiction of the court, for 
 whom a warrant has been issued, is taken 
 into custody and detained until the officer 
 arrives with the warrant, when a legal ar- 
 rest is made. McCullough v. Greenfield, 133 
 Midi. 463, 95 N. W. 532.. 62: 908 
 
 277. An officer is not liable in damages 
 for using handcuffs on a prisoner who is 
 unknown to him, where he has a consider- 
 able distance to go aftor dark, and has 
 another person under his charge, there be- 
 ing nothing to show wantonness or malice 
 in his conduct. 
 
 Id.
 
 952 
 
 DAMAGES, III. h. 
 
 278. Where false imprisonment consisted 
 in being constantly guarded by and under 
 the control of detectives for about two 
 weeks, a verdict of $20.000 damages is ex- 
 cessive, but was allowed to stand if plain- 
 tiff would remit 40 per cent of it. Fother- 
 ingham v. Adams Express Co. 36 Fed. 252, 
 
 1:474 
 
 Abuse of process. 
 Punitive, see supra, 47-49. 
 Arrest of Passenger, see supra, 214. 
 Allowing Interest, see Interest, 35. 
 See also infra, 399. 
 
 279. Damages cannot be disallowed for 
 stoppage of gangs of saws by the wrongful 
 removal of a belt from a mill under a writ 
 of attachment, because they themselves 
 might have been rightfully attached, and 
 the same injury thereby wrought. Giddings 
 v. Freedley, 128 Fed. 355, 65: 327 
 
 280. Double the value of the property 
 sold may be recovered as damages against 
 a justice and the sureties on his official 
 bond, under W. Va. Code, chap. 41, 25, 
 where a specially deputed constable levies 
 upon and sells exempt property under an 
 attachment issued by the justice. State 
 use of Burt v. Allen, 48 W. Va. 154, 35 S. 
 E. 990, 50: 284 
 
 h. Libel or Slander. 
 
 Punitive, see supra, 3140, 86. 
 Mental Anguish for, see infra, 580. 
 Aggravation of Damages, see infra, 606, 667. 
 Reduction of Damages, see infra, 657, 658. 
 Power of Legislature to Limit Amount of, 
 
 see Constitutional Law, 833-838. 
 Evidence as to, see Evidence, 1864-1869, 
 
 2039, 2109. 
 Allegation as to Damages, see Pleading, 
 
 258-262. 
 
 Question for Jury as to, see Trial, 265. 
 Instruction as to, see Trial, 659. 
 See also Libel and Slander, 35. 
 For Editorial Notes, see infra, V. 10. 
 
 281. The amount of damages for libel is 
 referred to the sound discretion of the jury, 
 but must be purely compensatory. Fenster- 
 maker v. Tribune Pub. Co. 12 Utah, 439, 
 13 Utah, 532, 43 Pac. 112, 45 Pac. 1097, 
 
 35: 611 
 
 282. The plaintiff in a suit for libel based 
 theroon is entitled, in the absence of alle- 
 gation and proof of special damage, to such 
 general damages as the law will presume to 
 be the natural or probable consequences of 
 the defamatory words. Id. 
 
 283. The elements to be taken into con- 
 sideration in assessing damages for libel 
 are, (1) the plaintiff's injured feelings and 
 tarnished reputation; (2) the nature of the 
 imputation; (3) the character, condition, 
 and influence of the parties; and (4) all 
 mitigating circumstances shown by the evi- 
 dence. Id. 
 
 284. In an action for slander, the charac- 
 ter and social standing of the defendant, as 
 well as of the plaintiff, may be considered 
 in estimating the amount of damages. 
 Broughton v. McGrew, 39 Fed. 672, 5: 406 
 
 285. The law presumes injury to the feel- 
 
 ings, mental anguish, and injury to the rep- 
 utation in case of a publication of an arti- 
 cle which is libelous per se. Osborn v. 
 Leach, 135 N. C. 628, 47 S. E. 811, 66: 648 
 
 286. Compensation for mental and physic- 
 al pain and injury to reputation may be 
 recovered as actual damages for the publica- 
 tion of a libel. Id. 
 
 287. Protest fees voluntarily paid on the 
 premature protest of a note cannot be re- 
 covered as part of the damages in an ac- 
 tion for libel in protesting the note. Hirsh 
 field v. Ft. Worth Nat. Bank, 83 Tex. 452, 
 18 S. W. 743, 15:639 
 
 283, Damages from publication of a libel 
 cannot be enhanced by the republication 
 thereof by other persons, even if there was 
 a general probability of its republication. 
 Burt v. Advertiser Newspaper Co. 154 Mass. 
 238, 28 N. E. 1, 13: 97 
 
 Of physician. 
 Sufficiency of Verdict as to, see Trial, 897. 
 
 289. In an action for libel against a board 
 of health in stating in the preamble to an 
 order regulating the conduct of physicians 
 in the treatment of obstetrical cases, that 
 the reason for making the order was that 
 a number of deaths had recently resulted 
 from the negligence of the physician at- 
 tending the patients in childbirth, plain- 
 tiff, upon showing, by a preponderance of 
 the evidence, that the preamble was pub- 
 lished as charged, and that he was the 
 physician referred to by the defendants, 
 and understood by the community to be 
 such, is entitled to recover at least such 
 compensatory damages as were attributable 
 to the publication. Mauk v. Brundage, 68 
 Ohio St. 89, 67 N. E. 152, 62: 477 
 By mercantile agency. 
 
 290. Instances of loss of particular cus- 
 tomers need not be alleged or proved to 
 warrant an assessment of damages for dim- 
 inution of business and loss of credit by 
 reason of a fal*e publication by a mercan- 
 tile agency. Douglass v. Daisley, 52 C. C. 
 A. 324, 114 Fed. 628, 57: 475 
 By collection agency. 
 
 291. A verdict for $571 in an action for 
 libel in publishing plaintiff on a list of de- 
 linquent debtors by an agency to collect 
 bad debts is not excessive, where he proves 
 that credit was refused him by one person 
 on account of the publication. Muetze v. 
 Tuteur, 77 Wis. 236, 46 N. W. 123, 9: 86 
 Libelous telegram. 
 
 292. A verdict for $5,200 is plainly the re- 
 sult of passion and prejudice in an action 
 for libel against a telegraph company which 
 published it only to its own agent to whom 
 it was sent for delivery to the person li- 
 beled. Peterson v. Western U. Teleg. Co. 
 65 Minn. 18, 67 N. W. 646, 33: 302 
 
 293. A verdict of $2,000 for the libelous 
 transmission of a telegram by one agent or 
 employee of the telegraph company to 
 another is excessive, where the plaintiff him- 
 self was the only person to whom the con- 
 tents of the message* were divulged by the 
 agent who received it. Peterson v. Western 
 U. Teleg. Co. 75 Minn. 368, 77 N. W. 985, 
 
 43: 581
 
 DAMAGES, III. i, 1 
 
 953 
 
 Slander of title. 
 
 294. Only damage which is the natural 
 and direct result of slander of title is re- 
 coverable therefor. Burkett v. Griffith, 90 
 Cal. 532, 27 Pac. 527, 13: 707 
 
 i. Personal Injuries; Death. 
 
 1. In General. 
 
 
 Duty to Prevent Unnecessary Amount, see 
 supra, 15-17. 
 
 To Passenger, see supra, 61-67, 81, 211. 
 
 Punitive Damages for, see supra, 22-27, 51, 
 52. 61-67, 81. 
 
 Prospective Damages, see infra, 641-646. 
 
 Reduction of Damages, see also infra, 655, 
 656, 661. 
 
 Apportionment of Damages, see infra, 669. 
 
 Recovery for Mental Anguish, see infra, III. 
 o, 1. 
 
 Recovery for Loss of Profits, see infra, 612. 
 
 Review of Finding as to, see Appeal and Er- 
 ror, 745. 
 
 Statutory Limitation of Amount as Con- 
 tract, see Constitutional Law, 1138. 
 
 Evidence as to. see Evidence, 1723, 1820, 
 1858-1861, 2041-2047, 2100, 2101, 2104, 
 2106, 2112, 2113, 2278. 
 
 Allowance of Interest, see Interest, 38, 39. 
 
 Amount Allowable under Pleading, see 
 Judgment, 57. 
 
 Instructions as to, see Trial, 769-776, 782, 
 784. 
 
 See also supra, 10, 150, 151. 
 
 For Editorial Notes, see* infra, V. 11, 
 15, 24, 26-28. 
 
 295. The price to be paid .to a volunteer 
 for enduring suffering caused by a personal 
 injury cannot be regarded as the standard 
 in determining the amount of damages in 
 an action for such injury; and an instruc- 
 tion which suggests such an idea of a price 
 in connection with the difficulty fixing the 
 amount is misleading. Spaulding v. Penn- 
 sylvania. Co. 142 Pa. 503, 21 Atl. 979, 12: 698 
 
 296. Diminished capacity to perform man- 
 ual labor, as distinguished from loss of 
 earning power by any labor, manual or 
 otherwise, may properly be considered by 
 the jury in determining the damages to be 
 awarded for a personal injury to a boy who 
 has adopted no particular calling or trade 
 for his life work. Fort Worth & D. C. R. 
 Co. v. Robertson (Tex.) 16 S. W. 1093, 
 
 14: 781 
 
 297. No fixed rule exists for estimating 
 the damages to be recovered by one' who is 
 permanently disabled from laboring, through 
 the negligence of another. The most that 
 can be done is to instruct the jury in gen- 
 eral terms to award a fair and reasonable 
 compensation, taking into consideration 
 what the plaintiff's income would probably 
 have been, how long it would have lasted, 
 and all the contingencies to which it was 
 liable. Richmond & D. R. Co. v. Allison, 86 
 Ga. 145, 12 S. E. 352, 11: 43 
 
 298. A person guilty of negligence should 
 be held responsible for all the consequences 
 which a prudent and experienced person 
 
 fully acquainted with all the circumstances 
 which in fact existed, whether they could 
 have been ascertained by reasonable dili- 
 gence or not, would at the time of the neg- 
 ligent act have thought reasonably possi- 
 ble to follow if they had occurred to his 
 mind. Wallin v. Eastern R. Co. 83 Minn. 
 149, 86 N. W. 76, 54: 481 
 
 299. Only actual damages are recoverable 
 for injuries unnecessarily committed in the 
 ejection of a tenant after his term has ex- 
 pired, unless it is done under circumstances 
 of aggravation. Vinson v. Flynn, 64 Ark. 
 453, 43 S. W. 146, 39: 415 
 
 300. Physical and mental suffering aris- 
 ing out of a personal injury may be taken 
 into consideration in establishing damages. 
 Pittsburgh, C. C. & St. L. R. Co. v. Mont- 
 gomery, 152 Ind. 1, 49 N. E. 582, 69: 875 
 Loss of business. 
 
 301. Recovery for permanent impairment 
 of earning power by a negligent injury to 
 a boarding-house keeper cannot be had on 
 evidence merely that when she was able to 
 resume business after the injury her house 
 was not as well filled as before, without 
 showing the cause or its effect on the prof- 
 its. Wallace v. Pennsylvania R. Co. 195 
 Pa. 127, 45 Atl. 685, 52: 33 
 Medical services; expenses of cure. 
 
 302. iJamages for a negligent injury can- 
 not include expenses for medical attendance, 
 in the absence of anv evidence of the value 
 of it. Brown v. White, 202 Pa. 297, 51 Atl. 
 962, 58: 321 
 
 303. Expenses incurred in seeking a cure 
 from personal injuries received through an- 
 other's negligence are recoverable as dam- 
 ages for such injuries if they were neces- 
 sary, reasonable, and judicious expenditures. 
 Hart v. Charlotte, C. & A. R. Co. 33 S. C. 
 427, 12 S. E. 9, 10: 794 
 Insanity resulting from shock. 
 
 304. Insanity resulting from the shock 
 and excitement caused by a railroad acci- 
 dent to a passenger who sustained no bodily 
 injury will not make the railroad company 
 liable*. Haile v. Texas & P. R. Co. 23 U. S. 
 App. 80, 9 C. C. A. 134, 60 Fed. 557, 23: 774 
 Recovery by parent. 
 
 305. Loss of the child's society is not an 
 element of the damage to be awarded a 
 parent for negligent injuries to it. McCarr 
 v. National & P. Worsted Mills, 24 R. I. 
 447, 53 Atl. 320, 60: 122 
 
 300. In an action by a father to recover 
 for the loss of services of his minor child 
 by renson of injuries inflicted upon him by 
 a third person, which result in his death, the 
 recovery must be limited to the damages 
 which accrued during the period between 
 the injury and the death, and cannot em- 
 brace those accruing after the death oc- 
 curred. Davis v. St. Louis, I. M. & S. R. 
 Co. 53 Ark. 117; 13 S. W. 801, 7: 283 
 
 Recovery by infant. 
 See also infra, 562. 
 
 307. In an action by an infant in the 
 care and custody of its father, for personal 
 injuries, his lessened earning capacity can- 
 not be considered as an element of damages, 
 unless after the period from which he would
 
 954 
 
 DAMAGES, III i, 2. 
 
 be entitled to his earnings. Chicago, B. & 
 
 Q. R. Co. v. Krayenbuhl, 65 Neb. 889, 91 N. 
 
 W. 880. 59: 920 
 
 Wrong medical treatment. 
 
 Burden of Proof as to, see Evidence, 429. 
 
 Evidence as to, see Evidence, 1904. 
 
 See also infra, 317. 
 
 308-309. Mistakes or errors of a physician 
 or surgeon who was employed in the exer- 
 cise of ordinary care will not preclude the 
 recovery of all the damages sustained from 
 personal injuries. Selleck v. Janesville, 100 
 Wis. 157, 75 N. W. 975, 41 : 563 
 
 Selleck v. Janesville, 104 Wis. 570, 80 N. 
 W. 944, 47: 691 
 
 310. A person injured through another's 
 negligence, who exercises reasonable care 
 in selecting a proper physician, and in em- 
 ploying other means for recovery, is not pre- 
 cluded from holding the negligent person 
 liable for the whole injury by the fact that 
 the physician makes a mistake in the treat- 
 ment, or that the means employed fail to 
 effect a cure. Chicago City R. Co. v. Saxby, 
 213 111. 274, 72 N. E. 755, 68: 164 
 Effect of prior disease or infirmity. 
 
 Effect on Right of Action for Causing Death, 
 
 see Death, 49. 
 For Editorial Notes, see infra, V. 11, 12. 
 
 311. A passenger injured by negligence 
 of the carrier is entitled to recover to the 
 full extent of the injury so caused, without 
 regard to whether, owing to his previous 
 condition of health, he is more or less lia- 
 ble to injury. Purcell v. St. Paul City R. 
 Co. 48 Minn. 134, 50 N. W. 1034, 16: 203 
 
 312. A person is not deprived of his right 
 to recover full compensation for personal 
 injuries because he was at the time suffer- 
 ing from a disease which was aggravated 
 thereby. Louisville, N. A. & C. R. Co. v. 
 Snider* 117 Ind. 435, 20 N. E. 284, 3: 434 
 
 313. The measure of damages for personal 
 injuries caused by negligence is the injury 
 done, even though it might not have re- 
 sulted but for a peculiar physical condition 
 of the person injured, or may have been 
 aggravated thereby. Lapleine v. Morgan's 
 L. & T. R. & S. S. Co. 40 La. Ann. 661. 4 
 So. 875. 1 : 378 
 
 314. Where the damages done to a child 
 by an injury appear to be aggravated by a 
 latent hereditary hysterical diathesis, which 
 had never exhibited itself before the acci- 
 dent, and might never have developed but 
 for it, defendant will be held for the entire 
 damages as the direct result of the acci- 
 dent. Id. 
 
 315. Under a complaint seeking damages 
 for injuries caused by a railroad accident, 
 damages cannot be recovered for a mere ag- 
 gravation of injuries previously received, 
 but a recovery may be had for injuries 
 which are a direct result of the accident, 
 notwithstanding they have aggravated some 
 former infirmitv. Maynard v. Oregon R. & 
 Nav. Co. (Or.)' 78 Pa'c. 983. 68:477 
 
 316. One cannot escape liability for any 
 part of the loss caused by injuries negli- 
 gently inflicted by him on another, for the 
 reason that, because of the condition of the 
 injured person, produced by his voluntary 
 
 use of alcohol, the shock of the injury 
 brought on delirium tremens, which retarded 
 his recovery. Maguire v. Sheehan (C. C. 
 App. 1st C.) 54 C. C. A. 642, 117 Fed. 819, 
 
 59: 496 
 
 317. Although a tuberculous condition of 
 the knee of a person whose leg was injured 
 by another's negligence develops be- 
 cause tuberculosis was organic in the in- 
 jured person, or because of mistakes in 
 treatment, it cannot be said that it was 
 not the consequence which might naturally 
 or ordinarily follow as a result of the in- 
 jury; and therefore the negligent person 
 mav be held liable therefor. Chicago City 
 R. Co. v. Saxby, 213 111. 274, 72 N. E. 755, 
 
 68: 164 
 
 2. Injuries to Married Women. 
 
 For Death of Married Woman, see infra, 341. 
 
 Damages for Delay in Telegram Summoning 
 Physician During Confinement, see su- 
 pra, 189. 
 
 318. Damages for loss or injury to the 
 husband may properly be recovered in an 
 action by husband and wife for a personal 
 injury to her, in jurisdictions where prop- 
 erty acquired by either is community prop- 
 erty for which the one having the disposi- 
 tion of it must sue, since he is the only 
 necessary plaintiff in the action, and may 
 include in his demand all damages natur- 
 ally flowing from the injury complained of. 
 Hawkins v. Front Street Cable R. Co. 3 
 Wash. 592, 28 Pac. 1021, 16: 808 
 
 319. Loss of the society, companionship, 
 and solace of one's wife is not an element of 
 the damages which he can recover in case of 
 her injury through another's negligence. Id. 
 
 320. The recovery of damages by a hus- 
 band for the loss of his wife's services on 
 account of personal injuries is not limited to 
 the proved money value of hev services as 
 a hired servant, but include the loss or im- 
 pairment of his right to conjugal society 
 and assistance. Selleck v. Janesville, 104 
 Wis. 570, 80 N. W. 944, 47: 691 
 
 321. Damages for loss of services of plain- 
 tiff's wife by reason of personal injuries 
 are not confined to the value of her services 
 within the household, but may include the 
 value of her services as manager of her 
 husband's business, where she was thus en- 
 gaged at the time of the injury, without 
 any contract or expectation of pay for her 
 services. Citizens Street R. Co. v. Twiname, 
 121 Tnd. 375, 23 N. E. 159, ' 7: 352 
 
 322. The value of the services of the 
 husband himself in necessary attendance up- 
 on his wife may be recovered by him in an 
 action for personal injuries, but not in an 
 amount beyond that for which he could 
 have hired reasonably competent attendance 
 and nursinsr bv others. Selleck v. Janes- 
 ville. 104 Wis. '570, 80 N. W. 944, 47: 691 
 
 323. A wife who brings an action to re- 
 cover damages for personal injuries may re- 
 cover for being prevented from perform- 
 ing and transacting her necessary affairs 
 and business by her to be performed and
 
 DAMAGES, III. i, 3. 
 
 955 
 
 transacted, if such prevention is the result 
 of the injuries for which she sues. Normile 
 v. Wheeling Traction Co. 57 W. Va. 132, 49 
 S. E. 1030, 68: 901 
 
 324. That an injured woman brings suit 
 by her husband as next friend will not jus- 
 tify the inclusion, as an element of damages, 
 of lost wages which belong to him. Tunni- 
 cliffe v. Bay Cities Consol. R. Co. 102 Mich. 
 624. 61 N. W. 11, 32: 142 
 
 325. Damages recoverable by a married 
 woman for personal injuries cannot include 
 anything for loss of earnings, where she 
 was working for her husband under a con- 
 tract for wages, as such contract is not en- 
 forceable, and the damages for the loss of 
 such services belong to the husband. 
 Blacchinska v. Howard Mission* & H. for 
 L. W. 130 N. Y. 497, 29 N. E. 755, 15: 215 
 
 326. The impairment of the capacity of a 
 married woman to perform labor can be 
 considered as an element of the damages 
 recoverable in an action by her for a person- 
 al injury, where the statutes entitle her to 
 make contracts on her own account and 
 give her the right to her own earnings. 
 Harmon v. Old Colony R. Co. 165 Mass. 
 100, 42 N. E. 505, 30: 658 
 
 327. The mere fact that a married woman 
 becomes pregnant after a personal injury 
 caused by negligence, when no caution in 
 that respect has been given by her medical 
 adviser, is not necessarily and as a matter 
 of law sufficient ground to justify a reduc- 
 tion of damages for the injury, although 
 the results of the injury may have been 
 thereby prolonged, or her recovery delayed. 
 Salladny v. Dodgeville, 85 Wis. 318, 55 N. 
 W. 600'. 20: 541 
 Miscarriage. 
 
 Prejudicial Instruction as to, see Appeal 
 
 and Error, 1039. 
 
 Caused by Fright, see Fright, 11, 12. 
 See also 'supra, 218, 254. 
 For Editorial Notes, see infra, V. 11. 
 
 328. Impairment of health and suffering 
 growing out of the death and premature 
 birth of the child of a pregnant woman by 
 reason of injuries negligently inflicted on 
 her by a third person, which would not have 
 attended its birth at the usual time either 
 alive or dead, may be considered in estimat- 
 ing the damages to be awarded for such 
 injury. Hawkins v. Front Street Cable R. 
 Co. 3 Wash. ,592. 28 Pac. 1021, 16: 808 
 
 329. Mere proof that an unborn child died 
 and was prematurely delivered because of 
 negligent injuries to its mother is nt>t suffi- 
 cient to establish her right to recover sub- 
 stantial damages for the injury. Id. 
 
 330. A woman whose miscarriage is prox- 
 imately caused by the misconduct of a serv- 
 ant of a carrier may recover damages there- 
 for, although her condition was unknown 
 to the carrier or its employees. Mann Bou- 
 doir Car Co. v. Dupre, 13 U. S. App. 183. 4 
 C. C. A. 540, 54 Fed. 646. 21 : 289 
 
 331. Tho loss of the society and prospec- 
 tive earnings of the child is not a proper 
 element of damages in an action by a mar- 
 ried woman for injuries which resulted in 
 
 a miscarriage. Tunnicliffe v. Bay Cities 
 Consol. R. Co. 102 Mich. 624, 61 N. W. 11, 
 
 32: 142 
 
 332. The loss of prospective offspring by 
 miscarriage cannot be considered as an ele- 
 ment of the recovery in an action by a 
 husband for the loss of his wife's services 
 and expense resulting from a personal in- 
 jury. Butler v. Manhattan R. Co. 143 N. 
 Y. 417, 38 N. E. 454, 26: 46 
 Loss of child-bearing power. 
 
 333. The loss of child-bearing power is an 
 element of damage to be considered by the 
 jury in an action for personal injuries sus- 
 tained through the negligence of the de- 
 fendant, when such loss is the reasonable 
 and probable result of such negligent act. 
 Normile v. Wheeling Traction Co. 57 W. 
 Va. 132, 49 S. E. 1030, 68: 901 
 
 3. Death. 
 
 Recovery for Mental Anguish, see infra, 568. 
 
 Instance of Amount for, see infra, III. i, 4, 
 6. 
 
 Review of Finding as to, see Appeal and 
 Error, 795. 
 
 Prejudicial Error in Submitting Question 
 a* to, to Jury, see Appeal and Error, 
 1140. 
 
 Extraterritorial Effect of Statute Fixing 
 Maximum and Minimum Fine for 
 Causing, see Conflict of Laws, 228. 
 
 Statutory Limitation of Amount as Con- 
 tract, see Constitutional Law, 1138. 
 
 As to Right of Action for Death, see Death, 
 
 n. 
 
 Evidence as to, see Evidence, 1722, 1862, 
 
 1863, 2115-2117. 
 Allegations as to, see Pleading, 248-252, 399, 
 
 "400. 
 
 Instruction as to, see Trial, 657, 777-780. 
 See also supra, 53, 306. 
 For Editorial Notes, see infra, V. 12, 26, 
 
 27. 
 
 334. Pecuniary damages sustained are all 
 that can be recovered for the death of a 
 person under Dak. Comp. Laws, 5499. 
 Smith v. Chicago, M. & St. P. R. Co. 6 S. 
 D. 583, 62 N. W. 967, 28: 573 
 
 335. Recovery for the pecuniary loss only 
 can be had in an action for the death of a 
 relative. Morgan v. Southern P. Co. 95 Cal. 
 510, 30 Pac. 603, 17: 71 
 
 336. Under the Kentucky statutes, gross 
 negligence is not necessary to entitle an 
 administrator to compensatory damages for 
 the negligent killing of his intestate. Illi- 
 nois C. R. Co. v. Josey, 110 Ky. 342, 61 S. 
 W. 703, 54: 78 
 
 337. Substantial damages may be recov- 
 ered for an instantaneous death caused by 
 wrongful act, under a statute providing that 
 all causes of action for injuries to the per- 
 son of a decedent, whether the same do or 
 do not instantaneously or otherwise result 
 in death, shall survive to his executor or ad- 
 ministrator. Broughel v. Southern New 
 Fn^land Teleph. Co. 72 Conn. 617, 45 Atl. 
 435T 49: 401 
 
 338. A verdict for nominal damages only
 
 956 
 
 DAMAGES, III. i, 3. 
 
 can be recovered by the father for the 
 death of a son who had attained his major- 
 ity, although he had lived with his father 
 thereafter and was strong, healthy, and a 
 good laborer. Smith v. Chicago, M. & St. 
 P. R. Co. 6 S. D. 583, 62 N. W. 967, 28: 573 
 
 339. Proof of damages is not necessary to 
 sustain a recovery for the death of a child, 
 under S. C. Rev. Stat. 2316, providing that 
 "the jury may give such damages as they 
 think proportioned to the injury resulting 
 from such death, to the parties respectively 
 for whom and for whose benefit such ac- 
 tion shall be brought." Mason v. Southern 
 R. Co. 58 S. C. 70, 36 S. E. 440, 53: 913 
 
 340. The jury should, in arriving at the 
 total amount of damages from the death of 
 a person caused by the wrongful act, neg- 
 lect, or default of another, consider the pe- 
 cuniary injury to each separate beneficiary 
 not found guilty of contributory negligence, 
 but should render a verdict for a gross 
 sum not exceeding $10,000, in an action un- 
 der Ohio Rev. Stat. 6134, 6135, making 
 one liable to an action for damages who 
 thus causes the death of another, and pro- 
 viding that it shall be brought in the name 
 of the administrator for the exclusive bene- 
 fit of specified persona, and that the jury 
 may give such damages, not exceeding $10,- 
 000, as they think proportioned to the pe- 
 cuniary injury resulting from such death 
 to the persons "respectively" for whose 
 benefit the action is brought. Wolf v. Lake 
 Erie & W. R. Co. 55 Ohio St. 517, 45 N. E. 
 708, 36: 812 
 Of married woman. 
 
 For Editorial Notes, see infra, V. 12. 
 
 341. Damages for the death of a married 
 woman cannot include the loss to her minor 
 child where the action is brought by her 
 husband, under Mill & V. (Tenn.) Code, 
 .3130, which provides that a right of action 
 for injuries causing the death of any per- 
 son shall not abate by reason of the death, 
 but shall pass to his widow, or, if none, to 
 his children, or to his personal representa- 
 tive for the benefit of the widow or next of 
 kin, but fails to make any express provi- 
 sions as to the beneficiary in case of the 
 death of a married woman, and leaves the 
 recovery to go to the husband jure mariti. 
 as it would have gone at common law but 
 for its rule of abatement. Chattanooga 
 Electric R. Co. v. Johnson, 97 Tenn. 667. 37 
 S. W. 558, 34: 442 
 Loss of advice, comfort, and enjoyment. . 
 
 342. Damages cannot be allowed to a wid- 
 ow for loss of advice and counsel, and com- 
 fort and enjoyment, due to the negligent 
 killing of her husband, under a statute al- 
 lowing damages resulting to the parties for 
 whose use and benefit the ritrht of action 
 survives, from the death consequent upon 
 injuries received. Illinois C. R. Co. v. Be"7. 
 108 Tenn. 670. GO S. W. 317. 58: 690 
 Burial expenses. 
 
 343. Damages recoverable by the father 
 of a child killed may include the expenses 
 necessarily and reasonably incurred in the 
 burial, including compensation for the fa- 
 
 ther's loss of time. Southern R. Co. v. Cove- 
 nia, 100 Ga. 46, 29 S. E. 219, 40: 253 
 
 Resulting illness of parent. 
 
 341. No right of action for the death of a 
 child exists in New Jersey merely because 
 the shock of its death caused the sickness 
 of its mother, with the consequent depriva- 
 tion of her services and society from her 
 husband and the increase of his expenses, 
 as the only right of action for death is to 
 recover, under N. J. Rev. p. 294, for the pe- 
 cuniary loss resulting therefrom. Myers 
 v. Hofborn (N. J. Err. & App.) 58 N. J. L. 
 193, 33 Atl. 389, 30: 345 
 
 Pain and suffering. 
 Burden of Proof as to, see Evidence, 252. 
 
 345. Damages for pain and suffering can- 
 not be allowed in an action for the negli- 
 gent killing of a passenger in a railroad ac- 
 cident where the force of the collision was 
 such that many passengers were instantly 
 killed and .there is nothing to show that 
 the death for which the action was brought 
 was not instantaneous or that deceased was 
 conscious after the shock. Sweetland v. 
 Chicago & G. T. R. Co. 117 Mich. 329. 75 N. 
 W. 1066, 43: 568 
 Loss of services; earning power; probable 
 
 accumulations. 
 Evidence as to, Generally, see Evidence. 
 
 1581. 
 Opinion Evidence as to, see Evidence, 1351, 
 
 1437. 
 Evidence of Value of Services, see Evidence, 
 
 1819. 
 Sufficiency of Evidence to Go to Jury, see 
 
 Trial, 80. 
 
 Instruction as to, see Trial, 658. 
 For Editorial Notes, see infra, V. 12. 
 
 346. The net earnings, health, and habits 
 of a man may be considered as factors in 
 making an estimate of the damages for his 
 death. Blackwell v. Moorman, 111 N. C. 
 151. 16 S. E. 12, 17: 729 
 
 347. The earning power of a healthy man 
 living on his income, for which damages on 
 account of his death may be given to his 
 administrator, may include his skill in the 
 management of wealth or capacity to man- 
 age affairs, which would be of advantage 
 to an estate. Skottowe v. Oregon, S. L. & 
 U. N. R. Co. 22 Or. 430, 30 Pac. 222, 16: 593 
 
 348. The wealth or poverty of the recipi- 
 ent or giver does not measure the amoxint of 
 damages recoverable under statutes limiting 
 them to the pecuniary loss in case of the 
 death of a person, but the earnings, care, 
 health, and beneficent and pecuniary con- 
 tributions give" or reasonably likely to be 
 given to the beneficiaries determine the 
 amount of damasres. English v. Southern 
 P. Co. 13 Utah, 407, 45 Pac. 47, 35: 155 
 
 340 A true and fair basis for the meas- 
 ure of damages for failure of support by the 
 death of a person is the cost of an annuity 
 which would furnish the supnort. Brock- 
 wav v. Patterson, 72 Mich. 122, 40 N. W. 
 192. 1 : 70S 
 
 350. Nominal damages only can be re 
 covered from a railroad company for the 
 benefit of the father of a person killed 
 through its negligence, unless it is shown
 
 DAMAGES, III. i, 4. 
 
 57 
 
 that deceased gave assistance to his father, 
 or that the father had a reasonable expec- 
 tation of pecuniary benefit from the contin- 
 ued life of decedent; and the reasonable 
 character of this expectation must appear 
 from the facts in proof. These facts, if 
 proved, must determine the measure of 
 damages. Fordyce v. McCants, 51 Ark. 509, 
 1 S. W. 694, 4: 296 
 
 351. The measure of damages in an ac- 
 tion by an administrator for the negligent 
 killing of his intestate, recovery in which 
 will be a general asset of the estate appli- 
 cable to payment of deuis and administra- 
 tion expenses, is the present cash value 
 of the estimated reasonable net earnings 
 and acquisitions of deceased for the period 
 of his natural expectancy of life Ut the time 
 immediately preceding his death. Florida 
 C. & P. R. Co. v. Sullivan, 57 C. C. A. 167, 
 120 Fed. 799, 61 : 410 
 
 352. The possibility of tnc accumulation 
 by a decedent of an estate, which would bo 
 inherited by his children, cannot be consid- 
 ered by the jury in awarding damages for 
 wrongful death. Weist v. Philadelphia, 200 
 Pa. 148, 49 Atl. 891, 58: 666 
 
 353. The pecuniary injury resulting from 
 the death of a person from whom the bene- 
 ficiaries of the action had no right to claim 
 support is the loss of what the deceased 
 would probably have accumulated afterward 
 if he had lived. Howard v. Delaware & H. 
 Canal Co. 40 Fed. 195, 6: 75 
 
 4. Instances of Amount, 
 a. In General. 
 
 354. A verdict for $1,000 damages cannot 
 be held excessive in a case of personal in- 
 jury by which a person's teeth were broken 
 and his knee injured so that he was lame for 
 a long time and unable to work efficiently 
 at his trade for six or eight months. Rich- 
 mond R. & E. Co. v. Garthright, 92 Va. 627. 
 24 S. E. 267. 32: 220 
 
 355. A verdict for $15.000 in favor of an 
 employee of an electric company, who was 
 badly injured by falling from a pole on ac- 
 count of contact with a live wire, for which 
 the company was responsible will not be set 
 aside by the appellate court as excessive. 
 Tedford v. Los Angeles Electric Co. 134 Cal. 
 76, 66 Pac. 76. 54: 85 
 
 356. The court will not interfere with an 
 award of $3,000 as damages for injuries to 
 a competent lineman of an electric light 
 company earning at the time of injury $60 
 per month, where he had been able to do 
 but little work prior to the trial, which 
 occurred about a year after the injury, and 
 there was evidence which would justify a 
 conclusion that he had not at that time re- 
 covered from the effect of the accident. 
 Twombly v. Consolidated Eiectric Light Co. 
 38 Me. 353, 57 Atl. 85, 64: 551 
 Permanent disfigurement. 
 
 See also infra, 365, 366. 
 
 357. A verdict for $25,000 is excessive ^ in 
 an action for personal injuries by which 
 a railroad conductor thirty years old was 
 
 badly burned about the face so as to dis- 
 ligure him for life, and also lost the use 
 of his left arm, besides receiving some in- 
 jury to his right hand and both feet. Stan- 
 dard Oil Co. v. Tierney, 92 Ky. 367, 17 S. 
 W. 1025, 14: 677 
 
 Permanent injury. 
 
 358. The sum of $3,500 is not so excessive 
 a recovery for a stiff arm that it will be in- 
 terfered with on appeal. Detxur v. B. Stroh 
 Brewing Co. 119 Mich. 282, 77 N. W. 48, 
 
 44: 500 
 
 359. A verdict for $14,500 for serious and 
 permanent injuries to a young man, leaving 
 him badly maimed and deformed for life 
 and practically a physical wreck, is not so 
 excessive as to be set aside. Howe v. Min- 
 neapolis, St. P. & S. S. M. R. Co. 62 Minn. 
 71, 64 N. W. 102, 30: 684 
 
 360. A verdict for $3,500 for an injury to 
 a laborer who is shot in the finger and 
 through his thumb, and whose right arm is 
 perforated with shot from the shoulder to 
 his hand, many of which are never extract- 
 ed, and whose right leg also receives sever- 
 al shot by which his capacity for lifting 
 is permanently affected, is not excessive. 
 West Memphis Packet Co. v. White, 99 
 Tenn. 256, 41 S. W. 583, 38: 427 
 
 361. A verdict for $10,000 will not be set 
 aside as excessive, especially if approved 
 by the trial judge, where it is given for in- 
 juries by which a woman is made a cripple 
 during life, and subject to much pain and 
 suffering. Skottowe v. Oregon S. L. & U. 
 N. R. Co. 22 Or. 430. 30 Pac. 222, 16: 593 
 
 362. A verdict of $4.000 for injury to the 
 ankle of a woman more than seventy-five 
 years old and who has previously been 
 somewhat feeble, from which she suffers 
 great pain and is confined to her bed for 
 three months, requiring constant care, and 
 who still suffers some pain and can never 
 walk again without a crutch, is excessive. 
 Johnson v. St. Paul City R. Co. 69 Minn. 
 260. 60 X. W. 900, 36: 586 
 
 363. A verdict for $10,000 is not excessive 
 for an injury to a woman's knee, although 
 it seemed of itself a comparatively small 
 one, where it caused a nervous shock which 
 resulted in the development of heart dis- 
 ease and left her a helpless invalid. Gallo- 
 way v. Chicaso. M. & St. P. R. Co. 56 Minn. 
 346, 57 X. W. 1058, 23: 442 
 
 364. In an action for damages for person- 
 al injuries, a verdict of a jury for $6.050 
 for plaintiff is not so large as to justify 
 the intervention of the court, where th<; 
 evidence showed that his earnings per year 
 were $1.150, that his medical expenses were 
 $400. that he has paralysis from the injury 
 to the spinal cord, and probably will not 
 recover from the effects of the injury. Mel- 
 lor v. Missouri P. R. Co. 105 Mo. 455. 14 S. 
 W. 758, 16 S. W. 849, 10: 36 
 
 365. Ten thousand one hundred seventy- 
 five dollars damages is not so excessive as 
 to cause a reversal on the ground of cor- 
 ruption, passion, or prejudice, when given to 
 a doctor sixty years old, who was injured at 
 a railroad highway crossing by the com- 
 pany's negligence, where his horse and
 
 958 
 
 DAMAGES, III. j. 
 
 buggy were demolished, and he received 
 permanent injuries, such as a disfigured and 
 partially paralyzed face, broken ribs, lame- 
 ness, and constant pain which disabled him 
 to some extent from practising his pro- 
 fession, the i come from which was $2,500 a 
 year at the time of the accident. Gratiot 
 v. Missouri P. R. Co. 116 Mo. 450, 16 S. W. 
 384, 19 S. W. 31, 16: 189 
 
 Loss of eye. 
 
 366. Seven thousand dollars is not so 
 grossly excessive as to require interference 
 by the appellate court, as damages for 
 injuries to an intending railway passenger 
 by a mail bag thrown through the station 
 window, which injuries were very painful, 
 and caused permanent disfigurement and 
 loss of sight of one eye. Shaw v. Chicago & 
 G. T. R. Co. 123 Mich. 629, 82 N. W. 618, 
 
 49: 308 
 
 367. Fifteen thousand dollars is exces- 
 sive to award an employee as damages for 
 injuries resulting in severe pain for several 
 months and in the loss of an eye, where he 
 is not wholly incapacitated for labor, and 
 the interest on the amount at 4 per cent 
 woulil produce an income greater than his 
 earning capacity before the injury. Ribich 
 v. Lake Superior Smelting Co. 123 Mich. 
 401, 82 N. W. 279, -18: 649 
 Loss of limb. 
 
 368. A verdict of $15,000 is not excessive 
 for injury to a boy who was run over by a 
 car and one of his legs crushed so that am- 
 putation was necessarv. Roth v. Union De- 
 pot Co. 13 Wash. 525," 43 Pac. 641, 44 Pac. 
 253, 31:855 
 
 369. A verdict for $10,000 is not an ex- 
 cessive amount to be awarded as damages 
 to a boy who, by reason of defendant's 
 negligence, was compelled to remain in bed 
 for five months, suffering much pain, and 
 lost one leg entirely, while the other was 
 much weakened and rendered less useful. 
 Fort Worth & D. C. R. Co. v. Robertson 
 (Tex.) 16 S. W. 1093, 14: 781 
 
 370. Thirteen thousand dollars is exces- 
 sive to award as damages for negligently 
 knocking down, severely bruising, and caus- 
 ing loss of an arm by, a laborer thirty-four 
 years old who was earning $1 per day. 
 Louisville & N. R. Co. v. Lowe (Ky.) 66 
 S. W. 736. 65: 122 
 
 6. Death. 
 
 Measure of Damages for. Generally, see 
 supra, III. i, 3. 
 
 Children. 
 
 371. Two thousand dollars damages were 
 awarded for the death of plaintiff's son, be- 
 tween eighteen and nineteen years of age, 
 who was robust, earning $25 per month, and 
 who was a dutiful son employing his 
 wages for the benefit of his father's family. 
 Myhan v. Louisiana Electric Light & P. Co. 
 41 La. Ann. 964, 6 So. 799, 7: 172 
 Adult. 
 
 372. Nine thousand dollars is not exces- 
 sive, as matter of law, to be allowed for the 
 negligent killing of a man thirty-two years 
 old, of good habits and business ability. 
 
 Louisville & N. R. Co. v. Weaver, 108 Kv,. 
 392, 56 S. W. 674, 50: 381 
 
 373. A recovery of $4,000 is held not ex- 
 cessive for the death of a workman thirty- 
 one years of age. Bright v. Barnett & R. 
 Co. 88 Wis. 299, 60 N. W. 418, 26: 524 
 
 374. Seven thousand dollars and $5,000 r 
 respectively, are not excessive damages for 
 the negligent killing of the captain and 
 cook of a sailing vessel, the former of whom 
 was thirty-five years old and earning $100 
 per month, and the latter thirty-nine years 
 old and earning $50 per month, both being 
 in good physical condition. Humboldt 
 Lumber Mfg. Asso. v. Christopherson, 19 C. 
 C. A. 481, 44 U. S. App. 434, 73 Fed. 239, 
 
 46: 264 
 
 375. A verdict for $1,000 damages for the 
 negligent killing of a widower seventy-three 
 years old, who was strong and vigorous for 
 his age and actively engaged in business, 
 will not be set aside as excessive, although 
 his children are all of mature years and 
 not dependent upon him for support. 
 Wabash v. Carver, 129 Ind. 552, 29 N. E. 25 r 
 
 13: 851 
 
 376. Four thousand dollars is excessive 
 compensatory damages for the death of a 
 man sixty-eight years old, whose net worth 
 at the time of his death was little more 
 than $6,400, and whose annual income aria- 
 ing from his personal exertions, after de- 
 ducting personal expenses, was $1,000, in 
 an action by persons whose sole claim is 
 for diminution of the estate in which they 
 are entitled to share. Denver & R. G. R. 
 Co. v. Spencer, 27 Colo. 313, 61 Pac. 606, 
 
 51: 121 
 
 377. The sum of $8,000 is an excessive al- 
 lowance for injuries resulting in the death 
 six or seven months later, of an unskilled 
 laborer twenty-three years old, who, with- 
 out any family to support, had saved noth- 
 ing from his earnings, especially when, 
 $5,000 is the statutory limit of recovery for 
 death resulting from injuries immediately. 
 O'Donnell v. Maine C. R. Co. 86 Me. 552. 3ft 
 Atl. 116, 25: 658 
 
 378. A recovery for $13,000 damages is 
 excessive and should be reduced to $10,000 
 in an action for the death of a man thirty- 
 eight years old in good health and earning 
 $50 per month which he contributed to the 
 support of his wife and seven children, the 
 eldest of whom was seventeen years of age, 
 where the measure of damages is the pe- 
 cuniary loss. English v. Southern P. Co. 13 
 Utah. 407, 45 Pac. 47, 35: 155 
 
 j. Injury; Taking or Detention of Personal 
 Property. 
 
 Corporate Stock Wrongfully Taken by Pro- 
 moters, see Corporations, 340. 
 For Editorial Notes, see infra, V. 13. 
 
 Injury or destruction. 
 Loss of Profits, see infra, 613, 614. 
 Reduction of Damages, see infra, 665. 
 Evidence as to. see Evidence, 1851. 
 Allowance of Interest, see Interest. 36. 
 For Editorial Notes, see infra, V. 13, 15. 
 370. The infection of sound hogs, with
 
 DAMAGES. III. j. 
 
 959 
 
 which they are innocently placed by a re- 
 note purchaser, is a legal consequence of 
 the sale, as sound, of animals suffering from 
 an infectious disease, so as to render the 
 seller liable for the resulting loss. Skinn v. 
 Reutter, 135 Mich. 57, 97 N. W. 152, 63: 743 
 
 380. Expenses incurred in good faith in 
 attempting a cure may be included, in ad- 
 dition to the actual value of the animal, in 
 the damages for an injury by which an 
 animal is made entirely worthless. Ellis v. 
 Hilton, 78 Mich. 150, 43 N. W. 1048, 6: 454 
 
 381. In an action by a florist to recover 
 damages against the owner of pipes from 
 which gas escaped, to the injury of his 
 plants, the full damage to them is a proper 
 matter of inquiry; but a claim for injury 
 to the plaintiff's business reputation on ac- 
 count of sales of damaged planls is con- 
 jectural and too remote to be allowable. 
 Dow v. Winnipesaukee Gas & E. Co. 69 N. 
 H. 312, 41 Atl. 288, N 42: 569 
 
 382. In an action to recover damages for 
 injuries to property from the negligent 
 operation of railroad locomotives in such 
 manner as to cause them to emit smoke 
 denser and more offensive in quality and 
 greater in volume than reasonably required 
 for the proper operation of the railroad, 
 where the evidence shows such negligent 
 operation, and substantial damage to the 
 plaintiff's property directly attributable 
 thereto, recovery cannot be limited to nomi- 
 nal damages, on the ground of inherent im- 
 possibility of determining how much of the 
 damage was caused by smoke necessarily 
 emitted in the careful operation of the rail- 
 road, and how much was caused by the 
 smoke that was due to negligent operation. 
 Jenkins v. Pennsylvania R. Co. (N. J. Err. & 
 App.) 67 N. J. L. 331, 51 Atl. 704. 57: 309 
 
 383. The measure of recovery for injury 
 to chattels which are not wholly destroyed 
 is the difference between the value im- 
 mediately before and immediately after the 
 injury; and the owner cannot recover more 
 than this by reason of voluntary abandon- 
 ment of what remains. Chicago, B. & Q. R. 
 Co. v. Metcalf, 44 Neb. 848, 63 N. W. 51, 
 
 28: 824 
 
 384. A verdict for $475 is excessive where 
 that appears to have been the whole value 
 of the property, and the evidence shows 
 that $30 could have been obtained for the 
 property after it was damaged. Gulf, C. & 
 S. F. R. Co. v. Johnson, 71 Tex. 619. 9 S. 
 W. 602, 1 : 730 
 
 385. The measure of damages for property 
 destroyed by negligence is, in the absence 
 of wil fulness or malice, the value of the 
 property at the time of the destruction, 
 with interest. Jacksonville, T. & K. W. R. 
 To. v. Peninsular Land, I. & Mfg. Co. 27 
 Fla. 1, 157, 2 So. 661, 9 So. 689, 17: 33 
 
 386. The measure of damages for the 
 wrongful killing of horses is their value for 
 the ptirposes for which they were used, and 
 not the market value of horses generally in 
 that locality. Loesoh v. Koehler. 144 Tnd. 
 278. 41 N. E. 326, 43 N. E. 129, 35: 682 
 Detention. 
 
 387. The measure of damages for the un- 
 
 lawful detention of a piano is its rental 
 value. Chauvin v. Valiton, 8 Mont. 451, 
 20 Pac. 658, 3: 194 
 
 388. Damages for detention of a boat by 
 obstruction of navigation, where other 
 means of transportation were not provided, 
 will not include the cost of loading and un- 
 loading and of damage to the cargo by ex- 
 posure after unloading. Farmers' Co-Op. 
 Mfg. Co. v. Albemarle & R. R. Co. 117 N. C. 
 579, 23 S. E. 43, 29: 700 
 
 389. The value of receipts in color books 
 owned by a color mixer who entered them 
 therein, instead of entering them in his em- 
 ployers' books as it was his duty to do, can- 
 not be considered in estimating the dam- 
 ages, if any, which he can recover from 
 them for detaining those books, on the sup- 
 position that they belonged to them, when 
 he undertook to carry them away. Dempsey 
 v. Dobson, 174 Pa. 122, 34 Atl. 459, 32: 761 
 Conversion. 
 
 By Carrier, see supra, 236. 
 
 Evidence as to, see Evidence, 1822, 1824, 
 
 2037. 
 
 Allowance of Interest, see Interest, 40. 
 Instructions as to, see Trial, 765. 
 See also supra, 387. 
 For Editorial Notes, see infra, V. 5, 13, 
 
 24. 
 
 390. The damages recoverable in trover by 
 one who has retained title to the property 
 as security for purchase money are limited 
 to the balance due him thereon, less any 
 depreciation in its value by the use which 
 he had authorized. Wood v. Nichols, 21 R. 
 I. 537, 45 Atl. 548, 48: 773 
 
 391. In trover the rule of damage is 
 proper compensation for the property taken 
 and converted, regardless of the manner of 
 the entry and taking. Omaha & G. Smelt- 
 ing & R. Co. v. Tabor, 13 Colo. 41, 21 Pac. 
 925, 5: 236 
 
 392. In trover for or wrongfully taken by 
 defendant from plaintiff's mine, the measure 
 of damage is the value of the ore so taken, 
 less the reasonable and proper cost of rais- 
 ing it from the mine after it was broken, 
 and hauling to the place of its disposal, to- 
 gether with legal interest from the time 
 of the conversion on the sum so found. Id. 
 
 393. The measure of damages for the con- 
 version of a debtor's property in fraud of 
 law by a creditor, when sued by an assignee 
 for creditors, is the value of the property at 
 the time it was taken. Cramton v. Valido 
 Marble Co. 60 Vt. 291, 15 Atl. 153, 1: 120 
 
 394. For the conversion of notes by a 
 pledgee by surrendering them to the maker 
 in exchange for bonds without authority 
 from the pledgeor. he is liable to the latter 
 for their actual value only if that is less 
 than their face value. Griggs v. Day. 136 N. 
 Y. 152, 32 N. E. 612, 18: 120 
 
 395. The measure of damages in trover 
 for conversion of an insurance policy, where 
 its collectible value is not shown, is the 
 sum expressed upon its face, with interest. 
 llayc-i v. Ma-iaehusetts Mut. L. Tns. Co. 125 
 111/620. 18 X. E. 322, 1: 303 
 
 396. The measure of damages for the 
 conversion, by a pledgee, through an un-
 
 960 
 
 DAMAGES. III. k, 1. 
 
 authorized sale by mistake and not in bad 
 faith, of corporate stock deposited by the 
 owner as collateral security, is what it 
 would have cost the owner to repurchase 
 the stock within a reasonable time after 
 notice of its sale, less the debt secured 
 thereby, with interest. Wright v. Bank of 
 the Metropolis, 110 N. Y. 237, 18 N. E. 79, 
 
 1:289 
 
 397. The measure of damages for the con- 
 version of a judgment in favor of a part- 
 nership by a former member of the firm who 
 wrongfully discharged it is the value of the 
 judgment at the date of the conversion. 
 Langford v. Rivinus, 45 U. S. App. 79, 75 
 Fed. 959, 21 C. C. A. 581, 33: 250 
 
 398. Damages for the conversion of logs, 
 in an action against one who purchased 
 them innocently from an inadvertent tres- 
 passer, are measured by the value of the 
 logs immediately after severance, with inter- 
 est thereon, excluding any enhancement of 
 the value bv transportation to another 
 place. White" v. Yawkey, 108 Ala. 270, 19 
 So. 360, 32: 199 
 Property replevied. 
 
 Evidence as to Value of Articles Taken, see 
 Evidence, 1828. 
 
 399. Where an officer from whom attached 
 property has been, replevied obtains judg- 
 ment therefor, his measure of damages is 
 the amount due the attaching plaintiffs at 
 the time of the replevin, not exceeding the 
 value of the property and not including 
 writs of attachment coming to him after 
 the property was taken in replevin. Sloan 
 v. Coburn. 26 Neb. 607, 42 N. W. 726, 
 
 4: 470 
 
 k. Injury to Real Property; Nuisance. 
 1. In General. 
 
 Measure of Damages for Breach of Con- 
 tract as to, see supra, III. a. 3. 
 
 For Fraud on Sale of, see supra, 259-264. 
 
 Time for Which Recoverable, see infra, 640. 
 
 Loss of Profits, see infra, 615. 
 
 Reduction of Damages, see infra, 665. 
 
 Condemnation or Depreciation in Value by 
 Eminent Domain, see infra, III. 1. 
 
 Damages for Detention of Dower, see 
 Dower, 72, 73. 
 
 Evidence as to, see Evidence, 1839, 1870- 
 1883. 
 
 See also supra. 96, 249. 
 
 For Editorial Notes, see infra, V. 14, 15. 
 
 400-401. The cost of restoring land to its 
 former condition is the proper measure of 
 damages for injury thereto, when this is 
 less than the diminution in the market 
 value of the whole property by reason of 
 the injury; but, if the cost of restoring is 
 more than the diminution, the latter is gen- 
 oral 1 v thr true measure of damages. Harts- 
 horn' v. Chaddock, 135 N. Y. 116, 31 N. E. 
 997. 17:426 
 
 40ii. The measure of damages in ejectment 
 for withholding possession of land is the 
 actual rental value of the land, irrespective 
 of what the defendant may have gathered 
 
 from it. Credle v. Ayers, 126 N. C. 11, 35 
 S. E. 128, 48: 751 
 
 403. The damages recoverable by a ten- 
 ant, reversioner, or remainderman for a 
 tort upon realty which affects his estate are 
 limited to the injury done to his estate; and 
 neither of such parties can recover the en- 
 tire injury to both present and future es- 
 tates. Jordan v. Benwood, 42 W. Va. 312, 
 26 S. E. 266, 36: 519 
 
 404. Recovery against an attorney in fact 
 for the use of a farm in his possession and 
 control is limited, in the absence of any 
 dereliction of duty on his part, to the pro- 
 ceeds received by him therefrom, less proper 
 expenditures, and cannot be extended to the 
 rental value of the farm, if that amounts 
 to a greater sum. Royston v. McCulley 
 (Tenn. Ch.) 59 S. W. 725, 52: 899 
 
 405. Where a single trespass is com- 
 mitted on two contiguous lots of the plain- 
 tiff, it is proper to assess the damages to 
 both lots together, although they may not 
 have been so used by the owner in connec- 
 tion with each other that they would be 
 considered one tract in condemnation pro- 
 ceedings by a railway company. Lamm v. 
 Chicago. St. P. M. & O. R. Co. 45 Minn. 71, 
 47 N. W. 455, 10: 268 
 Forcible entry or possession. 
 
 See also supra, 56-58. 
 
 406. In addition to nominal damages for a 
 forcible entry upon the peaceable posses- 
 sion of plaintiff, even by the owner, he can 
 recover for any injury inflicted upon hia 
 person or personal property. Mosseller v. 
 Deaver, 106 N. C. 494, 11 S. E. 529, 8: 537 
 
 407. The damages to be paid by one who 
 takes from another forcible possession of 
 real estate claiming as an officer of a reli- 
 gious society which owns the property, in 
 case it subsequently appears that his claim 
 to the office was invalid and his action 
 therefore wrongful, are merely such as will 
 make just compensation for the injury done. 
 Irwin V. Hess, 176 Pa, 594, 35 Atl. 217, 
 
 35: 415 
 
 Injury to lateral or surface support. 
 See also infra. 531, 540. 
 For Editorial Notes, see infra, V. 14. 
 
 408. The measure of damasres for r~*nov- 
 ing the lateral support to land is not the 
 cost of repairing it, but the diminution of 
 value by reason of the act. Moellering v. 
 Evans, 121 Tnd. 195, 22 N. E. 989, 6: 449 
 
 409. Impairment of lateral support cannot 
 be considered in estimating the damages 
 which an abutting owner may recover where 
 a railroad company appropriates an alley 
 for the full width thereof, and makes a deep 
 excavation close to the lot line; and his 
 damages are restricted to the special injury 
 sustained by him because of access to and 
 egress from his property beiner cut off. 
 Kansas City N. W. R. Co. v. Schwake, 70 
 Kan. 141, 78 Pac. 431, 68: 673 
 
 410. The measure of damage to a surface 
 owner from removal of the support for his 
 Innd by means of mining operations is the 
 notnnl loss sustained to the land and build- 
 injrs by reason of the cave-in, and not the 
 difference in market value before and after
 
 DAMAGES, III. k. 2. 
 
 961 
 
 the injury. Xoonan v. Pardee. 200 Pa. 474, 
 50 Atl. 255, . 55: 410 
 
 Eviction of life tenant. 
 
 411. Damages for eviction of a life tenant 
 from a room in a house include the rental 
 value up to the commencement of the 
 action, and the present worth of the rental 
 value from the time forward during the life 
 tenant's expectation of life, based upon 
 mortality tables. Grove v. Youell, 110 
 Midi. 286, 68 X. W. 132. 33: 297 
 Mining coal. 
 
 See also supra, 410. 
 
 412. The measure of damages for coal 
 mined in good faith by a tenant in common 
 who has a contract with the father of the 
 tenants, who are infants, and under a be- 
 lief that the purchase will be^ultimately 
 perfected by the probate court or by the 
 infants, on arriving at full age, is the value 
 of the coal in place at the time it was 
 mined. Kev* v. Pittsburg & W. Coal Co. 
 58 Ohio St. '240. .->(! X. K 911, 41: 681 
 
 413. In fixing the value of coal mined in 
 good faith but without right, by a tenant in 
 common, the existence of entries, tramways, 
 etc., owned by him on other lands, as well 
 as every other circumstance, natural or 
 artificial, which tends to enhance or di- 
 minish the value, should be considered. Td. 
 Quarrying stone. 
 
 414. The measure of damages for quarry- 
 ing and carrying away stone by trespassers, 
 in a suit by lessees merely of the exclusive 
 right to quarry the stone, does not extend 
 to the full value of the stone, but merely 
 to the damages actually occasioned by in- 
 vasion of such exclusive right; but nominal 
 damages at least should be granted. Baker 
 v. Hart, 123 N. Y. 470, 25 N. E. 948, 12: 60 
 Removing corpse from burial lot. 
 
 415. Damages for unlawfully entering 
 upon a woman's burial lot and removing 
 therefrom the body of her deceased sister, 
 at the instance of the latter's former hus- 
 band, will be measured by the injuries done 
 to the lot, where the proceeding is with due 
 propriety and decency. Pulsifer v. Doug- 
 lass, 04 Me. 556. 48 Atl. 118, 53: 238 
 Failure of railroad to fence. 
 
 416. Damages of a landowner for the fail- 
 ure of a railroad company to build railroad 
 fences include the loss of his privilege to 
 connect his fences with such fences for the 
 purpose of making an inclosure. Gould v. 
 Great Northern T!. Co. 63 Minn. 37, 65 N. 
 W. 125, 30: 590 
 
 2. Injury to. or Destruction of. Buildings or 
 Trees. 
 
 Duty to Prevent Unnecessary Amount of 
 
 Injury, see supra, 19. 
 Evidence as to Value of Trees, see Evidence, 
 
 1840. 
 Deduction from Purchase Price for, see 
 
 Vendor and Purchaser, 22. 
 See also infra, 433, 531. 
 For Editorial Notes, see infra, V. 14. 
 
 417. The measure of damages for injuring 
 L.R.A. Dig. 61. 
 
 a building by the use of explosives near it 
 is the cost of restoring it to its former 
 condition. Fit/simons & C. Co. v. Braun. 
 199 111. 390. 6.3 X. E. 249, 59: 421 
 
 418. The measure of damages for partial 
 destruction cf a building is the reasonable 
 cost of restoring it so that it will be as 
 valuable as it was before, considering its 
 age and depreciation: and it is not the cost 
 of a new building the same as that de- 
 stroyed. Anderson v. Miller, 96 Tenn. 35, 33 
 S. AV. 615, 31: 604 
 
 419. The owner of a building negligently 
 destroyed by fire while in possession of a 
 tenant cannot recover from the one respon- 
 sible for the loss the whole value of it, but 
 from such value must be deducted the value 
 of the leasehold. Nashville, C. & St. L. R. 
 Co. v. Heikens, 112 Tenn. 378, 79 S. W. 
 1038, 65: 298 
 
 420. The measure of damages for destruc- 
 tion or injury of buildings, trees, etc., by 
 fire set by locomotives is the difference in 
 value of such buildings, trees, etc.. before 
 and after the injury, and not the difference 
 in value of the land. White v. Chicago, M. 
 & St. P. R. Co. 1 S. D. 326, 47 N. W. 146. 
 
 9:824 
 
 421. The measure of damages for the 
 wrongful destruction of trees, if the action 
 is brought for the value of the trees, is the 
 market value independent of the real 
 estate; but if the action is brought for the 
 injury to the real estate the measure of 
 damages is the diminished value of such 
 estate. Bailey v. Chicago, M. & St. P. R. 
 Co. 3 S. D. 531, 54 N. W. 596, 19: 653 
 
 422. The measure of damages for a de- 
 struction of fruit trees is the difference be- 
 tween the value of the realty before and 
 after the destruction of the trees. Dwight 
 v. Elmira C. & N. R. Co. 132 N. Y. 199, 30 
 N. E. 398, 15: 612 
 
 423. Damages to shade trees are measured 
 by the difference between the value of the 
 land before and after the injury. Evans v. 
 Keystone Gas Co. 148 N. Y. 112. 42 N. E. 
 513", 30: 651 
 Cutting timber. 
 
 See also supra, 58. 
 
 For Editorial Notes, see infra, V. 14. 
 
 424. In trespass for cutting timber, 
 against one who acted in the honest but 
 mistaken belief that the trees were his, the 
 measure of damages is their value in the 
 woods from which they were taken, together 
 with the injury incident to their removal. 
 Gaskins v. Davis. 115 N. C. 85. 20 S. E. 188. 
 
 25: 813 
 
 42."). The value of the lumber at the place 
 of disposal, without any allowance for ex- 
 penditure in wrongfully cutting and remov- 
 ing standing timber from the premises is 
 the measure of damages against a mort 
 gagee in possession for thus wrongfully 
 wasting the premises after he had received 
 all that was due him on his mortgage by 
 conversion of personal property. Whiting 
 v. Adam*. f,5 Vt. fi79. .'50 Atl. 32. 2.V .V
 
 962 
 
 DAMAGES.. III. k, 3, 4. 
 
 3. Injury to Water Rights; Overflows. 
 
 Evidence as to, see Evidence. 1879. 
 
 Injury to, or loss of, access. 
 
 For Editorial Notes, see infra, V. 14. 
 
 426. Substantial damages cannot be re- 
 covered by a riparian owner for injuries to 
 his right of access by one dredging the 
 channel under government authority which 
 makes him responsible if he deprives ri- 
 parian owners of any of their rights, where 
 no actual injury on that account is proved. 
 Slingerland v. International Contracting Co. 
 169 N. Y. 60, 61 N..E. 995, 56: 494 
 
 427. Where riparian property has been 
 injured by lowering the level of the water 
 so as to interfere with access between the 
 water and land, the measure of damages is 
 the difference in value of the property be- 
 fore and after the injury was done, and not 
 the cost of changes made to avoid the result 
 of the change in conditions. Beidler v. 
 Sanitarv District. 211 111. 628, 71 N. E. 1118, 
 
 67: 820 
 
 428. The diminished rental or usable value 
 of uplands, in consequence of the loss of ac- 
 cess to the river by construction of a rail- 
 way embankment, is to be determined ac- 
 cording to the existing condition of the 
 premises, and not with reference to what 
 the usable value might have been if they 
 had been put to different uses. Rumsey v. 
 New York & N. E. R. Co. 133 N. Y. 79. 30 
 N. E. 654. 15: 618 
 Obstruction or diversion; overflow. 
 Prospective Damages, see infra, 640. 
 
 429. In fixing the damages for changing 
 the current of a stream so as to destroy its 
 habit of depositing sand upon the shore of 
 a riparian owner, the jury may consider its 
 location with respect to market, the cost 
 and risk of mining and marketing, its 
 value, the past annual output, and its per- 
 ennial character. Freeland v. Pennsylvania 
 R. Co. 197 Pa. 529, 47 Atl. 745, 58: 206 
 
 430. The measure of damages to be re- 
 covered by the owner of a dam and pond 
 from one who wilfully diverts water from 
 the pond without right is the market value 
 of the power actually taken, with annual 
 interest, notwithstanding the owner had no 
 facilities for using the power, so that it 
 would have gone to waste had it not been 
 taken and used by the wrongdoer. Green 
 Bay & M. Canal Co. v. Kaukauna Water 
 Power Co. 112 Wis. 323. 87 N. W. 864, 
 
 62: 579 
 
 431. An obstruction in the bed of a river, 
 caused by the bulging out of a stratum of 
 plastic clay, due to pressure of a railroad 
 embankment near the riverside, although 
 the result was entirely unforeseen, is the 
 immediate and direct result of the construc- 
 tion of the embankment, for which the rail- 
 road is liable, and not a merely indirect, 
 remote, or consequential result. Xorthern 
 P. R. Co. v. United States. 44 C. C. A. 135, 
 104 Fed. 691, 59: 80 
 
 432. A defendant who has collected water 
 into artificial channels and east it upon the 
 land of the plaintiff wrongfully i liable for 
 
 all the damages inflicted thereby upon the 
 latter, although the plaintiff could have pre 
 vented the damage by a trifling expense 
 and by a reasonable exertion. Paddock v. 
 Somes, 102 Mo. 226, 14 S. W. 746, 10: 254 
 
 433. The value of crops and trees de- 
 stroyed, and the difference in value of land 
 immediately before and after the depositing 
 of sand and clay thereon, may ue given as 
 the measure of damages for negligently 
 causing the collection of surface waters 
 thereon. Fremont, E. & M. V. R. Co. v. 
 Harlin, 50 Neb. 698, 70 N. W. 263, 36: 417 
 
 434. The value of a crop destroyed by an 
 overflow of surface water is not allowable 
 as damages for an obstruction tp the flow 
 of the water, if it was plainly useless to 
 plant any crop because it was certain to be 
 flooded and destroyed; but in such cases 
 the rental value and permanent injury to 
 the land, if any, constitute the measure of 
 damages. Willitts v. Chicago, B. & K. C. R. 
 Co. 88 Iowa, 281, 55 N. W. 313, 21: 608 
 
 435. The measure of damages for the ob- 
 struction of water by a r,ailroad embank- 
 ment lawfully built is the difference in the 
 value of land as it is and as it would have 
 been with the road properly built. Ridley 
 v. Seaboard & R. R. Co. 118 N. C. 996, 24 S. 
 E. 730, 32: 708 
 Pollution. 
 
 For Editorial Notes, see infra, V. 16. 
 
 436. Damages on account of the pollu- 
 tion of a stream, causing the emanation of 
 vile and noxious odors, are not restricted to 
 mere depreciation of property, but may also 
 include the inconvenience and discomfort 
 caused to the owners and their families. 
 Weston Paper Co. v. Pope, 155 Ind. 394, 57 
 N. E. 719, 56: 899 
 Well. 
 
 437. The cost of appliances purchased in 
 an attempt to procure water from a well 
 after its flow had been impaired, and not the 
 value of the use of such appliances, is to 
 be considered as an element of damages for 
 interfering with the flow, where it appears 
 that they were ineffectual, and does not ap- 
 pear that they added to the value of the 
 property or were of value after use. Willis 
 v. Perry, 92 Iowa. 297. 60 N. W. 727, 
 
 26: 124 
 4. Nuisances. 
 
 Time for Which Recoverable, see infra. 
 
 650-652. 
 Evidence as to, see Evidence 1850, 1870, 
 
 1871. 
 For Editorial Notes, see infra, V. 16. 
 
 438. In an action to abate a nuisance and 
 for damages the recovery is not limited to 
 the damages to the land and its rental 
 value. Van Fossen v. Clark, 113 Iowa, 86. 
 84 N. W. 989, 52: 279 
 
 439. The difference between the rental 
 value of premises free from the effect of a 
 nuisance, and subject to it, is the measure 
 of damages for the nuisance. Kiel v. 
 Jackson, 13 Colo. 378, 22 Pac. 504, 6: 254 
 
 440. The depreciation in rental value of 
 property by the maintenance of a nuisance
 
 DAMAGES, III. 1. 1. 
 
 968 
 
 on adjacent premises may be considered in 
 estimating the damages to be awarded for 
 the injury to the property, although it is 
 occupied by the owner himself as a dwell- 
 ing. Swift v. Broyles, 115 Ga. 885, 42 S. E. 
 277, 58: 390 
 
 441. In assessing the damages for the 
 maintenance of a nuisance in the neighbor- 
 hood of a residence, the jury may look to 
 such injury as occurs to the use of the 
 property as a residence, taking into con- 
 sideration the discomfort and annoyance 
 which the owner has suffered from the 
 nuisance. Louisville & N. Terminal Co. v. 
 Jacobs, 109 Tenn. 727, 72 S. W. 954, 61: 188 
 
 442. That a home is less desirable and its 
 selling value has been reduced are not 
 proper subjects of consideration* in deter- 
 mining the damages to be paid to its owner 
 by one locating a manufacturing establish- 
 ment in its vicinity. Robb v. Carnegie, 145 
 Pa. 324, 22 Atl. 649. 14: 329 
 
 443. Entire damages, including those 
 which will arise in the future, can be re- 
 covered for a nuisance only when the cause 
 of injury is permanent and the recovery will 
 confer a license for its continuance, but not 
 where the injury is not permanent, but one 
 which it may be presumed the defendant 
 will remove rather than suffer the entire 
 damages. Watts v. Norfolk & W. R. Co. 
 39 W. Va. 196, 19 S. E. 521, 23: 674 
 
 444. Benefits realized by a person because 
 of the establishment in his vicinity of a 
 manufacturing concern are to be considered 
 in determining the damages which must be 
 paid him for injuries done to his property 
 by such concern. Robb v. Carnegie, 145 Pa. 
 324, 22 Atl. 649. 14: 329 
 Injury to crops. 
 
 See also supra, 433, 434. 
 
 445. Diminution in quantity or value of 
 crops as shown by a comparison with years 
 when the establishment was not there, and 
 in the value of the farm by the deposit 
 thereon of foreign and sterilizing substances, 
 as shown by chemical analysis, is a proper 
 element of damages to be recovered by the 
 owner of a farm from the proprietor of a 
 manufacturing establishment located in the 
 vicinity, the operation of which causes such 
 diminution. Robb v. Carnegie, 145 Pa. 324, 
 22 Atl. 649, 14: 329 
 
 446. No damages can be recovered by the 
 owner of a farm for injuries to crops grow- 
 ing thereon by gases from a manufacturing 
 establishment in the vicinity, during years 
 in which the farm was in the possession of a 
 tenant who paid a full rent for it. - Id. 
 
 1. Condemnation or Depreciation in Value by 
 Eminent Domain. 
 
 1. In General. 
 
 Review of Finding as to, see Appeal and 
 
 Error, 793, 794. 
 Discrimination as to, see Constitutional 
 
 Law, 355. 
 
 Evidence as to, see Evidence, 1874-1883. 
 Allowance of Interest, seo Interest. 42, 
 
 14-46. 
 
 Rate of Interest Allowed, see Interest, 90. 
 
 Instructions as to, see Trial, 763, 764. 
 
 For Editorial Notes, see infra, V. 17-19, 
 
 447. In proceedings to assess damages for 
 the taking of property for railroad pur 
 poses, whatever injuriously affects the 
 owner's adjoining property as the direct 
 and necessary result of the location of the 
 road may be considered by the jury in mak- 
 ing their assessment. Schuylkill River E. 
 S. R. Co. v. Kersey, 133 Pa. 234, 19 Atl. 553. 
 
 7: 409 
 
 448. No injuries are contemplated in the 
 original condemnation of a right of way for 
 a canal for which damages must be allowed. 
 except such as necessarily arise in the 
 proper construction of the work. Mullen v. 
 Lake Drummond Canal & W. Co. 130 N. C. 
 496, 41 S. E. 1027, 61 : 833 
 
 449. A state statute acquiescing in an 
 attempt by the Federal government to 
 acquire land within the state for the use of 
 such government does not entitle the gov- 
 ernment to employ the local rule of dam- 
 ages as the measure of its liability for prop 
 erty taken. Nahant v. United States, 13fi 
 Fed. 273, 69: 723 
 
 450. In railroad condemnation proceed- 
 ings, damages are recoverable for the re- 
 moval of an embankment, although above 
 the established grade of an unopened street. 
 on which was placed a private railroad 
 siding leading to the owner's property. 
 Quigley v. Pennsylvania S. V. R. Co. 121 
 Pa. 35', 15 Atl. 478, 1 : 503 
 
 451. It is proper for a railroad desiring to 
 cross another to pay the expense of neces- 
 sary frogs and crossing apparatus. Seattle 
 & M. R. Co. v. State. 7 Wash. 150, 34 Pac. 
 551, 22: 217 
 Extent of property affected. 
 
 452. Condemnation of a strip of land 
 across a farm for canal purposes does not 
 divide the farm into two parcels for the 
 purpose of estimating damages for the con- 
 struction of a railroad across one of them, 
 although such strip is taken in fee, and the 
 canal is abandoned, and the fee to such strip 
 acquired by third persons. Cameron v. 
 Pittsburgh & L. E. R. Co. 157 Pa. 617, 27 
 Atl. 668, 22: 443 
 Injury to business. 
 
 Allowing for Loss of Profits, see infra, 618. 
 Limiting Period for which Profits Allowed. 
 
 see Appeal and Error, 521. 
 Evidence as to, see Evidence, 1880. 
 See also infra, 471. 
 For Editorial Notes, see infra, V. 25V 2 . 
 
 453. The damage for injury to one "own 
 ing a business on land within a town" by 
 the taking of property for public use for 
 which a statute requires compensation to bo 
 made is not limited to the decrease in 
 market value of the business. Earle v. 
 Com. 180 Mass. 579, 63 N. E. 10, 57:292 
 Change of plan. 
 
 454. If a change in the plan of con 
 structing a railroad across property con 
 demned, involving more damages, is mndf 
 after damages have been assessed or set-
 
 904 
 
 DAMAGES, III. 1, 2. 
 
 tied by agreement, the owner of the land 
 may demand a new assessment, the in 
 quiry being whether the land, as a whole, 
 is damaged more by the railroad on its 
 present plan than as it was first construct- 
 ed; if so, the amount ascertained will be 
 the damage. Wabash, St. L. & P. R. Co. v. 
 McDougall, 126 111. Ill, 18 K E. 291, 
 
 1:207 
 Where use of land changed. 
 
 455. The measure of damages recoverable 
 by the owner of the fee when a railroad 
 company permits land condemned for its use 
 to be put to other uses is the rental value 
 of the property for such uses, where there is 
 no injury to the realty. Lyon v. McDonald, 
 78 Tex. 71, 14 S. W. 261, 9: 295 
 Growing crops. 
 
 456. Crops planted by the. owner of land 
 after the location of a railroad, l)ut before 
 the damages had been paid or secured, or 
 notice given of an intent to enter, are proper 
 subjects for compensation when the land is 
 taken. Lafferty v. Schuylkill River E. S. R. 
 Co. 124 Pa. 297, 16 Atl. 869. 3: 124 
 
 457. A tenant with notice of the location 
 of a railroad over the leased premises, who 
 plants crops thereon before the damages are 
 paid or secured, or notice of entry given, is 
 entitled to the damages for injury to the 
 growing crops bv the entry of the company. 
 
 Id. 
 Recovery by tenant. 
 
 458. A tenant, on condemnation of a 
 portion of the leased premises, is entitled to 
 damages for the value of his leasehold inter- 
 est which is taken , without any deduction 
 for abatement of rent. Stubbings v. 
 Evanston, 136 111. 37, 26 N. E. 577, 11: 839 
 Damages for delay in lieu of interest. 
 
 459. Damages for detention of payment 
 cannot be demanded in lieu of interest, 
 when the delay was due to the fact that the 
 demand made was oppressive and un- 
 reasonable. Philadelphia Ball Club v. Phila- 
 delphia, 192 Pa. 632, 44 Atl. 265, 46: 724 
 Telegraph line over railroad right of way. 
 
 460. Only nominal damages can be given 
 to a railroad company for the use by a 
 telegraph line of the space occupied by its 
 posts and wires along the railroad right of 
 way through an agricultural section of 
 country, when the use and occupation of 
 the right of way for railroad purposes is 
 not interfered with or encumbered in any 
 way. Mobile & O. R. Co. v. Postal Teleg. 
 Cable Co. 101 Tenn. 62. 46 S. W. 571, 
 
 41 : 403 
 
 461. For the appropriation by a magnetic 
 telegraph company of part of the right of 
 way of a railroad company the measure of 
 compensation is the amount of decrease 
 in the value of the use of the right of way 
 for railroad purposes that will result from 
 the easement appropriated and used by the 
 telegraph company. Cleveland, C. C. & St. 
 L. R. Co. v. Ohio Postal Teleg. Cable Co. 
 68 Ohio St. 306, 67 A. E. 890, 62: 941 
 
 462. The measure of damages for a tele- 
 graph line ovor a railroad right of way is 
 not the value of the land embraced within 
 the right of way between the polo? and un- 
 
 der the wires, but it is the extent to which 
 the value of the use of such spaces by the 
 railroad company is diminished by the use of 
 the same by the telegraph company for ita 
 purposes. Mobile & O. R. Co. v. Postal 
 Telog. Cable Co. 76 Miss. 731. 26 So. 370, 
 
 45: 223 
 
 2. Value; Estimate of. 
 a. In General. 
 
 Allowing for Loss of Profits, see infra, 616- 
 
 618. 
 As to Abutting Owners, see infra, III. 1, 4, 
 
 a. 
 Evidence as to Value, see Evidence, 1812- 
 
 1816, 1829, 1830, 1841-1848. 
 Striking out Evidence as to, see Trial, 31. 
 See also supra, 427, 428. 
 
 463. In awarding damage to one, a por- 
 tion of whose land is sought to be con- 
 demned for public use, for injury to his re- 
 maining land, injury to tracts not connected 
 with, and held under different titles from, 
 although adjoining, that from which the 
 parcel is taken, cannot be considered. 
 Sharpe v. United States. 50 C. C. A. 597, 
 112 Fed. 893, 57:932 
 
 464. The necessities of the public or of 
 the party seeking to condemn land cannot 
 be taken into consideration in fixing its 
 value. San Diego Land & T. Co. v. Neale, 
 88 Cal. 50, 25 Pac. 977, 11:604 
 
 465. The cost of repairs upon a toll bridge 
 which has been taken by a county cannot be 
 considered in determining the compensation 
 which must be paid to the owners because 
 of such taking. Mifflin Bridge Co. v. 
 Juniata County, 144 Pa. 365, 22 Atl. 896, 
 
 13: 431 
 
 466. There is no distinction between land 
 near to and that remote from a reservoir 
 site, BO far as concerns the application to 
 it of the rule that the actual market value 
 must determine the compensation for it in 
 condemnation proceedings. San Diego Land 
 & T. Co. v. Neale, 88 Cal. 50, 25 Pac. 977, 
 
 11:604 
 
 467. Where the location of a railroad 
 across property leased as a coal yard makes 
 necessary new appliances for the continua- 
 tion of the coal business, and increases the 
 cost of raising and storing the coal, as well 
 as the breakage and waste in handling it, 
 the additional expense and loss, together 
 with the cost of the new appliances, may 
 properly be received in evidence in a 
 proceeding by the lessee to recover dam- 
 ages for such location, not as specific items 
 of claim, but as affecting the market value 
 of the leasehold. Schuylkill River E. S. R. 
 Co. v. Kersey, 133 Pa. 234, 19 Atl. 553, 
 
 7:400 
 
 Estimated as of what time. 
 See also infra, 505. 
 
 468. The valuation of property injured 
 in the exercise of eminent domain must be 
 made immediately before and immediately 
 after the damage is inflicted, and the 
 measure of damages recoverable is the dif- 
 ference between those valuations, unaffect-
 
 DAMAGES. 111. 1, 2 
 
 ed by any subsequent change in the circum- 
 stances or condition of the property. Phila- 
 delphia Ball Club v. Phildelphia. 192 Pa. 
 H32, 44 Atl. 265, 46: 724 
 
 469. A statute requiring the value of 
 property condemned to be estimated as at 
 the time of appraisement must be enforced 
 when invoked by the owner of the property. 
 Bell v. Lamborn, 18 Colo. 346, 32 Pac. 989, 
 
 20: 241 
 Right of way over oil-bearing land. 
 
 470. The damages for condemning a rail- 
 road right of way across a strip of oil- 
 bearing land should not represent the fee 
 value, but only the value of the easement, 
 since the conditions are such that the oil 
 can be taken from under the right of way 
 by sinking wells on the portion of the strip 
 which remains in possession of the original 
 owner, so that there is a substantial differ- 
 ence between the value of the easement and 
 that of the fee. Southern P. R. Co. v. San 
 Francisco Sav Union, 148 Cal. 290, 79 Pac. 
 961, 70: 221 
 Injury to business. 
 
 See also supra, 453. 
 
 471. Diminished value of a stock of mer- 
 chandise because of removal rendered neces- 
 sary by the taking of real estate for rail- 
 road purposes is not an element of damages 
 to be paid by the railroad company under 
 the Constitution of 1874. Becker v. Phila- 
 delphia & R. T. R. Co. 177 Pa. 252. 35 Atl. 
 617, 35: 583 
 Cutting off terminal facilities. 
 
 472. Injury to a part of a tract of land 
 which is cut off by a railroad from connec- 
 tion by private switches with a terminal 
 railway should be considered in estimating 
 damages on condemnation, as a crossing for 
 a private switch cannot be condemned. St. 
 Louis K. &. N. W. R. Co. v. Clark, 121 Mo. 
 169, 25 S. W. 192. 906, 26: 751 
 
 473. The fact that a railroad is not 
 obliged to contimie a present custom to 
 make no charge for hauling over switches 
 should be considered in estimating damages 
 in a condemnation case. Id. 
 Improvements. 
 
 474. Improvements made for public use 
 by a railroad company lawfully in posses- 
 sion, with the right to condemn for such use 
 at any time, do not belong to the owner of 
 the land, and the value thereof will not be 
 allowed him as damages on condemnation. 
 The maxim Qtticqvid plantatur solo, solo 
 (-edit, does not apply in such a case. St. 
 Johnabury & L. C. R. Co. v. Willard. 61 Vt. 
 134, 17 Atl. 38.. '2: 528 
 
 475. Where a railroad company having the 
 power of eminent domain has entered upon 
 land without the consent of the landowner 
 and without complying with the law regu- 
 lal iiii;; the exercise of such power, and has 
 constructed a railroad track thereon, the 
 value of the improvements thus put by the 
 company on the land cannot be included in 
 estimating the damages sustained by the 
 landowner, in proceedings subsequently 
 instituted under such law by the company, 
 or its legal successor having similar power 
 to condemn the land or an casement therein 
 
 to the company's use; and this, whether the 
 company has been ousted from the former 
 possession or not. Jacksonville, T. & K. \V. 
 R. Co. v. Adams. 28 Fla. 631, 10 So. 4i.l. 
 
 14: 533 
 
 476. On condemnation of a railroad right 
 of way after the railroad has been built on 
 a strip of mortgaged land conveyed for that 
 purpose by the mortgagor, and the entire 
 premises, including the railroad, thereafter 
 sold on foreclosure, the purchaser is en- 
 titled only to the value of the land occupied 
 by the railroad, irrespective of the improve- 
 ments. St. Louis, K. & S. W. R. Co. v. 
 Nyce, 61 Kan. 394, 59 Pac. 1040, 48: 241 
 
 477. The recovery of damages for a 
 change in the construction of a railroad can- 
 not include a loss resulting from removal of 
 an improvement put upon the land by the 
 corporation or that from which it purchased. 
 Wabash, St. L. & P. R. Co. v. McDougall. 
 126 111. Ill, 18 N. E. 291, 1 : 207 
 
 478. The value of a public schoolhouse 
 built on land of an. unknown owner in the 
 expectation that he will permit such use, 
 and with the intention, in case he will not, 
 to acquire it by eminent domain, is not to 
 be included in his compensation if it be- 
 comes necessary to condemn the land. Chase 
 v. Jemmett, 8 Utah, 231, 30 Pac. 757, 
 
 16: 805 
 
 6. Value for Special Use. 
 
 Allowing for Loss of Profits, see infra, 617. 
 Evidence as to, see Evidence, 1849, 1883. 
 Instruction as to, see Trial, 763. 
 For Editorial Notes, see infra, V. 17. 
 
 479. The value of land to be condemned 
 for any special purpose, including that for 
 which it is to be taken, may be taken into 
 account as one of the elements tending to 
 show its market value; but the market 
 value, and not the value for such special 
 purpose, or the value to the party seeking 
 to condemn it, is the measure of damages. 
 San Diego Land & T. Co. v. Neale, 88 Cal. 
 50, 25 Pac. 977. 11: 604 
 
 Alloway v. Nashville. 88 Tenn. 510. \", 
 S. W. 123. 8: 12:J 
 
 San Diego Land & T. Co. v. Neale, 78 Cal. 
 63, 20 Pac. 372, 3: 83 
 
 480. Land taken for part of a reservoir 
 site should be considered with reference to 
 its value for reservoir purposes, in estimal 
 ing the owner's compensation, although it 
 has no value for reservoir purposes except in 
 connection with other land owned by the 
 party seeking its condemnation. San Diego 
 Land & T. Co. v. Xealo. 78 Cal. 63, 20 Pa. 
 372, 3: 83 
 
 481. Although property may have no 
 market value in the strict sense of the term. 
 there being no actual demand or current 
 rate of price, either because there have been 
 no sales of similar property, or because tin 
 particular piece is the only thing of its kind 
 in the neighborhood, when it is taken in 
 condemnation proceedings it is proper to 
 consider the purposes for which it is suit 
 able, as a means of ascertaining what
 
 DAMAGES, III. 1, 2. 
 
 reasonable purchasers would in all prob- 
 ability be willing to give for it; and this, 
 in a general sense, may be said to be its 
 market value; and the fact that it has not 
 been previously used for the purposes in 
 question is irrelevant. Id. 
 
 482. Calculation of the actual value of 
 land condemned, by considering the neces- 
 sary cost of putting it in condition for 
 certain purposes, and the probable income 
 and profit which would result from its use, 
 is not a proper method of determining its 
 value. San Diego Land & T. Co. v. Neale, 
 88 Cal. 50, 25 Pac. 977, 11: 604 
 
 483. The possibility of using the land de- 
 stroyed by a railroad company for the only 
 use which the owner intends to make of 
 it, for factory sites, when the land is not 
 at present desired for that purpose, is too 
 remote to be considered in reduction of the 
 damages to be awarded for taking a right 
 of way through the property. Suffolk & C. 
 R. Co. v. West End Land & I. Co. 137 N. C. 
 330. 49 S. E. 350, 68: 333 
 Plant of water company. 
 
 Question for Jury as to. see Trial. 231. 
 
 484. Whether or not the franchises of a 
 water company are exclusive, and how far 
 it is without competition, as well as the 
 period for which they are to endure, are to 
 be taken into consideration in determining 
 their value, when sought to be taken by the 
 right of eminent domain. Kennebec Water 
 Dist. v. Waterville, 97 Me. 185. 54 Atl. 6. 
 
 60: 856 
 
 485. The possibility of future develop- 
 ment of the use of the franchises of a 
 water company should be considered in de- 
 termining the amount to be allowed for 
 them when taken by eminent domain in 
 the light of the facts that further investi- 
 gation may be necessary therefor, and that 
 at any stage of the development the owner 
 of the franchises will be entitled to charge 
 only reasonable rates under the conditions 
 then existing. Id. 
 
 486. The financial returns which a water 
 plant can be made to bear must be con- 
 sidered in determining the value of the 
 franchises of its owner when taken by right 
 of eminent domain. Id. 
 
 487. In determining how much income a 
 water plant can be made to produce, for 
 the purpose of ascertaining the value of 
 the franchises of its owner which are sought 
 to be taken by right of eminent domain, it 
 must be allowed a fair amount, based upon 
 the fair value of its property, taking into 
 account the cost of maintenance or depre- 
 ciation and current operating expenses, al- 
 lowing something for the risk of the origi- 
 nal enterprise, if any. over am! above in- 
 i-ome which it has received at rates which 
 would have been excessive but for such risk. 
 -o far as -inch fair amount can be allowed, 
 :md i!o more should be exacted from the 
 iiiiblie than the service is Avorth. Id. 
 
 488. The quality of water furnished and 
 of the servii-c- rendered, and the fitness of 
 the plant, and the source of the water sup- 
 ply to 7iieet reasonable requirements in the 
 ;>rr<en( and future, are to be r-onsidered in 
 
 determining the value of a water plant tak- 
 en by eminent domain. Id. 
 
 489. The faithfulness, or unfaithfulness, 
 even to the extent of rendering the fran 
 chises liable to forfeiture, of a water com- 
 pany in performing its duties, should not be 
 considered in determining the value of its 
 plant when taken by eminent domain. Id. 
 
 490. That a water company has received 
 more than reasonable rates for services ren- 
 dered should not be considered in determin- 
 ing the amount which must be paid for 
 its plant when taken by eminent domain. 
 
 Id. 
 
 491. Upon taking, by eminent domain, 
 the system supplying one municipal corpo- 
 ration from a water company operating sev- 
 eral plants in different places, no increased 
 burden upon, or impairment of value of, 
 the remaining plants because of the sever- 
 ance of the property can be considered as 
 an element of damage, where the various 
 plants are separate and distinct, although 
 some additional cost of management may be 
 thereby imposed upon the remaining ones. 
 
 Id. 
 
 492. The cost of replacing a water plant 
 with one substantially like it must be con- 
 sidered in determining its value when ap- 
 propriated by eminent domain; but such 
 consideration must be made in the light of 
 the fact that the plant is a completed struc- 
 ture and a going concern. Id. 
 
 493. Property of a water company not 
 directly connected with the water system 
 or plant which is taken from it by right of 
 eminent domain should be apraised at its 
 fair market value, not at a forced sale, but 
 at what it is fairly worth to the seller un- 
 der conditions permitting a prudent and 
 beneficial sale. Id. 
 
 494. In determining the structure value of 
 a plant for a municipal water supply to be 
 taken by eminent domain, the appraisers 
 should consider the present efficiency of 
 the system, the length of time necessary to 
 construct the same de novo, the time and 
 cost needed after construtcion to develop 
 the new system to the level of the present 
 one in respect to business and income, and 
 the added net incomes and profits, if any. 
 which, by its acquirement as a going con- 
 cern, would accrue to a purchaser during 
 the time required for the new construction 
 and development of business and income. Id. 
 
 495. The element of good will should not 
 be considered in estimating the value of a 
 water plant to be taken by eminent domain 
 so far as the system is practically exclu- 
 sive. Id. 
 
 496. That a statute provides for the tak- 
 ing of the property and franchises of a wa- 
 ter company by eminent domain in no way 
 impairs the value for which compensation 
 must be made. Id. 
 
 497. The capitalization of the income of a 
 water company, even at reasonable rates, 
 cannot be adopted as a test of the present 
 value of the plant, upon which to calculate 
 the amount to be paid to it when the plant 
 i taken ]>y eminent domain. especially
 
 DAMAGES, III. j, 3, 4 
 
 967 
 
 where the franchises are not exclusive or 
 perpetual. Id. 
 
 3. Consequential Injuries. 
 
 To Abutting Owners, see infra, III. 1, 4. 
 In Case of Elevated Railroads, see infra, 
 
 III. 1, 4, 6. 
 Right to Compensation for, see Eminent Do- 
 
 main, III. e. 
 Opinion as to Extent of Damage from Oper- 
 
 ation of Railroad, see Evidence, 1344. 
 Evidence as to, see Evidence, 1874. 
 See also supra. 453, 471; infra, 543. 
 For Editorial Notes, see infra, V. 17, 
 
 498. A single tract of land usd for the 
 purposes of a paper mill is not severed by 
 the taking of a strip for a railroad and con- 
 veyance of an additional strip for coal and 
 freight sidings, so as to prevent considera- 
 tion of injury to the water which supplies 
 the mill on one side of the road, when as- 
 sessing consequential damages to the mill 
 property on the other side of the road. 
 Rudolph v. Pennsylvania S. V. R. Co. -186 
 Pa. 541, 40 Atl. 1083, 47 : 782 
 
 Danger; possible injuries. 
 For Editorial Notes, see infra, V. 17. 
 
 49s). Damages in an eminent domain pro- 
 ceeding to obtain land for railroad pur- 
 poses cannot be enhanced by reason of the 
 danger of fire because of proximity of the 
 proposed road to a building used for stor- 
 ing highly inflammable material, but must 
 be limited to the cost of removing the build- 
 ing to a safe place. Hamilton v. Pittsburg, 
 B. & L. E. R. Co. 190 Pa. 51, 42 Atl. 369, 
 
 51: 319 
 
 500. When a part of a farm or tract of 
 land is appropriated for the right of way of 
 a railroad, danger from fire to buildings, 
 fences, timber, or crops upon the remainder, 
 in so far as it depreciates the value of the 
 property, may be properly considered in giv- 
 ing compensation to the landowner. Leroy 
 ft W. R. Co. v. Ross, 40 Kan. 598, 20 Puc. 
 197, 2:217 
 
 501. Where a railroad is laid through a 
 farm or tract of land used for stock pur- 
 poses, or adapted to stock purposes, the ac- 
 cidental danger to which stock thereon will 
 be exposed may be considered in giving com- 
 pensation to the landowner for the right of 
 way appropriated for the railroad, so far as 
 the same affects the value or depreciation of 
 the land, or tract of land, but not any dan- 
 ger or probable injury resulting from the 
 fault or negligence of the railroad company 
 in operating or failing to fenco its road. Id. 
 
 502. The possibility of unskilful and im- 
 proper construction of a reservoir which is 
 not yet completed cannot be considered in 
 ostimating damages to adjacent property 
 in proceedings by eminent domain. It must 
 be assumed that the work will bo done in a 
 skilful and proper manner. Allmvay v. 
 \ashvillc, 88 Tenn. 510. 13 S. W. 123. 8: 123 
 Pollution of water. 
 
 For Editorial Notes. >ee infra. V. 17. 
 
 503. The pollution of the water of a 
 
 stream so as to render it unfit for use in a 
 paper mill, resulting from the operation of 
 a railroad through the premises, is to be 
 considered in determining the amount of 
 damages caused by the construction and 
 operation of the railroad. Rudolph v. Penu 
 sylvania S. V. R. Co. 186 Pa. 541, 40 Atl. 
 1083, 47 : 782 
 
 4. As to Abutting Owners, 
 a. Railroads in Street. 
 
 Time for Which Recoverable, see infra, 648. 
 
 Right to Compensation, see Eminent Do- 
 main, III. e, 2. 
 
 As Additional Burden for which Compensa- 
 tion may be Had, see Eminent Domain. 
 IV. d, 2. 
 
 See also infra, 541*. 
 
 For Editorial Notes, see infra, V. 17. 
 
 504. The value of the land taken, together 
 with the damage to the abutting tots, and 
 not the damage for the additional burden, 
 is to be awarded as compensation in case 
 a railroad company condemns a street for 
 a right of way. Suffolk & C. R. Co. v. West 
 End Land & I. Co. 137 N. C. 330, 49 S. E. 
 350, 68: 333 
 
 505. Comparison of the value of the prop 
 erty before and after the road was built 
 is not the proper method of fixing the 
 amount to be awarded to an abutting land 
 owner in case a bridge is erected to carry 
 railroad tracks diagonally across a street. 
 Jones v. Erie & W. V. R. Co. 151 Pa. 30, 25 
 Atl. 134, 17: 758 
 
 506. In estimating damages to a lot, 
 caused by the construction and maintenance 
 of a railway in the street in front of the 
 premises, but beyond the center line there 
 of, only such injuries to the property should 
 be considered as proximately result from in 
 terference with the appurtenant easement 
 for purposes of access, light, and air, which 
 the owner has in that part of the street. 
 Lamm v. Chicago, St. P. M. & O. R. Co. 45 
 Minn. 71, 47 N. W. 455, 10: 268 
 
 507. Where a railwaj r company occupies u 
 street for purposes not authorized by its 
 contract with the city, the damages recov 
 erable by an abutting owner are limited to 
 thoep sustained before the bringing of the 
 suit; but where the abuses have been onlv 
 occasional, and no special or particular dam 
 age is shown, plaintiff is entitled to nomi 
 nal damages only. Iron Mountain R. Co 
 v. Bingham, 87 Tenn. 522. 11 S. W. 70.V 
 
 4: 622 
 
 508. The erection of abutments on a rail 
 road company's own property, to carry its 
 tracks diagonally across the intersection of 
 two streets at an elevation of 23 feet. i> 
 not a proper element of damages to be al 
 lowed to the owner of a corner lot so situ 
 ated that a building thereon must necessa 
 rily face thorn. .Tones v. Erie & W. V. R. 
 Col 151 Pa. 30, 25 Atl. 134, 17:758 
 
 509. In determining the damages to \><- 
 awarded an abutting owner because of the 
 temporary occupation of a street with rail
 
 DAMAGES, 111. 1, 5. 
 
 road tracks, the fact may be considered 
 that, by reason of the elevation of the 
 tracks above the grade of the street, pud- 
 dles of water from rain and melting snow 
 were formed on the sidewalk to the incon- 
 venience of such owner. McKeon v. New 
 York, X. H. & H. R. Co. 75 Conn. 343, 53 
 Atl. 656, 61 : 730 
 
 Exclusion of light and air. 
 See also infra, 548. 
 
 510. The exclusion of light and air from 
 abutting property, and its diminution in 
 value because of the erection of a bridge 
 to carry railroad tracks diagonally across 
 a street, are proper elements to be con- 
 sidered in assessing the damages to be paid 
 to its owner. Jones v. Erie & W. V. R. Co. 
 151 Pa. 30, 25 Atl. 134, 17:758 
 Cutting off access. 
 
 Right to Compensation for Obstructing, see 
 Eminent Domain, 327-338. 
 
 511. Substantial damages may be award- 
 ed an abutting owner whose property is cut 
 of,' from access to the street by the use 
 of it as a roadbed by a railroad company, 
 ponding the elevation of its tracks, which 
 may include actual loss of rent, depreciation 
 of rental value, permanent injury to build- 
 ings from the jar of passing trains, injury 
 to the sidewalk, and the cost of keeping 
 horses employed in his business, of which 
 no use can be made while the tracks are in 
 the street. McKeon v. New York, N. H. 
 & Tl. R. Co. 75 Conn. 343. 53 Atl. 666, 
 
 , 61:730 
 
 6. Elevated Railroads. 
 
 Time for Which Recoverable, see infra. 648. 
 
 Right to Compensation, see Eminent Do- 
 main, 340. 
 
 A? Additional Servitude for Which Com- 
 pensation may be Had, see Eminent Do- 
 main, 454. 
 
 Opinion Evidence as to Amount of Dam- 
 ages, see Evidence, 1349, 1350. 
 
 See also supra. 508, 510, 511; infra. 548. 
 
 512. Damages to lots by construction of 
 an elevated railroad in front of them, with- 
 out compensation to the owner, where he 
 subsequently sues for the damages sus- 
 tained, are limited to diminished or usable 
 value during the time prior to the suit, 
 and must be based on the actual condition 
 of the lots just as they are. What the ef- 
 fect on their value would have been if 
 buildings had been erected thereon, which 
 in fact were not, is immaterial. Tallman v. 
 Metropolitan Elev. R. Co. 121 N. Y. 115), 
 2.3 N. E. 1134, 8: 173 
 
 513. Damages for the permanent diminu- 
 tion in the value of lots, caused by an ele- 
 vated railway in front of them, cannot be 
 recovered in an action for damages after 
 construction of the road, but the damages 
 must ho limited to the time preceding the 
 action. Id. 
 
 514. The use of a house as a place of 
 prostitution does not affect the liability for 
 depreciation of its value from the con- 
 struction and one-ration of an elevated rail- 
 
 road in the street in front of it. Lawrance 
 v. Metropolitan Elev. R. Co. 126 N. Y. 483. 
 27 N. E. 765, 13: 102 
 
 515. The damages to abutting property 
 owners by reason of the destruction of their 
 easements for ingress and egress to and from 
 a public street, and the free circulation of 
 light and air therefrom to their property, 
 by the construction of an elevated railroad 
 in such street, are entirely consequential; 
 and in determining the amount to be award- 
 ed therefor the jury may consider the bene- 
 fits as well as the injuries resulting from 
 such construction. Newman v. Metropoli- 
 tan Elev. R. Co. 118 N. Y. 618, 23 N. E. 
 901, 7: 289 
 Loss of privacy. 
 
 516. The loss of privacy of premises used 
 as a dwelling, caused by the construction 
 in a street in front of them of an elevated 
 railroad and station, whereby employees and 
 passengers can look into the windows, is 
 an element of damages so far as it depre- 
 ciates the rental value of the premises. 
 Moore v. New York Elev. R. Co. 130 N. Y. 
 523, 29 N. E. 997, 14: 731 
 In Meu of injunction. 
 
 517. The damages for continuing tres- 
 passes by an elevated railroad on easements 
 of light, air, and access, which must be paid 
 to prevent an injunction in favor of a pur- 
 chaser of the premises after the trespasses 
 began, is the difference between the value 
 of the property with and without the rail- 
 road; and the price paid by the purchaser 
 is immaterial. Pappenheim v. Metropolitan 
 Elev. R. Co. 128 N. Y. 436, 28 N. E. 518. 
 
 13:401 
 
 518. The alternative damages in lieu of 
 an injunction in favor of an abutting own- 
 er against the construction and maintenance 
 of a elevated railroad should be the same 
 as would be given in condemnation proceed- 
 ings. Sperb v. Metropolitan Elev. R. Co. 
 137 N. Y'. 155, 32 N. E. 1050, 20: 752 
 
 510. The future discharge of smoke, cin- 
 ders, and noxious gases are items of dam- 
 ages to the easements of abutting owners, 
 to be given in lieu of an injunction against 
 an elevated railroad company. Id. 
 
 520. The damages to the easements of 
 abutting owners caused by the future run- 
 ning of trains should be included in the al- 
 ternative damages to be given in lieu of an 
 injunction in favor of an abutting owner 
 against an elevated railroad. . Td. 
 
 5. In Highway Cases. 
 
 Right to Compensation, see Eminent Do- 
 main, Til. e, 4. 
 
 521. The ownership of the fee of a street 
 subject to the public use is a property right 
 for which the owner is entitled to substan- 
 tial damages, where it is taken by condem- 
 nation proceedings. Re Buffalo, 131 N. Y. 
 293, 30 N. E. 233, 15: 413 
 Establishment of street. 
 
 See also infra, 536, 537. 
 
 522. Only nominal damages can be given 
 on the condemnation of an easement for
 
 DAMAGES, III. 1, 6. 
 
 969 
 
 a village street, where the strip taken is 
 already subject to a private easement of 
 grantees who are entitled to have it kept 
 open for public use, by virtue of deeds of 
 lands abutting thereon which refer to it as 
 a street. Re Glean. 135 X. Y. 341. 32 N. E. 
 9, 17:640 
 
 523. The additional expense to which 
 owners of land taken for a street are en- 
 titled, besides the value of the land, is such 
 as naturally follows the opening of a street, 
 such as a removal of a fence already built, 
 or other like matters. Future and contin- 
 gent expenses like assessments, etc., which 
 will themselves give a benefit for the cost 
 cannot be considered. Detroit v. Beecher, 
 75 Mich. 454, 42 ' X. W. 986, 4: 813 
 
 524. One whose land is takerf for a city 
 street is not entitled to have the cost of 
 grading and paving the street, which will 
 or may thereafter be assessed against him, 
 considered as an element of damages. Id. 
 
 525. One whose land is taken for the 
 opening of a city street is not entitled to 
 have the expense of cleaning snow from 
 sidewalks therein considered as an element 
 of damages. Id. 
 Laying street out across railroad track. 
 
 526. All the damages sustained, and not 
 merely the value of the real estate actual- 
 ly taken, can be recovered by a railroad 
 company under Ind. Rev. Stat. 1894, 
 3629-57, when a street is laid out across its 
 tracks. Terre Haute v. Evansville & T. H. 
 R. Co. 149 Ind. 174, 46 NT. E. 77. 37: 189 
 Widening of street. 
 
 527. The cost of adjusting a bridge erect- 
 ed by a street railway company to carry 
 its tracks over a street crossed by its 
 right of way. to the new width of the cross 
 street after it has been widened by the 
 city under the power of eminent domain, is 
 a proper element of damage to be allowed 
 the company in proceedings to condemn a 
 portion of its property for the purposes of 
 such widening, notwithstanding the com- 
 pany's enabling ordinance provides that the 
 company must erect and maintain a suit- 
 able bridge over the cross street, so as to 
 allow it to be used to its full width. Kan- 
 sas City v. Kansas City Belt R. Co. 102 Mo. 
 633, 14 S. \V. 803, 10: 851 
 Establishing or changing street grade. 
 Evidence as to Amount of Damage, sec Evi- 
 dence, 1342, 1343, 1881. 
 
 See also supra, 524; infra, 550. 
 
 528. Damage for change of grade of a 
 street includes the injury resulting from the 
 raising of a portion of the street b"y a rail- 
 road company in obedience to the ordinance 
 fixing the grade. Hickman v. Kansas City, 
 120 Mo. 110, 25 S. W. 225, 23: 658 
 
 529. Damages occasioned by establishing 
 a grade in a street, on first raising the grade 
 above the natural surface, as well as dam- 
 ago by raising or lowering a grade pre- 
 viously established, must be compensated 
 under a constitutional provision for com- 
 pensation in case of property taken or dam- 
 aged for public use. Id. 
 
 530. The measure of damages for injury 
 *.o property from change of a street -grade 
 
 line is the diminution of the market value 
 caused by the change. Blair v. Charleston, 
 43 W. Va. 62, 26 S. E. 341, 35: 852 
 
 531. Damages to a building, caused by 
 the sliding of the ground under it on re- 
 moval of the lateral support by grading a 
 street, may be included in the damages re- 
 coverable for wrongfully removing such sup 
 port, if the sliding was not caused by the 
 weight of the building. Parke v. Seattle, 5 
 Wash. 1, 31 Pac. 310, 20: 68 
 
 6. Advantages; Offsets, 
 a. In General. 
 
 For Editorial Notes, see infra, V. 17. 
 
 532. The deduction of benefits from dam- 
 ages in case of the exercise of the power of 
 eminent domain by an individual is not im- 
 pliedly authorized by a constitutional pro- 
 vision expressly forbidding such deduction 
 in case of an attempt to exercise the power 
 by a private corporation. Beveridge v. Lew- 
 is, 137 Cal. 619, 70 Pac. 1040, 59: 581 
 
 533. Just compensation for taking part of 
 an entire tract of land for public use can- 
 not be ascertained without considering the 
 damage done to the residue by the separa- 
 tion and benefit immediately accruing there- 
 to. State, Mangles. Prosecutor, v. Hudson 
 County Freeholders (N. J. Sup.) 55 N. J. 
 L. 88, 25 Atl. 322, 17: 785 
 
 534. "General benefits" cannot be consid- 
 ered in determining just compensation for 
 taking a portion of a tract of land for pub- 
 lic use, because they are to arise, if at all, 
 in the indefinite future, and are so uncertain 
 as to be incapable of present estimation. Id. 
 
 535. Property is not damaged so as to re- 
 quire compensation in an eminent domain 
 case, if its price or value has not been de- 
 preciated, although the statute denies the 
 right to set off any benefits or advantages 
 against the compensation for damages. 
 Metropolitan West Side Elev. R. Co. v. 
 Stiekney, 150 111. 362, 37 X. E. 1098, 26: 773 
 Establishment of highway. 
 
 536. "The benefits that will result from 
 such road," within the meaning of a statu- 
 tory, provision as to considering the benefits 
 in estimating damages for a portion of land 
 taken for a road, mean the benefits result- 
 ing when the road is laid out, and not after 
 it is improved. State, Mangles, Prosecutor, 
 v. Hudson County Freeholders (N. J. Sup. t 
 55 X. J. L. 88, 25 Atl. 322, 17: 78-'> 
 
 537. An assessment upon land of the full 
 amount of compensation paid for other land 
 of the owner taken for the purpose of a 
 public highway, together with all the cost, 
 and expense of the condemnation proceed- 
 ings, violates Ohio Const, art. 1, 19, pro- 
 viding that private property shall ever be 
 held inviolate, and. when taken for public 
 use. a compensation therefor shall first be 
 made in money, without deduction for bene 
 fits, which is a limitation upon the power 
 of assessment conferred by art. 13, 6. 
 Cincinnati, L. & X. R. Co. v. Cincinnati, 62 
 Ohio Sfc. 465. 57 X. E. 229. 49: Sfifi
 
 DAMAGES, ill. m. 
 
 Taking land for reservoir. 
 
 )38. The increase in value in land to be 
 taken in condemnation proceedings for res- 
 ervoir purposes, by reason of the fact that 
 a reservoir has been already partially con- 
 structed on adjacent land belonging to the 
 party seeking the condemnation, cannot be 
 taken into account in fixing the owner's 
 compensation. San Diego Land & T. Co. v. 
 Neale, 78 Cal. 63, 20 Pac. 372, 3: 83 
 
 539. The enhancement in value of lands in 
 the neighborhood by reason of having ir- 
 rigation facilities afforded by the construc- 
 tion of a reservoir cannot be considered in 
 determining the amount of compensauum to 
 an owner for land taken for reservoir pur- 
 poses. Id. 
 Removal of lateral support. 
 . 540. The benefit resulting from the im- 
 provement may be considered in assessing 
 the damages resulting from the removal of 
 lateral support from an abutting lot in 
 cutting down and improving a street, un- 
 der a, constitutional provision that private 
 property shall not be taken or damaged for 
 public use without just compensation. 
 Schroeder v. Joliet, 189 111. 48, 59 1ST. E. 550, 
 
 52: 634 
 
 Construction of railroad. 
 Evidence as to Amount of Damages, see 
 
 Evidence, 1875, 1876. 
 See also supra, 515. 
 
 541. General benefit to land not taken 
 cannot be set off against damages to it by 
 the taking of a railway right of way un- 
 der a constitutional provision requiring com- 
 pensation to be made in money and in ad- 
 vance. Beveridge v. Lewis. 137 Cal. 619, 
 70 Pac. 1040, 59: 581 
 
 542. Under the provisions of Kan. Const, 
 art. 12, 4, a railroad company must make 
 full compensation for the right of way ap- 
 propriated to the corporation, irrespective 
 of any benefits, or supposed benefits, from 
 the construction of the road, or any im- 
 provement thereby. Leroy & W. R. Co. v. 
 Ross. 40 Kan. 598, 20 Pac. 197, 2: 217 
 
 543. The benefits which will accrue to 
 property by reason of the construction of a 
 railroad must necessarily be considered in 
 determining the amount of the consequen- 
 tial damages to be allowed to its owner on 
 account of such construction, and their con- 
 sideration for such purpose is not prohibited 
 by the statute which forbids commission- 
 ors, in determining the compensation to be 
 made to owners of property acquired for 
 the construction of railroads, to make any 
 allowance or deduction on account of any 
 real or supposed benefits which the party 
 in interest may derive from the construc- 
 tion of the proposed road. Newman v. 
 Metropolitan Elev. R. Co. 118 "NT. V. fi!8. 23 
 V E. 901, 7: 289 
 
 544. A railroad company in condemning 
 a right of way may stipulate to provide for 
 Ihe ownor certain crossings, and have the 
 damages assessed with reference to the con- 
 dition of the property with such crossings, 
 although the statute does not in terms pro- 
 vi<l.' llinl thp company may rosprvo to the 
 
 landowner such an easement. St. Louis, K. 
 & N. W. R. Co. v. Clark, 121 Mo. 169, 25 S. 
 W. 192, 906, 26: 751 
 
 6. Special Benefits. 
 See also supra, 444. 
 
 545. The fact that other property in the 
 vicinity is also increased in value from the 
 same cause will not justify excluding special 
 benefits from consideration in considering 
 the question of damages in an eminent do- 
 main case. Metropolitan West Side Elev. R. 
 Co. v. Stickney, 150 111. 362, 37 N. E. 1098, 
 
 26: 773 
 
 546. Property enhanced in value by a pub- 
 lic improvement receives special benefits 
 which must be set off against damages, ir- 
 respective of the benefit that may be at- 
 forded by the improvement on other proper- 
 ty. Blair v. Charleston, 43 W. Va. 62, 26 S. 
 E. 341, 35: 852 
 
 547. The rule that benefits deducted in 
 measuring damages in a condemnation case 
 must be special and peculiar and cannot in- 
 clude general benefits shared in common 
 with other property in the neighborhood, in- 
 stead of taking the difference between the 
 value of the property before and after as 
 the measure of damages, applies as well 
 to a case of damaging as to one of taking 
 property. Hickman v. Kansas City, 120 Mo. 
 110, 25 S. W. 225, 23: 658 
 Construction of elevated railroad. 
 
 548. In an action by a lessee of property 
 abutting upon a street through which an 
 elevated railroad is constructed, to recover 
 damages for the permanent impairment of 
 his easement in the street for light, air, and 
 access, the general appreciation of the value 
 of property consequent upon such improve- 
 ment cannot be considered, as it belongs to 
 the property owner, but special and peculiar 
 advantages which tend to increase the rental 
 value of the property are elements which 
 the jury must consider in determining the 
 amount of their award. Newman v. Metro- 
 politan Elev. R. Co. 118 N. Y. 618, 23 N. E. 
 901, 7: 289 
 Construction of viaduct in street. 
 
 549. In estimating the benefits which may 
 be set off against a claim by the owner of 
 lots abutting on a highway for damages re- 
 sulting from the construction of a viaduct 
 in the street, only those can be considered 
 which particularly affect the lots damaged, 
 and not such as are shared in common with 
 other lots not damaged. Spencer v. Metro- 
 politan Street R. Co. 120 Mo. 154, 23 S. W. 
 120. 22: 668 
 Change of street grade. 
 
 550. The benefits to be set off against 
 damages to property from changing the 
 grade in a street include all special benefits 
 enhancing its value but not general bene- 
 fits shared by the property owner in common 
 with others in the community at large. 
 Blair v. Charleston. 43 W. Va. 62, 26 S. E. 
 341, 35:852 
 
 m. In Injunction Cases. 
 
 Right to Damages in Injunction Suit, see In- 
 junction, 4S8 4921'.
 
 DAMAGES, III. n. o, 1. 
 
 971 
 
 Submission of Question to Jury in Action 
 
 on Bond, see Trial, 72. 
 See also supra, 249. 
 For Editorial Notes, see infra, V. 20, 24. 
 
 551. On the partial dissolution of an in- 
 junction, damages may be allowed' under 
 111. Rev. Stat. chap. 69, 12, if the nature 
 of the case requires it and equity demands 
 it. Walker v. Pritchard. 135 111. 103, 25 M. 
 E. 573, 11:577 
 
 552. The insolvency of the maker of a 
 note pending an injunction against a suit 
 upon it will not authorize the assessment 
 as damages, upon dissolution of the injunc- 
 tion, of the whole amount of the claim upon 
 the note, since the court of chancery must 
 allow the suit upon the note to proceed, and 
 consequently the allowance of such damages 
 might subject the maker to two recoveries. 
 
 Id. 
 Counsel fees. 
 
 553. Attorney's fees and like expenses are 
 recoverable on an injunction bond in so far 
 as they relate to services rendered in resist- 
 ing the injunction or procuring its dissolu- 
 tion, although other matters were involved 
 in the litigation. Robertson v. Smith. 120 
 hid. 422, 28 N. E. 857, 15: 273 
 
 554. Counsel fees cannot be assessed as 
 damages on the dissolution of an injunction 
 against suits upon notes, where they were 
 earned in taking testimony upon the ques- 
 tion of the ownership of the notes, which 
 was the principal question involved in the 
 suits enjoined, and the injunction was only 
 ancillary to the principal object of tne suit. 
 Walker v. Pritchard, 135 111. 103, 25 N. E. 
 573, 11: 577 
 
 555. An award of solicitor's fees as part 
 of the damages on dissolution of an injunc- 
 tion cannot be sustained if there is nothing 
 to show what portion of the services was 
 rendered in attempting to procure such dis- 
 solution, as distinguished from those ren- 
 dered in general defense of the suit. Lam- 
 bert v. Alcorn, 144 111. 313, 33 N. E. 53, 
 
 21: 611 
 
 556. Services rendered in attempting to 
 procure a dissolution of an injunction pen- 
 dente lite in a suit to enjoin an increase in 
 the flow of surface water are to be distin- 
 guished from those rendered in making a 
 general defense to the injunction suit, for 
 the purpose of awarding counsel fees as part 
 of the damages occasioned by the injunction. 
 
 Id. 
 
 n. In Trademark and Patent Cases. 
 
 Trademark cases. 
 
 For Editorial Notes, see infra, V. 24. 
 
 557. In an action for damages for the 
 wrongful use of a trade label, in the -ab- 
 sence of proof of the measure of such dam- 
 ages, the plaintiff cannot recover the penalty 
 iriven by Minn. Laws 1885. chap. 178, 4, 
 at least where the fraudulent intent is not 
 shown on the part of defendant. Wat- 
 kins v. Landon. 52 Minn. 389, 54 N. W. 193, 
 
 19: 236 
 
 558. A party whose trademark has been 
 violated is entitled to recover all profits 
 
 realized by the wrongdoer from sales of th- 
 spurious articles, and also all damages re- 
 sulting from such violation. Gato v. El 
 Modelo Cigar Mfg. Co. 25 Pla. 886, 7 So. 23, 
 
 6: 823 
 
 Patent cases. 
 For Editorial Notes, see infra, V. 2*. 
 
 559. The number of infringing article* 
 purchased by defendant for incorporation in 
 to his manufactured product may form the 
 basis of damages in an action for infringe- 
 ment of a patent, where, up to the time of 
 infringement, he had procured all his stock 
 from the patentee, who maintained a strict 
 monopoly, and afterwards deliberately sub- 
 stituted infringing articles for the patented 
 ones, so that the conclusion is reasonable 
 that, in the absence of infringement, he 
 would have purchased the same quantity 
 from the patentee. Rose v. HirSh, 36 C. C. 
 A. 132, 94 Fed. 177, 51:801 
 
 560. The difference between the cost and 
 the selling price of a number of articles 
 equal to those used by the infringer is the 
 proper measure of damages in an action for 
 infringement of a patent, where the expens- 
 es of the patentee are simple and easily 
 computed, as to which he has suppressed no 
 evidence, while defendant has not used evi- 
 dence within his power to show that the al- 
 leged cost is erroneous, while the plaintiff's 
 evidence is corroborated by the cost of the 
 infringing articles. Td. 
 
 o. Mental Anguish. 
 1. Accompanying Physical Suffering. 
 
 Evidence as to, see Evidence, 2045. 
 Allegations as to, see Pleading, 253-256. 
 Relief Allowable under Pleading, see Plead- 
 ing, 107. 
 
 Instructions as to, see Trial, 656, 657. 
 See also supra, 51, 273, 300; JNegligence, 22. 
 For Editorial Notes, see infra, V. 26. 
 
 561. Suffering in mind as well as in body 
 is ground for damages for a personal injury. 
 Chicago v. McLean, 133 111. 148. 24 N. E. 
 527, 8: 765 
 
 562. Mental anguish of a boy nine years 
 old, consisting of grief and sorrow over the 
 loss of his limb and becoming a cripple for 
 life, is a proper element of damages in an 
 action by him for injuries sustained by the 
 alleged negligence of a railway company at 
 a highway crossing. Schmitz v. St. Louis, 
 I. M. & S. R. Co. 119 Mo. 256, 24 S. V, . 472, 
 
 23: 250 
 
 563. Injuries caused by fright or shock 
 resulting from a bodily injury in connection 
 with a railroad collision, the accompanying 
 explosion, fire, and wreck of cars, and the 
 surrounding circumstances directly connect- 
 ed therewith and solely attributable thorc 
 ;o, may be included in a recovery of the 
 damages sustained in the accident. Denver 
 & R. 0. R. Co. v. Roller. 41 O. C. A. 22. 
 100 Fed. 738. 49- 77 
 To passenger. 
 
 [n Absence of Physical Suffering, see infra, 
 III. o, 2, c. 
 
 564. The enhancement, because of fright, 
 of the damages sustained hy a passenppr on
 
 972 
 
 DAMAGES. III. o, 2 
 
 whom a drunken man is thrown in a ear 
 while another drunken man is being re- 
 moved from the car, must be limited to the 
 fright caused by the personal contact with 
 the former, and cannot extend to the fright 
 resulting from the general disturbance. 
 Spade v. Lynn & B. R. Co. 172 Mass. 488, 
 52 N. E. 747, 43: 832 
 
 565. A carrier is liable for nervous shock 
 to a passenger resulting from a jar to the 
 nervous system which accompanies a blow 
 to the person caused by being thrown from 
 a seat through the carrier's negligence, and 
 it is not necessary to show that the shock 
 is the consequence of the blow. Homans v. 
 Boston Elevated Ry. Co. 180 Mass. 456, 62 
 N. E. 737, 57: 291 
 
 566. Mental anguish because of inability 
 to work and properly to support his child is 
 not a proper element of damages to be al- 
 lowed one injured in a railroad accident. 
 Maynard v. Oregon R. & Nav. Co. (Or.) 78 
 Pac. 983. 68: 477 
 
 2. Unaccompanied by Physical Injury, 
 a. In General. 
 
 Allegation as to, see Pleading, 247. 
 
 Right to Recover for Fright or Injuries Due 
 
 Thereto, see Fright. 
 Proximate Cause of Injury by Fright, see 
 
 Proximate Cause, X. 
 See also supra, 250, 274. 
 For Editorial Notes, see infra, V. 12. 15, 
 
 26. 
 
 567. An indignity need not be done to one 
 in the presence of a number of people, in 
 order to entitle the person wronged to re- 
 cover damages for the humiliation and dis- 
 grace suffered. Kansas City, Ft. S. & M. 
 R. Co. v. Little, 66 Kan. 378, 71 Pac. 820, 
 
 61: 122 
 
 568. Damages for the nervous condition of 
 a woman, resulting in an attack of bron- 
 chitis, are too remote to be recovered in an 
 action for the death of her son. Norfolk & 
 W. R. Co. v. Stevens, 97 Va. 631, 34 S. E. 
 525, 46: 367 
 
 569. No damages for injury to feelings 
 can be recovered in an action for conspiracy 
 in pursuance of which the hearse and car- 
 riages were taken away from a funeral just 
 at the time when they were needed, since 
 there is no physical injury witn which the 
 injury to the feelings is connnected. Gatzow 
 v. Buening, 106 Wis. 1. 81 N. W. 1003, 
 
 49: 475 
 
 Breach of contract. 
 As to Telegram, see infra, III, o, 2, b. 
 See also infra, 575-577. 
 
 570. Damages arc recoverable for depri- 
 vation of intellectual enjoyment and for 
 mental suffering, resulting from the breach 
 of a contract. Lewis v. Holmes, 109 La. 
 1030. 34 So. 66, 61: 274 
 
 571. An action cannot be maintained to 
 recover damages merely for an alleged dis- 
 tress of mind, anxiety, mortification, and 
 suspense, resulting from the nonperformance 
 of a contract, without any personal injury 
 
 or pecuniary loss. Wilcox v. Richmond & 
 D. R. Co. 3 C. C. A. 73. 52 Fed. 264, 8 U. 
 S. App. 118. 17:804 
 
 572. That tie depositor had a nervous 
 chill when a protested check was returned to 
 her cannot be considered in awarding dam- 
 ages lor refusal to pay the check. American 
 yt?<vil Bank v. Morey, 113 Ky. 857, 69 S. 
 W. 759, 58: 956 
 As to corpse. 
 
 573. Substantial damages for injury to 
 feelings are recoverable in case of the wrong- 
 ful mutilation of the body of a deceased rel- 
 ative. Koerber v. Patek, 123 Wis. 453, 102 
 N. W. 40, 68: 956 
 
 574. Recovery may be had for injury to 
 the feelings and for mental suffering result- 
 ing directly and proximately from the un- 
 lawful mutilation of the dead body of plain- 
 tiff's husband, although no actual pecuniary 
 damage is shown. Larson v. Chase, 47 Minn. 
 307, 50 N. W. 238, 14: 85 
 
 575. Mental anguish suffered by the next 
 of kin by reason of a breach by a third per- 
 son of his contract with them to safely 
 keep a corpse until they should desire to 
 inter the same may be considered in the as 
 sessment of damages for such breach. Ren- 
 ihan v. Wright, 125 Ind. 536, 25 N. E. 822. 
 
 9:514 
 
 576. Damages for mental distress are re- 
 coverable for negligent delay in the trans- 
 portation of the corpse of plaintiff's hus- 
 band. Hale v. Bonner, 82 Tex. 33, 17 S. W. 
 605, 14: 336 
 
 577. Mental suffering may be considered 
 in assessing the damages against a carrier 
 for breach of its contract to transport a 
 corpse. Louisville & N. R. Co. v. Hull, 113 
 Ky. 561, 68 S. W. 433, 57: 771 
 Ordering from public resort. 
 
 578. Damages for being wrongfully or- 
 dered to leave a place of public resort may 
 include compensation for the sense of wrong 
 suffered, the fettling of humiliation, and the 
 disgrace and ir-eet* 1 eyffynng. Davis v. Ta- 
 coma R. & P. Co. 35 Wash. 203, 77 Pac. 209. 
 
 66: 802 
 Assault. 
 
 579. Damages for mental suffering may 
 be included in the compensation awarded to 
 one upon whom an assault is committed by 
 coercing him into abandoning a house by 
 threats of shooting him with a gun which 
 the assailant points at him. Kline v. Kline, 
 158 Ind. 602. 64 N. E. 9. 58: 397 
 Libel. 
 
 See also supra, 285, 286. 
 
 580. Mental anguish cannot be allowed as 
 a part of the damages in case of a libel 
 which is not actionable per se, without 
 proof of some other injury or damage. 
 Hirshfield v. Ft. Worth Nat. Bank, 83 Tex. 
 452, 18 S. W. 743. 15: 639 
 
 b. From Delay in Delivering Telegram or 
 Transmitting Money. 
 
 Conflict of Laws as to. see Conflict of Laws, 
 
 101. 
 Constitutionality of Provision as to, see 
 
 Constitutional Law. 412.
 
 I) AM AUKS, III. o, 2. 
 
 D73 
 
 Following Stab- Decision ;i* to, see Courts, 
 
 553. 
 
 Evidence as to, see Evidence, 1857. 
 Allegation of Damage, see Pleading, 246. 
 See also Telegraphs, 61, 64. 
 For Editorial Notes, see infra, V. 9, 26. 
 
 581. Mental anguish resulting from fail- 
 ure to promptly deliver a telegram will not 
 support an action against the telegraph 
 company for such failure. Western U. 
 Teleg. Co. v. Ferguson, 157 Ind. 64, 60 N. E. 
 674, 54:846 
 
 582. Damages for mental suffering cannot 
 be recovered for failure to transmit and de- 
 liver a telegram. Francis v. Western U. 
 Teleg. Co. 58 Minn. 252, 59 N. W. 1078, 
 
 25: 406 
 
 583. The sender of a telegraphic message, 
 whose message has been delayed, cannot re- 
 cover damages for mental suffering and an- 
 guish alone, when unmixed with other in- 
 jury. Chase v. Western U. Teleg. Co. 44 
 Fed. 554, 10: 464 
 
 584. Damages for mental distress cannot 
 be recovered for failure to deliver a tele- 
 gram promptly, although the telegraph 
 company was advised that great mental suf- 
 fering and pain would result from such fail- 
 ure. Connell v. Western U. Teleg. Co. 116 
 Mo. 34, 22 S. W. 345, 20: 172 
 
 585. Damages for mental anguish result- 
 ing from simple negligence in the prompt de- 
 livery of a telegram are too uncertain, re- 
 mote, and speculative to be recoverable. 
 Western U. Teleg. Co.- v. Wood. 13 U. S. App. 
 .'!17, 6 C. C. A. 432, 57 Fed. 471, 21: 706 
 
 586. Mental pain and suffering is not an 
 element of damage for which a recovery can 
 be had in an action sounding in tort, but for 
 compensatory damages for the breach of a 
 contract by a telegraph company to prompt- 
 ly send or deliver a telegraphic message. In- 
 ternational Ocean Teleg. Co. v. Saunders, 
 32 Fla. 434, 14 So. 148, 21: 810 
 
 587. Mental anguish independent of and 
 unaccompanied by physical injury of any 
 kind cannot be recovered for delay in deliv- 
 ering a telegram. Peay v. Western U. Teleg. 
 Co. 64 Ark. 538, 43 S. W. 965, 39: 463 
 
 588. The negligent failure of a telegraph 
 company to deliver a message does not au- 
 thorize an action by him to whom it is ad- 
 dressed, to recover for resulting injury to his 
 feelings and affections, when no other injury 
 results. Morton 'v. Western U. Teleg. Co. 
 53 Ohio St. 431, 41 N. E. 689, 32: 735 
 
 589. Damages cannot be recovered for 
 mere mental suffering caused by failure to 
 promptly deliver a telegram, either at com- 
 mon law or under statutes imposing penal- 
 ties for failure to promptly transmit and 
 deliver telegrams, authorizing the recovery 
 of damages sustained by reason of the vio- 
 lation of a statute, and making telegraph 
 companies liable for special damages occa- 
 sioned in transmitting or delivering des- 
 patches, in determining the quantum of 
 which grief and mental anguish may be con- 
 sidered. Connelly v. Western U. Teleg. Co. 
 100 Va. 51, 40 S.'E. 618, 56: o03 
 
 590. Mental anguish and suffering will 
 sustain an action for breach of contract 
 
 promptly to transmit and deliver a tele 
 gram. Cowan v. Western U. Teleg. Co. 122 
 Iowa, 379, 98 N. W. 281, 64: 545 
 
 591. Damages may be allowed for mental 
 suffering for failure to deliver a telegram, 
 although it is not accompanied by physical 
 suffering or injury. Barnes v. Western I . 
 Teleg. Co. 27 Nev. 438, 76 Pac. 931, 65: 66G 
 
 592. Damages for mental suffering, inde- 
 pendent of any physical injury, may be re- 
 covered for negligence in the delivery of a 
 telegram the character of which is known 
 to the telegraph company. Mentzer v. 
 Western U. Teleg. Co. 93 Iowa, 752, 62 N. 
 W. 1, 28: 72 
 
 593. Injury to feelings occasioned by a 
 failure to deliver a message relating to do- 
 mestic affairs, where the failure is the result 
 of negligence of the company or its serv- 
 ants, is an element of actual damages. 
 Western U. Teleg. Co. v. Cooper, 71 Tex. 507, 
 9 S. W. 598, 1 : 728 
 
 594. A telegraph company may be held 
 liable for damages for mental anguish 
 where, by reason of its failure to deliver a 
 telegram, friends fail to meet a sixteen- 
 year-old girl who arrives after midnight in 
 a strange city and is compelled to drive two 
 miles in company with a strange driver in 
 search of their residence. Green v. Western 
 U. Teleg. Co. 136 N. C. 489, 49 S. E. 165, 
 
 67: 985 
 
 Summoning physician. 
 See also supra, 189, 203. 
 
 595. A father cannot recover from a tele- 
 graph company for mental anguish in wit- 
 nessing the suffering of his child because of 
 failure of the company promptly to deliver 
 a telegram summoning the doctor to relieve 
 him, at least where there is nothing on the 
 face of the telegram to apprise the company 
 that, such a claim will be the result of its 
 negligence. Western li. Teleg. Co. v. Reid. 
 27 Ky. L. Rep. 659, 85 S. W. 1171, 70: 289 
 
 596. The death of a child before birth, and 
 the grief and sorrow of the parents occa- 
 sioned thereby, cannot be elements of dam- 
 ages in a suit against a telegraph company 
 for failure to deliver a message to a physi- 
 cian summoning him to attend the mother; 
 but a fair and reasonable consideration 
 should be allowed for any increased pain and 
 mental suffering caused Tier by his absence. 
 Western U. Teleg. Co. v. Cooper. 71 Tex. 507. 
 9 S. W. 598, 1 : 728 
 
 597. A husband can sue for injuries of 
 body and mind sustained by his wife on ac- 
 count of tho failure of a telegraph company 
 to deliver a message to summon a pliysi- 
 cian; but he cannot recover on his own ac- 
 count for his anxiety and sympathy. Id. 
 Summoning minister. 
 
 598. Mental anguish of a father caused 
 by the failure of a minister to reach his 
 daughter until after she was dead, when he 
 had telegraphed for him because of her de- 
 sire for baptism and union with the church, 
 is not without foundation merely because 
 complete church membership could not have 
 been consummated during her life, but may 
 be the basis of a cause of action against tho
 
 DAMAGES, III. p, 1. 
 
 telegraph company. Western U. Teleg. Co. 
 v. Robinson, 97 Tenn. 638, 37 S. W. 545, 
 
 34: 431 
 
 599. A verdict for $500 is not excessive as 
 damages for the mental anguish suffered by 
 a father on account of inexcusable delay in 
 delivering a telegram to a minister of the 
 gospel calling him to the bedside of a 
 daughter who desired baptism and union 
 with the church, where the result was that 
 he failed to come until after she was dead. 
 
 Id. 
 Announcing illness or death. 
 
 600. A grandmother may recover damages 
 for mental anguish for failure promptly to 
 deliver to her a telegram announcing the 
 serious illness of her grandchild. Western 
 U. Teleg. Co. v. Crocker, 135 Ala. 492, 33 So. 
 45, 59: 398 
 
 601. Mental anguish caused by the failure 
 to reach the bedside of a person sick unto 
 death, before death takes place, on account 
 of the negligence of a telegraph company in 
 not delivering a message promptly according 
 to its contract, is a ground for the recovery 
 of substantial damages against the com- 
 pany. Reese v. Western U. Teleg. Co. 123 
 Tnd. 294, 24 N. E. 163, 7: 583 
 Young v. Western U. Teleg. Co. 107 N. C. 
 370, 11 S. E. 1044, 9: 669 
 
 602. Damages on account of mental pain 
 and suffering from failure to deliver a tele- 
 gram in due time cannot be recovered by the 
 person addressed, who is thereby informed 
 of the desperate illness of his brother, and 
 requested to come, although the delay makes 
 it impossible for him to reach his brother 
 before death occurs. Chapman v. Western 
 U. Teleg. Co. 88 Ga. 763, 15 S. E. 901, 
 
 17: 430 
 
 603. Mental suffering sustained by one de- 
 prived of attending the funeral of his broth- 
 er is not an element of damages for failure 
 to deliver a telegram. Western U. Teleg. Co. 
 v. Rogers, 68 Miss. 748, 9 So. 823, 13: 859 
 
 604. Mere disappointment and regret are 
 not included in the rule allowing damages 
 for mental anguish upon failure of a tele- 
 graph company promptly to deliver a death 
 message. Hancock v. Western U. Teleg. Co. 
 137 N. C. 497, 49 S. E. 952, 69: 403 
 
 605. Damages for mental anguish caused 
 by negligent failure to deliver promptly a 
 telegram stating that a person has been 
 killed may be recovered, although the mes- 
 sage is sent by an agent without disclosing 
 who sent it or the relations of the sender 
 with the addressee. Cashion v. Western U. 
 Teleg. Co. 124 N. C. 459, 32 S. K 746, 
 
 45: 160 
 Delay in transmitting money. 
 
 606. Damages cannot be recovered for 
 mental anguish caused by breach by a tele- 
 graph company of its contract to transmit 
 money promptly. Robinson v. Western U. 
 Teleg. Co. 24 Ky. L. Rep. 452. 68 S. W. 656, 
 
 57: 611 
 
 c. Failure of Duty to Passenger. 
 
 See also supra, 218, 223. 304. 564, 565, 576, 
 
 577. 
 For Editorial Xotps. SPP infra. V. 11. 
 
 607. Ignorance of a carrier of the suscep- 
 tibility of a passenger to nervous disturb- 
 ance, and absence of reason to anticipate 
 nervous disorder from an injury, will not 
 prevent its liability if such a disorder is ac- 
 tually caused by its negligence. Sloane v. 
 Southern California R. Co. Ill Cal. 668, 44 
 Pac. 320, 32: 193 
 
 608. The injury inflicted upon a street car 
 passenger through mental suffering, humilia- 
 tion, wounded pride, and disgrace because of 
 the act of the conductor in calling her a 
 deadbeat when she asked for the proper 
 change for money she has tendered in pay 
 ment of fare may be considered in assessing 
 the damages for breach of the carrier's con- 
 tract to return the proper change for money 
 tendered. Gillespie v. Brooklyn Heights R. 
 Co. 178 N. Y. 347, 70 N. E. 857, 66: 618 
 Ejection. 
 
 609. A railroad company is liable in dam- 
 ages for injury to the feelings and sensibili- 
 ties of a passenger, caused by his wrongful 
 expulsion from one of its cars, though he 
 may not have received any physical injury 
 thereby. Mabry v. City Electric R. Co. 116 
 Ga. 624, 42 S. E. 1025, 59: 590 
 
 610. Compensation for shame and morti- 
 fication may be included in damages for un 
 necessary violence and insult in ejecting a 
 passenger for nonpayment of fare. Texas 
 & P. R. Co. v. James, 82 Tex. 306. 18 S. W. 
 589, 15: 341 
 
 p. Loss of Profits. 
 1. In General. 
 
 See also supra, 259, 558. 
 For Editorial Notes, see infra, V. 9, 13, 
 14, 20-25y 2 . 
 
 611. The damages for loss of business 
 caused by an illegal combination of other 
 persons may include the profits which would 
 have been made except for the unlawful in 
 terference. Jackson v. Stanfield, 137 Ind. 
 592, 36 N. E. 345, 37 N. E. 14, 23: 588 
 Due to personal injury. 
 
 Loss of Earning Power and Probable Accu- 
 mulations as Element of Damage, see 
 supra, 346-353. 
 
 See also supra, 301. 
 
 For Editorial Notes, see infra, V. 24. 
 
 612. The profits of a boarding house con 
 ducted by one injured by negligence may be 
 considered in determining her earning power, 
 as an element of damages to be awarded for 
 the injury. Wallace v. Pennsylvania R. Co. 
 195 Pa. 127, 45 Atl. 685, 52: 33 
 Destruction of personal property. 
 
 For Editorial Notes, see infra. V. 24. 
 
 613. The measure of damages in an action 
 against a shipowner to recover damages for 
 his running his vessel upon and partially 
 destroying a fishing net is the cost of re 
 pairing the net and the value of the labor re- 
 quired to reset it, together with the value of 
 its use during the time it is necessarily idle -. 
 prospective profits which might have been 
 realized from a continued use of the net can 
 not be allowed as damages. Wright v. Mul- 
 vanoy. 7S Wis. 80, 46 N. W. 1045, 9: 807
 
 DAMAGES, 111. p, J>. 
 
 075 
 
 Destruction of crops. 
 
 611. Neither the probable yield and net 
 profits from a crop which, at the time of in- 
 jury, was not beyond the blossoming stage, 
 nor the result of sales of similar crops grown 
 on neighboring land during the same season, 
 can be considered in assessing damages for 
 the destruction of the plants by poisonous 
 gases. Horres v. Berkeley Chemical Co. 57 
 S. C. 189, 35 S. E. 500. 52: 36 
 
 Exclusion from land. 
 
 615. The damages recoverable for wrong- 
 ful exclusion by a cotenant from a mine in 
 which plaintiff has an undivided interest 
 consist in the loss of profits that he would 
 have made but for such exclusion. Paul v. 
 Cragnas, 25 Nev. 293, 59 Pac. 857, 60 Pac. 
 983, \ 47:540 
 By exercise of power of eminent domain. 
 Limiting Period for which Losses Allowed, 
 
 see Appeal and Error, 521. 
 See also supra, 482. 
 For Editorial Notes, see infra, V. 17, 
 
 26%. 
 
 616. Future profits of business cannot be 
 considered, for any purpose whatever, in es- 
 timating the damages sustained by the own- 
 er of land which is injured by an exercise of 
 the right of eminent domain. Philadelphia 
 Ball Club v. Philadelphia, 192 Pa. 632, 44 
 Atl. 265, 46:724 
 
 617. Anticipated profits from contemplat- 
 ed use of property taken cannot be consid- 
 ered in estimating the damages to be award- 
 ed in eminent domain proceedings. Hamil- 
 ton v. Pittsburg, B. & L. E. R. Co. 190 Pa. 
 51, 42 Atl. 369, 51< 319 
 
 618. Diminished profits because of removal 
 of a business is not an element of damages 
 to be paid by a railroad company for the 
 taking of the land on which it was formerly 
 carried on. Becker v. Philadelphia & R. T. 
 R. Co. 177 Pa. 252, 35 Atl. 617, 35: 583 
 
 2. From, Breach of Contract. 
 
 See also supra, 127, 231. 
 
 For *xiitorial Notes, see infra, V. 22. 
 
 619. The rule that damages which are un- 
 certain or contingent cannot be recovered 
 does not apply to an uncertainty as to the 
 value of the benefit or gain to be derived 
 from performance, but to an uncertainty or 
 contingency as to whether any such gain or 
 benefit would be derived at all. Blagen v. 
 Thompson, 23 Or. 239, 31 Pac. 647, 18: 315 
 
 620. Profits remote and speculative and 
 incapable of clear and direct proof cannot be 
 recovered; but, when they are the direct and 
 immediate fruits of the contract, they may 
 be; they are then part and parcel of the con- 
 tract itself, entering into and constituting 
 a portion of its very elements. Taylor Mfg. 
 Co. v. Hatcher, 39 Fed. 440. 3: 587 
 
 621. Loss of anticipated profits may be 
 recovered in a proper case for breach of con- 
 tract, in addition to, and not merely as an 
 alternative remedy for, a recovery of the 
 H mount of outlay and expenditures and the 
 value of the time and services spent in reli- 
 ance on the contract. Wells v. National Life 
 Asso. 39 C. C. A. 476. 99 Fed. 222. .',3: 3.1 
 
 (>~2->. The lus.i of profits for the uii]n-i 
 formed part of a contract cannot be includ- 
 ed in the damages recoverable for breach of 
 the contract by mere nonpayment for the 
 part performed, even if that prevented fur- 
 ther performance. Bethel v. Salem Improv. 
 Co. 93 Va. 354, 25 S. E. 304, 33: 602 
 
 623. The party injured by the breach of a 
 contract is entitled to recover all his dam 
 ages, including gains prevented, as well as 
 losses sustained, provided such damages may 
 fairly be supposed to have been within the 
 contemplation of the parties when they 
 made the contract, and are certain both in 
 their nature and in respect to the cause 
 from which they proceed. Hunt v. Oregon 
 P. R. Co. 13 Sawy. 516, 36 Fed. 481, 1:842 
 
 624.. In a suit for damages on alleged 
 breach of a contract whereby the plaintiff 
 agreed, in consideration of certain payments 
 to be made as the work progressed, to con- 
 struct 52 miles of railway, where the de- 
 fendant set up a counterclaim for failure to 
 construct the road, and claimed damages (1) 
 for the loss of the use of the road; (2) for 
 the loss of certain freight which it had made 
 arrangements to carry over the road; (3) 
 for the sum it will cost to complete the road 
 in excess of the contract price, the last two 
 clauses were stricken out of the counter- 
 claim, the one as arising on a collateral con 
 tract not within the contemplation of the 
 parties, and the other .as being uncertain 
 and also contingent on the future construc- 
 tion of the road by the defendant. Id. 
 
 625. When there have been part perform- 
 ance and expenditures properly made by 
 one of the parties to a contract which is 
 broken by fault of the other party, the 
 party performing may recover his reasonable 
 expenditures. He may also recover the prof- 
 its of the contract, if he proves that direct, 
 as distinguished from speculative, profits 
 would have been realized. If the expendi 
 tures of the party not at fault are unrea 
 sonable, it is the duty of the opposite party 
 to show it. Taylor Mfg. Co. v. Hatcher, 39 
 Fed. 440, 3: 587 
 
 626. The leading English case announces 
 the rule of damages thus: "When two par- 
 ties have made a contract which one of them 
 has broken, the damages which the other 
 party ought to receive in respect to such 
 breach of contract should be such as ma\ 
 fairly and reasonably be considered either aa 
 arising naturally i. e., accofding to the 
 usual course of things from such breach of 
 contract itself, or such as may reasonably be 
 supposed to have been in the contemplation 
 of both parties at the time they made the 
 contract, as the probable result of breach of 
 it. Id. 
 
 627. Where, by the wrongful action of a 
 party, the profits of a contract have been 
 prevented, all recovery therefor will not bo 
 defeated because exact and absolute proof is 
 unattainable; and, in view of the tortiou* 
 refusal of the party at fault to perform its 
 contract, the party injured is permitted to 
 show the particular facts which have trans- 
 pired, and the entire transaction upon whicli 
 tlio rlnim and exportation of profits nrt-
 
 976 
 
 DAMAGES. III. q. 
 
 founded, in order to prove with reasonable 
 certainty what the profits would have been. 
 
 Id. 
 
 628. The true measure of damages for the: 
 breach, by the owners of a fair ground, of a 
 contract made when renting ground upon 
 which a candy stand is to be located, not to 
 rent ground for competing stands within 
 designated limits, is the difference in the 
 rental value of the ground when unoccupied 
 by competing stands and when so occupied. 
 The profits which could have been realized 
 upon goods that were not sold in conse- 
 quence, as alleged, of the competition of ri- 
 val sellers, are too speculative and remote. 
 Montgomery County U. Agri. Soc. v. Har- 
 wood, 126 Ind. 440,* 26 N. E. 182, 10: 532 
 
 629. The measure of damages in favor of 
 a contractor who is obliged by the acts or 
 negligence of his employer to abandon his 
 contract is the profits which he would have 
 earned had he been able to complete the 
 contract. Lynch v. Sellers, 41 La. Ann. 375, 
 6 So. 561, 5: 682 
 
 630. The loss of the profits or gains of a 
 contract for land, which the purchaser is 
 obliged to surrender because of the failure 
 to construct a motor railway in accord- 
 ance with a contract made with him by a 
 third person who knows that his object in 
 the latter contract is to enhance the value of 
 the land, may be included in the damages 
 for breach of the contract to build the road. 
 Blagen v. Thompson. 23 Or. 239. 31 Pac. 647, 
 
 18: 315 
 
 With insurance agent. 
 Opinion Evidence as to, see Evidence, 1327. 
 
 631. Loss of profits that would have been 
 realized by a general agent of an insurance 
 ompany in carrying out his contract, which 
 gave him an exclusive agency for a certain 
 territory, may be included in the damages 
 recoverable for breach of the contract by the 
 company in putting other agents into his 
 territory. Wells v. National Life Asso. 39 
 C. C. A." 476. 99 Fed. 222. 53: 33 
 
 632. In estimating the loss of profits 
 which may be recovered by a general insur- 
 ance agent who had an exclusive agency for 
 a certain territory, with a right to a per- 
 centage on all first and renewal premiums 
 on policies taken by himself or his agents, 
 and who was himself required to bear all 
 the expenses of the business, the jury may 
 i-onsider the renewals from year to year 
 luring the life of the contract on all policies 
 written by him or his agents, and the first 
 premiums and probable renewal* on all 
 policies written by the company after 
 breach of the eontrax-t in that territory, de- 
 ducting therefrom the current expenses and 
 the value of the personal services which the 
 business would have cost him if he had done 
 it. since the standard for measuring his 
 interest in the contract is fixed by its terms. 
 
 Id. 
 
 By seller. 
 For Editorial Notes, see infra. V. 22, 23. 
 
 633. The measure of damages in case one 
 believing that he has a right to convey real 
 estate contracts in good faith to do so. but 
 i? prevented from fulfilling his contract by 
 
 failure of title, is the amount of the advance 
 payment, with interest, and not the alleged 
 profit which would have accrued from the 
 purchase. Morgan v. Bell, 3 Wash. 554, 28 
 Pac. 925, 16: 614 
 
 634. Extraordinary and unusual profits 
 lost by a purchaser of goods on account of 
 the vendor's failure to comply with his 
 agreement cannot be recovered as damages, 
 although the vendor knew that the goods 
 were bought to fill a previous contract with 
 a third person, if he did not know the price 
 which was to be obtained under it, and could 
 not reasonably have been presumed to have 
 had in contemplation a price which would 
 yield such profit. Guetzkow Bros. Co. v. A. 
 H. Andrews & Co. 92 Wis. 214, 66 N. W. 119, 
 
 52: 209 
 
 635. A reasonable and fair profit lost by 
 a purchaser of goods who bought them to 
 fill another contract may be recovered as 
 damages for the failure of the vendor to 
 comply with his agreement, if he knew for 
 what the goods were bought, although he did 
 not know the price that was to be obtained 
 by the vendee under his contract with the 
 third person. Id. 
 
 636. Lost profits on the entire lot of ma- 
 chines cannot be recovered for failure to 
 manufacture them according to the specifica- 
 tions of the contract, where one. at least, 
 has been accepted and paid for. J. Thomp- 
 son Mfg. Co. v. Gunderson. 106 Wis. 449, 82 
 N. W. 299, 49: 859 
 
 637. The damages recoverable from one 
 who sells poisonous coloring matter to be 
 used, in the manufacture of ice cream, rep- 
 resenting it to be harmless, may include the 
 value of the cream ignorantly spoiled by its 
 use, and also compensation for loss of busi- 
 ness by the manufacturer which results 
 from his innocently delivering the poisoned 
 cream to his customers. Swain v. Schi^ffe- 
 lin, 134 N. Y. 471, 31 N. E. 1025, 18. 385 
 By purchaser. 
 
 For Editorial Notes, see infra, V. 22. 23. 
 
 638. Where a person agreeing to purchase 
 lumber to be sawed by another notifies the 
 latter that he will not perform the contract, 
 after the latter has purchased the logs, but 
 before any have been sawed, the rule of 
 damages is the profit which the latter would 
 have made on the contract had he been 
 permitted to perform. Cameron v. White, 
 74 Wis. 425, 43 N. W. 155, 5: 493 
 
 q. Time for Which Recoverable; Prospective. 
 
 Splitting Cause of Action for Continuous 
 
 Injury, see Action or Suit, II. c. 
 Instructions as to, see Trial, 771, 773. 
 See also supra, 482-485, 507, 523-525. 
 For Editorial Notes, see infra, V. 17. 
 
 639. In an action of assumpsit for week- 
 ly benefits due from a relief association, re- 
 covery can be had only for what was due at 
 the time the writ issued. Baltimore & O. 
 Employees' Relief Asso. v. Post. 122 Pa. 579, 
 15 Atl. 885, 2: 44 
 
 640. One who acquires an invalid title to 
 the fee of lands which have been condemned 
 for railroad purposes and afterwards ap-
 
 DAMAGES, III. r, s. 
 
 97? 
 
 plied to other uses, and who subsequently 
 brings suit upon such title and recovers a 
 judgment for the land against the holder of 
 the legal title, can recover rent for such 
 pre'iiises only from the time his suit was 
 brought, and not from the time he first 
 claimed title. Lvon v. McDonald, 78 Tex. 
 71. 14 S. W. 261, 9: 2'.ir> 
 
 Personal injury cases. 
 For Editorial Notes, see infra. V. 11. 
 
 (iil. Damages for loss of service because 
 of personal injuries include prospectrve dam- 
 ages. Dollard v. Roberts, 130 N. Y. 269, 29 
 N. K. 104, 14: 238 
 
 i>42. Prospective damage by the impair- 
 ment of plaintiff's capacity for earning a 
 livelihood after his majority is a proper ele- 
 ment in an action for personal injuries by a 
 minor nine years old, although his petition 
 contains no specific allegation in regard 
 1 hereto, and there is no direct evidence on 
 ihe subject. Schmitz v. St. Louis, I. M. cV 
 S. R. Co. 119 Mo. 250. 24 S. W. 472, 23: -250 
 
 r.43. Pain and suffering that may reason- 
 ably be expected in the future may be con- 
 -idered in giving damages for personal inju- 
 ries, if the evidence shows that they will be 
 experienced as a result of the injury. 
 Keener v. Long Island R. Co. 116 IS. Y. 375, 
 22 X/E. 402, 5: 544 
 
 c.44. One injured by the negligence of an- 
 other can recover only for such future pain 
 us the evidence shows she is reasonably cer- 
 tain to endure, and not for such as there is 
 a reasonable probability that she will en- 
 dure. Smith v. Milwaukee Builders' & T. 
 Exch. 91 Wis. 360, 64 N. W. 1041, 30: 504 
 
 (i !">. Damages for future suffering because 
 of a negligent injury may be allowed where 
 plaintiff is still suffering at the time of trial, 
 and experts testify that the injury will 
 probably be permanent. Cotant v. Boone 
 Suburban R. Co. 125 Iowa, 46, 99 N. W. 115, 
 
 69: 982 
 
 ii4G. The shortening of the expectancy of 
 life by personal injuries does not constitute 
 an element of damages recoverable by the 
 person injured. Richmond Gas Co. v. Baker. 
 146 Ind. 000.. 43 X. E. 1040. 36: 683 
 
 Assault. 
 
 647. Plaintiff may recover in an action for 
 damages for an assault and battery such 
 damages as are the natural result of his in- 
 jury, without specific averment, though such 
 damages accrue after the commencement of 
 the suit, Morgan v. Kendall, 124 Ind. 454, 
 24 N 7 . E. 143, ^ 9: 445 
 
 Railroad embankment. 
 
 iMS. Damages may be recovered for the 
 entire injury to abutting property by a rail- 
 road embankment in a street; and the re- 
 covery is not limited to such damages as had 
 been 'sustained up to the commencement of 
 the action. Highland Ave. & B. R. Co. v. 
 Matthews, 99 Ala. 24, 10 So. 267, 14: 462 
 
 649. Both present and prospective damages 
 can be recovered in a single action for fail- 
 ure to make sufficient passageway for water 
 through a railroad embankment, provided 
 that either party to the action demands 
 that permanent damages be assessed. Ridley 
 v. Seaboard & R. R. Co. 118 N. C. 996, 24 
 S. K. ::>. 32: 708 
 
 L.R.A. Dig. 62. 
 
 Maintenance of nuisance. 
 
 See also supra, 443; Evidence. 423. 
 
 650. In an action for damages for the 
 maintenance of a nuisance on premises ad- 
 joining plaintiff's property, only the dam- 
 ages which have accrued prior to the com- 
 mencement of the action can be recovered. 
 Aid worth v. Lynn, 153 Mass. 53, 26 N. E. 
 229, 10: 210 
 
 651. Damages for injuries after the com- 
 mencement of a suit cannot be given in an 
 action for a continuing nuisance, such as a 
 roof and eaves trough so placed as to send 
 water against plaintiff's house upon the oc- 
 currence of every rain storm. Joseph 
 Schlitz Brewing Co, v. Compton, 142 111. 511, 
 32 N. E. 693, 18:390 
 
 652. Damages for an alleged negligent con- 
 struction of a sewer, in consequence of which 
 plaintiff's premises are injured by discharge 
 therefrom, must be limited to the actual 
 damage sustained up to the time of bringing 
 suit, and cannot include prospective dam- 
 ages, on the ground that the defects are per- 
 manent, although human labor will be neces- 
 sary to remedy the defects. Nashville v. 
 Comer, 88 Tenn. 415, 12 S. W. 1027, 7 : 465 
 
 r. Counsel Fees. 
 
 In Injunction Case, see supra, 553-556. 
 See also supra, 258. 
 
 653. Counsel fees incurred in defending the 
 title cannot be included in the damages to 
 be awarded for breach of warranty of real 
 estate, unless the covenantor has been noti- 
 fied to come in and defend. Wiggins v, Pen- 
 der. 132 N. C. 628, 44 S. E. 362, 61: 772 
 
 654. Counsel fees expended in good faith 
 in an effort to recover the money are not 
 properly part of the damages to be recov- 
 ered from a telegraph company by a bank 
 which nas been induced to pay out money by 
 a false telegram forwarded by an employee 
 of the company, either at common law or 
 under a statute allowing as damages for the 
 conversion of property a fair compensation 
 for the money properly expended in pursuit 
 of it. Pacific Postal Teleg. Cable Co. v. 
 Bank of Palo Alto, 48 C. C. A. 413. 109 Fed. 
 369, 54: 711 
 
 s. Mitigation; Reduction. 
 
 Effect of Wrong Medical Treatment, see su- 
 pra, 308-310. 
 
 Effect of Prior Disease or Infirmity, see su- 
 pra. 311-317. 
 
 In Breach of Promise Suit, see Evidence, 
 2118. 
 
 Burden of Proving Opportunity to Reduce, 
 see Evidence, 228. 
 
 Evidence in Mitigation, see Evidence, 2118, 
 2165, 2166. 
 
 Demurrer to Answer Pleading Matter in, see 
 Pleading, 602. 
 
 In Case of Aggravation of Injury, see Phy- 
 sicians and Surgeons, 56. 
 
 See also supra. 127, 327. 
 
 For Editorial Notes, see infra, V. 19. 22. 
 27. 
 
 655. The doing of any act which prevents 
 or retards the recovery of a person who has
 
 978 
 
 DAMAGES, III. t, u. 
 
 been injured by the negligence of another is 
 not of itself a ground for reduction of dam- 
 ages, unless the act was negligent. Salla- 
 day v. Dodgeville, 85 Wis. 318, 55 N. W. 696, 
 
 20: 541 
 
 656. The fact that a person other than the 
 wrongdoer, as a mere gratuity, pays to one 
 negligently injured a sum of money equal to 
 the amount he would have earned had he 
 been able to work during the period of dis- 
 ability, will not mitigate the damages due 
 by the wrongdoer to the injured party for 
 lost time, even though the person making 
 the payment is the employer of the injured 
 party. Nashville, C. & St. L. R. Co. v. Mil- 
 ler, 120 Ga. 453, 47 S. E. 959, 67: 87 
 
 657. A newspaper article which upon its 
 face purports to be derived from sources 
 other than the writer's own knowledge need 
 not necessarily state the sources of informa- 
 tion, in order to permit the publisher, when 
 sued thereon, to allege and prove mitigating 
 circumstances showing that he acted in good 
 faith upon apparently reliable information. 
 Fenstermaker v. Tribune Pub. Co. 12 Utah, 
 439, 13 Utah, 532. 43 Pac. 112, 45 Pac. 1097. 
 
 35: 611 
 
 658. Slanderous words not published, 
 spoken by plaintiff concerning defendant in 
 a slander suit of which defendant was igno- 
 rant when he spoke the words which form 
 the basis of the action, cannot be considered 
 by the jury for the mitigation of even puni- 
 tive damages. Gambrill v. Schooley, 95 Md. 
 260, 52 Atl. 500, 63: 427 
 
 659. Mitigation of damages for fraud in 
 representing the title of mortgaged property 
 to be perfect, on the faith of which mort- 
 gage bonds were purchased, when in fact 
 there was a prior mortgage thereon, cannot 
 be claimed by virtue of the tender of a dis- 
 charge on the trial of the action, after the 
 expiration of a long time, when the market 
 for the bonds may have changed. Nash v. 
 Minnesota Title Ins. & T. Co. 163 Mass. 574. 
 40 N. E. 1039, 28:753 
 
 660. That a telephone company has not 
 the means to supply service to one applying 
 for it may be shown in mitigation of dam- 
 ages for refusal to comply with its duty in 
 that regard, but not in justification thereof. 
 Gwynn v. Citizens' Teleph. Co. 69 S. C. 434, 
 48 S. E. 460, 67: 111 
 
 661. Going upon a railroad track without 
 looking and listening, even after a train has 
 just passed, and continuing thereon uncon- 
 scious of danger until overtaken and injured 
 by a section of the train which has become 
 detached and is being propelled by the force 
 of gravitation, is negligence which must be 
 allowed in mitigation of damages, even if 
 the jury think it was not the proximate 
 cause of the accident. Patton v. East Ten- 
 nessee, V. & G. R. Co. 89 Tenn. 370, 15 S. W. 
 919, 12: 184 
 Provocation. 
 
 See also supra, 75. 
 
 662. Words of provocation may be consid- 
 ered in mitigation of punitive, but not com- 
 pensatory, damages. Mahoning Valley R. 
 Co. v. DC Pascale (Ohio) 71 N. E. 633, 
 
 65: 860 
 
 663. Mere provocation, which does not 
 amount in law to a justification, cannot mit- 
 igate actual or compensatory damages for 
 assault and battery. Goldsmith v. Joy. 61 
 Vt. 488, 17 Atl. 1010, 4: 500 
 
 664. In an action for personal tort, tlie 
 compensatory damages which may be re- 
 covered from the principal for the wrongful 
 and unlawful act of its agent are not subject 
 to mitigation, nor is the liability of the 
 principal for such damages defeated, by 
 proof that the act which caused the injury 
 was provoked or induced by abusive lan- 
 guage used by the plaintiff to such agent. 
 Mahoning Valley R. Co. v. De Pascale, 
 (Ohio) 71 N. E. 633, 65: 860 
 Effect of insurance. 
 
 Retrospective Statute as to, see Statutes, 
 
 540. 
 
 See also Parties, 17. 
 For Editorial Notes, see infra, V. 27. 
 
 665. The fact that property destroyed by 
 fire set by a railroad engine was insured does 
 not affect the owner's right to recover dam- 
 ages from the railroad company under a 
 statute making the company liable for dam- 
 ages thus caused. Peter v. Chicago & W. M. 
 R. Co. 121 Mich. 324, 80 N. W. 295, 46: 224 
 
 t. Aggravation. 
 
 Effect of Wrong Medical Treatment, see su- 
 pra, 308-310. 
 
 Effect of Prior Disease or Infirmity, see su- 
 pra, 311-317. 
 
 At to Preventing Unnecessary Amount, see 
 supra, 11-19. 
 
 Effect on Right of Action for Death, of Ag- 
 gravation of Incurable Disease, see 
 Death, 49. 
 
 As Bar to Recovery, see Negligence, 187, 188. 
 
 Effect of Aggravating Injury, see Physicians 
 and Surgeons, 56, 57. 
 
 Instruction as to. see Trial, 767. 
 
 See also supra, 327, 432. 
 
 666. A plea of the truth in an action for 
 libel, although not proved, will authorize an 
 aggravation of damages, under a statute 
 which allows both the truth and matter in 
 mitigation to be pleaded, only when the plea 
 is not made in good faith, with an expecta- 
 tion of proving it. Upton v. Hume, 24 Or. 
 420, 33 Pac. 810, 21: 493 
 
 667. An unsustained justification in an ac- 
 tion for publication of libel is evidence of 
 malice and an aggravation of the wrong. 
 Coffin v. Brown. 04 Md. 190, 50 Atl. 567, 
 
 55: 732 
 
 668. It is not a ground of aggravation of 
 damages in an action for breach of promise 
 of marriage, that the answer alleges the un- 
 chaste or bad character or reputation of 
 plaintiff, and that no proof is offered upon 
 that subject, unless such allegations are 
 made in bad faith. Albertz v. Alberts. 78 
 Wis. 72, 47 N. W. 95, 10: 584 
 
 u. Apportionment. 
 
 Where Both Parties Are Negligent, see Neg- 
 ligence, 191, 291. 
 
 609. Negligently sitting within the bight
 
 DAMAGES, IV., V. 
 
 979 
 
 of a hawser which is subject to strain will 
 bring one within the admiralty rule of ap- 
 portionment of damages in case both parties 
 are in fault, where, by reason of the negli- 
 gence of the vessel, the strain is put upon 
 the line in such a way that the bitt around 
 which it runs gives way and he is thrown 
 overboard by the sweeping forward of the 
 line. Steam Dredge No. 1, 67 C. C. A. 67, 
 134 Fed. 161, 69: 293 
 
 IV. Assessment; Treble Damages. 
 
 Right to Jury Trial on Assessment, see 
 
 Jury, 9, 10. 
 When Double Damages Allowable under 
 
 Pleading, see Pleading, 108. , 
 See also supra, 51. 
 
 670. Where treble damages are allowed, 
 the proper practice is for the jury to find 
 such damages as they think proper, and then 
 for the court to enhance the amount to meet 
 the statutory requirements. Broschart v. 
 Tuttle, 59 Conn. 1, 21 Atl. 925, 11: 33 
 
 V. Editorial Notes. 
 a. General principles. 
 
 i. Generally. 
 
 General rule against allowance of remote 
 damages. 3:587;* 6: 
 230.* 
 
 Conflict of laws as to measure of damages. 
 56: 301. 
 
 For results too remote. 3: 587;* 6: 230.* 
 
 Power of appellate court to interfere with 
 verdict for excessive dam- 
 ages. 26: 384. 
 
 Inadequacy of damages as ground for set- 
 ting aside verdict. 47: 33. 
 
 Necessity of admitting quantum of damages 
 in order to change burden 
 of proof and right to open 
 and close. 61: 555. 
 
 2. Liquidated damages; penalty. 
 
 When liquidated. 6:551;* 10:826;* 13: 
 671.* 
 
 Set-off of unliquidated damages in bank- 
 ruptcy cases. 55: 37. 
 
 Liquidated damages and penalty distin- 
 guished. 13: 671.* 
 
 Penalty as limit of liability on statutory 
 bond. 55: 381. 
 
 3. Enhanced damages; duty to minimize. 
 
 Effect of previous disease of person injured 
 on liability for causijig the 
 injuries. 'l6: 268. 
 Causing death of diseased person. 
 
 16: 269. 
 
 Limitations and exceptions to general 
 rule. 16:269. 
 
 Duty to minimize. 1:76;* 6:454.* 
 
 b. Punitive or exemplary. 
 
 4. Generally. 
 
 For tort, generally. 9: 445;* 13: 600.* 
 
 For negligence, generally. 11:43.* 690;* 
 
 17: 72.* 
 In cases other than for personal injuries. 
 
 13: 600.* 
 
 Carrier's liability for. 1: 682;* 13: 600.* 
 Liability for, of newspaper proprietor for 
 libel published without his 
 knowledge 1 or consent. 26: 
 779. 
 
 c. Compensatory damages. 
 i. Breach of contracts. 
 
 5. Generally. 
 
 Loss of Profits as an Element of Damages 
 for, see infra, V. 21- 
 
 General rules. 2: 766.* 
 
 General rule that damages recoverable must 
 
 be the natural and proxi- 
 
 mate consequence o f 
 
 breach. 3: 587.* 
 Special circumstances known to both par- 
 
 ties. 3: 589.* 
 Damages recoverable by building contractor 
 
 on breach of contract. 5: 
 
 275.* 
 
 Contract to convey. 4 : 670.* 
 On breach by seller. 3: 589.* 
 On breach by purchaser. 3: 589.* 
 For breach of implied warranty on contract 
 
 of sale. 18: 385. 
 Refusal of benefit society to levy assess- 
 
 ment. 2: 780.* 
 Dishonor of check. 15: 134. 
 Breach of promise of marriage. 10: 585.* 
 Seduction as an element of. 10: 585. 
 Carrier's failure to transport goods. 9: 
 
 451.* 
 Carrier's default or delay as to transporta- 
 
 tion of passenger. 32: 545. 
 For pledgee's conversion of property by in- 
 
 valid sale. 43: 768. 
 Measure of recovery for damages to goods 
 
 received for cold storage. 
 
 52: 108. 
 For breach of contract to loan or advance 
 
 money. 37: 233. 
 
 Contract to deliver goods. 1 : 656.* 
 6. For breach of covenant. 
 Covenant against encumbrance. 3: 791.* 
 
 Nominal damages. 3: 792.* 
 Voluntary covenant. 13: 723.* 
 Implied warranty. 18: 385. 
 Recoupment of damages for breach of war- 
 
 ranty. 1: 339.* 
 
 Covenant in grant of water power. 67: 405. 
 7. For breach of contract of employment. 
 Wrongful discharge from service. 3: 137;* 
 
 5: 759.* 
 Contract of permanent employment. 35: 
 
 516. 
 Where contract for services terminated by 
 
 insolvency and dissolution 
 
 of corporation. 09: 126. 
 8. For breach of contract of sale of article 
 
 having no market price. 
 Breach of vendor. 57: 193. 
 
 General rules as to recovery. 57: 193. 
 Measure of damages. 57: 195. 
 
 In case of total absence of market. 
 
 57: 195. 
 When goods were obtainable at 
 
 other markets. 57: 197.
 
 980 
 
 DAMAGES, V. (Ed. Notes ) 
 
 When goods were obtainable at 
 
 other times. 57: 198. 
 When purchased for special pur- 
 pose. 57: 198. 
 Duty of vendee to avoid or reduce 
 
 injury. 57: 202. 
 Breach by vendee. 57: 204. 
 
 Rule in the entire absence of a market. 
 
 57 : 204. 
 Rule where neighboring market may be 
 
 reached. 57: 205. 
 Determination as to existence or condition 
 
 of market. 57: 205. 
 
 Damages measured by profits lost. 57: 206. 
 9. Telegraph cases. * 
 Law governing. 63: 532. 
 For neglect of duty to deliver telegram. 7: 
 
 583;* 9: 669;* 10: 515.* 
 For nondelivery of telegram sent after office 
 
 hours. 53: 738. 
 
 Injury to feelings caused by neglect of duty 
 to transmit or deliver. 2: 
 767;* 9: 669;* 13: 859.* 
 Loss of profits as an element. 53: 91. 
 
 2. Torts and negligence. 
 
 10. Generally. 
 
 Lo^s of Profits as an Element of Damages 
 for, see infra, V. 24. 
 
 Allowance of Punitive or Exemplary Dam- 
 ages, for, see supra, V. 4. 
 
 Law governing measure of damages for. 
 56: 312. 
 
 Rule of damages for negligent acts or omis- 
 sions. 11:690.* 
 
 For withholding or destroying evidence to 
 which adversary is enti- 
 tled. 34: 589. 
 
 Measure of damages for misconduct of em- 
 ployee toward passenger. 
 3: 735.* 
 
 For wrongful ejection from car. 1:667;* 
 3: 733.* 
 
 For libel or slander by wife. 30: 529. 
 
 For malicious prosecution. 4: 255.* 
 
 For breach of duty by directors. 55: V74. 
 
 n. Bodily injuries. 
 
 As to Punitive or Exemplary Damages, see 
 supra, V. 4. 
 
 Law governing measure of damages for. 
 56: 312. 
 
 Continuing effect of injury. 11: 45.* 
 
 Pain and suffering. 11: 45.* 
 
 Value of time lost. 11: 45.* 
 
 Expenses of nursing and medical attend- 
 ance. 11: 46.* 
 
 Damages probable in the future. 11: 46.* 
 
 Impaired capacity for work or business. 11: 
 "46.* 
 
 Considering occupation of plaintiff. 11 : 46.* 
 
 Award of damages within discretion of jury. 
 11: 46.-"' 
 
 When verdict set aside as excessive. 11: 47.* 
 
 Setting aside for inadequacy. 11: 50.* 
 
 Compensation for pain. 12: 6!)S.* 
 
 Mental suffering as an element. 12: 698.* 
 
 Remote and sentimental consideration. 12: 
 6!)9.* 
 
 Value of time lost: expenses of nursing and 
 medical attendance. 10: 
 794;* 11: 43.* 
 
 Recovery of damages for miscarriage 32: 
 
 142. 
 
 Measure of damages recoverable from land- 
 t lord for injury to tenant 
 
 from defect in premises. 
 34: 831. 
 
 Excessive verdicts in suits for damages for 
 
 personal injuries. i4: 677. 
 
 Effect of previous disease of person injured. 
 
 16: 268. 
 
 Extent of trespasser's liability for, as a con- 
 sequential injury. 53: 631. 
 12. Death. 
 Generally. 17: 71. 
 Aggravation of existing disease allowed for, 
 
 in damages. 17: 71. 
 
 Pecuniary loss only recoverable. 17: 71. 
 Pain and suffering. 17: 72. 
 Exemplary and punitive damages. 17: 72. 
 State statutes construed. 17: 73. 
 Contributive causes of death. 17: 76. 
 Action for death of relative. 17: 76. 
 Of husband. 17: 76. 
 For death of wife. 17: 77. 
 For death of cousin. 17 : 77. 
 Action by parent for death of child. 
 
 17: 77. 
 
 Loss of child's services. 17: 79. 
 For death from sale of intoxicating liquor. 
 
 3: 327.* 
 
 Mental anguish as an element. 13: 860.* 
 Effect of benefit from other source to miti* 
 
 gate damages. 67: 91. 
 Interest on sum allowed as damages. 18: 
 
 449. 
 Law governing measure of damages for. 
 
 15: 585; 56: 312. 
 
 Differences as to amount of recovery as af- 
 fecting action for death 
 based on statute of an- 
 other state. 56: 205. 
 
 13. Injury to personal property; conver- 
 sion. 
 
 Measure of damages for injury to personal 
 property, generally. 6: 
 454.* 
 
 Extent of liability of municipality for prop- 
 erty destroyed bv mob. 
 24:' 595. 
 For conversion. 1: 306;* 2: 449.* 
 
 Loss of profits as element of. 52: 51. 
 14. Injury to, or detention of, real prop- 
 erty. 
 
 Cost of restoration as measure of. 17: 426. 
 For cutting off access of riparian owner to 
 navigable waters. 15: 
 618. 
 
 To abutting owner for laying street rail- 
 wav near side of street. 
 43:^560. 
 
 Measure of damages for breach of duty by 
 municipality with respect 
 to drainage. 61: 7J2. 
 For removal of lateral support. 68: 701. 
 Prospective. 68: 701. 
 Diminished market value. 68: 703. 
 Value of soil lost. 68: 705. 
 Restoration to original condition. 68: 
 
 706. 
 
 Repairs. 68: 706. 
 Cost of retaining wall. 68: 706.
 
 DAMAGES, Y. (Ed. Notes.) 
 
 981 
 
 Adapting property to new level. 68 i 
 
 707. 
 
 Collateral direct injuries. 68: 707. 
 For injury to, or destruction of, trees. 15: 
 
 612; 19: 653. 
 Effect of the cutting upon the title. 
 
 19: 653. 
 
 Replevin. 19: 654. 
 Trover. 19: 654. 
 Trespass de bonis. 19: 656. 
 Trespass quare clausum. 19: 656. 
 Special and statutory actions. 19: 657. 
 Injury to fruit trees. 19: 658. 
 Injury to shade trees. 19: 658. 
 Injury by fire. 19: 659. 
 Loss of profits as element of damages for 
 
 trespass. 52: 42. 
 
 Extent of liability of municipality <f or prop- 
 erty destroved by mob. 
 24:' 595. 
 15. Extent of trespasser's liability for 
 
 consequential injuries. 
 In general. 53: 626. 
 
 Consequential injuries to property. 53: 627. 
 In general. '53: 627. 
 From removal of fence. 53 : 629. 
 In general. 53: 629. 
 Loss of stock. 53: 629. 
 Injuries to crops. 53: 630. 
 Caused by third persons. 53: 631. 
 Consequential injuries to the person. 53: 
 
 '631. 
 
 In general; health. 53: 631. 
 Mental suffering. 53: 632. 
 Fright and its consequences. 53: 633. 
 Injury to reputation. 53: 634. 
 
 3. Nuisance. 
 
 16. Generally. 
 
 Rule as to damages from. 13: 322.* 
 
 For pollution of stream. 7: 457.* 
 
 4. Condemnation or depreciation in value by 
 eminent domain. 
 
 17. Generally. 
 
 Measure of damages in condemnation of 
 land for railroad pur- 
 poses, generally. 2: 219;* 
 7: 409;* 8: 330;* 9: 299.* 
 
 Considering market value. 3: 83;* 11: 604;* 
 
 12: 611.* 
 Market value defined. 12: 610.* 
 
 Inconvenience caused. 2: 217.* 
 
 Damages reasonably anticipated. 2: 218.* 
 
 Special damages. 2: 218.* 
 
 Injury to farm or tract as a whole. 2: 218:* 
 3: 84;* 9: 298.* 
 
 What injuries not considered. 2: 218.* 
 
 Value of land for its uses and purposes. 2: 
 219.* 
 
 Value of tract cut off. 2: 219.* 
 
 Amount of damages recoverable by tenant 
 and reversioner. 21:217, 
 223. 
 
 Considering diminution in value from opera - 
 tion of trains. 9: 298.* 
 
 Benefits considered. 7: 289.* 
 
 As affected by loss of profits. 51: 320. 
 
 Depreciation of neighboring property. 8: 
 330.* 
 
 Condemnation of the fee of, land over which 
 there is an existing h gh- 
 way. 15: 413. 
 
 Injury to easements of abutting owners. 
 14: 381. 
 
 Taking of water. 58: 253. 
 
 Pollution of water as an element of dam- 
 ages for taking railroad 
 right of way. 47: 782. 
 
 Property taken for purposes of canal. 61: 
 841. 
 
 Conclusiveness of testimony of experts as to 
 value and damages in emi- 
 nent domain proceedings. 
 42: 767. 
 
 Allowance of interest on value of property 
 destroyed from negligent 
 construction of railroads, 
 canals, etc. 18: 454. 
 
 1 8. Value of improvement made by one 
 taking property. 
 
 When improvement is consented to by own- 
 er, mortgagor, etc. 16: 
 805. 
 
 When construction of improvement is a tres- 
 pass. 16: 806. 
 
 Effect of good faith or mistake of tres- 
 passer. 16: 807. 
 
 19. Effect of preserving to owner an es- 
 tate, rights, or easement. 
 
 Mitigation of damages in condemnation 
 cases by preserving. 26: 
 751. 
 Discretion to take less than might be 
 
 taken. 26: 751. 
 
 Temporary occupation. 20: 753. 
 Easements or improvements secured to 
 
 the landowner. 26: 753. 
 Effect of filing plan and description. 
 
 26: 758. 
 
 Payment to be made in money. 26: 
 758. 
 
 5. Injunction cases. 
 
 20. Generally. 
 
 Damages in lieu of injunction. 20: 752. 
 
 Damages recoverable in action on injunc- 
 tion bond. 13: 312. 
 
 Penalty as limit of liability on bond. 55: 
 389. 
 
 Loss of profits as element of damages for 
 wrongful injunction. 52: 
 58. 
 
 6. Loss of profits as element of damages. 
 
 21. Generally. 
 
 On abandonment of contract for other 
 
 party's default. 30: 57. 
 22. For breach of contract. 
 General rules applicable to breach of all 
 kinds of contracts. 53: 34. 
 Allowance of profits lost generally. 53: 
 
 34. 
 
 Right of action for. 53: 36. 
 Effect of remoteness. 53: 37. 
 Effect of speculativeness or contingency. 
 
 53: 38. 
 
 Effect of uncertainty in amount. 53: 
 40.
 
 982 
 
 DAMAGES, V. (Ed. Notes.) 
 
 Requirement, that profits should have | 
 been within contemplation 
 of parties. 53: 41. 
 Distinction between direct and collateral 
 
 profits. 53: 43. 
 
 Loss of subcontracts and special bar- 
 gains. 53: 45. 
 
 General effect of preventing perform- 
 ance. 53: 45. 
 
 What amounts to prevention of per- 
 formance. 53: 47. 
 Contracts for services. 53: 48. 
 
 Breach by contractor or employee. 53: 
 
 48. 
 
 General rules. 53: 48. 
 Particular contracts. 53: 49. 
 
 For construction or repair of 
 ways, bridges, public 
 works, etc. 53: 49. 
 For construction or repair of 
 buildings, vessels, etc. 53: 
 50. 
 Logging and lumber contracts 
 
 53: 52. 
 For general service or labor. 
 
 53: 53. 
 
 For services as agent or attor- 
 ney. 53: 57. 
 
 Breach by employer or owner. 53: 57. 
 General rules. 53: 57. 
 Effect of preventing performance. 
 
 53: 59. 
 
 What constitutes prevention of per- 
 formance. 53: 61. 
 Particular contracts. 53: 62. 
 
 For railway construction. 53: 
 
 62. 
 Elevator and storage contracts. 
 
 53: 65. 
 For construction of buildings 
 
 53: 66. 
 
 For construction or repair of 
 bridges, roads, or streets. 
 53: 68. 
 
 For grading, excavating, dredg- 
 ing, etc. 53: 70. 
 Logging and lumber contracts. 
 
 53: 71. 
 
 For mechanical work. 53: 73. 
 For services or labor generally. 
 
 53: 74. 
 For real estate, insurance, and 
 
 loan agencies. 53: 76. 
 Contracts with salesmen and 
 for other agencies. 53: 
 77. 
 Between attorney and client. 
 
 53: 79. 
 For compensation based on 
 
 share of profits. 53: 80. 
 Partnership contracts. 53: 81. 
 Contracts for sale or purchase 53: 83. 
 Contracts for carriage 53: 83. 
 Breach by shipper. 53: 83. 
 Breach by carrier. 53: 84. 
 
 Measure of damages generally. 
 
 53: 84. 
 
 Remoteness, contingency, and un- 
 certainty, and their effect. 
 53: 8(i. 
 Notice of sale and its effect. 53: 
 
 Notice of use and its effect. 53: 
 
 90. 
 Contracts for transmission of telegrams. 
 
 53: 91. 
 
 Rule as to message in cipher, or not 
 
 showing meaning. 53:91. 
 
 Rule when message is in plain terms. 
 
 53: 92. 
 The general right to recover. .">:>: 
 
 92. 
 
 Remoteness, contingency, and un- 
 certaintv, and their effect. 
 53: 94. 
 Rule when altered message is sent. 53: 
 
 95. 
 
 Contracts with relation to railroad and sta- 
 tion construction. 53: 9U. 
 Agreements not to compete. 53: 97. 
 Leases and contracts and covenants with 
 
 reference to. 53: 97. 
 General rules. 53: 97. 
 Breach of covenant to lease or renew. 
 
 53: 98. 
 Breach of covenant to give possession. 
 
 53: 99. 
 
 Breach of covenant for peaceable pos- 
 session. 53: 100. 
 Breach of covenant to repair or rebuild. 
 
 53: 101. 
 
 Eviction. 53: 102. 
 Tenancy on shares. 53: 104. 
 Breaches by tenant. 53: 105. 
 The charter or rental of vessels. 53: 105. 
 Miscellaneous contracts. 53: 106. 
 Duty to prevent or reduce damages. 53: 
 
 108. 
 Deduction for release from responsibility. 
 
 53: 110. 
 
 Effect of illegality in contract. 53: 111. 
 23. Loss of profits of sale or purchase. 
 Breach by vendor. 52 : 209. 
 General rules. 52: 209. 
 The rule as to special circumstances. 
 
 52: 211. 
 
 Generally. 52: 211. 
 As applied to notice or knowledge 
 of sale or purpose to re- 
 sell. 52: 212. 
 
 What notice or knowledge of re- 
 sale sufficient. 52: 215. 
 As applied to notice or knowledge 
 
 of special use. 52: 217. 
 What notice or knowledge of use 
 
 sufficient. 52:218. 
 The rule as to the absence of a market. 
 
 52: 219. 
 
 When goods are practicallv unob- 
 tainable. 52:219." 
 When a substitute may be obtained. 
 
 52: 221. 
 
 When other markets may be re- 
 sorted to. 52: 222. 
 
 The rule as to remoteness, contingency, 
 and uncertainty. 52: 223. 
 Generally. 52:223. 
 As applied to cases of purchase to 
 
 resell. 52; 224. 
 As applied to cases of purchase for 
 
 manufacture. 52: 226. 
 As applied to cases of purchase for 
 use. 52: 227.
 
 DAMAGES, V. (Ed. Notes.) 
 
 933 
 
 The rule as to sale of articles to be 
 
 manufactured. 52: 230. 
 Application of general rules. 52: 
 
 230. 
 As applied to special circumstances. 
 
 52: 230. 
 
 As applied to remoteness, contin- 
 gency, and uncertainty. 
 52: 231. 
 
 Breach of warranty. 52: 233. 
 General rules. 52: 233. 
 Purchase and warranty for special 
 
 purpose. 52: 234. 
 Purchase to resell. 52: 237. 
 Sale of a business, goodwill, or ex- 
 clusive right. 52: 238. 
 Breach of contract to convey real es- 
 tate. 52 : 240. v , 
 
 General statement as to. 52: 240. 
 When vendor acts in good faith. 
 
 52: 241. 
 When vendor acts mala fides. 52: 
 
 242. 
 Breach by vendee. 52: 244. 
 
 Alternative rights of recovery. 52: 244. 
 When title does not pass. 52: 244. 
 Measure of damages generally. 52: 
 
 246. 
 Effect of notice of refusal to perform. 
 
 52: 248. 
 Resale by vendor. 52: 249. 
 
 Right to make, and effect of. 52: 
 
 249. 
 Prerequisites to validity of. 52: 
 
 251. 
 Effect of absence of market, in which 
 
 to resell. 52: 252. 
 
 The rule as to purchase of articles to 
 be manufactured. 52: 253. 
 Right to recover profits. 52: 253. 
 The measure of damages. 52: 254. 
 Resale. 52: 256. 
 Remoteness, contingency, uncertainty. 
 
 52: 257. 
 
 Breach of contract to purchase real es- 
 tate. 52:258. 
 Dutv to try to prevent or reduce damages. 
 
 52: 259. 
 
 Effect of illegality. 52: 260. 
 24. For tort. 
 General rules. 52: 33. 
 Personal injuries. 52: 36. 
 
 General rules as to. 52: 36. 
 
 Profits lost as an element of damages. 
 
 52: 37. 
 
 Profits lost as evidence. 52: 38. 
 Trespass against the person. 52 : 42. 
 Trespass against property. 52: 42, 
 The general rule. 52: 42. 
 Profits lost as an element of damages. 
 
 52: 43. 
 
 Profits lost as evidence. 52: 45. 
 Negligence. 52: 46. 
 
 Scope and general rules. 52: 46. 
 Failure to perform and improper per- 
 formance of legal duties. 
 52: 46. 
 Performance of acts in violation of 
 
 legal duty. 52: 47. 
 Obstruction of highways and wa- 
 terways, 52: 47. 
 
 Maintenance of nuisances and 
 other breaches of duty. 
 52: 49. 
 Conversion. 52: 51. 
 
 General rules as to. 52: 51. 
 Without judicial process. 52: 52. 
 Under judicial process. 52: 54. 
 
 By seizure under wrongful attach- 
 ment. 52: 54. 
 
 By seizure under wrongful replev- 
 in. 52: 56. 
 
 By seizure under wrongful execu- 
 tion or other process. 
 52: 57. 
 
 Wrongful injunction. 52: 58. 
 Fraud and false representations. 52: 59. 
 Marine torts. 52: 61. 
 
 Future and uncertain profits. 52: 61. 
 Profits of voyage or charter party in 
 
 hand. 52: 62. 
 
 How ascertained and computed. 52: 64. 
 Infringement of patents, copyrights, and 
 
 trademarks. 52: 66. 
 Effect of illegality of business giving rise 
 
 to the profits. 52: 66. 
 25. For infringements of patents, copy 
 
 rights, or trademarks. 
 The concurrent remedies in patent cases. 
 
 51: 801. 
 
 Actions in equity. 51: 802. 
 Actions at law. 51: 802. 
 
 Statement as to existence of the rem- 
 edy. 51 : 802. 
 
 Measure of damages generally. 51 : 803. 
 As affected by mode of enjoyment of 
 
 patent. 51: 804. 
 Different rules with relation to. 
 
 51 : 804. 
 By granting licenses. 51 : 804. 
 
 Application of the rule. 51: 
 
 804. 
 
 What sufficient to constitute 
 an established fee. 51: 
 805. 
 Right to base fee on utility. 
 
 51 : 808. 
 By holding close monopoly. 51: 
 
 809. 
 Application of the rule. 51: 
 
 809. 
 Establishment of loss of sales. 
 
 51: 810. 
 Establishment of reduction of 
 
 price. 51:811. 
 Consideration of profits of the 
 
 inf ringer. 51:813. 
 When profits of infringer may 
 be made the criterion. 51: 
 814. 
 Separation of profits due to 
 
 patent. 51: 815. 
 
 The rule in equity under statutes authoriz- 
 ing damages. 51 : 817. 
 Scope of subdivision. 51 : 817. 
 The act of Congress of 1870. 51: 817. 
 Estimation of damages under. 51: 818. 
 Separation of profits and damages due 
 
 to patent. 51: 820. 
 The English act of 1858. 51: 821. 
 Effect of recovery. 51: 821. 
 The rule in copyright cases. 51: 822. 
 The rule in trademark cases. 51: 823.
 
 984 
 
 DAMNUM ABSQUE INJURIA ; DAMS. 
 
 2^/2. In eminent domain cases. 
 
 Generally. 51 : 320. 
 
 Earlv rule confining damages to the actual 
 
 taking. 51 : 320. 
 
 Rules under provisions for compensation for 
 property taken or injured. 
 51: 321. 
 
 General statement of. 51: 321. 
 Where property is taken, in whole or 
 in part, for railway pur- 
 poses. 51:321. 
 
 Where tangible property is taken for 
 other than railway pur- 
 poses. 51: 324. 
 
 Where property taken consists of a 
 franchise or privilege. 51 : 
 325. 
 
 Where property is injured, but not tak- 
 en. 51:326. 
 
 Loss of profits from suspension of business 
 while moving. 51: 330. 
 
 7. Mental anguish. 
 
 26. Generally. 
 
 Mental anguish as element of damages, gen- 
 erally. 2: 767;* 13: 859.* 
 
 In telegraph cases. 9: 669;* 13: 859.* 
 
 As element of damages for trespass. 53: 
 632. 
 
 Conflict of laws >as to right to recover for 
 mental anguish for non- 
 delivery of telegram. 63: 
 532. 
 
 From personal injury. 8: 765.* 
 
 From death. 13: 860.* 
 
 From death caused by sale of intoxicating 
 liquor. 3: 327.* 
 
 From ejection from car. 1: 667.* 
 
 8. Mitigation; reduction. 
 
 27. Generally. 
 
 Jn Condemnation Proceedings, see supra, V. 
 
 19. 
 
 Of damages for breach of promise of mar- 
 riage. 26: -62. 
 
 Of damages for personal injury by, fact that 
 injured person has re- 
 ceived from some source 
 other than the wrongdoer 
 money because of the in- 
 jury. 67:87. 
 
 Jn actions by injured person. 67: 87. 
 Insurance money. 67: 87. 
 Wages. 67: 89. 
 Other gratuities. 67:90. 
 In actions for wrongful death. 67: 91. 
 Property received from deceased. 
 
 67: 01. 
 
 Insurance money. 67: 92. 
 Pensions and subscriptions. 67: 
 
 94. 
 
 Remarriage. 67:95. 
 
 Payments made at instance of wrong- 
 doer. 67: Do. 
 
 Duty of vendee to avoid or reduce injury for 
 broach of contract of sale 
 of article having no mar- 
 ket price. .17 : 202. 
 
 9. Interest. 
 
 28. Generally. 
 
 Right to interest on unliquidated demands. 
 4: 566.* 
 
 Interest on sum allowed as damages. 18: 
 449. 
 
 Governing law with respect to interest as 
 damages. 56: 303; 62:37. 
 
 Interest on amount of damages for negligent 
 infliction of personal in- 
 jury. 14: 548; 18: 449. 
 
 DAMNUM ABSQUE INJURIA. 
 
 Editorial Notes. 
 
 As cause of action. 6: 573.* 
 
 Depreciation in value of property of one 
 proprietor by lawful use 
 of property of adjacent 
 proprietor. 8: 787.* 
 
 DAMS. 
 
 Action of Tort for Appropriation of Water 
 from Reservoir Created by, see Ac- 
 tion or Suit, 66. 
 
 Overflow of, as Adverse Possession, see Ad- 
 verse Possession, 48. 
 
 Effect of Raising of, on Boundary Line, 
 see Boundaries, 38. 
 
 As to Abutment of Bridge Resting upon, 
 see Bridges, 20. 
 
 Maintenance of, in Canal, see Canals, 10, 
 11. 
 
 What Excuses Failure to Repair, see Con- 
 tracts, 656, 662. 
 
 Covenant as to, see Covenant, 2, 15. 
 
 Damages for Diversion of Water from Pond 
 Created by, see Damages, 430. 
 
 Servitude to repair, see Easements, 43. 
 
 Easements in, see Easements, 68, 70. 
 
 Destruction of, as a Taking of Property, 
 see Eminent Domain, 247. 
 
 Flooding of Land by, as a Taking of Prop- 
 erty, see Eminent Domain, 251. 
 
 Construction of, as a Taking of Property, 
 see Eminent Domain, 256, 258, 353. 
 
 Consequential Damage to, see Eminent Do- 
 main, 349. 
 
 Equity Jurisdiction as to Sluice in, see 
 Equity, 19. 
 
 Estoppel to Prevent Destruction of, see 
 Estoppel, 83. 
 
 Estoppel to Object to Continuation of, see 
 Estoppel, 182. 
 
 Burden of Proof as to Injury to, see Evi- 
 dence, 234. 
 
 Evidence to Rebut Malice in Attempted 
 Destruction of, see Evidence, 1808. 
 
 As Highway, see Highways, 293. 
 
 Indictment for Attempting to Destroy, see 
 Indictment, etc., 30. 
 
 Compelling Removal of, see Injunction, 54. 
 
 Acquittal of Charge of Nuisance as to, see 
 .Judgment, 226.
 
 DAMS. 
 
 985 
 
 Jurisdiction as to Nuisance by, see Justice 
 
 of the Peace, 18. 
 
 As Nuisances, see Nuisances, 119, 144. 
 Tax on, see Taxes, 113, 348, 349. 
 In Floatable Stream, see Waters, 44-54. 
 Sluiceway in, for Passage of Logs, see 
 
 Waters, 51-54. 
 
 In Drainage Ditch, see Waters, 399. 
 Prescriptive Right as to, see Waters, 509- 
 
 513. 
 
 Right to build or maintain. 
 
 Reservation of Right to Build, see Deeds, 
 
 94-98. 
 Revocation of License to Construct or 
 
 Use, see License, 14, 15. 
 See also infra, 12; Waters, 267,280, 282. 
 
 1. A dam to protect land, buirt by au- 
 thority of the legislature in the former 
 bed of a river which now serves only as 
 a waste way during high waters, the new 
 channel untouched by the dam being at 
 the time a good and sufficient outlet at 
 all ordinary high stages of water, is a law- 
 ful public improvement. Payne v. Kan- 
 sas City. St. J. & C. B. R. Co. 112 Mo. 6, 
 20 S. W. 322, 17: 628 
 
 2. A person engaged in floating logs down 
 a stream and manufacturing them into 
 lumber at his mills on the stream may 
 maintain dams and booms for the pur- 
 pose of obtaining and securing his own 
 logs, although it may result in arresting 
 the whole mass of logs floating on the 
 stream, if the obstruction to the use of 
 the stream by others is not unreasonable. 
 Nester v. Diamond Match Co. 44 C. C. A. 
 606, 105 Fed. 567, 52: 950 
 
 3. The condemnation of the right to 
 iiKiintain a dam does not give any right 
 which is not enjoyed by riparian owners 
 generally, as against an upper landowner 
 to whom no damages were awarded, pre- 
 sumably because it was found that the 
 back water from the dam would not over- 
 flow his land. Gehlen v. Knorr, 101 Iowa, 
 700, 70 N. W. T.-)7. 36: 697 
 
 4. In Massachusetts the superior court, 
 which is a court of general jurisdiction, 
 is competent to decide for itself whether or 
 not it has been properly addressed to per- 
 mit it to act, when there is conferred upon 
 it by statute jurisdiction in regard to special 
 proceedings for the erection of a dam, and 
 it is provided that action is to be taken 
 only upon petition of twenty proprietors 
 of certain designated lands; and, if the 
 legality of the dam is subsequently^ ques- 
 tioned by one indicted for attempting to 
 do>ivoy it, the fact that the court took ac- 
 tion shows that it had decided that the pro- 
 ceedings were properly initiated, and evi- 
 dence that a petition was in fact signed and 
 presented by twenty proprietors is un- 
 necessary, especially in the absence of evi- 
 dence to controvert that fact. Com. v. 
 Tolman, 149 Mass. 229, 21 N. E. 377, 3: 747 
 
 5. A statute giving the trustees of a pub- 
 lic canal power to raise the water in a 
 river to a certain height by means of a 
 dam, and providing that in constructing 
 the canal or developing the dam it be- 
 
 comes necessary to use private property, the 
 board "shall have a right to acquire such 
 right of way" in the manner now provided 
 by law, requires the settlement of damages 
 for flooding lands by the dam under the 
 eminent domain law, and not by suit for 
 nuisance. Leitzsey v. Columbia Water Pow- 
 er Co. 47 S. C. 464, 25 S. E. 744, 34: 215 
 
 6. Failure to object to the raising of wa- 
 ter along abutting lands by a dam across a 
 river constitutes permission to do so with- 
 in the provision of a statute that in case 
 any person permits entry upon his land for 
 the construction of a public improvement 
 without previous compensation he shall have 
 a right to petition for the assessment of 
 his damages, so that such remedy is ex- 
 clusive, id. 
 
 7. The grant of a right to flood a part of 
 a farm by the erection of a dam will pre- 
 clude the maintenance of an action for in- 
 juries caused by the dam to the remaining 
 portion. Nunamaker v. Columbia Water 
 Power Oo. 47 S. C. 485, 25 S. E. 751, 
 
 34: 222 
 
 Right to water power created by. 
 Liability for Depriving, of Water Power,, 
 see Waters, 245. 
 
 8. No right to water power created by 
 elevating the dam, beyond his proportionate 
 share, remains in the owner of a dam who, 
 after reserving a certain number of square 
 inches of water, sells the remaining ca- 
 pacity of the dam, although his conveyances 
 are of a certain number of inches at the 
 then height of the dam, "or water suf- 
 ficient under any other head to produce the 
 same power," where he exacts covenants 
 from the grantees for the maintenance of 
 the dam, and the additional height is add- 
 ed by proportionate assessments upon all 
 the water rights. Janesville Cotton Mills v. 
 Ford, 82 Wis. 416, 52 N. W. 764, 17: 564 
 Diverting surplus waters of. 
 
 Injunction against Diverting Water from^ 
 
 see Injunction, 29. 
 See also Waters, 244, 251. 
 
 9. Surplus water of a dam lawfully made 
 in a river to supply a canal past rapids in 
 aid of navigation, although under a stattite 
 declaring that the water power created 
 should belong to the state, cannot be di- 
 verted from its natural channel to the 
 detriment of the lower riparian proprietors, 
 by the state or its grantees, through the 
 canal and sluiceways therefrom, for the 
 operation of mills on the canal bank. Pat- 
 ten Paper Co. v. Kaukauna Water-Power 
 Co. 90 Wis. 370, 61 N. W. 1121, 28: 443- 
 [From a subsequent decision of the lower 
 court in compliance with the mandate in 
 this case a second appeal was dismissed (93" 
 Wis. 283) but this judgment of the state 
 court was reversed by the Supreme Court 
 of the United States in Green Bay & Mis- 
 sissippi Canal Co. v. Patten Paper Co. 172" 
 U. S. 58. 43 L. ed. 364, 19 Sup. Ct. Rep. 97.] 
 Fishway in. 
 
 Power of State as to, see Commerce, 6c. 
 Indictment for Failure to Maintain, see 
 Indictment, etc., 71. 
 
 10. The power of the state to compel a
 
 936 
 
 DANCE HALL DAYS. 
 
 fishway to be made in every dam across a 
 stream, as required by Iowa Code 1897, 
 2548, extends to a dam which the state it- 
 self made without any fishway and con- 
 veyed in that condition, without expressly 
 reserving any right to exercise police pow- 
 er over it. State ex rel. Bemley v. Meek, 
 112 Iowa, 338, 84 N. W. 3, 51: 414 
 
 Liability as to. 
 
 Liability for Injury, see Action or Suit, 44. 
 Damages for Failure to Repair, see Dam- 
 ages, 127. 
 Limitation of Action for Injuries by, see 
 
 Limitation of Actions, 206. 
 Dam Made to Facilitate Driving of Logs, 
 
 see Waters, 59. 
 Dam as Obstruction to Floatable Stream, 
 
 see Waters, 44-54. 
 See also supra, 7; infra, Editorial Notes. 
 
 11. One called upon to pay damages for 
 overflowing land under authority of the 
 legislature to erect a dam for the purpose 
 of manufacturing and improving naviga- 
 tion cannot defeat liability by insisting 
 that more land has been overflowed than 
 is absolutely necessary to carry out such 
 purposes. Charnley v. Shawano Water- 
 Power & R. Improv. Co. 109 Wis. 563, 85 
 N. W. 507, 53: 895 
 
 12. A railroad company is 1 not relieved 
 from liability for a dam on its right of 
 way, which amounts to a nuisance, and 
 which it" uses and keeps in repair, by rea- 
 son of the fact that it was built by county 
 authorities under an act of the legislature, 
 but with the railroad company's knowledge 
 and consent. Payne v. Kansas City, St. 
 J. & C. B. R. Co. 112 Mo. 6, 20 S. W. 322, 
 
 17: 628 
 
 13. The fact that water above a bridge 
 was two feet higher than it was below it, 
 and flowed under the bridge with great 
 force, but stood several feet deep below 
 the bridge, does not show that a dam be- 
 low the bridge did not aid the backing 
 up of the water above the bridge. Id. 
 
 14. A common-law action may be main- 
 tained for damages resulting from the negli- 
 gent or improper construction or mainten- 
 ance of a dam and reservoir constructed 
 under the provisions of a statute which au- 
 thorizes the building of the dam upon pay- 
 ment of the damages resulting from the 
 proper exercise of the authority given, and 
 which provides that such damages are to 
 be recovered only by petition filed for the 
 purpose, as provided by its terms. Aid- 
 worth v. Lynn, 153 Mass. 53, 26 N. E. 229, 
 
 10: 210 
 
 Editorial Notes. 
 
 As to Obstruction of Waters Generally, see 
 Waters, IV. 24. 
 
 Liability of county for injury to real prop- 
 erty from. '39: 69. 
 
 Mandatory injunction relating to mill- 
 dams. 20: 163. 
 
 Rights conveyed by grant of dam. 67: 384. 
 
 Liability for damming back water of stream. 
 59: 817. 
 
 DANCE HALL. 
 
 Constitutionality of Restrictions of Waiteni 
 in, see Constitutional Law, 318. 
 
 Municipal Regulation of, see Intoxicating 
 Liquors, 24. 
 
 DANCING. 
 
 By Infants in Theater, see Infants, 6, 7. 
 
 DANGER. 
 
 Judicial Notice of, see Evidence, 63-65, 69, 
 
 70, 105-119. 
 Opinion Evidence as to, see Evidence, VTL 
 
 i- 
 
 DANGEROUS AGENCIES. 
 
 Electric Wires, see Electricity, III. 
 Negligence as to, Generally, see Negligence, 
 
 I. b. 
 
 Liability for Injury by, see Railroads, 92. 
 Master's Liability for Servant's Use of, 
 
 see Master and Servant, 629-632, 680- 
 
 686, V. 20-251/2. 
 See also Explosions and Explosives; Fire- 
 
 works. 
 
 Editorial Notes. 
 
 Liability to servants of other persons for 
 injuries by. 46: 116. 
 
 DANGEROUS ATTRACTIONS. 
 
 See Negligence, I. c, 2, b. 
 
 DANGEROUS PREMISES. 
 
 Liability for Injury on, see Negligence, L 
 c, 2. 
 
 DANGER SIGNALS. 
 
 Absence of, in Highways, see Highways, 
 269-271. 
 
 "DATE. 
 
 Alteration of, in Note, see Alteration of In- 
 struments, 25. 
 
 Mistake in Date of Ticket, see Carriers, 382, 
 592. 
 
 On Ticket, Illegibility of. see Carriers, 581. 
 
 In Copyright Notice, see Copyright, 10. 
 
 Of Letter, Evidence of, see Evidence. 2294. 
 
 Law of. XVhat Date Governs,, see Criminal 
 Law, 6; Dower, 2; Taxes, 504.
 
 DAYS OF GRACE DEATH. 
 
 987 
 
 DAYS. 
 
 Computation of, see Time, 3, 4, 13-19. 
 What is, see Time, 5. 
 
 DAYS OF GRACE. 
 
 Purchase of Note During, see Bills and 
 Notes, 216, 245. 
 
 Editorial Notes. 
 Bank customs as to. 21: 442. 
 
 DEACON. 
 
 Right of Action by, see Parties, "^06. 
 Rights of, in Church Property, see Religious 
 Societies, 18, 26. 
 
 DEAD ANIMALS. 
 
 Confiscation of, see Confiscation, 2. 
 Property Rights in, see Constitutional Law, 
 
 777. 
 
 Monopoly in Removal of, see Monopoly, 3. 
 Municipal Regulations as to, see Municipal 
 
 Corporations, 211-213. 
 Contract for Crematory for, see Municipal 
 
 Corporations, 290. 
 
 Editorial Notes. 
 
 Municipal regulation as to nuisance of. 38: 
 330. 
 
 DEAD BODIES. 
 
 See Corpse. 
 
 DEADLY WEAPON. 
 
 Assault with, see Assault and Battery, 22, 
 
 DEAF AND DUMB. 
 
 Contributory Negligence of, see Street Rail- 
 ways, 153. 
 As Witnesses, see Witnesses, 16. 
 
 DEALING. 
 
 What Constitutes, see License, 81. 
 
 Editorial Notes. 
 What constitutes. 14: 529. 
 
 DEATH. 
 
 I. In General. 
 II. Right of Action for Causing. 
 
 a. In General. 
 
 b. Who may Maintain and for 
 Whom.' 
 
 III. Who Liable for Causing. 
 
 IV. Defenses. 
 
 V. Authority to Compromise Claim for. 
 VI. Effect of'. 
 VII. Editorial Xotes. 
 
 Survivability of Action for, see Abatement 
 
 and Revival, 25-27; V. 1. 
 Admiralty Jurisdiction in Case of, see Ad- 
 miralty, 7, 8, 12. 
 Federal Jurisdiction of Action for, see 
 
 Courts, 365. 
 Of Party on Appeal, see Appeal and Error. 
 
 122. 
 Prejudicial Error in Admitting Evidence of 
 
 Mother's Suffering, see Appeal and 
 
 Error, 915. 
 Bank Paying Money Out of Depositor's 
 
 Account after, see Banks, 378. 
 Validity of Note Payable on or After 
 
 Maker's Death, see Bills and Notes, 17, 
 
 18. 
 Validity of Agreement for Payment after, 
 
 see Contracts, 436. 
 
 Of Ejected Passenger, see Carriers, 441. 
 Opinion Evidence as to Cause of, see Evi- 
 dence, 1297-1301. 
 
 Proof of Cause of, see Evidence, 221 5-2222. 
 Of Insured, Cause of, see Insurance, VI. b. 
 Proximate Cause of, see Proximate Cause. 
 Question for Jury as to Cause of, see Trial, 
 
 114, 116, 117, 126. 
 Instruction as to Burden of Proving Cause 
 
 of, see Trial, 801. 
 Conflict of Laws as to Liability for, see 
 
 Conflict of Laws, I. e, 2; and also infra, 
 
 VII. 5. 
 Mode of Inflicting Penaltv of, see Criminal 
 
 Law, 208-211. 
 Changing Maner of Inflicting Penalty of, 
 
 see Criminal Law, 190. 
 Punitive Damages for, see Damages, 53. 
 Measure of Damages for, see Damages, III. 
 
 i, 3, 4, 6; and also infra, VII. 8. 
 Caused by Breach of Contract to Furnish 
 
 Gas for Fuel, see Damages, 101. 
 Of Child During Confinement, see Damages, 
 
 189, 254. 
 
 Of Grantor before Delivery of Deed Exe- 
 cuted by Agent, see Deeds, 13. 
 Presumption and Burden of Proof as to, 
 
 see Evidence, II. e, 3. 
 Presumption and Burden of Proof as to 
 
 Negligence of Person Found Dead, see 
 
 Evidence, 586-595. 
 
 Evidence as to Loss Sustained by, see Evi- 
 dence, 912. 
 
 Reputation of, see Evidence, 1480, 1481. 
 Hearsay Evidence of, see Evidence, 1557. 
 Admissibility of Declarations of Person 
 
 Killed, see Evidence, 1576-1584. 
 Evidence of Family Standing in Action for, 
 
 see Evidence, 2115-2117. 
 Sufficiency of Proof of, see Evidence. 2270. 
 Of Governor Pending Election Contest, see 
 
 Governor, 6. 
 Transmission of Homestead in Case of, see 
 
 Homestead, IV. b. 
 As Change of Title to Insured Property, see 
 
 Insurance, 360, 361.
 
 988 
 
 DEATH, I., II. a. 
 
 Right to Recover on Policy Insuring against 
 Injury Where Death is Instantaneous, 
 see Insurance, 1357. 
 
 Entry of Judgment after, see Judgment, 
 71-74. 
 
 Validity of Judgment against Dead Per- 
 son, see Judgment, 131-133. 
 
 Of Judge, as Unavoidable Accident, see 
 Judges, 57. 
 
 Limitation of Action for, see Limitation 
 of Actions, 128. 
 
 Parties Defendant in Proceedings to Ap- 
 point Administrator, see Parties, 147. 
 
 Payment to Agent after Principal's Death, 
 see Payment, 30. 
 
 Allegation of Damage from, see Pleading, 
 248-252. 
 
 Pleading in Action for Death, see Plead- 
 ing, 56, 395-402. 
 
 Removal of Action for Causing, see Re- 
 moval of Causes, 17. 
 
 Of Horse Pending Replevin Suit, see Re- 
 plevin, 31. 
 
 Direction of Verdict in Action for, see 
 Trial, 556, 564. 
 
 Instruction as to Damages by, see Trial, 
 777-780. 
 
 As to Civil Death, see Civil Death. 
 
 I. In General. 
 
 1. A judgment recovered by an adminis- 
 trator under the provisions of Neb. Comp. 
 Stat. chap. 21, 2, giving a right of action 
 for wrongful death, is for the exclusive 
 benefit of the widow and the next of kin 
 of the deceased person; and the fact that, 
 the administrator, in his petition for dam- 
 ages, fails to name all the legal beneficia- 
 ries provided for in this act, will not bar any 
 legal distributee not named in his peti- 
 tion from receiving his distributive share 
 of the judgment recovered. Oyster v. Bur- 
 lington' Relief Dept. 65 Neb. 789, 91 N. W 
 699, 59: 291 
 
 2. One who brings an action as the per- 
 sonal representative of a deceased daughter, 
 to recover damages to the daughter's estate 
 for injuries resulting in death, can assert 
 no right that the daughter could not have 
 asserted, if alive. Hughes v. Auburn, 161 
 X. Y. 96, 55 N. E. 389,. 46: 636 
 Limitation of liability for causing. 
 
 3. The provision of a state Constitution 
 against limitation of liability for injuries 
 resulting in death cannot prevail over the 
 act of Congress permitting limitation of 
 liability for maritime losses. Loughin v. 
 McCaulley, 186 Pa. 517, 40 Atl. 1020, 48: 33 
 
 II. Right of Action for Causing, 
 a. In General. 
 
 On High Spas, see Boundaries, 6. 
 
 For Death Occurring in Other State, see 
 
 Conflict of Laws, I. e. 2. 
 Election of Remedies for Causing, see Elec- 
 
 ti'>ii of Remedies. 14. 
 
 Death Caused by Intoxicated Person, see 
 Intoxicating Liquors, 174. 
 
 Limitation of Action for Causing, see Limi- 
 tation of Actions, 200. 
 
 Interruption of Statute of Limitations for, 
 see Limitation of Actions, 232, 241. 
 
 Against Corporation after Discharge of Re- 
 ceiver, see Receivers, 108. 
 
 For Editorial Notes, see infra, VII. 4-8. 
 
 4. A cause of action for personal in- 
 juries which survives by force of Wis. Rev. 
 Stat. 4253, is separate and distinct from 
 the cause of action in favor of surviving 
 relatives under 4255. Brown v. Chicago 
 & X. W. R. Co. 102 Wis. 137, 77 N. W. 748, 
 78 N. W. 771, 44: 579 
 
 5. The fact that there are no surviving 
 relatives or creditors of a person killed by 
 wrongful act or omission does not pre- 
 clude a right of action under Hill's (Or.) 
 Ann. Code, 369, 371, making the recov- 
 ery assets of the estate. Perham v. Port- 
 land General Elec. Co. 33 Or. 451, 53 Pac. 
 14, 40: 799 
 
 6. Wrongful death under such circum- 
 stances that, had death not ensued, deced- 
 ent could have proceeded against the wrong- 
 doer for damages, is not sufficient of it- 
 self to uphold an action in favor of his 
 survivors under a statute providing such 
 action and naming the beneficiaries; but the 
 existence of beneficiaries within the pro- 
 visions of the statute must be shown. Brown 
 v. Chicago & N. W. R. Co. 102 Wis. 137, 77 
 N. W. 748, 78 N. W. 771, 44:579 
 
 7. A new action for the .benefit of per- 
 sons named, and not a continuation of that 
 belonging to decedent, is created by Rev. 
 Stat. 1893, 2315, 2316, 2318, which pro- 
 vide that, in case of death by wrongful 
 act which, had death not ensued, would have 
 entitled the injured party to maintain an 
 action, the person causing the death shall 
 be liable to an action, notwithstanding the 
 death, for the benefit of the next of kin 
 and heirs at law, to the extent of their 
 injury, to be brought by the executor or 
 administrator, in case the injured person has 
 not recovered judgment before death. Re 
 Mayo. 60 S. C. 401, 38 S. E. 634, 54: 660 
 
 8. Under a statute giving a right of 
 action for damages against a railroad com- 
 pany for the killing of a person by reason 
 of the negligence, carelessness, or unskil- 
 fulness of the corporation, its agents, serv- 
 ants, and employees, the cause of action 
 must come strictly within the terms of the 
 statute conferring the right. Bowen v. 
 Illinois C. R. Co. 136 Fed. 306, 70: 915 
 
 9. The right of action for damages re- 
 sulting from death is exclusive of an ad- 
 ministrator's right of action to recover for 
 the pain and expense suffered by the per- 
 son of his intestate from the injuries which 
 caused his death, under R. I. Rev. Stat. 
 1857. chap. 176, creating a right of action 
 for death, and also providing for the sur- 
 vival of actions of "trespass on the case 
 for damages to the person," as the surviv- 
 al applies to cases of injuries not causing 
 death. Lubrano v. Atlantic Mills, 19 R. I. 
 12!>. :52 Atl. 20.-,. 34: 797
 
 DEATH, II. h. 
 
 989 
 
 b. Wlio may Maintain and for Whom. 
 
 Action by Wife, see infra, 41, 42. 
 
 Conflict of Laws as to Widow's Right of 
 
 Action, see Conflict of Laws, 227, 230, 
 
 231, 234. 
 Under Civil Damage Act, see Intoxicating 
 
 Liquors, 168-170. 
 
 10. A recovery for the death of another 
 cannot be had by one who receives from 
 the estate of the deceased property greater 
 in value than all the prospective benefits 
 that would have accrued to him had death 
 not ensued, where the statute creating 
 the right of action gives damages only 
 for the pecuniary loss, and provides that 
 fiich beneficiary of the class bi relatives 
 specified shall recover separately for his 
 own special injury. San Antonio & A. P. 
 R. Co. v. Long, 87 Tex. 148, 27 S. W. 113, 
 
 24: 637 
 
 11. The words "heir or heirs," in Colo. 
 <3en. Laws 1877, p. 343, giving to the heirs 
 a right of action for death if there be no 
 husband or wife or any action by him or 
 her. within one year, mean "child or chil- 
 dren." and limit the right of action to 
 linpal descendants. Hindry v. Holt, 24 Colo. 
 464. 51 Pac. 1002, 39: 351 
 Nonresident aliens. 
 
 JFor Editorial Notes, see infra, VII. 4. 
 
 12. General statutory language provid- 
 ing indemnity to the next of kin of a per- 
 son negligently killed does not apply in 
 favor of nonresident aliens in case de- 
 ceased is instantly killed, or dies without 
 conscious pain. McMillan v. Spider Lake 
 Sawmill & L. Co. 115 Wis. 332, 91 N. W. 
 979, 60:589 
 
 13. An action for negligent killing of her 
 son may be brought by a nonresident alien 
 under Mass. Stat. 1887, chap. 270, 2. Mul- 
 hall v. Fallon, 176 Mass. 266, 57 N. E. 386, 
 
 54: 934 
 
 14. Nonresident aliens may maintain the 
 action, under statutes authorizing actions 
 to recover damages for injuries causing 
 death, for the benefit of certain of the rela- 
 tives of decedent, to be brought by all the 
 parties entitled thereto, or by any one or 
 more of them for the benefit of all. Bon- 
 thron v. Phoenix Light & F. Co. (Ariz.) 
 71 Pac. 941, 61: 563 
 
 15. That a nonresident alien is the sole 
 heir of a resident alien killed through neg- 
 ligence, and will receive the benefit of a 
 recovery for his death, will not defeat an 
 action by his administrator to recover dam- 
 ages for the death, under a statute pro- 
 viding that all causes of action shall sur- 
 vive, and that damages recovered for a 
 wrongful act producing death shall be dis- 
 posed of as personal property belonging to 
 the estate of deceased. Romano v. Capital 
 Citv Brick & P. Co. 125 Iowa, 591, 101 
 N. W. 437, 68: 132 
 Husband. 
 
 16. A widower is not a proper party to an 
 action for the wrongful death of his wife, 
 where the recovery inures to the benefit of 
 the children and next of kin. Western U. 
 
 Teleg. Co. v. McGill, 12 U. S. App. 6.31. (5 C. 
 C. A. 521, 57 Fed. 699, 21: 818 
 
 17. A widower is not given any right to 
 the recovery of damages for the death of 
 his wife, under Kan. Gen. Stat. If 4518, 
 providing that damages in an action for 
 death must inure "to the benefit of the 
 widow and children, if any, or next of 
 kin." Id. 
 
 18. A surviving husband as such cannot 
 maintain a suit for the wrongful killing of 
 his wife, under Mill. & V. (Tenn.) Code, 
 3130, preventing the abatement of the 
 suit, although the recovery inures to his 
 benefit, but he must bring the action as 
 administrator. Chattanooga Electric R. Co. 
 v. Johnson, 97 Tenn. 667, 37 S. W. 558, 
 
 34:442 
 
 19. A husband is not of the next of kin 
 of his wife so as to be entitled to share 
 with the next of kin, who are given by stat- 
 ute an interest in the damages recovered 
 for wrongful death. Western U. Teleg. Co. 
 v. McGill, 6 C. C. A. 521, 57 Fed. 699, 12 U. 
 S. App. 651, 21: 818 
 Parents. 
 
 Defenses in Action by, see infra, 55-58. 
 
 See also supra, 13; infra, 40. 
 
 For Editorial Notes, see infra, VII. 6. 
 
 20. The loss of services of a minor child 
 killed by the fault of another does not 
 give the parents at common law any right 
 of action against the party in fault. Gulf, 
 C. & S. F. R. Co. v. Beall, 91 Tex. 310, 42 S. 
 W. 1054, 41 : 807 
 
 21. The prevention of the performance of 
 a contract by a man to support his par- 
 ents, by negligently causing his death, gives 
 them no right of action at common law. 
 Brink v. Wabash R. Co. 160 Mo. 87, 60 S. 
 W. 1058, 53: 811 
 
 22. The injury to a parent by the negli- 
 gent killing of his son who is under contract 
 to support Mm, thereby preventing perform- 
 ance of the contract, is too remote to form a 
 basis for recovery on behalf of the parent, 
 in the absence of wilful intent to injure 
 the parent. Id. 
 
 23. Under the Texas constitutional pro- 
 vi-ion for the bringing of an action for 
 exemplary damages by "the surviving hus- 
 band, widow, or the heirs of his or her 
 body," of one who has been killed by gross 
 negligence, no one else can bring such ac- 
 tion. Hence, such an action by a parent 
 cannot be maintained. Winnt v. Interna- 
 tional & G. N. R. Co. 74 Tex. 32, 11 S. W. 
 907. 5: 172 
 
 24. Parents are not "heirs" within the 
 meaning of 2 Hill's (Wash.) Code, 138. 
 giving a right of action to the widow and 
 children of a man killed in a duel, and to 
 the heirs or personal representatives of a 
 person whose death is caused by wrongful 
 act or neglect; but the word "heirs" is 
 limited to the widow and children. Noble 
 v. Seattle, 19 Wash. 133, 52 Pac. 1013, 
 
 40:822 
 
 25. A father who, after a divorce decree 
 granting him the custody of his child, re- 
 turns the child to the mother and disap- 
 pears, brings her within a statute permit-
 
 990 
 
 DEATH, H. b. 
 
 ting a mother to maintain suit for the neg- 
 ligent killing of her child in case the father 
 has deserted his family. Clark v. Northern 
 P. R. Co. 29 Wash. " 139, 69 Pac. 636, 
 
 59: 508 
 
 26. Partial dependence upon her son for 
 the necessities of life is sufficient to en- 
 able a woman to maintain a suit for his 
 negligent killing, under the Massachusetts 
 statutes. Mulhall v. Fallen, 176 Mass. 266, 
 57 X. E. 386, 54: 934 
 
 27. A mother is dependent upon a boy 
 eleven years old so as to give her a right of 
 action for his death, when the members of 
 the family are mutually dependent upon 
 the labor of one another for their support, 
 and the boy's labor aiding the father on 
 the farm and his mother in the house is 
 worth $6 per month. Atlanta & C. Air 
 Line R. Co. v. Gravitt, 93 Ga. 369, 20 S. E. 
 550, 26: 553 
 
 28. The right of the mother of an un- 
 married minor whose father is dead to 
 recover damages for the death of the 
 child under a statute giving such right 
 to the father and mother, or the survivor 
 of them, is not changed by the fact that 
 she has married another man who has as- 
 sumed the obligations of a natural father 
 to his stepchild. Hennessy v. Bavarian 
 Brew. Co. 145 Mo. 104, 46 S. W. 966, 
 
 41 : 385 
 
 29. The mother of an illegitimate child 
 cannot recover for his death under Miss. 
 Acts 1898, p. 83, giving a right of action 
 to the mother and other specified relatives 
 of one whose death results from wrong- 
 ful injury. Alabama & V. R. Co. v. Wil- 
 liams, 78 Miss. 209, 28 So. 853, 51 : 836 
 
 30. The mother of an illegitimate child 
 has no right of action for his homicide 
 under Ga. Civ. Code, 3828, giving to a 
 mother a right of action for the homicide 
 of a child who contributes to her support. 
 Robinson v. Georgia R. & Bkg. Co. 117 
 Ga. 168, 43 S. E. 452, 60: 555 
 
 31. The father of an illegitimate child 
 has no right of action for the child's death, 
 under Ind. Rev. Stat. 1894, 267, giving 
 a father a right of action for the death of 
 a "child," although the mother is dead and 
 the child had been acknowledged by the 
 father and had no guardian or next of kin 
 except him. McDonald v. Pittsburgh, C. C. 
 & St. L. R. Co. 144 Ind. 459, 43 N. E. 
 447. 42: 309 
 Children. 
 
 After-Born Children, see Judgment, 250. 
 
 32. Minors have a cause of action for the 
 personal injury which resulted in the death 
 of their mother, as the right of action of 
 the mother is made to survive in the name 
 of her children. Deiisle v. Bourriague, 105 
 La. 77, 29 So. 731, 54:420 
 
 33. A child has no right of action for in- 
 juries to its mother, which cause its pre- 
 mature birth, so that in case death results 
 a cause of action will survive under a 
 statute giving a right of action for wrong- 
 ful doatli caused by negligence, where it 
 i> such as would, had death not resulted, 
 
 have entitled the person injured to main- 
 tain an action. Gorman v. Budlong, 23 
 R. I. 169, 49 Atl. 704, 55: 118 
 
 34. A posthumous child is one of the 
 "children" who are given a cause of action 
 by Tex. Rev. Stat. 2903. for injuries 
 causing the death of their father. Nelson v. 
 Galveston, H. & S. A. R. Co. 78 Tex. ti21 r 
 14 S. W. 1021, 11: 391 
 
 35. Children have no right of action for 
 the homicide of a stepfather on whom they 
 were entirely dependent, although he left 
 no widow and no other children, under a 
 statute giving a right of action for the 
 homicide of a "husband or parent." Mar- 
 shall v. Macon Sash, D. & L. Co. 103 Ga. 
 725, 30 S. E. 571, 41: 211 
 BrotHer or sister. 
 
 36. An illegitimate half sister cannot 
 maintain an action under Miss. Acts 1898, 
 p. 82, entitling a sister or brother to sue- 
 for the death of a sister or brother. Illi- 
 nois C. R. Co. v. Johnson, 77 Miss. 727, 28- 
 So. 753, 51: 837 
 Personal representative. 
 
 Authority of, to Compromise Action, see 
 
 infra, 63-65. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 232-237. 
 Concurrent Right of Action, see Election 
 
 of Remedies, 34. 
 Jurisdiction to Appoint, see Executors and 
 
 Administrators, 13, 14. 
 Collateral Attack on Appointment of, see 
 
 Executors and Administrators, 25. 
 Allegations as to, see Pleading, 398. 
 See also supra, 1, 9, 15; infra, 59. 
 
 37. An action for death caused by wrong- 
 ful act or omission, whether it results in- 
 stantly or not, is given by Hill's (Or.) Ann. 
 Code, ' 369, 371, providing that the per- 
 sonal representatives may maintain an ac- 
 tion at law if the deceased "might have 
 maintained an action had he lived." and that 
 the recovery shall be administered as other 
 personal property of the deceased. Per- 
 ham v. Portland General Elec. Co. 33 Or. 
 451, 53 Pac. 14, 40: 799- 
 
 38. An administrator has no right, under 
 the Massachusetts employers' liability act 
 (Mass. Laws 1887, chap/ 270), to recover 
 damages on account of the death of his in- 
 testate from injuries caused by the em- 
 ployers' negligence, in addition to his right 
 as legal representative tc recover the dam- 
 ages which accrued to the intestate in hi* 
 lifetime. Ramsdell v. New York & N. E. 
 R. Co. 151 Mass. 245, 23 N. E. 1103. 
 
 7: 154 
 
 39. An executor may bring an action for 
 the negligent killing of his testator, under 
 a statute providing that the action may he 
 brought by heirs or personal representa- 
 tives, although the statute expressly pro- 
 vides that the action shall be in favor of 
 the wife or children of decedent, and a 
 widow survives him, provided it is shown 1 
 that the action is brought with her con- 
 sent. Copland v. Seattle, 33 Wash. 41n. 74 
 Pac. 582, 65: 333 
 
 40. The Arkansas act of 1883 does not 
 take away the right which survives to the
 
 DEATH, III., IV. 
 
 991 
 
 personal representative by Mansf. (Ark.) 
 Dig. 5223, to recover upon the cause of 
 action for injuries which accrued by the 
 common law to an injured party in his life- 
 time; nor does it deprive a father of his 
 right to maintain his common- law action 
 for loss of services of his minor child. There- 
 fore in case of the death of a minor the 
 three actions may be prosecuted at the 
 same time, and recoveries be had in each 
 and all of them Davis v. St. Louis, I. M. 
 & S. R. Co. 53 Ark. 117, 13 S. W. 801, 
 
 7: 283 
 
 41. The Arkansas act of 1883 (Mansf. Dig. 
 5225, 5226) embodying the provisions of 
 Lord Campbell's act in regard to suits to re- 
 cover damages for death resulting from the 
 wrongful act, neglect, or default of an- 
 other, applies to all cases in which a re- 
 covery may be had under that act, regard- 
 less of the agency by which the injury was 
 inflicted, and supersedes the act of 1875 re- 
 lating to suits for injuries by railway 
 trains. Hence, such suits must be brought 
 by the personal representative for the bene- 
 fit of the widow and next of kin. Id. 
 
 42. A right to support from the person 
 killed is not necessary to give a right of 
 action under the statute providing for an 
 action, in the name of the personal repre- 
 sentative of a person wrongfully or negli- 
 gently killed, for the benefit of his wife or 
 next of kin. Howard v. Delaware & H. 
 Canal Co. 40 Fed. 195, 6: 75 
 
 III. Who Liable for Causing. 
 
 Liability of County for Killing by Mob, see 
 Constitutional Law, 259a; Counties, 40, 
 41. 
 
 Liability of Town for Death in Jail, see 
 Jails, 4. 
 
 Liability for Sale of Drug Causing, se 
 Drugs and Druggists, 4, 5. 
 
 Liability of Innkeeper for, see Innkeepers, 
 25. 
 
 Municipal Liability for, see Municipal Cor- 
 porations, 461, 513, 523. 
 
 Joint Liability of Agent, and Railroad Com- 
 pany for Causing, see Joint Creditors 
 and Debtors, 3. 
 
 Liability of Railroad Receiver in Case of, see 
 Receivers, 73. 
 
 For Editorial Notes, see infra, VII. 4. 
 
 43. A private corporation may be liable 
 for causing the death of a person, under the 
 Texas statute creating liability when the 
 death of any "person" is caused by the 
 wrongful act, negligence, etc., of "another." 
 Fleming v. Texas Loan Agency, 87 Tex. 
 238, 27 S. W, 126, 26: 250 
 
 44. The fraudulent sale of a horse by one 
 who knows that it has a contagious dis- 
 ease, such as glanders, to one ignorant of 
 the fact, will render the seller liable for 
 the death of one who contracts the disease 
 while in charge of the horse for the pur- 
 chaser, only in case such death is a natural 
 and probable consequence of contact with 
 
 the horse. State use of Hartlove v. Fox, 79 
 Md. 514. 29 Atl. 601, 24: 679 
 
 45. The statutory right of action for dam- 
 ages by reason of death caused by wrongful 
 act, neglect, or default does not extend to 
 an action against a city by the representa- 
 tives of one who died from disease super- 
 induced by the neglect of sanitary precau- 
 tions on the part of the public authorities 
 in the construction or maintenance of a 
 sewer system. Hughes v. Auburn, 161 N. 
 Y. 96, 55 N. E. 389, 46: 636 
 
 46. An express company which, under con- 
 tract with a railroad company, has for its 
 use a particular car or part of a car in a 
 train controlled by the latter, is not with- 
 in the terms of a statute giving damages 
 for death caused by the negligence of the 
 "proprietor, owner, charterer, or hirer of 
 any railroad, steamboat, stage coach, or 
 other vehicle for the conveyance of goods 
 or passengers," or of their servants. Lips- 
 comb v. Houston & T. C. R. Co. 95 Tex. 
 5, 64 S. W. 923, 55: 869 
 
 47. A statute giving a right of action for 
 the death of "any person" through the care- 
 lessness or criminal action of an agent, of- 
 ficer, or other employee of a railroad com- 
 pany, does not apply to a person killed by 
 the negligence of a fellow servant. Lutz 
 v. Atlantic & P. R. Co. 6 N. M. 496. 30 Pac. 
 912, 16: 819 
 
 48. Under a statute giving a right of ac- 
 tion against a railroad company for death 
 caused by the negligence or unskilfulness 
 of its agents or servants, such loss of life 
 must result from the negligence or unskil- 
 fulness of a servant or agent while engaged 
 in the work assigned him by the master. 
 Bowen v. Illinois C. R. Co. 136 Fed. 30(i. 
 
 70: 915 
 
 IV. Defenses. 
 
 Burden of Proving Justification or Illegal 
 Excuse, see Evidence, 339. 
 
 Limitation of Action, see Executors and Ad- 
 ministrators, 31. 
 
 See also supra, 15. 
 
 49. A negligent injury to one having an 
 incurable disease, followed by his death, 
 furnishes a good cause of action if the 
 death was materially hastened by reason 
 of the injury as an efficient cause, but not 
 if death was inevitable in a short time 
 from the disease, and the injury was so 
 slight as simply to aggravate the disease, 
 which remains the cause of death. Louis- 
 ville & N. R. Co. v. Northington, 91 Tenn. 
 56, 17 S. W. 880, 16: 268 
 
 50. A husband's right of action for the 
 loss of his wife's society on account of in- 
 juries which result in her death is defeated 
 by a recovery of judgment by her personal 
 representative in an action for her death, 
 brought under Ky. Gen. Stat. chap. 57, 
 1, for the benefit of her estate, which is 
 more advantageous to him than his coiumon- 
 law right of action for loss of her society. 
 Louisville & X. R. Co. v. McEhvain. 98 Ky. 
 700, 34 S. W. 236, 34: 788
 
 DEATH, V. 
 
 Contributory negligence of deceased. 
 
 Of Passenger, see Carriers, 257. 
 
 Of Person Killed by Street Car, see Street 
 
 Railways, 145. 
 
 Complaint Showing, see Pleading, 397. 
 See also Landlord and Tenant, 166. 
 
 51. Contributory negligence by deceased 
 is not a defense to an action by his repre- 
 sentatives to hold another person liable for 
 wrongfully killing him because he was mak- 
 ing an assault on a third. Tucker v. State 
 use of Johnson, 89 Md. 471, 43 Atl. 778, 
 44 Atl. 1004, 46: 181 
 
 52. An action for damages for wrongful 
 death cannot be maintained by a father un- 
 der Miss. Code 1892, 663, if deceased was 
 guilty of contributory negligence. Meyer v. 
 King, 72 Miss. 1, 16 So. 245, 35: 474 
 
 53. Contributory negligence is a defense 
 to an action for the death of a person re- 
 sulting from "negligence or wrongful act," 
 under Ky. Stat. 6, which further provides 
 for punitive damages if the "act is wilful 
 or the negligence is gross," but does not, as 
 prior statutes did, give any right of action 
 for "wilful neglect." Clark v. Louisville & 
 N. R. Co. 101 Ky. 34, 39 S. W. 840, 36: 123 
 
 54. Contributory negligence on the part of 
 a person killed by the wrongful act, neglect, 
 or default of another, prevents any liability 
 arising against the latter for such death, 
 under Ohio Rev. Stat. 6134, providing 
 that when death is caused by such wrong- 
 ful act, neglect, or default as would, if 
 death had not ensued, entitle the party in- 
 jured to maintain an action for damages, 
 the one causing the injury shall be liable to 
 an action for damages. Wolf v. Lake Erie 
 & W. R. Co. 55 Ohio St. 517, 45 N. E. 708, 
 
 36: 812 
 
 Contributory negligence of beneficiary. 
 For Editorial No'tes, see infra, VII. 4. 
 
 .55. The mother of a boy is not chargeable 
 with the negligence of a custodian for him 
 chosen by the father, so as to defeat her 
 right to recover for his wrongful death. 
 Atlanta & C. Air Line R. Co. v. Gravitt, 93 
 Ga. 369, 20 S. E. 550, 26: 553 
 
 56. Negligence of a parent contributing 
 to the death of his infant child will defeat 
 a recovery by him as administrator of the 
 <?hild, when he is the sole beneficiary of the 
 action. Bam'berger v. Citizens' Street R. 
 Co. 95 Tenn. 18, 3i S. W. 163, 28: 486 
 
 57. The right of recovery in favor of the 
 estate of a child killed in consequence of 
 negligence is not affected by the fact that 
 the parents, wno are entitled to his estate 
 by inheritance, contributed to the accident. 
 Wvmore v. Mahaska County, 78 Iowa, 396, 
 43' X. W. 264, 6: 54o 
 
 58. Negligence on the part of the parents 
 of a sick child in caring for it after it has 
 been removed from a house through the 
 owner's abuse of process, under a judgment 
 of forcible entry and detainer, against its 
 parents' will, constitutes no defense to an 
 action against the owner for causing its 
 death, which resulted from the exposure. 
 Bradshaw v. Frazier, 113 Iowa, 579, 85 N. 
 AY. 752, 55: 258 
 
 59. Contributory negligence of the bene- 
 
 ficiaries, but not of the administrator, will 
 prevent a recovery in favor of such benefi- 
 ciaries as are guilty of negligence, but not 
 as to beneficiaries free from negligence in an 
 action under Ohio Rev. Stat. 6134, 6135, 
 making any person liable to an action for 
 damages where death is caused by such 
 wrongful act, neglect, or default ae would 
 have entitled the decedent to maintain an 
 action if death had not ensued, and provid- 
 ing that such action shall be brought in 
 the name of the personal representative for 
 the exclusive benefit of specified persons. 
 Wolf v. Lake Erie & W. R. Co. 55 Ohio St. 
 517, 45 N. E. 708, 36: 812 
 
 Release or compromise. 
 Sufficiency of Answer as to, see Pleading 
 
 507. 
 For Editorial Notes, see infra, VII. 4, 
 
 7. 
 
 60. A widow's release of a right of action 
 for the death of her husband does not af- 
 fect her right to maintain an action for her 
 child in her representative capacity, under 
 Burn's (Ind.) Rev. Stat. 1894, 285 (Hor- 
 ner's Rev. Stat. 1897, 284). Pittsburg, C. 
 C. & St. L. R. Co. v. Moore, 152 Ind. 345, 
 53 N. E. 290, 44: 638 
 
 61. A right of action for the death of a 
 husband or father, given to wife or children 
 by Ga. Civ. Code, 3828, is barred by his 
 voluntary settlement, during his lifetime, 
 with the wrongdoer for the injury which 
 afterward results in his death. Southern 
 Bell Teleph. & Teleg. Co. v. Cassin, 111 
 Ga. 575, 36 S. E. 881, 50: 604 
 
 62. A release by the party injured of all 
 demands for personal injuries precludes any 
 right of action on account of his death sub- 
 sequently resulting therefrom, under Pa. 
 Acts April 15, 1851, 19, and April 26, 
 1855, giving a right of action for death 
 caused by unlawful violence or negligence, 
 if "no suit for damages be brought by the 
 party injured during his or her life," to the 
 widow, children, or parents of the deceased. 
 Hill v. Pennsylvania R. Co. 178 Pa. 223, 35 
 Atl. 997, 35: 196 
 
 V. Authority to Compromise Claim for. 
 
 For Editorial Notes, see infra, VII. 4. 
 
 63. The power of an executor or adminis- 
 trator to compromise disputed claims ap- 
 plies to a purely statutory cause of action 
 for causing the death of the intestate, to be 
 brought for the use of his 3*idow and next 
 of kin. Parker v. Providence & S. Steam- 
 ship Co. 17 R. I. 376, 378, 22 Atl. 284, 
 
 14: 414 
 
 64. A compromise of a cause of action for 
 death may be made by the personal repre- 
 sentatives of the person killed without the 
 consent of the next of kin or the probate 
 court, either before or after the commence- 
 ment of an action under Minn. Gen. Stat. 
 1894, 5913, although this action is brought 
 for the benefit of the next of kin. Foot v. 
 Great Northern R. Co. 81 Minn. 493. 84 N. 
 W. 342, 52: 354
 
 DEATH, VI., VII. 
 
 993 
 
 85. The wjdow of a person having no 
 children and killed by the negligence of an- 
 other cannot compromise or settle an ac- 
 tion brought by the administrator, under 
 .a statute providing that an action may be 
 brought for a death caused by the wrong- 
 ful act or negligence of another, by the 
 personal representatives of the deceased, and 
 that the damages recovered shall inure to 
 the exclusive benefit of the widow and chil- 
 dren of the deceased, since such damages 
 will be chargeable with the expenses of the 
 administrator's services, attorney's fees, and 
 of administration. Yelton v. Evansville & 
 I. R. Co. 134 Ind. 414, 33 N. E. 629, 21: 158 
 
 VI. Effect of. 
 
 To Abate Action, see Abatement and Re- 
 vival, II. 
 
 To Abate Writ of Error in Criminal Case, 
 see Appeal and Error, 362. 
 
 On Court's Power over Costs, see Appeal 
 and Error, 1227. 
 
 Revocation of Note by Maker's Death, see 
 Bills and Notes, 41. 
 
 Revocation of Power by, see Banks, 92a; 
 Mortgage, 46, 179. 
 
 Revocation of Guaranty by, see Guaranty, 
 39-42. 
 
 Termination of Contract by, see Contracts, 
 769-774. 
 
 As Ground of Relief from Contract, see Con- 
 tracts, 672, 673. 
 
 On Check, see Banks, 116, 117; Gift, 19. 
 
 On Right to Maintain Creditors' Bill, see 
 Creditors' Bill, 26. 
 
 Of Husband, Effect on Alimony, see Di- 
 vorce and Separation, 92-95. 
 
 Of Homesteader, Effect on Creditor's Rights, 
 see Homestead,"28-31, 41. 
 
 Of Members of Family, Effect on" Home- 
 stead, see Homestead, 44-46. 
 
 Of Tenant, Effect on Lease, see Landlord 
 and Tenant, 58. 
 
 Of Plaintiff's Death after Issuance of Exe- 
 cution, see Levy and Seizure, 62. 
 
 On Running of Limitations, see Limitation 
 of Actions, 226. 
 
 On Contract of Employment, see Master 
 and Servant, 33. 
 
 On Partnership Real Estate, see Partner- 
 ship, 88-96. 
 
 On Agent's Authority, see Principal and 
 Agent, 7. 
 
 On Right to Collect Tolls, see Tolls and Toll 
 Roads, 17. 
 
 Rendering Condition Subsequent Impossi- 
 ble of Performance, see Wills, 302. 
 
 On Competency of Witness, see Witnesses, 
 
 1. c. 
 
 For Editorial Notes, see infra, VII. 
 
 2, 3. 
 
 VII. Editorial Notes. 
 
 Abatement, Survival, or Revival of Action, 
 see Abatement and Re- 
 vival. V. 
 L.R.A. Dig. 63. 
 
 a. In general. 
 
 i. Generally. 
 
 Law as to civil death in United States. 18: 
 82. 
 
 Admissibility of finding of coroner to show 
 cause of death. 68: 285. 
 
 Presumption as to survivorship where sev- 
 eral persons lost in same 
 disaster. 10: 550.* 
 
 Testimony of witness, since deceased, at 
 former trial. 2: 78.* 
 
 2. Effect of. 
 
 As excuse for nonperformance of contract. 
 14: 217. 
 
 To relieve from contract. 23: 707. 
 
 Effect of death of subscriber to corporate 
 * stock. 33: 597. 
 
 Effect of death of cosurety. 2: 184.* 
 
 Effect of death of guarantor. 2: 183.* 
 
 Effect of death of party to revoke warrant 
 of attorney to confess 
 judgment. 13: 797. 
 
 Effect of death upon liability of husband 
 and wife for the tatter's 
 libel or slander. 30: 529. 
 
 Right to recover for services interrupted by 
 sickness or death. 16: 858. 
 
 Of third person as condition of performance 
 of contract of marriage. 
 52: 660. 
 
 3. Upon judgment or execution. 
 
 Entry of judgment nunc pro tune after 
 death of party. 20: 148. 
 
 Effect of judgment entered against dead 
 person. 49: 153. 
 
 Effect of the death of one of the parties 
 after judgment upon rem- 
 edy by execution. 61: 353. 
 
 b. Right of action for. 
 
 4. Generally. 
 
 Liability for death caused by negligence. 
 2:68,* 520;* 3: 385;* 4: 
 261;* 5: 172;* 7: 154.* 
 Where injuries are inflicted beyond 
 
 state limit!?. 4: 261.* 
 Instances. 4: 262.* 
 Venue of action. 4: 262.* 
 Right of action; in whom. 4: 263;* 13: 
 
 458.* 
 
 Contributory negligence as defense. 4: 
 263.* 
 
 Right of alien nonresident to maintain 
 statutory action for death 
 of other person. 54: 934. 
 
 Effect of parent's contributory negligence 
 to defeat his recovery for 
 death of child. 17: 79. 
 
 Liability for killing trespasser by means 
 of spring guns, traps, and 
 other dangerous instru- 
 ments. 29: 154. 
 
 Liability of railroad receiver for. 15: 262. 
 
 Right of action for, as basis of jurisdiction 
 to appoint administrator. 
 24: 6S(i. 
 
 Power to compromise action for. 21: T58. 
 
 Compromise by personal representative of 
 suit t'nr damage* for caus- 
 ing death. 14: 417.
 
 994 
 
 DEATH WARRANT DEBTOR AND CREDITOR. 
 
 5. Action under foreign statute; conflict 
 
 of laws. 
 
 Taking jurisdiction of cause of action aris- 
 ing outside of state. 56: 
 193. 
 
 What law determines right of action. 56: 193. 
 
 Law applicable in actions upon foreign 
 
 cause of action. 56: 193 
 
 Conflict of laws as to limitation of actions 
 
 for. 48: 639. 
 
 6. Right of action at common law. 
 Common-law right of action of parent for 
 loss of services of child 
 killed. 41:' 807. 
 
 Rule that no action will lie. 41 : 807. 
 Different theories as to. 41: 807. 
 Doctrine that private injury is 
 merged in public, wrong. 
 41: 807. 
 
 Doctrine that human life is not a 
 subject of civil damages. 
 41 : 808. 
 
 Effect when death is not instanta- 
 neous. 41: 810. 
 The contrary rule. 41: 811. 
 The true rule. 41: 814. 
 Rule when injury consists of a breach 
 
 of contract. 41 : 815. 
 7. Distinct causes of action. 
 How many distinct causes of action arise 
 from injuries resulting in 
 death. '34: 788. 
 Alternative action for death or injury. 
 
 34: 789. 
 
 Generally. 34: 789. 
 Actions for .death as affected by 
 
 release. 34: 790. 
 By injured party. 34: 790. 
 By others. 34: 792. 
 By plaintiffs. 34: 793. 
 Other actions as a bar. 34: 794. 
 Actions for the injury. 34: 
 
 794. 
 Other actions for the death. 
 
 34: 795. 
 Multiplicity of actions for death. 
 
 34: 796. 
 Bar of other actions bv limitation. 
 
 34: 797. 
 
 For death of infants. 34: 798. 
 Concurrent actions for death and in- 
 jury. 34: 801. 
 8. Damages recoverable. 
 Law governing. 15: 585; 56: 312. 
 Difference as to amount of recovery as af- 
 fecting action for death 
 based on statute of an- 
 other state. 56: 205. 
 
 Mental anguish as an element of damages 
 for injuries causing death. 
 13: 860.* 
 
 Measure of damages for death from sale of 
 intoxicating liquors. 3: 
 327.* 
 
 Effect of benefit from other source to miti- 
 gate damages for wrong- 
 ful death. 67: 91. 
 Measure of damages for death caused by 
 
 negligence. 17: 71. 
 
 Interest on sum allowed as damages for per- 
 sonal injuries resulting in 
 death. 18: 449. 
 
 DEATH WARRANT. 
 
 Appeal from, see Appeal and Error, 517. 
 
 DEBATES. 
 
 Of Constitutional Convention, see Consti- 
 
 tutional Law, 52. 
 Invalidity of Contract, see Contracts, 406^ 
 
 Lottery, 24. 
 
 Editorial Notes. 
 What are; nature of. 1: 787.* 
 
 DEBT. 
 
 Penalty in Bastardy Case as, see Bastardy,, 
 6. 
 
 Action for, against Servant or Agent, see 
 Case, 8. 
 
 Final Decree for Alimony as, see Contempt.. 
 96. 
 
 Liability of Executor for, Bee Executors and 
 Administrators, 49, 50. 
 
 Of Personal Representative to Decedent's 
 Estate; Liability on, see Executors and 
 Administrators, 79, 80, 97. 
 
 Situs of, see Garnishment, I. d; Insolvency ,_ 
 6. 
 
 Imprisonment for, see Contempt, 9598; Im- 
 prisonment for Debt. 
 
 Interest on, see Interest, I. b. 
 
 Deduction of, in Assessing for Taxes, see- 
 Taxes, 43-45, 405^14. 
 
 Taxation of, see Taxes, 145, 149. 
 
 What are Debts, see Bankruptcy, 13; Cor- 
 porations, 323, 324, 550; Counties.. 
 38; Creditors' Bill, 22; Divorce and 
 Separation, 96; Executors and Ad- 
 ministrators, 156;" Garnishment, 51; 
 Homestead, 24. 
 
 1. A complainant under a statute impos- 
 ing a fine cannot recover in debt that por- 
 tion of the fine to which by the statute 
 he is entitled. State v. Marshall, 64 N. H. 
 549, 15 Atl. 210, 1: 51 
 
 2. A common-law action of debt will not 
 be denied on the ground that the plaintiff 
 has in another tribunal a more speedy and 
 simple remedy which is equally efficacious, 
 especially where this would deprive him of 
 the right to a trial by jury. Braithwaite 
 v. Jordan, 5 N. D. 196, 65 N. W. 701, 31: 238 
 
 3. A debt is any kind of obligation of 
 one man to pay money to another. Duns- 
 moor v. Furstenfeldt, 88 Cal. 522, 26 Pac. 
 518, 12: 508 
 
 Editorial Notes. 
 
 Constitutionality of imprisonment for. 34: 
 
 634. 
 Where debt garni suable. 19: 577; 67: 209.. 
 
 DEBTOR AND CREDITOR. 
 
 Accord and Satisfaction between, see Ao 
 cord and Satisfaction.
 
 DEBTOR AND CREDITOR. 
 
 (Compromise and Settlement between, see 
 Compromise and Settlement. 
 
 Composition with Creditors, see Composi- 
 tion with Creditors. 
 
 Assignments of Debtors, see Assignments 
 for Creditors. 
 
 When Relation Exists, see Banks, 102; 
 Bills and Notes, 183; Levy and Seizure, 
 5; Limitation of Actions, 106. 
 
 What Terminates Relation, see Landlord 
 and Tenant, 66. 
 
 Conspiracy to Fraudulently Dispose of Debt- 
 or's Property, see Case, 15. 
 
 Right to Transfer Property to Pay Debt, 
 see Constitutional Law, 778. 
 
 Right to Threaten Debtor, see Constitu- 
 tional Law, 932. 
 
 Rights of Creditors in Unassigned Dower, 
 see Dower, 69-71. 
 
 Election as to Debtor, see Election. 
 
 Remedy against Legatees or Next of Kin of 
 Debtor, see Election of Remedies, 15. 
 
 Representation of Creditors by Personal 
 Representative, see Executors and Ad- 
 ministrators, 34, 60. 
 
 Creditors of Decedent, see Executors and 
 Administrators, IV. 
 
 Concealment of Value of Collateral on 
 Abatement of Debt, see Fraud and De- 
 ceit, 13. 
 
 Conveyances Fraudulent as to Creditors, see 
 Fraudulent Conveyances. 
 
 As to Remedies of Creditors, see Attach- 
 ment; Creditors' Bill; Fraudulent Con- 
 veyances, VIII., IX.; Garnishment. 
 
 As to Exemptions, see Exemptions; Home- 
 stead. 
 
 Liability of Wife's Separate Estate for Her 
 Debts, see Husband and Wife, 110, 
 111. 
 
 Rights of Husband's Creditors as Affected 
 by Marital Relations of Debtor, see 
 Husband and Wife, 105-109, 181-192; 
 
 V. 16. 
 
 Creditor's Rights to Earnings of Emanci- 
 pated Child, see Parent and Child, 4. 
 
 Insolvency of Debtor, see Assignment for 
 Benefit of Creditors; Bankruptcy; 
 Banks V., VIII. 18-22; Corporations, 
 
 VI. f; VII. d; VIII. 48-51; Insol- 
 vency; Partnership. 
 
 Insurable Interest in Life of Debtor, see In- 
 surance, 174-177. 
 
 Effect on Insurance of Deeding Property to 
 Creditor, see Insurance, 368. 
 
 Rights in Insurance Procured by Fraudu- 
 lent Grantee, see Insurance, 1151. 
 
 Rights of Creditor to Life Insurance, , see 
 Insurance, VI. d, 2, 6. 
 
 Priority of Judgment against Fraudulent 
 Grantor, see Judgment, 313, 314. 
 
 Liability of Creditor for Libel, see Libel 
 and Slander, 2. 
 
 Lien of Creditor, see Liens; Mechanics' Lien. 
 
 Creditor's Right to Maintain Action on Con- 
 tract with Debtor, see Parties, 55-57. 
 
 Creditor's Right to Intervene, see Parties, 
 218. 
 
 Liability for Debts of One Exercising Power 
 of Appointment, see Powers, 3, 4. 
 
 Rights of Creditors in Trust Fund, see 
 Trusts, m. b. 
 
 1. A debtor's time, talents, and industry 
 are at his own disposal, and his creditors 
 have no claim thereto. Mayers v. Kaiser. 
 85 Wis. 382, 55 N. W. 688, 21:62.1 
 
 2. A condition in a devise, that the prem- 
 ises shall in nowise ever be subject to 
 any debt, liability, execution, or attach- 
 ment against the devisee, existing at that 
 time or at any future time, is void. Van 
 Osdell v. Champion, 89 Wis. 661, 62 N. W. 
 539, 27: 773 
 
 3. A loan of money to a corporation will 
 render it liable for the debt, although the 
 note of individuals, instead of the note of 
 the corporation, was taken therefor be- 
 cause it was supposed to be better security. 
 The test is whether the note was received 
 as a consideration for the money, or only 
 as a security. Third Nat. Bank's Appeal, 
 141 Pa. 214, 21 Atl. 598, 12: 22S 
 Effect of creditor's nonresidence. 
 
 4. The fact that creditors are nonresidents 
 will not affect the question of the validity of 
 a mortgage made to them as against other 
 creditors. Nathan v. Lee, 152 Ind. 232, 52 
 N. E. 987, 43: 820 
 Attempt to evade exemption laws. 
 
 See also infra, Editorial Notes, 1. 
 
 5. An attempt to evade the exemption 
 laws of the state in which both parties re- 
 side, by a creditor who attaches property 
 of his debtor temporarily found in another 
 state, and enforces his claim there notwith- 
 standing an injunction from a court of his 
 own state, makes him liable to his debtor 
 in damages in the state where they reside. 
 Stewart v. Thomson, 97 Ky. 575. 31 S. W. 
 133, 36: 582 
 
 6. The term "corporations engaged in in- 
 terstate business," in the title of the Ne- 
 braska act of 1889 for the protection of 
 earnings of employees of corporations, firms, 
 or individuals engaged in interstate busi- 
 ness, against attempts, by assignment or 
 otherwise, to evade the exemption laws, con- 
 strued with reference to the object of the 
 act, means a corporation doing business 
 and employing men in that state, and hav- 
 ing in another state such situs as to permit 
 of its being reached by process of garnish- 
 ment there. Bishop v. Middleton. 43 Neb- 
 10, 61 N. W. 129, -2&: 445 
 
 Editorial Notes. 
 
 i. Generally. 
 
 One receiving credit responsible for the 
 debt; effect of taking se- 
 curity. 12:223.* 
 
 Debtor's right of action against creditor for 
 collecting debt in another 
 jurisdiction in evasion of 
 the exemption laws of 
 their domicil. 36:582. 
 
 2. Right of creditor in personal services 
 of debtor. 
 
 Subjecting earnings not yet due. 21:623. 
 
 Contracts to pay an insolvent debtor wages 
 in advance for his services. 
 21:624. 
 
 Where the debtor gives his time and labor 
 to the business of another 
 generally. 21:624.
 
 996 
 
 DECEASED LEGATEE DEDICATION , I a. 
 
 Exceptions and limitations. 21:628. 
 Profits on farm caused by debtor's labor. 
 
 21:629. 
 Improvements on wife's land. 21:631. 
 
 DECEASED LEGATEE. 
 
 Who is, see Wills, 200. 
 
 DECEDENTS. 
 
 Administration of Estates of, 
 tors and Administrators. 
 
 Homestead in Property of. see 
 IV. b. 
 
 see Execu- 
 Homestead, 
 
 DECEIT. 
 
 See Fraud and Deceit. 
 
 DECEPTIVE CREDITS. 
 
 Bank's Liability for Procuring, see Banks, 
 286-288. 
 
 DECISIONS. 
 
 Effect of Amendment of Constitution on, 
 see Constitutional Law, 28. 
 
 Change of, as Affecting Contract, see Con- 
 stitutional Law, II. g, 1, 6, (1), (b). 
 
 Of Associations or Religious Societies, Con- 
 clusiveness of, see Courts, I. d. 
 
 DECLARATIONS. 
 
 Evidence of, see Evidence, X. 
 In Pleadings, see Pleading, II. 
 
 DECOY. 
 
 Editorial Notes. 
 Offense by stealing decoy letter. 1:104* 
 
 DECREE. 
 
 See Judgment. 
 
 DECREE NISI. 
 
 In Divorce Suit, see Divorce and Separation 
 52-54; Evidence, 1235. 
 
 DEDICATION. 
 
 I. Mode and Effect. 
 
 a. In General. 
 
 b. By Map or Plat. 
 
 c. Who may Dedicate. 
 II. Acceptance. 
 
 III. Revocation; Abandonment; Reverter. 
 TV. Editorial Notes. 
 
 Impairment of Contract of, see Constitu- 
 tional Law, 1127. 
 
 By Corporate Directors, see Corporations, 
 247. 
 
 Ejectment for Land Dedicated as Street, 
 see Ejectment, 23, 25. 
 
 Presumption of Intention to Dedicate Pass- 
 way, see Evidence, 713. 
 
 Evidence by Former Agent as to Intent to 
 Dedicate, see Evidence, 1777. 
 
 Of Land as "Levee," see Levee, 2. 
 
 Joining Donor in Injunction against Im- 
 proper Use of Land, see Parties, 214. 
 
 Purchaser Bound by, see Vendor and Pur- 
 chaser, 89, 90. 
 
 Of Hunting Grounds, see Waters, 40. 
 
 I. Mode and Effect, 
 a. In General. 
 
 1. A railroad corporation cannot acquire 
 title to or an easement in land by common - 
 law dedication. Lake Erie & W. R. Co. v. 
 Whitham, 155 111. 514, 40 N. E. 1014, 
 
 28: 612 
 
 2. In order to constitute a common-law 
 dedication, the owner's acts and declara- 
 tions must be deliberate, unequivocal, and 
 decisive, manifesting a positive and unmis- 
 takable intention permanently to abandon 
 his property to the public use. Hogue v. 
 Albina, 20 Or. 182, 25 Pac. 386, 10: 673 
 
 3. The actual use of land may be devoted 
 to public purposes without deed or writing 
 of any character, and may be proved by 
 acts showing an intention to make the do- 
 nation, and an acceptance and use of it by 
 the public for that purpose. Campbell v. 
 Kansas City, 102 Mo. 326, 13 S. W. 897, 
 
 10: 593 
 
 4. In order to constitute a dedication by 
 parol, there must be some acts proved evinc- 
 ing a clear intention to dedicate the land to 
 the public use. Hogue v. Albina, 20 Or. 
 182. 25 Pac. 386. 10: 673 
 
 5. The facts that very little has been 
 done to adorn land claimed to have been 
 dedicated by the originator of a summer 
 resort for park purposes, and that that 
 little was done by the originator himself, 
 who exercised some control over the land, 
 are not of much weight to show absence of 
 intention to dedicate. Attorney General v. 
 Abbott, 154 Mass. 323, 28 N. E. 346, 
 
 13: 251 
 Right to attach restrictions. 
 
 6. In dedicating lands to the public, the 
 dedicator may attach such reasonable re- 
 strictions to their use by the public as he
 
 DEDICATION, I. b. 
 
 997 
 
 may see fit. Church v. Portland, 18 Or. 73, 
 22 Pac. 528, 6: 259 
 
 Shown by use. 
 Presumption from Possession and Use, see 
 
 Evidence, 714, 715, 720. 
 See also supra, 3. 
 For Editorial Notes, see infra, IV. 
 
 7. A public square in a town or village, 
 which for more than eighty years has been 
 treated as such by the county court of the 
 county, and recognized as such by the mu- 
 nicipal authorities of the town, and used as 
 such by the court and public generally, must 
 be considered as dedicated as a public square 
 for the use of the public. Sturmer v. Ran- 
 dolph County Ct. 42 W. Va. 724, 26 S. E. 
 532, .. 36: 300 
 
 8. Dedication of land for a highway is 
 not shown by the fact that for eight years 
 the land was used by the public generally 
 for travel, without either consent or objec- 
 tion on the part of the owner. San Fran- 
 cisco v. G-rote, 120 Cal. 59, 52 Pac. 127, 
 
 41: 335 
 
 9. No dedication for the purpose of a 
 highway can be inferred by the public use, 
 for more than twenty years, of the cov- 
 ered surface formed by timbers, planks, 
 and earth over a canal feeder belonging to 
 the state. The land being appropriated for 
 use as a canal feeder, a grant for highway 
 purposes could not be made, and a dedica- 
 tion for such purposes therefore cannot be 
 presumed. Donahue v. State, 112 N. Y. 
 142, 19 N. E. 419, 2: 576 
 
 10. Not merely the strip actually traveled 
 will be presumed by reason of the public 
 use to be dedicated for a street, where the 
 street is already laid out on each side of the 
 premises, but it will be presumed that the 
 owner intended to dedicate a strip the full 
 width of the street. Marion v. Skillman, 
 127 Ind. 130, 26 N. E. 676, 11: 55 
 
 11. A common-law dedication of a high- 
 way is shown by the record of the board 
 of supervisors of the county showing the 
 presentation of a petition by the owner of 
 the land to have the way established, fol- 
 lowed by an acceptance, survey and user 
 of the road for more than thirty years, to- 
 gether with evidence that the owner always 
 intended the road, which was opened to 
 reach his sawmill, to be a public highway. 
 People ex rel. Hart v. Marin County, 103 
 Cal. 223, 37 Pac. 203, 26: 659 
 Effect. 
 
 Effect of, on Dower, see Dower, 15. 
 For Editorial Notes, see infra, IV. 
 
 12. Although a common-law dedication of 
 land does not pass the legal title thereto out 
 of the party making it, yet it is sufficient 
 to defeat an action at law for the recovery 
 of the possession of the property as against 
 those who are using it in accordance with 
 the object and purpose for which it is dedi- 
 cated. Meier v. Portland Cable R. Co. 
 16 Or. ,100. 19 Pac. 610, 1: 856 
 
 13. The question of a dedication of 'land 
 for street purposes cannot be raised by a 
 village in proceedings to condemn an ease- 
 ment over it for a village street, as the 
 village concedes the owner's right when it 
 
 institutes a proceeding to take it away. 
 Re Olean, 135 N. Y. 341, 32 N. E. 9 17: 640 
 
 14. A dedication to the public of a portion 
 of land which is subject to a purchase- 
 money mortgage will be superior to the 
 claim of the mortgagee, if he accepts a re- 
 conveyance in satisfaction of the mort- 
 gage. Archer v. Salinas City, 93 Cal. 43, 
 28 Pac. 839, 16: 145 
 Diversion to other use. 
 
 See also Public Grounds. 
 
 For Editorial Notes, see infra, IV. 
 
 15. The legislature has no power to divert 
 land dedicated to a specific, limited, and 
 definite public use to any other purpose in- 
 consistent with such use. St. Paul v. Chi- 
 cago, M. & St. P. R. Co. 63 Minn. 330, 63 
 N. W. 267, 65 N. W. 649, <58 N. W. 458, 
 
 34: 184 
 
 16. A portion of a parcel of land dedi- 
 cated for a public park cannot be devoted 
 to the establishment of a public highway 
 if the result will be to cut the dedicated 
 tract into small parcels, and destroy their 
 utility for the purpose for which the tract 
 was dedicated. Riverside v. Maclean, 210 
 111. 308, 71 N. E. 408, * 66: 288 
 
 b. By Map or Plat. 
 
 See also infra, 39, 44, 45; Highways, 8; 
 
 Parks and Squares, 1. 
 For Editorial Notes, see infra, IV. 
 
 17. A street shown on that portion of a 
 map representing the oldest part of the 
 city, leaving lots and blocks blank, is not 
 dedicated by the map, which is intended 
 merely to show a new portion or addition 
 not touched by such street, in which the 
 lots and blocks are marked, especially 
 where the maker has prior maps of the por- 
 tion including such street, which do not 
 show any street at that place. Lewis v. 
 Portland, 25 Or. 133, 35 Pac. 256, 22: 736 
 
 18. The indication, upon a plat dedicating 
 a parcel of land for a public park, of roads 
 or pathways, does not justify the opening 
 of roadways across the tract at places 
 other than those indicated. Riverside v. 
 Maclean, 210 111. 308, 71 N. E. 408, 
 
 66: 288 
 
 19. A village plat showing a strip of land 
 100 feet wide on each side of a railroad 
 track, but which is not marked or noted on 
 the plat as donated or granted to the rail- 
 road company which would be necessary to 
 make a conveyance thereof under 111. Rev. 
 Stat. chap. 109, 3, cannot be made to oper- 
 ate as such conveyance by the aid of proof 
 of contemporaneous or subsequent acts of 
 the parties tending to show dedication 
 thereof as part of the right of way. Lake 
 Erie & W. R. Co. v. Whitham, 155 111. 514, 40 
 N. E. 1014, 28: 612 
 
 20. A dedication of land for a graveyard 
 is shown where the proprietors of the land 
 marked it on a plat as "donated for grave- 
 yard," and the plat was used for making 
 sales of other land, while the public ac- 
 cepted the use thus indicated by burying 
 their dead on the land for about ten years.
 
 998 
 
 DEDICATION, I. c. 
 
 Campbell v. Kansas City, 102 Mo. 326, 13 
 S. W. 897, 10:593 
 
 Extent of dedication. 
 Title Remaining in Abutting Owner, see 
 
 Boundaries, 20. 
 Reservation of Easement, see Highways, 43. 
 
 21. Failing to indicate the width of a road 
 shown upon a recorded plat with reference 
 to which lots are sold does not invalidate 
 the dedication, but such width will be de- 
 termined, in the absence of a statutory rule, 
 by the character or extent of the user by 
 the public. Western R. of Ala. v. Alabama 
 G. T. R. Co. 96 Ala. 272, 11 So. 483, 
 
 17: 474 
 
 22. A street indicated on an ancient plat 
 may be held to have been dedicated to the 
 public for its entire width, although as 
 found it does not exactly correspond to the 
 calls on the plat, if from ancient fences 
 and buildings it appears that the street 
 found was a practical construction of the 
 plat. Madison v. Mayers, 97 Wis. 399, 
 73 N. W. 43, 40: 635 
 
 23. Where it is sought to establish a 
 dedication by the sale, of lots with reference 
 to a map or plat, the extent of such dedi- 
 cation is to be determined from the con- 
 sideration of the whole map, the object be- 
 ing to ascertain the intention of the donor; 
 the cardinal rule of construction being to 
 trive effect to the intention of the party 
 as manifested by his acts. Hogue v. Albina, 
 20 Or. 182, 25 Pac. 386, 10: 673 
 Selling lots with respect to plat or map. 
 Estoppel to Reclaim Graveyard by, see 
 
 Cemeteries, 11. 
 By Camp Meeting Association, see Camp 
 
 Meeting Associations, 1. 
 Rights of, in Highways, see Highways, 
 
 40a-40c. 
 See also supra, 23; infra, 50, 51. 
 
 24. Leaving land unsubdivided upon a 
 plat with an express de'dication as public 
 ground not to be occupied by buildings of 
 any description, or marking it as a street 
 and holding it out as open ground, no build- 
 ings, to purchasers, is equivalent to a dedi- 
 cation for public use, and creates a restric- 
 tion against the erection of buildings there- 
 on. Chicago v. Ward, 169 111. 392, 48 N. E. 
 927, 38: 849 
 
 25. Persons who purchased lots with re- 
 spect to a plat showing a park dedicated 
 to the use of the public are entitled to en- 
 force their rights to have the tract kept 
 open for the public use. Riverside v. Mac- 
 lean, 210 111. 308, 71 N. E. 408, 66: 288 
 
 26. An intention to dedicate land for 
 parks is shown where a corporation formed 
 for establishing a summer resort procures 
 land and records plats thereof with open 
 spaces left thereon marked "park," copies 
 of which are, for the purpose of selling 
 lots, hung in public places and distributed 
 about the country as circulars, and assur- 
 ances are freely given by those having 
 Charge of the sale that the parks shall al- 
 ways be kept open. Attorney General v. 
 Abbott, 154 Mass. 323, 28 N. 'E. 346, 
 
 13: 251 
 
 27. A dedication to the public of land 
 
 for a park is effected by the owner of a 
 tract which lies within an incorporated 
 town, if he makes and records a map by 
 which the tract is subdivided into blocks 
 and lots which are bounded by streets con- 
 necting with streets of the town already 
 laid out, marks a space thereon "park," 
 and sells lots which, according to the map. 
 face the park, holding out its existence as 
 an inducement to purchasers. Archer v. 
 Salinas City, 93 Cal. 43, 28 Pac. 839, 
 
 16: 145 
 
 28. A land company which, by a quorum 
 of its directors, lays out open spaces or 
 parks, and designates them as such, though 
 with some changes of boundaries, on all its 
 plans upon which its sales of lots were 
 made, and assures purchasers that they 
 shall always be kept open, dedicates them, as 
 parks to the public, although not much is 
 done to adorn them, and all that is done is 
 done by the corporation. Id. 
 
 29. A reference in deeds to a map of an 
 addition to a city cannot be taken as con- 
 stituting a dedication of a street marked in 
 a map of the city which is not shown to 
 have been known to the grantor, where the 
 latter had made maps of the addition with- 
 out showing such streets. Lewis v. Port- 
 land, 25 Or. 133, 35 Pac. 256, 22: 736 
 
 30. Where the owner of land lays it off 
 into blocks, lots, and streets, platting it 
 as an addition to a city, and causes the 
 plat, although not acknowledged so as to 
 entitle it to record, to be recorded in the 
 book of deeds in the office of the clerk of 
 the county in which the land is situated, 
 and sells and conveys any of the lots or 
 blocks by a reference, in the description 
 thereof, to such plat, it constitutes an ir- 
 revocable dedication to the public of the 
 streets shown upon it. Meier v. Portland 
 Cable R. Co. 16 Or. 500, 19 Pac. 610. 
 
 f \ 1: 856 
 
 31. WTiere the owner of lands lays out a 
 town and records a plat thereof, on which 
 streets are dedicated to the public, and it 
 is sought to establish another and different 
 dedication by the acts and conduct of the 
 owner in exhibiting to intending purchasers 
 another map prepared on the same day, and 
 selling lots by reference to the second plat, 
 such second plat, to have this effect, must 
 be essentially different from the recorded 
 one, showing on its face an intention on the 
 part of the owner to make an additional 
 dedication. Hogue v. Albina, 20 Or. 182, 
 25 Pac. 386, 10: 673 
 
 c. Who may Dedicate. 
 
 Presumption of Mortgagee's Assent to, see 
 Evidence, 277. 
 
 32. One person cannot dedicate to the 
 public the lands of another person without 
 the latter's consent. Church v. Portland, 
 18 Or. 73, 22 Pac. 528, 6: 259 
 
 33. A man cannot dedicate for street pur- 
 poses land upon which he has placed a 
 homestead, so as to devest the rights of his 
 wife therein. San Francisco v. Grote, 120 
 Cal. 59, 52 Pac. 127, 41 : 335
 
 DEDICATION, II., III. 
 
 099 
 
 34. A married woman cannot dedicate to 
 public ue her statutory real estate except 
 by joint deed of herself and husband exe- 
 cuted as the statute prescribes, or in some 
 other way provided by statute. Vansandt 
 v. Weir, 109 Ala. 104, 19 So! 424, 32: 201 
 
 35. The dedication of a landing is not 
 shown by the public use of the place for 
 that purpose for a period of years, with the 
 consent of an agent of a nonresident owner, 
 where there is nothing to show his au- 
 thority to make such dedication. California 
 Nav. & I. Co. v. Union Transp. Co. 126 Cal. 
 433, 58 Pac. 936, 46: 825 
 
 II. Acceptance. 
 
 Effect of Dedication upon Acceptance, see 
 Highways, 33. 
 
 Effect of delay in accepting. 
 
 36. Delay on the part of a town in using 
 land which has been dedicated to it for a 
 park will not impair its right thereto. 
 Archer v. Salinas City, 93 Cal. 43, 28 Pac. 
 839, 16: 145 
 Necessity of. 
 
 Effect of User in Absence of Acceptance, 
 
 see Highways, 7. 
 See also infra, 41, 42. 
 For Editorial Notes, see infra, IV. 
 
 37. Acceptance by public authorities is 
 necessary to create a public way by dedica- 
 tion. S'later v. Gunn, 170 Mass. 509, 49 
 N. E. 1017. 41: 268 
 
 38. Although acceptance is necessary in 
 case of an offer to dedicate, actual dedica- 
 tion will vest title in the public without ac- 
 ceptance. Archer v. Salinas City, 93 Cal. 
 43, 28 Pac. 839, 16: 145 
 
 39. It is not essential to the validity of 
 the dedication of streets by a recorded plat, 
 that the city authorities formally accept it, 
 or proceed at once to have the streets 
 opened and improved. The dedication only 
 implies that the streets will be used as such 
 when the public exigencies require it; and, 
 until they are opened and improved, they 
 remain in abeyance. Meier v. Portland Cable 
 R. Co. 16 Or. 500, 19 Pac. 610, 1:856 
 
 40. The express refusal of a city to accept 
 -a plat with a certain strip designated 
 thereon as a street, and the inclosure and 
 use of one end of the strip as private 
 property, on which the owners are com- 
 pelled to pay assessments for improve- 
 ments on another street, preclude a finding 
 that this portion was a public road or street. 
 Mahler v. Brumder. 92 AA'is. 477, 66 X. W. 
 o02, 31 : 695 
 What constitutes. 
 
 For Editorial Notes, see infra, IA 7 . 
 
 41. Acceptance of a highway dedicated to 
 public use may' be effected by long-continued 
 user, without the necessity of formal acts 
 of acceptance on the part of the public- 
 authorities, where the road dedicated is a 
 benefit to the public, and not a detriment. 
 Riloy v. Buchanan. 116 Ky. 625, 76 S. AY. 
 527.' 63: 642 
 
 42. Use by the public is a sufficient ac- 
 ceptance of parks to complete a dedication, 
 although the town takes no action in re- 
 gard thereto. Attorney General v. Abbott, 
 154 Mass. 323, 28 N. E. 346, 13: 251 
 
 43. User by the public of one side only of 
 a dedicated street laid out and mapped with 
 two tracks, having a watercourse and 
 double row of trees between them, consti- 
 tutes an acceptance of the whole dedica- 
 tion. Southern P. R. Co. v. Ferris, 93 
 Cal. 263, 28 Pac. 828, 18: 510 
 
 44. The adoption by a statute incorpo- 
 rating a town, of a map showing its limits, 
 is an acceptance of the dedication of a street 
 shown thereon and on which abutting lots 
 have been sold, although the street has not 
 been made passable in all places. AVebb v. 
 Demopolis, 95 Ala. 116, 13 So. 289, 21: 62 
 
 45. The approval of the plat of a proposed 
 addition to a city by the common council 
 does not constitute an acceptance of the 
 streets thereon laid out, or amount to an 
 act of jurisdiction over them, or impose 
 an obligation upon the city to keep them in 
 repair, although such plat vests the fee of 
 the streets therein described in the city, 
 and the charter of the city provides that it 
 shall be unlawful to make or file any such 
 plat without the approval of the common 
 council. Downend v. Kansas City, 156 Mo. 
 60, 56 S. W. 902, 51: 170 
 Extent of acceptance. 
 
 See also supra, 43. 
 
 46. An acceptance, by the public, of land 
 for a public use, is to be construed in con- 
 nection with the grant or dedication. AVhere 
 that clearly includes the premises, less evi- 
 dence is required to show that any particu- 
 lar part has bwn accepted than where it is 
 uncertain whether there has been more than 
 a partial and limited dedication. Attorney 
 General ex rel. Adams v. Tarr, 148 Mass. 
 309, 19 N. E. 358, 2: 87 
 
 47. The acceptance, by the public or by 
 the inhabitants of a town, of landing places 
 reserved to the public in a grant by a town, 
 is not to be held to have been limited to 
 those parts of the lands so reserved which 
 were in actual use as landing places, where 
 it appeared that the parts thereof intruded 
 upon by private individuals could have been 
 fitted for and used as landings, and that 
 they were used by fishermen for the drying 
 of nets, and by them and others for passage 
 to actual landing places, and similar pur- 
 poses connected with landings and not in- 
 consistent therewith. Id. 
 
 III. Revocation; Abandonment; Reverter. 
 
 Right to revoke. 
 
 For Editorial Notes, see infra, l\ r . 
 
 48. A nation, state, or municipality which 
 dedicates land that it owns in the site of 
 a town to public use for the purpose of a 
 park is as conclusively estopped as a pri- 
 vate proprietor from revoking that dedica- 
 tion, from selling the park, and from ap- 
 propriating the land which it occupies to
 
 100U 
 
 DEDICATION, IV. DEEDS. 
 
 other purposes after lots have ben sold, 
 after the town has been settled, and after 
 the park has been improved with moneys 
 raised by the taxation of its residents and 
 taxpayers in reliance upon the grant and 
 covenant which the dedication evidences. 
 Davenport v. Buffington, 38 C. C. A. 453, 
 97 Fed. 234, 46: 377 
 
 48a. The subsequent erection by the orig- 
 inal owner, of a hotel encroaching upon the 
 line of a street, the dedication of which had 
 become complete by twenty years' use, will 
 not affect the public right. A dedication 
 once complete cannot be revoked by the 
 mere act of the owner. Marion v. Skillmanj 
 127 Ind. 130, 26 N. E. 676, 11: 55 
 
 49. A party making a dedication of 
 streets can only reclaim their use when the 
 object and purpose of making it have ut- 
 terly failed. Meier v. Portland Cable R. 
 Co. 16 Or. 500, 19 Pac. 610, 1: 856 
 
 50. Grantees from parties making a dedi- 
 cation of land for streets, by recording a 
 plat of an addition to a city and selling 
 lots with reference to it, had no authority 
 to make a new map or plat substituting a 
 new street or way in place of an old one, 
 without the consent of the purchasers of 
 blocks and lots under the former plat, and 
 of the public. Id. 
 
 51. The owner of land which is laid off on 
 a map in streets, blocks, and squares, who 
 conveys lots with reference to a certain 
 street marked on the map, covenanting that 
 such street shall be left open forever, can- 
 not exclude the public use of that street, 
 or demand compensation for any part of it, 
 when taken for a public road which crosses 
 it, although at the time of the dedication 
 there was not, and has not at any time 
 been, any local authority authorized to ac- 
 cept the dedication of the street, except 
 for a portion of its width; and the grantee 
 of his heir at law of so much of the street 
 as exceeded the width of a lawful road, who 
 has had it assessed as his property and paid 
 taxes on it, has no greater right to com- 
 pensation. Harrison County v. Seal, 66 
 Miss. 129, 5 So. 622, 3: 659 
 Abandonment; revert er. 
 
 52. A strip of land along the margin of 
 a navigable river, dedicated on a city plat 
 as a "levee," is not abandoned by the public, 
 so as to cause a reverter to the original 
 dedicators or their representatives, because 
 railroads have been permitted to lay their 
 tracks and build depots upon it, and its 
 use has been permitted for other unau- 
 thorized purposes, or because river com- 
 merce has ceased, and boats do not land 
 upon it, and approach to the river margin 
 has become dillicult. McAlpine v. Chicago 
 G. W. R. Co. 68 Kan. 207, 75 Pac. 73, 
 
 64: 85 
 
 53. Land dedicated to a public use does 
 not revert to the dedicators because of mis- 
 use or nonuse, unless its use for the dedi- 
 cated purpose has become impossible, or so 
 highly improbable as to be practically im- 
 possible. Id. 
 
 IV. Editorial Notes. 
 
 How effected; how shown. 6: 259;* 11: 56.* 
 Necessity of acceptance. 11: 57.* 
 How acceptance shown. 11: 58.* 
 Effect of dedication. 11: 58. 
 How intent of parties manifested, lit 
 
 58.* 
 By platting and sale of lots. 1: 856;* 
 
 9: 551.* 
 
 For park purposes. 10: 215;* 13: 251.* 
 Public user as acceptance of dedicated high- 
 way. 18: 510. 
 
 Presumption of, from user. 6: 261.* 
 Effect of dedication to public use. 6: 261.* 
 For street. 1: 493;* 2: 56.* 
 Estate created by. 6: 260.* 
 Easement acquired by the public. 3: 831.* 
 Additional servitude. 3: 831.* 
 Effect of statutory dedication. 3: 833.* 
 Effect of dedication of husband's lands upon 
 wife's right of dower. 
 18: 79. 
 
 Irrevocability of. 11: 58.* 
 Restriction to particular use. 6: 260.* 
 Restriction on use of property dedicated for 
 park or square. 1 : 725.* 
 
 DEDUCTIONS. 
 
 From Sentence, see Criminal Law, 231-233. 
 From Share of Distributee, see Executor* 
 
 and Administrators, IV. c, 3. 
 From Secured Claim against Insolvent, see 
 
 Insolvency, 16-21. 
 Of Debts in Assessing Property, see Taxes,. 
 
 43-45, 405-414. 
 
 DEED POLL. 
 
 Covenant in, see Covenant, 86, 92. 
 Effect of Accepting, see Deeds, 34, 73; 
 Limitation of Actions, 180. 
 
 DEEDS. 
 
 I. Form and Requisites. 
 
 a. In General; Execution. 
 
 b. Delivery. 
 
 1. In General. 
 
 2. To Third Person. 
 II. Construction; Effect; Validity. 
 
 a. In General; Construction. 
 
 b. Description of Parties. 
 
 c. Description of Property Conveyed, 
 
 d. What Passes by; Effect. 
 
 1. In General. 
 
 2. Reservations and Exceptions. 
 o. Revocation, Destruction, etc. 
 
 f. Failure of Consideration; Re- 
 version. 
 III. Editorial Notes. 
 
 Acknowledgment of, see Acknowledgment; 
 Conflict of Laws, 110; and also infra,. 
 III. 2.
 
 DEEDS, I. a, b, 1. 
 
 Boundaries under Provisions of, see Bound- 
 aries, II. 
 
 Executed by Agent, see Contracts, 211. 
 
 Estoppel by Failing to Notify of Forgery of, 
 see Estoppel, 192. 
 
 Presumption as to, see Evidence, 269, 270, 
 659-667, 721. 
 
 Burden of Proving Knowledge of Unre- 
 corded Deed, see Evidence, 302. 
 
 As Evidence, see Evidence, IV. i. 
 
 Parol Evidence as to, see Evidence, 1076- 
 1079, 1128, 1187-1193, 1203, 1204, 1207. 
 
 Privileged Communications Concerning, see 
 Evidence, 1504. 
 
 Admissibility of Grantor's Declarations, see 
 Evidence, X. f . 
 
 Sufficiency of Evidence to Modify see Evi- 
 dence, 2295, 2300. 
 
 Of Gift, see Gift, 12. 
 
 Of Trust, see Assignments for Creditors; 
 Mortgage, Especially, I. f. 
 
 To Husband, see Husband and Wife, 118- 
 120. 
 
 To Wife, see Husband and Wife, 121, 187- 
 192. 
 
 By Husband or Wife to Third Person, see 
 Husband and Wife, II. f. 
 
 By Indian, see Indians, 8-10. 
 
 By Infants, see Infants, 55, 58, 74-76, 82-84, 
 90. 
 
 By Trustee, see Trusts, 139-146. 
 
 On Judicial Sale, see Judicial Sale, II. b. 
 
 On Foreclosure, see Mortgage, 192. 
 
 Tax Deeds, see Taxes, 500-503, 510. 
 
 Of Church Pews, see Pews, 3. 
 
 Of Water Rights, see Waters, II. j. 
 
 Power of Disposition in, see Powers, 1. 
 
 Recording of, see Real Property, II.; III. 
 6-12. 
 
 Delegation of Judicial Power as to Record- 
 ing of, see Constitutional Law, 235-240. 
 
 Reformation of, see Reformation of Instru- 
 ments, 3, 9-13, and also infra, III. 
 14. 
 
 Of Timber, see Evidence, 820; Timber; 
 Trial, 155. 
 
 Creation of Trust by, see Trusts. 
 
 Devise of Land by Bequest of, see Wills, 
 229. 
 
 As to Assignment for Creditors, see As- 
 signments for Creditors. 
 
 I. Form and Requisites. 
 a. In General; Execution. - 
 
 By Corporation, see Corporations, 96, 121. 
 
 Burden of Proof as to Execution, see Evi- 
 dence, 665. 
 
 Seal of County on, see Seal, 5. 
 
 Execution of Will, see Wills, I. b. 
 
 For Editorial Notes, see infra, III. 1, 2, 
 5, 12. 
 
 Witnesses. 
 
 Necessity of Calling, to Prove Execution, 
 
 see Evidence, 818. 
 
 For Editorial Notes, see infra, III. 2. 
 1. A deed is effectual as a conveyance, 
 
 1001 
 
 although there was but one subscribing 
 
 witness. Dobbin v. Cordiner, 41 Minn. 165 
 
 42 N. W. 870, 4; 333 
 
 Signature. 
 
 Signature to Will, see Wills, 17-31. 
 
 For Editorial Notes, see infra, III., 2 
 
 2. The letters, "D. S. C.," written by the 
 witness to a deed, whose name is Solomon 
 Davis, may constitute a sufficient signature 
 as a witness. Devereux v. McMahon, 108 
 N. C. 134, 12 S. E. 902, 12: 205 
 
 3. A cross mark opposite a seal made by 
 the grantor of a deed immediately under 
 a clause containing his name and stating 
 that he has "signed his name and affixed his 
 seal," constitutes a sufficient signature, and 
 may be construed as an adoption of the 
 name in such clause as a signature. Id. 
 
 4. A sheriff's deed to which his name is 
 affixed by another person in his presence 
 and at his request, and which the sheriff 
 then duly acknowledges, is as efficacious as 
 though signed by the sheriff himself. Lewis 
 v. Watson, 98 Ala. 479, 13 So. 570, 22: 297 
 
 b. Delivery. 
 1. In General. 
 
 Presumption as to, see Evidence, 659-663. 
 Parol Evidence as to, see Evidence, 1076, 
 
 1203, 1204. 
 Sufficiency of Proof of, see Evidence, 2324, 
 
 2325. 
 
 Delivery of Mortgage, see Mortgage, 5, 6. 
 See also infra, 102. 
 For Editorial Notes, see infra, III. 3, 4. 
 
 5. The bare fact that a deed was exe- 
 cuted in the presence of a witness is not 
 sufficient to show that it was delivered 
 during the grantor's lifetime. Parrot v. 
 Avery, 159 Mass. 594, 35 N. E. 94, 22: 153 
 
 6. No delivery of a deed, either absolute 
 or conditional, can be made without parting 
 at the time with the possession of it, and 
 with all power and control over it by the 
 grantor, for the benefit of the grantee. Por- 
 ter v. Woodhouse, 59 Conn. 568, 22 Atl. 
 300, 13: 64 
 
 7. The delivery of a deed may be found 
 as a matter of fact from the facts that 
 the conveyance was beneficial to the grantee, 
 and that he thereafter dealt with the prop- 
 erty as owner. Benton Land Co. v. Zeitler, 
 182 Mo. 251, 81 S. W. 193, 70: 4 
 
 8. Even though a valid delivery of a deed 
 had not been made at the time of its execu- 
 tion, still the grantor may, after he has 
 acquired complete knowledge of the facts 
 of the transaction, ratify the wrongful 
 taking of the deed by the grantee, and 
 thereby perfect the title. Whitney v. 
 Dewey, 10 Idaho, 633, 80 Pac. 1117, 69: 572 
 
 9. The delivery to the grantee of a war- 
 ranty deed executed free from any condi- 
 tions or qualifications as to the vesting of 
 title is absolute, and title vests at once, 
 although the delivery is accompanied by 
 a contemporaneous parol agreement to the 
 effect that the grantee shall form a cor- 
 poration and deed the property to such
 
 1002 
 
 DEEDS, I. b, 2. 
 
 corporation, and thereupon pay the grantor 
 $1,000 cash and deliver to him $5,000 worth 
 of first-mortgage bonds of the corporation 
 secured on the property so deeded, and the 
 deed is placed in the hands of the grantee 
 to facilitate such transaction. Id. 
 
 10-11. A grantor cannot, by warranty 
 deed absolute on its face, and free from con- 
 ditions or restrictions, convey such a title 
 to his grantee as will enable the grantee to 
 pass a good title to a specific corporation, 
 and at the same time attach such parol con- 
 ditions to the deed upon its delivery as to 
 preclude the grantee from transferring an 
 equally good title to any other person or 
 corporation. Id. 
 
 Necessity; death of grantor. 
 For Editorial Notes, see infra, III. 3. 
 
 12. The manual delivery of a deed is not 
 an absolutely essential requisite to its 
 validity, but the delivery is complete when 
 :an intention is manifested on the part of 
 the grantor to make the instrument his 
 deed. Martin v. Flaharty, 13 Mont. 96, 32 
 Pac. 287, 19: 242 
 
 13. Death of the grantor before delivery 
 of a deed of gift which he has placed in 
 his agent's hands to be delivered terminates 
 the agent's authority, and a subsequent de- 
 livery is invalid. Peck v. Rees, 7 Utah, 
 467, 27 Pac. 581, 13: 714 
 What constitutes. 
 
 See also supra, 12. 
 
 For Editorial Notes, see infra, III. 3. 
 
 14. Delivery of a deed is effected by 
 handing it to the grantee, who hands it 
 to her brother, to be kept for her, the 
 grantor reserving no control over it, and re- 
 taining no right to withdraw or cancel it, 
 although it is not recorded. Fischer v. 
 Union Trust Co. 138 Mich. 612, 101 N. W. 
 852, 68: 987 
 
 15. Warranty deeds made by way of gift, 
 which are in a box with money and bank 
 books, are not delivered by the grantor 
 when expecting to die, by giving the box to 
 another person, saying that "the names of 
 the persons who are going to have the 
 houses are on the deeds, and, if I live, I 
 will talk further about the contents of the 
 box; but don't you open it until after my 
 funeral." Porter v. Woodhouse. 59 Conn. 
 568, 22 Atl. 300, 13: 64 
 
 16. Instruments were not delivered so 
 as to confer any rights on the beneficiaries 
 named therein, where the maker, having 
 agreed to execute them upon the execution 
 by the other parties thereto of certain other 
 instruments, upon his arrival at the ap- 
 pointed place found the. other parties absent 
 and their instruments unexecuted, and 
 where, under threats by their attorneys of 
 suit, financial ruin, and disgrace, he, being 
 without counsel, finally, after repeated 
 urging extending far into the night, signed 
 them against his will, and where, upon his 
 demand for more time to examine them, the 
 attorneys promised that he might return 
 and do so the next day and make proper 
 corrections wherever they were found to be 
 incorrect, and where he merely left them on 
 the table without directions as to delivery, 
 
 and with nothing to show any intention to 
 deliver, and the circumstances all tended to 
 rebut such intention. Stokes v. Anderson, 
 118 Ind. 533, 21 N. E. 331, 4: 313 
 
 17. The delivery of a deed is sufficiently 
 shown where it was executed by the grant 
 or, who at the same time received back a 
 life lease from the grantee under which the 
 grantor continued to hold the property dur- 
 ing life, although both deed and lease were 
 afterwards deposited in a bank by the 
 grantor, with directions to redeliver them 
 to her if called for, and in case of her 
 death to one of the grantees, who is named. 
 Martin v. Flaharty, 13 Mont. 96, 32 Pac. 
 287, 19: 242 
 
 18. No intention to deliver either of two 
 deeds which remained in the grantor's pos- 
 session unknown to the grantee until death, 
 and were found among some old papers, and 
 not among his valuable ones, is shown, 
 where they were made at tne same time to 
 a twelve-year-old son of the grantor, and 
 one expressly provided for future delivery, 
 while the other, although silent on that 
 point, included the family residence, and 
 no change of possesion or control and use of 
 the property was ever made. Cazassu v. 
 Cazassa, 92 Tenn. 573, 22 S. W. 560, 
 
 20: 178 
 
 Delivery for record. 
 See also infra, 26-28. 
 For Editorial Notes, see infra, III. 5. 
 
 19. Delivery of a deed for record, though 
 not known to the grantee, is, if followed 
 by his assent, a good delivery. Lee v. 
 Fletcher, 46 Minn. 49, 48 X. W. 456. 
 
 12: 171 
 
 2. io Third Person. 
 
 Deed to Corporation, see Corporations, 200. 
 In Escrow, see Contracts, 226; Escrow. 
 For Editorial Notes, see infra, III. 5. 
 
 20. The delivery of a deed to a third per- 
 son, to be delivered to the grantee on the 
 death of the grantor, transfers the title 
 subject to the life interest of the grantor. 
 Arnegaard v. Arnegaard, 7 N. D. 475, 75 
 N. W. 797, 41:258 
 
 21. The acceptance of a deed to minors 
 by their father is a sufficient delivery, the 
 conveyance being beneficial to them. Rhea 
 v. Bagley, 63 Ark. 374, 38 S. W. 1039, 
 
 36: 86 
 
 22. The delivery by a grantor to his own 
 agent of a deed of gift intended for one 
 who has no knowledge tliat it was to be 
 made is not a valid delivery to the latter. 
 Peck v. Rees, 7 Utah, 467, 27 Pac. 581, 
 
 13: 714 
 
 23. A deed of gift does not become opera- 
 tive by delivery to an agent of the grantor 
 to be delivered to the grantee, when it is 
 not delivered to the latter until after the 
 grantor's death. Id. 
 
 24. There is a sufficient delivery of a deed 
 to the grantees where it is given by the 
 grantors to a third person, who buys and 
 pays for the property and retains the deed 
 in his possession until his death, when it is
 
 DEEDS, II. a. 
 
 1003 
 
 recorded by the grantees, who take posses- 
 sion of the property. Cook v. Patrick, 135 
 111. 499, 26 N. E. 658, 11: 573 
 
 25. Delivery of a deed in escrow sufficient 
 to pass title is made where the grantor 
 turns the deed over to his housekeeper, 
 with instructions to deliver it to the grantee 
 on his deatli, with no apparent intention of 
 retaining control thereof and no subse- 
 quent attempt to control or take possession 
 of it, although it is placed by her for safe- 
 keeping, together with other papers of hers, 
 in the grantor's trunk, which is locked, and 
 the key to which he retains until his death. 
 Munro v. Bowles, 187 111. 340. 58 N. E. 331. 
 
 54: 865 
 
 26. There is a sufficient delivery of a 
 deed in the absence of evidence to weaken 
 the force of the facts, if the judge of pro- 
 bate before whom it is acknowledged takes 
 it for the purpose of recording it in his 
 office. Lewis v. Watson, 98 Ala. 479, 13 
 So. 570, 22: 297 
 
 27. The delivery of a deed to his natural 
 child by the grantor to the deputy clerk of 
 the court, with instructions to have it 
 proved by the subscribing witness before 
 the clerk, who was then absent from the 
 office, and to have it duly registered, is com- 
 plete and passes title, and cannot be de- 
 feated by the grantor's subsequently chang- 
 ing his mind and recalling the deed and de- 
 stroying it before it had been proved, al- 
 Ihough the grantee knew nothing of the 
 deed or of its recall. Robbins v. Rascoe, 
 120 X. C. 79, 26 S. E. 807, 38:238 
 
 28. Where a man who had for months con- 
 -sidered the matter and consulted with 
 friends, declaring his intention to convey 
 lands to his minor son. executed a deed and 
 delivered it to a neighbor, saying to him, 
 "You take that deed and file it for record," 
 and, on the In tier's suggestion not to file it 
 at present, he responded. "You take that 
 deed and keep it safely." without either 
 adopting the suggestion that the recording 
 should be postponed, or intimating any 
 change in his purpose, or any desire that 
 the deed should be held subject to his order 
 or control, the delivery of the deed must 
 be held to have been absolute at that time; 
 and a subsequent filing for record, whether 
 before or after the father's death, to be 
 merely the consummation of the delivery to 
 the son as of the date of the delivery to the 
 neighbor in trust. Stnndifonl v. Standi- 
 fnrd. !>7 Mo. -231, 10 S. W. 836, 3:25)9 
 
 Relation back. 
 
 .!!. The acceptance by a grantee of a deed 
 which iias been delivered to a stranger re- 
 Intes back 1<> the time of delivery, if the 
 rights of third persons have not intervened. 
 Arnegoard v. Arnegaard, 7 X. D. 475, 75 
 N. vy. 7D7. 41: 258 
 
 II. Construction: Effect; Validity, 
 a. Tn General; Construction. 
 
 .As Color of Title, see Adverse Possession, 
 57-62. 
 
 As Cloud on Title, sec Cloud on Title, 7, 
 8, 10. 
 
 Validity of De.?l of Land Held Adversely, 
 see Champerty. III. 
 
 By Cotenant, sec Cotenancy, 42. 
 
 Execution of, under Duress, see Dares*, 1, 7. 
 
 Estoppel by, see Estoppel, II. a, and also 
 infra, III. 13. 
 
 Estoppel to Rely on After-Acquired Title, 
 see Estoppel, 54-61, and also infra, III. 
 13. 
 
 Deed as Mortgage, see Mortgage, I. b. 
 
 Effect of Agreement to Reconvev, see Mort- 
 gage, 11-13. 
 
 Distinction between Deed and Will, see 
 Wills, 12-14. 
 
 Deed by Incompetent Person, see Incom- 
 petent Persons, 20-2C. 
 
 Capacity Necessary to Make Deed, see 
 Wills, 91. 
 
 For Editorial Notes, see infra, III. 6-14. 
 
 30. A quitclaim deed by the "heirs" of a 
 living person, who have a remainder after 
 his life estate, is good under a statute 
 making future estates alienable in the same 
 manner as estates in possession. Detreese 
 v. Lake, 109 Mich. 415, 67 N. W. 505, 
 
 32: 744 
 
 31. A conveyance to a city in considera- 
 tion of a covenant which is ultra vires and 
 void is without consideration, and the land 
 should be returned. Penlev v. Auburn, 85 
 Me. 278, 27 Atl. 158, 21. 657 
 Deed or bill of sale. 
 
 32. A deed of trees counted and marked 
 and which are described as standing on cer- 
 tain described land, but some of which are 
 not on such land, though the deed contains 
 a covenant of general warranty of title and 
 provides for a lien on the land described, 
 to make good the warranty, constitutes 
 only a bill of sale of personaltv. Asher 
 Lumber Co. v. Cornet t, 22 Ky. L/Rep. 569, 
 58 S. W. 438. 56: 672 
 Time of taking effect. 
 
 33. A present estate vesting at the time 
 of delivery of the deed, but taking effect 
 in possession at the death of the father and 
 mother, is conveyed by a grant by the 
 owner of land and his wife to their child 
 in an instrument authenticated as a deed 
 and containing words of present grant and 
 covenants of warranty, although it pro- 
 vides that "this deed is not to take effect 
 until the death of" the grantors. Hunt v. 
 Hunt, 26 Ky. L. Rep. 973, 82 S. W. 998. 
 
 8: 180 
 Effect of accepting deed poll. 
 
 34. A deed poll, when accepted by the 
 grantee, becomes the mutual act of the 
 parties, and the grantee is as much bound 
 by its covenants as the grantor is. Mid- 
 land R. Co. v. Fisher. 12:. Ind. 19, 24 N. E. 
 756, *: ''" 
 Construction generally. 
 
 35. No rule can be invoked for the con- 
 struction of a deed which tends to defeat 
 the intention of the grantor. Elliott v. 
 Jefferson, 133 N. C. 207, 45 S. E. 558, 
 
 64: 135 
 36. The effect of an informal instrument
 
 1004 
 
 DEEDS, II. b. 
 
 transferring an interest in real estate de- 
 pends not upon any particular words or 
 phrases found in it, but upon the intention 
 of the parties as collected from the whole 
 instrument. Lemon v. Graham, 131 Pa. 
 447, 19 Atl. 48, 6: 663 
 
 37. Courts should not give a construction 
 to a deed in direct conflict with that which 
 the parties have themselves put upon it, 
 especially after a time long enough to 
 create prescriptive rights thereunder. Mans- 
 tield v. Place, 93 Mich. 450, 53 N. W. 617, 
 
 18: 39 
 
 38. Deeds to different purchasers of land 
 separately sold on the same day, at the 
 .same public sale of town-site lots, by a pro- 
 bate judge as trustee, must be held to take 
 effect at the same time, and be construed 
 together in determining a conflict of title 
 between the purchasers. Pearce v. Denver, 
 13 Colo. 383, 22 Pac. 774, 6: 541 
 
 39. The object for which a religious so- 
 ciety was incorporated is an important ele- 
 ment in the construction of a conveyance to 
 the society. Mills v. Davison (N. J. Err. 
 & App.) 54 N. J. Eq. 659, 35 Atl. 1072, 
 
 35: 113 
 
 Covenant or condition. 
 
 What Changes Condition into Covenant, see 
 Contracts, 687. 
 
 Building Restrictions in, see Buildings, 46, 47. 
 
 Covenants in, Generally, see Covenant. 
 
 In Lease, see Landlord and Tenant, 10. 
 
 Condition against Handling Grain, see Per- 
 petuities, 2. 
 
 As to Conditions Subsequent Generally, see 
 Real Property, I. a, 2. 
 
 See also Covenant, 39, 40. 
 
 40. Conditions subsequent are not favored 
 in law. Unless the intent is clear, they will 
 be construed as covenants rather than con- 
 ditions subsequent. Boone v. Clark, 129 
 111. 466. 21 N. E. 850, 5: 276 
 
 40a. If it be doubtful whether a clause in 
 a deed be a covenant or a condition, the 
 courts will incline against the latter con- 
 struction. Woodruff v. Woodruff (N. J. Ch.) 
 44 N. J. Eq. 349, 16 Atl. 4, 1: 380 
 
 41. Where, annexed to the habendum of a 
 deed of bargain and sale, is the clause, 
 'provided, nevertheless, and upon the fol- 
 lowing conditions," that the grantor, if he 
 survive the grantee, shall have the right, 
 at any time within eighteen months, to pur- 
 chase back again the property at a valua- 
 tion of disinterested persons, it is a cove- 
 nant, and not a condition. Id. 
 
 42. In determining whether a provision in 
 a deed is to be construed as creating a 
 condition subsequent, or a covenant against 
 the grantor, regard must be had to the 
 intention of the parties. Post v. Weil, 115 
 X. Y. 301, 22 X. E. 145, 5: 422 
 
 43. A covenant, and not a condition, is 
 created by a clause in a conveyance of land 
 for a college campus, which states that the 
 conveyance is upon express condition that 
 the land shall be devoted exclusively as 
 part of the campus, although another condi- 
 tion is that it shall revert to the grantor 
 if abandoned or devoted to other uses be- 
 fore a certain date, after which a forfeiture 
 
 is not to occur under any circumstances, 
 
 Los Angeles University v. Swarth," 46 C. 
 
 C. A. 647. 107 Fed. 798, 54: 262 
 
 Habendum. 
 
 Effect of Naming Assigns in, see Covenant, 
 
 77. 
 See also supra, 41; infra, 82. 
 
 44. A condition is not created by an 
 habendum clause "to have and to hold 
 . . . as and for a street, to be kept as a 
 public highway," following a granting clause 
 conveying absolutely a portion of a larger 
 tract of land which a city was acquiring in 
 accordance with a resolution directing it 
 acquisition "for public use," where the en- 
 tire property was immediately devoted to 
 the uses of a public square, which could not 
 have been done if the strip was devoted to 
 street purposes, and the opening of the 
 street would have been profitless both to the 
 grantor and the public. Kilpatrick v. Balti- 
 more, 81 Md. 179, 31 Atl. 805, 27: 643 
 
 45. Effect must be given both to the 
 granting clause and the habendum of a deed 
 when it can be done by a reasonable inter- 
 pretation, under a statute which makes it 
 the duty of the court to carry into effect 
 the true intent of the parties so far as it 
 can be collected from the instrument and 
 as it is consistent with the rules of law. 
 Rupert v. Penner, 35 Neb. 587, 53 N. W. 
 598, 17: 824 
 
 46. The habendum in a deed, whereby an 
 estate in land is provided for a man and his 
 wife and their heirs and assigns, may be op 
 erative to enlarge the premises in such deed 
 wherein the husband alone is granted an 
 estate, and to vest in both husband and wife 
 an estate in the land. McLeod v. Tarrant, 
 39 S. C. 271, 17 S. E. 773, 20: 846 
 Blanks. 
 
 47. A vendor who has executed and ac- 
 knowledged a deed with the name of the 
 grantee left blank, and delivered it to his 
 vendee, who fills up the blank, cannot ques- 
 tion the title of an innocent purchaser for 
 value. McCleerey v. Wakefield, 76 Iowa, 
 529, 41 N. W. 210, 2: 529- 
 
 48. A deed in which the grantee's name 
 is left blank, but in other respects duly exe- 
 cuted; is void as to the grantee or any 
 other person with notice of the fraud, 
 where the blank is filled, contrary to the 
 grantor's instructions, with the name of a 
 person not intended to be the grantee, 
 who has full knowledge of the. facts. State 
 v. Matthews, 44 Kan. 596, 25 Pac. 36, 
 
 10: 308 
 
 49. A deed executed by a married woman, 
 with the name of the grantee, the amount of 
 the consideration, and the date blank, and 
 intrusted to her husband for the purpose of 
 selling the property, is valid in the hands of 
 a bona fide grantee for a valuable considera- 
 tion. Reed v. Morton, 24 Neb. 760, 40 N. 
 W. 282. 1 : 736 
 
 b. Description of Parties. 
 
 See also infra, 80. 
 
 50. Words of inheritance are not neces- 
 .-aiy to pass the fee in a conveyance to
 
 DEEDS, II. c. 
 
 1005 
 
 trustees and their successors in office for- 
 ever, for a charitable use, such as religious 
 worship. Re Sellers Chapel M. E. Church, 
 139 Pa. 61, 21 Atl. 145, 11: 282 
 
 51. The term "personal representatives," 
 in the clause of a deed providing for the se- 
 lection, by tlyj legal representatives of the 
 grantee, of an arbitrator, means those who 
 succeed the grantee in the title of the lands. 
 Where he devises the land in trust, it means 
 the trustee and cestui que trust. Woodruff 
 v. Woodruff (N. J. Ch.) 44 N. J. Eq. 349, 
 16 Atl. 4, 1 : 380 
 
 52. A deed to certain persons, "commis- 
 sioners of W. county, and their successors on 
 office, for the use of said county." accepted 
 by an entry upon the county reqmls as a 
 deed "to and for the use of" said county, 
 gives the legal title to the county, and not 
 to the commissioners, where there was no 
 etatute designating their corporate name and 
 style. Sumner v. Darnell, 128 Ind. 38, 27 
 N. E. 162, 13: 173 
 
 53. Including the husband as grantee in a 
 deed to partition to the wife her share of 
 property in which she has an undivided in- 
 terest will give him no greater interest than 
 though the deed had been to the wife alone. 
 ottrell v. Griffitts, 108 Tenn. 191, 65 S. W. 
 397, 57: 332 
 necessity of using word "heirs" or equiva- 
 lent. 
 
 For Editorial Notes, see infra, III. 12. 
 
 54. The use of the word "heirs" is not 
 necessary to create a title in fee, in New 
 Hampshire, when there is an unqualified 
 grant or reservation of land. Smith v. Fur- 
 bish, 68 N. H. 123, 44 Atl. 398, 47: 226 
 
 55. The assignment under seal of all a 
 grantee's "right, title, claim, interest, and 
 property whatever in and to" a deed, on the 
 'back of which it is written, and which gave 
 the grantee an estate in fee simple, is suffi- 
 cient to transfer the fee, without the use 
 of the word "heirs" or its equivalent. Lemon 
 v. Graham, 131 Pa. 447, 19 Atl. 48, 6: 063 
 Deed to "children," "issue," or "heirs." 
 
 56. The words "child," "children," and 
 "issue," in a deed creating a trust for a girl 
 during life, and after her death for her 
 child or children, with a certain disposition 
 of the property in case of her death with- 
 out living issue, will not include an illegiti- 
 mate child born several years after the mak- 
 ing of the deed, where its language does not 
 plainly show such an intention. Johnstone 
 v. Taliaferro, 107 Ga. 6, 32 S. E. 931, 
 
 - 45: 95 
 
 57. An adopted child who, by the decree 
 of adoption, is declared to be, to all legal 
 intents and purposes, the child of a woman 
 who adopts him, and for the purposes of in- 
 heritance and all other legal incidents and 
 consequences the same as if born to her in 
 lawful wedlock, is entitled, on her death, 
 to premises conveyed to her during her 
 natural life, with remainder "to her child or 
 children that may be living at the time of 
 her decease," and in default of such child or 
 children to her "heirs generally." since, if 
 the adopted child is not a ''child'' within 
 
 the meaning of the deed, he is her "heir 
 
 generally." Buttcrfield v. Sawver, 187 HI. 
 598, 58 N. E. 602, 52:75 
 
 58. A conveyance to the "heirs" of the 
 grantor's son, who has children then living, 
 reserving to him a life estate after life 
 estates in the grantor and another, is a 
 present grant of the fee to the children. 
 Heath v. Hewitt, 127 N. Y. 166, 27 N. E. 
 959. 13. 4 6 
 Unborn children. 
 
 See also infra, 81. 
 
 59. A deed to a son of the grantor and 
 "his own brothers and sisters" gives no in- 
 terest to a child born a short time after the 
 execution of the deed. Morris v. Caudle, 178 
 111. 9, 52 N. E. 1036, 44: 489 
 
 60. A deed executed before the birth of a 
 child, but not delivered until after the birth 
 and also the death of the child, conveys no 
 interest either to the child or those claim- 
 ing under the child, although the child 
 would have been a grantee if in esse when 
 the instrument took effect. Id. 
 Fictitious grantee. 
 
 61. A deed to a fictitious grantee con- 
 vevs no title. Wiehl v. Robertson, 97 Tenn. 
 458, 37 S. W. 274, 39: 423 
 
 c. Description of Property Conveyed. 
 
 Mistake in Description of Property De- 
 vised, see Wills, 232-236. 
 See also infra, 78. 
 For Editorial Notes, see infra, III. 11. 
 
 62. A conveyance of a certain number of 
 undivided acres out of a tract of land is not 
 void for uncertainty-. Gratz v. Land & R. 
 Improv. Co. 27 C. C. A. 305, 53 U. S. App. 
 499, 82 Fed. 381, 40: 393 
 
 62a. A tract of land is sufficiently de- 
 scribed in a deed by referring to it by the 
 number of its government patent, in which 
 it is definitely described. Wheeler v. Clark 
 (Tenn.) 85 S. W. 258, 69: 732 
 
 63. Title to a proportionate share of land 
 under water, depending on title to the up- 
 land, will pass by a deed of a certain num- 
 ber of undivided acres out of the tract of 
 upland bordering on the water. Gratz v. 
 Land & R. Improv. Co. 27 C. C. A. 305, 53 
 U. S. App. 499, 82 Fed. 381, 40: 393 
 
 64. A complete description by metes and 
 bounds of land between a certain block and 
 the north line of a quarter section does not 
 limit a conveyance to that land, when fol- 
 lowed by a sentence declaring that it is all 
 that land that lies beneath the north line of 
 such quarter section and two blocks named, 
 only one of which is mentioned in the pre- 
 ceding description by metes and bounds. 
 Lake Erie & W. R. Co. v. Whitham, 155 111. 
 514. 40 N. E. 1014, 28: 612 
 
 65. The undivided half of the premises 
 only will be held to have been conveyed by 
 a deed the original of which is lost and 
 the produced copy of which describes a par- 
 cel with metes and bounds, beginning, "un- 
 divided half of one and also one other par- 
 cel of land," etc., and the evidence shows 
 that the words "undivided half of" were 
 underlined. Ilubbard v. Greeley, 84 Me. 340. 
 24 Atl. 799, 17: 511
 
 1006 
 
 DEEDS, II. d, 1. 
 
 66. The word "divided," in a deed of one 
 divided fourth of certain property, will not 
 be rejected so as to make a deed of an un- 
 divided fourth, where the result would be 
 to ignore the intention of the grantor by 
 passing an after-acquired title. Ford v. 
 Unity Church Soc. 120 Mo. 498, 25 S. W. 
 394, " 23: 561 
 Map annexed. 
 
 67. The mere fact that a map bearing a 
 prior date and showing a road not men- 
 tioned in a deed is annexed, to a subse- 
 quent deed is not sufficient, to show that the 
 earlier conveyance was made with reference 
 to the road. Haberman v. Baker, 128 N. Y. 
 253, 28 X. E. 370, 13: 611 
 Reference to other instrument. 
 
 For Editorial Notes, see infra, III. 11. 
 
 68. Real estate is sufficiently described in 
 a conveyance by reference for identification 
 to another deed specifically mentioned there- 
 in which accuratelv describes it. Rupert v. 
 Penner, 35 Neb. 587, 53 N. W. 598, 17: 824 
 
 d. What Passes by; Effect. 
 1. In General. 
 
 Effect of Covenants in Deed, see Covenant. 
 
 Effect of Deed on Wife's Right of Dower, 
 see Dower, 17-23. 
 
 Interest Passing Sufficient to Maintain 
 Ejectment, see Ejectment, 11, 14. 
 
 Estoppel to Claim After- Acquired Interest, 
 see Estoppel, 54-61; and also infra, ni. 
 12. 
 
 Conveyance of Ferry Franchise by, see 
 Ferry, 13. 
 
 Estates by Entirety Created by, see Hus- 
 band and Wife, 68-79. 
 
 Kinds of Estates Created, see Real Prop- 
 erty. I. 
 
 Effect of Release, see Release, 8. 
 
 Rights of Purchasers Generally, see Vendor 
 and Purchaser. 
 
 Effect of Quitclaim Deed, see Vendor and 
 Purchaser. 99, 105-110. 
 
 Riparian Rights by Deed of Upland, see 
 Waters, 203. 
 
 See also Real Property I.; Wills, III. g. 
 
 69. A voluntary conveyance of a right of 
 way to a railway company gives no greater 
 right than a condemnation under the stat- 
 ute would confer. Missouri, K. & T. R. Co. 
 v. Mott, 98 Tex. 91, 81 S. W. 285, 70: 579 
 
 70. A grant f land over a coal mine will 
 carry a right of action for removal of the sur- 
 face support, the effect of which does not be- 
 come apparent until after the transfer. Noon- 
 :m v. Pardee. 200 Pa. 474, 50 Atl. 255, 55: 410 
 
 71. A deed of land by the owner of a de- 
 terminable fee which has already terminated 
 conveys nothing. Slegel v. Herbine, 148 Pa. 
 236, 23 Atl. 996, 15:547 
 
 72. A conveyance of partnership real es- 
 tate by the surviving partner as such will 
 not in a court of equity have the effect of 
 conveying only his individual interest, al- 
 though upon its face the deed purports to 
 convey only such interest, and is joined in 
 by the wife of the grantor. Dyer v. Morse, 
 JO Wash. 492, 39 Pac. 138, 28: 89 
 
 73. A conveyance of land, including parts- 
 of a certain road, whenever another street 
 named is opened and said road is closed, i& 
 not a conveyance to begin in futuro, but * 
 is a conveyance of the title subject to the 
 public easement, and becomes absolute as 
 soon as the easement ceases by the opening 
 of the other street. Baldwin v. Trimble, 
 85 Md. 396, 37 Atl. 176, 36: 489 
 
 74. If a grantee in a deed of indenture of 
 bargain and sale purporting to be inter 
 partcs accepts the deed and the estate 
 therein conveyed, it is his deed, as well as 
 that of the grantor, though not sealed and 
 delivered by him. Woodruff v. Woodruff, 
 (N. J. Ch.) -44 N. J. Eq. 349, 16 Atl. 4, 
 
 1:380 
 
 75. A deed delivered to the grantee on 
 agreement to return it, or, if it should be 
 recorded, to reconvey the land upon certain 
 conditions, conveys the legal title, although, 
 
 i the parties mistakenly suppose that it does 
 not. Darling v. Butler, 45 Fed. 332, 10: 469- 
 
 76. A grantee by accepting a deed poll is 
 deemed to have entered into an express un- 
 dertaking to perform a condition contained 
 in the deed, such as an obligation to main- 
 tain fences. Hickey v. Lake Shore & M. 
 S. .R. Co. 51 Ohio St. 40, 36 N. E. 672, 
 
 23: 396 
 
 Appurtenances. 
 
 Under Deed of Cotenant, see Cotenancy, 45. 
 Easements as Appurtenant, see Easements r 
 
 II. c. 
 Under Grant from State, see Waters, 134. 
 
 77. Incorporeal rights held as appurte- 
 nant to land will pass upon a conveyance of 
 the dominant tenement, although not men- 
 tioned in the deed of conveyance. Mitchell 
 v. D'Olier (N. J. Err. & App.) 68 N. J. L. 
 375, 53 Atl. 467, 59: 949- 
 Amount of land. 
 
 See also supra, 63-65. 
 
 78. A deed granting to a railroad company 
 the right of way for its railroad, and the- 
 right to construct said road agreeably to and 
 in accordance with the railroad incorpora- 
 tion laws of the state, without naming the 
 width of the track granted, will give the 
 grantee a strip as wide only as it actually 
 takes and uses, and not as wide as it i 
 allowed to take by the railroad incorpora- 
 tion laws. Ft. W'ayne, C. & L. R. Co. v. 
 Sherry, 126 Ind. 334/25 N. E. 898, 10: 48 
 Estates for life or In fee. 
 
 Rule as to, in Shelley's Case, see Real Prop- 
 erty, I. b; Wills, III, g, 3. 
 Under Will, see Wills, III. g, 2. 
 See also supra, 58; infra, 91; Curtesy, 9. 
 
 79. The equitable estate of a cestui que 
 trust is an equitable fee simple, where the 
 trustee or feoffee to use has the entire fee- 
 simple estate at law. Cornwell v. Wulff, 148 
 Mo. 542, 50 S. W. 439, 45: 53 
 
 80. A deed to grantor's daughter and her 
 husband and "their bodily heirs" under the- 
 Illinois statutes, vests a life estate in the 
 first takers, with a remainder in fee in 
 the heirs of the boaies ot both. Atherton 
 v. Roche, 192 111. 252, 61 N. E. 357, 55: 591 
 
 81. A deed to one during his natural life,,
 
 DEEDS, II. (1. > 
 
 1007 
 
 who is to deed or will the lands to the 
 bodily heirs of another, the former having 
 the discretion of allotting the lands as he 
 may see proper, confers a life estate on the 
 first taker, with vested remainder to the 
 heirs of the other person mentioned, which 
 will open to let in afterborn children;' and 
 the interests of children dying before the 
 life tenant will pass to their heirs. Fort 
 Jefferson Improv. Co. v. Dupoyster, 108 Ky. 
 792, 51 S. W. 810, 48: 537 
 
 82. A life estate to a certain person, with 
 remainder to his children, is conveyed by a 
 deed in which the premises declare that the 
 grantor does "hereby grant, sell, and con- 
 vey" unto such person, while the habondum 
 clause is to have and to hold unto him "for 
 and during the term of his natural life, and 
 at his decease the same shall descend in 
 equal Chares to his children.* 9 Rupert v. Pen- 
 ner, 35 Neb. 587, 53 1ST. W. 598, 17: 824 
 
 83. A provision that a trustee of a mar- 
 ried woman shall convey the premises to her 
 husband, his heirs or assigns, if she dies 
 without having disposed of the property or 
 directed its disposal by will or otherwise, 
 does not prevent her from taking an abso- 
 lute equitable fee simple under the deed 
 which creates the trust, where it conveys to 
 the trustee, his heirs and assigns forever, in 
 trust for her separate use, free from her 
 husband's control and debts, and subject to 
 disposal as she shall direct or request, or 
 shall by will or other writing direct or ap- 
 point. Cornwell v. Wulff, 148 Mo. 542, 50 
 S. W. 439, 45: 53 
 Interest in fee or easement. 
 
 Creation of Easement by, see Easements. 
 II. a. 
 
 84. An interest in fee, and not merely 
 an easement, is conveyed by a deed to a 
 railroad company, its successors and as- 
 signs, forever, to have and to hold for all 
 purposes mentioned in the act of incorpora- 
 tion. United States Pipe-Line Co. v. Dela- 
 ware, L. & W. R. Co. (N. J. Err. & App.) 
 <i-2 X. J. L. 254. Atl. 759, 42: 572 
 Effect of recitals. 
 
 Implied Covenant by, see Covenant, 10. 
 Notice from Recitals in, see Notice, 10. 
 For Editorial Notes, see infra, III. 11. 
 
 85. An estate granted by deed cannot be 
 expanded by recitals or statements of the 
 grantor made in a later deed, to the injury 
 of an intervening title. Whitney v. Wheeler 
 Cotton Mills, 151 Mass. 39(5, 24 *N. E. 774, 
 
 7: 613 
 
 86. The general language of a deed with 
 covenants sufficient to pass the estate' of the 
 grantor is not limited by a clause which re- 
 cites that it is intended to convey absolute- 
 ly all the interest of his wile, who is named 
 therein as one of the grantors, but who has 
 only an inchoate dower interest therein. 
 Davenport v. Gwilliams, 133 hid. 142, 31 N. 
 E. 790, >:-J44 
 
 2. Reservations and Exceptions. 
 
 Of Flowage, Effect on Boundary, see Bound- 
 aries, 54. 
 By Parol, see Contracts, 178. 
 
 Restrictive Covenants in Deed, see Cove- 
 nant, I. b. 
 
 Creation of Tenancy in Common by Ex- 
 ception, see Cotenancy, 3. 
 
 Creation of Easement by, see Easements, 
 14-20, 48, 56, 57, 87. 
 
 Nature of Easement Reserved, see Ease- 
 ments, 2. 
 
 Ejectment by Virtue of, see Ejectment, 12, 
 26, 27. 
 
 Estoppel by Reservations, see Estoppel, 47- 
 49. 
 
 Restriction in Deed for Highway, see High- 
 ways, 10. 
 
 Of Farm Crossing, see Railroads, 70. 
 
 For Editorial Notes, see infra, III. Q r 
 10. 
 
 87. W T hat will pass by certain descriptive- 
 words in a grant will be excepted by the 
 same descriptive words in an exception. 
 Mitchell v. D'Olier (N. J. Err. & App.) 68 
 N. J. L. 375, 53 Atl. 467, 59: 941> 
 
 88. The right to minerals, timber, and a 
 mill-site, reserved to the grantor in a con- 
 veyance of certain parcels of land within 
 a larger tract, will not pass by his subse- 
 quent conveyance of the whole tract, ex- 
 pressly deducting therefrom the parcels of 
 land previously conveyed. Kincaid v. Me 
 Gowan. 88 Ky.* 91, 4 S. W. 802, 13: 285* 
 
 89. A reservation, in a conveyance of right 
 of way, of any use to the grantor, will not 
 be presumed in the absence of any provision 
 therefor. Herriman v. Roberts, 119 N. Y. 
 37, 23 N. E. 442, 7:226 
 
 90. A forfeiture of a grantor's rights in 
 land excepted from a deed, but not distinctly 
 located, does not result from his failure to 
 exercise his power of selection in a reason 
 able time, where the other party has not 
 been damnified by the delay. Smith v. Fur 
 bish, 68 N. H. 123, 44 Atl. 398, 47: 226 
 
 91. The estate reserved to a grantor is 
 not a life estate only, where, in a deed of 
 land on one side of a river, he reserves the 
 right to build a dam against it, with the 
 accompanying right of llowage, and also to 
 an acre of land in the immediate vicinity of 
 the end of the dam, although his langiia^ 
 is "reserving to myself," without using any 
 words of inheritance. Smith v. Furbish. 68 
 N. II. 123. 44 Atl. 398, 47: 22I 
 Of minerals. 
 
 Ke-rrvaiion of Oil or Gas, see Mines, 58. 
 
 60. 
 Effect of Reservation of Mining Rights, see 
 
 Mines, 45. 
 See also infra. 89. 
 
 <>_>. A grantor of the fee of the surface of 
 land may reserve an estate in fee in tin* 
 minerals, and each estate will be subject to 
 the law of descent, devise, and convex an.. 
 Kincaid v. McGowan, 88 Ky. 91, 4 S. W. !U 
 
 13: 2S'. 
 
 93. A deed by the grantee of an undivid- 
 ed interest in certain land, of all the "sur- 
 face" of such land, retaining the right to. 
 make and maintain on the land such open- 
 ings as may be necessary for ventilation, 
 drainage, and taking out of all the coal., 
 without liability for injuries to the sur-
 
 1008 
 
 DEEDS, II. e III. a. 
 
 face or anything thereon by reason of min- 
 ing such coal, and the right to remove the 
 *ame given the owner of the other hall 
 interest in such land, who had previously 
 conveyed to the grantor all the coal in, on 
 or underlying his undivided half of such 
 land, with the right to make and main- 
 tain openings for ventilation, drainage, and 
 taking out all the coal, conveys to the 
 grantee the surface only, and does not pass 
 the grantor's right to oil and gas in and 
 under such land. Williams v. South Penn 
 Oil Co. 52 W. Va. 181, 43 S. E. 214, 00: 795 
 Of right to build dam or flood land. 
 Of Right to Build Wharf, see Waters, 2 
 
 94. An exception, and not merely a reser- 
 vation, is created by a deed of land on one 
 side of a river "reserving" to the grantor the 
 right to build a dam across the river at any 
 point against the land, with the right of 
 flowage caused by the dam, and also an 
 acre of land in the immediate vicinity of 
 the dam, as the effect of the provision does 
 not depend upon the choice of the particular 
 word, but upon the nature and effect of the 
 provision itself. Smith v. Furbish, 68 N. 
 H. 123, 44 Atl. 398, 47:226 
 
 95. A right of election belonging to a 
 grantor who has reserved or excepted out of 
 his grant a piece of land and the right to 
 build a dam and the accompanying right of 
 flowage, without denning the location by 
 the deed, does not terminate by his failure 
 to exercise it during his own life, but con- 
 tinues to his heirs. Id. 
 
 96. The right of location belongs to the 
 grantor under a deed of land on one side of 
 a river, from which he reserves the right to 
 build a dam at any point against the land, 
 with the right of flowage resulting there- 
 from, and also reserving or excepting an 
 acre of land fronting on the river, in the 
 immediate vicinity of the dam. Id. 
 
 97. The uncertainty of a reservation or 
 exception of the right to build a dam at 
 any point against lands convoyed, with the 
 right of flowage and also 1 acre of land in 
 the immediate vicinity of the end of the 
 <lam, does not render the provision void, as 
 the exercise of a right of election by the 
 grantor will remove the uncertainty. Id. 
 
 98. No reservation of a right to flood 
 lands conveyed by a railroad company 7 , with 
 water of a river backed up by the faulty 
 construction of the embankment on which 
 its tracks are laid, will be implied from the 
 mere fact that the conveyance was made 
 after the embankment was finished. Sellers 
 v. Texas C. R. Co. 81 Tex. 458, 17 S. W. 
 32, 13:657 
 
 e. Revocation. Destruction, etc. 
 
 Proceeding to Set Aside as one in Item, see 
 
 Action or Suit, 65. 
 Joining Causes of Action to Set Aside Deed 
 
 and Will, see Action or Suit. 94, 101. 
 Setting Aside for Incompetency of Grantor, 
 
 see Contracts, 802. 
 
 Setting Aside for Duress, see Duress. 1. 
 -Jurisdiction of Suit to Cancel, see Courts. 
 
 .~>6: Equity. 57-50. 
 
 Disaffirmance of Deed by Infant, see In- 
 fants, 55, 75, 76, 82-84, 90. 
 
 Validity of Arbitration in Suit by Infant 
 for, see Infants, 58. 
 
 Cancelation of Deeds not Mentioned in 
 .Pleading, see Judgment, 59. 
 
 Laches Preventing, see Limitation of Ac- 
 tions, 12. 
 
 Revocation of Deed of Trust, see Trusts, I. 
 e. 
 
 Rescission of Deed or Contract to Purchase 
 Land, see Vendor and Purchaser, I. e. 
 
 Effect of Revocation, see Waters, 521. 
 
 See also supra, 27; Trusts, 54. 
 
 99. The power to revoke a deed during the 
 grantor's life may be reserved by express 
 provisions of the deed. Ricketts v. Louis- 
 ville, St. L. & T. R. Co. 91 Ky. 221, 15 S. W. 
 182, 11:422 
 
 100. The revocation of a deed under a 
 power reserved therein is not defeated by 
 the fact that the acknowledgment and re- 
 cording of the instrument of revocation as 
 required by the terms of the reservation 
 are not provided for by statute, especially 
 where it has been actually acknowledged by 
 a county clerk, and recorded by him. Id. 
 
 101. The destruction of an unrecorded 
 deed by the grantee, and a conveyance, at 
 his request, to a third person, by the grant- 
 or, will not give to the new grantee a legal 
 title, although it will give him an equitable 
 interest on which he may require a convey- 
 ance of the legal title from the grantee in 
 the destroyed deed. Russell v. Meyer, 7 
 N. D. 335, 75 N. W. 262, 47: 637 
 
 102. The regaining of possession of a deed 
 by the grantor after he has made a delivery 
 intended to be absolute, to a third person, 
 to take effect on his death, does not pre- 
 vent the deed from being operative. Arne- 
 araard v. Arnegaard, 7 N. D. 475, 75 N. W. 
 797, 41:258 
 
 f. Failure of Consideration; Reversion. 
 
 Parol Evidence as to Consideration, see Evi- 
 dence, 1187-1193. 
 
 Consideration of Deed Attacked for Fraud, 
 see Fraudulent Conveyances, II. 
 
 For Editorial Notes, see infra, III. 7, 
 8. 
 
 103. Removal of a county seat fifty-six 
 years after its location on land conveyed 
 for such use does not make a total failure 
 of consideration which will cause a reversion 
 ;o the grantor. Sumner v. Darnell, 128 
 Ind. 38. 27 X. E. 162, 13: 173 
 
 III. Editorial Notes. 
 a. Form and requisites. 
 
 i. Generally. 
 
 Equitable relief against forfeiture of es- 
 tate. 69: 833. 
 ; 2. Execution. 
 
 Essentials to execution. 13: 676.* 
 Execution of, by corporation. 12: 588.* 
 Estoppel of grantor to deny proper execu- 
 tion. 2: 530.*
 
 DEEDS, III. (Ed. Notes.) 
 
 1009 
 
 Signature by mark or cross. 12: 205;* 22: 
 
 372. 
 
 Signing by proxy. 22: 297. 
 Attesting witness. 4: 333.* 
 Power of counsel to take acknowledgment 
 
 of. 45: 499. 
 Acknowledgment by married woman. 3: 
 
 826;* 11:193.* 
 
 3. Delivery and acceptance. 
 Necessity of delivery of. 4: 313;* 12: 171;* 
 
 13: 676.* 
 Sufficiency of delivery. 12: 171.* 
 
 Necessity of actual manual delivery. 
 
 12: 171.* 
 Effect of retention by vendor till his 
 
 death. 12: 172.* 
 
 Necessity of formal delivery. '^12: 173.* 
 Necessity of intention to deliver. 12: 
 
 173.* 
 
 Delivery in escrow. 12: 175.* 
 Presumption of delivery. 12: 175;* 13: 
 
 677.* 
 
 As to time of delivery. 12: 176.* 
 Deed itself as evidence of delivery. 12: 
 
 176.* 
 
 Parol evidence as to delivery. 12: 176.* 
 Acceptance by grantee. 12: 177.* 
 Recording by grantee. 12: 177.* 
 Effect of delivery in escrow as to bona fide 
 purchaser from grantee 
 who has wrongfully ob- 
 tained and recorded the 
 deed. 17:511. 
 
 Acceptance of. 1: 381;* 12: 177.* 
 Undelivered deed as memorandum to satis- 
 fy statute of frauds. 22: 
 273. 
 4. Delivery to third person, or record, 
 
 or delivery lor record. 
 
 Delivery to person previously authorized or 
 designated by grantee. 54: 
 865. 
 
 Delivery to person not previously author- 
 ized or designated by 
 grantee; recording. 54: 
 867. 
 
 General rule as to delivery to third per- 
 son. 54: 867. 
 In general. 54: 867. 
 When not to be delivered to gran- 
 tee until after grantor's 
 death. 64: 869. 
 
 .Requisites on part of grantor. 54:871. 
 General statement. 54: 871. 
 Particular instances and illustra- 
 tions. 54: 875. 
 
 Delivery without directions to 
 await grantor's death'. 54: 
 875. 
 
 Delivery with directions to 
 await grantor's death. 54: 
 878. 
 
 Deed remaining within phys- 
 ical power of grantor. 54: 
 882. 
 
 Effect of grantor's purpose to 
 avoid his obligations. 54: 
 884. 
 
 Reservation of life estate as il- 
 lustrating grantor's in- 
 tent. 54:884. 
 L.R.A. Dig. 64. 
 
 Recording or delivery for record. 
 
 54: 884. 
 In general; presumption from 
 
 record. 54: 884. 
 Grantor's intent. 54: 885. 
 Effect of return of deed to 
 
 grantor. 54: 887. 
 
 Acceptance; how and when deed takes 
 effect; status of title. 64: 
 888. 
 
 Necessity of acceptance. 54: 888. 
 What sufficient to show actual ac- 
 ceptance; effect of assent 
 or dissent. 54 : 889. 
 Different theories with respect to 
 
 acceptance. 54: 890. 
 In general; their relation to 
 the time when, and man- 
 ner in whicn, the deed 
 takes effect. 54: 890. 
 Theory of relation back: 54: 
 
 891. 
 Presumption of acceptance. 
 
 54: 892 
 
 Cases illustrative of the na- 
 ture of the instrument and 
 of the time when it takes 
 effect. 54: 899. 
 Right of the grantor to revoke. 
 
 54: 903. 
 Rights of third persons. 54: 
 
 904. 
 
 Grantor's interest in, and 
 rights respecting the prop- 
 erty. 54: 909. 
 5. Grantee. 
 Infant en venire sa mere as grantee in deed. 
 
 44: 489. 
 
 Ordinary conveyances. 44: 489. 
 Conveyances of uses, trusts, remain- 
 ders, etc. 44: 490. 
 Fictitious name as affecting validitv of. 
 
 39: 423. 
 
 Third person authorized to fill in name of 
 grantee. 2: 529.* 
 
 b. Construction, effect, validity. 
 
 Conveyance of Mortgaged Premises, see 
 Mortgage, VIII. ll! 
 
 Effect of Tax Deeds, see Taxes, VI. 31. 
 
 6. Generally. 
 
 Land grants as contracts within constitu- 
 tional provision against 
 impairment. 10: 406.* 
 
 Deed-poll defined. 8: 604.* 
 
 Rule for construction. 13: 319.* 
 
 Parol evidence to explain latent ambiguity. 
 3: 805.* 
 
 When deed absolute on face cannot be con- 
 strued as a mortgage. 1: 
 240.* 
 
 Transactions constituting a sale, and not a 
 mortgage. 1: 241.* 
 
 Deeds to married woman, generally. 3: 
 801,* 857.' 
 
 To secure support for life. 3: 836.* 
 
 Effect of conveyance of real property by 
 surviving partner. 28: 135. 
 
 Conveyance of mill, what passes. 2: 285.* 
 
 Conveyance of property to be acquired in 
 the future. 4:398.*
 
 1010 
 
 DEEDS, III. (Ed. Notes.) 
 
 Validity of conveyance of property in ex- 
 pectancy. 9: 477.* 
 
 Grant of water power, generally. 67: 369. 
 
 How far grant of mill includes water rights. 
 58: 487. 
 
 Adverse possession under ancient deeds. 10: 
 388.* 
 
 7. Consideration. 
 
 As to Consideration for Contracts, Gener- 
 ally, see Contracts, Vlll. 
 "3-20. 
 
 Validity of voluntary deed. 13: 640.* 
 
 "Valuable consideration" construed. 2: 
 530.* 
 
 Relinquishment of security as consideration. 
 2: 530.* 
 
 Recital of receipt of consideration. 3: 804.* 
 
 Promise to support grantee as consideration. 
 3: 836;* 13: 640.* 
 
 Parol evidence to show consideration. 3: 
 803:* 4: 427.* 
 
 8. Recital of money consideration as 
 contractual. 
 
 Consideration clause as importing owner- 
 ship or terms of contract. 
 68: 925. 
 As importing ownership of purchase 
 
 money. 68: 925. 
 
 As importing an interest in land con- 
 veyed. 68: 925. 
 As indicating time of payment. 68: 925. 
 
 Action to recover consideration. 68: 926. 
 Recited consideration as ground of lia- 
 bility. 68: 926. 
 Right' of action. ' 68: 926. 
 Assumpsit. 68: 926. 
 Right of action as affected by the stat- 
 ute of frauds. 68: 927. 
 
 Acceptance of deed as creating obligation to 
 pay consideration. 68: 
 928. 
 
 Parol evidence to vary consideration clause. 
 68: 928. 
 
 Consideration as contractual in action for 
 breach of covenant. 68: 
 931. 
 
 Recital of consideration as contract in writ- 
 ing within statute of limi- 
 tations. 68: 931. 
 
 9. Reservations; exceptions; conditions. 
 
 As to Covenants Restricting Use of Prop- 
 erty. ee Covenants. V. 3. 
 
 Reservations and exceptions in. 2: 87;* 13: 
 289.* 
 
 Implied reservation. 13: 657.* 
 
 Exception and reservation of easements. 
 
 20: 631. 
 
 Of light and air. 22: 541. 
 Of right of way. 5: 279:* 13: 657.* 
 
 Conditions in deeds, generally. 4: 373.* 
 
 Rules that conditions must be express and 
 certain. 13: 173.* 
 
 Covenants distinguished from conditions in. 
 1: 380:* 5: 422.* 
 
 What are conditions subsequent. 5: 422.* 
 
 Effect on a condition subsequent of a suc- 
 ceeding law or act of God 
 preventing its perform- 
 ance. 21 : 58. 
 
 Equitable relief against forfeiture of es- 
 tate for broach of con- 
 dition. 69: 836, 841, 842. 
 
 Validity of condition forbidding sale of in- 
 toxicating liquor upon 
 premises. 4: 373.* 
 
 Condition in deed that land is to be used 
 
 for a specified charitable 
 
 or quasi public purpose. 
 
 19: 262. 
 
 Forfeiture of estate by breach of condition, 
 
 2: 526.* 
 
 Forfeiture for breach of condition as to 
 manufacture or sale of 
 liquors. 5: 423.* 
 Right of re-entry on condition broken. 5: 
 
 424.' 
 Availability of remedy by or against 
 
 assignees. 5: 424.* 
 Liability of grantee upon a condition in deed 
 
 poll. 23: 396. 
 
 Doctrine against liability upon the cove- 
 nant. 23: '397. 
 Contrary doctrine. 23: 399. 
 10. Transferability of right of entry for 
 
 condition broken. 
 Nature of the right. 60: 750. 
 Rule against transferability. 60: 754. 
 
 Before breach of condition. 60: 754. 
 After breach of condition. 60: 758. 
 Exceptions to rule. 60: 760. 
 Statutory. 60: 760. 
 
 After breach where the law against 
 maintenance is not in 
 force. 60: 762. 
 As to devises. 60: 762. 
 Easements on condition. 60: 764. 
 8 n. Recitals; references; description. 
 Recital of money consideration as contrac- 
 
 " tual. 68: 925. 
 
 Receipts in, as evidence of payment as 
 against third parties. 29: 
 740. 
 Recitals in, as basis of implied covenants of 
 
 title. 18: 343. 
 
 Reference in, as constructive notice. 1: 192.* 
 Reference to another deed or to a map. 4: 
 
 425.* 
 
 Effect of use of words ''more or less" in de- 
 scription. 4: 526.* 
 
 General and particular description. 4: 426.* 
 Effect on description of map or plat referred 
 
 to. 13: 142.* 
 
 12. Effect of deed in partition as distin- 
 guished from ordinary deed. 
 Deed to person other than cotenant. 57: 
 
 332. 
 Warranty. 57: 333. 
 
 In general. 57: 333. 
 
 Implied warranty between those hold- 
 
 ing'by descent. 57: 334. 
 Implied warranty between those hold- 
 ing by purchase. 57: 336. 
 Estoppel to set up after-acquired title. 57: 
 
 337. 
 
 Estates acquired by partition deed between 
 parties holding different 
 estates. 57: 337. 
 Words of inheritance as necessary to vest 
 
 fee. 57: 338. 
 
 Rights of subsequent purchasers. 57: 338. 
 Changing title from descent to purchase. 
 
 57: 339. 
 
 Effect a revoking previous will. 57: 339. 
 Failure" of wife to join in deed. 57: 340.
 
 DEER-DEFENSES. 
 
 1011 
 
 Peed by person under disability. 57: 340. 
 
 Execution of deed. 57 : 340. 
 
 Deed not executed by all the parties to 
 
 it. 57:' 340. 
 Defective execution. 57: 340. 
 
 Ktl'cct on judgment and mortgage liens. 57: 
 340. 
 
 Parol evidence to show nature of deed. 57: 
 341. 
 
 13. Estoppel by deed; after-acquired title. 
 
 Kstoppel by deed, generally. 5: 121.* 
 
 KMoppel by recitals in. 5: 278.* 
 
 In married woman's deed. 22: 780. 
 
 When after-acquired title inures to benefit 
 of grantee. 2: 335.* 
 
 Estoppel of married woman by covenant in 
 deed from acquiring supe- 
 rior title. 22: 790. 
 
 Effect of wife's joining in husband's deed 
 upon her title or interest 
 in property. 22:782. 
 
 Right of grantor of mining claim to relo- 
 cate same for' his own 
 benefit. 50: 186. 
 
 14. Reformation. 
 
 Reformation of deed by correcting mistake 
 in description, boundaries, 
 etc. 12: -11 \. 
 
 Right to reli'ef in equity from mistake as to 
 quantity of land. 4: 525.* 
 
 DEER. 
 
 As Game, see Game Laws, 5. 
 
 DE FACTO. 
 
 Municipality, see Bonds, 102. 
 
 Corporations, see Corporations, I. c. 
 
 Directors, see Corporations, 328. 
 
 Grand Jury, see Habeas Corpus, 25. 
 
 Judge, see Judges, 8-12. 
 
 Houae of Representatives, see Legislature, 4. 
 
 ( Mlirers. see ( Mlieer>. III. 
 
 Effect of Paying Salary to De Facto Of- 
 tk-cr, sec Officers, 191-194. 
 
 Religions Corporation, see Religious Socie- 
 ties, 2. 
 
 Order Issued by De Facto Town, see Mu- 
 nicipal Corporations, 34. 
 
 Editorial Xotes. 
 
 Who is de facto officer. 11: 105.* 
 
 De facto and de jure officers distinguished. 
 13: 177.* 
 
 De facto officers and offices under unconsti- 
 tutional statutes. 2.1: 141. 
 
 Right of officer de jure to salary for period 
 during whch de facto has 
 acted and received pay. 
 19: tiSl). 
 
 Directors de facto. 15: 418. 
 
 J)e facto foreign corporation. 24: 293. 
 
 DEFAULT. 
 
 Judgment by, see Appeal and Error, 585, 
 580; Criminal Law. 188: Judgment, 1-3, 
 16, 40. 55. 272. 334. 4(17. 411, 417, -l-_'5, 
 426. 434, 437; Statute-. 101. 
 
 Collusiveness of Judgment by, see Judg- 
 ment, 99, 100, 127, 121). 
 
 Right to Jury Trial on, see Jury, 9-11. 
 
 As Affecting Liability for Kent, see Land- 
 lord and Tenant, 190. 
 
 Provision for Maturity of Note in Case of, 
 see Bills and Notes, 6(5-70. 
 
 In Payment, Authorizing Foreclosure of 
 Mortgage, see Mortgage, VI. b. 
 
 In Payment of Debt Collaterally Secured, 
 see Pledge and Collateral Security, 27, 
 31. 
 
 In Payment, l>v Purchaser on Conditional 
 Sale, see Sale, 122-131. 
 
 Filing of Pleading after, see Pleading, I. p. 
 
 DEFEASIBLE FEE. 
 
 Creation of, by Will, see Wills, 272, 273. 
 See also Real Property, I. a, 3. 
 
 DEFENDANTS. 
 Parties Defendant, see Parties, II. 
 
 DEFENSES. 
 
 In General, see Action or Suit, I. c. 
 
 To Action or Prosecution for Assault, see 
 
 Assault and Battery, II. 
 In .Disbarment Proceeding, see Attorneys,. 
 
 31-33. 
 To Action on Negotiable Paper, see Bills 
 
 and Notes, III. c. 
 To Action for Breach of Promise, see Breach 
 
 of Promise, II. 
 
 Champerty as, see Champerty, 18, 19. 
 In Suit to Remove Cloud from Title, see 
 
 Cloud on Title, II. 
 Ultra Vires as, see Corporations, IV. d, 
 
 2. 
 To Liability as Stockholder, see Corpora- 
 
 tions, 600-606, 618-621. 
 To Guaranty of Corporate Dividends, see 
 
 Corporations, 724. 
 
 To Creditors' Bill, see Creditors' Bill, 10. 
 To Criminal Prosecution, Instigation or Con 
 
 -i 'lit as, see Criminal Law, I. f. 
 To Action for Causing Death, see Death, 
 
 IV. 
 To Action for Divorce, see Divorce and Sepa- 
 
 ration, IV. , 
 
 To Ejectment Suit, see Ejeet ment . II. b. 
 What Excuses Failure to Keep Electric 
 
 Wires Properly Insulated, see Electric- 
 
 ity, 28-30. . 
 In Eminent Domain, see Eminent Domain, 
 
 5, 6, 213. 
 To Prosecution for Obtaining Money by 
 
 False Pretenses, see False Pretenses, 
 
 12. 
 In Action for False Imprisonment, seft 
 
 False ImprUoiiment, IIL 
 To Prosecution for Gaming, tee (laming, 
 
 10. 
 To Prosecution for llomu-ide. see Homicide.
 
 1012 
 
 DEFICIENCY DEFINITIONS. 
 
 Infancy as, see Infants, I. d. 
 
 Fraudulent Use of Label or Trade Name as, 
 see Injunction, 454-458. 
 
 To Liability on Policy, see Insurance, VI. e. 
 
 Unavoidable Accident, see Judges, 57. 
 
 Against Revival of Judgment, see Judg- 
 ment, 405. 
 
 To Liability for Rent, see Landlord and 
 Tenant, 190. 
 
 In Libel Suit, see Libel and Slander, III. c. 
 
 Illegality as Defense in Collateral Matter, 
 see Lottery, 2. 
 
 In Mandamus Case, see Mandamus, 207- 
 219. 
 
 In Foreclosure Suit, see Mortgage, VI. d. 
 
 In Action for Death of Fireman, see Munici- 
 pal Corporations, 461. 
 
 In Proceedings to Abate Nuisance, see Nui- 
 sances, II. d. 
 
 To Prosecution for Illegal Practice of Medi- 
 cine, see Physicians and Surgeons, 11- 
 13. 
 
 To Local Improvement Assessment, see Pub- 
 lic Improvements, 200-203. 
 
 Mistake of Law as, see Reformation of In- 
 struments, 14. 
 
 In Replevin Suit, see Replevin, II. b. 
 
 To Prosecution for Seduction, see Sedu&- 
 tion, II. 
 
 To Action for Specific Performance, see 
 Specific Performance. 
 
 Violation of Sunday Law as, see Sunday, 
 V. 
 
 Against Liability for Delay in Delivering 
 Telegram, see Telegraphs, 99. 
 
 In Action for Trespass, see Trespass, I. c. 
 
 In Trover, see Trover, 36-38. 
 
 Usury as, see Usury, 27. 
 
 "Who may Set up Usury, see Usury, 40- 
 45. 
 
 "Due Process as to, see Constitutional Law, 
 II. b, 7, 6, (2). 
 
 'Vested Right to, see Constitutional Law, 
 160-162. 
 
 TSurden of Proving, see Evidence, II. c. 
 
 [Negation of, see Indictment, etc., II. cj 
 Pleading, II. e. 
 
 Necessity of, to Vacation of Judgment, see 
 Judgment, VII. b. , 
 
 Question for 1 Jury as to Validity of, see 
 Trial, 502. 
 
 DEFICIENCY. 
 On Foreclosure, see Mortgage, VI. i. 
 
 DEFIMTENESS. 
 
 Of Charitable Bequest, see Charities, I. d. 
 Of Contracts, see Contracts, I. d, 3. 
 
 DEFINITIONS. 
 
 Able to read, see Elections, 20. 
 Absolute owner, see Insurance, 343. 
 Absorb, see Insurance, VI. b, 3, e. 
 Accident, see Accident, 1. 
 
 Accord and satisfaction, see Accord and 
 Satisfaction, 1. 
 
 Account, see Accounts, 1. 
 
 Accrued water rights, see Waters, 320. 
 
 Active trust, see Trusts, 36. 
 
 Administered, see Insurance, VI. b, 3, e. 
 
 Affinity, see Affinity; Judge/5, 29. 
 
 Aged, see Homestead, 2. 
 
 Agency, see Physicians and Surgeons, 21. 
 
 Aggrieved, see Appeal and Error, 100, 101; 
 Intoxicating Liquors, 164. 
 
 Alimony, see Divorce and Separation, 56. 
 
 Amalgamation, see Corporations, 53. 
 
 Amount of value, see Corporations, 608. 
 
 And, see Corporations, 133. 
 
 Any asylum, see Elections, 35a. 
 
 Any person, see Corporations, 770. 
 
 Approach, see Blasting, 5. 
 
 Appropriated, see Waters, 326. 
 
 Ascertain, see Corporations, 550. 
 
 Assent, see Corporations. 289. 
 
 Assignment, see Mortgage, 239. 
 
 Assumption of risk, see Master and Serv- 
 ant, 261. 
 
 At, see Contracts, 321. 
 
 Bailment, see Warehousemen, 4. 
 
 Bastard child, see Bastardy, 1. 
 
 Being in this state, see Taxes, 624. 
 
 Boatable waters, see Fisheries, 1. 
 
 Bodily infirmity, see Insurance. 549, 550. 
 
 Born alive, see Curtesy, 3. 
 
 Boycott, see Conspiracy. 
 
 Business, see Corporations, 842. 
 
 By-laws, see Municipal Corporations, 73a. 
 
 Calendar month, see Time, 9. 
 
 Canvass, see Elections. 334. 
 
 Capital stock paid in. see Corporations, 310. 
 
 Carried on. see Malicious Prosecution, 3. 
 
 Cause, see Clerks, 8. 
 
 Charitable institution, see Taxes, I. f, 3. 
 
 Charitable trust, see Charities. 14. 
 
 Chartered by the legislature, see Railroads. 
 50. 
 
 Chartered train, see Carriers, 1125. 
 
 Charterer, see Receivers, 73. 
 
 Chief magistrate, see Extradition, 21. 
 
 Child, see Cruelty; Deeds, 57; Descent and 
 Distribution, 42; Wills, 191-193. 
 
 Citizens, see Aliens. 15; Constitutional Law, 
 390-392. 
 
 City, see Contracts, 328a. 
 
 Claim, see Claims. 
 
 Clerk, see Corporations, 559. 
 
 Commerce, see Harbors, 4. 
 
 Commodities, see Taxes, 562. 
 
 Company, see Insurance, 115. 
 
 Competing railroads, see Conspiracy, 176. 
 
 Concurrent jurisdiction, see Courts, 30-34. 
 
 Conspiracy, see Conspiracy, 1, la. 
 
 Contiguous, see Election Districts, 12; Mu- 
 nicipal Corporations, 18. 
 
 Contingent claim, see Corporations, 557. 
 
 Controversies, see Courts, 337. 
 
 Convenient and contiguous territory, see 
 Election Districts, 12. 
 
 Conviction, see Criminal Law, 254a. 
 
 Copy, see Copy. 
 
 Corporations, see Corporations, 1; Stat- 
 utes. 311. 
 
 County, see Assumpsit. 52. 
 
 Credits, see Taxes, 405. 
 
 Crime, see Insurance, 979-981.
 
 DEFINITIONS. 
 
 101'A 
 
 Cruel treatment, see Divorce and Separa- 
 tion, 17. 
 
 Current wages, see Exemptions, .32. 
 
 Day, see Time. .">. 
 
 Debt, see Bankruptcy. 13: Corporations. 
 323, 324, 530; Debt. 3; Executors and 
 Administrators, 150; Garnishment, 51; 
 Homestead, 24; Taxes, 488. 
 
 Debt contracted, see Corporations, 323, 324. 
 
 Deceased legatee, see Wills. 200. 
 
 De facto corporation, see Corporations, 22. 
 
 De jure corporation, see Corporations, 2. 
 
 Delusion, see Wills, 92a, 92b, 96. 
 
 Demand, see Executors and Administra- 
 tors, 156; Extortion, 2. 
 
 Dependent, see Insurance, 171. 
 
 Devastavit, see Executors and Adjninistra- 
 tors, 7(>a. 
 
 Dimension stone, see Contracts, 357. 
 
 Direct, see Insurance, 303a. 
 
 Discontinuance, see Dismissal or Discon- 
 tinuance, la. 
 
 Discount, see Banks, 277. 
 
 Disease, see Insurance, 548, 549. 
 
 Dismissal, see Dismissal or Discontinuance, 
 la. 
 
 Document, see Discovery and Inspection, 
 12. 
 
 Domestic purposes, see Waters, 312. 
 
 Dormant partner, see Judgment, 239. 
 
 Due process of law, see Constitutional Law, 
 614, 854. 
 
 Dues, see Corporation, 551. 
 
 Duly, see Agreed Case: Duly. 
 
 Easements, see Easements. 1. 
 
 Educational institution, see Taxes, I. f, 3. 
 
 Election, see Corporations, 215. 
 
 Elector, see Elections. 80. 
 
 Elements, see Landlord and Tenant, 22. 
 
 Eligible, see Officers, 19, 35. 
 
 Employees, see Corporations, 811; Mechan- 
 ics' Liens, 35; Receivers, 48. 
 
 Encumbrance, see Encumbrances. 
 
 End, see Contracts. 309. 
 
 Ended, see Malicious Prosecution, 31. 
 
 Entire feet, see Insurance. 1135. 
 
 Established business, see Eminent Domain, 
 270. 
 
 Estate, see Real Property, la. 
 
 Executed trust, see Trusts. 43. 
 
 Executory trust, see Trusts, 42. 
 
 Ex post 'facto law, see Constitutional Law, 
 95. 
 
 Fair and equitable value, see Municipal 
 Corporations, 405. 
 
 Family, see Contracts, 334; Family; Home- 
 stead, 3. 
 
 Firearms, see Carrying Weapons. 5. , 
 
 First class, see Vendor and Purchaser, 37. 
 
 Fixed liability, see Bankruptcy. 32-35. 
 
 Fixtures, see Mechanics' Liens. 45. 
 
 Forthwith, see Chattel Mortgage, 47 ; Forth- 
 with. 
 
 Franchise, see Franchise: Taxes, 346. 
 
 Garbage, see Garbage. 2. 
 
 Generation. see Civil Rights. 25. 
 
 Gift, see Public Moneys. 52. 
 
 Good faith, see Corporations. 620. 
 
 Good health, see Insurance, 554a. 
 
 Goods, see License. 74. 
 
 Good title, see Vendor and Purchaser. 35. 
 
 Goodwill, see Goodwill. 
 
 Grain, see Warehousemen, 6. 
 
 Gross immorality, see Immorality. 
 
 Gross negligence, see Xegligence, 30. 
 
 Guest, see Innkeepers, 3. 
 
 Hawkers, see Peddlers, 6, 9, 10. 
 
 Hazardous adventure, see Insurance, 1044. 
 
 Healthy condition, see Contracts, 740. 
 
 Heir, see Death, 24; Deeds, 57; Descent 
 and Distribution, 25, 42; Husband and 
 Wife, 157; Insurance, 1185-1187; Wills, 
 180-184. 
 
 High water mark, see Waters, 93. 
 
 Hirer, see Receivers, 73. 
 
 Homestead, see Homestead, 61. * 
 
 House, see Gaining, 7. 
 
 Housekeeper, see Housekeeper. 
 
 House of ill- fame, see Disorderly Houses, 3. 
 
 Huckster, see Peddlers. 13. 
 
 Hurt, see Insurance, 555, 556. 
 
 Immediate notice, see Insurance, 894-898. 
 
 Impost, see Taxes, 233. 
 
 Improvements, see Mechanics' Liens, 75. 
 
 In, see Contracts, 320. 
 
 Incorporated company, see Taxes, 188, 286. 
 
 Indebtedness, see Corporations, 309. 
 
 Infamous crime, see Criminal Law, 79. 
 
 Inhabitant, see Elections, 34. 
 
 Inhaled, see Insurance, VI. b, 3, e. 
 
 Injuries, see Release, 17. 
 
 Injuring property, see Arrest, 32. 
 
 Insolvency, see Insolvency, 7, 8. 
 
 Institutions, see Taxes, 613. 
 
 Intestate laws, see Taxes, 602. 
 
 Intoxicating liquors, see Intoxicating Li- 
 quors, 90. 
 
 Inventory, see Insurance, 489. 
 
 Investment, see Public Moneys, 8. 
 
 Issue, see Issue; Wills, 185-190. 
 
 Itinerant merchant, see License, 79. 
 
 Itinerant musician, see Salvation Army. 
 
 Itinerant vendor, see License, 77; Peddlers, 
 13. 
 
 Jeopardy, see Criminal Law, 140. 
 
 Joint tenancy, see Cotenancy, 1. 
 
 Journal, see Statutes, 138. 
 
 Kept, see Insurance. 478, 484. 
 
 Kindergarten, see Evidence, 132. 
 
 Kindred, see Descent and Distribution, 1, 
 51. 
 
 Laborer, see Corporations. 808; Exemptions, 
 .'54. 3.">; Mechanics' Liens, 35. 
 
 Laboring, see Sunday, III. 
 
 Lace, see Carriers, 749. 
 
 Lamp, see Contracts, 319. 
 
 Lands adjacent, see Municipal Corpora- 
 tions, 9. 
 
 Lawful charge, see Mortgage. 236. 
 
 Lawful heirs, see W T ills, 184. 
 
 Lawful issue, see Parent and Child, 47; 
 Wills. 189, 190. 
 
 Law of the land, see Constitutional Law, 
 616. 
 
 Learned in the law. see Judges. 44. 
 
 Legal heirs, see Wills, 181. 
 
 Legal representatives, see Descent and Dis- 
 tribution. Ib. 
 
 Legatee, see Insurance, 153. 
 
 Lien, see Encumbrances; lions. 1. 
 
 Lineal descent, see Wills. 434. 
 
 Litigation, see Insurance. 424. 
 
 Lodger, see Lodger. 
 
 Lot. see Public Improvements. 01. 122-
 
 1014 
 
 DEFINITIONS. 
 
 Lottery, see Lottery, II. 
 
 Lounger, see Negligence, 228. 
 
 Lunatic, see Descent and Distribution, 4. 
 
 Machinery, see Mechanics' Liens, 45. 
 
 Malicious injury, see Conspiracy, 23. 
 
 Man, see Constitutional Law, 638. 
 
 Manual labor, see Mechanics' Liens, 48. 
 
 Manufacturing establishment, see Insur- 
 ance, 456, 457. 
 
 Many, see Many. 
 
 Market, see Markets, 1, 2. 
 
 Market price, see Market Price. 
 
 Marriage, see Marriage, 1. 
 
 Materials, see Mechanics' Liens, 45, 46. 
 
 Mechanical business, see Corporations, 529. 
 
 Mechanical pursuit, see License, 70. 
 
 Medical college, see Physicians and Sur- 
 geons, 19. 
 
 Mental infirmity, see Insurance, 550. 
 
 Merchandise, see License, 74. 
 
 Merchant, see Merchants. 
 
 Merger, see Corporations, 53. 
 
 Mill, see Insurance, 458. 
 
 Ministerial act. see Mandamus, 9. 
 
 Money, see Money, la. 
 
 Moneyed capital, see Taxes, 11. 
 
 Month, see Time, 8, 9; Writ and Process, 
 47. 
 
 Monument, see Buildings, 1. 
 
 Mortgages, see Aliens. 18. 
 
 Municipalities, see Public Moneys, 38. 
 
 Municipal official, see Schools, 63. 
 
 Mutilation, see Carriers, 595. 
 
 Name, see Xame. 1. 
 
 Necessaries, see Infants, 63. 
 
 Necessary expense, see Municipal Corpora- 
 tions, 326-329. 
 
 Necessary implication, see Implication. 
 
 Negligence, see Negligence, 4. 31. 
 
 Nephews, see Wills, 195. 
 
 Newspapers, see Newspaper, 69. 
 
 Next of kin, see Wills, 196-198; Witness- 
 es, 47. 
 
 Nieces, see Wills, 195. 
 
 jVo/i compos mentis, see Descent and Dis- 
 tribution. 4. 
 
 Nonresident alien, see Descent and Distri- 
 bution, 50. 
 
 Noon, see Insurance, 313. 
 
 Nuisance, see Intoxicating Liquors, 153. 
 
 Occupation, see insurance, 1059. 
 
 Officers of local police, see Schools, 64. 
 
 Open, see Lewdness. 
 
 Opposite party, see Witnesses, 46. 
 
 Ordinances, see Municipal Corporations 
 73a. 
 
 Outstanding accounts, see Accounts. 1. 
 
 Overdraft, see Banks. 89. 
 
 Owner, see Carriers. 1021; Insurance, 341; 
 Receivers. 7-'?. 
 
 Parallel railroads, see Conspiracy. 175. 
 
 Parcel, see Public Improvements, 122. 
 
 Pardon, see Criminal Law. 
 
 Partv wall, see Party Wall. 1. 
 
 Piii- value, see Corporations. 351. 
 
 Passage, see Statutes. 40. 
 
 Passenger, see Carriers. 144-146. 
 
 Pavinir. see Public Improvements, 51. 
 
 Pavable. see Payable. 
 
 Peddler. see Peddlers. 3-13. 
 
 Penal statutes, see Statutes. 505a. 
 
 IVuMtv. -<! Penalties. -2. 
 
 Percolating water, see Waters, 426. 
 
 Perpetual succession, see Corporations, 692. 
 
 Person, see Constitutional Law, 392, 415, 
 416, 638, 639; Corporations, la; 
 Courts, 14; Garnishment, 14; Insol- 
 vency, 2. 
 
 Person absent from the state, see Limita- 
 tion of Actions, 155. 
 
 Personal liberty, see Constitutional Law, 
 618. 
 
 Personal property, see Taxes, 109. 
 
 Personal representatives, see Deeds, 51. 
 
 Personal security, see Constitutional Law, 
 619. 
 
 Personal wrong or injury, see Witnesses, 
 37. 
 
 Person residing without the State, see 
 Costs and Fees, 22. 
 
 Place, see Gaming, 7. 
 
 Platted, see Municipal Corporations, 15. 
 
 Pledge, see Pledge and Collateral Security, 
 I. 
 
 Police power, see Constitutional Law, 948, 
 1001. 
 
 Presence, see Arrest, 26, 30; Wills, 39, 43. 
 
 Presentation, see Statutes, 25. 
 
 Private corporation, see Public Moneys, 42. 
 
 Private residence, see Gaming, 8. 
 
 Privilege, see License, 106. 
 
 Privity in estate, see Privity. 
 
 Prize fighting, see Prize Fighting, 1, 6. 
 
 Process, see Execution, 1; Insurance, 419. 
 
 Professional experts, see Civil Service, 10. 
 
 Property, see Bankruptcy, 25, 26; Constitu- 
 tional Law, 634, 781; Injunction, 126, 
 127; Partnership, 153; Municipal Cor- 
 porations, 446; Taxes, 102, 202. 
 
 Proprietor, see Receivers, 73. 
 
 Provisions, see Municipal Corporations, 224. 
 
 Proximate cause, see Proximate Cause, 1- 
 4, 12. 
 
 Public acknowledgment, see Parent and 
 Child, 20. 
 
 Public address, se Common, 1. 
 
 Public institution, see State Institutions, 4. 
 
 Public officer, see Officers, 190. 
 
 Public waters of the state, see Waters, 2. 
 
 Published, see Publication, 4. 
 
 Purchase, see Aliens, 18, 19; Mechanics' 
 Liens, 23. 
 
 Purchaser, see Acknowledgment, 16. 
 
 Railroads, see Dummy Railroads; Master 
 and Servant, 480; Railroads, 3a. 168; 
 Street Railways, 64; Taxes, 178, 498. 
 
 Railway, see Elevated Railroads, 1; Emi- 
 nent, Domain. 18; Railroads, 3a. 
 
 Real estate, see Waters, 474. 
 
 Regularly organized bank, see Public 
 Moneys, 5. 
 
 Related to, see Insurance, 168. 
 
 Relative, see Descent and Distribution. 1; 
 Insurance. 169. 
 
 Religious institution, see Taxes, I. f, 3. 
 
 Remainder, see Wills, 324. 
 
 Remedy by due course of law, see Consti- 
 tutional Law, 790. 
 
 Representatives, see Wills. 199. 
 
 Reserve, see Contracts, 362, 363. 
 
 Salary, see Officers, 188. 
 
 Sale, see Food. 6. 
 
 Scientific institution, see Taxes, 269-270. 
 
 Sectarian school, see Public Moneys. 62.
 
 DEFINITIONS. 
 
 1015 
 
 Seduction, see Seduction, 1. 
 
 Seizure, see Search and Seizure, 2. 
 
 Services, see Mechanics' Liens, 51. 
 
 Shipment, see Contracts, 343. 
 
 Shipped, see Contracts, 356. 
 
 Sickness, see Insurance, 1086. 
 
 Single dwelling, see Covenant, 29. 
 
 Space of intersection, see Mines, 15. 
 
 Special taxation, see Public Improvements, 
 105. 
 
 Special verdict, see jirial, 885. 
 
 Specific taxes, see Taxes, 20. 
 
 Spirituous liquors, see Intoxicating Li- 
 quors, 91. 
 
 Sporting, see Sunday, 7. 
 
 Square inch of water, see Waters, 501. 
 
 Standing army, see Militia, 1. 
 
 State lands, see Eminent Domairf, 33. 
 
 Stepfather, see Insurance, 167. 
 
 Stock, see Wills, 223. 
 
 Stock corporation, see Taxes, 193. 
 
 Stream, see Streams. 
 
 Street railway, see Elevated Railroads, 1; 
 Taxes, 179. 
 
 Structure, see Fences, 23; Mechanics' Liens, 
 70, 72. 
 
 Subscriber, see Newspaper, 1. 
 
 Succession tax, see Taxes, 556. 
 
 Suit actually commenced and pending, see 
 Receivers, 3. 
 
 Superintendent, see Corporations, 808. 
 
 Surviving, see Wills. 345, 346. 
 
 Syndicate, see Syndicate, 1. 
 
 Taxes, see Public Improvements, 55. 
 
 Tenement, see Buildings, 34; Evidence, 
 1371. 
 
 Then heirs, see Wills, 201. 
 
 Then surviving, see Wills, 346. 
 
 Title, see Title! 
 
 Total and permanent loss of sight, see In- 
 surance, 1136. 
 
 Total disability, see Insurance, 1139. 
 
 Total inability to labor, see Insurance, 1137. 
 
 Total loss, see Insurance, 1110. 
 
 Totally destroyed, see Insurance, 1115, 
 1116. 
 
 Transaction, see Action or Suit, 86, 87. 
 
 Treatment, see Divorce and Separation, 16. 
 
 Trinkets, see Carriers, 748. 
 
 Troops, see Militia, 1. 
 
 Trunk railway, see Railroads, 1, 2. 
 
 Trust fund, see Receivers. 91. 
 
 Unconditional and sole ownership, see 
 Insurance, III. e. 1. b. 
 
 Tndue influence, see Wills, 109, 110. 
 
 Union, see Corporations. 53. 
 
 Unlawful, see Corporations, 18. 
 
 Unmarried woman, see Wills, 74, 75. 
 
 Unnecessary danger, see Insurance, 1044. 
 
 Until, see Time, 13. 14. 
 
 Usual projection, see Covenant, 35. 
 
 Vested water rights, see Waters, 320. 
 
 Viewing, see Coroner, 1. 
 
 Vinous liquors, see Intoxicating Liquors, 
 91. 
 
 Voluntary exposure, see Insurance, VI. b, 3, 
 
 Voluntary trust, see Trusts. 39. 
 Volunteer, see Subrogation. 20. 
 Wares, see License, 74. 
 Waste, see Executors and Administrators, 
 7fia. 
 
 Watercourses, see Waters, 410, 432, 433. 
 Ways, see Master and Servant, 162. 
 Week of time, see Time, 6. 
 Wound, see Insurance, 5"-5, 556. 
 
 Editorial Notes. 
 
 Accidental. 9: 685.* 
 
 Affinity. 11:630.* 
 
 Agents, general and special. 2 : 808.* 
 
 Breach of the peace. 13: 163.* 
 
 Business. 14: 530. 
 
 Collusion. 12: 815.* 
 
 Consolidation. 52: 369. 
 
 Contingent claims. 58: 83. 
 
 Court. 56:531. 
 
 Covenants. 6: 107.* 
 
 Criminal negligence. 3: 644.* 
 
 Dealing. 14:529. 
 
 Debt. 34: 636. 
 
 Deed-poll. 8:604.* 
 
 Deposition. 13: 366.* 
 
 Due process of law. 2 : 258.* 
 
 Dues. 15:513. 
 
 Easement. 6: 159.* 
 
 Elements. 53:673. 
 
 Escheat. 12:529.* 
 
 Escrow. 5: 696;* 10: 469.* 
 
 family. 6:813.* 
 
 Forgery. 10: 779.* 
 
 Gift. 6: 403.* 
 
 Hawkers. 8:273.* 
 
 Heirs. 8: 732,* 747;* 12: 721;* 13: 46.* 
 
 Presumptive and apparent. 5: 122.* 
 
 In insurances policies. 30: 593. 
 Inevitable accident. 11: 616.* 
 Inn. 6: 484.* 
 
 Insolvency. 5:765;* 6:108;* 10:707.* 
 Insolvent. 5: 765.* 
 Issue. 4: 117;* 11: 305.* 
 Laborers. 18 : 305. 
 Laches. 10: 125.* 
 Legal representatives, as nsed in insurance 
 
 policy. 30: 609. 
 Libel. 9: 621:* 13:419.* 
 Lunatic. 1 : 270.* 
 Maintenance. 10: 190.* 
 Malice. 2: 130;* 11: 546.* 
 Manufacturers. 14: 107. 
 Market value. 12: 610.* 
 Martial law. 65: 193. 
 "May" in statute. 6: 162.* 
 Mistake. 6: 835.* 
 Month. 12: 770.* 
 Navigable streams. 3: 406.* 
 Nonresident. 10: 504.* 
 Novation. 10: 369.* 
 Officer. 13: 177;* 17: 243. 
 Option. 21: 128. 
 Party wall. 1: 33; 7: 649.* 
 Peddlers. 8:273.* 
 
 Persons: who or what i included in the 
 term "persons." 19: 222. 
 
 Definitions. 19:222. 
 
 Is a sovereignty a person? 19: 223. 
 
 Are corporations persons? 19: 223. 
 
 Under laws relating to attachment, 19: 
 
 224. 
 Under laws relating to taxation. 
 
 19: 224. 
 Within statutes of limitation. 1H: 
 
 224. 
 Under Constitution. 10: 224.
 
 1016 
 
 DEGREES-DEMAND. 
 
 Under miscellaneous statutes. 19: 
 
 225. 
 
 Women. 19 : 226. 
 Miscellaneous instances. 19: 226. 
 Police power. 13: 131.* 
 Publication. 13: 419.* 
 Rape. 8:297.* 
 Relation. 13:37.* 
 Relatives. 14: 342. 
 Right of way. 4: 275.* 
 Term. 56: 531. 
 
 Unmarried; meaning of words "unmarried" 
 and "without having been 
 married." 15: 292. 
 In statutes. 15: 292. 
 In will or marriage settlement. 15: 292. 
 "Valuable consideration." 2: 530.* 
 Verdict, general and special. 6: 573.* 
 Will. 10: 93.* 
 
 DEGREES. 
 
 Conferring of, see Colleges, 8, 9. 
 Of Homicide, see Homicide. 
 
 DELAY. 
 
 Dismissal of Appeal for, see Appeal and 
 Error, 375-377. 
 
 In Delivery by Carriers, see Carriers, II. 
 b, 4, d. 
 
 In Giving Notice of Arrival of Property 
 Shipped, see Carriers, 801. 
 
 By Consignee in Removal of Goods, see 
 Carriers, 804-806. 
 
 In Presenting Check, see Checks, 14-25. 
 
 In Delivery of Telegram, see Telegraphs, 57- 
 64. 
 
 In Delivery by Warehouseman, see Ware- 
 housemen, 13. 
 
 DELEGATE DISTRICT. 
 
 Question for Court as to Formation of, see 
 Courts, 134. 
 
 DELEGATES. 
 
 Change in Apportionment of, see Election 
 
 Districts, 42. 
 To Political Convention, see Elections, III. 
 
 DELEGATION. 
 
 Of Master's Duty, see Master and Servant, 
 II. e, 2. 
 
 DELEGATION OF POWER. 
 
 Constitutionality of, see Constitutional 
 Law, I. d. ' 
 
 By Director of Corporation, see Corpora- 
 tions, 230. 
 
 By County, see Counties, 42. 
 
 To Board of Supervisors, see Intoxicat- 
 ing Liquors, 49. 
 
 As to Local Option Generally, see Intox- 
 icating Liquors, I. c. 
 
 By Judge, see Judges, 2. 
 
 As to Amount of License Fee, see License, 
 151. 
 
 By or to Municipality, see Constitutional 
 Law, I. d, 4; Municipal Corporations, 
 H. b. 
 
 As to Impeachment, see Officers, 159. 
 
 As to Assessments for Public Improve- 
 ments, see Public Improvements, 133. 
 
 DELIBERATION. 
 
 As Element of Murder, see Homicide, 2, 3, 
 22. 
 
 DELIRIUM TREMENS. 
 
 Amount of Damages when Due to Negli- 
 gent Injury of Intoxicated Person, see 
 Damages, 316. 
 
 DELIVERY. 
 
 By Carrier, see Carriers, II. b, 4. 
 
 Indorsement of Note before, see Bills and 
 Notes, HI. b, 2. 
 
 Of Note, see Bills and Notes, 29-32. 
 
 Of Deed, see Deeds, I. b. 
 
 In Escrow, see Escrow. 
 
 Of Gift, see Gift, III. 
 
 Of Insurance Policy, see Insurance, 216- 
 230. 
 
 Of Mortgage, see Mortgage, 5, 6. 
 
 Of Pledge, see Pledge and Collateral Se- 
 curity, 3-12. 
 
 Of Personalty Sold, see Sale, I. b. 
 
 Of Telegram, see Telegraphs, II. 
 
 DELUSIONS. 
 
 Effect of, on Testamentary Capacity, see 
 Wills, 92-102. 
 
 DEMAND. 
 
 As Condition Precedent to Right of Action , 
 see Action or Suit, I. b, 3; Mandamus, 
 153-156, 206; Replevin, I. c; Trover, 
 I. c. 
 
 As Condition Precedent to Set-Off, see Set- 
 Off and Counterclaim. 53. 
 
 By Holder of Bank Check, Effect, see- 
 Banks, 107. 
 
 For Payment of Note, see Bills and Notes, 
 IV.'; Trial. 150, 151.
 
 DEMAND NOTE DENTISTS. 
 
 101T 
 
 Upon Guarantor, see Guaranty, 22. 
 
 To Start Interest Running, see Interest, 
 
 I. h. 
 
 For Jury Trial, see Jury, I. c. 
 
 Against City, see Municipal Corporations, 
 
 II. g, 6. 
 
 Admission of, see Pleading, 116. 
 
 For Support of Pauper, see Poor and Poor 
 Laws, 10. 
 
 To Enforce Condition Subsequent, see Real 
 Property, 20, 21. 
 
 What is, see Executors and Administra- 
 tors, 156; Extortion, 2. 
 
 Waiver of, see Banks, 394. 
 
 Editorial Notes. 
 
 As Condition of Holding Drawer or Indorser 
 of Negotiable Paper, see 
 Bills and Notes, VII. 
 25-29. 
 
 As a Condition of Trover, see Trover, III. 
 
 As a condition of mandamus to compel sur- 
 render of office. 31:348. 
 
 Banking customs as to demand and notice. 
 21: 441. 
 
 Before sale of property by pledgee. 43: 750. 
 
 For trial as a condition of discharge for de- 
 lay in prosecution. 56: 
 538. 
 
 On cotenant for rents and profits. 28: 850. 
 
 For repairs as a condition of liability of 
 cotenants. 29: 459. 
 
 Sufficiency of demand that insured submit 
 to examination. 52: 425. 
 
 Of payment of alimony as condition of con- 
 tempt proceedings. 24 : 
 437. 
 
 As a condition of recovery of goods by sell- 
 er in case of purchaser's 
 fraud. 2: 155.* 
 
 DEMAND NOTE. 
 
 i 
 
 Time of Demanding Payment, see Bills and 
 Notes, 133, 159-162. 
 
 Failure to Pay on Demand, see Pledge and 
 Collateral Security, 13. 
 
 Question for Jury as to Time for Demand- 
 ing Payment, see Trial, 150, 151. 
 
 DEMONSTRATIVE EVIDENCE. 
 
 See Evidence, V. 
 
 DEMURRAGE. 
 
 On Cars, see Carriers, II. b, 9. 
 
 Legality of Agreement between Railroads 
 
 as to Charges for, see Conspiracy, 184- 
 
 187. 
 On Vessel, see Shipping, 11-14. 
 
 Editorial Notes. 
 
 On oars. 22: 530. 
 
 Jurisdiction of admiralty as to. 66: 226. 
 
 Maritime lien for. 70: 374. 
 
 DEMURRER. 
 
 Raising Objection to Indictment by, see 
 Criminal Law, 129. 
 
 Conclusiveness of Judgment on, see Judg- 
 ment, II. b. 
 
 To Alternative Writ of Mandamus, see Man- 
 damus, 198. 
 
 To Evidence, see Trial, II. d, 4. 
 
 See also Pleading, VII. 
 
 DENIAL. 
 
 In Pleading, see Pleading, 462-471. 
 
 DENTISTS. 
 
 Equal Protection and Privileges as to, see 
 
 Constitutional Law, 495, 496, 504. 
 Requiring License to Manage Dental Oflice,. 
 
 see Constitutional Law, 1033. 
 Disclosure of Information Obtained in Prac- 
 
 tice, see Evidence, 1492. 
 Transfer of Goodwill of Partnership of, see- 
 
 Goodwill, 4. 
 Injunction against Practice by, see Injunc- 
 
 tion, 97. 
 Compelling Indorsement of Diploma, see 
 
 Mandamus, 33. 
 Appointment of Examiners, see Officers, 55, 
 
 56. 
 Construction of Statute as to Admission to 
 
 Practice, see Statutes, 488. 
 
 1. Authority to practise medicine and 
 surgery under R. I. Gen. Laws, chap. 165, 
 includes the right to practise dentistry as a 
 branch of surgery, without having com- 
 plied with the requirements specially pro- 
 vided by R. I. Gen. Laws, chap. 155, as 
 amended by R. I. Pub. Laws, chap. 470, as 
 a condition for practising dentistry. State 
 v. Beck, 21 R. I. 288, 43 Atl. 366, 45 : 269 
 
 2. A statute providing that any person 
 desiring to practise dentistry may be exam- 
 ined "with reference to qualifications" by 
 the board of medical examiners will not be 
 held unconstitutional on the ground that its 
 language is so vague and indeterminate as 
 to permit an examination upon any subject, 
 since it will be presumed that the quali- 
 fications referred to are those appropriate 
 to and requisite for the practice of den- 
 tistry. State v. Knowles, 90 Md. 646, 45 
 Atl. 377, 49: 695 
 
 3. A dentist, though having a diploma 
 from a reputable dental college, and on the 
 roll of dental surgeons, and registered ac- 
 cording to law, is not exempt from jury 
 duty, under Mo. Rev. Stat. 1889, 6062, as 
 a "practitioner of medicine." State ex rel. 
 Flickinger v. Fisher, 119 Mo. 344, 24 S. W. 
 167, 22: 799 
 
 Editorial Notes. 
 
 Judicial review of action in respect to li- 
 censes. 20: 355.
 
 1018 
 
 DEPARTMENT OF AGRICULTURE DEPOSITIONS. II. 
 
 DEPARTMENT OF AGRICULTURE. 
 
 License from, see License, 34. 
 See also Board of Agriculture. 
 
 DEPARTMENT STORE. 
 
 Police Regulation of, see Constitutional 
 Law, 1060, 1075. 
 
 Estoppel of, to Deny Liability, see Estop- 
 pel, 217. 
 
 Injunction for Breach of Contract by, see 
 injunction, 101. 
 
 Prohibiting Sales of Liquor in, see Intox- 
 icating Liquors, 25. 
 
 License of, see License, 119.. 
 
 Municipal Regulation of, see Municipal 
 Corporations, 222. 
 
 Specific Enforcement of Contract by, see 
 Specific Performance, 64. 
 
 Validity of Statute as to, see Statutes, 60. 
 
 Editorial Notes. 
 
 Legal restrictions on. 48: 261. 
 
 Persons conducting departments as inde- 
 pendent contractors. 65: 
 470. 
 
 *-^ 
 
 DEPARTURE. 
 
 From Pleading in Recovery Allowed, see 
 
 Pleading, 98, 99. 
 In Amendment of Pleading, see Pleading, 
 
 129. 
 
 DEPENDENTS. 
 
 Insurable Interest of, see Insurance, 154- 
 173. 
 
 DEPORTATION. 
 
 See Aliens, I. 
 
 DEPOSIT. 
 
 In Accordance with Arbitration Agreement. 
 
 Liability for Costs, see Arbitration, 10, 
 
 11. 
 
 In Bank, see Banks, IV. a. 
 To Secure License, see Constitutional Law, 
 
 759. 
 As Security for Costs, see Costs and .Fees, 
 
 23. 
 Of Title Deeds as Mortgage, see Mortgage, 
 
 9, 133. 
 
 DEPOSITIONS. 
 
 T. In General. 
 TI. Taking and Returning. 
 
 III. Objections. 
 
 IV. Use on TriaL 
 V. Editorial Notes. 
 
 As Part of Record on Appeal, see Appeal 
 
 and Error, 180. 
 Prejudicial Error in Permitting Retaking 
 
 of, see Appeal and Error, 959. 
 Taking for Use in Proceedings to Suppress 
 
 Monopoly, see Constitutional Law, 
 
 916; Courts, 246. 
 Costs Where Deposition is Not Completed, 
 
 see Costs and Fees, 4. 
 Effect of Taking, on Jurisdiction of Court, 
 
 see Trial, 17. 
 
 As to Discovery and Inspection, see Dis- 
 covery and Inspection. 
 
 I. In General. 
 
 Right to take. 
 
 1. A witness "lives" where he is sojourn- 
 ing for his health for an uncertain time, 
 within the meaning of U. S. Rev. Stat. 
 863, U. S. Comp. Stat. 1901, p. 661, in re- 
 spect to the taking of depositions of a wit- 
 ness who lives more than 100 miles from 
 the place of trial. Mutual Ben. L. Ins. Co. 
 v. Robison. 19 U. S. App. 266, 7 C. C. A. 
 444, 58 Fed. 723. 22: 325 
 Weight given to. 
 
 2. The answers of a wife to interroga- 
 tories on facts and articles propounded to 
 her by creditors of her husband, who have 
 seized by attachment land alleged to be- 
 long to him, but which the wife, having in- 
 tervened in the proceedings, claims to be- 
 long to her, are entitled to no greater ef- 
 fect, as against such creditors, than her 
 oral testimony given in her own behalf. 
 Rush v. Landers, 107 La. 549, 32 So. 95, 
 
 57: 353 
 
 II. Taking and Returning. 
 
 Time to take. 
 See also infra, 14. 
 
 3. Depositions will be suppressed which 
 are taken in violation of a rule providing 
 that testimony cannot be taken by either 
 partj r until the cause is at issue by suf- 
 ficient answer or decree pro confesso as to 
 all the defendants. Hall v. Henderson, 134 
 Ala. 455, 32 So. 840, 63: 673 
 Notice. 
 
 4. The publication of notice to take dep- 
 ositions, under W. Va. Code, chap. 121, 
 2, which requires notice once a week -for 
 four successive weeks, is completed on the 
 fourth issue of the newspaper containing 
 it, and is sufficient if a reasonable time 
 elapses between the date of said fourth .is- 
 sue and the taking of the depositions. Mil- 
 ler v. McMecheh. 33 W. Va. 197, 10 S. E. 378, 
 
 6: 515 
 
 Interrogatories. 
 See also supra. 2. 
 
 5. An examination of an adverse party by 
 interrogatories, under Fla. IT. act February 
 8. 1801 (Model. Dig. pp. 516, 517, 18-
 
 DEPOSITIONS, III. V. 
 
 1019 
 
 21), is, like a bill of discovery in equity 
 in aid of an action at law, limited to the 
 support of the case or defense of the party 
 propounding the interrogatories, and can- 
 not extend to the whole case. Jacksonville, 
 I. & K. W. R. Co. v. Peninsular Land. T. 
 & Mfg. Co. 27 Fla. 1, 157, 2 So. 661, 9 So. 
 89, 17 : 33 
 
 6. The provisions of Fla. Pr. act Feb- 
 ruary 8, 1861, allowing interrogatories to 
 be propounded to the adverse party in ac- 
 tions at law, are not repealed by the act of 
 February 4, 1874, removing the common- 
 law disability of a party to testify. Id. 
 Certificate of officer taking. 
 
 7. A certificate of the officer taking a 
 deposition is insufficient which 5 tate- that 
 the witnesses were gworn "to testify the 
 whole truth of their knowledge touching 
 the matter in controversy," where the stat- 
 ute (Kan. Gen. Stat. 1889. ' 44.14) pro- 
 vides that such certificates shall show "that 
 the witness was first sworn to testify the 
 iriith. the whole truth, and nothing but 
 the truth;" and it is error to overrule a 
 motion to suppress such deposition, alleg- 
 ing such defect as ground therefor. Western 
 I". Teleg. Co. v. Collins, 45 Kan. 88. 25 Par. 
 187, 10: 515 
 
 III. Objections. 
 
 Sufficiency. 
 
 8. A general 'objection and exception to 
 the admission in evidence of a deposition 
 is not sufficient if some portions of it are 
 admissible, although other portions are in- 
 admissible, (iutzman v. Clancy, 114 Wis. 
 58-9. 90 X. W. 1081, 58: 744 
 Time to take. 
 
 9. An objection to an answer to an in- 
 terrogatory in a deposition, that it states 
 facts not called for, should be made before 
 trial upon notice to the other party. Mis- 
 -ouri P. R. Co. v. Ivey, 71 Tex. 409. 9 S. W. 
 346. 1: 500 
 
 10. A party who has answered interroga- 
 tories propounded before trial, under Ind. 
 Rev. Stat. 1881. 359. cannot object to in- 
 troduction of the answers in evidence at 
 the trial, upon the ground that they are 
 irrelevant. Cincinnati. T. St. L. & C. R. Co. 
 v. Howard. 124 Ind. 280, 24 X. E. 892, 
 
 8 : 593 
 
 11. An objection that an officer of a cor- 
 poration, whose answers to interrogatories 
 are offered in evidence against it. i-s not of 
 sufficient grade to answer, is properly over- 
 ruled when not made until the trial, and 
 unsupported by evidence. Jacksonville. T. 
 * K. W. R. Co. v. Peninsular Land T. & 
 Mf<>'. Co. 27 Fla. 1. 157. 2 So. rail. So. 689. 
 
 17: 33 
 
 12. The fact that a deposition of a wit 
 ness was taken in the third person and as a 
 recital by the notary of what was said is 
 a. mere irregularity, waived by failure to 
 move to suppress the deposition within the 
 time limited by Minn. Cen. Stat. 1894, 
 5691. Hahn v.' Bettingen, 81 Minn. 91. 83 
 X. W. 467, 30: W 
 
 IV. Use on Trial. 
 
 Ose of. in Other Case, see Evidence, 898, 
 
 899. 
 
 Order of Admission of, see Trial, 20. 
 After Death of Other Party, see Witnesses, 
 
 42. 
 
 13. Depositions taken in the presence of 
 the accused may be used on trial when, on 
 account of death or other good cause, the 
 presence of the witness cannot be had. This 
 is not in violation of the 6th Amendment to 
 the Constitution of the United States. Ter- 
 ritory v. Evans, 2 Id. 651, 23 Pac. 232. 
 
 7: liUi 
 
 14. A deposition taken before certain per- 
 sons were made parties to a suit cannot be 
 used as against them. Smith v. Milwaukee 
 Builders' & T. Exch. 91 Wis. 360. 64 X. 
 W. 1041, 30: 504 
 
 15. The competency of a deposition of- 
 fered against the estate of a deceased per- 
 son does not depend upon the facts at tho 
 time the deposition was taken, but upon 
 those existing at the time of the trial. Hew- 
 lett v. George, 68 Miss. 703. 9 So. 885. 
 
 13: 682 
 
 16. An answer to an interrogatory as to 
 usury, in a suit to enjoin enforcement of a 
 bond in which no interest is provided for 
 until maturity, but usurious interest after- 
 wards, which states that legal interest un- 
 til maturity made up part of the face of the 
 l>ond. and that the illegal interest was a 
 penalty for not paying at maturity, will 
 not b excluded from evidence for contra- 
 dieting the bond. Ward v. Cornett. 91 Va. 
 676, 22 S. E. 494, 49: 050 
 
 17. Refusal to answer a cross-interroga- 
 tory which does not appear to have been 
 material will not prevent the admission of 
 a deposition in evidence. White v. Solomon. 
 1(54 Mass. 516. 42 X. E. 104, 30: 537 
 When deponent present. 
 
 18. Answers to interrogatories by a non- 
 resident witness cannot be read if he is ac- 
 tually present in court, although he has 
 come at the request of the opposite party. 
 East Tennessee, V. & G. R. Co. v. Kane. 92 
 Ga. 187, 18 S. E. 18, 22: 315 
 
 19. A witness's deposition taken by plain- 
 tiff and filed in the suit, is properly exclud- 
 ed on plaintiff's objection that the witness 
 is present, upon defendant's offering it in 
 evidence, under the implication contained in 
 Mo. Rev. Stat. 1889, 4461, which makes no 
 provision for the reading of the deposition 
 of a witness not a party to the suit who i- 
 present at the trial. Schmitx v. St. Louis. 
 I N[ & S. R. Co. 119 Mo. 256. 24 S. W 
 472, 23:250 
 
 V. Editorial Xotes. 
 
 Defined: rejection of. as evidence. 13: 366.* 
 Of subscribing witness. 35: 340. 
 CM of, before grand jury. 2S:319. 
 Power of consul to take depositions. 45: 
 
 499. 
 Privilege as to statements in. 22: S.>7.
 
 1020 
 
 DEPOSIT SLIP DESCENT AND DISTRIBUTION. 
 
 DEPOSIT SLIP. 
 
 Nature of, see Banks, 179. 
 
 DEPOT COMPANY. 
 
 Burden of Proving Negligence of, see Evi- 
 dence, 535. 
 
 As Servant of Railroad Company, see Mas- 
 ter and Servant, 14. 
 
 Injury to Employees of, see Master and 
 Servant, 476. 
 
 Negligence as to Vicious Person in Depot, 
 see Negligence, 48. 
 
 See also Union Depot Company. 
 
 DEPOTS. 
 
 Keeping Open, see Carriers, 25. 
 
 Duty to Announce Stations, see Carriers, 
 465. 
 
 Condition of, see Carriers, II. a, 9. 
 
 Duty as to, see Carriers, III. d. 
 
 Grant of Special Privilege to Hacks, Car- 
 riages, etc., at, see Carriages, 1045- 
 1067. 
 
 Contract to Establish, see Contracts, 322, 
 471, 472, 698. 
 
 Covenant to Maintain, see Covenant, 109. 
 
 Condition in Grant as to Maintenance of, 
 see Real Property, 9. 23. 
 
 Rights Acquired by Condemnation of Land 
 for, see Eminent Domain, 149. 
 
 Mandamus to Compel Location of, see Man- 
 damus, 104. 
 
 Liability for Street Improvement Assess- 
 ment, see Public Improvements, 112. 
 
 Assessment for, see Public Improvements, 
 41, 84, 160, 163-166. 
 
 Tax on, see Taxes, 184, 245. 
 
 Question for Jury as to, see Trial, 174. 
 
 Editorial Notes. 
 
 As to Rights of Passengers at, see Carriers, 
 
 IV. 7. 
 
 Taking land for. 9 : 295.* 
 Rights of and discrimination as to hackmen 
 
 at. 13: 848. 
 Formation of union depots. 13: 415:* 
 
 DEPUTY. 
 
 Acknowledgment by, see Acknowledgment. 
 2, 7, 19. 
 
 Arrest by, Without Warrant, see Arrest. 
 16. 
 
 Special Legislation as to. see Statutes. 405. 
 
 Service on, see Writ and Process, 25, 86. 
 
 Return of Process by, see Writ and Process. 
 82. 
 
 Of Clerk, see Clerks, 18. 
 
 Of District Attorney. Judicial Notice of 
 Appointment of, see Evidence. 26. 
 
 <>f District Attorney, Signing of Informa- 
 tion by, see Indictment, etc., 7, 8, 11, 
 17b. 
 
 Marshal, Homicide by, see Conflict of Laws, 
 
 248. 
 Of United States Marshal, see Election-, 
 
 165. 
 Release of Deputy Marshal on Habeas Coj- 
 
 pus, see Habeas Corpus^. 62. 
 Postmaster, see Postoffice, 'o. 
 Of Secretary of Internal Affairs, >ee Of- 
 ficers, 169. 
 Secretary of State, see Writ and Process,. 
 
 86. 
 Sheep Inspector, Negligence of, see Officers, 
 
 200. 
 Of Sheriff, see Bonds, 68, 69; Executors. 
 
 and Administrators, 110; Officer-;. -2~i, 
 
 28, 33, 71; Sheriff, 4, 5. 
 Unlawful Contract between Sheriff and 
 
 Deputy, see Contracts, 506. 
 
 Editorial Notes. 
 
 Right of woman to be. 38: 210. 
 In whose name to act. 19: 177. 
 When sheriff may act by. 3: 440.* 
 Infant as deputy sheriff. 13: 721.* 
 
 DERAILMENT. 
 
 Liability for Injuries to Passenger by, se 
 Carriers, 238. 
 
 Presumption and Burden of Proof ,in Case 
 of, see Evidence, 466, 467, 530. 
 
 Opinion Evidence as to Cause of, see Evi- 
 dence, 1269. 
 
 Proximate Cause of Injury by, see Proxi- 
 mate Cause, 86-89, lis. 
 
 DERELICT. 
 
 Editorial Notes. 
 Ownership of. 18: 695. 
 
 DERRICK. 
 
 Injury to Passenger by, see Carriers. 235 
 
 DESCENT AND DISTRIBUTION. 
 
 I. Right to Inherit. 
 
 a. Who Entitled Generally. 
 
 b. Effect of Alienage. 
 
 e. Effect of Illegitimacy or Slavery. 
 
 d. Effect of Adoption. 
 
 e. Rights of Husband and Wife. 
 
 II. Property Subject to Descent and Dis- 
 tribution. 
 
 III. Nature and Incidents of Estate. 
 
 IV. Editorial Notes. 
 
 Effect of Civil Death, see Civil Death. 3-5. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 I- .I- 
 
 From Insane Person. Duo Process as to, 
 see Constitutional Law. 782.
 
 DESCENT AND DISTRIBUTION, I. a. 
 
 1021 
 
 Right to Transmit, as Property, see Con- 
 stitutional Law, "81. 
 
 Mortgaged Land Descending ac Heal Es- 
 tate, see Equitable Conversion. 
 
 Interest on Claims of Distributees, see In- 
 terest, I. e. 
 
 'Conclusiveness of Deem; of Distribution, 
 see Judgment, 89. 
 
 Right of Distributees to Enforce Covenant 
 of Ancestor, see Parties, 27. 
 
 Right of Re-entry, see Real Property, 26. 
 
 Efl'ect of Release by Part of Children Re- 
 ceiving Advancement, see Release, 7. 
 
 Tax on Right to Take Property by, see 
 Taxes, V. 
 
 Effect of Parol Trust on, see Trusts, 46. 
 
 Time of Determining Heirs Who*. Take un- 
 der Will, see Wills, 201-207. * 
 
 In Case of Death bv Same Disaster, see 
 Wills, 253. 
 
 On Failure of Devise, see Wills, 443. 
 
 As to Distribution of Decedent's Estate 
 Generally, see Executors and Adminis- 
 trators, IV. c. 
 
 As to Devise or Bequest of Property, see 
 Wills, III. 
 
 t I. Right to Inherit, 
 a. Who Entitled Generally. 
 
 Constitutionality of Statute Changing, ~,ee 
 Constitutional Law, 634. 
 
 .Etiect of Change of Decision as to, see Con- 
 stitutional Law, 1183. 
 
 Distribution of Proceeds of Judgment in 
 Action for Wrongful Death, see Death, 
 1. 
 
 Presumption and Burden of Proof as to 
 Survivorship, see Evidence, II. e, 3. 
 
 Conclusiveness of Finding of Heirship, see 
 Judgment, 263. 
 
 Right of Trustee in Mortgage, see Mort- 
 gage, 151. 
 
 As to Escheat, see Escheat. 
 
 For Editorial Notes, see infra, IV. 1, 5, 
 
 1. A "relative" is a blood relation, and 
 not a relation by marriage only, within 
 Ihe meaning of Me. Rev. Stat. chap. 74, 
 10, giving the lineal descendants the share 
 *)f a relative of the testator, who is a dev- 
 isee, if he dies before the testator. El- 
 'iiot v. Fessenden, 83 Me. 197, 22 Atl. 115. 
 
 13- 37 
 
 la. The word "kindred," in a statute pro- 
 viding for the descent of property in the 
 .absence of kindred, means those who can 
 lawfully inherit, and does not include il- 
 legitimate blood relatives, unless they are 
 riven the right by statute to inherit. Croan 
 T. Phelps, 94 Ky. 213, 21 S. W. 874, 
 
 23: 753 
 
 Ib. The words "legal representatives/' to 
 whom it is provided that an estate shall 
 .descend at the death of one who creates a 
 trust for his own maintenance during life, 
 mean his descendants or heirs. Ewing v. 
 Jones, 130 Ind. 247, 29 N. E. 1057, 
 
 15: 75 
 
 2. The child of a cousin cannot take the 
 parent's share, under the Conneticut stat- 
 ute of distributions, where the parent dies 
 before the intestate. Campbell's Appeal, 
 64 Conn. 277, 29 Atl. 494, 24: 667 
 
 3. No part of the assets of a deceased 
 person will pass by representation to those 
 claiming through a predeceased child, where 
 by law such parent was the child's sole 
 heir. Gray v. Holmes, 57 Kan. 217, 45 Pac. 
 596, 33:207 
 
 4. The words "lunatic or non compos 
 mentis," in the act of April 1, 1885, which 
 provides that, if personal estate of which 
 a lunatic or non compos mentis dies seised 
 intestate was derived from such person's 
 intestate husband or wjfe, it shall go to 
 the next of kin of the person from whom it 
 was derived, mean one who has not sufficient 
 mental capacity to make a will. Dibrell v. 
 Lanier, 89 Tenn. 497, 15 S. W. 87, 
 
 12: 70 
 
 5. The common-law rule of descent, that 
 the male issue shall be admitted before 
 the female, applies in New York to give an 
 inheritance to the son of a granduncle of 
 the deceased, in preference to grandaunts 
 and their descendants. Hunt v. Kingston 
 (N. Y. C. P.) 3 Misc. 309, 23 N. Y. Supp. 
 352, 19:377 
 Rights of half blood. 
 
 For Editorial Notes, see infra, IV. 2. 
 
 6. In the distribution of the estate of an 
 intestate in Georgia, a first cousin of the 
 half blood on the maternal side will take 
 the estate in preference to a second cousin 
 of the whole blood. Ector v. Grant, 112 
 Ga. 557, 37 S. E. 984, 53: 723 
 
 7. Brothers and sisters of the half blood 
 are included in a s-tatuto'ry provision for 
 descent to brothers and sisters, unless a 
 contrary intention appears. Anderson v. 
 Bell, 140 Ind. 375, 39 N. E. 735, 29:541 
 
 8. Inheritance is not confined to brothers 
 and sisters of the half blood to the exclusion 
 of descendants of deceased ones, by a stat- 
 ute which excludes the half-blood kindred 
 from inheriting an estate which came to 
 the intestate by gift, devise, or descent from 
 an ancestor, unless they are of the blood of 
 such ancestor, if there are any of his blood. 
 
 Id. 
 
 Murderer of ancestor. 
 Escheat to State on Murder of Insured. 
 
 see Escheat, 2. 
 Effect of Murder on Right to Recover on 
 
 Life Insurance Policy, see Insurance, 
 
 1192, 1221, 1222, 1236, 1237. 
 For Editorial Notes, see infra, IV. 1. 
 
 9. The common-law right of a man to 
 succeed to the property of his wife, upon 
 her death, does not operate in favor of one 
 who murders his wife. Lanier v. Box, 112 
 Tenn. 393, 79 S. W. 1042, 64:458 
 
 10. A murderer cannot inherit property 
 from one he has murdered in order to obtain 
 it, and a bona fide purchaser from him will 
 acquire no title. Shellenberger v. Ran- 
 som, 31 Neb. 61, 47 X. W. 700, 10: 810 
 
 11. A murderer cannot take, either as heir 
 or legatee, the estate of one who he has
 
 1022 
 
 DESCENT AND DISTRIBUTION, 1. b. 
 
 murdered for the purpose of obtaining the ! 
 property. Riggs v. Palmer, 115 N. Y. 506, j 
 22 X. E. 188, 5: 340 j 
 
 12. A holding that the common-law 
 right of succession to property does not 
 operate in favor of one who wilfully takes 
 the life of his ancestor does not violate a 
 constitutional provision that conviction of 
 crime shall not work a forfeiture of estate. 
 Lanier v. Box, 112 Tenn. 393, 79 S. W. 
 1042, 64: 458 
 
 13. The murder of an intestate by one to 
 whom the property would descend under 
 the plain terms of the statute will not pre- 
 vent the murderer from taking the inheri- 
 tance. Shellenberger v. Ransom, 41 Xeb. 
 631, 59 N. W. 935, 25: 564 
 
 14. One killing his ancestor for an estate 
 which would naturally come to him under 
 the statutes of descent and distribution may 
 take it under a constitution prohibiting at- 
 tainders working corruption of blood and 
 forfeiture of estate, and statutes providing 
 no penalty for murder except death by 
 hanging. Carpenter's Appeal, 170 Pa. 203, 
 32 Atl. 637, 29: 145 
 
 b. Effect of Alienage. 
 
 Rights of Widow of Nonresident Alien, see 
 infra. 50. 
 
 Right of Widow where Kindred are Aliens, 
 see infra, 51. 
 
 Right to Sell Property and Withdraw Pro- 
 ceeds, see infra, 59. 
 
 Rights of Aliens Generally, see Aliens, III. 
 
 For Editorial Notes, see infra, IV. 3. 
 
 By aliens. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 
 152. 
 
 Effect of Treaty, see Treaties, 2. 
 Tax on Succession by Alien Heirs, see 
 
 Taxes, 629. 
 See also Wills, 203. 
 For Editorial Notes, see infra, IV. 3. , 
 
 15. Nonresident aliens may inherit from 
 an alien resident land situated in a state 
 whose statutes prohibit nonresident aliens 
 from acquiring title to land in the state, ex- 
 cept that the widow and heirs of aliens 
 who have acquired lands in the state may 
 hold such lands by devise or descent for a 
 period of ten years. Easton v. Huott, 95 
 Iowa, 473, 64 K W. 408, 31: 177 
 
 16. It seems that one who becomes a 
 domiciled resident of a foreign country be- 
 comes an alien within the operation of the 
 law which excludes aliens from inheritance. 
 Do Wolf v. Middleton. 18 R. I. 810. 31 Atl. 
 271, 31:146 
 
 17. The treaty between the United States 
 and the King of Bavaria removes the disa- 
 bility of subjects of Bavaria to inherit prop- 
 erty' in the United States, which is im- 
 posed by laws of the state where the prop- 
 erty is situated. Opel v. Shoup, 100 Towa. 
 407. 69 X. W. 560, 37: 583 
 
 18. The treaty between the United States 
 and the Herman Empire, made soon after 
 the formation of the latter, merely recog- 
 
 nizing existing treaties with the Germar.: 
 states, and providing that duties on succe- 
 sions to inheritances shall be only such as- 
 are requred of citizens, does not give alien* 
 any right to inherit land. Wunderle v. 
 Wunderle, 144 111. 40. 33 X. E. 195, 19: 84. 
 
 19. A statute which denies a widow any 
 right in land conveyed by her husband, if 
 she was not then and never had been a resi- 
 dent of the state, does not make any dis- 
 tinction "between citizens and aliens," with- 
 in the meaning of the Kansas Bill of 
 Rights, 17, as it stood prior to 1888. Buf- 
 fington v. Grosvenor, 46 Kan. 730, 27 Pac. 
 137, 13: 282: 
 
 20. Under the laws of Iowa the nonresi- 
 dent alien mother of an intestate cannot 
 inherit her property. Opel v. Shoup, 100 1 
 Iowa, 407, 69 N. W. 560, 37 : 583 
 
 21. Aliens who cannot lawfully inherit 
 real property cannot hold it by descent un- 
 til their title is assailed in a direct pro- 
 ceeding by the state, where there are re- 
 moter kindred who can lawfully inherit it. 
 Wunderle v. Wunderle, 144 111. 40, 33 X. E. 
 195, 19:84 
 Through aliens. 
 
 For Editorial Notes, see infra, IV. 3. 
 
 22. A statutory provision that an estate 
 shall descend in equal parts to next of kin 
 does not make the descent to collateral 
 kindred immediate so as to avoid the ef- 
 fect of alienage of ancestors through whom 
 kinship is traced. Beavan v. Went, 155 111. 
 592, 41 N. E. 91, 31: 8-3 
 
 23. The common-law rule that one citi- 
 zen cannot inherit from another where kin- 
 ship must be traced through a nonresident 
 alien cannot be rejected as repugnant or 
 inapplicable to our institutions or the con- 
 dition of things in this country, under a 
 statutory adoption of the general princi- 
 ples of the common law so far as applica- 
 ble. Id. 
 
 24. The common-law rule of the exclu- 
 sion from inheritance of all tracing their 
 descent through uninheritable blood was 
 never in force in Connecticut, and therefore 
 inheritance may be derived by collateral 
 relatives through alien ancestors. Camp- 
 bell s Appeal, 64 Conn. 277. 29 Atl. 494. 
 
 24: 667. 
 Sale by alien of inherited lands. 
 
 25. The alien heirs of citizens are not in- 
 cluded among the "heirs of aliens" to whom 
 111. act 1887 gives a certain time in which 
 to sell the lands of their ancestor or to 
 become residents of the state. Wunderle 
 v. Wunderle, 144 111. 40. 33 X. E. 195, 
 
 19: 84 
 
 26. Xonresident alien heirs who are citi- 
 zens of the Hanseatic Republic of Bremen 
 are entitled, under the treaty of Decem- 
 ber 20. 1827. art. 7. to sell lands in this 
 country which they would inherit except 
 for alienage, and to withdraw the proceeds 
 at any time within three years from the 
 death' of the ancestor. Schultze v. 
 Sehultzf. 144 111. 290. 33 X. E. 201, 19: 90
 
 DESCENT AND DISTRIBUTION, I. c, d. 
 
 1023 
 
 c. Effect of Illegitimacy or Slavery. 
 For Editorial Notes, see infra, IV. 4. 
 
 By illegitimate children. 
 
 Conflict of Laws as to, see Conflict of 
 
 Laws, 15 1-1 53, 307. 
 As to Legitimation of Child Generally, see 
 
 Parent and Child, II. 
 For Editorial Notes, see infra, IV. 4. 
 
 27. The general and notorious recogni- 
 tion of an illegitimate son by his father, 
 which will entitle him to inherit real and 
 personal property of his father in Iowa, 
 under Iowa Code 1873, 2466, may be suf- 
 ficient, although it took place in another 
 state where the parties resided 'a the time, 
 and in which the son might have no such 
 right to inherit. Van Horn v. Van Horn, 
 107 Iowa, 247, 77 N. W. 846, 45:93 
 
 28. The recognition of an illegitimate son 
 is general and notorious, within the mean- 
 inor of Iowa Code 1873, 246, when it ia 
 open and extensive, though not universal. 
 
 Id. 
 
 29. The general provision making jssue 
 of an illegal or void marriage legitimate, 
 found in Ky. Gen. Stat. 1888, p. 716, S 3, 
 is not limited by the provision in 4 as to 
 the good faith of the parties and notice of 
 the mistake. Leonard v. Bras well, 99 Ky. 
 528, 36 S. W. 684, 36: 707 
 
 30. The illegitimate child of a woman 
 who dies before her brother is capable of 
 inheriting her share of the brother's es- 
 tate, under a statute making bastards capa- 
 ble of inheriting, on the part of their moth- 
 er, in like manner as if they had been law- 
 fully begotten of her. Moore v. Moore, 169 
 Mo.' 432, 69 S. W. 278, 58: 451 
 
 31. The ancient law of England, which 
 received legislative affirmation by the stat- 
 ute of Merton (20 Henry III.), under which 
 only those were lawful heirs in the descent 
 of real estate who were born after the 
 actual marriage of their parents, is the law 
 in Florida, except where it has been modi- 
 fied by statute. Williams use of Wallace 
 v. Kimball, 35 Fla. 49, 16 So. 783, 26: 746 
 
 32. A statute which provides that "bas- 
 tards also shall be capable of inheriting or 
 of transmitting inheritance, on the part of 
 their mother, in like manner as if they had 
 been lawfully begotten of such mother," 
 only makes the bastard legitimate so far as 
 his mother is concerned, and not so far as 
 her kindred are concerned, and he cannot 
 take by inheritance from collateral kin- 
 dred upon his mother's side. Id. 
 From illegitimate children. 
 
 For Editorial Notes, see infra, IV. 4. 
 
 33. A statute providing that "bastards 
 shall be capable of inheriting and trans- 
 mitting an inheritance, on the part of or to 
 the mother" does not provide for the trans- 
 mission of the estate through the mother 
 to her collateral kindred. Croan v. Phelps. 
 94 Ky. 213. 21 S. W. 874. 23: 753 
 
 34. Property descended from the father 
 to an illegitimate child who has been 
 adopted, but not legitimated, will, like 
 other property of the child, descend on his 
 
 death intestate to his mother in preference 
 to the father's next of kin, under the gen- 
 eral provisions of Mill. & V. (Tenn.) Code, 
 3273, as to inheritance from an illegiti- 
 mate child by the mother. Murphv v. 
 Portrum, 95 Tenn. 605, 32 S. W. (>33, 30': 263 
 35. The next of kin of the father of an 
 illegitimate child that has been adopted 
 with capacity to inherit, but not legiti- 
 mated, have no inheritable blood as to such 
 child. Id. 
 
 From slaves. 
 
 36. Offspring of slave marriages which 
 had terminated before or had never been 
 rejcognized by the parties thereto after they 
 became free persons, have no inheritable 
 blood, and cannot inherit property acquired 
 by their ancestors after emancipation. Wil- 
 liams use of Wallace v. Kimball, 35 Fla. 
 49, 16 So. 783, 26: 746 
 
 d. Effect of Adoption. 
 
 Effect upon Right of Childless Wife to In- 
 herit from Husband, see infra, 49. 
 For Editorial Notes, see infra, IV. 1. 
 
 37. A grandchild whose father is dead, 
 and who has been adopted by his paternal 
 grandfather, under Mass. Pub. Stat. chap. 
 149, cannot, if his grandfather dies intes- 
 tate, inherit shares of his personalty in a 
 double capacity, as adopted son and as 
 representative of his deceased father, but 
 will take only one portion, and that as 
 adopted son. Delano v. Bruerton, 148 Mass. 
 619, 20 N. E. 308, 2: 698 
 By adopted children. 
 
 Conflict of Laws as to, see Conflict of 
 Laws, 151-153, 282, 283, 305, 306. 
 
 Implied Contract to Leave Property to 
 Adopted Child, see Contracts, 14. 
 
 Effect of Agreement to Leave Entire Prop- 
 erty to, see Contracts, 649. 
 
 As to Adoption of Child Generally, see 
 Parent and Child, III. 
 
 See also supra, 27, 28, 34, 35. 
 
 38. The statute of descents is modified by- 
 implication by a statute as to the adoption 
 of children, giving them the right to inherit 
 as lawful children. Fosburg v. Rogers. 1114 
 Mo. 122, 21 S. W. 82. 19: 201 
 
 39. A child adopted in accordance with 
 the Missouri statute, which provides for 
 adoption as "heir or devisee," and gives the 
 child "the same right . . . for support 
 and maintenance and for proper and hu- 
 mane treatment as a child has by law 
 against lawful parents," acquires a right to 
 inherit from the adoptive parents upon 
 their intestacy. Id. 
 
 40. A statute providing that an adopted 
 child shall become and be an heir at law 
 of the person adopting it does not make it 
 an heir by right of representation, in case 
 of the death of such person, of his or her 
 relatives. Van Derlyn v. Mack. 137 Mich. 
 146, 100 N. W. 278, 60: 437 
 
 41. A child by adoption cannot inherit 
 from the parent by adoption unless the act 
 of adoption has been done in strict accord- 
 ance with the statute. Funreson v. -lones. 
 17 Or. 204. 20 Pac. 842. 3: (V20
 
 1024 
 
 DESCENT AND DISTRIBUTION. I. e. II. 
 
 42. "Children" and "heirs" of a life ten- 
 ant, to whom the remainder is given by 
 Mo. Rev. Stat. 1855, p. 355, chap. 32, 5, 
 under a deed to a person and his "bodily 
 heirs," do not include an adopted child of 
 such life tenant, where there was no law 
 authorizing the adoption of children at the 
 time of the enactment of such statute, since 
 the life tenant cannot destroy the vested 
 right of the statutory heirs by an adoption. 
 Clarkson v. Hatton, 143 Mo. 47, 44 S. W. 
 761, 39: 748 
 
 43. An act giving an adopted child the 
 right to succeed as heir and next of kin to 
 property of the adopting father does not 
 make such child the heir or next of kin of 
 natural children of the adopting father or 
 their descendants. Helms v. Elliott, 89 
 Tenn. 446, 14 S. W. 930, 10: 535 
 Through adopted children. 
 
 44. The heirs of an adopted daughter will 
 inherit through her a share of the estate 
 of the deceased adopting parent, as if she 
 were a daughter of such parent by wed- 
 lock. Gray v. Holmes, 57 Kan. 217, 45 Pac. 
 596, 33:207 
 
 e. Rights of Husband and Wife. 
 
 Conflicts of Laws as to, see Conflict of 
 Laws, 308. 
 
 Husband's Estate by Curtesy, see Curtesy. 
 
 As to Dower Rights of Wife, see Dower. 
 
 Dower in Personal Property, see Dower, 8. 
 
 Widow's Right in Homestead, see Home- 
 stead, 65-70. 
 
 -Claim in Lieu of Homestead, see Home- 
 stead, 17. 
 
 Husband and Wife Taking by Entireties, 
 see Husband and Wife. 80. 
 
 -Conveyances in Fraud of Wife's Rights, see 
 Husband and Wife, II. j, 2. 
 
 Wife's Rights in Insurance on Husband's 
 Life, see Insurance. VI. d, 2, 6. 
 
 Liability of Survivor for Waste, see Life 
 Tenants, 1. 
 
 Hight of Survivor to Produce of Oil Wells, 
 see Life Tenants, 53. 
 
 See also supra, 9, 19; Wills, 198, 204. 
 
 45. A widow's release by an antenuptial 
 contract, of all her claims on the estate of 
 her husband, in consideration of a specified 
 sum. does not preclude her from being 
 deemed his widow, or entitle the descend- 
 ants of his deceased mother to take his 
 estate, under 111. Rev. Stat. chap. 39, 2, 
 providing that, when there is no widow or 
 children of the decedent, the estate shall 
 <ro to his mother and her children and their 
 descendants. Hudnall v. Ham, 183 111. 486. 
 56 X. E. 172, _ 48: 557 
 
 4G. A woman entitled to dower is there- 
 by excluded from any claim to a dis- 
 tributive share of such portions of her hus- 
 band's estate as to which he may have died 
 intestate. Beaty v. Richardson, 56 S. C. 
 173. 34 S. E. 73, 46: 517 
 
 47-48. The common-law right of a hus- 
 band to his wife's intestate personalty is 
 not taken away by statutes authorizing a 
 married woman to hold property as if un- 
 married and dispose of it at death. Ken- 
 yon v. Saunders, 18 R. I. 590, 30 Atl. 470. 
 
 26: 232 
 
 49. The words "children alive by a for- 
 mer wife" include a child adopted by a man 
 and such wife, as those words are used in 
 Ind. Rev. Stat. 1881, 829, which limit the 
 interest of a subsequent childless wife of 
 such man to a life estate. Markover v. 
 Krauss, 132 Ind. 294, 31 N. E. 1047, 17 : 806 
 
 50. A ''nonresident alien" whose widow. 
 under Iowa Code, 2442, "shall be entitled 
 to the same rights in the property of her 
 husband as a resident, except as against a 
 purchaser," means one who resides outside 
 the state. Re Gill's Estate, 79 Iowa, 296, 
 44 N. W. 553, 9: 126 
 
 51. Aliens incapable of inheriting are not 
 such "kindred" as can defeat the right of a 
 widow to take the whole of her husband's 
 lands by descent if there are no kindred. 
 Wunderle v. Wunderle, 144 111. 40, 33 N. 
 E. 195, 19: 84 
 Effect of divorce. 
 
 Right to Recover Amount Paid from Wife's 
 Administrator, see Divorce and Separa- 
 tion, 98. ' 
 
 Estoppel to Claim Widow's Share, see Es- 
 toppel, 283. 
 
 52. Upon the rendition of a decree of 
 divorce the relation of husband and wife 
 no longer exists between the parties to the 
 suit, notwithstanding a statute providing 
 that the decree shall not become absolute 
 until six months after its rendition; and, 
 if one of them should die within six months 
 following the date of the decree, the sur- 
 vivor can take no share of the property of 
 the deceased, under the statute of descents 
 and distributions, by virtue of the former 
 relationship. Durland v. Durland, 67 Kan. 
 734, 74 Pac. 274, 63: 959 
 
 53. A wife who deserts her husband and 
 for years lives in adultery with another 
 man, having a marriage ceremony with him 
 solemnized after learning that her deserted 
 husband has obtained a divorce, cannot, on 
 the death of her abandoned husband, claim 
 a widow's rights in his property on the 
 ground that the divorce decree was void 
 for want of proper service of process. 
 Arthur v. Israel. 15 Colo. 147. 25 Pac. 81. 
 
 10: 693 
 Effect of separation agreement. 
 
 54. A mutual agreement between hus- 
 band and wife to separate on friendly 
 terms, and to make no future demands upon 
 each other's property, carried out until the 
 wife's death, will not prevent the husband 
 from claiming his rights in her estate. 
 Foote v. Xickerson, 70 N. H. 496, 48 Atl. 
 1088, 54: 554 
 
 55. A husband separating from his wife 
 by agreement is not within the terms of a 
 statute depriving of his interest in his 
 wife's estate a man who willingly aban- 
 dons, absents himself from, or wilfully 
 neglects to support, his wife for a certain 
 time. Id. 
 
 TT. Property Subject to Descent and Dis- 
 tribution. 
 
 Right of Sepulcher in Particular Burial 
 Lot, see Cemeteries, 7.
 
 DESCENT AND DISTRIBUTION, III., IV. 
 
 1025 
 
 Vendor's Interest in Land Contract, see 
 Executors and Administrators, 103. 
 
 Partnership Real Estate, see Partnership, 
 85, 91, 92. 
 
 See also supra, 3; Insurance, VI. 2, 6. 
 
 For Editorial Notes, see infra, IV. 5. 
 
 56. Equitable estates are covered by the 
 same rule of descents that covers the 
 devolution of legal estates. Cornwell v. 
 Wulff, 148 Mo. 542, 50 S. W. 439, 45: 53 
 
 57. Under a trust to permit a married 
 -woman to occupy land and receive the icu's 
 and income, and to execute conveyances as 
 he directs, and protect the title or allow 
 the name of the trustee to be used for that 
 purpose, the estate vests in her heirs on 
 her death. * Id. 
 
 58. A vested remainder subject to a lifo 
 estate is subject to the law of descent in 
 case the remainder-man dies before the life 
 
 estate terminates. Saxton v. Webber, 83 
 Wis. 617, 53 N. W. 005. 20: 509 
 
 III. Nature and Incidents of Estate. 
 
 K-toppel as to, see Estoppel, 42-46, 172. 
 Administrator's Right to Reimbursement 
 
 from Distributees, .see Executors and 
 
 Administrators, 183-185. 
 For Editorial Notes, see infra, IV. 6. 
 
 59. The interest in lands vested in non- 
 resident alien heirs by tne grant of the 
 right during the term of three years to sell 
 the lands and withdraw the proceeds is a 
 fee determinable by the nonexercise of the 
 power of sale within the time specified. 
 Schultze v. Schultze, 144 111. 290, 33 N. E. 
 201, 19:90 
 
 80. Where a will contains no devise of 
 lands, but the testator has disposed of his 
 entire estate by means of a power to sell 
 and divide th'e proceeds of sale, the lands 
 descend to his heirs at law subject to the 
 power of sale and the trusts declared there- 
 on contained in the will. Morse v. Hacken- 
 sack Sav. Bank (N. J. Err. & App.) 47 N. 
 J. Eq. 279, 20 Atl. 961, 12: 62 
 
 61. The estate of an heir at law inter- 
 mediate the testator's death and the exer- 
 cise of a power of sale is an actual estate 
 which is alienable, devisable, and descend- 
 ible, and liable to seizure and sale of 
 lands; but. when the power of sale is 
 executed, the estate of the heir or his 
 alienee is determined, and the purchaser 
 under the power becomes seised under the 
 devisor by a title paramount to the title of 
 the heir by descent. Id. 
 
 62. The purpose of the statute of descents 
 and distributions is to provide for the 
 transmission of title at death in case of 
 intestacy, and to regulate the division of 
 -estates among heirs: it is not primarily an 
 exemption or homestead law: and, though 
 it may enlarge the right to an exemption 
 of real estate from appropriation to the 
 payment of debts, it cannot restrict the 
 constitutional guaranty. Cross v. Benson 
 8 Kan. 495. 75 Pac. 668, 64: 560 
 
 L.R.A. Dig. 65. 
 
 Proceedings to prove heirship. 
 
 63. The rights of a person under an al- 
 leged contract to leave him as heir the 
 property of the other party cannot be de- 
 termined in proceedings, under Mich. Pub. 
 Acts 1887, act No. '278, to determine who 
 are the legal heirs or legal representatives 
 of such person. Wright v. Wright. !i'.i 
 Mich. 170, 58 N. W. 54, 23: 196 
 Debts of decedent. 
 
 Liability for Breach of Covenant, see Cove- 
 nant, 83. 
 
 Remedy of Creditors, see Election of Reme- 
 dies, 15. 
 
 See also Executors and Administrators, 140. 
 
 For Editorial Notes, see infra, IV. 6, 7. 
 
 64. Creditors may, under Ky. Stat. 
 2087, 2089, follow the lands of a decedent 
 into the hands of heirs or transferees who 
 are not bona fide purchasers for value. 
 Kirtley v. Holmes, 46 C. C. A. 102, 107 
 Fed. 1, 52: 738 
 
 65. Land descended or devised may be 
 purchased in good faith and for value, free 
 from its conditional liability, under Mary- 
 land statutes, for debts of the decedent, 
 when the records of the orphans' court show 
 a final settlement of the personal estate 
 and full payment of all proved debts and 
 costs of administration, although the stat- 
 utes do not expressly make any saving of 
 the rights of bona fide purchasers, or fix any 
 time for terminating such liability. Van 
 Bibber v. Reese, 71 Md. 608, 18 Atl. 892, 
 
 6: 332 
 
 66. A judgment against an heir or de- 
 visee upon his individual , debt, and the 
 levy of an execution issued thereon upon 
 lands descended or devised prior to the 
 commencement of an action agains't him 
 upon a debt of his ancestor, the testator, 
 under the New Jersey act fixing the liabil- 
 ity of an heir or devisee for such debt, is 
 not an alienation of the property which 
 subjects him to a personal judgment for 
 the value of the lands. Muldoon v. Moore 
 (N. J. Sup.) 55 N. J. L. 410, 26 Atl. 892. 
 
 21: 89 
 
 IV. Editorial Notes. 
 
 i. Generally. 
 
 Law governing. 10: 766.* 
 
 Statute of Merton. 13:277.* 
 
 The word "heirs" construed and defined. 
 
 8:732,* 747;* 12:721;* 
 
 13:46.* 
 Within meaning of insurance policy. 
 
 30: 593. 
 
 "Heir apparent" defined. 5: 122.* 
 "Heir presumptive" defined. 5: 122.* 
 Who are "next of kin." 15: 300. 
 Distribution of estate per stirpes. 11: 306.* 
 To whom property held in trust passes on 
 
 death of trustee. 1:334.* 
 Disinheriting heir; heirs favored at law. 
 
 2: 848;* 11: 767.* 
 When title vests in state. 12:531.* 
 Descent to murderer. 5: 344.* 
 Inheritance by or from adopted child. 17: 
 
 435. 
 Law governing. 65: 186.
 
 DESCENT AND DISTRIBUTION, IV. (Ed. Notes.) 
 
 1026 
 
 Assessment of tax on property of dece- 
 dent's estate. 56: 634. 
 2. Among kindred of half blood. 
 The common-law doctrine. 29: 541. 
 In the United States. 29: 542. 
 Meaning of the words. 29: 542. 
 In general. 29: 542. 
 Ancestor. 29: 542. 
 Blood. 29:544. 
 
 Brothers and sisters. 29: 544. 
 No distinction between the whole and half 
 
 blood. 29:546. 
 
 In the case of ancestral estates. 29: 552. 
 When the statute not express. 29:561. 
 Cases wherein the whole blood is preferred. 
 
 29: 561. 
 
 When half blood preferred to remoter rela- 
 tive of the whole blood. 
 29: 564. 
 When half blood take half portions. 29: 
 
 565. 
 
 Shifting descents. 29:566. 
 Equitable conversion. 29: 567. 
 3. Inheritance by, through, or from alien. 
 Alien's right to inherit. 31: 177. 
 
 The common-law doctrine. 31: 177. 
 Upon what the right depends. 31: 179. 
 Power of the states to regulate. 31: 
 
 179. 
 
 In lands granted for military services 
 and colonization. 31:180. 
 Inheritance of patent lands. 31: 180. 
 Effect of annexation of territory or di- 
 vision of an empire. 31: 
 181. 
 
 The effect of naturalization. 31: 181. 
 Effect of marriage with an alien and 
 residing abroad. 31: 182. 
 Effect of state Constitutions and statutes 
 upon the question of in- 
 heritance by or from an 
 alien. 31 : 85. 
 
 United States statutes. 31:85. 
 State Constitutions and statutes and 
 their construction. 31: 85. 
 Decisions under the English statutes. 
 
 31: 106. 
 Effect of treaties upon an alien's right to 
 
 inherit. 32: 177. 
 General doctrine respecting treaties. 
 
 32: 177. 
 
 Great Britain. 32: 179. 
 France. 32: 183. 
 Bremen. 32: 185. 
 Germany. 32: 185. 
 Grand Duchy of Hesse. 32: 185. 
 Cuadalupe Hidalgo. 32: 186. 
 Hanover. 32: 186. 
 Hanseatic. 32: 186. 
 The Netherlands. :52: 180. 
 Spain. 32: 186. 
 Sweden. 32: 187. 
 Prussia. 32: 187. 
 Switzerland. 32: 187. 
 Wiirttemberg. 32: 189. 
 
 Effect of state statutes and Constitutions 
 upon inheritance through 
 an alien. 31: 146. 
 Tlio English doctrine. 31:140. 
 The effect of state legislation. 31: 147. 
 
 4. Inheritance by, through, or from ille- 
 gitimate. 
 
 On the part of the mother. 23: 753. 
 
 Marriages null. 23: 753. 
 
 Legalizing illegitimate by statute and 
 recognition. 23: 754. 
 
 Inheritance by illegitimate from his mother. 
 23 : 754. 
 
 Inheritance by illegitimate under will. 23: 
 754. 
 
 Inheritance by illegitimates from brothers 
 and .sisters. 23: 755. 
 
 Inheritance by illegitimates through mother 
 or father. 23: 756. 
 
 Inheritance by brothers and sisters of 
 mother or father of ille- 
 gitimate. 23: 756. 
 
 Inheritance by mother from an illegitimate 
 child. 23: 757. 
 
 Inheritance through illegitimate. 23: 757. 
 
 Inheritance by widow or husband of illegiti- 
 mate. 23: 757. 
 
 Inheritance by legitimate children from il- 
 legitimate children of the 
 same mother. 23: 758. 
 
 Illegitimates as next of kin. 15: 301. 
 
 Conflict of laws as to legitimacy of distrib- 
 utee. 65: 178.* 
 
 5. Rights and remedies respecting prop- 
 erty of estate. 
 
 Right of children, as against heirs, in dece- 
 dent's homestead. 56: 65. 
 
 Respective rights of surviving partner and 
 heirs of deceased partner. 
 7: 793.* 
 
 Rights of heirs in partnership real estate. 
 27 : 348. 
 
 Right to rents on lease of intestate's prop- 
 erty. 40: 321. 
 
 Right to have judgment against decedent 
 set aside. 54: 761. 
 
 Fixtures as between personal represen- 
 tatives and heirs. 10:725.* 
 
 Remedy of distributee as to accounting of 
 which he had no notice and 
 on which he did not ap- 
 pear. 63: 95. 
 
 6. Nature and incidents of interest of 
 heir or distributee. 
 
 Levy on interest of heir in ancestor's land. 
 23: 643. 
 
 Garnishment of distributive shares before 
 settlement. 59: 387. 
 
 Garnishment of husband's interest in wife's 
 legacy or distributive 
 share. 47 : 360. 
 
 Validity of sale of expectancy by a prospec- 
 tive heir. 33: 266. 
 
 Validity of transactions between heir and 
 ancestor relating to for- 
 mer's expectancy. 32: 595. 
 
 7. Liability of heirs for obligations of 
 ancestor. 
 
 Generally. 21:89. 
 
 Liability on covenant or specialty debt. 21: 
 90. 
 
 Remedy in equity. 21:91. 
 
 Conditions of suits against heirs. 21 : 92. 
 
 Pleading and proof. 21:92. 
 
 Parties." 21: 93. 
 
 Judgment. 21 : 94. 
 
 In Louisiana. 21 : 94.
 
 DESCRIPTION DEVISE. 
 
 1027 
 
 DESCRIPTION. 
 
 Of Property Mortgaged, see Chattel Mort- 
 gage, II. b; Mortgage, I. c. 
 
 Of Land, Sufficiency to Satisfy Statute of 
 Frauds, see Contracts, 205-209. 
 
 Of Parties in Deed, see Deeds, II. b. 
 
 Of Property in Deed, see Deeds, II. c. 
 
 Of Proposed Drain, see Drains and Sewers, 
 12. 
 
 Of Office in Ballot, see Elections, 115-119. 
 
 Of Property of Limited Partnership, see 
 Partnership, 148-152. 
 
 Of Parties in Pleading, see Pleading, II. c. 
 
 Warranty by, see Sale, II. b. 
 
 Of Property Taxed, see Taxes, 373-379. 
 
 Of Beneficiary in Will, see Wills, III. b. 
 
 Of Property Devised, Mistake in, see Wills 
 232-236. 
 
 DESERTION. 
 
 Penal Statute against Inducing Seamen to 
 
 Desert, see Commerce, 14, 15. 
 As Ground for Divorce, see Divorce and 
 
 Separation, III. b. 
 Right of Deserted Wife to Sue, see Husband 
 
 and Wife, 202-204. 
 Criminal Liability for Desertion of Wife, 
 
 see Husband and Wife, IV. 
 
 DESIGN. 
 
 As Trademark, see Trademark, 79, 80. 
 
 DE SON TORT. 
 
 Executors, see Executors and Adminis- 
 trators, 42. 
 
 DESTINATION. 
 
 Leaving Passenger at, see Carriers, II. a, 6. 
 
 DESTRUCTION. 
 
 Of Wooden Building, see Buildings, 19. 
 
 Of Property, Police Power as to, see Consti 
 
 tutional Law, 967-972. 
 Of Property Used in Gaming, see Gaming ; 
 
 2-6. 
 Of Property to Protect Health, see Health, 
 
 IV. 
 Of Intoxicating Liquors, see Intoxicating 
 
 Liquors, III. h. 
 Of Property as a Nuisance, see Nuisances, 
 
 136-142. 
 
 Of Record, see Records, 1, 2. 
 Liability for Rent after Destruction of 
 
 Property, see Landlord and Tenant, 
 
 201-209. 
 Revocation of Will by, see Wills, 62. 
 
 DETAINER. 
 
 Forcible Detainer, see Forcible Entry and 
 Detainer. 
 
 DETECTIVE. 
 
 Apparent Co-operation of, see Criminal Law, 
 
 62-67. 
 
 Guaranty of Salary of, see Guaranty, 19. 
 Indictment for Acting as, see Indictment, 
 
 etc., 53. 
 Injunction against Following Person, see 
 
 Injunction, 60. 
 Libelous Communication to, see Libel and 
 
 Slander, 123. 
 
 Nature of Office, see Officers, 2. 
 Title of Statute as to, see Statutes, 213. 
 Instruction as to Credibility of Evidence of, 
 
 see Trial, 717. 
 
 Mere holding one's self out as a private 
 detective does not of itself amount to an 
 offense, under a statute forbidding any per- 
 son to "act as a private detective." State 
 v. Bennett, 102 Mo. 356, 14 S. W. 865, 
 
 10: 717 
 
 DETERMINABLE FEE. 
 
 Conveyance of, see Deeds, 71. 
 
 Of Alien Heirs, see Descent and Distri- 
 bution, 59. 
 
 Termination of, by Execution of Power, see 
 Descent and Distribution, 61. 
 
 In Land for Jail, see Jails, 1. 
 
 Rights of Owner of, see Mines, 44. 
 
 Right of Owner to Partition, see Partition, 
 1. 
 
 As Creating Perpetuity, see Perpetuities, 16. 
 
 See also Real Property, I. a, 3. 
 
 Editorial Notes. 
 Nature and creation. 15: 231. 
 
 DETINUE. 
 
 See Replevin. 
 
 Editorial Notes. 
 
 Whether action to be brought against execu- 
 tor or administrator in 
 personal or representative 
 capacity. 51:266. 
 
 DEVASTAVIT. 
 
 What is, see Executors and Administrators, 
 
 76a. 
 
 Complaint in Action for, see Pleading, 426. 
 See also Waste. 
 
 DEVISE. 
 
 See Wills, III.
 
 1028 DEVISEES DIPLOMATIC AND CONSULAR OFFICERS. 
 
 DEVISEES. DIPLOMA. 
 
 As Parties to Action, see Parties, 145. 
 
 DIAMONDS. 
 
 Custom of Trade as to, see Custom, 26. 
 Proof of Custom as to, see Evidence, 1090. 
 
 DICTATION. 
 
 To Stenographer, as Publication of Libel, 
 see Libel and Slander, 161. 
 
 DIES. 
 
 Use of, see Engraver. 
 
 DIGESTS. 
 
 Use of Copyrighted Reports in Making, see 
 Copyright, 3. 
 
 Right of Compiler of, to Monopoly of Opin- 
 ions, Decisions and Syllabi by Courts, 
 see Copyright, 6, 7. 
 
 Infringement of. see Copyright, 25-29. 
 
 Burden of Proving Infringement of Copy- 
 right of, see Evidence, 364, 748, 749. 
 
 Injunction against Infringing Paragraphs 
 of, see Injunction, 430, 431. 
 
 DIKES. 
 
 As Internal Improvements, see Internal Im- 
 provements, 4. 
 
 DILIGENCE. 
 
 Question for Jury a,s to, see Trial, II. c, 3. 
 
 DIMENSION STONE. 
 
 Wliat are, see Contracts, 357. 
 
 DIOCESE. 
 
 Gift to, see Charities. 84. 8">a. 
 
 DIP. 
 
 Right to Follow, see Mines. 24-20. 
 
 Trustees Signing in Blank, see Colleges, 9. 
 Right of Holder of, to License as Physician, 
 see Physicians and Surgeons, 7. 
 
 DIPLOMATIC AND CONSULAR OF- 
 FICERS. 
 
 Jurisdiction over, see Courts, 446. 
 
 The jurisdiction of the consul of Sweden 
 and Norway at Boston over a claim for 
 wages by one of the crew of a Norwegian 
 vessel, who has left the ship at that port, is 
 exclusive of any jurisdiction in the first 
 instance of the courts of the state under 
 article 13 of the treaty of 1827 between the 
 United States and Sweden and Norway, 
 making the consuls judges and arbitrators 
 "in such differences as may arise between 
 the captains and crews of the vessels be- 
 longing to the nation whose interests are 
 committed to their charge, without the 
 interference of the local authorities, unless 
 the conduct of the crews or of the captains 
 should disturb the order or tranquillity of 
 the country." Telefsen v. Fee, 168 Mass. 
 188, 46 N. E. 562, 45: 481 
 
 Editorial Notes. 
 
 i. Generally. 
 
 Injunction against proceedings before. 
 
 21: 75. 
 
 2. Jurisdiction and powers. 
 Jurisdiction in criminal cases. 45: 481. 
 Generally. 45: 481. 
 In non-Christian countries. 45: 484. 
 Power to send criminals to home coun- 
 try for trial. 45: 485. 
 In case of deserting seamen. 45: 486. 
 Jurisdiction in civil cases. 45: 486. 
 In China and Japan. 45: 486. 
 In other non-Christian countries. 45: 
 
 487. 
 As to controversies between seamen and 
 
 masters of foreign vessels. 
 
 45: 488. 
 As to discharge of seamen abroad. 
 
 45: 493. 
 
 As to disabled vessels. 45: 495. 
 In prize cases. 45: 495. 
 In suits between French citizens. 
 
 45: 495. 
 
 Powers of consul in other matters. 45: 496. 
 To assert claims for his citizens and 
 
 country. 45: 496. 
 
 To administer on estates. 45: 496. 
 To exercise diplomatic functions. 
 
 45: 497. 
 To perform marriage ceremony. 45: 
 
 497. 
 
 To grant certificates. 45: 497. 
 To take depositions and affidavits. 45: 
 
 499. 
 To take acknowledgments of deed and 
 
 powers of attorney. 45: 
 
 499. 
 
 To retain ship's papers. 45: 500. 
 To license illegal acts. 45: 500.
 
 DIPSOMANIAC DISCLAIMER. 
 
 1029 
 
 To contract. 45: 500. 
 To serve process. 45: 500. 
 3. Exemptions and privileges. 
 Generally. 45: 579. 
 
 Jurisdiction of civil actions against con- 
 suls. 45: 580. 
 Supreme Court of the United States. 
 
 45: 580. 
 Circuit courts of the United States. 
 
 45: 581. 
 
 United States district courts. 45: 581. 
 State courts. 45: 582. 
 English courts. 45: 584. 
 Jurisdiction of criminal actions against 
 
 consuls. 45: 584. 
 Exemption from obligation to appear as a 
 
 witness. 45: 588. 
 
 Exemption from taxation. 45: 587. 
 Exemption from military and jury duties. 
 
 45: 587. 
 
 Domicil. 45: 587. 
 Trading with an enemy. 45: 588. 
 Exemption from liability for judicial and 
 other acts. 45: 588. 
 
 DIPSOMANIAC. 
 
 Liability for False Imprisonment of, see 
 Physicians and Surgeons, 54. 
 
 DIRECT. 
 
 Meaning of Term, see Insurance, 303a. 
 
 DIRECTION OF VERDICT. 
 
 Conclusiveness of Judgment on, see Judg- 
 
 ment, 104. 
 
 Sufficiency of Exception to, see Trial, 64. 
 In General, see Trial, II. d, 3. 
 
 DIRECTORS. 
 
 Joining Causes of Action against, see 
 
 Action or Suit, 95. 
 Of Association, see Associations. 26. 
 Of Bank, see Banks. 52, 56-66, 382, 383. 
 Vested Right of Stockholders to Elect, see 
 
 Constitutional Law, 138. 
 Power to Change Terms of, see Corporations, 
 
 72. 
 Of Corporation Generally, see Corporations, 
 
 IV. s. 
 
 DIRECTORY PROVISIONS. 
 
 Of Statute, see Statutes, 485-493. 
 
 DISABILITIES. 
 Of Married Woman, see Husband and Wife, 
 
 I. b. 
 
 Of Infants, see Infants, I. d. 
 Effect of, on Running of Limitations, see 
 Limitation of Actions, II. 1. 
 
 DISABLED SOLDIERS. 
 
 National Home for, see Charitable Institu- 
 tions, 2. 
 
 DISAFFIRMANCE. 
 Of Infant's Contract, see Infants, I. d, 2, 6. 
 
 DISBARMENT. 
 
 Of Attorney, see Attorneys, I. b. 
 Editorial Notes. 
 
 Necessity of bad or fraudulent motive to 
 justify disbarment of at- 
 torney. 18: 401. 
 
 DISBURSEMENTS. 
 
 Reimbursing Personal Representative for, 
 see Executors and Administrators, IV. 
 c, 2. 
 
 DISCHARGE. 
 
 In Bankruptcy, see Bankruptcy, IV. 
 
 Of Indorser, see Bills and Notes, III. c. 
 
 Of Mortgage, see Chattel Mortgage, V.; 
 Mortgage, V. 
 
 Of Insolvent Corporation, see Corporations, 
 760, 770. 
 
 Of Jury, as Former Jeopardy, see Criminal 
 Law, 153-158. 
 
 Of Personal Representative, see Executors 
 and Administrators, IV. c. 
 
 Of Grand Jury, see Grand Jury, 17, 18. 
 
 Of Guarantor, see Guaranty, II. 
 
 On Habeas Corpus, see Habeas Corpus, I. c. 
 
 From Insane Asylum, see Incompetent Per- 
 sons. 30. 
 
 Of Insolvent, see Insolvency, V. 
 
 Of One Tort Feasor by Release of Other, see 
 Joint Creditors and Debtors, II. 
 
 Of Judgment, see Judgment, V. 
 
 Of Employee, see Master and Servant, I. e. 
 
 Of Lien, see Mechanics' Liens, 124. 
 
 Of Surety, see Principal and Surety, I. b. 
 
 Of Trust, see Trusts, 103. 
 
 DISCLAIMER. 
 
 Objection to, see Pleading, 58. 
 Conclusiveness of. see Pleading, 461. 
 By Trustee, see Trusts, 116.
 
 1030 
 
 DISCLOSURE DISCOVERY AND INSPECTION, I. 
 DISCLOSURE. I. In General. 
 
 As Violation of Provisions as to Due Pro- 
 cess, see Constitutional Law, 824, 825, 
 
 Contempt in Refusal to Make, see Con- 
 tempt, 41. 
 
 DISCONTINUANCE. 
 
 Of Action, see Dismissal or Discontinu 
 
 ance. 
 
 Of Highway, see Highways, V. a. 
 Of Park, see Parks and Squares, 6-10. 
 
 DISCOUNT. 
 
 By Bank, see Banks, 277-285; VIII. 17, 
 Effect of Stipulation for. on Negotiability 
 
 of Note, see Bills and Notes. 93. 
 Acquiring Negotiable Paper at Illegal Dis 
 
 count, see Bills and Notes. 182. 
 On Dues Paid in Advance, see Building and 
 
 Loan Associations. 8. 
 Of County Warrant, see Counties. 56. 
 Usurv in. see Usury, 33-37. 42. 43, 50. 
 
 Takiiu 
 
 Editorial Notes, 
 interest in advance. 29: 761. 
 
 DISCOUNT COMMITTEE. 
 
 Imputing Knowledge of, to Bank, see Notice, 
 6fl, 70. 
 
 DISCOVERY AND INSPECTION. 
 
 T. In General. 
 II. Physical Examination. 
 
 III. Submitting Person to X-Rays. 
 
 IV. Editorial Notes. 
 
 Compelling Attorneys to Make Discovery, 
 see Attorneys. 86. 
 
 Requiring One Convicted of Drunkenness to 
 Disclose Source of Liquor, see Consti- 
 tutional Law. 825. 
 
 Refusal to Disclose Source of Intoxicating 
 Liquors as Contempt, see Contempt. 41. 
 
 Disobedience of Order for, as Contempt, see 
 Contempt, 38. 
 
 Right of Corporation to Refuse to Make, 
 see Corporations, 04. 
 
 Jurisdiction of Action to Compel, see Courts. 
 SO. 
 
 Answers to Interrogatories as Evidence, see 
 Evidence. 885. 893. 
 
 Of Mining Claim, see Mines. 2-6. 
 
 As to Interrogatory in Pleading, sec Plead- 
 ing. 4P>0. 
 
 F>ill for. by Receiver, see Receivers, 119. 
 
 As to Depositions, see Depositions. 
 
 1. Bills of discovery were not abolished 
 by the statutes empowering the Federal 
 courts, in actions at law, to require the par- 
 ties to produce books and writings, and 
 making parties to suits at law competent 
 witnesses therein. Brown v. McDonald, 67 
 C. C. A. 59, 133 Fed. 897, 68: 462 
 
 2. Bills of discovery are not authorized 
 under the Texas practice, in which law and 
 equity are blended into one system, and in 
 which statutory provisions have been made 
 for the discovery of evidence by simple in- 
 terrogatories in a pending suit, and for dep- 
 ositions of the adverse party. Cargill v. 
 Kountze Bros. 86 Tex. 386, 25 S. W. 13, 
 
 24: 183 
 
 3. A claim of exemption from discovery 
 on the ground that it would fix a penal lia- 
 bility upon the party cannot be sustained 
 where a prosecution for the penalty is al- 
 ready barred by the statute of limitations. 
 Manchester & L. R. Co. v. Concord R. Co. 
 66 N. II. 100, 20 Atl. 383, 9: 689 
 
 4. That an action at law seeks damages 
 for a personal tort will not defeat a bill 
 for discovery in aid of it, if it does not in- 
 volve moral turpitude or immoral conduct 
 on the part of defendant. Reynolds v. 
 Burgess Sulphite Fibre Co. 71 N. H. 332. 51 
 Atl. 1075, 57: 949 
 
 5. A suit to reach choses in action of the 
 debtor in satisfaction of a judgment is not 
 authorized by a statute providing for a bill 
 of discovery in case an execution is re- 
 turned unsatisfied, and empowering the 
 court to compel satisfaction of the judg- 
 ment out of any property discovered. Hall 
 v. Henderson, 134 Ala. 455. 32 So. 840, 
 
 63: 673 
 
 Production of documents. 
 Admissibility of Documents Produced on 
 
 Notice, see "Evidence, IV. s. 
 Inquiry into Power to Compel, see Habeas 
 
 Corpus, 32. 
 
 6. An order for the production of docu- 
 ments may be had under R. I. Pub. Stat. 
 cha-p. 214, 45. where the case would en- 
 title the plaintiff to relief under the ancient 
 bill of discovery. Arnold v. Pawtuxet Val- 
 ley Water Co. *18 R. I. 189. 26 Atl. 55, 
 
 19: 602 
 
 7. It is not necessary to show that the 
 plaintiff will be unable to prove his case 
 without the evidence sought by an order 
 for the production of documents, in order 
 to give him a right thereto, if he shows 
 that he is justly entitled thereto by way of 
 evidence in the preparation and trial of his 
 ca se. Id. 
 
 8. Tt need not be shown that it is abso- 
 lutely necessary for plaintiff to have access 
 to a book in order to prepare his case for 
 trial, in order to obtain the production of 
 the some to aid him in furnishing a bill of 
 particulars. Id. 
 
 0. An order to compel a witness to pro- 
 duce books and papers was unauthorized 
 when there was no showing by affidavit or 
 otherwise that they contained any evidence 
 material to the cause, while the onlv evi-
 
 DISCOVERY AND INSPECTION, II. 
 
 1031 
 
 dence on the point showed that they did 
 not contain such evidence, although counsel 
 demanding them said that he expected to 
 prove bv them certain material or pertinent 
 facts. *Ex parte Clarke, 126 Cal. 235, 58 
 Pac. 546, 46: 835 
 
 10. A creditor of a corporation which has 
 assumed the payment of the obligations, 
 created before its incorporation, is entitled 
 to the production of its record book in or- 
 der to furnish a bill of particulars of his 
 claim for services both prior to and after 
 the incorporation. Arnold v. Pawtuxet Val- 
 ley Water Co. 18 R. I. 189, 26 Atl. 55, 
 
 19: 602 
 
 11. A party may be entitled to the pro- 
 duction of a document in order to prepare 
 for trial, as well as to aid him on* the trial. 
 
 Id. 
 
 12. The record book of a corporation con- 
 taining its proceedings before and after in- 
 corporation is a "document" within the 
 meaning of a statute as to producing docu- 
 ment?.. W. 
 Production of broken machinery. 
 
 13. A bill of discovery will lie to com- 
 pel an employer to produce, for the inspec- 
 tion of plaintiff, the broken parts of ma- 
 chinery, defects in which are alleged to 
 have caused a death, to recover damages 
 for which an action has been instituted at 
 law which cannot be satisfactorily prepared 
 for trial without such inspection. Reynolds 
 v. Burgess Sulphite Fibre Co. 71 N. H. 332. 
 51 Atl. 1075, 57 : 949 
 
 14. The production of broken machinery 
 may be compelled for examination by per- 
 sons intending to testify as experts in an 
 action at law for personal injuries caused 
 by its breaking. Id. 
 
 15. Jurisdiction to grant discovery of 
 broken machinery in aid of an action for 
 injuries caused by its breaking is not ousted 
 by statutes removing the disability of par- 
 ties as witnesses, authorizing the taking of 
 depositions before trial, or giving the court 
 authority to order a view at the trial. Id. 
 Examination of horse. 
 
 16. An order of court that a veterinary 
 surgeon may be sent on the premises of a 
 party against his will to examine a horse 
 whose condition is in dispute, provided the 
 owner or any person he may select shall 
 accompany such surgeon, is in excess of 
 the power of the court. Martin v. Elliott. 
 106 Mich. 130, 63 N. W. 998, 31: 169 
 
 II. Physical Examination. 
 
 Prejudicial Error as to, see Appeal and Er 
 ' ror. 897. 935-937. 
 
 Due Process in Compulsory Physical Exam- 
 ination of Accused, see Constitutional 
 Law. 824. 
 
 Exhibition of Person to Jury, see Evidence 
 1040-1044. 
 
 Exhibition of Urine to Jury, see Evidence 
 1030. 
 
 Evidence of Refusal to Submit to, see Evi 
 dence, 1913-1915. 
 
 Physician Acting as Independent Contractor 
 in Making, see Master and Servant, 
 712. 
 
 Instruction as to Effect of Refusal to Con- 
 sent to, see Trial, 743. 
 
 For Editorial Notes, see infra, IV, 
 
 17. An order for the physical examina- 
 tion of the plaintiff in an action for person- 
 al injuries, under N. Y. Laws 1893, chap. 
 721, amending N. Y. Code Civ. Proc. 873, 
 can be made only in connection with, or as 
 a part of, an order for the examination of 
 the party before trial and in conformity 
 to the general provisions for such examina- 
 tions; and the physical examination by 
 surgeons cannot be authorized as an inde- 
 pendent proceeding. Lyon v. Manhattan 
 R. Co. 142 N. Y. 298, 37 X. E. 113, 25: 402 
 Power to order generally. 
 
 See also infra, 32. 
 
 18. Judicial power to compel a plaintiff 
 to submit to a physical examination does 
 not exist at common law. May v. Northern 
 P. R. Co. 32 Mont. 522, 81 Pac.' 328, 70: 111 
 
 19. At common law, courts have no au- 
 thority to order an examination of the per- 
 son of one alleged to have been injured by 
 the negligence of another for the purpose of 
 ascertaining the extent of the injuries. 
 Austin & N. W. R. Co. v. Cluck, 97 Tex: 
 172, 77 S. W. 403, 64: 494 
 
 20. A court has no power to compel a 
 plaintiff to submit to a physical examination 
 by a physician, in the absence of any stat- 
 utory authority. Stack v. New York. N. H. 
 & H. R. Co. 177 Mass. 155, 58 N. E. 686. 
 
 52 : 328 
 
 21. A physical examination before trial, 
 of a party to a civil action, cannot be com- 
 pelled by a court in the absence of a stat- 
 utory enactment. McQuigan v. Delaware, 
 L. & W. R. Co. 129 N. Y. 50, 29 N. E. 235. 
 
 14: 466 
 
 22. The court cannot, in the absence of 
 express legislative authority, direct the 
 plaintiff in an action to recover for person- 
 al injuries to submit to an examination of 
 his person, under a constitutional provision 
 that the people shall be secure in their per- 
 sons from all unreasonable seizures and 
 searches. Austin & N. W. R. Co. v. Cluck, 
 97 Tex. 172, 77 S. W. 403. 64: 494 
 
 23. Trial courts have power to order the 
 surgical examination, by experts, of the 
 person of a plaintiff' seeking to recover for 
 personal injuries. Alabama G. S. R. Co. 
 v. Hill, 90 Ala. 71, 8 So. 90, 9: 442 
 
 24. An order for the examination of a 
 woman by medical experts appointed by the 
 court may be made in an action to recover 
 damages for personal injuries. Lane v. 
 Spokane Falls & N. R. Co. 21 Wash. 119. 
 57 Pac. 367, 46: 153 
 
 25. It is within the discretion of the trial 
 court to require the plaintiff suing for a 
 physical injury alleged to be permanent to 
 submit to examination by competent physi- 
 cians at the instance and at the expense of 
 the defendant in the action, to ascertain 
 the nature, extent, and probable duration of 
 the injury, so as to afford means of proving
 
 103-3 
 
 DISCOVERY AND INSPECTION, III DISCREDITING. 
 
 the same at the trial. By Ga. Code, 206, 
 every court has the power to control, in the 
 furtherance of justice, the conduct of all 
 persons connected with a judicial proceed- 
 ing before it, in every matter appertaining 
 thereto. Richmond & D. R. Co. v. Childress, 
 82 Ga. 719, 9 S. E. 602. 3r808 
 
 26. In an action for damages for a negli- 
 gent injury to the eyes, claimed to be per- 
 manent, a timely request for an expert phys- 
 ical examination of the injured organs in 
 the usual and ordinary manner should be 
 granted, although involving the use of drugs 
 for dilating the pupils of the eyes; sub- 
 ject, however, to the limitation that the ex- 
 amination do not produce serious discomfort 
 or any deleterious consequence. Atchison, 
 T. & S. F. R. Co. v. Palmore, 68 Kan. 545, 
 75 Pac. 509, 64: 90 
 
 27. A personal examination by physicians 
 or matrons skilled in such matters may be 
 ordered of a woman suing for divorce on the 
 ground of malformation or abnormal physi- 
 cal proportions amounting to physical in- 
 capacity; and a similar examination of de- 
 fendant may be ordered if he contests her 
 right to relief. Anonymous, 89 Ala. 291. 7 
 So. 100. 7: 425 
 Grounds for refusing. 
 
 28. A motion for the surgical examination 
 by experts, of plaintiff suing for personal 
 injuries, should not be denied merely be- 
 cause she is a young woman of a nervous 
 temperament and of delicate and refined 
 feelings, where it appears that such ex- 
 amination would not involve any ill conse- 
 quences to her. and that she has several 
 times submitted to be so examined by her 
 attending physician, without any ill results. 
 Alabama G. S. R. Co. v. Hill, 90 Ala, 71. 8 
 So. 90. 9: 442 
 
 20. An examination by instruments to de- 
 termine the condition of plaintiff's bladder, 
 in an action for injury thereto, cannot be 
 ordered without abusing the discretion of 
 the court, where the purpose of it is to 
 empty the bladder, and the evidence of 
 plaintiffs physicians is that the examina- 
 tion would not be prudent, and that of de- 
 fendant's physicians is that it would be 
 safe if the bladder was healthy, but would 
 be absolutely dangerous in some conditions. 
 O'Brien v. La Crosse, 99 Wis. 421. 75 X. W. 
 81. 40: 831 
 
 30. Tt is not sufficient ground for denying 
 a motion for a physical examination of 
 plaintiff in an action for personal injuries, 
 that her attending physician had made the 
 examination and had fully deposed to the 
 injuries complained of. where conclusions 
 and opinions as testified to by him do not 
 meet the approval of other reputable phy- 
 sicians examined as to their conclusions 
 from the facts stated by him. Alabama G. 
 S. R. Co. v. Hill, 90 Ala'. 71. 8 So. 90. 9: 442 
 
 31. Refusing an order for a private exami- 
 nation, by defendant's experts, of plaintiff 
 in an action for physical injuries, is not er- 
 ror when application is not made until after 
 the close of his evidence, and no reason is 
 shown for the delay. especially where 
 plaintiff offers to submit to examination be- 
 
 fore the jury or in the presence of his own 
 experts. Hess v. Lowrey. 122 Ind. 225, 2* 
 N. E. 156, 7: 90 
 
 Penalty for disobeying order for. 
 
 32. A physical examination of a plaintiff 
 in a civil action for personal injuries may 
 be ordered by the court in a proper case, 
 upon proper safeguards to protect the rights 
 of both parties, under a penalty of the dis- 
 missal of the action for plaintiff's refusal 
 to submit. Wanek v. Winona, 78 Minn. 98, 
 80 N. W. 851, 46: 448- 
 
 33. An action by a father for the loss of 
 the services of his minor daughter, occa- 
 sioned by personal injuries, should not be 
 dismissed because she, after reaching her 
 majority, refused to obey an order of the 
 court in which the action was pending, re- 
 quiring her to submit to a physical examina- 
 tion of her person by a physician. Bagwell 
 v. Atlanta Consol. Street R. Co. 109 Ga. 611, 
 34 S. E. 1018, 47: 486 
 
 III. Submitting Person to X-Rays. 
 
 34. A party ought not to be required to 
 submit his person to the X-rays until it 
 is so well established as a fact in science 
 that the process is harmless that the coiirts 
 will take judicial notice of it. Wittenberg 
 v. Onsgard, 78 Minn. 342. 81 N. W. 14. 
 
 47: 141 
 
 35. An application to require a plaintiff 
 to submit his neck to be photographed by 
 the use of the Roentgen or X-ray, in order 
 to ascertain the nature of his injuries for 
 which he sues, is properly refused if the 
 application is not seasonably made, and if 
 it does not sufficiently appear that the per- 
 son by whom it is proposed that the photo- 
 graph be taken has the requisite skill and 
 experience properly to apply the rays. Id. 
 
 IV. Editorial Xotes. 
 
 As affected by constitutional provision 
 against self-crimination. 
 29: 811. 
 
 Essentials to bill for. 2:223.* 
 
 By phvsical examination of plaintiff. 14: 
 466. 
 
 Physical examination to prove personal in- 
 juries. 3: 808.* 
 
 Order to enter premises for examination. 
 31: 169. 
 
 RigM to discovery by bill where the stat- 
 \ites provide for the exam- 
 ination of the partv be- 
 fore trial. 24: 183. 
 
 Practice in the United States Supreme 
 Court, and the circuit 
 courts. 24: 189. 
 Under the English practice. 24: 191. 
 
 Injunction on bill of. to aid defense. 32: 
 325. 
 
 DISCREDITING. 
 
 Of Witness, see Witnesses. III.
 
 DISCRETION DISMISSAL OK DISCONTINUANCE. 
 
 1033 
 
 DISCRETION. 
 
 Review of, on Appeal, see Appeal and Er 
 ror, VII., i. 
 
 In Admitting to Bail, see Bail and Recogni- 
 zance, 2, 3. 
 
 As to Granting of Liquor License, see In- 
 toxicating Liquors, II. b. 
 
 DISCRIMINATION. 
 
 By Carrier, see Carriers, II. a, 10, d; III. 
 
 b, c; Indictment, etc., 48, 119-126. 
 Against Colored Persons, see Civil Rights. 
 Unconstitutionality of, see Constitutional 
 
 Law, II. a. 
 Between Nominees of Different Parties, see 
 
 Elections, 171. 
 
 By Board of Trade, see Exchanges, 3-5. 
 By Gas Company, see Gas, 11. 15-18. 
 In License Tax, see License, II. d. 
 In Taxes Generally, see Taxes. I. c. 
 In Succession Tax, see Taxes, V. b. 
 Between Newspapers, see Newspapers, 4, 5. 
 In Rates Charged by Telegraph Company, 
 
 see Telegraphs, 12-14. 
 By Telephone Company, see Telephones, 6, 
 
 8. 0, 17, 18. 
 
 By Water Company, see Waters. 536. 
 Between Vessels in Use of Wharf, see 
 
 Wharves, 5. 
 
 DISEASE. 
 
 As Excuse for Breach of Promise, see Breach 
 of Promise, 8-11. 
 
 Ejection of Diseased Passenger, see Carriers, 
 357-360. 
 
 As Afl'ecting Damages, see Damages, 311- 
 317. 
 
 As Affecting Question of Cause of Death, 
 see Death, 49. 
 
 Judicial Notice as to, see Evidence, 112. 
 
 Opinion Evidence as to Effect of, see Evi- 
 dence, 1303, 1304. 
 
 Protection against, see Health. 
 
 Death of Insured from, see Insurance, IV. b, 
 2, 3. 
 
 What is, see Insurance, 548-552. 
 
 Municipal Liability for Causing, see Munici- 
 pal Corporations, 522, 523. 
 
 See also Contagious Diseases. 
 
 Editorial Notes. 
 
 Distinguished from accident. 30: 209. 
 
 Liability for communicating. 19: 725. 
 
 Effect of previous disease of person injured 
 on liability for causing in- 
 juries. 16: 268. 
 
 Of animals; statutes as to. 26: 638. 
 
 DISFIGUREMENT. 
 
 As Element of Damages, see Damages, 357, 
 365. 
 
 DISFRANCHISEMENT. 
 
 Failure to Assess as Part of I'unishmi-iit. 
 
 Right to Complain of, see Appeal and 
 
 KiTor, 477. 
 
 As Bill of Attainder, see Attainder, 2. 
 As Ex Post Facto Law, see Constitutional 
 
 I aw, 113. 
 For Bribery, see Elections, 274. 
 
 DISGRACE. 
 
 As Ground for Breach of Contract, see Con- 
 tracts, 659. 
 
 DISHONOR. 
 
 Of Checiv oy Bank, see Banks, 118-128. 
 Damages for Dishonor of Check, see Dam- 
 ages, III. a, 6. 
 
 DISINFECTION. 
 
 Health Regulations as to, see Health, 15-18. 
 Negligence in Dipping Sheep for, see Offi- 
 cers, 200. 
 
 DISINHERITANCE. 
 
 Of Children or Heirs, see Wills, III. c. 
 Editorial Notes. 
 
 Disinheriting heir; heirs favored at law. 
 2:848;* 11:767.* 
 
 DISINTERMENT. 
 Of Corpse, see Corpse, 2-5. 
 
 DISMISSAL OR DISCONTINUANCE. 
 
 Of Appeal, see Appeal and Error, VI.; -Jus- 
 
 tice of the Peace, 28, 29. 
 Of Subsequent Suit in Other Court, see 
 
 Courts, 394. 
 Of Criminal Proceeding, see Criminal Law, 
 
 84, 85. 
 Of Indictment. Motion for. see Criminal 
 
 Law, 136, 137. 
 Of Injunction Suit, see Injunction, 493. 404. 
 Of Pleading, see Pleading, I. t. 
 Of Cause Removed to Federal Court, see 
 
 Removal of Causes, 43-47. 
 Of School Teacher, see Schools, II. c. 
 Effect of, on Abatement of Subsequent Suit. 
 
 see Abatement and Revival. 40. 41. 
 From Law School, see Colleges, 7. 
 Costs on, see Costs and Fees, 5, 6. 
 Effect of Opinion on Order of, see Judgment, 
 
 95, 96.
 
 1034 
 
 DISMISSAL OK DISCONTINUANCE 
 
 Conclusiveness of Judgment of, see Judg- 
 ment, 105-109. 
 
 As Extending Time for Bringing Action, see 
 Limitation of Actions, 245-247. 
 
 Effect on Plea of Abatement, see Pleading, 
 60. 
 
 After Final Decree in Will Contest, see 
 Wills, 134. 
 
 1. A libel for divorce which has been dis- 
 missed from the docket after a decree nisi 
 is a pending action within the meaning of a 
 statute which exempts pending actions from 
 its provisions. Darrow v. Darrow, 159 Mass. 
 262, 34 N. E. 270, 21:100 
 
 la. Discontinuance and dismissal are syn- 
 onymous terms. English v. Dickey, 128 
 Ind. 174, 27 N. E. 495, 13: 40 
 
 Voluntary. 
 
 Of Parties, see infra, 12-14. 
 Of Suit to Enforce Stockholders' Liability, 
 
 see Corporations, 637. 
 
 Of Injunction Suit, Estoppel by, see Estop- 
 pel, 155. 
 
 Presumption of Malice from, see Evidence, 
 357. 
 
 2. The filing of a paper stating that an 
 action is dismissed does not take away ju- 
 risdiction of the court until entry of a 
 judgment of dismissal. Barnes v. Barnes, 95 
 Cal. 171, 30 Pac. 298, 16: 660 
 
 3. One who brings an action on behalf of 
 himself and others similarly situated who 
 may come in and share in the expenses has 
 the right to control the action, and may con- 
 tinue, compromise, abandon, or discontinue 
 it at pleasure, until a creditor similarly 
 situated has procured an order to be made 
 a party to the action, or has served a no- 
 tice of a motion to be brought in, or until 
 interlocutory judgment is entered. Hirsh- 
 feld v. Fitzgerald, 157 N. Y. 166, 51 N. E. 
 997, 46: 839 
 
 4. The original plaintiff has no authority 
 to continue the action after he has assigned 
 his ri^ht and the assignee has settled or 
 demands a discontinuance, under N. Y. Code 
 Civ. Proc. 756, providing for such con- 
 tinuance after transfer of plaintiff's inter- 
 est. Id. 
 
 o. After a valid plea of set-off has been 
 filed, the plaintiff is not entitled to dismiss 
 his action, so as to interfere with the rights 
 of the defendant, except upon sufficient 
 pause shown. Wilson v. Exchange Bank, 
 122 Ga. 495,. 50 S. E. 357, 69: 97 
 
 6. A statute giving attorneys a lien on the 
 cause of action for their fees in suits 
 instituted by them does not deprive the 
 plaintiff of the right to dismiss the suit 
 against their will, or entitle them to be 
 made parties, with a right to prosecute the 
 action to protect their own interests. 
 Tompkins v. Nashville, C. & St. L. R. 110 
 Tenn. 157, 72 S. W. 116, 61: 340 
 
 Involuntary. 
 
 For Injured Daughter's Refusal to Submit 
 to Physical Examination, see Discovery 
 rmr! Inspection. 33. 
 
 Of Suit by Lunatic, see Incompetent Per- 
 sons, 40. 
 Of Libel Suit, see Libel and Slander, 177. 
 
 Of Mandamus Proceedings, see Mandamus, 
 
 219. 
 
 Of Cross Bill, see Pleading, 548. 
 See also Pleading, 455. 
 
 7. An action commenced by collusion, 
 without any real controversy, will be dis- 
 missed. Haley v. Eureka County Bank, 21 
 Nev. 127, 26 Pac. 64, 12: 815 
 
 8. In case actions between the same par- 
 ties and involving the same subject-matter 
 are brought in courts of co-ordinate juris- 
 diction, and one of the courts secures by 
 proper process the custody or dominion 
 which it is one of the objects of the suit 
 in the other court to subject to its judg- 
 ment, the latter action should not be dis- 
 missed but should be stayed until the pro- 
 ceedings in the court that first obtained 
 jurisdiction of the property are concluded 
 or ample time for their termination has 
 elapsed. Re Barber Asphalt Pav. Co. 132 
 Fed. 945, 67: 761 
 9. A suit instituted by the next friend 
 of one alleged to be of unsound mind need 
 not be dismissed in case such person ap- 
 pears by attorney, protests that he is of 
 sound mind, and moves to dismiss the bill; 
 but the court may determine whether or 
 not it should retain jurisdiction by investi- 
 gating complainant's mental condition. Isle 
 v. Cranby, 199 111. 39, 64 N. E. 1065, 64: 513 
 
 10. A motion to dismiss cannot be sus- 
 tained because the suit was begun by an ar- 
 rest of the defendant in breach of his privi- 
 lege, where he is entitled only to his dis- 
 charge from arrest, but not to a dismissal 
 of the suit. Ellis v. De Garmo, 17 R. I. 
 715, 24 Atl. 579, 19: 560 
 
 11. A judgment by default and the as- 
 signment thereof will not prevent dismissal 
 of the suit as collusive. Haley v. Eureka 
 County Bank, 21 Nev. 127, 26 Pac. 64, 
 
 12: 815 
 Of party. 
 
 Abatement as to One Defendant, see Abate- 
 ment and Revival, 28. 
 
 As to Defaulting Defendants, see Judgment, 
 3. 
 
 Removal of Cause after, see Removal of 
 Causes, 56. 
 
 12. There is no error in dismissing a bill 
 as to a defaulting party, if the defense of 
 the party who appeared went to tho founda- 
 tion of the right to recover upon the case 
 stated. Harrison v. Turnbull, 95 Va. 721, 
 30 S. E. 372, 41 : 703 
 
 13. The dismissal of a bill to set aside a 
 will is proper as to a defendant named in 
 the will as executor and also appointed 
 thereby as trustee, with legal title to cer- 
 tain lands, where he refuses to act either as 
 executor or trustee, and files a disclaimer 
 of any interest in the estate. Campbell v. 
 Campbell, 130 111. 466, 22 N. E. 620, 6: 167 
 
 14. A wife may be given judgment on 
 striking out the name of her husband as 
 coplaintiff in an action by them jointly to 
 recover the proceeds of her individual prop- 
 erty. Donahue v. Hubbard, 154 Mass. 537, 
 28 X. E. 909, 14: 123
 
 DISOBEDIENCE , DISORDERLY HOUSES. 
 
 1035 
 
 Reinstatement. 
 
 Mandamus to Compel, see Mandamus, 27, 
 
 28. 
 
 15. An action cannot be recommenced in 
 a state court after the dismissal of a prior 
 action for the same cause of action by a 
 Federal court to which it had been removed 
 from the state court, as the exclusive ju- 
 risdiction obtained by the Federal court on 
 removal includes a reinstatement of the ac- 
 tion or the commencement of a new one 
 for the same cause of action. Baltimore & 
 O. R. Co. v. Fulton, 59 Ohio St. 575, 53 N. 
 E. 265, 44: 520 
 
 Editorial Notes. 
 
 Of proceeding; power of officer. 2: 644.* 
 Po\ver of public prosecutor to dismiss prose- 
 cution. 35: 701. 
 
 DISOBEDIENCE. 
 As a Contempt, see Contempt, I. c. 
 
 DISORDERLY HOUSES. 
 
 Liability for Injuring Name of House, see 
 Cas'e, 20. 
 
 Delegation of Power -to Suppress, see Con- 
 stitutional Law, 203. 
 
 Changing Limits of, see Constitutional Law, 
 847. 
 
 "sile of Goods for Use in, see Contracts, 640. 
 
 Violation of Both State and Municipal Reg- 
 ulations as to, see Criminal Law, 183. 
 
 Use of Premises for, as Affecting Damages 
 in Condemnation, see Damages, 514. 
 
 Evidence as to, see Evidence, 1754, 1755. 
 
 Right to Jury on Prosecution for Keeping, 
 see Jury, 34, 36, 58. 
 
 Libelous Charge of Keeping, see Libel and 
 Slander, 26, 39-41. 
 
 As Nuisance, see Nuisances, 50-53, 73, 84, 
 112. 
 
 Removal of Officer for Resorting to, see 
 Officers, 131. 
 
 Compulsory Telephone Service to, see Tele- 
 phones, 15. 
 
 Impeaching Witness by Showing Arrest in, 
 see Witnesses. 156. 
 
 As to Disorderly Persons Generally, see Dis- 
 orderly Persons. 
 
 1. The provision in the charter of Detroit, 
 Michigan, that the common council may by 
 ordinance prohibit the keeping of houses of 
 ill fame and punish such keepers, was not 
 impliedly repealed by the Michigan act of 
 1887. making such keeping a felony, and so 
 amending the pre-existing statute which 
 punished it only as a misdemeanor. People 
 v. Hanrahan. 75 Mich. 611, 42 N. W. 1124. 
 
 4: 751 
 
 2. The power to assign limits by ordi- 
 nance, outside of which houses of prosti- 
 tution are prohibited, is not exhausted by 
 its first exercise, but the limits may be 
 
 changed by a subsequent ordinance. L'Hote 
 v. New Orleans, 51 La. Ann. 93, 24 So. 608, 
 
 44: 90 
 What are. 
 
 3. A covered wagon traveling from place 
 to place, in which prostitution is carried 
 on, may constitute a house of ill fame with- 
 in the meaning of a statute prohibiting the 
 keeping of such houses. State v. Chauvet, 
 111 Iowa, 687, 83 N. W. 717, 51: 630 
 
 4. The habitual assembling of lewd men 
 and women in a house to drink and dance 
 together constitutes a disorderly house; and 
 it is not necessary that there be acts vio- 
 lative of the peace of the neighborhood, or 
 boisterous disturbance and open acts of 
 lewdness. Beard v. State, 71 Md. 275, 17 
 Atl. 1044, 4: 675 
 Validity of ordinances regulating. 
 
 See also supra, 1, 2. 
 
 5. Charter power to suppress and restrain 
 disorderly houses authorizes an ordinance 
 fixing a penalty for keeping such a house. 
 Ogden v. Madison, 111 Wis. 413, 87 N. W. 
 568, 55: 506 
 
 6. An ordinance confining houses of pros- 
 titution within certain limits is not uncon- 
 stitutional on the ground that it sanctions 
 vice or undertakes to punish vice. L'Hote 
 v. New Orleans, 51 La. Ann. 93, 24 So. 608. 
 
 44: 90 
 
 7. An ordinance permitting a fine of $1,- 
 000 to be imposed as a penalty for visiting 
 a disorderly house is unreasonable, especial- 
 ly where the penalties prescribed by the 
 Penal Code of the state for similar offenses 
 are much less. Re Ah You, 88 Cal. 99, 25 
 Pac. 974, 11: 408 
 
 8. An ordinance that no person shall "per- 
 mit drunkards, intoxicated persons, tipplers, 
 gamblers, persons having the reputation or 
 name of being prostitutes, or other disorder- 
 ly persons, to congregate, assemble, visit, or 
 remain" in "his or her house, tavern, inn, 
 saloon, cellar, shop, office, or other res- 
 idence or place of business," is unreasonable 
 and beyond the power of the council to en- 
 act, because it is not limited in its applica- 
 tion to places of business which require 
 police regulations, or to assemblages of im- 
 moral persons, and does not make knowledge 
 of the reputation of the person visiting a 
 house or place of business, or an unlawful 
 purpose on the part of the visitor, an in- 
 gredient of the offense. Grand Rapids v. 
 Newton, 111 Mich. 48, 69 N. W. 84, 35: 226 
 
 9. The authority given by the Michigan 
 Constitution to the legislature, to delegate 
 to municipal corporations the right to enact 
 ordinances for the prevention of vice and 
 immorality and the enforcement of good or- 
 der, is a warrant for the grant of power in 
 the charter of the city of Detroit to pass 
 ordinances prohibiting the keeping of houses 
 of ill fame and to punish the keepers and 
 owners thereof; and such an ordinance is 
 not to be defeated by the fact that a crim- 
 inal law is thereby made local and that 
 such power does not appertain to matters 
 which cities have always been used to reg- 
 ulating, or by the fact that there is a 
 
 ' state statute on the subject which provides
 
 1036 DISORDERLY PERSONS DISTRICT AND PROSECUTING ATTORNEYS. 
 
 a different punishment for the same of- 
 fense. People v. Hanrahan, 75 Mich. 611, 
 4-2 \. W. 1124, 4: 751 
 
 Editorial Notes. 
 
 What are, evidence; punishment. 4: 675.* 
 Suppression of houses of ill fame. 4: 751.* 
 Municipal regulation of nuisance of disor- 
 derly houses. 39: 521. 
 Cruel and unusual punishment for keeping. 
 
 35: 571. 
 
 Evidence of character of defendant and in- 
 mates in prosecution for 
 keeping. 20: 610. 
 
 DISORDERLY PERSONS. 
 
 Intoxicated Person as, see Breach of the 
 
 Peace. 
 Equal Privileges as to, see Constitutional 
 
 Law, 612. 
 Ordinance Forbidding Association With, see 
 
 Constitutional Law, 933. 
 Evidence as to, see Evidence, 2160. 
 Authority of Municipality to Punish, see 
 
 Municipal Corporations, 110. 
 For Disorderly Houses, see Disorderly 
 
 Houses. 
 
 1. A conviction and sentence on the charge 
 of being "a suspicious person" under the act 
 of Congress of July 8, 1898, applicable to 
 the District of Columbia, when the suspi- 
 cion of which the accused is the object is 
 wholly undefined and in no manner con- 
 7iected with any criminal act or conduct, 
 either past or that might occur in the fu- 
 ture, is in violation of U. S. Const. Amends. 
 4 and 8, prohibiting unreasonable searches 
 and seizures and cruel and unusual punish- 
 ments. Stoutenburgh v. Frazier, 16 App. D. 
 C. 229, 48: 220 
 Peeking into windows. 
 
 2. An improper or unlawful purpose is 
 not necessary to constitute the offense of 
 indecent or insulting conduct in violation of 
 an ordinance, by peeking into the windows 
 of an occupied lighted dwelling house at 
 night. Grand Rapids v. Williams, 112 Mich. 
 247, 70 N. W. 547, 36: 137 
 
 3. Pecking into the windows of an occu- 
 pied lighted residence at the hours of night 
 when people usually retire, by one who has 
 no business there, constitutes indecent or 
 insulting conduct or behavior within the 
 meaning of an ordinance relative to dis- 
 orderly persons. Id. 
 
 DISPENSARY. 
 
 Discrimination in Favor of Liquors Bought 
 
 from, see Commerce, 104. 
 Power of State as to. see Constitutional 
 
 Law, 9.i8. 959. 
 Police Power as to Establishment of. by 
 
 Municipality, see Constitutional Law, 
 
 1078. 
 
 Loss of Jurisdiction of Suit to Enjoin 
 Maintenance of, see Courts, 254. 
 
 Authorizing Town to Establish, see Intox- 
 icating Liquors, 5. 
 
 Charter Authority of City to Establish, see 
 Municipal Corporations, 426. 
 
 DISQUALIFICATION. 
 
 Of Members of Board, see Boards, 7-9. 
 
 To be Witness to Chattel Mortgage, see 
 
 Chattel Mortgage, 2. 
 Of Judge, see Judges, III. 
 
 DISSEISIN. 
 
 See Adverse Possession. 
 
 DISSOLUTION. 
 
 Of Association, see Associations, 6-9. 
 
 Of Attachment, see Attachment, III. c. 
 
 Of Benevolent Society, see Benevolent Socie- 
 ties, V. 
 
 Of Corporation, see Corporations. VI. 
 
 Of Injunction, see Injunction, 472-477. 
 
 Of Insurance Company, see Insurance, I. c. 
 
 Of Municipality, see Municipal Corporations, 
 I. c. 
 
 Of Partnership, see Partnership, VI. 
 
 DISTANCES. 
 
 Judicial Notice of, see Evidence, 48, 49. 
 
 DISTINGUISHING MARKS. 
 On Ballot, see Elections, II. b, 3. 
 
 DISTRESS. 
 
 For Rent, see Landlord and Tenant. III. d, 
 
 3. 
 For Collection of Tax, see Taxes, 492. 504. 
 
 DISTRIBUTION. 
 
 Of Decedent's Estate, see Executors and Ad- 
 ministrators, IV. c. 
 
 Of Insolvent Estate, see Insolvency. IV. 
 
 Of Assets of Insurance Company, see In- 
 surance, 73-85. 
 
 DISTRICT AND PROSECUTING ATTOR- 
 NEYS. 
 
 Necessity of Continuing Objections to Im- 
 proper Statements of. see Appeal and 
 Error, 286.
 
 DISTRICT OF COLUMBIA DISTURBING WORSHIP. 
 
 Prejudicial Error in Argument of, see Ap- 
 peal and Error, 1091a, 1092, 1104, 1106; 
 and also infra, Editorial Notes. 
 
 Claims of, see Claims, 2. 
 
 Delegation to, of Power to Punish for Con- 
 tempt, see Constitutional Law, 231. 
 
 diving Interest in Penalty to, see Constitu- 
 tional Law, 626. 
 
 Right to Enter Nolle I'rosequi, see Criminal 
 Law, 84. 
 
 Contest of Election to Office of, see Elec- 
 tions, 341. 
 
 Judicial Notice of Appointment of Deputy, 
 see Evidence, 26. 
 
 Sufficiency of Information Filed by, see In- 
 dictment, etc., 2. * 
 
 Necessity of Writing Information, see In- 
 dictment, etc., 4. 
 
 Signing of Information by Deputy, see In- 
 dictment, etc., 7, 8, 11, 17b. 
 
 Eligibility of Women to Office of, see Of- 
 ficer, 16. 
 
 Proceeding by, to Determine Title to Office, 
 see Officers, 165. 
 
 Effect of Refusal to Act in Quo Warranto 
 Proceedings, see Quo Warranto, 22. 
 
 Criminal Liability for Removing Court Rec- 
 ords, see Records, 9. 
 
 Withdrawal of Stipulation by, see Stipula- 
 tions, 6. 
 
 Application for Change of Venue by, see 
 Venue, 26. 
 
 As Witness for Defendant, see Witnesses, 
 4; and also infra, Editorial Notes. 
 
 1. It is the duty of the prosecutor in a 
 criminal trial to see that the accused has 
 a fair trial, and that nothing but competent 
 evidence is submitted to the jury; and he 
 should specially guard against anything 
 that would prejudice the minds of the ju- 
 rors, and tend to hinder them from con- 
 sidering only the evidence introduced. 
 State v. Irwin, 9 Idaho, 35, 71 Pac. 608, 
 
 60: 716 
 
 2. The state's attorney for a county in 
 Connecticut has the right to bring suits to 
 enforce public charitable trusts. Dailey v. 
 New Haven, 60 Conn. 314, 22 Atl. 945, 
 
 14: 69 
 
 Private counsel assisting. 
 Appearance by Private Counsel in Habeas 
 
 Corpus Proceeding, see Habeas Corpus, 
 
 51, 52. 
 Argument by Private Counsel Assisting, see 
 
 Trial. 38. 
 
 3. Counsel employed by private persons 
 may be allowed to assist the prosecuting at- 
 torney at his request on the trial of an in- 
 dictment, although the statute prohibits 
 the latter from receiving any fee or reward 
 from individuals. State v. Kent, 4 N. D. 
 577. 62 N. W. 631, 27: 686 
 
 4. The fact that an attorney is a non- 
 resident of the state, and not a member of 
 the bar of that state, does not make it im- 
 proper to permit him to assist a prosecuting 
 attorney at the latter's request. Id. 
 
 Compensation. 
 
 5. Under Mont. Cornp. Stat. p. 870, 847, 
 providing that a county attorney shall re- 
 ceive certain fees to be taxed as costs for 
 collections made for the county, such fees 
 may be taxed in a proceeding by writ of 
 mandate to compel the payment of money 
 into t/he treasury, as well as in an action 
 brought for recovery of the money. Terri- 
 tory ex rel. Choteau County v. Cascade 
 County, 8 Mont. 396, 20 Pac. 809, 7 : 105 
 
 (5. A county attorney not being entitled, 
 under Mont. "Cornp. Stat. p. 870, 847, to 
 more than $1,200 in fees, the amounts of 
 fees already received by him must be de- 
 ducted from $1,200 and the balance only 
 taxed in his favor, where the percentage al- 
 lowed would make the total more than 
 that sum. Id. 
 
 Editorial Notes. 
 
 Power to dismiss prosecution. 35: 701. 
 
 Improper influence or interference with 
 grand jury by. 28: 368. 
 
 Reversal of conviction because of unfair or 
 irrelevant argument or 
 statements of facts by 
 prosecuting attorney. 46: 
 641. 
 
 Competency of prosecuting attorney aa 
 witness. 55: 231. 
 
 DISTRICT OF COLUMBIA. 
 
 Regulation of Inhabitant's Right to Vote 
 
 on Moving into Adjoining State, see 
 
 Constitutional Law, 332. 
 Citizenship in, as Affecting Jurisdiction, 
 
 see Courts, 344b. 
 Power of Courts of, to Award Alimony, see 
 
 Divorce and Separation, 58. 
 
 The power of Congress to enact regula- 
 tions affecting the public peace, morals, safe- 
 ty, health, and comfort within the District 
 of Columbia is the same as that of the sev- 
 eral state legislatures within their respec- 
 tive territorial limits. Moses v. United 
 States, 16 App. D. C. 428. 50: 532 
 
 Editorial Notes. 
 
 Citi/enship in, as affecting jurisdiction of 
 Federal court on ground 
 of diverse citizenship. 1: 
 108." 
 
 DISTRICTS. 
 
 Of Federal Courts, see Courts, III. i. 
 Judicial Districts, see Venue, 17. 
 
 DISTURBING WORSHIP. 
 
 Indictment for, see Indictment, etc.. 81. 
 By Water Tank and Railway Station, see 
 Nuisances, 39.
 
 1038 
 
 DITCH DIVORCE AND SEPARATION. 
 
 DITCH. 
 
 Vested Right in, under Oral Agreement, see 
 
 Contracts, 249. 
 Right of Prior Appropriator to Repair, see 
 
 Easements, 66. 
 Revocation of License to Maintain, see Li- 
 cense, 11-16, 26. 
 Injury from Caving in of, see Master and 
 
 S'ervant, 355. 
 Right of Action on Covenant to Repair, see 
 
 Parties, 65. 
 Complaint in Action for Constructing, see 
 
 Pleading, 413. 
 Review of Decree as to Carrying Capacity 
 
 of, see Review, 7. 
 Enforcing Contract to Make, see Specific 
 
 Performance, 53. 
 Damage to, see Trespass, 8, 11. 
 Rights in, see Waters, II. i. 
 See also Drains and Sewers. 
 
 DIVER. 
 
 Opinion Evidence of, see Evidence, 1328. 
 
 DIVERSE CITIZENSHIP. 
 
 As Ground for Jurisdiction, see Courts, III. 
 
 DIVERSION. 
 
 Of Note, see Bills and Notes, 257. 
 
 Of Water into Canal, see Canals, 6. 
 
 Of Water from Canal Feeder, see Canals, 7, 
 8. 
 
 Of Surplus Waters Created by Dam, see 
 Dams, 9. 
 
 Of Land Dedicated for Specific Purpose, see 
 Dedication, 15, 16. 
 
 Of Income of Mortgaged Railway, see Mort- 
 gage, 62. 
 
 Of Water, see Waters, II. 
 
 Of Water, Injunction against, see Injunc- 
 tion, 214-222. 
 
 Of Surface Water, Municipal Liability for, 
 see Municipal Corporations, 529-538. 
 
 Of Public Funds, see Public Moneys, II. c 
 
 DIVIDED COURT. 
 
 Motion to Affirm Judgment on Appeal on 
 Ground of, see Appeal and Error, 361. 
 
 Ordering Reargument because of, see Ap- 
 peal and Error, 1250. 
 
 DIVIDEND. 
 
 To Creditors. Changing Order for Payment 
 of, on Rehearing, see Appeal and Er- 
 ror. 1252. 
 
 From Insolvent Bank, Effect of Taking, see 
 Banks, 318, 334. 
 
 Against Insolvent Bank, Interest on. see In- 
 terest, 55-58. 
 
 From Assets of Insolvent Corporation, see 
 Corporations, 778, 803. 
 
 From Insolvent Estate, see Insolvency, 16- 
 
 o.> 07 90 
 
 . _ i . - . 
 
 In Insolvency, Estoppel by Accepting, see 
 Estoppel, 30. 
 
 To Surety, see Principal and Surety, 60. 
 
 On Corporate Stock, see Corporations, V. e, 
 4. 
 
 Guaranty of. see Guaranty, 3, 6, 20. 
 
 Relative Rights of Life Tenants and Re- 
 mainder-men as to, see Life Tenants, II. 
 b. 
 
 Editorial Notes. 
 
 Right of creditors to dividends in insolvency. 
 11: 327.* 
 
 Guaranty of dividends on corporate stock. 
 2: 183.* 
 
 Pledgee's right to dividends of corporate 
 stock. 12: 783.* 
 
 Right to increased stock and stock dividends 
 between owner of capital 
 and income. 16: 461. 
 
 Right to dividends on transfer of stock. 
 45: 392. 
 
 Taxation of, as part of capital stock of cor- 
 poration. 58: 572, 585. 
 
 DIVINE HEALER. 
 
 Proof as to Belief of, see Evidence, 2342. 
 
 DIVISION FENCES. 
 
 See Fences, 
 
 DIVORCE AND SEPARATION. 
 
 I. In General. 
 II. The Suit and Jurisdiction Thereof. 
 
 III. Grounds. 
 
 a. Cruelty; 111 Treatment. 
 
 b. Desertion. 
 
 c. Drunkenness; Use of Morphine. 
 
 d. Imprisonment. 
 
 IV. Defenses; Connivance; Recrimination. 
 V. Alimony. 
 
 a. In General. 
 
 b. Temporary Alimony ; Suit Money. 
 
 c. Permanent Allowance. 
 
 d. Subsequent Change. 
 VI. Other Property Rights. 
 
 VII. Custody and Support of Children. 
 VIII. Agreements for Support and Mainte- 
 nance. 
 
 a. In General. 
 
 b. Validity of. 
 IX. Editorial Notes. 
 
 Effect of. on Prosecution for Adultery, see 
 Adultery.
 
 DIVORCE AND SEPARATION, I., II. 
 
 1039- 
 
 Effect of, on Right of Action for Seduction 
 
 by Husband Before Marriage, see Seduc- 
 tion, 7, 8. 
 Effect of, on Legacy to "Wife," see Wills, 
 
 439, 456. 
 
 Effect on Competency as Witness, see Wit- 
 nesses, 31. 
 Concealment of, as Excuse for Breach of 
 
 Promise, see Breach of Promise. 
 Conflict of Laws as to, see Conflict of Laws, 
 
 I. c. 
 Equal Privileges as to, see Constitutional 
 
 Law, 343. 
 Agreement not to Sue for, as Consideration, 
 
 see Contracts, 77, 78, 90. 
 Validity of Contract for, see Contracts, 423, 
 
 424. . i 
 
 When Court will Inquire into Validity of, 
 
 see Courts, 17, 18. 
 Personal Examination of Parties in Action 
 
 for, see Discovery and Inspection, 27. 
 Parol Evidence of Agreement to Obtain, see 
 
 Evidence, 1186. 
 Injunction against Husband Entering Wife's 
 
 House Pending, see Injunction, 69. 
 Marriage of Divorced Person, see Marriage, 
 
 34-38, 41-44, 74-76. 
 Conflict of Laws as to Validity of Marriage 
 
 of Divorced Person, see Conflict of Laws, 
 
 132-139. 
 Parties to Action to Contest Validity of, see 
 
 Parties, 148. 
 Specific Enforcement of Contract Not to 
 
 Bring Suit, see Specific Performance, 
 
 14. 
 Enforcement of Contract for Attorney's 
 
 Services in Suit, see Specific Perform- 
 ance, 56. 
 Condition in Will for Procuring, see Wills, 
 
 309, 310. 
 
 I. In General. 
 
 1. A cause of action for divorce is not 
 taken away by the repeal of the statute un- 
 der which it arose, without any saving 
 clause, where this is accompanied by a new 
 statute prescribing the same grounds for di- 
 vorce although making the requirements 
 less. Tufts v. Tufts, 8 Utah, 142, 30 Pac. 
 309, 16: 482 
 
 2. Courts will use their discretion to de- 
 feat any and all attempts to use tJhe forms 
 of the law of divorce to minister to the ca- 
 prices of the fickle-minded, or to the reveng- 
 es of the disappointed or vindictive, or to 
 the passions of the incontinent. Dennis v. 
 Dennis. 68 Conn. 186, 36 Atl. 37, 34: 449 
 By act of legislature. 
 
 For Editorial Notes, see infra, IX. 1. 
 
 3. The legislature cannot grant a divorce 
 at the instance of a party at fault, without 
 the consent of the party not at fault. Re 
 Christensen's Estate, 17* Utah. 412. 53 Pac. 
 1003, 41 : 504 
 
 4. A special act of the legislature granting 
 a divorce is in violation of Ala. Const, art. 
 4, 23, which prohibits the suspension of 
 any general law for the benefit of any in- 
 dividual, since the subject of divorce is cov- 
 ered by general laws. Jones v. Jones, 95 
 Ala. 443. 11 So. 11, 'l8: 95 
 
 | II. The Suit and Jurisdiction Thereof. 
 
 Independent Suit for Alimony, see infra, 55,- 
 
 59-62. 
 Power of Court Over Costs Terminated by 
 
 Abatement of Proceeding, see Appeal 
 
 and Error, 1227. 
 Appealability of Judgment in, to United 
 
 States Supreme Court, see Appeal and 
 
 Error, II. a. 
 Review of Finding in Action for, see Appeal 
 
 and Error, 782, 783. 
 Writ of Error by Insane Defendant in Case 
 
 of, see Appeal and Error, 9. 
 Authority of Attorney, see Attorneys, 48. 
 Validity of Agreement to Abandon Real 
 
 Ground for Divorce, see Contracts, 425. 
 Withdrawal of Action as Consideration for 
 
 Promise, see Contracts, 79. 
 As Pending Action After Dismissal from 
 
 Docket, see Dismissal or Discontinu- 
 ance, I. 
 Presumption as to Validity of Judgment, 
 
 see Evidence. 623. 
 
 Admissibility of Decree, see Evidence, 872. 
 Admissibility of Judgment Dismissing Suit r 
 
 see Evidence, 869. 
 
 Effect of Divorce Nisi, see Evidence, 1235. 
 Jurisdiction of Suit to Enjoin Prosecution- 
 
 of, see Courts, 412. 
 Injunction against Maintenance of Suit, see 
 
 Injunction, 486. 
 
 Jurisdiction to Render Judgment, see Judg- 
 ment, I. c, .2. 
 Entry of Judgment after Plaintiff's Death, 
 
 see Judgment, 73. 
 Collateral Attack on Decree, see Judgment, 
 
 I. c, 2, d. 
 Collusiveness of Judgment, see Judgment, 
 
 n. d, 3. 
 
 Decree Rendered in Other State, see Judg- 
 ment, IV. b, 2. 
 
 Decree Rendered in Foreign Country, see 
 Judgment. 336, 337. 
 
 Effect of Suit on Lien of Judgment, see 
 Judgment, 317. 
 
 Action to Set Aside Decree, see Judgment, 
 409, 410. 
 
 Ground for Setting aside Judgment, see- 
 Judgment, 423, 426. 
 
 Kstoppel to Object to Opening of Judgment 
 to Allow Alimony, see Estoppel, 153. 
 
 Limitation of Action for, see Limitation of 
 Actions, 215. 
 
 Effect of Divorce Suit as Us Pendens, 
 See Lift Pendens, 15-17. 
 
 Allegations Showing Jurisdiction, see Plead- 
 ing, 197. 
 
 Striking out Answer, see Contempt, 92; 
 Pleading, 167. 
 
 Betting up Additional Grounds by Supple- 
 mental Bill, see Pleading. 158. 
 
 Surplusage in Pleading, see Pleading, 164. 
 
 Service on Nonresident Defendant, see Writ 
 and Process. 15. 
 
 For Kditorial Notes, see infra, IX. 2 fi. 
 12-14%. 
 
 5. It is the duty of the applicant in an- 
 80 /tnrte proceeding for divorce, upon pain- 
 of otaining an invalid decree, to avoid prac- 
 tising any deception on the court in any
 
 1040 
 
 DIVORCE AND SEPARATION, III. a. 
 
 matter affecting its jurisdiction, or its dis- 
 cretion to proceed or not to the final deter- 
 mination of the cause. Dunham v. Dunham, 
 162 111. 589, 44 N. E. 841, 35: 70 
 
 6. Jurisdiction of a divorce suit cannot 
 be obtained on a complaint by the guardian 
 of an insane man, although the wife is prop- 
 erly served and appears to contest the ju- 
 risdiction. Mqhler v. Shank, 93 Iowa, 273, 
 61 X. W. 981, 34: 161 
 Residence of plaintiff for jurisdictional pur- 
 poses. 
 
 Collateral Attack on Plaintiff's Residence, 
 
 see Judgment, 152. 
 Conclusiveness of Decree in Other State, see 
 
 Judgment, 374. 
 For Editorial Notes, see infra, IX. 5. 
 
 7. Courts of a state in which a husband 
 acquires a new domicil have jurisdiction of 
 a suit brought by him for a divorce. 
 Thompson v. Thompson, 91 Ala. 591, 8 So. 
 419, 11:443 
 
 8. The requirement of two years' resi- 
 dence, under the Florida statutes, in order 
 to give jurisdiction of a suit for divorce, 
 does not apply to a suit for alimony, under 
 Fla. Rev. Stat. 1486, but this may be 
 brought if the wife is a bona fide citizen of 
 the state. Miller v. Miller, 33 Fla. 453, 15 
 So. 222, 24: 137 
 
 9. The authorities of a country have no 
 power to dissolve a marriage between two of 
 its citizens, long after they have abandoned 
 it and taken up their residence in another 
 country, upon the petition of one who tem- 
 porarily returns there, but who, before the 
 dissolution is granted, rejoins her husband 
 in the country of his adoption, and resumes 
 her marital relationship with him there. 
 St. Sure v. Lindsfelt. 82 Wis. 346, 52 ^. W. 
 308, 19: 515 
 
 10. An amendment to a bill for divorce, 
 setting up an entirely new and distinct 
 cause, to which answer is made, is the be- 
 ginning of a new suit for the purpose of de- 
 termining the sufficiency of the residence of 
 the plaintiff in the state to give jurisdiction. 
 Wood v. Wood, 59 Ark. 441. 27 S. W. 641, 
 
 28: 157 
 
 Residence of defendant for purpose of juris- 
 diction. 
 For Editorial Notes, see infra, IX. 4, 5. 
 
 11. The marriage relation is not a res 
 within a state in which only one of the par- 
 ties resides, so as to give a court of that 
 state jurisdiction to dissolve the marriage 
 and bind the absent party who is a citizen 
 of another jurisdiction, by substituted or 
 actual notice of the proceedings, given with- 
 out the jurisdiction of the court where the 
 proceeding is pending. McCreery v. Davis, 
 44 R. C. 19.1. 22 S. E. 178, 28: 655 
 
 12. The matrimonial domicil of a wife 
 who is justified in leaving her husband for 
 cruelty may be changed by removal to an- 
 other state, so as to prevent jurisdiction 
 over her on constructive service in a divorce 
 suit in the state where the husband resides. 
 Atherton v. Atliorton. l.~>.~> X. Y. 129. 49 N. 
 E. 933, 40: 291 
 
 13. Tl'p legal fiction that a wife's domicil 
 follows th;it of her husband gives jurisdic- 
 
 tion of a suit for divorce on the ground of 
 the wife's desertion, to a court of a state to 
 which the husband has removed and in which 
 he has resided for the time required by stat- 
 ute, although the marriage took place in an- 
 other state in which the wife still resides, 
 and in which her desertion began, and in 
 which service is made upon her. Loker v. 
 Gerald, 157 Mass. 42, 31 X. E. 709, 16: 497 
 On cross-bill. 
 Effect of Omitting Noncollusion Clause, see 
 
 Appeal and Error, 863. 
 Presumption as to Service of Cross Bill, see 
 
 Pleading, 438. 
 
 14. A nonresident defendant in a divorce 
 suit brought by a resident of the state may 
 be granted a divorce on a cross bill although 
 the marriage and cause of divorce took place 
 out of the state and the general provisions 
 in How. (Mich.) Ann. Stat. 6231, say that 
 in such case a divorce shall not be granted 
 unless the party exhibiting the petition or 
 bill therefor has resided in the state one 
 year. Glutton v. Glutton, 108 Mich. 267. 66 
 N. W. 52, 31:160 
 
 III. Grounds, 
 a. Cruelty; 111 Treatment. 
 
 Defenses in Action for, see infra, 44, 48-50. 
 Annulment of Marriage, or Divorce, for 
 
 Causes Rendering the Marriage Invalid, 
 
 see Marriage, IV. 
 
 Question for Jury as to, see Trial, 181. 
 For Editorial Notes, see infra, IX. 7. 
 
 15. The final test of the sufficiency of ill- 
 treatment or extreme cruelty as a cause of 
 divorce is its actual or reasonably appre- 
 hended injurious effect upon the body or 
 health of the complaining party. Waldron 
 v. Waldron, 85 Cal. 251, 24 Pac. 640, 858, 
 
 9: 487 
 
 16. "Treatment," within the meaning of a 
 statute authorizing a divorce for treatment 
 injuring health or endangering reason, means 
 any behavior of one party which affects the 
 other physically or mentally. Robinson v. 
 Robinson, 66 N. H. 600, 23 Atl. 362, 15: 121 
 
 17. "Cruel treatment," within the mean- 
 ing of a statute providing that such treat- 
 ment shall be a ground for divorce, is the 
 wilful infliction of pain, bodily or mental, 
 upon the complaining party, such as reason- 
 ably justifies an apprehension of danger to 
 life, limb, or health. Ring v. Ring, 118 Ga. 
 183, 44 S. E. 861, 62: 878 
 
 18. The intention to wound is a necessary 
 element of the cruel treatment for which a 
 divorce is allowed. Id. 
 
 19. Acts causing mental suffering, al- 
 though not affecting bodily health, may con- 
 stitute extreme cruelty under Cal. Civ. Code, 
 94, which defines it as the "infliction of 
 grievous bodily injury or grievous mental 
 suffering." Barnes v. Barnes, 95 Cal. 171, 
 30 Pac. 298. 16: 660 
 Overruling Waldron v. Waldron. 85 Cal. 251, 
 24 Pac. 640, 858. 9: 487 
 
 20. A divorce will not be granted on the 
 ground of cruelty, where the bill relied upon
 
 DIVORCE AND SEPARATION, III. b. 
 
 1041 
 
 habitual drunkenness, but charged cruelty 
 only in general terms, such charge being 
 brought forward as a mere afterthought aft- 
 er it became apparent that the bill could not 
 be maintained on the ground of drunken- 
 ness. Youngs v. Youngs, 130 111. 230, 22 N. 
 E. 806, 6: 548 
 
 Communication of syphilis. 
 
 21. The communication of syphilis to a 
 wife by her husband, *vho has the disease in 
 the tertiary stage and is probably incurable, 
 whereby she is kept in a constant state of 
 suffering, is a ground for a divorce under 1 
 Pepper & L. Dig. p. 1638, pi. 11, allowing a 
 divorce for cruel and barbarous treatment 
 endangering the wife's life or rendering her 
 condition intolerable and life burdensome. 
 McMahen v. McMahen, 186 Pa. 485, 40 Atl. 
 795, 41 : 802 
 Bodily acts or violence. 
 
 See also infra, 25. 
 
 22. A single blow given in anger by hus- 
 band to wife is not necessarily cruel and 
 barbarous treatment constituting cause for 
 divorce. Hardie v. Hardie, 162 Pa. 227, 29 
 Atl. 886, 25: 697 
 
 23. One act of force and violence preceded 
 by deliberate insult and abuse, even though 
 committed wantonly and without provoca- 
 tion, does not constitute "extreme and re- 
 peated cruelty" which will justify a divorce 
 under the Illinois statute. Fritts v. Fritts, 
 138 111. 436, 28 N. E. 1058, 14:685 
 Language used. 
 
 24. That a husband on several occasions, 
 when intoxicated, called his wife vile names 
 in the presence of others, is* not sufficient 
 ground for granting a divorce on the ground 
 of extreme cruelty, where the wife was not 
 uniformly kind to the husband and her 
 health was not injured thereby. Waldron v. 
 Waldron, 85 Cal. 251, 24 Pac. 640, 858, 
 
 9:487 
 
 25. A wife is entitled to a divorce for in- 
 human treatment where the husband, be- 
 sides frequently abusing her and her chil- 
 dren, habitually addressing her in profane 
 and obscene language, and applying to her 
 opprobrious epithets, has on several occa- 
 sions treated her with physical violence, and 
 once, in the presence of her children, has ac- 
 cused her of improper relations with another 
 man, while he has been indifferent to her in 
 sickness, inviting farm hands to sit in the 
 same room she was occupying, with aggra- 
 vating language and irritating manner, al- 
 though no single act was sufficient to en- 
 dan^er her life. Doolittle v. Doolittle, 78 
 Iowa, 691, 43 N. W. 616, 6: 187 
 Use of morphine. 
 
 For Editorial Notes, see infra, IX. 7. 
 
 26. The habitual and intemperate use of 
 morphine, unaccompanied by any conduct 
 reasonably justifying an apprehension of 
 danger to life, limb, or health, is not such 
 cruel treatment as the law recognizes as a 
 ground for divorce. Ring v. Ring, 118 Ga. 
 183, 44 S. E. 861, 62: 878 
 
 27. Violent resistance by a husband of at- 
 tempts by the wife to take morphine from 
 him while he is in a state of total or partial 
 delirium does not constitute extreme and re- 
 
 L.R.A. Dig. 66. 
 
 peated cruelty, within the meaning of 111. 
 Rev. Stat. chap. 40, 1, making such cruelty 
 a ground of divorce. Youngs v. Youngs, 130 
 111. 230, 22 N. E. 806, 6: 548 
 
 Practice of Christian science. 
 
 28. The practice of Christian science as a 
 doctor, by a wife who believed this to be her 
 duty, may give her husband ground for a 
 divorce under N. H. Gen. Laws, chap. 182, 
 3 (N. H. Gen. Stat. chap. 163, 3), au- 
 thorizing a divorce for treatment seriously 
 injuring health or endangering reason, al- 
 though such injury to the health and danger 
 to the reason of the 'husband is due to his 
 abnormal sensitiveness. Robinson v. Robin- 
 son, 66 N. H. 600, 23 Atl. 362, 15: 121 
 Failure to provide for. 
 
 29. Failure to provide a suitable dwelling 
 place, and consequent exposure to cold, and 
 failure to provide sufficient clothing and 
 food, are not within the meaning of a stat- 
 ute allowing a divorce for extreme and re- 
 peated cruelty. Maddox v. Maddox, 189 111. 
 152, 59 N. E. 599, 52: 628 
 
 b. Desertion. 
 
 Failure to Provide Suitable Support, see su- 
 pra, 29. 
 See also infra, 75. 
 
 30. Voluntary abandonment of a wife by 
 her husband is shown where he requires her 
 to leave his house, and fails to provide for 
 her support, and does not consent to her re- 
 turn. Jones v. Jones, 95 Ala. 443, 11 So. 
 11, 18: 95 
 
 31. Merely paying an allowance to one's 
 wife in compliance with an order of court 
 after abandoning her, without furnishing 
 her any other support, is not sufficient to 
 prevent granting her a divorce under a stat- 
 ute authorizing a divorce for "wilful deser- 
 tion for three years, with total neglect of 
 duty." Tirrell v. Tirrell, 72 Conn. 567, 45 
 Atl. 153, 47: 750 
 
 32. A divorce from a wife for "utter de- 
 sertion continued for three consecutive 
 years" may be granted under Me. Rev. Stat. 
 chap. 60, 2, where she deserts her husband 
 and remains away from him for the full 
 period continuously, and unreasonably re- 
 fuses to return, although once during that 
 time he visits her and for two or three 
 nights occupies the same bed with her. Dan- 
 forth v. Danforth, 88 Me. 120, 33 Atl. 781, 
 
 31 : 608 
 
 33. When a husband, not entirely blame- 
 less for the act, makes no effort to prevent 
 his desertion by his wife, and acquiesces in 
 and appears satisfied with its continuance, 
 he is not entitled to a divorce on the ground 
 of desertion. Herold v. Herold (N. J. Ch.) 
 47 N. J. Eq. 210, 20 Atl. 375, 9: 696 
 Leaving husband for cause as. 
 
 34. The act of a woman in leaving her 
 husband for cause is not desertion, within 
 the meaning of the law authorizing a divorce 
 for desertion. Doolittle v. Doolittle, 78 
 Iowa, 691, 43 N. W. 616, 6: 187 
 
 35. Refusal of a wife for a time to live 
 with her husband on the harsh condition im-
 
 1042 
 
 DIVORCE AND SEPARATION, III. c IV. 
 
 posed by him that she should not visit her 
 mother will not constitute desertion on her 
 part which will prevent her from obtaining 
 a divorce for desertion, where an uncondi- 
 tional offer by her to return to him has been 
 rejected, and he has left the state and pro- 
 cured a divorce from her in another state. 
 Williams v. Williams, 130 N. Y. 193, 29 N. 
 E. 98, 14: 220 
 
 36. Wilful and malicious desertion consti- 
 tuting cause for divorce is not shown by the 
 facts that the wife, in a passion roused 
 by a single blow by her husband, leaves the 
 house without intending to remain away 
 permanently, and on reflection returns to 
 find the home barred against her, and then 
 seeks by violence to enter, for which she is 
 prosecuted by the husband, and thereafter 
 does not return. Hardie v. Hardie, 162 Pa. 
 227, 29 Atl. 886, 25:697 
 Leaving wife for cause. 
 
 37. A wife's offensive behavior, coarse and 
 indelicate language, and her anonymous let- 
 ters foully slandering one of her husband's 
 daughters by a former marriage, do not 
 furnish him a legal justification for his 
 abandonment, which will prevent her from 
 obtaining a divorce for abandonment. Jones 
 v. Jones, 95 Ala. 443, 11 So. 11, 18: 95 
 Refusal to have sexual intercourse. 
 
 For Editorial Notes, see infra, IX. 7. 
 
 38. A wife's refusal to have sexual inter- 
 course with her husband is not wilful deser- 
 tion within the meaning of a statute author- 
 izing a divorce in case a husband or wife has 
 "wilfully deserted or absented himself or 
 herself" from the other for two years. 
 Fritts v. Fritts, 138 111. 436, 28 N. E. 1058, 
 
 14: 685 
 
 Imprisonment. 
 For Editorial Notes, see infra, IX. 9. 
 
 39. The lapse of five years after the con- 
 viction of a crime and sentence to imprison- 
 ment for life entitles the wife of the person 
 convicted to a divorce, under Ky. Stat. 
 2117, making it a ground for divorce that 
 the parties had been living apart without 
 cohabitation for five years before the appli- 
 cation. Davis v. Davis, 102 Ky. 440, 43 S. 
 W. 168, 39: 403 
 
 c. Drunkenness; Use of Morphine. 
 
 Evidence of Defendant's Condition after 
 Commencement of the Suit, see Evi- 
 dence, 1721. 
 
 See also supra, 20, 24, 26, 27. 
 
 For Editorial Notes, see infra, IX. 7, 10. 
 
 40. habitual intemperance, within the 
 meaning of a statute authorizing a divorce 
 for such cause, is not shown by the facts 
 that defendant about once in three weeks 
 became intoxicated during the evening to 
 such an extent that the next morning he 
 did not go as usual to his work, and had 
 continued to do so for two years, if it had 
 not caused loss of his position, nor produced 
 want or suffering in the family. Dennis v. 
 Dennis, 68 Conn. 186, 36 Atl. 37, 34: 449 
 
 41. 111. Rev. Stat. chap. 40, 1, making 
 habitual drunkenness a cause for divorce, 
 
 does not include intoxication produced by 
 the use of morphine by means of a hypoder- 
 mic injection. Youngs v. Youngs, 130 111. 
 230, 22 N. E. 806, 6: 548 
 
 d. Imprisonment. 
 
 As Ground for Annulling Marriage, see Mar- 
 riage, 60, 61. 
 See also supra, 39. 
 For Editorial Notes, see infra, IX. 9. 
 
 42. A sentence to imprisonment in the 
 state prison in a foreign state is not a 
 ground of divorce within the statute provid- 
 ing that a divorce may be decreed when 
 either party has been sentenced to confine- 
 ment in "the state prison." Leonard v. 
 Leonard, 151 Mass. 151, 23 N. E. 732, 6: 632 
 
 43. An action for divorce need not be 
 brought within five years after the convic- 
 tion for a felony of one sentenced to impris- 
 onment for life, under Ky. Stat. 2117, 
 making "condemnation for felony" a ground 
 for divorce, and Ky. Civ. Code, 423, subs. 
 3, requiring plaintiff in a divorce suit to 
 prove that the cause of divorce "occurred or 
 existed within five years next before the 
 commencement of the action." Davis v. Da- 
 vis, 102 Ky. 440, 43 S. W. 168, 39: 403 
 
 IV. Defenses; Connivance; Recrimination. 
 
 Effect of Omitting Noncollusion Clause from 
 Cross Bill, see Appeal and Error, 863. 
 
 Evidence as to Defendant's Condition After 
 Commencement of the Suit, see Evi- 
 dence, 1721. 
 
 Collateral Attack on Judgment for Collu- 
 sion, see Judgment, 158. 
 
 Judgment for Separation as Defense, see 
 Judgment, 199. 
 
 Effect of Failure to Set up Defense, see 
 Judgment, 200. 201. 
 
 See also supra, 32-38; infra, 75. 
 
 For Editorial Notes, see infra, IX. 8-11. 
 
 Condonation. 
 
 As Ground for Bill of Review, see Review, 
 
 10. 
 For Editorial Notes, see infra, IX. 8. 
 
 44. A wife who continues to live with her 
 husband after an act of personal violence 
 condones the offense. Youngs v. Youngs, 
 130 111. 230, 22 N. E. 806, 6: 548 
 Connivance. 
 
 For Editorial Notes, see infra, IX. 8. 
 
 45. Connivance of a husband in his wife's- 
 adultery is not shown, where he already 
 suspects her to be guilty, by merely suffering 
 her in a single instance to avail herself of an 
 opportunity therefor which she has already 
 arranged without his knowledge, even 
 though he purposely refrains from warning 
 her because he hopes to obtain evidence 
 which will entitle him to a divorce. Wilsoa 
 v. Wilson, 154 Mass. 194, 28 N. E. 167, 
 
 12: 524 
 
 46. The right to a divorce for adultery 
 will be barred if plaintiff consented to the-
 
 DIVORCE AND SEPARATION, V. a. 
 
 1043 
 
 employment of a person to allure defendant 
 into the offense for which the action is 
 brought. Dennis v. Dennis, 68 Conn. 186, 36 
 Atl. 37, 34: 449 
 
 47. A woman who authorizes her attorney 
 to employ detectives to watch ner husband, 
 whom she suspects of infidelity, for the pur- 
 pose of obtaining evidence which will en- 
 title her to a divorce, and who goes with 
 them at a time appointed to surprise him in 
 a compromising position with a lewd woman 
 employed by them for that purpose, may be 
 found to have known that the woman's 
 movements were governed by them, so as to 
 show connivance on her part which will bar 
 her right to divorce. Id. 
 Recrimination. , 
 Sufficiency of Proof that Plaintiff's Aban- 
 donment of Her Husband was Justified, 
 see Evidence, 2285. 
 
 Mode of Pleading, see Pleading, 541. 
 
 48. The adultery of plaintiff is a good de- 
 fense to an action for divorce on the ground 
 of cruel and inhuman treatment. Hubbard 
 v. Hubbard, 74 Wis. 650, 43 N. W. 655, 
 
 6: 58 
 
 49. The setting up of adultery as a de- 
 fense to the granting of a divorce for ex- 
 treme and repeated cruelty and impotency 
 is not prevented by a statute providing that 
 if it shall appear that the injury complained 
 of was occasioned by collusion, or that both 
 parties have been guilty of adultery, when 
 adultery is the ground of complaint, no ai- 
 vorce shall be decreed. Decker v. Decker, 
 193 111. 285, 61 N. E. 1108, 55: 697 
 
 50. Cruelty, which is a statutory ground 
 of divorce, may be set up by a plea of re- 
 crimination as a uar to a bill for divorce on 
 the ground of adultery. Church v. Church, 
 16 R. I. 667, 19 Atl. 244, 7: 385 
 
 51. A divorce will not be denied to a man 
 in case of his wife's adultery, by reason of 
 the fact that he married her while under 
 arrest on bastardy process, merely to have 
 the child born in wedlock and on an agree- 
 ment with her that they should never live 
 together, which they have kept. Franklin 
 v. Franklin, 154 Mass. 515, 28 N. E. 681, 
 
 13: 843 
 Second marriage before decree absolute. 
 
 52. One who has obtained a divorce nisi 
 may have the decree made absolute, not- 
 withstanding he has married again, if before 
 doing so he waited the time required by law, 
 and then married believing, and having rea- 
 sonable grounds to believe, that the Decree 
 had been made absolute, and was guilty of 
 no negligence. Pratt v. Pratt, 157 Mass. 
 503, 32 N. E. 747, 21 : 97 
 
 53. The erroneous belief that a divorce has 
 been granted, and reliance upon the state- 
 ment of an attorney to that effect, who 
 shows what purports to be a copy of a de- 
 cree of divorce, and a subsequent marriage 
 contracted on the faith of the supposed di- 
 vorce, will not prevent cohabitation there- 
 under from being adulterous, so as to bar a 
 claim for divorce in the pending action 
 Gordon v. Gordon, 141 111. 160, 30 N. E. 446 
 
 21 : 387 
 64. Marriage after a divorce nisi and be- 
 
 ore a decree absolute will defeat the right 
 o have the decree made absolute, although 
 -he party believed the divorce was absolute, 
 f this was merely a mistake of law, but not 
 f his mistake Was due to a mistake of fact 
 and he was not chargeable with negligence 
 or any moral fault. Darrow v. Darrow, 159 
 Mass. 262,, 34 N. E. 270, 21: 100 
 
 V. Alimony. 
 a. In General. 
 
 As to Other Property Rights, see infra, VI. 
 Survival of Judgment for, see Abatement 
 
 and Revival, 12. 
 Failure to Pay, as Defense to Divorce Suit, 
 
 see Aqtion or Suit, 40. 
 Review of, on Appeal, see Appeal and Error, 
 
 783. 
 
 Assignability of Future Instalment, see As- 
 signment, 25. 
 
 lontract to Divide with Attorney, see Attor- 
 neys, 68. 
 Authority of Attorney as to, see Attorneys, 
 
 49. 
 
 As Provable Debt, see Bankruptcy, 36. 
 Release from Liability for, by Discharge in 
 
 Bankruptcy, see Bankruptcy, 56. 
 Conflict of Laws as to Enforcement of, see 
 
 Conflict of Laws, 329. 
 Due Process as to, see Constitutional Law, 
 
 896. 
 Validating Void Marriage so as to Make 
 
 Husband Liable for, see Constitutional 
 
 Law, 127. 
 Failure to Pay as Contempt, see Contempt, 
 
 49, 50, 95-97; Pleading, 439; and also 
 
 infra, IX. 21. 
 Jurisdiction of Proceeding to Enforce Decree, 
 
 see Courts, 259. 
 Crops Passing Under Decree for, see Crops, 
 
 2. 
 Estoppel to Deny Right to Open Judgment 
 
 for Allowance of, see Estoppel, 153. 
 Presumption in Aid of Jurisdiction to 
 
 Award, see Evidence, 632. 
 Married Woman's Liability on Contract to 
 
 Pay Attorney for Securing Divorce, see 
 
 Husband and Wife, 39. 
 Husband's Criminal Liability in Absence of 
 
 Provision for, see Husband and Wife, 
 
 241, 242. 
 Personal Judgment for, see Judgment, 32, 33, 
 
 35-37. 
 Judgment on Bond to Secure, see Judgment, 
 
 48, 76. 
 Conclusiveness of Judgment as to, see 
 
 Judgment, 204, 205. 
 Enforcement of Decree for, see Judgment, 
 
 379, 380, 396-398. 
 Limitation of Action for Annual Instalments 
 
 of, see Limitation of Actions, 210. 
 Allegations as to, see Pleading, 439. 
 Striking out Answer for Refusal to Pay, see 
 
 Contempt of Court, 92; Pleading, 167. 
 Construction of Adopted Statute as to, see 
 
 Statutes, 531. 
 For Editorial Notes, see infra. IX. 1< 
 
 55. The wife alone can maintain an ac-
 
 1044 
 
 DIVORCE AND SEPARATION, V. b. 
 
 tion for alimony. Meldrum v. Meldrum, 15 
 Colo. 478, 24 Pac. 1083, 11: 65 
 
 56. Alimony is a sum ordered by the court 
 to be paid to a wife by the husband for her 
 support during the time she lives separate 
 from him, or paid by him after divorce for 
 her maintenance. Greene v. Greene, 49 Neb. 
 546, 68 N. W. 947, 34: 110 
 
 57. The power to grant alimony independ- 
 ent of statute belongs to a court of chancery 
 in a suit to declare a marriage void ab in- 
 itio. Prine v. Prine, 36 Fla. 676, 18 So. 781, 
 
 34: 87 
 
 58. The right to award alimony, conferred 
 on the courts of the District of Columbia by 
 the act of Congress of June 19, 1860, was 
 subject to the qualifications and limitations 
 inherent in it in the English courts and un- 
 der the Maryland act of 1777. Alexander v. 
 Alexander, 13 App. D. C. 334, 45: 806 
 Independent suit for. 
 
 See also supra, 8, 55; infra, 73, 120. 
 For Editorial Notes, see infra, IX. 18. 
 
 59. A bill for alimony cannot be main- 
 tained after a decree of absolute divorce 
 for misconduct of the wife, which allows 
 each party to remarry. Downey v. Downey, 
 98 Ala. 373, 13 So. 412, 21: 677 
 
 60. In South Dakota a wife justified by 
 her husband's misconduct in living separate 
 from him, may maintain an independent ac- 
 tion against him for her support without re- 
 gard to the question of divorce. Bueter v. 
 Bueter, 1 S. D. 94, 45 N. W. 208, 8: 562 
 
 61. A statutory provision for alimony 
 when a divorce is granted does not by im- 
 plication exclude a right of action to enforce 
 a husband's obligation to furnish his wife 
 maintenance independent of a proceeding for 
 divorce. Edgerton v. Edgerton, 12 Mont. 
 122, 29 Pac. 966, 1: 94 
 
 62. That a wife is living in the same 
 house with her husband and performing 
 some of the duties of a wife, will not pre- 
 vent her from maintaining a suit for sep- 
 arate maintenance under a statute permit- 
 ting such suit "when the husband fails, 
 without just cause, to furnish suitable sup- 
 port for his wife," where the contingency 
 of the parties living apart is made a sepa- 
 rate ground for the suit. Bucknam v. 
 Bucknam, 176 Mass. 229, 54 N. E. 343, 
 
 49: 735 
 Appropriation of, for wife's debts. 
 
 63. Alimony awarded to an innocent wife 
 by a court of equity as incidental to a decree 
 of divorce in her favor cannot be appropri- 
 ated by her creditor for a debt existing prior 
 to the decree of divorce. Romaine v. Chaun- 
 cey, 129 N. Y. 566, 29 N. E. 826, 14: 712 
 Assignability of right to. 
 
 64. A wife's claim for an allowance of ali- 
 mony cannot be assigned to another, being 
 a purely personal right, and not a proper- 
 ty right. Lynde v. Lynde (N. J. Err. & 
 App.), 64 N. J. Eq. 736, 52 Atl. 694, 58: 471 
 
 b. Temporary Alimony; Suit Money. 
 
 Allowance of, on Appeal, see Appeal and Er- 
 ror. 1194. 
 See also infra, 105, 106. 
 
 65. The denial by the husband of hia 
 wife's allegations in a suit for separate 
 maintenance will not prevent an allowance 
 of temporary alimony, but the court, in the 
 exercise of its discretion, may make such 
 allowance if the wife shows a meritorious 
 cause of action by her pleadings, and the 
 court is satisfied that she is proceeding in 
 good faith. Harding v. Harding, 144 111. 
 588, 32 N. E. 206, 21 : 310 
 
 66. An issue as to the jurisdiction of the 
 court on the ground that both parties are 
 residents and citizens of other states will 
 not prevent the court from making an order 
 for temporary alimony pending the deter- 
 mination of that issue. Miller v. Miller, 33 
 Fla. 453, 15 So. 222, 24: 137 
 
 67. The fact that a wife has property in 
 her own right will not prevent an allowance 
 to her of temporary alimony in a suit for 
 separate maintenance; but if her income is 
 insufficient and that of her husband ample, 
 she may be allowed from his income such a 
 sum as will, when added to her own, enable 
 her to live comfortably pending the litiga- 
 tion, in the station in life to which he haa 
 accustomed her. Harding v. Harding, 144 
 111. 588, 32 N. E. 206, 21: 310 
 
 68. Provisional alimony in addition to suit 
 money may be allowed in a suit for separate 
 maintenance under- the Illinois statute, 
 which authorizes an allowance in such cases 
 "to enable the wife to prosecute her suit aa 
 in case of divorce." Id. 
 Additional alimony. 
 
 69. Additional alimony pendente lite will 
 not be awarded to a wife to enable her to 
 meet the expense of the professional educa- 
 tion of her nineteen- year-old son, whose cus- 
 tody was not awarded to either parent, 
 against the opposition of the husband, who 
 wishes his son to go into business. Streit- 
 wolf v. Streitwolf (N. J. Err. & App.) 58 
 N. J. Eq. 570, 43 Atl. 904, 45: 842 
 Suit money. 
 
 Allowance of, on Appeal, see Appeal and 
 
 Error, 1194. 
 
 Personal Judgment for, see Judgment, 33. 
 See also supra, 68. 
 
 70. Where no intricate questions of law 
 were involved, but a large amount of work 
 was necessarily required of plaintiff's attor- 
 ney in a divorce suit, a total allowance of 
 $200 for prosecuting an appeal was held 
 
 reasonable. Doolittle v. Doolittle, 78 Iowa, 
 691, 43 N. W. 616, 6: 187 
 
 71. A woman, in a suit for divorce, may 
 be allowed a reasonable sum for an attor- 
 ney's fee in prosecuting an appeal. Id. 
 
 72. An order for suit money in the sum of 
 $100 was made against plaintiff in an action 
 to annul a marriage contracted by him while 
 under the statutory age of consent, although 
 he was not only an infant, but without 
 means, where his father had ample means, 
 and was to some extent responsible for the 
 suit, and neither defendant nor her father 
 were able to pay the expense of the suit. 
 Eliot v. Eliot, 77 Wis. 634. 46 N. W. 806, 
 
 10: 568 
 
 73. In an independent action for her sup- 
 port by a wife justified by her husband's
 
 DIVORCE AND SEPARATION, V. c, d. 
 
 misconduct in living separate from him, if 
 the wife is destitute the court has power to 
 include in its judgment an allowance of at- 
 torney's fees as necessaries for her. Bueter 
 v. Bueter, 1 S. D. 94, 45 N. W. 208, 8: 562 
 
 c. Permanent Allowance. 
 
 74. The permanent alimony granted to a 
 woman on divorce need not be limited to an 
 allowance payable at stated periods suffi- 
 cient for her support, but the allowance of a 
 gross sum out of the husband's estate in ad- 
 dition to a monthly allowance is within the 
 power of the court, under Wis. Rev. Stat. 
 2364. authorizing such alimony as the court 
 shall deem just and reasonable,* regarding 
 the husband's ability to pay, the special es- 
 tate of the wife, and all the circumstances 
 of the case. Hooper v. Hooper, 102 Wis. 598, 
 78 N. W. 758, 44: 725 
 
 75. A wife's ill temper and mean disposi- 
 tion which make her principally responsible 
 for an unhappy state of feeling in the house- 
 hold, although not a legal justification to 
 her husband for abandoning her, may in a 
 measure palliate his offense and abridge her 
 claim to an allowance from his estate for 
 her separate maintenance, on obtaining a di- 
 vorce from him for abandonment. Jones v. 
 Jones, 95 Ala. 443, 11 So. 11, 18: 95 
 
 76. A pension received by a soldier of the 
 Civil War from the Federal government may 
 be taken into consideration as part of his re- 
 sources, in fixing the future alimony to be 
 paid by him, when his wife is granted a di- 
 vorce, although, under the Federal statutes, 
 it is not subject to seizure by any legal pro- 
 cess until it has reached his possession. 
 Bailey v. Bailey, 76 Vt. 264, 56 Atl. 1014, 
 
 65: 332 
 
 Effect of previous agreement as to. 
 See also infra, 87. 
 
 77. Although husband and wife cannot 
 lawfully enter into an agreement for di- 
 vorce, they may agree as to the amount and 
 terms of payment of alimony, and the court 
 will embody such agreement in its decree. 
 Storey v. Storey, 125 111. 608, 18 N. E. 329, 
 
 1: 320 
 
 78. No additional allowance can be grant- 
 ed to a wife on divorce, where a prior valid 
 agreement for separation making a provi- 
 sion for her, which she and her trustee have 
 covenanted to accept in full for her support 
 and maintenance during her life, is still in 
 force. Galusha v. Galusha, 116 N. Y. 635, 
 22 N. E. 1114, - 6: 487 
 In spendthrift trust. 
 
 79. A woman who, upon procuring a di- 
 vorce from her husband, is awarded alimony, 
 is a creditor entitled to the benefit of the 
 New \ ork statute providing that the income 
 of a spendthrift trust beyond what is neces- 
 sary for the support of the beneficiary shall 
 be liable in equity to the claims of his cred- 
 itors. Wetmore v. Wetmore, 149 N. Y. 520, 
 44 N. E. 169, 33: 708 
 
 80. In directing the surplus income of a 
 spendthrift trust to be applied upon the 
 claim of a divorced wife to alimony, under 
 the New York statute permitting such sur- 
 
 1045 
 
 plus to be applied in favor of creditors, -a 
 court of equity does not exceed its authority 
 by requiring the trustee to pay over, not 
 only the surplus accumulated, but that 
 which shall thereafter accrue. Id. 
 
 81. Upon applying the income of a spend- 
 thrift trust, under the New York statute, 
 to the support of a divorced wife of the 
 beneficiary, the court should make due pro- 
 vision for his support, and give him leave 
 to apply for orders at the foot of the judg- 
 ment which are necessary for the securing 
 of his support. Id. 
 Instances of amount. 
 
 82. The allowance of $3,500 as permanent 
 alimony to a wife who is nearly helpless, re- 
 quiring the constant attention of an assist- 
 ant, and not likely to recover her health, is 
 not excessive where her property is less than 
 $2,000 and that of her husband is not less 
 than $14,000. Doolittle v. Doolittle, 78 
 Iowa, 691, 43 N. W. 616, 6: 187 
 To husband. 
 
 For- Editorial Notes, see infra, IX. 19. 
 
 83. A husband cannot recover alimony to 
 be paid out of his divorced wife's separate 
 estate unless it is allowed by statute, and it 
 is riot allowed by Neb. Comp. Stat. 1895, 
 chap. 25, 10, authorizing a petition or bill 
 of divorce, alimony, and maintenance to be 
 exhibited "by a wife in her own name, as 
 well as a husband." Greene v. Greene, 49 
 Neb. 546, 68 N. W. 947, 34: 110 
 
 d. Subsequent Change. 
 
 As to Custody and Maintenance of Chil- 
 dren, see infra, 118, 119. 
 
 Appealability of Order as to, see Appeal and 
 Error, 26, 32. 
 
 Presumption as to, on Appeal, see Appeal 
 and Error, V. d. 
 
 Impairment of Vested Rights by Statute 
 Authorizing, see Constitutional Law, 
 153. 
 
 Consideration of Sufficiency of Alimony on 
 Bill of Review, see Review, 9. 
 
 See also supra, 77, 78. 
 
 84. Failure to reserve the right subse- 
 quently to reduce the amount, in a decree 
 awarding alimony, does not deprive the 
 court of power subsequently to make the re- 
 duction, even in cases of absolute divorce. 
 Alexander v. Alexander, 13 App. D. C. 334, 
 
 45: 806 
 
 85. A decree of a certain sum annually to 
 a wife as alimony during her natural life 
 in case she remains unmarried, but to ter- 
 minate in the event of her marriage, al- 
 though it declares that it shall stand as a 
 final disposition of property between her 
 and her husband, is not a final disposition of 
 the estate of the husband, under Wis. Rev. 
 Stat. 2364, but is subject to future modi- 
 fication by the court. Kempster v. Evans. 81 
 Wis. 247, 51 N. W. 327, 15: 391 
 
 86. A decree for alimony in a case of di- 
 vorce a vinculo, made without reserve, al- 
 though for monthly payments, is final, and 
 cannot be changed after the expiration of 
 term or the time within which a new trial
 
 1046 
 
 DIVORCE AND SEPARATION, VI. 
 
 may be'had. Sampson v. Sampson, 16 R. I. 
 456, 16 Atl. 711, 3: 349 
 
 Effect of previous agreement. 
 
 87. A decree based on a postnuptial agree- 
 ment by which a wife is given a certain 
 sum per month for her maintenance consti- 
 tutes a contract which cannot be modified 
 by the court on account of a change in the 
 husband's financial condition, so as to re- 
 duce the amount payable, without the wife's 
 consent. Henderson v. Henderson, 37 Or. 
 141, 60 Pac. 597, 48: 766 
 Effect of wife's adultery. 
 
 For Editorial Notes, see infra, IX. 16. 
 
 88. The adultery of a wife after a divorce 
 and allowance of alimony payable in instal- 
 ments will not of itself require a reduction 
 by the court of the amount of such allow- 
 ance, where it is not shown that the pay- 
 ments are to be made out of the earnings of 
 the husband, or that the property did not 
 come from her originally or was not the re- 
 sult of their joint accumulations, especially 
 where the husband had failed to pay prior 
 instalments, and it is not shown that her 
 wrongdoing may not have been the result 
 of his failure to furnish such support. Cole 
 v. Cole, 142 111. 19, 31 N. E. 109, 19-: 811 
 
 89. The subsequent adultery of the wife 
 will release the husband from the payment 
 of alimony awarded her in a decree of di- 
 vorce a mensa et thoro. Cariens v. Cariens, 
 50 W. Va. 113, 40 S. E. 335, 55: 930 
 Effect of wife's remarriage. 
 
 For Editorial Notes, see infra, IX. 20. 
 
 90. The remarriage of a divorced woman 
 to one whose ability to support her is un- 
 questionable will prevent the further appli- 
 cation for her benefit aa alimony of the in- 
 come of a testamentary trust instituted 
 for the support of the husband from whom 
 she was divorced. Wetmore v. Wetmore, 
 162 N. Y. 503, 56 N. E. 997, 48: 666 
 Effect of husband's remarriage. 
 
 For Editorial Notes, see infra, IX. 20. 
 
 91. One cannot relieve himself from the 
 payment of alimony according to the provi- 
 sions of a divorce decree by the obligations 
 imposed upon him by a second marriage. 
 State ex rel. Brown v. Brown, 31 Wash. 
 397, 72 Pac. 86, 62: 974 
 Effect of husband's death. 
 
 92. The rule at common law, that the 
 death of the husband put an end to the pay- 
 ment of alimony, applied only in divorces a 
 mensa et thoro, which operated as mere 
 temporary separations, leaving all the other 
 marital rights and obligations in full force, 
 the marriage continuing to exist until it 
 was dissolved by death. Storey v. Storey, 
 125 111. 608, 18 N. E. 329, 1: 320 
 
 93. The continuance of alimony after the 
 death of the husband while the wife remains 
 unmarried is strongly favored where a first 
 wife, after twenty years, during which one 
 child was born and by joint efforts a large 
 fortune was accumulated, secures a divorce 
 for her husband's misconduct. Id. 
 
 94. Where, as under the statute of Illinois, 
 alimony is awarded upon a decree of abso- 
 lute divorce, the right of the divorced wife 
 to have the payment thereof continued out 
 
 of the estate of the husband after his de- 
 cease will depend upon the nature and terms 
 of the decree. i<j. 
 
 95. Upon a consent decree for alimony to 
 the wife, "so long as she shall remain sole 
 and unmarried/' where the husband gives a 
 bond as security therefor, to which he binds 
 himself, his "heirs, executors, and adminis- 
 trators," the payment will continue after 
 his death, out of his estate, so long as she 
 remains alive and unmarried. Id. 
 Husband's insolvency. 
 
 96. A decree granting alimony is not a 
 debt "founded on a contract," within the 
 meaning of a statute providing for relief 
 from such debts by a discharge in insolvency. 
 Noyes v. Hubbard, 64 Vt. 302, 23 Atl. 727, 
 
 15: 394 
 At what time. 
 
 97. Power of a court to alter an allow- 
 ance of alimony "from time to time," under 
 111. Rev. Stat. 1891, chap. 40, 18, may be 
 exercised after the term at which the decree 
 for alimony was rendered. Cole v. Cole, 142 
 111. 19, 31 N. E. 109, 19: 811 
 But as to case not under such statute, see 
 contra. Sampson v. Sampson, 16 R. I. 456, 
 16 Atl. 711, 3: 349 
 
 VI. Other Property Rights. 
 
 Jurisdiction Over, see Courts, 55, 60. 
 
 Effect of Divorce on Husband's Right of 
 
 Curtesy, see Curtesy, 11-13. 
 Effect on Right to Inherit, see Descent and 
 
 Distribution, 52, 53. 
 Effect on Dower, see Dower, 45-55. 
 Effect on Homestead, see Homestead, 34. 
 Effect on Wife's Right to Life Insurance, see 
 
 Insurance, 1182, 1184, 1234. 
 Estoppel as to, see Estoppel, 283. 
 Conclusiveness of Former Judgment as to, 
 
 see Judgment, 201, 202. 
 Rights Under Decree in Other State, see 
 
 Judgment, 373. 
 See also infra, 118. 
 For Editorial Notes, see infra, IX. 22. 
 
 98. A husband who, pursuant to a decree 
 of divorce adjusting property rights, pays 
 money to his former wife within six months 
 from the date of the judgment, cannot re- 
 claim it from the administrator of her estate 
 should she die within six months from the 
 date of the decree with the money in her 
 possession, since the title to the money 
 passes absolutely to her, although, by stat- 
 ute, the decree does not become absolute 
 until the end of six months. Durland v. 
 Durland, 67 Kan. 734, 74 Pac. 274, 63: 959 
 
 99. In a divorce suit, the real property 
 which conies to the wife as a result of the 
 divorce is not the subject -matter of the liti- 
 gation. The court has no jurisdiction to af- 
 fect or devest the title of the husband to 
 lands owned by him, or to decree one third 
 of them to the wife, independent of a de- 
 cree for divorce. Nor has the plaintiff any 
 title upon which to base a suit to recover 
 any portion of the same, except as it conies
 
 DIVORCE AND SEPARATION, VII. 
 
 1047 
 
 by force of the statute upon a decree for a 
 divorce. Houston v. Timmerman, 17 Or. 490, 
 21 Pac. 1037, 4: 716 
 
 100. An equitable division of property 
 jointly accumulated by persons living to- 
 gether as husband and wife can be made by 
 the court in an action for divorce wherein 
 the marriage is found to be void because of 
 a prior marriage of one of the parties, and a 
 decree of nullity is entered, although the 
 court has no authority to grant alimony as 
 such. Werner v. Werner, 59 Kan. 399, 53 
 Pac. 127, 41: 349 
 
 101. A tenancy by entirety is changed by 
 an absolute divorce- into a tenancy in com- 
 mon without survivorship. Stelz v. Schreck, 
 128 N. Y. 263, 28 N. E. 510, , 13:325 
 
 102. The title of a wife, or of a wife and 
 children, to real property which is vested 
 during the marriage by the husband's free 
 act, is not affected, either at law or in equi- 
 ty, by a subsequent divorce based on her 
 adultery. Kinzy v. Kinzy, 115 Mo. 496, 22 
 S. W. 497, 20: 222 
 
 103. When a divorce is granted to a wife 
 for causes other than adultery, if the ac- 
 complishment of her support renders it nec- 
 essary, the court may decree to her the title 
 of either real or personal property belonging 
 to her husband, under Nev. Gen. Stat. 496, 
 authorizing property, in certain cases, to be 
 "set apart" for the support of the wife un- 
 der such circumstances. Powell v. Campbell. 
 20 Nev. 232, 20 Pac. 156, 2: 615 
 
 104. A wife to whom her husband has con- 
 veyed homestead property by a valid deed 
 prior to the commencement of a divorce suit 
 must be regarded as "the former owner," 
 under Cal. Civ. Code, 146, subd. 4, which 
 provides that on a divorce a homestead 
 which has been selected from the separate 
 property of either party shall be assigned 
 to the former owner subject to the power 
 of the court to assign it for a limited period 
 to the innocent partv. Burkett v. Burkett, 
 78 Cal. 310, 20 Pac. 715, 3: 781 
 
 105. Temporary alimony may be granted 
 pendente lite, but the title of the real estate 
 of the defendant remains intact, and cannot 
 be devested during the pendency of the liti- 
 gation, but only when a decree has been 
 rendered that the marriage is dissolved. 
 Houston v. Timmerman, 17 Or. 499, 21 Pac. 
 1037, 4: 716 
 
 106. It is "whenever a marriage shall be 
 declared dissolved" that the Oregon statute 
 operates, not before or pendente lite; and 
 the court is then authorized, and it be- 
 comes its "duty ... to enter a decree" 
 for the undivided one-third part in fee of 
 the whole of the real estate "owned by the 
 defendant at the time of such decree" for 
 a divorce. Id. 
 
 VII. Custody and Support of Children. 
 
 Mother's Right of Action for Death of Child, 
 see Death, 25. 
 
 Domicil of Child, see Domicil, 7. 
 
 Jurisdiction to Render Judgment as to Cus- 
 tody, see Judgment, 37. 
 
 Pleading as to, see Pleading, 164. 
 
 See also supra, 69; infra, 125. 
 
 For Editorial Notes, see infra, IX. 15. 
 
 107. The father's duty to maintain a child 
 after divorce, where there is no decree of the 
 court relating thereto, remains as before, 
 especially if the custody of the child is not 
 taken from him. Re Zilley's Estate, 98 Wis. 
 428, 74 N. W. 126, 40: 579 
 Father's liability for support of child in 
 
 custody of mother. 
 
 108. The duty of supporting a child which, 
 by divorce decree, is given to the care and 
 custody of the mother, is still left to the 
 father, if the decree makes no provision on 
 that subject. Keller v. St. Louis, 152 Mo. 
 596, 54 S. W. 438, 47:391 
 
 109. A divorced wife can maintain an ac- 
 tion against her former husband for thg 
 maintenance of a minor child, when the 
 father is found unfit to have the custody of 
 the child and this has been awarded to her. 
 Gibson v. Gibson, 18 Wash. 489, 51 Pac. 1041, 
 
 40: 587 
 
 110. A woman who has been given the 
 custody of minor children on obtaining a 
 divorce cannot maintain an action at law 
 against the estate of her deceased husband 
 for their board. Brown v. Smith, 19 R. I. 
 319, 33 Atl. 466, 30: 680 
 
 111. An order that the father pay for the 
 support of minor children awarded to the 
 custody of the mother without any provi- 
 sion for their maintenance, by a decree of 
 divorce, may be made by a petition in that 
 case long after the decree has become final 
 and the mother has remarried. McKay v. 
 San Francisco Super. Ct. 120 Cal. 143, 52 Pac. 
 147, 40: 585 
 
 112. A woman cannot recover from her 
 former husband for necessaries furnished 
 their children, of whom she was given the 
 custody in a decree of divorce based on her 
 fault, without any order respecting their 
 maintenance, unless he has promised to pay 
 for such necessaries or requested that they 
 be furnished. Fulton v. Fulton, 52 Ohio St. 
 229, 39 N. E. 729, 29: 678 
 
 113. An allowance to a wife for the sup- 
 port of minor children pending a divorce suit 
 cannot be allowed where no order is made 
 as to their custody, and the father wishes 
 to keep them at his home where he is ready 
 to provide for them suitably. Harding v. 
 Harding, 144 111. 588, 32 N. E. 206, 
 
 21: 310 
 
 114. Recovery for the support of a minor 
 son surreptitiously taken from the father 
 by the mother after divorce, without any 
 decree as to the custody of the child, when 
 he continues to live with the mother after 
 her remarriage, cannot be had by her hus- 
 band from the father merely because he has 
 permitted the child to remain with them 
 without an agreement or demand for com- 
 pensation to them. Foss v. Hartwell. 168 
 Mass. 66, 46 N. E. 411, 37: 589 
 
 115. A promise of the father to pay the 
 mother for maintaining their boy after he 
 has reached the age when the father was en- 
 titled to have him, under a decree of divorce
 
 1048 
 
 DIVORCE AND SEPARATION, VIII a, b. 
 
 granted for the father's fault, will be im- 
 plied, although "he has tried to get the cus- 
 tody of the boy and has told the mother 
 that unless he could get it he would not pay 
 for the boy's keeping, but she would not 
 consent to surrender him. Re Zilley's Es- 
 tate, 98 Wis; 428, 74 N. W. 126, 40: 579 
 Child born after divorce. 
 
 116. An adjudication settling the rights of 
 parties as they exist at the time of divorce, 
 and giving alimony to the wife, does not 
 affect their rights so far as concerns the 
 custody or support of a child then unborn. 
 Ramsey v. Ramsey, 121 Ind. 215, 23 N. E. 69, 
 
 6: 682 
 
 117. A divorced wife who voluntarily re- 
 tains the custody of a child born after the 
 divorce was granted, and maintains and 
 supports the child without any request from 
 the father, or any refusal on his part to 
 support the child, cannot maintain an action 
 against him to recover compensation for 
 such support. Id. 
 Change of decree as to custody. 
 
 118. Under a statute permitting changes 
 in divorce decrees in respect to disposal of 
 children or distribution of property, such 
 changes can only be made in the action in 
 which the divorce is granted. Karren v. Kar- 
 ren, 25 Utah, 87, 69 Pac. 465, 60: 294 
 
 110. A decree fixing the custody of a child 
 upon decree in a divorce suit is final on the 
 conditions then existing, and should not be 
 changed afterwards, unless on conditions al- 
 tered since the decree, or on material facts 
 existing but then unknown, and for the wel- 
 fare of the child. Cariens v. Cariens, 50 W. 
 Va. 113, 40 S. E. 335, 55: 930 
 
 VIH. Agreements for Support and Mainte- 
 nance. 
 
 a. In General. 
 
 Effect of, on Alimony in Case of Subsequent 
 
 Divorce, see supra, 77, 78, 87. 
 Effect on Right to Inherit, see Descent and 
 
 Distribution, 54, 55. 
 Effect of, on Dower, see Dower, 45-48. 
 Return of Money Paid on, as Prerequisite to 
 
 Suit for Dower Right, see Action or 
 
 Suit, 28. 
 Trustee's Right to Maintain Action on 
 
 Agreement, see Parties, 47. 
 For Editorial Notes, see infra, IX. 7. 
 
 120. A man who, in contemplation of a 
 separation from his wife, entered into an 
 agreement by which a certain amount was 
 placed in trust for her support, which, under 
 the agreement, was all that she was to be 
 entitled to, cannot maintain through the 
 trustee a bill in equity to enjoin her from 
 prosecuting an action in the probate court 
 for separate support, where he will be able 
 to avail himself as fully of his agreement 
 in that court as he could in a court of equity. 
 Bailey v. Dillon, 186 Mass. 244, 71 N. E. 
 538, 66: 427 
 
 Enforcement of. 
 
 Conflict of Laws as to, see Conflict of Laws, 
 144, 145. 
 
 121. Contracts between husband and wife 
 for separate support, which are formal 
 enough to be enforced in equity before di- 
 vorce, may be enforced at law after divorce. 
 Carey v. Mackey, 82 Me. 516, 20 Atl. 84, 
 
 9: 113 
 
 Effect of subsequent divorce. 
 See also supra, 78; infra, 125. 
 For Editorial Notes, see infra, IX. 1. 
 
 122. The provision for an annual payment 
 of money for the maintenance of the wife, 
 in an agreement for separation, is not af- 
 fected by a subsequent decree of divorce in 
 her favor, which makes no provision for ali- 
 mony. Clark v. Fosdick, 118 N. Y. 7, 23 N. 
 E. 136, 6: 132 
 
 123. A decree of divorce which is silent 
 upon the subject does not, of its own force, 
 terminate a prior agreement between the 
 parties for a separate support. Carey v. 
 Mackey, 82 Me. 516, 20 Atl. 84, 9: 113 
 Galusha v. Galusha, 116 N. Y. 635, 22 N. E. 
 1114, 6: 487 
 Rescission of. 
 
 124. A wife who executed articles of sep- 
 aration between herself and her husband un- 
 der menace is entitled to have them rescind- 
 ed, and to a judgment annulling and setting 
 them aside. Bueter v. Bueter, 1 S. D. 94, 
 45 N. W. 208, 8: 562 
 As to support of child; termination of. 
 
 125. An agreement to provide for the best 
 interest^ of a child, made by parents who 
 have separated and are to live in different 
 jurisdictions, by which the husband agreea 
 to pay certain sums for the maintenance 
 of the child and a certain allowance of ali- 
 mony to the wife, with a provision that a 
 divorce or second marriage of either party 
 shall terminate the agreement, is termi- 
 nated and mutually abandoned when the hus- 
 band obtains judgment for absolute divorce 
 in one state, and the wife obtains a limited 
 divorce in another state. Atherton v. Ath- 
 erton, 155 N. Y. 129, 49 N. E. 933, 40: 291 
 
 b. Validity of. 
 
 126. A man and wife cannot make a valid 
 contract for a separation. Foote v. Nicker- 
 son, 70 N. H. 496, 48 Atl. 1088, 54: 554 
 
 127. The statutes extending the power of 
 husband and wife to contract as to property 
 matters gives them no authority to enter in- 
 to an agreement renouncing marital rights. 
 
 Id. 
 
 128. A contract by which a husband agrees 
 to pay certain moneys to his wife in dis- 
 charge of his obligation to support her is not 
 against public policy, when made, not for th 
 purpose of a voluntary separation, but after 
 a separation has actually occurred on ac- 
 count of the misconduct of one of the par- 
 ties which justified it. Henderson v. Hen- 
 derson, 37 Or. 141, 60 Pac. 597, 48: 766 
 
 129. An agreement between a husband and 
 wife wno have separated, or who are in con- 
 templation of an immediate separation, for 
 a separate support for the wife, is valid, at 
 least where there is good cause for the sep- 
 aration and the contract therefor dees not
 
 DIVORCE AND SEPARATION, IX. (Ed. Notes.) 
 
 1049 
 
 offend public policy. Carey v. Mackey, 82 
 Me. 516, 20 Atl. 84, 9: 113 
 
 , 130. A bond by a wife to her husband, 
 with surety, to secure the husband against 
 claims for her future support, executed while 
 living apart and on settlement of a suit for 
 separate maintenance, is not void as against 
 public policy. Winn v. Sanford, 148 Mass. 
 39, 18 N. E. 677, 1: 512 
 
 131. If covenants for separation and 
 touching property rights occur in the same 
 agreement between husband and wife, the 
 legal part of the agreement touching the 
 property rights will be upheld if the prom- 
 ises are separate and the consideration is 
 divisible; but if the consideration is entire 
 the whole must fail. Foote v. Nic'kerson, 70 
 N. H. 496, 48 Atl. 1088, 54: 554 
 Through medium of trustee. 
 
 132. A valid agreement for an immediate 
 separation between husband and wife, and 
 for a separate allowance for her support, 
 may be made through the medium of a trus- 
 tee. Clark v. Fosdick, 118 N. Y. 7, 23 N. E. 
 136, 6: 132 
 
 133. A husband and wife may, in contem- 
 plation of a separation, enter into an agree- 
 ment, through the intervention of a trustee, 
 as to the wife's support, which, during the 
 continuance of the separation, the husband 
 may have specifically enforced if it is fair 
 and reasonable and free from fraud and con- 
 cealment. Bailey v. Dillon, 186 Mass. 244, 
 71 N. E. 538, 66:427 
 To aid divorce. 
 
 134. An agreement made by a man on the 
 day after obtaining a decree of divorce, to 
 pay his former wife a monthly sum during 
 her life if she will not apply for a new trial, 
 la against public policy and void as tending 
 to promote and facilitate a divorce. Blank 
 v. Nohl, 112 Mo. 159, 20 S. W. 477, 18: 350 
 
 135. A contract for a valuable considera- 
 tion not to apply for a new trial, made by 
 one against whom a decree of divorce has 
 been entered after a trial at which she whol- 
 ly abandoned the position assumed in her 
 pleadings and made no defense, is, on its 
 face, collusive and a fraud on the law. Id. 
 
 IX. Editorial Notes. 
 
 As to Annulment of Marriage, see Marriage, 
 V. 7. 
 
 As to Separation Agreement, see Husband 
 and Wife, V. 17. . 
 
 As to Remarriage after Divorce, see Mar- 
 riage, V. 5. 
 
 a. In General. 
 
 i. Generally. 
 
 Collusive agreement in aid of divorce pro- 
 ceedings. 4: 313.* 
 
 Maxim raising implied exception in statute 
 as to divorce. 25: 565. 
 
 Validity of legislative divorce. 18: 95. 
 
 Pleadings and proof in action on ground of 
 drunkenness. 34: 452. 
 
 Actions on behalf of insane persons. 34: 
 166. 
 
 Effect of divorce on articles of separation. 
 
 6: 488.* 
 
 2. Compromise. 
 
 Validity of contract between husband and 
 wife to compromise pend- 
 ing or contemplated di- 
 vorce suit. 60: 406. 
 
 When the agreement is that the parties 
 shall live separate. 60: 
 407. 
 
 Where the agreement is that the par- 
 ties shall resume marital 
 relations. 60: 409. 
 
 When specific performance will be de- 
 creed. 60: 412. 
 
 When inadequate as against creditors 
 of insolvent husband. 60: 
 413. 
 
 English decisions on application to rein- 
 state divorce suit. 60: 413. 
 Necessity of third party. 60:415. 
 
 Third party unnecessary. 60: 415. 
 Third party necessary. 60: 416. 
 Third party, but necessity for. not 
 
 stated. 60: 417. 
 
 Contract held valid without third 
 party; but absence of, not 
 mentioned. 60: 417. 
 Agreement without third party 
 void; but not for that rea- 
 son. 60: 417. 
 
 Third party to contract; but con- 
 tract void for other rea- 
 son. 60:417. 
 
 Cases in which it does not appear 
 whether there was, or was 
 not, a third party. 60: 
 417. 
 
 Other cases. 60: 417. 
 Conclusion. 60: 418. 
 
 b. Jurisdiction. 
 
 3. Generally. 
 
 Of chancery to decree nullity or dissolution 
 
 of marriage. 25: 800. 
 
 Suits for same cause in different jurisdic- 
 tions. 59: 187. 
 Injunction against divorce suit in other 
 
 state. 21: 75. 
 
 Conclusiveness of judgment of divorce under 
 
 conflict of laws. 11: 444.* 
 
 4. Of person or res; constructive service. 
 
 Validity of decree of divorce obtained on 
 
 publication or service out 
 
 of state where defendant 
 
 did not appear, generally. 
 
 19: 814. 
 
 When defendant confined in prison or 
 
 asylum. 19: 816. 
 
 When defendant a resident of state 
 where decree rendered. 
 59: 162. 
 Domicil of wife as defendant. 16: 
 
 497; 59: 163. 
 
 When defendant a nonresident. 59: 165. 
 Validity and effect on statutes, of 
 decree in state where ren- 
 dered. 59: 165. 
 
 Validity, and effect on status, of 
 decree in other states. 
 59: 167.
 
 1050 
 
 DIVORCE AND SEPARATION, IX. (Ed. Notes.) 
 
 Opening, setting aside, and vacating de- 
 cree obtained by publica- 
 tion. 19: 817. 
 Collateral attack in same state on de- 
 cree rendered on publica- 
 tion. 19: 819. 
 English cases. 19: 819. 
 
 Dispensing with personal service of 
 
 citation in English courts. 
 
 19: 819. 
 
 As to the return on the citation. 
 
 19: 820. 
 
 As to jurisdiction on publication 
 service where marriage 
 and domicil of the husband 
 is abroad. 19 : 820. 
 As to annulling marriage on publi- 
 cation where the defend- 
 ant is absent from the 
 country. 19: 820. 
 As to the effect in England of a 
 divorce abroad, on publi- 
 cation service. 19: 821. 
 Where the respondent is impris- 
 oned. 19: 821. 
 5. Of subject-matter. 
 Domicil as basis of jurisdiction. 59: 142. 
 General rule. 59: 142. 
 When neither party domiciled or per- 
 manently residing at fo- 
 rum. 59:143. 
 Domicil of wife for purpose of bringing 
 
 suit. 16: 497;* 59: 146. 
 Domicil or residence of defendant as 
 condition of relief on cross 
 bill. 59: 149. 
 
 Place of marriage and of original matri- 
 monial domicil. 59: 151. 
 Place of marital offense. 59: 154. 
 Time of marital offense relatively to acqui- 
 sition of domicil as forum. 
 59: 155. 
 
 6. Effect of appearance by nonresident. 
 Appearance, generally. 23: 287. 
 Fraud and collusion.' 23: 288. 
 6 T /2. Impeaching decree granted in other 
 
 state. 
 
 On jurisdictional facts. 59: 183. 
 On the merits; fraud. 59: 186. 
 
 c. Ground; defenses. 
 
 7. Grounds, generally. 
 
 See also infra, IX. 9-11. 
 
 What law determines the right to a divorce. 
 59: 141. 
 
 Constitutionality of retroactive statute cre- 
 ating new grounds. 52: 
 937. 
 
 Morphinism as. 39: 264. 
 
 Refusal of marital intercourse as. 14: 685. 
 
 Cruelty as. 6: 187.* 
 
 Sufficiency of reasonable apprehension of in- 
 jury as. 6: 187. 
 
 Antenuptial pregnancy or unchastity as. 
 18: 375. 
 
 On ground of desertion. 9: 696.* 
 
 8. Defenses, generally. 
 
 See also infra. IX. 9-11. 
 
 Condonation. 6: 548;* 9: 696.* 
 
 Connivance. 12: 524.* 
 
 Articles of separation as a bar to divorce. 
 6: 487.* 
 
 9. Effect of conviction and sentence upon 
 
 marriage relation. 
 In general. 31: 515. 
 Necessity of a conviction. 31 : 518. 
 Effect of an appeal from conviction. 31 : 518. 
 Effect of commutation of the sentence or of 
 
 a pardon. 31: 519. 
 
 Conviction in another state. 31: 519. 
 Retroactive effect of statute. 31 : 520. 
 Allegation of infamous crime. 31 : 520. 
 Where crime is prior to marriage. 31: 520. 
 Conviction as desertion. 31 : 520. 
 Classed with cruelty. 31: 521. 
 Conviction as a bar to divorce by the party 
 
 convicted. 31: 521. 
 
 10. Drunkenness as affecting divorce. 
 Drunkenness as a ground for divorce. 34: 
 
 449. 
 
 Provisions for 34: 449. 
 What constitutes drunkenness. 34: 449. 
 Degree of drunkenness authorizing di- 
 vorce. 34: 450. 
 Pleading^ and proof. 34: 452. 
 Defenses. 34: 453. 
 Incidents and effects. 34: 454. 
 Drunkenness as affecting cruel and inhuman 
 
 treatment. 34: 454. 
 Drunkenness as cruelty. 34: 454. 
 Drunkenness connected with cruelty. 
 
 34: 454. 
 Drunkenness as evidence of cruelty. 
 
 34: 457. 
 
 Drunkenness as affecting desertion. 34: 457. 
 Drunkenness as affecting validity of mar- 
 riage. 34: 87. 
 
 n. Divorce when husband or wife be- 
 comes insane. 
 
 Insanity as a ground for divorce. 34: 161. 
 Insanity as affecting adultery. 34: 162. 
 As a ground for divorce. 34: 162. 
 As a defense to a claim for alimony. 
 
 34: 164. 
 
 Insanity as affecting abandonment and fail- 
 ure to support. 34: 164. 
 Insanity as affecting cruelty. 34 : 164. 
 The defense. 34:166. 
 
 Actions on behalf of insane persons. 34: 
 166. 
 
 d. Attack upon decree. 
 
 12. Generally. 
 
 Right of third person to have decree of di- 
 vorce set aside. 54: 758. 
 13. Impeaching decree granted in other 
 
 state. 
 
 On jurisdictional facts. 59: 183. 
 On the merits; fraud. 59: 186. 
 14. By party obtaining or consenting. 
 Direct attack by party obtaining it. 60: 
 
 294. 
 
 In general. 60: 294. 
 Attempt by wife to vacate decree ob- 
 tained in her name with- 
 out her consent. 60 : 296. 
 Application by both parties to set aside de- 
 cree. 60: 296. 
 Direct attack by party who has consented 
 to, or colluded in, its pro- 
 curement. 60: 296. 
 Consent. 60: 296. 
 Collusion. 60: 297.
 
 DIVORCE AND SEPARATION., IX. (Ed. Notes.) DOCKING. 
 
 1051 
 
 Collateral attack. 60: 301. 
 
 By party obtaining. 60: 301. 
 By party who has consented to, or col- 
 luded in, its procurement. 
 60: 305. 
 14^2. After death of one or both of 'the 
 
 parties. 
 Attack by surviving party. 57: 583. 
 
 In direct proceeding to set aside or va- 
 cate decree. 57: 583. 
 Appeal. 57: 583. 
 Motion or petition filed in the 
 
 original cause. 57: 584. 
 Writ of error. 57 : 587. 
 New suit. 57: 588. 
 In collateral proceeding. 57: 593. 
 Attack by stranger to the decree. 57: 599. 
 In direct proceeding. 57: 599. 
 In collateral proceeding. 57: 600. 
 Death of one party pending appeal. 57 : 603. 
 
 e. Custody and support of children. 
 
 15. Generally. 
 
 As to Custody and Support of Children, Gen- 
 erally, see Infants, IV. 
 3. 
 
 Support of children after divorce. 6: 682.* 
 
 Removal of child from jurisdiction of court 
 during divorce proceed- 
 ings. 58: 939. 
 
 Custody of children when interstate or in- 
 ternational elements in- 
 volved. 59: 177. 
 
 f. Alimony. 
 
 1 6. Generally. 
 
 Allowance of. 1: 320:* 3: 349. 
 
 Enforcing award of, in another state. 59: 
 178. 
 
 Effect of wife's subsequent adultery upon 
 an allowance of alimony. 
 19: 811. 
 
 Enforcing payment of alimony as imprison- 
 ment for debt. 34:665. 
 
 Judgment for, as a fixed liability for pur- 
 poses of bankruptcy act. 
 54: 369. 
 
 17. Award of, upon constructive service. 
 
 Generally. 16: 234. 
 
 Against resident. 59: 178. 
 
 Against nonresident. 50: 583; 59: 178. 
 
 18. Suit for, after decree of divorce. 
 
 Generally. 21 : 677. 
 
 Limitations and exceptions. 21: 678. 
 
 English cases. 21 : 679. 
 
 After legislative divorce. 21: 679. 
 
 Effect of divorce granted in another state or 
 country. 59: 180. 
 
 19. Allowance to husband from property 
 held by wife. 
 
 Permanent allowance. 34: 110. 
 
 Statutes. 34: 113. 
 
 Alimony pendentc lite. 34: 115. 
 
 English cases. 34: 115. 
 
 20. Effect of second marriage upon obliga- 
 tion to pay. 
 
 Generally. 62: 974. 
 
 Remarriage of husband. 62: 975. 
 
 Remarriage of wife. 62: 975. 
 
 21. Contempt proceedings to compel pay- 
 ment of. 
 
 Doctrine of contempt. 24: 433. 
 Constitutionality of contempt. 24: 434. 
 When contempt proceedings may be resorted 
 
 to. 24: 435. 
 
 Evidence in support of. 24: 436. 
 Necessity of service of order. 24: 436. 
 Necessity of demand of payment. 24: 437. 
 Necessity of notice of application. 24: 437. 
 Right of defendant to be heard. 24: 437. 
 Excuses for nonpayment. 24: 437. 
 
 Inability to pay. 24: 437. 
 Commitment refused. 24: 438. 
 Application for relief. 24: 438. 
 Power of court to inquire into. 24: 439. 
 State statutes and decisions thereunder. 
 
 24: 439. 
 English decisions. 24: 442. 
 
 g. Effect on property rights. 
 
 22. Generally. 
 
 Effect of absolute divorce. 11: 790.* 
 
 Divorce as affecting wife's right to insurance 
 
 upon her husband's life. 
 
 50: 552. 
 Effect of divorce to revoke gift by will. 69: 
 
 940. 
 Effect of Us pendens in divorce suit*. 2: 
 
 615.* 
 Effect of divorce as a bar to claim for dower. 
 
 11: 790.* 
 
 Effect of divorce on property held by the en- 
 tireties. 30: 333. 
 
 Effect of divorce on homestead. 23: 239. 
 Effect of divorce upon conveyance by hua- 
 
 band to wife. 69: 379. 
 
 Effect of divorce in another state upon prop- 
 erty rights, generally. 59: 
 
 183. 
 Effect upon dower of divorce obtained by 
 
 husband in another state. 
 
 59: 181. 
 Effect upon dower of divorce obtained by 
 
 wife in another state. 
 
 59: 182. 
 
 DOCKET. 
 
 Change from Law to Equity, see Equity, II. 
 
 DOCKET FEE. 
 Right of Clerk to, see Clerks, 7, 8. 
 
 DOCKING. 
 
 As Cruelty, see Animals, 69, 70. 
 
 Class Legislation as to, see Constitutional 
 
 Law, 362. 
 Prohibition against, see Constitutional Law, 
 
 776. 
 Police Power as to, see Constitutional Law, 
 
 975.
 
 1052 
 
 DOCKS DOMICIL. 
 
 DOCKS. 
 
 Evidence as to Condition of, see Evidence, 
 
 1947. 
 
 Riparian Rights as to, see Waters, I. c, 4, c. 
 Rights on Opening Canals for Dockage, see 
 
 Waters, 30. 
 See also Harbors; Wharves. 
 
 DOCTRINE. 
 
 Of Religious Society, see Religious So- 
 cieties. 
 
 DOCUMENTARY EVIDENCE. 
 
 As Part of Record on Appeal, see Appeal 
 
 and Error, 177-180. 
 In General, see Evidence, IV.; XH. h; XIII. 
 
 37-45. 
 
 DOCUMENTS. 
 
 Production of, see Discovery and Inspec- 
 tion, 6-12. 
 
 What are, see Discovery and Inspection, 12. 
 
 Notice to Produce, see Evidence, IV. a. 
 
 Presumption from Failure to Produce, see 
 Evidence, 394, 395. 
 
 Editorial Notes. 
 
 Incorporation of extrinsic document into 
 will. 68:353. 
 
 DOGS. 
 
 Loss of Right to Recover for Injury to, see 
 Action or Suit, 38. 
 
 Liability for Killing of or Injury to, see 
 Animals, I. b; Railroads, 231-234; Stat- 
 utes, 484; Street Railways, 136-139; 
 Trial, 135, 136. 
 
 Liability for Injuries by, see Animals, I. c. 
 2. 
 
 Property Rights in, see Animals, 3-5. 
 
 Cruelty to, see Animals, 66. 
 
 Loss of, on Train, see Carriers, 683. 
 
 Delegation of Power as to, see Constitu- 
 tional Law, 172. 
 
 Privilege of Humane Society to Keep, 
 without License, see Constitutional. 
 Law, 470. 
 
 Due Process as to Killing, see Constitution- 
 al Law, 911-913. 
 
 Judicial Notice as to, see Evidence, 129, 
 167. 
 
 Opinion as to Value of, see Evidence, 1335, 
 1336. 
 
 Evidence of Pedigree of, see Evidence, 1476. 
 
 Ordinance for Muzzling, see Municipal Cor- 
 porations, 67. 
 
 Prohibition against Running at Large, see 
 Municipal Corporations, 161. 162. 
 
 City's Liability for Reckless Attempt to 
 Kill, see Municipal Corporations, 478, 
 479. 
 
 Proximate Cause of Injury by, see Proxi- 
 mate Cause, 130, 131. 
 
 Tax on, see Animals, 64; Public Moneys, 
 51; Taxes, 94. 
 
 See also Bloodhounds. 
 
 For Editorial Notes, see Animals, in. 
 
 DOMESTIC RELATIONS. 
 
 In General, see Various Particular Sub- 
 jects, such as Apprentice; Guardian and 
 Ward; Husband and Wife; Infants; 
 Parent and Child. 
 
 Conflict of Laws as to, see Conflict of 
 Laws, I. c. 
 
 DOMICIL. 
 
 For Purpose of Attachment, see Attach- 
 ment, 12. 
 
 For Purposes of Divorce Suit, see Divorce 
 and Separation, II. b. 
 
 Residence for Purpose of Election, see Elec- 
 tions, I. a. 
 
 Place of, for Purposes of Eligibility to Ad- 
 minister Estate, see Executors and Ad- 
 ministrators, 10. 
 
 For Purpose of Homestead, see Homestead, 
 41. 
 
 Of Married Woman, see Courts, 344c, 344d. 
 
 Law Governing Wife's Right to Acquire 
 Separate Domicil, see Conflict of Laws, 
 140. 
 
 Of Infant, see Conflict of Laws, 304; Guar- 
 dian and Ward, 2. 
 
 Power of Infant to Change, see Infants, 52. 
 
 Of Senator, see Limitation of Actions, 154. 
 
 For Purpose of Serving Writ, see Writ and 
 Process, 12. 
 
 1. A change of residence, clearly mani- 
 fested as matter of law by acts, cannot be 
 defeated by a subsequent declaration of the 
 person that he did not intend his acts to 
 have that effect. (Merrimon, J., dissents.) 
 Lee v. Moseley, 101 N. C. 311, 7 S. E. 874, 
 
 2: 106 
 
 2. The temporary absence from the state 
 of one domiciled there will not be held a 
 change of residence, unless to the factum 
 of residence elsewhere be added the animus 
 manendi; for a domicil, having once been 
 acquired, continues until a new one is act- 
 ually acquired animo et facto. Watkinson 
 v. Watkinson (N. J. Err. & App.) 68 N. J. 
 Eq. 632, 60 Atl. 931, 69: 397 
 For jurisdictional purposes. 
 
 3. Where a man of mental capacity to 
 change his domicil in good faith removed 
 his residence to another state while pro- 
 ceedings for the appointment of a guardian 
 over him were pending, and continued his 
 residence until death in the state to which 
 he removed, which residence was assented 
 to by a guardian appointed in the pending
 
 DONATION DOUBLE COMMISSIONS. 
 
 1053 
 
 proceedings after his removal, he is such a 
 resident of the latter state that its courts 
 have original jurisdiction of the probate of 
 his will. Talbot v. Chamberlain, 149 Mass. 
 57, 20 N. E. 305, 3:254 
 
 4. For jurisdictional purposes a legal 
 domicil once existing continues until an- 
 other is acquired elsewhere. Ayer v. 
 Weeks, 65 N. H. 248, 18 Atl. 1108, 6: 716 
 
 5. Domicil or residence, to give jurisdic- 
 tion to the probate court in insolvency pro- 
 ceedings, is not lost by departure from the 
 state, until another is gained. Id. 
 
 6. Placing her husband in a home for in- 
 curables, with his expenses for life and for 
 burial paid, does not entitle a woman to 
 acquire a separate domicil which will give 
 jurisdiction to a probate court, notwith- 
 standing a statutory provision that in ac- 
 tions for divorce the presumption of law 
 that the domicil of the husband is that of 
 the wife does not apply. Re Wickes, 128 
 Cal. 270, 60 Pac. 867, 49: 138 
 Of child of divorced woman. 
 
 7. When a divorce has been granted to 
 the wife, and unrestricted custody of the 
 minor child of the marriage given her in the 
 decree, her own domicil establishes that of 
 the child. Fox v. Hicks, 81 Minn. 197, 83 
 N. W. 538, 50: 663 
 In prison. 
 
 8. The constitutional provision against 
 gaining a residence while confined in a pub- 
 lic prison applies to a person committed to 
 such prison, even if the commitment was 
 irregular or illegal and was made upon his 
 own application, notwithstanding the fact 
 that he had no family and no home, and 
 made the application for commitment to 
 get a home and work in the prison. Peo- 
 ple v. Cady, 143 N. Y. 100, 37 N. E. 673, 
 
 25: 399 
 Editorial Notes. 
 
 Domicil as fixing the national character. 2: 
 203.* 
 
 How domicil determined. 13: 161.* 
 
 What constitutes domicil; change of. 2: 
 203.* 
 
 Domicil of consul. 45: 587. 
 
 Acquiring residence as a voter while at- 
 tending school or public 
 institution. 23:215. 
 
 Domicil as affecting governing law of matri- 
 monial capacity. 57: 161. 
 
 Domicil as affecting capacity of married 
 woman to contract. 57 : 
 513. 
 
 Domicil as affecting governing law of matri- 
 monial property. 57 : 353. 
 
 Domicil as affecting governing law of chat- 
 tel mortgage. 64: 363, 
 366. 
 
 Domicil as affecting governing law of as- 
 signment for creditors. 
 65: 365. 
 
 Domicil as basis of jurisdiction of divorce. 
 59: '142. 
 
 Domicil of wife for purposes of divorce. 
 16: 497; 59: 146. 
 
 Garnishment, at domicil of debtor, of debt 
 due to nonresident. 67: 
 20P. 
 
 Domicil of decedent as affecting governing 
 law with respect to legiti- 
 macy. 65: 177. 
 
 Xonresidence as affecting right to maintain 
 statutory action for death. 
 54: 934. 
 
 Residence as affecting governing law in ac- 
 tion for death or bodily 
 injury. 56: 218. 
 
 Residence as a qualification of grand juror. 
 28:196. 
 
 Discrimination between resident and non- 
 resident creditors of in- 
 solvent. 65: 354, 368. 
 
 DONATION. 
 
 Recovery Back for Failure of Consideration, 
 
 see Assumpsit, 9. 
 Recovering Back on Removal of Business 
 
 by Donee, see Contracts, 830. 
 Of Property of College, see Colleges, 5. 
 By Counties, see Bonds, 107. 
 Of Public Money, see Public Moneys. 
 For State Institutions, see Taxes, 28. 
 To Private Individual, see Taxes, 78, 79, 86. 
 See also Gift. 
 
 Editorial Notes. 
 
 To corporation of shares of its own stock. 
 
 18:255. 
 Forfeiture of. 13: 698. 
 
 DONGAN CHARTER. 
 
 Grant of Tideways by, see Waters, 146. 
 
 DONKEY ENGINE. 
 
 Negligence of Engineer of, see Proximate 
 Cause, 73. 
 
 DORMANCY. 
 
 Of Judgment, see Creditors' Bill, 8; Judg- 
 ment, 401, 405. 
 
 DORMANT PARTNER. 
 
 Who is, see Judgment, 239. 
 
 As Party in Action, see Parties, 152. 
 
 DORMITORIES. 
 
 Exemption of, from Taxation, see Taxes, 
 
 299, 300. 
 
 *-" 
 
 DOUBLE COMMISSIONS. 
 
 Of Executors, see Executors and Adminis- 
 trators. 182.
 
 1054 
 
 DOUBLE DAMAGES DOWER, I. a. 
 
 DOUBLE DAMAGES. 
 
 Against Justice of the Peace, see Damages, 
 280. 
 
 When Allowable under Pleading, see Plead- 
 ing, 108. 
 
 DOUBLE TAX. 
 
 
 
 By Imposition of License Tax, see License, 
 
 49, 50. 
 
 See also Taxes, 69, 72-75, 155-159, 172, 175, 
 ' 533. 
 
 DOUBTFUL TITLES. 
 
 Specific Enforcement of Contract in Case 
 of, see Specific Performance, I. e, 2. 
 
 DOVES. 
 
 Cruelty in Shooting, see Animals, 67, 68. 
 
 DOWER. 
 
 I. Eight to. 
 
 a. Nature and Extent. 
 
 b. In What Property. 
 
 c. How Barred. 
 
 IT. Rights and Remedies of Widow. 
 HI. Editorial Notes. 
 
 Return of Amount Paid on Separation as 
 Prerequisite to Action to Enforce, see 
 Action or Suit, 28. 
 
 Adverse Possession against, see Adverse 
 Possession, I. e. 
 
 Apportionment of Annuity Given in Lieu 
 of, see Annuities, 5. 
 
 Discrimination against Nonresident Widow, 
 see Constitutional Law, 382. 
 
 As to Descent or Distribution to Widow, 
 see Descent and Distribution, I. e. 
 
 Of Nonresident, see Descent and Distribu- 
 tion, 19. 
 
 Effect of. on Right to Distributive Share, 
 see Descent and Distribution, 46. 
 
 Estoppel against Claiming, see Estoppel, 
 192, 244. 
 
 Evidence in Action for, see Evidence, 891. 
 
 Conveyances in Fraud of Wife's Right of, 
 see Husband and Wife, TI. j, 2; and 
 also infra, HI. f>. 
 
 Considering Release of, in Determining 
 Validity, as atrainst Creditors, of Con- 
 veyance to Wife, see Husband and 
 Wife, 192. 
 
 Modification of Foreclosure Decree as to, 
 see Judgment. 79. 
 
 Pnrfha.or from Doweress as Tenant at 
 Sufferance, see Landlord and Tenant. 
 40. 
 
 Aa Affecting Order of Foreclosure Sale, see 
 
 Mortgage, 184. 
 Application of Payments in Exoneration of, 
 
 see Payment, <6. 
 Allegations as to Release of, see Pleading, 
 
 599. 
 Disregarding Void Release of, see Release, 
 
 1. 
 
 Effect of Dower Right on Specific Perform- 
 ance, see Specific Performance, 90-92. 
 Transfer Tax on, see Taxes, 602. 
 Question for Jury as to, see Trial, 214. 
 Purchaser's Right to Have Dower Set off 
 
 against Purchase Money, see Vendor 
 
 and Purchaser, 19. 
 Election to Take, as Affecting Distribution 
 
 under Will, see Wills, III. i, and also 
 
 infra, III. 7. 
 
 I. Right to. 
 a. Nature and Extent. 
 
 Year's Support to Widow of Nonresident, 
 see Executors and Administrators, 175. 
 For Editorial Notes, see infra, III. 1, 2. 
 
 1. The contingent right of the wife to 
 dower in her husband's real estate is prop- 
 erty, the value of which can be ascertained 
 by reference to mortality tables, in connec- 
 tion with the state of health and constitu- 
 tional vigor of both wife and husband. 
 Mandel v. McClave, 46 Ohio St. 407, 22 N. 
 E. 290, 5: 519 
 Gore v. Townsend, 105 N. C. 228, 11 S. E. 
 
 160, 8: 443 
 
 2. The law at the time of the husband's 
 death governs the wife's right of dower, as 
 her inchoate right is not a vested one. 
 Hatcher v. Buford. 60 Ark.. 169, 29 S. W. 
 641, 27: 507 
 Priorities. 
 
 For Editorial Notes, see infra, III. 2. 
 
 3. Where the purchaser of the equity of 
 redemption in lands is not bound to pay the 
 mortgage debt, but does in fact pay it in 
 aid of his own title and estate, whereby it 
 is discharged, a claim of dower therein by 
 the widow of the mortgagor is subject to 
 a just contribution; and the case is strong- 
 
 r where the technical payment consists 
 in the substitution of a new mortgage in- 
 tended to operate as, and take the place 
 of, the old one in respect to a portion of 
 :he premises. Everson v. McMullen, 113 N. 
 Y. 293, 21 N. E. 52. 4: 118 
 
 4. An inchoate right of dower is not a 
 ien within the meaning of S. C. Gen. Stat. 
 
 170, declaring that "taxes shall be a first 
 ien," and therefore is not made by that 
 
 section subordinate to the lien for taxes, 
 hell v. Duncan. 31 S. C. 547, 10 S. E. 330. 
 
 5: 821 
 
 5. The rights of a surety for purchase 
 money of real estate, who is compelled to 
 pay the same, are, in reference to such os- 
 
 ato. supprior to those of the widow of the 
 lurohaser. ISallow v. Roler, 124 Tnd. 557. 
 24 X. E. 97(i. 0: 481
 
 DOWER, I. b, c. 
 
 b. In What Property. 
 
 In Land Taken by Right of Eminent Do- 
 main, see Eminent Domain, 287. 
 
 In Partnership Real Estate, see Partner- 
 ship, 76, 85. 
 
 For Editorial Notes, see infra, III. 1. 
 
 6. A woman cannot under the New York 
 statutes enforce dower rights in land pur- 
 chased with her husband's money and con- 
 veyed to a third person who has contracted 
 in writing to permit the husband to receive 
 all the benefit of and have full control over 
 the property. Phelps v. Phelps, 143 N. Y. 
 197, 38 N. E. 280, 25: 625 
 
 7. The equitable interest of a purcnaser 
 in land which by his direction is, conveyed 
 to a third person under an invalid naked 
 trust, which by provision of statute "is 
 deemed a direct conveyance" to himself, is 
 subject to the right of dower. Stroup v. 
 Stroup, 140 Ind. 179, 39 N. E. 864. 27: 523 
 
 8. A donor causa mortis remains seised 
 or possessed of the property until death, 
 within the meaning of a statute giving 
 dower in personal property of which he dies 
 seised. Hatcher v. Buford, 60 Ark. 169, 29 
 S. \V. 641, 27: 507 
 
 9. The dower rights of a woman whose 
 husband was seised of an undivided interest 
 in common in a tract of land, which he con- 
 veyed by deed in which she did not join, 
 will, after voluntary partition in kind 
 among the tenants in common, attach to 
 the parcel allotted to her husband's grantee, 
 and will not extend to his former interest 
 in the whole tract. Gaffney v. Jefferies, 
 59 S. C. 565, 38 S. E. 216, 53: 918 
 
 10. A widow is entitled to dower in the 
 excess paid at a foreclosure sale after her 
 husband's death, although the decree of sale 
 was made before he died. Holden v. Dunn, 
 144 111. 413, 33 N. E. 413, 19: 481 
 
 11. The inchoate right of the wife of a 
 partner in the real estate of her husband 
 only attaches to such of the real estate as 
 remains in specie, unconverted, after the 
 partnership is terminated by judgment or 
 agreement, and its affairs completely wound 
 up and ended. Woodward-Holmes Co. v. 
 Nudd, 58 Minn. 236, 59 N. W. 1010, 27: 340 
 
 12. The right of dower extends to a share 
 of the proceeds of mines although not 
 opened until after the husband's death, where 
 they are opened on lands held only for min- 
 ing purposes and available only for the 
 minerals, and the statutes give to the widow 
 the "use during her natural life of one third 
 of all the lands whereof her husband was 
 seised'' during marriage. Seager v. McCabe, 
 92 Mich. 186, 52 N. W. 299, 16: 247 
 
 13. A widow's homestead right in certain 
 premises prevents the seisin of an heir, and 
 therefore excludes any dower right of his 
 widow therein upon his death during the 
 continuance of the homestead right. Dud- 
 ley v. Dudley, 76 Wis. 507, 45 N. W. 602, 
 
 8: 814 
 
 14. Upon full payment of the amount bid 
 for lands at a partition sale, the parties to 
 the partition proceedings stand seised of an 
 estate of inheritance to the use of the pur- 
 
 10.V) 
 
 chaser, of which his wife is dowable under 
 Mo. Rev. Stat. 1879, 2186, although his in- 
 terest therein is sold on execution before he 
 receives his deed, and he never goes into 
 possession of the property. Davis v. Green, 
 102 Mo. 170, 14 S. W. 876, ll : 90 
 
 c. How Barred. 
 
 Consideration te Support Antenuptial Con- 
 tract for Release of Dower, see Con- 
 tracts, 84. 
 
 Effect of Mistake on Release of Dower, see 
 Contracts, 87. 
 
 Burden of Proof as to, see Evidence, 224. 
 
 Effect of Election to Take under Will, see 
 Wills, III. i. 
 
 For Editorial Notes, see infra, III. 3-6. 
 
 By dedication of land to public use. 
 For Editorial Notes, see infra, III. 6. 
 
 15. An inchoate right of dower is de- 
 stroyed by a voluntary conveyance executed 
 by the husband alone, without payment of 
 any consideration, of a right of way to* a 
 railroad company to be used only for rail- 
 road purposes, as this constitutes a dedica- 
 tion of the land to a public use. Venable v. 
 Wabash W. R. Co. 112 Mo. 103, 20 S. W. 
 493, 18: 68 
 By taking lease. 
 
 16. A man entitled to dower in his wife's 
 lands, which has not been assigned, is es- 
 topped, by taking a lease from the owner 
 of the fee, to claim dower in the land so far 
 as it is covered by the lease. Heisen v. 
 Heisen, 145 111. 658, 34 N. E. 597, 21 : 434 
 By conveyance. 
 
 Conveyance or Release by Widow, see infra, 
 
 64-68. 
 See also supra, 15. 
 
 17. On a conveyance in fee simple to a 
 married woman of land purchased by a 
 third person on execution against her hus- 
 band, an inchoate right of dower therein 
 becomes merged in the fee; and, if she con- 
 veys the land, she cannot claim dower there- 
 in after the death of her husband. You- 
 mans v. Wagener, 30 S.' C. 302, 9 S. E. 106. 
 
 3: 447 
 
 18. A widow cannot be compelled to re- 
 lease her dower in lands sold by her hus- 
 band by a contract which she did not 
 sign. Sloan v. Williams, 138 111. 43, 27 N. 
 E. 531. 12: 496 
 
 19. A wife's inchoate right of dower may 
 be released by her husband on his con- 
 veyance of the land, where she has given 
 him a power of attorney under N. Y. Laws 
 1878. chap. 300, authorizing him to convey 
 for her and in her name and as her act, 
 and to sign, seal, execute, acknowledge, 
 and deliver all necessary releases of dower 
 and thirds. Wronkow v. Oakley, 133 N. Y. 
 505. 31 N. E. 521, 16: 209 
 
 20. An actual sale and conveyance, 
 thousrh made for the purpose of defeating 
 the dfower of the vendor's wife, will be up- 
 held against her claim after his death, under 
 a statute giving dower only in lands of 
 which the husband dies seised and pos- 
 sessed; but it is otherwise with a mere 
 colorable sale not intended to be operative
 
 1056 
 
 DOWER, I. c. 
 
 except as a means of dividing the lands 
 among the vendor's children after his death, 
 while he is to remain the real owner dur- 
 ing life. Flowers v. Flowers, 89 Qa. 632, 
 15 S. E. 834, 18: 75 
 
 21. A conveyance by a man of his real 
 estate during the period in which the com- 
 mon-law right of married women to dower 
 was "Suspended barred all claim of his wife 
 thereon, although she did not join in the 
 conveyance. Odom v. Riddick, 104 N. C. 
 515, 10 S. E. 609, 7: 118 
 
 22. A sale by a man of the undivided in- 
 terest which he holds in common in a tract 
 of land, followed by a partition by the 
 tenants in common in kind, will not bar 
 the dower rights of his wife, who did not 
 join in the deed. Gaffney y. Jefferies, 59 
 S. C. 565, 38 S. E. 216, 53: 918 
 
 23. The dower right of a married woman 
 is not barred by a deed signed by herself 
 and a court commissioner conveying her 
 husband's real estate, and to which he is 
 no't a party, under a statute providing for 
 the barring of such right "when a husband 
 and his wife" have signed a writing purport- 
 ing to convey his real estate. Lewis v. 
 Apperson, 103 Va. 624, 49 S. E. 978, 68: 867 
 By mortgage, or foreclosure thereof. 
 
 See also supra, 3, 10; infra, 48; Mortgage, 
 154. 
 
 24. An inchoate right of dower of a wo- 
 man who has joined in a mortgage of her 
 husband's premises can be devested by rea- 
 son of the conditional release in the mort- 
 gage, only by sale under a decree of fore- 
 closure. Roan v. Holmes, 32 Fla. 295, 13 
 So. 339, 21: 180 
 
 25. A release by the wife of her contin- 
 gent right of dower, by joining with her 
 husband in a mortgage to secure his debt, 
 does not inure to the benefit of a stranger 
 to the instrument, either by way of grant 
 or estoppel. Mandel. v. McClave, 46 Ohio 
 St. 407, 22 N. E. 290, 5: 519 
 
 26. The inchoate right of dower of a wife 
 attaches in subordination to a lien accom- 
 panying the seisin of her husband; and 
 therefore the foreclosure of a purchase- 
 money mortgage during coverture destroys 
 such right of dower. Seibert v. Todd, 31 
 S. C. 206.. 9 S. E. 822, 4: 606 
 
 27. A wife's right of dower in the equity 
 of redemption in lands of her husband 
 under a deed of trust in which she joined is 
 not affected by their sale under a subse- 
 quent deed of trust in which she did not 
 join, executed after the making of a void 
 separation aerppment by which she at- 
 tempted to release her dower. Land v. 
 Shipp, 98 Va. 284. 36 S. E. 391, 50: 560 
 By judicial sale in general. 
 
 For Editorial Notes, see infra, III. 6. 
 
 28. The sale under order of the court, of 
 partnership real estate, in an action to dis- 
 solve the partnership and wind up its af- 
 fairs, is mnde free from any inchoate in- 
 terest of the wives of the partners, even if 
 the property sells for more than is neces- 
 sary to pay the firm debts, or if it was not 
 necessary to sell the whole of the property 
 
 for that purpose. Woodward-Holmes Co. 
 v. Nudd, 58 Minn. 236, 59 N. W. 1010, 
 
 27: 340 
 
 29. Where land is sold at judicial sale, 
 free from_ the wife's contingent right of 
 dower, whatever right she may have is in 
 the proceeds of the sale, and must be en- 
 forced, if at all, by distribution of the fund. 
 Mandel v. McClave, 46 Ohio St. 407, 22 N. 
 E. 290, 5: 519 
 
 30. Where land is bona fide sold, in the 
 lifetime of a husband, to satisfy a lien or 
 encumbrance thereon paramount to the 
 wife's contingent right of dower, and such 
 land sells for more than enough to satisfy 
 such paramount claim or claims and the 
 necessary costs amd expenses, such con- 
 tingent right of dower in the surplus re- 
 mains a charge (not assignable in kind) 
 on such land, unless the same is sold free 
 and acquit from such contingency. Bassell 
 v. Caywood, 54 W. Va. 241, 46 S. E. 159, 
 
 66: 880 
 
 By execution sale. 
 See also infra, 74. . 
 For Editorial Notes, see infra. III. 6. 
 
 31. The inchoate contingent interest of 
 a husband or wife in real estate owned by 
 the other, under Minn. Gen. Laws 1889. 
 chap. 46, subc. 3, 64, and commonly called 
 the "dower right," is not devested by a 
 transfer of title from the owner of the 
 property to a purchaser at a sale on exe- 
 cution founded upon a judgment against 
 such owner. Dayton v. Corser, 51 Minn. 
 406, 53 N. W. 717, 18: 80 
 
 32. The existence of a judgment against 
 a man wlhen he pays his bid on lands sold 
 for partition, and the levy of an execution 
 thereunder upon his interest in the lands, 
 will not have the effect, by relation or 
 otherwise, to transfer his title under the 
 deed which he subsequently receives to the 
 execution purchaser, so as to cut off his 
 wife's dower rights. Davis v. Green. 102 
 Mo. 170, 14 S. W. 876, 11: 90 
 
 33. The sale of the real estate of the 
 husband under execution on a judgment 
 against him alone, followed by judicial con- 
 firmation and conveyance, does not ex- 
 tinguish the wife's inchoate right of dower. 
 Butler v. Fitzgerald, 43 Neb. 192, 61 N. W. 
 640, 27:252 
 
 34. A purchaser on a sale under a judg- 
 ment against the debtor acquires the same 
 status, so far as the right of the debtor's 
 wife to dower in the premises sold is con- 
 cerned, as though he were the alienee of 
 the husband by his own voluntary act and 
 deed. Roan v. Holmes, 32 Fla. 295. 13 So. 
 339, 21 : 180 
 By partition sale. 
 
 See also supra, 14, 22. 
 
 For Editorial Notes, see infra, III. 6. 
 
 35. The inchoate right of dower of the 
 wife of a tenant in common is defeated by 
 a sale in partition of the common property, 
 although she is not a party to the proceed- 
 ing. Holley v. Glover, 36" S. C. 404. 15 S. 
 E. 605. 16: 779 
 
 36. A prior sale by a tenant in common 
 of his undivided interest does not prevent
 
 DOWER, I. o. 
 
 the bar of his wile's inchoate right of dower 
 by a subsequent sale in partition. Id 
 
 37. The inchoate right of the wife of a 
 cotenant of real estate is subject to the 
 liability of the husband's estate to be de- 
 vested by a partition sale. Haggerty v 
 Wagner, 148 Ind. 625, 48 N. E. 366, 39: 384 
 
 38. A wife's inchoate interest under Ind. 
 Rev. Stat. 1894, 2652, in real property 
 oiwned by her husband as a tenant in com- 
 mon, may be extinguished by a partition 
 sale notwithstanding the Indiana statutes 
 make no provision for the partition of her 
 inchoate right, and the courts are not au- 
 thorized to direct the payment of any part 
 of the proceeds upon such a sale. Id. 
 
 39. The inchoate right of a wjfe under 
 Ind. Rev. Stat. 1894, 2652, in land held by 
 
 1057 
 
 her husband as a cotenant, may be barred 
 by a partition sale in an action to which she 
 was not a party, notwithstanding Ind. RPV. 
 Stat. 1894, 2660, providing that no sale 
 of the husband's property by virtue of any 
 decree to which &he shall not be a party 
 shall affect her rights, as that section ap- 
 plies only where the wife is a necessary 
 party, which she is not in such action. Id. 
 40. The effect of the deed in a partition 
 sale is not reduced to that merely of co- 
 owners so as to leave the property subject 
 to the inchoate dower rights of their wives, 
 by a statute providing that the convey- 
 ances shall bar all claims of such owners to 
 said lands as effectually as if they them- 
 
 2 N. Y. Rev. Stat. 139, 6, until its nullity 
 was pronounced by a court. Price v Price 
 124 N. Y. 589, 27 N. E. 383, i 2 359 
 
 By agreement for separation or divorce. 
 
 45. A wife is not barred of her dower 
 rights m her husband's property at hia 
 death by having executed a void contract 
 for divorce. Palmer v. Palmer, 26 Utah, 
 31, 72 Pac. 3 ? 61:641 
 
 46. A deed of separation which attempts 
 to dissolve the marital relations of husband 
 and wife, release her dower right directly 
 to him, and place upon her the support of 
 herself and child, contains no element of 
 jointure which will put the wife to an elec- 
 tion, after her husband's death, whether 
 she will claim dower in his lands or retain 
 
 Id. 
 
 . statute providing that a judicial 
 a man's property in a suit to which 
 
 selves had executed the same. 
 
 41. A 
 
 sale of a man's property 
 his wife is not a party shall not prejudice 
 her dower rights has no effect in case of a 
 sale for partition of land in which he has 
 an undivided interest, where another stat- 
 ute designating the persons to be made par- 
 ties to partition proceedings does not recog- 
 nize her as a necessary one. Id. 
 By tax sale. 
 See also supra, 4. 
 For Editorial Notes, see infra, III. 6. 
 
 42. An inchoate right of dower is not de- 
 feated by a tax sale where the lien for 
 taxes attached after the dower right had 
 become fixed by the concurring facts of 
 marriage and the husband's seisin. Shell v. 
 Duncan, 31 S. C. 547, 10 S. E. 330. 5: 821 
 
 43. An inchoate right of dower is not cut 
 
 off by a sale of the 
 taxes, since the tax 
 
 husband's land for 
 proceeding is not 
 
 strictly in rem, although the statutes do 
 not permit any personal judgment for the 
 tax, where they also provide that the wife's 
 interest shall not be affected by any act or 
 laches of the husband, or by any judgment 
 against him. Blevins v. Smith. 104 Mo. 
 583, 16 S. W. 213, 13: 441 
 
 By annulment of marriage. 
 See also supra. 9. 
 
 44. No dower right exists in favor of a 
 woman whose marriage was annulled be- 
 cause the husband had a wife living, al- 
 though she had not been heard from with- 
 in five years before the second marriage, 
 which was contracted by both parties in 
 good faith, and was therefore valid under 
 L.R.'A. Dig. 67. 
 
 the consideration for the separation agree- 
 ment, which in her situation is readily 'con- 
 sumed in supporting herself and child. 
 Land v. Shipp, 98 Va. 284, 36 S. E. 391, 
 
 50: 560 
 
 47. The release by a married woman of 
 all rights in the property of her husband, 
 in consideration of the payment to her of 
 $400, upon the making of a deed of separa- 
 tion between them, which had none of the 
 elements of a jointure, is utterly void, and 
 does not estop her, upon his death, from 
 claiming dower, since her inchoate right 
 of dower is not a part of her statutory 
 separate estate, within the meaning of the 
 married woman's act giving her power to 
 contract with reference to her separate es- 
 tate, id 
 
 48. Payment of a mortgage in which a 
 wife joined, out of the proceeds of a sale 
 of the property under a subsequent mort- 
 gage upon the property executed by the 
 husband alone after their separation, will 
 not restore her right of dower to the whole 
 land, but the claim will be valid only 
 against the equity of redemption, as it was 
 before the payment. Id. 
 
 By adultery or divorce. 
 Law Governing Right to Dower, see Con 
 
 flict of Laws, 143. 
 Effect of Divorce in Other State, see Judg 
 
 ment, 3-70. 
 For Editorial Notes, see infra, m. 4. 
 
 49. A woman who, during her abandon 
 ment of her husband, admits any man or 
 men to her periodically or whenever it is 
 convenient or opportunity is afforded, is 
 living in adultery within the meaning of the 
 Kentucky statutes which forfeit her dower 
 or distributable share in her husband's prop- 
 erty when she voluntarily leaves him and 
 lives in adultery. Goss v. Froroan, 89 Ky. 
 318. 12 S. W. 387, 
 
 50. A forfeiture 
 
 of a widow who had lived in adultery after 
 her husband had abandoned her to live in 
 illicit relations with another woman, and 
 her efforts to win him back had been in- 
 effectual, is not made by S. C. Rev. Stat. 
 1893, 1903, re-enacting the statute of 13 
 Edw. I., chap. 34, commonly called the 
 statute of Westminster. II.. which declares 
 the forfeiture of a wife's right of dower if 
 she "willingly leave her husband and go 
 
 8: 102 
 of the right of dower
 
 1058 
 
 DOWER, II. 
 
 away and continue with her advoutrer." 
 Beaty v. Richardson. 56 S. C. 173, 34 S. E. 
 73, ' 46:517 
 
 51. The "misconduct" of the wife, within 
 the meaning of the New York statute which 
 denies her right to dower in case of divorce 
 for her misconduct, means such misconduct 
 only as will authorize a divorce in that 
 state. Van Cleaf v. Burns, 133 N. Y. 540, 
 30 N. E. 661, 15: 542 
 
 52. The express denial of dower in New 
 York statutes, where a divorce is granted 
 for the wife's adultery, does not by implica- 
 tion give dower in case of annulment of a 
 marriage made in good faith, because the 
 husband had a former wife living. Price v. 
 Price, 124 N. Y. 589, 27 N. E. 383, 12: 359 
 
 53. The right to dower is barred by an 
 annuity given for life by a consent decree 
 in a divorce suit, making the annuity a lien 
 and charge upon the husband's real estate, 
 where the wife has taken her support and 
 maintenance under the decree, and still 
 continues to claim it. Adams v. Storey, 
 135 111. 448, 26 N. E. 582, 11: 790 
 
 54. A divorce from the bonds of matri- 
 mony bars a claim of the divorced wife to 
 dower, notwithstanding an implication from 
 a statute denying dower in case of divorce 
 for her misconduct, that the legislature 
 supposed she would be entitled to dower 
 after divorce not based on her misconduct. 
 \Vnod v. Wood, 59 Ark. 441. 27 S. W. 641, 
 
 28: 157 
 
 55. The right to dower which a former 
 wife divorced without alimony, where she 
 is the innocent party," is given by Conn, 
 (ien. Stat. 618, does not exist in favor 
 of any former wife of a man who had an- 
 other lawful wife at the time of his death, 
 since that section gives the right first to a 
 woman "living with her husband at the 
 time of his death," and the provision for 
 the divorced wife, when construed in con- 
 nection with 2803, permitting both par- 
 ties to marry again, and 630, providing 
 for the shares of husband and wife in the 
 distribution of intestate estates, shows the 
 intent to give dower to the lawful wife 
 surviving, if any, and to no one else. 
 Krown's Appeal. 72 Conn. 148, 44 Atl. 22, 
 
 49: 144 
 
 II. Rights and Remedies of Widow. 
 
 liu-hoate Right, see supra, I. a. 
 
 Rights in Surplus Money on Foreclosure, 
 
 see supra. 10. 
 l-'or Editorial Notes, see infra. ITT. 8. 
 
 Nonresident widow. 
 
 56. A widow who is not and never has 
 1 u-en a resident of the state is not entitled 
 in Kansas to any interest in real property 
 of her husband ' in that state. Small v. 
 Small, 56 Kan. 1, 42 Pac. 243. 30: 243 
 Assignment. 
 
 See also infra. 75. 
 
 57. The right of a husband in Illinois to 
 dower in his wife's lands before assignment 
 
 iinl nn otatc in the lands in which a 
 
 leasehold estate will be merged. Heisen v 
 Heisen, 145 111. 658, 34 N. E. 597, 21: 434 
 
 58. The right of dower, unlike an estate 
 given to a widow by the statute of descents 
 and distributions, confers no seisin until it 
 has been assigned to her, although she may 
 be actually in possession by acquiescence of 
 heirs and devisees. McMahon v. Gray, 150 
 Mass. 289, 22 N. E. 923, 5: 748 
 
 59. The test whether an assignment of 
 dower by metes and bounds would or would 
 not be unjust under Ala. Code 1886, 
 1910, 1911, is not to be determined by the 
 interest of the doweress alone, but accord- 
 ing to what would be just and right as be 
 tween her and the present owner of the 
 land. Sanders v. McMillian, 98 Ala. 144, 11 
 So. 750, 18: 425 
 
 60. Since, under the Illinois statutes, 
 there is no provision for the assignment of 
 dower in lands held in common, in deter- 
 mining the mode of assignment where par 
 tition between the tenants in common is 
 not made, resort must be had to the rules 
 of the common law. Hart v. .Burch, 130 
 111. 426, 22 N. E. 831, 6: 371 
 
 61. The appointment of commissioners 
 under the Illinois dower act, 34, is not 
 necessary, where dower is assigned under 
 39, on a finding that the premises cannot be 
 divided without great injury. Heisen v. 
 Heisen, 145 111. 658, 34 N. E. 597, 21: 434 
 
 62. The depreciation in the value of land 
 which is subject to dower, after alienation 
 by the husband, whether from natural 
 causes or from the mere negligence of the 
 purchaser or alienee in keeping the prop- 
 erty in repair, is not sufficient cause for 
 assigning compensation to the widow ac 
 cording to the value at the time of the 
 alienation, instead of setting off the dower 
 by metes and bounds. Sanders v. McMil- 
 lian, 98 Ala. 144, 11 So. 750 r 18: 425 
 
 63. A guardian of a minor, having no 
 power to assign dower in lands of the ward, 
 cannot by his void act or parol agreement 
 as to such assignment, made to induce leas 
 ing the lands to one entitled to dower, 
 whereby the rent is to be less than is ex- 
 pressed in a written lease, estop the ward 
 from denying the validity of his acts or 
 agreement, or prevent him from claiming 
 the whole amount of the rent named in the 
 lease. Heisen v. Heisen. 145 111. 658, 34 N. 
 E. 597. 21:434 
 Conveyance or release of unassigned dower. 
 Bar of Inchoate Right by Conveyance, see 
 
 supra, 17-23. 
 Parol Evidence as to Consideration for, see 
 
 Evidence, 1186. 
 See also supra, 25. 46, 47. 
 
 64. The unassigned right of dower can 
 exist only in the person upon whom it is 
 cast by operation of law; and a deed or 
 conveyance of it will pass no title, and 
 can on-ly be effective as a release and extin 
 cnrishment of the right. Hart v. Burch, 130 
 111. 426, 22 N. E. 831, 6: 371 
 
 65. An unassigned right of dower is not 
 the subject of transfer or sale, and cannot 
 be released to one not in privity with the 
 title undor whioh the dowross claims. Id.
 
 DOWER, HI 
 
 1058 
 
 tili. While it is not necessary that the re- 
 leasee of an unassigned right of dower 
 should hold the fee, yet he must be the 
 legal or equitable owner of title, or stand in 
 such relation thereto that the dower right, 
 upon execution of the relea-e. will unite 
 with t'he fee. Id. 
 
 (17. A purchaser at a sale on part il ion 
 <xinnot, before confirmation, acquire a re- 
 lease of an unassigned dower right. Id. 
 
 68. A deed by the widow of a tenant in 
 common before ; ssigmnent of her dower 
 does not take effect as a release of her 
 dower as to a cotenant of her husband. 
 
 Id. 
 Rights of creditors in unassigned dower. 
 
 69. An unassigned right of dower cannot 
 be reached by a creditors' bill, in the ab- 
 sence of any provision therefor by statute. 
 Harper v. Clayton. 84 Md. 346. 35 Atl. 1083, 
 
 35: 211 
 
 70. Dower unassigned cannot be attac-hed 
 or taken on execution by a widow's credi- 
 tors in an action at law. "McMahon v. 
 Gray, 150 Mass. 289, 22 N. E. 923, 5: 748 
 
 71. The remedy in equity to reach "any 
 property, right, title, or interest, legal or 
 equitable, of a debtor," given by Mass. Pub. 
 Stat. chap. 151, 2, cl. 11, as amended by 
 Mas. Stat. 1884, chap. 285, is available to 
 the creditor of a widow to reach her right 
 of dower unassigned. Id. 
 Damages for detention. 
 
 72. The right to damages for detention 
 of dower in premises aliened during the 
 lifetime of the husband is an incident to 
 the principal right to dower, and falls on 
 the death of the widow, pending her suit 
 for admeasurement of dower, before any 
 adjudication of the contested right. Roan 
 v. 'Holmt-s. o2 Fla. J!C,. 13 So. 339, 21: 180 
 
 73. Mesne profits by way of damages 
 for detention of dower, if recoverable at 
 all as against the alienee of the husband, 
 <>an be recovered only from the time of 
 the widow's demand for her dower inter- 
 
 and refusal thereof by the alienee. 
 
 Id. 
 Estimating value of dower. 
 
 74. I .amis -old under execution against a 
 husband is "aliened by the husband" with- 
 in the meaning of Xeb. Comp. Stat. 1893, 
 chap. 2:<. 3 7. providing that the widow's 
 dower in such land shall be estimated ac- 
 cording to its value when so aliened. But- 
 ler v. Fitzgerald. 43 Xeb. 102. 61 X. W. 
 640, 37 : 252 
 
 7">. The estimate of the value of real 
 -late for the purpose of assigning a wid- 
 ow's right of dower therein, under Xeb. 
 Comp. Stat. 1893. chap. 2li. $5 7. providing 
 that the value of land aliened by the hus- 
 band, and afterward* enhanced in value, 
 -hall be estimated according to the value 
 when aliened, is to be made by deducting 
 the value of improvements made after 
 alienation, but otherwise according to the 
 value at the time of a-signing the dower, 
 thus ^iviii^ the widow t lie benefit of the 
 increase from other caii-c- than improve- 
 meui- made upon the property. Id. 
 
 III. Editorial Notes, 
 a. In general; the right. 
 
 i. In what property. 
 
 In homestead; relative rights of wife and 
 children. 56: 67. 
 
 In partnership real estate. 27 : 340. 
 
 In mines. 16: 247. 
 
 In equity of redemption. 4: 118;* 5: 519.* 
 
 2. Nature and extent; priority to other 
 claims. 
 
 Estate of widow before assignment of dow- 
 er. 5: 520.* 
 
 Abatement or preference of legacy in lieu 
 of dower. 9: 250.* 
 
 Effect of discharge of vendor's lien upon 
 dower right. 4: 608.* 
 
 Subordination to vendor's lien or purchase 
 money mortgage. 4: 606.* 
 
 Superiority to, of legal title retained by 
 vendor as security. 4: 
 608.* 
 
 Widow's right on foreclosure of morteasre 
 5: 521.* 
 
 Dower rights of wife who unites with hus- 
 band in mortgage. 5: 
 519.* 
 
 Estimating value of dower right. 5: 521.* 
 
 Effect of depreciation in value of land on a 
 widow's right of dower 
 therein. 18: 425. 
 
 Rights of widow in accretions added to 
 shore lands. 58: 210. 
 
 b. How lost or destroyed; election. 
 
 3. Generally. 
 
 Power of legislature to destroy. 19: 256. 
 
 Bar of inchoate right, generally. 13: 441.* 
 
 Release of inchoate right by attorney under 
 power given by married 
 woman. 16 : 209. 
 
 Antenuptial contract as bar to dower. 2: 
 373.* 
 
 Effect of husband's insanity upon wife's 
 power to convey or bar 
 dower. :14 : 224. * 
 
 Effect of fraud to estop widow from claim- 
 ing. 25: 573. 
 
 4. Effect of misconduct or divorce. 
 
 Decree of divorce as a bar to claim for 
 dower. 11: 790.* 
 
 Effect of abandonment of marriage obliga- 
 tion to liar dower. 11: 
 791.* 
 
 KlVect of adulterous elopement to bar dow- 
 er. 11: 791.* 
 
 Effect of divorce in another -tate. 15: 542; 
 59: 181. 
 
 5. Power of husband or his creditors to 
 defeat. 
 
 Generally. 18: 7o. 
 
 \- land- held in common by husband. 
 18: 75. 
 
 As to land- Mild under mortgage. 18: 76. 
 
 Bankruptcy. 18: 77. 
 
 Sale on execution to <;iti-iv mechanic-' 
 lien. 1S : 77.' 
 
 Sale under execution auaiii-t liu-band. 
 18: 78.
 
 J060 
 
 DOWER, III. (Ed Notes.) DRAINS AND SEWERS. 
 
 6. Partition or tax sale; dedication; con- 
 demnation; adverse possession. 
 
 Kffect of partition sale upon dower rights 
 of one not a party. 16: 
 776. 
 
 Effect of sale of husband's lands for taxes 
 upon wife's right of dow- 
 er. 18:79. 
 
 Effect of dedication or condemnation of hus- 
 band's lands to public use 
 upon wife's right of dower. 
 8: 443;* 18: 79. 
 
 Kffect of adverse possession of husband's 
 lands on wife's right of 
 dower. 18: 78. 
 
 7. Election. 
 
 Provision in will in lieu of dower. 3: 497;* 
 9: 250.* 
 
 When widow put to her election between 
 dower and provision in 
 will for her benefit. 3: 
 498;* 12: 229.* 
 
 Kffect of election by widow. 3:500;* 12: 
 231.* 
 
 Notice of election by widow. 12: 229.* 
 
 Effect on third person of widow's election 
 to take against will. 14: 
 293. 
 
 Who may elect against will in behalf of in- 
 sane widow. 17: 296. 
 
 Appointment of annuity created and ac- 
 cepted in lieu of dower. 
 63: 625. 
 
 Preference of legacy to widow, in lieu of 
 dower over other legacies. 
 9:251.* 
 
 c. Rights, duties, and remedies. 
 
 8. Generally. 
 
 Right of doweress to mesne profits or dam- 
 ages for detention of dow- 
 er. 21 : 180. 
 
 Duty of tenant in, to pay taxes. 32: 748. 
 
 Ejectment by widow. 18: 790. 
 
 Contribution between heir and widow in 
 case of payment of mort- 
 gage. 5: 520.* 
 
 Doweress as a necessary party to foreclo- 
 sure suit. 5: 521.* 
 
 Equitable remedy to subject unassigned 
 dower to judgment after 
 return of no property 
 found. 63: 697. 
 
 Doweress as party to foreclosure suit. 5: 
 521.* 
 
 Levy on estate of. 2.': 647. 
 
 Kffoct of tax sale on land held by tenant 
 in dower. 32: 807. 
 
 DRAFTED MEN. 
 Tax to Pay for Services of, see Taxes. 86. 
 
 DRAFTS. 
 
 Payment by. see Payment. 11, 12. 
 
 Fn fJenornl. sop Bills and Notes: Chocks. 
 
 Editorial Notes. 
 
 Nature of, by one bank on another. 23: 
 173. 
 
 Effect of drawing draft against bill of lad- 
 ing, upon passing of title 
 to property. 22: 423. 
 
 Effect of, to create a maritime lien. 70: 418. 
 
 * 
 
 DRAINAGE COMMISSIONERS. 
 
 Delegation of Power to, see Constitutional 
 Law, 224. 
 
 DRAINAGE DISTRICTS. 
 
 Due Process in Including Property in, see 
 Constitutional Law, 890. 
 
 As Political Subdivision, see Corporations. 
 15. 
 
 Organization of, under Power of Eminent 
 Domain, see Eminent Domain, 132. 
 
 Right to Jury Trial in Proceedings to Or- 
 ganize, see Jury, 6. 
 
 See also Drains and Sewers, 17, 18, 28-31, 
 34. 
 
 1. Basing the voting power in a drainage 
 district on acreage, rather than on member- 
 ship, is not unlawful. Mound City Land & 
 S. Co. v. Miller, 170 Mo. 240, 70 S. W. 721, 
 
 60: 190 
 
 2. Requiring citizens to become members 
 of drainage districts, and share the ex- 
 pense of drainage, against their wills, does 
 not make the law unconstitutional. Id. 
 
 DRAINS AND SEWERS. 
 
 I. In General; Establishment; Repairs; 
 
 Statutes. 
 II. Procedure. 
 
 III. Assessments. 
 
 IV. Editorial Notes. 
 
 Vapors from, see Case, 24. 
 
 Statute as to. as Infringement of Judicial 
 Power, see Constitutional Law, 257. 
 
 Mode of Transferring Rigiht of Drainage, 
 see Contracts, 174. 
 
 Validity of Contracts for Purchase of, see 
 Contracts, III. d. 
 
 Delegation of Power to Drainage Commis- 
 sioners, see Constitutional Law, 224. 
 
 Discrimination against Nonresidents as to, 
 see Constitutional Law, 365. 
 
 Due Process of Law as to, see Constitu- 
 tional Law. 654. 672, 890. 
 
 Right to Discharge Water Closets of Court 
 House on Adjoining Land, see Coun- 
 ties, 26. 
 
 Conclusiveness of Legislative Decision as to, 
 see Courts, 161. 
 
 Damages Caused by, see Damages, 652. 
 
 Liability for Death Due to Unsanitary Con- 
 dition of, see Death. 45. 
 
 Drainage Districts. SPP Drainage Districts.
 
 DRAINS AND SEWERS, I. 
 
 1061 
 
 Ejectment to Procure Discontinuance of, 
 see Ejectment, 6. 
 
 Damage by Sewage as a Taking of Prop- 
 erty, see Eminent Domain, 259, 260. 
 
 Payment of Compensation for Establish- 
 ing, see Eminent Domain, 300. 
 
 Liability for Consequential Injuries by 
 Sewage, see Eminent Domain, 361-366. 
 
 Judicial Notice as to, see Evidence, 54, 152. 
 
 Explosion of Gas in Sewer, Opinion as to, 
 see Evidence, 1383. 
 
 Evidence of Defective Condition of, see 
 Evidence, 1985. 
 
 Enjoining Discharge of Sewers on Adjoin- 
 ing Land, see Injunction, 13. 
 
 Injunction against Grate Over Sewer, see 
 Injunction, 375. 
 
 Injunction against Defective 'Sewer, see 
 Nuisances, 69. 
 
 Injury to Lateral Support by Digging, see 
 Lateral Support, 3. 
 
 Revocation of License for, see License, 11-13. 
 
 Limitation of Action for Injury by, see 
 Limitation of Actions, 146. 
 
 Injury to Employee in, see Master and 
 Servant, 131. 
 
 Assumption of Risk as to, see Master and 
 Servant, 281. 
 
 Liability of Independent Contractor for 
 Negligence as to, see Master and Serv- 
 ant, 722. 
 
 Municipal Liability for Injury by Defects 
 in, see Municipal Corporations. II. g, 
 3, and also infra, IV. 3. 
 
 Waiver of Strict Performance of Sewer 
 Contract, see Municipal Corporations, 
 276. 
 
 Contract as to Sewage, see Municipal Cor- 
 porations, 289. 
 
 Municipal Contract for Right of Way for 
 Sewer, see Municipal Corporations, 291. 
 
 Liability for Drowning of Child in, see Mu- 
 nicipal Corporations, 439. 
 
 Explosion of Oil in, see Oil, 1, 2. 
 
 Parties to Action for Negligence in Con- 
 structing, see Parties, 192. 
 
 Assessments for Damages from Taking of 
 Land for, see Public Improvements, 
 170. 
 
 Partial Invalidity of Statute as to, see Stat- 
 utes, 93. 
 
 Title of .Statute as to. see Statutes, 216, 
 239-241. 
 
 Damage to Ditch, see Trespass. 8, 11. 
 
 Diversion of Waters by, see Waters, 239, 
 240. 
 
 Draining Small Lake or Pond, see Waters, 
 247-253. 
 
 Drainage of Surface Waters, see- Waters, 
 II. g; IV. 32. 
 
 Effect of Acquiescing in Drainage, see 
 Waters. 253. 
 
 Pollution of Water by Sewage, see Injunc- 
 tion, 32. 208-213: Nuisances. 158; 
 Waters, 293-301. 515-518. IV. 26. 
 
 1. In General: Establishment: Repairs; 
 Statutes. 
 
 Requiring Cleaning of Ditches as a Taking 
 of Property, see Eminent Domain. 249. 
 
 Consequential Injuries by Construction of, 
 
 see Eminent Domain, 354. 
 For Editorial Notes, see infra, IV. 
 
 Validity of statutes. 
 See also infra, 14. 
 
 1. Creating a drain commission and pro 
 viding for county bonds to pay for drains 
 within a county, under special legislative 
 authority, does not violate a constitutional 
 provision that "the fiscal affairs" of the 
 county shall be transacted by county com- 
 missioners. Martin v. Tyler, 4 N. D. 728 
 60 N. W. 392, 25: S3* 
 
 2. That no discretion to determine wheth- 
 er the improvement is for the public health, 
 convenience, or welfare is vested in any of- 
 ficer or tribunal by a statute providing for 
 the cleaning and repair of drainage ditches, 
 and the assessment of the cost thereof upon 
 the parties who were assessed for the origi- 
 nal construction of each ditch, does not ren- 
 der it unconstitutional, since ail questions 
 as to the public health, convenience, and 
 welfare must have been settled by the origi- 
 nal proceedings for the establishment of the 
 ditch. Taylor v. Crawford. 72 Ohio St. 560. 
 74 N. E. 1065, 69: 805 
 
 3. The failure of Minn. Gen. Stat. 1901. 
 chap. 258, providing a general system for 
 draining wet and overflowed lands of the 
 state, to expressly require the board of 
 county (Commissioners to determine wheth- 
 er a proposed improvement thereunder will 
 result beneficially to the public, does not 
 render it unconstitutional, as the power to 
 make such determination must be implied 
 from the provisions contained therein for 
 filing a petition for the location of a pro- 
 posed ditch with the county auditor and the 
 giving of notice by him to all interested 
 parties of a time and place of "hearing to 
 be had thereon," at which hearing the board 
 must determine whether to entertain the pe 
 tition or not, and for a subsequent hearing 
 after the viewers appointed shall have made 
 their report as to the damages and benefits 
 to accrue from its construction. State ex 
 rel. Utick v. Polk County Comrs. 87 Minn. 
 325, 92 N. W. 216, 60: 161 
 
 4. A statute providing a general plan or 
 scheme for the reclamation, for agricultural 
 purposes, of the wet or marsh lands of the 
 state by drainage, cannot be made to oper 
 ate to secure drainage for private interests, 
 although the legislature declares drainage 
 for agricultural purposes to be of public 
 benefit, where the procedure established by 
 the statute requires an actual finding of 
 public benefit, in each instance, before ;> 
 drainage scheme can be undertaken. Sisson 
 v. Buena Vista County, 128 Iowa. 442, 104 
 N. W. 454. 70: 440 
 Authority to establish. 
 
 Power to Condemn Land for, see Eminem 
 
 Domain, 1. 
 Right to Jury Trial, see Eminent Domain. 
 
 195. 
 For Editorial Notes, see infra, IV. 1. 
 
 5. Authority to lay out and construct 
 public drains and sewers cannot properly be 
 claimed >>y ;i town as necessarily incident to
 
 1062 
 
 DRAINS AND SEWERS, II., III. 
 
 i he exercise of its corporate powers or the 
 performance of its corporate duties, if am- 
 ple provision for them is made by general 
 statutes. Bulger v. Eden, 82 Me. 352, 19 
 Atl. 829, 9: 205 
 
 6. The power of the city of Portland, Ore- 
 gon, to lay necessary sewers and drains is 
 limited to cases where the benefits to the 
 property accommodated thereby will be 
 equal to or in excess of the cost of their 
 construction. Poulsen v. Portland, 16 Or. 
 
 450, 19 Pac. 450, 1: 673 
 Appropriation for. 
 
 Under Power of Eminent Domain, see Emi- 
 nent Domain, 131-135. 
 
 7. The disposal of sewage from a number 
 of cities and towns containing one sixth of 
 the population of the state is a matter of 
 general public utility for which the legisla- 
 ture can properly appropriate money from 
 the state treasury. Re Kingman, 153 Mass. 
 566, 27 N. E. 778, 12: 417 
 Private drains. 
 
 Fn City Streets, see Highways, 69, 70. 
 
 8. The power of municipal authorities 
 over streets extends to the granting of per- 
 mission to a private person to lay an under 
 drain therein from his premises without con- 
 sent of other persons who own abutting lots 
 as well as the soil of the street over which 
 the drain runs. Wood v. McGrath, 150 Pa. 
 
 451, 24 Atl. 682, 16: 715 
 Liability of petitioners. 
 
 9. Under a statute authorizing county 
 commissioners, on a petition of one third 
 of the landowners upon any water course 
 for a distance of not less than 5 miles up 
 and down the stream, to make contracts for 
 drainage, and impose the proper assessments 
 upon the various properties benefited, where 
 such contracts are thus made, and the work 
 done according to specifications, but no as- 
 sessments can be made because it proves 
 ; hat the work does not benefit any property, 
 the contractors may recover against the pe- 
 titioners who put the proceedings in motion, 
 but not against the commissioners or land- 
 
 wners who did not join in the petition. 
 Moore v. Barry. 30 S. C. 530, 9 S. E. 589. 
 
 4: 294 
 
 10. The inhabitants of a city who call 
 upon it to construct and care for a local 
 improvement such as a sewer which it has 
 the legal authority to construct 'and to con- 
 trol, and who use'the improvement after its 
 ompletion for the purpose and in the way 
 prescribed by law, are not liable jointly with 
 the city for the damages which result to 
 t hird parties from the negligence of the city 
 in the construction, management, or oper- 
 ation of the betterment. Carmichael v. Tex- 
 :.rkana, 54 C. C. A. 179. 116 Fed. 845, 
 
 58: 911 
 
 IT. Procedure. 
 
 I'or Editorial Notes, see infra, IV. 4. 
 
 11. A resolution adopted for the purpose 
 f reimbursing a municipal corporation for 
 i he cost of a sewer for which it has paid, 
 :md which authorizes any person whose 
 
 premises adjoin, or are ou a line with, the 
 sewer to connect therewith by paying a cer 
 tain sum into the city treasury, will include 
 property on a parallel street, which is con 
 nected with the sewer through a private lat 
 eral which has been laid in a connecting 
 street. Fergus Falls v. Edison, 94 Minn, 
 121, 102 N. W. 218, 70: 238 
 
 12.. The description of a proposed drain 
 in the petition therefor need not be set out 
 with precise accuracy, but is sufficient if the 
 starting point, course, and terminus are 
 stated with approximate accuracy. State ex 
 rel. Utick v. Polk County Comrs. 87 Minn. 
 325, 92 N. W. 216, 60: 161 
 
 13. The legislature may constitutionally 
 confer upon county auditors and surveyors 
 power to receive petitions for the cleaning 
 of drainage ditches, and, upon receipt of 
 such a petition, to examine the ditch and 
 p'ass upon the necessity of cleaning it, esti- 
 mate the expense and apportion the cost 
 thereof according to benefits among the 
 landowners along the line of the ditch who 
 were assessed for the original construction 
 thereof, and appoint a day for a hearing of 
 the matter, and give notice thereof to all 
 parties affected by the assessment, after 
 which the auditor shall enter upon a journal 
 the assessments as approved by him, and 
 place such assessment upon the duplicate 
 against the land upon which they are as- 
 sessed. Taylor v. Crawford. 72 Ohio St. 560, 
 74 N. E. 1065, 69: 805 
 Provision for review. 
 
 Due Process in, see Constitutional Law, 811. 
 For Editorial Notes, see infra, IV. 4. 
 
 14. Provision for appeal from an order di- 
 recting the construction of a ditch is not es- 
 sential to the validity of a drainage stat- 
 ute, since other modes of renewing the pro- 
 ceeaings are open to parties injured thereby. 
 State ex rel. Utick v. Polk County Comrs. 
 87 Minn. 325, 92 N. W. 216, 60:161 
 
 HI. Assessments. 
 
 Due Process in, see Constitutional Law, 
 891a, 891b. 892a, 892b. 
 
 Making Drainage Assessment Superior Lien, 
 as Impairment of Obligation, see Con- 
 stitutional Law, 1206. 
 
 Injunction against Assessment, see Injunc- 
 tion, 370. 
 
 Interest on, see Interest, 7, 8. 
 
 Issuance of Bonds for Cost of, see Public 
 Moneys, 58, 59. 
 
 Against Railroad Company for Drain Nec- 
 essary to Health, see Eminent Do- 
 main, 248. 
 
 See also supra, 13: Public Improvements, 
 74; Statutes, 239. 
 
 For Editorial Notes, see infra, IV. 2, 4. 
 
 15. A tax, under Mass. Pub. Stat. chap. 
 50, to build a sewer through a street of 
 Cambridge, ia one levied under the author- 
 ity and restrictions of the Constitution, 
 and is a public tax as being levied for a 
 public object, but is local, as it is .to be
 
 DRAINS AND SEWERS. III. 
 
 levied upon particular lauds. Mt. Auburn 
 Cemeterv v. Cambridge. 150 Mass. 12, 22 
 N. E. 66, 4: 836 
 
 10. Assessments for the cost of a sewer 
 are an exercise of the taxing power, and are 
 not within a constitutional provision as to 
 the taking of private property for public 
 use. Weed v. Boston, 172 Mass. 28, 51 N. E. 
 204. 42: 642 
 
 17. To provide a sewerage system for a 
 designated district, the legislature may, 
 within reasonable limits, determine that the 
 cost shall fall upon such district, and fix 
 the principles upon which it shall be ap- 
 portioned. Smith v. Worcester, 182 Mass. 
 232, 65 N. E. 40, r>i : 72S 
 
 18. When the legislature places the cost 
 of sewers for a particular district upon 
 such district, individual landowners with- 
 in it cannot show that they have received 
 no benefit, because that question has been 
 decided by the legislature. Id. 
 Rule for making assessments. 
 
 For Editorial Notes, see infra, IV. 2. 
 
 19. The legislature may impose upon 
 property fronting upon, or connecting with, 
 a sewer improvement, an assessment of a 
 fixed sum per linear foot, without giving 
 .my hearing as to the justice of such rule 
 of apportionment. People' ex rel. Scott v. 
 Pitt, 169 N. Y. 521, 62 N. E. 662. 58: 372 
 
 20. The cost of a drainage' improvement 
 may be assessed upon the property bene- 
 fited. Sissin v. Buena Vista County. 128 
 Iowa. 442. 104 X. W. 454, 70: 440 
 
 9 i ihe assessment . of the expense of 
 constructing a drain upon other landown- 
 ers deemed benefited thereby, as well as 
 imon the petitioner, for which provision is 
 made by X. Y. Laws 1895, chap. 384, per- 
 mitting an owner of agricultural lands to 
 institute proceedings for the drainage of 
 such lands, or the protection thereof from 
 overflow, by the construction of drains or 
 dykes upon the lands of other persons, is 
 not authorized by N. Y. Const, art. 1, 
 7, providing for the passage of general 
 laws for the construction of such drains 
 and dykes since the Constitution contem- 
 plates that the expense shall be borne by 
 the petitioner. Re Tuthill. 163 N. Y. 133. 
 o7 N. E. 303, 49: 781 
 
 22. An assessment of an annual charge 
 for the use of a common sewer under Ma--. 
 Pub. Stat. chap. 50, 1-3. authorizing 
 just and equitable annual charges or rents 
 for the use of such sewers to be paid by 
 everyone who enters his sewer into the com- 
 mon sewer, is not unconstitutional 'because 
 of the fact that the person assessed there- 
 for had previously paid part of the cost of 
 building the sewer, if the assessment for its 
 use is proportional to. and not in excess of, 
 the- benefits received therefrom. Carson v. 
 Sewerage Comrs. 175 Mass. 242. 56 N. E. 1, 
 
 48: 277 
 
 Requiring payment for connection with 
 sewer. 
 
 23. A municipal corporation which has 
 constructed a system of sewers with a view 
 to assessing a portion of the cost equally 
 upon abutting property may. wliere a por- 
 
 tion of the assessment- arc paid and a pur 
 tion successfully resisted, require as a con 
 dition to the use of the sewer by tho--. 
 resisting that they pay a sum equal to that 
 paid by others toward its construction, un 
 der authority to prescribe rules and regu 
 lations for the tapping of sewers. Herr- 
 mann v. State ex rgl. Cooper, 54 Ohio St. 
 506, 43 N. E. 990, 32: 734 
 
 24. A municipal corporation which has 
 bprne the expense of constructing a sewer 
 may, until it is reimbursed the amount of 
 its outlay, require persons making connec- 
 tions therewith to pay for the privilege. 
 Fergus Falls v. Edison, 94 Minn. 121, 102 
 N. W. 218, 70: 238 
 Apportioning cost of sewage disposal be- 
 tween municipalities. 
 
 25. Benefit to property is not the only 
 consideration to be regarded in apportion- 
 ing among cities and towns the expense of 
 a system of sewage disposal, but there are 
 many elements to De considered, some of 
 which are the exigencies or special need of 
 such improvements, the area to be accom- 
 modated, the present or probable popula- 
 tion and wealth, the value of the land, and 
 its adaptability for homes and other u-c- 
 Re Kinsman. 153 Mass. 566, 27 N. E. 778, 
 
 12: 417 
 
 26. No rule need be laid down by the leg- 
 islature for the guidance of commissioners 
 in making an apportionment among cities 
 and towns, subject to acceptance by a 
 court, of the expense of a system of sew- 
 age disposal, other than to direct them to 
 determine it as they shall deem just and 
 equitable, where the state Constitution 
 gives power to make "all manner of whole- 
 some orders, laws," etc.. not repugnant 
 thereto. Id. 
 Remedy for erroneous assessment. 
 
 27. Where a statute providing for drain- 
 age assessments provides an adequate rem- 
 edy in case of an erroneous assessment, that 
 remedy is exclusive: and parties who neg- 
 lect to pursue it will be conclusively pre- 
 sumed to be contented with the assess- 
 ment. Wabash E. R. Co. v. East Lake 
 Fork S. D. Dist. 134 111. 384. 25 N. E. 781, 
 
 10: 285 
 
 Cost of rebuilding bridge necessarily re- 
 moved. 
 
 Removal of Bridge by Drainage District, 
 see Bridges, 3. 
 
 28. Public corporations having control of 
 public roads are not excluded from a pro- 
 viso to the section of a drainage statute 
 authorizing the assessment of benefits ac- 
 cruing to public roads, which provides that 
 the cost of rebuilding bridges shall not be 
 considered, but that they shall be rebuilt 
 at the expense of the corporate authorities 
 of the road, by the facts that the preced 
 ine proviso provides for a lien against "anv 
 railroad company or private corporation." 
 and that the proviso in question relates 
 to the sum assessed against "either of said 
 corporations.'' where public corporations 
 are specifically referred to in the principal 
 part of the section and in the first pro- 
 viso, and such preceding proviso specifical-
 
 1064 
 
 DRAINS AND SEWERS, IV 
 
 ly provides for recovery of assessments 
 against townships. Heffner v. Cass & Mor- 
 fran Counties, 193 HI. 439, 62 X. E. 201, 
 
 58: 353 
 
 29. The cost of replacing a county bridge, 
 necessarily removed by drainage commis- 
 sioners in the prosecution of their work, 
 is not within a constitutional provision 
 that the cost of the drainage work shall 
 be paid for by special taxation upon the 
 property benefited thereby. Id. 
 
 30. Authorizing drainage districts to de- 
 stroy county bridges when necessary, with- 
 out requiring their replacement, does not 
 violate constitutional provisions authorizing 
 the vesting in municipal authorities of 
 power to assess taxes which shall be uni- 
 form, and forbidding the legislature to im- 
 pose taxes upon municipal corporations or 
 their inhabitants for corporate purposes. 
 
 Id. 
 
 Enforcement; lien. 
 
 Joinder of Plaintiffs to Enjoin Collection, 
 see Parties, 122, 123. 
 
 31. Under the Illinois drainage act of 
 1885, persons claiming land by purchase 
 under a trust deed cannot contest the va- 
 lidity of a drainage assessment upon the 
 ground that the drainage district was not 
 properly organized, because the trustees, 
 who were alleged to have held the legal 
 title to the land at the time of the organ- 
 ization of the district, were not notified 
 of the proceedings for such organization, 
 where the bill filed for the enforcement of 
 the assessment alleges the due organiza- 
 tion of the district, and the allegation is 
 fully and unequivocally admitted by such 
 persons in their answer. Wabash E. R. Co. 
 T. East Lake Fork S. D. Dist. 134 111. 384, 
 25 N. E. 781, 10: 285 
 
 32. An admission in an answer to a bill 
 to enforce payment of a drainage assess- 
 ment, that notice of the levying of the as- 
 sessment was mailed to each landowner, 
 includes persons named as trustees in a 
 trust deed of land assessed, if they are to 
 be deemed the owners of the property. Id. 
 
 33. Under an act providing that a drain- 
 age assessment shall be considered a lien 
 upon every tract of land or property as- 
 sessed in the district, the lien attaches to 
 the land itself, irrespective of the interest 
 of the various owners, and is paramount 
 to claims under a prior deed of trust of 
 the property. Id. 
 
 34. The portion of the track or right of 
 way of a railroad company which lies within 
 a drainage district may be sold for the pay- 
 ment of a drainage assessment thereon. 
 
 Id. 
 
 IV. Editorial Notes. 
 
 Public Improvements, Generally, see Public 
 Improvements, V. 
 
 As to Pollution of Water Course, General- 
 ly, see Waters, IV. 26. 
 
 Right and Duties of Municipal Corporation 
 with Respect to Surface 
 Water, see Waters. TV. 
 32. 
 
 i. Generally. 
 
 Authority of legislature over; taxation for 
 
 construction of. 12: 417.* 
 
 Statutory regulations. 9: 205.* 
 
 Right and duty to connect property with 
 
 drain or sewer. 70: 238. 
 
 Municipal regulation of sewers as nuisances. 
 
 38: 319. 
 Injunction by municipality against nuisance 
 
 from sewers. 41 : 325. 
 Injunction against municipality as to. 23: 
 
 301. 
 
 Implied reservation of. 13: 657.* 
 Drainage of private lands as public purpose 
 justifying exercise of emi- 
 nent domain. 49: 781. 
 Construction in streets as additional burden 
 
 on easement. 17: 479. 
 
 Power of municipality to authorize use of 
 highway for private drain. 
 16: 715. 
 Liability of counties for injury to real 
 
 property from. 39: 69. 
 Liability of landlord to third persons as to 
 
 condition of. 26: 202. 
 Draining ponds. 21: 605. 
 Presumption as to statutory authority to 
 commit nuisance by sew- 
 erage system. 70: 580. 
 2. Who liable for expense of drainage; 
 
 maintenance. 
 
 Basis for liability. 58: 353. 
 Consideration of principles involved. 58: 
 
 354. 
 
 The rule that assessment depends on bene- 
 fit. 58: 358. 
 Assessment according to benefit valid. 
 
 58: 358. 
 
 Adjustment of the assessment. 58:359. 
 Benefit must be certain. 58: 359. 
 Indirect benefits. 58: 360. 
 What benefits considered. 58: 362. 
 Relation between benefits and as- 
 sessment. 58: 362. 
 Excessive assessment. 58: 363. 
 Lands sufficiently drained. 58: 367. 
 Set-off of benefits and injuries. 
 
 58: 370. 
 
 Omission of benefited land. 58:371. 
 Drainage districts. 58: 372. 
 Area assessments. 58: 374. 
 Public liability. 58: 378. 
 Assessment runs with the land. 58: 379. 
 Exemptions. 58: 380. 
 Renewal and maintenance. 58: 383. 
 Maintenance of drainage ditches. 69: 805. 
 3. Duty and liability of municipality as 
 
 to drainage. 
 
 Right and duty to provide. 61 : 673. 
 In general. 61 : 673. 
 Special circumstances. 61 : 675. 
 Delegation by city council of power. 
 
 20: 653. 
 Location. 61: 677. 
 
 In streets. 61: 677. 
 On private property. 61 : 679. 
 Construction. 61 : 683. . 
 Sufficiency. 61 : 683. 
 Defective construction. 61: 688. 
 For private benefit. 61 : 689. 
 Ektension. 61: R90.
 
 DRAINS AND SEWERS, IV. (Ed. Notes.j 
 
 1065 
 
 Outlet. 61 : 690. 
 
 Must be provided. 61 : 690. 
 Inadequacy or negligent location of. 
 
 61: 691. 
 
 Use of stream as. 61: 693. 
 Increasing flow. 61 : 693. 
 Pollution. 48:691; 61:694. 
 Use of canal. 61 : 696. 
 Maintenance. 61 : 696. 
 Repair. 61 : 696. 
 Keeping unobstructed. 61: 698. 
 Sanitary precautions; odors; gases. 
 
 61 : 699. 
 
 Other matters. 61: 700. 
 Liability for injuries. 61: 701. 
 In general. 61 : 701. 
 By reason of private or adopted drain. 
 
 61: 702. 
 
 By using stream as sewer. 61: 703. 
 By negligence generally. 61: 704. 
 For negligent construction. 5: 126.* 
 For neglect to repair. 5: 127.* 
 Open drains. 61 : 705. 
 Defenses. 61 : 706. 
 
 Consent or cqntributory negligence. 
 
 61: 706. 
 
 Flood. 61 : 708. 
 Notice. 61 : 710. 
 Parties. 61:711. 
 
 Who may sue. 61: 711. 
 Defendants. 61 : 711. 
 Limitation. 61:711. 
 Damages. 61 : 712. 
 
 Effect of limitation of municipal indebted- 
 ness upon acquisition of 
 sewer system. 59: 604. 
 4. Procedure for establishment of. 
 General observations as to right to estab- 
 lish. 60: 161. 
 
 Institution of proceedings. 60: 166. 
 By petition of landowner. 60: 166. 
 By municipal ordinance. 60: 168. 
 By organization of drainage district. 
 
 60: 169. 
 
 Jurisdiction over proceedings. 60: 172. 
 In general. 60: 172. 
 Of courts. 60: 174. 
 Conflicting authority. 60: 175. 
 Plans and specifications. 60: 176. 
 Practicability. 60: 176. 
 In general. 60: 176. 
 Choice of route. 60:178. 
 Lack of outlet. 60:181. 
 Expensiveness. 60: 183. 
 Necessity of designating. 60: 183. 
 In general. 60: 183. 
 Estimates of cost. 60: 184. , 
 Route. 60: 185. 
 Dimensions. 60: 186. 
 Material and openings. 60: 186. 
 Departure from. 60: 187. 
 Route. 60: 187. 
 Plans. 60: 186. 
 
 Default of contractor. 60: 190. 
 Departure from statute. 60: 191. 
 Necessity must be shown. 60: 191. 
 
 To make establishment legal. 60: 191. 
 To uphold assessment. 60: 193. 
 Who to determine necessity.. 60: 193. 
 Acquisition of right of way. 60: 195. 
 Ripht to acquire. 60: 195. 
 
 How acquired. 60: 197. 
 By contract. 60: 197. 
 By eminent domain. 60: 198. 
 Compensation must be made. 60: 199. 
 In general. 60: 199. 
 When and how made. 60: 201. 
 Procedure. 60: 202. 
 Measure of damages. 60: 204. 
 Completion of improvement. 60: 206. 
 
 Statutory provisions must be followed. 
 
 60: 206. 
 
 Jurisdictional facts. 60: 207. 
 Effect of irregularities. 60: 208. 
 Notice; hearing. 60: 209. 
 General rules. 60: 209. 
 To whom. 60: 212. 
 Of what. 60: 214. 
 Form. 60: 214. 
 Hearing. 60: 216. 
 Other matters. 60: 216. 
 Letting contract. 60: 217. 
 Remonstrance. 60: 218. 
 Statutory matters. 60: 219. 
 Details of work. GO: 220. 
 Wrongful acts. 60: 221. 
 Compensation for injury. 60: 223. 
 Other matters. 60: 223. 
 Supervision by court. 60: 224. 
 By appeal. 60: 224. 
 On collateral attack. 60: 225. 
 Acquisition of funds. 60: 226. 
 
 Use of public funds or credit. 60: 226. 
 Local assessment. 60: 227. 
 
 Authority to make. 60: 227. 
 What is liable. 60: 228. 
 Procedure; method of assessment. 
 
 60: 232. 
 Apportionment and equalization. 
 
 60: 234. 
 
 For what may be laid. 60: 234. 
 Rights of property owner. 60: 235. 
 Other matters. 60: 237. 
 Lien. 60: 237. 
 Enforcement. 60: 238. 
 Collection and distribution of fund. 60: 
 
 240. 
 
 Curing defects. 60: 240. 
 Contesting assessment. 60: 241. 
 Who may contest. 60: 241. 
 Method of contesting. 60: 242. 
 Grounds of contesting. 60: 243. 
 Defects in work as a defense to assess- 
 ment. 56:919. 
 
 Benefit must be paid. 60: 246. 
 Laches. 60: 246. 
 Waiver. 60: 246. 
 Estoppel. 60: 247. 
 Suit to recover back money paid. 60: 
 
 248. 
 
 Other matters. 60: 249. 
 Abandonment of drain. 60: 249. 
 5. Pollution or interference with streams 
 
 by. 
 
 Right of riparian owner to use stream for 
 
 sewer purposes. 41:751. 
 
 Liability for intercepting subterranean 
 
 waters by. 19: 94. 
 
 Right of municipality to drain sewage into 
 waters. 48: 691; 61: 694. 
 Liability of municipality for using stream 
 as a sewer. 61 : 703.
 
 1066 
 
 DRAWBACK DRUGS AND DRUGGISTS 
 
 6. Illinois drainage acts. 
 
 Jurisdiction of drain commissioners. 10: 
 
 285.* 
 
 Formation of drainage district. 10: 285.* 
 Notice of classification of lands. 10: 285.* 
 Assessments for benefits. 10: 286.* 
 Classification of highways and railroads for 
 
 assessment. 10: 286.* 
 Notice of assessment. 10: 287.* 
 Correcting of assessment. 10: 287.* 
 Lien of assessment. 10: 287.* 
 
 Foreclosure of lien. 10: 287.* 
 Appeals. 10: 288.* 
 Application for judgment on assessment. 
 
 10: 288.* 
 Enforcement of assessment. 10: 288.* 
 
 DRAWBACK. 
 To Passengers, see Carriers, 633, 634, 637. 
 
 DRAWBRIDGE. 
 
 Negligence of Gateman at, see Highways, 
 
 239. 
 Obstruction of Navigation by, see Waters, 
 
 156-158. 
 See also Bridges, 4. 
 
 DRAWING. 
 
 Of Grand Jury, see Grand Jury, HI. 
 
 DRAYMEN. 
 
 License of, see License, 134. 
 Authority of, as Agent for Shipper, see 
 Principal and Agent, 14. 
 
 Editorial Notes. 
 As independent contractors. 65: 468. 
 
 DRAYS. 
 
 Prohibiting Use of Certain Streets by, see 
 Municipal Corporations, 136. 
 
 DREDGING. 
 
 Damages for Injury by, see Damages, 426. 
 Right of Wharf Owner to Dredge Adja- 
 cent Land, see Waters, 193. 
 
 DRIVER. 
 
 Employer's Liability for Negligence of. see 
 Master and Servant. 646. 647. 
 
 Employer's Liability for Assault by, see 
 
 Master and Servant, 671. 
 Imputing Negligence of, to Passenger, see 
 
 Negligence, 255-265; III. 13. 
 
 Editorial Notes. 
 
 Imputation of negligence of, to passenger. 
 1: 152;* 6: 143;* 9: 157.* 
 
 Whether negligence imputable to wife in- 
 jured while riding with 
 husband. 14: 733. 
 
 DRIVEWAY. 
 
 Easement in, see Easements, 35, 83. 
 
 DROVERS. 
 
 Editorial Notes. 
 As independent contractors. 65: 468. 
 
 DROVER'S PASS. 
 
 See Carriers, 627, 628. 
 
 Editorial Notes. 
 Rights of person riding on. 22: 794. 
 
 DROWNING. 
 
 Sufficiency of Proof of, see Evidence, 2218. 
 
 Death of Insured by, see Insurance, 1003, 
 1004. 
 
 Municipal Liability for, see Municipal Cor- 
 porations, 437-439, 560-562. 
 
 Of Children, Liability for, Generally, see 
 Negligence, 123. 143-148. 
 
 Contributory Negligence of Person Drowned, 
 see Negligence, 206. 
 
 Proximate Cause of, see Proximate Cause, 
 H. e. 
 
 Editorial Notes. 
 
 As accident. 30: 211. 
 
 DRUGS AND DRUGGISTS. 
 
 Assault by Druggist, see Assault and Bat- 
 tery, 11. 
 
 Discrimination as to, see Constitutional 
 Law, 520, 521. 
 
 Punitive Damages against, see Damages, 
 52. 
 
 Unlawful Sale of Liquor by, see Intoxicat- 
 ing Liquors, III. d. 
 
 Liabilitv for Libel, see Libel and Slander, 
 63/64. 
 
 License fer Selling Drugs, see License, 157. 
 
 Partial Invalidity of Statute as to, see 
 Statutes. lOfi.
 
 DRUG STORE DRUNKENNESS 
 
 1067 
 
 Liability. 
 
 See also infra, Editorial Notes. 
 Proximate Cause of Death by Drugs, see 
 Proximate Cause, 145-147. 
 
 1. A druggist is not relieved from liabil- 
 ity for injuries caused by a prescription 
 negligently put up by the fact that the neg- 
 ligence was that of a registered pharma- 
 cist employed by him, which class alone is 
 allowed by statute to fill prescriptions. But- 
 tress v. Sims Drug Co. 114 Towa, 275, 86 
 N. W. 307, 54: 364 
 
 2. A druggist is not guilty of negligence 
 in selling to customers proprietary medi- 
 cines in the package and under the label 
 of the proprietor or patentee, without mak- 
 ing an analysis of the contents. *Wst v. 
 Kmanuel, 198 Pa. 180, 47 Atl. 965, 53: 329 
 
 :]. The duty to put a label containing 
 the word "poison" on every poisonous liquid 
 or substance, which is imposed on drug- 
 gists by Shannon's (Tenn.) Code, 6745, 
 does not extend to medicines compounded 
 upon the prescription of a physician, though 
 they contain poison. Wise v. Morgan, 101 
 Tenn. 273, 48 S. W. 971. 44: 548 
 
 4. A person is not liable on the ground 
 of injuring one in danger, for death follow- 
 ing his sale of chloroform to an intoxi- 
 cated person who is not shown to be abso- 
 lutely without mind to the knowledge of 
 defendant. Meyer v. King. 72 Miss. 1, 16 
 So. 245, 35: 474 
 
 5. The sale of chloroform to a minor in 
 violation of Miss. Code 1892, 1252, will 
 not render the seller liable for the minor's 
 death from drinking it, if the sale was not 
 the proximate cause of the death. Id. 
 
 6. One who by mistake sells to a person 
 a noisonous drug for a harmless medicine 
 is liable to a third person who without neg- 
 ligence takes the drug for medicine, for 
 damages resulting to him therefrom, not- 
 withstanding there is no privity of contract 
 hot ween the seller of the drug and such 
 third person. Peters v. Jackson. 50 W. 
 Va. 644, 41 S. E. 190, 57: 428 
 
 7. N"<> liability attaches to a druggist 
 for injuries to a customer for lack of in- 
 struction as to the safe method of hand- 
 
 1 an article called for by and sold to 
 him, where he has reached the age of dis-, 
 cretion, and is apparently in possession of 
 his mental faculties, and there is nothing 
 connected with the transaction, or previously 
 known to the seller, indicating that the 
 would-be purchaser cannot safely be in- 
 trusted with the substance. Gibson v.- Tor- 
 bert, 115 Iowa, 163, 88 N.'W. 443, 56: 98 
 
 8. That a letter ordering phosphorus is 
 incorrectly worded and spelled, and that 
 the writing is poor, is not of itself suffi- 
 cient to charge the seller with notice that 
 the would-be purchaser cannot be trusted 
 with the article without instruction as to 
 how to handle it safely, where the letter 
 is also an assurance, to a certain extent 
 at least, that the writer knows the sub- 
 stance he is ordering. Id. 
 Contributory negligence of purchaser. 
 
 9. Contributory negligence is chargeable 
 to a minor who takes chloroform when so 
 
 intoxicated as to be incapalik- of any reason- 
 able degree of caution or prudence, and whc 
 is old enough to earn as a clerk in a gro- 
 cery store a reasonable and substantial 
 compensation. Meyer v. King, 72 Miss. 1, 
 16 So. 245, 35: 474 
 
 Editorial Notes. 
 
 Regulation of sale of intoxicating liquor by. 
 
 10: 81. 
 Liability of vendor of, for negligence. 21: 
 
 139. 
 
 DRUG STORE. 
 
 Denial of Civil Rights in, see CivU Rights, 
 6. 
 
 DRUMMERS. 
 
 Interstate Business of, see Commerce, 152- 
 163. 
 
 Conflict of Laws as to Contract by, see Con- 
 flict of Laws, 284-286. 
 
 Right to Expel from Hotel, see Innkeepers, 
 35, 36. 
 
 Lien of Innkeeper on Samples of, see Inn- 
 keepers, 44. 
 
 License of, see License, 141, 148. 
 
 Ordinance against Solicitation by, in De- 
 pot, see Municipal Corporations, 240. 
 
 Authority to Indorse Checks, see Principal 
 and Agent, 36. 
 
 DRUMMING. 
 
 On Street, see Constitutional Law, 765; 
 Municipal Corporations, 142-144. 
 
 DRUNKARDS. 
 
 Sale of Liquor to, see Intoxicating Liquors, 
 137-139, 169, 172, 174, 170. 
 
 Revocation of Trust Created by, see Truata, 
 93. 
 
 See also Drunkenness: Habitual Drunk- 
 ards. 
 
 DRUNKENNESS. 
 
 Of Person Defrauded, see Action or Suit, 23. 
 Of Juror as Reversible Error, see Appeal 
 
 and Error, 1128. 
 Arrest for, see Arrest, 20. 
 Validity of Note by Intoxicated Person, 
 
 see Bills and Notes, 20. 
 As Breach of the Peace, see Breach of the 
 
 Peace. 
 Of Passenger, se Carriers, 346-350, 353 
 
 356, 427, 430-441, 452. -153; Proximate 
 
 Cause, 74, 75; Trial, 298-300, 314. 
 Of Person Struck by Train, see Railroads, 
 
 134. 155. 1.56. 271-273.
 
 1068 
 
 DUCKING STOOL DUMMY RAILROADS 
 
 Disclosure of Source of Liquors by Person 
 Convicted, see Constitutional Law, 825 
 
 Refusal to Disclose Source of, as a Contempt 
 see Contempt, 41. 
 
 Delegation of Power as to, see Counties, 42 
 
 As Affecting Criminal Responsibility, see 
 Criminal Law, 20, 24-28. 
 
 Of Juror on Criminal Trial, see Criminal 
 Law, 103. 
 
 Of Injured Person Retarding Recovery, Ef- 
 fect on Amount Recovered, see Dam- 
 ages, 316. 
 
 As Ground for Divorce, see Divorce and 
 Separation III. c. 
 
 Sale of Drugs to Intoxicated Persons, see 
 Drugs and Druggists, 4, 9. 
 
 Reputation for, see Evidence, 1759. 
 
 Evidence to Prove, see Evidence, 2135. 
 
 Of Person Defrauded, see Fraud and De- 
 ceit, 6. 
 
 As Affecting Guaranty, see Guaranty, 2. 
 
 Habitual Drunkards, see Habitual Drunk- 
 ards. 
 
 Effect of, on Right to Child, see Infants, 
 37-39. 
 
 Of Guest at Inn, Effect on Liability for 
 Loss of Property, see Innkeepers, 17, 
 19. 
 
 Accident to Insured During, see Insurance, 
 1064. 
 
 Slander in Charging, see Libel and Slander, 
 28, 29. 
 
 Effect on Validity of Marriage, see Mar- 
 riage, 30. 
 
 Contributory Negligence of Intoxicated Per- 
 son, see Negligence, 220-223. 
 
 Impeachment for, see Officers, 162. 
 
 Conversion of Property of Intoxicated Per- 
 son, see Trover, 14. 
 
 Editorial Notes. 
 
 Presumption as to continuance of. 35:122. 
 
 Voluntary intoxication in extenuation of 
 crime. 8: 33.* 
 
 Municipal regulation of, as a nuisance. 39: 
 524. 
 
 As affecting negligence. 40: 131. 
 
 Evidence of. 8: 33.* 
 
 What intoxication will excuse crime. 36: 
 465. 
 
 Effect of intoxication on validity of mar- 
 riage. 34: 87. 
 
 As affecting divorce. 34: 449. 
 
 As affecting testamentary capacity. 39: 
 220. 
 
 Validity of contract made with intoxicated 
 person. 54: 440. 
 
 DUCKING STOOL. 
 
 Editorial Notes. 
 AP cruel and unusual punishment. 35: 560. 
 
 DUE BILL. 
 
 Editorial Notes. 
 Clearinc-bouse due-bill. 25: S26. 
 
 DUELING. 
 
 Editorial Notes. 
 
 Homicide in the commission of. t>3: 377. 
 
 Solicitation to. 25 : 437. 
 
 Cruel or unusual punishment for. 35: 571. 
 
 DUE PROCESS OF LAW. 
 See Constitutional Law, II. b. 
 
 DUES. 
 
 What are, see Corporations, 551, 552. 
 From Member of Benefit Association, see 
 Insurance, III. h. 
 
 Editorial Notes. 
 Meaning of. 15: 513. 
 
 DULY. 
 
 Duly, in legal parlance, means accord- 
 ing to law, both in form and substance. Th* 
 expression "duly adjudged" therefore means 
 adjudged according to law, and implies the 
 existence of every fact essential to perfect 
 regularity of procedure, and to confer ju 
 risdiction both as to the subject-matter and 
 the parties. Brownell v. Greenwich, 114 N. 
 Y. 518, 22 N. E. 24, 4: 685 
 
 DUMMY. 
 Vote of Stock by, see Corporations, 675. 
 
 DUMMY RAILROADS. 
 
 Injury to Passenger on, see Carriers, 312, 
 479. 
 
 As Additional Servitude, see Eminent Do- 
 main, 432, 433. 
 
 Negligence of, Towards Children, see Neg- 
 ligence, 133. 
 
 Pleading Negligence of, see Pleading, 353. 
 
 1. A train pushed by a small engine called 
 a "dummy," although exclusively engaged 
 
 n carrying passengers, whether run within 
 or without the limits of a municipality, is a 
 'railroad" train within the meaning of a 
 statute prescribing regulations to be ob- 
 served by railroads. Katzenberger v. Lawo, 
 )() Tenn. 235, 16 S. W. 611, 13: 185 
 
 2. A dummy railroad operated by steam 
 and running beyond the lines of a munici- 
 
 >ality, organized under Ala. act February 
 25, 1887, which authorizes corporations t<> 
 construct such roads in a city or town and 
 also "upon any of the public roads of any 
 Bounty." upon such terms and in such man-
 
 DUPLICATE COPIES DUKESS. 
 
 1069 
 
 ner as may be authorized by the city and 
 county authorities respectively, is a "rail- 
 road" witMn the meaning of Ala. Code, 
 1145, requiring trains to be stopped within 
 100 feet of a place where the track crosses 
 the track of another railroad. Birmingham 
 Mineral E. Co. v. Jacobs, 92 Ala. 187, 9 So. 
 320, 12: 830 
 
 DUPLICATE COPIES. 
 
 Provision for, in Contract with City, see 
 Municipal Corporations, 297. 
 
 - -- - * 
 
 DUPLICATE DRAFT. 
 
 Parol Evidence as to, see Evidence, 1156. 
 See also Bills and Notes, 7. 
 
 DUPLICATE WARRANTS. 
 
 Limitation of Action on, see Limitation of 
 Actions, 182. 
 
 DUPLICITY. 
 
 In Indictment, see Indictment, etc., II. d. 
 In Pleading, see Pleading, I. V. 
 
 DURESS. 
 
 Recovery Back of Payments Made under, 
 see Assumpsit, 48-51, 64-66, and also 
 infra, Editorial Notes, 1. 
 
 In Execution of Note, see Bills and Notes, 
 30. 
 
 Defense against Bona Fide Holder of Note, 
 see Bills and Notes, 213. 
 
 To Compel Commission of Crime, see Crimi- 
 nal Law, 12. 
 
 In Articles of Separation, see Divorce and 
 Separation, 124. 
 
 Commission of Homicide under, see Homi- 
 cide, 29. 
 
 Indictment for Obtaining Money by, see 
 Indictment, etc., 65. 
 
 fn Surrender of Insurance, see Insurance, 
 639. 
 
 In Compromise of Insurance, see Insurance, 
 1281. 
 
 fn Appearance in Suit, see Judgment, 156. 
 
 As Ground for Annulment of Marriage, see 
 Marriage, 56. 58. 59, and also infra, 
 Editorial Notes, 1. 
 
 Question for Jury as to What Constitutes, 
 see Trial, 504. 
 
 Instructions as to, see Trial, 803. 
 
 Setting Aside Deed for, see Trusts, 54. 
 
 1. A person is not under duress for which 
 his deed will be set aside, if he is not 
 threatened with great bodily harm nor with 
 a criminal prosecution in case he fails to 
 sign the deed, although the pressure under 
 
 which he is placed is about as effectual as 
 though force or criminal prosecution were 
 threatened. Stokes v. Anderson. 118 Ind. 
 533, 21 N. E. 331. 4: 313 
 
 2. A plaintiff cannot impeach, as pro- 
 cured by duress, an agreement which he 
 insisted upon making a part of his case, 
 and stated was material thereto. Craig v. 
 Ginn. 3 Penn. (Del.) 117, 48 Atl. 192, 
 
 53: 715 
 
 Threats generally. 
 See also infra, 8, 11. 
 
 3. A contract with a party incapable 
 of exercising his free will by reason of 
 threats made by the other for the purpose 
 of producing such condition and obtaining 
 the contract may be repudiated on the 
 ground of duress, at the option of the party 
 threatened. Galusha v. Sherman, 105 Wis. 
 263, 81 N. W. 495, 47: 417 
 
 4. Threats which so act upon a person 
 as to make him incapable of exercising his 
 free will in the making of a contract may 
 constitute duress which will avoid the con 
 tract, though they may not be such as 
 would have that effect upon a person of 
 ordinary firmness and courage. Id. 
 
 5. A purchase of stock at an exorbitant 
 price, to secure control of the corporation 
 will not be rescinded on the ground that 
 the seller had threatened to break his con 
 tract to give the purchaser control of the 
 stock for voting purposes, and sell it to the 
 opposing faction. Gage v. Fisher, 5 N. D. 
 297, 65 N. W. 809, 31 : 557 
 
 6. A threat by a bank to institute at 
 tachment proceedings to collect a note not 
 yet due, unless security is given, in conse 
 quence of which the maker of the note 
 authorizes its satisfaction out of his de- 
 posit account, is not such duress as will 
 entitle the maker to damages in case of the 
 bank's refusal to apply the same money in 
 satisfaction of his outstanding check. Flack 
 v. National Bank of Commerce. 8 Utah, 193, 
 30 Pac. 746, 17: 583 
 
 7. One who conveyed real estate to a 
 bank by warranty deed absolute in form, 
 but intended to secure an indebtedness, 
 may recover a sum in excess of the amount 
 justly due, paid to obtain a reconveyance, 
 where the bank assumed to be the owner 
 of the property and denied the debtor any 
 right or interest therein, and had begun a 
 proceeding to dispossess him, which it 
 threatened to appeal, if the judgment of the 
 trial court was unfavorable, to the court 
 of last resort, where it would probably re- 
 main undisposed of for years, and, when 
 the debtor, in great financial distress and 
 with no means of meeting his indebted- 
 ness, save by a sale of the property, pro- 
 cured a purchaser at an advantageous price, 
 refused to consent to the sale or reconvoy 
 without the payment of such sum, since, 
 under the circumstances, the payment of 
 such excess was made under duress and com- 
 pulsion: and the fact that at the time of 
 such payment the parties entered into a 
 written agreement in the nature of a com 
 promise, which was acquiesced in by the 
 debtor in order to gain control of his prop-
 
 1070 
 
 DUTIES. 
 
 erty and extricate himself from his finan- 
 cial difficulties, does not affect his right to 
 recover the excess, as the agreement was 
 vitiated by duress for the same reason and 
 to the same extent as the overpayment. 
 First Nat. Bank v. Sargent, 65 Neb. 594, 
 91 N. W. 595, 59: 296 
 
 Of criminal prosecution of self. 
 
 8. Written securities extorted by . means 
 of threats of prosecution for criminal of- 
 fenses of which the party threatened was 
 guilty in fact, but which were in .no man- 
 ner connected with the demand for which 
 compensation was sought, may De avoided 
 by the parties executing them, not only in 
 the hands of the original payee, but of his 
 assignees having notice of the circumstances 
 under which such securities were taken. 
 Thompson v. Niggley, 53 Kan. 664, 35 Pac. 
 290, 26: 803 
 Of criminal prosecution of third person. 
 
 See also infra. 12; and Editorial Notes. 
 
 9. Duress is not a defense to notes and a 
 <leed given by a man to settle a claim 
 against his son-in-law and release him from 
 arrest for felony, when he enters into the 
 transaction deliberately, after manoeuver- 
 ing for a compromise, and on an Understand- 
 ing with his daughter that the payment 
 shall constitute an advancement to her. 
 Loud v. Hamilton (Tenn. Ch.) 51 S. W. 140, 
 
 45: 400 
 
 10. Papers executed to shield the maker's 
 >on from a threatened prosecution for a 
 felony of which he is guilty are not ex- 
 cluded under duress so as to require their 
 cancelation. Shattuck v. Watson, 53 Ark. 
 147, 13 S. W. 516, 7: 551 
 
 11. Threats to arrest a man for embez- 
 zlement unless his wife will execute a 
 mortgage constitute duress, which will avoid 
 the mortgage made by her, if they are 
 sufficient to control her will. Mack v. 
 Prang, 104 Wis. 1, 79 N. W. 770.. 45: 407 
 Necessity of returning benefits. 
 
 12. The defense of duress is not condi- 
 tioned on the restoration of notes and col- 
 lateral which were surrendered when the 
 obligation in suit was obtained from the 
 defendant by threats of prosecuting her 
 husband for the forgery of such collateral, 
 where she, under direction of a friend to 
 whom the papers were delivered, and with 
 the knowledge of the plaintiff's agent who 
 surrendered them, gave the papers to her 
 husband, who has since died, and they can- 
 not be found. City Nat. Bank v. Kusworm, 
 88 Wis. 188. 59 N.' W. 564, 26: 48 
 
 Editorial Notes. 
 
 i. Generally. 
 
 What constitutes. 7: 551;* 9: 633.* 
 
 By lien on real property. 16: 376. 
 
 Equitable relief from acts induced by du- 
 ress and coercion. 6: 493.* 
 
 Annulment of acts done under duress. 6: 
 491.* 
 
 As affecting right to recover back money 
 paid for taxes. 2: 626.* ' 
 
 As an excuse for crime. 19: 357. 
 
 Duress of wife bv husband. 19: 358. 
 
 As ground of injunction again.st judgment. 
 
 30: 802. 
 
 To avoid marriage. 43: 814. 
 Assumpsit to recover back payments made 
 
 under. 4: 302.* 
 
 2. Contracts procured by threat to prose- 
 cute relatives. 
 General nature of. 26: 48. 
 
 Voidable upon the ground of duress, 
 
 26: 48. 
 
 Contrary to public policy. 26: 49. 
 Not enforceable for want of consent. 
 
 26: 51. 
 
 Relievable against in equity. 26: 52. 
 Duress as a defense. 26: 53. 
 Nature of the duress or menace. 26: 55. 
 In the case of parent and child. 26: 56. 
 To relieve husband or wife. 26: 60. 
 Other relations. 26: 64. 
 
 DUTIES. 
 
 Payment of, by Carrier Instead of Carrying 
 in Bond, see Carriers, 747; Damages, 
 230. 
 
 Sale of Property as Security for, see Sale, 
 11. 
 
 1. Jewelry presented to a citizen of the 
 United States while in a foreign country 
 cannot be taken by him into his own coun- 
 try free of duty, under par. 697 of the act 
 of Congress of July 24, 1897 (30 Stat. at 
 L. 202, chap. 11, U. S. Comp. Stat. 1901, p. 
 1689) unless within the proviso of that para- 
 graph that no more than $100 in value of 
 articles purchased abroad by residents of 
 the United States shall be admitted free 
 of duty on their return. United States v. 
 One Pearl Necklace, 49 C. C. A. 287. Ill Fed. 
 164, 56: 130 
 Forfeiture of dutiable articles. 
 
 See also infra, Editorial Notes. 
 
 2. The provisions of U. S. Rev. Stat. 
 2785, 3082. 2872, 2874 (U. S. Comp. Stat. 
 1901, pp. 1867, 2014, 1910), with reference 
 to the entry and unlading of merchandise 
 brought into the United States by passen- 
 gers from foreign countries, have no applica- 
 tion to dutiable articles brought in pack- 
 ages of baggage, but the entry and unlad- 
 ing of such articles are governed by 2799, 
 2801 (U. S. Comp. Stat. 1901, pp. 1872, 
 1873). United States v. One Pearl Neck 
 lace, 49 C. C. A. 287, 111 Fed. 164, 56: 130 
 
 3. Failure of a passenger from a foreign 
 country to mention dutiable articles in the 
 statement of his baggage which is required 
 to be made by U. S. Rev. Stat. 2799, 
 U. S. Comp. Stat. 1901, p. 1872, will subject 
 them to forfeiture under 2802 (U. S. 
 Comp. Stat. 1901, p. 1873), which provides 
 that articles not mentioned to the collect- 
 or before whom the entry is made, by the 
 person making the entry, shall be forfeited, 
 and such forfeiture is not saved by the men- 
 tion of them when a new entry is re- 
 quired by the officers under 2801 (U. S. 
 Comp. Stat, 1901, p. 1873) after having dis- 
 covered the articles although that section
 
 DUTY EASEMENTS. 
 
 1071 
 
 provides that, in case of mch discovery, due 
 entry of the articles "shall be made, and 
 the duties thereon paid." la. 
 
 4. Forfeiture of dutiable articles attempt- 
 ed to be brought from foreign countries into 
 the United States in baggage, because of 
 failure to mention them in the statement 
 required by U. S. Rev. Stat. 2799, U. S. 
 Comp. Stat. 1901, p. 1872, is not averted by 
 the fact that the form of declaration pre- 
 pared by the officers for use in making the 
 statement is misleading and unintelligible. 
 
 Id. 
 
 5. Intent to defraud the revenue is not 
 necessary to work a forfeiture of articles 
 omitted by a passenger arriving in the Unit- 
 ed States from the statement qf his bag- 
 gage, required by U. S. Rev. Stat. 2799, 
 U. S. Comp. Stat. 1901, p. 1872, such omis- 
 sion alone being sufficient. Id. 
 
 6. The attempted smuggling of goods in- 
 to the United States will justify their for- 
 feiture, as against the claims of one from 
 whom they were obtained by the smuggler 
 by a fraudulent purchase, which remains 
 unrescinded. 581 Diamonds v. United States, 
 56 C. C. A. 122, 119 Fed. 556, 60: 595 
 
 Editorial Notes. 
 
 Recovery for goods sold to smugglers. 15: 
 
 834. 
 
 Forfeiture of dutiable articles in passen- 
 ger's baggage. 56: 130. 
 In general. 56: 130. 
 Concealment. 56: 131. 
 Omission from manifest of vessel. 56: 
 
 132. 
 
 Entry or statement of baggage. 56: 133. 
 Permit for unlading. 56:134. 
 
 DUTY. 
 
 Question for Jury as to, see Trial, 296, 436. Tax on, see Taxes, 110 
 
 DWELLING. 
 
 Assault in Protection of, see Assault and 
 
 Battery, 27, 28. 
 Liability for Breaking into, see Officers, 210. 
 
 DYING DECLARATIONS. 
 
 Admissibility of, see Evidence, X. 1. 
 Contradiction of, see Witnesses, 160. 
 
 DYNAMITE. 
 
 Use of, in Blasting, see Blasting. 
 
 Judicial Notice as to Dangerous Nature of. 
 see Evidence, 106. 
 
 Presumption of Negligence from Explosion 
 of. see Evidence, 554. 
 
 Effect of Keeping of, on Insurance, see In- 
 surance, 486. 
 
 Master's Liability for Explosion of, see Mas- 
 ter and Servant, 81. 
 
 Contributory Negligence of Servant as to, 
 see Master and Servant, 380, 383. 
 
 Proximate Cause of Injury by Explosion of, 
 see Proximate Cause, 60, 61. 
 
 Instruction as to Thawing, see Trial, 814. 
 
 See also Explosions and Explosives. 
 
 Editorial Notes. 
 
 Negligence in the manufacture and storage 
 of. 29: 718. 
 
 DYNAMO. 
 
 EARNINGS. 
 
 Of Husband, Rights of Creditor as to, see 
 
 Husband and Wife, 181-186. 
 Wife's Right in, see Husband and Wife, 60. 
 
 Editorial Notes. 
 
 Future; mortgage or assignment of. 14: 
 
 126. 
 Right of creditors in personal services of 
 
 debtor. 21: 623. 
 
 EASEMENTS. 
 I. Nature; Kind. 
 
 II. Creation; How Acquired. 
 
 a. In General; By Express Terms. 
 
 b. By Prescription. 
 
 c. As Appurtenant; By Necessity. 
 III. Extent of Rights. 
 
 IV. How Lost. 
 V. Editorial Notes. 
 
 In Public Alley, see Alleys. 
 
 Canal Right of Way as Mere Easement, see 
 Canals, 3. 
 
 As Encumbrance, see Covenant, 18, 50. 
 
 Covenant as to, see Covenant, 7, 15, 100- 
 102. 
 
 Fee Subject to, as Basis of Ejectment, see 
 Ejectment, 19-22. 
 
 In Highway, see Eminent Domain, 367; 
 Highways, 36 44; Landlord and Ten- 
 ant, 93.
 
 1072 
 
 EASEMENTS, I., II. a. 
 
 As Distinguished from License, see License, 
 1, 4-8. 
 
 For Park in City, see Municipal Corpora- 
 tions, 58. 
 
 Notice of, see Notice, 88-90. 
 
 Partition of Property Subject to, see Par- 
 tition, 14, 15. 
 
 Of Support for Party Wall, see Party 
 Wall, 20. 
 
 Private Roads, see Private Roads. 
 
 Proximate Cause of Injury to, see Proximate 
 Cause, 123. 
 
 Record of Imstrument Releasing, see Real 
 Property, 65. 
 
 Of Street Railway, see Street Railways, 13, 
 14. 
 
 Grant of, to Turnpike Company, see Tolls 
 and Toll Roads, 3. 
 
 Purchaser of Land Subject to, see Vendor 
 and Purchaser, 98. 
 
 In Waters Generally, see Waters. 
 
 In Well, see Waters, 441. 
 
 Of Drainage, see Waters, 419, 420. 
 
 I. Nature; Kind. 
 
 For Editorial Notes, see infra, V. 1. 
 
 1. An easement is an interest in land cre- 
 ated by grant or agreement, express or im- 
 plied, which confers a right upon the owner 
 thereof to some profit, benefit, dominion, or 
 lawful use out of or over the estate of an- 
 other. Huyck v. Andrews. 113 N. Y. 81, 
 20 N. E. 581, 3: 789 
 Personal or appurtenant. 
 
 See also infra, 48, 56, 57; License, 8. 
 
 2. Whether an easement retained by the 
 grantor is intended to be permanent or per- 
 sonal is, when the language employed is am- 
 biguous, to be determined by the intent of 
 the parties as gathered from the language 
 employed, read in the light of surrounding 
 circumstances. Chappell v. New York, N. H. 
 & H. R. Co. 62 Conn. 195, 24 Atl. 997, 
 
 17: 420 
 
 3. An easement of a right of way is not 
 presumed to be personal, where it can fairly 
 be construed to be appurtenant to some 
 other estate. Reise v. Enos, 76 Wis. 634, 
 45 N. W. 414, 8: 617 
 
 4. A right of way in gross is a mere 
 personal privilege, and dies with the grantee, 
 although the instrument creating it con- 
 veys it to the grantee and his heirs and as- 
 signs forever. Fisher v. Fair. 34 S. C. 203, 
 13 S. E. 470, 14: 333 
 
 5. Where a right of way through a 
 private alley laid out entirely on the grant- 
 or's land is granted to the owner of prop- 
 'riv adjacent thereto which fronts on a 
 public street, and to his heirs and assigns 
 forever, it does not become appurtenant to 
 such property, but is a right of way in 
 gross. Id. 
 
 G-7. A right of way across a lot, given 
 by a conveyance of an adjoining lot, to be 
 used in common with the grantors and own- 
 >!:* and occupants of the former lot, is a 
 risrht appurtenant to the lot conveyed; and 
 
 the grantee, after he has conveyed the lot, 
 cannot claim to be still entitled to use the 
 right of way in connection with any other 
 lot subsequently acquired. Reise v. Enos, 
 76 Wis. 634, 45 N. W. 414, 8: 617 
 
 II. Creation; How Acquired, 
 a. In General; By Express Terms. 
 
 How Rights in, Lost, see infra, IV. 
 
 Statute of Frauds as to, see Contracts, 173- 
 177. 
 
 Power of Cotenant to Create, see Cotenancy, 
 23. 
 
 Covenant as to, see Covenant, 89, 90, 100- 
 102, 111, 112. 
 
 In Burial Lot, see Ejectment, 26. 
 
 Condemnation of Land for Private Road, see 
 Eminent Domain, 76-82. 
 
 Presumption of Grant of, see Evidence, 717. 
 
 For Maintenance of Partv Wall, see Party 
 Wall, 3. 
 
 Acquirement by Church Deacons, see Re- 
 ligious Societies, 18. 
 
 See also Deeds, 84. 
 
 For Editorial Notes, see infra, V. 2-5. 
 
 8. An easement in land can be granted 
 only by those who could convey a fee-simple 
 estate. Narron v. Wilmington & W. R. Co. 
 122 N. C. 856, 29 S. E. 356, 40: 415 
 
 9-10. A right in the nature of an ease- 
 ment cannot be created by a parol agree- 
 ment for the partition of lands, because 
 that involves something besides a severance 
 of the unity of possession. Taylor v. Mill- 
 ard, 118 N. Y. 244, 23 N. E. 376, 6: 667 
 
 11. The right to have the light and air 
 enter the windows of a building from an ad- 
 joining lot may exist by express grant, or 
 by virtue of express covenant or agreement. 
 Keating v. Springer, 146 111. 481, 34 N. E. 
 805, 22: 544 
 
 12. The right to have a court kept open is 
 not created by estoppel by bounding land 
 thereon in a deed by an administrator sell- 
 ing land under a license of the probate 
 court. Baker v. Willard, 171 Mass. 220, 50 
 N. E. 620, 40: 754 
 
 13. An easement of way cannot be im- 
 posed upon a tract of land by one who has 
 not at the time of the agreement acquired 
 title to it, although he undertakes to do so 
 as part of the consideration of another tract 
 conveyed to him, and he at the time con- 
 templates acquiring title to the parcel tbe 
 affected, and afterward in fact does so. 
 Houston v. Zahm. 44 Or. 610. 76 Pac. 641, 
 
 65: 799 
 
 By exception or reservation. 
 Presumption of Reservation, see Deeds, 88. 
 See also supra. 2; infra, 48, 56, 57, 87, 90. 
 For Editorial Notes, see infra, V. 2. 
 
 14. An easement may be created in Mas- 
 sachusetts by way of exception or reserva- 
 tion. Claflin v. Boston & A. R. Co. 157 
 Mass. 489, 32 N. E. 659, 20: 638 
 
 15. The word "heirs" is necessary to cre- 
 ate an easement in fee by way of reserva-
 
 EASEMENTS, 11. b. 
 
 1073 
 
 tion, but not to create it by way of excep- 
 tion if the grantor owned the fee at the 
 time of conveyance. Id. 
 
 16. An easement may be acquired by the 
 grantor by a clause of reservation in a deed; 
 and the technical distinction between res- 
 ervation and exception will be disregarded, 
 and the language used so construed as to 
 effectuate the intention of the parties. 
 Hagerty v. Lee (N. J. Err. & App.) 54 N. J. 
 L. 580, 25 Atl. 319. 20: 631 
 
 17. An exception in a deed may operate 
 to preserve a permanent easement to the 
 grantor without the use of words of limita- 
 tion. Chappell v. New York, N. H. & H. R. 
 Co. 62 Conn. 195, 24 Atl. 997, 17: 420 
 
 18. A reservation in a deed granting a 
 right of way for railroad tracks, of the priv- 
 ilege of crossing and recrossing and main- 
 taining water pipes over it, will preserve a 
 permanent easement to the grantor, where 
 the strip granted is so situated as to shut 
 off all access to the grantor's valuable 
 wharves, in such manner that without the 
 reservation a way of necessity would exist, 
 and the reservation is in effect an exception 
 of an already existing right. Id. 
 
 19. A right of way acquired by the grant- 
 or in a deed of a strip of land for railroad 
 purposes by "reserving . . . the right 
 of a passageway over said railroad," must 
 be taken to have been acquired by way of 
 reservation, and not by way of exception, 
 if there was no existing way at the time of 
 the conveyance. Claflin v. Boston & A. R. 
 Co. 157 Mass. 489, 32 N. E. 659, 20: 638 
 
 20. An exception of a right of way, which 
 will inure to the benefit of the heirs and 
 assigns of the grantor, is created by a 
 clause in a deed of a strip of land "reserv- 
 ing the privilege of a pass ... in my 
 usual place of crossing," where the pass was 
 used to reach other land of the grantor 
 difficult of access by any other route. Dee 
 v. King, 77 Vt. 230, 59 Atl. 839, 68: 860 
 
 b. By Prescription. 
 
 Estoppel to Deny Existence of Easement 
 
 by, see Estoppel, 218. 
 Prescriptive Right to Fish, see Fisheries, 5, 
 
 30-32. 
 
 In Waters of Great Pond, see Waters, 65-67. 
 Acquiring Water Rights by Prescription, see 
 
 Waters, II. k. 
 See also infra, 95-97. 
 For Editorial Notes, see infra, V. 4. 
 
 21. Easements by prescription in lajid are 
 only to be acquired by adverse user thereof 
 for twenty years. Hodgkins v. Farrington, 
 150 Mass. 19, 22 N. E. 73, 5: 209 
 
 22. To acquire a right by prescription in 
 the lands of another upon the presumption 
 of a grant, the possession must be adverse, 
 continuous, uninterrupted, and by the ac- 
 quiescence of the owner of the land over 
 which the easement is claimed. If its in- 
 ception is permissive or under a license from 
 the owner, it cannot prevail to work an 
 ouster. Curtis v. La Grande Hvdraulic 
 Water Co. 20 Or. 34, 23 Pac. 808. 25 Pac. 
 378. 10: 484 
 
 L.R.A. Dig. 68. 
 
 23. Knowledge of, and therefore consent 
 on the part of a landowner to, the adverse, 
 open, and notorious exercise of an easement 
 on his land for the period necessary to ob- 
 tain a right by presumption of a lost grant, 
 will be implied by law, although they in 
 fact do not exist. Boyce v. Missouri P. R. 
 Co. 168 Mo. 583, 68 S. W. 920, 58: 442 
 
 24. If an easement cannot be acquired by 
 adverse possession against a landowner 
 while the property is in possession of a ten- 
 ant, the doctrine will not apply in the land- 
 owner's favor where, more than the limita- 
 tion period before action brought and after 
 the adverse right had been asserted, he re- 
 quired a surrender and renewal of the lease. 
 
 Id. 
 
 As to buildings. 
 Of Lateral Support, see Lateral Support, 6. 
 
 25. A right to maintain a building or per- 
 manent structure upon the land of an- 
 other cannot be acquired by custom. Attor- 
 ney General ex rel. Adams v. Tarr, 148 
 Mass. 309, 19 N. E. 358, 2: 87 
 As to railroad. 
 
 26. A constitutional provision that private 
 property shall not be taken for public use 
 without compensation does not prevent the 
 acquisition by a railroad company of a pre- 
 scriptive right to a right of way. Boyce v. 
 Missouri P. R. Co. 168 Mo. 583, 68 S. W. 
 920, 58: 442 
 
 27. An easement for a railroad right of 
 way cannot be acquired by occupation under 
 color of title, as against an owner who has 
 given no consent thereto, where the occu- 
 pation is lawfully taken by right of emi- 
 nenc domain. Narron v. Wilmington & W. 
 R. Co. 122 N. C. 856, 29 S. E. 356, 40: 415 
 
 28. A railroad company which builds its 
 road at considerable expense over a right of 
 way. and openly, notoriously, and continu- 
 ously occupies and uses it for thirty-six 
 years, even without special claim of right 
 in words, acquires the right to an easement 
 over the land, although it entered thereon 
 under a verbal agreement by which the 
 owner gave it the right to use the land upon 
 condition that it would establish a depot 
 thereon and give him and his family free 
 transportation over the road. Texas & P. 
 R. Co. v. Scott, 23 C. C. A. 4^4, 41 U. S. App. 
 624, 77 Fed. 726, 37:94 
 
 29. The use of a private farm railroad 
 crossing by the public must be as a matter 
 of right, and not a permissive use, in order 
 to become a prescriptive right. McOeary v. 
 Boston & M. R. Co. 153 Mass. 300, 26 N. E. 
 864, 11:359 
 
 30. Evidence merely of the fact that a 
 private farm railroad crossing had been 
 used more or less by persons on foot and 
 with teams does not show a prescriptive 
 right of the public to use the crossing, 
 where the owner had kept gates and bars 
 on one side of the crossing, and no highway 
 was worked on one side, and there is no 
 evidence to show that the use by the public 
 was under a claim of right. Id. 
 
 31. An easement by prescription is not 
 shown bv the use, for less than twenty
 
 1074 
 
 EASEMENTS. II. c. 
 
 years, of a right of way across a railroad 
 after the termination of a right which had 
 previously existed under a reservation in a 
 deed for the lives of the grantors, although 
 the right to cross was referred to in certain 
 deeds between the parties, but not in a way 
 sufficient to give the right. Claflin v. Bos- 
 ton & A. R. Co. 157 Mass. 489, 32 N. E. 
 659, 20: 638 
 
 32. A railroad company which constructed 
 a crossing over its track and ties, and put 
 gates in its fences, for the benefit of the 
 owner of land so situated, by whom the 
 same were used in passing from one part of 
 her farm to the other for more than fifteen 
 years, during which the company main- 
 tained said crossing and gates, thereby made 
 the landowner only a mere licensee who 
 could not, by use of the crossing for the 
 time stated, obtain a prescriptive right to 
 the same. Atchison, T. & S. F. R. Co. v. 
 ( 'onion, 62 Kan. 416, 63 Pac. 432, 53: 781 
 
 33. The public use, for the prescriptive 
 period, of a path along a railroad right of 
 way, with the knowledge, acquiescence, and 
 consent of the railway company, gives the 
 public no prescriptive right to travel there, 
 where the statutes limit the use to which a 
 railroad company can devote its right of 
 way to the purposes for which it was con- 
 demned, and allow the condemnation of 
 rights of way across the railroad right of 
 way only when it can be done without hin- 
 drance to the use for which the property 
 was acquired by the railroad company. 
 Matthews v. Seaboard Air Line Railway, 
 67 S. C. 499, 46 S. E. 335, 65: 286 
 As to roadway. 
 
 34. The use of -the private way to a 
 wharf and warehouse by the public can- 
 not give a prescriptive right of user to the 
 public, as it is not inconsistent with pri- 
 vate ownership. Lewis v. Portland, 25 Or. 
 133, 35 Pac. 256, 22: 736 
 
 35. A prescriptive right to use a driveway 
 is not established by continuing its use for 
 more than thirty years, under an agreement 
 for a perpetual easement, made before the 
 previous use had continued long enough to 
 ripen into a right by prescription. Nowlin 
 v. Whipple, 120 Ind. 596. 22 N. E. 669, 
 
 6: 159 
 
 36. The use for more than 100 years of 
 a well-known and well-defined roadway 
 from a public road to a great pond, by 
 hunters, fishermen, picnic parties, cele- 
 brators on public occasions, and by whom- 
 soever chose, without objection and without 
 obstruction, does not establish a way by 
 prescription or dedication, where it does not 
 appear that such use was with the express 
 or implied permission of the owners of the 
 land. Slater v. Gunn. 170 Mass. 509, 49 
 N. E. 1017, 41: 268 
 As to way of necessity. 
 
 For Editorial Notes, see infra, V. % 3. 
 
 37. Claiming the right to use a way to 
 which claimant has a right as a way of 
 necessity is not adverse, so as to ripen into 
 a prescriptive right which will survive the 
 necessity. Ann Arbor Fruit & V. Co. v. 
 
 Ann Arbor R. Co. 136 Mich. 599, 99 N. W. 
 869, 66: 43-1 
 
 38. Continued use of a right of way 
 which originated in necessity after the 
 necessity has ceased does not become ad 
 verse until notice of the adverse claim is 
 brought home to the owner of the servient 
 estate. Id. 
 
 39. The owner of the servient estate can- 
 not be presumed to know that a continued 
 use of a way originating in necessity after 
 the necessity has ceased is claimed to be 
 adverse, where he has no notice of the cir- 
 cumstances which have terminated the 
 necessity. Id. 
 
 40. Adverse title to a right of way which 
 originated in necessity cannot be founded 
 on the doctrine of constructive notice; that 
 is, that the owner of the servient estate 
 should have known that the claim to its 
 use had become adverse, if he did not in 
 fact have such knowledge. Id. 
 As to burial lot. 
 
 41. The title to an easement of a burial 
 lot may be acquired by prescription, where 
 adverse possession for that purpose is held 
 for the statutory period. Hook v. Joyce, 
 94 Ky. 450, 22 S. W. 651, 21: 96 
 As to ice. 
 
 42. A prescriptive right to the ice on the 
 whole surface of a pond, and not merely to 
 those portions of it from which ice has been 
 cut, is acquired by those who have exer- 
 cised the right, without objection from 
 anyone, to cut and gather ice at any point 
 or points they choose during a time long 
 enough to create prescriptive rights under 
 the statute of limitation, claiming the right 
 under a deed which gave the right to the 
 flowage by which the pond was created. 
 Mansfield v. Place, 93 Mich. 450, 53 N. W. 
 617, 18: 39 
 For repairs. 
 
 43. A servitude by prescription charging 
 property with the payment of a portion of 
 the expense of repairs to a dam from which 
 a water power is furnished to the premises 
 is created, where for more than fifty years 
 an annual contribution by the owner of the 
 servient estate has been paid as a duty and 
 collected by the other party as a right. 
 Whitlenton Mfg. Co. v. Staples, 164 Mass. 
 319, 41 N. E. 441, 29: 500 
 
 c. As Appurtenant; By Necessity. 
 
 As to Whether Easement is Personal T 
 Appurtenant, see supra, 2-6. 
 
 Under Deed of Cotenant, see Cotenancy, 45. 
 
 Restricting Distance of Building from 
 Street, see Covenant, 37. 
 
 See also Deeds, 77. 
 
 For Editorial Notes, see infra, V. 3, 6. 
 
 44. The necessity required in order to 
 pass an easement by implication is a rea- 
 sonable, not an absolute, one. Paine v. 
 Chandler, 134 N. Y. 385, 32 N. E. 18, 19: 99 
 
 45. A right of way appurtenant to land 
 attaches to every part of it, even though it 
 may be divided between several different 
 persons. Dee v. King, 77 Vt. 230, 59 Atl. 
 839. 68: 860
 
 EASEMENTS, 11. c. 
 
 1075 
 
 46. Mere convenience is not sufficient to 
 create or convey an easement by implica- 
 tion, but the privilege or right must be of 
 value to the estate granted, which the 
 grantee has estimated as an advantage to 
 the estate and paid for in his purchase. 
 Paine v. Chandler, 134 1ST. Y. 385, 32 N. E. 
 18, 19: 99 
 
 47. The owner of the fee in lands occu- 
 pied as depot grounds, who occupies an ad- 
 joining lot, has no right of passage over 
 the grounds except at the public crossing. 
 Lyon v. McDonald, 78 Tex. 71, 14 S. W. 
 261, 9: 295 
 
 48. A reservation, in a conveyance of a 
 lot which has a right of way appurtenant, 
 of such right of way to the grantor, is 
 ineffectual. He cannot enlarge the right, or 
 retain any interest in the right of way as 
 separate and distinct from the lot to which 
 it belongs. Reise v. Enos. 76 Wis. 634, 
 45 N. W. 414, 8: 617 
 Light and air. 
 
 Easement of Abutting Owner as to, see 
 
 Highways, 55. 
 For Editorial Notes, see infra, V. 5. 
 
 49. The doctrine that an easement appur- 
 tenant to a close is appurtenant to every 
 parcel into which that close may be divided 
 is not applicable to an easement of light 
 and air, which ordinarily is limited to 
 windows and doors or other apertures in a 
 building. Baker v. Willard, 171 Mass. 220, 
 50 N. E. 620, 40: 754 
 
 50. An easement of light or air does not 
 pass by implication on a conveyance of a 
 building with windows looking out over 
 vacant lots the title to which remains in 
 the grantor, although the enjoyment and 
 value of the building will be greatly im- 
 paired by erecting a structure in close 
 proximity to it on the vacant lots. Ken- 
 nedy v. Burnap, 120 Cal. 488, 52 Pac. 843, 
 
 40: 476 
 
 51. A purchaser of a tract of land 40 feet 
 wide and on which is a building 11 feet 
 wide from land retained by the grantor, 
 with a bay window 5 feet from such land, 
 does not obtain by implied grant the right 
 to the light which the building will receive 
 from the unconveyed portion, as against a 
 subsequent purchaser for value of the re- 
 maining land. Robinson v. Clapp, 65 Conn. 
 365, 32 Atl. 939, 29: 582 
 
 52. A landlord will not be liable for ob- 
 structing his tenant's windows by building 
 on the adjoining close, in the absence of any 
 covenant or agreement in the lease for- 
 bidding him to do so. Keating v. Springer, 
 146 111. 481, 34 N. E. 805, 22: 544 
 
 53. The right of a tenant of upper floors 
 to light and air from a well or open space 
 which is not accessible to the street can- 
 not be obstructed, where it is necessary to 
 the enjoyment of the demised premises. 
 Case v. Minot, 158 Mass. 577, 33 N. E. 700, 
 
 22: 536 
 
 54. A landlord is liable to a tenant of up- 
 per floors for wrongful obstruction of light 
 and air from a well or open space in a 
 building, by a chimney constructed by an- 
 other tenant under the landlord'^ 
 
 authority to erect such chimney for tin- 
 use of boilers in the basement. f<l. 
 View. 
 
 Extent of Easement, see infra, 96, 97. 
 Jurisdiction of Suit as to, see Courts, 297. 
 Ha lenient of Abutting Owner, see High 
 ways, 42. 
 
 55. The mere fact that a view is ob- 
 structed from one place to another does not 
 of itself import an injury. Lyon v. Mc- 
 Donald, 78 Tex. 71, 14 S. W. 261, 9: 295 
 
 56. A negative easement appurtenant, 
 such as a restriction on building to obstruct, 
 a view of the sea from certain premises, 
 cannot be reserved on conveyance of such 
 premises, but is extinguished if severed 
 therefrom by an attempted reservation. 
 Cadwalader v. Bailey, 17 R. I. 495, 23 
 Atl. 20, 14: 300 
 
 57. A covenant restricting erections on a 
 strip of beach retained by the grantor, but 
 overlooked by the land conveyed, which 
 was obviously intended to preserve an un- 
 obstructed view of the sea, creates a nega- 
 tive easement appurtenant. Id. 
 Use of stairways. 
 
 58. The use of stairways in a building 
 erected by several owners of land as a single 
 structure, upon a single plan, and under a 
 single contract, no matter whether the land 
 was then partitioned or not, cannot be 
 denied by the owners of that part which 
 includes the stairways to the owner of an- 
 other part the upper floors of which can be 
 reached in no other way. Pierce v. Cleland, 
 133 Pa. 189, 19 Atl. 352, 7: 752 
 Use of elevator. 
 
 59. The right to use an elevator for 
 hoisting goods from a basement room up to 
 the sidewalk, or lowering them from the 
 sidewalk to the basement, cannot be implied 
 as incidental or appurtenant to the estate 
 in the basement room, where the elevator 
 was not originally intended for use by occu- 
 pants of that room, and suitable means of 
 ingress and egress were furnished by steps 
 and doors from the basement to the street- 
 while there was at no time any access to 
 the* elevator directly from the basement, 
 and only through another room by a way 
 which was not a common passageway. 
 Cummings v. Perry, 169 Mass. 150, 47 N. E. 
 618, 38: 14P 
 Support of building. 
 
 See also infra, 80, 96, 97. 
 
 60-64. An easement for the support of a 
 building by a wall which is acquired by 
 possession becomes appurtenant to the es- 
 tate and passes to successive owners of the 
 building. Barry v. Edlavitch, 84 Md. 95, 
 35 Atl. 170, 33: 294 
 
 In alley. 
 Extent of Rights, see infra, 85, 86. 
 
 65. An easement in an alley across th. 
 rear end of an adjacent lot is created as in- 
 cident or appurtenant to a building sold by 
 the common owner, when the alley furnishes 
 access to a cellar under the building, as 
 well a* light and air for the rear portion 
 of it. Irvine v. MeCreary. 108 Ky. t'.i.l. .V. 
 S. \Y. 966. ' U7
 
 1076 
 
 EASEMENTS, III. 
 
 As to waters. 
 
 66. A prior appropriator who owns a 
 ditch across lands subsequently patented by 
 the state to another person has the right 
 to enter on such lands to clean and repair 
 the ditch. Carson v. Gentner. 33 Or. 512, 
 52 Pac. 506, 43: 130 
 
 67. The right to the use of the waters of 
 a spring which are conveyed by pipe from 
 one farm to another owned by the same 
 person passes by implication on a convey- 
 ance of the latter farm, where the flow of 
 the water is essential to the enjoyment of 
 this farm, and the loss thereof will impair 
 its rental value $50 per year, or depreciate 
 its fee value $6 per acre. Paine v. Chan- 
 dler, 134 N. Y. 385, 32 N. E. 18, 19: 99 
 
 68. A party who conveys a mill and dam 
 conveys all the easements that he has, or 
 claims and purports to have, at the time 
 of the conveyance, in connection therewith, 
 incident and necessary to the just .enjoy- 
 ment of the mill and dam. Bowling v. Bur- 
 ton, 101 N. C. 176, 7 S. E. 701,. 2: 285 
 
 69. A right to fish from a boat in water 
 that covers the land of another person can- 
 not be claimed as an easement, because an 
 easement is a privilege without profit. Al- 
 bright v. Cortright (N. J. Err. & App.) 64 
 X. J. L. 330, 45 Atl. 634, 48: 616 
 
 70. A right of flowage which a deed by 
 the proprietor of lands on both sides of a 
 river in conveying one side of it reserves as 
 part of a mill privilege for the benefit of a 
 mill to be operated by water to be raised 
 by a dam is to be deemed appurtenant to 
 the land of which the mill and dam will be 
 a part, and not merely an easement in 
 gross. Smith v. Furbish. 68 N". H. 123, 44 
 Atl. 398, 47: 226 
 
 71. A deed made by the owner of a tract 
 of land, upon a portion of which was lo- 
 cated a fresh-water lake, by which he con- 
 veyed a portion of the upland adjoining the 
 lake, "together with" the right to traverse 
 the lake in boats for pleasure and to take 
 fish and ice therefrom for domestic use, and 
 not for profit, to be exercised by the 
 grantee, her heirs and assigns, grants 
 those rights and privileges as appurtenant 
 to the upland, and not in gross. Mitchell 
 v. D'Olier (N. J. Err. & App.) 68 N. J. L. 
 375, 53 Atl. 467, 59: 949 
 Way of necessity. 
 
 Condemnation of Land for, see Eminent 
 
 Domain, 79, 80. 
 
 Parol Evidence as to, see Evidence, 1098. 
 Notice of Claims of, see Real Property, 83. 
 See also supra, 18, 37-40, 44, 46; infra. 79, 
 
 89, 93, 94. 
 For Editorial Notes, see infra, V. 3. 
 
 72. A way by necessity to land which is 
 entirely surrounded by land of another 
 owner is founded on an implied grant, and 
 does not exist unless there has been a unity 
 uf ownership. Ellis v. Blue Mountain For- 
 t Asso. 69 N. H. 385, 41 Atl. 856, 42: 570 
 
 73. The purchase of several tracts of land 
 which completely inclose land belonging to 
 another person will not entitle him to a 
 way by necessity if there had been no such 
 way over either of the parcels bought, al- 
 
 though highways leading thereto were dis- 
 continued at the instance of the purchaser 
 of the surrounding land. Id. 
 
 74. A grantee is not entitled to a way of 
 necessity from one part of land to another, 
 when it is divided by a strip that has been 
 previously taken in fee by a railroad com- 
 pany in condemnation proceedings. Atehi- 
 son, T. & S. F. R. Co. v. Conlon, 62 Kan. 
 416, 63 Pac. 432, 53: 781 
 
 75. A way of access by water to land 
 bordering on the sea is sufficient to prevent 
 a right of way from necessity across land 
 of the grantor which incloses it on the 
 land side. Kingsley v. Gouldsboro Land 
 Improv. Co. 86 Me. 279, 29 Atl. 1074, 
 
 25: 502 
 
 76. A way of necessity is created on the 
 partition of lands, in the absence of any- 
 thing in the record to the contrary, if such 
 way would have been created in favor of 
 one of the parcels by its conveyance or de- 
 vise by the common ancestor. Ritchey v. 
 Welsh, 149 Ind. 214, 48 N. E. 1031,* 
 
 40: 105 
 
 77. A right of way over a railroad does 
 not exist as a necessary incident or sec- 
 ondary easement to a right of way re- 
 served in a deed of a strip of land adjoin- 
 ing the railroad and described as going '*to 
 the crossing heretofore secured" to the 
 grantor over the said railroad, where no 
 such right of crossing the railroad existed 
 at that time. Claflin v. Boston & A. R. Co. 
 157 Mass. 489, 32 N. E. 659, 20: 638 
 
 III. Extent of Rights. 
 
 Right of Action for Trespass on, by Ele- 
 vated Railroad, see Action or Suit, 7. 
 
 Compelling Removal of Obstruction to, see 
 Injunction, 42, 44. 
 
 Injunction against Encroachment on Ease- 
 ment, see Injunction, 182-185. 
 
 To Take Coal, see Mines*, 35. 
 
 See also supra, 48. 
 
 For Editorial Notes, see* infra, V. 6, 7, 9. 
 
 78. The conveyance of a right of iway 
 gives the grantee, not only the right to un- 
 obstructed passage at all times, but also 
 such rights as are incident or necessary to 
 the enjoyment of such right of passage. 
 Herrman v. Roberts, 119 N. Y. 37, 23 N. E. 
 442, 7:226 
 
 79. A grantee of land across which a prior 
 grantee from the same grantor has the 
 right to a way by necessity takes it subject 
 to such right, although it had been neither 
 exercised nor claimed before his title was 
 acquired. Logan v. Stogdale, 123 Ind. 372, 
 24 N. E. 135, 8: 58 
 
 80. The right to occupy the space inter- 
 vening between a wall and the line by one 
 who acquires an easement by prescription 
 for the use of the wall to support a building 
 is a part of the easement so acquired. Barry 
 v. Edlavitch. 84 Md. 95. 35 Atl. 170, 
 
 33: 294
 
 EASEMENTS, III. 
 
 1077 
 
 Light and air. 
 
 In Public Alley, see Alleys, 3, 5. 
 
 See also Covenant, 32-34, 47. 
 
 For Editorial Notes, see infra, V. 5, 7. 
 
 81. The easement or right in respect to 
 light and air from an open space annexed 
 to a mansion-house estate, created by will 
 by providing that the establishment shall 
 continue as much as possible unchanged, 
 does not amount to a general right to have 
 the space kept open for the whole extent of 
 the court, but only to an ordinary ease- 
 ment of light and air for the windows and 
 doors of existing buildings, where there 
 was no communication or entrance to the 
 court from the inansion-house estate, and 
 its only use of the court was for Alight and 
 air and for a drain. Baker v. Willard, 171 
 Mass. 220, 50 N. E. 620, 40: 754 
 Building over passage. 
 
 See also supra, 81. 
 
 For Editorial Notes, see infra, V. 7. 
 
 82. The light of passage on foot over a 
 space not less than 3% feet in width does 
 not include the right to have the passage 
 kept open to the sky. Baker v. Willard, 
 
 Mass. 220, 50 N. E. 620, 
 
 40: 754 
 
 83. The right of passage created by deed, 
 for horses, carriages, and carts, for the pri- 
 vate convenience of the owners of certain 
 lots used, for residence purposes, across the 
 back end of 'such lots, "for the use and pur- 
 pose aforesaid and no other," is not vio- 
 lated by building over the passage, leaving 
 a space high enough for the uses specified. 
 Hollins v. Demorest, 129 N. Y. 676, 29 N. 
 E. 1093. 15= 487 
 In stairways. 
 
 Compelling Restoration of Stairway, see 
 Injunction, 42. 
 
 84. Reciprocal easements created by mu- 
 tual covenants of adjoining lot owners for 
 the use of stairs, hallways, skylight, and 
 heating apparatus in common in buildings 
 which they erect, may be protected and en- 
 forced by a court of equity when the rem- 
 edy at law is insufficient. Barr v. Lamas- 
 
 ter, 48 Neb. 114, 66 N. W. 1110, 
 
 In alley. 
 
 Easement in Alley as Appurtenant, see 
 
 supra, 65. 
 In Public Alleys, see Alleys, 3, 5. 
 
 85. Electric light wires and the cross arm 
 attached to a pole which stands outside of 
 an alley cannot be lawfully extended over a 
 private alley the easement of which is con- 
 fined to abutting owners, although it is 
 done to furnish electric light to one- of the 
 parties entitled to the easement, but with- 
 out the consent of the others. Carpenter v. 
 Capital Electric Co. 178 111. 29, 52 N. E. 
 973, : 045 
 
 86. The fact that electric light wires are 
 about 14 feet above the surface of a pri- 
 vate alley over which they an- strung with- 
 out right will not prevent the court from 
 ordering their removal, especially when 
 they might interfere with the operations 
 of the fire department, and obstruct the 
 transfer of freight or other materials to 
 ami from the second-story windows of a 
 building. 
 
 Cattle pass. 
 
 87. The reservation in a grant of land for 
 a highway which will necessitate a bridi," 
 over a ravine, of the right to attach a 
 fence to the bridge will include the right to 
 a cattle pass under the bridge, where the 
 grantor used the land on both sides of the 
 road for pasturage, and the water supply 
 was all on one side, and thero was no ap 
 parent purpose in reserving the right to at 
 tach the fence to the bridge, except to af- 
 ford an opportunity for cattle to pass under 
 the bridge. Ague v. Seitsinger, 96 Iowa. 
 181, 64 N. W. 836, 36: 701 
 ?ipe line in railroad crossing. 
 
 88. A pipe line for oil laid underground 
 in a wagon road or crossing under a rail- 
 road track, which, by stipulation in a deed 
 to the railroad company, it is required to 
 construct and maintain for the grantor, so 
 as to enable him to travel and cross freely 
 between his lands on each side of the rail 
 road, is not within the easement reserved, 
 but constitutes a trespass, even if it does 
 not injure the railroad. United States 
 Pipe -Line Co. v. Delaware, L. & W. R. 
 Co. (N. J. Err. & App.) 62 N. J. L. 254, 41 
 Atl. 759, 42: 572 
 Right to locate way. 
 
 89. The right to locate a way of neces 
 "sity belongs to the owner of the land 
 over which it is to pass, provided he ex- 
 ercises it in a reasonable manner, having due 
 regard to the rights and interests of the 
 owner of the dominant estate; but if he 
 fails to select it when requested the party 
 who has the right thereto may select a 
 suitable route having due regard to the 
 
 , convenience of the owner of the servient 
 i estate. Ritchey v. Welsh. 149 Ind. 214, 48 
 
 N. E. 1031, 40: 105 
 
 Fencing in. 
 
 Fencing in Private Road, see Private 
 Roads, 1. 
 
 90. The right to fence a right of way is 
 not given by a reservation in a deed, of "a 
 reasonable right of way across the land." 
 Sizer v. Quinlan, 82 Wis. 390, 52 N. W. 
 590, 16: 512 
 Obstruction. 
 
 91. One in pos>ciun of dominant prom 
 ises and of a way appurtenant thereto, al 
 though only a tenant at will under a parol 
 lea-e. can sue the owner of the servient 
 premises for damages for obstructing the 
 way. Hamilton v. Don ni son, 56 Conn. 359. 
 
 15 Atl. 748, 
 
 1 : 287 
 
 IV. The grantor of a right of way over 
 rough, rocky land, which is used as a 
 pa-sageway to a highway from the resi 
 dencc of the grantee, who has expended 
 monov in preparing the roadway, cannot 
 deposit stone or other obstruction thereon, 
 or cut it up by drawing heavy loads over it. 
 or in any way materially obstruct or injure 
 the roadbed. Hcrrman v. Roberts, 119 N. 
 Y. 37, 23 X. K. ">. ' -- (i 
 
 Cnange. 
 
 Raising or Expending I'am Wall, see Party 
 \Vall. 0-14.
 
 * 1076 
 
 EASEMENTS, IV. 
 
 Change of Easement in Ditch, see Waters, 
 
 466. 
 For Editorial Notes, see infra, V. 7. 
 
 93. A way of necessity once selected can- 
 not be changed by either party without the 
 consent of the other. Ritchey v. VYelsh, 149 
 Ind. 214, 48 N. E. 1031, 40: 105 
 
 94. The offer of a substitute for a right of 
 way by necessity in favor of one over an- 
 other parcel of land partitioned which would 
 consist of a private way over other lands 
 that constituted no part of the estate held 
 in common need not be accepted by the 
 owner of the right of way. Id. 
 
 95. A barway connecting a right of way 
 by prescription with a highway may be 
 cut down by the owner of the easement to 
 the grade of the highway, when that is 
 lawfully lowered by the public authori- 
 ties. Nichols v. Peck, 70 Conn. 439, 39 Atl. 
 803, 40: 81 
 
 96. The extent of an easement to use a 
 wall of an adjoining owner for the support 
 of a building, which is acquired by prescrip- 
 tion, is the enjoyment of the use of the 
 wall for the support of the house as it ex- 
 isted during the period of prescription. 
 Barry v. Edlavitch, 84 Md. 95, 35 Atl. 170, 
 
 33: 294 
 
 97. The owner of a wall which is subject 
 to an easement by prescription for the sup- 
 port of the building of an adjoining owner 
 has the right, on raising the wall higher, to 
 the sole use thereof unaffected by any 
 easement for the use of the new portion to 
 support an additional story of the house to 
 which the easement belongs. Id. 
 Rights of third persons. 
 
 98. A conveyance to each other by ad- 
 joining lot owners, of the open space be- 
 tween the common boundary line and their 
 respective buildings, to be used as a com- 
 mon pass way for their mutual benefit, and 
 for no other purpose, devests each owner of 
 tne fee, leaving in him only a right of way 
 over such open space; and third persons 
 may also use the space in a reasonable 
 manner, so as not to impede the right of 
 passage of the grantors. Low v. Streeter, 
 66 N. H. 36. 20 Atl. 247, 9: 271 
 
 IV. How Lost. 
 
 By Ordinance Closing Alley, see Alleys, 6. 
 By Laches, see Limitation of Actions, 14. 
 By Destruction of Party Wall by Fire, see 
 
 Party Wall. 19. 
 See also supra, 56. 
 For Editorial Notes, see infra, V. 8. 
 
 99. An easement ends when the particu- 
 lar purpose for which it was granted ceases, 
 [fahn v. Baker Lodge No. 47 A. F. & A. 
 M. 21 Or. 30. 27 Pac. 166, 13: 158 
 
 100. A purchaser of a lot with notice of 
 restrictions in the original plat of the 
 lands, which was referred to and made a 
 part of a deed in the chain of title, and has 
 been constantly recognized by the different 
 lot owners as a common source of title, is 
 not released from the binding force of the 
 restrictions merelv because tliev are not ex- 
 
 pressly reserved in the conveyance to him 
 or in others of the deeds in' his chain of 
 title. Ewertsen v. Gerstenberg, 186 111. 344 
 57 N. E. 1051, 51:310 
 
 101. The failure or refusal of a life 
 tenant of premises to which an easement in 
 an alley was made appurtenant by grant, to 
 pay taxes and expenses on the alley, which 
 she was primarily bound to do, will not 
 show any intention of the owners of the 
 fee to abandon the easement, unless they 
 knew of such failure or refusal. Welsh v 
 Taylor. 134 N. Y. 450, 31 N. E. 896, 
 
 18: 535 
 By nonuser. 
 For Editorial Notes, see infra, V. 8. 
 
 102. An easement acquired by grant can- 
 not be extinguished by mere nonuser, with- 
 out anything to show an intention to aban 
 don it. Welsh v. Taylor, 134 N. Y. 450, 31 
 N. E. 896, 18: 535 
 
 103. Mere nonuser, for any length of time, 
 of an easement created by express grant, 
 will not destroy or extinguish it, but there 
 must be some conduct on the part of the 
 owner of the servient tenement adverse to 
 and in defiance of the easement; and the 
 nonuser must be the result of it, and must 
 continue for twenty years. Dill v. Camden 
 Bd. of Edu. (N. J. Ch.) 47 N. J. Eq. 421, 20 
 Atl. 739, , 10: 276 
 
 104. An easement acquired by grant can- 
 not be lost by mere nonuser for any length 
 of time, but may be lost by nonuser for 
 twenty years under circumstances showing 
 an intention to abandon it, or even for a 
 shorter period under circumstances show- 
 ing such intention, which is acted upon by 
 the owner of the servient tenement so that 
 it would work harm to him if the easement 
 were afterward asserted. Snell v. Levitt, 
 110 N. Y. 595, 18 N. E. 370, 1: 414 
 
 105. An easement which has not been 
 used for more than twenty years, during a 
 large portion of which time a substituted 
 easement has been used, is extinguished, as 
 a matter of law; and there is no question 
 for the jury. Id. 
 
 106. The right of passage through a bar- 
 way as part of a right of way by prescrip- 
 tion is not lost by failure to uae it for 
 eleven years after the barway lias IXMMI 
 made impassable by the lowering of a high- 
 way with which it is connected, by the 
 public authorities, and the use, as a sub- 
 stitute, under an implied license, of another 
 barway about 70 feet distant. Nichols v. 
 Peck, 70 Conn. 439. 39 Atl. 803. 40: 81 
 Inclosing. 
 
 107. The mere erection, by a purchaser of 
 a lot with reference to an alley shown by a 
 map of the block made by the grantor, of a 
 fence inclosing the strip designated as the 
 alley, and his maintaining such inclosure 
 for more than twenty years, will not ex- 
 tinguish the right of light, air, and prospect 
 of a purchaser of an adjoining lot on the 
 opposite side of the alley. Dill v. Camden 
 Bd. of Edu. (N. J. Ch.) 47 N. J. Eq. 421, 20 
 Atl. 739, 10: 276 
 
 108. The erection of a house and fence 
 without any opening on an alley in which
 
 EA8EMEM8, V. ^Ed. Notes.) 
 
 1079 
 
 the owner has an easement by grant does 
 not show an intention to abandon the ease- 
 ment. Welsh v. Taylor, 1.34 N. Y. 450, 31 
 N. E. 896, 18: 535 
 
 109. The mere existence of a gate in an 
 alley, and acquiescence therein by one hav- 
 ing an easement by grant in the alley, but 
 who did not use it, will not be prejudicial 
 to his right, unless an adverse claim is 
 brought to his knowledge. Id. 
 
 110. The chaining and locking of a gate is 
 a sufficient revocation of an implied license 
 to use it arising from the owner's acqui- 
 escence for eleven years in its use by one 
 who had a right of way across the premises, 
 after a barway at some distance from it, 
 through which he had a right to enter the 
 highway, had been made impassable by the 
 lowering of the highway by the public au- 
 thorities. Nichols v. Peck, 70 Conn. 439, 
 39 Atl. 803, 40: 81 
 
 V. Editorial Notes. 
 
 As to Railroad Right of Way, see Rail- 
 roads, III. 8. 
 i. What are; nature of. 
 Defined. 6:159;* 8:617.* 
 Distinguished from license. 6:159.* 
 Interest of owner in burial lot as. 67:119. 
 As an encumberance within covenant against 
 
 encumbrances. 3:790.* 
 Measure of damage where easement 
 
 exists. 3:790.* 
 
 Use of, as adverse possession. 4:645.* 
 2. Creation of. 
 How created, generally. 8:617.* 
 By agreement with reference to party wall. 
 
 7:650.* 
 Exception and reservation of easements. 
 
 20:631. 
 
 General distinctions between exception 
 and reservation. 20:631. 
 Creation of easement by reservation. 
 
 20:631. 
 
 Words of inheritance necessary in the 
 reservation of easements. 
 20:632. 
 
 Exception of easements. 20:632. 
 Words of inheritance not necessary to 
 except an easement in fee. 
 20:633. 
 
 Necessity of technical words. 20:633. 
 Reservation out of grantee's other prop- 
 erty. 20:633. 
 Reservation in favor of stranger. 20: 
 
 634. 
 
 Construction of reservation. 20:634. 
 Duration of easements appurtenant 
 
 20:635. 
 Illustration of the use of reservations 
 
 20:637. 
 
 Reservation of way in deed. 5:279.* 
 Reserved in condemnation case to reduce 
 
 damages. 26: 751. 
 
 3. By implication; of necessity. 
 When implied. 8:446;* 13: 126.* 657.' 
 On sale of part of a building. 13:158.* 
 Appurtenant easement. 20:635. 
 As appurtenance to mill. 2: 285.* 
 Right of way by necessity. 8:58.* 
 
 Implied easement of light, air. and pros- 
 pect. 22:536. 
 t 4. By prescription, 
 enerally. 10:484.* 
 
 Acquiescence in adverse use. 10:484.* 
 "ixtent of prescriptive right. 10:484.* 
 How established. 10:485.* 
 ntent of original creation. 10:485.* 
 Vay by prescription. 10:485.* 
 Necessity that possession be continuous and 
 
 uninterrupted. 10:485.* 
 Presumption of easement. 10:486.* 
 Prescriptive right to flsh. 60:496. 
 5 5. Light; air; prospect; access. 
 Abutting owner's easements of light and 
 air. 11:634;* 14:370, 381. 
 Injury to abutter's easements of light, air, 
 and access by vacating 
 street, changing grade, etc. 
 14:370, 383. 
 American law as to easements of light, air, 
 
 and prospect. 22:536. 
 Right of prospect. 22:538. 
 Implied grants. 22:538. 
 Implied easement of tenant. 22:540. 
 Express grant or reservation of such 
 
 easements. 22:541. 
 Enforcement of right. 22: 542. 
 Right to light and air from public 
 
 highway. 22:543. 
 Bad motive as affecting liability for ob- 
 structing light and air. 
 62:683. 
 6. Transfer of; duration. 
 Right to assign or transmit easement in 
 
 gross. 14:333. 
 When grantee acquires a profit in the 
 
 grantor's land. 14:333. 
 The Massachusetts rule. 14: 335. 
 Effect of attempt to sever appurtenant ease- 
 ment from the premises 
 for the benefit of which it 
 exists. 14:300. 
 Duration of easements, appurtenant. 20: 
 
 635. 
 
 7. Interference with; change of. 
 Revocability of license interfering with ease- 
 ment. 49:505. 
 
 Building over right of way. 15:487. 
 Right to change easement. 15:93. 
 
 Where change is harmless or beneficial 
 
 to other party. 15:94. 
 Effect of substitution of new way for old. 
 
 5:652.* 
 
 Injury to abutter's easements of light, air, 
 and access by vacating 
 street, changing grade, etc. 
 14:370, 383. 
 
 Bad motive as affecting liability for ob- 
 structing light and air. 
 62:683. 
 
 Mandatory injunction for removal of ob- 
 struction to light. 20:161. 
 Liability of landlord to tenant for obstruc- 
 tion of light. 23:158. 
 
 Liability of landlord to third person for ob- 
 struction of light. 26: 
 201. 
 
 8. How lost. 
 Effect of nonuser of an easement. 1:214;* 
 
 .->: tt-i-2:* 18: 535. 
 Public easement*. 18: 540.
 
 1080 
 
 EATING HOUSE EJECTMENT. 
 
 Abandonment of highway by nonuser or 
 otherwise than by act of 
 public. 26:449. 
 
 Effect of abandonment of highway. 26:659. 
 
 Transferability of right to take advantage 
 of breach of condition on 
 which easement granted. 
 60:764. 
 
 9. Remedies. 
 
 Equitable jurisdiction to protect easement. 
 3:861.* 
 
 Action for interference with easement. 
 6:262.* 
 
 EATING HOUSE. 
 
 Denial of Civil Rights in, see Civil Rights, 
 7-9. 
 
 EAVES. 
 
 Kjectment in case of Projection of, see 
 Ejectment, 4, 5. 
 
 ECCLESIASTICAL LAW. 
 
 See Religious Societies. 
 
 ECCLESIASTICAL TRIBUNAL. 
 
 Conclusiveness of Decision of, see Courts, 
 T. d, 2; VI. 3. 
 
 EDITOR. 
 
 Liability of, for Libel, see Libel and Slan- 
 der^ 3. 
 
 EDUCATION. 
 
 (haritable Gift for, see Charities. 2434. 
 Compulsory Education as Infringing Pa- 
 rental Rights, see Parent and Child, 1. 
 See also Colleges: Schools. 
 
 EDUCATIONAL INSTITUTION. 
 
 Exemption of, from Taxation, see Taxes, 
 
 I. f, 3. 
 Tax on Gifts to. see Taxes. 610-613. 
 
 EDUCATIONAL QUALIFICATION. 
 
 Of Voter, see Elections. 20. 
 
 EFFECT. 
 
 Opinion Evidence as to, see Evidence, VTL e. 
 Sufficiency of Proof of, see Evidence, XII. b. 
 Question for Jury as to, see Trial, II. c, 2. 
 
 EIGHT-HOUR LAW. 
 
 Constitutionality of, see Constitutional 
 Law, 316, 547-551, 710-718, 1043-1050. 
 
 Power of Employee to Waive Statutory 
 Protection, see Contracts, 383. 
 
 Right to recover for Overtime, see Contracts, 
 613, 839a. 
 
 Incorporation of, into Public Contract, see 
 Contracts, 839. 
 
 Conclusiveness of United States Supreme 
 Court Decision as to, see Courts, 515. 
 
 Indictment for Violation of, see Indict- 
 ment, etc., 79. 
 
 Ordinance as to Hours of -Labor, see Mu- 
 nicipal Corporations, 250. 
 
 Street Improvement Contract Requiring 
 Compliance with, see Public Improve- 
 ments, 131. 
 
 Partial Invalidity of Statute as to, see 
 Statutes, 101. 
 
 Sufficiency of Title, see Statutes, 175, 178, 
 270. 
 
 Amendment of, see Statutes, 599. 
 
 See also Master and Servant, I. d. 
 
 Editorial Notes. 
 
 Laws concerning hours of labor. 21:796. 
 Limitation of hours of labor by statute or 
 ordinance. 65:33. 
 
 EJECTION. 
 
 Of Passenger or Trespasser, see Carriers, 
 
 III. a, 5; IV. 19. 
 
 Punitive Damages for, see Damages, 76-81. 
 Recovery for Mental Anguish from, see 
 
 Damages, 609, 610. 
 
 Editorial Notes. 
 
 Liability for ejecting sick tenant, lodger, or 
 other occupant. 65:258. 
 
 EJECTMENT. 
 
 I. When Proper Remedy, 
 n. Title; Proof and Defenses. 
 
 a. Sufficiency of Plaintiffs Title. 
 
 1. In General. 
 
 2. Possessory Titles. 
 
 b. Defenses. 
 
 c. Proofs. 
 
 III. Judgment; Relief Generally. 
 
 a. Judgment; Obtaining Possession. 
 )>. Mesne Profits; Improvements; 
 Emblements. 
 
 IV. Statutory New Trial. 
 V. Editorial Notes. 
 
 Revival in Name of Heirs, see Abatement 
 and Revival. 43.
 
 EJECTMENT, I. 11 ., a, 1. 
 
 1081 
 
 Prior Entry as Condition to Right of Action, 
 see Action or Suit, 20. 
 
 Interruption of Adverse Possession by Dis- 
 possession under Judgment in, see Ad- 
 verse Possession, 84. 
 
 Withholding Mandate of Possession to Al- 
 low Condemnation, see Appeal and 
 Error, 1191, 1192. 
 
 Estoppel against, see Estoppel, 199. 
 
 By Wife against Husband, see Husband and 
 Wife, 232. 
 
 Limitation of Action of, see Limitation of 
 Actions, 125. 
 
 Admission by Plea of not Guilty, see Plead- 
 ing, 121. 
 
 Sufficiency of Complaint in. see Pleading, 
 589. " 
 
 Demurrer to Answer in, see Pleading, 620. 
 
 I. When Proper Remedy. 
 
 Against Fraudulent Grantee, see Fraudu- 
 lent Conveyances, 56. 
 
 To Oust from Oil Mine, see Injunction, 191. 
 For Editorial Notes, see infra, V. 2, 4. 
 
 1. The laying of a steam railroad longi- 
 tudinally in a street, unless by authority 
 of a legislative grant, express or implied, 
 will be regarded as such an exclusive and 
 wrongful appropriation of that part of the 
 street to a purpose foreign to the easement 
 as to sustain an action of ejectment by the 
 abutting owner against the company. Bork 
 v. United New Jersey R. & C. Co. (N. J. 
 Err. & App.) 70 N. J. L. 268, 57 Atl. 412, 
 
 64: 836 
 
 2. An ouster which will sustain eject- 
 ment by the owner of the soil of a highway 
 is not made by constructing a railroad 
 thereon by permission of the municipal au- 
 thorities. Montgomery v. Santa Ana & \V. 
 R. Co. 104 Cal. 186, 37 Pac. 786, 25:654 
 
 3. In ejectment against one claiming un- 
 der a tax deed, the invalidity of such deed 
 after the lapse of the statutory bar of three 
 years may be litigated where it is claimed 
 that the facts put the plaintiff in the same 
 position as if he were directly within the 
 exception to the statutory bar which would 
 have existed had he paid the tax. Gould 
 v. Sullivan, 84 Wis. 659, 54 N. W. 1013, 
 
 20: 487 
 
 4. One is liable in an action of ejectment 
 for the projection of his roof over another's 
 land. Murphy v. Bolger Bros. 60 Vt. 723, 
 15 Atl. 365, - 1: 309 
 
 5. An action of ejectment cannot be main- 
 tained against one the eaves of whose barn 
 overhang his neighbor's land 10 or 11 
 inches, where the eaves of the latter's barn 
 are lower than those of the former, and the 
 barn is built so close to the line that the 
 water from the eaves falls on the former's 
 land. Rasch v. Noth, 99 Wis. 285, 74 N. W. 
 820, 40: 577 
 
 6. Ejectment is not the proper remedy to 
 procure the discontinuance of a sewer which 
 was constructed by a city over land of the 
 United States government, which was after- 
 wards convej'ed to plaintiff, where the only 
 
 facts that appear are that the sewer was 
 constructed, and was thereafter continu- 
 ously applied to its proper use, without be- 
 ing fenced in, or anything being done to 
 prevent plaintiff from taking possession of 
 the land. Harrington v. Port Huron, 86 
 Mich. 46, 48 N. W. 641, 13: 664 
 
 II. Title; Proof and Defenses, 
 a. Sufficiency of Plaintiffs Title. 
 
 1. In General. 
 For Editorial Notes, see infra, V. 3. 
 
 7. The plaintiff in ejectment must rely 
 on the strength of his own title, and not on 
 the weakness of that shown by his adver- 
 sary. Bigler v. Baker, 40 Neb. 325, 58 N. 
 W. 1026, 24: 255 
 
 8. The right to recover possession under a 
 conveyance in consideration of taking care 
 of the grantee, which gives an equitable 
 title only, depends upon the performance of 
 the contract by the grantee. Dreisbach v. 
 Serf ass, 126 Pa. 32, 17 Atl. 513, 3: 836 
 
 9. A transfer of land over which a tele- 
 graph line has been constructed without 
 right gives the purchaser all his grantor's 
 rights, including the right to bring eject 
 ment. Postal Teleg. Cable Co. v. Eaton. 
 170 111. 513, 49 N. E. 365, 39: 722 
 
 10. A railroad company may maintain 
 ejectment for property which it has con- 
 demned, since it acquires more than a mere 
 easement or right of way in that it has the 
 right to possession for all purposes. Such 
 right is not affected by the fact that such 
 property is not necessary for its present 
 use. Pittsburgh, Ft. W. & C. R. Co. v. 
 Peet, 152 Pa. 488, 25 Atl. 612, 19: 467 
 
 11. A deed given to defraud the grantor's 
 creditors will not support an action of 
 ejectment against him. Kirkpatrick v. 
 Clark, 132 111. 342, 24 N. E. 71, 8: 511 
 
 12. While a riparian owner selling and 
 conveying his land may reserve to himself 
 the right to construct and use wharves ex- 
 tending from such land into the water, such 
 right is a mere incorporeal hereditament, 
 and the possession of it cannot be recovered 
 from a usurper by an action in the nature 
 of ejectment. Parker v. West Coast Pack 
 ing Co. 17 Or. 510, 21 Pac. 822, 5: 61 
 
 13. A municipal corporation may maintain 
 ejectment for property between high and 
 low water mark on a tidal river, held by it 
 in trust for the public. Mobile Transports 
 tion Co. v. Mobile, 128 Ala. 335, 30 So. 
 645, 64: 333 
 
 14. The title of land sold and deeded by a 
 guardian to her husband does not pass to a 
 purchaser who has notice of their relation- 
 ship; and ejectment for its recovery may 
 be maintained by the ward. Frazier v. 
 Jeakins, 64 Kan. 615, 68 Pac. 24, 57: 575 
 Title from common source. 
 
 For Editorial Notes, see infra, V. 3. 
 
 15. To succeed in an action of ejectment 
 plaintiff must connect himself with the gov-
 
 1082 
 
 EJECTMENT, II. a, 2, b. 
 
 <Tiiinent title, or with some grantor who 
 was the common source of title of both 
 parties. Slauson v. Goodrich Transp. Co. 
 99 Wis. 20, 74 N. W. 574, 40: 825 
 
 16. For plaintiff in ejectment to trace 
 his title to an alleged common source is 
 prima facie sufficient under 111. Rev. Stat. 
 chap. 45, 25, where he has stated on oath 
 that defendant claims title from that 
 -ource, and this is not denied on oath. 
 Lake Erie & W. R. Co. v. Whitham, 155 111. 
 514, 40 N. E. 1014, 28: 612 
 Necessity for re-entry. 
 
 17. One entitled to recover the posses- 
 sion of real estate may prosecute an action 
 therefor without first performing the com- 
 mon-law ceremony of re-entry. Sioux City 
 & St. P. R. Co. v. Singer, 49 Minn. 301, 
 
 51 N. W. 905, . 15: 751 
 
 18. One of two or more persons holding a 
 vested right of entry for condition broken 
 may, without actual entry, maintain eject- 
 ment for the land involved. Bouvier v. Bal- 
 timore & X. V. R. Co. (N. J. Err. & App.) 
 67 N. J. L. 281. 51 Atl. 781, 60: 750 
 Fee subject to easement. 
 
 See also supra, I. -I: infra, 33. 
 
 For Editorial Notes, see infra, V. 3. 
 
 19. Ejectment \>y the owner of the fee of 
 a public street will lie to recover possession 
 thereof, subject to the public easement, from 
 one who has placed a permanent obstruc- 
 tion thereon. Thomas v. Hunt, 134 Mo. 392, 
 35 S. W. 581, 32: 857 
 
 20. The owner of the soil in a street may 
 maintain ejectment against any person 
 wrongfully taking or claiming exclusive 
 possession of the same. French v. Robb 
 (N. J. Err. &, App.) 67 N. J. L. 260, 51 Atl. 
 509, 57: 956 
 
 21. The owner of the fee of land, subject 
 to an easement of a public highway, may 
 maintain ejectment against an intruder who 
 wrongfully appropriates the same to a pur- 
 pose wholly foreign to the easement; but 
 his recovery of possession will be subject to 
 the easement in question. Bork v. United 
 N. J. R. & Canal Co. (N. J. Err. & App.) 70 
 N. J. L. 268, 57 Atl. 412. 64: 836 
 
 22. Ejectment may be maintained to com- 
 pel the removal of telegraph poles from a 
 public highway over plaintiff's land on 
 which the line constitutes an additional 
 burden for which compensation has not been 
 made to the owner. Postal Teleg. Cable Co. 
 v. Eaton. 170 111. 513. 49 N. E. 365. 
 
 39: 722 
 Easement. 
 See also infra. 26. 
 For Editorial Notes, see infra. V. 3. 
 
 23. A city may maintain ejectment for 
 the possession of land dedicated for use 
 as a street, although it does not own the 
 fee. San Francisco v. Grote, 120 Cal. 59, 
 
 52 Pac. 127. 41: 335 
 Parol title. 
 
 24. A plaintiff in ejectment cannot rely ' 
 upon a parol partition to establish his title 
 to the cotenant's share of the premises, 
 ^ontag v. Bigelow, 142 111. 143. 31 N. E. 
 674, 16: 326 
 
 25. Dedication of a street, which rests 
 wholly upon parol testimony, does not give 
 a title which will support ejectment by a 
 city against the owner of the fee. San 
 Francisco v. Grote (Cal.) 47 Pac. 938, 
 
 36: 502 
 
 Aff'd on Other Grounds in Bane in 120 Cal. 
 59, 52 Pac. 127, 41 : 335 
 
 Burial lot. 
 For Editorial Notes, see infra, V. 3. 
 
 26. One who purchases a lot in a public 
 cemetery for burial purposes, though the 
 right of interment therein be exclusive, does 
 not acquire any title to the soil, but only a 
 mere easement or license, which will not 
 support an action of ejectment. Doe ex 
 dein. Stewart v. Garrett, 119 Ga. 386, 46 
 S. E. 427, 64: 99 
 
 27. An interest in land which will support 
 an action of ejectment is not created by a 
 deed conveying "the exclusive and entire 
 right of interment or sepulture in" certain 
 burial lots to be held "for the uses and 
 purposes of sepulture only, and for no other 
 use, intent, or purpose whatsoever." Han- 
 cock v. McAvoy, 151 Pa. 460, 25 Atl. 47, 
 
 18: 781 
 
 2. Possessory Titles. 
 
 For Editorial Notes, see infra, V. 3. 
 
 28. Possessory rights only will not sus- 
 tain an action of ejectment without show- 
 ing the legal title. Cahill v. Cahill, 75 
 Conn. 522, 54 Atl. 201, 732, 60: 706 
 
 29. Ejectment against one who claims un- 
 der tax deeds obtained while he was a ten- 
 ant of another person cannot be maintained 
 by the landlord on account of any defects in 
 the tax proceedings, where the landlord 
 never had any title except by possession, 
 and had lost possession before the suit. 
 Smith v. Newman, 62 Kan. 318, 62 Pac. 
 1011, 53: 934 
 
 30. Title to real estate which will sustain 
 an action of ejectment cannot be created 
 or established by the presumptions flowing 
 from peaceable possession of it for a period 
 of years short of the time prescribed by the 
 statute governing title by adverse posses- 
 sion. Cahill v. Cahill, 75 Conn. 522, 54 Atl. 
 201. 732, 60: 706 
 
 b. Defenses. 
 
 Of Adverse Possession, Estoppel to Set up, 
 
 see Estoppel, 173. 
 For Editorial Notes, see infra, V. 5. 
 
 31. That plaintiffs stood by and permit- 
 ted, without protest, an elevator to be erect- 
 ed on the granted land at large expense 
 is not available to defeat an action of eject- 
 ment to recover possession of the land on 
 the ground that the placing of the building 
 thereon was a breach of condition in the 
 titlo deed. Wakefield v. Van Tassell, 202 
 111. 41, 66 N. E. 830, 65: 511 
 
 32. A deed of trust upon real estate is 
 not such an outstanding legal title as will, 
 even after condition broken, but before en- 
 trv or foreclosure, dofeat a recoverv in an
 
 EJECTMENT, 11. c IV. 
 
 1083 
 
 action of ejectment for the property, based 
 on titles held subject thereto. Benton Land 
 Co. v. Zeitler, 182 Mo. 251, 81 S. W. 193, 
 
 70: 94 
 
 33. A person occupying part of a street 
 with poles and appliances for lighting the 
 street, in pursuance of a contract made 
 with the municipal authorities under N. J. 
 act May 22, 1894 (P. L. p. 477) has such 
 rightful, exclusive possession of the part so 
 occupied as will support a plea of not 
 guilty in an action of ejectment brought 
 by the owner of the soil; but the right of 
 such a person to use the street in the im- 
 mediate vicinity of his poles and appliances 
 for the purpose of maintaining them will 
 not support such a plea. French v. Robb, 
 (N. J. Err. & App.) (57 N. J. L. 260, 51 Atl. 
 509, 57: 956 
 
 c. Proofs. 
 
 Burden of Proving Title, see Evidence, 696. 
 
 Public Statutes and Grants as Evidence of 
 Title, see Evidence, 910. 
 
 Evidence of Ownership of Land, see Evi- 
 dence, 1360, 2155, 2158. 
 
 For Editorial Notes, see infra, V. 5. 
 
 34. The holder of state grants which he 
 claims cover the bed of a lake must show 
 with accuracy the particular land he claims 
 before he can recover in ejectment. Web- 
 ster V. Harris, 111 Tenn. 668, 69 S. W. 782, 
 
 59: 324 
 
 HI. Judgment; Relief Generally, 
 a. Judgment; Obtaining Possession. 
 
 Measure of Damages for Withholding Pos- 
 session, see Damages, 402. 
 
 Gonclusiveness of Judgment of Dismissal, 
 see Judgment, 109. 
 
 Conclusiveness of Judgment Generally, see 
 Judgment, 188, 189. 
 
 Stay of Execution on Judgment, see Exe- 
 cution, 14. 
 
 35. Defendant in an action to recover 
 real property brought to compel the re- 
 moval of a permanent wall erected on plain- 
 tiff's property cannot, upon motion, be re- 
 quired to remove the wall, when the re- 
 turn of the execution states that it is im- 
 practicable for the sheriff to remove it. 
 Kahl v. Sugo, 169 N. V. 109, 62 N. E/135. 
 
 61 : 226 
 
 36. Error in striking out a prayer for 
 equitable relief in an action to recover 
 possession of real property must be cured 
 by appeal, and does not justify plaintiff 
 in proceeding with his execution, and then 
 bringing another suit for equitable relief 
 when his execution proves inadequate. Id. 
 
 37. A writ of restitution will not be 
 granted to restore to a defendant in eject- 
 ment the possession of property taken un- 
 der a writ of possession, merely because 
 the latter was not issued within a year 
 and a day after the rendition of the judg- 
 
 ment. Bowar v. Chicago W. D. R. Co. 136 
 111. 101, 26 N. E. 702, 12 ; 81 
 
 38. The common-law rule that a writ of 
 possession cannot be issued to enforce a 
 judgment in ejectment after the lapse of a 
 year and a day is abrogated in Illinois by 
 the statute, which, though making no ex- 
 press provision as to writs of possession, 
 provides that execution may issue upon a 
 judgment at any time within seven years, 
 especially when construed with another 
 statute providing that rules of pleading and 
 practice in other actions are applied to ac- 
 tions of ejectment. Id. 
 
 b. Mesne Profits; Improvements; Emble- 
 ments. 
 
 Evidence as to Amount Recoverable as 
 Mesne Profits, see Evidence, 1835. 
 
 39. Mesne profits are recoverable from a 
 defaulting vendee in a land contract for the 
 time that he withholds possession of the 
 premises pending an action of ejectment 
 against him, in which he gives a defense 
 bond under N. C. Code, 237. Credle v. 
 Ayers, 126 N. C. 11, 35 S. E. 128, 48: 751 
 
 40. Mesne profits realized by defendant's 
 grantor, as well as by defendant himself, 
 are recoverable in an action for land, where 
 he is allowed for improvements made by 
 his grantor, as well as those made by him- 
 self. Mills v. Geer, 111 Ga, 275, 36 S. E. 
 673, 52: 934 
 
 41. Rents and profits of land occupied by 
 wards on an invalid exchange made by 
 their guardian may be set off against their 
 claim to mesne profits on their recovery of 
 their own land. Id. 
 
 42. Improvements made upon property 
 by an occupant or his grantor, in good 
 faith, to the extent that they exceed the 
 mesne profits, may be recovered by him in 
 an action against him to obtain possession 
 of the land by the holder of the legal title. 
 
 Id. 
 Crops. 
 
 43. Crops growing on the premises at the 
 time of a recovery in ejectment are, by the 
 general rule of the common law, regarded 
 as part and parcel of the realty belonging 
 to the party recovering the land. Car- 
 lisle v. Killebrew, 89 Ala. 329, 6 So. 756. 
 
 6: 617 
 
 44. Where no bond is given in accordance 
 with Ala, Code 1886, 2712, 2713, crops 
 growing on the land recovered in ejectment 
 belong to the party recovering the land. Id. 
 
 IV. Statutory New Trial. 
 
 See also supra, 36. 
 
 For Editorial Notes, see infra, V. 1. 
 
 45. On a new trial in an ejectment suit, 
 taken by the defeated party as matter of 
 right under the terms of a statute allowing 
 it, rulings upon the admissibility of evi- 
 dence have no binding force. Slauson v 
 Goodrich Transp. Co. 99 Wis. 20. 74 N. W. 
 574, <"
 
 1084 
 
 EJECTMENT, V. ELECTION DISTRICTS, I. 
 
 V. Editorial Notes. 
 
 i. Generally. 
 
 Effect of prior decision on statutory new 
 trial in real actions. 
 40: 825. 
 
 Injunction against dispossession in. 30: 
 129. 
 
 2. Who may maintain. 
 
 See also infra, V. 3. 
 
 Right of surviving partner to maintain 
 ejectment for partnership 
 real property. 28: 134. 
 
 By married woman against husband. 6: 
 506.* 
 
 3. What title or interest will support. 
 
 Estoppel in pais upon, defendant as basis of 
 action. 16: 813. 
 
 General rule that plaintiff must recover, if 
 at all, on the strength of 
 his own title. 18: 781. 
 
 Equitable title. 18: 781. 
 
 Interest in public land. 18: 782. 
 
 Necessity of right of possession and inter- 
 est in land. 18: 783. 
 
 Sufficiency of bare possession as against in- 
 truder. 18: 784. 
 What constitutes possession. 18: 785. 
 
 Title acquired by limitation. 18: 786. 
 
 Ejectment to obtain possession of burial 
 lot. 67: 125. 
 
 Ejectment for pier. 40: 648. 
 
 Right of action by owner of dominant 
 estate subject to ease- 
 ment. 18: 787. 
 Land subject to easement of highway. 
 
 18: 787. 
 
 To recover easement. 18: 786. 
 Action by riparian owner. 18: 786. 
 To obtain railroad right of way. 66: 
 40. 
 
 Sufficiency of mining rights to support. 
 18: 787. 
 
 Interest of a mortgagee. 18: 788. 
 
 Tenant in common. 18: 789. 
 
 Executors, administrators, and guardians. 
 18: 789. 
 
 Ejectment by widow to recover dower. 18: 
 790. 
 
 Remaindermen. 18: 790. 
 
 Miscellaneous instances. 18: 791. 
 
 4. Disseisin. 
 
 What disseisin will support action. 13: 
 664. 
 
 Public use as. 13: 664. 
 
 Overhanging eaves as. 13: 664. 
 
 5. Burden of proof; costs; defenses. 
 
 Burden of proof in ejectment case as to 
 testamentary capacity. 
 17: 496. 
 
 Liability for costs of third party defending 
 ejectment suit. 62: 626. 
 
 Liability of beneficial plaintiff for costs in 
 ejectment, 62: 623. 
 
 Defenses in. 13: 206.* 
 
 ELECTION. 
 
 i ; ranter's Right of, see Deeds, 95, 97. 
 Of Remedy, see Election of Remedy. 
 
 Between Counts, see Trial, I. b. 
 Between Legacy and Dower, see Wills, III. 
 i; V. 25, 26. 
 
 An election to give exclusive credit to 
 one partner is not established, in the ab- 
 sence of full knowledge of the relation of 
 the parties between whom the choice is to 
 be made; and the knowledge must be ac- 
 tual in contradistinction to that which is 
 constructive. Tyler v. Waddingham, 58 
 Conn. 375, 20 Atl. 335, 8:657 
 
 ELECTION DAY. 
 
 Keeping Saloon Open on, see Intoxicating 
 Liquors, 141, 142. 
 
 ELECTION DISTRICTS. 
 
 I. In General. 
 II. Equality. 
 
 III. Prior Apportionment Acts. 
 IV. Editorial Notes. 
 
 Review of Legislative Actions as to, see 
 Courts, 129-135. 
 
 Rule as to Correcting Harmless Errors in 
 Apportionment, see Courts, 502. 
 
 Estoppel as to, see Estoppel, 33. 
 
 Termination of Legislative Existence by 
 Apportionment, see Legislature, 6. 
 
 Mandamus to Compel Division of County 
 into, see Mandamus, 60. 
 
 Mandamus to Test Validity of Apportion- 
 ment Act, see Mandamus, 169. 
 
 Issue of Election Notices, see Mandamus, 
 122. 
 
 In Town, see Towns, 2. 
 
 I. In General. 
 
 1. The obligation of observing a consti 
 tutional requirement as nearly as possible 
 in an apportionment act becomes of bind- 
 ing force under the Constitution, when the 
 exact requirement cannot be observed. 
 Denny v. State ex rel. Easier, 144 Ind. 
 503, 42 N. E. 929, 31 : 726 
 Census. 
 
 See also infra, 23. 
 
 2. An apportionment o,f election dis- 
 tricts must be based upon the prior census 
 or enumeration, under the Wisconsin Con- 
 stitution providing that it shall be made 
 the first session after such enumeration. 
 State ex rel. Lamb v. Cunningham, 83 
 Wis. 90, 53 N. W. 48, 17: 145 
 
 3. Supposed inaccuracies in the census, 
 which is made by the Constitution the 
 standard of apportionment, cannot justify 
 the legislature in making an apportionment 
 different from that which the figures of the 
 census require. Neither can any difference 
 in the rapidity of the increase of popu 
 lation in different localities be considered 
 for such a purpose. Id.
 
 ELECTION DISTRICTS, I 
 
 1085 
 
 4. Upon the omission of the legislature 
 to make an enumeration of the inhabitants 
 and apportion the districts for electing 
 members of the legislature, in the year 
 fixed by the Constitution for that purpose, 
 the duty rests upon each succeeding legis- 
 lature untn it is performed; and an ap- 
 portionment cannot be set aside as un- 
 authorized although it was made seven 
 years after the constitutional time. Peo- 
 ple ex rel. Carter v. Rice. 135 N. Y. 473, 
 31 N. E. 921, 16: 836 
 Omission of colored persons in apportion- 
 ing districts. 
 
 5. The provision of the New York Consti- 
 tution requiring the omission of colored 
 persons not taxed from the number of in- 
 habitants in apportioning senate districts 
 became inoperative when the Constitution 
 was amended by striking out the provision 
 limiting the liability of colored persons 
 for taxes to those assessed upon real estate, 
 and making the payment of taxes neces- 
 sary to entitle them to vote; the plain in- 
 tention of the people being to blot out all 
 distinctions of a political nature between 
 white and colored citizens. People ex rel. 
 Carter v. Rice. 135 N. Y. 473. 31 N. E. 
 921, 16: 836 
 Double districts. 
 
 6. Double districts in which two or more 
 counties are grouped and given a voice in 
 the election of more than one senator or 
 representative, when neither of them has a 
 voting population, equal to the ratio for 
 one senator or representative, cannot be 
 created under Ind. Const, art. 4, 5, re- 
 quiring apportionment among counties ac- 
 cording to the male inhabitants above 
 twenty-one years of age, and 6, pro- 
 viding that where more than one county 
 shall constitute a district they must be 
 contiguous. Denny v. State ex rel. Easier, 
 144 Ind. 503, 42 N* E. 920. 31 : 726 
 Dividing county between districts. 
 
 7. The legislature has no power to di- 
 vide a county in the apportionment of dis- 
 tricts for the election of representatives, 
 under the Michigan Constitution, which 
 provides for the election of representatives 
 by single districts equal, as nearly as may 
 be, in population, and for which no town- 
 ship or city shall be divided; and also that, 
 if any county is entitled to more than one 
 representative, the board of supervisors 
 shall divide it into the requisite number of 
 districts. Houghton County v. Blacker, 92 
 Mich. 638, 52 N. W. 951, ' 16: 432 
 
 8. An apportionment act must be held 
 entirely invalid where it divides a county 
 in violation of the Constitution, and the 
 effect of correcting the act in this par- 
 ticular, and giving the county the repre- 
 sentation to which it is entitled, would 
 make one more representative than the 
 Constitution permits. Id. 
 
 9. The division of a county in the forma- 
 tion of senate and assembly districts is 
 prohibited by the provision of the Wiscon- 
 sin Constitution that assembly districts 
 shall be "bounded by county, precinct, 
 town, or ward lines, to consist of contii.ni 
 
 ous territory, and be in u- .m|>uct form 
 as practicable," and tluit senate districts 
 shall not divide assembly districts. Since 
 county lines are always identical with 
 town or ward lines, the only force of the 
 word "county" is to prevent the division 
 of a county by separating its precincts, 
 towns, or wards. State ex rel. Adams 
 County v. Cunningham, 81 Wis. 440, 51 N. 
 W. 724, 15: 561 
 
 Dividing county into districts. 
 
 10. The election of members of assembly 
 in assembly districts allowing each voter 
 to vote for but one member, instead of 
 voting for all the members elected in that 
 county, is not in accordance with the Con- 
 stitution of New Jersey, which provides 
 that the members of assembly shall be 
 elected "by the legal voters of the county 
 respectively," and that each shall be an in- 
 habitant of "the county for which he shall 
 be chosen." State ex rel. Morris v. Wright - 
 son (N. J. Sup.) 56 N. J. L. 126, 28 Atl. 
 56, 22: 548 
 Separate representative for county. 
 
 11. A county having more than the rep- 
 resentative unit of population cannot be 
 denied the right to a separate representa- 
 tive. Parker v. State ex rel. Powell, 133 
 Ind. 178, 32 N. E. 836. 18: 567 
 Contiguous temlory. 
 
 See also infra, 16, 31. 
 
 12. The words, "convenient and contigu- 
 ous territory," in a constitutional provi- 
 sion as to the apportionment of election 
 districts, do not mean contiguous in con- 
 tact by land, when applied to counties 
 which are composed of islands; and conse- 
 quently Keweenaw and Isle Royal coun- 
 ties in Michigan may be declared conveni- 
 ent and contiguous to other counties bor- 
 dering on deep waters of the lake, as 
 to Houghton county. Houghton County v. 
 Blacker, 92 Mich. 638, 52 N. W. 951, 16:* 432 
 
 13. Counties fully represented cannot be 
 used in the apportionment of districts for 
 the purpose of joining counties which are 
 not otherwise contiguous. Parker v. 
 State ex rel. Powell. 133 Ind. 178, 32 N. 
 E. 836, 18: 567 
 Change of boundaries. 
 
 14. The constitutional declaration that 
 a senate district shall consist of certain 
 specified counties, when construed with 
 other provisions making population the 
 basis of apportionment and prohibiting the 
 division of a county between senate dis- 
 tricts, establishes an organic relation be- 
 tween the boundaries of the counties as 
 they existed at that time and the senate 
 districts thereby established,, so that no 
 change of county boundaries can be effect- 
 ual to change the boundaries of the senate 
 district. People ex rel. Henderson v. West 
 Chester County Supers. 147 N. Y. 1, 41 N. 
 E. 563, . 30: 74 
 
 15. The annexation of a portion of West- 
 chester county to the city and county of 
 New York by N. Y. Laws 1895, chap. 934. 
 which is valid so far as it affects munici 
 pal burdens and municipal rights, le;i\ - 
 the annexed territory still a part of the
 
 1086 
 
 ELECTION DISTRICTS, II. 
 
 M senate district, which by the Consti- 
 tution consisted of Westchester county, and 
 within the jurisdiction of the board of su- 
 pervisors of that county for the purpose 
 of including it within one of the three 
 assembly districts allotted to that county 
 hv the Constitution. Id. 
 
 n. Equality. 
 
 Presumption as to, see Evidence, 199, 
 
 622. 
 See also infra, 34. 
 
 16. A constitutional provision as to ap- 
 portionment of senators and members of 
 assembly according to population, in dis- 
 tricts bounded by county and township 
 lines and consisting of contiguous terri- 
 tory in as compact form as practicable, is 
 mandatory, and not subject to legisla- 
 tive discretion. State ex rel. Adams Coun- 
 ty v. Cunningham, 81 Wis. 440, 51 N. W. 
 724, 15: 561 
 
 17. The requirement that legislative ap- 
 portionment shall be according to the num- 
 ber of inhabitants, in Ind. Const, art. 4, 
 5, is no less binding than the provision 
 that counties united in a district must be 
 contiguous, or that no county for senatorial 
 apportionment shall be divided. Denny v. ; 
 State ex rel. Easier. 144 Ind. 503. 42 N. E. | 
 929. 31 : 726 ; 
 
 18. An apportionment act may be ju- 1 
 fiicially declared void for violation of a con- j 
 stitutional requirement of apportionment I 
 according to the number of inhabitants, [ 
 when the disparity in the number of in- 
 habitants in the * districts created is so 
 great that it cannot possibly be justified 
 by the exercise of any judgment or discre- 
 tion. State ex rel. Adams County v. Cun- 
 ningham, 81 Wis. 440, 51 N. W. 724, 15: 561 
 
 19. The discretion of the legislature in 
 making an apportionment of senatorial 
 districts must be honestly and fairly ex- 
 ercised so as to preserve the equality of 
 representation as nearly as may be; other- 
 wise the apportionment will be unconsti- 
 tutional. Giddings v. Blacker, 93 Mich. 1. 
 52 N. W. 944, 16: 402 
 
 20. There can be no legislative discre- 
 tion to give a county of less population 
 than another greater representation, un- 
 der a Constitution requiring representa- 
 tive districts to contain, "as nearly as may 
 he," an equal number of inhabitants. 
 Fioughton County v. Blacker. 92 Mich. 638, 
 52 N. W. 951. 16: 432 
 
 21. Discretion as to the apportionment 
 is vested in the legislature by a constitu- 
 tional provision that members of assembly 
 -hall be apportioned by it among the sev- 
 t-ral counties of the state "as nearly as may 
 be according to the number of their re- 
 spective inhabitants," which the courts have 
 no power to review unless it has been so 
 abused as clearly to show an open and in- 
 t'-nded violation of the letter and spirit of 
 ihe Constitution. People ex rel. Carter v. 
 
 Rice, 135 N. Y. 473, 31 N. E. 921, 16: 836 
 
 22. Xo abuse of the discretion vested in 
 the legislature as to the apportionment of 
 members of assembly is shown where each 
 county has been given a member for every 
 full ratio of representation which it con- 
 tains, and the only inequalities alleged are 
 in the distribution of the remaining mem- 
 bers to counties having a smaller surplus 
 over the ratio than other counties have, 
 at least where the reason for such action 
 was not partisan, and the fair inference i* 
 that it was absolutely necessary to secure 
 the passage of the bill. Id. 
 
 23. A legislature cannot be charged with 
 unfairness in distributing the remaining 
 members of assembly among the counties 
 after all full ratios are provided for, be- 
 cause it takes into account the losses sus 
 tained by the most populous counties b\ 
 reason of the adoption of a certain ratio 
 of representation rather than of some other 
 more favorable to them, nor because it re- 
 gards increases of population shown by the 
 census. Id. 
 
 24. No scheme for senatorial districts 
 can be lawfully devised in which a county 
 having less than the unit of population for 
 a 'senatorial district can legally be entitled 
 to vote for two senators, where the con 
 stitutional provisions require equality in 
 representation. Parker v. State ex rel. 
 Powell, 133 Ind. 178, 32 X. E. 836, 18: 567 
 
 25. The wealth and the nature and char- 
 acter of the population and the busi 
 ness interests of the districts cannot jus 
 tify a disregard of the constitutional stand 
 ards of population in apportioning election 
 districts. State ex rel. Lamb v. Cunning- 
 ham, 83 Wis. 90, 53 N. W. 48, 17: 145 
 
 26. The injustice of allowing but one 
 representative to a county, while other 
 counties having a similar "population are 
 given a voice in the election of more than 
 one representative, must be avoided where- 
 ever possible. Denny v. State ex rel. Bas- 
 ler, 144 Ind. 503, 42 N. E. 929, 31: 726 
 Instances of inequality. 
 
 27. A constitutional requirement of ap- 
 portionment according to the number of 
 inhabitants, in creating assembly and sen- 
 ate districts, is violated by an apportion- 
 ment act in which, with the average popu- 
 lation of 51,117 for a senate district, the 
 number of inhabitants in the respective dis 
 tricts created ranges from 37,000 to 68,000. 
 and in the assembly districts, with an aver- 
 age of 16,868, ranges from 6,000 to 38,000, 
 as such act is not an "apportionment" in 
 any sense of the word, but is a direct and 
 palpable violation of the Constitution, bear- 
 ing upon its face intrinsic evidence that 
 no judgment or discretion was exercised 
 in an attempt to comply with the Consti- 
 tution. State ex rel. Adams County v. 
 Cunningham. 81 Wis. 440, 51 X. W. 724, 
 
 15:561 
 
 2S. An inequality of election districts so 
 great that one assembly district has three 
 times the population of another, and one 
 senate district has more than double that 
 of another, while these inequalities are
 
 ELECTION DISTRICTS, 111 
 
 108? 
 
 in some cases made at the expense of com- 
 pactness, one district being entirely sur- 
 rounded by another, makes an apportion- 
 ment act void under a Constitution re- 
 quiring the districts to be apportioned ac- 
 cording to the number of inhabitants and 
 in as compact form as practicable, where 
 these inequalities are not made necessary 
 by any other provisions of the Constitution. 
 State ex rel. Lamb v. Cunningham, 83 Wis. 
 90, 53 N. W. 48, 17: 145 
 
 Equality of districts in same county. 
 
 29. The constitutional requirement that 
 assembly districts must be as nearly equal 
 in population as other constitutional pro- 
 visions will permit is just as applicable to 
 two or more assembly districts yi a single 
 county as to an assembly district com- 
 posed of two or more counties. State ex 
 rel. Lamb v. Cunningham, 83 Wis. 90, 53 
 N. W. 48, 17: 145 
 
 30. Assembly districts must be given an 
 equal number of inhabitants as nearly as 
 may be, on the division of a county by the 
 board of supervisors under the New York 
 Constitution, which provides for divisions 
 into districts "of convenient and contigu- 
 ous territory," when construed with the 
 preceding provision that "the members of 
 assembly shall be apportioned among the 
 several counties of the state by the legisla- 
 ture as nearly as may be according to the 
 number of their respective inhabitants," 
 especially in view of the long established 
 policy of the state in favor of direct rep- 
 resentation of inhabitants as distinguished 
 from representation through corporations 
 of a quasi-political character. People ex 
 rel. Baird v. Broom, 138 N. Y. 95, 33 N. E. 
 827, 20: 81 
 
 31. The discretion to be exercised by the 
 board of supervisors in dividing a county 
 into assembly districts of convenient and 
 contiguous territory, keeping each town un- 
 divided and giving each district as nearly 
 as may be an equal number of inhabitants, 
 must be an honest and fair discretion aris- 
 ing out of the circumstances of the case, 
 and reasonably affecting the exercise of the 
 power of equal division. Id. 
 
 32. A deviation from equality of popula- 
 tion in the division of a county into as- 
 sembly districts, in order to be held un- 
 constitutional must be a grave, palpable, 
 and unreasonable deviation; such that 
 when the facts are presented argument will 
 not be necessary to convince a fair man 
 that very great and wholly unnecessary in- 
 equality has been intentionally provided 
 for. Td. 
 
 III. Prior Apportionment Acts. 
 
 Power to Change County Boundaries under, 
 
 see Counties, 8. 
 
 33. Any number of legislative violations 
 of plain and unambiguous constitutional 
 provisions regarding the apportionment of 
 election districts cannot be regarded as ab- 
 rogating such provisions. State ex rel. 
 Lamb v. Cunningham, 83 Wis. 90, 53 N. 
 W. 48, 17: 145 
 
 34. The inequality of representation un- 
 der former apportionment acts is irrelevant 
 and immaterial in considering the consti- 
 tutionality of an apportionment act, un- 
 less the language of the Constitution se- 
 curing such equality is ambiguous and 
 doubtful, and a long- continued legislative 
 construction has been given to it. Id. 
 
 35. Former apportionment acts may be 
 examined by the court when it is asked to 
 set aside such an act, for the purpose of 
 finding a valid one which may be declared 
 in force. People ex rel. Carter v. llice, 135 
 N. Y. 473, 31 N. E. 921, 16: 836 
 
 36. On holding an apportionment act un- 
 constitutional, election notices will be or- 
 dered to be given under the preceding act if 
 that was valid, unless a new act shall be 
 passed before it is necessary to give the 
 notices. Houghton County v. Blacker, 92 
 Mich. 638, 52 N. W. 951, 16: 432 
 
 37. In holding an apportionment of sena- 
 torial districts unconstitutional, where the 
 prior apportionment, which had been acqui- 
 esced in for three elections, was also sub 
 ject to the same constitutional objections, 
 and was brought in question by the peti- 
 tion asking that notices be ordered to be 
 given under it, the notices were ordered 
 to be given under a still earlier appor- 
 tionment act the validity of which was not 
 brought in question in those proceedings. 
 Giddings v. Blacker, 93 "Mich. 1, 52 N. W. 
 944, 16: 402 
 
 38. That the effect of setting aside an 
 apportionment act would be to cause every 
 subsequent act to be brought before the 
 courts for review, which might happen at 
 a critical time; to originate the greatest 
 confusion as to an impending election, with 
 a possible total suppression of it; and 
 at all events to continue in force an act 
 containing greater inequalities than the one 
 attacked, is of itself sufficient to induce 
 the court to say that only in case of plain 
 and gross violation of the spirit and let 
 ter of the Constitution should it exercise 
 such power. People ex rel. Carter v. Rice. 
 135 N. Y. 473, 31 N. E. 921, 16: 836 
 Passing second act during enumeration 
 
 period. 
 
 39. A valid apportionment law can be 
 passed only once for each enumeration pe 
 riod, under Ind. Const, art. 4, 4, provid 
 ing for an enumeration every six years, 
 and 5, requiring an apportionment at the 
 session next following the enumeration. 
 Denny v. State ex rel. Easier, 144 Ind. 
 503, 42 N. E. 929, 31: 726 
 
 40. An unconstitutional apportionment 
 law, even if it has been declared constitu 
 tional by one of the lower state courts, 
 will not preclude the enactment by the leg- 
 islature of a valid apportionment law. Id. 
 
 41. One exercise of the legislative pow- 
 er to make an apportionment of the state 
 based on the last Federal census, under 111. 
 Const, art. 4, 6, providing that the general 
 assembly shall apportion the state every 
 ten years by dividing the population as as- 
 certained by the Federal census, exhausts 
 the power and precludes a change of the
 
 1088 
 
 ELECTION DISTRICTS, IV. ELECTION OF REMEDIES. I 
 
 apportionment until the conditions pro- 
 vided for in the Constitution shall again 
 exist. People ex rel. Mooney v. Hutchinson, 
 172 111. 486, 50 N. E. 599/ 40: 770 
 
 42. A change in the apportionment of 
 delegates for the house of delegates among 
 counties and districts, be'fore another cen- 
 sus is taken, when such an apportionment 
 has been made after a census, is void be- 
 cause expressly prohibited by W. Va. Const, 
 art. 6, 10. Harmison v. Jefferson County 
 Ballot Comrs. 45 W. Va. 179, 31 S. E. 394, 
 
 42: 591 
 
 IV. Editorial Notes. 
 
 Validity of apportionment. 15: 561. 
 Interference with, by annexation of prop- 
 erty to municipality. 27: 
 
 744. 
 
 ELECTION FRAUDS. 
 See Elections, II. d. 
 
 ELECTION OF REMEDIES. 
 
 I. Choice. 
 
 II. Effect; Pursuing Two Remedies. 
 Til. Editorial Notes. 
 
 I. Choice. 
 
 To Enforce Provision as to Height of 
 Building, see Buildings, 5, 6. 
 
 Kffect of Other Remedy on Right to Cer- 
 tiorari, see Certiorari, I. b. 
 
 Election to Foreclose Mortgage, see Mort- 
 gage, 143. 
 
 For Abatement of Nuisance, see Nuisances, 
 133. 
 
 By Beneficiary in Trust, see Trusts, 207. 
 
 See also infra, 45; Injunction, 43; Receiv- 
 ers, 21. 
 
 1. An action at law against the city is 
 the proper form of remedy to determine 
 the right of a city officer to increased pay. 
 Gobrecht v. Cincinnati, 51 Ohio St. 68, 36 
 N. E. 782, 23: 609 
 
 2. A person seeking to recover, for part 
 performance of a contract, from one who 
 has rightfully terminated the same, must 
 sue upon the contract or for damages, not 
 upon a quantum meruit, though his re- 
 covery must be upon that basis; it being 
 presumed that he earned and is entitled to 
 the contract rate for the time his serv- 
 ices continued, till the contrary is shown 
 by evidence to sustain a properly pleaded 
 counterclaim. Hildebrand v. American Fine 
 Art Co. 109 Wis. 171, 85 N. W. 268, 
 
 53: 826 
 
 3. The remedy of a purchaser at a fore- 
 closure sale of* a leasehold, bv the terms 
 
 of which he is to receive the property fre 
 from unpaid rent, who is compelled to pay 
 such rent, is by application in the fore- 
 closure suit, and not by independent liti- 
 gation with the receiver at law. Stokes 
 v. Hoffman House, 167 N. Y. 554, 60 N. E. 
 667, 53: 870 
 
 4. An action either for the value of trees 
 destroyed, or for the injury to real estate 
 by such destruction, may be brought 
 by the owner of trees wrongfully destroyed 
 by another. Bailey v. Chicago, M. & St. 
 P. R. Co. 3 S. D. 531, 54 N. W. 596, 
 
 19: 653 
 
 5. The only remedy of a landowner 
 whose land is injured by water accumu- 
 lated along a railroad right of way is an 
 action at law for damages, and the legis- 
 lature cannot give him a right to have the 
 water drained off by the public authori- 
 ties at the expense of the railroad com- 
 pany. Chicago & E. R. Co. v. Keith, 67 
 Ohio St. 279, 65 N. E. 1020, 60: 525 
 
 6. A person excluded by a cotenant from 
 a mine in which he has an undivided in- 
 terest can maintain an action for damages, 
 and his remedy is not limited to an ac- 
 tion for partition, or an accounting of rents 
 and profits. Paul v. Cragnas. 25 Nev. 293, 
 59 Pac. 857, 60 Pac. 983, 47: 540 
 
 7. Money received as rents for water 
 wrongfully taken from plaintiff's pond 
 cannot be recovered in an action to recover 
 for the wrongful taking of the water. 
 Green Bay & M. Canal Co. v. Kaukauna 
 Water Power Co. 112 Wis. 323, 87 N. W. 
 864, 62: 579 
 Exclusiveness of statutory remedy. 
 
 8. A common-law remedy is not taken 
 away by a statutory remedy for the same 
 right, unless the statute expressly denies 
 it, or is so clearly repugnant to the exer- 
 cise of it as to implv a negative. Chicago 
 & I. Coal R. Co. v/Hall, 135 Ind. 91, 34 
 N. E. 704, 23: 231 
 
 9. The provision of the Colorado Code 
 abolishing the different forms of actions 
 does not affect the principles controlling in 
 different actions, but they remain the 
 same; and the law to be administered in 
 each case depends as much as formerly 
 upon its nature and form. Omaha & G. 
 Smelting & R. Co. v. Tabor, 13 Colo. 41, 
 21 Pac. 925, 5: 236 
 
 10. An action to recover possession of 
 specific personal property should under the 
 provision of the Arkansas Code abolishing 
 the forms of actions, follow the form pre 
 scribed by statute in such cases, requiring 
 return of the property or payment of its 
 value, and damages where return cannot be 
 made, although the action is in form tres 
 pass or trover, Eaton v. Langley, 65 Ark. 
 448, 47 S. W. 123, 42: 474 
 
 11. A statutory remedy for a constitu- 
 tional right to damages in a condemnation 
 case cannot be made exclusive, where the 
 owner of the property is given no power 
 to initiate such proceeding or to enforce 
 payment after the damages are assessed. 
 Ilickman v. Kansas City. 120 Mo. 110, 25 
 S. W. 225. 23: 658
 
 ELECTION OF REMEDIES, I. 
 
 1089 
 
 12. The provision of a penalty for viola- 
 tion of a statute enjoining upon railroad 
 companies the duty of blocking switches 
 does not make that remedy exclusive of 
 actions by persons injured by the neglect 
 to do so, unless that intention is to be in- 
 ferred from the whole purview of the stat- 
 ute. Narramore v. Cleveland, C. C. & St. 
 L. R. Co. 37 C. C. A. 499, 96 Fed. 298, 
 
 48:68 
 
 13. A license and agreement under which 
 land is taken for a railroad, with agree- 
 ment to pay its value, dispense with the 
 writ of ad quod damnum allowed by Ind. 
 Rev. Stat. 1881, 3953, even if this rem- 
 edy would otherwise be exclusive. Chicago 
 & I. Coal R. Co. v. Hall, 135 Ind. 91, 34 
 N. E. 704, * 23: 231 
 
 14. An administrator of a person whose 
 death was caused by negligence must elect 
 between a common-law right of action for 
 mental and physical suffering of the intes- 
 tate, and a statutory cause of action for his 
 death. Thomas v. Maysville Gas Co. 108 
 Ky. 224, 56 S. W. 153, 53: 147 
 Legal or equitable. 
 
 Between Garnishment Proceedings and Suit 
 
 in Equity, see Equity, 45. 
 Transfer between Law and Equity, see 
 
 Equity, II. 
 See also Injunction, 388; Pleading, 582. 
 
 15. The remedy by creditors of a dece- 
 dent's estate against legatees or next of 
 kin, under Wis. Rev. Stat. 1898, 3269 
 et seq., to recover from them on claim? 
 against the decedent to the extent that 
 they have received assets of the estate, is 
 purely legal and statutory, and not equi- 
 table. South Milwaukee Co. v. Murphy, 112 
 Wis. 614, 88 N. W. 583, 58: 82 
 
 16. An action at law is the proper rem- 
 edy by an insurance company on subro- 
 gation to a claim against the party neg- 
 ligentlv causing the loss. St. Louis, A. & 
 T. R. Co. v. Philadelphia Fire Asso. 60 Ark. 
 325. 30 S. W. 350, 28: 83 
 
 17. The suit should be at law, and not in 
 equity, where an insurer, who has paid part 
 of the loss caused by a fire negligently set 
 out, and been subrogated to the rights of 
 the property owner, and the property own- 
 er, join in a suit to recover the entire loss 
 caused by the negligence. Firemen's Fund 
 Ins. Co. v. Oregon R. & Nav. Co. 45 Or. 
 53, 76 Pac. 1075, 67: 161 
 
 18. One from whom a release of a claim 
 against a carrier for personal injuries is 
 fraudulently obtained may maintain an 
 action at law for the injuries, without go- 
 ing into equity to have the release set 
 aside and tendering back the money re- 
 ceived. Och v. Missouri, K. & T. R. Co. 
 130 Mo. 27, 31 S. W. 962, 36: 442 
 
 19. The distinction between legal and 
 equitable suits was not abolished by Mass. 
 Stat. 1887, chap. 283, which permits civil 
 actions, except replevin to be commenced, by 
 a bill or petition which is in the nature of 
 a declaration, and by the service of a 
 subpoena, which is in the nature of a 
 writ of original summons; and a suit 
 
 L.R.A. Dig. 69. 
 
 brought under that statute, which cannot 
 be maintained as either the one or the 
 other, cannot be maintained as partaking 
 somewhat of the nature of both. Worth - 
 ington v. Waring, 157 Mass. 421, 32 N. E. 
 744, 20: 342 
 
 Tort or contract. 
 
 See also Municipal Corporations, 500. 
 For Editorial Notes, see infra, III. 
 
 20. A commission merchant who receives 
 mortgaged cattle sent to him for sale with- 
 out the knowledge or consent of the mort- 
 gagee and in violation of the terms of the 
 mortgage, and who sells them and pays 
 the proceeds, less his commission, to the 
 consignor, without notice of the mortgage, 
 does not derive such a benefit from the 
 transaction as to authorize the mortgagee 
 to waive the tort and recover in an action 
 upon an implied contract. Greer v. New- 
 land, 70 Kan. 310, 77 Pac. 98, 70: 554 
 
 21. If an injury to land is committed un- 
 der a contract with the occupant whereby 
 he is to receive compensation, his remedy 
 is on the contract, and not by an action 
 of trespass. South Baltimore Co. v. Muhl- 
 bach, 69 Md. 395, 16 Atl. 117, 1: 507 
 
 22. Making a claim to land and erecting 
 a fence thereon, after an award by arbi- 
 trators as to the boundary line, finding 
 that the land belongs to the adjoining own- 
 er, does not constitute a breach of a stipu- 
 lation in the submission "to abide by and 
 perform the award," fdr which assumpsit 
 will lie; but the remedy is by an action 
 of tort. Weeks v. Trask, 81 Me. 127, 16 
 Atl. 413, 2: 532 
 
 23. The tort in conversion of goods may 
 be waived, and an action brought against 
 the wrongdoer upon an implied contract of 
 sale. Terry v. Munger, 121 N. Y. 161, 24 
 N. E. 272, 8: 216 
 
 24. An action of tort will lie for a rail- 
 road company's breach of its statutory 
 duty to stop at a station for a passenger. 
 Purcell v. Richmond & D. R. Co. 108 N. C. 
 414. 12 S. E. 954, 12: 113 
 
 25. An action against a carrier for viola- 
 tion of his obligation to carry a passenger 
 may be in the nature of an action on the 
 case. Sloane v< Southern Cal. R. Co. Ill 
 Cal. 668, 44 Pac. 320, 32: 193 
 
 26. A passenger who by mistake is given 
 a ticket for the wrong direction, and who 
 on failure to pay his fare is ejected by the 
 conductor without unnecessary force, has 
 no right of action for a tort against the 
 company, but any cause of action he may 
 bring must be based on contract. MacKay 
 v. Ohio River R. Co. 34 W. Va. 65, 11 S. E. 
 737, 9: 132 
 
 27. An action for breach of the contract 
 of a telegraph company may be brought in 
 assumpsit, and need not be ex delicto. Car- 
 land v. Western U. Teleg. Co. 118 Mich. 
 369, 76 N. W. 762, 43: 280 
 
 28. An action to recover a statutory 
 penalty from a telegraph company for un- 
 due delay in transmission and delivery of a 
 message is not an action ex contractu, with- 
 in the meaning of the Georgia Constitution, 
 giving justices' courts jurisdiction of "civil
 
 1090 
 
 ELECTION OF REMEDIES, II. 
 
 cases arising ex contractu." Western U. 
 Teleg. Co. v. Taylor, 84 Ga. 408, 11 S. E. 
 396, 8: 189 
 
 On breach of contract of employment. 
 
 29. An employee wrongfully dismissed 
 from service in breach of the contract of 
 hiring cannot maintain an action for un- 
 earned wages as such, although he holds 
 himself in readiness to perform his part 
 of the contract; but his action must be 
 for breach of the contract. Olmstead v. 
 Bach, 78 Md. 132, 27 Atl. 501, 22: 74 
 Rev'g on Rehearing, 25 Atl. 343, 18: 53 
 
 30. The only remedies of a servant 
 wrongfully discharged are, either to treat 
 the contract as continuing, and bring a 
 special action for breaking it by discharg- 
 ing him, which he may bring whether his 
 wages are paid up to the time of his dis- 
 charge or not; or, if his wages are not paid 
 up to the time of discharge, to treat the 
 contract as rescinded, and sue upon a 
 quantum meruit for services actually ren- 
 dered. Keedy v. Long, 71 Md. 385, 18 Atl. 
 704, 5: 759 
 
 n. Effect; Pursuing Two Remedies. 
 
 As to Estoppel by Inconsistent Acts or 
 Claims in Judicial Proceeding, see Es- 
 toppel III. j. 3. 
 
 Evidence to Show Election, see Evidence, 
 866. 
 
 Bar of Former Judgment, see Judgment, 
 
 n. 
 
 For Editorial Notes, see infra, III. 
 
 31. The rule that a choice of one of two 
 inconsistent remedies or causes of action 
 waives the other applies only where there 
 are two such remedies or causes of action. 
 Fuller- Warren Co. v. Barter, 110 Wis. 80, 
 85 N. W. 698, 53: 603 
 
 32. If a person pursues a cause of action 
 which he erroneously supposes 'he has>, and 
 is defeated because of the error, he is not 
 precluded thereby from suing over upon the 
 proper cause of action. -Id. 
 
 33. Notice of the appointment of a receiv- 
 er in another state, given to a creditor who 
 is not a citizen of that state, after he has 
 obtained an attachment, does not put him 
 to an election between his attachment and 
 the right to share in the foreign receiver- 
 ship, but, after taking the benefit of the 
 security obtained by attachment, he may 
 claim in the receivership for any balance 
 that may remain unpaid. Ward v. Connect- 
 icut Pipe Mfg. Co. 71 Conn. 345, 41 Atl. 
 1057, 42: 706 
 
 34. The right of an administrator to re- 
 cover damages suffered by the intestate dur- 
 ing his life from a personal injury, which 
 action survives under Mass. Pub. Stat. chap. 
 52, 18, is independent of the right of action 
 under 17, for the intestate's loss of life, 
 to recover a sum not exceeding $1,000 for 
 the widow and children or next of kin; and 
 both actions may proceed at the same time, 
 on independent grounds, and for different 
 purposes. Bowes v. Boston, 155 Mass. 344, 
 29 N. E. 633, 15: 365 
 
 35. Bringing suit to redeem from a fore- 
 closure sale will constitute an election on 
 the part of the plaintiff to affirm the sale, 
 and will preclude his insisting on its invalid- 
 ity. Horn v. Indianapolis Nat. Bank, 125 
 Ind. 381, 25 N. E. 558, 9:676 
 
 36. Bringing and prosecuting an action to 
 set aside as fraudulent his debtor's assign- 
 ment for the benefit of creditors is not such 
 an election of remedies as will debar a cred- 
 itor from sharing in a distribution of the 
 assigned estate made pending such suit. 
 Mills v. Parkhurst, 126 N. Y. 89, 26 N. E. 
 1041, 13: 472 
 
 37. Replevin of a horse is not defeated on 
 the ground that plaintiff has elected another 
 remedy by a prior attachment of the prop- 
 erty in an action of trover and judgment 
 against one of the defendants therein, after 
 which the horse was taken in execution, but, 
 before satisfaction of the judgment, was re- 
 taken by one of the defendants in a replevin 
 action which is still pending in another 
 state, but to which the present defendant 
 is not a party. Miller v. Hyde, 161 Mass. 
 472, 37 N. E. 760, 25: 42 
 
 38. The mere institution of an attachment 
 suit which is dismissed before judgment and 
 before the rights of others have intervened, 
 without in any way injuring the defendant, 
 does not constitute a binding election or es- 
 top the plaintiff from thereafter bringing 
 a replevin suit for the property, although 
 the attachment suit was based upon an al- 
 leged sale to the defendant. Johnson-Brink - 
 man Commission Co. v. Missouri P. R. Co. 
 126 Mo. 344, 28 S. W. 870, 26: 840 
 
 39. Admiralty proceedings in a Federal 
 court for limitation of liability under the 
 United States laws, instituted by shipowners 
 who have been sued for damages in a state 
 court with other persons as joint tort feas- 
 ors, but who obtain an injunction from the 
 Federal court against further proceedings 
 against them in the state court, will not bar 
 the prosecution of the action for damages 
 against the other defendants in the state 
 court while the admiralty proceedings are 
 pending and plaintiff has not actually re- 
 ceived satisfaction, or the equivalent of sat- 
 isfaction, in any amount. Grundel v. Union 
 Iron Works, 127 Cal. 438, 59 Pac. 826. 
 
 47 : 467 
 
 Actions on contract generally. 
 On Bond with Penalty, see Bonds, 3, 4. 
 
 40. A suit to set aside a conveyance and 
 recover back the property, which has been 
 abandoned and dismissed without trial, 
 while the grantee remains in the undisturbed 
 possession and enjoyment of the property, 
 will not preclude the enforcement of a mort- 
 gage in consideration of the conveyance of 
 the property securing the grantor's support 
 during life. Tuttle v. Burgett, 53 Ohio St. 
 498, 42 N. E. 427, 30: 214 
 
 41. Bringing a suit in replevin for goods 
 sold and discontinuing it before judgment, 
 without obtaining any benefit therefrom, be- 
 cause the value of the goods was paid by 
 the plaintiff to satisfy his replevin bond, 
 does not *^stop him from claiming payment 
 of the purchase price out of the assets of tue
 
 ELECTION OF REMEDIES, II. 
 
 1091 
 
 estate of the purchaser. Bolton Mines Co. 
 v. Stokes, 82 Md. 50, 33 Atl. 491, 31: 789 
 
 42. An election to bring an action ex con- 
 tractu against one who has converted prop- 
 erty upon the implied contract of sale, pre- 
 cludes a subsequent action for conversion 
 of the same property against other persons 
 who participated in the same acts which 
 have already been treated as constituting a 
 sale of the property. Terry v. Munger, 121 
 N. Y. 161, 24 N. E. 272, 8: 216 
 
 43. The filing and prosecuting to decree of 
 a bill, by the surviving members of a part- 
 nership, against the executor of a deceased 
 partner, to obtain an account and payment 
 over of plaintiffs' share of certain partner- 
 ship assets which came to defendant's hands 
 as such executor and have been sold by him, 
 constitutes a ratification of such sale, and 
 is an election of remedies which will bar a 
 subsequent action of tort against the exec- 
 utor for a wrongful conversion of the prop- 
 erty. Bradley v. Brigham, 149 Mass. 141, 
 21 N. E. 301, 3: 507 
 
 44. An election by a servant wrongfully 
 discharged, to sue upon a quantum meru+t 
 for services actually rendered, is a bar to a 
 subsequent action for breach of the contract. 
 Keedy v. Long, 71 Md. 385, 18 Atl. 704, 
 
 5: 759 
 
 45. A person entitled to a savings-bank 
 deposit which has been paid, without author- 
 ity, to another person, has a right of action 
 against the latter for money had and re- 
 ceived, or against the bank as a debtor for 
 the deposit; but by electing to bring either 
 action he loses the right to the other; and a 
 judgment against the person who received 
 the money, although uncollectible, is a bar 
 to an action against the bank. Fowler v. 
 Bowery Sav. Bank, 113 N. Y. 450, 21 N. E. 
 172, 4: 145 
 
 46. A mortgagee is not bound by his elec- 
 tion of remedy in selling land under his 
 mortgage and attempting to defend his ti- 
 tle thus acquired, so as to preclude his sub- 
 sequent claim of subrogation to earlier se- 
 curities. Union Mortg. B. & T. Co. v. Peters, 
 72 Miss. 1058, 18 So. 497, 30: 829 
 
 47. A creditor holding a note or bond se- 
 cured by a mortgage cannot, while prosecut- 
 ing an action in equity for foreclosure, in 
 which he asks that execution may be award- 
 ed to him for any balance left unpaid by the 
 proceeds of the sale, maintain an action at 
 law on the note or bond. Anderson v. Pil- 
 gram, 30 S. C. 499, 9 S. E. 587, 4: 205 
 
 48. The exercise of an option by the ven- 
 dor in a conditional sale, to enforce payment 
 of a note given for the purchase price, de- 
 feats his right under the contract to retake 
 the property upon default, although he is 
 unable fully to collect the note because of 
 the purchaser's insolvency. Crompton v. 
 Beach, 62 Conn. 25, 25 Atl. 446, 18: 187 
 
 4ft. A subcontractor may pursue simul- 
 taneously a proceeding to enforce his me- 
 chanic's lien against the property and an ac- 
 tion against the contractor for the amount 
 due him, in which he attaches funds due the 
 Contractor from the property owner. Hunt 
 v. Darling, 26 R. I. 480, 59 Atl. 398, 69: 497 
 
 Contracts procured by fraud. 
 
 For Editorial Notes, see infra, III. 
 
 50. One who, after full knowledge of th 
 fraud and deceit by which he has been in- 
 duced to make a contract of sale, goes for- 
 ward and executes it notwithstanding the 
 fraud, cannot recover for the losses caused 
 by the deceit, even to the extent of the dam- 
 age sustained by partial performance before 
 full knowledge of the deceit. Simon v. 
 Goodyear Metallic Rubber Shoe Co. 44 C. 
 C. A. 612, 105 Fed. 573, 52: 745 
 
 51. An election of remedies is not made by 
 attachment and bill in chancery based on 
 fraud in procuring credit on a purchase by 
 an insolvent corporation, so as to defeat an 
 action on subsequently maturing purchase- 
 money notes, as the remedies are not in- 
 consistent, being in each instance for the re- 
 covery of the price. Grossman v. Universal 
 Rubber Co. 127 N. Y. 34, 27 N. E. 400, 
 
 13: 91 
 
 52. Where parties who are entitled to re- 
 scind a contract for fraud apply for and ob- 
 tain an attachment against the other party 
 as their debtor, knowing of the fraud, they 
 thereby elect their remedy and waive the 
 right to disaffirm the contract; and a sub- 
 sequent discontinuance of the attachment 
 suit will not restore such right, especially 
 where, before discontinuance, part of the 
 money levied on was paid over to them. 
 Conrow v. Little, 115 N. Y. 387, 22 N. E. 
 346, 5: 693 
 
 53. A complaint for the rescission of a 
 contract on the ground of fraud is not such 
 a conclusive election of remedy as to pre- 
 clude an abandonment of that cause of ac- 
 tion by amending the complaint so as to de- 
 mand damages on account of the same fraud. 
 Cohoon v. Fisher, 146 Ind. 583, 45 N. E. 787. 
 
 36: 193 
 
 54. Recovering judgment for the full 
 amount due on a note and mortgage, and the 
 issuing of an execution thereon which is re- 
 turned nulla bona, will not prevent an action 
 for fraud in obtaining the loan. Union C. 
 L. Ins. Co. v. Scheidler, 130 Ind. 214, 29 N. 
 E. 1071, 15: 89 
 
 55. Recovering judgment against the cash- 
 ier of a national bank on his indorsement of 
 a note secured, by a transfer of the bank's 
 stock to him individually, which indorse- 
 ment and transfer were merely an evasion 
 of the law against loans on the security 
 of the stock, is not a bar to an action on his 
 bond for misappropriating the stock, as the 
 remedies are concurrent and not inconsis- 
 tent. Walden Nat. Bank v. Birch, 130 N. Y. 
 221, 29 N. E. 127, 14: 211 
 
 56. The owner of commercial paper depos- 
 ited in a bank under circumstances render- 
 ing its receipt a fraud may be relieved from 
 an election made by proving the claim as a 
 general creditor, in ignorance that the better 
 remedy of pursuing the proceeds in the 
 hands of the receiver of the bank is permit- 
 ted by the law, where no detriment has been 
 occasioned by such action to other parties, 
 which will create an estoppel. Standard Oil 
 Co. v. Hawkins, 46 U. S. App. 115. 74 Fed. 
 395, 20 C. C. A. 468, 33: 739
 
 ELECTION OF REMEDIES, III ; ELECTIONS, I. a. 
 
 III. Editorial Notes. 
 
 In general. 5: 693;* 13: 91,* 472.* 
 
 When remedies not concurrent. 4: 145.* 
 
 Alternative remedies. 4: 146.* 
 
 Waiver of tort. 4: 146.* 
 
 When plaintiff bound to elect. 4: 147.* 
 
 Party bound by 'his election. 4: 147.* 
 
 Party confined to remedy first adopted. 4: 
 
 148.* 
 
 Defense of another action pending. 4: 148." 
 Estoppel by judgment. 4: 148.* 
 What is conclusive evidence of election. 13: 
 
 91.* 
 To proceed against principal or agent. 2: 
 
 812.* 
 
 Between assumpsit and trover. 8: 216.* 
 For injuries resulting in death. 34: 788. 
 Remedies of discharged servant. 5: 760.* 
 Remedies on note and mortgage; rignt to 
 
 both. 4: 205.* 
 Effect of, in case of fraudulent purchase. 
 
 15: 89. 
 
 Attachment cases. 15: 90. 
 On conditional sale. 32: 471. 
 In case of forfeiture of lease. 8: 760.* 
 On promise for benefit of third person. 25: 
 
 266. 
 
 Conclusiveness of. 8: 217.* 
 Effect of, in case of inconsistent remedies. 
 
 5: 693.* 
 
 ELECTIONS. 
 
 I. Voters. 
 
 a. Right to Vote; Residence. 
 
 b. Registration. 
 II. Elections. 
 
 a. In General. 
 
 b. Ballots. 
 
 1. Preparation; Official Acts. 
 
 2. Casting; Acts of Voter. 
 
 3. Distinguishing Marks. 
 
 a. In General. 
 6. Voter's Marks. 
 
 c. Result; Canvassing. 
 
 d. Election Frauds; Crimes. 
 
 III. Nominations; Primaries; Political Com- 
 mittees. 
 TV. Contests. 
 V. Editorial Notes. 
 
 Bet on Result of, see Bills and Notes, 25, 60. 
 On Question of Issuance of Municipal Bonds, 
 
 see Bonds. III. b, 3. 
 Equal Protection and Privileges as to, see 
 
 Constitutional Law, 330-334. 
 Of Corporate Officers, see Corporations. 213- 
 
 215. 
 At Stockholders' Meeting, see Corporations, 
 
 V. g. 2. 
 
 Judicial Notice as to, see Evidence, 37-41. 
 Tnjunr-tion as to, see Injunction, I. h. 
 A. to Local Option Election, see Intoxi- 
 
 p;iting Liquors, 61-64. ' 
 
 Mandamus Concerning, see Mandamus, I. f. 
 Vote of City for Incurring Indebtedness. 
 
 see Municipal Corporations. 326-331. 
 Of OOloers Generally, see Officers, I. b. 
 Content of Title to Office, see Officers, I. f. 
 
 Of Parliamentary Body, see Parliamentary 
 
 Law. 
 
 By Church Organization, see Religious So- 
 cieties, 7-10. 
 
 School Elections, see Schools, III. b. 
 Title of Statute as to, see Statutes, 219-229, 
 
 250. 
 Pluralitv of Subjects as to, see Statutes, 
 
 263. 
 Special Legislation as to, see Statutes, 400- 
 
 402. 
 Construction of Election Law, see Statutes, 
 
 439. 
 Adopting Construction -of Adopted Statute 
 
 as to, see Statutes, 529. 
 
 I. Voters. 
 
 a. Right to Vote; Residence. 
 
 Disfranchisement as Bill of Attainder, see 
 
 Attainder, 2. 
 Equal Protection as to, see Constitutional 
 
 Law, 332. 
 Who May Vote for Road Commissioner, see 
 
 Highways, 413. 
 
 At School Meeting, see Schools, HI. b, 2. 
 For Editorial Notes, see infra, V. 1, 2. 
 
 1. There is no natural right to vote. Con- 
 tributing to the support of the government 
 may be made a condition of the privilege. 
 Frieszleben v. Shallcross, 9 Houst. (Del.) 1, 
 19 Atl. 576, 8: 337 
 
 2. The right to vote is not an inherent or 
 absolute right generally reserved in bills of 
 rights, but its possession is dependent upon 
 constitutional or statutory grant. State ex 
 rel. Lamar v. Dillon, 32 Fla. 545, 14 So. 383, 
 
 22: 124 
 
 3. The privilege of voting is not an in- 
 herent or natural right which exists in the 
 absence of constitutional and legislative 
 grant, and which such grant merely limits 
 or restricts, but it is a right which does not 
 exist except as it is given by the Constitu- 
 tion and written laws. Cougar v. Timber- 
 lake, 148 Ind. 38, 46 N. E. 339, 37: 644 
 
 4. All persons who are within the class 
 designated by the Constitution are entitled 
 to vote for all officers elective by the 
 people, whether the offices to be filled be 
 created by the Constitution or by legis- 
 lation; and such class of voters cannot be 
 diminished or enlarged by the legislature. 
 State ex rel. Allison v. Blake (N. J. Sup.) 57 
 N. J. L. 6, 29 Atl. 875, 25: 480 
 
 5. The right to prescribe the "time and 
 manner of election," of a constitutional of- 
 ficer does not give the legislature power to 
 enlarge the class of electors whom the 
 Constitution provides shall be entitled to 
 vote at any election. People ex rel. Ahrens 
 v. English." 139 Til. 622, 29 N. E. 678. 15: 131 
 
 G. The legislature has no power to divide 
 the electors of the state into classes, and 
 impose upon one class burdens not borne by 
 all alike." Brewer v. McClelland. 144 Ind. 
 423. 32 N. E. 209, 17: 845 
 
 7. A statute limiting the right of a voter 
 to vote for part only of the officers to be
 
 ELECTIONS, I. a. 
 
 1093 
 
 chosen to a certain office is not in violation 
 of a constitutional provision that he shall 
 be entitled "to vote at all elections," at 
 least in Pennsylvania, where long-continued 
 interpretation of the state Constitution has 
 sustained such states. Com. ex rel. Mc- 
 Cormick v. Reeder, 171 Pa. 505, 33 Atl. 67, 
 
 33: 141 
 
 8. The express provision for limited vot- 
 ing in the election of supreme court judges 
 and certain other specified officers, made by 
 the Pennsylvania Constitution, does not by 
 implication exclude the right of the legisla- 
 ture to adopt the same system in the elec- 
 tion of the judges of a new court created by 
 statute. , Id. 
 
 0. A statute providing that each* ward of 
 a city may elect one alderman does not vio- 
 late Tex. Const, art. 6, 3, providing that 
 all qualified electors in a city "shall have 
 the right to vote for mayor and the other 
 elective officers," as this does not neces- 
 sarily mean that every elective officer must 
 be elected by the voters of the entire city. 
 State ex rel. Guerguin v. McAllister, 88 Tex. 
 284, 31 S. W. 187, 28: 523 
 
 10. Nev. Const, art. 16, 1, providing that 
 proposed constitutional amendments, upon 
 being approved or ratified "by a majority of 
 the electors qualified to vote for members of 
 the legislature voting thereon," shall be- 
 come a part of the Constitution, does not 
 restrict the right to vote at a special elec- 
 tion for the adoption of an amendment to 
 those only who were qualified to vote for 
 the members of the legislature who voted 
 upon the proposed amendment, but all the 
 electors of the state are entitled to vote 
 upon the submission thereof. State ex rel. 
 Boyle v. Board of Examiners, 21 Nev. 67, 
 24 Pac. 614, 9: 385 
 
 11. The legislature cannot disfranchise 
 legal voters without their own fault or 
 negligence, in an attempt to prevent fraud. 
 Attorney General v. Detroit, 78 Mich. 545, 
 44 X. W. 388, 7: 99 
 
 12. The right to vote secured by the New 
 Jersey Constitution can only become oper- 
 ative by legislation; and any reasonable 
 legislative regulation for the purpose of se- 
 curing an enforced secrecy of the ballot is 
 not a deprivation of a right to vote. State, 
 Ransom. Prosecutor, v. Black (N. J. Sup.) 54 
 N. J. L. 446, 24 Atl. 489. 16: 769 
 
 13. Although the legislature cannot 
 change or add to constitutional qualifi- 
 cations of electors in any way, where the 
 Constitution does not confer the right to 
 vote or prescribe the qualifications of 
 voters, it is competent for the legislature, as 
 the representative of the law-making power 
 of the state, to do so. State ex rel. Lamar 
 v. Dillon, 32 Fla. 545, 14 So. 383, 22: 124 
 Qualifications generally. 
 
 At Primary Elections, see infra, 319-323. 
 
 At Election on Question of Issuing Mu- 
 nicipal Bonds, see Bonds, 122. 
 
 Ex Post Facto Disfranchisement as Punish- 
 ment for Crime, see Constitutional Law, 
 113. 
 
 Judicial Notice of, see Evidence, 38. 
 
 See also supra, 1. 
 
 For Editorial Notes, see infra, V. 1, 2. 
 
 14. A person cannot, before being permit- 
 ted to vote, be compelled to give proof of 
 qualifications which, under the Constitu- 
 tion, he does not have to possess. Morris v. 
 Powell, 125 Ind. 281, 25 N. E. 221, 9: 326 
 
 15. Where a state Constitution has fixed 
 and defined the qualifications necessary to 
 constitute one a voter, the legislature has 
 no power to require additional qualifications. 
 Henee, where a property qualification is not 
 among those fixed by the Constitution, a 
 statute requiring a certain class of persons, 
 in order to entitle themselves to vote, to 
 produce certificates which can only be ob- 
 tained in case they own property, is void. 
 
 Id. 
 
 16. The legislature, having the power un- 
 der the -Florida Constitution to make the 
 payment of a capitation tax not exceeding 
 $1 a year a prerequisite for voting, the pay- 
 ment of delinquent capitation taxes may be 
 required provided they do not amount to 
 more than $1 for each year. State ex rel. 
 Lamar v. Dillon, 32 Fla. 545, 14 So. 383. 
 
 22: 124 
 
 17. Payment of poll tax was not made a 
 qualification for voting at an election as to 
 issuing bonds under the Florida act of June 
 11, 1891. for the improvement of the navi- 
 gation of the St. Johns river. Stockton v. 
 Powell, 29 Fla. 1, 10 So. 688, 15: 42 
 
 18. The exclusion of a person from the as- 
 sessment list for twelve months on failure 
 to pay his county poll tax, in consequence 
 of which he may be precluded from being 
 qualified to vote during that year, is not a 
 violation of Del. Const, art. 4, 1, which 
 provides that a citizen otherwise qualified, 
 who has "within two years next before the 
 election paid a county tax which shall have 
 been assessed at least six months before the 
 election, shall enjoy the right of an elector," 
 or of art. 1, 3, which provides that "all 
 elections, shall be free and equal." Frieszle- 
 ben v. Shallcross, 9 Houst. (Del.) 1, 19 Atl. 
 576, 8: 337 
 
 19. A statute giving a voter an opportuni- 
 ty to qualify by registering and himself 
 paying his own poll taxes for certain years 
 does not deprive him of his right to pay his 
 said poll taxes through an authorized agent. 
 State ex rel. Lamar v. Dillon, 32 Fla. 545, 
 14 So. 383, 22: 124 
 
 20. A person is not "able to read the Con- 
 stitution of this state" within the meaning 
 of Wyo. Const, art. 6, 9, unless he can read 
 it in the English language, instead of a 
 translation. Rasmussen v. Baker, 7 Wyo. 
 117, 50 Pac. 819, 38: 773 
 Women. 
 
 At School Election, see Schools, 65, 75-85. 
 For Editorial Notes, see infra, V. 1. 
 
 21. The right to vote is not conferred up- 
 on women by the 14th Amendment to the 
 Federal Constitution. Cougar v. Timber- 
 lake, 148 Ind. 38, 46 N. E. 339, 37: 644 
 
 22. Failure to negative the right of fe- 
 male citizens to vote by any express pro- 
 vision does not leave them such right
 
 1094 
 
 ELECTIONS, I. a. 
 
 under Ind. Const, art. 2, 2, which gives the 
 right in express terms to "male" citizens. 
 
 Id. 
 
 23. In Wash. Terr, organic act (U. S. Rev. 
 Stat. 5506), providing that the qualifi- 
 cations of voters shall be as prescribed by 
 the legislative assembly, provided that the 
 right of suffrage shall be exercised only by 
 adult citizens of the United States, the 
 word "citizens" means only male inhabit- 
 ants, and the act of Jan. 18, 1888, conferring 
 the right of suffrage upon women, is void. 
 Bloomer v. Todd, 3 Wash. Terr. 599, 19 Pac. 
 135, 1: 111 
 
 24. The right of women to vote for city 
 or school officers, under Kan. Sess. Laws 
 1887. chap. 230, does not extend to the elec- 
 tion of justice of the peace in cities, as they 
 are township officers, rather than city offi- 
 cers. State ex rel. Scott v. Parry, 52 Kan. 
 1, 33 Pac. 956, 21: 669 
 
 25. An act to give women the right to 
 vote for school, village, and city officers, is 
 in violation of a Constitution which gives to 
 men only the right to vote "in all elections," 
 although other provisions of the Constitu- 
 tion allow the legislature to provide for the 
 organization of cities and villages, and to di- 
 rect the manner in which their officers, 
 other than judicial, shall be elected or ap- 
 pointed. Coffin v. Thompson, 97 Mich. 188, 
 56 K W. 567, 21 : 662 
 At municipal elections. 
 
 Right of Women to Vote, see supra, 24, 25. 
 
 26. The qualifications of voters at munici- 
 pal elections may be prescribed by the legis- 
 lature, as by requiring them to be taxpayers, 
 in the absence of any constitutional pro- 
 vision to the contrary. Hanna v. Young, 84 
 Md. 179, 35 Atl. 674.. 34: 55 
 
 27. The right to vote "at all elections," 
 given by Md. Const, art. 1, 1, to every 
 male citizen of full age "who has been a 
 resident of the state for one year and of 
 the legislative district of Baltimore city, 
 or of the county in which he may offer to 
 vote, for six months," does not extend to 
 municipal elections outside of the city of 
 Baltimore. Id. 
 
 28. Elections for municipal officers are not 
 within Fla. Const, art. 6, 1, prescribing the 
 qualifications of electors at all elections un- 
 der it, but are subject to statutory regu- 
 lation, and it is competent for the legis- 
 lature to prescribe the qualifications of 
 voters at the same. State ex rel. Lamar v. 
 Dillon, 32 Fla. 545. 14 So. 383, 22: 124 
 
 29. General provisions of the criminal law 
 disqualifying persons convicted of certain 
 crimes from voting at any election can and 
 must be construed in harmony with Fla. 
 Laws 1893, chap. 4301, making residents 
 who were qualified to vote at the preceding 
 general election the electors at a city elec- 
 tion. Id. 
 Residence. 
 
 Conclusivenoss of Finding as to, see Appeal I 
 
 and Error. 776. 
 For Editorial Xotes, see infra. V. 1. 2. 
 
 30. A voter need not have any particular ; 
 spot which he calls "home," provided he 
 
 makes his home, in the sense of having no 
 other home, anywhere or in however many 
 places, for the required times, within the 
 limits of the state and the voting district. 
 Langhammer v. Munter, 80 Md. 518, 31 Atl. 
 300, 27 : 330 
 
 31. The right to vote in the district in 
 which a steamer is tied up while at her 
 home port is not acquired by the purser, 
 who lives on the steamer, but who had pre- 
 viously acquired a voting residence in an- 
 other district of the city. Jones v. Skinner, 
 87 Md. 560, 40 Atl. 381, 40: 752 
 
 32. A voting residence at the home port 
 of a steamer is not acquired by a clerk who 
 sleeps in a room on the boat and who has 
 no other room or place to live in and is un- 
 married. Howard v. Skinner, 87 Md. 556, 
 40 Atl. 379, 40: 753 
 
 33. A single man, having no family re- 
 lations in Detroit, or any household of his 
 own of which he is a member, who lodges in 
 one ward and boards in another, is a resi- 
 dent of the latter for the purposes of regis- 
 tration as an elector. All the former 
 charters of the city having contained ex- 
 press provisions to this effect, which have 
 been also incorporated by the legislature 
 into charters of other cities in the state in 
 numerous instances, without adopting a 
 contrary rule in any instance, the law in 
 this respect must be held to remain the 
 same, although the charter of 1887 is en- 
 tirely silent on the subject, the changes 
 made from former charters being on entire- 
 ly distinct matters. Warren v. Board of 
 Registration, 72 Mich. 398, 40 N". W. 553, 
 
 2:203 
 
 34. Building and furnishing a new house, 
 with the purpose of living in it, does not 
 render the owner an inhabitant of the 
 ward in which it is situated, for the pur- 
 pose of becoming an elector therein, so long 
 as he continues, with his wife, the actual oc- 
 cupancv of leased premises in another ward. 
 State ex rel. Goodell v. McGeary, 69 Vt. 
 461, 38 Atl. 165, 44: 446 
 
 35. The residence of an elector is not 
 changed by reason of his presence and sup- 
 port in a soldiers' home which is maintained 
 by the state for disabled and dependent 
 soldiers, under a constitutional provision 
 that "no elector shall be deemed to have 
 gained or lost a residence by reason of being 
 employed in the service of the United 
 States or in this state, nor while a student 
 at any seminary of learning, nor while kept 
 at any almshouse or any asylum at public 
 expense, nor while confined in any public 
 prison." Wolcott v. Holcomb, 97 Mich. 361, 
 56 N. W. 837, 23:215 
 
 35a. The words "any asylum" at which 
 persons are kept at public expense, within 
 the meaning of the Michigan Constitution 
 providing that residence for voting purposed 
 shall not be changed by staying in such 
 institutions, includes a soldier's home sup- 
 ported by the state. Id. 
 
 36. A member of the Western Branch of 
 the National Home for Disabled Volunteer 
 ^olrlier*, while maintained therein at puV
 
 ELECTIONS, I. Ix 
 
 1095 
 
 lie expense, is not deprived of the right to 
 acquire a residence there for voting pur- 
 poses, by Kan. Const, art. 5, 3, providing 
 that for voting purposes no person vhile 
 kept at any almshouse or asylum at public 
 expense shall, by reason of his presence, be 
 deemed to have gained a residence. Cory v. 
 Spencer, 67 Kan. 648, 73 Pac. 920, 63: ?7 
 
 37. A constitutional provision which pro- 
 vides that, "for the purpose of voting, no 
 person shall be deemed to have gained or 
 lost a residence by reason of his presence or 
 absence . . . while kept at any alms- 
 house or other asylum at public expense," 
 preserves the voting status of tbe immates 
 of a soldiers' home at the time of their en- 
 try thereto, and such inmates cannot ac- 
 quire, by reason of their presence in such 
 soldiers' home, and while kept at public ex- 
 pense, the right to vote in the county and 
 precinct in which such institution is lo- 
 cated. Powell v. Spackman, 7 Idaho, 692 
 65 Pac. 503, 54: 378 
 
 38. The inability of students to acquire a 
 residence for votr'.T purposes merely by at- 
 tending an institution of learning, under N. 
 Y. Const, art. 2, .'!, extends to students in 
 a Roman Catholic seminary studying for 
 the priesthood, although each of them has 
 renounced all other residence or home, and 
 on admission to the priesthood will continue 
 in the seminary until assigned elsewhere by 
 his ecclesiastical superiors. Re Barry, 164 
 N. Y. 18, 58 N. E. 12. 52: 831 
 
 39. Residence in a military reservation of 
 the Federal government will not give one a 
 right to vote at a state election held in the 
 county where the reservation is located. 
 McMahon v. Polk, 10 S. D. 296, 73 N. W. 77. 
 
 47 : 830 
 
 40. The fact that a person is improperly 
 and illegally permitted to vote at another 
 place will not alone disqualify him from 
 continuing to vote at his actual residence. 
 Jones v. Skinner, 87 Md. 560, 40 Atl. 381. 
 
 40: 752 
 
 b. Registration. 
 
 Challenges, Proof of Right to Vote, see 
 infra. 78-83. 
 
 Indictment for Illegal Registration, see In- 
 dictment, etc., 32. 
 
 Injunction against, see Injunction, 248. 
 
 Title of Statute as to, see Statutes, 229. 
 
 For Editorial Notes, see infra, V. -1, 2. 
 
 41. No registry law is valid which de- 
 prives the elector of his constitutional right 
 to vote by any regulation with which it is 
 impossible for him to comply. Attorney 
 General v. Detroit, 78 Mich. 545, 44 N. W. 
 388. 7: 99 
 
 42. Where registration is not made by the 
 Constitution an electoral qualification, a 
 resristry law can be sustained only as pro- 
 viding f reasonable mode or method by 
 which the qualifications of an elector may 
 bo ascertained, or as regulating reasonably 
 the exercise of the right to vote. State ex 
 rel. Boyle v. Board of Examiners. 21 Nev. 
 t>7, 24 Pac. 614. 9: 3 So 
 
 43. A constitutional provision which re- 
 quires a residence in the town or ward- of 
 ten days only as a condition of voting is 
 violated by a law which compels registra- 
 tion, and fixes the last day therefor on the 
 fourth Monday of October, which in some 
 years will be more than ten days before 
 election dav. Attorney General v. Detroit. 
 78 Mich. 545, 44 N. W. 388, 7: 99 
 
 44. A law providing but five days in the 
 whole year upon which a person can be 
 registered to qualify himself as a voter, re- 
 quiring his personal application therefor,- 
 with no exception in case of his sickness or 
 absence on those days, is unreasonable and 
 void. Id, 
 
 45. A registration law which fixes three 
 days in a certain month upon which voters 
 can register, and requires everyone to appear 
 personally before the board in order to be 
 registered, and provides that if anyone fails 
 to register he cannot vote at any election 
 within the ensuing year, is in conflict with 
 constitutional provisions declaring that all 
 elections shall be free and equal, and that 
 every free white male citizen twenty-one 
 years of age. who has resided in the state 
 two years, or in the county, city, or town 
 one year, and in the election precinct sixty 
 days, prior to the election, shall be entitled 
 to vote. Owensboro v. Hickman, 90 Ky. 629, 
 14 S. W. 688, 10: 224 
 
 46. Where the Constitution requires resi- 
 dence in a voting precinct for only thirty 
 days before an election to entitle a per- 
 son to vote, the legislature cannot require 
 him to register ninety days before an elec- 
 tion, if the act of registering includes the 
 fixing and designation of the precinct in 
 which he shall be entitled to vote. Morris 
 v. Powell, 125 Ind. 281, 25 N. E. 221, 9: 326 
 
 47. A requirement that an intending voter 
 shall, at the time of registering, sign a 
 statement as to his lodging place, and that 
 he is a bona fide resident of .the precinct in 
 which he lodges, the production of a certifi- 
 cate of which at election time is necessary 
 to show his right to vote, is an attempt to 
 compel him to designate, at the time of 
 registration, the precinct in which he shall 
 be entitled to vote. Id. 
 
 48. The adoption of the registry list of a 
 general election held the preceding year is a 
 reasonable regulation, which will not invali- 
 date a special election for the approval of 
 proposed constitutional amendments, held 
 three months after the general election. 
 State ex rel. Boyle v. Board of Examiners, 
 21 Nev. 67, 24 Pac. 614, 9:385 
 
 49. Since registration is not an electoral 
 qualification, a statute providing for the 
 submission of proposed constitutional 
 amendments to a vote of the people at a 
 special election does not violate Nev. Const, 
 art. 16. 1. on the ground that the VIM.T- 
 registered under the act are not qualified to 
 vote upon the proposed amendments be- 
 cause of not being, at the date of the 
 special election, registered so as to have en- 
 titled them to vote for a member of the leg- 
 islature which voted to submit the amend- 
 ments to the electors. Td.
 
 1096 
 
 ELECTIONS, II. a. 
 
 50. A registration law providing that for 
 the next registration the inspectors of the 
 last election shall act, and that they can- 
 not act out of their own precincts, and 
 which repeals all other registration laws, is 
 inoperative where the act provides for 
 changing and increasing the number of the 
 precincts in such a way that some would 
 have more than their proportion of in- 
 spectors residing therein, some less, and 
 some none at all. Attorney General v. De- 
 troit, 78 Mich. 545, 44 N. W. 388, 7: 99 
 
 51. One who on his application for reg- 
 istration is a minor and unnaturalized, but 
 who states that he will soon become of age 
 and will then apply for naturalization, and 
 if successful present his papers to the regis- 
 ters, and whose name is entered in the 
 duplicate registers, but not as a qualified 
 voter, should have his name entered as such 
 on applying to the board, after attaining his 
 majority and being naturalized, when it is 
 in session for revising the register, under 
 Md. act 1896, chap. 202, 16, 1 4, providing 
 that any persons constitutionally qualified 
 to vote and personally applying for regis- 
 tration shall be registered as qualified 
 voters, and 21, providing that the board 
 shall remain in session for the sole purpose 
 of revising their registry, and no new name 
 shall be added. Barret v. Taylor, 85 Md. 
 173. 36 Atl. 708, 36: 129 
 
 52. Registering a qualified voter without 
 his appearing in person as required by law, 
 when done without fraudulent intent, is not 
 punishable as a felony under the Kansas 
 statute, which declares that a violation of 
 the statute shall be a felony. State v. 
 Bush, 47 Kan. 201, 27 Pac. 834, 13: 607 
 Discrimination. 
 
 53. Where the Constitution requires the 
 legislature to provide for the registration of 
 all persons entitled to vote, a law providing 
 for the registration of a class or part only 
 of the voters is void. Morris v. Powell, 125 
 Ind. 281, 25 M. E. 221, 9: 326 
 
 54. A law which requires one person to be 
 registered in order to be entitled to vote, 
 while it permits another person to vote 
 without being registered, is void under a 
 Constitution which prescribes registration 
 according to law as one of the qualifications 
 of voters. Id. 
 
 55. A law imposing extra burdens and 
 hardship in the matter of registration, upon 
 persons entitled to vote under the Constitu- 
 tion, but who are absent from the state for 
 a period of six months or more, or who are 
 compelled to change their places of resi- 
 dent from one county to another within six 
 months next preceding an election, in order 
 to bo permitted to cast their votes, is in- 
 valid. Hence a law which requires such 
 perso7is jjp register ninety days before an 
 election, while other persons are not re- 
 quired to register at all. is void. Id. 
 
 5fi. A statute requiring a notice to be 
 registered in the county clerk's office, of a 
 claim to be a legal voter, as a condition of 
 a right to vote, by every person who since 
 voting has been absent from the state for 
 six months, or leaves it with intent to vote 
 
 elsewhere, or has voted elsewhere, or has 
 not resided at least six months within the 
 county, is in violation of constitutional pro- 
 visions for a general registration law and 
 giving every male citizen of twenty-one 
 years of age who has resided in the state six 
 months, in the township sixty days, and in 
 the ward or precinct thirty days, im- 
 mediately preceding the election, the right 
 to vote, and also providing that no person 
 shall lose his residence by reason of his ab- 
 sence on busine'ss of the state or of the 
 United States. Brewer v. McClelland, 144 
 Ind. 423, 32 N. E. 299, 17: 845 
 
 57. A provision that naturalized voters, in 
 order to be registered, must produce proper 
 certificates of naturalization, or declaration 
 of intention, or satisfactory evidence there- 
 of other than the oath of the applicant, and 
 which requires the name of the court in 
 which such proceedings were had, and also 
 the date thereof, to be proved, is unreason- 
 able and void. Attorney General v. Detroit, 
 78 Mich. 545, 44 K W. 388, 7: 99 
 
 58. Male inhabitants residing in the state 
 June 24. 1835, being made citizens of Michi- 
 gan by the Constitution although neither 
 native-born nor naturalized, a law which 
 compels registration of voters, and provides 
 only for native-born or naturalized citizens, 
 is not valid. Id. 
 
 59. The legislature may lawfully require 
 a person coming into the state to take up 
 his residence to evidence that fact to en- 
 title himself to the right to exercise the 
 elective franchise by registering the intent 
 in a public record, and may deny him the 
 right to have his name placed on the regis- 
 try of voters iintil the expiration of a cer- 
 tain time after the making of such record. 
 Pope v. Williams, 98 Md. 59, 56 Atl. 543, 
 
 66: 398 
 
 II. Elections, 
 a. In General. 
 
 For Creation of New County, see Counties, 
 3, 4. 
 
 Attaching Unorganized to Organized County 
 for Purposes of, see Counties, 13. 
 
 As to Change of County Seat, see Counties, 
 18-21. 
 
 Power of Equity to Protect, see Equity, 5, 
 6. 
 
 Election of Justice of the Peace, see Jus- 
 tice of the Peace, 1. 
 
 Special Election for Installation of Light 
 Plant, see Municipal Corporations, 390. 
 
 On Amendment of City Charter, see Munic- 
 ipal Corporations, 42-46. 
 
 For Editorial Xotes, see infra, V. 3, 4. 
 
 60. The annual election for municipal 
 officers is a general election within the 
 meaning of a constitutional and statutory 
 provision authorizing the submission of the 
 question of reorganization, where the elec- 
 tions are classified only as general and spe- 
 cial. People ex rel. Wells v. Berkeley, 102 
 Cal. 298. 36 Pac. 591, 23: 838
 
 ELECTIONS, II. a. 
 
 1097 
 
 61. An election law passed for the pur- 
 pose of securing purity of ballot will be lib- 
 erally construed and all doubt solved in its 
 favor. Courts will not declare it invalid be- 
 cause its enforcement may result in the 
 restriction of the right to vote. Detroit v. 
 Rush, 82 Mich. 532, 4G N. W. 951, 10: 171 
 
 62. An elector may lawfully vote for the 
 same man as a candidate for two incompati- 
 ble offices, at the same election. Misch v. 
 RusselL 13G 111. 22, 26 N. E. 528, 12: 125 
 
 63. The fact that an election law requires 
 expenses to be incurred in fitting up polling 
 place?, without making any provision as to 
 how such expenses shall be incurred, does 
 not invalidate the law, if it ^imposes the 
 duty of providing such polling place upon a 
 municipality, since, where such duty is im- 
 posed on a municipality, it is also its duty 
 to provide for the payment of the expenses. 
 Detroit v. Rush, 82 Mich. 532, 46 N. W. 951, 
 
 10: 171 
 
 64. An election held under a statute with 
 an invalid provision making the action of a 
 ministerial board conclusive on a voter's 
 right to cast his ballot will not, on this ac- 
 count alone, be set aside, in the absence of 
 any showing that voters were deprived by 
 the action of such board of any rights con- 
 ferred by the statute. State ex rel. Lamar 
 v. DP.lon, 32 Fla. 545, 14 So. 383, 22: 124 
 To fil! vacancy. 
 
 65. A vacancy in office caused by the 
 death of a county clerk within fifteen days 
 before a general election should be filled at 
 that election under Mo. Stat. 1964, read in 
 connection with 4766, as amended by Mo. 
 Laws 1893, p. 155. State ex rel. Crow v. 
 Hostfttter, 137 Mo. 636, 39 S. W. 270, 
 
 38: 208 
 
 66. An election to fill a vacancy in the 
 office of lieutenant governor can be held in 
 the absence of any constitutional or stat- 
 utory provision for it. People ex rel. Lynch 
 v. Budd, 114 Cal. 168, 45 Pac. 1060, 34: 46 
 
 67. A mayor's resignation of his office, to 
 take effect on a certain day, which is more 
 than thirty days before election, creates a 
 vacancy at that date, within the meaning 
 of Ohio Rev. Stat. 1754, providing for 
 the filling of vacancies which have occurred 
 more than thirty days previous thereto, at 
 a municipal election, although the resigna- 
 tion was not accepted until less than thirty 
 days before the election. Reiter v. State 
 ex rel. Durrell, 51 Ohio St. 74, 36 N. E. 943, 
 
 23: 681 
 
 Notice or proclamation. 
 
 On Question of Issuing Municipal Bonds, 
 see Bonds, 120, 121. 
 
 On Proposition to Relocate County Seat, 
 see Counties, 19, 20. 
 
 Of Election of Presidential Electors, see 
 Presidential Electors, 5. 
 
 Injunction against Giving Out Notice, see 
 Injunction, 243, 248. 
 
 Mandamus to Compel Issuance of, see Man- 
 damus, 122. 
 
 Mayor's Power to Proclaim, see Municipal 
 Corporations, 599. 
 
 68. A hotel is a public place, within a 
 statutory provision for posting notices of 
 
 an election in public places. Pritchard v. 
 Magoun, 109 Iowa, 364, 80 X. W. 512, 
 
 46: 381 
 
 69. Failure to include in the election no- 
 tice the name of a certain office to be filled 
 does not defeat the validity of an election 
 to that office, at least where it appears 
 that the electors generally were apprised of 
 the fact and voted on the question. State 
 ex rel. Berge v. Lansing, 46 Neb. 514, 64 N. 
 W. 1104, 35: 124 
 
 70. The refusal of the proper officers to 
 give official notice of an election to fill a 
 vacancy in an office, because of their claim 
 (based on an unconstitutional statute) that 
 no vacancy exists, will not defeat an elec- 
 tion of the only candidate for the office, who 
 received about the same number of votes 
 as other candidates of his party, who were 
 elected by a plurality, where the electors 
 had nearly, if not quite, as full notice of his 
 candidacy as if the official notice had been 
 given, and the result would not have been 
 different if all the electors had voted. Ad- 
 sit v. Secretary of State, 84 Mich. 420, 48 N. 
 W. 31, 11: 534 
 
 71. A misrecital of some of the provisions 
 of a statute in the proclamation of an elec- 
 tion called to decide upon its acceptance 
 will not make the election void, where the 
 statute does not require their insertion, and! 
 there is nothing to show that the error af- 
 fected the election. Datz v. Cleveland (N. 
 J. Err. & App.) 52 N. J. L. 188, 200, 19 Atl. 
 17, 20 Atl. 317, 7:431 
 Regulations; mode of voting. 
 
 72. Laws regulating elections are not un- 
 constitutional unless they deny the fran- 
 chise or render its exercise so difficult and 
 dangerous as to amount to a denial. De 
 Walt v. Bartley, 146 Pa. 529, 24 Atl. 185, 
 
 15: 771 
 
 73. The legislature, within -the terms of 
 the Constitution, may adopt such reasonable 
 regulations and restrictions for the exercise 
 of the elective franchise as may be deemed 
 necessary to prevent intimidation, fraud, 
 bribery, or other corrupt practices, provided 
 that the voting be by ballot and that the 
 person casting the vote do so in absolute 
 secrecy. Taylor v. Bleakley, 55 Kan. 1, 39 
 Pac. 1045, 28: 683 
 
 74. The clause of an election act, prohibit- 
 ing any electioneering on an election day 
 within 100 feet of any polling place, is a 
 reasonable police regulation to secure good 
 order about the polls. State, Ransom, Pros- 
 ecutor, v. Black (N. J. Sup.) 54 N. J. L. 446, 
 24 Atl. 489, 16: 769 
 
 75. Under the Michigan election law of 
 1889, the booths must be so constructed as 
 to secure secrecy to the voter in the prepa- 
 ration of his vote, but so as not to obstruct 
 the view between the public and the voter 
 when he deposits his vote. Detroit v. Rush, 
 82 Mich. 532, 46 N. W. 951, 10: 171 
 
 76. The provisions relating to the making 
 of regulations as to the time a voter shall 
 be permitted to remain in a booth, contained 
 in Mich, act 1889, 30, apply to municipali- 
 ties whose elections are governed by special 
 enactments, although the act does not in ex-
 
 1098 
 
 ELECTIONS, II. a. 
 
 press terms make them applicable to such 
 municipalities. Id. 
 
 77. The provisions of Fla. Const, art. 6, 
 6, that in all elections by the people the 
 vote shall be by ballot, applies to municipal 
 elections. State ex rel. Lamar v. Dillon, 32 
 Fla. 545, 14 So. 383, 22: 124 
 Challenges; proof of right to vote. 
 Voting without Proof of Right as Crime, see 
 
 infra. 275. 
 See also supra, 14, 15. 
 
 78. Inspectors of election have no right to 
 reject a ballot offered by a registered voter 
 who tenders the oath prescribed by statute, 
 where the statute says that if the person 
 challenged "shall take such oath his vote 
 shall be received." Wolcott v. Holcomb, 97 
 Mich. 361, 56 N. W. 837, 23: 215 
 
 79. Pa. act Jan. 30, 1874 (P. L. 31), regu- 
 lating elections and requiring unregistered 
 voters to prove their qualifications by the 
 affidavits of themselves and of a qualified 
 elector, does not violate Pa. Const, art. 8, 
 7, declaring that no elector shall be de- 
 prived of the privilege of voting by reason 
 of nmiregistry, and is not unreasonable as 
 imposing a hardship upon the voter. Re 
 Cusick's Appeal, 136 Pa. 459, 20 Atl. 574, 
 
 10: 228 
 
 80. The word "elector," as used in Pa. 
 Const, art. 8, 7, declaring that no elector 
 shall be deprived of the privilege of voting 
 by reason of nonrcgistry, means a duly qual- 
 ified elector; and until an unregistered vot- 
 er has complied with the law he is not even 
 prima facie a qualified elector. Id. 
 
 81. An affidavit of a nonregistered voter 
 which fails to comply with Pa. act Jan. 30, 
 1874 (P. L. 31), in that it does not state 
 when and where the voter was born, or when 
 and where the tax claimed to be paid by 
 him was assessed, and where and to whom 
 paid, but merely avers generally that he has 
 resided in the district for the term pre- 
 scribed, withoxit stating where his residence 
 was in the district, is so defective as to 
 warrant the excluding or rejecting of his 
 vote. Id. 
 
 82. The affidavit of nonregistered voter 
 must, under Pa. act Jan. 30, 1874 (P. L. 31), 
 be sufficiently specific to show upon its face, 
 without reference to any other fact or 
 circumstance, that the voter has the right 
 to vote, and also to found thereon an indict- 
 ment for perjury in case any of the material 
 allegations therein are wilfully false. Id. 
 
 83. A statute requiring unregistered vot- 
 ers to state in their affidavit as to their 
 qualifications to vote, when and where the 
 tax claimed to be paid by the affiant was 
 assessed, and when, where, and to whom 
 paid, is not unconstitutional and void as 
 being unreasonable and imposing a hard- 
 ship on the voter, a reasonable certainty 
 in these matters being all that is required 
 in the affidavit. Id. 
 Cumulative voting. 
 
 For Editorial Notes, see infra, V. 3. 
 
 84. The uniformity of the rights of elec- 
 tors is violated by a statute which attempts 
 to permit cumulative voting for representa- 
 tives in districts in which onlv one is to 
 
 be elected while denying it in others, as a 
 minority of voters might elect a candidate 
 in the former district under some circum- 
 stances, but could not in the latter. May- 
 nard v. Board of District Canvassers, 84 
 Mich. 228, 47 N. W. 756, 11: 332 
 
 85. Cumulative voting, by which an elec- 
 tor entitled to vote for several candidates 
 for the same office may cast more than one 
 vote for the same candidate, distributing 
 among the candidates as he chooses a num- 
 ber of votes equal to the number of person* 
 to be elected is in violation of the Michigan 
 Constitution, which provides for representa- 
 tive government and that "all votes shall 
 be given by ballot," as the law in force at 
 the adoption of the Constitution made a 
 ballot illegal if it included more than one 
 name for any office, while other laws pun- 
 ished an elector for voting more than for 
 any candidate. Td. 
 Irregularities. 
 
 In Notice or Proclamation, see supra, 69- 
 
 71. 
 
 In Ballots, see infra, 151-163. 
 As Affecting Canvass, see infra, 256. 
 
 86. Innocent irregularities of election offi- 
 cers, which are free of fraud and have not 
 prevented a full and fair expression of the 
 popular choice, will not vitiate the result 
 of an election, unless the legislature has ex- 
 pressly so declared. Bowers v. Smith, 111 
 Mo. 45, 20 S. W. 101, 16: 754 
 
 87. The mere failure of an election officer 
 to perform some prescribed duty, in the ab- 
 sence of any fraud or imposition practised 
 upon the voter, will not deprive him of his 
 ballot, unless the language of the statute 
 allows no other alternative. Hope v. 
 Flentge, 140 Mo. 390, 41 S. W. 1002. 
 
 47: 806 
 
 88. Failure of election officers to provide 
 booths which comply with the law is a 
 mere irregularity which will not render void 
 the votes cast in that precinct. Moyer v. 
 Van de Vanter, 12 Wash. 377, 41 Pac. 60, 
 
 29: 670 
 
 89. The reception by election judges of 
 votes at two polling places in a precinct on- 
 ly about 75 feet apart, instead of at one, be- 
 tween which the voting is divided according 
 to the alphabetical arrangement of the vot- 
 ers' names, does not invalidate the returns 
 from that precinct. Bowers v. Smith. Ill 
 Mo. 45, 20 S. W. 101, 16: 754 
 
 90. A duly qualified elector will not lose 
 his vote because of the negligence or mis- 
 prision of an election officer; and when an 
 affidavit as to his qualifications has in fact 
 been made in compliance with Pa. act Jan. 
 30. 1874 (P. L. 31), and the informality is 
 the result of the ignorance or neglect of 
 the officer before whom it was taken, such 
 defect may be cured and the paper re- 
 formed upon due proof of what occurred at 
 the time. Re Cusick's Appeal. 136 Pa. 459, 
 20 Atl. 574. 10: 228 
 
 91. An election is not valid, although con- 
 ducted fairly and honestly, if the statutory 
 provisions and rules are not substantially 
 observed. State ex rel. Van Amrinije r. 
 Tavlor. 108 X. C. 196. 12 S. E. 100r>. 12: 20t
 
 ELECTIONS, II. b, 1. 
 
 109i 
 
 92. The opening of the polls an heur later 
 than the time prescribed by statute, and 
 the removal of the ballot box from the polls 
 in violation of Cal. Pol. Code, 1160, 1162, 
 invalidates the election in the precinct, al- 
 though the misconduct is prompted merely 
 by ignorance and lack of appreciation by 
 the election officers of the responsibility of 
 their positions. Tebbe v. Smith, 108 Cal. 
 101, 41 Pac. 454, 29: 673 
 
 93. An election held by a mere usurper 
 of the office of registrar, who had fraudu- 
 lently obtained the books and set up his 
 claim to the office for the first time on elec- 
 tion day, when the lawful registrar public- 
 ly demanded the return of the books, is 
 void. State ex rel. Van Ainring'e v. Taylor, 
 108 N. C. 196, 12 S. E. 1005, 12: 202 
 Officers and inspectors. 
 
 Criminal Registration, see supra, 52. 
 
 Irregularities by, see supra, 86-93. 
 
 Enforcement in Equity of Right to Have 
 Inspector at Polls, see Equity, 6. 
 
 Mandamus to Control Action of, see Man- 
 damus, I. f. 
 
 Compelling Permission to Take Memoran- 
 dum from Records, see Mandamus, 117. 
 
 Appointment of, see Officers, 60. 
 
 Removal of, see Officers, 129, 130. 
 
 Liability for Rejecting Vote, see Officers, 
 202. 
 
 Special Legislation as to, see Statutes, 401. 
 
 See also supra, 50, 78; infra, 107. 
 
 For Editorial Notes, see infra, V. 3. 
 
 94. A faction of a political party which is 
 not, and does not claim to be, in itself a 
 distinct political party, is not entitled to 
 have inspectors at an election, under Ky. 
 Stat. 1481. Weaver v. Toney, 107 Ky. 
 419, 54 S. W. 732, 50: 105 
 
 95. No citizen other than the proper offi- 
 cials lias a right to inspect and take memo- 
 randa from so much of the records of the 
 electoral board as relates to the preparation 
 and printing of the official ballots, certifi- 
 cation of the same and their distribution to 
 the judges of election of the several pre- 
 cincts. Cleaves v. Terry, 93 Va. 491, 25 S. 
 E. 552, 34: 144 
 
 96. So much of the records of the electoral 
 board as relates to the appointment and re- 
 moval of judges and dommissioners of elec- 
 tion and registers or the ordering of a new 
 registration may be inspected and copied 
 by citizens. Id. 
 
 97. To hold election officers personally 
 liable for the injuries sustained by their 
 refusal to consider ballots cast in favor of 
 a candidate for office, he must show that he 
 was legally elected, so that their conduct 
 deprived him of the office, and inflicted the 
 injury for which the action is brought. 
 Chamberlin v. Wood, 15 S. D. 216, 88 N. W. 
 109, 56: 187 
 New election. 
 
 Of Member of Legislature, Power of Court 
 
 to Require, see Courts, 170. 
 Mandamus to Compel Calling of, see Manda- | 
 
 mus, 119. 
 
 98. A statute providing for a new election 
 within ten days in case of the failure of an 
 election in a town divided into voting dis- 
 
 tricts does not violate the Rhode Island 
 Constitution providing for a reopening of 
 the polls in case there is no election, as 
 this applies only to towns which are not di- 
 vided into districts. State v. South Kings- 
 town, 18 R. I. 258, 27 Atl. 599, 22: 65 
 
 99. The requirement of a new election 
 within ten days, in R. I. Pub. Stat. chap. 
 710, 18, in case of the failure of an elec- 
 tion, does not limit the power, but is in- 
 tended to insure its timely exercise, and 
 must be regarded, not as mandatory, but 
 merely directory, where the time named has 
 elapsed without an election. Id. 
 
 b. Ballots. 
 1. Preparation; Official Acts. 
 
 Presumption as to Contents of Ballots, see 
 
 Evidence, 615. 
 
 Mandamus as to, see Mandamus, 120, 121. 
 For Editorial Notes, see infra, V. 5. 
 
 100. The legislature has power to define 
 and prescribe what shall constitute a law- 
 ful ballot. Slaymaker v. Phillips, 5 Wyo. 
 453, 40 Pac. 971, 42 Pac. 1049, 47: 842 
 
 101. The constitutional right of voting by 
 ballot is not impaired by a statute which 
 requires the use of a so-called official bal- 
 lot which the voter is required to mark and 
 prepare so as to show his choice. State ex 
 rel. Runge v. Anderson, 100 Wis. 523, 76 
 N. W. 482, 42: 239 
 
 102. A statute requiring the use of an 
 official ballot may properly be deemed nec- 
 essary by the legislature in order to secure 
 to the voters a full and fair election and an 
 accurate and honest count, and does not 
 impair the constitutional rights of the vot- 
 ers. Cole v. Tucker, 164 Mass. 486, 41 N. 
 E. 681, 29: 668 
 
 103. A statute making an official ballot 
 compulsory in the election of city officers, 
 but optional in the election of town officers, 
 is not void as partial and unequal in its 
 operation upon the rights of voters. Id. 
 
 104. A special election on the question of 
 aiding a corporation to build a bridge over 
 a river is not within the provisions of Iowa 
 Acts 24th Gen. Assem. chap. 33, providing 
 for the use of Australian ballots in city 
 elections. Pritchard v. Magoun, 109 Iowa, 
 364, 80 N. W. 512, 46: 381 
 
 105. Courts cannot inquire into the mo- 
 tives which underlie the formation of a 
 political party in determining whether or 
 not it has such an existence as to be en- 
 titled to issue separate election ballots 
 bearing its name. Fields v. Osborne, 60 
 Conn. 544, 21 Atl. 1070, 12: 551 
 
 106. The fact that the real object of a 
 caucus failed of accomplishment is not suffi- 
 cient to show that no political party was 
 formed which would be entitled to issue 
 election ballots bearing its name. Id. 
 
 107. The duty of the secretary of state, 
 under the Michigan election law of 1889, 
 ends with the printing of tickets and de- 
 livery of them to the proper committees of 
 the different political parties; he is not re-
 
 1100 
 
 ELECTIONS, II. b, 1. 
 
 quired to deliver any to the inspectors of 
 election. Detroit v. Rush, 82 Mich. 532, 46 
 N. W. 951, 10: 171 
 
 Form and contents generally. 
 For Editorial Notes, see infra, V. 5. 
 
 108. A voter's rights are not abridged or 
 restricted by the requirements of a law 
 which provides that all ballots shall be of 
 uniform color and size. Detroit v. Rush, 82 
 Mich. 532, 46 N. W. 951, . 10: 171 
 
 109. The fact that a voter may be com- 
 pelled, in exercising his right to vote, to 
 deposit a ballot having upon it the name or 
 style of a party of whose principles he dis- 
 approves, is not an illegal deprivation of a 
 right to vote; for if a voter exercises his 
 right to erase the names of all the candi- 
 dates on the ticket, and inserts the names 
 of persons who stand for an entirely differ- 
 ent principle, the heading of the ticket be- 
 comes meaningless as an expression of the 
 voter's sentiments. State, Ransom, Pros- 
 ecutor, v. Black (N. J. Sup.) 54 N. J. L. 446, 
 24 Atl. 489, 16: 769 
 
 110. The provision of the Rhode Island 
 ballot act (Pub. Laws, chap. 731, 6), which 
 requires ballots to contain the names, etc., 
 of all candidates in nomination for any of- 
 fices specified in the ballot, is not in con- 
 flict with the constitutional requirements 
 that ballots for general officers shall be re- 
 turned to the secretary of state for safe 
 keeping, while ballots for other officers 
 must be returned to other persons, since 
 the names of candidates for general offices 
 may be printed on ballots distinct from 
 those of local officers, or, if printed on the 
 same ballot, it may be separated into two 
 pieces, and each part returned to the re- 
 quired custodians. Re Ballot Act, 16 R. I. 
 766. 19 Atl. 656, 6: 773 
 
 111. Ballots with a device upon them 
 must be rejected in a municipal election un- 
 der X. C. Code, 3789, which requires it to 
 be conducted in like manner as one for mem- 
 bers of assembly, in which, by 2689, such 
 ballots are void. State ex rel. Baxter v. 
 Ellis. Ill N. C. 124 r 15 S. E. 938. 17: 382 
 
 112. Ballots are not so marked as to be 
 illegal under a statute prohibiting any "or- 
 naments, designation, mutilation, symbol, 
 or mark of any kind whatsoever." except 
 the names of the candidates and of the of- 
 fices to be filled, by the fact that on the 
 face of the tickets, between the words 
 "For Electors of President and Vice-Presi- 
 dent," at the head of the ticket, and the 
 names of the electors, are printed the 
 word "National Repiiblican Ticket." or on 
 the face of other tickets, at about the mid- 
 dle, between the names of certain candi- 
 dates, are the words "Free Suffrage Ticket." 
 State ex rel. Law v. Saxon, 30 Fla. 668. 12 
 So. 218. 18: 721 
 
 113. The name of the political party suffi- 
 ciently appears at the head of a ballot, 
 where it is combined in a vignette, without 
 repeating the name in a separate heading. 
 Shields v. Jacob, 88 Mich. 104. 50 N. W. 
 10"). 13: 760 j 
 
 111. Tf a political party chooses to nom- ! 
 inato only a county ticket, it can prepare 
 
 its vignette or heading and tickets and de- 
 posit one with the county clerk as provided 
 by Mich, act 1889, 10, procure their print- 
 ing by the secretary of state, and deposit 
 the ballots with the inspectors; and such 
 tickets may be voted the same as though 
 they also contained the names of state 
 officers. Detroit v. Rush, 82 Mich. 532, 46 
 N. W. 951, 10: 171 
 
 Description of office. 
 
 115. Ballots cast at a town meeting, 
 which include the name of a candidate for 
 judge of probate, who can be legally elected 
 only at a state election, or which have the 
 words "and ex offtcio registrar of births, 
 marriages, and deaths," added to the name 
 of the office of town clerk, are invalid un- 
 der Conn. Pub. Acts 1889, chap. 247, 1, 
 which provides that ballots shall contain, 
 in addition to the official indorsement, only 
 the "names of the candidates, the office 
 voted for, and the name of the political 
 party." Fields v. Osborne, 60 Conn. 544, 21 
 Atl. 1070, 12: 551 
 
 116. The use of the word "for," before the 
 name of each office named in a ballot, does 
 not invalidate the ballot, under Conn. Pub. 
 Acts 1889, chap. 247, 1, prohibiting any 
 words thereon except the official indorse- 
 ment, the names of candidates, the office 
 voted for, and the name of the political 
 party. Id. 
 State ex rel. Phelan v. Walsh, 62 Conn. 260, 
 25 Atl. 1, 17: 364 
 
 117. A ballot for school directors at an 
 election to choose one for a full term of 
 three years, and one to fill a vacancy for 
 one year, cannot be counted when it con- 
 tains the names of two persons without 
 anything to designate which office either is 
 intended for. Page v. Kuykendall, 161 111. 
 319. 43 N. E. 1114, 32: 656 
 
 118. A ballot containing two names, with 
 the words "long term" after one of them, 
 cast at an election which is held only for 
 the election of school directors, one for a 
 long term and one to fill a vacancy, can be 
 counted at least for the person named for 
 the long term, although there is a failure 
 to designate by express words the office for 
 which the other person was named. Id. 
 
 119. The designation of the office to be 
 filled, which a ballot must show under 1 
 Starr & C. (111.) Stat. p. 1008, 52, 53, 
 sufficiently appears, at least as to the per- 
 son named for the long term upon a bal- 
 lot containing the names of two persons, 
 with the words "long term" following one 
 name, without any other words to designate 
 the office, when the election is held only 
 for school directors, one to be chosen for a 
 long term and one for a vacancy. Id. 
 Restricting vote to names on official ballot. 
 Partial Invalidity of Statute as to, see 
 
 Statutes, 112.' 
 
 Construction of Statute as to, see Statutes, 
 491. 
 
 120. The lark of any nomination does not 
 prevent voting for a person, under a pro- 
 vision that "the voter may write or paste 
 upon his ballot the name of any person for 
 whom he desires to vote for anv office."
 
 ELECTIONS, II. b, 1. 
 
 1101 
 
 People ex rel. Bradley v. Shaw, 133 X. Y. 
 493, 31 N. E. 512, 16: 606 
 
 121. The "Australian ballot law" (Mo. 
 Rev. Stat. 1889, chap. 60, art. 3) does not 
 limit the range of choice of voters in Mis- 
 souri to the persons nominated in the modes 
 prescribed by it. Bowers v. Smith, 111 Mo. 
 45, 20 S. W. 101, 16: 754 
 
 122. It is competent for the legislature to 
 prescribe an official ballot and prohibit the 
 use of any other; and it may also provide 
 for printing the names of candidates regu- 
 larly nominated by a convention or mass 
 meeting, or who run as independents; but 
 it cannot restrict the elector to voting for 
 some one of the candidates whose names are 
 printed upon the official ballot. The Con- 
 stitution guarantees to him the right to 
 vote for whom he pleases. State ex rel. 
 Lamar v. Dillon, 32 Fla. 545, 14 So. 383, 
 
 22: 124 
 
 123. Electors may by statute be limited 
 to voting for the candidates whose names 
 appear on the official ballot, unless the right 
 to vote for others is secured by the Con- 
 stitution. Chamberlin v. Wood, 15 S. D. 
 216. 88 X. W. 109, 56: 187 
 
 124. The power of the legislature to re- 
 quire the names of all candidates for office 
 to be printed on the official ballot, thereby 
 in effect denying to electors the right of 
 writing the name of any candidate thereon, 
 is not destroyed by constitutional provi- 
 sions that elections shall be free and equal, 
 and prescribing the qualifications of elec- 
 tors. Id 
 Persons and parties entitled to place on 
 
 ballot. 
 
 Persons Nominated by Political Committee, 
 see infra, 306, 307. 
 
 Pereon Nominated by Petition, see infra, 
 304. 
 
 Persons Nominated by Convention, see in- 
 fra, 302, 303. 
 
 Discrimination between Nominees of Dif- 
 ferent Parties, see infra, 171. 
 
 See also infra, 149. 
 
 125. That the law does not require the 
 official ballots to be printed and in posses- 
 sion of the proper officer until ten days be- 
 fore election does not, prior to that time, 
 deprive the court of jurisdiction of a con- 
 troversy to settle the names which shall be 
 placed upon the ballot. State ex rel. How- 
 ells v. Metcalf, 18 S. D. 393, 100 N. W. 923, 
 
 67: 331 
 
 126. A political party the name of which 
 can be placed on ballots, under the Connecti- 
 cut election law, is formed where a Repub- 
 lican caucus votes to adjourn for the organi- 
 zation of a citizens' caucus, and thereupon 
 some democrats unite with the Republicans 
 present and nominate a citizens' ticket 
 which is voted at a town meeting, although 
 no committees are appointed or any steps 
 taken to effect a permanent organization. 
 Fields v. Osborne, 60 Conn. 544, 21 Atl. 
 1070. 12: 551 
 
 127. Clauses which provide tnat only 
 those parties casting a certain percentage 
 of the vote at the last election, and those 
 parties presenting petitions signed by a 
 
 certain number of voters, shall be entitled to 
 official ballots, is a valid regulation to re- 
 strain the number of ballots to be printed 
 and distributed within reasonable limits. 
 State, Ransom, Prosecutor, v. Black (N. J. 
 Sup.) 54 N. J. L. 446, 24 Atl. 489 16: 769 
 
 128. A statute requiring official ballots, 
 which can contain the names of the candi- 
 dates of a political party only where the 
 vote of that party at the last election was 
 at least 3 per cent of the entire vote cast, 
 but which allows any voter to insert the 
 names of any candidates that he chooses, 
 does not deny any voter the exercise of 
 the elective franchise, or deny to citizens 
 of that party their constitutional right to 
 equality and immunity in voting. De Walt 
 v. Bartley, 146 Pa. 529, 24 Atl. 185, 
 
 15:771 
 
 129. The requirement that a political par- 
 ty must have polled at least 1 per cent of 
 the entire vote cast in the state at the 
 last general election, in order to be enti- 
 tled to have nominations certified by it 
 appear on the blanket ballot, is not a viola- 
 tion of Ohio Const, art. 5, 1, giving a 
 qualified elector the right to vote at all 
 elections. State ex rel. Plimmer v. Poston, 
 58 Ohio St. 620, 51 N. E. 150, 42: 237 
 
 130. A statute permitting the name of a 
 candidate to appear but once on an official 
 ballot, and also providing that no party 
 shall be entitled to a place on such a ballot 
 unless it cast at least 2 per cent of the 
 vote at the preceding election, is not un- 
 constitutional on the ground that a party 
 cannot nominate the same list of candidates 
 that another party has nominated without 
 losing its right of representation upon the 
 official ballot at the next election. State 
 ex rel. Runge v. Anderson, 100 Wis. 523, 
 76 N. W. 482. 42:239 
 
 131. An organized political party cannot 
 have at the same time on the official bal- 
 lot more than one candidate for the same 
 county office. State ex rel. Howells v. Met- 
 calf, 18 S. D. 393, 100 N. W. 923, 67: 331 
 
 132. Provisions of a state law as to the 
 conditions for the nominations of candidates 
 for office before the day of election are 
 mandatory and must be strictly complied 
 with ; and the name of one who was not 
 nominated in the manner fixed by the stat- 
 ute should not be published or printed on 
 the official ballot. Price v. Lush, 10 Mont. 
 61, 24 Pac. 749, 9: 467 
 
 133. The fact that the name of one who 
 was elected to an office was published and 
 printed on the ballots, although he was not 
 nominated in any legal manner, and the no- 
 tification of his nomination was not filed 
 within the period named in the statute, 
 avoids his election under the Australian bal- 
 lot system, notwithstanding a statutory 
 provision allowing voters to write or paste 
 on ballots the name of any person for whom 
 they desire to vote. Id. 
 
 134. Prohibiting the placing on an official 
 ballot of the name of an unsuccessful con- 
 testant for a party nomination at the pri- 
 mary election is a reasonable regulation, 
 and does not violate Minn. Const, art. 7, 7,
 
 1102 
 
 ELECTIONS, II. b, 1. 
 
 providing that any person entitled to vote 
 at any election shall be eligible to any elec- 
 tive office, since the blank space provided 
 for by law in the official ballot, where the 
 voters may write the name of any quali- 
 fied citizen if they wish to vote for him, 
 protects his eligibility and enables him to 
 be elected if he receives the requisite votes. 
 State ex rel. McCarthy v. Moore, 87 Minn. 
 308, 92 N. W. 4, 59: 447 
 
 135. The names of candidates nominated 
 by a convention erroneously claiming to 
 represent a political party, in opposition to 
 the regular convention of that party, should 
 be excluded from the official ballot. State 
 ex rel. Howells v. Metcalf, 18 S. D. 393, 
 100 N. W. 923, 67: 331 
 
 136. Both tickets nominated and certified 
 by rival factions of a regularly called con- 
 vention are entitled to a place on the official 
 ballot in adjoining columns under the party 
 name and vignette, although one may be at 
 the disadvantage of being in a column by 
 itself, while the other is with the general 
 ticket of the party, btephenson v. Boards 
 of Election Comrs. 118 Mich. 396, 76 N. W. 
 914. 42: 214 
 
 137. The protest of a nonresident candi- 
 date for Vice President against printing his 
 name on a ticket of presidential electors 
 named by a state convention, without at- 
 tempting to decline the national nomination 
 or even withdrawing as a candidate in that 
 state, is not a withdrawal "from nomina- 
 tion" within the meaning of Kan. Sess. 
 Laws 1893, chap. 78, 8, and does not pre- 
 clude the use of his name on such ballot. 
 Breidenthal v. Edwards, 57 Kan. 332, 46 Pac. 
 469, 34: 146 
 Placing and grouping tickets or names. 
 Retrospective Statute as to, see Statutes, 
 
 551. 
 See also supra, 130. 
 
 138. The claim of a candidate for office 
 to have his name printed, in the regular 
 party column where all the candidates in the 
 column can be voted for at once by a mark 
 at the head of the column, presents a ques- 
 tion of substantial right. State ex rel. 
 Howells v. Metcalf, 18 S. D. 393, 100 N. 
 W. 923, 67: 331 
 
 139. The name of a person as candidate 
 for an elector of President and Vice Presi- 
 dent cannot appear in more than one place 
 upon the official ballot, under Wyo. Laws 
 1890. chap. 80, 104, which provides for no 
 party headings or columns set apart for 
 separate parties, but requires the ballot to 
 name the party or principle represented by 
 a candidate in connection with his name. 
 State ex rel. Blydenburgh v. Burdick, 6 
 Wyo. 448, 46 Pac. 854, 34: 845 
 
 140. A candidate can have his name ap- 
 pear but once on an official ballot, under 
 Wis. Rev. Stat. 1898, 38, providing that 
 ea^h party ticket shall be printed in one 
 column, but adding that a person nominated 
 by more than one party or convention for 
 the same office shall have his name placed 
 under the designation of the party which 
 
 first nominated him. State ex rel. Runge 
 v. Anderson, 100 Wis. 523, 76 N. W. 482, 
 
 42: 239 
 
 141. The fact that all the candidates of 
 one party are also the nominees of another 
 does not prevent the application of Wis. 
 Rev. Stat. 1898, 38, which requires the 
 name of a candidate who is nominated by 
 more than one party to appear under the 
 designation of the party which first nomi- 
 nated him. Id. 
 
 142. A candidate nominated independent- 
 ly by the requisite number of voters, under 
 Md. Code Gen. Laws, 131, who has also 
 been nominated by a party convention, is 
 entitled by implication to another place on 
 the official ballot, in addition to that in the 
 group of candidates of the political party 
 which has nominated him in convention. 
 Fisher v. Dudley, 74 Md. 242, 22 Atl. 2, 
 
 12: 586 
 
 143. A statute prohibiting the name of 
 any candidate for office from being placed 
 on the official ballot more than once is with- 
 in legislative discretion, and does not vio- 
 late the constitutional rights of electors. 
 State ex rel. Bateman v. Bode, 55 Ohio St. 
 224, 45 N. E. 195, 34: 498 
 
 144. An act which prohibits the printing 
 of the name of a candidate for office in 
 more than one column of the official ballot 
 is, as to a candidate who is the nominee of 
 a single political party and the nominee of 
 electors by petition, a reasonable regulation 
 of the manner of exercising the right of 
 suffrage, and is valid and constitutional. 
 State ex rel. Fisk v. Porter (N. D.) 100 N. 
 W. 1080, 67: 473 
 
 145. A ballot law which permits the name 
 of a candidate to appear on the official bal- 
 lot bt nce, although he may be nominated 
 by di.Terent parties, is not unconstitutionaf 
 although some voters may be unable to vote, 
 as voters of other parties can, for all the 
 candidates of their party without marking 
 the ballot more than once, or to have all 
 the candidates of their party appear on the 
 party ballot. Todd v. Election Comrs. 104 
 Mich. 474, 62 N. W. 564, 64 N. W. 496, 
 
 29: 330 
 
 146. A statute forbidding the printing of 
 the name of a candidate for office in more 
 than one column, and, in case of nomination 
 of the same person by more than one party, 
 forcing him to choose on which ticket his 
 name shall be printed, and directing that, 
 on failure to make such choice, it shall be 
 printed on the ticket first filed, with the- 
 words "No nomination" on the others, is aji 
 unconstitutional interference with the rights 
 of political parties and candidates. Mur- 
 phy v. Curry, 137 Cal. 479, 70 Pac. 461, 
 
 59: 97 
 
 147. The name of a candidate nominated 
 by certificate of electors in place of a per- 
 son previously nominated in the same way 
 but who has declined should be given the 
 same place upon the ballot that the prior 
 nominee would have been entitled to. State 
 ex rel. Blydenburgh v. Burdick. 6 Wyo. 448. 
 46 Pac. 854, '34: 845
 
 ELECTIONS, II. b, 1. 
 
 1103 
 
 148. The grouping of candidates for presi- 
 dential electors is to be made by the county 
 clerk, and not by the secretary of state, un- 
 der Wyo. Laws 1890, chap. 80, 104, provid- 
 ing that the names of such electors present- 
 ed in one certificate shall be arranged in a 
 separate group, but the secretary must so 
 certify the names and description of tho 
 candidates as to convey to the clerk all 
 knowledge requisite to such grouping. Id. 
 
 149. The method of determining the larg- 
 est number of votes polled at the last pre- 
 ceding general election by a political party, 
 in order to determine its place on the official 
 ballot, which is provided by Minn. Gen. 
 Stat. 1894, 30, requiring the* average vote 
 for candidates not indorsed by any other 
 party to be taken, does not apply where all 
 the candidates of a party were nominated 
 also by another party, but in such case 
 the officer charged with the duty of arrang- 
 ing and printing the official ballot may re- 
 sort to any rule or method which he deems 
 to be fair and practicable, as, for example, 
 to take the vote at the general election next 
 preceding the nomination of the duplicate 
 ticket, and his decision will not be dis- 
 turbed unless he acts fraudulently or un- 
 fairly or upon a basis that is clearly im- 
 proper and prejudicial. Higgins v. Berg, 
 74 Minn. 11, 76 N. W. 788, 42: 245 
 Stamping; indorsements. 
 
 See also infra, 209-211. 
 
 For Editorial Notes, see infra, V. 6. 
 
 150. It is not an unreasonable and uncon- 
 stitutional restriction of the right of suf- 
 frage to require an indorsement by the of- 
 ficial stamp and of the name of initials of 
 the judge of election on the outside of an 
 official ballot. Slaymaker v. Phillips, 5 
 Wyo. 453, 40 Pac. 971, 42 Pac. 1049, 47: 842 
 
 151. A constitutional provision fixing the 
 qualification of voters is not violated by a 
 statute making void ballots not properly in- 
 dorsed by the election officers. Id. 
 
 152. A law forbidding the counting of bal- 
 lots upon which the election officers have 
 not placed their initials cannot be sustained 
 where the Constitution provides that per- 
 sons possessing certain qualifications "shall 
 be entitled to vote at all elections." Moyer 
 v. Van de Vanter, 12 Wash. 377, 41 Pac. 
 60, 29: 670 
 
 153. The absence of the official stamp or 
 of the judge's name or initials on the ex- 
 terior of the ballot when so folded as to 
 conceal its face will cause its rejection under 
 Wyo. Sess. Laws 1890, chap. 80, 130, 
 providing that a "ballot which is not in 
 dorsed by the official stamp or has not the 
 name or initials of the judge of election 
 . . . shall be void and shall not be count 
 ed." Slaymaker v. Phillips, 5 Wyo. 453, 40 
 Pac. 971, 42 Pac 1049, 47:842 
 
 154. Ballots will not be vitiated, in the 
 absence of fraud, by the fact that the official 
 stamp required by statute to be placed on 
 them was not so placed until they were re- 
 turned by the electors to be placed in the 
 box, having gone into the possession of the 
 
 electors unstamped. Moyer v. Van de Van- 
 ter, 12 Wash. 377, 41 Pac. 60, 29: 670 
 
 155. That the initials of the poll clerks 
 are indorsed upon the lower right-hand cor- 
 ner of the back of ballots, instead of on the 
 lower left-hand corner, as prescribed by 
 statute, will not render the ballots void, 
 where they are all indorsed the same way, 
 and the error was an innocent, honest mis- 
 take of the officers. Parvin v. Wimberg, 
 130 Ind. 561, 30 N. E. 790, 15: 775 
 Irregularities. 
 
 In Stamping or Indorsing Ballot, see supra, 
 
 151-155. 
 For Editorial Notes, see infra, V. 5. 
 
 156. Using ballots sent to wrong towns 
 with the names of candidates thereon who 
 were ineligible by reason of nonresidence 
 does not necessarily make them invalid. 
 State ex rel. Phelan v. Walsh, 62 Conn. 260. 
 25 Atl. 1, 17: 364 
 
 157. Irregularities in official ballots such 
 as the printing of the names of certain can- 
 didates with those of a different party, un- 
 der a party device which belongs only to the 
 latter will not justify the rejection of the 
 votes cast for any of such candidates, where 
 ample opportunity is offered under the stat- 
 utes for correction of mistakes in the bal- 
 lots before election, but no objection was 
 made before the votes were cast. Allen v. 
 Glynn, 17 Colo. 338, 29 Pac. 670, 15: 743 
 
 158. Where a candidate for office makes 
 no timely objection to the ballot as pub- 
 lished by the county clerk before an elec- 
 tion (Mo. Rev. Stat. 1889, 4778). the for- 
 mer cannot afterwards object to the result 
 for any error of the clerk in admitting 
 names upon the official ballot not properly 
 entitled to be there. Bowers v. Smith, 111 
 Mo. 45, 20 S. W. 101,' 16: 754 
 
 159. Using a small letter for the first "c" 
 of the word "De Forrest," in the name of 
 a candidate which is otherwise printed in 
 capitals, does not violate a provision re- 
 quiring the use of type of uniform size. 
 State ex rel. Phelan v. Walsh. 62 Conn. 260. 
 25 Atl. 1, 17: 364 
 
 160. The ballots cast at a precinct will be 
 excluded from the count where all of them 
 bear in the same writing the name of a per- 
 son followed by the name of a party, and 
 there was but one person in the precinct 
 lawfully assisted in the marking of his 
 ballot as provided by Gal. Pol. Code. 1208, 
 where it does not appear who did the writ- 
 ing or whether it was upon the tickets 
 when they were put into the voters' hands, 
 under 1211, providing that any ballot 
 which is not made as provided in the act 
 shall be void and shall not be counted. 
 Tebbe v. Smith, 108 Cal. 101, 41 Pac. 454. 
 
 29: 673 
 
 1G1. The use, by mistake, of small ballots 
 printed on colored paper, furnished to local 
 officers in a separate package, instead of us- 
 ins the regular ballots printed on white pa- 
 per, will not prevent the counting of the 
 ballots cast, where the election was other- 
 wise regular and all the voters of the town- 
 ship in which the mistake was made, with- 
 out distinction of party, used the colored
 
 1104 
 
 ELECTIONS, II. b, 2. 
 
 ballots. Boyd v. Mills, 53 Kan. 594, 37 Pac. 
 16, 25: 480 
 
 162. Ballots issued by one political party, 
 and which do not contain the name of that 
 party, but contain the word "citizens," in 
 lieu thereof, do not conform to Conn. Acts 
 1889, chap. 247, 1, p. 155, prescribing what 
 ballots used at election shall contain, and 
 how they shall be printed; and such bal- 
 lots should not be counted. Talcott v. Phil- 
 brick, 59 Conn. 472, 20 Atl. 436, 10: 150 
 
 163. Ballots from which the inspectors 
 have unintentionally omitted to take slips 
 containing the numbers, as required by Neb. 
 Stat. 1891, chap. 40, 24, will not be re- 
 jected under the provision of 26, that any 
 ballot upon which appear "names, words, or 
 marks, written or printed," except as pro- 
 vided in the act. shall not be counted. 
 Buckner v. Lynip, 22 Nev. 426, 41 Pac. 762, 
 
 30: 354 
 
 2. Casting; Acts of Voter. 
 
 For Editorial Notes, see infra, V. 6. 
 
 164. The anticipation of fraud on the part 
 of the judges of an election will not justify 
 the compelling of voters to exhibit the con- 
 tents of their ballots to bystanders, al- 
 though it is done for the purpose of serving 
 as a check upon such fraud. Jones v. Glide 
 well, 53 Ark. 161, 13 S. W. 723, 7: 831 
 
 165. Deputy United States marshals havo 
 no right to mark ballots, or to see them 
 marked, or to know for whom the electors 
 are voting at a congressional election in a 
 city having a secret ballot. Ellis ex rel. 
 Reynolds v. May, 99 Mich. 538, 58 N. W. 
 483, 25: 325 
 Marking choice. 
 
 For Editorial Notes, see infra, V. 6. 
 
 166. An act requiring a voter to place a 
 mark opposite the name of each candidate 
 voted for by him does not conflict with 
 Tenn. Const, art 4, 1, as imposing the 
 requirement of education on the part of 
 the voter in addition to the constitutional 
 requirements. Cook v. State, 90 Tenn. 407, 
 16 S. W. 471. 13: 183 
 
 167. An honest attempt to follow the di- 
 rections of the law requiring a cross to be 
 made in the appropriate margin or place 
 opposite the name on the ballot must appear 
 in order to permit the ballot to be counted. 
 Parker v. Orr, 158 111. 609, 41 N. E. 1002. 
 
 30: 227 
 
 168. The rule that a voter should not be 
 disfranchised or deprived of his right to 
 vote through mere inadvertence, mistake, or 
 ignorance, if an honest intention can be 
 ascertained from his ballot, is not changed 
 by the Illinois ballot law of 1891 which ex- 
 pressly provides, in 26, that his ballot 
 shall not be counted if he "marks more 
 names than there are persons to be elected 
 to an office or if. for any reason, it is im- 
 possible to determine the voter's choice 
 for any office to be filled." Id. 
 
 169. The fact that a ballot is marked by 
 a cross in a circle at the head of each of two 
 tickets will not prevent counting the vote 
 
 1 for a candidate named on one ticket for an 
 office for which no candidate is named on 
 the other, although it prevents counting the 
 ballot for a candidate for any office for 
 which both tickets present a candidate. Id. 
 
 170. More than one cross at the head of 
 party tickets on the same ballot will annul 
 it, although one of the parties had no can- 
 didates for offices named on the ticket. Mc- 
 Mahon v. Polk, 10 S. D. 296, 73 N. W. 77, 
 
 47: 830 
 
 171. A provision of a ballot law allowing 
 names of political parties who have filed 
 certificates of nominations to be printed at 
 the head of the official ballots, and that all 
 the candidates of a party may be voted for 
 by a mark opposite its name, but that the 
 ballot shall not be counted if stamped in 
 any other place, is unconstitutional, and 
 void as discriminating against classes of vo- 
 ters by subjecting them to partial disfran- 
 chisement or to more burdensome condi- 
 tions than others in casting their votes, 
 where some of the parties might be unable 
 under the law to nominate both local and 
 state candidates, and the marking of the 
 party name in such a case would limit the 
 vote to the partial list of officers which the 
 partv had nominated. Eaton v. Brown. 96 
 Cal. 371, 31 Pac. 250, 17:697 
 
 172. The requirement that a ballot be 
 marked by a cross "in the appropriate mar- 
 gin or place opposite the name," made by the 
 Illinois ballot law, 23 (3 Starr & C. chap. 
 46, p. 570), is directory, and not mandatory, 
 and under it the voter's intention should be 
 given effect if it can be gathered from his 
 ballot without laying down a rule which 
 may lead to a destruction of its secrecy. 
 Parker v. Orr. 158 111. 609, 41 N. E. 1002, 
 
 30: 227 
 
 173. A cross made by a rubber stamp pro- 
 vided for the purpose is sufficient to mark 
 a ballot. McMahon v. Polk. 10 S. D. 296. 
 73 N. W. 77, 47: 830 
 
 174. A vote should be counted which con- 
 tains a cross opposite the name of a can- 
 didate, although it is partially obscured by 
 a heavy printed line on the paper. Id. 
 
 175. A ballot is not vitiated by the fact 
 that the cross is blurred as though by ink 
 from & rubber stamp, if the outline of a 
 perfect cross is traced or indicated by pen- 
 cil marks. Id. 
 
 176. The provision of Kan. Sess. Laws 
 1893, chap. 78, 25, that a ballot shall not 
 be counted if the voter fails to mark it as 
 required by statute, is mandatory, and pre- 
 vents the counting of a ballot not marked 
 with a cross upon the designated square or 
 space. Taylor v. Bleaklev, 55 Kan. 1. 39 
 Pac. 1045/ 28:683 
 
 177. A ballot cannot be counted at all 
 under the Indiana act of March 6, 1889, un- 
 less the squares preceding the title of the 
 ticket, or some one, at least, of the squares 
 preceding the names of candidates, are 
 touched by the stamp with which the act 
 requires the ticket to be stamped in order 
 to designate the persons voted for. Parvin 
 v. Wimberg, 130 Ind. 561, 30 N. E. 790. 
 
 15: 775
 
 ELECTIONS, II. b, 2. 
 
 1105 
 
 178. A requirement of an ordinance that 
 :a vote for or against a bond proposition 
 shall be indicated by writing, or causing to 
 be written or printed the word "Yes" or 
 "Xo" on the right-hand margin of the tick- 
 et opposite the proposition, is mandatory 
 when the ordinance is authorized by and 
 lias the force of a statute, and therefore it 
 it insufficient to mark a cross after the 
 word "Yes" or "Xo" when both these words 
 are printed opposite the proposition. Mur- 
 phy v. San Luis Obispo, 119 Cal. 624, 51 
 Pa'c. 108.5. 39: 144 
 
 179. A single name in one of the columns 
 for party tickets on an official ballot, other 
 
 columns of which have full lists "qf candi- 
 dates, is a "group" within the meaning of 
 a statute requiring the voter to cross nut 
 the groups he does not wish to vote. Hope 
 v. Flentge, 140 Mo. 390. 41 S. W. 1002. 
 
 47: 806 
 
 180. A voter is imperatively required to 
 cross out all but one of the groups of can- 
 didates upon his ballot, by Mo. llcv. Stat. 
 1889. 4781. as amended by Mo. act April 
 18, 1803, which declares that "he shall pre- 
 pare his ballot by crossing out the groups 
 he does not wish to vote." Id. 
 
 181. Leaving two columns uncrossed on an 
 official ballot, in violation of a statute 
 which requires the voter to cross out the 
 L-Toups he does not wish to vote, renders 
 i he ballot void as an entirety, and not 
 merely as to the offices for which candi- 
 dates are named in each column, although 
 there is but one name in one of the columns, 
 while in the other column there is a full 
 list of candidate. Id. 
 Stickers; pasters. 
 
 As Distinguishing Mark, see infra. 240. 241. 
 
 182. A provision for ''inserting" in the 
 blank space of an official ballot any name 
 not already on the ballot does not require 
 the name to be written, but permits the 
 use of a "sticker." De Walt v. Bart Icy. 
 146 Pa. .VJH. 24 Atl. 185. 15: 771 
 
 183. Pasting or sticking another ticket on 
 an official ballot is not a lawful mode of 
 voting, under III. act of 1891, requiring the 
 names of all candidates to be printed on 
 ne ballot, except names written thereon by 
 the voter, and requiring the voter to pre- 
 pare his ballot by marking a cross opposite 
 the name of each candidate voted for. 
 Fletcher v. Wall. 172 111. 426. 50 X. E. 230. 
 
 40: 617 
 
 184. A voter cannot paste a slip, ticket, 
 or sticker procured from outside parlies 
 over the printed matter as well as the 
 blank spaces in the right-hand column of 
 an official ballot, where the only prescribed 
 mode of voting for persons who were not 
 already named thereon i* by inserting their 
 names in blank space> prepared therefor in 
 such column. Re Little Beaver Twp. <'<m- 
 testfd Election. 165 Pa. 233, 30 All. 955. 
 
 27 : 234 
 
 185. The fact that paster ballots placed 
 on ballots for town officers contain al>o 
 the names of candidates for excise commis- 
 sioners, who cannot lawfully be voted for 
 
 L.R.A. Dig. 70. 
 
 on that ticket, will not justify the in- 
 spectors in refusing to count and declare 
 them in stating the result, where these past- 
 er ballots were a part of those printed at 
 private expense by candidates of an inde- 
 pendent meeting or caucus, all of which were 
 alike. People ex rel. Bradley v. Shaw, 133 
 N. Y. 493, 31 N. E. 512, ' 16: 606 
 
 Erasures and substitutions. 
 Erasure as Distinguishing Mark, sec infra, 
 
 234-239. 
 For Editorial Xotes, see infra. V. 6. 
 
 186. The use of n indelible pencil in 
 erasing and substituting the name of a 
 candidate on a ballot is within the spirit 
 of, and a substantial compliance with, a 
 statute which requires it to be done with "a 
 lead pencil or common writing ink" in order 
 to permit the ballot to be counted. Rut- 
 ledge v. Crawford, 91 Cal. 526, 27 Pac. 761. 
 
 13: 761 
 
 187. Red ink is common writing ink with- 
 in the meaning of such a statute. Id. 
 
 188. Erasing the name of a candidate will 
 not prevent, counting a ballot for him, un- 
 der tl.e California statute, unless another 
 is substituted, or the words "no vote" writ- 
 ten thereon after his name. Id. 
 
 189. A ticket having the names of two 
 candidates for judge and one for senator 
 arranged and numbered in consecutive or- 
 der cannot be counted for another candi- 
 date for judge whose name is written on 
 the line for and in the place of the name 
 of the senatorial candidate, which is erased. 
 
 Id. 
 
 190. Writing the name of another person 
 in pencil under the printed name of a can- 
 didate on a ballot is within the prohibition 
 of a statute against putting on a ballot 
 anything except the names of the candi- 
 dates, the office, and the party. State ex 
 rel. Phelan v. Walsh, 62 Conn.' 260, 25 Atl. 
 1, 17:364 
 
 191. A name written on an official ballot 
 in place of the printed name of a candidate, 
 which is erased, does not constitute a valid 
 note under the Louisiana statute requiring 
 "that all the names of persons voted for 
 shall be printed on one ticket or ballot." 
 Sta'e ex rel. Mi/.e v. McElroy, 44 La. Ann. 
 796, 11 So. 133, 16: 278 
 Voting machine. 
 
 192. A law authorizing a given city to use 
 a voting machine by which a ballot contain- 
 ing the names of the candidates is punc- 
 tured, and a record of the choice of the vo- 
 ters ; s secured, is authorized by R. I. Const, 
 art. 8, 2. providing that the voting for 
 ifeiu-ral officers shall be by "ballot," and that 
 in aU cases where an election is made by 
 "ballot or paper vote" the manner of bal- 
 loting shall be the same as now required 
 in voting for general officers, until "other- 
 wise proscribed by law." Re Opinion of the 
 Jus; ices. 19 R. I. 729, 3<i Atl. 716, 36: 547 
 
 193. A statute permitting the use of a 
 voting machine \\liicli assures secrecy, free 
 choice of candidates, a correct record of the 
 vote, and a correct record and announcement 
 of the total vote given for each candidate, 
 does not contravene a constitutional require-
 
 1106 
 
 ELECTIONS, II. b 3. 
 
 ment that all votes at elections shall be giv- 
 en by ballot. People ex rel. Detroit v. 
 Board of Inspectors, 139 Mich. 548, 102 N. 
 W. 1029, 69: 184 
 
 194. Constitutional requirements of a 
 written vote, and provisions for sorting and 
 counting, will not preclude the use of a 
 voting machine by which the result is ef- 
 fected by a system of wheels, cogs, and in- 
 dexes in connection with written or printed 
 names of the candidates, at least if the 
 action of the machine in registering each 
 vote cast is visible to the voter casting it, 
 and the work of the machine in adding the 
 votes is done under the supervision of some- 
 one duly charged with counting the votes 
 cast. Re House Bill No. 1,291, 178 Mass. 
 605, 60 N. E. 129, 54: 430 
 Assisting voter. 
 
 See also supra, 165. 
 
 195. Under an election law which provides 
 that the voter must, on his way to the poll- 
 ing place, pass along through a booth in 
 which the printed tickets are directed to be 
 deposited, and where he must prepare his 
 vote, blind persons, those who cannot read, 
 and cripples who cannot walk, are entitled 
 to receive assistance in the preparation of 
 their tickets, which may be prepared out- 
 side the polling place, where the law con- 
 tains no express prohibition against such 
 assistance. Detroit v. Rush, 82 Mich. 532, 
 46 N. W. 951, 10: 171 
 
 196. It is not an unreasonable restriction 
 of the right to vote to require an oath that 
 a voter is unable to read English before 
 allowing another to mark his ballot on the 
 ground of such inability. Ellis ex rel. Rey- 
 nolds v. May, 99 Mich' 538, 58 N. W. 483. 
 
 25: 325 
 
 197. A statute requiring voters to be 
 sworn as to their inability to read English 
 before allowing a person to mark their 
 ballots for them is mandatory, and not 
 merely directory in respect to the oath. Id. 
 
 198. Aid to a voter in casting his ballot, 
 given by the judges of election without 
 requiring a preliminary oath from him as 
 the statute requires, does not make his 
 vote invalid in the absence of any fraud on 
 his part. at least, if the voter was one 
 who was entitled to such assistance on mak- 
 ing the oath. Hope v. Flentge, 140 Mo. 
 390, 41 S. W. 1002, . 47: 806 
 
 199. The fact that election judges went 
 into the booths with electors in violation of 
 the statute will not render the ballots void 
 if there was no design to. influence the elec 
 tors unduly, unless they were in fact im- 
 posed upon or some advantage taken of 
 them. Id. 
 
 3. Distinguishing M rks. 
 a. In general. 
 
 For Editorial Notes, see infra. V. 6. 
 
 200. An objection that a clause which pro- 
 vides that if any ballot shall have thereon 
 a mark, sign, signature, or device other than 
 permitted by the statute it shall be void, 
 is unconstitutional because the voter mav 
 
 lose his vote by the fraud or neglect of 
 those preparing the ballots, is not sound.. 
 The most stringent directions are given re- 
 specting the preparation of the official bal- 
 lots and the law presumes that they will be 
 obeyed. State, Ransom, Prosecutor, v. 
 Black (N. J. Sup.) 54 N. J. L. 446, 24 Atl. 
 489, 16: 769 
 
 201. Anything written or printed on the 
 outside of a ballot to make the voting of 
 it possible or practicable, and not placed 
 there for the purpose of making it known 
 for whom the elector votes, and not neces- 
 sarily or commonly used for such purpose, 
 is not an unconstitutional violation of the 
 secrecy of the ballot or a violation of a, 
 statiite making it an offens'e to put any 
 mark or device on the back of a ballot. 
 State ex rel. Briesen v. Barden, 77 Wis. 
 601. 46 N. W. 899, 10: 155 
 
 202. To print the word "judiciary" on the 
 backs of judicial ballots of one candidate 
 will not prevent; their being counted, where 
 some such word is necessary to render the 
 voting of the ballots practicable, although 
 the word is not on the ballots of the other 
 candidates and the secrecy of the ballot is 
 consequently in a measure destroyed. Id. 
 
 203. Printing the word "judiciary" on the 
 backs of judicial ballots is reasonable and 
 proper for the purpose of rendering the 
 voting of them practicable, where judicial 
 officers are required to be chosen at an elec- 
 tion at which other officers are also chosen, 
 and the ballots of the judicial officers are- 
 required to be put into a separate box by 
 themselves. Id. 
 
 204. Official ballots will not be excluded 
 from the count under a statute making void 
 all ballots having any distinguishing mark, 
 because they have upon them an unauthor- 
 ized vignette, where it appears on all the 
 ballots cast in the county, and they were 
 certified by the proper officers, and there is 
 nothing to show fraud or wrongdoing on 
 the part of either candidate or voters. 
 Lindstrom v. Manistee County Canvassers, 
 94 Miih. 467, 54 N. W. 280, * 19: 171 
 
 205. The inscription "Ok" upon the back 
 of ballots is a device which makes them 
 void under N. C. Code, 2687, which re- 
 quires ballots to "be without device." State, 
 ex rel. Baxter v. Ellis, 111 N. C. 124, 15 S. 
 E. 5)38, . 17: 382 
 
 20G. General ballots for a state election 
 printed without the name of any candidate 
 for u certain local office, some of which are 
 used by filling in the name of the candidate 
 witli a typewriter, or with pencil or ink, and 
 some used without the name of any candi- 
 date for that office, are not invalid as be- 
 ing distinguished by a mark or device; but 
 suc-a a ballot with the lower part cut or 
 torn off below the name of the local office 
 is invalid. State ex rel. Phelan v. Walsh, 
 62 Conn. 260, 25 At). 1, 17:364 
 
 207. The presumption is that an "offset," 
 or fainf impression of printing, on the back 
 of a ballot, or a grease stain or small piece- 
 of scaling wax thereon, was the result of 
 accident. Rutledire v. Crawford. 91 CaL 
 52G. 27 Pac. 761, " 13: 761
 
 ELECTIONS, II. b, 3. 
 
 1107 
 
 208. A small piece of scaling wax or a 
 small grease stain on the back of a bal- 
 lot will not prevent counting it, unless it 
 is shown not to be accidental. Id. 
 Erroneous official indorsement. 
 
 ' See ol^o supra, 150-155. 
 
 For Editorial Notes, see infra, V. 6. 
 
 209. Statutory permission to use unofficial 
 ballots in the absence of the official ones re- 
 quired by law to be prepared and furnished 
 at public expense for the use of voters at 
 public elections, and to contain a certain 
 official indorsement, will not justify the 
 counting, as unofficial, of ballots purporting 
 to be official, but which are defective be- 
 cause bearing the wrong indorsement. Peo- 
 ple ex rel. Nichols v. Onondaga County Can- 
 vas*ere. 129 N. Y. 395, 29 N. E. 327, 14: 624 
 
 210. Where all the ballots of one politi- 
 cal party cast at a particular polling place 
 bear a wrong indorsement by which they 
 mav be distinguished from other ballots 
 cast at the same place, in contravention of 
 the provisions of an act providing for the 
 secrecy of the ballot, a count of them will 
 not be justified by the facts that the in- 
 dorsement was wrong because of a mistake 
 of the county clerk in distributing ballots 
 to the polling places, that they have been 
 cast by the voters and received by the in- 
 spector? in good faith, and that their rejec- 
 tion will result in disfranchising many vot- 
 ers and altering an honest expression of 
 the popular will. Id. 
 
 211. Ballots which are distributed to and 
 cast at a polling place different from the one 
 fo" which they were indorsed cannot be 
 counted under a law to enforce secrecy of 
 the ballot and provide for the printing and 
 distribution of ballots at public expense, 
 which requires each ballot to be indorsed as 
 an official ballot for the polling place at 
 which it is to be used, and prohibits the 
 counting of ballots which have not the 
 printed official indorsement, when the wrong 
 indorsement appears upon the tickets of one 
 party only, thereby rendering them easily 
 distinguishable from all the other ballots. 
 
 Id. 
 
 Printer's marks. 
 See also supra. 207. 
 For Editorial Notes, see infra, V. 6. 
 
 212. Marks on ballots which were acci- 
 dentally caused in printing will not make 
 them invalid. State ex rel. Phelan v. 
 Walsh, 62 Conn. 260., 25 Atl. 1. 17: 364 
 
 213. A ballot having on its back "offset," 
 or fnint impression of the' printing on a 
 similar ticket, will not be rejected un- 
 der Cal. Pol. Code. 1206. as hearing any de- 
 vice, etc. designed to distinguish it, without 
 proof that the impression was the result 
 of design. Rutledge v. Crawford. 91 Cal. 
 526, 27 Pac. 761, 13: 761 
 
 6. Voter's Marks. 
 
 For Editorial Notes, see infra, V. 6. 
 
 214. A mark on a ballot for which a 
 plausible reason may be suggested consist- 
 ent with honesty and good faith will rarely 
 
 invalidate the ballot, unless it appears that 
 it was in fact used for corrupt purposes; 
 but it is otherwise as to a mark for which 
 no such reason can be suggested. State ex 
 rel. Phelan v. Walsh, 62 Conn. 260, 25 Atl.. 
 1, 17:364 
 
 215. The use of a mark or character which 
 furnishes the means to designing persons of 
 avoiding the law as to secrecy will require- 
 the rejection of a ballot under the Illinois- 
 ballot law, though it contains no prohibition 
 of distinguishing marks, even if the mark or 
 character used indicates an intention to- 
 vote a particular party ticket or for certain 
 candidates. Parker v. Orr, 158 111. 609, 41 
 N. E. 1002, 30: 227 
 
 216. A ballot which has been marked for 
 tlie purpose of distinguishing the same, con- 
 trary to the provisions of the statute mak- 
 ing such marking a criminal act, cannot be 
 counted, although the 1 statute does not in 
 terms forbid it, and even though the stat- 
 ute elsewhere specifically enumerates classes 
 of ballots which shall not be counted, with- 
 out including those with distinguishing 
 marks. Parker v. Hughes, 64 Kan. 216, 65 
 Pac. 265, 56:275 
 
 217. The provisions of the Indiana stat- 
 utes that a ballot bearing a distinguishing 
 mark or mutilation shall be void, and also 
 that a stamp elsewhere than on a square 
 prescribed by statute shall be treated as a 
 distinguishing mark, are mandatory, and not 
 merely directory, so that a corrupt intent 
 in making such prohibited marking is riot 
 necessary to defeat the vote. Sego v. Stod- 
 dard, 136 Ind. 297, 36 N. E. 204, 22: 468 
 
 218. A ballot marked simply by writing 
 the word "Democratic" at the head of the 
 Democratic ticket, or one marked by a sin- 
 gle mark across or through the circle or 
 square, or marked with a circle or irregu- 
 lar character within the circle or square, or 
 marked with crosses opposite the names of 
 candidates, but entirely outside of the 
 squares: as well as a ballot signed by the 
 name of the voter, must be rejected aa 
 disregarding the plain directions of the law- 
 requiring the ballot to be marked by * 
 cross in the appropriate margin or place- 
 opposite the name, and as furnishing the 
 means whereby the secrecy of the ballot 
 couid be destroyed. Parker v. Orr, 158 I1L 
 609, 41 N. K. if)02. 30: 227 
 
 210. A blurred spot plainly made on a 
 ballot, which might have been made for 
 identification, or a cross not opposite the 
 name of any candidate, or a number of 
 crosses in a bunch, or a mark which is not 
 a cross, or the use of a blue lead pencil, 
 is ground for rejecting the ballot under the- 
 \i-vada ballot law, 20, 26, providing that 
 the ballot shall be marked with a cross aft- 
 er the names of the persons for whom the 
 elector votes, in black pencil, and that any 
 mark* except as provided in the act shall 
 invalidate the ballot. Dennis v. Caughlin, 
 22 Nov. 447, 41 Pac. 768, 29: 731 
 
 220. An initial in a space left in a ballot 
 for the insertion of the name of a candidate, 
 although made with the intention of writ- 
 ing a name which was abandoned, is a dis-
 
 1108 
 
 ELECTIONS, II. b, 3. 
 
 tinguishing mark making the ballot void. 
 Tebbe v. Smith, 108 Cal. 101, 41 Pac. 454, 
 
 29: 673 
 
 221. Ballots folded or creased precisely 
 alike and in a strikingly unusual manner, 
 so that the crease produces an enduring and 
 permanent mark by which the ballot can 
 readily be distinguished when unfolded, 
 must be rejected where marks or devices to 
 identify a ballot in any manner are prohib- 
 ited by statute. State ex rel. Phelan v. 
 Walsh, 62 Conn. 260., 25 Atl. 1, 17: 364 
 
 222. A printed political circular found in 
 the envelope with each of nineteen ballots 
 raises so strong a presumption of design 
 as to be regarded as a device to identify 
 the ballots. Id. 
 Mark in wrong place. 
 
 See also supra, 217-219. 
 
 For Editorial Notes, see infra, V. 6. 
 
 223. A stamp at or on a square opposite 
 a blank space left for the name of a can- 
 didate is a distinguishing mark under the 
 Indiana statute which prohibits any stamp 
 excepting in the square inclosing the device 
 or in the square opposite the name of a 
 candidate. Sego v. Stoddard, 136 Ind. 297, 
 36 N. E. 204, 22: 468 
 
 224. Imperfect success in marking a cross 
 in the proper place to indicate a choice of 
 candidates, where there was a clear inten- 
 tion to conform to the statute, and not to 
 distinguish the ballot, will not require its 
 rejection. Parker v. Orr, 158 111. 009, 41 
 N. E. 1002, 30: 227 
 
 225. A cross in the marginal space at the 
 right of the name of a candidate and out- 
 side of the square is not a distinguishing 
 mark within Cal. Pol. Code, 1215, as the 
 Code does not expressly require the mark 
 to be placed within such square, although 
 it requires the clerk in printing the ticket 
 to place upon it the words. "To vote for a 
 person, stamp a cross (X) in the square at 
 the right of the name." Tebbe v. Smith, 
 108 Cal. 101, 41 Pac. 454, 29: 673 
 
 220. That the lines forming the cross ex- 
 tend slightly boyond the line of the circle 
 will not vitiate the ballot. McMahon v. 
 Polk. 10 S. D. 296, 73 X. W. 77, 47: 830 
 Mark with wrong implement. 
 See also supra, 219. 
 For Editorial Notes, see infra. V. 6. 
 
 227. The provision for marking ballots 
 with ink, in the Nebraska act of March 4, 
 1891. 20, known as the Australian ballot 
 law. is directory only: and ballots marked 
 with a pencil will be counted in the absence 
 of fraud, if regular in other respects. State. 
 ex rel. Waggoner v. Russell. 34 Neb. 116, 
 51 N. W. 465. 15: 740 
 Suoerfluous marks. 
 
 See s.lso supra. 218-220. 
 
 For Editorial Notes, see infra. V. 6. 
 
 228. A ballot is not void as bearing dis- 
 tinguishing marks, whore a name appears 
 thereon more than once as a candidate for 
 Ihe same office, upon two or more tickets, 
 and such name is marked with a cross 
 mark in the squares opposite- the same two 
 or more times, the excess of marks being 
 mere surplusage, and not distinguishing 
 
 marks. Parker v. Hughes, 64 Kan. 216, 65 
 Pac. 265, 56: 275 
 
 229. Adding his party designation, i. e., 
 "Independent Democrat," to the name of a 
 candidate written upon a ballot in the same 
 way that party designations follow the 
 names of candidates in the printed list 
 as required by Cal. Pol. Code, 1191, does 
 not destroy the legality of the ballot when 
 it was manifestly not intended as a dis- 
 tinguishing mark. Jennings v. Brown, 114 
 Cal. 307, 46 Pac. 77, 34: 45 
 
 230. A ticket, is not vitiated by the fact 
 that, besides the cross within the circle, 
 another appears just outside the circle, as 
 though made by inadvertently placing the 
 stamp upon the paper. McMahon v. Polk, 
 10 S. D. 296, 73 N. W. 77, 47: 830 
 Imperfect marks. 
 
 See also supra, 219. 
 
 For Editorial Notes, see infra, V. 6. 
 
 231. A mark on a ballot, which bears no 
 resemblance to a cross, without any attempt 
 to make u cross of any kind on the ballot, 
 will not permit it to be counted. Parker v. 
 Orr. 158 "ill. 609, 41 N. E. 1002, 30:227 
 
 232. A mark made with ink and somewhat 
 blurred, even if it cannot be said to be a 
 cross strictly speaking, if it shows an at- 
 tempt to make a cross, may be sufficient 
 to allow the ballot to be counted. Id. 
 
 233. A word which is read by one party 
 as "get" and by the other as "yes," oppo- 
 site a proposed constitutional amendment, is 
 not regarded as such a distinguishing mark 
 as to prevent counting the ballot for a can- 
 didate named on the same ballot. Id. 
 Erasures. 
 
 For Editorial Notes, see infra, V. 6. 
 
 234. Erasing in ink a superfluous letter in 
 a misspelled name of a candidate does not 
 make the ballot invalid, if there was no 
 ground for supposing that it was designed 
 for the purpose of identification. State ex 
 rel. Phelan v. Walsh, 62 Conn. 260, 25 Atl. 
 1, 17: 364 
 
 235. A hole in a ballot made in scratching 
 out a stamp mark constitutes a distinguish- 
 ing mark or mutilation within the prohibi- 
 tion of the Indiana statutes, although the 
 ballot is otherwise properly stamped. Sego 
 v. Stoddard. 136 Ind. 297. 36 N. E. 204, 
 
 22: 468 
 
 230. A lead pencil mark across the name 
 of a candidate is a distinguishing mark 
 which makes the ballot invalid under the 
 Indiana statute which prohibits any distin- 
 guishing mark or mutilation. Id. 
 
 237. The erasure of names of candidates 
 by pencil marks drawn through them does 
 not constitute a distinguishing mark which 
 requires a rejection of the ballot as to 
 other candidates. Parker v. Orr, 158 111. 609, 
 41 N. E. 1002. 30: 227 
 
 238. A mark opposite the name of a can- 
 didate, and the erasure of his rival's name, 
 in addition to the mark in the circle, will 
 not vitiate the ballot, where there is noth- 
 ing to show a design to thus mark the 
 ticket for the purpose of invading the se- 
 crecy of the ballot. McMahon v. Polk. 10 
 S. l). -206, 73 N. W. 77, 47:830
 
 ELECTIONS, II. c. 
 
 1109 
 
 239. A slightly blurred spot or erasure on 
 a ballot, made to correct a mistake, and not 
 indicating an intention to identify the bal- 
 lot, or a slight pencil mark made by mis- 
 take, or a tobacco stain, will not avoid 
 the ballot under the Nevada ballot law, 
 26, providing that any ballot on which ap- 
 pear marks written or printed, except as 
 provided, shall not be counted. Dennis v. 
 Caughlin. 22 Nev. 447, 41 Pac. 768, 29: 731 
 Pasters or stickers. 
 
 240. Fourteen ballots having pasters 
 written in ink in the .same handwriting, but 
 with a different name on each paster, may 
 properly be rejected in the absence of any 
 satisfactory explanation to show that this 
 Was not a device for identifying \he voters. 
 State ex rel. Phelan v. Walsh, 62 Conn. 260, 
 25 Atl. 1, 17: 364 
 
 241. Three ballots, each of which had over 
 ili<> name of a candidate two pasters with 
 the names of different persons, of whom 
 one was a candidate in another district, 
 will be rejected in the absence of anything 
 to explain why the three should all be 
 treated in precisely the same very unusual 
 way. Id. 
 
 c. Result; Canvassing. 
 For Editorial Notes, see infra, V. 7. 
 Judk-ial Notice of Votes Cast, see Evidence. 
 39-41. 
 
 242. The iueligibility of a person who re- 
 ceived the majority of the votes cast for an 
 office does not entitle the minority candi- 
 date to the office, at least when those 
 who voted for the former did not know of 
 his ineligibility. State ex rel. Goodell v. 
 McGeary, 69 Vt. 461, 38 Atl. 165, 44: 446 
 Tie; majority; two thirds vote. 
 
 Two Thirds Vote as to Issuance of Mu- 
 nicipal Bonds, see Bonds, 123, 124. 
 
 To Adoption of Constitutional Amendment, 
 see Constitutional Law, 16-20. 
 
 On Change of County Boundary, see Coun- 
 ties, 9. 
 
 Vote for Annexation to City, see Municipal 
 Corporations, 28. 
 
 Majority Vote on Amendment of Charter, 
 see Municipal Corporations, 46. 
 
 Majority Vote for Creation of City Debt, 
 see Municipal Corporations, 326, 329, 
 331. 
 
 Two-Thirds Vote of Church Society, see 
 Religious Societies, 7-10. 
 
 Compelling Determination of Tie Vote, see 
 Mandamus. 135. 
 
 Estoppel to Obtain Mandamus to "Compel 
 Decision of Tie Vote, see Estoppel, 143. 
 
 Necessity of Alleging that Claimant Re- 
 ceived Majority of Votes, see Quo 
 Warranto, 34. 
 
 Seating Candidate Not Receiving Majority, 
 see Quo Warranto, 21. 
 
 See also infra, 334. 
 
 For Editorial Notes, seo infra, V. 7. 
 
 243. A statute providing that a tie vote 
 may be determined by lot does not violate 
 a constitutional provision that all elections 
 shall be by ballot. Johnston v. State ex 
 rel. Sefton, 128 Ind. 16, 27 N. E. 422, 
 
 12:235 
 
 244. The power to decide between candi- 
 dates for justice of the peace who have an 
 equal number of votes, which Mo. Rev. 
 Stat. 1889, S 6099, attempts to give to 
 county courts, is denied by the Missouri 
 Constitution, which provides for the elec- 
 tion of justices of the peace, without mak- 
 ing any provision, or authorizing the gen- 
 eral assembly to make any provision, for 
 deciding in case of a tie. while it does make 
 such provision in respect to other officers. 
 .State ex rel. Crow v. Kramer, 150 Mo. 89, 51 
 S. W. 716, 47: 551 
 
 245. "A vote of the people" required by 
 Neb. Comp. Stat, 1895, chap. 13a, art. 1, 
 67, subd. 21, for the issue of bonds by a 
 city, means a majority of the voters of 
 the city. Bryan v. Stephenson, 50 Neb. 
 620, 70 N. W. 252, 35: 752 
 
 246. A majority of the property taxpay- 
 ers actually present and voting at an elec- 
 tion, and not necessarily a majority of all 
 who are entitled to vote, is required by La. 
 Const, art. 242, in order to authorize spe- 
 cial taxes in aid of public improvements. 
 Citizens & T. v. Williams, 49 La. Ann. 422, 
 21 So. 647, 37:761 
 
 247. A majority of the votes cast at an 
 election, and not merely of the votes cast 
 for or against the proposition to issue bonds 
 of a city, is required to authorize their 
 issue under Neb. Comp. Stat. 1895, chap. 
 13a, art. 1, 67, subd. 21, providing for 
 their issue when "authorized by vote of the 
 people." Bryan v. Stephenson, 50 Neb. 
 620, 70 N. W. 252, 35: 752 
 
 248. A constitutional requirement of a 
 majority of the electors voting at a gen- 
 eral election on the question of the reor- 
 ganization of a municipality is not satis- 
 tied by a majority of those who vote on 
 that question, if they are less than a ma- 
 jority, of all who vote at the election. Peo- 
 ple ex rel. Wells v. Berkeley, 102 Cal. 298, 
 36 Pac. 591, 23: 838 
 
 249. Those who do not vote at an elec- 
 tion at which a subject-matter is to be de- 
 termined by a majority or larger percentage 
 of the voters are considered as acquiescing 
 in the result as determined by the votes 
 actually cast, even if only a minority of 
 those entitled to vote really vote. Mont- 
 gomery County Fiscal Ct. v. Trimble, 104 
 Ky. 629, 47 S. W. 773, 42: 738 
 
 250. All qualified property taxpayers who 
 absent themselves from an election duly 
 called are presumed to consent to the ex- 
 pressed will of the majority of those vot- 
 ing, unless the law providing for the elec- 
 tion otherwise declares. Citizens & T. v. 
 Williams, 49 La. Ann. 422, 21 So. 647, 
 
 37 : 761 
 
 251. In determining whether any candi- 
 date for a certain state office received a 
 majority of the votes cast, where this is 
 necessary to an election, ballots for the 
 ^encral state officers rejected without stat- 
 ing specifically in a certificate the reasons 
 therefor as required by statute will be 
 counted in making up the whole number of 
 votes cast, although it does not appear 
 whether thev contained the name of anv
 
 1110 
 
 ELECTIONS, II. c. 
 
 candidate for the particular office in ques- 
 tion. State ex rel. Phelan v. Walsh, 62 
 Conn. 260, 25 Atl. 1, 17:364 
 
 252. Two thirds of the votes cast on the 
 proposition are sufficient, by the express 
 terms of Neb. Laws 1897, chap. 24, respect- 
 ing an election for a county exhibit at an 
 interstate exposition, although the general 
 provision of Neb. Comp. Stat. chap. 18, art. 
 1, 27-30, is construed to require two 
 thirds of the votes cast at an election held 
 under those statutes. State ex rel. Douglas 
 County v. Cornell, 53 Neb. 556, 74 N. W. 
 59, 39:513 
 
 253. Two thirds of those voting for the 
 proposition, although they are less than 
 two thirds of those voting at the general 
 election at which the proposition is sub- 
 mitted, are sufficient, under Ky. Const. 
 157, providing that for the creation of 
 county indebtedness exceeding the income 
 and* revenue provided for the year, "two 
 thirds of the voters thereof voting at an 
 election to be held for that purpose" shall 
 be required. Montgomery County Fiscal 
 Ct, v. Trimble, 104 Ky. 629. 47 S. W. 773, 
 
 42: 738 
 
 254. The "votes polled." contemplated by 
 Dak. Comp. Laws. 565, requiring in order 
 to effect a change of the county seat that 
 some place shall have "two thirds of the 
 votes polled." mean the votes polled on the 
 proposition to relocate the county seat, and 
 not the votes polled for the officer who re- 
 ceived the highest number of votes cast at 
 the same election as that at which the prop- 
 osition was voted on. State ex rel. Little v. 
 Langlie, 5 N. D. 594. 67 N. W. 958. 
 
 32: 723 
 Canvassing. 
 
 Majority Vote, see supra, 251. 
 Decision of Tie Vote by Lot as Canvass, see 
 
 infra, 334. 
 Separate Canvass for Presidential Electors, 
 
 see Presidential Electors, 4 
 On Local Option Election, see Intoxicating 
 
 Liquors. 61. 
 .Mandamus to Control Canvassing Board, 
 
 see Mandamus, 123-132. 
 Removal from Office for Neglect as to, see 
 
 Officers, 129, 130. 
 For Editorial Notes, see infra, V. 7. 
 
 255. Ballots found in the wrong ballot 
 box such as local in the box provided for 
 state officers will not be rejected merely 
 for that reason. Parvin v. Wimberg, 130 
 1ml. 561, 30 N. E. 790, 15: 775 
 
 256. The mere fact that oaths of inspec- 
 tors and poll lists may have been trans- 
 mitted to an officer not authorized to re- 
 veive them is an irregularity which does not 
 -affect the result of an election or the legal- 
 ity of the canvass of returns, duly made, of 
 votes cast at the election. Stockton v. Pow- 
 vll. 29 Fla. 1. 10 So. 088. 15: 42 
 
 257. That a canvassing board has before 
 it. when making a canvass of votes cast at 
 -an election, not only the returns properly 
 7nade under the statute, but also a duplicate 
 return made to an officer, which the law 
 <lid not require to be made, is immaterial. 
 
 hi. 
 
 258. A statute requiring the canvass of 
 an election as to the issue of bonds to be 
 made by the board of county canvassers 
 at "their next regular or special meeting" 
 does not make a canvass held at an ad- 
 journed regular meeting on a later day, il- 
 legal. Id. 
 
 259. A provision in a section of an elec- 
 tion law which provides for the canvass- 
 ing of the votes, requiring the rejection only 
 of surplus and duplicate votes, is not in 
 conflict with a prior section making void 
 ballots not properly indorsed, so as to nul- 
 lify the prior section, and require such bal- 
 lots to be counted. Slaymaker v. Phillips, 
 5 Wyo. 453, 40 Pac. 971, 42 Pac. 1049. 
 
 47 : 842 
 
 260. Unidentified illegal votes should be 
 taken away from the total vote propor- 
 tionately according to the entire vote re- 
 turned for each candidate. Ellis ex rel. 
 Reynolds v. May, 99 Mich. 538, 58 N. W. 
 483, 25: 325 
 
 261. The powor of the state canvassing 
 board is confined solely to ascertaining the 
 result of the figures in the returns, and its 
 duty is to declare such result according to 
 law. It cannot inquire into the eligibility 
 of candidates, or declare a minority candi- 
 date elected because of his competitor's 
 ineligibility; nor can it consider or act xipon 
 any extraneous papers or information be- 
 yond that contained in the returns them- 
 selves. People ex rel. Sherwood v. State 
 Bd. of Canvassers; 129 N. Y. 360, 29 N. E. 
 345, 14: 646 
 
 262. The speaker of the house of rep- 
 resentatives in Nebraska is charged with 
 the duty of opening and publishing elec- 
 tion returns before proceeding to any other 
 business, immediately upon the organiza- 
 tion of the house; and he has no discre- 
 tion in the matter. State ex rel. Benton v. 
 Elder, 31 Neb. 169, 47 N. W. 710, 10: 796 
 
 263. A vote or resolution of the joint 
 convention of the two houses of the legis- 
 lature in Nebraska, directing the speaker 
 of the house of representatives not to op^n 
 and publish election returns until after the 
 determination of a pending contest, and a 
 vote or resolution of said joint convention 
 referring said returns to the consideration 
 of a committee, do not relieve the speaker 
 of his duty to open and publish the re- 
 turns before proceeding to any other busi- 
 ness. T-l. 
 Return or certificate of canvassers. 
 Injunction against Certifying Result of 
 
 Vote, see Injunction, 251. 
 
 Mandamus to Compel Correction of, see 
 Mandamus, 129. 
 
 Mandamus to Compel Disregard of, see Man- 
 damus, 127, 128. 
 
 264. No return is necessary of the dupli- 
 cate votes which are found in one envelope 
 in case one of them is counted, under stat- 
 utes providing that in case of double bal- 
 lots if all are for the same candidate one 
 shall be counted, but that if they are for 
 different candidates neither shall be counted, 
 and requiring a special retuVn of rejected
 
 ELECTIONS, II. d 
 
 1111 
 
 ballots. State ex rel. Phelan v. Walsh, 62 
 C'onn. 260, 25 Atl. 1, 17:304 
 
 265. That ballots rejected for being double 
 were for different candidates for the same 
 office must be specifically stated in the cer- 
 tificate setting out the cause of rejection, 
 where the statutes require causes of rejec- 
 tion to be specifically stated, and direct that, 
 in case of double ballots one of them shall 
 be counted if all are for the same candi- 
 date, and that neither shall be counted if 
 t hey are for different candidates. Merely 
 Certifying that the ballots were double is 
 not sufficient. Id. 
 
 2C6. Illegal acts of a board of county can- 
 vassers in counting and rejecting votes will 
 not justify a refusal by the counfcv. clerk to 
 .crtify its returns, where he is made by 
 statute simply ex officio secretary of the 
 hoard, and charged with the duty of attest- 
 ing its action. People ex rel. Daley v. Rice, 
 129 X. Y. 449, 29 N. E. 355, 14: 643 
 
 267. A county canvassing board is not de- 
 prived of its power to make, certify, and re- 
 turn its canvass by the absence or refusal to 
 act of the county clerk, who is by statute 
 made ex officio secretary of the board, and 
 
 -charged with the duty of attesting its action 
 and transmitting copies of its statements to 
 members of the state board; but in case of 
 
 tuch absence or refusal the board may desig- 
 nate one of its own members secretary pro 
 tcmpore, and he may lawfully certify and 
 transmit statements, upon which the state 
 board may legally act. Id. 
 
 .Recount. 
 
 Mandamus to Compel, see Mandamus, 125- 
 130. 
 
 268. A recount of the ballots of a pre- 
 cinct will not be ordered because of rejected 
 ballots, if there is no way of identifying 
 what ballots, if any, were rejected. Hope 
 v. Flentge, 140 Mo. 390, 41 S. W. 1002. 
 
 47: 806 
 
 269. After a board of state canvassers has 
 canvassed all the returns from all the coun- 
 ties of the state, and declared the result, 
 and ordered certificates as prescribed by 
 statute, and then, having completed its 
 labors, adjourned without day, it is of- 
 ficially dead, and the courts have no power 
 to compel it to reassemble or recount any 
 of the returns. Rosenthal v. State Bd. of 
 Canvassers, 50 Kan. 129, 32 Pac. 129, 19: 157 
 Declaration of result; certificate of election. 
 Injunction against Delivering Certificate, see 
 
 Courts, 283. 
 
 Mandamus to Compel Issuance of. see- Man- 
 damus, 131, 132, 140. 
 
 270. The official announcement of the re- 
 sult of an election by the proper canvassing 
 board is of binding force as to the fact of an 
 actual election, until reversed or set aside 
 by a court of competent jurisdiction. State 
 ex rel. Lamar v. Johnson. 35 Fla. 2, 16 So. 
 786, 31 : 357 
 
 271. If the determination that a certain 
 person is elected, and the preparation of a 
 certificate to be delivered to him. exhaust 
 the power of the governor, under a statute 
 devolving' upon him the duty of issuing a 
 -certificate of election. a subsequent 
 
 certificate by the governor to a third person 
 does not impair the right of the person first 
 found to be elected, or give him sufficient 
 reason to seek the aid of a court of equity 
 to protect his claim. Bates v. Taylor, 87 
 Tenn. 319, 11 S. W. 266, 3: 31G 
 
 272. Whether the duty of issuing a com- 
 mission or certificate of election to each per- 
 son elected representative to Congress from 
 the state of Tennessee devolved upon the 
 governor of that state by Tenn. Code (Mill. 
 & V.) 1094, 1146, is called ministerial or 
 executive, the performance thereof is an of- 
 ficial action which can be neither coerced nor 
 restrained by the courts. Id. 
 
 273. It is the province of the governor to 
 construe for himself a statute devolving 
 upon him the duty of issuing a commission 
 or certificate .of election, and to determine 
 his course of action thereunder; and so 
 long as he acts with an honest purpose of 
 discharging his duty under the law, his ac- 
 tion cannot be characterized as unlawful. 
 In such case the courts cannot substitute 
 their judgment for his; and, even after he 
 and the secretary of state, who by law 
 constitute a board to canvass the returns, 
 have ascertained that a certain person i 
 elected, and a certificate has been prepared 
 ready for delivery to him. the courts cannot 
 prevent the governor from changing his de- 
 cision and issuing a certificate to another. 
 
 Id. 
 
 d. Election Frauds; Crimes. 
 
 Regulation's to Prevent, see supra, 73. 
 Criminal Registration, see supra, 52. 
 As Ground for Contest, see infra, 331-333. 
 Pleading under Corrupt Practice Act, see 
 
 infra, 337. 
 Alleging Frauds in Election Contest, see 
 
 infra, 345. 
 
 Betting on Election, see Betting, 1. 
 Indictment for Vote Selling, see Indictment, 
 
 etc., 66. 
 Removal from Office for, see Officers, 134, 
 
 135. 
 Penalty for Purchase of Vote, see Penalties, 
 
 5. 
 Special Proceeding under Cormpt Practice 
 
 Act, see Quo Warranto, 2. 
 Vote Buyer's Right to Reward, see Re- 
 ward, 14. 
 
 Repeal of Statute as to. see Statutes, 563. 
 Title of Statute as to, see Statutes, 229. 
 See also Officers, 9. 
 For Editorial Notes, see infra, V. 3. 
 
 274. Vote-selling or bribery at elections is 
 within a constitutional provision authoriz- 
 ing disfranchisement for an "infamous 
 crime." Baum v. State. 157 Ind. 282, 61 N. 
 E. 672. 55: 250 
 
 275. A statute making it an indictable of- 
 fense to vote without presenting to the 
 judges of election an original poll-tax re- 
 ceipt, or a certified duplicate copy thereof, 
 or a certificate of a constable or deputy col- 
 lector or else an affidavit of the voter that, 
 he has paid his poll tax and that his receipt 
 is lost or misplaced, is within the power of 
 the legislature, even as applied to a voter
 
 1112 
 
 ELECTIONS, III. 
 
 who has actually paid his poll tax, where 
 the Constitution requires "satisfactory evi- 
 dence" of such payment, and also gives the 
 legislature power to enact laws "to secure 
 the freedom of elections and the purity of 
 the ballot box." State v. Old, 95 Tenn. 723, 
 34 S. W. 690, 31 : 837 
 
 276. A criminal court has no power to re- 
 quire ballot boxes to be opened for the in- 
 spection of the grand jury under Mo. Const, 
 art. 8, 3, providing that elections shall be 
 by ballot, the ballots numbered in order op- 
 posite the names of voters, and the elec- 
 tion officers sworn or affirmed not to dis- 
 close how any voter shall have voted, un- 
 less required to do so as witnesses in a 
 judicial proceeding, provided, that in con- 
 tested elections the ballots may be counted, 
 compared with the list of voters, and ex- 
 amined under such safeguards and regula- 
 tions as may be prescribed bv law. Ex 
 parte Arnold, 128 Mo. 256. 30 S. W. 768. 
 
 33: 386 
 
 277. The expenditure to secure the nomi- 
 nation and election of a candidate of more 
 money than the law permits, if it is done 
 without his knowledge or consent, will not 
 avoid his election under the Missouri cor- 
 rupt practices act of 1893. State ex rel. 
 Crow v. Bland, 144 Mo. 534, 46 S. W. 440. 
 
 41: 297 
 
 278. Procuring the withdrawal of a candi- 
 date, and the substitution of the name of 
 the candidate of another party as the 
 nominee of the former party also, although 
 it is done by the payment of money and by 
 giving other valuable, inducements, and re- 
 sults in procuring additional votes for the 
 fusion candidate, does not constitute a 
 bribery of voters within the meaning of the 
 Missouri corrupt practices act 'of 1893. Id. 
 Municipal elections. 
 
 279. Illegal voting at a village election is 
 not punishable under Neb. Grim. Code, 
 181, 182, which specify only a "vote in any 
 precinct or in any ward of a city," as the 
 word "precinct" does not include a village. 
 State v. Chichester, 31 Neb. 325, 47 X. W. 
 934, 11: 104 
 
 280. Illegal voting at municipal elections 
 is within Fla. Rev. Stat. 2787, providing 
 that whoever casts an illegal vote at "any 
 election" in the state held according to law 
 shall be punished. Ex parte Senior, 37 Fla. 
 1, 19 So. 652, 32: 133 
 Intimidation of negro voters. 
 
 281. No punishment can be inflicted for 
 violation of the Federal statute declaring 
 that all qualified citizens shall have a right 
 to vote at all elections without distinction 
 of race, color, or previous condition of servi- 
 tude, unless it is prescribed by statute. 
 Karem v. United States, 57 C. C. A. 486, 121 
 Fed. 250. 61 : 437 
 
 282. Legislation authorized by U. S. Const, j 
 Amend. 15, to protect the elective franchise 
 
 I must be addressed to state, and" not individ- 
 ual, action, unless the individual assumes 
 to exercise the power of the. state. Id. 
 
 283. Congress cannot punish mere lawless 
 acts of individuals in preventing colored per- 
 
 sons from voting at purely state elections,. 
 
 Id- 
 
 284. Appropriate legislation for the in- 
 fringement of U. S. Const. Amend. 15, pro- 
 tecting the elective franchise of colored citi- 
 zens, is not found in L T . S. Rev. Stat. 5508, 
 U. S. Comp. Stat. 1901, p. 3712, which pro- 
 vides for punishment of persons who shall 
 conspire to injure a citizen in the free exer- 
 cise of any rights secured to him by the 
 Constitution or laws of the United State-, 
 since it is not limited to state action, which 
 is the only action in respect to such fran- 
 chise which Congress can prohibit. Td. 
 
 285. Congress having no power to punish 
 the intimidation of voters at purely state 
 elections where the conduct is not grounded 
 upon race, color, or previous condition of 
 servitude, U. S. Rev. Stat. 5507, U. S. 
 Comp. Stat. 1901, p. 3712, which provides for 
 the punishment of everyone who prevents 
 another from exercising the right of 
 suffrage to whom the right is guaranteed by 
 the 15th Amendment, is void in its applica- 
 tion to state elections, since it includes with- 
 in its operation offenses not grounded upon 
 race, color, or previous condition of servi- 
 tude. Lackey v. United States. 46 C. C. A. 
 189, 107 Fed/114, 53: 660 
 
 III. Nominations; Primaries; Political Com- 
 mittees. 
 
 Restricting Vote to Nominee, see supra, 120, 
 
 121. 
 Persons and Parties Entitled to Place on 
 
 Ballot, see supra, 125-137. 
 Nominees of More than One Party, see 
 
 supra, 140-142, 144-146. 
 Validity of Contract to Influence Action of 
 
 Convention, see Contracts, 489. 
 Power of Courts, see Courts, 92, 94. 
 Judicial Notice as to, see Evidence, 37. 
 Sale of Liquor on Day of, see Intoxicating- 
 
 Liquors, 141, 142. 
 
 Title of Statute as to, see Statutes, 219. 
 See also supra, 106. 
 For Editorial Notes, see infra, V. 8. 
 
 Nominating conventions. 
 See also infra, 318. 
 
 , 286. A nomination by a political club can- 
 not be recognized as that of a county con- 
 vention when the participants did not con- 
 sider themselves a convention, and the 
 minutes kept were those of the club!, and 
 there ha,d been no call or notice of a con- 
 vention nor any election of\ delegates, and 
 no primaries had l*een held^J^tate ex ixL^ 
 Russell v. Tooker, 18 Mont. 540, 46 Pac. 
 530, ~34: 315 
 
 287. By the use of -the 'word "delegate" 
 in Minn.' Gen. Laws 1893, chap. 4, 31, 33, 
 34. the legislature did not intend to pro- 
 hibit political parties from holding mass 
 conventions for the nomination of candi- 
 dates for office, or intend to require the 
 members of such conventions to be elected 
 as delegates to such conventions at primar- 
 ies or caucuses. Mansion v. Mclntosh, 5ft 
 Minn. 525, GO N. W. 672, 28: 60*
 
 ELECTIONS, III. 
 
 ins- 
 
 288. The decision of a political convention 
 as to the qualifications of its own mem- 
 bers is conclusive upon the courts. Stephen- 
 son v. Boards of Election Comrs. 118 Mich. 
 39(5, 7<i ,\ T . W. 914, 42: 214 
 
 289. The right of a political convention 
 making nominations to judge of the elec- 
 tion, qualification, and returns of its own 
 members, will be recognized by the court 
 in passing on the right of nominees to appear 
 on election ballots; and the right or title 
 of delegates admitted to the convention will 
 not be inquired into. Marcum v. Ballot 
 Comrs. 42 \Y. Ya. 2(53. 26 S. K. 281, 3(5: 2!l(i 
 
 2!U). The final determination of a political 
 convention as to the nomination of a candi- 
 date, or any other question with'm its juris- 
 diction, will be followed by the courts. 
 Phillips v. (Jallagher. 73 Minn. 528. 7(5 X. 
 W. 285, 42: 222 
 
 291. A ballot taken at a political conven- 
 tion, giving one candidate a majority, may 
 be declared irregular by the convention on 
 a report by the tellers of an excess of 
 voies; and a new ballot, taken without fraud 
 or oppression, by which a person who was 
 not voted for on the first ballot is nomi- 
 nated, will be upheld by the courts. Id. 
 
 292. The power of a party convention 
 cannot be forestalled or in any manner limit- 
 ed or curtailed by the executive committee 
 in calling the convention. Hutchinson v. 
 Brown, 122 Cal. 189, 54 Pac. 738, 42: 232 
 
 293. The determination of the right of 
 i-ontesting delegations to vote in the or- 
 ganization of a political convention cannot 
 be made, against the will of the conven- 
 tion, by the chairman of the political com- 
 mittee who called the convention to order, 
 although he is acting under a direction of 
 a majority of that committee. Stephenson 
 v. Boards'of Election Comrs. 118 Mich. 396, 
 70 X. W. 914, 42: 214 
 
 294. The violation of pledges or sacrifices 
 of party interests by members of a political 
 convention in making a nomination or adopt- 
 ing a plan of fusion will not justify the 
 secretary of state in refusing to file a cer- 
 tificate of nominations made by the conven- 
 tion. Hutchinson v. Brown, 122 Cal. 189, 
 .14 Pac. 738, 42:232 
 
 295. The desire to prevent bloodshed is 
 not a sufficient excuse to justify deleft e* 
 to a convention of a prominent political 
 party in refusing to attend the meeting or- 
 ganized by the central committee. State 
 ex rel. Ho wells v. Metcalf, 18 S. D. 393, 100 
 X. W. 923, ^67: 331 
 
 29(5. Delegates are not justified in refus- 
 ing to attend the convention organized by 
 the central committee of a political party 
 because there arevontesting delegations, and 
 the central committee is favorable to t lie 
 opposing faction. Id. 
 
 Regularity of convention. 
 
 297. A county Convention whose nominees 
 will have a right to appear on an oll'u-ial 
 ballot cannot be held by twenty-one persons 
 coming from but one fourth of the precincts 
 in the county, who met and assumed to form 
 a new party without any credentials or elec- 
 tion as delegates, or any call for a conven- 
 
 tion, or any notice except by word of mouth.. 
 State ex rel. Metcalf v. .Johnson, 18 Mont_ 
 548, 46 I'ac. 533, 34: 313 
 
 298. A state convention nominating candi- 
 dates will not be recognized so as to permit 
 the names of the nominees to appear on an 
 official ballot when it was held by only 
 twenty-one persons representing only one 
 fourth or the precincts of a single county, 
 who met without any call for a convention, 
 or any notices given except by word of 
 mouth, or any election as delegates, or any 
 credentials, and immediately assumed to 
 form a new party and organize themselves 
 into a county convention and then on the 
 >ame evening into a state convention. Id. 
 
 299. That (action of a county convention 
 which assembles at the place designated by 
 the chairman and a majority of the county 
 committee, organizes, and proceeds to nomi- 
 nate candidates, must be regarded as the 
 regular representative of the party, in the 
 absence of anything which justifies delegates 
 in refusing to attend at the place selected. 
 State ex rel. Howells v. Metcalf, 18 S. D. 
 393, 100 X. W. 923, 67 : 331 
 
 300. Which of two or more bodies of vot- 
 ers claiming to be the convention con- 
 templated by Cal. Pol. Code. 1186, 1187. 
 is the true one, must be determined, in the 
 first instance at least, by the registrar to 
 whom certificates of nomination are present- 
 ed for filing; and the mere fact that a cer- 
 tificate is in due form is not in itself con- 
 clusive as to his duty to file it. McDonald 
 v. Hinton, 114 Cal. 484, 46 Pac. 870. 35: 152 
 
 301. The regularity of a political con- 
 vention held by either faction of a party, 
 when two factions nominate candidates and 
 certify their nominations to the secretary 
 of the state, will not be inquired into by 
 him, but he will certify the names of the 
 candidates nominated by each convention, 
 to the several county clerks. Phelps v. 
 Piper, 48 Neb. 724. 67 X. W. 755. 33: 53 
 
 :!<I2. Which of the two opposing faction- 
 of a political party is its true represen- 
 tative is not a matter for determination by 
 the county officers whose duty it is to con- 
 sider objections to certificates of nomina- 
 tion and nomination papers, and such of- 
 ficers cannot exclude from the official bal- 
 lot candidates nominated by a convention 
 of either faction when duly and regularly 
 certified to the county clerk in the manner 
 pointed out bv statute. Sims v. Daniels. 
 57 Kan. 552. 46 Pac. 952. 35: 146 
 
 :!():'.. The regularity of either of the tick- 
 ets nominated by the separate divisions of 
 a split convention cannot be determined by 
 election commissioners in preparing ballots, 
 but they must print thereon the names of 
 both sets of candidates, and give for each 
 set the party name as certified bv the 
 committee presenting it. without addition 
 or distinctive designation, ^hield- v. -Tacob. 
 SS Mich. 1(54. 50 X. \V. 105. 13: 760 
 
 Nomination by petition. 
 
 304. Nominations cannot be made by ;t 
 petition filed with a county clerk and re- 
 corder so as to entitle the names of the- 
 nomineos to be placed upon an official
 
 1114 
 
 ELECTIONS, III. 
 
 ticket as candidates of a party. State ex 
 rel. Russell v. looker, 18 Mont. 540, 46 
 Pac. 530, 34:315 
 
 305. The pledge required of each singer 
 of a nomination paper by Ohio act April 8, 
 1898, 7, that he will support the candidate 
 or candidates whose nominations are there- 
 in requested, does not infringe the right 
 of suffrage as guaranteed by the Constitu- 
 tion. State ex rel. Plimmer v. Poston, 59 
 Ohio St. 122, 52 N. E. 196, 43: 90 
 Nomination by committee. 
 
 306. Nominations by a self-constituted 
 county committee of an alleged party can- 
 not be made so as to appear on an official 
 ticket when no power has been delegated 
 to such committee by any convention of 
 the party. State ex rel. Russell v. Tooker, 
 18 Mont. 540, 46 Pac. 530, 34: 315 
 
 307. Power to nominate a candidate for 
 office may be conferred upon a committee 
 by a duly assembled convention of a polit- 
 ical party, and the candidate named by the 
 Committee may be entitled to a place on the 
 official ballot as if nominated by the con- 
 vention on compliance with the provisions 
 of the election law. White v. Sanderson, 
 74 Minn. 118, 76 N. W. 1021, 42: 231 
 
 308. The validity of a nomination made 
 by a chairman of the state committee of a 
 political party with 100 associates, to fill 
 vacancies in the list of presidential electors 
 nominated in the same manner, when not in 
 violation of statute, cannot be contested by 
 the committee of an entirely distinct politi- 
 cal party. State ex rel. Blydenburgh v. 
 Burdick/6 Wyo. 448, 40 Pac. 854, 34: 845 
 Certificate of nomination. 
 Discrimination between Nominees of Dif- 
 ferent Parties, see supra. 171. 
 
 Refusal to File, see supra, 294. 
 Injunction against, see Injunction, 248. 
 Prohibition against, see Prohibition, 3. 
 
 309. A certificate of nomination executed 
 "by the chairman and secretary of a commit- 
 tee which has been authorized by a political 
 convention to make a nomination is suf- 
 ficient to satisfy Minn. Gen. Stat. 38, 
 without being executed by the presiding 
 officer and secretary of the convention. 
 White v. Sanderson, 74 Minn. 118, 76 N. W. 
 1021, 42:231 
 
 310. The failure of a certificate of nomi- 
 iiation to specify, as required by statute, 
 the business address of the candidate and 
 the chairman and secretary of the commit- 
 tee who make the certificate, is not ma- 
 terial where it states the names, address, 
 and business of each, and the business ad- 
 dress of ear-h is in fact the same as the 
 address given for him in the certificate. 
 Stackpole v. ITallahan, 10 Mont. 40, 40 Pac. 
 W, 28: 502 
 
 311. All the provisions of the Australian 
 ballot law are not mandatory to the extent 
 of invalidating an election if some detail as 
 to the nominating certificate is omitted, al- 
 though they may be mandatory in a direct 
 proceeding to enforce them. Id. 
 
 312. An election in which the voters have 
 fully, fairly, and honestly exnressed their 
 will, is not invalid under the Montana Aus- 
 
 tralian ballot law of March 13. 18S9, be- 
 cause the certificate of nomination of the 
 successful candidate, who was selected to 
 fill a vacancy, did not show that fact or the 
 fact that the committee nominating him 
 had power to fill the vacancy, or because 
 no declination of the person previously 
 nominated was filed, where the officer with 
 whom the certificates were filed had never 
 been notified of any previous nomination, 
 and the committee in fact had full power to 
 fill the vacancy. . Id. 
 
 313. The exclusion from the signers of a 
 certificate of electors to nominate candi- 
 dates by Wyo. Laws 1890, chap. 80, 89, 
 ot those persons who have joined in a cer- 
 tificate nominating other candidates for the 
 same office, does not apply to persons who 
 have participated in the nomination of other 
 persons through primaries, but only those 
 who have joined in nominations by cer- 
 tificate. State ex rel. Blydenburgh v. 
 Burdick, 6 Wyo. 448, 46 Pac. 854. 34: 845 
 
 314. Neither the party appellation nor the 
 names of the presidential and vice presiden- 
 tial candidates added thereto by authority 
 of law and properly appearing in the certifi- 
 cate of nominations made under Kan. Sess. 
 Laws 1893, chap. 78, 6, can be omitted by 
 the secretary of state from his certificate of 
 such nominations to the county clerks under 
 13. Breidenthal v. Edwards, 57 Kan. 332. 
 46 Pac. 469, 34: 146 
 
 315. Agreements made by the candidates 
 and committees of opposing factions of a 
 political party providing for a settlement of 
 their differences, and for a determination of 
 the question as to which set of candidates 
 is entitled to a place on the official ballot, 
 and to the use of a party name, cannot be 
 considered by county officers whose duty it 
 is to consider objections to certificates of 
 nomination and nomination papers, for the 
 purpose of excluding candidates duly certi- 
 fied 'by either faction as the nominees of the 
 party. Sims v. Daniels, 57 Kan. 552, 46 
 Pac. 952, 35: 146 
 Primary elections. 
 
 316. The legislature may recognize the 
 existence of political parties, and within 
 reasonable limits regulate the means by 
 which partisan voters shall be protected in 
 exercising individual preferences for party 
 candidates. State ex rel. McCarthy v. 
 Moore, 87 Minn. 308, 92 N. W. 4, 59:447 
 
 317. A deprivation of the right to par- 
 ticipate in the selection of candidates for 
 office is a deprivation of the right of fran- 
 chise. Britton v. Board of Election Comrs. 
 129 Cal. 337, 61 Pac. 1115, 51: 115' 
 
 318. The denial to a political party which 
 cast less than 3 per cent of the vote at the 
 next preceding election, of the right to the 
 privileges and protection accorded to other 
 political parties by the California primary 
 election law of March 3, 1899 (Stat. 1899. 
 p. 47), and thereby prohibiting the members 
 of such party from holding a nominating 
 convention, is a denrivation of the riht of 
 franchise .and a violation of the constitu- 
 tional rights under Cal. Const, art. 1, 10, 
 giving them the right to freely assemble
 
 ELECTIONS, IV. 
 
 1115 
 
 together to consult for the common good. 
 etc., 21, providing for equality of privi- 
 leges and immunities, and 11, requiring 
 laws of a general nature to have a uniform 
 operation. 1.1. 
 
 3'19. A primary election provided for by 
 statute is an election "authorized by law.'' 
 within the meaning of Cal. Const, art. 2, 
 1, prescribing the qualifications of elec- 
 tors at all elections authorized by law. 
 Spier v. Baker, 120 Cal. 370, 52 Pac.' 659. 
 
 41: 196 
 
 320. The power of the legislature to re- 
 quire an oath of a bona fide, present inten- 
 tion to support the nominees selected by the 
 delegates there elected, as a test of the right 
 to vote at a primary election, presents a 
 matter demanding most serious considera- 
 tion, but is not decided in this case. Id. 
 
 321. The restriction of the right to vote 
 at the primary elections by Cal. act March 
 13, 1897, 22, to those whose names ap- 
 pear upon the great or precinct registers, 
 or the supplements thereto, used at the last 
 general election, is unconstitutional, as it 
 excludes various classes of electors who 
 have a constitutional right to vote. Id. 
 
 322. The qualifications as to residence of 
 voters at primary elections prescribed by 
 Cal. act March 13, 1897. do not comply 
 with the Constitution, as the only condition 
 1 hey provide is thirty days' residence in the 
 fount y prior to the election, whereas the 
 Constitution requires residence in the state 
 for one year, in the county ninety days, and 
 in the precinct thirty days, and that 
 natural i/.ed citizens must have been such 
 ninety day-. Id. 
 
 :Vi'5. Permitting voters, without regard to 
 their party alliliations, to vote at a primary 
 election under Cal. act March 3. 1899 (Stat. 
 1899, p. 47). for delegates to the political 
 convention of any party that he chooses to 
 select, whether he is a member of that 
 party or not. or ever intends to become a 
 member of it, gives an opportunity for the 
 disruption and destruction of a political 
 party by its opponents, and constitutes a 
 violation of the reserved rights of the peo- 
 ple, which, it is provided by Cal. Const, art. 
 1. 23, shall not be impaired or denied by 
 the enumeration of rights declared. Brit- 
 ton v. Board of Election Comrs. 129 Cal. 
 337. 61 Pac. lll.l. 51: 115 
 
 Political committees. 
 Nominations bv. see supra. 306-308. 
 Power over Nominating Convention, see 
 
 Mipra. 202. -2!:i. 
 
 Injunction a^iin-t Adding Xames to. see 
 Injunction, 253. 
 
 :]-24. A county committee of a political 
 party has no power to remove one of its 
 members under N. Y. Laws 1898, chap. 179. 
 providing that there must be a county com- 
 mittee for such party, and that its mem- 
 bers shall be elected for the term of one 
 year at the primary elect ion provided bv 
 statute. People ex rel. Coffev v. Democratic 
 General Committee. 164 X. V. 33.1. .IS X. E. 
 124, 51:674 
 
 32.1. Rules of a county committee of a 
 Apolitical party authorizing the expulsion of 
 
 a member cannot be operative after the 
 enactment of X. Y. Laws 1898, chap. 179, 
 which provides for the* election of the mem- 
 bers or such committee for a term of one 
 year, and authorizes the committee to make 
 rules not contrary to. or in contravention 
 of, the statutes, though it declares that 
 rules previously adopted shall continue in 
 force until new ones are adopted, since this 
 provision is subject to the condition that 
 the rules are in conformity with the stat- 
 ute. Id. 
 
 IV. Contests. 
 
 Recount, see supra, 268, 269. 
 
 Record on Appeal, see Appeal and Error, 
 
 173. 
 Review of Finding on, sec Appeal and Error, 
 
 784, 785. 
 
 Jurisdiction as to, see Courts, 258. 
 Review of Legislative Determination on, 
 
 see Courts, 169. 
 Municipal Power to Create Court to Hear, 
 
 see Courts, 253. 
 Presumption and Burden of Proof on, see 
 
 Evidence, 214, 390, 614-617. 
 Ballots as Best Evidence on, see Evidence, 
 
 779-781. 
 Admissibility of Ballots on, see Evidence, 
 
 1020. 1021. 
 Admissibility of Declarations of Voters, see 
 
 Evidence, 1554. 
 Sufficiency of Proof on, see Evidence, 2311- 
 
 2313.' 
 Effect of Governor's Death Pending, see 
 
 Governor. 6. 
 Contest by Quo Warranto, see Quo War- 
 
 ranto, I. b. 
 Special Proceeding under Corrupt Practice 
 
 Act, see Quo Warranto. 2. 
 Xecessity. of Alleging that Contestant Re- 
 ceived Majority of Votes Cast, see Quo 
 
 Warranto. 34. 
 
 Refusal to Testify as to Vote, see Wit- 
 nesses. 130. 
 For Editorial Xotes, see infra, V. 7. 
 
 326. The county judge sitting in term 
 time in his regular capacity as the county 
 court lias jurisdiction, under the Colorado 
 act of 188.1. to try contested-election ca-e- 
 of county officers. Brown v. Vailes, 10 
 Colo. 462,' 27 Pac. 94.1. 14: 120 
 
 327. The procedure under Neb. Const, art. 
 5, 4. 1.1. and Xeb. Comp. Stat. chap. 26. 
 >j 77. for the contest of the election of exec 
 utive ollicers. applies to the case of a 
 governor and lieutenant governor who have 
 already qualified and entered upon their 
 duties, a- well a- to all other executive of- 
 ficers. He Kleetion of Executive Officers. 
 :M Neb. 2(52. 47 X. W. 923,- 10:803 
 
 32S. A statute giving the right to contest 
 the election of county nfliccrs and precinct 
 officers excludes by implication the right to 
 Contest the election of municipal officer.*. 
 Fawcett v. Pritchard, 14 Wash. 604, 4:1 Pac. 
 23. 33:674 
 
 329. The right to hold over in an office 
 cannot be considered in an election content
 
 1116 
 
 ELECTIONS, IV. 
 
 pure and simple. Allen v. Glynn. 17 Colo. 
 338, 29 Pac. 670, 15: 743 
 
 330. No one but an elector can contest an 
 ^lection in Montana. Gillespie v. Dion, 18 
 Mont. 183, 44 Pac. 954, 33: 703 
 Election fraud or crime as ground. 
 
 331. The fact that a systematic plan to 
 coerce a class of citizens to vote a particular 
 ticket at a certain election was formed and 
 carried out, consisting of the manifestation 
 of a spirit of intolerance towards those who 
 expressed a determination to vote some 
 other ticket, the use of the influence of 
 the church, threats of ostracism from so- 
 ciety, and indignities falling short of in- 
 timidation, is not sufficient to avoid the 
 election. -Tones v. Glidewell. 53 Ark. 161, 
 13 S. W. 723, 7: 831 
 
 332. The privilege of secrecy is inherent 
 in the constitutional guaranty of a vote by 
 ballot: and if a plan for coercing voters by 
 requiring them to disclose the contents of 
 their ballots to the bystanders is so gener- 
 ally carried out as to render the result 
 doubtful, the candidate for whose benefit 
 such plan was devised must purge the poll 
 of its effect, or suffer the penalty of having 
 the favorable majority cast thereat ex- 
 cluded from his counting of votes. Id. 
 
 333. The fact that some of the ballots 
 cast at an election were stolen before they 
 were counted, leaving a majority in favor 
 of a candidate who received a certificate 
 of election on the faith thereof, will not 
 entitle his opponent to the office unless he 
 establishes his right thereto upon the 
 strength of his own title; and he will not 
 be injured by the burglary if he is permit- 
 led to prove by secondary evidence the con- 
 tents of the election returns. Id. 
 Time; adjournment. 
 
 Time for Appeal in. see Appeal and Error, 
 
 140. 
 Kffect of Sunday on Time for Contest, see 
 
 Time. 22, 24. 
 
 334. The term "canvass" in Dak. Comp. 
 Laws. 1489. requiring notice of a contest 
 of election within twenty days after can- 
 vass of the vote-;, includes a decision by lot 
 of a tie vote, as provided by S. D. Laws 
 1890. chap. S4. S 26: and notice within 
 twenty days after such decision is sufficient. 
 Howler v. 'Eisenhood, 1 S. D. 577, 48 X. W. 
 13fi. 12: 705 
 
 335. The twenty days' limitation of the 
 time "to adjourn or continue the trial" of 
 an election 'contest under Ind. Rev. Stat. 
 1881. S 4701. begins when the board has first 
 convened and organized to enter upon the 
 investigation, although the trial does not 
 be"iii at that time. English v. Dickey. 128 
 Tnd. 174. 27 X. E. 495. 13: 40 
 
 330. The adjournment of an election con- 
 te-t ;it the request of the cnntostor. to a 
 ,lay beyond the time limited by statute for 
 the investigation, absolutely discontinues 
 ilie proceeding, and even the consent of the 
 parties cannot keep it alive longer. Id. 
 
 Pleadings; statement. 
 
 337. A petition in a proceeding under the 
 Mi-<ouri corrupt practices act of March 31, 
 
 1893, by the attorney general on the appli- 
 cation of the defeated candidate, is demur- 
 rable if it does not clearly state charges 
 which are made actionable by the act, al- 
 though it alleges that the defendant i.- 
 usurping the office. State ex rel. Crow v. 
 Bland, 144 Mo. 534, 46 S. W. 440, 41 : 297 
 
 338. Mere averment of belief by a defeat - 
 .eu candidate for election to an office, that 
 
 a recount of votes will show a majority for 
 him, is not sufficient to give the court juris- 
 diction of the proceedings, but he must 
 particularize the fact from which he draws 
 his conclusion. Gillespie v. Dion, 18 Mont. 
 183, 44 Pac. 954, 33: 703 
 
 339. In a special statutory proceeding for 
 contesting an election, to maintain which, 
 under the statute the contestant must be an 
 elector, an omission from the record of any 
 averment to show that he is an elector will 
 be fatal. Id. 
 
 340. The failure of a contestant to file a 
 statement sufficient to show his own eligi- 
 bility to a disputed office will not prevent 
 
 | relief to the extent of annulling the cer- 
 i tificate of election of the opposing candi- 
 j date, who has been illegally declared elect - 
 i ed. Rutledge v. Crawford, 91 Cal. 526, 27 
 Pac. 761, 13: 761 
 
 341. An omission to state in a contest of 
 election to the office of state's attorney, 
 that plaintiff was learned in. the law, which 
 is a constitutional qualification for the of- 
 
 I fice, will be cured by an allegation in the 
 answer that plaintiff w r as, at the time of 
 the election, the legally qualified and act- 
 ing state's attorney. AIcMahon v. Polk. 
 10 S. D. 296, 73 N. W. 77, 47: 830- 
 
 342. An amendment of the statement of 
 a contestant of an election may be made to- 
 show his eligibility, after the cause ha* 
 been remanded from an appellate court. 
 Rutledge v. Crawford, 91 Cal. 526, 27 Pac. 
 761, 13: 761 
 
 343. A statement in an election contest, 
 which fails to aver contestant's qualifica- 
 tion to maintain the proceeding, cannot be 
 amended to supply the omission after the- 
 lapse of the time which the statute allows 
 for the commencement of the proceeding. 
 Gillespie v. Dion, 18 Mont. 183, 44 Pac. 954, 
 
 33: 703 
 
 344. Amendments so radical as to vir- 
 tually initiate a contest of election cannot 
 be made to a statement which really speci- 
 
 j fied no grounds at all, after the expiration 
 
 i of the time allowed by statute for the 
 
 commencement of the proceedings. Id. 
 
 345. Where contestants specify certain 
 districts in which they allege frauds were 
 committed, and the whole election records 
 and register lists of the county are put in 
 evidence by defendant under his defenso 
 that all votes cast in the county were legal. 
 
 j the court may adjudge the illegality of" 
 i votes, on the request of contestants, in elec- 
 j tion districts not mentioned in the petition. 
 | Re Cusick's Appeal, 136 Pa. 459. 20 Atl. 
 574 ; 10; 22K
 
 ELECTIONS, V. (Ed. Notes.) 
 
 1117 
 
 V. Editorial Notes. 
 a. Voters. 
 
 4j i. Generally; right to vote. 
 
 Nature of right of suffrage; powers of 
 states in respect to 
 suffrage. 1: 111." 
 
 JPower to modify or take away right. 1 : 
 112.* 
 
 Elective franchise as affected by 14th 
 Amendment. 8: 337.* 
 
 Effect of first section of 15th Amendment 
 on elective franchise. 8: 
 337.* 
 
 Right to vote as a privilege or immunity of 
 citizen of United States. 
 14: 580. 
 
 Right of women to vote. 21 : G62. 
 
 Qualification of voters. 7:99;* 8:337.* 
 
 Payment of poll taxes as a qualification of 
 electors. 29: 414. 
 
 Registration laws; validity and construc- 
 tion. 8: 337;* 10: 224.* 
 
 Rights of voters to be registered. 7: 99.* 
 
 -Acquiring residence as a voter while attend- 
 ing school or public insti- 
 tution. 23: 215. 
 
 Inmates of soldiers' homes, or occu- 
 pants of government 
 posts. 23:215. 
 Inmates of ahnshouses and hospitals. 
 
 23' 215 
 Students. 23: 215. 
 
 Hight to vote as a qualification of grand 
 juror. 28: 196. 
 
 2. How far right to vote is absolute. 
 
 Generally. 25:480. 
 
 As affected by acts of Congress. 25: 480. 
 
 Registration. 25: 480. 
 
 Tax or property qualification. 25: 482. 
 
 Soldiers voting. 25: 482. 
 
 Test oaths and disqualification for crime. 
 25: 483. 
 
 Ballots and primaries. 25: 484. 
 
 Other statutory conditions, restrictions, and 
 qualifications. 25: 484. 
 
 b. Election; nomination. 
 
 3. Generally. 
 
 Election as distinguished from appointment. 
 15: 106. 
 
 Judicial notice with respect to. 4: 38.* 
 
 First and last days in computing time of 
 elections. 49: 244. 
 
 Validity of apportionment of election dis- 
 tricts. 15: 561. 
 
 Interference with election districts by an- 
 nexation of territory to 
 municipality. 27: 744. 
 
 Statutes restricting the vote of an elector 
 to less than all when sev- 
 eral officers are to be cho- 
 sen for the same office. 
 33: 141. 
 
 Bribery of voters. 5:217.* 
 
 Compensation of supervisor of elections. 
 10: 224.* 
 
 4. Federal control of. 
 
 Existence, sources, and extent of power. 
 53: 660. 
 
 Existence. 53: 660. 
 Sources. 53: 662. 
 Extent. 53:663. 
 
 Congressional elections. 53: 663. 
 Other elections. 53 : 664. 
 Requiring state officers to obey 
 
 tate laws. 53: 666. 
 Under U. S. Const, art. 1. 53: 667. 
 Under U. S. Const, art. 2. 53: 668. 
 Under 14th Amendment. 53: 668. 
 Under loth Amendment. 53:668. 
 Summary of present statutes. 5.'!: 671. 
 5. Ballots; ballot boxes. 
 Form of ballot. 10: 150.* 
 Irregularities in taking ballots. 16: 754. 
 Power of courts to require ballot boxes to 
 be produced or opened in 
 proceedings other than 
 election contests. 33: 386. 
 6. Marking official ballot. 
 Validity and construction of law. 47: 806. 
 Official" marks. 47 : 808. 
 General rule. 47: 808. 
 Printer's marks. 47:808. 
 Failure to indorse ballot. 47: 808. 
 Erroneous or mistaken marking of bal- 
 lot by official. 47 : 810. 
 Correction of errors. 47: 812. 
 Voter's marks. 47: 812. 
 
 Failure to indicate intent. 47: 814. 
 Failure to use cross. 47: 815. 
 Imperfect cross. 4": 815. 
 Device other than cross. 47:816. 
 Blots. 47:819. 
 
 Superfluous liens or marks. 47: 820. 
 Distinguishing marks. 13: 761; 47: 
 
 820. 
 
 Harmless marks. 47: 824. 
 Mark with wrong implement. 47: 826. 
 Mark in wrong place. 47: 827. 
 On back of ballot. 47: 827. 
 Out of square. 47: 827. 
 On wrong side of name. 47: 832. 
 Not opposite candidate's name. 47: 
 
 833. 
 
 Conflicting marks. 47: 834. 
 Alteration of ballot. 47: 839. 
 Erasure of names. 47:839. 
 Addition of names. 47: 841. 
 Attempted erasure of vote mark. 47: 
 
 843. 
 
 Partial failure to vote. 47: 844. 
 7. Canvassing; deciding results; contests. 
 Voting for the same person for incompati- 
 ble offices. 12: 125.* 
 Rule for determining when a proposition is 1 
 
 carried. 6:308.* 
 Election contests. 5:403;* 7:831:* 12: 
 
 705;* 13:40.* 
 
 Notice to contestee. 12: 705.* 
 Decision of tie vote at election. 47: 551. 
 In the absence of statutory provisions. 
 
 47: 554. 
 Statutory provisions applicable to tie 
 
 vote. 47: 554. 
 
 General statement as to. 47: 554. 
 Decision by lot. 47: 554. 
 
 Constitutionality and con- 
 struction. 47: 554. 
 Effect of, on contest and right 
 to contest. 47: 559.
 
 1118 
 
 ELECTORS ELECTRICITY, II. 
 
 Casting vote by presiding officer. 
 
 47:561. 
 
 Appointment or election on failure 
 to elect or to fill vacancy. 
 47: 563. 
 
 8. Nominations. 
 Defects in nomination papers. 16: 754. 
 
 ELECTORS. 
 
 In General, see Elections. 
 Presidential Electors, see Presidential Elec- 
 tors. 
 
 ELECTRICAL USES AND APPLIANCES. 
 
 See Electricity. 
 
 ELECTRIC COMPANY. , 
 
 Condemnation of Land by, see Eminent Do- 
 main, 96a. 
 
 Taxation of, see Taxes, 110-113, 205, 257- 
 261. 
 
 See also Electricity; Electric Lights; Elec- 
 tric Railways. 
 
 ELECTRICITY. 
 
 I. Municipal Regulation of. 
 II. Conflicting Rights of Different Com- 
 panies. 
 III. Injuries Resulting from. 
 
 a. Negligence of Party Producing. 
 
 b. Contributory Negligence of Person 
 
 Injured. 
 IV. Editorial Notes. 
 
 Electrocution as Cruel and Unusual Punish- 
 ment, see Criminal Law, 210, 211. 
 
 Right to Extend Wires across Private Al- 
 ley, see Easements, 85, 86. 
 
 Ejectment against Maintenance of Electric 
 Light Poles in Street, see Ejectment, 
 33. 
 
 Electric Lights, Generally, see Electric 
 
 Lights. 
 i Electric Railways, see Electric Railways. 
 
 Generation and Distribution of. as a Public 
 Purpose within Power of Eminent Do- 
 main, see Eminent Domain, 93-96. 
 
 Consequential Injury by Poles and Wires in 
 Street, see Eminent Domain, 372, 373. 
 
 Poles and Wires as Additional Servitude, 
 see Eminent Domain, 396. 403-416, and 
 also infra, IV. 1. 
 
 Electric Railroad as Additional Servitude, 
 see Eminent Domain, 440-453. 
 
 Judicial Notice as to, see Evidence, 6971. 
 111. 
 
 Right to Maintain Polos and Wires in High- 
 way, see Highways, 83-94; Telegraphs. 
 1-3. and also infra, IV. 1. 
 
 Compelling Removal of Poles, see Injunc- 
 tion, 51. 
 
 Motive Power. Injunction against, see In- 
 junction, 17, 31. 
 
 As Motive Power of Street Railway, se& 
 Street Railways, 71-74, 76-78. 
 
 Taxation of Electric Company, see Taxes,. 
 110-112, 205, 257-201. 
 
 Subway for Electric Wires, see Subway r 
 4-7. 
 
 Right to Appropriate Water for Generation, 
 of, see Waters, 330. 
 
 I. Municipal Regulation of. 
 
 For Editorial Notes, see infra, IV. 2. 
 
 1. An ordinance prohibiting the suspen- 
 sion of electric wires over or upon the 
 roofs of buildings is within the legitimate 
 police powers of a city, where such suspen- 
 sion of these wires is extremely dangerous, 
 both as being liable to originate fires, and 
 as obstructing the extinguishment of fire* 
 otherwise originated. Electric Improv. Co. 
 v. San Francisco, 45 Fed. 593, 13: 131 
 
 2. Public officers may be authorized by 
 ordinance to remove dangerous electric 
 wires suspended over or upon the roof of 
 buildings, where the owners fail to do so- 
 after notice to remove them. Id. 
 
 3. The only power of regulation impliedly 
 reserved by a city on giving to a telegraph 
 company or other such corporation its con- 
 sent that electric wires may be laid under 
 the streets is such regulation as the safety 
 and welfare of the public may demand, 
 whore the corporation derives its power to- 
 place wires under ground from the state,, 
 subject only to the consent of the. munici- 
 pality. State ex rel. St. Louis Underground. 
 Service Co. v. Murphy, 134 Mo. 548, 31 S. 
 W. 784. 34 S. W. 51, 35 S. W. 1132, 34: 369* 
 
 II. Conflicting Rights of Different Com- 
 panies. 
 
 4. In the present state of electrical 
 science a telephone company cannot main- 
 tain a bill for an injunction against the 
 operation of an electric railway, to prevent 
 damages incidentally sustained by the es- 
 cape of electricity from its rails. Cumber- 
 land Teleph. & Teleg. Co. v. United Electric 
 R. Co. 42 Fed. 273, 12: 544 
 
 5. A telephone company M-hich has ob- 
 tained a franchise to use a street, upon the 
 express condition that it shall not obstruct 
 or interfere with the enjoyment of the fran- 
 chises of a street railway company, cannot 
 have an injunction against the use of the 
 single-trolley propulsion by the street car 
 company, although the electricity thereby 
 discharged into the ground interferes with 
 
 1 the operation of the telephone line, where 
 ' this could be avoided only by a complete 
 ! change of the street-railway system and 
 I the use of motors which are more ex- 
 I pensive, more dangerous, and less useful and 
 I efficient. Hudson River Teleph Co. v. 
 i Wntervliet Tump. & R. Co. 135 N. Y. 393, 
 32 N. E. 148, 17: 674
 
 ELECTRICITY, III. a. 
 
 6. Interference with the ground circuit of 
 a telephone system by the subsequent intro- 
 duction of the "single-trolley system" of 
 electric street railways, of which the ground 
 also is a constituent part, interferes with 
 no vested right of the telephone company, 
 and gives it no right of action. Cincinnati 
 Inclined Plane R. Co. v. City & S. Teleg. 
 Asso. 48 Ohio St. 390, 27 N. E. 890, 12: 534 
 
 7. A telephone company cannot recover 
 for loss sustained from induction on ac- 
 count of parallel wires of an electric rail- 
 way company, where a provision of the 
 statute authorizing the construction of the 
 Telephone line prohibits its obstructing the 
 ordinary use of the street. ^Cumberland 
 Teleph. & Teleg. Co. v. United 'Electric R. 
 Co. 93 Tenn. 4!>2, 29 S. W. 104, 27: 236 
 
 8. The destruction of the use of a tele- 
 phone plant with a ground circuit, which 
 made no injurious disturbance of natural 
 electric conditions anywhere, caused by con- 
 duction resulting from the operation of a 
 single trolley street car line which charged 
 the earth for half a mile on each side with 
 powerful currents of electricity, makes the 
 street railway company liable for the cost 
 of return wires for the telephone line as a 
 substitute for the ground circuit. Id. 
 
 9. Disturbance of a telephone system pre- 
 viously established, the poles and wires of 
 which are upon the streets, by the introduc- 
 tion of electro-motive power upon a street 
 railway, entitles the telephone company to 
 no remedy except to readjust its methods 
 to meet the new conditions. Cincinnati In- 
 clined Plane R. Co. v. City & S. Teleg. Asso. 
 48 Ohio St. 390, 27 N. E. 890, 12: 534 
 
 10. An electric light company which has 
 put up poles and wires in streets, under con- 
 tract with a municipal corporation, and con- 
 veys so low a current of electricity for 
 lights that the wires can be safely handled 
 even when charged, may have an injunction 
 against another company which, under a 
 -nil-sequent contract, erects poles and wires 
 carrying a dangerous current so near the 
 former as to interfere with their safe use. 
 Rutland Electric Light Co. v. Marble City 
 Electric Light Co. 65 Vt. 377, 26 Atl. 635. " 
 
 20: 821 
 
 11. The unnecessary conflict of poles and 
 wires of a trolley railway company with 
 those of a prior existing telephone plant to 
 the damage of the latter makes the railway 
 company liable for the cost of necessary 
 changes made by the telephone company. 
 Cumberland Teleph. & Telesr. Co. v.- United 
 Electric R. Co. 93 Tenn. 492, 29 S. W. 104. 
 
 27:236 
 
 III. Injuries Resulting from. 
 
 > 
 a. Negligence of Party Producing. 
 
 Injury to Passenger, see Carriers, 243-245; 
 Evidence, 2249. 
 
 Presu'imtion and Burden of Proof as to, see 
 Evidence, IT. h, 1, 6. 
 
 Proximate Cause of Iniury by, see Proxi- 
 mate Cause. IT. b; IT. c. 
 
 For Editorial Notes, see infra, IV. 3. 
 
 12. The care demanded of .electric com- 
 panies must be commensurate with the dan- 
 ger, and where the wires carry a highly 
 dangerous current of electricity, the law- 
 requires the utmost degree of care in the 
 construction, inspection, and repair of the 
 wires so as to keep them harmless at phu-c> 
 where persons are liable to come in contact 
 with them. Perham v. Portland General 
 Elec. Co. 33 Or. 451. 5:! I'ac. 14. 40: 799 
 
 13. A corporation which contracts to light 
 a building by electricity undertakes to pro- 
 tect its occupants from injury by the elec- 
 trical current, so far as it can do so, by 
 exercising the highest degree of care, skill, 
 and diligence in the construction and main- 
 tenance of its plant. Alexander v. Nanti- 
 coke Light Co. 209 Pa. 571, 58 Atl. 1068, 
 
 67 : 475 
 
 14. The liability of electric light com- 
 panies for injuries received from posts, 
 wires, or other apparatus, is not affected by 
 Mass. Stat. 1883, chap. 221, granting to such 
 companies the right to lay and maintain 
 wires subject to municipal regulations. 
 Hector v. Boston Electric Light Co. 161 
 Mass. 558, 37 N. E. 773, 25: 554 
 
 15. The use of the same poles by a tele- 
 phone company and an electric railroad com- 
 pany, at the request of the municipal au- 
 thorities, is not unlawful when it is not 
 shown to be necessarily attended with in- 
 creased danger. Bergin v. Southern New 
 England Teleph. Co. 70 Conn. 54, 38 Atl. 888. 
 
 39: 192 
 
 Negligence as to wires generally. 
 
 Presumption as to, see Evidence, 517, 518. 
 
 Opinion Evidence as to Injury bv, see Evi- 
 dence, 1293. 
 
 Evidence as to Generally, see Evidence. 
 1922. 
 
 Evidence as to Other Shocks, see Evidence, 
 1966, 1967. 
 
 Sufficiency of Proof of, see Evidence, 2262- 
 2264. 
 
 Variance in Proof as to, see Evidence, 2414. 
 
 Proximate Cause of Injury by, see Proxi- 
 mate Cause, 50. 
 
 Question for Jury as to, see Trial, 466-473. 
 
 For Editorial Notes, see infra, rV. 3. 
 
 16. Placing electric wires known to be 
 dangerous at a place where others are law- 
 fully entitled to be constitutes negligence. 
 Perham v. Portland General Elec. Co. 33 Or. 
 451, 53 Pac. 14, 40: 799 
 
 17. An electric light company may be 
 guilty of actionable negligence in failing to 
 take proper steps to receive information 
 concerning the condition of its wires, as well 
 as in not repairing them within a reasonable 
 time after receiving notice of their bad con- 
 dition. Mitchell v. Charleston Light & P. 
 Co. 45 S. C. 146, 22 S. E. 767, 31:577 
 
 18. The owner of electric wires carrying a, 
 dangerous current is chargeable with negli- 
 gence in stringing them over a bridge so 
 near the top of it that it is impossible to 
 make repairs on the bridge without coming 
 ; n contact with them. Perham v. Portland 
 General Elec. Co. 33 Or. 451, 53 Pac. 14, 
 
 40: 799
 
 1120 
 
 ELECTRICITY, III. a. 
 
 Insulation. 
 
 Presumption of Negligence as to, see Evi- 
 dence, 514, 515. 
 
 Defects in, as Proximate Cause of Injury, 
 see Proximate Cause, 53-55. 
 
 Question for Jury as to. see Trial, 469, 470. 
 
 See also infra, 34, 37, 46. 59-63, 66, 68, 69, 
 73. 
 
 19. The failure of an electric lighting 
 company to have the "splices" on its wires 
 
 perfectly insulated, as required by the c-ity 
 ordinance, constitutes negligence. Clements 
 v. Louisiana Electric Light Co. 44 La. Ann. 
 092, 11 So. 51, 16: 4.3 
 
 20. A corporation which generates and 
 sends electricity into the wires of a street 
 railway company is chargeable with the 
 duty to see that such wires are properly 
 insulated; and it, as well as the street rail- 
 way company, is liable for failure to per- 
 form that duty, if a person is killed because 
 the wires are not properly insulated. 
 Thomas v. Maysville Gas Co. 108 Ky. 224. 
 56 S. W. 153, * 53: 147 
 
 21. It is the absolute duty of an electric 
 light company conveying electricity by over- 
 head wires strung through the streets of a 
 city, to keep its wires constantly insulated 
 so as to be prepared to guard against the 
 effect of objects coming in contact with 
 them, regardless of the facts and causes 
 which may bring about the contact. 
 Hebert v. Lake Charles Ice L. & W. Co. Ill 
 La. 522, 35 So. 731, 64: 101 
 
 22. Providing insulation sufficient to with- 
 stand lightning which may strike the wires 
 is not within the obligation of an electric 
 lighting company in carrying its wires into 
 u building for the lighting of which it has 
 contracted to furnish electricity. Phoenix 
 Ught Fuel Co. v. Bennett (Ariz.) 74 Pac. 
 48. 63:219 
 
 23. The utmost care is necessary to keep 
 the insulation of dangerous electric wires 
 perfect at a place where people have the 
 right to go for work, business, or pleasure, 
 although very great care may be sufficient 
 as to wires at other places. McLaughlin v. 
 Louisville Electric Light Co. 100 Ky. 173, 37 
 S. W. 851, 34: 812 
 
 24. The duty of insulating electric light 
 wires running on the outside of a building 
 is owed to every person who. for purposes 
 of business, is rightfully upon the premises, 
 (iriffin v. United Electric Light Co. 164 
 Mass. 492, 41 X. E. 675, 32: 400 
 
 25. An electric light company using wires j 
 charged with a dangerous current owes a 
 legal duty, irrespective of any contractual ; 
 relation, toward every person who, in the j 
 exercise of a lawful occupation in a place t 
 where he has a legal right to be, is liable 
 "to come in contact witli the wires, to see 
 
 1 hat its wires are properly placed with ref- | 
 crence to the safety of such persons, and 
 are properly insulated. Brown v. Edison 
 Klec. Ilium. Co. 90 Md. 400. 45 Atl. 182, 
 
 46: 74.-> 
 
 26. An electric light company maintain- j 
 iug wires upon the same pole with other 
 companies is bound to know that linemen of | 
 the other companies may come in contact 
 
 with its wires, and must use due care in 
 insulating such wires. Newark Electric 
 Light & P. Co. v. Garden, 23 C. C. A. 649, 
 39 U. S. App. 416, 78 Fed. 74, 37 : 725 
 
 27. An electric light company is charged 
 with knowledge of an abrasion from y s inch 
 to 2 inches in extent in the insulation of 
 one of its wires, where it has existed, to 
 the knowledge of individuals, for at least 
 tun veiirs. Mitchell v. Raleigh Electric Co. 
 129 N. C. 166, 39 S. E. 801, 55: 398 
 
 28. The lack of reasonable care to keep 
 electric light wires insulated is not excused 
 by reason of the fact that mere contact 
 witli such wires is not dangerous unless 
 other conditions exist in view of the cir- 
 cumstances likely to occur which may ren- 
 der the contact dangerous. Illingsworth v. 
 Boston Electric Light Co. 161 Mass. 583, 37 
 N. E. 778, 25: 552 
 
 29. The fact that the insulation of dan- 
 gerous electric wires is very expensive or 
 inconvenient is no excuse for failure to 
 make such insulation perfect at points 
 where people have the right to go for work, 
 business, or pleasure. McLaughlin v. Louis- 
 ville Electric Light Co. 100 Ky. 173, 37 S. 
 W. 851, 34: 812 
 
 30. The fact that a telephone company 
 may have strung its wires above those of 
 an electric light company already in po- 
 sition, without taking any steps to guard 
 against the coining in contact of the wires 
 of the two companies at the crossing points, 
 and that in stringing its wires it did so, so 
 negligently and loosely that one of them 
 fell, in a storm, upon an uninsulated wire 
 below, causing it to burn and fall on the 
 street, is no excuse to the electric light 
 company for not having performed its duty 
 to keep its own wires properly insulated, 
 and to take special precautions to guard 
 against the increased danger caused by the 
 telephone wires being strung above them. 
 Hebert v. Lake Charles Ice L. & W. Co. Ill 
 La. 522, 35 So. 731, 64: 101 
 Guard wires. 
 
 Mandamus to Compel Duty as to, see Man- 
 damus, 115. 
 
 Question for Jury as to, see Trial, 467. 
 See also supra. 30: infra, 52. 53. 
 For Editorial Notes, see infra, IV. 3. 
 
 31. An electric railway company main- 
 taining a trolley wire charged with a dan- 
 gerous current without guard wires between 
 it and an insecure telephone wire over it, 
 and negligently permitting the telephone 
 wire to remain suspended over the trolley 
 wire after it has fallen upon it, cannot es- 
 cape liability by showing how other trolley 
 wires are erected and maintained by pru- 
 dent and well-managed electric railway 
 companies. McKay v. Southern Bell Teleph. 
 & Teleg. Co. Ill Ala. 337. 1!> So. 695. 31: 589 
 
 32. The lack of guard wires between trol- 
 ley wires and telephone wires will render a 
 trolley company liable for injury to a per- 
 son in a street by contact with a broken 
 Me'ihone wire lying across the trolley wire, 
 if the omission of the guard wires was 
 negligent and was also the proximate cause
 
 ELECTRICITY, III. a. 
 
 1121 
 
 of the injury. Block v. Milwaukee Street 
 R. Co. 89 Wis. 371, 61 X. W. 1101, 27: 365 
 
 33. An ordinance requiring guard wires 
 for electric wires "whenever it shall be 
 necessary to cross" other electric wires, ap- 
 plies to crossing wires already erected, since 
 n provides a remedy for an existing evil. 
 State ex rel. Wisconsin Teleph. Co. v. Janes - 
 ville Street R. Co. 87 Wis. 72. 57 >.'. W. 
 970, 22: 759 
 
 34. An electric railroad company using 
 strong currents of electricity on wires which 
 are not insulated, which directly cross tele- 
 phone wires which are insulated, may be 
 compelled to place guard wires where they 
 will prevent the contact of the, telephone 
 and railway wires in case of the* breaking 
 of poles or the falling of wires on account 
 (it storms or otherwise, especially where 
 there is an ordinance requiring such guard 
 Avires. which the telephone company has 
 complied with. Id. 
 Injury by wires in streets. 
 
 Presumption as to Negligence, see Evidence, 
 
 217. 519-525. 
 Evidence of Negligence, see Evidence. 1888, 
 
 2265. 
 Proximate Cause of Injury, see Proximate 
 
 Cause, 56. 
 
 Question for Jury as to, see Trial. 127, 353. 
 Instructions as to, see Trial, 834-837. 
 See also supra, 31-34; infra, 51-53. 
 Kor Kditorial Notes, see infra, IV. 3. 
 
 3.">. The care exercised to prevent the es- 
 cape of a dangerous current of electricity 
 from wires suspended over streets in popu- 
 lous cities or towns must be commensurate 
 "with the great danger that exists, although 
 1 he owners of such wires are not insurers 
 against accidents. City Electric Street R. 
 Co. v. Conery, 61 Ark. 381, 33 S. W. 426, 
 
 31: 570 
 
 36. A grant of the privilege to encumber 
 the public highway with poles and electric 
 wires which, though insulated, carry a 
 deadly current, imposes upon those having 
 'such privilege the duty of so managing af- 
 fairs as not to injure persons lawfully on 
 the streets, and of making the street sub- 
 stantially as safe for them as it was be- 
 fore. Western U. Teleg. Co. v. State use of 
 Nelson. 82 Md. 293, 33 Atl. 763, 31: 572 
 
 37. Maintaining an uninsulated wire 
 heavily charged with electricity upon a reel 
 fastened to an electric light pole in a street, 
 so near the ground as to be within easy 
 reach of a pedestrian, is a gross neglect of 
 duty to the public. Suburban Electric Co. 
 v. Nugent (N. J. Err. & App.) 58 N. J. L. 
 658, 34 Atl. 1069, 32: 700 
 
 38. A wire of an electrical company, de- 
 tached from the poles and lying in the 
 streets of a town, is out of place, and those 
 having control of it and charged with tho 
 legal duty of taking dtie care of it have 
 the burden of accounting for its being found 
 in that condition and situation, and to show 
 that it was not due to its negligence. 
 Hebert v. Lake Charles Tee. L. & W. Co. Ill 
 T,a. .V22. 35 So. 731. 64: 101 
 
 39. An elect vie light company is not re- 
 lieved from liability for injuries by wires 
 
 1..R A. Dig. 71. 
 
 i broken by a storm, unless it was one which 
 could not reasonably have been anticipated. 
 Boyd v. Portland General Electric Co. 40 Or. 
 120, 66 Pac. 576, 57: 619 
 
 40. The breaking of a live electric wire 
 which falls to the ground and causes the 
 death of a person touching it does not ren- 
 der the owner liable, if it was due entirely 
 to accident which no reasonable human care 
 could prevent. Snyder v. Wheeling Elec- 
 trical Co. 43 W. Va. 661, 28 S. E. 733, 
 
 39:499 
 
 41. A telephone company which, instead 
 of removing its wire on taking it out of a 
 residence, leaves it hanging upon an elec- 
 tric light company's pole, is bound to look 
 after it, and is liable for an injury to a 
 traveler who comes in contact with it after 
 it has been removed by employees of the 
 electric light company and hung upon a 
 telephone pole, where he accidentally 
 touches it while it is charged by contact 
 with an electric light wire or a street rail- 
 way company's wire. Ahern v. Oregon 
 Teleph. & Teleg. Co. 24 Or. 276, 33 Pac. 
 403, 22: 635 
 
 42. It is negligence to allow a wire which, 
 from its environment, is liable to become 
 charged with electricity, to hang over a 
 street or sidewalk at such a height as to 
 obstruct and endanger ordinary travel. Id. 
 
 43. The escape of electricity from wires 
 suspended over streets, through any other 
 wires that may come in contact with them, 
 must be prevented so far as it can be done 
 by the exercise of reasonable care and dili- 
 gence. City Electric Street R. Co. v. Con- 
 ery, 61 Ark. 381, 33 S. W. 426, 31: 570 
 
 44. Injury caused by electricity generated 
 by a thunder storm in a telephone wire 
 which is negligently allowed to hang across 
 a highway so low that a traveler comes in 
 contact with it in the dark renders the tele- 
 phone company liable, as the wire furnished 
 the means by which the dangerous force 
 was communicated and the injury caused. 
 Southwestern Teleg. & Teleph. Co. v. Robin- 
 son. 50 Fed. 810, 1 C. C. A. 684, 2 U. S. App. 
 205. 16: 545 
 Wires on buildings. 
 
 See also infra, 69. 
 
 For Editorial Notes, see infra, IV. 3. 
 
 45. Placing electric light wires over the 
 metallic roof of a hotel, where persons may 
 come in contact with them, without raising 
 them high enough to prevent such contact, 
 is sufficient proof of negligence in case of 
 injury to a person by an electric shock 
 from such wires. Giraudi v. Electric Im- 
 prov. Co. 107 Cal. 120, 40 Pac. 108, 28: 590 
 
 46. An electric light company allowing 
 its standard for the support of wires on the 
 roof of a building to be used by a telegraph 
 and telephone company for its wires also, 
 does not thereby assume any duty to em- 
 ployees of the latter company in respect to 
 the safe insulation of the electric liyht wires 
 over the roof of an adjoining building to 
 which no wires of any kind are attached, 
 and on which they have no right to go by 
 reason of permission to use the standard on 
 the former buildin. Hector v. Boston
 
 1122 
 
 ELECTRICITY, III. a. 
 
 Electric Light Co. 161 Mass. 558, 37 N. E. 
 773, 25: 554 
 
 47. Attaching a telephone wire to a flag- 
 staff on a barn, without the owner's con- 
 sent or knowledge, and leaving it connected 
 only with a pole on another building, ren- 
 ders one liable for the burning of the barn 
 by lightning conveyed by the wire from 
 the pole on the other building. Jackson v. 
 Wisconsin Teleph. Co. 88 Wis. 243, 60 N. 
 W. 430, 26: 101 
 
 48. That a stroke of lightning is an act 
 of God does not relieve a person from lia- 
 bility for the burning of a building by light- 
 ning conveyed thereto over a wire by which 
 he has negligently, and without the owner's 
 knowledge or consent, connected it with a 
 flagstaff on another building. Id. 
 
 49. A telephone company having reason- 
 able grounds to apprehend that lightning 
 will be conducted over its wires into a house 
 where it maintains an instrument under 
 contract with a subscriber, and there do in- 
 jury to persons or property, must exercise 
 due care in selecting, placing, and maintain- 
 ing, in connection with its wires and in- 
 struments, such known and approved appn- 
 aces as are reasonably necessary to guard 
 against such accidents. Griffith v. New 
 England Teleph. & Teleg. Co. 72 Vt. 441, 48 
 Atl. 643, 52: 919 
 Municipal liability. 
 
 For Editorial Notes, see infra, IV. 3. 
 
 50. The liability of a city for neglect of 
 its duty to exercise care and supervision 
 over electric wires suspended over its streets 
 is not lessened by the fact that individuals 
 or corporations are subjected to a like duty 
 and liability. Mooney v. Luzerne, 186 Pa. 
 161, 40 Atl. 311, 40: 811 
 
 51. A telegraph wire across a highway, 
 hanging so low as to cause an injury to a 
 traveler, is a defect for which the town is 
 liable, if it had, or ought to have had, 
 notice thereof. Hayes v. Hyde Park, 153 
 Mass. 514, 27 N. E. 522, 12:249 
 Joint liability. 
 
 For Editorial Notes, see infra, IV. 3. 
 
 52. A telephone company and an electric 
 railway company are jointly liable for neg- 
 ligence when both maintain their wires with 
 knowledge of the danger caused by the want 
 of guard wires between the trolley wire and 
 a telephone wire insecurely suspended over 
 it, and especially when they permit a bro- 
 ken telephone wire to remain suspended 
 across the trolley wire. McKay v. Southern 
 Bell Teleph. & Teleg. Co. Ill Ala. 337. 19 
 So. 695, 31: 589 
 
 53. A telephone company is not excused 
 for negligence in the maintenance of a wire 
 insecurely fastened above a dangerous trol- 
 ley wire, beca-use' the railroad company was 
 chargeable with the duty of maintaining 
 uuard wires between the electric wires, and 
 failed to do so. . Id. 
 Injury to licensees or employees. 
 Delegation of Duty as to Safe Condition, 
 
 see Master and Servant, 446. 
 See also supra, 26. 46; infra, 67; Master 
 
 and Servant, 103, 143. 
 For Editorial Notes, see infra, IV. 3. 
 
 54. Reasonable care to keep electric wirese- 
 in a safe condition is due by an electric light 
 company to persons expressly or impliedly 
 licensed to approach them in performing 
 their duties with reference to other electric 
 wires attached to structures of the electric 
 light company. Illingsworth v. Boston 
 Electric Light Co. 161 Mass. 583, 37 N. E. 
 778, 25:552 
 
 55. Reasonable care and caution in the 
 use of an electric current by a street rail- 
 way company is required for the safety of 
 the employees of an electric light company 
 which is engaged by the railway company 
 to move electric lamps during the operation 
 of the railway. Huber v. La Crosse City R. 
 Co. 92 Wis. 636, 66 N. W. 708, 31: 583 
 
 56. A corporation employing a wire 
 charged with a powerful and dangerous cur- 
 rent of electricity, which by contact with 
 the wires of other corporations ' may cause 
 injury or death to employees of the latter., 
 is charged with the duty of observing at 
 least ordinary diligence, not only to prevent 
 such contact, but also to discover and pre- 
 vent its continuance, even when occasioned 
 by the negligence of others, including that 
 corporation whose employees are thus ex- 
 posed to danger. Atlanta Consol. Street 
 R. Co. v. Owings, 97 Ga. 663, 25 S. E. 377, 
 
 33: 798 
 
 57. The coiling of a trolley wire over a 
 span wire pending continuation of the line,, 
 thereby charging the span wire with elec- 
 tricity, is not negligence which will render 
 the street railway company liable to an ex- 
 perienced workman familiar with such wires- 
 and their insulation, who is injured by con- 
 tact with the span wire while standing on 
 a wooden pole moving electric lamps, where 
 the span wire had circuit breaks to prevent 
 its charging the iron posts which sustained 
 it, and injury from it could be sustained 
 only by one who completed the circuit be- 
 tween it and the iron posts by touching 
 them both at the same time. Huber v. La 
 Crosse City R. Co. 92 Wis. 636, 66 N. W. 
 708, , 31:583 
 
 58. A master who carries on an imminent- 
 ly dangerous undertaking such as the 
 generation and distribution of electricity- 
 is bound to know the character and extent 
 of the danger, and to notify the same to the 
 servant specially and unequivocally, so as 
 to be clearly understood by him. Myhan v. 
 Louisiana Electric Light & P. Co. 41 La. 
 Ann. 964, 6 So. 799, 7: 172- 
 
 59. An electric light company, knowing 
 that employees of an independent con- 
 tractor engaged upon work for it are to be 
 employed upon a staging in close proximity 
 to defectively insulated wires which some- 
 times carry a dangerous current, is bound 
 to use at least ordinary care to protect them- 
 from, harm which may result therefrom, 
 since it owes them the same duty which it 
 owes to those who eome upon the property 
 by its invitation. Stevens v. United Gas & 
 Electric Co. 73 N. II. 159, 60 Atl. 848, 
 
 70: 1 19- 
 60. An electric light company cannot es- 
 cape liability for injuries to employees of""
 
 ELECTRICITY, III. b. 
 
 1123 
 
 an independent contractor doing work for it 
 because of contact with defectively insulat- 
 ed wires carrying a dangerous current, 
 merely because the work could be done 
 without exposing them to such danger, 
 where such exposure might reasonably have 
 been apprehended from the usual method of 
 doing the work contracted for. Id. 
 
 01. The fact that an independent con- 
 tractor engaged upon work for an electric 
 lighting company erects a staging so near 
 to defectively insulated wires as to be dan- 
 gerous to employees does not absolve the 
 company owning the wires from the duty 
 of exercising care to prevent the employees 
 from being harmed thereby. Id. 
 
 62. That an employee working upon a 
 staging in dangerous proximity to defective- 
 ly insulated wires carrying a dangerous cur- 
 rent came in contact with the wires as the 
 result of a fall not due to the fault of the 
 one maintaining them, does not render the 
 fall an independent cause of accident, so as 
 to relieve the latter from liability, if acci- 
 dents of that character were reasonably to 
 be apprehended from the situation the men 
 were in, and the character of work they 
 were doing. Id. 
 
 63. An employer knowing of the defect- 
 ive insulation of a crane operated by an 
 electric motor, whereby there is a leakage 
 of electricity from the motor to the hauling 
 chain, although the current used is not dan- 
 gerous, must be held liable for negligence 
 in permitting employees to use the crane 
 in that condition, when an employee is in- 
 jured in consequence thereof by a danger- 
 ous current of electricity communicated to 
 the chain by reason of some contact, out- 
 side the employer's premises, of the wire 
 used for the motor and some other ware 
 carrying a dangerous current. Moran v. 
 Corliss Steam Engine Co. 21 R. I. 386, 43 
 Atl. 874, 45: 267 
 
 64. Failure of a master to take pre- 
 cautions to prevent electric wires in process 
 of being strung on telephone poles from 
 reels from coming in contact with a trolley- 
 feed wire charged with a powerful current, 
 or to supply his employees with rubber 
 gloves or other devices to prevent the com- 
 munication to them of a serious shock in 
 case the wires become charged, renders him 
 liable for injury to employees attending 
 the reels who receive a severe shock by 
 reason of one or more of the telephone wires 
 coming in contact with the trolley- feed wire 
 because of .their sagging or breaking. Burns 
 v. Delaware & A. Teleg. & Teleph. Co. (N. J. 
 Err. & App.) 70 N. J. L. 745, 59 Atl. 220, 
 592, 67:956 
 
 65. That an independent contractor en- 
 gaged in work for an electric company 
 knows of the hidden danger of defectively 
 insulated wires with which the employees 
 are likely to come in contact does not ab- 
 solve the company owning the wires from 
 tJie duty of using care to protect the em- 
 ployees from such danger, since the duty to 
 have the premises safe is nondelegable. 
 Stevens v. United Gas & Electric Co. 73 N. 
 H. 159, CO Atl. 848, 70: 119 
 
 Injury to trespassers. 
 
 66. An electric light company is not bound 
 to keep the insulation of its wires upon a 
 pole in good condition as against a bare vol- 
 unteer or mere trespasser who intrudes up- 
 on such pole. Newark Electric Light & P. 
 Co. v. Garden, 23 C. C. A. 649, 39 U. S. 
 App. 416, 78 Fed. 74, 37 : 725 
 
 67. An employee of a railroad company 
 rightfully maintaining wires upon a pole 
 owned by a telegraph company and also 
 used by a telephone company and an elec- 
 tric light company is not, while engaged dn 
 transferring wires of the railroad company 
 to other poles, a trespasser in setting his 
 foot upon a cross-arm bearing the electric 
 light wires, so as to relieve the electric 
 light company from liability for his death 
 occasioned by the imperfect insulation of 
 its wires. Id. 
 
 68. A telephone company which negligent- 
 ly stretches a wire over the roof of a store 
 porch without adequate insulation owes no 
 duty to a passerby who takes refuge under 
 the roof from a rain storm; hence it is not 
 liable for Ms death in case lightning is con- 
 ducted by the wire to the roof, and kills 
 him in reaching the ground. Cumberland 
 Teleg. & Teleph. Co. v. Martin, 116 Ky. 554, 
 7(5 S. W. 394, 63:469 
 
 69. Failure to insulate electric light wires 
 extending across a street, at and above the 
 point where they were fastened to a wood- 
 en awning 16 feet above the level of the 
 street, does not render the electric light 
 company liable for the death of a person 
 by contact therewith while upon the awn- 
 ing for the purpose of raising the wires to 
 permit the passage thereunder of a house 
 which he was engaged in moving, where 
 the awning was not used as a place of re- 
 sort, and it could not reasonably have been 
 expected that anyone would ever be upon it, 
 and the height at which the wires were 
 strung precluded the possibility of any 
 traveler upon the street coming in contact 
 with them. Brush Electric Light & P. Co. 
 v. Lefevre, 93. Tex. 604, 57 S. W. 640, 
 
 49: 771 
 
 Testing wires. 
 See also infra, 84. 
 
 70. A telephone company may require its 
 lineman to inspect and test for himself the 
 guy wires or circuit breakers of an electric 
 railroad company, which uses the same poles 
 that are used by the telephone company 
 when it furnishes him with suitable appli- 
 ances for that purpose, and he knows that 
 there are no other persons employed to do 
 such testing. Bergin v. Southern New Eng- 
 land Teleph. Co. 70 Conn. 54, 38 Atl. 888, 
 
 39: 192 
 
 b. Contributory Negligence of Person In- 
 jured. 
 
 Of Passenger on Electric Car, see Carriers, 
 
 316. 
 
 Presumption as to, see Evidence, 597. 
 Question for Jury as to, see Trial, 474-479. 
 See also supra, 57. 
 For Editorial Notes, see infra, IV. 3.
 
 1124 
 
 ELECTRICITY, IV. 
 
 71. A presumption that the public know 
 enough of the nature of electricity to avoid 
 the danger is not created by the mere fact 
 that some persons use that agency. Girau- 
 di v. Electric Improv. Co. 107 Cal. 120, 40 
 Pac. 108, 28: 596 
 
 72. A person whose occupation brings him 
 in proximity to the wires of an electric 
 lighting company has a right to believe that 
 the wires have been insulated as required 
 by an ordinance. Clements v. Louisiana 
 Electric Light Co. 44 La. Ann. 692, 11 So. 
 51, 16: 43 
 
 73. The apparent perfect insulation of 
 electric wires, which is calculated to deceive 
 and to cause one unfamiliar with the facts 
 to suppose them safe, when the wires are 
 placed where persons in the performance of 
 their duties may come in contact with them, 
 amounts to an invitation to them to risk 
 contact therewith. Perhani v. Portland 
 General Elec. Co. 33 Or. 451. 53 Pac. 14, 
 
 40: 799 
 
 74. A workman engaged in repairing a 
 bridge over which electric wires with an ap- 
 parently safe insulation are strung, where 
 he must come in contact with them in per- 
 forming his work, has a right to assume 
 that contact with them will not be danger- 
 ous, especially after the workmen have 
 made an examination of them and ascer- 
 tained, as they suppose, that the wires are 
 not dangerous. Id. 
 In street. 
 
 75. A boy ten years old is not chargeable 
 with contributory negligence in touching a 
 loose guy \vire hanging from a pole on or 
 near a sidewalk carrying electric wires, and 
 which is in fact charged with a deadly cur- 
 rent by connection with the feed wire of a 
 street railway company. Haynes v. Raleigh 
 Gas Co. 114 N. C. 203, 19 S. E. 344, 26: 810 
 
 76. A traveler on a highway who stoops 
 to pick up and throw out of the way a 
 loose telephone wire which is hanging so as 
 to endanger travelers is not, as matter of 
 law, guilty of such negligence as to prevent 
 him from "recovering against the city for the 
 injury received from the wire, which is 
 charged with electricity, on the ground that 
 it is a defect in the highway. Bourget v. 
 Cambridge, 156 Mass. 391, 31 X. E. 390, 
 
 16: 605 
 On building. 
 
 Question for Jury as to, see Trial, 477. 
 For Editorial- Notes, see infra, IV. 3. 
 
 77. A person going on a roof to repair it, 
 where an electric liglit wire is stretched at 
 such a height that the chances are that he 
 will come in contact with it by going imder 
 it or by stepping over it, is not negligent 
 in attempting to pass in either manner, if 
 he exercises all necessary and prudent care 
 in proportion to the danger. Clements v. 
 Louisiana Electric Light Co. 44 La. Ann. 
 092, 11 So. 5L 16: 43 
 
 78. One who is ignorant of the danger 
 that may result from contact with electric 
 light wires over the roof of a building in 
 which he is employed is not required to 
 exercise the same degree of care that would 
 
 be required if he knew the danger. Giraudi 
 v. Electric Improv. Co. 107 Cal. 120, 40 Pac. 
 108, 28: 596 
 
 79. Touching an electric light wire is not 
 negligence as a matter of law, when touched 
 by a tinsmith on the outside of a building, 
 who does not know that an electric light 
 wire would do any hurt, or that such wires 
 run on the outside of buildings. Griffin v. 
 United Electric Light Co. 164 Mass. 492,' 41 
 N. E. 675, 32: 400 
 
 80. A man who comes in contact with an 
 electric light wire on the side of a building 
 while climbing out of a window upon a cor- 
 nice while at work painting the building is 
 not guilty of contributory negligence, unless 
 in so doing he fails to exercise the degree of 
 care which ordinarily careful and prudent 
 persons usually exercise under such circum- 
 stances. Mclaughlin v. Louisville Electric 
 Light Co. 100 Ky. 173, 37 S. W. 851, 34: 812 
 
 81. The apparently proper insulation of 
 electric light wires on the side of a building 
 is an invitation or inducement to persons 
 painting the building to risk the conse- 
 quences of contact with them, especially 
 in the middle of the day. Id. 
 Telephone lineman. 
 
 In Attempting to Rescue Companion, sea 
 
 Negligence, 238. 
 Question for Jury as to, see Trial, 478. 
 
 82. An employee of a telephone company 
 in attempting to string wires over those of 
 an electric light company has a right to 
 presume that the latter company has com- 
 plied with an ordinance requiring its wires 
 to be insulated, and is bound to look for 
 patent defects only. Mitchell v. Raleigh 
 Electric Co. 129 N. 'C. 166, 39 S. E. 801. 
 
 55: 398 
 
 83. The right of a telephone lineman to 
 assume that an electric railroad company 
 has used suitable and safe appliances to 
 prevent the escape of electricity from its 
 main or trolley wire to the guy wires does 
 not excuse him from exercising proper care 
 to prevent injury, when he knows as a fact 
 that the wires are not safe. Bergin v. 
 Southern New England Teleph. Co. 70 Conn. 
 54, 38 Atl. 888, 39: 192 
 
 84. A telephone company's Mneman who 
 is injured by contact with a span wire 
 charged with electricity by a trolley wire, 
 an insulator of which was broken, is charge- 
 able with negligence which will preclude 
 his recovery of damages, where he failed to 
 test the insulator although he had appa- 
 ratus by which he could do it and knew 
 that there was no inspector, other than the 
 linemen, to make such tests. Anderson v. 
 Inland Teleph. & Teleg. Co. 19 Wash. 575, 
 53 Pao. 657. 41: 410 
 
 IV. Editorial Notes. 
 
 i. Rights in street; franchise. 
 
 Privilege of using street for electric light 
 poles and wires as a con- 
 tract within provision 
 against impairing obliga- 
 tion. 50: 147.
 
 ELECTRICITY, IV. (Ed. Notes); ELECTRIC LIGHTS. 
 
 1125 
 
 Grant of franchise to electrical subway 
 company. 34: 369. 
 
 Wires as additional servitude in highway. 
 10: 4!>7. 
 
 Poles as an additional burden on highway. 
 24: 721. 
 
 Telegraph and telephone poles and wires in 
 street as additional bur- 
 uen on easement. 17: 480. 
 
 2. Control; regulation. 
 
 Police regulation of electric companies. 31: 
 
 798. 
 
 In general. 31 : 798. 
 As to the occupation of highways or 
 
 waters. 31: 799. 
 As to guard wires. 31:802. 
 As to the operation of electric lines. 
 31 : 802. 
 
 Municipal control over public nuisances up- 
 on streets and highways 
 created by electrical com- 
 panies. 39: 609. 
 
 Electrical wires as a nuisance under munici- 
 pal control. 38: 306; 39: 
 621. 
 
 Injunction by municipality against tele- 
 graph and telephone poles. 
 44: 577. 
 
 Power of state or city to charge for poles 
 and wires of telegraph or 
 telephone company en- 
 gaged in interstate busi- 
 ness. 24 > 163. 
 
 Power to compel telegraph company en- 
 gaged in interstate busi- 
 ness to place wires under 
 ground. 24: 165. 
 
 3. Duty and liability. 
 
 Negligence as to electric wires on or in 
 
 buildings. 32 : 400. 
 In general. 32 : 400. 
 Wires on roofs. 32:401. 
 Contributory negligence. 32: 403. 
 
 Liability for injuries by electric wires in 
 highways. 31: 566. 
 
 General rules. 31: 56C. 
 
 Danger of current. 31: 567. 
 
 Degree of care. 31 : 568. 
 
 Liability for broken, fallen, or sagging 
 
 wires. 31: 573. 
 Liability of owner. 31 : 573. 
 Presumption of negligence as to broken 
 or fallen wires. 31: 576. 
 Liability of party breaking them. 31 : 
 
 578. - 
 
 Negligent delay in removing or repair- 
 ing them. 31 : 570. 
 Municipal liability. 31 : 581. 
 
 Failure to guard wires from falling wires 
 of 'other owners. 31: 582. 
 
 Concurrent liability. :>1 : 586. 
 
 Wires charged by liirhtnini*. 31 : 5SS. 
 
 Contributory negligence. 31:5S!t. 
 
 Liability of electric company to pinployee 
 for injury caused by elec- 
 tric shock. 32: 351. 
 
 ELECTRIC LIGHTS. 
 
 Contract for, see Contracts. 700. 
 Review of Legislative Decision as to Neces- 
 sity of, see Courts. 265. 
 
 Stipulated Damages for Delay in Complet- 
 ing Plant, see Damages, 180. 
 
 Ejectment against One Occupying Street 
 with Poles for, see Ejectment, 33. 
 
 Uses and Dangers of Electricity, see Elec- 
 tricity. 
 
 Conflicting Rights of Companies, see Elec- 
 tricity, 10. 
 
 Condemnation of Right of Way for Line to 
 ^upply, see Eminent Domain, 97. 
 
 Condemnation of Right of Way for Carry- 
 ing Water to Operate Plant, see Emi- 
 nent Domain, 141. 
 
 Poles for, as Additional Servitude, see Emi- 
 nent Domain, 403. 
 
 Judicial Notice as to Authority to Locate 
 Lights, see Evidence, 156. 
 
 Fraud in Sale of Plant, see Fraud and De- 
 ceit, 48. 
 
 Alnitter's Right of Action for Trimming 
 Trees in Installing Plant, see High- 
 ways, 187. 
 
 Poles and Wires for, in Highway, see Emi- 
 nent Domain, 232; Highways, 83-87. 
 
 Injury to Pedestrian by Breaking of Globe, 
 see Highways, 219; Proximate Cause, 
 128. 
 
 Compelling Removal of Poles, see Injunc- 
 tion, 51. 
 
 Injunction against Other Company, see In- 
 junction, 226. 
 
 Lien on Poles, see Mechanics' Liens, 74. 
 
 Power of City as to. Generally, see Munici- 
 pal Corporations, II. f, 1. 
 
 Power to Take Bond from Company, see 
 Municipal Corporations, 64. 
 
 Municipal License for, see Municipal Cor- 
 porations, 133. 
 
 Incurring City Debt for, see Municipal Cor- 
 porations, 326, 328, 333, 351. 
 
 Plant for, as Nuisance, see Nuisances, 74. 
 
 Title of Statute as to, see Statutes, 202. 
 
 Tax on, see Taxes, 110-112, 205, 257-259; 
 Telegraphs, 11. 
 
 1. The negligent breaking of the wires of 
 an electric light company, by which light 
 and power are supplied under contract to 
 the plant of a third person, who is thereby 
 left for several hours without the means of 
 conducting his business, does not render the 
 wrongdoer liable for the resulting damages 
 to such third person, although the latter is 
 precluded, by the terms of his contract 
 with the electric light company, from re- 
 covering from it for damages occasioned 
 by an accidental interruption of the cur- 
 rent. Byrd v. English. 117 Ga. 191, 43 S. E. 
 419, 64: 94 
 Exclusiveness of franchise. 
 
 Impairment of Contract for, see Constitu- 
 tional Law, 1175. 
 
 Injunction against Grant of Franchise to 
 Other Company, see Injunction, 311. 
 
 2. No power to grant an exclusive privi- 
 lege to an electric lieht company to supply 
 a city and its inhabitants with lisrht is 
 given by W. Va. Code 1868, p. 329, granting 
 to municipalities the power to control 
 streets and light the same; and such an 
 exclusive franchise is ultra fires and void. 
 Clarksburg Electric Lirht Co. v. Clarksbur'r, 
 47 W. Va. 739, 35 S. E. 994, 50: 142
 
 1126 
 
 ELECTRIC RAILWAYS ; ELECTRIC SUBWAY. 
 
 3. The Pennsylvania corporation act of 
 April 29, 1874. in so far as it purports to 
 confer exclusive privileges within the dis- 
 trict or locality covered by a charter for 
 the supply of water, light, or heat, does not 
 apply to electric light companies. Scranton 
 Electric Light & H. Co.'s Appeal, 122 Pa. 
 154, 15 Atl. 446, 1 : 285 
 
 4. A statute forbidding any other elec- 
 tric light company to ''lay or erect wires" 
 for the purpose of carrying on its business, 
 over or under any street, without consent 
 of the authorities in any city or town in 
 which a company ia already engaged in 
 furnishing electric light, impliedly forbids 
 the maintenance or use, as well as the lay- 
 ing or erection, of such wires in streets; 
 and the prohibition extends to wires in a 
 street which were lawfully laid by a prede- 
 cessor of the company, and to those laid by 
 a company and sold to its customers, as 
 well as to those which were laid and owned 
 by the customers themselves, where these 
 are mere devices to evade the statute, and 
 the wires outside of the street lines are 
 owned by the company. Attorney General 
 ex rel. Gas & E. L. Comrs. v. Walworth 
 Light & P. Co. 157 Mass. 86, 31 N. E. 482, 
 
 16:398 
 Use of poles. 
 
 5. A resolution giving the owner of an 
 electric light plant, who has a contract to 
 light the streets, the right to use, so far as 
 necessary for his wires, the poles of an elec- 
 tric light company which is already using 
 them for such wires, on paying part of the 
 cost of the poles, is unreasonable and in- 
 valid, where no limit of the use is pre- 
 scribed, and no regulation of the manner of 
 the joint use, such as will prevent danger 
 to lives and property. Citizens Electric 
 Light & P. Co. v. Sands, 95 Mich. 551. 55 N. 
 W. 452, 20: 411 
 Location of poles. 
 
 6. Where the provisions of a statute per- 
 mitting the erection of telegraph poles along 
 and upon the public highways, and directing 
 the proper authorities to designate the 
 places where the poles may be located, are 
 by another statute made to apply, "so far 
 as applicable." to electric light companies, 
 the statute, although requiring an imper- 
 ative construction as to the duty of the 
 authorities to designate places for the poles 
 in the case of telegraph companies, should 
 not receive such construction when applied to 
 electric light companies, since the latter are 
 of local interest merely, while in the former 
 case a refusal on the part of the authorities 
 might defeat the business of the company 
 in a large tract of territory. Suburban 
 Light & P. Co. v. Boston. 153 Mass. 200, 
 26 X. E. 447. 10: 497 
 Compulsory service. 
 
 7. The property of an electric light com- 
 pany is so far devoted to a public use when 
 the company is engaged in furnishing light 
 for the streets and inhabitants of a munici- 
 pality that it is bound to furnish light im- 
 partially to all applicants at a reasonable 
 price. Cincinnati. H. & I). R. Co. v. Bowline 
 Green, 57 Ohio St. 33(J, 49 X. E. 121, 41 : 422 
 
 8. An electric light company cannot make 
 payment for a transformer a condition to 
 furnishing electricity to one whose building 
 is wired by a third person, where it fur- 
 nishes transformers free of charge for build- 
 ings wired by itself, although it considers 
 that the profits from the wiring justify 
 furnishing transformers without extra 
 charge. Snell v. Clinton Electric Light, H. 
 & P. Co. 196 111. 626, 63 N. E. 1082, 58: 284 
 
 Editorial Notes. 
 
 Power of city to own plant and manufac- 
 ture. 10: 194;' 14:268. 
 
 ELECTRIC RAILWAYS. 
 
 As Carriers, see Carriers. 
 
 Uses and Dangers of Electricity, see Elec- 
 tricity. 
 
 As Elevated Railroad, see Elevated Rail- 
 roads, 3. 
 
 Right of Abutting Owner to Compensation 
 for Injury by Operation of, see Eminent 
 Domain, 372, 373. 
 
 Judicial Notice as to, see Evidence, 98. 
 
 Presumption as to Negligence of, see Evi- 
 dence, 524, 525. 
 
 As Additional Servitude, see Eminent Do- 
 main, 440-453. 
 
 Poles for, in Str^t, see Highways, 88. 
 
 Injunction against Construction over Coun- 
 try Road, see Injunction, 405. 
 
 As Railroads, see Corporations, 533. 
 
 As Trunk Railway, see Railroads, 1, 2. 
 
 Crossing Street Railroad, see Railroads, 209. 
 
 Repeal of Statute as to Crossing of Rail- 
 road, see Statutes, 582. 
 
 Rights in Streets, see Street Railways, 8. 
 
 As Street Railway, see Street Railways, 2, 
 17. 
 
 Duty to Operate Cars, see Street Railways, 
 '59, 60. 
 
 Electricity as Motive Power of Street Rail- 
 way,' see Street Railways, 71-74, 76-78. 
 
 Operation of, see Street Railways, in. 
 
 Electric railways over country roads con^ 
 necting widely separated cities and towns, 
 cannot be built without consent of the 
 owners of the fee of such roads, notwith- 
 standing the consent of the town author- 
 ities has been given, under the general 
 street railway act of Pennsylvania of 1889, 
 authorizing corporations for the construc- 
 tion of street railways "on any street or 
 highway" on which no track is already laid 
 or authorized to be laid, but giving no right 
 of eminent domain, and providing that every 
 railway must have a continuous route form- 
 ing a complete circuit with its own track. 
 Pennsylvania R. Co. v. Montgomery Coiutty 
 Pass. R. Co. 167 Pa. 62, 31 Atl. 468, 27: 766 
 
 ELECTRIC SUBWAY. 
 
 See Subway, 4-7. 
 
 Editorial Notes. 
 
 Grant of franchises to electrical subway 
 companies. 34: 369
 
 ELECTROCUTION ELEVATORS. I. 
 
 1137 
 
 ELECTROCUTION. 
 
 Cruel and Unusual Punishment, see 
 Criminal Law, 210, 211. 
 
 ELECTROTYPE PLATES. 
 
 Contract for Use of, see Contracts, 344, 550, 
 
 646, 830. 
 Damages for Breach of Contract as to, see 
 
 Damages, 175. 
 
 Editorial Notes. 
 
 Right of purchaser to sell or use free from 
 restrictions affecting them 
 in hands of vendor. 55: 
 632. 
 
 ELEEMOSYNARY INSTITUTIONS. 
 
 Exemption of, see Taxes, I. f, 3. 
 rSee also Charitable Institutions; Charities. 
 
 ELEMENTS. 
 
 Editorial Notes. 
 'What constitutes damage by. 53: 673. 
 
 ELEVATED RAILROADS. 
 
 Right to Recover for Continuing Trespasses 
 by, see Action or Suit, 7. 
 
 -Single Recovery against by Abutting Owner, 
 see Action or Suit, 80. 
 
 Negligence as to Approaches, see Carriers, 
 532, 546. 
 
 Measure of Damages by Construction of, 
 see JJamages, III. 1, 4, 6. 
 
 Condemnation of Land for, see Eminent 
 Domain, 23, 186. 
 
 In Street, as a Taking of Property, see 
 Eminent Domain, 237, 238. 
 
 Compensation to Lessee of Abutting Prop- 
 erty, see Eminent Domain, 294-296. 
 
 -Consequential Damages by, to Abutting 
 Owner, see Eminent Domain, 340, 374- 
 376. 
 
 As Additional Servitude, see Eminent Do- 
 main, 454. 
 
 Estoppel as to, see Estoppel, 187, 188, 240. 
 
 Maintenance of, in Street, see Highways. 
 165-166. 
 
 Injunction against, see Injunction, 398-400. 
 
 Collusiveness of Decision as to, see Judg- 
 ment, 168, 230. , 
 
 Collusiveness of Finding as to Benefits to, 
 from Street Improvement, see Appeal 
 and Error, 820. 
 
 Assessment on, for Local Improvement, see 
 Public Improvements, 125-127. 
 
 ^Limitation of Action .for Compensation for 
 Construction of, see Limitation of Ac- 
 tions, 144, 145. 
 
 Ordinance as to Condemnation for, see Mu- 
 nicipal Corporations, 236. 
 
 Street Railways Generally, see Street Rail- 
 ways. 
 
 Maintenance of Telegraph Line along Struc- 
 ture of, see Telegraphs, 4. 
 
 Implied Trust as to Claim for Damages 
 against, see Trusts. 51. 
 
 1. An elevated railroad supported by 
 posts, with inclosed sides, is a "railway," 
 and not a "street railway," within the 
 meaning of Iowa Code, 464, allowing 
 municipal authorities to authorize or for- 
 bid the location of either in a street, but 
 providing for compensation where a railway 
 is laid thereon. Freiday v. Sioux City R. 
 T. Co. 92 Iowa, 191, 60 N. W. 656, 26: 246 
 
 2. An elevated railroad viaduct to run 
 through the center of the blocks and across 
 the streets in the city of New York is not 
 authorized by the general railroad act of 
 1850; and such a structure is expressly pro- 
 hibited by the New York act of 1860, 'which 
 forbids the building of any railroad "in, 
 around, or along any of the streets or ave- 
 nues of the city." Re People's Rapid Tran- 
 sit Co. 125 N. Y. 93, 26 N. E. 25, 10: 728 
 
 3. A statutory prohibition against an ele- 
 vated railroad in a city street, except under 
 special charter of the legislature, applies to 
 a portion of an electric railroad elevated 20 
 feet above the surface of the street, built 
 with vertical pillars or columns on which 
 rest longitudinal girders, with transverse 
 girders or crossbeams, all built of iron or 
 steel, although the elevation is only for the 
 purpose of overcoming engineering difficul- 
 ties, and is necessary to permit an extension 
 of the road to the center of the city. Koch 
 v. North Ave. R. Co. 75 Md. 222, 23 Ail. 
 463, 15: 377 
 
 Editorial Notes. 
 
 Right to construct in street. 15: 377. 
 Injury by, to abutting owner's easements. 
 
 14: 381; 15: 377. 
 Construction; appropriation of right of way. 
 
 8: 173.* 
 Liability for personal injuries. 8: 174.* 
 
 ELEVATORS. 
 
 I. Grain Elevators. 
 II. Freight and Passenger Elevators. 
 III. Editorial Notes. 
 
 I. Grain Elevators. 
 
 Power of State to Own, see Constitutional 
 
 Law, 301. 
 Discrimination against Railways in Taking 
 
 Land for. see Constitutional Law, 356. 
 Due Process in Regulation of Rates, see 
 
 Constitutional Law. 73S. 
 Power of State to Purchase Site for, and 
 
 Erect, see Constitutional Law, 957. 
 Power to Question Right of Corporation as 
 
 to, see Corporations. 192.
 
 1128 
 
 ELEVATORS, II. 
 
 Condemnation of Land for, see Eminent Do- 
 main, 59, 85, 86, 152. 
 Forgery of Elevator Receipt, see Forgery, 
 
 Fixtures to, see Fixtures, 22. 
 
 Negligence as to Railing of Platform for, 
 see Negligence, 80. 
 
 Construction of Statute as to, see Statutes, 
 476. 
 
 Subrogation to Rights against, see Subro- 
 gation, 3. 
 
 Uniformity in Taxing Grain in, see Taxes, 
 51. 
 
 Distress on, for Taxes, see Taxes, 504. 
 
 Certificate of Weight of Grain Delivered 
 from, see Weights. 
 
 On Wharf, see Eminent Domain, 394; 
 Wharves, 11, 12. 
 
 As to Warehousemen, see Warehousemen. 
 
 For Editorial Notes, see infra, III. 
 
 1. The words "actual cost," in N. Y. act 
 1888, chap. 581, 1, fixing a maximum 
 charge for elevating grain, which occur in 
 the clause providing that for trimming and 
 shoveling the grain to the leg of the ele- 
 vator vessels shall be charged only the 
 actual cost, are intended to confine the 
 charge for such service solely to the cost 
 of outside labor required, and prohibit the 
 making of any charge for machinery belong- 
 ing to the elevator above the sum specified 
 by the act as chargeable for the use of the 
 latter. People v. Budd, 117 N. Y. 1, 22 N. 
 E. 670, 5: 559 
 
 II. Freight and Passenger Elevators. 
 
 Easement of Use of, see Easements, 59. 
 
 Presumption of Negligence from Fall of 
 Elevator, see Evidence, 528. 
 
 Presumption as to Continuance of Safety 
 in Use of, see Evidence, 422. 
 
 Provision Releasing Landlord from Liabil- 
 ity, see Landlord and Tenant, 185. 
 
 In Court House, see Courts, 5. 
 
 Injury to Employee on, see Master and 
 Servant, 96-98, 494, 495, and also infra, 
 III. 
 
 Assumption of Risk as to, see Master and 
 Servant. 283. 364. 
 
 For Editorial Notes, see infra, III. 
 
 2. A lessor who is not in possession or 
 control of an elevator well in a leased build- 
 ing which the tenant has covenanted to keep 
 in repair is not liable for the death of a per- 
 son who falls therein while delivering goods 
 to the tenant on the latter's invitation, al- 
 though there was a dangerous defect con- 
 sisting of a large opening between the ele- 
 vator and the outer wall. Henson v. Beck- 
 with, 20 R. I. 165, 37 Atl. 702, 38: 71C 
 
 H. A lessor who covenants to keep an ele- 
 vator in repair and perfect condition for 
 the lessee's use, and retains general control 
 over it, is responsible to the lessee for its 
 defective condition, without any notice to 
 him of such defects. Olson v. Schultz, 07 
 Minn. 494, 70 N. W. 779, 30: 790 
 
 Injury to passengers on passenger elevators- 
 
 Contract Exempting Lessor from Liability,, 
 see Contracts, 315. 
 
 Presumption and Burden of Proof as to- 
 Negligence, see Evidence, 560-562. 
 
 Evidence as to Negligent Mode of Running 
 Elevator, see Evidence, 1763. 
 
 Evidence of Change in Safety Device After 
 Accident, see Evidence, 2240. 
 
 Evidence as to Newsboy's Right to Ride on,. 
 see Evidence, 1905. 
 
 Municipal Liability for Injury in, see Mu- 
 nicipal Corporations, 557-559. 
 
 Question for Jury as to, see Trial, 481. 
 
 See also Master and Servant, 648. 
 
 For Editorial Notes, see infra, III. 
 
 4. The owner of an elevator for carrying- 
 passengers from one floor of a building to- 
 another is governed by the rule applicable 
 in case of common carriers, which makes 
 him liable for injuries caused by the slight- 
 est negligence against which human pru- 
 dence and foresight might have guarded.. 
 Fox v. Philadelphia, 208 Pa. 127, 57 Atl. 
 356, 65: 214 
 
 5. The rule as to the degree of care re- 
 quired, and as to the onus of proof, in case 
 of injury from giving away of machinery,, 
 applicable between a common carrier of pas- 
 sengers and his passengers, is applicable as 
 between the owner and manager of a pas- 
 senger elevator and the passengers in it. 
 Goodsell v. Taylor, 41 Minn. 207, 42 N. W. 
 873, 4: 673: 
 Treadwell v. Whittier, 80 Cal. 574, 22 Pac. 
 266, 5: 498 
 
 6. Passenger elevators are within the rule 
 governing other carriers of passengers, 
 which requires the highest degree of care. 
 Mitchell v. Marker, 22 U. S. App. 325, 10 C, 
 C. A. 306, 62 Fed. 139, 25: 33 
 
 7. Reasonable opportunity must be given 
 a passenger on entering an elevator to ob- 
 tain a balance before a ra/pid and sudden 
 start of the elevator is made. Id. 
 
 8. Reasonable, and not the utmost, care 
 as to the safety of the machinery and 
 appliances by which a passenger elevator 
 is moved, is the measure of duty which its 
 owner owes to persons using it by his im- 
 plied invitation. Griffen v. Manice, 166 N. 
 Y. 188, 59 N. E. 925, 52: 922 
 
 9. The operators of passenger elevators 
 upon the grounds of public policy are re- 
 quired to exercise the highest degree of 
 care and diligence in and about the oper- 
 ation of such elevators to prevent injury to 
 passengers being carried thereon. Springer 
 v. Ford, 189 111. 430, 59 N. E. 953, 52: 930 
 
 10. A proprietor of an elevator for carry- 
 ing passengers is liable for all defects in 
 the elevator which can be seen at the time 
 of construction, as well as for such as may 
 afterwards exist and be discovered on in- 
 vestigation. Treadwell v. Whittier. 80 Cal. 
 574, 22 Pac. 266, 5 : 498 
 
 11. The proprietor of an elevator for 
 carrying passengers is bound to use all 
 reasonable means and efforts to furnish 
 <jood and well constructed machinerv adapt- 
 ed to the purpose of its use, and all reason- 
 able means and efforts to furnish or provide
 
 ELEVATORS, II. 
 
 112ft 
 
 it of good material which has been found 
 to be the safest in practical use. Id. 
 
 12. The proprietor of an elevator for 
 carrying passengers is not liable for an in- 
 jury caused by a defect or Haw in the pis- 
 ton-rods of the elevator apparatus, which 
 was not discoverable on a reasonable and 
 careful examination, according to the best- 
 known test reasonably practicable. Id. 
 
 13. The proprietor of an elevator run for 
 the use of the tenants of an office building 
 is a carrier of passengers for hire, the com- 
 pensation being the rental paid by the 
 tenant. Springer v. Ford, 189 111. 430, 59 
 X. E. 953, 52: 930 
 
 14. A newsboy who attempts to ride in a 
 passenger elevator after he has notice of the 
 rule that newsboys are not allowed to ride 
 in it, although they are permitted to enter 
 1 he building to ply their vocation, is a tres- 
 passer as to any use of the elevator, so as 
 to defeat his right to recover for injuries re- 
 ceived in such attempt. Springer v. Byram, 
 1S7 Ind. 15, 36 N. E. 361, ^:i: 244 
 
 15. The starting of an elevator by the 
 conductor while a passenger is in the act of 
 stepping out of it will not render the pro- 
 prietor liable for the resulting injury to the 
 passenger, if this was done by an involun- 
 tary act of the conductor in grasping the 
 mechanism to keep himself from falling as 
 he attempted to sit down, but found that 
 his chair was gone from its place. Gibson 
 v. International Trust Co. 177 Mass. 100, 58 
 X. E. 278, 52: 928 
 Passenger on freight elevator. 
 
 As to Right of Injured Person on Elevator, 
 
 see Evidence, 1743. 
 For Editorial Notes, see infra. 
 
 16. The liability of the owner of a freight 
 elevator to a passenger lawfully and right- 
 fully upon it is measured by the rules 
 applicable to owners of passenger elevators. 
 Springer v. Ford, 189 111. 430, 59 N. E. 953, 
 
 52: 930 
 
 Unguarded wells or shafts. 
 Sufficiency of Proof of Negligence as to, see 
 
 Evidence, 2244. 
 Proximate Cause of Injury by Falling into, 
 
 see Proximate Cause, 25, 26. 
 Question for Jury as to, see Trial, 480. 
 Sec also supra. 2; infra, 30. 
 For Editorial Notes, see infra, III. 
 
 17. The insufficiency of a railing to com- 
 ply with the statute requiring a substantial 
 railing at an elevator shaft will not render 
 the owner liable to a person who falls into 
 the shaft, not because the railing is -insuf- 
 ficient, but because it has been left out of 
 place, and the shaft left unguarded by the 
 negligence of a third person using the ele- 
 vator. "Malloy v. New fork Real Estate 
 Asso. 156 N. Y. 205. 50 N. E. 853. 41: 487 
 
 18. The protection of a freight elevator 
 shaft by the usual method of a railing is, 
 in the absence of direction by the superin- 
 tendent of buildings, sufficient compliance 
 with N. Y. consolidation act. 487, as 
 amended by Laws 1887, chap. 566, requiring 
 a substantial railing or trap doors, or loth, 
 as directed and approved by the superin- 
 tendent of buildings Id. 
 
 19. An ascending and descending cage of 
 an elevator is such an attraction to children 
 that an unguarded or open door, or one 
 which may readily be opened from the out- 
 side, may constitute negligence on the part 
 of the owner when children are allowed to 
 play where they may be in j urea by it. 
 Skidall v. Jansen, 108 111. 43, 48 N. E. 191, 
 
 39: 112 
 
 20. Failure to comply with the provisions 
 of an ordinance respecting the doors of ele- 
 vators will render the owner liable for an 
 injury received in consequence by a child 
 which was rightfully at the place of the 
 injury. Id. 
 
 21. Leaving open, unguarded, and unlight- 
 ed after dark the entrance from a street to 
 an elevator well, which is of the same gen- 
 eral appearance as the entrance to a hall 
 way leading into the building, from which 
 it is separated by a post only a foot wide, 
 will justify a jury in finding the owners of 
 the building, who have control of the ele- 
 vator, guilty of negligence, in an action 
 against them .for damages by one who falls 
 into the well while rightfully seeking to 
 enter the building, although his business is 
 with a tenant occupying another part of the 
 building. Gordon v. Cummings, 152 Mass. 
 513, 25 N. E. 978. 9: 640 
 
 22. One who maintains an elevator shaft 
 opening to a sidewalk on a city street, but 
 separated therefrom ' by a stone lintel 3 
 inches high and 18 inches thick, the opening 
 being 5 or 6 feet wide, is not liable for in- 
 juries to a passer-by who is pushed into 
 such shaft by reason of the backing up on 
 the sidewalk of a horse attached to a 
 wagon being unloaded in front of the prem- 
 ises. McTntire v. Roberts, 149 Mass. 450, 
 22 N. E. 13, 4: 519 
 
 23. To entitle one to recover damages for 
 injuries received in falling into an elevator 
 well on another's premises, in an action in 
 which he relies solely on the common-law 
 counts, he must offer evidence which will 
 justify the jury in finding that he entered 
 such premises by some invitation or author- 
 ity from the latter, that he was injured in 
 so doing by some want of due care, for 
 which the latter is responsible, in the con- 
 struction or management of the portion of 
 the premises which he was authorized to 
 use, and that he himself was in the exer- 
 cise of due care. Gordon v. Cummings, 152 
 Mass. 513, 25 N. E. 78, 9: 640 
 
 24. The maintenance, by tenants of the 
 upper stories of a building, of boxes for the 
 reception of their mail in a lower hallway 
 thereof, which is entirely under the control 
 of the owners of the building, will author- 
 ize the jury to find that a letter carrier who 
 enters the hallway for the purpose of plac- 
 ing mail in the boxes does so by the implied 
 invitation of such owners; and it is im- 
 material that the building is used for work- 
 shops and that there are no offices in it. Id. 
 
 25. A member of a fire insurance patrol, 
 although given by statute the ri<jht to enter 
 buildings which are burning or in danger to 
 save property, is, although not a trespasser, 
 a mere naked licensee under a license given
 
 1130 
 
 ELEVATORS, III. (Ed. Notes.) EMBEZZLEMENT. 
 
 by the law itself, where he breaks open a 
 building at the time of a fire, to whom the 
 owner of a building owes no duty in respect 
 to the condition of a freight elevator be- 
 tween the main floor and basement, which 
 can make him liable for an injury to the 
 patrol by the fall of a counter-weight on 
 such elevator because of a defect in the 
 rope and of failure to box or guard the 
 weight. Gibson v. Leonard, 143 111. 182, 32 
 N. E. 182, 17: 588 
 
 26. The owner of a building is not liable 
 to members of a fire department for failure 
 to guard an elevator well, or for so packing 
 merchandise as to conduct them to such well 
 when entering under a license conferred by 
 law to extinguish a fire. Beehler v. Dan- 
 iels, 18 R. I. 563, 29 Atl. G, 27:512 
 
 27. The absence of a fireproof shaft, or of 
 metal doors in the shaft, or of the required 
 matches or fastenings on the doors, to a 
 freight elevator, and the failure to have the 
 elevator inspected and to obtain and post a 
 certificate of its condition as required by 
 ordinance, are immaterial on the question 
 of liability for injury to a fire patrol caused 
 by the fall of a counter-weight which was 
 not boxed or guarded, on account of the 
 breaking of a rope by which it was held. 
 Gibson v. Leonard, 143 111. 182, 32 N. E. 
 182, 17: 588 
 
 28. An ordinance requiring elevators and 
 other things "so located as to endanger the 
 lives and limbs of those employed" in fac- 
 tories, etc., to be, so far as practicable, so 
 <x>vered or guarded as to insure against any 
 injury to such employees, does not create 
 any liability for noncompliance therewith, 
 in favor of a fire patrol who is a mere 
 licensee on the premises, as he is not with- 
 in the class of persons for whose protection 
 the ordinance was passed. Id. 
 Contributory negligence. 
 
 See also supra, 14, 23. 
 
 29. Notice is not imputed to a lessee of 
 the dangerous condition of an elevator, 
 which results in an accident, merely because 
 a manager of his business in the leased prem- 
 ises knows that a bolt is missing from the 
 -arm of the elevator case, which would allow 
 the elevator to creep about 12 inches above 
 the floor, when the defect would not have 
 caused the accident without other defects 
 of which the manager had no notice. Olson 
 v. Schultz, 67 Minn. 494, 70 X. W. 779. 
 
 36: 790 
 
 30. A person familiar with the premises 
 is not guilty of negligence as matter of law 
 in falling into an elevator well by the 
 side of the entrance to a building, into 
 which he was attempting to go. if the place 
 was dark and the entrance to the elevator 
 well, which was usually guarded by a gate 
 or chain, was at the time unprotected, and 
 he, after stepping upon the sill, felt for 
 obstructions and linding none concluded he 
 was in the right place and took the next 
 tep, which precipitated him to the bottom 
 <>f the well. Gordon v. Cummings, 1*2 
 Mass. 513, 25 X. E. 978, 9: 640 
 
 in. Editorial Notes. 
 
 Legislative regulation of rates of. 33: 178. 
 
 Loss of profits as element of damages in 
 case of elevator contracts. 
 53: 65. 
 
 Accidents at shafts of. 9: 643.* 
 
 Liability of master for injury to servant 
 from use of elevator. 
 8: 819.* 
 
 Liability for injuries to elevator passengers. 
 
 25: 33. 
 
 Passenger elevators. 25: 33. 
 Freight elevators used by outside par- 
 ties as passenger eleva- 
 tors. 25: 34. 
 
 Liability for condition of, to tenant of part 
 of premises. 23: 155. 
 
 ELIGIBILITY. 
 
 To become Naturalized, see Aliens, 6-9. 
 Of Judge, see Judges, 44. 
 Of Officer, see Officers, I. a. 
 As Receiver, see Receivers, 8. 
 
 ELISOR. 
 
 An elisor may be appointed to take 
 charge of the jury when the sheriff and his 
 deputies are disqualified and the coroner is 
 disabled by sickness from performing the 
 duty. People v. Ebanks, 117 Cal. 652, 49 
 Pac. 1049, 40: 269 
 
 ELOPEMENT. 
 
 Editorial Notes. 
 Effect to bar dower. 11:791.* 
 
 EMANCIPATION. 
 
 Of Minor Children Generally, see Fraudulent 
 Conveyances, 14; Parent and Child, 3, 
 4. 
 
 Parent's Liability for Services of Physician 
 after, see Infants, 15. 
 
 By Marriage, see Marriage, 29. 
 
 EMBANKMENT. 
 
 Railroad, in Street, see Eminent Domain, 
 
 327, 330-332, 336, 356. 
 In Highways, see Highways. 159. 
 Diversion or Obstruction of Water by, see 
 
 Railroads, II. f. 
 
 EMBEZZLEMENT. 
 
 Assimpsit for Money Embezzled, Restitu- 
 tion on Implied Promise, see Assump- 
 sit. 13.
 
 EMBLEMENTS-EMIXENT DOMAIN. 
 
 1131 
 
 forfeiture of \Vages by, see Contracts, 747. 
 
 Inability for Lending to Embezzler, see 
 Counties, 27. 
 
 Damages for, see Damages, 108. 
 
 Indictment for, see Indictment, etc., 113, 
 114. 
 
 By Agent, Who Must Bear Loss, see Prin- 
 cipal and Agent, 59. 
 
 1. An indictment under U. S. Rev. Stat. 
 5209, for wilfully misapplying bank funds, 
 is not unsupported by the evidence because 
 the funds are shown to be in his possession, 
 which makes the offense embezzlement, and 
 the statute provides for the punishment of 
 
 embezzlement or wilful misapplication of 
 funds, since the term "wilful misapplica- 
 tion" covers embezzlement, and ft, is not 
 necessary to construe the generic term so 
 peculiarly as to exclude the narrower word 
 preceding it. Jewett v. United States, 41 
 . C. A. 88, 100 Fed. 832, 53: 568 
 
 jtfy clerk. 
 Postmaster's Liability for, see Bonds, 87. 
 
 2. The crime of embezzlement is not 
 Changed to larceny in the case of a clerk 
 "who appropriates money received from a 
 
 u-itomer, by the mere fact that he 
 temporarily deposited it in the cash drawer, 
 where he did so without registering it and 
 with intent to keep the money for himself, 
 and soon after took the money out again. 
 Com. v. Ryan, 155 Mass. 523, 30 N. E. 
 364, 15:317 
 
 3. It is no defense for embezzlement by a 
 clerk that the money embezzled was re- 
 ceived by him on a feigned purchase by one 
 to whom the money was given by the em- 
 ployer for that purpose. Id. 
 -By agent of corporation. 
 
 By Agent to Wind up Affairs of Insolvent 
 Bank, see Banks, 384-386, 390, 393. 
 
 4. An employee of a foreign corporation 
 cannot defend a charge of embezzlement on 
 the ground that the corporation had not 
 complied with the conditions of the statutes 
 ;jo as to have the right to acquire, hold, col- 
 lect, or pay out monev in the state. State 
 v. O'Brien, 94 Tenn. 7b, 28 S. W. 311, 
 
 26: 252 
 By attorney. 
 
 5. An attorney at law has a lien for a 
 .vnoral balance of compensation upon 
 money in his hands belonging to hi* client; 
 and until such lien is discharged he is not 
 liable to a prosecution for embezzlement of 
 such monev. Van Etten v. State, 24 Neb. 
 734, 40 N.'W. 289, 1: 669 
 
 6. A prosecution for embezzlement, by an 
 attorney, of funds in his hands, on which he 
 not only claims a lien, but also claims a 
 balance in addition, cannot be maintained 
 under a verdict against him for a portion 
 of the money pending an appeal therefrom. 
 
 Id. 
 By receiver. 
 
 7. A receiver who unlawfully appropri- 
 ates money which comes into his hands as 
 receiver, or fails to account for or pay over 
 the same on demand, is not within Kan. 
 Oomp. Laws 1889, ? 2220, providing that if 
 any "agent" shall neglect or refuse to de- 
 liver to bis "employer or employers," on 
 
 demand, any money which has come into 
 his possession by virtue of such employ- 
 ment, he shall on conviction be punished. 
 State v. Hubbard, 58 Kan. 797, 51 Pac. 290, 
 
 39: 860 
 By public officer. 
 
 8. The intention of a state treasurer to 
 retain the interest received from the de- 
 posits of public moneys will not make such 
 deposits an embezzlement, when they were 
 made in his official capacity, for the benefit 
 of the state, in due course of business. 
 State v. McFetridge, 84 Wis. 473, 54 N. W. 
 1, 998, 20: 223 
 
 9. A mail carrier is not guilty of embez- 
 zlement by appropriating to his own use 
 salary earned by him, although he had made 
 a void assignment thereof before it was 
 earned, and taken an appointment as agent 
 from the assignee to collect it for the lat- 
 ter, .since he was not in fact an agent in 
 collecting the money, because the assign- 
 ment was void. State v. Williamson, 118 
 Mo. 146, 23 S. W. 1054, 21 : 827 
 
 Editorial Notes. 
 
 From mails. 1: 104.* 
 
 Evidence of other crimes in prosecution for. 
 62:226, 264. 
 
 Liability of bailee for wrongful appropria- 
 tion of subject of bailment 
 by servant. 29: 92. 
 
 EMBLEMENTS. 
 
 See Crops. 
 
 EMERGENCY CLAUSE. 
 
 See Statutes, 41, 42. 
 
 EMERY WHEELS. 
 
 Police Power as to Use of, see Constitu- 
 tional Law, 1055. 
 
 Warranty as to Speed Capacity of, see Sale, 
 57. 
 
 EMIGRANT AGENT. 
 
 Tax on, see Commerce, 88. 
 
 License of, see License, 164. 
 
 Equal Protection and Privileges as to, see 
 
 Constitutional Law. 468, 469. 
 Police Power as to, see Constitutional Law, 
 
 1028. 
 
 EMINENT DOMAIN. 
 
 I. Right to Take Property. 
 
 a. In General. 
 
 b. Who may Exercise. 
 
 c. What may be Taken. 
 
 1. In General. 
 
 2. Railroad Property.
 
 1132 
 
 EMINENT DOMAIN, T. a, b. 
 
 I. Continued. 
 
 d. For What Purpose. 
 
 1. In General. 
 
 2. Railroads. 
 
 3. As to Water and Water 
 
 Rights. 
 
 e. Right Acquired. 
 II. Procedure. 
 
 a. In General. 
 
 b. Petition. 
 
 c. Trial; Judgment. 
 
 1: In General. 
 
 2. Jury and Verdict. 
 
 d. Appeal; New Trial. 
 
 III. Rights and Remedies of Owners. 
 
 a. In General. 
 
 b. What Constitutes a Taking of, or 
 
 Injury to, Property. 
 
 1. In General. 
 
 2. As to Streets and Highways. 
 
 3. As to Water and Water 
 
 Rights; Sewage. 
 
 4. Crossing Railroad. 
 
 c. Right to Compensation. 
 
 1. Necessity of Making Compen- 
 
 sation. 
 
 2. Who Entitled to the Compen- 
 
 sation. 
 
 d. Payment or Security. 
 
 e. Consequential Injuries. 
 
 1. In General. 
 
 2. By Construction and Opera- 
 
 tion of Railroad. 
 , 3. As to Water or Water Rights ; 
 
 Sewage. 
 4. As to Streets or Highways. 
 
 IV. Additional Servitude. 
 
 a. In General; On Railroad Way. 
 
 b. On Highway. 
 
 1. In General. 
 
 2. Railways of Various Kinds. 
 V. Editorial Notes. 
 
 Interference with, as Affecting Interstate 
 Commerce, see Commerce, 18. 
 
 Construction of Constitutional Provision as 
 to, see Constitutional Law, 60. 
 
 Self-executing Constitutional Provision as 
 to, see Constitutional Law, 77, 78. 
 
 Equal Protection and Privileges as to, see 
 Constitutional Law, 354-357. 
 
 Due Process of Law as to, see Constitutional 
 Law, II. b, 2, 6. 
 
 Requiring Railroad Company to Pay Attor- 
 ney's Fees, see Constitutional Law, 578- 
 580. 
 
 Compelling Payment of Share of Party 
 Wall, see Constitutional Law, 988. 
 
 Authorizing Abandonment of Proceeding as 
 Impairment of Substantial Right, see 
 Constitutional Law, 1128. 
 
 Costs in, see Costs and Fees, 15. 
 
 Review of Legislative Decision as to, see 
 Courts, 150-165. 
 
 Acquisition of Prescriptive Right of Way 
 by Railroad, see Easements, 20-28. 
 
 Interest on Amount Awarded, see Interest. 
 44-46. 
 
 Effect of Judgment in Condemnation Pro- 
 ceedings, see Judgment. 185, 180. 
 
 Car of Former Judgment in Condemnation 
 Proceedings, see Judgment, 194. 
 
 Power of City to Destroy Intoxicating Li- 
 quors, see Municipal Corporations, 247. 
 248. 
 
 Title of Statute as to, see Statutes, 209. 
 
 Repeal of Statute as to, see Constitutional 
 Law, 29; Statutes, 565. 
 
 I. Right to Take Property, 
 a. In General. 
 
 Delegation of Power to Determine Necessity 
 of Exercise of Power, see Constitution- 
 al Law, 165. 
 
 Estoppel to Deny Validity of Taking, see 
 Estoppel, 262. 
 
 For Editorial Notes, see infra, V. 1. 
 
 1. Power to condemn property injured by 
 a sewer system for a temporary period nec- 
 essary to perfect some other method of dis- 
 posing of the sewage is not conferred by 
 general authority to construct sewers and 
 acquire by eminent domain the property nec- 
 essary for that purpose. Waterbury v. Platt 
 Bros. & Co. 75 Conn, 387, 53 Atl. 958. 
 
 60: 211 
 
 2. A judgment in ejectment against a 
 body having the power of eminent domain 
 is not a bar to the exercise by such body of 
 such power as to the land recovered in the 
 aetion of ejectment. Jacksonville, T. & K. 
 W. R. Co. v. Adams, 28 Fla. 631, 10 So. 465, 
 
 14: 535 
 Interference by court with location selected. 
 
 3. The discretion of a railroad company as 
 to the location of side tracks which are nec- 
 essary for its business will not be overruled 
 by the courts, unless there is very clear 
 abuse of it. St. Louis, 1. M. & S. R. Co. 
 v. Petty, 57 Ark. 359, 21 S. W. 884, 20: 434 
 
 4. The selection by a railroad company of 
 the location of its proposed road being given 
 by statute to such company, the court has 
 no right to deny the exercise of the power of 
 eminent domain to condemn such right of 
 way because it thinks some other location is 
 as good or better. Kansas & T. Coal R. Co. 
 v. Northwestern Coal & M. Co. 161 Mo. 288, 
 61 S. W. 684, 51: 986 
 Who may object to want of power. 
 
 See also infra, 213. 
 
 5. A third party not interested in lands 
 taken for a right of way by a railroad com- 
 pany cannot object that the company has no- 
 power under its charter to acquire the spe- 
 cific lands for railway purposes. Kettle Riv- 
 er R. Co. v. Eastern *R. Co. 41 Minn. 461, 43 
 NVW. 469, 6:111 
 
 6. Absence of power to condemn, for a 
 reservoir, land situated within a government 
 forest reserve cannot be urged by a private 
 individual to defeat the condemnation pro- 
 ceedings. Denver Power & Irrig. Co. v. Colo- 
 rado & S. R. Co. 30 Colo. 204, 69 Pac. 568, 
 
 60: 383 
 b. Who may Exercise. 
 
 Canal Comoanies, see infra, 137. 
 Cemetery Company, see infra, 92. 
 Water Supply Company, see infra, 140.
 
 EMINENT DOMAIN, I. b. 
 
 1133 
 
 Press Association, see Press Associations, 1. 
 
 Constitutionality of Limitation, see Consti- 
 tutional Law. 354. 
 
 Ordinance as to Power of Elevated Railroad 
 Company, see Municipal Corporations, 
 236. 
 
 Special Legislation as to. s< l c Statutes, 310. 
 
 For Editorial Notes, see infra, V. 2. 
 
 7. Where a body possessing the power of 
 eminent domain has entered upon land with- 
 out leave of the owner, and without comply- 
 ing with the law regulating the exercise of 
 such power, it may condemn the property 
 entered upon, and thereby secure the right 
 to the legal possession and enjoyment there- 
 
 .iiid tiii*. whether it has or has* not been 
 ousted from its former or illegal possession. 
 Jacksonville, T. & K. W. R. Co. v. Adams, 28 
 Fla. 631, 10 So. 4(i.->. 14: 533 
 
 8. That title to a public improvement 
 when it is completed is to be conveyed to the 
 United States will not prevent the state 
 from exercising its power of eminent domain 
 to acquire the necessary land upon which to 
 construct it. l.anccv v. King County, 15 
 Wash. <l. 45 Pac. ti4.\. 34: 817 
 Private corporation. 
 
 iBurden of Proving Power, see Evidence, 407. 
 0. The right of eminent domain is con- 
 ferred upon a corporation by authority to 
 take and hold, and to purchase and hold, 
 necessary real estate, followed by provisions 
 lor payment of the owner's damages. Rock- 
 inghani County Light & P. Co. v. Hobbs, 72 
 N. 11. 531, 58 Atl. 46, 66: 581 
 
 10. A private corporation may exercise the 
 right, given by the Constitution, to take 
 private property for purposes of a reservoir, 
 upon property of a railroad company which 
 i^ not held for public use. Denver Power & 
 Jrriir. Co. v. Colorado & S. R. Co. 30 Colo. 
 204. ii!i Pac. 508, GO: 383 
 
 11. A corporation is for a private, and not 
 for a public, purpose, and is, therefore, not 
 entitled 1<> exercise the right of eminent do- 
 main, which is authorized to develop and use 
 the water power of a river and generate 
 electric, or other power, light, or heat, and j 
 utili/.e. transmit, and distribute it for its 
 own use. or the use of other individuals or 
 corporations, and the mere fact that its 
 harter recognizes it as an "internal im- 
 provement company" is immaterial. Falls- 
 burg Power & Mfg. Co. v. Alexander, 101 Va. 
 >8. 43 S. E. 194, 61: 129 
 Foreign bridge company. 
 
 1 -2. That a corporation has under its char- 
 ter power to condemn land for a certain pur- 
 pose will give it no right to exercise the 
 power in another state unless it is permitted 
 to do so by the laws of the latter. Southern 
 I. & M. Bridge Co. v. Stone. 174 Mo. 1, 73 S. 
 W. 453, 63: 301 
 
 13. A corporation organized to build a 
 "bridge may exercise the powers possessed by 
 such corporations in a foreign state in which 
 it undertakes to do business by consent of 
 such stall', including that of acquiring land 
 for approaches and terminal facilities \>\ an 
 exercise of the power of eminent domain, 
 although no such power is expressly con- 
 ferred upon it by its charter. Id. 
 
 14. A statute authorizing a foreign bridge 
 company upon filing its articles of incorpora- 
 tion and receiving a certificate from the 
 secretary of state, to transact within the 
 state the business which its charter author- 
 izes, confers upon it the right to acquire by 
 the exercise of the power of eminent domain 
 the property which is necessary for its ap- 
 proaches and terminal facilities, where by 
 the local laws that is one of the incidents of 
 the granting of a charter authorizing the 
 construction of such a bridge. Id. 
 
 15. Changing the words '"'to the uses of 
 said corporation," in the section of a statute 
 providing for the creation of bridge compan- 
 ies, which specifies for what purposes prop- 
 erty may be acquired under the power of 
 eminent domain, so as to read "for approach- 
 es, road, foot, or wagon ways," does not in- 
 dicate an intention to deprive a company 
 organized to construct a railroad bridge of 
 the power to condemn property for terminal 
 accommodations for the use of such rail- 
 roads as may desire to use the bridge, since 
 the word "road" may be held to include rail- 
 road. Id. 
 Railroad company. 
 
 Foreign Railway Company, see Corporations, 
 
 821. 
 Estoppel to Deny Power of, see Estoppel, 
 
 189. 
 See also infra, 101. 
 
 16. That a railroad company has commit- 
 ted an act for which its charter might be 
 forfeited by refusing to serve the public is 
 no ground for denying it the right to exer- 
 cise the power of eminent domain to acquire 
 a right of way for an extension of its sys- 
 tem. Ulmer v. Lime Rock R. Co. 98 Me. 
 579, 57 Atl. 1001, 66: 387 
 
 17. A railroad company is not deprived of 
 the right to exercise the power of eminent 
 domain by the fact that it had no rolling 
 stock of its own, and its right of way is 
 leased to another company. State ex rel. 
 Trimble v. King County Super. Ct.'31 Wash. 
 44.->. 72 I'ac. S!>. 66: 897 
 Street railway company. 
 
 18. A corporation operating a street rail- 
 way for the benefit of the local public cannot 
 condemn lands for a right of way. under a 
 statute of Oregon authorizing condemnation 
 of right of way by a corporation organized 
 for the construction of "any railway," as it 
 is evident from the provisions of such stat- 
 ute that it intended to confer the right of 
 eminent domain on such railways only as are 
 highways for the carriage of passengers and 
 freiifht. Thomson-Houston Electric Co. v. 
 Simon, 20 Or. 60, 25 Pac. 147, 10: 251 
 Telephone company. 
 
 See also Telephones, 4. 
 
 19. A telephone company organized under 
 Tex. Rev. Stat. 1891, 042. subd. 8, provid- 
 ing that a corporation may be formed to con- 
 struct and maintain "a telegraph and tele- 
 phone line." which statute, as it formerly 
 read, provided for a corporation to maintain 
 "a telegraph or telephone line," is entitled 
 to exercise the power of eminent domain un- 
 der Tex. Rev. Stat. 1871, 699, giving such 
 power to corporations created for the pur-
 
 1134 
 
 EMINENT DOMAIN, I. c, 1. 
 
 pose of constructing and maintaining "a 
 magnetic telegraph line." San Antonio & 
 A. P. R. Co. v. Southwestern Teleg. & 
 leleph. Co. 93 Tex. 313, 55 S. W. 117, 
 
 49: 459 
 Irrigating company. 
 
 20. Irrigating companies organized under 
 the laws of the state have power to acquire 
 by condemnation the right of way for neces- 
 sary canals, reservoirs, etc., under Neb. act 
 March 27, 1889, art. 2, 8, providing that 
 such corporations may acquire a right of 
 way for such purposes over any land. Pax- 
 ton & H. Irrig. C. & L. Co. v. Farmers' & M. 
 Irrig. & L. Co. 45 Neb. 884, 64 N. W. 343, 
 
 29: 853 
 
 c. What may be Taken. 
 1. In General. 
 
 For Editorial Notes, see infra, V. 7, 8. 
 
 21. Courts in eminent domain cases must 
 deal with the conditions that exist at the 
 time the condemnation is asked, and cannot 
 take into account conditions that may or 
 may not arise or be created thereafter. 
 Kansas & T. Coal R. v. Northwestern Coal 
 & M. Co. 161 Mo. 288, 61 S. W. 684, 51: 936 
 
 22. Lands owned by corporations as well 
 as by natural persons are included within 
 Neb. act March 27, 1889, art. 1, 3, provid- 
 ing that no tract of land shall be crossed by 
 more than one irrigating ditch without the 
 consent of the "owners thereof." Paxton 
 & H. Irrig. C. & L. Co. v. Farmers' & M. 
 Irrig. & L. Co. 45 Neb. 884, 64 N. W. 343, 
 
 29: 853 
 
 23. Pending proceedings by an elevated 
 railroad company to condemn a risrht of way. 
 authorized under its charter to be 100 feet 
 in width, but, by a city ordinance passed 
 under power to provide for and change the 
 location of the road, limited to 30 feet and 
 to the location parallel to and adjoining an 
 alley line, are within the operation of a 
 subsequent ordinance removing such restric- 
 tions Tudor v. Chicago & S. S. R. T. R. 
 Co. 164 111. 73, 46 N. E. 446, 30: 379 
 Property subject to public use generally. 
 For Editorial Notes, see infra, V. 8. 
 
 24. The taking of private property only 
 is authorized by statutes providing for the 
 exercise of the power of eminent domain, un- 
 less there is either express or clearly im- 
 plied authority to extend them _to public 
 property. Seattle & M. R. Co. v. State. 7 
 Wash. 150. 34 Pac. 551, 22: 217 
 
 25. Land already legally appropriated to 
 -,\ public use is> not to be afterwards taken 
 for a like use. unless the intention of the 
 legislature that it should be so taken has 
 been manifested in express terms or by nec- 
 cssarv implication. Barre R. Co. v. Mont- 
 pelier & W. R. R. Co. 61 Vt. 1, 17 Atl. 
 !I23. 4: 785 
 
 20. The use for which property already 
 held for public use may be condemned need 
 not be a different one, tinder a statute per- 
 mitting such condemnation for a more neces- 
 
 sary public use. Butte, A. & P. R. Co. v, 
 Montana U. R. Co. 16 Mont. 504, 41 Pac. 232 r 
 248, 31:29* 
 
 For pumping station of water company. 
 
 27. Permission to a water company to 
 take water from a pond the shores of which 
 have already been appropriated to public 
 use, and also to take and hold all land neces- 
 sary for raising, holding, and purifying it, 
 impliedly authorizes the taking of previous- 
 ly appropriated land on the shore of the 
 pond for a pumping station and filtering: 
 gallery, together with a right of way there- 
 to, where such land is not indispensable to 
 the prior appropriator, while the water com- 
 pany could only with difficulty, if at all,, 
 do business without it. Old Colony R. Co. 
 v. Framingham Water Co. 153 Mass. 561,. 
 27 N. E. 662, 13: 332: 
 Lands of mining company. 
 
 28. Land used by a mining corporation for 
 railroad purposes without charter author- 
 ity is not within the protection of Mo. Rev- 
 Stat. 1889, 2741, declaring that the right 
 to appropriate for a railroad lands held by 
 any corporation shall be limited to such use 
 as shall not materially interfere with the- 
 uses to which the corporation holding the 
 land is authorized to put it. Kansas & T. 
 Coal R. v. Northwestern Coal & M. Co. 161 
 Mo. 288, 61 S. W. 684, 51: 936 
 
 29. Condemnation of th land of a coal 
 company for a railroad track, although its 
 use for railroad purposes would materially 
 interfere with the coal company's authorized- 
 use of its land for mining purposes, is not 
 precluded by Mo. Rev. Stat. 1889, 2741, 
 declaring that the right to appropriate for 
 a railroad lands held by any corporation 
 shall be limited to such use as shall not ma- 
 terially interfere with the uses to which the 
 corporation holding the land is authorized 
 to put it. Id. 
 Property of water company. 
 
 Measure of Damages for Taking, see Dam- 
 ages, 484-497. 
 
 30. Condemnation by a city of the works- 
 and franchise of a water company may be 
 authorized by statute on the ground that it 
 is for a public use of a higher and wider 
 scope. Re Brooklyn, 143 N. Y. 596, 38 N. E. 
 983, 26: 270- 
 
 31. A statute authorizing a city to acquire 
 the property of a water company, declaring 
 the acquisition to be in the public interest 
 and for the public use, is not unconstitu- 
 tional because of its failure to designate the 
 particular public use for which it is taken. 
 
 Id. 
 
 32. Franchises possessed, but not in fat 
 exercised, are included in a statute author- 
 izing one water company to acquire, by right 
 of eminent domain, "the entire plant, prop- 
 erty, and franchises" of another. Kennebec 
 Water Dist. v. Waterville, 97 Me. 185, 54 
 Atl. 6, 60:856- 
 Tide lands: land covered by water. 
 
 See also Wharves, 3. 
 
 For Editorial Notes, see infra, V. 7. 
 
 33. Tide lands cannot be condemned for- 
 railroad uses by reason of a statutory pro- 
 vision for the appropriation of "state, school^
 
 EMINENT DOMAIN, I. c, 2. 
 
 1135- 
 
 or county land," under the Washington 
 Constitution and statutes, in the nomencla- 
 ture of which "state" lands did not include 
 tide lands. Seattle & M. R. Co. v. State, 7 
 Wash. 150, 34 Pac. 551, 22: 217 
 
 34. Persons in possession of tide land un- 
 der a contract with the state for its pur- 
 chase, although they have not fully complied 
 with the terms of their contract so as to 
 obtain a legal title to the premises, have 
 an interest which is subject to be taken 
 from them under a statute giving the right 
 to acquire "lands, real estate, or premises," 
 by right of eminent domain for railroad 
 purposes. State ex rel. Trimble v. King 
 County Super. Ct. 31 Wash. 445, 72 Pac. 
 89, " 66: 897 
 
 35. That a contract for the purchase of 
 tide land has not been fully complied with 
 so as to vest the title in the grantee does 
 not prevent the taking of the land by right 
 of eminent domain, although the statutes 
 do not apply to it while it is the property 
 of the state. Id. 
 
 36. Lands covered by the waters of Lake 
 Michigan are not within the provision of 111. 
 act Feb. 10, 1851, 3, incorporating the 
 Illinois Central Railroad Company, which 
 authorized it to take "any lands, streams, 
 and materials of every kind for the location 
 of depots" and other specified purposes. 
 Illinois C. R. Co. v. Chicago, 173 111. 471, 
 50 N. E. 1004, 53: 408 
 Riparian rights. 
 
 37. Riparian rights of the lower owners 
 of land upon the bank of a stream are prop- 
 erty such as cannot be taken by the state, 
 even for a public use, except in aid of navi- 
 gation, without compensation to the owner, 
 and cannot be taken at all or impaired for 
 a private use. Patten Paper Co. v. Kau- 
 kauna Water-Power Co. 90 Wis. 370, 61 N. 
 W. 1121, 28: 443 
 
 38. The condemnation of the right of a 
 private riparian proprietor to the use and 
 enjoyment of a natural stream flowing past 
 his land, or its impairment by an appropria- 
 tion of such water for irrigation purposes, 
 is authorized by Neb. Comp. Stat. 1901, chap. 
 93a, art. 2, 41, and by Neb. Const, art. 1, 
 21, and such proprietors may recover dam- 
 ages in the same way and subject to the 
 same rules as a person whose property is 
 affected injuriously by the construction and 
 operation of a railroad. Crawford Co. v. 
 Hall, 67 Neb. 325, 93 N. W. 781, 60: 889 
 
 39. A vested common-law right in the flow 
 of the waters of a running stream is a prop- 
 erty right, which can be condemned for pub- 
 lic use only under the same restrictions as 
 apply to the taking of other private prop- 
 erty for public use. Clark v. Allaman, 71 
 Kan. 20fi, 80 Pac. 571, 70: 971 
 
 40. The right to fish in an inland lake in 
 New Jersey cannot be separated from the 
 ownership of the lake, and taken under the 
 power of eminent domain. Albright v. Sus- 
 sex County L. & P. Com. (N. J. Err. & A pp.) 
 71 N. J. L. 303, 309, 57 Atl. 398, 59 Atl. 146, 
 
 69: 768 
 Street. 
 
 41. An owner of a lot abutting on a street 
 
 dedicated for street purposes has a property 
 interest in the street in front of his lot,, 
 which cannot be taken against his will, un- 
 less compensation shall tirst be made there- 
 for in money. Callen v. Columbus Edison 
 Electric Light Co. 66 Ohio St. 166, 64 N. E. 
 141, 58: 782 
 
 42. No portion of a public street can law- 
 fully be appropriated to the exclusive and 
 permanent use of a private corporation, un- 
 der the guise of an exercise of power to- 
 alter or change the grade. Willamette Iron 
 Works v. Oregon R. & Nav. Co. 26 Or. 224, 
 37 Pac. 1016, 29: 88 
 Private cemetery. 
 
 43. A private cemetery belonging to a re- 
 ligious corporation may be taken in condem- 
 nation proceedings for a public park, under 
 N. Y. Laws 1887, chap. 320, giving power to- 
 condemn "any and all lands" within a dis- 
 trict which includes the cemetery. Re New 
 York Street Opening & I. Bd. 133 N. Y. 329. 
 31 N. E. 102, 16: 180 
 Consent to operation of street railroad. 
 
 44. The consents of owners of lots abut- 
 ting on a street to the construction and op- 
 eration of a street railroad on such street 
 are not property rights that can be appro- 
 priated under the power of eminent domain. 
 Hamilton, G. & C. Traction Co. v. Parrish,. 
 67 Ohio St. 181, 65 N. E. 1011, 60: 531 
 
 2. Railroad Property. 
 
 Measure of Damages for Taking, see Dam- 
 ages, 476. 
 See also supra, 28. 
 For Editorial Notes, see infra, V. 8. 
 
 45. The mere laying of rails upon a right 
 of way is not sufficient to protect the prop 
 erty from appropriation for other public 
 uses, if the property has been held by vari 
 ous railroad companies for many years- 
 without any attempt by them to utilize it, 
 and the rails are laid only a short time be- 
 fore the proceedings are instituted to ac- 
 quire adverse title to the property, and 
 three years after the one seeking title has- 
 commenced to expend money on the proper- 
 ty; and the fact that the corporation laying 
 them comes into existence only a short time 
 before it begins to lay the rails is immate- 
 rial if its rights are acquired from other 
 corporations which never made any attempt 
 to construct a road. Denver Power & Irrig. 
 Co. v. Colorado & S. R. Co. 30 Colo. 204. 69 
 Pac. 568, 60: 383 
 For other railroad. 
 
 For Editorial Notes, see infra, V. 8. 
 
 40. A railroad is located so as to exclude- 
 the appropriation of the land selected by 
 another road, when a definite location has 
 been adopted by the action of the company ; 
 but the act of an engineer in staking out 
 the line is not a sufficient location. Wil- 
 liamsport & N. B. R. Co. v. Philadelphia & 
 E. R. Co. 141 Pa. 407, 21 Atl. 645, 12: 220- 
 
 47. The length of a railroad, or the-- 
 amount of its business, does not affect its- 
 right to retain its right of way as against a 
 railroad which subsequently desires to ap-
 
 1136 
 
 EMINENT DOMAIN, I. c, 2. 
 
 propriate a portion of it, although the 
 amount of damages may be thereby affected. 
 Seattle & M. R. Co. v. State, 7 Wash. 150, 
 34 Pac. 551, 22: 217 
 
 48. A claim of the right to lay four tracks 
 on another railroad's right of way may be 
 denied by the court, where the place is prac- 
 tically a street, and the whole room appli- 
 cable to railroad purposes is extremely lim- 
 ited, and allowing two tracks will give bet- 
 ter facilities than the other road enjoys. Id. 
 
 49. A railroad to be constructed along the 
 side of a mountain may be permitted to 
 condemn for its right of way a portion of 
 the right of way of a former road, where 
 such portion is occupied by unexcavated 
 rock and dirt, and there is no immediate 
 prospect of the other road needing it, and 
 its tracks are to be placed far enough away 
 from the other's so as not to interfere with 
 its operations; while that location is by far 
 the most practicable that can be found, any 
 other route would impinge as much upon the 
 other road as this does, would affect many 
 mining operations, would be enormously ex- 
 pensive, less convenient, and the one chosen 
 manifestly best serves the interests of the 
 public. Butte, A. & P. R. Co. v. Montana 
 TJ. R. Co. 16 Mont. 504. 41 Pac. 232, 248, 
 
 31 : 298 
 
 50. Where one railroad company has ac- 
 quired land for its road, another railroad 
 company cannot take a part of the same 
 land for its track for the reason that it 
 would avoid a sharp curve in the road which 
 it purposes to build, which would be a con- 
 venience, but not a necessity, to it. Barre 
 R. Co. v. Montpelier & W. R. R. Co. 61 Vt. 
 1, 17 Atl. 923, 4: 785 
 
 51. Land belonging to a railroad company 
 by way of easement, and not actually in use 
 by it or not actually necessary for the enjoy- 
 ment of its franchise, is. with respect to the 
 power of eminent domain, upon the same 
 footing as the land of an individual citizen, 
 if there is a necessity that it should be tak- 
 en for another use. Butte. A. & P. R. Co. 
 v. Montana U. R. Co. 16 Mont. 504. 41 Pac. 
 232. 248, 31 : 298 
 
 52. Absolute necessity is not necessary to 
 enable one railroad to condemn a portion of 
 another's right of way for its tracks, under 
 a statute forbidding such appropriation un- 
 less the use to which it is to be applied is 
 a "more necessary public use." Id. 
 
 53. A case of necessity is presented, with- 
 in Mont. Code Civ. Proc. 601. permitting 
 one railroad company to condemn a portion 
 of the right of way of another, when the 
 latter, traversing a mountain side in a min- 
 ing section, has within its right of way 
 tracks unused and in all reasonable probabil- 
 ity not necessary for future use. and another 
 road seeking the same objective point is 
 obliged to take a part of such right of way 
 to avoid circuity, a different grade, much 
 greater cost, and serious damage to mining 
 properties, and would be obliged in any 
 ovent to parallel the adversary road a part 
 of the way. Id. 
 Tor crossing of other railroad. 
 
 54. The statutory right of one railroad to 
 
 cross another does not apply to a commin- 
 gling of tracks for 400 feet or more along 
 a 30-foot right of way, making it impracti- 
 cable to operate either track or set of tracks 
 when any one of the other tracks is in ac- 
 tual use. Seattle & M. R. Co. v. State, 7 
 Wash. 150, 34 Pac. 551, 22: 217 
 
 55. The convenience of a railroad to be 
 crossed, and the probability of some other 
 means of accomplishing the same purpose, 
 may be considered in determining the neces- 
 sity of appropriating any part of the right 
 of way by another company, where the stat- 
 ute requires the judge to be satisfied by 
 competent proof of such necessity. Id. 
 
 56. Side tracks built on private property 
 for the convenience of a certain large branch 
 of a company's freight business, under a li- 
 
 ! cense wnich the owners of the land may re- 
 voke at pleasure, which are used incessantly 
 and are of great importance to the company, 
 are to be considered the same as the main 
 track, so far as the right of another railroad 
 company to cross them is concerned. Barre 
 R. Co. v. Montpelier & W. R. R. Co. 61 Vt. 
 1, 17 Atl. 923, 4: 785 
 
 For street. 
 
 57. A street may be opened across depot 
 grounds of a railroad company, under gen- 
 eral authority conferred on cities and towns 
 for opening streets and condemning lands 
 for such purposes without any express pro- 
 vision as to crossing railroads, where the 
 inconvenience to the company will be incon- 
 siderable as compared with the benefit to 
 the public. Chicago, M. & St. P. R. Co. v. 
 Starkweather, 97 Iowa, 159, 66 N. W. 87, 
 
 31: 183 
 
 58. Streets can be laid out across a rail- 
 road freight yard and tracks notwithstand- 
 ing the fact that the second public use may 
 be inconsistent with the first, under Ind. 
 act March 6, 1891 (Ind. Rev. Stat. 1894, 
 3623), authorizing the common council to 
 lay out streets and condemn therefor the 
 right of way or other lands of any railroad 
 company, whether "such lands be occupied 
 and used or not." Terre Haute v. Evans - 
 ville & T. H. R. Co. 149 Ind. 174, 46 N. E. 
 77. 37: 189 
 For elevator. 
 
 59. A statute giving the exclusive right 
 of selecting a site for a public elevator or 
 warehouse on a railroad right of way to the 
 party seeking to condemn it for such use, 
 without giving the railway company any 
 right to submit to the court the question 
 whether the taking of the particular piece 
 of ground sought is necessary for a public 
 use, is not invalid, since the legislature can 
 determine whether property already appro- 
 priated to a public use may be taken for an- 
 other public use. Re Stewart's Application, 
 65 Minn. 515, 68 N. W. 208, 33: 427 
 For telegraph line. 
 
 Measure of Damages for, see Damages, 460- 
 462. 
 
 60. The condemnation of the right to con- 
 struct a telegraph line along a railroad right 
 of way is not prevented by the fact that a 
 right of way for the line might be obtained 
 over other property or in other ways. Ft.
 
 EMINENT DOMAIN, I. d, 1. 
 
 1137 
 
 Worth & II. ('. R. Co. v. Soiuhucstcrn Teleg. 
 & Teleph. Co. 90 Tex. KiCt. 71 S. W. 27<l. 
 
 (i(): 145 
 
 01. Authority to condemn the right to 
 construct a telegraph line along a railroad 
 right of way is cont'envd by ;i statute per- 
 mitting the condemnation of any lands, 
 whether owned by private per.-ons in fee or 
 in any less estate, or by any corporation, 
 whether acquired by purcha>e or by virtue 
 of any provision in the charter of such cor- 
 poration. Id. 
 
 02. ^\ condemnation of the right of way 
 for a telegraph line over a railroad right of 
 wav is authorized bv Tenn. Acts 1883, chap. 
 136 (Shannon's Code. ^ 180S. 1S71), confer- 
 ring the right to take the property or ease- 
 ments of private corporations for public pur- 
 pose.-- and internal improvement. Mobile & 
 (.). K. Co. v. Postal Tele;.-. Cable Co. 101 Tenn. 
 02. 40 S. W. 571.. 41: 403 
 For reservoir site. 
 
 03. A company seeking to acquire for a 
 i crvoir site, by right of eminent domain, 
 hind claimed by a railroad company cannot. 
 for the purpose of defeating the latter's 
 right in the property, attack its corporate 
 existence, or assert that it has not sufficient- 
 ly complied with the law to give it a right 
 to the property. Denver Power & Irrig. Co. 
 v. Colorado & 'S. R. Co. 30 Colo. 204, 69 Pac. 
 50H. 00: 383 
 
 04. A reservoir company cannot take, by 
 right of eminent domain, land devoted to the 
 purposes of a railroad, unless such taking is 
 required by public necessity: and the facts 
 that the site is the only available one on 
 the si ream, and that the railroad company 
 might procure an equally available location 
 for its purposes elsewhere, are immaterial. 
 
 Id. 
 For wharves. 
 
 li."). The condemnation of land for a public 
 wharf is not prevented by the fact that it 
 is already in use by a common carrier as a 
 landing place in connection with its business 
 as such earner. Diamond -Io Line Steamers 
 v. Davenport, 114 Iowa. 432. 87 X. W. 399. 
 
 54 : 859 
 
 d. For Whrtt Purpose, 
 i 
 
 1. In General. 
 
 Beet Sugar Bounty as for Private I'se. see 
 
 Bounties. 1. 
 Review of Legislative Decision as to, see 
 
 ( ourt>. I. c. 2. 
 Restricting Height of Building Adjacent to 
 
 Public Square, see Public Moneys, 17. 
 (Question for .Jury as to, see Trial. 509. 510. 
 For Editorial Notes, see infra. V. 55$ 3. 4, 7. 
 
 00. The taking of money by a private cor- 
 poration created to administer a public char- 
 ity is not a taking of property for a public 
 use which may be authorized under the 
 power of eminent domain. Gary Library v. 
 Bliss. ir>] Mass. .104. 2.1 X. E. 92. 7:' 765 
 
 07. The taking of property which is held 
 
 by one person for a public use by another 
 
 person, to be held in the same manner for 
 
 precisely the same public use, is not a mat- 
 
 L.R.A. Die. 72. 
 
 Jter of such public necessity that it can be 
 authorized by the legislature under the 
 power of eminent domain. Id. 
 
 US. An enterprise is not shown to be a 
 private one merely by the fact that it was 
 set on foot for the profit of the corporators, 
 ttyau v. Louisville & X. Terminal Co. 102 
 Tenn. Ill, 50 S. W. 744, 45: 303 
 
 O'.t. That a particular use will be of ben- 
 efit to the public does not alone make it 
 a public use. within the meaning of a consti- 
 tutional provision that private property 
 shall be taken only for public use. Healy 
 Lumber Co. v. Morris, 33 Wash. 490, 74 Pac. 
 681, 63: 820 
 
 70. To constitute a public use for which 
 private property may be taken by right of 
 eminent domain, there must be a use, or 
 right to use, by the public or some limited 
 portion of it, and not merely a public utility 
 or advantage resulting from the use. Arns- 
 perger v. Crawford, 101 Md. 247, 61 Atl. 413, 
 
 70: 497 
 
 71. Neither mere public convenience, nor 
 mere public welfare, will justify the exer- 
 cise of the right of eminent domain. Brown 
 v. Gerald, 100 Me. 351, 61 Atl. 785, 70: 472 
 Right to take for private use generally. 
 Review of Legislative Decision as to, see 
 
 Courts. 159. 
 For Editorial Xotes. see infra. V. 3. 
 
 72. Private property cannot be taken for 
 a private use under a constitutional pro- 
 vision that such property shall not be taken 
 or damaged for public use without just com- 
 pensation. Gaylord v. Sanitarv District, 204 
 111. 576. 68 X.'E. 522, 63: 582 
 
 73. A constitutional provision forbidding 
 the taking of private property for public use 
 without compensation forbids, by implica- 
 tion, the taking of such property for private 
 us;'. Rockingham County Light & P. Co. 
 v. Hobbs, 72 X. H. 531, 48 Atl. 46, 66: 581 
 
 74. The legislature has no power to au- 
 thorize the taking of private property for a 
 private use, nor to compel the payment of 
 assessments for the construction of any pub- 
 lic improvement which furthers private in- 
 terests only. State ex rel. I'tick v. Polk 
 County Cornrs. 87 Minn. 325. 92 X. W. 216. 
 
 60: 161 
 
 75. The taking of private property for 
 private use is impliedly forbidden by a con- 
 stitutional provision that the legislature 
 shall enact no law authorizing private prop- 
 erty to be taken for public use without just 
 compensation being first paid or tendered. 
 Arnsperuer v. Crawford, 101 Md. 247. 61 Atl. 
 413. 70: 497 
 Private roads. 
 
 For Editorial Xotes, see infra. V. *> 4. 
 
 76. A statute permitting the condemna- 
 tion of private property for the purpose of 
 establishing a private road or highway is un- 
 constitutional. Clark v. Mitchell County 
 Com is. 09 Kan. 542, 77 Pac. 284. 66: MR 
 
 77. The condemnation of land for a pri 
 vate way cannot be authorized by the leg- 
 islature.' Hence, the Indiana act of March 
 9 1889. which attempts to do so. is void. 
 Logan v. Stogdale. 123 Ind. 372. 24 X. E. 
 
 i :].-;.. 8:58
 
 1138 
 
 EMINENT DOMAIN, I. d, 1. 
 
 78. The acquisition of a mere private way 
 is not a purpose for which the right to ex- 
 ercise the power of eminent domain may be 
 delegated, although the way is intended to 
 connect a private estate with a public high- 
 wav. Arnsperger v. Crawford, 101 Md. 247, 
 61 Atl. 413, 70: 497 
 
 79. Constitutional authority to acquire an 
 easement over land for a private way of 
 necessity does not empower one landowner 
 to condemn a right of way over his neigh- 
 bor's property for the purpose of getting 
 his logs and timber to market. Healy Lum- 
 ber Co. v. Morris, 33 Wash. 490, 74 Pac. 681, 
 
 63: 820 
 
 80. A statute authorizing the condemna- 
 tion of land for a private road from lands 
 which are shut out and cut off from a pub- 
 lic highway, giving an easement to the own- 
 er of such lands, who is required to pay 
 damages, is unconstitutional as authorizing 
 the taking of private property for private 
 use. Welton v. Dickson, 38 Neb. 767, 57 N. 
 W. 559.. 22: 496 
 
 81. Condemnation of land for a private 
 road to be laid out upon the application of 
 a particular individual, and paid for and 
 kept in repair by him, is for a public pur- 
 pose where the road is in fact for public 
 use by all who desire to use it. Latah Coun- 
 ty v. 'Peterson, 3 Id. 398, 29 Pac. 1089, 16: 81 
 
 82. The acquisition of an easement over 
 land for the transportation to market of 
 logs of a private owner is within a consti- 
 tutional provision that private property 
 shall not be taken for private use, and mak- 
 ing the question whether or not a contem- 
 plated use is private one for the determina- 
 tion of the courts. Healy Lumber Co. v. 
 Morris, 33 Wash. 490, 74 Pac. 681, 63: 820 
 Library. 
 
 83. Land needed for an addition to a free 
 library building which is located in a pub- 
 lic park may be taken under statutory au- 
 thority to exercise the right of eminent do- 
 main to secure land for a park. Laird v. 
 Pittsburg, 205 Pa. 1, 54 Atl. 324, 61: 332 
 
 84. A library does not cease to be public, 
 so as to prevent the taking of property by 
 eminent domain for its enlargement, by the 
 fact that one half of its directors are ap- 
 pointed by private persons, where it is lo- 
 cated on public land, and the public appoints 
 the other half. Id. 
 Elevators or warehouses. 
 
 85. Warehouses or public elevators only 
 are authorized by Minn. Laws 1893. chap. 64 
 (Minn. Gen. Stat, 1894, 7724-9), providing 
 for the condemnation of property for a 
 warehouse or elevator "for the purchase, 
 Bale, shipment, or storage of grain for the 
 public hire." Re Stewart's Application, 65 
 Minn. 515, 68 N. W. 208. 33: 427 
 
 86. A condemnation of the easement for 
 the maintenance of a public elevator for a 
 fixed term on a railroad right of way, given 
 by Minn. Laws 1893. chap. 64. is not limited 
 to elevators not yet constructed, but may be 
 had for one which has been erected under a 
 license which has been revoked. Td. 
 Bridges. 
 
 87. A ra-ilroad bridge is within the provi- 
 
 sions of a statute permitting the construc- 
 tion of bridges for public use. Southern I_ 
 & M. Bridge Co. v. Stone, 174 Mo. 1, 73 S. 
 W - 453, 63: 301 
 
 88. The power of eminent domain may be 
 exercised to secure property needed for the 
 construction and maintenance of a toll 
 bridge. i<j_ 
 Parks and boulevards. 
 
 See also supra, 83. 
 
 89. The legislature may authorize a munic- 
 ipal corporation to condemn for park pur- 
 poses and boulevard land near to, but out- 
 side of, its corporate limits. Memphis v. 
 Hastings, 113 Tenn. 142, 86 S. W. 609, 
 
 69: 750> 
 
 90. The condemnation of land for a boule- 
 vard connecting public parks is not unlaw- 
 ful on the ground that it is for mere con- 
 venience or pleasure, not for necessity. Id. 
 Public mills and machinery. 
 
 91. The legislature cannot authorize the- 
 condemnation of private property for the 
 erection of public mills and machinery gen- 
 erally, without anything to show what is- 
 meant by a public mill, or anything to give 
 the public any interest in a mill after it is 
 erected. Gaylord v. Sanitary District, 204 
 111. 576, 68 N. E. 522, 63: 582" 
 Cemetery. 
 
 92. The power of eminent domain cannot 
 be given to a corporation formed for the 
 purpose of establishing a rural cemetery and 
 providing for its care and maintenance, 
 where the land is to be under its absolute- 
 control, and it may sell lots, at whatever 
 price may be agreed on, to private individ- 
 uals for burial purposes, or for any other 
 purposes, if in its judgment the land is not 
 needed for burial purposes. Portage Twp. 
 Bd. of Health v. Van Hoesen, 87 Mich. 533, 
 49 N. W. 894, 14: 114 
 Generation, distribution, and use of electric- 
 ity. 
 
 93. The generation of electricity by water 
 power for the operation of a jailroad is not 
 a public use for which property may be tak- 
 en by eminent domain, where there is noth- 
 ing which binds the petitioner to serve the 
 railroad, or to give equal advantages to all. 
 Avery v. Vermont Electric Co. 75 Vt. 235. 54 
 Atl. 179, 59: 817 
 
 94. The collection, storing, and distribu- 
 tion of electricity for the use of all who may 
 have need of it upon equal and reasonable 
 terms is a public use, so as to justify an ex- 
 ercise of the power of eminent domain for 
 the acquisition of a right of way for the dis- 
 tributing wires. Rockingham County Light 
 & P. Co. v. Hobbs, 72 N. H. 531, 58 Atl. 46 r 
 
 66: 581 
 
 95. The mere creation and distribution of 
 power for manufacturing enterprises is not 
 a public use which will justify an exercise- 
 of the power of eminent domain. Brown v. 
 Gerald. 100 Me. 351, 61 Atl. 785, 70: 472' 
 
 96. The furnishing of electric power for 
 manufacturing purposes does not become a 
 public use, so as to justify the exercise of 
 the power of eminent domain in its behalf, 
 on the theory that the one generating it 
 may, because of his franchises, be regarded-
 
 EMINENT DOMAIN I. d, 2. 
 
 1139 
 
 as a public servant: especially since the ca- 
 pacity for service is, of necessity, limited, 
 and cannot extend to the general public, 
 and, therefore, the service is a matter of 
 grace, and not of right. Id. 
 
 Electric company. 
 For Telephone Line, see Telephones, 4. 
 
 OOa. Authority to an electric company to 
 take land for the establishment of its plant 
 includes the land necessary for its poles and 
 wires. Brown v. Gerald, 100 Me. 351, 61 Atl. 
 785, 70: 472 
 
 Electric light. 
 
 Review of Legislative Decision as to, see 
 Courts, 165. 
 
 97. To justify the taking of land for a 
 right of way for a line to suppfy electric 
 light, it must be shown that the line is in- 
 tended for that purpose, where other pur- 
 poses are included in the grant of power, 
 which the legislature had no constitutional 
 authority to authorize. Brown v. Gerald, 100 
 Me. 351, 61 Atl. 785, 70: 472 
 
 2. Railroads. 
 
 For Railroad Bridge, see supra, 87. 
 Generation of Electricity for Operation of, 
 
 see supra, 93. 
 For Editorial Notes, see infra, V. 6. 
 
 98. The establishment of a railroad as a 
 purely private enterprise cannot be legiti- 
 mately aided by the power of eminent do- 
 main. Maginnis v. Knickerbocker Ice Co. 
 112 Wis. 385, 88 N. W. 300, 69: 833 
 
 99. The property of railroad corporations, 
 so far as concerns the ownership thereof, 
 and the profit or gain to be made from their 
 use, is to all intents and purposes private 
 property, although applied to a use in which 
 the public have an interest. Pittsburg, W. 
 & K. R. Co. v. Benwood Iron Works, 31 W. 
 Va. 710, 8 S. E. 453, 2: 680 
 
 100. Whether the use of land taken by a 
 railway company under the power of emi- 
 nent domain is public or private depends 
 upon the right of the public to use the road 
 and to require the corporation as a common 
 carrier to transport freight or passengers, 
 and not upon the amount of business. Ket- 
 tle River R. Co. v. Eastern R. Co. 41 Minn. 
 461, 43 N. W. 469, 6: 111 
 
 101. As far as the public is concerned, 
 when what railroad corporations need is for 
 "public use," they have the right to invoke 
 the exercise of eminent domain; but, in so 
 far as that which concerns them as to their 
 private interests, their profits and gains, are 
 concerned, they stand as individuals, or 
 merely as private corporations, in which the 
 public has no concern, and for such private 
 purposes cannot call into exercise the power 
 of eminent domain. Pittsburg. W. & K. R. 
 Co. v. Benwood Iron Works, 31 W. Va, 710, 
 8 S. E. 453, 2: 680 
 
 102. The right of a railroad company or- 
 ganized chiefly for the benefit of a coal com- 
 pany, to condemn land for the road, is not 
 precluded by Mo. Rev. Stat. ^889, 1119, 
 giving the coal company the right to have a 
 switch connection with an existing railroad. 
 and 9559 and 9560. providing for the con- 
 
 struction of a tramway for such coal. Kan- 
 sas & T. Coal Ry. v. Northwestern Coal & 
 M. Co. 161 Mo. 288, 61 S. W. 684, 51: 936 
 
 103. A railroad of a regularly organized 
 and chartered railroad company is a public 
 railroad for which the power of eminent do- 
 main may be exercised, notwithstanding the 
 fact that the road is short and built chief- 
 ly for the purpose of conveying the product 
 of a coal company which is composed of sub- 
 stantially the same persons that organized 
 the railroad company, since the railroad 
 company, under Mo. Const, art. 12, 14, will 
 be a common carrier obliged to serve all 
 people alike. Id. 
 
 104. That the ownership of all the quar- 
 ries reached by a railroad organized to 
 transport limestone from the quarries in a 
 particular town to the kilns becomes vested 
 in one person, does not destroy the public 
 character of the road. Ulmer v. Lime Rock 
 R. Co. 98 Me. 579, 57 Atl. 1001, 66: 387 
 
 105. The exercise of the right of eminent 
 domain to acquire land for a railroad is not 
 precluded by the facts that the road is 
 owned by a private corporation and is built 
 for the benefit of private mines and ore 
 houses, where the state laws make all rail- 
 roads public highways, open to use by all 
 who wish to do so. Butte, A. & P. R. Co. v. 
 Montana U. R. Co. 16 Mont. 504, 41 Pac. 232, 
 248, 31 : 298 
 
 106. A railroad chartered to extend from a 
 certain town past a sawmill, through rough, 
 mountainous, timbered, and sparsely settled 
 country, to the middle of a certain section 
 on lands of the United States, without going 
 near any other town, city, or settlement or 
 other railroad, but Which has been built only 
 from the sawmill about 2 miles from the 
 town, for 514 miles into the timbered region, 
 and has no freight or passenger depots, pas- 
 senger coaches, or freight cars, except 
 trucks, and has never charged passengers 
 any fare, is a public way for which emi- 
 nent domain may be exercised, where it is 
 not shown that it was intended simply as a 
 logging road, and everyone having occasion 
 to use it as a passenger or for the transpor- 
 tation of freight has a right to require the 
 service. Bridal Veil Lumbering Co. v. John- 
 son, 30 Or. 205, 46 Pac. 790, 34: 368 
 
 107-8. One seeking a right of way for a 
 railway which he intends to sell as soon as 
 it is procured is not in charge of a public 
 use so as to be entitled to exercise the right 
 of eminent domain. Beveridge v. Lewis, 137 
 Cal. 619, 70 Pac. 1040, 59: 581 
 
 Street railway power house. 
 
 109. An attempt by a street railway com- 
 pany to take land for a power house and 
 coal pockets in a city 5 miles from its lines, 
 in which it has no authority to run cars, is 
 for its private benefit, and not for public- 
 use, and is therefore not within statutory 
 permission to take by eminent domain land 
 necessary for its use. Re Condemnation of 
 Land by Rhode Island Suburban R. Co. 22 
 R. I. 457, 48 Atl. 591, .",2: 879 
 Terminals. 
 
 110. The provision of a railroad terminal 
 for the accommodation of all railroads con-
 
 1140 
 
 EMINENT DOMAIN, I. d, 2. 
 
 centrated at a city, "to facilitate the public- 
 convenience and the safety of the transmis- 
 sion of railroad passengers and freight," is 
 a public use, to acquire necessary property 
 for which the power of eminent domain may 
 be exercised. Ryan v. Louisville & N. Ter- 
 minal Co. 102 Tenn. Ill, 50 S. W. 744, 
 
 45: 303 
 
 111. That the charter of a corporation or- 
 ganized to construct a union terminal for all 
 railroads entering a city fixes no rates to be 
 charged by it for the use of its tracks does 
 not prevent the enterprise from being a pub- 
 lic one. Id. 
 
 112. The incidental right of a corporation 
 organized under Tenn. act Gen. Assem. 1893, 
 chap. 11, to furnish and provide a hotel, res- 
 taurant, and news stand in its union depot, 
 does not convert the undertaking into a 
 mere private enterprise, so as to invalidate 
 the extension to the corporation of the right 
 of eminent domain as respects its proper 
 terminal purposes. Id. 
 Branch, spur, or side tracks. 
 
 For Editorial Notes, see infra, V. 6. 
 
 113. Evidence that all who wish to avail 
 themselves of the proposed switch, branch 
 road, or lateral work can do so, is not suffi- 
 cient to show that the use of the work will 
 be for the benefit of the public. Pittsburg, 
 W. & K. R. Co. v. Benwood Iron Works, 31 
 W. Va. 710. 8 S. E. 453, 2: 080 
 
 114. A railroad company cannot exercise 
 the right of eminent domain to establish a 
 side track merely for the purpose of a pri- 
 vate shipping station for an individual ship- 
 per. St. Louis. 1. M. & S. R. Co. v. Petty, 
 57 Ark. 359. 21 S. W. 884. 20: 434 
 
 115. If side tracks are necessary to facil- 
 itate and hasten the business offered at a 
 certain point to a railroad company, the fact 
 that they will constitute an especial advan- 
 tage to a particular shipper will not defeat 
 the right of eminent domain to procure the 
 right of way. Id. 
 
 116. That the purpose of taking land by 
 a railroad company for a spur track is mere'- 
 ly to reach a particular industry and connect 
 it with the markets along the road will not 
 prevent the legislature from declaring it to 
 be a public one, for which the power of emi- 
 nent domain may be employed. Re Chicago 
 & X. W. R. Co.' 112 Wis. 1. 87 N. W. 849, 
 
 56: 240 
 
 117. The right to take land for a spur 
 track to reach a large ice industry, which 
 track is to be operated for the benefit of all 
 persons desiring service without discrimina- 
 tion, is not defeated by the fact that a single 
 concern intends to furnish a large amount of 
 the freight to be transported over the road, 
 and bear a large part of the expense of es- 
 tablishing the spur track. Id. 
 
 118. The magnitude of the interests in- 
 volved may properly become a determining 
 factor in sustaining the right of a railroad 
 in Montana to construct branches to mines 
 and mining works as public uses, by virtue 
 of th law of eminent domain. Butte. A. & 
 P. R. Co. v Montana I*. R. Co. Hi Mont. 504. 
 41 Pac. 232, 248, 31: 298 
 
 119. The connection of mines and ore 
 houses with a market is a public use in 
 Montana, which will authorize a railroad 
 company to acquire a .right of way for that 
 purpose by right of eminent domain. Id. 
 
 120. A spur track from the line of a rail- 
 road with which it does not connect except 
 at one point, running to mills belonging to 
 private concerns and operated for private 
 profit, is not for a public use which will 
 authorize the condemnation of land for a 
 right of way. Kyle v. Texas & X. O. R. Co. 
 (Tex. App.) No. Off. Rep.. 4: 275 
 Pittsburg. W. & K. R. Co. v. Benwood 
 Iron Works. 31 W. Va. 710, 8 S. E. 453, 
 
 2 : GSO 
 
 121. That the primary purpose of a 
 branch track to a stone quarry is the accom- 
 modation of the owner of the quarry will 
 not prevent the exercise of the right of 
 eminent domain for the acquisition of a 
 rig-ht of way if the track is in fact intended 
 for the use of the public, which will be en- 
 titled to its use whenever the necessity for 
 such use arises. Ulmer v. Lime Rock R. Co. 
 98 Me. 579, 57 Atl. 1001. G6: 387 
 
 122. That all the stock of a railroad 
 company, except that necessary to qualify 
 the directors, is owned by the owner of a 
 stone quarry, does not make the construc- 
 tion of a branch to such quarry so far v 
 private enterprise as to preclude the exer- 
 cise of the power of eminent domain, if UIP 
 purpose of such construction is declared by 
 the corporation to be the accommodation of 
 the public. Id. 
 
 123. The exercise by a railroad company 
 of the power of eminent domain to acquire 
 a right of way for a branch track to a 
 stone quarry is, in effect, a declaration that 
 the branch is subject to the use of the pub- 
 lic, and to public control. Id. 
 
 124. The condemnation of a right of way 
 for a railroad to be built by a manufactur- 
 ing company to connect its manufacturing 
 establishment with another railroad may be 
 authorized by statute under S. C. Const, 
 art. 1, 23, declaring that private property 
 shall not be taken or applied "for public 
 use. or for the use of corporations, or for 
 private use." without consent of the ow.:cr. 
 or just compensation, but providing that 
 law* wav secure to persons or corporations 
 a right of way |<v works of internal im- 
 provement by payment of ju.^t compen-n- 
 tion. Ex pafte Bacot, 36 S. C. 125. 15 S. K. 
 204. 16: 580 
 
 125. The power of eminent domain to ob- 
 tain land for side tracks of a railroad com- 
 pany is not exhausted by one exercise there- 
 of. ' St. Louis, I. M. & S. R. Co. v. Petty. 57 
 Ark. 359. 21 S. W. 884. 20: 434 
 Relocating railroad. 
 
 See also supra, 125. 
 
 For Editorial Notes, see infra. V. 6. 
 
 12(8. A railroad company which has select- 
 ed its route and constructed its road cannot 
 subsequently select a different route for any 
 distance, on the ground that it is more ad- 
 vantageous than the original line, without 
 legislative authority, where its charter 
 makes no provision for a subsequent reloca-
 
 KM IN EN T DOMAIN, I. d, 3. 
 
 1141 
 
 lion. Lushv v. Kansas Cit\ , M. & B. R. Co. 
 
 73 Miss. 3(i<>. 1!) So. 239, 36: 510 
 
 ::. As to Water and Water Kights. 
 
 (cneration of FJcct ricity by Water Power. 
 
 see supra. !):!. 
 Itevicw liy Court as to Necessity of Taking. 
 
 see Courts. ISti. 
 For Kditorial Notes, see infra. V. f; 4. 
 
 127. The use of water for running small 
 motors for light manufacturing is not a 
 public use for which the water can be taken 
 to tlie detriment of millowners on a stream 
 which is tlie source of a water supply, even 
 when the main which supplies the water 
 would furnish, when not requireXl for lire 
 purposes, more than was necessary for oth- 
 er public uses. Re Barre Water Co. 62 Vt. 
 27, 20 Atl. 109, '.): 1!).-) 
 
 128. The fact thai water from the main 
 of a water supply, by reason of the high 
 pressure in the pipes, would be wortli much 
 more for running motors than for supplying 
 power in dams on the stream from which 
 the water supply is taken, gives no right to 
 use it for running such motors for private 
 use without consent of the owners of such 
 dam. Id. 
 Floatage. 
 
 129. The power of eminent domain cannot 
 lie exercised to enable each person desiring 
 to float logs in a stream to do so without 
 the acquisition of any right* on the part of 
 the public. Brewster v. J. & J. Rogers Co. 
 
 (i!) X. V. T:!. ti2 N. K. 1(14. 58:495 
 
 Flowage. 
 For Editorial Notes, see infra, V. $ 3. 
 
 1:50. A statute authorizing lauds to be 
 flowed by raising a pond for the culture of 
 useful lislies is not unconstitutional on the 
 ground that the land is Laken for mere 
 private use, although the object of the own- 
 er or the pond is merely to secure his own 
 pleasure and profit. Turner v. Nye. 154 
 Mass. ;,7!l. 28 X. 10. 104S. 14:487 
 
 Drainage; reclamation ot flats. 
 Infringement of Judicial Power as to, see 
 
 Constitutional Law. 257. 
 For Editorial Notes. M>C infra. A'. 5. 
 
 131. A constitutional prohibition of the 
 taking of private property for private pur- 
 poses is not applicable to a statute provid- 
 ing for the drainage of large tracts of land. 
 Mound City Land & S. Co. v. Miller. 170 .Mo. 
 240. 70 S. \V. 721, liO: 190 
 
 132. The drainage of land by means of 
 the organi/ation of drainage districts under 
 iMiistitutional authority is not a mere 
 private benefit, to aid in which public prop- 
 erty cannot be appropriated. Heffner v. 
 Case cV Morgan Counties, lit:: 111. 439. (12 X. 
 E. 201, 58: 353 
 
 133. A general .plan or scheme for the rec- 
 lamation of the wet or marsh lands of a 
 state for agricultural purposes bv drainage 
 is a public use. for the accomplishment of 
 \\hich the power of eminent domain may 
 be exercised. Sisson v. I'uena Vista Coun- 
 ty. 128 Towa, 44.2. 104 X. W. 454. 70: 440 
 
 134. The reclamation of flats situated up- 
 on Boston harbor and substantially useless 
 
 in their original condition, for the avowed 
 purpose of improving the harbor and of 
 providing better and more complete accom- 
 modations for the railroad and commercial 
 interests of the city of Boston, by tilling 
 such Hats with solid earth, is a matter of 
 such public benefit that the llat^ may In- 
 taken by the commonwealth for such pur- 
 p is,\ under the power of eminent domain. 
 notwithstanding a possible pecuniary benefit 
 to the commonwealth may be contemplat- 
 ed by the sale of the fiats when filled. 
 Hence. Mass, acts 1884, chap. 290, which pro- 
 vides for such taking, is not unconstitu- 
 tional as authorizing the taking of land for 
 a use not public. Moore v. Xanford, 151 
 Mass. -JS5. 24 X. K. 323. 7: 151 
 
 135. Failure expressly to declare that the 
 public welfare is intended to be promoted 
 by a statute for the drainage of wet and 
 overflowed lands and to provide for the 
 determination of that <|iiestion by the coun- 
 ty commissioners, in whom is vested . the 
 power to construct any ditch or drain upon 
 a petition setting forth the necessity there- 
 of, does not render the act unconstitutional 
 as a taking of private property for private 
 use, where, from a consideration of the 
 wnole statute, it is apparent that the legis- 
 lature intended to provide exclusively for 
 the public welfare, and ample opportunity 
 is given to all parties interested to appear 
 and be heard, while the levying of assess- 
 ments is expressly limited to public ditches. 
 State ex rel. Utick v. Polk Countv Conns. 
 S7 Minn. 325, 92 N. W. 21(5, * (.0: 161 
 
 Canals. 
 
 13(5. The right to use a canal for the con- 
 veyance of water may be appropriated 
 under the right of eminent domain. Salt 
 Lake City v. Salt Lake City Water & K. P. 
 Co. 24 Utah, 249. 07 Pac. 672, 61: 648 
 
 137. The rule permitting the acquisition 
 of an easement by the payment of perma- 
 nent damages for injuries done to adjoining 
 property by the construction of a public 
 work is applicable in favor of canal com- 
 panies. Mullen v. Lake Drummond Canal 
 & W. Co. 130 N. C. 49(i. 41 S. K. 1027. 
 
 61 : 833 
 Reservoir. 
 
 Who may Object to Want of Power, see 
 supra. 6. 
 
 138. Authority to condemn land for a 
 reservoir for agricultural and milling pur- 
 pose^ is sufficient to cover its condemnation 
 for power, manufacturing, and ''other bene- 
 ficial uses and purposes," where no sugges- 
 tion is made of an intended use which is not 
 directly or indirectly associated or connect- 
 ed with uses expressly authorized. Denver 
 Power & Irrig. Co. v. Colorado & S. R. Co. 
 30 Colo. 204. 69 Pac. 568, 60: 383 
 Irrigation. 
 
 139. The use of water for irrigating pur 
 po.-e> contemplated by Neb. act March 27. 
 1889. is a ''public use" for which private 
 property may be condemned without the 
 owner's consent. Paxton & II. Iriii:. C. \ 
 L. Co. v. Farmers' & M. Irri-,'. & L! Co. 4'i 
 Neb. 884. 64 N. W. 343, 29: 85:1
 
 1142 
 
 EMINENT DOMAIN, I. c. 
 
 Carrying water. 
 
 140. Condemnation of land for a pipe line 
 by a water supply company formed under 
 general laws, to convey water to a city, 
 cannot be had, where it is not shown that 
 the company has a legal right to enter upon 
 or condemn land in such city, or has already 
 acquired the right to construct or maintain 
 any waterworks therein, or to sell or dis- 
 pose of water to its inhabitants, since the 
 public use which will justify condemnation 
 depends upon the disposition of the water 
 after it reaches the city. Wisconsin Water 
 Co. v. Winans, 85 Wis/26, 34 X. W. 1003, 
 
 20: 662 
 
 141. The right of way to carry water to 
 operate an electric light plant may be taken 
 by eminent domain under the Colorado 
 Constitution, which allows condemnation, 
 among other things, for "flumes or ditches 
 . . . for agricultural, milling, domestic. 
 or sanitary purposes," and expressly gives 
 a right of way across public, private, and 
 corporate lands for ditches, canals, and 
 tiumes. "for mining and manufacturing pur- 
 poses." Bell v. Lamborn, IS Colo. 346, 32 
 Pac. 989, 20: 241 
 Harbor. 
 
 142. Although the .presumption is that 
 the establishment of harbor lines is for a 
 public use in the interest of navigation, yet, 
 if the record shows that their purpose was 
 to prevent a new bridge from being marred 
 by the erection of structures on either side 
 of and connected with it, the proceedings 
 to take property therefor will be held void. 
 Farist Steel Co.'v. Bridgeport. 60 Conn. 278, 
 22 Ail. 561, 13: 590 
 Wharves. 
 
 See also supra. 65. 
 
 143. Condemnation by a city of land for 
 a public wharf cannot be defeated by the 
 fact that it intends to grant a railroad 
 right of way over the property after it has 
 acquired title. Diamond Jo Line Steamers 
 v. Davenport, 114 Iowa. 432, 87 X. W. 399. 
 
 54: 859 
 
 e. Right Acquired. 
 
 On Condemnation of Right to Maintain 
 
 Dam, see Dams. 3. 
 For Editorial Xotes. see infra. V. 9. 
 
 In land taken for highway. 
 
 For Editorial Notes, see infra. V. 9. 
 
 144. The legislature may constitutionally 
 provide that the public, in taking land for 
 highways, may take the buildings absolute- 
 ly, or may take no interest whatever in 
 them. State. Mangles. Prosecutor, v. Hud- 
 son County Freeholders (X. J. Sup.) 55 X. 
 T. L. 88. 25 Atl. 322. 17: 785 
 
 145. A grant of the right of eminent do- 
 main to a corporation for the purpose of 
 constructing a public highway is construed 
 strictly, and as merely giving it a power 
 to acquire such an easement in the land 
 taken as enables it fully to accomplish the 
 purposes for which it was created. Xew 
 .Torsey 7ino & Iron Co. v. Morris Canal & 
 r.ksr. 'Co. (X. J. Ch.) 44 X. J. Eq. 398, 15 
 Atl. 227, 1: 133 
 
 146. A judgment in a proceeding institut- 
 ed under authority of a statute giving city 
 councils the power to extend streets over 
 railroad tracks can clothe the city with 
 nothing more than an easement or right to 
 pass over the tracks. Xo right to the fee 
 or to the exclusive use of the land can be 
 awarded. Illinois C. R. Co. v. Chicago. 14-1 
 111. 586, 30 X. E. 1044, 17: 530 
 
 147. Provision for the acquirement of an 
 easement only, and not for any ownership 
 in the fee, is made by an ordinance passed 
 under authority of a statute giving city 
 councils the power to extend streets over 
 "any railroad track, right of way, or land 
 of 'any railroad company," which ordinance 
 provides for the extension of a street across 
 the right of way. "and for the condemna- 
 tion of railroad property" for the purpose 
 thereof. Id. 
 By water company. 
 
 For Editorial Xotes, see infra, V. 9. 
 
 148. The right of a water company in 
 lands flowed by it under the exercise of emi- 
 nent domain is something more than a mere 
 easement, and includes the right of exclusive 
 occupation, with all attendant riparian 
 rights, for such time as the land is held 
 under the charter. Wright v. Woodcock. 86 
 Me. 113,29 Atl. 953. 25: 499 
 By railroad company as against owner of 
 
 fee. 
 Right to Maintain Ejectment for Property 
 
 Condemned, see Ejectment. 10. 
 See also infra. 157-159. 
 For Editorial Xotes, see infra, V. 9. 
 
 149. A condemnation of lands for depot 
 and station grounds does not pass the fee 
 to the railway company. Lyon v. Mc- 
 Donald. 78 Tex.' 71. 14 S. W. 201, 9: 295 
 
 150. The owner of the fee of land an ease- 
 inent in which is condemned for railroad 
 uses is not entitled to any use of the land 
 except necessary crossings, under the Mis- 
 souri statutes, which require the right of 
 way to be fenced by the railroad company, 
 and provide that a person walking on the 
 track when injured by a train shall bo 
 deemed a trespasser. St. Louis, K. & X. 
 W. R. Co. v. Clark, 121 Mo. 169. 25 S. W. 
 192. 906. 20: 751 
 
 151. The taking of a right of way by a 
 railroad company under a charter which 
 provides that, in the absence of a contract 
 with the landowner, or an assessment of 
 damages for the taking, the land shall be 
 presumed to have been granted to the com- 
 pany, which shall have a good title thereto 
 and enjoy the same as long as it is used for 
 the purposes of the road, and no longer, will, 
 in the absence of such grant or assessment, 
 give the company only an easement in the 
 land: and the owner of the fee may use 
 the land in any way not inconsistent with 
 its use by the company. ' East Tennessee, 
 V. & G. R. Ob. v. West,' 89 Tenn. 293. 14 S. 
 W. 776. 10: 855 
 
 152. Erection and operation of a public 
 grain elevator or warehouse upon a rail- 
 road right of way acquired in condemnation 
 proceedings, whether done by the company 
 or its licensee or lessee, are neither misuse
 
 EMINENT DOMAIN, II. a. 
 
 1148 
 
 nor abandonment of the easement in the 
 land occupied by such structure, so as to 
 give the owner of the fee a right to resume 
 .possession. Gurney v. Minneapolis Union 
 Elevator Co. 03 Minn. 70, 65 N. \V. 136, 
 
 30: 534 
 
 153. Permission by a railroad company to 
 a lumber dealer to use depot grounds as a 
 luini , yard in which to store his lumber 
 until sold, and to use the premises as a 
 place of business generally, although the 
 business of the company is facilitated there- 
 by, is inconsistent with the easement vest- 
 ed in the company, and entitles the owner 
 of the fee to recover from such dealer the 
 rental value of the premises. Lyon v. Mc- 
 Donald, 78 Tex. 71, 14 S. W. 261., 9: 295 
 
 154. The acquisition by a rtulroad or 
 canal company of an easement for a right 
 of way over the land of a riparian owner, 
 along or on the shore of his land, does not 
 deprive hyn of his right to improve the 
 connection of his land with the adjacent 
 tidewater. New Jersey Zinc & Iron Co. v. 
 -Morris Canal & Bkg. Co. (N. J. Ch.) 44 N. 
 J. Eq. 398, 15 Atl. 227, 1: 133 
 
 155. A condemnation by a railroad corpo- 
 ration of upland abutting upon water em- 
 braces also the incidental riparian right of 
 improvement and occupancy of the sub- 
 merged land, although no specific mention is 
 made of riparian rights. Hanford v. St. 
 Paul & D. R. Co. 43 Minn. 110, 44 N. .W. 
 1144, 7: 722 
 
 156. A deed by a railroad company of 
 land purchased by it in fee simple for a 
 right of way is not void until so declared 
 in proceedings by the state, although the 
 company has abandoned its purpose of using 
 the land for a railroad. Chamberlain v. 
 Northeastern R. Co. 41 S. C. 399, 19 S. E. 
 743, 25: 139 
 As against third persons. 
 
 157. When a railroad company has select- 
 ed its location between its terminal points, 
 and surveyed and recorded the same, as 
 required by chap. 157, Vt. Rev. Laws, it 
 requires a vested and exclusive right to 
 luflld its railroad on its recorded location, 
 as against a subsequent sale of the same 
 lands to another company. Barre R. Co. v. 
 Montpelier & W. R. R. Co. 61 Vt. 1, 17 Atl. 
 923, 4: 785 
 
 158. A railroad company which has com- 
 pleted and recorded surveys of its route, as 
 required by the Vermont statute, and which 
 has properly proceeded to have damages 
 assessed, loses none of its rights by a pur- 
 chase from the owner by another company 
 of the land in suit, pending the condemna- 
 tion proceedings. Id. 
 
 159. Where a railroad company has duly 
 made and recorded the survey of its pro- 
 posed route as required by the Vermont 
 laws, a prior unrecorded agreement of 
 which it has no notice, between the land- 
 owner and another railroad company, to 
 convey the land to such other company, 
 will not prejudice the first company, so as 
 to give priority to a deed to the second com- 
 pany, made subsequent to the recording of 
 the survey. Id. 
 
 II. Procedure. 
 a. In General. 
 
 Withholding Mandate of Possession on Ap- 
 peal from Judgment in Ejectment to 
 Permit Condemnation, see Appeal and 
 Error, 1191, 1192. 
 
 Exclusiveness of Statutory Remedy, see 
 Election of Remedies, 11, 13. 
 
 Omission of Mortgagee from Proceedings, 
 see Mortgage, 139. 
 
 Intervention in Condemnation Proceedings, 
 see Parties, 217. 
 
 For Editorial Notes, see infra, V. 10. 
 
 160. Interests in several pieces of land 
 belonging to different owners may be con- 
 demned by one proceeding under N. J. act 
 1890, p. 489. State ex rel. Duke v. Central 
 New Jersey Teleph. Co. (N. J. Sup.) 53 N. 
 J. L. 341, 21 Atl. 460, 11:664 
 
 161. The question of damages to be 
 awarded upon the crossing of one railroad 
 by another may be referred to commission- 
 ers, under a statute providing that courts 
 may regulate and determine the place and 
 manner of making crossings. Butte, A. & 
 P. R. Co. v. Montana U. R. Co. 16 Mont. 504, 
 41 Pac. 232, 248, 31: 298 
 
 162. The existing practice as to con- 
 demnation proceedings in the courts of a 
 state, to which a Federal court sitting in 
 that state is to conform in proceedings to 
 acquire land for the United States, is the 
 practice which obtains in like suits gener- 
 ally, and not in some special and accepted 
 class of cases, such as in the condemna- 
 tion of land for school sites, under N. Y. 
 Laws 1888, chap. 191. Re Secretary of the 
 Treasury, 45 Fed. 396, 11:275 
 
 163. The submission to the jury, in an 
 action to recover damages for injuries to 
 adjoining land by the widening of a canal, 
 of an issue as to permanent damages, is, in 
 effect, a statutory condemnation of an ad- 
 ditional easement, and cannot be demanded 
 by either party if the injury can be reme- 
 died at reasonable expense without interfer- 
 ing with the performance by the canal com- 
 pany of its public duties. Mullen v. Lake 
 Drummond Canal & W. Co. 130 N. C. 496, 41 
 S. E. 1027, 61 : 833 
 
 164. The doctrine that, if a railroad com- 
 pany takes possession of land for a public 
 way. the owner thereof not objecting, the 
 latter will be presumed to have consented 
 thereto, and impliedly agreed to accept a 
 just compensation therefor, and consented 
 to rely upon the statutory method of ob- 
 taining the same, has no application to a 
 case where the rights of the parties are 
 defined by a written instrument. Magin- 
 nis v. Knickerbocker Ice Co. 112 Wis. 385. 
 88 N. W. 300, 69: 833 
 
 Attempt to agree. 
 
 165. In condemnation proceedings to take 
 land for city use, under the Michigan act of 
 1883, the city need not show previous efforts 
 to buy the land or induce its dedication. 
 Detroit v. Beecher, 75 Mich. 454. 42 X. W. 
 986, 4:813 
 
 166. An attempt to agree as to the points
 
 1144 
 
 EMINENT DOMAIN, II. b, c. 1. 
 
 and manner of crossing must be made by a 
 railroad which desires to cross another be- 
 fore it can seek the aid of a court, under 
 Wash. Gen. Stat. 1571. Seattle & M. R. 
 Co. v. State, 7 Wash. 150. 34 Pac. 551, 
 
 22: 217 
 Sufficiency of summons. 
 
 167. A summons in eminent domain pro- 
 ceedings by a city, which states that the 
 "object of the petition is to open and ex- 
 tend Eleventh street from Leverett street 
 to Michigan avenue, where not already 
 opened 60 feet wide, for the use and benefit 
 of the public as a public street and high- 
 way," sufficiently states the object of the 
 petition, as required by the Michigan act 
 of 1883 authorizing such proceedings by 
 cities. Detroit v. Beecher, 75 Mich. 454, 42 
 X. W. 986, 4: 813 
 Notice. 
 
 Due Process of Law in, see Constitutional 
 
 Law, 870. 
 For Editorial Notes, see infra, V. 12. 
 
 168. Notice from viewers in an eminent, 
 domain proceeding, and an appearance in 
 response thereto, cannot give them any au- 
 thority to assess damages for injury by 
 negligent construction of the work, as that 
 is not within their jurisdiction. Stork v. 
 Philadelphia, 195 Pa. 101, 45 Atl. 678, 
 
 49: 600 
 
 169. Notice to mortgagees is not neces- 
 sary on condemnation of land in possession 
 of the mortgagor. Goodrich v. Atchison 
 County Comrs. 47 Kan. 355, 27 Pac. 1006, 
 
 18: 113 
 
 170. A statute requiring each person in- 
 terested in real estate to be served with 
 notice of intention to acquire an interest 
 in it by right of eminent domain does not 
 deprive the court of jurisdiction, except as 
 to persons not served in case of a failure 
 to make service on some of the parties in 
 interest, where it expressly states that per- 
 sons duly served shall be bound by the 
 "subsequent proceedings." State ex rel. 
 Trimble v. King County Super. Ct. 31 Wash. 
 445, 72 Pac. 89, 66: 897 
 
 b. Petition. 
 
 171. A petition for condemnation proceed- 
 ings for improvements by a city, which 
 states the object of the improvement to be 
 the opening "and extending of Eleventh 
 street from Leverett street to Michigan 
 avenue, where not already opened 60 feet 
 wide: and that in making and maintaining 
 the proposed improvement a perpetual right 
 of way over the different pieces or parcels 
 of private property hereinafter described 
 will be necessary; and that such right of 
 way is proposed to be used for the pur- 
 pose of a public street and highway." suf- 
 ficiently states in a "general way" the na- 
 ture and extent of the use of the land 
 to be taken, under the Michigan act of 1883. 
 Detroit v. Beecher, 75 Mich. 454. 42 N. W. 
 086. 4: 813 
 
 172. The specific mention of and includ- 
 ing in the same petition riparian rights in 
 respect to other lands belonging to other 
 
 persons does not affect the construction of 
 the petition and proceedings in respect to 
 the land in question. Hanford v. St. Paul 
 & D. R. Co. 43 Minn. 110, 44 N. W. 1144, 
 
 7: 722 
 
 173. No admission that any damage will 
 be caused by the grading of a street is 
 necessary to the filing of a petition by the 
 city, under S. D. Acts 1891, chap. 94, pro- 
 viding for the ascertainment of damages 
 before taking or damaging private property 
 for public use. Searle v. Lead, 10 S. D. 312, 
 73 N. W. 101, 39: 345 
 Signing of. 
 
 174. A petition to condemn private prop- 
 erty for public use by a city, which is signed 
 "The City of Detroit, by William S. Shee- 
 ran, City Attorney," sufficiently complies 
 with the Michigan statute requiring such a 
 petition to be signed by the city attorney 
 in his official capacity. Detroit v. Beecher, 
 75 Mich. 454, 42 N. W. 986, 4: 813 
 Verification. 
 
 175. A petition for condemnation proceed- 
 ings by a city to take land, under the 
 Michigan statute of 1883, is sufficiently 
 verified when sworn to by the city attorney 
 to the best of his knowledge and belief. 
 
 Id. 
 Reference to map. 
 
 176. A map filed with and referred to in 
 a petition to condemn lands for a telephone 
 line may be used to assist in the description 
 of the size and location of the poles. State 
 ex rel. Duke v. Central New Jersey Teleph. 
 Co. (N. .1. Sup.) 53 N. J. L. 341, 21 Atl. 460, 
 
 1 1 : 664 
 Amendment. 
 
 177. The alienation of property pending' 
 proceedings to acquire title to it by an exer- 
 cise of the power of eminent domain <l<i<>* 
 not render it incumbent on the one seeking 
 the property to amend his petition and 
 bring in the purchaser. Southern I. & M. 
 Bridge Co. v. Stone. 174 Mo. 1, 73 S. W. 
 453, 63: 301 
 
 c. Trial: .Indmnent. 
 
 1. In General. 
 
 Burden of Proof, see Evidence, 642. 
 Evidence on Appeal from Commissioners, 
 
 see Evidence, 1709. 
 
 Right to Open and Close, see Trial, 40. 
 Striking out Evidence as to Value, see Trial. 
 
 31. 
 For Editorial Notes, see infra, V. 11. 
 
 178. In Missouri, condemnation cases in 
 the circuit court involve the exercise of 
 judicial power. Plum v. Kansas City, 101 
 Mo. 525, 14 S. W. 657, 10: 371 
 
 179. It is not error for a judge who heard 
 a case on the question of the necessity of 
 the condemnation of land, under Wash. 
 Code Prac. S 651. to send the jury trial to 
 another judge. Seattle & M'. R. Co. v. 
 State, 7 Wash. 150. 34 Pac. 551. 22: 217 
 
 180. In condemnation proceedings, a state- 
 ment filed by the attorneys of the railroad 
 company, purporting to be an agreement to
 
 EMINENT DOMAIN, II. c, 2. 
 
 1145 
 
 change ihe plan of an embankment, should 
 be stricken from the liles, where there is no 
 proof of authority to such attorneys to 
 make such stipulation. \Yaba s'h. St. L. & 
 P. It. Co. v. McDougall, 126 111. 111. 18 N. 
 E. 291, 1: 207 
 
 1S1. In a proceeding by a magnetic tele- 
 graph company, under Ohio Rev. Slat. 1892, 
 S S 3456-3459. for the purpose of appropriat- 
 ing to its use a part of the right of way of 
 a railroad company organized under the 
 laws of Ohio, it is necessary and jurisdic- 
 lioiial for the court to hear and determine, 
 and so enter of record, that the easement 
 sought to be appropriated by such telegraph 
 company will not in any material degree in- 
 terfere with the practical uses ;o which the 
 railroad company is authorized to put such 
 right of way. and, until the court has so de- 
 termined, it is without jurisdiction to order 
 an appropriation, and impanel a jury for the 
 assessment of compensation to the railroad 
 companv. Cleveland. ( '. C. & St. L. R. Co. v. 
 Ohio Postal Tch-ii-. Cable Co. 68 Ohio St. 306, 
 (i7 X. E. 890, 62: 941 
 
 182. The points and manner of crossing, 
 the place where, and whether under, over, 
 or at grade, are to be decided by the court, 
 on an application by one railroad for the 
 right to cross another, under Wash. Gen. 
 Stat. S 1571. Seattle & M. R. Co. v. State, 
 7 Wash. MO, 34 Pac. 551. 22:217 
 Offer of stipulation for reducing damages. 
 
 183. An offer of a stipulation, as to the 
 manner of using the easement, for the pur- 
 pose of reducing damages at a jury trial in 
 a condemnation proceeding,' will have the 
 same ell'cct as an amendment of the petition 
 upon defendant's right to a continuance in 
 case he is taken bv surprise. St. Louis, K. 
 & X. \V. II. Co. v. Clark, 121 Mo. 169. 25 S. 
 W. 192, 906, 26: 751 
 
 18-1. Paying the damages awarded by com- 
 missioners in a condemnation proceeding, 
 and taking possession of the land, will not 
 pi-event the offering in evidence of a stipula- 
 tion as to the manner of using the easement 
 upon a subsequent jury trial, for the pur- 
 pose of reducing the award. Id. 
 Instructions. 
 See also Trial. 707. 
 
 185. In proceedings by a city, under the 
 Michigan act of 1883, to take land for open- 
 ing a street, it is not improper to instruct 
 that every part of the public is interested 
 iin tliat part of tho city, and that anything 
 that tends to beautify and adorn the city 
 adds to the value, and is a public benefit. 
 Detroit v. Beecher, 75 Mich. 454, 42 N. NY. 
 986, 4: 813 
 Judgment. 
 
 186. A judgment in proceedings by an ele- 
 vated railroad company to condemn lands 
 which at the time the proceedings were in- 
 stituted it could not condemn because of 
 restrictions timposed by. a city ordinance 
 should not. after removal of the restrictions, 
 validate the original invalid taking by giv- 
 ing the landowner interest upon the compen- 
 sation fixed by the jury, from the time when 
 the company first went into occupation, as 
 such owner's damage mav have exceeded 
 
 the interest. Tudor v. Chicago & S. S. R. T. 
 R. Co. 164 111. 73. 46 N. E. 446, 36: 379 
 
 Interpleader. 
 
 1ST. The fact that a minor who files an 
 interplea in proceedings to condemn land- 
 for public use. claiming the compensation to 
 lie awarded, offers no evidence in support of 
 his plea, will not justify its dismissal if it 
 .shows thai he is entitled to any relief. In 
 such case the court must take the necessary 
 action to protect the minor's rights. Hutch 
 inson v. McLaughlin, 15 Colo. 492, 25 Pac. 
 317, 11:287 
 
 188. Under eminent-domain laws, which 
 provide for the fixing of the damages which 
 accrue to all persons in consequence of the 
 condemnation of land, and allow interpleas 
 to be filed, under which the rights of the 
 parties interpleading shall be fully consid- 
 ered and determined, a minor who has given 
 a deed for land sought to be taken may, be- 
 fore, reaching his majority, interplead in 
 condemnation proceedings, alleging a disaf- 
 h'rmance of his conveyance, and have his 
 right to the fund settled therein. Even if 
 he cannot avoid his deed during minority, 
 his right exiists to enter and receive the 
 rents and profits until his right to disaf- 
 firm accrues; and his interplea will be re- 
 garded as an election to exercise such right, 
 which will give him a standing before the 
 court. Id. 
 
 2. Jury and Verdict. 
 
 View by Jury, see Evidence, 1060-1062. 
 Special Legislation as to, see Statutes, 398. 
 For Editorial Notes, see infra, V. 11. 
 
 189. The jury may be permitted, in weigh- 
 ing the evidence in an eminent domain pro- 
 ceeding, to exercise their individual judg- 
 ment as to values upon subjects within 
 their knowledge which they have acquired 
 through experience and observation. Bever- 
 idge v. Lewis, 137 Cal. 619, 70 Pac. 1040, 
 
 59: 581 
 
 190. The jury in a condemnation case are 
 not entitled to rely entirely upon their own 
 judgment in making their assessment of 
 damages, and reject the evidence of compe- 
 tent witnesses, although after inspection 
 they determine that it is a more reliable 
 basis for the estimate than the testimony. 
 Peoria Gaslight & C. Co. v. Peoria Terminal 
 R. Go. 146 111. 372, 34 .N. E. 550, 21 : 373 
 
 191. Mich. Pub. Acts 1883. No. 124. pro- 
 viding for the taking by cities of private 
 property for public improvements, and mak- 
 ing it the duty of the jury to determine 
 "the necessity for taking such private prop- 
 erty for the use or benefit of the public for 
 proposed improvements," sufficiently com- 
 plies with the constitutional requirement 
 that the jury shall ascertain the necessity 
 for using such property. Detroit v. Beech- 
 er. 75 Mich. 454. 42 N!' W. 986, 4: SI 3 
 
 192. The Michigan act of 1883. aul hom- 
 ing the taking of private properly for pub- 
 lic use by cities, is not invalid as not requir- 
 ing the jury to assess the local benefits, as. 
 under the statute of 1SS7. the cost may be 
 nviscd in whole or in part by general tax,
 
 1140 
 
 EMINENT DOMAIN, II. d, III. a. 
 
 and therefore consideration of local benefits 
 is not necessary. Id. 
 
 Sufficiency of verdict. 
 
 193. A verdict for damages caused by the 
 construction of a railroad and a subsequent 
 change therein is not defective because it 
 finds a gross sum to be paid, instead of com- 
 pensation and damage separately, and does 
 not describe the land-. Wabash, St. L. & P. 
 R. Co. v. McDougall, 126 111. Ill, 18 N. E. 
 291, 1:207 
 Verdict by majority. 
 
 Partial Invalidity of Statute as to, see Stat- 
 utes, 96. 
 
 194. A constitutional provision that com- 
 pensation for land condemned "shall be as- 
 certained by a jury of twelve men . . . 
 as prescribed by law" is violated by a stat- 
 ute authorizing a verdict by a majority of 
 the jury. Jacksonville, T. & K. W. R. 
 Co. v. Adams, 33 Fla. 608, 15 So. 257, 
 
 24: 272 
 
 Right to jury trial. 
 See also infra, 269. 
 For Editorial Notes, see infra, V. 11. 
 
 195. Whether or not the drainage of land 
 will be for the public benefit, or particular 
 land shall be included within the district, 
 are not questions to which the right of trial 
 by jury extends under a constitutional pro- 
 vision preserving the right to such trial. 
 Sisson v. Buena Vista County, 128 Iowa. 
 442 ; 104 N. W. 454, 70: 440 
 
 196. A business is not property within the 
 meaning of a statute providing a jury trial 
 to determine the damage in case of injury 
 to "property" by the exercise of the right of 
 eminent domain. Sawyer v. Com. 182 Mass. 
 245, 65 X. E. 52, 59: 726 
 
 197. The owner is not entitled to have 
 compensation for property taken by a mu- 
 nicipal corporation ascertained by a jury, un- 
 der N. D. Const, art. 1, 14, which men- 
 tions a jury only in the clause concerning the 
 appropriation of property to the use of any 
 corporation other than municipal. Martin 
 v. Tyler, 4 N. D. 278, 60 N. W. 392, 25 : 838 
 
 198. The right of an owner whose proper- 
 ty is condemned for public use, to a jury 
 trial upon the question of damages, guar- 
 anteed by S. D. Const, art. 6, 13. providing 
 that private property shall not be taken for 
 public use without just compensation as de- 
 termined by a jury, is preserved by the Da- 
 kota Compiled Laws relating to the sub- 
 ject of assessing damages, 1324 of which 
 provides for an appeal and a jury *rial if 
 the parties cannot agree or the owner is dis- 
 satisfied with the award made by the super- 
 visors. Dell Rapids v. Irving, 7 S. D. 310, 64 
 X.W.I 49, 29:861 
 
 d. Appeal; New Trial. 
 
 Review by Certiorari. see Certiorari, 26. 
 Dismissal of, see Pleading, 179. 
 See also supra, 198. 
 
 Appeal. 
 
 Appealahility of Judgment in, see Appeal 
 
 and Error, 43-45. 
 Reviewribility in United States Supreme 
 
 Court, see Appeal and Error, 72. 
 
 199. The fact that no appeal is allowed 
 from the decision of commissioners as to the 
 necessity of drainage does not invalidate an 
 act providing for the condemnation of lamia 
 for drainage purposes. State ex rel. Balt- 
 zell v. Stewart, 74 Wis. 620, 43 N. W. 947, 
 
 6: 394 
 
 200. Whether the use for which property 
 is sought to be taken under the exercise of 
 eminent domain is public or private is a ju- 
 dicial question, subject to review by the ap- 
 pellate court. Pittsburg, W. & K. R. Co. v. 
 Benwood Iron Works, 31 W. Va. 710, 8 S. E. 
 453, 2: 680 
 New trial. 
 
 See also New Trial, 17. 
 
 For Editorial Notes, see infra, V. 11. 
 
 201. A new trial may be granted in favor 
 of one and not of the other, when both land- 
 lord and tenant are parties to condemna- 
 tion proceedings in which their rights are 
 tried together, but separate verdicts are 
 rendered. Stubbings v. Evanston, 136 111. 
 37, 26 N. E. 577, 11: 839 
 
 202. A new trial as to the assessment of 
 damages should not be refused for the rea- 
 son that the railroad corporation seeking 
 to acquire the property had entered there- 
 on on giving bond pending appeal as pro- 
 vided by the statute, and had made such 
 changes therein as would prevent a new jury 
 viewing it as it was when the proceeding 
 for condemnation was begun. Atchison, T. 
 & S. F. R. Co. v. Schneider, 127 111. 144, 20 
 N. E. 41, 2: 422 
 
 III. Rights and Remedies of Owners, 
 a. In General. 
 
 Measure of Damages in Condemnation Ca=e-=, 
 
 see Damages, III. 1. 
 For Editorial Notes, see infra, V. 13-17. 
 
 203. A liberal construction should be giv- 
 en to the constitutional provision for just 
 compensation to the owners of property tak- 
 en or damaged for public use. Searle v. 
 Lead, 10 S. D. 312, 73 N. W. 101, 39: 345 
 
 204. Provision as to taking private prop- 
 erty for public use without compensation 
 does no.t prevent the taking of milk from 
 dealers for inspection and analysis. State 
 v. Dupaquier, 46 La. Ann. 577, 15 So. 502, 
 
 26: 162 
 
 205. Authority given to a resident gen- 
 eral guardian of an infant to agree with a 
 railroad company upon the amount of dam- 
 ages for taking lands of the infant, or to 
 release the claim or right to damages, does 
 not require any condemnation of the prop- 
 erty and ascertainment of the value before 
 the guardian is authorized to make such 
 agreement or release. Louisville, N. O. & T. 
 R. Co. v. Jordan, 69 Miss. 939, 11 So. 111. 
 
 16: 251 
 
 206. A conveyance of a right of way 
 across an infant's lands to a railroad com- 
 pany is not a dedication to public use with- 
 out compensation because there was no 
 money consideration, where it was made on 
 a condition subsequent that a depot, station
 
 EMINENT DOMAIN, III. b, 1. 
 
 1147 
 
 foouse, and tank should be maintained upon 
 the land. Id. 
 
 207. Where an owner recovers interest on 
 4in award of damages for land taken for 
 public use, he must account for rents and 
 profits from the time of the taking. Plum 
 
 v. Kansas City, 101 Mo. 525, 14 S. W. 657, 
 
 10: 371 
 
 208. Waiver of the right to have the 
 whole damages for land the fee of which 
 is taken for public use assessed and paid in 
 money will be effected by the agreement of 
 -the former owner of the land that, if the 
 proceedings are abandoned for his benefit, 
 .and the title revested in him, his damages 
 will be very light, if any. Hellen v. Med- 
 ford, 188 Mass. 42, 73 N. E. 107t\, 69: 314 
 
 209. The constitutional requirement of 
 just compensation to the owner of a lot, of 
 which part is taken and the remainder dam- 
 .aged by opening an alley across the lot, can- 
 not be complied with by charging the own- 
 er with the amount as a special tax on that 
 part of his lot which is not taken. Such 
 
 .assessment would amount practically to con- 
 fiscation. Bloomingtdn v. Latham, 142 111. 
 462, 32 N. E. 506, 18: 487 
 
 210. The constitutional provision against 
 taking private property for public use with- 
 out just compensation applies to money as 
 well as other property, and prevents a mu- 
 -nicipal tax on property or business so sit- 
 uated that it can receive no protection or 
 "benefit from the rmmicipality. Kaysville v. 
 Ellison. 18 Utah, 163, 55 Pac. 386, 43: 81 
 
 211. The failure of a statute to provide 
 compensation by way of interest from the 
 date of the paper taking or formal taking 
 of land by eminent domain to the date of 
 actual entry and taking of possession does 
 710* make the statute unconstitutional as 
 failing to provide reasonable compensation. 
 'Norcross v. Cambridge, 166 Mass. 508, 44 
 1ST. E. 615, 33: 843 
 
 212. An amendment to a city charter au- 
 thorizing the condemnation of land outside 
 -the city limits for park purposes is not in- 
 valid for not providing compensation to the 
 owner of the land taken, where it provides 
 -that the proceedings for the exercise of the 
 power of condemnation shall be the same as 
 that now provided by law for the taking of 
 private property for public use, and the 
 charter of the city incorporates within it- 
 <self the general condemnation- statutes of 
 -the state. Memphis v. Hastings, 113 Tenn. 
 142, 86 S. W. 609, 69: 750 
 
 213. Xo one but the owners can raise an 
 -objection that their private property is tak- 
 -en by the state without fair compensation. 
 Waterloo Woolen Mfg. Co. v. Shanahan, 128 
 N. Y. 345, 28 N. E. 358, 14: 4S1 
 
 fc. What Constitutes a Taking of, or In- 
 jury to. Property. 
 
 1. In General. 
 
 As to Consequential Injuries from Taking, 
 
 see infra, III. e. 
 As to Necessity of Making Compensation 
 
 Generally, see infra, III. c, 1. 
 
 As to Additional Servitude, see infra, IV. 
 
 Compelling Railroad Companies to Issue In- 
 terchangeable Mileage Tickets see Car- 
 riers, 1079, 1080. 
 
 Requiring Street Car Passengers to be Car- 
 ried without Sufficient Reward, see Con- 
 stitutional Law, 741. 
 
 Prohibiting Possession of Game during Close 
 Season, see Constitutional Law, 774. 
 
 Annexation of Territory to City as, see Con- 
 stitutional Law, 643. 
 
 Making Deductions from Salaries of Teach- 
 ers, for Pension Fund, see Constitu- 
 tional Law, 657. 
 
 By Obstructing Surface Water, see Munic- 
 ipal Corporations, 538. 
 
 See also Taxes, 79. 
 
 For Editorial Notes, see infra, V. 16, 17. 
 
 214. Land is taken by purchase, and not 
 by condemnation, when In pursuance of an 
 agreement with the owner a decree is ob- 
 tained for payment to him, and denying the 
 alleged rights of other persons who have 
 given notice not to pay him. Chamberlain 
 v. Northeastern R. Co. 41 S. C. 399, 19 S. E. 
 743, 25: 139 
 
 215. A mere change in the use of land 
 from agricultural to city purposes is not 
 taking private property for public use. Cal- 
 len v. Junction City, 43 Kan. 627, 23 Pac. 
 652, 7: <"36 
 
 216. Assessments or charges for the crea- 
 tion of an assurance fund, under Ohio act 
 April 27, 1896, made upon the issuance of 
 certificates of title, when made on real es- 
 tate in the hands of an assignee for credi- 
 tors, constitute an unconstitutional taking 
 of property without the consent of the own- 
 ers and without compensation for uses that 
 are not public, since the fund is for the ben- 
 efit of persons whose lands have been wrong- 
 fully taken from them. State ex rel. Mon- 
 nett v. Guil'bert, 56 Ohio St. 575, 47 N. E. 
 551, 38:519 
 
 217. The abatement of a nuisance does 
 not constitute a taking of private property 
 for public purposes for which compensation 
 is required by Iowa Const, art. 1, 18. 
 State ex rel. Remley v. Meek, 112 Iowa, 338, 
 84 N. W. 3, 51 : 414 
 
 218. Requiring the substitution of water- 
 closets for school sinks, which were placed 
 upon the property by direction of the legis- 
 lature, does not, when demanded for the 
 preservation of the public health, amount to 
 a taking of property for public use without 
 just compensation. Tenement House De- 
 partment v. Moeschen, 179 N. Y. 325, 72 N. 
 E. 231, 70: 704 
 
 219. Requiring one to cut weeds on his 
 property is not a taking of the property 
 within the meaning of a constitutional pro- 
 vision that private property shall not be 
 taken for private use, or for public use with- 
 out compensation. St. Louiis v. Gait, 179 
 Mo. 8, 77 S. W. 876. 63: 778 
 
 220. Forbidding the use of land near a 
 park or park way for advertising purposes 
 amounts to a taking of it for public use, for 
 which compensation must be made. Com. v. 
 Boston Advertising Co. 188 Mass. 348, 74 
 N. E. 601, 69:817
 
 1148 
 
 EMINENT DOMAIN, III. b, 2. 
 
 221. There is a taking of property with- 
 in the meaning of the Constitution, when 
 the owner of a lot fronting on a boulevard 
 is. by authority of a statute or ordinance, 
 prohibited from building upon a certain 
 portion of it between a building line there- 
 bv established and the street. St. Louis v. 
 Hill, 110 Mo. 527, 22 S. W. 861, 21: 226 
 
 222. The depreciation of the value of 
 real property caused by the establishment 
 of a smallpox hospital in the neighborhood 
 under statutory authority does not consti- 
 tute a taking or damaging of private prop- 
 erty for public use without just compensa- 
 tion within the meaning of 111. Const, art. 
 2. 13. Frazer v. Chicago, 186 111. 480, 57 
 X. E. 1055. 51 : 306 
 Tax or assessment. 
 
 223. The constitutional provision that pri- 
 vate property sha,ll not be taken or dam- 
 aged for public use without just compen- 
 sation is not a limitation of the taxing 
 power of the state, but of the exercise of 
 the power of eminent domain. Kimball v. 
 Crantsville City, 19 Utah, 368, 57 Pac. 1. 
 
 45: 628 
 
 224. The levy of a local assessment or 
 special tax for public improvements is not 
 :\ taking of private property for public 
 use under the right of eminent domain, but 
 is an exercise of the taxing power. Adams 
 County v. Quincy, 130 111. 566. 22 X. E. 624. 
 
 6: 155 
 
 225. Assessments of abutting property for 
 sidewalk improvements, not being an exer- 
 cise of the right of eminent domain, do not 
 fall within the constitutional provision that 
 private property shall not be taken or dam- 
 aged for public purposes without the pre- 
 vious payment of just and adequate com- 
 pensation. Speer v. Athens. 85 Oa. 49. 11 
 S. E. 802. 9: 402 
 Taking of turnpike or toll bridge. 
 
 226. The use of a public toll bridge for 
 an electric railway on payment of adequate 
 tolls is not a taking of or injury to the 
 property in the exercise of the power of 
 eminent domain. Pittsburgh & W. E. Pass. 
 R. Co. v. Point Bridge Co. 165 Pa. 37. 30 
 Atl. 511, 26: 323 
 
 227. The destruction of the value of a 
 turnpike and toll bridge which did not have 
 an exclusive franchise, by the establish- 
 ment of a free bridge as part of the public 
 highway, is not a "taking" of the property 
 of the turnpike company for which compen- 
 sation is required. Clarksville & R. Turn- 
 pike Co. v. Montgomery Countv. 100 Tenn. 
 417. 45 S. W. 345. 58: 155 
 Making county liable for death by mob. 
 
 228. There is no taking of private prop- 
 erty within the meaning of the constitution- 
 al provisions as to eminent domain by a 
 statute making a county liable to a penalty, 
 to be collected by taxation, for the death 
 of a person caused by mob violence. Cham- 
 paign County v. Church. 62 Ohio St. 318. 
 57 X. E. 50.' 48: 738 
 Authorizing trespass. 
 
 229. Crossing uncultivated land to reach 
 public waters for the purpose of fishing, 
 which is declared bv Vt. Acts 1S92. Xo. SO, 
 
 not to be actionable unless actual damage is- 
 done, is nevertheless a trespass if done 
 against the will of the owner, and consti- 
 tutes a taking of private property for pri- 
 vate use contrary to the Constitution. New- 
 England Trout & S. Club v. Mather, 68 Vt. 
 338. 35 Atl. 323, 33: 54 in 
 
 2. As to Streets and Highways. 
 
 Conversion of Highway into Pleasure 
 Driveway, see Constitutional Law. 764. 
 
 230. Depriving the owner of a lot abut- 
 ting on a public street, of, or materially 
 interfering with, his enjoyment of the ease- 
 ment in the street, to its full width, for 
 admission of light and air to his lot, is a 
 taking of his property for public use, with- 
 in the Minnesota Constitution, for which 
 full compensation must be made. Adams 
 v. Chicago, B. & N. R. Co. 39 Minn. 286, 
 39 X. W. 629, 1 : 4!)3 
 Lamm v. Chicago, St. P. M. & O. R. Co. 45 
 Minn. 71, 47 N. W. 4.').-). 10 : 268 
 
 231. The use of a street for other than 
 legitimate street purposes, which consti- 
 tutes any impairment of or interference 
 with the easements of an abutting owner, 
 is a caking of his. property within the 
 meaning of the Constitution. Willamette 
 Iron Works Co. v. Oregon R. & Nav. Co. 
 26 Or. 224, 37 Pac. 1016, 29: 88 
 
 232. The placing by a private lighting 
 company of poles at the curb in a street, 
 and the stringing thereon of electric light 
 cable lines and wires for the purpose of fur- 
 nishing light and energy to private takers, 
 constitute a diversion of the street from 
 the purposes to which it was dedicated, and 
 a taking of the property ot the abutting 
 owner within the meaning of the Ohio Bill 
 of Rights; and such taking is none t bo- 
 less unauthorized because consented to by 
 the city authorities. Callen v. Columbu? 
 Edison 'Electric Light Co. 66 Ohio St. 166. 
 64 N. E. 141, 58: 782: 
 
 233. Private property is taken for public 
 use without just compensation, when abut- 
 ting property owners are compelled to 
 keep sidewalks in front of their premises 
 free from snow. State v. Jackman, 69 X. 
 H. 318, 41 Atl. 347, 42: 43$ 
 Railroad in. 
 
 234. The construction and operation of a 
 surface railroad along and upon a city 
 street, substantially upon the same grade 
 therewith, under authority from the legisla- 
 ture and by permission of the city, is not 
 a taking of any property of an abutting 
 landowner who has no title to any portion 
 of the street, which will entitle him to 
 compensation either for interference with 
 any of his easements in the street, or for 
 consequential damages to his adjoining 
 property necessarily resulting from a rea- 
 sonable operation of the road, where the 
 use of the street is not exclusive in its 
 nature, and the passage through and across 
 it is left free and unobstructed for the 
 public. Fobes v. Home. W. & 0. R. Co. 
 121 N. Y. 505, 24 N. E. 919, 8: 453
 
 KMINKNT DOMAIN, III. b, 3. 
 
 1149 
 
 23o. Tlit- mere depreciation in Hit- value 
 of the lut of an abut t ing OSVIHT who does 
 not own the fee of the street. by the con- 
 si ruction of a railroad in the street, and 
 his deprivation of the lull use of the street, 
 but without any invasion of or physical in- 
 terference with his lot. or any obstruction 
 of his access thereto, is not a taking of his 
 property, within the meaning of tin- con- 
 stitutional provision as to compensation for 
 propertv taken. O'Mricii v. Baltimore P.elt 
 R. Co. 74 Md. 303, 22 All. 141. 13: 120 
 
 230. Kan. Comp. Laws 1885. chap. 2S. S 
 17. suhd. 4. authorizing the eonstruetion of 
 railroads in streets, is not in contraven- 
 tion of Kan. Const, art. 12. 4. or of the 
 -M h Amendment to the Constitution of the 
 Tinted State-. MS the constitutional right 
 t<i compensation for private property taken 
 for public use does not extend to instances 
 where the land is not actually taken, but 
 indirectly or consequentiallv injured. Ot- 
 tawa. ()'. C. & C. C.. 11. Co. v. 'Larseii, 40 
 Kan. 301. 19 Pac. lit! I. 2: 59 
 
 Elevated railroad in. 
 
 237. There is no "taking" of the prop- 
 erty of an abutting owner by the erection 
 in the bed of the street by an elevated 
 railroad company of a stone abutment 9 
 feet high, which reduces the width of the 
 Mred in front of his premises to less than 
 10 feet, interfering with light and air and 
 nearly destroying access to his property 
 from 1 he street. (iarrell v. Lake Roland 
 Kiev. R. Co. 7!) Md. 277. 2!) Atl. 830. 24: 390 
 
 23.S. The construction in a public street 
 of an elevated railroad track for the use of 
 train> to be operated by steam, so as to in- 
 lerfere with the abutting owner's right to 
 light, air. access, and privacy, is a taking 
 of hi- property for which, under the Con- 
 stitution, he is entitled to .compensation. 
 l)e (ieofroy v. Merchant'.- ISridge Terminal 
 I! Co. 179 Mo. 098. 79 S. W. 388, 04: !).V. 
 Street railway in. 
 See also supra. 237. 238. 
 
 239. An ordinance designating the loca- 
 tion of trolley poles in a street inside of 
 i he curb is not invalid as a taking of pri- 
 vate property of abutting owners without 
 compensation, where the designation is 
 merely with a view to public convenience 
 in the use of the streets, and the corpora- 
 tion, if it needs private property, must get 
 it by agreement with the owners, and has 
 no power under the statute to obtain it by 
 eminent domain. State e\ rel. Roebling 
 v. Trenton Pass. R. Co. (X. .1. Krr.'& App. I 
 :.S X. .1. L. tiliO. 34 Atl. 1(190. 33: 129 
 Changing grade of street. 
 
 Requiring Conformity of Railroad Tracks 
 with Change of (Jrade. see Constitu- 
 t ional Law. 700. 
 
 Injunction against Wrongful Taking by. 
 -e Injunction. 38.1. 490, 497. 
 
 240. A city is liable to an abutting own- 
 er for removing the lateral support to his 
 land by grading a street, al lea-t if it is 
 done negligently, with knowledge that his 
 land is liable to slide, even it there i- no 
 enlist itutional provision against "damag- 
 ing," but only against "taking." property 
 
 for public use- without just compensation. 
 Such injury to his property would seem to 
 eon-tit ul e a "taking." I'arke v. Seattle. 
 5 Wash. 1.31 Pac. 310. 20: 6H 
 
 241. Raising the grade of a street to such 
 a height that the earth of the till slides 
 over upon adjoining premises so far as to 
 cover up a portion of the owner's dwelling 
 l>\ the embankment, closing a door and 
 lower window.-, constitutes a taking of the 
 property, within the meaning of the con- 
 stitutional provision requiring just com- 
 pensation when private property is taken 
 for public use. Yanderlip v. (jrand Rapids. 
 
 73 Mich. :>22. 41 X. W. (177. 3: 247 
 
 242. A change of grade by erecting a 
 viaduct the surface of which becomes the 
 surface of the street, by which erection the 
 light and air for Abutting property are 
 abridged and access therefrom to the street 
 totally cut off. is not a ''taking" of private 
 property, within the meaning of a const! 
 tutional provision as to compensation, 
 where the viaduct is made by municipal 
 authority in the exercise of its power to 
 change the grade, though under an agree- 
 ment by which railroad companies whose 
 tracks are to be thus abridged are to con- 
 tribute towards the expense. Selden v. 
 .Jacksonville, 28 I/la. .1.18. 10 So. 457, 14: 370 
 Discontinuance of highway. 
 
 243. The discontinuance of a road is not 
 a taking or damaging of the property of an 
 abutting owner within the constitutional 
 provision as to compensation for .property 
 taken or damaged for public use. Levee 
 Dist. No. 9 v. Farmer, 101 Cal. 17<8. 3.1 Pac. 
 .109, 23: 388 
 
 244. The interest of an adjoining land- 
 owner in a highway is property, within the 
 meaning of a constitutional provision that 
 property cannot be taken for public u-e 
 without compensation; and the discon- 
 tinuance of the highway is a "taking" of 
 such property. Pearsall v. Eaton County, 
 
 74 Mich. 558* 42 N. W. 77, 4: 193 
 24.1. Closing the street between the land 
 
 of an abutting owner and the nearest in- 
 tersecting street, without furnishing an- 
 other convenient and reasonable outlet in 
 that direction, or making compensation for 
 the damages, is taKing private property 
 without due compensation. Gargan v. 
 Louisville. X. A. & C. R. Co. 89 Ky. 212. 
 12 S. W. 259. '0: 340 
 
 3. A- to Water and Water Rights: Sewage. 
 
 Prohibiting Fishing in Brook, see Const i 
 
 1 ut ional Law. 985. 
 By Reducing Water Rates, see Waters. .199. 
 
 240. An appropriation of water and a 
 \\aler plant to public use by the state, for 
 which just compensation must be made, i- 
 in etl'ect made by Cal. Const, art. 14, $ 1. 
 which subjects to the control of the state 
 e\ery public water supply. '(Per Van Fleet, 
 llenshaw. and McFarland. -TJ.) San Dieg.i 
 Water Co. v. San Diego. 118 Cal. 550. 50 
 Pac. 03::. 38: 400 
 
 247. The destruction of a mill and a mill
 
 1150 
 
 EMINENT DOMAIN, III. b, 3. 
 
 dam by village trustees in time of danger 
 to prevent damage to a highway and other 
 property, even it they act with authority, 
 is not a taking of property for a public 
 nse in the exercise of eminent domain, but 
 rather an exercise of the police power of 
 the state. Aitken v. Wells River, 70 Vt. 
 308, 40 Atl. 829, 41 : 566 
 
 Drainage. 
 
 248. A statute requiring every railroad 
 company to drain off the water accumulat- 
 ing along its right of way from the con- 
 struction of the road, without regard to 
 whether such water is detrimental to the 
 public health and welfare or injurious to 
 contiguous lands, and providing that if 
 any company, after due notice, fail to com- 
 ply with the statute, a proper ditch may 
 be' constructed by public authorities, upon 
 petition of any owner or tenant of land 
 contiguous to the road feeling himself ag- 
 grieved and the cost assessed upon the rail- 
 road company, is unconstitutional as a 
 taking of private property for private use. 
 Chicago & E. R. Co. v. Keith, 67 Ohio, 279, 
 65 X. E. 1020, 60: 525 
 
 249. A statute providing for the cleaning 
 of drainage ditches and the assessment of 
 the cost thereof, according to benefits, upon 
 the parties along its line who were as- 
 sessed for the cost of its original construc- 
 tion, does not take private property for 
 public use without compensation, since the 
 property occupied by the ditch was taken 
 by its original construction, when the par- 
 ties along its line whose lands were taken 
 had ample opportunity to obtain com- 
 pensation. Taylor v. Crawford, 72 Ohio 
 St. 560, 74 N. E. 1065, 69: 805 
 Flowing or flooding of land. 
 
 250. Overflowing land, not as a mere 
 casual trespass, but as the effect of raising 
 the water above high-water mark to im- 
 prove navigation, is a taking of property. 
 Carlson v. St. Louis River Dam & 1. Co. 
 73 Minn. 128, 75 N. W. 1044, 41: 371 
 
 251. The flowing of land by a dam for 
 manufacturing purposes is a taking within 
 the meaning of the constitutional provision 
 regulating the taking of land by right of j 
 eminent domain. Avery v. Vermont Elec- 
 tric Co. 75 Vt. 235, 54 'Atl. 179. 59: S17 : 
 
 252. To prohibit the flowing of water up- j 
 on any street or alley from a flowing well j 
 or spring is not a taking of property with- ! 
 in the constitutional provision on that sub- 
 ject. Skaggs v. Martinsville, 140 Ind. 476, 
 39 X. E. 241, 33: 781 
 Riparian rights. 
 
 253. Any actual and material interfer- 
 ence with riparian rights, which causes 
 special and substantial injury to the own- 
 er, is a taking of his property. Mansfield 
 v. Balliett, 65 Ohio St. 451, 63 N. E. 86. 
 
 58: 628 
 
 254. The wharfage and reclamation 
 rights of the owner of land on a cove 
 leading off from a river are not destroyed 
 or impaired by the construction of an em- 
 bankment across the mouth of the cove. 
 Richards v. Xcw York. X. H. & IT. R. Co. 
 77 Conn. 501, 60 Atl. 295, 69: 929 
 
 255. The building, by a state or its gran- 
 tees, of wharves upon the shore of naviga- 
 ble waters, will not constitute either a 
 taking or damaging of the private prop- 
 erty of riparian proprietors for public use. 
 Eisenbach v. Hatfield, 2 Wash. 236, 26 Pac_ 
 539, 12: 632: 
 
 256. Damage to rice fields by the con- 
 struction of a dam in harbor improvements,, 
 thus raising the low-water level in a navi- 
 gable river, and destroying the drainage of 
 the fields, and increasing their liability to 
 overflow in time of freshets, does not con- 
 stitute a taking of the property, within the- 
 meaning of the constitutional provision for 
 compensation. The rights of riparian own- 
 ers are subordinate to the power of the gov- 
 ernment to control and improve navigation. 
 Mills v. United States, 46 Fed. 73S. 
 
 12: 67$ 
 
 257. A taking, or appropriation, of prop- 
 erty, within the meaning of a constitu- 
 tional provision requiring the payment for 
 property taken for public use, is not effect- 
 ed by the construction of bridge piers in a, 
 navigable river and the dredging of the- 
 channel so as to change the current and 1 
 cause it to run directly against the bank, 
 tearing and carrying away portions of the- 
 land of the riparian owner. Salliotte v. 
 King Bridge Co. 58 C. C. A. 466. 122 Fed. 
 378, 65: 620 
 
 258. Incidental injuries to land by the 
 washing away of the soil of the banks and 
 bottom of a stream, caused by a reasonable- 
 increase of the flow of water at certain 
 times, produced by a dam authorized by the- 
 legislature to facilitate the driving of logs^ 
 is not a taking of the property of a, 
 riparian owner for which compensation is- 
 necessary. Brooks v. Cedar Brook & S. C. 
 R. I. Co. 82 Me. 17, 19 Atl. 87, 7: 46O 
 Sewage. 
 
 Consequential Injuries bv, see infra, 361 
 
 366. 
 Assessment for Cost of Sewer as, see Drain* 
 
 and Sewers, 15. 
 For Editorial Notes, see infra, V. 16. 
 
 259. The destruction of oysters by the 
 casting of sewage upon them, though the 
 sewer was constructed by a city under leg- 
 islative authority, is as clearly a taking of 
 the property of the owner of the oyster 
 bed, for which he has a constitutional 
 right to compensation, as if there had been 
 a physical removal and conversion of the 
 oysters. Huffmire v. Brooklyn, 162 N. Y. 
 584, 57 N. E. 176, 48: 421 
 
 260. The lessening of the value of an 
 estate by destruction of the grass and the 
 creation of some personal discomfort to 
 the owner by the discharge of sewage there- 
 in is not such a taking of his property as 
 entitles him to compensation, where the 
 damage results from the discharge of sew- 
 age into a stream by a city in a skilful 
 manner and in conformity to statute, since 
 the damage is merely consequential. Val- 
 paraiso v. Hagen, 153 Ind. 337, 54 X. E. 
 1062, 43: 707
 
 EMINENT DOMAIN, III. b, 4, c, 1. 
 
 It51 
 
 4. Crossing Railroad. 
 
 See also infra, 267. 
 
 261. The crossing or intersecting of the 
 road of one railway company by that of an- 
 other is the taking of property within the 
 meaning of constitutional provisions re- 
 quiring compensation to be made. Mem- 
 phis <& C. R. Co. v. Birmingham, S. & 
 T. R. R. Co. 96 Ala. 571, 11 So. 642, 
 
 18: 166 
 
 262. There is no taking of property of 
 a railroad company by reason of the 
 hindrance and burden imposed by the cross- 
 ing of its tracks by a street railway which, 
 in exercising its franchise in enjoyment of 
 the public easement, is laying its tracks 
 along the street. Chicago & C. Terminal 
 R. Co. v. Whiting, H. & E. C. Street R. Co. 
 139 Ind. 297, 38 N. E. 604, 26: 337 
 
 263. A railroad company which by city 
 ordinances has acquired a permanent ease- 
 ment in streets crossed by its tracks is not 
 entitled to compensation for the crossing of 
 such tracks by a street railway laid along 
 the street under permission from the city, 
 as such easement is in subordination to the 
 right of the public to pass along the streets, 
 and the propelling of street cars is only a 
 form of the exercise by the public of such 
 right of passage, and does not operate as 
 an infringement upon such easement. Chi- 
 cayo, H. & Q. R. Co. v. West Chicago 
 Street R. Co. 156 111. 255, 40 N. E. 1008, 
 
 29: 485 
 
 264. A statute requiring any railroad 
 company to build, at its own expense, a 
 crossing for any individual whose residence 
 is separated by the railroad from a public 
 highway, is, if such crossing is to be con- 
 sidered as for a public use, unconstitutional 
 in taking the property of the company for 
 public nse without compensation. People 
 v. Detroit, G. H. & M. R. Co. 79 Mich. 471, 
 44 N. W. 934, 7: 717 
 
 c. Right to Compensation. 
 1. Necessity of Making Compensation. 
 
 What Constitutes a Taking for Which 
 
 Compensation Must be Made, see supra, 
 
 III. b. 
 As to Consequential Injuries from Taking, 
 
 see infra, III. e. 
 As to What Constitutes an Additional 
 
 Servitude, see infra, IV. 
 To whom Failure to Make Provision for 
 
 Compensation Available, see Action or 
 
 Suit, 60. 
 Where Injury to Property is Authorized by 
 
 Statute, see Action or Suit, 41. 
 Due Process of Law as to, see Constitu- 
 tional Law as to, see Constitutional 
 
 Law, II. b, 2, 6. 
 On Destruction of Property Which is a 
 
 Public Nuisance, see Constitutional 
 
 Law, 970. 
 
 Amount of Recovery, see Damages, III. 1. 
 Proper Remedy for Recovery of Damages, 
 
 see Election of Remedies, 11. 
 
 On Discontinuing Highway, see Highways, 
 V. a, 2. 
 
 Right to Enjoin Use of Elevated Railroad 
 until Compensation is made, see High- 
 ways, 166. 
 
 Requiring City to Pay for Easement for 
 Park, see Municipal Corporations, 58. 
 
 Necessity of Pleading Damages, see Plead- 
 ing, 237. 
 
 On Crossing of Railroad Track by Street 
 Railway, see Railroads, 47, 48. 
 
 On Opening Canals for Dockage, see Wa- 
 ters, 30. 
 
 For Taking or Impairing Riparian Rights, 
 see Waters, 179. 
 
 See also Trial, 511. 
 
 For Editorial Notes, see infra, V. 18. 
 
 265. The legislature cannot authorize the 
 taking of private property for public use 
 without just compensation. Abendroth v. 
 Manhattan R. Co. 122 N. Y. 1, 25 N. E. 496 r 
 
 11: 634 
 
 266. The charter duty of a railroad com- 
 pany to pay the damages indicted on in- 
 dividuals by the exercise of its powers is- 
 not removed because it is compelled by the 
 state to make changes in its roadbed for 
 the public good. McKeon v. New York, N. 
 H. & H. R. Co. 75 Conn. 343, 53 Atl. 656. 
 
 61: 730 
 
 267. The provision of Ala Const, art. 14, 
 21, that "every railroad company shall 
 have the right with its road to intersect, 
 connect with, or cross any other railroad, 
 and shall receive and transport each the 
 other's freight, passengers, and cars, load- 
 ed or empty, without delay or discrimina- 
 tion," does not give a railroad company 
 the right to cross another road without 
 compensation. Memphis & C. R. Co. v. Bir- 
 mingham, S. & T. R. R. Co. 96 Ala. 571, 
 11 So. 642, 18: 166 
 
 268. An ordinance vesting in a committee 
 the power to condemn property within a 
 square selected as the site for the court- 
 house, if unable to agree with the owners, 
 and a mere delay in acquiring title after 
 request and warning by a landowner and 
 after the city had acquired title to a con- 
 siderable part of the square, give no claim 
 for damages because of the uncertainty of 
 tenure and injury to business to the owner 
 of a long lease of property on such square 
 which is in use for a hotel, since the ordi- 
 nance is not the beginning of condemnation 
 proceedings. Shanfelter v. Baltimore, 80 
 Md. 483, 31 Atl. 439, 27: 648 
 To municipality. 
 
 269. A municipal corporation, though 
 holding the title to its streets, has no 
 private proprietary interest in them which 
 entitles it to compensation when they are 
 subjected to an authorized additional pub- 
 lic burden by the construction of a tele- 
 phone line therein; but, being charged 
 with the duty of keeping the streets under 
 its control in repair, it may be allowed com- 
 pensation to an amount sufficient to make 
 the repairs rendered necessary by such ad- 
 ditional use. It is not essential that provi- 
 sion be made for the assessment of such
 
 1152 
 
 EMINENT DOMAIN, III: c, I. 
 
 compensation by a jury. Zanesville v. 
 .Zanesville Teleg. & Teleph. Co. 64 Ohio St. 
 07, 59 N. E. 781, 52: 150 
 
 To owner of established business. 
 As to Consequential Injuries to Business, 
 see infra, 318, 319. 
 
 270. A farmer who supports, his family 
 from the products of the farm, and for 
 many years has sold his surplus in a neigh- 
 boring town, has an established business 
 within the meaning of a statute authoriz- 
 ing the construction of a water-supply 
 reservoir upon the site of the town, and 
 providing compensation for any established 
 business thereby destroyed, although he 
 has no regular route or customers, or any- 
 thing in the nature of good will. Allen v. 
 Com." 188 Mass. 59. 74 N. E. 287. 69: 599 
 To abutting owner. 
 
 On Constructing Railroad in Street, see 
 
 Highways, 142. 
 Use of Public Money to Pay, see Public 
 
 Moneys, 17. 
 Retrospective Statute as to, see Statutes, 
 
 544. 
 See also supra, 41. 
 
 271. The right to the use of the street 
 in front of abutting lots is property within 
 the protection of a constitutional provision 
 against taking property without compensa- 
 tion. Spencer v. Metropolitan Street R. Co. 
 120 Mo. 154. 23 S. W. 126. 22: 68 
 
 272. An abutting owner, whether owning 
 the fee in the highway or not, has certain 
 proprietary rights which cannot be taken 
 away without compensation, even under the 
 authority of the legislature. White v. 
 Northwestern X. C. R. Co. 113 N. C. 610. 
 18 S. E. 330. 22: 627 
 
 273. A franchise from a city council to 
 construct and maintain a telephone system 
 in the city cannot authorize the occupancy 
 of the streets for such purpose, against 
 the consent of abutting property owners, 
 unless compensation is made to them. 
 Donovan v. Allert. 10 X. D. 289. 91 X. W. 
 441. 58: 775 
 
 274. The use of a public street cannot be 
 granted to a private corporation for uses 
 which constitute a private nuisance and re- 
 sult in injury to abutting owners, either 
 by legislative enactment or a city ordi- 
 nance, except upon making compensation 
 for such injury. Chicago G. W. R. C'o. v. 
 First M. E. Church. 42 C. C. A. 178, 102 Fed. 
 85. 50: 488 
 To riparian owner. 
 
 See also Waters, 2(50. 
 
 275. Riparian rights are property of 
 which the owner cannot be deprived with- 
 out just compensation, though taken for, or 
 subjected to. a public use. Mansfield v. 
 Balliett. 65 Ohio St. 451. 63 X. E. 86. 
 
 58: 628 
 
 276. A riparian owner whose property 
 rights are appropriated or impaired in mak- 
 ing appropriations of water for irrigation 
 nr other purposes for a public use, as au- 
 thorized and regulated by the Xebraska ir- 
 rigation act of 1S9,">. i> entitled to com- 
 pensation for the injuries actually sus- 
 tained, to be recovered in a suitable ac- 
 
 tion or proceeding instituted for such pur- 
 pose. Crawford Co. v. Hall. 67 Xeb. 353, 
 93 N. W. 781, 60: 889 
 
 277. The right of a riparian owner to 
 use a navigable stream for floating logs is 
 not derived from the state, and he cannot 
 be deprived of such right without just 
 compensation in some form. Hutton V. 
 Webb, 124 N. C. 749, 33 S. E. 169, 36 S. 
 E. 341, 59: 33 
 
 278. When soil on the shore of a navi- 
 gable water is granted by the state to 
 private owners, certain rights pass as inci- 
 dent to the grant, with which the state 
 cannot interfere itself, or permit others to 
 interfere, except for public uses, and then 
 only upon making compensation. Shep- 
 ard's Point Land Co. v. Atlantic Hotel, 132 
 X. C. 517. 44 S. E. 39, 61: 937 
 
 279. The right of a city to take water 
 for the use of its inhabitants from a great 
 public pond belonging to the state can be 
 granted by the legislature, without making 
 any compensation to those who want the 
 water for the use of mills. Auburn v. 
 Union Water-Power Co. 90 Me. 576. 38 Atl. 
 561, 38: 188 
 
 280. Compensation must be paid to a 
 riparian owner by a city which, in estab- 
 lishing harbor lines, appropriates a portion 
 of the land laying between high and low 
 water mark adjacent to his property, un- 
 der a charter which gives power to establish 
 such lines, but preserves to landowners the 
 same rights that they have under the sec- 
 tion of the charter providing for opening 
 highways, where the latter section makes 
 full provision for compensation for what- 
 ever damage a landowner may suffer. 
 Farist Steel Co. v. Bridgeport. 60 Conn. 278, 
 22 Atl. 561, 13: 590 
 For land taken for highways. 
 
 281. A statute denying compensation for 
 any biiilding erected on land after filing a 
 map of a proposed street across it, al- 
 though proceedings to open the street or 
 condemn the land have not been begun 
 and perhaps never will be, is unconstitu- 
 tional as depriving the owner of property 
 without just compensation. Forster v. 
 Scott, 136 X. Y. 577, 32 N. E. 976. 18: 543 
 
 282. The exception in the New Jeresy 
 Constitution from the provision against 
 taking private property for public use with- 
 out just compensation, of all land taken 
 for public highways "as heretofore until 
 the legislature shall direct compensation, 
 to be made." must be construed in connec- 
 tion with the practice of the state, con- 
 tinued from 1716 until after the adoption of 
 the Constitution in 1844. not to lay out 
 roads more than 4 rods wide; and the 
 legislative power to take lands for high- 
 ways without compensation is limited, ac- 
 cordingly, to highways not more than 4 
 rods wide. State, Mangles. Prosecutor v. 
 Hudson Count v Freeholders (\. .1. Sup.) 55 
 X. .1. L. 88. 25 Atl. 322. 17: 785 
 For public property. 
 
 283. Public property of a county is not 
 within the protection of a constitutional 
 provision that private property shall not
 
 EMINENT DOMAIN, III. c. 2. 
 
 1153 
 
 be taken for public use without compensa- 
 tion. Hett'ner v. Cass & Morgan Counties, 
 193 111. 439, 62 N. E. 201, 58: 353 
 
 2. Who Entitled to the Compensation. 
 
 Rights under Will, see Wills, 228. 
 
 For Editorial Notes, see infra, V. 13, 
 
 18. 
 
 284. Damages by the construction or 
 operation of a railroad to land outside the 
 right of way cannot be recovered by a pur- 
 chaser on foreclosure sale who first bid off 
 the tract outside the right of way and 
 then the right of way, even if the former 
 owner might have had a right t^f action 
 for such damages. St. Louis, K. & S. W. R. 
 Co. v. Nyce, 61 Kan. 394, 59 Pac. 1040, 
 
 48: 241 
 Rights of the state. 
 
 285. The state, as owner of the fee of 
 liili- lands over which a street runs, and of 
 lands abutting on both sides of the street, 
 is entitled to damages for the occupation 
 of the street for ordinary railroad purposes. 
 Seattle & M. R. Co. v. State, 7 Wash. 150, 
 .-54 Pac. 551, 22: 217 
 Municipality. 
 
 286. The value of sewer and water pipes 
 owned by a municipal corporation, and 
 laid under streets which are taken by the 
 I cderal government under its power of 
 
 <eminent domain for an entirely different 
 use, must be paid to the municipality. Na- 
 hant v. United States, 136 Fed. 273, 69: 723 
 Married woman. 
 
 i'S7. An inchoate right of dower is riot 
 such an interest in land that, when the 
 land is taken by the right of eminent do- 
 main, the wife can have any portion of the 
 money received for the land either paid to 
 her directly or set aside for her benefit on 
 the contingency of her surviving her hus- 
 l.and. Flynn v. Flynn, 171 Mass. 312, 50 
 X. K. 650, 42: 98 
 
 Mortgagors. 
 
 288. A mortgagor in possession is to be 
 regarded as the owner of the land for all 
 purposes of establishing and opening high- 
 ways. Goodrich v. Atchison County, 47 
 Ka'n. 355, 27 Pac. 1006, 18: 113 
 Mortgagees. 
 
 Right to Notice of Proceedings, see supra, 
 
 169. 
 For Editorial Notes, see infra, V. 13, 
 
 15. 
 
 289. A mortgagee cannot recover for con- 
 sequential injuries to the mortgaged prop- 
 erty from the construction of a railroad, 
 where the mortgagor has, without fraud, 
 made an amicable settlement for such dam- 
 ;igcs with the company. He has no right 
 to damages as mortgagee as distinguished 
 from the damages of the owner. Knoll v. 
 New York, C. & St. L. R. Co. 121 Pa. 467, 
 15 Atl. 571, 1: 366 
 Tenants. 
 
 Measure of Tenant's Recovery, see Dam- 
 ages, 458. 
 
 Condemnation as Affecting Rent, see Land- 
 lord and Tenant, 198-200. 
 L.R.A. Dig. 73. 
 
 For Editorial Notes, see infra, V. 14, 
 18. 
 
 290. The right of a tenant, on the con- 
 demnation of leased property, is to the ex- 
 cess, if any, of the value of the leasehold 
 estate over the rent. Corrigan v. Chicago, 
 144 111. 537, 33 N. E. 746, 21 : 212 
 
 291. The rights of a lessee of a stall or 
 stand in a market are subject to all qualifi- 
 cations and restrictions which the munici- 
 pality may impose. He has no right to 
 the ground or estate in the building, which 
 will sustain an action for damages from 
 the condemnation of the market building 
 t'or a railroad. Strickland v. Pennsylvania 
 R. Co. 154 Pa. 348, 26 Atl. 431, 21 : 224 
 
 292. A railroad company chargeable with 
 notice of a lease by the tenant's possession 
 cannot discharge its liability to him for in- 
 jury to crops, on appropriating the land in 
 condemnation proceedings, by payment to 
 the landlord. Lafferty v. Schuylkill River 
 East Side R. Co. 124 Pa. 297, 16 Atl. 869, 
 
 3: 124 
 
 293. Compensation for buildings erected 
 by a tenant cannot be allowed to him on 
 condemnation of the entire property, if he 
 has covenanted to leave them on the land 
 at the expiration of the term, although 
 the term has just begun and has many 
 years to run. Corrigan v. Chicago, 144 
 111. 537, 33 N. E. 746, 21:212 
 
 294. Lessees of property owned by a 
 city, upon which they have placed a build- 
 ing, are entitled to recover damages for 
 injuries to such building through the in- 
 terference with light, air, and access by 
 the construction in the adjoining street of 
 an elevated road under authority of the 
 municipal authorities given subsequently 
 to the execution of the lease. Storms v. 
 Manhattan R. Co. 178 N. Y. 493, 71 N. E. 
 3, 66: 625 
 
 295. The right of a lessee who has erected 
 a building on the leased premises to re- 
 cover damages for injury to the easements 
 of light, air, and access by the construc- 
 tion of an elevated road in the adjoining 
 street is not destroyed by a renewal of the 
 lease in pursuance of its covenants after 
 the road is completed, on the theory that 
 the rent must have been fixed with refer- 
 ence to the value of the property with the 
 road in existence. Id. 
 
 296. The renewal in accordance with its 
 terms, after the municipal authorities have 
 authorized the construction of an elevated 
 railway in the abutting street, of a lease 
 of property upon which a building has been 
 erected by the lessee, does not have the 
 effect of an original lease so as to cut off 
 the rights of the lessee to damages for in- 
 juries to the building by interference with 
 the light, air, and access. Id. 
 Reversioners. 
 
 For Editorial Notes, see infra, V. 14. 
 
 297. No part of the money paid upon con- 
 demnation for a public park of lands for- 
 merly held under a condition subsequent 
 for use as a cemetery can be claimed by 
 those entitled to re-enter upon breach of 
 the condition, where, before the condemna-
 
 1154 
 
 EMINENT DOMAIN, III. d. 
 
 tion, the condition had been entirely de- 
 feated by a law prohibiting its further use 
 for cemetery purposes. Scovill v. McMa- 
 hon, 62 Conn. 378, 26 Atl. 479, . 21: 58 
 
 d. Payment or Security. 
 
 See also infra, 381. 
 
 For Editorial Notes, see infra, V. 18. 
 
 298. A direction, on paying into court the 
 amount of damages assessed in eminent do- 
 main proceedings, not to pay it over pend- 
 ing an appeal, is void; and the owners of 
 the land condemned are entitled to the 
 money if satisfied with the assessment. 
 Consumers Gas Trust Co. v. Harless, 131 
 Ind. 446, 29 N. E. 1062, 15: 505 
 Sufficiency of. 
 
 299. The provision that a warrant for 
 damages in case of an unknown owner shall 
 be deposited with the county auditor for 
 his use violates a constitutional provision 
 that compensation shall be first made to or 
 paid into court for the owner. Martin v. 
 Tyler, 4 N. D. 278, 60 X. W. 392, 25: 838 
 
 300. An order drawn by drain commis- 
 sioners upon a drainage fund is not such a 
 payment as will satisfy the constitutional 
 provision that payment shall be first made 
 on taking private property for public use 
 
 Id. 
 
 301. Payment into court of the assessed 
 damages in eminent domain proceedings is 
 equivalent to a tender, and sufficient to 
 authorize taking possession, even when an 
 appeal is prosecuted. Consumers Gas Trust 
 Co. v. Harless, 131 Ind. 446, 29 N. E. 1062, 
 
 15: o05 
 
 302. Payment into court of an award of 
 viewers from which an appeal is taken by 
 the property owners is not sufficient to 
 satisfy Pa. Const, art. 16, 8, requiring 
 just compensation to be "paid or secured 
 before the taking, injury, or destruction" 
 of property in eminent domain cases, and 
 therefore the act of May 14, 1889, provid- 
 ing that on such payment into the court 
 the right to use the property shall vest in 
 the corporation seeking to take it, and 
 that the money shall remain in court to 
 await the final judgment on appeal, is un- 
 constitutional. Harrisburg, C. & C. Turnpk. 
 Road Co. v. Harrisburg & M. Electric R. Co. 
 177 Pa. 585, 35 Atl. 850, 34: 439 
 
 303. A provision that a water company 
 may be required to give security to the 
 selectmen of the town for the payment of 
 all damages awarded for lands taken by it, 
 which may, upon becoming insufficient, be 
 required to be increased, sufficiently pro- 
 vides for compensation to justify the tak- 
 ing of the land. Old Colony R. Co. v. 
 Framingnam Water Co. 153 Mass. 561, 27 
 X. E. 662, 13: 332 
 
 304. Adequate compensation for the con- 
 demnation of the right to float logs in a 
 stream under the power of eminent do- 
 main is not made where its recovery is 
 made to depend on the responsibility or 
 solvency of an individual or corporation, 
 or upon a bond the amount of which is 
 
 arbitrarily fixed at a specified sum in alt 
 cases, regardless of what may be the value 
 of the rights appropriated or the amount of 
 damage inflicted, and which is to be ac- 
 cepted without any- opportunity on the 
 part of the landowners to question the 
 sufficiency of the sureties. Brewster v. 
 J. & J. Rogers Co. 169 N. Y. 73, 02 X. I-:. 
 164, 58: 495 
 
 305. Possession of land sought to be con- 
 demned pending the proceedings cannot be 
 given by the legislature to the applicant 
 upon payment into court of sufficient 
 money to compensate the landowner in 
 case the land is finally taken, or for dam- 
 ages in case, for any reason, it is not taken,, 
 under a Constitution providing that private 
 property shall not be taken or damaged 
 for public use without just compensation 
 having been first made to or paid into 
 court for the owner. Steinhart v. Mendo- 
 cino County Super. Ct. 137 Gal. 575, 70 Pac. 
 629, 59: 404r 
 Necessity of giving second bond. 
 
 306. A second bond is not required from 
 a corporation organized under the Penn- 
 sylvania act of 1883 for the improvement 
 of the navigation of a stream, which has 
 failed to agree with abut ting -property own- 
 ers as to payment of damages, before it 
 can exercise its franchises, if it has given 
 the one prescribed by 5 of that act, al- 
 though 4 provides that in case of failure 
 to agree as to damages they shall be as- 
 sessed under Pa. act 1874, 41, which re- 
 quires the tender of a bond to the person 
 claiming damages. Genesee Fork Imp. Co. 
 v. Ives, 144 Pa. 114, 22 Atl. 887, 13: 427 
 Time of making payment. 
 
 Enjoining Improvement until Payment i 
 
 Made, see Injunction, 195. 
 Rate of Interest Allowed for Delay, see 
 
 Interest, 90. 
 
 307. A municipal corporation taking pri- 
 vate property for public use is within the 
 provision of N. D. Const, art. 1, 14, 
 requiring compensation to be "first made 
 to or paid into court for the owner." Mar- 
 tin v. Tyler, 4 N. D. 278, 60 N. W. 392. 
 
 25: 838 
 
 308. The ascertainment and payment of 
 damages that may be caused by a change 
 of grade of a street is a condition preced- 
 ent to the right of the municipality to 
 proceed under a Constitution providing for 
 just compensation to the owners of prop- 
 erty taken or damaged for public use* 
 Searle v. Lead, 10 S. D. 312, 73 N. W. 101. 
 
 39: 34 
 
 309. Payment of the damages for taking 
 property for public use need not be made 
 as soon as assessed, under a constitutional 
 provision that property shall not be taken 
 for such use without just compensation 
 "first being made, or secured to be made 
 to the owner thereof, as soon as the dam- 
 ages shall be assessed;" but it is sufficient 
 that provision for payment is duly se- 
 cured when the damages are assessed, al- 
 though actual payments are deferred. 
 Sisson v. Buena Vista County, 128 Iowa. 
 442, 104 X. W. 454, 70: 440
 
 EMINENT DOMAIN, III. c. 1, 2. 
 
 C. Consequential Injuries. 
 1. In General. 
 
 As to What Constitutes a Taking, see 
 
 supra. III. b. 
 As to Necessity of Making Compensation 
 
 Generally, see supra, III. c, 1. 
 As to What Constittites an Additional 
 
 Servitude, see infra, IV. 
 As Element of Damages, see Damages, III. 
 
 I. 3. 
 
 310. The test of damage requiring com- 
 pensation, caused to private property by 
 a public improvement, is whether a cause 
 of action would arise if the irrjury was 
 caused by a private person without author- 
 ity of statute. Peel v. Atlanta, 85 Ga. 138, 
 11 S. E. 582, 8: 787 
 Trinity & S. R. Co. v. Meadows, 73 Tex. 32, 
 11 S. 'W. 145. 3: 565 
 
 311. The injuries resulting from the prop- 
 er construction and maintenance of an im- 
 provement under the power of eminent do- 
 main are included in the compensation al- 
 lowed therefor in the original condemna- 
 tion proceedings. Churchill v. Beethe, 48 
 Neb. 87, 66 N. W. 992, 35: 442 
 
 312. Private property is not "damaged 
 for public purposes" by a public improve- 
 ment, within a constitutional provision re- 
 quiring compensation for such damages, 
 where no invasion is made of any right or 
 use of such property. Peel v. Atlanta, 85 
 da. 138, 11 S. E. 582, 8: 787 
 
 313. No damages can be recovered on ac- 
 count of a public improvement, where no 
 property is actually taken, if its fair mar- 
 ket value is as much immediately after as 
 before the improvement. Springer v. Cty- 
 cago, 135 111. 552, 26 N. E. 514, 12: 609 
 
 314. Injury to the interests of a person, 
 resulting from an exercise of the police 
 power, docs not entitle him to compensation 
 under the law of eminent domain, if no 
 part of his lands or property is taken 
 therefor. State v. Griffin, 69 N. H. 1, 39 
 Atl. 260, 41: 177 
 
 315. A clause of a charter authorizing 
 land to be taken, which makes the corpora- 
 tion "accountable to the owners thereof 
 for all damages,' does not include conse- 
 quential injuries. Brooks v. Cedar Brook & 
 S. C. R. I. Co. 82 Me. 17, 19 Atl. 87, 7: 460 
 
 316. The lawful operation of a public 
 work owned by a corporation vested with 
 the power of eminent domain, though caus- 
 ing depreciation - in the value of private 
 property, does not create liability on the 
 ground that such property is "damaged for 
 public purposes," within the meaning of 
 the Georgia Constitution (Civ. Code, 
 5729), unless a private corporation or pri- 
 vate individual would be liable for similar 
 acts under like circumstances; nor is a 
 quasi public corporation liable where pri- 
 vate property is depreciated in value as 
 a result of the lawful use and enjoyment 
 of the company's private property. Austin 
 v. Augusta T. R. Co. 10S Ca. (57 1. :H S. K. 
 852, 47 : 755 
 
 317. The use of the word "damaged" in 
 that clause of the Georgia Constitution 
 (Civ. Code. 5729), which provides that 
 private property shall not be taken or dam- 
 aged for public purposes without just com- 
 pensation, does not change the substantive 
 law of damages or create a cau^c i ac- 
 tion where none previously existed, nor does 
 it abrogate the principle expressed in the 
 phrase "Dinnnuni absque injuria," but pre- 
 serves all existing causes of action for dam- 
 ages to private property, and prohibits 
 exemptions of liability for such damages, 
 even if occasioned by public uses. Id. 
 Injury to business. 
 
 Necessity of Making Compensation for. see 
 
 supra, 270. 
 As Element of Damages, see Damages. 453, 
 
 471. 
 
 318. A statute requiring payment of 
 damages for injuries to a business through 
 the taking of property for public use is 
 not unconstitutional on the ground that 
 taxes cannot be levied for such purposes. 
 Earle v. Com. 180 Mass. 579, 63 N." E. 10. 
 
 57 : 292 
 
 .319. A doctor having an office in. and a 
 | practice extending throughout, a town in 
 ; which land is taken for a public purpose, is 
 within the protection of a statute provid- 
 ing for compensation to any individual 
 , owning an established business on land 
 within the town, which is injured by the 
 j taking. Id. 
 
 | 2. By Construction and Operation of Rail- 
 road. 
 
 Injury to Water Rights by, see infra, 348, 
 
 349, 357-359. 
 As to Railroad in Street, see infra, 371- 
 
 376, 390. 
 Mortgagee's Right to Recover for, see 
 
 supra, 289. 
 As Element of Damages, see Damages, 498- 
 
 501. 
 
 320. The taking of a route for a rail- 
 road, which is afterwards abandoned with- 
 
 j out building the road there, and another 
 j route selected, does not prevent recovery 
 j for consequential injuries caused by the 
 ! operation of the road on the later location. 
 j Rudolph v. Pennsylvania Schuylkill V. 11. 
 Co. 186 Pa. 541, 40 Atl. 1083, ' 47: 782 
 
 321. Damages to the residue of a tract 
 ot land over which a railroad right of way 
 is taken, arising from the construction of 
 the road, are released so far as such dam- 
 ages could be taken into consideration in 
 assessing the compensation for the right of 
 way under proceedings for condemnation, 
 although the land is granted to the com- 
 panv without such proceedings. Watt- v. 
 Norfolk & W. R. Co. 39 W. Va. 196, 19 S. E. 
 521, 23: 674 
 
 322. A grant of land to a railroad com- 
 pany while a state Constitution is in force 
 which permits compensation in proceedings 
 to condemn land for railroad purposes tor 
 the land taken but not for injuries to ad- 
 joining land, the deed not stating the use to
 
 1156 
 
 EMINENT DOMAIN, III. e, 2. 
 
 which the land is to be applied, does not pre- 
 vent a subsequent grantee of the grantor's 
 adjoining lands from maintaining an action 
 against the railroad company's lessee to re- 
 cover damages for injuries resulting to his 
 land in consequence of the use to which 
 the railroad land is put. Wylie v. Elvvood, 
 134 111. 281, 25 N. E. 570, ' 9: 726 
 
 323. Injury to a dwelling house upon tho 
 residue of land obtained for a railroad right 
 of way caused by the careful blasting of 
 rock in the construction of the road is not 
 the subject of action; but rock so deposit- 
 ed on the land must be removed within a 
 reasonable time, else it will form the basis 
 of an action. Watts v. Norfolk & W. R. 
 Co. 39 W. Va. 196, 19 S. E. 521, 23: 674 
 
 324. Injury to a private way from the 
 construction of a railroad on land granted 
 for that purpose by the owner of the way 
 is not the subject of an action; but injury 
 to a public road peculiarly affecting such 
 landowner is. 
 
 325. Injury to a private ferry owned by 
 one from whom the right of way had been 
 obtained, arising from construction of a 
 railroad obstructing an approach to the 
 ferry, cannot be the subject of an action 
 by such owner against the company. Id. 
 
 326. The depreciation in the value of 
 land lying along the highway, due to the 
 construction of a railway next to the high- 
 way on the opposite side thereof, gives the 
 owner a right to compensation, under a 
 constitutional provision that private prop- 
 erty shall not be taken "or damaged" with- 
 out just compensation. Lake Erie & W. R. 
 Co. v. Scott, 132 111. 429, 24 N. E. 78. 
 
 8: 330 
 
 Obstructing access to street. 
 Obstructing Access by Changing Street 
 Grade, see infra, 378-389. 
 
 327. An action at law will lie to recover 
 damages for obstructing ingress and egress 
 to and from abutting property by a rail- 
 road embankment in a street. Highland 
 Ave. & B. R. Co. v. Matthews, 99 Ala. 24, 
 10 So. 267, 14: 462 
 
 328. A lot owner whose only means of in- 
 gress and egress to and from his lot by 
 vehicles is from a street into which opens 
 the one on which his premises front, and 
 which terminates just beyond them, may 
 maintain an action for the special and 
 peculiar injury resulting to him from a 
 blockade of the entrance to the latter street 
 by railroad cars on the other street, into 
 which it opens. Kiel v. Jackson, 13 Colo. 
 378, 22 Pac. 504, 6: 254 
 
 329. A person owning real property lo- 
 cated on a street cannot be deprived, with- 
 out compensation, of his outlet through 
 such street to other streets, in either di- 
 rection, by stopping up the street on either 
 side between his property and the nearest 
 intersecting street, although the part of the 
 street discontinued is not in front of his 
 land. Cargan v. Louisville. N. A. & C. R. 
 Co. 89 Ky. 212, 12 S. W. 259. 6: 340 
 
 33(1. Abutting owners, although not own- 
 ing the fee in a street, are entitled to com- 
 pensation when it is practically and sub- 
 
 stantially closed against them for ordinary 
 street purposes, under authority of the mu- 
 nicipality which owns the fee, by a railroad 
 embankment therein several feet high, with 
 perpendicular stone walls, leaving a space 
 only 8 or 9 feet wide for a carriage way. 
 Reining v. New York. L. & W. R. Co. 128 
 N. Y. 157, 28 N. E. 640, 14: 133 
 
 331. Erecting an embankment about 14 
 feet high, for a railroad in a street, there- 
 by cutting off access therefrom to abutting 
 premises and damaging the light and air 
 incident thereto, although done under leg- 
 islative and municipal authority and after 
 tne municipal corporation had discontinued 
 that part of the street, but without mak- 
 ing the necessary compensation to the abut- 
 ting owners, renders the railroad company 
 liable for the resulting damages to such 
 owners. Egerer v. New York C. & H. R. R. 
 Co. 130 N. Y. 108, 29 N. E. 95, 14: 381 
 
 332. A railroad embankment in a street 
 which appropriates that part of it to the 
 practically exclusive use of a railroad is 
 not a mere change of grade which can be 
 made without compensation to an abut- 
 ting owner, at least where the grant of 
 authority to occupy the street did not pur- 
 port to be an exercise of that power. Rein- 
 ing v. New York, L. & W. R. Co. 128 N. Y. 
 157, 28 N. E. 640, 14: 133 
 
 333. Injury to other abutting owners by 
 the deposit in the street by a railroad com- 
 pany, whose right of way abuts thereon, of 
 machinery and building materials while it 
 is engaged in elevating its tracks, in the 
 exercise of due care and only for a reason- 
 able time, does not entitle such owners to 
 compensation. McKeon v. New York. N. 
 H. & H. R. Co. 75 Conn. 343, 53 Atl. 656, 
 
 61: 730 
 
 334. The temporary occupation of a high- 
 way with rails, by a railroad company, for 
 its convenience while elevating its roadbed 
 to abolish a grade crossing over a highway, 
 entitles the abutting owner in whom resides 
 the fee, and whose access to and from his 
 property is thereby destroyed, to compensa- 
 tion. Id. 
 
 335. The state cannot, under its police 
 power, authorize a railroad company to 
 utilize a public highway as its roadbed 
 while it is elevating its tracks to abolish a 
 grade crossing without making compensa- 
 tion for destruction of the access of the 
 abutting owner in whom resides the fee. 
 
 Id. 
 
 336. The liability of a railroad company 
 to abutting owners for constructing an em- 
 bankment for its track, which practically 
 closes the street to such abutters for or- 
 dinary street purposes, does not extend to 
 persons whose premises abut only on an- 
 other street in which a corresponding em- 
 bankment is made solely to change the 
 grade so far as -the railroad embankment 
 at the intersection of the streets makes 
 it necessary. Kauenstein v. New York, L. 
 & W. R. Co. 136 N. Y. 528, 32 N. E. 1047, 
 
 18: 768 
 
 337. No actionable interference with ac- 
 cess to abutting property exists in case
 
 EMINENT DOMAIN, III. e, 3. 
 
 1157 
 
 railroad tracks arc carried diagonally across 
 a street upon a bridge 23 feet above the 
 surface, although the convenient approach 
 to the property with horses may be in- 
 terfered with because of their liability to 
 fright. Jones v. Erie & W. V. R. Co. 151 
 Pa. 30, 25 Atl. 134, 17: 758 
 
 338. Obstruction of a cross street used 
 by a property owner in gaining access to 
 his property, but which does not destroy 
 such access, Is not an injury for which com- 
 pensation must be made, under a constitu- 
 tional provision requiring the making of 
 compensation in case private property is 
 damaged for public use. Smith v. St. Paul, 
 M. & M. R. Co. 39 Wash. 355, 81 Pac. 840, 
 
 \70: 1018 
 Crossing railroad. 
 
 339. A railroad company having the right 
 to use a street for its tracks has no such 
 peculiar right as entitles it to compensa- 
 tion, within the meaning of Mo. Const, art. 
 2. 21, relating to the taking or damaging 
 of private property for public uses, for 
 the damage resulting from delay and in- 
 convenience in the movement of its trains 
 by laying the track of another railroad 
 across its tracks in such highway. Kan- 
 sas City, St. J. & C. B. R. Co. v. St. Joseph 
 Terminal R. Co. 97 Mo. 457, 10 S. W. 826, 
 
 3: 240 
 Noise, smoke, etc. 
 
 340. If an elevated railroad is unlawfully 
 erected in a public street as against an 
 owner of abutting property, the latter may 
 recover damages from the company for 
 consequential injuries to such property, 
 such as the inconvenience caused by the 
 noise of trains. Kane v. New York Elev. 
 R. Co. 125 N. Y. 164, 26 N. E. 278, 
 
 11: 640 
 
 341. Injury to neighboring property by 
 the jarring of the earth, the casting there- 
 on of soot and cinders, and the emission 
 of smoke, physically injuring it, is within 
 the protection of a constitutional provision 
 requiring compensation for property dam- 
 aged for public use. Smith v. St. Paul, M. 
 & M. R. Co. 39 Wash. 355, 81 Pac. 840, 
 
 70: 1018 
 
 342. Compensation for injuries to neigh- 
 boring property as the necessary result of 
 the careful and skilful operation of a 
 railroad, and which are caused by the usual 
 noises, fumes, and odors attendant there- 
 on, is not required by a constitutional pro- 
 vision for compensation in case private 
 property is damaged for public or private 
 use. Id. 
 
 343. Damages are recoverable for diminu- 
 tion in the value of property by reason of 
 the vibration, noise, smoke, and noxious 
 vapors and cinders incident to the running 
 of trains near the property, although no 
 part of the property was taken, under a 
 constitutional provision that no person's 
 property shall be tal<en, damaged, or de- 
 stroyed for. or applied to. public use, with- 
 out adequate compensation being made. 
 Gainesville. H. & W. R. Co. v. Hall, 78 
 Tex. 169, 14 S. W. 259, 9: 298 
 
 ' 344. Mere exposure to noise, smoke, dust, 
 and the danger of horses becoming fright- 
 ened by moving trains, in consequence of 
 the construction of a railroad, is not an 
 actionable injury. Jones v. Erie & W. V. 
 R. Co. 151 Pa. 30, 25 Atl. 134, 17: 758 
 
 345. Diminution in the market value of 
 property resulting from the noise, smoke, 
 and cinders caused by the operation of a 
 railroad does not "damage" the property, 
 within the meaning of the Georgia Consti- 
 tution (Civ. Code, 5729), requiring com- 
 pensation for private property damaged for 
 public purposes, in the absence of any phys- 
 ical interference with the property or with 
 a right or use appurtenant thereto. Austin 
 v. Augusta T. R. Co. 108 Ga. 671, 34 S. E. 
 852, 47: 755 
 
 346. The owner of property abutting on 
 a city street near a street railway turn- 
 table cannot recover damages under Ky. 
 Const. 242, authorizing compensation for 
 property "injured," by reason of the loca- 
 tion and operation of the street railway 
 turntable and the noises, smells, and dis- 
 turbances that are reasonabh* incidental to 
 the operation of a street railway in a city 
 and borne by the public generally, but may 
 recover for any substantial injury caused 
 by such noises, smells, and disturbances so 
 far as they are not fairly incidental to the 
 usual operation of such a street railway 
 and borne by the property owners gen- 
 erally along the line. Louisville R. Co. 
 v. Foster, 108 Ky. 748, 57 S. W. 480, 50: 813 
 
 3. As to Water or Water Rights; Sewage. 
 
 See also Municipal Corporations. 514. 
 
 347. Although a riparian proprietor has 
 the right, as an abstract proposition of law, 
 to the ordinary natural flow of a stream, 
 such rule furnishes no basis for compensa- 
 tion where water is appropriated for ir- 
 rigation purposes; but in order to entitle 
 him to compensation in such case, he must 
 suffer an actual loss or injury to his ri- 
 parian estate, which the law recognizes as 
 belonging to him because of his right to 
 the use and enjoyment of the water of 
 which he is deprived. Crawford Co. v. 
 Hall, 67 Neb. 889, 93 X. W. 781, 60: 889 
 
 348. A fill or bar unnecessarily made in a 
 stream by placing and throwing into it 
 rock and other refuse material in construct- 
 ing a railroad, to the injury of a millsite 
 on the residue of the land over which the 
 right of way is taken, constitutes a private 
 nuisance and ground of action against the 
 company. Watts v. Norfolk & W. R. Co. 39 
 W. Va.' 196, 19 S. E. 521, 23: 674 
 
 349. A railroad company which has care- 
 fully and skilfully constructed its road 
 under lawful authority is not liable for an 
 injury to a water mill by the clogging of 
 its wheel and a partial filling of its reser- 
 voir and a stream of water by sand which 
 was loosened by the construction of the 
 road and washed away by heavy rains. 
 Trinity & S. R. Co. v! Meadows. '73 Tex. 
 32, ll'S. W. 145, 3: 565
 
 1158 
 
 EMINENT DOMAIN, III. e, 3. 
 
 350. The rights of the owner of land 
 bordering on tide water cannot be abridged 
 by the construction of a speedway upon the 
 tideway along his water front under au- 
 thority of the state, without making com- 
 pensation to him for the injury caused 
 thereby, where the use of the speedway is 
 limited to the pursuit of pleasure in driving, 
 riding, or walking, and all forms of commer- 
 cial traffic are rigidly excluded therefrom. 
 Re Xew York. 168 x! Y. 134, 61 X. E. 158, 
 
 56: 500 
 
 351. Lowering the water of a navigable 
 river by drawing it through a drainage ditch 
 so as to obstruct ingress to and egress from 
 abutting property is within a constitutional 
 provision requiring compensation in case 
 private property is damaged for public use, 
 and liability for damages cannot be defeated 
 on the ground that the act was an exercise 
 of the police power for the promotion of the 
 public health. Beidler v. Sanitary District, 
 211 111. 628, 71 N. E. 1118. 67: 820 
 In improving navigation. 
 
 352. The right of the public to improve 
 navigation without liability for conse- 
 quential injuries to riparian rights does not 
 include the right to take the water of a 
 navigable stream to supply an artificial 
 channel or canal. Beidler v. Sanitary Dis- 
 trict. 211 111. 628, 71 X. E. 1118, 67:820 
 
 353. Raising the waters of a river l>eyond 
 the natural, usual, and ordinary high water 
 mark, for the purpose of improving the nav- 
 igation, gives a riparian owner whose lands 
 are thereby overflowed a right to damages, 
 although the water is raised by dams con- 
 structed under legislative authority. Carl- 
 son v. St. Louis River Dam & I. Co. 73 
 Minn. 128, 75 X. W. 1044, 41: 371 
 
 354. A public corporation organized to 
 provide a drainage system cannot contest 
 its liability to make compensation for in- 
 juries done to riparian owners by taking 
 water from a navigable stream to supply 
 its ditch, upon the ground that incidentally 
 it has created a navigable channel, and 
 that the public is not liable for injuries to 
 riparian owners in consequence of the im- 
 provement of navigation. Beidler v. Sani- 
 tary District. 211 111. 628. 71 X. E. 1118. 
 
 67 : 820 
 Obstructing access to water. 
 
 355. A riparian owner's right of ingress 
 and egress to his water front does not in- 
 clude a right to compensation for an inter- 
 ference therewith caused by the public im- 
 provement of the water front for the benefit 
 of navigation. Sage v. Xew York, 154 X. Y. 
 61. 47 X. E. 1096. 38: 606 
 
 .'!">(;. Shutting off the access of a riparian 
 owner to navigable waters by construction 
 of a railroad embankment across the water 
 front entitles him to such damages as he 
 may thereby sustain, unless he has granted 
 the right or it has been obtained by the 
 power of eminent domain. Ruinsey v. Xew 
 York & X. E. R. Co. 133 X. Y. 79/30 X. E. 
 (554. 15: 618 
 
 3.">7. A railroad company may. under leg- 
 islative authority, close the entrance to a 
 navigable cove without making compensa- 
 
 tion to the owners of property on the cove, 
 the value of which is thereby diminished, 
 under a Constitution requiring compensation 
 to be made only for property taken for pub- 
 lic use. Frost v. Washington County R. 
 Co. 96 Me. 76, 51 Atl. 806, 5!): G8 
 
 358. Xo recovery can be had by the owner 
 of land on a cove leading off from a river 
 for interference with his right of access 
 from his land to the river by the construc- 
 tion of a railroad track across the mouth of 
 the cove, where the access is not entirely 
 cut off, and, because of the limited extent 
 of the cove, and the shallowness of its wa- 
 ters, the right is not essentially impaired. 
 Richards v. Xew York, X. H. & H. R. Co. 
 77 Conn. 501. 60 Atl. 295, 69: 929 
 Damage by surface water. 
 
 Due to Change of Grade, see infra. 389. 
 
 359. The lack of any constitutional pro- 
 vision against taking property foi public 
 use without just compensation does not pre- 
 vent a railroad company from becoming 
 liable for consequential damages to property 
 incidentally injured by the construction of 
 its road under legislative authority, as in 
 case of diversion of surface water to the in- 
 jury of a neighboring proprietor. Staton 
 v. Norfolk & C. R. Co. Ill N. C. 278, 16 S. 
 E. 181, 17: 838 
 
 360. The constitutional provision that pri- 
 vate property shall not be taken or damaged 
 for public use without just compensation 
 does not render a city liable for damages to 
 property from surface water, where a pri- 
 vate individual would not be liable. Jordan 
 v. Benwood, 42 W. Va. 312, 26 S. E. 266, 
 
 36: 519 
 
 Pollution of water; sewage. 
 Injury by Sewage as a Taking of Property, 
 see supra, 259, 260. 
 
 361. Property of riparian owners is taken 
 for public use within the meaning of a con- 
 stitutional provision as to eminent domain, 
 when they are damaged by the pollution of 
 the waters above the ebb and flow of the 
 tide, but not when the water is polluted at 
 a place where the tide ebbs and flows. Grey 
 ex rel. Simmons v. Paterson (N. J. Err. & 
 App.) 60 X. J. Eq. 385, 45 Atl. 995, 48: 717 
 
 362. Damages resulting to the property of 
 riparian owners by the discharge of city 
 sewage into a stream in a skilful manner 
 and in conformity to statute are merely 
 consequential and give them no right to 
 compensation. Valparaiso v. Hagen, 153 
 Ind. 337. 54 X. E. 1062, 48: 707 
 
 363. Damage to a riparian owner by nox- 
 ious and filthy substances deposited on his 
 premises in consequence of the pollution of 
 the river by sewers emptying into it above 
 his land is not a mere consequential dam- 
 age, but a direct appropriation of his well- 
 recognized property rights which are within 
 the guaranty of the Constitution. Platt 
 Bros. & Co. v. Waterbury. 72 Conn. 531, 45 
 Atl. 154. 48: 691 
 
 364 The pollution of a river by city sew- 
 ers, though it may become justifiable when 
 done for a public purpose, is subject to pay- 
 ment of compensation for the invasion of 
 the property right of riparian owners. Id.
 
 EMINENT DOMAIN, III. e, 4. 
 
 1159 
 
 365. Lack of charter authority to condemn 
 the property rights of a riparian owner will 
 not relieve a city from liability to make 
 compensation for damage to such rights by 
 the unlawful pollution of a river by sewers. 
 
 Id. 
 
 366. The fact that sewers are necessary 
 to a city and that a statute directs that 
 they shall follow as near as practicable the 
 natural drainage of the country does not 
 justify the city in discharging sewers into 
 a stream to the damage of a landowner, 
 without just compensation to him, as re- 
 quired by constitutional provision against 
 taking or damaging private property with- 
 out just compensation. Smith v. Sedalia, 
 152 Mo. 283, 53 S. W. 907, . 48: 711 
 
 * 
 
 4. As to Streets or Highways. 
 
 Injury from Street Railway Turntable, see 
 supra, 346. 
 
 .'!()". The owner of a lot which extends to 
 the side of a public street has an easement 
 in the street for light, air, and access for 
 the benefit of his abutting property, which 
 constitute private property, within the 
 meaning of the constitutional provision that 
 private property shall not be taken for pub- 
 lic use without just compensation. Aben- 
 droth v. Manhattan R. Co. 122 N. Y. 1, 25 
 X. E. 496, 11: 634 
 
 368. The fact that the title to the bed of 
 a street is in private individuals will not 
 prevent the acquisition by the owner of 
 land bordering on such street of rights as 
 against the public in the nature of ease- 
 ments, which will prevent the public from 
 devoting such street to uses inconsistent 
 with its free use as a street, without mak- 
 ing compensation to him. Kane v. New 
 York Elev. R. Co. 125 N. Y. 164, 26 N. E. 
 278, 11:640 
 
 369. If the owner of property bordering 
 on a public street in which a trust has been 
 established to have the same kept open for 
 the benefit of the public accepts and acts 
 upon such trust by erecting buildings on 
 his property, he thereby acquires an ease- 
 ment in the street for light, air, and ac- 
 cess for the benefit of his adjoining proper- 
 ty, which in itself constitutes property of 
 which he cannot be deprived by the devo- 
 tion of the street to other and "inconsistent 
 uses, without compensation. Id. 
 Establishment of. 
 
 Setting off Advantages from, see Damages, 
 
 336, 337. 
 
 Elements of Damages, see .Damages, 522- 
 ^525. 
 
 370. Opening a public street adjacent to 
 one's property, thus bounding it by streets 
 on three sides, rendering it ungainly and 
 unsightly to the public, and destroying its 
 privacy, and thus diminishing its value, does 
 not give the owner a right to compensation 
 under a constitution declaring that private 
 property shall not be taken or damaged 
 without just and adequate compensation. 
 Peel v. Atlanta, 85 Ga. 138, 11 S. E. 582. 
 
 8: 787 
 
 Railroad in. 
 
 Reducing Width of Street by, see infra, 390. 
 
 Obstructing Access to Street by Railroads, 
 
 see supra, 327-338. 
 .Measure of Damages for, see Damages, III. 
 
 :{?!. Xo action will lie by an abutting lot- 
 owner who does not own the fee in the 
 street, for injury which merely results from 
 the legal and reasonable use of a public 
 street by a railway company, and which 
 leaves his right of ingress and egress rea- 
 sonably sufficient. Iron Mountain R. Co. v. 
 Bingham, 87 Tenn. 522, US. W. 705, 
 
 4: 622 
 Electric railway in. 
 
 372. Poles of an electric railway, if prop- 
 erly placed, do not give ground of complaint 
 to an abutting owner, whether he owns the 
 fee of the street or not. Snyder v. Fort 
 Madison Street R. Co.* 105 Iowa, 284, 75 N. 
 W. 179, 41 : 345 
 
 373. The depreciation of the property of 
 abutting owners by the exclusive use of a 
 portion of the street by a trolley company's 
 poles and wires gives a right to compensa- 
 tion under Neb. Const, art. 1, 21, which 
 provides that property shall not be "taken 
 or damaged" for public use without just 
 compensation. -Jaynes v. Omaha Street R. 
 Co. 53 Neb. 631, 74 N. W. 67, 39: 751 
 Elevated railroad in. 
 
 Injury Caused by Noise of Trains, see su- 
 
 p'ra, 340. 
 
 Measure of Damages, see Damages, III. 1, 
 4, b. 
 
 37-1:. The owner of an apartment house* 
 cannot recover damages from an electric 
 elevated railroad company whose tracks 
 cross the highway within 19 feet of his 
 property where the injury differs from that 
 suffered by the general public only in the 
 proximity of the tracks, even under a con- 
 stitutional provision that private property 
 shall not be damaged for public- use without 
 compensation. Aldrich v. Metropolitan West 
 Side Elevated R. Co. 195 111. 456, 63 N. E. 
 155, 57: 237 
 
 375. Interference with easements of light 
 and* air by an elevated railroad in a street 
 gives an owner of abutting property no 
 right to damages, if the building of the 
 road has actually caused an increase in the 
 value of such property, even if it has bene- 
 fited other abutting owners still more. 
 Somers v. Metropolitan Elev. R. Co. 129 N. 
 Y. 576, 29 N. E. 802, 14: 344 
 
 378. If an elevated railroad is erected in 
 a city street in front of property which ex- 
 tends to the side of the street, in such a 
 manner as to obstruct the light which would 
 otherwise reach such property, and as to 
 cause smoke and cinders from the engines 
 used on the road to enter the buildings on 
 the property, and thereby diminish its value, 
 its owner is entitled to compensation for 
 the damage so inflicted. Abendroth v. 
 Manhattan R. Co. 122 N. Y. 1, 25 N. E. 496, 
 
 11: 634 
 Subway in. 
 
 377. Damage to a dwelling house by set- 
 tling and cracking of the walls, caused bv
 
 1160 
 
 EMINENT DOMAIN, IV. a. 
 
 the improper manner of performing the 
 work of constructing a subway on a street, 
 cannot be assessed as part of the compensa- 
 tion given by Pa. Const, art. 16, 8, for 
 property "taken, injured, or destroyed" by 
 the construction of public improvements, 
 since those damages extend only to inju- 
 ries which are the direct, immediate, and 
 necessary or inevitable consequence of the 
 act of eminent domain itself, irrespective of 
 care or negligence in the doing of it. The 
 only appropriate remedy for injury by negli- 
 gent performance of the work is by action 
 of trespass. Stork v. Philadelphia, 195 Pa. 
 101, 45 Atl. 678, 49: 600 
 
 Establishment or change of grade. 
 Abandonment of Right of Action for, see 
 
 Action or Suit, 49. 
 
 378. The establishment of a street grade 
 several feet above the natural surface of the 
 ground by a mere ordinance, without any 
 actual improvement of the street in accord- 
 ance therewith ; and a subsequent ordinance 
 changing the grade line to conform to the 
 surface of the ground; and a permanent im- 
 provement of the street on that grade, en- 
 title one who has erected his building to 
 conform to the grade established by the first 
 ordinance while that was in force, to the 
 benefit of Iowa Code, 469, which provides 
 for compensation to a person whose proper- 
 ty is injured by the change of an estab- 
 lished grade of the street. Ressegieu v. 
 Sioux City, 94 Iowa, 543, 63 N. W. 184. 
 
 28: 389 
 
 379. Damages by the grading of a street 
 in front of one's premises, although no prior 
 grade had been established, are within the 
 provisions of the Constitution against tak- 
 ing or damaging property without just com- 
 pensation. Searle v. Lead, 10 S. D. 312. 73 
 N. W. 101, 39: 345 
 
 380. Injury caused to abutting property 
 by the original establishment of the grade 
 of a street is as much within the prohibi- 
 tion of a constitutional provision that prop- 
 erty shall not be taken or damaged for pub- 
 lic use without compensation as that caused 
 by subsequent changes of grade. Less v. 
 Butte, 28 Mont. 27. 72 Pac. 140, 61 : 601 
 
 381. A statute giving a right of action 
 for damages to property caused by grading 
 a street without consent of or compensation 
 to the owner cannot make it lawful to cause 
 such injury without first paying the com- 
 pensation to him or into court, as required 
 by Mo. Const, art. 2, 21. St. Louis v. 
 Hill. llf. Mo. 527, 22 S. W. 861, 21:226 
 
 382. For damages to buildings erected aft- 
 er the adoption of a paper grade line, but 
 before actual physical crading conforming 
 a street to that line, there can be no re- 
 covery. Blair v. Charleston. 43 W. Va. 62. 
 26 S.' E. 341, 35: 852 
 
 383. The fact that property is purchased 
 after a municipality has established a paper 
 <rrade line, but before actual physical grad- 
 ing r-onforming n street to that line, will 
 not preclude the purchaser from recovering 
 for damages to his lot by the change of 
 grade. Id. ' 
 
 384. The natural surface of a street be- 
 comes the established grade within the rule 
 as to consequential damages for changing 
 a grade line, if the street is opened and 
 used and buildings erected thereon with 
 reference to such natural grade line. Id. 
 
 385. Damages for injuries caused to an 
 abutting lot by being left 8 or 10 feet above 
 the street by change of grade must be paid 
 by the city to the lot owner under a Consti- 
 tution providing compensation for property 
 taken, injured, or destroyed, for public use. 
 Henderson v. McClain, 102 Ky. 402, 43 S. W. 
 700, 39: 349 
 
 386. The whole improvement must be tak- 
 en into consideration in determining wheth- 
 er property is damaged by a public improve- 
 ment, such as the change of grade of a 
 street. Springer v. Chicago, 135 111. 552, 26 
 N. E. 514, 12: 609 
 
 387. A change of grade of a street, which 
 will make the property of an abutting own- 
 er less valuable to sell or rent, is within a 
 constitutional provision that no private 
 property shall be taken or damaged for 
 public or private use without just compen- 
 sation having been first made or paid into 
 court for the owner. Brown v. Seattle, 5 
 Wash. 35, 31 Pac. 313, 32 Pac. 214, 18: 161 
 
 388. An abutting property owner is not 
 entitled to damages for the elevation of a 
 street to correspond with the original es- 
 tablishment of the grade, although the ef- 
 fect is to destroy access to the street from 
 his property. Brand v. Multnomah County, 
 38 Or. 79, 60 Pac. 390, 62 Pac. 209, 50: 389 
 
 389. The diversion of surface water from 
 its usual course of flow in a highway, by a 
 change of grade, does not give a right of ac- 
 tion to a person whose premises are there- 
 by damaged. Champion v. Crandon, 84 Wis. 
 405, 54 N. W. 775, 19: 856 
 Narrowing or injuring street. 
 
 390. An abutting owner is entitled to 
 damages for the diminution of the value of 
 the property caused by reducing the width 
 of the street, or by excavations rendering it 
 unsafe and dangerous, in constructing a 
 steam railroad therein. White v. North- 
 western X. C. R. Co. 113 N. C. 610, 18 S. 
 E. 330, 22: 627 
 Vacating street. 
 
 391. A constitutional right to a remedy 
 for injury to property does not include the 
 right to recover for an injury not different 
 in kind, but only in degree, from that suf- 
 fered by the community in general from the 
 vacation of a remote part of a street, though 
 it causes depreciation in the value of prop- 
 erty, but leaves ample means of access 
 thereto. Dantzer v. Indianapolis U. R. Co. 
 141 Tnd. 604, 39 N. E. 223, 34: 760 
 
 IV. Additional Servitude, 
 a. In General; On Railroad Way. 
 
 As to Consequential Injuries by Taking, see 
 
 supra, III. e. 
 As to Necessity of Making Compensation 
 
 Generally, see supra, III. c, 1.
 
 EMINENT DOMAIN, IV. b, 1. 
 
 1161 
 
 As to What Constitutes a Taking, see supra, 
 
 III. b. 
 For Editorial Notes, see infra, V. 19. 
 
 392. A lease by a railroad company to 
 other companies of the right to use its 
 tracks for terminal purposes does not impose 
 an additional burden upon the land entitling 
 the owner of the fee to further compensa- 
 tion. Miller v. Green Bay, W. & St. P. R. 
 Co. 59 Minn. 169, 60 N. W. 1006, 26: 443 
 
 393. Using a part of a railroad location, 
 outside of the space occupied by tracks, for 
 the abutments and approach of a bridge con- 
 structed to carry an existing highway over 
 the road in order to abolish a grade cross- 
 ing, is not the imposition of a,, new ease- 
 ment in the railroad right of way, so as to 
 bring the railroad company within a stat- 
 ute providing compensation for property 
 taken for such purposes; and it is imma- 
 terial that for convenience the point of 
 crossing is moved a short distance from its 
 old location. Boston & A. R. Co. v. Wor- 
 cester, 180 Mass. 71, 61 N. E. 806, 55: 623 
 Elevator. 
 
 394. The maintenance of an elevator on a 
 public wharf, for handling grain thereat, is 
 no new or additional servitude. It is sim- 
 ply a new method of using the wharf for 
 the very purpose for which it was con- 
 demned. Belcher's Sugar Ref. Co. v. St. 
 Louis Grain Elevator Co. 101 Mo. 192, 13 S. 
 W. 822, 8: 801 
 Additional railroad. 
 
 395. Building another railroad on a por- 
 tion of the unused right of way of a com- 
 pany which has acquired an easement only 
 therein creates an additional servitude; 
 and the, consent of the owner of the land 
 must first be obtained and compensation 
 made to him for the damage. Fort Worth 
 & R. G. R. Co. v. Jennings, 76 Tex. 373, 13 
 S. W. 270, 8: 180 
 Telegraph and telephone. 
 
 For Editorial Notes, see infra, V. 19. 
 
 396. The construction of a telegraph and 
 telephone line on a railroad company's right 
 of way imposes an additional servitude or 
 burden on the land, for- which the owners 
 are entitled to compensation, unless it is 
 constructed by the railroad company in 
 good faith for its own use and benefit in 
 the operation of the road and to facilitate 
 its business, or is reasonably necessary for 
 that purpose. American Teleph. & Teleg. 
 Co. v. Smith. 71 Md. 535. 18 Atl. 910. 
 
 , 7: 200 
 
 On railroad right of way in street. 
 For Editorial Notes, see infra, V. 19. 
 
 397. A railway company owning land 
 abutting on a highway, including the fee 
 therein, is entitled to protection from the 
 imposition of additional burdens upon the 
 road beyond those incident to its use as a 
 highway. Western R. of Ala. v. Alabama 
 G. T. R. Co. 96 Ala. 272, 11 So. 483, 17: 474 
 
 398. A railroad company owning the fee 
 of the street at the point where the street 
 is crossed by its tracks is not entitled to 
 compensation as for an additional burden, 
 upon the construction of street railway 
 
 tracks along the street under permission 
 from the city, where its own tracks are not 
 injured. Chicago, B. & Q. R. Co. v. West 
 Chicago Street R. Co. 156 111. 255, 40 N. 
 E. 1008, 29: 485- 
 
 b. On Highway. 
 1. In General. 
 
 Additional Burdens on Railroad Right of 
 Way in Street, see supra, 397. 
 
 As Additional Servitude on Highway, see 
 infra, 404-415. 
 
 As to What Constitutes a Taking, see su- 
 pra, III. b, 2. 
 
 For Editorial Notes, see infra, V. 19. 
 
 399. The uses of streets prevailing at the 
 time of the taking or dedication of a street 
 are not the limits of the uses to which the 
 public is entitled and which the soil owner 
 is deemed to have contemplated, but such 
 uses are to be enlarged to include all of the 
 additional and improved methods of attain- 
 ing the same objects and enjoying the same 
 privileges, not, however, to the denial or 
 substantial impairment of the fee owner's 
 use and enjoyment of his abutting property. 
 Magee v. Overshiner, 150 Ind. 127, 49 X. E. 
 951, 40: 370 
 
 400. Erections upon a public street im- 
 pose no additional servitude where they aid 
 and facilitate its use for the purposes of 
 travel and transportation. Chicago, B. & 
 Q. R. Co. v. West Chicago Street R. Co. 156 
 111. 255, 40 N. E. 1008, 29: 485 
 
 401. Any structure on a street, which is 
 subversive of and repugnant to its use and 
 efficiency as a public thoroughfare, is not 
 a legitimate street use, and imposes a new 
 servitude on the rights of abutting owners, 
 for which compensation must be made. 
 Willamette Iron Works v. Oregon R. & Xav 
 Co. 26 Or. 224, 37 Pac. 1016, 29: 88 
 
 402. A change of a county road to a city 
 street in consequence of the incorporation 
 of the city does not impose an additional 
 servitude upon the real property over which 
 the highway is constructed, so as to require 
 any new condemnation. Huddleston v. 
 Eugene, 34 Or. 343, 55 Pac. 868, 43: 444 
 Electric light poles. 
 
 403. Poles for electric light wires are 
 not additional burdens upon the fee of a 
 country highway in a town which has grant- 
 ed the right to maintain the wires and con- 
 tracted for lighting the streets with the 
 electric lights, as light may be necessary 
 for the safe use of the streets. Palmer v. 
 Larchmont Elec. Co. 158 N. Y. 231, 52 N. E. 
 1092. 43: 672" 
 Telegraphs and telephones. 
 
 On Railroad Right of Way, see supra, 114. 
 
 See also supra, 269; infra, 416. 
 
 For Editorial Notes, see infra, V. 19. 
 
 404. A telegraph line is an additional bur- 
 den on the fee of a public highway, for 
 which compensation must be made to the 
 owner. Postal Teleg. Cable Co. v. Eaton, 
 170 111. 513, 49 N. E. 365. 39: 722 
 
 405. The occupancy of city streets by 
 telephone poles and \\hes is a new and ad-
 
 1162 
 
 EMINENT DOMAIN, IV. b, 1. 
 
 ditional servitude requiring compensation 
 for the damages thereby inflicted upon 
 abutting owners. Donovan v. Allert, 10 X. 
 
 D. 289. 91 N. W. 441, 58:775 
 40f.. Telephone poles and wires constitute 
 
 an additional burden upon a street, for 
 which compensation must be made to the 
 owners of the land as a condition of such 
 use. Krueger v. Wisconsin Teleph. Co. 106 
 Wis. 96, 81 N. W. 1041, . 50: 298 
 
 407. Poles and wires which permanently 
 and exclusively occupy portions of a public 
 street or highway constitute an additional 
 burden for which the abutting owner is en- 
 titled to compensation in case he is dam- 
 aged thereby. Bronson v. Albion Teleph. 
 o. 67 Neb. 'ill, 93 N. W. 201. 60: 426 
 ' 408. The erection of a telegraph line upon 
 a highway is an additional servitude for 
 which compensation must be made to the 
 owner of the soil. Western U. Teleg. Co. 
 v. Williams, 86 Va, 696, 11 S. E. 106, 8: 429 
 
 40'J. The public easement in a rural high- 
 way of which the fee is in the adjoining 
 owner does not include the permanent and 
 exclusive appropriation of any part of the 
 highway by poles and wires of a telegraph 
 and telephone company. Eels v. American 
 Teleph. & Teleg. Co. 143 N. Y. 133. 38 N. 
 
 E. 202, 25: 640 
 
 410. The Virginia act of February 10, 
 1880. authorizing a telegraph company to 
 construct a line along county roads, provid- 
 ed the ordinary use of the road is not ob- 
 structed, does "not give any right to build 
 such line without compensation to the own- 
 er of the fee. If the act is intended to give 
 such right, it is in violation of the consti- 
 tutional provision against taking private 
 property without just compensation. West- 
 ern U. 'Teleg. Co. v. Williams, 86 Va. 696, 
 11 S. E. 106, 8:429 
 
 411. Compensation for the erection of a 
 telegraph line in a street must be made to 
 abutting owners, although the fee of the 
 street is in the public; and the right there- 
 to cannot be defeated by action of the 
 municipal authorities. Stowers v. Postal 
 Teleg. Cable Co. 68 Miss. 559. 9 So. 356, 
 
 12: 864 
 
 412. The construction and maintenance of 
 a telephone line upon a rural highway are 
 not an additional servitude for which com- 
 pensation must be made to the owner of 
 -the land over which the highway is laid. 
 McCann v. Johnson County Teleph. Co. 69 
 Kan. 210, 76 Pac. 870. 66: 171 
 
 413. Telegraph poles in a highway do not 
 constitute an additional servitude upon the 
 fef for which owners must be compensated. 
 People v. Eaton. 100 Mich. 208, 59 "NT. W. 
 145. 24: 721 
 
 414. A telephone line consisting of poles 
 and wires along a country highway, which 
 does not interfere with the safety and con- 
 venience of ordinary travel, or unreasonably 
 or materially impair the special easement of 
 an abutting owner, does not impose an ad- 
 ditional servitude upon the highway. Cater 
 v. Northwestern Teleph. Exeh. Co. 60 Minn. 
 539. 63 X. W. 111.. 28: 310 
 
 415. The reasonable use of the streets of 
 a city for the equipment of a telephone 
 system, including poles and wires, is not a 
 new and additional servitude for which the 
 abutting property owner is entitled to com- 
 pensation. Magee v. Overshiner, 150 Ind. 
 127, 49 N. E. 951, 40: 370 
 Subway. 
 
 416. The occupation of a sidewalk with a 
 trench and pipes for a conduit for tele- 
 phone wires is not an additional burden up- 
 on the fee. which entitles the abutting own- 
 er to compensation, although it is laid so 
 close to the line of the abutting property 
 as to interfere with intended areas under 
 th<> walk. Coburn v. New Telephone Co. 
 156 Tnd. 90, 59 N. E. 324, 52: 671 
 Viaduct. 
 
 417. A street dedicated to the public for 
 ordinary purposes cannot be appropriated 
 for the construction of a viaduct which com- 
 pletely destroys its use for street purposes, 
 without liability for damages to abutting 
 owners. Spencer v. Metropolitan Street R. 
 Co. 120 Mo. 154. 23 S. W. 126, 22: 668 
 
 418. The building of a viaduct over rail- 
 road tracks in a public street, which practi- 
 cally closes abutting property to access by 
 teams from the street, is such an extraor- 
 dinary and unusual use of the street as 
 could not have been reasonably anticipated 
 at the time of its dedication, and therefore 
 the abutting owner is entitled to conse- 
 quential damages, under the Colorado con- 
 stitutional requirement of compensation for 
 property damaged, although it is limited by 
 the courts of that state to unusual or ex- 
 traordinary uses. Peublo v. Strait, 20 Colo. 
 13, 36 Pac. 789, 24: 392 
 Gas pipes. , 
 
 For Editorial Notes, see infra, V. 19. 
 
 419. Pipes for the transportation of nat- 
 ural gas cannot be laid in a country road 
 without making compensation to the owner 
 of the fee, although the right to do so has 
 been granted by the board of county com- 
 missioners. Kincaid v. Indianapolis Natural 
 Gas Co. 124 Ind. 577, 24 N. E. 1066. 8: 602 
 Railroad bridge. 
 
 420. The construction by a railroad com- 
 pany under proper authority, of a bridge to 
 carry its tracks diagonally across the in- 
 tersection of two streets, covering land the 
 fee of which is in the owner of a corner 
 lot, imposes an additional burden upon his 
 property, for whi(!h he is intitled to dam- 
 ages. Jones v. Erie & W. V. R. Co. 151 
 Pa. 30. 25 Atl. 134. 17: 758 
 Approach to bridge. 
 
 421. A bridge approach will not constitute 
 an additional servitude upon a street, where 
 the grade of the street is established by 
 the legislature at its surface, so as to con- 
 stitute a taking of private property for 
 which compensation must be made. Brand 
 v. Multnomah County. 38 Or. 79, 60 Pac. 
 390. 62 Pac. 209, 50: 389 
 
 422. Damage to an abutting owner by an 
 elevated approach to a bridge across rail- 
 road tracks, which leaves a space of about 
 7% feet between the structure and the 
 side of the street for access to his prem-
 
 EMINENT DOMAIN. IV. b, 2. 
 
 1163 
 
 ises, is damnum absque injuria. Home 
 Bldg. & C. Co. v. Roanoke. 91 Va. 52. 20 S. 
 E. 805, 27: 551 
 
 42:1. Building in a city an approach to 
 a bridge over railroad tracks, leaving access 
 to abutting owners, is not an additional 
 servitude. Id. 
 
 424. An elevated approach to a public 
 bridge built in a street does not impose any 
 additional servitude, or entitle the abut 
 ting owner to damages for the consequent 
 depreciation in the value of his property. 
 Willis v. Winona, 59 Minn. 27, 60 X. W. 
 814. 26: 14? 
 
 42.') The fact that tolls for the use of a 
 bridgp are charged by a city under legi>1a- 
 tivo authority does not make the use of the 
 street for an elevated approacfi thereto an 
 additional servitude. Id. 
 
 426. A solid structure 30 feet wide, erected 
 in the middle of a street 66 feet wide and 
 curving so as to leave on one side a pas- 
 sageway only 8 feet wide, built as an ap- 
 proach to a toll bridge owned by a pri- 
 vate corporation, not forming a part of 
 or extension of any public highway, al- 
 though authorized by the legislature and 
 city authorities, can lawfully be made only 
 on payment of damages to the abutting 
 owner. Willamette Iron Works v. Oregon 
 R. & Xav. Co. 26 Or. 224, 37 Pac. 1016. 
 
 29: 88 
 
 2. Railways of Various Kinds. 
 
 For Editorial Notes, see infra, V. 19. 
 
 Steam railroad. 
 
 A* to What Constitutes a Taking, see su- 
 pra. 234-236. 
 
 Spp al-o supra, 420, 422, 423. 
 For Editorial Notes, see infra, V. 19. 
 
 427. A railroad for transportation of pas- 
 sengers and freight on a street does not 
 impose a new burden or servitude upon the 
 owner of the soil, although he may be en- 
 titled to damages for injury to his right 
 of access, or light and air. Montgomery 
 v. Santa Ana & W. R. Co. 104 Cal. 186, 37 
 Pan. 786. 25: 654 
 
 425. The construction and operation of a 
 <te;i'ii railroad along a street on the es- 
 tablished grade, under proper municipal au- 
 thority, does not constitute such an appli- 
 i-ation of the street to a new public use as 
 requires payment of compensation for dam- 
 ages to the owner of abutting lots. Henry 
 can- cV- Sons Mfg. Co. v. St. Louis. K. & N. 
 W. E. Co. 113 Mo. 308, 20 S. W. 658. 18: 339 
 Ottawa. O. C. & C. G. R. Co. v. Larsen. 40 
 Kan. 301, 19 Pac. 661, 2: 59 
 
 42i>. The use of a street for a steam rail- 
 road is a perversion of the street from its 
 original and proper public purpose. White 
 v. Northwestern N. C. R. Co. 113 N. C. 610. 
 18 S. E. 330, ' 22: 627 
 
 430. A steam railway cannot be construct- 
 ed along a public highway, in tho absence 
 of compensation to abutting owners, where 
 they own the fee in the street. Western 
 R. of Ala. v. Alabama G. T. R. Co. 96 Ala. 
 272, 11 So. 483, 17: 474 
 
 431. A charter from the state, and a con- 
 tract with a city and county authorizing 
 the construction and use of a railway in a 
 street, cannot authorize such use without 
 compensation to the owner of the fee. East 
 End Street R. Co. v. Doyle, 88 Tenn. 747. 
 13 S. W. 936, 9: 100 
 
 432. A railway whose cars are propelled 
 by a dummy steam engine and used for 
 [avengers only is a burden or servitude on 
 a public street or highway, in addition to 
 that contemplated in the original dedication 
 of the land to public use, for which the 
 owners of the fee are entitled to compensa- 
 tion, id. 
 
 433. On the question whether or not a 
 railway operated by a steam motor in a 
 public street is an additional burden which 
 an abutting owner may enjoin, the Michi- 
 gan court is divided, two in the affirmative, 
 two in the negative, and one holding that 
 it is not settled. But it holds compensa- 
 tion must be made to the owner of the 
 fee before a railway can be constructed 
 along a highway by cutting and filling, us- 
 ing ties and T rails, and leaving a ditch on 
 each side so as practically to block up for 
 ordinary uses the portion of the highway 
 where it is located. Nichols v. Ann Arbor 
 & Y. Street R. Co. 87 Mich. 361. 40 N. W. 
 538, 16: 371 
 New side track. 
 
 434. The building, by a railroad company, 
 of a side track in a street along and upon 
 which it has a right of way and has a 
 single track in operation, constitutes no ad- 
 ditional burden upon property abutting up- 
 on the street, for which damages may be 
 recovered by its owner, where the statutes 
 enabled the company to locate its tracks up- 
 on the street and to appropriate a right of 
 way 6 rods wide, and it gave notice that 
 its appropriation would be made "in as full 
 and ample and perfect a manner as may be 
 required" for railroad purposes, and it paid 
 the assessed damages, which were duly ac- 
 cepted. White v. Chicago. St. L. & P. R. 
 Co. 122 Ind. 317, 23 N. E. 782, 7: 257 
 Street railway generally. 
 
 As Additional Burden on Railroad Right of 
 Way in Street, see supra, 398. 
 
 As to What Constitutes a Taking, see su- 
 pra, 239. 
 
 For Editorial Notes, see infra, V. 19. 
 
 435. A street railway in a street does not 
 create an additional servitude. People ex 
 rel. Kunze v. Ft. Wayne & E. R. Co. 92 
 Mich. 522, 52 N. W. 1010, 16: 7.V2 
 
 436. A passenger street railway which 
 takes on and discharges passengers at rea- 
 sonable points, if so constructed and oper- 
 ated as not materially to interfere with the 
 ordinary modes of using the strppts for pub- 
 lic travel or with private rights, is not an 
 additional burden on the fee of the land, 
 whatever may be the motive power used 
 or the manner in whieh it is built. La 
 Crowe City R. Co. v. Higbee. 107 WSs. 389. 
 83 N. W. 701, 51 : 923 
 
 437. The motive power which moves ye- 
 hiples on a street does not determine wheth- 
 er or not an additional burden is imposed
 
 1164 
 
 EMINENT DOMAIN, IV. b. 2. 
 
 upon the easement, but that question de- 
 pends on the exclusiveness and permanency 
 of the occupation of any portion of the 
 street. Jaynes v. Omaha Street R. Co. 53 
 Neb. 631, 74 N. W. 67, 39:751 
 
 438. The question whether a new method 
 of using a street for public travel results in 
 the imposition of an additional burden 
 upon the fee must be determined by the use 
 which such method makes of the street, 
 and not by the motive power which it em- 
 ploys in such use. Chicago, B. & Q. R. Co. 
 v. West Chicago Street R. Co. 156 111. 255. 
 40 N. E. 1008, 29: 485 
 
 439. The permission to a street railway 
 company to lay its tracks in a street already 
 appropriated to public use is not a grant of 
 the right to appropriate an additional ease- 
 ment in the soil of the street, but the con- 
 struction of such road is merely a mode of 
 facilitating existing travel, and of modify- 
 ing or changing the existing public use, add- 
 ing an additional mode of conveyance to 
 those already upon the street, and inflict- 
 ing no damage upon the owner of the fee 
 of the street. Id. 
 Electric railroads. 
 
 440. An electric street railway for pas- 
 sengers does not constitute a new burden or 
 servitude upon a public street or highway. 
 Southern R. Co. v. Atlanta R. & P. Co. Ill 
 Ga. 679, 36 S. E. 873, 51 : 125 
 
 441. The use of electricity for propelling 
 street cars does not impose a new servitude 
 npon the streets, so as to entitle abutting 
 lot owners to additional compensation. 
 Koch v. North Ave. R. Co. 75 Md. 222. 23 
 Atl. 463, 15: 377 
 
 442. The trolley system of propelling 
 street cars, as at present used for the trans- 
 portation of passengers through the streets 
 of a city, is within the public easement 
 over urban highways. State ex rel. Kennel- 
 ly v. Jersey City (N. J. Sup.) 57 N. J. L. 
 293, 30 Atl. 531, 26: 281 
 
 443. The substitution of electric motors 
 with the trolley system for horses on street 
 railways does not per se create an addi- 
 tional easement. State ex rel. Roebling v. 
 Trenton Pass. R. Co. (N. J. Err. & App.) 58 
 X. J. L. 666, 34 Atl. 1090, 33: 129 
 
 444. A conversion of an existing single- 
 track horse car railway into a double-track 
 electric railway under legislative and munic- 
 ipal authority is not an additional servitude 
 on a street for which abutting lot owners 
 are entitled to compensation. Reid v. Nor- 
 folk City R. Co. 94 Va. 117, 26 S. E. 428, 
 
 36: 274 
 
 445. The use of electricity by a street 
 railway company as a motive power will not 
 render its use of the street an imposition of 
 an additional servitude thereon, which will 
 require the making of additional compensa- 
 tion therefor to the owner of the fee. where 
 it docs not appear that the occupation of 
 the street is any more exclusive than though 
 the road was operated by horse power. 
 Taggart v. Newport Street R. Co. 16 R. I. 
 668. 19 Atl. 326. 7: 205 
 
 446. A supporting trolley wire pole for 
 
 a passenger street railway, when set in 
 street in front of the sidewalk, if plared 
 with reasonable regard for the convenience 
 of the owner of the fee of the land on which 
 it is located and so as not materially to in- 
 terfere with access to his lot outs'ide the- 
 street line, does not constitute an addition- 
 al burden on the fee of the land. La Crosse 
 City R. Co. v. Higbee, 107 Wis. 389. 83 N. 
 W. 701, 51 : 923- 
 
 447. An electric motor street railway 
 built upon street grade, doing no special 
 injury to the fee, is not an imposition of a 
 new or additional servitude upon the high- 
 way for which the owner of the fee is en- 
 titled to compensation, especially when the 
 law at the time when the street was made 
 authorized the use of electricity by street 
 railways. Birmingham Traction Co. v. Bir- 
 mingham Ry. & Elec. Co. 119 Ala. 137. 24 
 So. 502, 43: 233" 
 
 448. The operation of an interurban rail- 
 way by electric power upon T rails through 
 a city street with authority to carry pas- 
 sengers, baggage, mail, and light express- 
 matter, running no more than two cars in 
 a train, does not impose an additional 
 servitude upon the street, or give abutting 
 property owners a right to additional com- 
 pensation therefor. Mordhurst v. Fort 
 Wayne & S. W. Traction Co. 163 Ind. 268, 
 71 N. E. 642, 66: 105- 
 
 449. Poles for a trolley railroad, set at 
 stated distances on either side of tracks 
 near the margin of a street, on which wires 
 are placed, constitute an additional burden 
 upon the street. Jaynes v. Omaha Street 
 R. Co. 53 Neb. 631, 74 N. W. 67, 39: 751 
 
 450. An electric railway in a village 
 street, which forms part of a connecting- 
 line between cities for transporting mer- 
 chandise, personal baggage, mail, and ex- 
 press matter, as well as passengers, consti- 
 tutes an additional servitude or burden up- 
 on the lands of abutting owners for which 
 they nre entitled to compensation. Chicago 
 & N. W. R. Co. v. Milwaukee, R. & K. E. R. 
 Co. 95 Wis. 561, 70 N. W. 678, 37 : 856 
 
 451. An electric passenger railroad on a 
 country highway constitutes an additional 
 burden, and cannot be built without the 
 consent of the abutting owner and payment 
 of compensation. Zehren v. Milwaukee 
 Elec. R. & L. Co. 99 Wis. 83, 74 N. W. 538, 
 
 41 : 575 
 
 452. An electric railway imposes an addi- 
 tional servitude on the land over which 
 public 'roads run outside of municipal 
 boundaries. Pennsylvania R. Co. v. Mont- 
 gomery County Pass. R. Co. 167 Pa. 62. 31 
 Atl. 468, 27: 766 , 
 
 453. Laying an electric street car track 
 on a turnpike within about 7 feet of a 
 building does not entitle the abutting owner 
 to compensation, although it prevents 
 teams from standing in front of his place 
 of business as they have formerly been 
 able to do. Ashland & C. Street R! Co. v. 
 Faulkner. 106 Ky. 332, 45 S. W. 235, 51 S. 
 W. 806. 43; 554
 
 EMINENT DOMAIN, V. (Ed. Notes.) 
 
 1165 
 
 TDlevated railroads. 
 
 As to What Constitutes a Taking, see su- 
 pra. 237, 238. 
 
 4.~)4. Constructing an elevated railroad on 
 pillar? in a public street is not a new servi- 
 tude or unlawful use of the street. Doane 
 v. Lake Street Elev. R. Co. 165 111. 510, 
 40 X. E. 520, 36: 97 
 
 Private tramway. 
 
 4 .">.">. The construction of a private tram- 
 way for an exclusive private use is entire- 
 ly beyond the servitude imposed by law, 
 .ind can no more be made on that portion 
 <>r' an owner's land occupied by a public road 
 < han on anv other portion of his estate. 
 Hradley v. Pharr, 45 La. Ann. 426, 12 So. 
 -618, * 19: 647 
 
 V. Editorial Notes. 
 
 .Measure of Damages in. see Damages, V. 
 17-19. 
 
 a. Right to take property, 
 i. In general; who may exercise. 
 
 i. Generally. 
 
 Principles in law of. 13: 332.* 
 
 ^Constitutional restrictions on the right. 
 4: 786.* 
 
 Abuse of right. 4: 786.* 
 
 Expediency of exercise of right, a legisla- 
 tive question. 4: 785;* 
 7: 151.* 
 
 One exercise of the right does not extin- 
 guish it. 4: 787.* 
 
 Means and agencies of its exercise. 4: 786.* 
 
 "When exercise of power for purposes of wa- 
 ter supply exhausted. 58: 
 248. 
 
 ^ 2. Who may exercise. 
 
 Delegation or right. 1:133;* 2:680;* 4: 
 788.* 
 
 Hight of foreign corporation to exercise. 
 24: 327. 
 
 For purpose of water supply. 58: 243. 
 
 2. For what purpose. 
 
 3. Generally. 
 
 In general; what public. 11: 285.* 
 
 Necessity that use be a public one. 2: 680;* 
 
 4: 787.* 
 
 'Right of court to determine whether use is 
 
 public or private. 4: 788.* 
 
 Effect upon court of legislative declaration 
 
 that use is a public one. 
 
 8: 58.* 
 
 ^Criterion determining character of use as 
 
 public or private. 2: 681.* 
 
 For what purposes the flowage of lands may 
 
 be authorized by statute. 
 
 14: 487. 
 
 4. Private road; levee; water supply. 
 Private road. 16: 81. 
 
 Outlet for communication with public. 
 
 16: 82. 
 Necessity of road. 16: 83. 
 
 Exercise of eminent domain to acquire 
 rights of way for levees. 
 58: 757. 
 
 For water supply. 13:332;* 58:241. 
 
 Discretion as to necessity of exercise of 
 power for purposes of wa- 
 ter supply. 58: 249.. 
 
 5. Drainage of private lands. 
 
 Generally. 49: 781. 
 
 Necessity must exist. 49: 782. 
 
 What is a public purpose. 49: 783. 
 
 Public health. 49: 783. 
 
 Reclamation of large tracts. 49: 783. 
 
 For all drainage purposes. 49: 784. 
 
 Other purposes. 49: 786. 
 
 Limited public sufficient. 49: 787. 
 
 Presumption as to public character. 49: 
 787. 
 
 6. Railroad purposes. 
 
 Railroads as public improvements. 2: 681;* 
 4: 785.* 
 
 Relocation of railroad. 36: 510. 
 
 For railroad sidings to private establish- 
 ments. 4: 791;* 20: 434. 
 
 For railroad depot. 9: 295.* 
 
 Authority of railroad company to take lands 
 for its corporate use. 2: 
 255.* 
 
 3. What may be taken. 
 
 7. Generally. 
 
 What property may be taken. 13: 432.* 
 
 Vested rights subordinate to power of. 7: 
 766.* 
 
 Acquisition of tide lands by right of. 66: 
 897. 
 
 Taking of earth from private land, when 
 justified. 3: 832.* 
 
 For purposes of a water supply. 58: 244. 
 
 For purposes of sewer. 60: 198. 
 
 8. Property already devoted to public or 
 quasi-public use. 
 
 Generally. 7: 666.* 
 
 Right and franchises of corporation, gener- 
 ally. 13:432.* 
 
 Property and franchises of railroad corpora- 
 tion. 4: 785;* 7: 767.* 
 
 Location of railroad; what sufficient to ex- 
 clude another road. 4: 
 791;* 12:220. 
 
 Right to take other public property for pur- 
 poses of water supply. 
 58: 246. 
 
 4. Rights and title acquired. 
 
 9. Generally. 
 
 Power of legislature to declare what estate 
 
 shall be taken. 9 : 295.* 
 Restriction of right taken to easement, when 
 
 that sufficient. 9: 295.* 
 Nature of interest acquired in right of way 
 
 for railroad. 8: 180.* 
 Ownership of fee in land condemned for 
 
 highway. S: 429.* 
 Validity of sale of land by railroad. 25: 
 
 130.
 
 1166 
 
 EMINENT DOMAIN, V. (Ed. Notes.) 
 
 Effect of condemnation of husband's lands 
 upon wife's right of dow- 
 er. 18: 79. 
 
 Extent of title or rights taken for purposes 
 of canal. 61: 836, 838. 
 
 Extent of rights acquired for purposes of 
 water supply. 58: 248. 
 
 b. Procedure. 
 
 10. Generally. 
 
 Procedure in condemning property for water 
 supply, generally. 58:250. 
 
 Proceedings to condemn land for drain or 
 sewer. 60: 198. 
 
 Removal of proceedings in. 1: 65.* 
 
 Abandonment of proceedings for acquisition 
 of water supply. 58: 253. 
 
 Practice and remedies when property sub- 
 ject to lease. 21:219, 
 222. 
 
 First and last days in computing Lime. 
 49: 238. 
 
 Time within which power to condemn land 
 and water rights must be 
 exercised. 58: 258. 
 
 Time allowed for making claim for dam- 
 ages from taking property 
 for water supply. 58: 259. 
 
 ii. Trial. 
 
 Right to jury. 2: 422.* 
 
 New trials. 2: 422.* 
 
 Viewing premises by jury. 12: 611.* 
 
 12. Notice. 
 
 In proceedings to acquire water supply. 
 58: 253. 
 
 To occupant only. 16: 186. 
 
 To tenants and reversioners. 21 : 222. 
 
 Right of mortgagee to notice. 18: 115. 
 
 Effect of failure to give mortgagee notice. 
 18: 117. 
 
 c. Rights and remedies of owners and others. 
 
 13. Generally. 
 
 Remedy of owner; statutory. 5: 183.* 
 
 Conclusiveness of statutory remedy when 
 
 land is taken for public 
 
 use. 5: 183.* 
 Protection of private rights: remedy in 
 
 equity. 5: 661.* 
 
 Rights of life tenants, reversioners. and re- 
 maindermen. 21:219.221. 
 Rights of mortgagee. 12: 84.* 
 14. Rights of tenants and reversioners. 
 i Join-rally. 21:212. 
 Effect on liability for rent. 17:276; 21: 
 
 213. 222. 
 
 When only part taken. 21: 214. 
 Damages; application of. 21:215. 
 Damages, right to and estimation of. 21: 
 
 217. 223. 
 
 (i round rents. 21: 221. 
 Rights of tenant receiving proper notice to 
 
 quit. 21 : 222. 
 As affeetod by duration of tenancy. 21: 
 
 222 
 
 Effect on the lease. 21: 222. 
 15. Rights of mortgagee. 
 As between mortgagor and mortgagee. 
 
 18: 113. 
 
 As between mortgagee and appropriator, 
 18: 114. 
 
 16. What constitutes a taking. 
 
 See also infra, V. 19. 
 
 Injury to land as a taking for public use. 
 1 : 298.* 
 
 Injury to land as a subject of damages. 
 3: 248.* 
 
 Taking or damaging property by dischar- 
 ging sewers into waters. 
 48: 698. 
 
 Removal of lateral support as a "taking" of 
 property. 68: 699. 
 
 Liability of municipal corporation for re- 
 moval of lateral or sub- 
 jacent support of land. 
 68: 700. 
 
 Taxing for municipal purposes lands which 
 received no benefit from 
 municipal government aa 
 a taking without com- 
 pensation. 27:741. 
 
 What constitutes a "taking." 18: 166. 
 
 Easements of light, air, and access. 
 18: 166. 
 
 17. What lands deemed to be part of tract 
 taken. 
 
 Different holdings. 57: 932. 
 
 Property in city. 57: 936. 
 
 Separated by highways, railroads, or 
 
 other property. 57:936. 
 Separated by plat lines. 57:938. 
 Separating and severing buildings. 
 
 57: 941. 
 Part of lot or lots injured. 57: 943. 
 
 Farm lands in a contiguous body. 57 : 944. 
 
 Farm lands separated by highways, rail- 
 roads, canals, or other 
 property. 57: 945. 
 
 Lands in different counties. 57: 948. 
 
 1 8. Right to compensation. 
 
 See also infra, V. 19. 
 
 As to Measure and Amount of Compensation 
 see Damages, V. 17-19. 
 
 Self-executing effect of constitutional pro- 
 vision that private prop- 
 erty shall not be taken or 
 damaged for public use 
 without compensation. 
 
 16: 283. 
 
 Right of tenant of property to compen- 
 sation. 11:839;* 21: 217. 
 
 Right to compensation for railroad struc- 
 tures placed on land be- 
 fore condemnation. (>ti:44. 
 
 Right to compensation for appropriation of 
 land for drain or se.wer. 
 60: 190. 
 
 Right to acquire water supply without com- 
 pensation. 58: 240. 
 
 Prepayment as a condition of acquisition of 
 a water supply. 58: 257. 
 
 Who entitled to compensation in proceed- 
 ing? to acquire water sup- 
 ply. 58: 256. 
 
 Licensee's right to compensation. 21: 219.
 
 EMPANELING ENCUMBRANCES. 
 
 1167 
 
 d. Additional burdens. 
 
 19. Generally. 
 
 As to Rights of Abutting Owners on High- 
 ways. Generally, see High- 
 ways, VII. 4. 
 
 Telegraph line along railroad right of way. 
 7: 200.* 
 
 What use of a street or highway constitutes 
 an additional burden. 
 17 : 474. 
 
 Railroads. 3: 175;* 8: 31;* 17: 474. 
 
 Street railways. 17: 477. 
 
 Horse railway. 4: 623.* 
 
 The New York rule. 17:478. 
 
 Sewers and drains. 17:479. ** 
 
 Water and gas pipes. 17: 480. 
 
 Telegraph and telephones poles and wires. 
 17: 480; 24: 721. 
 
 Markets. 17: 480. 
 
 Miscellaneous cases. 17: 481. 
 
 Abutting owner's right to compensation 
 for taking interest in 
 street. 7:549.* 
 
 Injuries to abutter's easements of light, air, 
 and access by vacating 
 street, changing grade, etc. 
 14: 370. 
 
 Injury to abutter's easement by railroad in 
 street. 14: 381. 
 
 Injury to abutting owner by laying street 
 railway near side of street. 
 43: 554. 
 
 General principles. 43: 554. 
 Effect of title to bed of street. 43: 
 
 555. 
 Extent of right to compensation. 
 
 43:556. 
 
 Damages. 43:560. 
 The California statute. 43 : 560. 
 
 Right of a railroad company to compensa- 
 tion for laying street rail- 
 way across railroad track 
 on a street crossing. 
 29: 485. 
 
 EMPANELING. 
 Of Grand Jury, see Grand Jury, III. 
 
 EMPLOYEES. 
 
 Bonds for Fidelity of. see Bonds, II. b. 
 
 Equal Protection and Privileges as to, see 
 Constitutional Law, II. a, 5, c. 
 
 Restricting Right of Contract with, see 
 Constitutional Law, II. b, 4, 6, (2). 
 
 Rights, Duties and Liabilities of Generally, 
 see Master and Servant. 
 
 Who are, see Mechanics' Liens, 35; Receiv- 
 ers, 48. 
 
 Editorial Notes. 
 
 Who are, within meaning of statute giving 
 preferences. 18: 305. 
 
 EMPLOYERS' ASSOCIATION. 
 Boycott by, see Conspiracy, 57-59. 
 
 EMPLOYERS' LIABILITY. 
 
 Notice as Prerequisite to Enforcement of 
 
 Liability, see Action or Suit, 33. 
 Insurance against, see Insurance, 777, 894, 
 
 000-903. 1343-1354. 
 Action by Injured Employee on Employer's 
 
 Indemnity Policy, see Parties, 63. 
 Statute as to. see Master and Servant, 53, 
 
 54, 138, 152, 162. 190-192. 320. 350, 464- 
 
 483; Statutes, 200, 395. 
 Contributory Negligence as Defense to, see 
 
 Master and Servant, 392. 
 
 EMPLOYMENT AGENCY. 
 
 Discrimination as to, see Constitutional 
 Law. 542. 
 
 Limiting Charges by Owner of, see Consti- 
 tutional Law, i027. 
 
 License of, see License, 68. 
 
 Partial Invalidity of Statutes as to, see 
 Statutes, 99,' 100. 
 
 ENACTMENT. 
 
 Of Ordinance, see Municipal Corporations. 
 
 H. c, 2. 
 Of Statute, see Statutes, I. 
 
 ENCROACHMENT. 
 
 Single Cause of Action for. see Action or 
 
 Suit, 96. 
 
 In Street, see Highways, 71-78. 
 Of Building on Highway, see Highways, 114. 
 
 115, 125; Nuisances, 77, 113. 
 
 If, by reason of mistake on the owners' 
 part, buildings are erected on their premises 
 by their own consent, they may be relieved 
 from the encumbrances thus created, where 
 they have not continued for twenty years. 
 Hodgkins v. Farrington, 150 Mass. 19. 22 X. 
 E. 73, 5: 209 
 
 ENCUMBRANCES. 
 
 Consideration of, in Estimating Outlay Re- 
 quired by Statute for Promoting 
 Health, see Buildings, 2. 
 
 Covenant against, see Covenant, 17-24, 42, 
 50; V. 4; Damages, 116; Evidence, 
 1116; Trial, 572. 
 
 Parol Evidence as to, see Evidence, 1079, 
 1116. 
 
 On Insured Property, see Insurance, III. e, 
 1. b: IX. 30,* 31.
 
 1168 
 
 ENCYCLOPAEDIA ENLISTMENT. 
 
 Conveyance of Property Subject to, see 
 
 Mortgage, III.; VIII. 11. 
 Right of Grantee Paying, see Vendor and 
 
 Purchaser, 50a. 
 Right to Open Highway Over Property as, 
 
 see Vendor and Purchaser, 46. 
 
 A lien or encumbrance on land would 
 be created by filing a map of a proposed 
 street across it, by virtue of a statute deny- 
 ing compensation for any buildings subse- 
 quently erected thereon, if euch statute were 
 valid. Forster v. Scott, 136 N. Y. 577, 32 
 N. E. 976, 18: 543 
 
 ENCYCLOPAEDIA. 
 Copyright of, see Copyright, 17, 32. 
 
 ENDOWMENTS. 
 
 Agreement for, in Insurance Policy, see In- 
 surance, 17, 18, 684, 718, 926. 
 
 ENEMY. 
 
 Editorial Notes. 
 Consul trading with enemy. 45: 588. 
 
 *-*- 
 
 ENFORCEMENT. 
 Of Judgment, see Judgment, VI. a. 
 
 ENGINE. 
 Patent on, see Patents, 11. 
 
 ENGINEER. 
 
 Conspiracy of against Commerce, see con- 
 spiracy, 165, 166. 
 
 Conclusiveness of Certificate, see Contracts, 
 728, 731. 
 
 Delegation of Power to License, see Consti- 
 tutional Law, 201. 
 
 Equal Protection of, see Constitutional 
 Law, 519. 
 
 Exemption of Wages of, f.e Exemptions, 35. 
 
 As Fellow Servant, see Master and Servant, 
 521, 558-560, 583, 588. 589. 
 
 ENGLISH LANGUAGE. 
 
 Inability to Read, as Affecting Negligence in 
 Going on Unsafe Bridge, see Bridges, 30. 
 Publication in, see Publication, 3-10. 
 
 ENGLISH STATUTE. 
 Repeal of, in Tennessee, see Statutes, 573. 
 
 ENGRAVER. 
 
 An engraver who takes separate con- 
 tracts to make dies from photographs, and 
 to print pamphlets containing cuts from 
 them, has no right to use them in pamphlets 
 for advertising his own business; and in 
 case he does so, and the pamphlets are de- 
 livered to his employer by mistake, he can 
 compel neither their return nor payment for 
 them. Levyeau v. Clements, 175 Mass. 376, 
 56 N. E. 735, 50: 397 
 
 Editorial Notes. 
 
 Right to use engraved plates without the 
 consent of the party who 
 has paid for making them. 
 50: 397. 
 
 ENLISTMENT. 
 In Army, see Army and Navj. 

 
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